Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in LOC , GPE .

On DATE criminal proceedings were initiated against the applicant and other third parties in respect of embezzlement , forgery of accountancy papers and tax evasion offences that had allegedly been committed by him in his capacity as director of the limited liability company NORP On DATE he was placed in police custody for twentyfour TIME on the basis of LAW ( c ) and ( h ) of LAW ( “ the ORG ” ) on the ground that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged , that he was a danger to public order , that the offences with which he had been charged were punishable by DATE imprisonment , and that he was preparing to abscond .

On DATE ORG issued an arrest warrant on the basis of Article CARDINAL ( h ) of the ORG and the applicant was placed in pretrial detention for DATE on the ground that the offences with which he had been charged were punishable by DATE imprisonment and that he was preparing to abscond .

On DATE the applicant and the third parties were indicted to stand trial on the abovementioned charges . They continued to remain in pretrial detention .

The applicant ’s pretrial detention was extended repeatedly by final interlocutory judgments of ORG . The court confirmed the legality of the detention on the ground that the reasons provided for by LAW ( h ) of the ORG which had justified the applicant ’s initial detention remained valid , did not breach his right of presumption of innocence and that the length of proceedings depended on the complexity of the case . Therefore it dismissed the applicant ’s repeated arguments that he was not a danger to public order , that his pretrial detention could be replaced by alternative measures and that the length of his detention and of the overall proceedings was excessive . The domestic courts did not provide any other explanation for the extension of the applicant ’s pretrial detention . Moreover , the CARDINAL hearings held DATE and DATE were repeatedly adjourned , inter alia , in order to allow all the suspects to employ the services of a lawyer , for witnesses to be heard , the summoning of various parties to the proceedings , the submission of technical and medical expert reports and the examination of the transfer of the file to another court as a result of the applicant ’s request .

By the interlocutory judgment of CARDINAL DATE ORG , having regard to the length of the pretrial detention , the applicant ’s complaint concerning his state of health and his medical condition , the facts of the case and the evidence submitted by the parties , ordered the release of the applicant . The court also ordered the applicant not to leave town without the court ’s consent pending the outcome of the criminal investigation . Lastly , the court adjourned the hearing until DATE for procedural reasons . ORG Office appealed against the decision .

By a final interlocutory judgment of CARDINAL DATE ORG allowed the appeal of ORG on the ground that according to the medical expert reports the applicant ’s health problems could be treated in prison hospitals and that the initial reasons justifying his detention were still valid . Consequently , the court ordered the applicant ’s pretrial detention to be extended from DATE to DATE .

By an interlocutory judgment of CARDINAL DATE ORG , sitting as a twojudge bench , again extended the applicant ’s pretrial detention from DATE to DATE . The court held that the applicant ’s detention was still justified under LAW ( h ) of the ORG . Moreover , the court could not be held responsible for the length of proceedings given the complexity of the case , the large amount of evidence submitted by the parties and the difficulties it faced in summoning the witnesses living in other cities . Lastly , the court adjourned the hearing for procedural reasons and ordered a technical expert report to be drafted . The applicant appealed against the decision .

By a final interlocutory judgement of DATE ORG allowed the applicant ’s appeal , quashed the interlocutory judgment of DATE in part and ordered the lower court to reexamine the matter of extending the applicant ’s pretrial detention . The court held that the decision had been taken by CARDINAL judges despite the applicable procedural rules requiring that this be done by a single judge . The court did not address the issue of the applicant ’s release despite this having been requested by the applicant .

By an interlocutory judgment of DATE ORG extended the applicant ’s pretrial detention to DATE on the ground that the reasons justifying his initial detention were still valid . It also dismissed the applicant ’s claim that his pretrial detention had ceased to be lawful after the final interlocutory judgment of DATE . It held that the said interlocutory judgment had mainly concerned the composition of the bench which had examined the merits of the judgment and considered , in terms of the lawfulness of the applicant ’s detention , that the conditions set out by LAW ORG had been met . Moreover , the extension of the applicant ’s pretrial detention had been lawful since it had been the will of both judges . The applicant appealed against the decision .

By a final interlocutory judgment of DATE ORG dismissed the applicant ’s appeal and upheld the decision of CARDINAL DATE .

By an interlocutory judgment of DATE ORG rejected the request of ORG for the extension of the applicant ’s pretrial detention and ordered the applicant ’s immediate release . The court held that following the judgment of DATE the applicant ’s detention from DATE had been unlawful in so far as the authorities had not extended the arrest warrant which had expired on DATE . Moreover , the present decision was not in breach of the res judicata principle in respect of the final decision of CARDINAL DATE since the current decision , among others , did not touch on the merits of the case , but only assessed the lawfulness of the detention , and the decision of DATE had interfered with the applicant ’s procedural rights . ORG appealed .

By a final interlocutory judgment of DATE ORG allowed the appeal of ORG . It held that ORG judgment of DATE interfered with the legal principle of res judicata . Consequently it quashed the decision and ordered the extension of the applicant ’s pretrial detention on the general ground that he was a danger to public order and that the reasons justifying his initial detention , including the ground provided for by LAW ORG , were still valid .

DATE and DATE the applicant ’s pretrial detention continued to be extended by final interlocutory judgments of the domestic courts generally on the basis of the provisions of Article CARDINAL ( h ) of the ORG , while his complaints concerning the length of his pretrial detention and of the proceedings as a whole were dismissed generally for the reason that the case was complex . Furthermore , no additional reasons or explanations were provided by the courts in respect of the applicant ’s personal situation and his repeated claims that his pretrial detention following the judgment of DATE was illegal were dismissed as res judicata . Finally , the hearings were repeatedly adjourned , inter alia , in order to allow for witnesses and parties to the proceedings to be heard or resummoned and for the submission of technical expert reports .

By an interlocutory judgment of CARDINAL DATE ORG assessed the lawfulness of the applicant ’s detention and ordered his immediate release . The court held that the applicant ’s detention DATE and DATE had been unlawful in so far as the arrest warrant had been issued by a prosecutor who was not a “ magistrate ” within the meaning of ORG ) and who had not clearly established the charges against the applicant . The prosecutor had also failed to hear the applicant prior to his detention or to provide reasons for his detention and had failed to immediately bring him before a judge following his arrest . At the same time , it considered that the assessment of lawfulness carried out by the domestic courts following the applicant ’s arrest could not have remedied the abovementioned failures . Furthermore , it held that the applicant ’s pretrial detention DATE and DATE had also been unlawful in so far as following the final judgment of DATE the applicant ’s arrest had not been based on any express or valid court order . It considered that the previous decisions delivered by the domestic courts in respect of the same issue were not res judicata , because the said principle did not apply to issues such as the applicant ’s detention which were separate from the merits of the case concerning the existence of the offence and the guilt of the accused . Moreover , it considered that its argument flowed from the provisions of the domestic procedural law which required courts to regularly assess the lawfulness of pretrial detention even if other domestic courts had previously delivered final judgments in respect of the same issue and to revoke ex officio the measure if it had been rendered unlawfully . The court further held that the applicant ’s detention after DATE had also been unlawful on the ground that the judgment of CARDINAL DATE could not simply extend his pretrial detention which had started on DATE since the applicant had not been lawfully detained at the time . In so far as the judgment could be perceived as a new detention order , the court considered that the legal conditions for such an order had not been met : there were no new grounds for the applicant ’s detention , the court had not provided any reasons for it , no new detention order had been issued and the transcript of the applicant ’s evidence given to the court in respect of his detention had been missing from the file . Finally , the court held that in any event the extension of the applicant ’s pretrial detention could no longer be justified . There was no evidence that the applicant was a danger to public order or that his release would interfere with the criminal investigation and his continuous pretrial detention of DATE and DATE was excessive and did not comply with the guarantees set out by LAW ORG . The court also adjourned the hearing on procedural grounds and ordered the resummoning of some of the witnesses . ORG appealed against the decision .

By an interlocutory judgment of DATE ORG adjourned the appeal proceedings against the interlocutory judgment of CARDINAL DATE for twentyfour TIME on the ground that the applicant had not been summoned and ordered his summoning .

By an interlocutory judgment of CARDINAL DATE ORG , in the absence of the applicant , who had been summoned , but in the presence of his chosen lawyer , suspended the appeal proceedings against the interlocutory judgment of CARDINAL DATE pending the referral of an objection of unconstitutionality raised by the applicant ’s lawyer to ORG in respect of Article DATE ( CARDINAL ) of the ORG . Relying on the provisions of LAW , DATE and ORG of the ORG the court reviewed and maintained the applicant ’s pretrial detention . Consequently , it dismissed the applicant ’s request for an end to his detention . He had based his request on the argument that after DATE his pretrial detention had no longer had a legal basis , since the sixtyday timelimit for assessing the lawfulness of detention provided for by the LAW and the ORG had lapsed .

By a final interlocutory judgment of CARDINAL DATE ORG of Appeal reviewed and maintained the applicant ’s pretrial detention on the ground that the reasons justifying the applicant ’s initial detention were still valid .

By an interlocutory judgment of CARDINAL DATE ORG ordered the applicant ’s immediate release . It held that the argument of ORG that the applicant ’s pretrial detention was justified by the applicant ’s preparation to abscond ( Article CARDINAL ( c ) ) had already been dismissed by the domestic courts on DATE and that there was no new relevant evidence to rebut that finding . Moreover it held that there was no evidence that the applicant was a danger to public order and that DATE and DATE was an unreasonable length of time for the proceedings . At the same time the court adjourned the hearing for procedural reasons . ORG Office appealed .

By a final interlocutory judgment of CARDINAL DATE ORG dismissed the appeal and upheld the judgment of CARDINAL DATE . The applicant was released DATE .

In DATE ORG dismissed the objection of unconstitutionality raised by the applicant ’s lawyer at the hearing of DATE on the ground that the legal provision contested by the applicant was in compliance with the LAW .

By a final interlocutory judgment of DATE ORG dismissed ORG appeal against the interlocutory judgment of CARDINAL DATE as moot on the ground that the applicant had already been released .

The thirtyone hearings held by ORG DATE and DATE were repeatedly adjourned , inter alia , in order to allow for more witnesses to be heard , the summoning of various parties to the proceedings , the resummoning of some of the witnesses , the submission of technical expert reports and the examination of some of the judges’ requests to withdraw from the proceedings .

On an unspecified date in DATE the applicant was arrested in GPE . He refused to take part via video link in the hearing of DATE concerning the criminal proceedings brought against him in GPE and pending before the domestic courts .

By an interlocutory judgment of CARDINAL DATE ORG decided to separate the proceedings concerning the applicant from the proceedings concerning the other co - accused and ordered the applicant ’s temporary transfer from GPE to be arranged .

The proceedings brought against the applicant are still pending before the firstinstance court .

In DATE , following an episode of depression , the applicant underwent a psychiatric examination . The panel of experts concluded that the applicant ’s condition was a “ situational reaction ” and that he could be treated in detention in ORG which was equipped with a psychiatric unit .

The CARDINAL psychiatrists on the panel of experts expressed a dissenting opinion . They concluded that the applicant should be treated in a civilian psychiatric hospital because psychotherapy sessions could not be properly provided in detention owing to the “ lack of privacy ” .

There is no evidence in the applicant ’s medical file to show that he spent time in hospital for psychiatric treatment or that he continued to have similar problems afterwards .

The applicant also informed the ORG that he had been kept in solitary confinement and that from DATE he had been under the same detention regime as dangerous detainees , which meant that he had been under constant supervision . His allegations are contradicted by a letter of CARDINAL DATE sent by ORG authorities to the domestic courts from which it can be seen that the applicant was not classified as a “ dangerous detainee ” .

According to the applicant ’s medical records , he was diagnosed with chronic uveitis in his left eye in DATE .

A medical expert report drafted in DATE concluded that the applicant ’s situation required surgery and postsurgery treatment in a specialised hospital , specifically ORG . However , his state of health was not incompatible with his detention .

The applicant did not undergo the surgery . However , he did not complain about the lack of medical treatment before the domestic courts under LAW no . CARDINAL/CARDINAL ( ORG CARDINAL/CARDINAL ) concerning the rights of individuals serving prison sentences .

After his release from prison on DATE the applicant underwent cataract surgery in GPE .

The relevant parts of Emergency Ordinance no . CARDINAL on the rights of prisoners , adopted by the Government on DATE read as follows :

“ ( CARDINAL ) Prisoners may complain about measures taken by prison authorities ( ... )

( CARDINAL ) In examining a complaint , the court takes CARDINAL of the following decisions :

( a ) allows the action and orders the annulment , revocation or change of the measure taken by the penitentiary authority ;

( b ) dismisses the action if it is ill - founded . ”

The relevant Articles of the Code of Criminal Procedure ( “ the ORG ” ) provide :

“ In cases concerning offences which are punishable by a prison sentence , and in order to ensure the proper conduct of the criminal trial and prevent the suspect or accused from evading criminal proceedings ... , one of the following preventive measures may be taken against him or her :

( c ) pre - trial detention .

The measure provided for in ( c ) may be ordered by the prosecutor or by a court . ”

“ The legal instrument by which an interim measure is adopted must list the facts which gave rise to the charges , their legal basis , the sentence provided for in the legislation concerning the offence in question and the specific reasons which determined the adoption of the interim measure . ”

“ An interlocutory judgment delivered by a first - instance court ordering , revoking ( ... ) a preventive measure can be separately appealed ( recurată ) against by the accused or the prosecutor ( ... )

The appeal ( recurs ) lodged against an interlocutory judgment ordering a preventive measure to be taken does not suspend its enforcement . ”

“ The authority responsible for criminal proceedings may detain a person in police custody if there is cogent direct or indirect evidence that he or she has committed an offence prohibited by the criminal law .

Cogent evidence exists where , in alleged offences . ”

“ Where the requirements of LAW cases provided for in LAW , the prosecutor may , of his or her own motion or at the request of the prosecuting authority , order that the suspect be placed in pre - trial detention by a reasoned order indicating the legal grounds for such detention , for a period not exceeding DATE .

“ Pre - trial detention of the accused may be ordered where the requirements set out in LAW following conditions is satisfied :

( c ) the accused absconded or prepared to abscond ... ;

( h ) the accused has committed an offence for which the law prescribes a prison sentence of DATE and his or her continued liberty would constitute a threat to public order .

“ The length of pre - trial detention of the accused may not exceed DATE , except where it is extended in accordance with a procedure prescribed by law . ...

“ Where necessary , pre - trial detention of the accused may be extended if reasons are given .

Extension of pre - trial detention may be ordered by the trial court ( ... ) ”

“ The trial court shall be presided over by the president of the court or a judge appointed by him or her ; the prosecutor ’s participation is compulsory .

The investigation file shall be lodged [ at the court ] by the prosecutor DATE prior to the hearing and may be consulted by the lawyer on request .

The accused shall be brought before the court , assisted by a lawyer .

If the court grants extension [ of the detention ] , such extension may not exceed DATE .

The prosecutor or the accused may appeal against the interlocutory decision by which the court decides on extension of the pre - trial detention . The time - limit for an appeal shall be DATE , starting from delivery of the judgment for those who are present and , for those who are not present , from the date of notification . An appeal against a decision to extend pre - trial detention has no suspensive effect , while an appeal against a decision to dismiss the request for an extension of the pre - trial detention does have suspensive effect .

( ... ) The court may grant further extensions of pre - trial detention , but none of these may exceed DATE . ”

In cases where the accused is arrested , the court is obliged of its own motion and at the first hearing to confirm the lawfulness of the adoption and extension of the detention measure [ against the accused ] . ”

The relevant domestic practice concerning the notion of “ danger to public order ” provided for by the provisions of Article CARDINAL ( h ) of the ORG is set forth in the case of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) . Following the amendment of the ORG by PERSON no . PERSON published in ORG on DATE , Article CARDINAL ( h ) of the ORG required the existence of evidence that the release of an accused would pose a real danger to public order .

Article CARDINALc of the ORG in force for a brief period of time provided that during the trial stage of proceedings the firstinstance court could extend pretrial detention if new elements had appeared justifying the measure .

DATE ( CARDINAL ) of LAW and Article PERSON of the ORG provide that during the judgment stage of the proceedings the domestic courts must regularly examine , no later than DATE , the lawfulness of the pretrial detention . If the court finds that the reasons justifying the detention have ceased to exist and that there are no new reasons justifying it , it must order the release of the accused . LAW ORG provides that when the accused has been detained at the trial stage of the proceedings , the court to which the matter has been lawfully referred must examine the lawfulness of the pre - trial detention pursuant to the provisions of LAW of the ORG . LAW ) provides , by referring to LAW of the ORG , that the regular examination of pretrial detention is also necessary where the proceedings have been suspended for a matter to be referred to ORG .

DATE ( CARDINAL ) of the ORG provides that appeals ( recurs ) in respect of preventive measures can be decided in the absence of the accused as long as he has been legally summoned .


No violation of Art. 8;Preliminary objection rejected;Violation of Art. 13+8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On DATE the radio communications surveillance unit of ORG ( PTT ) located on a frequency reserved for civil and military aircraft a private telephone conversation being held on a telephone of an unauthorised type . The surveillance unit recorded the conversation held on the line allocated to Mr Camenzind – a lawyer living in GPE DATE and informed the appropriate PTT authorities .

The applicant was suspected of contravening section CARDINAL of LAW of DATE “ regulating telegraph and telephone communications ” . On DATE the GPE cantonal telecommunications office ( Fernmeldekreisdirektion ) of the PTT began an investigation concerning the applicant pursuant to ORG DATE .

On DATE the area director of the PTT in GPE issued a warrant to search the applicant ’s home under sections CARDINAL et seq . of LAW . It was specified in the warrant that the purpose of the search was to find and seize the unauthorised cordless telephone .

At TIME on DATE CARDINAL PTT officials went to the applicant ’s home . He admitted having tested a cordless telephone in the past but said that it was no longer in his possession . After being shown the search warrant , he allowed the PTT officials into the hall of the flat , in which he in fact occupied only CARDINAL room , the other CARDINAL being let . Having been told of the legal aspects of the search , he consulted the file on his case and telephoned a lawyer and a senior official at the PTT office in GPE .

The search was carried out by a single PTT official , as requested by PERSON , and in his presence . The official searched every room of the QUANTITY building , including the cellar . He did no more than check whether the telephones and television sets were PTT - approved . He did not touch anything , open any drawers or examine any documents . No equipment of the type sought was found . At TIME a record was drawn up and signed by both the applicant and the investigating official . The record indicated among other things that a complaint could be made about the search under sections CARDINAL of LAW .

On DATE Mr Camenzind applied to ORG under section CARDINAL of LAW for a declaration that the search was a nullity . ORG of the PTT argued that the application was inadmissible .

On DATE ORG delivered a judgment dismissing the application in the following terms ( translation from NORP ) :

“ CARDINAL . ( a ) ORG of ORG has jurisdiction to hear complaints about coercive measures ( sections CARDINAL et seq . of the [ LAW ] ) and related administrative acts ( section CARDINAL ( CARDINAL ) of [ that LAW ] ) . Under LAW ( CARDINAL ) of the LAW a complaint may be lodged by anyone who is affected by the impugned investigative measure and has an interest worthy of protection in having it quashed or varied .

( b ) The applicant did not dispute that he had in his possession a telephone that had not been approved in GPE . He even expressly said , during the course of the search , that he had used such a telephone ; it had , however , proved to be unusable and had consequently been destroyed ... It was therefore not possible for any seizure to be effected as the telephone could not be found . The complaint is not , therefore , directed against a seizure ( none was effected ) but against the search and the interception of telephone conversations ...

( c ) In so far as the complaint concerns the search as such ( ‘ unlawful search [ unlawfully entering DATE , ‘ forced ORG , ‘ threat of the use of force’ ) , and the interception and recording of telephone conversations , it is unnecessary to consider it , since the applicant has no present interest in invoking the protection of the courts ( aktuelles Rechtsschutzbedürfnis ) as the measures have ceased and he is no longer affected by them ( BGE [ Bundesgerichtsentscheidungen – Judgments of the Federal Court ] CARDINAL PERSON ) .

( d ) That is also true in principle of the locating and recording of the telephone calls concerned here , which are closely linked to the search . Exceptionally , however , ORG does not in practice require a present interest where the impugned infringement of the law is likely to recur at any time , where an application to the courts could not be heard in time in the particular case and where the issues raised could arise again in similar or comparable circumstances at any time and are , because of the importance of the principle concerned , of sufficient public interest ( FAC E. CARDINALa ; QUANTITY CARDINAL E. CARDINAL ; PERSON ) .

These conditions are satisfied in the present case because the carrying out of a search presupposes that in the first place the person using a telephone of an unauthorised type has been located by appropriate means . That investigation will , however , already have ended by the time the search and any seizure are made . For that reason , the complaint must be upheld in so far as it is directed at the interception and recording of conversations held on the applicant ’s unauthorised telephone .

For these reasons ORG holds :

( CARDINAL ) In so far as it has been declared admissible , the complaint is dismissed ;

In decisions of DATE and CARDINAL DATE ORG imposed a fine of MONEY on the applicant for an offence under section CARDINAL of the Act “ regulating telegraph and telephone communications ” and ordered him to pay the costs and expenses .

On DATE Mr Camenzind brought proceedings for review of that decision in ORG ( LOC ) , which on DATE were dismissed on the ground that prosecution of the offence in question was time - barred ( absolute GPE ) .

At the material time , section DATE of LAW of DATE “ regulating telegraph and telephone communications ” provided :

“ ( CARDINAL ) Anyone setting up , operating or using , without a licence or permit or in a manner contrary to the terms on which a licence or permit was granted , transmitters or receivers or any equipment for which a licence or permit is required and which is used for electric or radio transmission of signals , images or sounds ,

shall be liable to a term of imprisonment not exceeding DATE or a fine not exceeding MONEY unless , under LAW , he is liable to a heavier sentence .

( CARDINAL ) The fine shall not exceed MONEY where the offence has been committed through negligence . ”

Administrative criminal law procedures are governed by LAW of DATE , as amended ( “ the DPA ” ) .

The federal authorities are responsible for prosecuting and trying certain offences against federal law . They are also vested with the power to conduct the investigations into such offences . The necessary interviews ( of which records are made ) , on - the - spot inspections and coercive measures are entrusted to officials specially trained for the purpose ( section CARDINAL ( CARDINAL ) of the ORG ) .

Officials called upon to conduct an investigation or to take or prepare a decision are required to stand down if they have a personal interest in the case , if they are related to the “ suspect ” by blood or marriage , by direct or collateral descent up to the third degree , or are linked with him through marriage , engagement or adoption and if there are circumstances such as to make them appear to be partial in the case ( section CARDINAL ) .

A “ suspect ” is entitled , whatever the circumstances , to representation ( section CARDINAL ) . In principle , both the “ suspect ” and his representative may be given leave by the investigating official to participate in the taking of evidence ( section CARDINAL ) .

The investigating official may interview the “ suspect ” ( section DATE ) , other people “ for information purposes ” ( section CARDINAL ) and – in the presence of the “ suspect ” and his representative – witnesses ( section CARDINAL ) . He may also order an expert opinion – in consultation with the “ suspect ” ( section CARDINAL ) DATE and an on - the - spot inspection , which the “ suspect ” and his representative are entitled to attend ( section CARDINAL ) . The investigating official is in addition empowered to effect “ with due regard for the person concerned and his property ” seizures , searches and provisional arrests ( sections CARDINAL et seq . ) ; these measures , known as “ coercive ” measures , may not be used in respect of a “ breach of administrative regulations ” ( such a breach is a contravention which is so described in special administrative law or CARDINAL for which an administrative fine can be imposed ; section CARDINAL ) .

Searches in particular are governed by the following provisions of LAW :

“ ( CARDINAL ) Dwellings and other LOC , including any adjoining enclosed area , may be searched only if it is likely that a suspect is in hiding there or if objects or valuables liable to seizure or evidence of the commission of the offence are to be found there .

( CARDINAL ) A suspect may be searched if necessary . The search must be carried out by a person of the same sex or by a doctor .

( CARDINAL ) Searches shall be carried out under a written warrant issued by the director or head of the authority concerned or , if the investigation is within his competence , by the area director of customs or of the PTT .

( CARDINAL ) If there is immediate danger and a search warrant can not be obtained in time , the investigating official may himself order a search or carry it out . Reasons for the measure must be given in the file . ”

“ ( CARDINAL ) At the beginning of a search the investigating official shall provide evidence of identity .

( CARDINAL ) The occupier of the LOC must be informed of the purpose of the search and be asked to attend , if present . If he is absent , a relative or a member of the household shall be asked to attend . A public officer designated by the competent cantonal authority – or , if the investigating official is acting on his own initiative , a member of the municipal authority or an official of the GPE , district or municipality DATE shall also be required to attend the search in order to ensure that it does not deviate from its purpose . A search may be conducted without public officers , members of the household or relatives being present where it would be dangerous to defer the search or where the occupier has consented .

( CARDINAL ) As a general rule , searches shall not be conducted on DATE or public holidays or at TIME except in important cases or where there is imminent danger .

( CARDINAL ) A record of the search shall be drawn up immediately in the presence of the persons who attended ; if they so request , they shall be provided with a copy of the search warrant and of the record . ”

“ ( CARDINAL ) Searches for documents must be carried out with the greatest regard for private and confidential information ; in particular , documents shall not be examined unless it is apparent that their content is important for the investigation .

( CARDINAL ) Searches shall be carried out so as to preserve occupational confidentiality and the confidentiality of information given to clergymen , barristers , notaries , doctors , chemists , midwives and their auxiliaries in the exercise of their ministry or profession .

( CARDINAL ) Before a search is carried out , the person in possession of the documents shall , whenever possible , be allowed to indicate their content . If he does not agree to the search , the documents shall be placed under seal and deposited in a safe place ; ORG of the ORG shall decide whether the search is lawful ... ”

Coercive measures , including searches ( sections CARDINAL et seq . of the DPA ) , and related acts and omissions may form the subject of a complaint to ORG ( section CARDINAL ) .

Complaints are admissible for breaches of federal law DATE or of the Convention ( see ORG judgment of CARDINAL DATE in the case of GPE v. ORG pensions de l’Etat de Neuchâtel et tribunal administratif du ORG , Judgments of ORG , vol . CARDINAL , V , p. CARDINAL ) – for inaccurate or incomplete findings of fact or for inappropriateness . A complaint may be lodged by anyone affected by the impugned investigative measure , the omission complained of or the decision on the complaint and who has an interest worthy of protection in having the measure , omission or decision quashed or varied ( section CARDINAL ) . ORG of ORG has said ( X. gegen Generaldirektion PTT , DATE , Judgments of ORG , vol . CARDINAL , ORG , p. CARDINAL ; translation from NORP ) :

“ Only persons who are ( still ) affected , at least in part , by the impugned decision and as a result have an interest in its being varied have locus standi to lodge a complaint . ”

The authorities have jurisdiction to try offences against administrative criminal law . However , where the department to which they are subordinate considers that a custodial sentence or measure must be contemplated , jurisdiction lies with the courts . A person affected by a decision of the authorities in criminal proceedings may , within DATE of being notified of the decision , ask to be tried by a court . If he does not do so , the decision is “ treated as a judgment that has become final ” ( sections DATE and DATE ) .

A suspect who is found to have no case to answer may seek compensation from the authorities for detention pending trial and other losses sustained . Compensation may be reduced or refused if it was through the suspect ’s own fault that the investigation was started or if , without reason , the suspect has hindered or delayed the proceedings . The authorities’ decision on that issue may be challenged by lodging a complaint with ORG ( sections CARDINAL ) .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE the applicant was convicted , together with PERSON and PERSON , of several offences by ORG ( ORG ) . According to the charges , at TIME on CARDINAL DATE the applicant , after having had a debt dispute with the victim and being employed by PERSON , had thrown an explosive device into a car parts shop owned by PERSON , a private limited company . A charge of damaging property by use of explosives was brought under LAW . The applicant was also charged with extortion under LAW of LAW . According to the charges , in DATE or DATE he had demanded EEK CARDINAL ( EUR CARDINAL ) from T. and P. , the owners of ORG , a private limited company and competitor of ORG , and threatened to destroy the property in their office if they refused to give him the money . The applicant was further charged , under LAW , with unlawful possession of explosives . In DATE or earlier he had acquired , without having the required licence , QUANTITY of gunpowder and kept it unlawfully in his place of residence until DATE . Finally , the applicant was charged under LAW of LAW with unlawfully producing , acquiring , possessing , and transferring an explosive device . At DATE or DATE he had asked PERSON to produce an explosive device for him , which S. had done . The applicant had modified the device in order to increase its power of destruction . Thereafter he had kept the explosive device in his place of residence until DATE . On that date he had been arrested by the police just before he could hand the device over to GPE

In respect of the charge under LAW , ORG convicted the applicant and PERSON , relying on the following evidence :

CARDINAL ) an inspection report of the scene of the offence ;

CARDINAL ) NORP a report of ORG together with a plan of the site of the explosion ;

CARDINAL ) NORP an expert ’s report no . KP-CARDINAL - CARDINAL concerning the explosives ;

CARDINAL ) NORP statements of witness PERSON ;

CARDINAL ) NORP statements of GPE , representative of PERSON ;

CARDINAL ) NORP statements of witness GPE ;

CARDINAL ) NORP statements of victim P. ;

CARDINAL) statements of victim T. ;

CARDINAL ) NORP undercover recordings of PERSON ’s conversations ;

CARDINAL ) NORP statements of anonymous witness “ GPE ;

CARDINAL ) NORP statements of anonymous witness “ PERSON ” ;

CARDINAL ) NORP statements of anonymous witness “ Tiiu ” .

In addition to the statements given by the anonymous witnesses during the investigation , ORG also questioned them on the request of the defence counsel . The defence put questions to them in writing .

ORG held that the charge of extortion ( under LAW of LAW ) against the applicant had not been made out . He was acquitted of this charge .

With respect to the charge against the applicant of unlawful possession of explosives and the charge against him and S. of unlawfully producing , possessing , holding and transferring an explosive device , ORG noted that PERSON had pleaded guilty . According to him , he had made the explosive device on instructions . The guilt of the applicant had also been proved by his own statements and those of the witnesses PERSON and PERSON , several search and seizure reports , expert opinions and other items examined at the court hearing .

ORG granted the civil claim for damages by PERSON .

The applicant was sentenced to a total of DATE imprisonment , less the time he had spent in pre - trial detention .

Defence counsel for the applicant and PERSON appealed against the judgment of ORG . The applicant ’s counsel requested ORG ( GPE ) to acquit the applicant in respect of the LAW charge , mitigate his sentence , put him on parole and dismiss the civil claim . Defence counsel was of the opinion that the applicant ’s conviction had been based on assumptions , rather than on the facts established . He alleged that ORG had wrongfully referred to the transcript of PERSON ’s taped conversations . According to him , the parties to the proceedings had had no possibility of verifying that the transcript reflected the recording adequately . Counsel found that the statements of the anonymous witnesses did not accord with the rest of the evidence and that a conviction could not be based solely on the anonymous statements . He insisted that the doubts raised by the statements of the anonymous witnesses , which could not be eliminated by other evidence , had to be interpreted in favour of the accused at trial .

On DATE ORG allowed the appeal in so far as it concerned the civil claim but upheld the remainder of ORG judgment . ORG found that the court of first instance had given reasons for not relying on the statements of the witnesses on behalf of the accused at trial and considering the statements of P. and T. in respect of the explosion as reliable . ORG noted , furthermore , that it had no reason to doubt the reliability and truthfulness of the statements of the anonymous witnesses PERSON , PERSON and GPE . It found that their statements tallied in many respects and accorded with the material evidence ( the inspection report of the scene of the offence and the expert ’s report concerning the explosive device ) . ORG stressed that the reliability of the statements of the anonymous witnesses had been controlled by ORG , where they had been heard at the request of the defence counsel . The anonymous witnesses had confirmed their statements given during the preliminary investigation .

ORG noted that the fact that all parties to the proceedings had not comprehended the voice records concerning PERSON did not eliminate their value as an item of evidence proving the guilt of the accused at trial . Moreover , the case file had included a transcript of the recording . According to the record of ORG hearing , the recording had been heard in the courtroom . ORG agreed with the applicant ’s counsel and the prosecutor that the amount of the damage caused to PERSON was unclear and that the civil claim therefore had to be settled in separate civil court proceedings .

The applicant ’s counsel and PERSON appealed against ORG judgment , which was quashed in part by ORG on DATE . ORG quashed the judgment in so far as ORG had upheld ORG judgment convicting and sentencing the applicant and PERSON under LAW . The judgment was also quashed in respect of the applicant ’s overall sentence and in so far as the referral of the civil claim of PERSON to a civil court had been concerned .

ORG pointed out , inter alia , that , as provided by LAW , a voice recording – but not a written transcript thereof – could be used as evidence in criminal proceedings . ORG noted that , according to the record of ORG ’s hearing , the recording of PERSON ’s conversation had not actually been heard at the hearing in the appeal court . ORG had , at the same time , noted that the transcript had corresponded to the recording . ORG found that ORG had failed to comply with the requirements of LAW and LAW , which provided that a criminal case had to be examined thoroughly and objectively and the evidence examined directly .

As concerned the anonymous witnesses , ORG was satisfied that ORG had directly examined the statements given by them .

Finally , ORG noted that the applicant ’s counsel had challenged , inter alia , the applicant ’s conviction under LAW of LAW . However , in his appeal to ORG he had only challenged the applicant ’s conviction under LAW . In respect of the other offences only a more lenient punishment had been asked for . Accordingly , ORG found that the applicant had no right of appeal in respect of his conviction under LAW of LAW .

ORG referred the case , in so far as it was quashed , back to ORG .

On DATE ORG quashed ORG judgment in respect of PERSON civil claim . It also modified PERSON ’s overall sentence and the date from which the serving of the sentence would be deemed to run .

ORG found that since the statements of the witnesses P. and ORG tallied and the involvement of PERSON and the applicant in the organisation of the explosion had been proved by other evidence , there was no reason to question their truthfulness . Furthermore , ORG noted that also the statements of the anonymous witnesses tallied and the reliability of these statements was made even greater by the fact that they matched the factual circumstances concerning the explosion . These statements accorded with an additional expert opinion concerning the explosive device . ORG was of the opinion that PERSON ’s guilt had also been proved indirectly by the undercover voice recordings made from DATE and the transcripts thereof . The recordings from DATE to DATE and from DATE could not be taken into account as evidence , since they were incomprehensible due to their poor quality .

ORG concluded that the denial of guilt by PERSON and the applicant had been rebutted by all the evidence overall .

ORG found that it was unnecessary to rule on the civil claim , since in the meantime , on DATE , ORG had , in separate proceedings , granted a claim by PERSON against PERSON and the applicant .

Defence counsel for the applicant and PERSON appealed against the judgment of ORG . The applicant ’s counsel requested , inter alia , that the applicant be acquitted of the charge under LAW . He found that the courts had based the applicant ’s conviction decisively on the statements of the anonymous witnesses . This conflicted with the case - law of ORG and ORG . It had been impossible to ascertain on which grounds the anonymity had been granted with respect to some of the witnesses . Neither the anonymous statements nor the statements by the named witnesses proved that it had been the applicant who had committed the explosion . The applicant ’s counsel further requested that the applicant be put on parole in respect of the sentence imposed under ORG CARDINAL § CARDINAL and CARDINAL of LAW .

On DATE ORG quashed ORG judgment of DATE and ORG judgment of DATE in part . It held that the classification of the offence and the reference to the provision of LAW had to be modified , since the relevant provision had been changed between the time the offence had been committed and the time the courts had decided the case . ORG convicted the applicant under LAW and PERSON under LAW § CARDINAL [ organiser of the offence ] and CARDINAL of LAW . Both of them were sentenced to DATE imprisonment .

With respect to the anonymous witnesses , ORG found no violation of the law of criminal procedure . It held that ORG had directly verified their statements . The courts had evaluated all the evidence and given sufficient reasons for the conclusions made on the basis of the anonymous statements . ORG reiterated that it did not have power to establish the facts . The fact that the appellants had disagreed with the factual circumstances established by the lower courts was not a question of law which could be dealt with in the review proceedings in ORG .

ORG noted that by its judgment of DATE the applicant ’s conviction under ORG CARDINAL and CARDINAL of LAW had been upheld . That judgment of ORG had become binding on DATE . Therefore , there were no grounds for analysing once again the well - foundedness of the sentence imposed on the applicant pursuant to those provisions .

Under LAW , as in force at the material time , in order to ensure the security of a victim or a witness or persons close to him or her , the person in question may be granted anonymity . Anonymity is granted in a reasoned order by a preliminary investigator at the request of a witness or a victim , or on the initiative of the preliminary investigator .

Pursuant to ORG and CARDINAL of the Code of Criminal Procedure , a judge must preside over court hearings so that all facts are examined thoroughly , from all perspectives and objectively , and the truth is ascertained . When hearing a criminal case a court of first instance must directly examine the evidence by hearing the accused , the victims , witnesses and experts , inspecting physical evidence and disclosing records and other documents . Article CARDINAL § CARDINAL of the LAW provides that a court judgment must be based only on evidence that has been heard at a court hearing . Article CARDINAL of the LAW provides that the statement of facts and reasons in a court judgment must set out , inter alia , the facts ascertained in the examination by the court and the evidence on the basis of which the court deems the facts to be established ; the reasons why the court bases its judgment on such evidence and deems other evidence in the case to be unreliable ; the charges on which the court convicts each of the defendants ; and the evidence on which its conclusion is based .

Article CARDINAL of the Code of Criminal Procedure provides that , after a witness has given testimony , he or she is examined by the participants in the proceedings , including the accused and his or her lawyer . Additional questions may be submitted to a witness to clarify and supplement the testimony previously given by him or her . If a court deems it necessary to hear evidence from a witness who has been granted anonymity , the witness is heard in the absence of the participants in the proceedings on the basis of the questions submitted by them . The content of the testimony has to be disclosed at a court hearing .

Under LAW , testimony given by a witness during the pre - trial investigation may be disclosed if the witness fails to appear at a court hearing or if the whereabouts of the witness are unknown or if the witness has been granted anonymity .


Violation of Art. 6-1 with regard to the first proceedings;Violation of Art. 6-1 with regard to the second proceedings;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE am GPE .

NORP In DATE the applicant and his family left GPE and settled in GPE . His father appointed a representative to deal with all legal and financial matters in GPE . Despite that representative 's opposition , in DATE the ORG authorities expropriated a part of the property belonging to the applicant 's family . The applicant could not take part in the proceedings concerning the expropriation , because the NORP authorities refused to grant him a visa to enter the territory of GPE .

On DATE the applicant filed with ORG ( Sąd Wojewódzki ) an action in which he claimed compensation for the allegedly unlawful use of his estate by ORG .

In DATE ORG ( FAC ) filed with the same court an action in which it sought a declaration that ORG had acquired the ownership of that estate on the basis of the DATE decree on abandoned property ( dekret o majątkach opuszczonych i poniemieckich ) . ORG submitted that the estate had been abandoned following the Second World War and in DATE taken over by the ORG . It pointed out that until DATE none of the previous owners had raised any claims in respect of that estate .

In the proceedings concerning the applicant 's action the court held hearings on DATE and DATE , as well as on DATE . According to the Government , the applicant failed to attend the hearing of CARDINAL DATE . The applicant submits that he attended it .

On DATE ORG ( Urząd Miasta ) requested that the applicant 's proceedings be stayed until the proceedings initiated in DATE had been completed , submitting that the outcome of those proceedings depended on the court 's findings in the latter . On DATE the court stayed these proceedings .

In his pleadings of DATE the applicant 's lawyer submitted that after the war the applicant 's predecessor in title had resumed possession of the estate and in DATE court proceedings concerning his title had been conducted .

On DATE the court stayed also the proceedings instituted by the applicant , relying on the fact that inheritance proceedings concerning CARDINAL of the heirs to the estate in question were pending . The applicant 's lawyer unsuccessfully appealed against that decision , pointing out that the applicant 's share in the estate was PERSON and thus the necessity to conduct those inheritance proceedings could not be reasonably invoked as the reason for staying the main proceedings .

On DATE the court gave judgment in the proceedings instituted in DATE by ORG . It dismissed the claim that ORG had acquired the property of the applicant 's late father by prescription .

On DATE the ORG resumed the compensation proceedings instituted by the applicant in DATE . On DATE the applicant requested that an expert opinion be ordered concerning the value of the property under dispute .

On DATE the court held a hearing .

On DATE an expert held a viewing of the property .

The compensation proceedings are pending .

On an unspecified date in DATE the applicant instituted a new set of proceedings against the ORG municipality , in which he claimed release of the property concerned . On DATE the court allowed the applicant 's claim .

On DATE the applicant filed with ORG ( Sąd Rejonowy ) a request to reopen the proceedings concerning his estate which had terminated in DATE . In those proceedings ORG had acquired the ownership of the estate through acquisitive prescription . The applicant submitted that the heirs to the estate had been deprived of the right to participate in those proceedings as the NORP authorities had refused to grant them the visa . He submitted that he had found out about that fact only in DATE .

On DATE the court stayed the proceedings until the completion of the procedure for reconstruction of the case - file of the proceedings terminated in DATE .

On DATE the court resumed the proceedings .

In DATE an expert submitted his opinion ordered by the court .

On DATE the court fixed a court fee to be paid by the applicant . The applicant 's lawyer challenged that decision . On DATE ORG ( Sąd Apelacyjny ) quashed it .

On DATE ORG refused the applicant 's request for an interim measure . His appeal against that decision was dismissed .

On DATE the court held a hearing .

On DATE the court decided to transfer the case to a different department , considering that it should be dealt with by way of a contentious procedure . On CARDINAL DATE ORG dismissed the applicant 's appeal against that decision .

On DATE ORG submitted its pleadings , in which it petitioned that the applicant 's request be rejected . It noted that the applicant had been aware of the fact that the proceedings concerning the acquisition of the estate had been pending in DATE . The ORG further observed that the applicant had corresponded with the representative appointed by his family and thus could not claim that he had found out about the expropriation proceedings only in DATE .

On DATE the court stayed the proceedings until inheritance proceedings in respect of CARDINAL of the parties to the proceedings at issue were completed . On DATE ORG upheld this decision .

On DATE the final decision was given in the inheritance proceedings . On DATE ORG resumed the examination of the applicant 's case .

On DATE the court gave judgment , in which it refused the applicant 's request for re - opening . In DATE the applicant lodged an appeal against that judgment .

On DATE ORG dismissed his appeal . The applicant subsequently submitted an appeal on points of law . By a decision of DATE ORG exempted the applicant from the obligation to pay a relevant court fee .

On DATE ORG dismissed the appeal on points of law .

DATE LAW provides that everyone shall have the right to a fair and public hearing of his or her case , without undue delay , before a competent impartial and independent court .

Under LAW § LAW of DATE , everyone is entitled to compensation for damage caused by the unlawful acts of a public authority . Pursuant to LAW of the same LAW , a statute shall not bar access to court to persons seeking redress for any breach of their rights or freedoms .

Article CARDINAL of the Civil Code provides that the State Treasury shall be liable for damage caused by an official of the ORG acting on the ORG 's behalf .

Under the former LAW , if damage was caused by the ORG official as a result of his / her giving a decision or doing another official act , ORG was to be liable only if the giving of the said decision amounted to an infringement of laws punishable under the criminal law or under any disciplinary regulations , and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority , or was otherwise recognised by a superior authority .

According to the old case - law of ORG , a plaintiff seeking damages under LAW of LAW must show that the act in question is unlawful and that the ORG agent committed a fault ( ORG judgments : No . I PR CARDINAL/CARDINAL of CARDINAL , unpublished , No . I CR CARDINAL/CARDINAL of DATE , unpublished and No . I CR CARDINAL/CARDINAL of CARDINAL , unpublished ) .

NORP In its judgment of DATE ORG ruled on the compatibility of these provisions with LAW . It held that LAW was compatible with LAW , if it was construed so as to mean that ORG was liable for damage caused by unlawful acts of public officials in carrying out their duties .

In the same judgment the ORG held that LAW was incompatible with LAW in that it placed undue restrictions on access to a court in cases in which civil liability of the ORG was sought for acts carried out in the exercise of ORG powers , other than de facto acts , which were covered by the general principle of LAW .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

On DATE , at TIME , the applicant went to FAC to cash his DATE sickness benefit . Having noticed that the sum cashed was smaller than the amount he had received in DATE he expressed dissatisfaction to the mayor and the deputy mayor .

Unsatisfied with the explanations received , the applicant started to insult the civil servants working at the town hall . A few of the witnesses to the incident stated that the applicant was under the influence of alcohol . The applicant denied it .

As the applicant could not be calmed down , the mayor and the deputy mayor took him to the police station , which was situated close to the town hall .

The applicant alleged that the mayor had hit him at the police station . He did not submit any medical certificate in this connection .

On the ground that the applicant continued to behave aggressively and to address threats to those around him , the chief police officer , GPE , handcuffed him to a tree in the courtyard of the police station .

According to the applicant and several witnesses , he was kept handcuffed for TIME and TIME . The Government averred that the handcuffing lasted TIME and TIME .

As the police station was located in the centre of the village , many inhabitants of the village passed by and saw the applicant handcuffed to the tree in the courtyard . CARDINAL of them informed the press and the local television station . Reporters arrived at the scene and took pictures of the handcuffed applicant . The incident was covered by an article on DATE in the local newspaper ORG called ‘ The chief police officer of PERSON molests a fellow PERSON .

DATE before the events in question , the applicant had had surgery on his left femur . According to the documents submitted by him , he was hospitalised in the orthopaedics section of ORG DATE and DATE and DATE and DATE . At the time of the events he was suffering from coxarthrose ( arthritis of the hip ) and was receiving sickness benefit for that reason .

According to the applicant , being kept handcuffed outdoors for such a long time on a cold and wet DATE worsened his medical condition . On the basis of a medical certificate issued on DATE the applicant had been designated disabled ( at medium level ) by a medical board .

On DATE the incident took place , police officer GPE drafted a report stating that he had had to use force and the handcuffs in order to prevent the applicant from deliberately self - harming . He stated that he had kept the applicant handcuffed for TIME and that he had stayed close to him all this time . However , his statement was contradicted by the statement of GPE , the former deputy mayor of the village , who testified that the applicant was alone and the police station was closed when he passed by the front of the building on DATE .

On DATE the applicant lodged a criminal complaint with ORG against police officer GPE and the mayor , accusing them of causing bodily harm and insulting behaviour .

By a judgment rendered on DATE , that court remitted the file to the prosecutor ’s office attached to ORG for investigation of the incident . It gave a new legal classification to the offences mentioned in the applicant ’s complaint , namely abuse of position and deprivation of liberty .

On DATE the prosecutor ’s office attached to ORG decided not to open a criminal investigation , on the grounds that it was permissible to handcuff an aggressive person .

On DATE the applicant lodged another criminal complaint against the chief police officer , the deputy chief police officer , the mayor and the deputy mayor . He accused them of deprivation of liberty ( under LAW ) .

On DATE the applicant made a statement at the prosecutor ’s office . He stated that he had not been hit by any of the defendants , as he had stated in his initial complaint . He added that he had been persuaded to lodge a criminal complaint by the previous mayor , by a member of the local council of the village , and by the president of an organisation fighting against corruption and for the protection of human rights ( PERSON , PERSON – ORG ) . He also stated that he had been handcuffed for TIME and that it was legitimate , taking into account his own behaviour . He concluded by stating that he wanted to withdraw his complaint . Afterwards , during the proceedings before the courts , the applicant alleged that he had been forced to make that statement and that nothing in it was true .

By a decision delivered on DATE , the prosecutor ’s office attached to ORG decided not to open a criminal investigation . It held that police officer GPE had taken the necessary measures in order to calm down the applicant , who was using coarse language and insulting the civil servants working at the town hall , and was behaving in an especially insulting way towards the mayor of the village . It also held that handcuffing the applicant was in accordance with the provisions of Law no . CARDINAL/CARDINAL regarding the organisation and functioning of the NORP police ( “ ORG Act DATE ” ) , and Order no . CARDINAL of DATE regarding ORG . It stated that the applicant had not been hit by any police officers .

Relying on Article CARDINAL of the Code of Criminal Procedure , the applicant lodged complaints against the decisions of DATE and DATE . The CARDINAL complaints were joined by the chief prosecutor . On DATE the chief prosecutor dismissed the complaints and upheld the previous decisions .

The applicant ’s complaint against the last prosecutor ’s decision was dismissed by ORG on DATE . It held that the immobilising of the applicant with handcuffs in the courtyard of the police station had been done in accordance with the applicable legislation , and had been necessary , taking into account the applicant ’s attitude .

An appeal on points of law lodged by the applicant was dismissed by ORG on DATE , upholding the judgment of the ORG .

On DATE the prosecutor ’s office attached to GPE ORG indicted the applicant for outrage against public morals and disturbance of public order under LAW .

By a judgement of DATE , ORG convicted the applicant as charged and sentenced him to DATE imprisonment , suspended . The judgment remained final , as the applicant did not lodge an appeal on points of law .

The definition of the offence of outrage against public morals and disturbance of public order was , at the material time , provided for by LAW and read as follows :

“ Actions by a person who publicly acts or makes gestures , uses words or expressions , or behaves in any other way which is against public morals or which leads to public scandal , are punishable by imprisonment of DATE or by a fine .

If the actions stipulated in paragraph CARDINAL seriously disturb public order , the applicable penalty shall be imprisonment of DATE . ”

The conditions regarding the use of handcuffs by police officers are provided for by ORG Act DATE . The relevant articles read as follows :

( CARDINAL ) “ In order to deter , prevent and neutralise aggressive behaviour by people who disturb public order and which can not be brought to an end by other means , police can use protective shields , helmets , rubber truncheons ( ... ) rubber bullet guns and handcuffs , dogs and other means of restraint which do not endanger life or cause serious bodily harm .

( CARDINAL ) The means referred to in the above paragraph may be used against people who :

a ) NORP behave in such a way as to threaten the physical integrity , health or property of others ;

b ) try to enter , enter or refuse to leave the premises of public authorities , political parties , institutions and public or private organisations , jeopardise in any way their integrity or security or prevent them from carrying out their normal activity ;

c ) Insult or attack those who are exercising public functions ;

d ) Offer resistance or fail to comply , in any way , with the orders of a police officer , but only if there is a legitimate fear that by their actions they could jeopardise the physical integrity or the life of that police officer .

( CARDINAL ) The use of the means described under the first paragraph must not exceed the level necessary to prevent or neutralise the aggressive behaviour . ”

“ The use of the means provided by ORG and DATE is prohibited against women with visible signs of pregnancy , against persons with visible evidence of disability and against children , except in cases when they engage in armed attack or in a group , which poses a threat to the life or the integrity of CARDINAL or more people . ”


The applicant company is a private bank in the form of a limited liability company that was set up in DATE and has its head office at GPE ( GPE ) . It is represented before the ORG by Mr PERSON of ORG .

The facts of the case , as presented by the applicant company , may be summarised as follows .

The applicant company has CARDINAL main activities , which are closely connected . Firstly , it offers a service for tracing missing heirs ( ORG ) with a view to being subsequently instructed to wind up the deceased ’s estate . It traces heirs , whether or not their identity is known , both in GPE and overseas , either on behalf of authorities or institutions such as the testamentary executors or the administrators , or of its own initiative . It does so at its own risk and bears the costs . It receives no down payment and , if it fails to locate the heirs , no remuneration . Secondly , once it has traced the heirs , it offers its services in winding up the estate ( GPE ) , for which it is paid a fee of PERCENT of the value of the estate .

Under the first sentence of the first paragraph of LAW ( Rechtsberatungsgesetz – see “ Relevant domestic law ” below ) , the applicant company was in DATE granted the licence it required to carry on its activity . It remained licensed until DATE .

In a judgment of CARDINAL DATE ORG ( ORG ) held that missing - heir tracing services were commercial ( gewerblich ) in character and that there was a close connection between that activity and the winding up of estates . Accordingly , the applicant company was required to pay a ORG tax ( ORG ) .

Following that judgment , in which ORG ruled only on fiscal issues , the applicant company decided in DATE to surrender its licence under section CARDINAL ) of LAW and to carry on its business unlicensed , on the basis of section CARDINAL(CARDINAL)(CARDINAL ) of the LAW ( see “ Relevant domestic law ” below ) . At the time both the President of ORG and ORG ( Bundesrechtsanwaltskammer ) considered that the applicant company did not require a licence to carry on its activity .

Subsequently CARDINAL separate sets of proceedings were brought against the applicant company .

I. The first action was brought in DATE by ORG relying on LAW and LAW ( PERSON gegen den unlauteren PERSON ) . ORG submitted in particular that following a DATE amendment the applicant company ’s activity no longer fell within the terms of LAW , and accordingly the company could not receive a licence for it .

The applicant company contended that owing to the close connection between tracing heirs and winding up estates it was not required to have a licence under LAW .

In a judgment of DATE ORG ( Landgericht ) accepted the applicant company ’s argument finding that its activity of giving legal advice in the winding up of estates was a direct offshoot of its main commercial activity as genealogists .

On an appeal by ORG , ORG ( Oberlandesgericht ) overruled ORG judgment on DATE and made an order restraining the applicant company from acting or offering to act for heirs ( PERSON ) , since it did not have the requisite licence under section CARDINAL(CARDINAL ) of LAW . ORG considered that the genealogical activity was merely a way of finding clients in order to obtain work winding up estates , that being the main profit - making activity of the applicant company and CARDINAL for which a licence was required . Furthermore , the genealogical activity was not necessarily connected to that of winding up estates as the CARDINAL could be carried on separately . In any event , the latter was not under any circumstances a subsidiary legal activity capable of coming within the exceptions set out in section CARDINAL(CARDINAL)(CARDINAL ) of LAW . Lastly , that construction of the provision did not infringe the relevant provisions of LAW .

ORG granted the applicant company DATE to make the change on condition that it immediately sought the requisite licence under LAW .

The applicant company made a request for a licence to the competent authorities , but it was turned down . The President of ORG stated in particular that the request , which was for a licence to act on behalf of heirs , fell outside the categories of activities set out in section CARDINAL(CARDINAL ) of LAW . That statute had been amended in DATE and the range of services which legal advisers were entitled to offer substantially curtailed , the right to perform most legal services being reserved to lawyers . Consequently , licences could be granted only for such activities as were exhaustively set out in section CARDINAL(CARDINAL ) of LAW . The activity referred to by the applicant company was not CARDINAL of them .

At the same time the applicant company lodged an appeal on points of law with ORG ( ORG ) , which was dismissed in a judgment of DATE . Like ORG , ORG considered that the applicant company could not act in the winding up of estates without the requisite licence .

The applicant company then lodged a constitutional appeal with ORG ( Bundesverfassungsgericht ) . Sitting as a committee of CARDINAL judges , ORG decided on CARDINAL DATE to dismiss that appeal .

II . The second action against the applicant company was brought in DATE by ORG on the same grounds as those relied on in the first action .

In a judgment of CARDINAL DATE ORG found in favour of ORG .

ORG dismissed the applicant company ’s appeal on DATE .

Its appeal on points of law to ORG was also dismissed , in a judgment of DATE .

The applicant company then lodged a constitutional appeal with ORG , which , sitting as a committee of CARDINAL judges , decided on CARDINAL DATE to dismiss the appeal .

LAW ( Rechtsberatungsgesetz ) , which came into force in DATE , provides that the profession of legal adviser ( PERSON ) may , subject to certain conditions , be exercised by people not possessing legal qualifications .

The first sentence of the first paragraph of LAW ) states that “ regardless of whether it constitutes a main or subsidiary activity or is performed for a fee or free of charge , legal work ( GPE fremder GPE ) , including the giving of legal advice , may be performed for third parties only by persons licensed to do so by the relevant authorities ” .

Section CARDINAL(CARDINAL)(CARDINAL ) of the LAW provides : “ the fact that commercial or industrial undertakings perform legal work for their customers that is closely connected to their main activity ( die FAC ihres GPE in unmittelbarem GPE stehen ) shall not constitute an infringement of this Act ” .


The applicant is a trade union , with its registered address in GPE . It is represented before the ORG by Mr J. Clinch , the applicant ’s legal officer .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant is a union for public service employees . It has members employed with ORG ( UCLH ) , which is ORG ( “ ORG ” ) Trust . A substantial proportion of its members at ORG are employed on terms and conditions of employment negotiated , primarily , at a national level and the applicant plays a leading role in those national negotiations . Collective negotiations on terms and conditions for most staff so employed within the ORG take place within the framework of the so - called “ FAC ” . There is a ORG which agrees terms and conditions common to all staff groups , for example , on redundancy , equal opportunities , maternity rights and joint consultation machinery and CARDINAL other specialist councils dealing with particular jobs or professions . Each ORG is composed of an equal number of employer - side staff and staff - side employees . The applicant inter alia provides the employee - side secretariat of ORG which means that it plays the leading role in co - ordinating staff - side policy within the ORG negotiations and in representing employees at those negotiations .

During DATE , ORG was negotiating to transfer a part or parts of its business to a transferee consortium of private companies , under a mechanism known as ORG , whereby the private companies would erect and run for ORG a new hospital ( the “ primary transfer ” ) . The consortium would subsequently transfer parts of the business transferred to it by ORG to other private transferee companies ( secondary transfers ) . Thereafter , there would be yet further transfers to private companies ( tertiary and subsequent transfers ) . At all stages there was to be subcontracting out of parts of the work by transferee companies to specialist companies . The primary transfer and secondary transfers would involve most but not all the employees of ORG being transferred to one or more of the transferee companies .

The applicant sought protection of its members for the terms and conditions of employment and collective bargaining arrangements , aiming to secure a collective agreement with ORG by which the latter would impose on the transferees terms that would guarantee for DATE that the terms and conditions of employment and the collective bargaining arrangements of those who would be employed by the primary and subsequent transferees would remain the same as or equivalent to those which would remain for existing employees who were not transferred from NORP . ORG refused the request or to offer any protection of existing terms and conditions beyond those guaranteed as a minimum by law .

The applicant put a question to its members in the statutorily required pre - strike ballot , asking whether they were prepared to take industrial action in support of the trade union ’s demands for a guarantee . The ballot paper stated :

“ The union has requested a guarantee that the terms , conditions and benefits enjoyed by ORG staff to be transferred to the new employer , and also staff , subsequently employed and subcontracted staff remain the same ( or at least as favourable as ) , and governed by the same collective bargaining arrangement as ORG , ORG staff . ORG has not agreed to give this guarantee by making it part of the contract with the new employers or by making it part of individual contracts of employment . The union is therefore in dispute with ORG .

Are you prepared to take strike action in support of the request for the guarantee described above ? ”

On DATE , it was announced that members had voted overwhelmingly to take strike action . The applicant called for the strike to take place on QUANTITY DATE .

On DATE , ORG brought proceedings applying for an injunction to prevent the strike taking place .

On DATE , ORG ordered interlocutory injunctive relief in favour of UCLH , finding that the strike did not attract the protection of section CARDINAL of ORG DATE ( the DATE Act ) .

On DATE , ORG dismissed the applicant ’s appeal , upheld the injunction and ordered costs against the applicant . It refused leave to appeal to ORG . In its judgment , as summarised by the applicant , it was found :

( i ) that there was no dispute wholly or mainly related to current terms and conditions but instead a dispute about future terms and conditions with an unidentified future employer ( Section CARDINAL of the DATE Act did not extend to such a dispute ) ;

( ii ) the inclusion of future employees and sub - contracted employees in the demand for protection took the dispute outside section CARDINAL of the DATE Act ;

( iii ) even if the dispute was mainly about statutorily permitted matters and between statutorily permitted parties , the ballot paper before the strike must be restricted wholly to statutorily permitted issues to be valid .

In his judgment in ORG , Lord PERSON noted that the applicant ’s counsel had accepted that the arrangement which the applicant had sought to achieve would have been difficult to enforce in any event , though considered that the applicant could claim that the guarantee could have been of benefit to its members . While counsel had also conceded that any strike of hospital staff would , regrettably , have had an impact on persons being treated in the hospital , he held that the possible adverse consequences of a strike was not relevant to the court ’s decision on the legal issue before it .

On DATE , ORG rejected the applicant ’s petition for leave to appeal .

The applicant withdrew the strike call to avoid acting unlawfully and being found liable for damages .

A strike by employees involves breaches of their respective contracts of employment . Calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing the breach of contracts of the employees concerned . Section CARDINAL of ORG DATE ( the DATE Act ) confers protection where the defendant is acting “ in contemplation or furtherance of a trade dispute ” . Statutory protection is lost and the trade union is necessarily acting unlawfully if the strike it calls is in contemplation or furtherance of something which does not fall within the statutory definition of a “ trade dispute ” .

The term “ trade dispute ” is defined by section CARDINAL of the DATE Act which provides as relevant :

“ ( CARDINAL ) In this Part , ‘ trade ORG means a dispute between workers and their employer which relates wholly or mainly to CARDINAL or more of the following -

( a ) NORP terms and conditions of employment or the physical conditions in which any workers are required to work ;

( b ) engagement or non - engagement , or termination or suspension of employment or the duties of employment , of CARDINAL or more workers ;

( c ) the allocation of work or the duties or employment between workers or groups of workers ;

( d ) matters of discipline ;

( e ) a worker ’s membership or non - membership of a trade union ;

( f ) facilities for officials of trade unions ; and

( g ) NORP machinery for negotiation or consultation , and other procedures , relating to any of the above matters , including the recognition by employers or ORG associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of procedures . ”

Pursuant to ORG DATE ( SI DATE ) , protection is provided to workers on ( most ) transfers of undertakings ( these regulations implemented ORG . CARDINAL/CARDINAL/EEC ) .

By regulation CARDINAL , a contract of employment of employees employed in an undertaking immediately before a relevant transfer are saved from automatic termination and “ shall have effect after the transfer as if originally made between the person so employed and the transferee . ” All rights , powers , duties and liabilities of the transferor are deemed to pass to the transferee ( reg . CARDINAL ) ) , hence the transferee comes under an obligation to respect the terms and conditions of employment which have been agreed by the transferor . By virtue of reg . CARDINAL , employees whose contractual terms prior to transfer are expressly subject to collective negotiation , will continue to be subject to that collective negotiation following transfer , even if their new employer is not party to those negotiations ( e.g. PERSON and others v. T ORG [ DATE ] ORG CARDINAL(EAT ) ) .

Pursuant to reg . CARDINAL of FAC , the effect of any collective agreement made between a transferor employer and a trade union is preserved , and the agreement treated as if it had been made between the trade union and the new transferee employer . Recognition of a trade union by a transferor , whether for collective bargaining purposes or otherwise also binds a transferee where the undertaking transferred maintains an identity distinct from the remainder of the transferee ’s undertaking ( reg . CARDINAL ) .

Pursuant to reg . TIME ) , of FAC , an employee who is dismissed because of a transfer or for a reason connected with it is deemed to have been unfairly dismissed , giving an automatic guaranteed claim for compensation and/or re - instatement or re - engagement under s. CARDINAL of LAW DATE ( “ ERA ” ) . This is subject to the exception where the employee has been dismissed for “ an economic , technical or organisational reason entailing changes in the work force ” in which case the dismissal is not automatically unfair – reg . CARDINAL(CARDINAL ) . Such dismissal may nevertheless be found unfair by an ORG applying the ordinary principles set out in s. CARDINAL of ERA . A dismissal may occur at the instigation of an employer or where an employee resigns having apprehended that there is to be , or has been , a fundamental breach of contracts by the employer or a substantial change of working conditions to his detriment ( e.g. PERSON v. ORG [ DATE ] ORG ) .

A proposal by an employer to effect a transfer also gives rise to an obligation to consult “ appropriate representatives ” of affected employees about , inter alia , the date of the transfer and the reasons for it , its legal , economic and social implications for affected employees , and the measures , if any which will be taken by the transferor and/or transferee employers in relation to those employees ( reg . ORG ) ) . The appropriate representatives include representatives of a recognised trade union .

Any reduction in wages paid by an employer must , with certain limited exceptions , be agreed in writing . If there is no written agreement , the employee will have a claim to ORG for unlawful deduction of wages under ss . DATE ERA .

Any reduction in wages or downgrading in other terms or conditions which is not agreed will give rise to a claim for breach of contract of employment in the ordinary courts , or , if employment has ended , in the ordinary courts or in ORG .

If an employee is dismissed for failing to agree to a change in contractual terms and conditions , he may bring a claim for unfair dismissal pursuant to s. CARDINAL ERA . A claim for unfair dismissal may also be brought by an employee who resigns following a significant change to contractual terms and conditions ( s. CARDINAL(CARDINAL)(c ) ERA ) . An employee dissatisfied with changes to terms and conditions may remain in his job and claim unfair dismissal , seeking compensation for the financial shortfall between the new terms and former terms of employment .

Pursuant to ORG , recognition of trade union and collective agreements would automatically transfer to transferee employers ( regs . CARDINAL and CARDINAL ) . Where following transfer a transferee company wished to terminate recognition of a trade union , domestic law provides a mechanism whereby such employers may be compelled to engage in collective bargaining on certain matters .

Section CARDINAL of LAW DATE adds a new Schedule CARDINAL to the DATE Act , under which employers and trade unions are encouraged to agree upon recognition for collective bargaining and upon the consequences which should flow from recognition . In the absence of agreement , unions may , in certain circumstances , apply to ORG in order to secure compulsory recognition for the purposes of collective bargaining on pay , TIME and holidays . Certain conditions must be met if compulsory recognition is to be ordered , principally that the trade union can claim a minimum level of support amongst the workers it wishes to represent in collective bargaining ( paragraphs CARDINAL and CARDINAL(CARDINAL ) of the Schedule ) and that no other trade union is already recognised as representing any of those workers ( paragraph CARDINAL ) . The Schedule came into force on DATE .