The CARDINAL applicants , whose particulars are appended , are all GPE nationals and practising lawyers in the GPE . They were represented before ORG by PERSON , a lawyer practising in GPE .

In the course of criminal proceedings before ORG ( arrondissementsrechtbank ) , in which applicants nos . CARDINAL and CARDINAL acted as defence lawyers , ORG took oral evidence on CARDINAL and DATE from police officer A.B. on the criminal investigation conducted and in the course of which telecommunications with a lawyer falling within the ambit of the privilege of non - disclosure ( verschoningsrecht ) by virtue of LAW ORG ” ) apparently had been intercepted and recorded . PERSON declared that this had simply been a mistake as , at the material time , he and his colleagues had never realised that it was forbidden to transcribe such conversations into a written record . Once this had been pointed out to him in DATE by the public prosecutor , it was too late as copies had already been distributed . It had then been agreed to record such conversations but not to transcribe them . He further declared that it was technically not possible to prevent such conversations from being intercepted . As to CARDINAL conversations held in DATE which had nevertheless been transcribed , PERSON declared that , unlike many others , these CARDINAL conversations had accidentally slipped through the control system .

On DATE and DATE , further hearings were held before ORG in the course of which oral evidence was taken from police detective PERSON , who stated that it was his understanding that it was not allowed to transcribe intercepted conversations falling within the ambit of the privilege of non - disclosure , but that use could be made of the information contained therein .

No further information about these proceedings has been submitted by the applicants .

In DATE , it appeared in separate but interrelated sets of criminal proceedings pending before ORG – in which applicants ORG . DATE , CARDINAL and ORG acted as defence lawyers DATE that the obligation under the ORG to destroy evidence falling within the ambit of the privilege of non - disclosure enjoyed by lawyers under LAW ORG had not been complied with . The CARDINAL applicants detected this when listening to copies of optical disks that had been added to the case file and on which telephone conversations were stored that had been tapped in the course of the criminal investigations , known under the codenames “ TCARDINAL - CARDINAL ” and “ NORP ” . They had been made DATE and DATE .

The CARDINAL applicants subsequently requested the responsible public prosecutor to provide them with a copy of the written records of the destruction ( proces - verbaal van vernietiging ) of the conversations with persons enjoying the privilege of nondisclosure ( geheimhouders ; hereinafter referred to as “ privileged persons ” ) , that must be drawn up pursuant to LAW on the storage and destruction of items not added to the case file ( Besluit bewaren en vernietigen nietgevoegde stukken – “ the LAW ; see below under “ Relevant domestic law ” ) .

A written record , dated DATE and drawn up by police officer PERSON reads , insofar as relevant , as follows :

“ Both the Choco [ investigation ] team ( GPE ) and the TCARDINAL team ( ORG ) used the “ Comverse ” interception system . This system stored the intercepted telephone conversations on a so - called Optical Disk . Once stored it was no longer possible to manipulate these recorded conversations . That means that they could no longer be deleted . Given the fact that the system was saved regularly ( TIME ) , conversations with privileged persons were also stored on ORG .

The so - called “ privileged persons ” conversations were recorded by the PERSON team in the criminal investigation system used . The telephone conversations were recorded in the processing system concerned as “ privileged person ” or “ confidential ” . The conversations were thus not transcribed or summarised . ”

In the course of a hearing held in camera before ORG on DATE , the public prosecutor stated that no formal records of destruction had been drawn up as it was technically impossibly to delete specific conversations stored on an optical disk , and that in CARDINAL regional police telecommunication tapping rooms ( tapkamers ) not a single recorded conversation had been deleted since DATE . The public prosecutor explained that , since DATE , a number of police tapping rooms were working with the “ Comverse ” system for recording intercepted telephone conversations . Such conversations were stored on optical disks . Since the system had to comply with predefined security norms , in which the impossibility to manipulate stored data was an important factor , the system had been set up so that nothing could be added or altered to that data . For this reason it was not possible to delete conversations with privileged persons that had been saved on an optical disk .

On DATE , ORG examined a request by applicant no . CARDINAL to extend the time - limit of DATE fixed to review the optical disks , and to be provided with the written records of the destruction of conversations with privileged persons and with the indexes of each of the optical disks in the form of an ORG or Excess computer programme file . After having deliberated , ORG granted the first request and rejected the remainder , holding :

“ Noting the high number of intercepted conversations and that listening to the optical disks , owing to the absence of a search function ... , is a time consuming exercise , ORG accepts that the defence needs more time ... to listen to the disks . [ This ] request is ... [ therefore ] ... reasonable . Since the optical disks , for the purposes of control , must thus be made available again , ORG will fix the delay at a maximum of DATE as from the date of this decision .

The public prosecutor has declared in court that no written records of destruction have been drawn up , as the deletion of specific conversations stored on optical disks is technically not possible . In any event , according to the public prosecutor , the conversations with privileged persons will not be transcribed nor added to the case file . Noting this and in the absence of any reason to doubt the statement of the public prosecutor , the request [ to be provided with ] the written records of destruction is rejected .

The public prosecutor has further declared that no indexes exist of the different optical disks in the form of an ORG , Excess or other computer programme file and that , owing to the great number of intercepted and recorded conversations , it is not possible to create an index at short notice . Considering this to be plausible , noting again the great number of recordings , ORG rejects the request to be provided with the indexes asked for , the more so as [ the defence ] will now be given [ ample time ] to listen to the audio data carriers . ”

By letter of DATE , in reply to a letter sent by applicant no . CARDINAL on DATE , the public prosecutor stated that he had instructed the police to delete those conversations falling within the ambit of the privilege of non - disclosure that had been stored on optical disks and which had been added to the case file . The public prosecutor indicated that he assumed that the destruction would take place within DATE .

According to a written record dated DATE , drawn up by police officer PERSON , the public prosecutor had instructed him on DATE to select and delete from the optical disks all intercepted conversations in which privileged persons had participated . In the ORG investigation a total of CARDINAL contacts of that nature had been selected and a total of CARDINAL contacts in the TCARDINAL - CARDINAL investigation . The audio data of all of these conversations had been deleted without making a distinction as to the contents or relevance of these conversations . The written record also contains a remark that the investigation team had not in any manner made use of the contents of stored conversations with privileged persons . An overview of the selected conversations was appended to the written record .

On DATE , in the context of the criminal proceedings pending before ORG , the investigating judge ( rechter - commissaris ) at ORG took evidence from the expert - witness PERSON , who was working for the company ORG According to ORG it was in fact technically possible not to store selected data on an optical disk and to delete data from it , but most ORG stored all data as selection was a labour intensive exercise . Mr ORG further stated that only ORG could delete data but not a user , although the system could be set up so that users could also be authorised to delete data . Furthermore , searches for telephone numbers , keywords or remarks could be carried out in the main system . According to his evidence , the “ Comverse ” system was used by the police in CARDINAL regions . The applicants nos . CARDINAL , CARDINAL and ORG attended this hearing and were given the opportunity to put questions to Mr ORG

At a hearing held on DATE , ORG granted the request made by applicant no . CARDINAL to take evidence from police officers GPE and C.T on recorded conversations with privileged persons and the destruction of those recordings .

PERSON declared before ORG that , on the basis of tapping logs , he had made a selection of conversations with privileged persons , i.e. the conversations between the suspect and his lawyer , doctor or counsellor ( vertrouwenspersonen ) . The scope of his selection had been as broad as possible , but he could not certify that his selection had in fact covered every conversation of that kind . He himself had only deleted the data in the tapping logs ( i.e. the record containing the references to the conversations concerned ) , but not the actual conversations themselves . He had done so after DATE . He had drawn up a written record of the selected conversations and he had given the list of the conversations to be deleted to his colleague Mr PERSON

Mr PERSON testified before ORG that his commanding officer , PERSON , had ordered him to delete the conversations with privileged persons . Together with his colleague PERSON , he had selected the conversations with privileged persons and a written record of that selection had been made . He further stated that , after having obtained authorisation from the Systems Manager of the ORG tapping room , he had deleted CARDINAL conversations from the optical disks . He had started with this on DATE and it had taken him in total TIME . He had not reformatted or demagnetised the disks as this would have deleted all of the recorded conversations . Lastly , he stated that , apart from those held by the defence , no copies of the disks had been made .

After having taken evidence from these witnesses and after having given applicant no . CARDINAL the opportunity to question them , ORG ordered , at the request of applicant no . DATE , and sharing the parties ' concern about the recording of conversations with privileged persons , that the optical disks containing such conversations were to be handed over to , and held by , the investigating judge at ORG .

On an unspecified date , at the request of the defence lawyers and in consultation with the public prosecutor , the investigating judge at ORG decided to carry out an on - site inspection ( schouw ) of the police tapping room at the GPE police headquarters .

The inspection took place on DATE in the presence of , amongst others , applicants ORG . DATE , CARDINAL and ORG and the public prosecutor . A check of conversations with lawyers that should have been deleted disclosed that the contents of CARDINAL conversation , selected at random , had been deleted , but that the “ conversation - related ” data were still on record , and that another conversation , selected by applicant no . ORG , had erroneously only been deleted from the list instead of from the disk , and that the record of the contents of that conversation was still in existence and could be listened to . Consequently , the investigating judge decided to take the audio data carriers with him and that they were to be held by him pending a ( further ) decision by ORG .

No further information has been submitted as regards these proceedings by the applicants .

In view of the above incidents , ORG ( PERSON – “ ORG ” ) expressed , in its letter of DATE to the Minister of ORG , its serious concerns about the manner in which the judicial authorities were dealing with their obligation to destroy privileged data . It summoned the Minister of Justice to clarify within DATE where , in the police regions , the “ Comverse ” system was not being used , and where systems were used in which tapped telephone conversations falling within the privilege of nondisclosure were not removed and destroyed . It further requested the Minister to indicate in what manner and within what delay it was intended to ensure that the privileged data stored since DATE under the “ Comverse ” system would be erased , and what measures the Minister intended to take in order to prevent breaches of LAW ORG in the future .

As the Minister did not provide the ORG with the clarification requested within DATE , the ORG , ORG ( PERSON ) , and applicants ORG . DATE , CARDINAL , DATE , CARDINAL and ORG took summary injunction proceedings ( kort geding ) against ORG ( the Minister of Justice ) before ORG of The Hague , seeking an injunction against ORG for the destruction of all stored information having been conveyed by or to lawyers enjoying the privilege of non - disclosure – at least to applicants ORG . DATE , CARDINAL , DATE , CARDINAL and ORG DATE and which should have been destroyed , pursuant to former LAW ORG , or which had to be destroyed pursuant to LAW ORG . They further requested ORG to order ORG to transmit to all lawyers concerned , at least the CARDINAL applicants , a notification within the meaning of Article CARDINALbb of the ORG , as well as a copy of the written record of destruction . They lastly requested ORG to order ORG to state publicly in what manner , and in accordance with what procedure , the provisions of LAW ORG and the ORG would be complied with in respect of lawyers enjoying the privilege of nondisclosure .

In its judgment of DATE , following a hearing held on DATE , the President of ORG of The Hague rejected the plaintiffs ' first CARDINAL requests and granted their third request . The President further decided that this ruling was immediately enforceable ( uitvoerbaar bij voorraad ) . Insofar as relevant , the President held :

“ CARDINAL . For the determination of the question whether it concerns – according to the plaintiffs – a structural , or DATE according to the defendant DATE an isolated problem , a thorough investigation is required . There is no room for this in the framework of summary injunction proceedings .

Furthermore the defendant can not be ordered in summary injunction proceedings to destroy what the investigating judge should have destroyed on grounds of ( former ) Article CARDINALh of the ORG . It is clear that , until DATE , it was the investigating judge , exclusively , who had been assigned the obligation to destroy . In addition , the investigating judge remains competent as regards taps that had already been ordered on DATE . In this respect reference is made to the transitory rules [ according to which ORG CARDINALf - h of the ORG remained applicable in those cases in which tapping orders had been issued DATE ] and to the letter of the President of [ the coordinating and the national consultative platforms for investigating judges ] addressed to the investigating judges in the GPE on DATE , in which the President has taken note ex officio , and in which the following position as regards the transitory legal situation has been given :

The key - notion is the preliminary judicial investigation against a concrete suspect . Within that preliminary judicial investigation specific legal rules ( either formerly or currently in force ) are applicable . The former legal rules remain applicable to preliminary judicial investigations opened before DATE . Moreover , the management ( beheer ) of taps remains with the investigating judge . When a preliminary judicial investigation has been opened on or after DATE , the new legal rules apply in their entirety .

The above [ considerations ] result in the rejection of the claims set out under CARDINAL . and CARDINAL .

In the future , the defendant must ensure in any event that the implementation of the legal rules is tightened . This would be necessary even if , as claimed by the defendant , this was an isolated problem . The defendant has stated ... that , to this end , measures have already been taken and [ that further measures ] will be taken in the near future .

Having noted this and the established fact that mistakes have been made , and as it appears from the cases cited by the plaintiffs , in particular the PERSON criminal case ( the PERSON - investigation ) and the GPE criminal case , that not every public prosecutor is , or was , aware of the correct way of proceeding as regards the obligation to destroy recordings of conversations with privileged persons , the claim cited above under CARDINAL . is eligible for an award in the manner set out below . ...

The President orders the defendant to inform the plaintiffs by DATE at the latest in what manner and according to what procedure the provisions of LAW ORG , and the LAW in relation to the investigation of telecommunications in respect of lawyers enjoying the privilege of non - disclosure , will be complied with . ”

Neither party filed an appeal against the ruling of DATE .

By letter of DATE , the Minister of ORG informed the plaintiffs in the above summary injunction proceedings that , in DATE at the latest , a description of the procedure for compliance with LAW ORG would be laid down in a formal instruction of ORG ( College van procureurs - generaal ) and that , in anticipation thereof , ORG had transmitted on DATE to the chief public prosecutors ( hoofdofficieren van justitie ) at ORG , the chief advocates - general ( hoofdadvocaten - generaal ) at ORG and the heads of the service departments of ORG ( Openbaar Ministerie ) , an overview of the pertinent legal rules and a schematic description of the procedure . ORG had requested the addressees to ensure that wide attention be given to these documents within the public prosecution and police services concerned . The overview and schematic description were appended to the Minister 's letter .

On DATE , ORG issued a formal instruction on the “ Destruction of intercepted conversations with persons enjoying the privilege of non - disclosure ” ( PERSON CARDINAL geïntercepteerde gesprekken met geheimhouders DATE “ the Instruction ” ; see below under “ Relevant domestic law ” ) , which entered into force on DATE .

On DATE , the ORG and applicants ORG . DATE , CARDINAL , DATE , CARDINAL and ORG requested ORG ( College PERSON ) , under LAW of LAW ( FAC ) , to conduct an enquiry into

the manner in which data obtained by using digital tapping systems is processed ;

compliance with the obligation of destruction under ( former ) Article CARDINALh of the ORG and LAW ORG in general ; and

compliance with these provisions in relation to the collection , storage , removal and destruction of data pursuant to LAW ( Wet op de politieregisters ) , and ORG in particular .

The ORG agreed to conduct the enquiry . It considered itself competent to do so under LAW and LAW , irrespective of the competence of the judge in criminal proceedings . It further accepted that the ORG had an interest in the matter . As regards the scope of its enquiry , the ORG decided to concentrate on the current practice of recording telecommunications with lawyers and , as to the destruction of recorded conversations , on compliance with the Instruction of CARDINAL March CARDINAL . For the time being it decided not to deal with the question of compliance with the obligation of destruction DATE when digital tapping systems came into use .

The ORG published its report on this enquiry on DATE . On the basis of information provided by the Minister of ORG , ORG , ORG Landelijk Parket ) and the petitioners , as well as the comments submitted in response thereto , the ORG noted the following :

“ An order for the interception of telecommunications contains a telephone number . The telecom provider transmits digital conversation data being passed by that telephone number to a police tapping room . CARDINAL different digital interception systems are used in the police tapping rooms . The manner in which the different interception systems function is comparable .

The digital data transmitted by the telecom provider are stored on a hard disk in the interception system . During the storing on the hard disk , the conversations can be listened to on line . This direct listening is exceptional . The data are copied from the hard disk to an optical disk . This copying is also called archiving . Both before and after archiving , conversations having been stored on a hard disk can be listened to . When the hard disk is full , the conversations stored on the hard disk are overwritten by newly entered conversations . The listening to recorded conversations takes place , as a rule , by playing an optical disk with the aid of a special technical listening device ( uitluisterunit ) . The data obtained through recording telephone conversations are stored in a ( special ) police register .

The listening to recorded conversations is firstly made by a member of the investigation team that has been entrusted with the investigation in which context the interception order has been given . If , in listening to a recorded conversation , the suspicion arises , or it appears , that it concerns a conversation with a lawyer , a transcript of the recorded telephone conversation is submitted to the public prosecutor in charge of the criminal investigation concerned . The public prosecutor assesses whether the conversation contains information that falls within the ambit of the privilege of non - disclosure . If , according to the public prosecutor , that is the case , the public prosecutor will then order the destruction of the recorded telephone conversation to the extent that it contains privileged information .

According to the explanation attached to the Instruction [ of DATE ] , a generic order for destruction may be given as regards recorded conversations with a specific lawyer . ... To date , no use is made in practice of the possibility to give such an order .

It has been established that there has been a lack of clarity between the public prosecution service and the petitioners about the manner in which an order for destruction must be carried out . It has also been established that deleting [ digital data ] can be effected in various manners and that not all manners are effective , as has appeared in the [ criminal proceedings before ORG ] . The instruction does not prescribe in what manner the destruction must take place . In the explanation to the ORG a reference is made to the explanation attached to the LAW [ on the storage and destruction of items not added to the case file ] , where it is stated that simply deleting [ digital ] files is not sufficient , but that the data carrier must be processed in such a manner that the destroyed data can no longer be recuperated .

ORG ( Nederlands Forensisch Instituut ) has , upon the instruction of the public prosecution service , carried out a further investigation . CARDINAL of the results was that , as regards the ORG [ interception system ] , it appeared to be possible – through the efforts of an academic scientific researcher and a research assistant having DATE experience respectively – to recuperate deleted conversations within a time span of TIME . ”

The conclusions of the ORG read as follows :

“ As to the current practice in respect of intercepting and recording confidential telecommunications with a lawyer or other provider of legal assistance , the ORG has reached the opinion that this is unlawful . It follows from the recent legislative history , in line with the case - law on this issue , that the interests in the protection of these confidential communications prevails over the interests in finding the truth in criminal cases , also when it concerns the exercise of special powers of investigation . The systematic interception , recording and becoming acquainted with these confidential communications by the police and the public prosecution department is a breach of that . This also leads to a violation of the provisions of LAW and of Articles CARDINAL , CARDINAL and CARDINAL of ORG .

The ORG 's understanding of LAW is that the interception and recording of communications , which in the lawyer - client relation must be regarded as confidential , can only take place with the utmost restraint . Only such an interpretation is compatible with the above norm on the need to respect these confidential communications . LAW offers a basis for the public prosecutor to take note of recorded telecommunications with a person who presumably , or certainly , is a person enjoying the privilege of nondisclosure , within the meaning of LAW ORG , if and insofar as it is not possible otherwise to do justice to respect confidentiality .

Should this interpretation be incorrect , the question then arises whether , on this point , LAW is compatible with the special position , recognised by law and treaty , held by persons , who on grounds of their profession , enjoy the privilege of non - disclosure . However , so far the ORG has not drawn this conclusion and , instead , furthers a norm - conforming working method in the interception and recording of conversations with lawyers and other providers of legal assistance . The public prosecution department is to amend the ORG in conformity with this restrained working method .

As to the obligation of destruction , the ORG is of the opinion that LAW ORG is not respected in the cases that have arisen . The public prosecution department is to take those measures within their powers to ensure as far as possible that , after the destruction of privileged data , it will not be possible in the context of criminal proceedings to become acquainted , via relatively simple means , with destroyed data . ”

The ORG formulated the following CARDINAL recommendations :

“ CARDINAL . Lawyers and other providers of legal assistance are to ensure that there is clarity about their capacity when participating in telecommunications . To this end the lawyer can make it unambiguously clear at the beginning of a telecommunication that he participates in his capacity as a lawyer , where it concerns a confidential communication with his client .

The public prosecution department is to prescribe a number recognition system to select conversations in which lawyers participate exclusively in their professional capacity . As regards an unrecognised number , only the first conversation has to be listened to . A separation of functions ... in listening to and assessing conversations could offer a final safeguard ...

The public prosecution department is to give concrete substance to the norm that destroyed conversations should no longer be accessible , specifically in the context of criminal proceedings , by including in the ORG a sufficiently specific norm on which the actual implementation of the obligation of destruction in respect of the different tapping systems can be based .

The public prosecution department is to give effect to its responsibility for compliance with the obligation of destruction by making further agreements with the police force managers ( korpsbeheerders ) who are responsible for the actual implementation of the obligation of destruction . The public prosecution department is to verify that adequate implementation be given to the obligation of destruction and will ensure that , on this point , it will be informed DATE after the introduction of a new Instruction . ”

On DATE , in response to the negative publicity the matter had attracted in the media , the Minister of ORG and the Minister of the Interior and ORG ( Minister PERSON en ORG ) informed ORG of ORG ( ORG ) that they intended to commission a vulnerability risk assessment of the telecommunication interception systems . On DATE , these Ministers transmitted to ORG an accountants ' report on the CARDINAL different systems used in the GPE . The main conclusion of this report ( dated DATE ) reads , insofar as relevant :

“ During our investigation we have found , in all of the CARDINAL interception organisations examined , important lacunas in both the management of the interception system and the technical security of the interception systems themselves . This means that there exist , in all the interception organisations examined , risks that may lead directly to accessing , altering or ( non)deletion of intercepted information or therewith connected metainformation ( such as traffic data ) ... by unauthorised third persons . In our opinion , such risks are to be addressed without delay .

How far such risks have also in fact led to abuse has , given the aim of the assessment , has not been examined . A mitigating circumstance in the insufficiency of the technical security is that the interception systems are used within the compartmented surroundings of the police so that the hereto related risks are primarily of an internal police nature . ”

The Ministers stated , in their accompanying letter to ORG , that although no cases of abuse had been reported , the management and data security in the interception centres assessed had been found to be insufficiently formalised . They informed ORG of the measures already taken and the measures planned for the future to remedy the shortcomings as soon as possible .

By letter of DATE , the Minister of Justice informed the ORG that he did not subscribe to the findings of the ORG made in its report of DATE . The Minister considered that the practice of intercepting all conversations conducted via a tapped telephone number , including telephone conversations with a lawyer , with a subsequent control by the public prosecutor whether any of these conversations fell with the scope of the privilege of non - disclosure enjoyed by lawyers was in accordance with LAW . Consequently , the Minister would not follow the ORG recommendations .

On DATE , the ORG informed the Minister of ORG that , given the difference of opinion about the meaning of the applicable domestic legal rules , it now advised the Minister to amend these legal rules , by setting rules aimed at preventing that information conveyed to or by a person enjoying the privilege of non - disclosure be rendered public . The ORG further advised the Minister to entrust to the investigating judge the task of selecting what information should be classified as privileged .

It is open to the public prosecutor , under LAW of LAW ( ORG ) , to request the investigating judge to open what is called – in order to distinguish it from the subsequent investigation at the trial – a preliminary judicial investigation ( gerechtelijk vooronderzoek ) . It is the task of the investigating judge to conduct such an investigation in which he / she is to ensure that evidence is obtained in accordance with the law . The judge must also act impartially by collecting evidence which might exculpate the suspect . It is on the basis of the judge 's investigation that the prosecution decides whether to take the matter further , by committal for trial , or whether to close it .

LAW ORG , as amended on DATE , reads as follows :

“ Access to all documents in the case file , either the originals or copies thereof , may not be denied to the suspect as soon as the preliminary judicial investigation has been closed or has ended , or , where there has been no preliminary judicial investigation , as soon as the notification of further prosecution or the summons for appearance at the trial in first instance has been served [ on the suspect ] . ”

The trial court may suspend proceedings for further inquiries by the investigating judge ( LAW .

Until DATE , the rules about the interception of communications made through public telecommunication networks or services were set out in Articles CARDINALf - h of the ORG . Further rules on the practical exercise of the power to intercept communications were set out in the LAW ( PERSON ) of DATE , a copy of which could be obtained by any interested person . The text of these Guidelines had further been published in , inter alia , ORG ( Nederlands Tijdschrift voor de Mensenrechten ) of DATE . These Guidelines , which did not have the formal character of law , had been issued as a model letter from the senior public prosecutors to the police . The above rules initially covered only communications by telephone . As from DATE , when ORG ( Wet op de Computercriminaliteit ) entered into force , they also covered communications by fax and e - mail .

Pursuant to LAW ORG , the tapping of telecommunications could only be ordered in relation to offences for which detention on remand ( voorlopige hechtenis ) could be imposed , i.e. offences of a certain gravity carrying a punishment of imprisonment of DATE or more ( LAW . The tapping could only concern communications in which a suspect was likely to participate , and it could only be ordered where the investigation urgently required it . It was subject to the prior authorisation of the investigating judge , and a written record ( procesverbaal ) of the tapping had to drawn up within TIME .

Under LAW ORG , records without importance for the investigation had to be destroyed as soon as possible by order of the investigating judge and a written record of destruction should be drawn up without delay . As to the destruction of information obtained through the interception of telephone conversations , the standard practice in fact differed from the Guidelines . On the basis of , inter alia , the ORG 's findings in the cases of ORG and PERSON v. GPE ( judgments of DATE , Series A no . CARDINAL-A and B ) as regards the possibility of inspection by the judge and by the defence , the official records and transcripts of tapped telephone conversations were not destroyed immediately but were kept until shortly after the closure of the case . Anyone requesting access to such material was required to give reasons for such a request .

Where no suspect could be identified immediately and in order to obtain a tapping authorisation from the investigating judge , a preliminary judicial investigation against a person or persons unknown ( “ NN ” ) could be opened . As soon as the name(s ) of the suspected perpetrator(s ) could be established , the preliminary judicial investigation was to be put in the name of the suspect(s ) concerned ( LAW of the ORG ) . By subsequently availing him or herself of the right to be granted access to the case file ( LAW ORG ) , a suspect could become aware of the fact that communications had been tapped during the investigation .

On DATE , ORG herziening gerechtelijk vooronderzoek ) and the Special Investigative Powers Act ( Wet bijzondere opsporingsbevoegdheden ) entered into force , amending the legal rules on criminal investigative powers and coercive measures in criminal investigations , including the rules on intercepting and recording telecommunications , including telephone conversations .

The provisions of LAW of the ORG were replaced by ORG CARDINAL m ( recording of telecommunications ) and GPE of telecommunications ) of the ORG . Under the transitory rules , Articles CARDINALf - h of the ORG remained applicable to those cases in which orders for intercepting and recording telecommunications had been issued DATE .

LAW ORG provides as follows :

“ CARDINAL . In case of suspicion of an offence referred to in LAW [ of the ORG , i.e. an offence in respect of which detention on remand is permitted ] which DATE in view of its nature or its connection with other offences committed by the suspect – constitutes a serious breach of the legal order , the public prosecutor may , if the investigation urgently so requires , order an officer with powers of investigation ( opsporingsambtenaar ) to record telecommunications with a technical device .

Telecommunication is , under this provision , to be understood as a communication not intended for the general public , taking place via a public communication network or by use of public telecommunication services .

The order for recording telecommunications shall be in writing and contain :

a. the offence and , if known , the name or otherwise a precise as possible indication of the suspect ;

b. the facts or circumstances from which it appears that the conditions set out in the first paragraph are fulfilled ;

c. the number with which the individual user of telecommunication [ services ] is identified as well as , insofar as known , the name and address of the user ;

d. the term of validity of the order .

LAW § § CARDINAL - CARDINAL [ of the ORG ] shall apply by analogy . ”

LAW ORG , in its relevant part , reads as follows :

“ CARDINAL . In case of suspicion of an offence referred to in LAW [ of the ORG ] which – in view of its nature or its connection with other offences committed by the suspect – constitutes a serious breach of the legal order , the public prosecutor may , if the investigation urgently so requires , order an officer with powers of investigation ... to record private [ conversations ] with a technical device .

... For the purposes of executing the order [ the public prosecutor ] can order that a home will be entered without the permission of the person entitled [ to use the LOC ] , if the investigation so requires urgently and the suspicion concerns an offence attracting by law a prison sentence of DATE or more . ... “

The order can only be issued after written authorisation has been given by the investigation judge on the request of the public prosecutor . The authorisation concerns all elements of the order . ...

The order can only be given for a maximum period of DATE . It may be prolonged for DATE each time .

LAW g § § DATE [ of the ORG ] shall apply by analogy , on the understanding that the public prosecutor – for changing , broadening or prolonging [ the order ] – must have the authorisation of the investigation judge . .... As soon as the conditions set out in the second sentence of the second paragraph [ of this Article ] are no longer fulfilled , the public prosecutor shall direct that the execution of the order be ended .

In case of urgent necessity , the authorisation of the investigating judge , referred to in DATE paragraph [ of this Article ] , may be given orally , unless the second sentence of the second paragraph is applied . In that case the investigating judge shall draw up an authorisation in writing within DATE .

A written record ( proces - verbaal ) of the recording [ of private conversations ] shall be drawn up within DATE . ”

LAW ORG , insofar as relevant , provides :

“ CARDINAL . In case of suspicion of an offence , the public prosecutor may , in the interests of the investigation , order that an officer with powers of investigation systematically follows a person or systematically observes the latter 's presence or conduct . ...

In case of urgent necessity , the order may be given orally . In that case the public prosecutor shall draw up an order in writing within DATE .

As soon as the conditions set out in the first paragraph [ of this Article ] cease , the public prosecutor shall direct that the execution of the order be ended .

The order can be amended , broadened or terminated in writing , with an indication of the reasons . In case of urgent necessity , the decision may be given orally . In that case the public prosecutor shall put that in writing within DATE . ”

Article CARDINALaa of the ORG , insofar as relevant , provides :

“ CARDINAL . The public prosecutor adds to the case file the written records and other objects from which information can be derived that have been obtained in application of CARDINAL of the powers set out in Titles IVa to GPE [ e.g. systematic observation , infiltration , recording private conversations with a technical device , and intercepting and recording telecommunications ] or [ objects seized ] in application of PERSON [ of the ORG ] .

To the extent that the written records or other objects contain information conveyed by or to a person entitled to rely on the privilege of nondisclosure by virtue of LAW [ of the ORG ] if he or she were to be questioned as a witness about the contents of that information , these written records and other objects shall be destroyed . Rules for this shall be given by ORG ( Algemene Maatregel van Bestuur ) . Insofar as the written records and other objects contain information other than that meant in the first sentence hereof and has been conveyed by or to a person referred to above , [ that material ] shall only be added to the case file after an authorisation by the investigating judge . ... ”

Pursuant to Article CARDINALbb of the ORG , the public prosecutor shall , as soon as the interests of the investigation so allow , notify in writing to the person concerned ( i.e. the suspect or user of the telecommunication or technical devices with which intercepted telecommunications have taken place ) that his or her communications have been monitored and/or recorded in application of the investigative powers under the ORG . Such notification is not required if it is not reasonably possible . If the person concerned is the suspect , notification is not required if he or she has already become aware of the interceptions , for instance by having obtained access to the case file ( LAW and LAW ORG ) .

LAW ORG provides as follows :

“ CARDINAL As long as the case has not ended , the public prosecutor shall keep the written records and other objects from which information can be derived which have been obtained by observation with the aid of a technical device that records signals , the recording of private conversations , or the investigation of telecommunications – insofar as these have not been added to the case file DATE and keeps them for the investigation .

DATE after the case has ended and the last notification referred to in Article FAC [ of the ORG ] has been made , the public prosecutor shall have destroyed the written records and other objects referred to in the first paragraph . A written record of the destruction shall be drawn up .

A preparatory investigation ( voorbereidend onderzoek ) that , according to reasonable expectations , will not result in [ further criminal proceedings ] is to be equated with the end of a case and the application of the [ second ] paragraph .

Rules will be given by ORG on the manner in which the written records and other objects referred to in the first paragraph shall be stored and destroyed . ”

LAW ORG , which provision was referred to in Articles CARDINALfh of the ORG and is still in force , provides as follows :

“ Persons who , by virtue of their position , their profession or their office , are bound to secrecy may ... decline to give evidence or to answer particular questions , but only in relation to matters the knowledge of which is entrusted to them in that capacity . ”

Article CARDINALh § CARDINAL of LAW required the investigating judge to order the destruction without delay of official records and other objects from which information can be derived insofar as they concerned statements made by or to a person who , on the basis of LAW ORG , enjoyed the privilege of non - disclosure .

In a judgment of DATE , ORG held that lawyers fall within the category of persons having a professional obligation to secrecy , and thus enjoy the privilege of non - disclosure under LAW , unless they themselves are suspects ( PERSON ( GPE Law Reports – “ GPE ” ) DATE , no . CARDINAL ) .

Already in a judgment of DATE , ORG had ruled that LAW ORG did not allow the investigating judge to authorise the tapping of telephone conversations made to or from a telephone used by a lawyer , who him or herself was not a suspect , in the exercise of his profession ( GPE DATE , nr . CARDINAL ) . In its judgments of CARDINAL DATE ( GPE DATE , no . CARDINAL ) and DATE ( GPE DATE , no . CARDINAL ) , ORG further ruled that the tapping of telephone conversations made to or from a telephone of a person with a professional obligation to secrecy was allowed when the telephone line was used primarily for private calls .

In a judgment given on DATE , ORG ruled that , pursuant to LAW § CARDINAL of the ORG , information obtained by tapping telecommunications that falls within the ambit of the privilege of nondisclosure LAW ORG can not be used in criminal proceedings and that , in the case at issue , the trial court had unjustly used in evidence the contents of telephone conversations between a co - accused and his lawyer . ORG considered that LAW was aimed at protecting the interests of everyone in having the possibility to consult a lawyer in all liberty , and without fear of something becoming public which had been entrusted to a lawyer in the latter 's professional capacity . According to ORG this principle would be impaired if a third person had to take account of the possibility that information entrusted to a lawyer might become known to others , even if this would occur in a procedure to which he or she was not be a party ( GPE DATE , no . CARDINAL ) .

In a further judgment of DATE ( ORG DATE , CARDINAL ) in a case concerning criminal proceedings taken against a lawyer on charges of participation in certain activities of a criminal organisation , ORG held that it was for the investigating judge , preferably in joint consultation with the President of the local ORG or the latter 's deputy , to determine what information did or did not fall within the ambit of the privilege of non - disclosure . It further took into consideration the fact that the decision of the investigating judge could subsequently be challenged before the court in a complaints procedure under Article PERSON of the ORG . Under this provision , interested parties including the suspect may file an objection against , inter alia , a seizure , the use of seized objects and the failure to order their return . If the competent court finds the objection well - founded , it will issue the corresponding order . ORG confirmed this ruling in a later judgment of DATE ( GPE DATE , no . CARDINAL ) involving other criminal proceedings against a lawyer .

The further implementation rules referred to in the above - cited ORG and ORG of the ORG are set out in the Decision on the storage and destruction of items not added to the case file ( Besluit bewaren en vernietigen niet - gevoegde stukken ) which was published in the Bulletin of Acts and Decrees ( Staatsblad ) DATE no . CARDINAL . The ORG entered into force on DATE .

LAW provides as follows :

“ CARDINAL . The officer with powers of investigation who , by the exercise of CARDINAL of the powers set out in Titles IVa to GPE of the ORG , becomes acquainted with information of which he knows , or reasonably can know , that it has been conveyed to or by a person enjoying the privilege of non - disclosure , shall inform the public prosecutor of this without delay .

In case the public prosecutor determines that it concerns information referred to in the first sentence of LAW [ of the ORG ] , he shall immediately order the destruction of the written records and other objects , insofar as they contain such information . A written record of the destruction shall be drawn up and shall be sent to the public prosecutor .

Insofar as the information referred to in the first paragraph has been conveyed by or to a person enjoying the privilege of non - disclosure but who is being considered as a suspect , the public prosecutor shall seek the opinion of an authoritative member of the professional group to which the privileged person belongs on the question whether the information is to be regarded as information within the meaning of LAW , second sentence , of the ORG . If the public prosecutor decides to deviate from the opinion of the authoritative member of the professional group , reasons for this decision shall be given . ”

LAW reads as follows :

“ CARDINAL . If the written record is stored on a separate data - carrier , it is equated with the destruction of written records when the date - carrier is processed in such a manner that the data that could be derived from it prior to processing can not , after such processing , be recuperated .

To be equated to the destruction of an object is its processing in such a manner that the data which could be derived from it prior to processing can not be recuperated thereafter . ”

The Explanatory Memorandum to the Decision , insofar as relevant , is set out as an ORG I to this decision .

A formal step - by - step instruction to investigating officers is contained in the “ Destruction of intercepted conversations with persons enjoying the privilege of non - disclosure ” issued by ORG on DATE . Its relevant part is set out at ORG to this decision .

It has been accepted in ORG case - law that unlawful acts by the criminal investigation and prosecution authorities can , in certain circumstances , result in such a serious breach of the principles of proper proceedings that this should lead to CARDINAL of the consequences set out above , including the inadmissibility of the prosecution . This sanction may follow if the acts at issue concern serious breaches of those principles by which , deliberately or with gross negligence , the accused 's right to a fair hearing has been disrespected ORG , DATE , GPE DATE , no . CARDINAL , and DATE , GPE DATE , no . CARDINAL) .

LAW ORG reads , insofar as relevant , as follows :

“ CARDINAL . The [ trial court ] can , if it appears that in the preliminary investigation procedures have been disrespected that can no longer be repaired and the legal consequences thereof do not appear from the law , determine that :

a. the gravity of the sentence be mitigated in relation to the seriousness of the defect , if the disadvantage caused by the fault can be compensated in this way ;

b. the results of the investigation having been obtained by the defect may not be used in evidence ;

c. the prosecution is inadmissible , if owing to the defect there can not be an examination of the case in compliance with the principles of proper proceedings .

In applying the first paragraph , the [ trial court ] takes into account the interests served by the infringed rule , the seriousness of the defect and the disadvantage caused by it . ”

In cases where no remedy is available against acts or decisions of public authorities , GPE law has traditionally recognised the competence of the civil courts to grant relief against public authorities . In such circumstances , civil proceedings against the ORG can be instituted , claiming that the contested decision or act constitutes a wrongful act ( onrechtmatige daad ) within the meaning of Article CARDINAL:CARDINAL of the Civil Code ( Burgerlijk Wetboek ) . The civil court can award damages for torts committed and can grant injunctions against public authorities .

In civil cases where urgency is required , summary injunction proceedings ( kort geding ) before the President of ORG may be taken in order to obtain an immediate or interim measure . Such proceedings may be initiated where the parties can not wait for a decision on the merits ( bodemprocedure ) . Summary injunction proceedings are governed by Articles CARDINAL - CARDINAL of the ORG ( ORG ) .

They are concluded speedily and focus on the oral submissions at the hearing . As these proceedings are characterised by speed , the issues raised are only examined summarily . Decisions taken in summary injunction proceedings are usually handed down within DATE after the hearing and are immediately enforceable . Such decisions may be appealed before ORG ( gerechtshof ) and may subsequently form the object of an appeal in cassation to ORG . Decisions given in summary injunction proceedings may not be detrimental to the outcome of the proceedings on the merits ( “ beslissingen bij voorraad CARDINAL geen nadeel toe aan de zaak ten principale ” ) . The court determining the merits of the case is not bound by the decision handed down by the President of ORG in summary injunction proceedings .

ORG ( DPA ) DATE a body set up in implementation of LAW DATE supervises compliance with and the application of the legal rules governing the use of personal data as contained in , inter alia , ORG ( LAW ) , LAW ( LAW ) and ORG ( Personal Files ) Act ( Wet Gemeentelijke Basisadministratie Persoonsgegevens ) ( LAW ) . Furthermore , pursuant to ORG CARDINALa § DATE and CARDINALa § CARDINAL of the ORG , the ORG must be heard in the determination of the rules , to be set out in an Order in Council , on the processing , storing and destruction of DNA profiles .

In the exercise of its various functions , the ORG advises the Government on legislation , assesses codes of conduct , studies technological developments , gives information , mediates and handles complaints , evaluates the processing of personal data and , if necessary and subject to the provisions of LAW ( PERSON ) , may issue decisions and take enforcement action in respect of non - compliance with the legal rules on processing personal data .

Under LAW of LAW , the ORG has a discretionary power to initiate , either acting ex officio or at the request of an interested party , an enquiry into the manner in which the provisions under or based on this LAW are applied as regards data processing .


CLARKE and 3 OTHERS v. THE UNITED KINGDOM

See attached table .

The relevant domestic law is set out in various decisions in respect of similar applications , see , for example , ORG and others v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .


The applicant [ Mr ORG ] is a NORP national who was born in DATE and lives at PERSON ( GPE ) . He is a soldier in the provisional reserve force .

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

On DATE the applicant signed an “ administrative special - quarters - allocation form ” at the ORG Quartermaster - General , thereby obtaining the use of lodgings in GPE . The quartermasters - general were set up by a royal decree of CARDINAL DATE to meet the housing needs of military personnel , who were liable to be transferred at regular intervals .

In DATE the applicant made a request under PERSON no . CARDINAL of CARDINAL DATE for a transfer to the provisional reserve force . It was granted by a decree ( no . CARDINAL/CARDINAL/CARDINAL ) issued by ORG on DATE . The transfer was irreversible under administrative regulations .

On DATE Royal Decree no . CARDINAL/CARDINAL of DATE was published . It established ORG ( GPE ) and abolished the ORG Quartermaster - General . By DATE ( see “ Relevant domestic law ” below ) , certain servicemen in the provisional reserve force were required to surrender possession of DATE to the ORG before DATE .

On DATE the Director - General of GPE informed the applicant that DATE should have been vacated before DATE . On DATE the applicant was given DATE to leave and was told that failure to do so would result in possession proceedings being brought . GPE put in motion an administrative procedure against the applicant , who on DATE was ordered to leave DATE by a decision of the Secretary of ORG .

On DATE the applicant made an application to ORG for judicial review of that decision .

Meanwhile , GPE sought an order from the GPE investigating judge requiring the applicant to vacate the LOC ( ORG had not ordered a stay of execution of the decision of DATE ) . On DATE the investigating judge made an order authorising eviction .

The applicant lodged an appeal with ORG , which reversed the impugned decision on DATE holding that the execution of the administrative eviction order was disproportionate since the application for judicial review was still pending .

The DATE decree was partly amended by LAW no . CARDINAL of DATE , which was not , however , applicable to servicemen in the provisional reserve force . Nonetheless , it did permit aggrieved parties to apply in certain circumstances for a stay of execution of orders for possession . The applicant made such an application on DATE . However , owing to the fact that he had moved , it was not heard .

In a judgment of DATE , which was served on DATE , ORG dismissed the applicant ’s application for judicial review and upheld the order for possession . It noted at the outset that the applicant had been allocated his quarters in his capacity as a serviceman and that public servants were in an objective legal position that could be modified without undermining the rule of law . A public servant ’s position was therefore not immutable from the time he took up office , but was governed by the principle that the rules regulating the status of public servants had been accepted . In rejecting the applicant ’s submissions , the court referred to a ORG judgment of DATE in which it was held that the law on urban lettings and the provisions governing low - rent housing did not apply to military quarters or to transfers of possession of DATE . The applicant ’s claims were therefore ill - founded since none of the rights the applicant might previously have enjoyed as a tenant had been infringed ; nor had he been unlawfully deprived of his legitimate rights .

The applicant subsequently lodged an amparo appeal with ORG , which was dismissed in a decision of DATE on the ground that there was no constitutional basis for the appeal . ORG held that the court below had given sufficient reasons for rejecting the applicant ’s submissions regarding the retrospective application of Decree no . DATE ( see “ Relevant domestic law ” below ) . It further noted that eviction from DATE did not amount to a penalty for the purposes of LAW and that , in any event , no amparo appeal lay in respect of breaches of that provision , in which the prohibition on giving retrospective effect to norms that were restrictive of rights was to be found .

“ The LAW guarantees the rule of law , the application of norms according to rank , their publication , the non - retrospective nature of provisions laying down increased penalties or restricting individual rights , legal certainty , the accountability of public authorities and the prohibition of any arbitrary act on their part . ”

“ In the light of the need for military defence planning and in order to enhance the operational effectiveness of ORG and facilitate the geographical mobility of their members , ORG shall take appropriate measures to provide for the housing needs of members of ORG resulting from the requirement for them to be mobile ; ... ”

“ CARDINAL(a ) Servicemen in the provisional reserve force when LAW enters into force [ DATE ] and occupying military quarters shall be entitled to live in DATE for life provided they satisfy the age requirement for joining the reserve force for their rank , regiment and post as laid down by Law no . CARDINAL of DATE or will satisfy that requirement within a maximum of DATE .

All other members of the provisional reserve force shall vacate DATE before DATE . ”


The applicant , Mr. PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .

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

It appears that the applicant was detained on remand for DATE between DATE . He was later charged with aggravated fraud ( grovt bedrägeri ) and complicity in aggravated fraudulent behaviour towards creditors ( grov oredlighet mot borgenärer ) . The indictment was brought by the chief prosecutor at ORG ( ekobrottsmyndigheten ) in GPE .

ORG ( tingsrätten ) of GPE heard the case , which also involved charges against CARDINAL co - accused , during DATE between DATE and DATE . The court heard CARDINAL witnesses and the parties submitted a considerable amount of written evidence . In hearing the case , ORG was composed of CARDINAL professional judge and CARDINAL lay assessors ( nämndemän ) .

Delivery of judgment was delayed on several occasions due to illness or a heavy workload . Eventually , by a judgment of CARDINAL DATE , ORG found the applicant guilty of attempted aggravated fraud and complicity in aggravated fraudulent behaviour towards creditors and sentenced him to DATE imprisonment . However , the prosecutor ’s request that the applicant be prohibited from running a consulting business ( förbud att bedriva rådgivningsverksamhet ) was rejected .

Upon appeal , ORG ( hovrätten ) of GPE and PERSON heard the case during DATE CARDINAL DATE . On DATE of the hearing , the applicant joined the objection made by CARDINAL of the co - accused that the hearing should be suspended as a person suspected of complicity in the crimes in question was absent and thus could not be heard by ORG . By a decision of DATE , the appellate court decided that the absence of this person did not constitute an obstacle to the continuation of the hearing . It took into account that there had been no contact with this person for a long time and that , despite the efforts to find him , his whereabouts were still unknown . It considered therefore that there was no reason to believe that he would be found in the foreseeable future .

On DATE ORG rendered its judgment . It upheld the conviction for aggravated fraudulent behaviour towards creditors but acquitted the applicant of the charge of aggravated fraud . The prison sentence remained unchanged . Moreover , ORG decided to prohibit the applicant from running a consulting business for DATE . It had regard to the oral and written evidence presented to it and did not base any part of its assessment on statements made by the person who could not be heard during the hearing .

On DATE ORG ( Högsta domstolen ) refused leave to appeal .

The criminal proceedings against the applicant and the co - accused attracted interest from the media , and the public prosecutor and the applicant ’s lawyer made statements to the press in regard to the proceedings .

As from DATE a criminal investigation , lead by ORG in GPE , was carried out concerning ORG judge who had presided in the applicant ’s case . Due to the investigation , the judge was suspended from his work in DATE . He later resigned from his duties at ORG . On DATE ORG convicted him of breach of trust ( trolöshet mot huvudman ) , consisting of embezzlement of assets belonging to his aunt during the period of DATE . He was given a suspended sentence .

The applicant subsequently filed complaints with the police and the Chancellor of ORG ( NORP ) , claiming that ORG judge should not have dealt with his case since the judge had been involved in criminal activities . In the applicant ’s view , this had affected his trial by , for instance , delaying the delivery of ORG judgment . By decisions of DATE , respectively , neither the Chancellor of ORG nor ORG ( Riksåklagaren ) found reason to take action in the matter .


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of involuntary manslaughter . On an unspecified date he retained private counsel , A.B.

On DATE ORG ( hereinafter “ the ORG ” ) ordered the applicant ’s detention on remand with reference to ORG CARDINAL and CARDINAL of LAW ( hereinafter “ the ORG ” ) .

On DATE the criminal case against the applicant was sent for trial to ORG , following which that court extended his detention on several occasions .

By a decision of DATE ORG extended the applicant ’s detention until DATE .

On an unspecified date in DATE the prosecution applied to ORG seeking a further extension of the applicant ’s detention on remand ; the related hearing was fixed for DATE .

By a decision of CARDINAL DATE ORG adjourned the hearing on the extension of the applicant ’s detention because his lawyer , although duly notified about the hearing , had failed to attend , without providing any reasons . The new hearing was scheduled for DATE . The applicant was present at the hearing of CARDINAL DATE .

At TIME on DATE the applicant ’s lawyer was notified of the new hearing date , time and venue , against his signature .

By a decision of CARDINAL DATE ORG extended the applicant ’s detention until DATE . The decision stated , among other things , that the term of the applicant ’s detention authorised by the decision of CARDINAL DATE had expired on DATE . According to the hearing record , the applicant ’s lawyer did not attend and had not informed the court of the reasons for his absence . The applicant , when asked by the court whether he objected to the examination of the issue in the absence of his counsel , stated that he had no objections .

On an unspecified date the applicant complained to ORG ( hereinafter “ the ORG ” ) that his detention CARDINAL and DATE had been unlawful because it had not been covered by a court decision . He also complained that on CARDINAL DATE ORG had examined the issue of his detention in the absence of his lawyer . There is no indication that the applicant also complained about ORG alleged failure to appoint legal - aid counsel for him or to adjourn the hearing .

On DATE ORG dismissed the complaint . It held that the applicant ’s arguments concerning the gap between the detention orders and the examination of the detention issue in the absence of his lawyer were “ insignificant ” ( “ не являются существенными ” ) , and that ORG had not breached the relevant provisions of the criminal procedure in extending his detention . As regards the lawyer ’s absence , the court noted that PERSON had been duly notified of the hearing of DATE against his signature and had not requested that it be postponed , and that , accordingly , ORG had correctly decided to proceed with the examination of the case .

On DATE ORG acquitted the applicant of all charges and ordered his release . The judgment stated , among other things , that the applicant had a right to seek compensation for any pecuniary and non - pecuniary damage caused by his criminal prosecution .

On an unspecified date in DATE the applicant brought proceedings seeking compensation for his criminal prosecution and for unlawful detention . He claimed , in particular , MONEY ( RUB ) in respect of non - pecuniary damage , and RUB CARDINAL in respect of pecuniary damage .

By a judgment of CARDINAL DATE ORG partly granted the applicant ’s claims , awarding him RUB CARDINAL in respect of pecuniary damage and RUB CARDINAL in respect of non - pecuniary damage , to be recovered from ORG . The court ’s judgment , in so far as relevant , reads as follows :

Bearing in mind that [ the applicant ] was acquitted , that is , found not guilty of the particularly serious crime of which he had been charged ... the court finds that [ the applicant ] was unlawfully prosecuted and unlawfully held in detention ... and ... sustained , as a result , pecuniary damage because of loss of salary , and non - pecuniary damage on account of mental suffering in the form of continuing stress because of being held in a detention facility , ... a special institution with a strict regime ; [ and because of ] the restriction of his right to freedom of movement and anxiety about his future ...

Having regard to the fact that [ the applicant ’s ] criminal prosecution resulted in an acquittal , the court considers it obvious and not requiring any additional proof that the plaintiff sustained non - pecuniary damage because , as a result of unlawful acts by ORG officials , he was deprived of his right to freedom of movement and his right to choose his place of residence was circumscribed .

In assessing the amount of the monetary compensation , the court takes into account the intensity of [ the applicant ’s ] mental suffering related to [ the fact of his ] detention , including the unavoidable contact with the prison population , the restrictions connected to the particular regime of the detention facility [ and ] the length of [ his ] detention on remand ( over DATE ) [ , which took place ] while [ the applicant ] was of a young age .

At the same time , the court takes account of the fact that the [ applicant ’s ] arrest [ and ] placement in custody and the extension of [ his ] detention were carried out in accordance with the law of criminal procedure [ в рамках , предусмотренных уголовно-процессуальным законом ] , there being sufficient grounds to suspect and charge [ him ] of having committed a particularly serious crime entailing the deprivation of life of the victim ; during the criminal proceedings [ the applicant ’s ] defence rights were secured ; it has not been established that there were faulty unlawful acts on the part of the investigating authorities , the detention facility or the courts . ”

On an unspecified date in DATE the respondent appealed against the judgment of DATE to ORG .

By a judgment of CARDINAL DATE ORG granted the appeal in part . In particular , whilst endorsing the trial court ’s reasoning , ORG

On DATE the Presidium of ORG examined the case by way of supervisory review , set aside the ORG findings in respect of the award concerning pecuniary damage , and terminated the proceedings in that part . In that regard , the court held that , pursuant to LAW ORG , claims for compensation for pecuniary damage arising out of an unlawful prosecution fell within the competence of the criminal courts and were to be examined under the rules of criminal procedure .

It appears that the applicant was paid the compensation in respect of non - pecuniary damage without delay . There is no indication that he applied to the criminal courts with a view to obtaining compensation in respect of pecuniary damage , as directed by the Presidium of ORG .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his detention extended ( Article CARDINAL ) .

According to LAW ( hereinafter “ the ORG ” ) , a decision ordering or extending detention on remand in respect of a suspect or an accused is taken by a district or town court on the basis of a reasoned request by a prosecutor , supported by appropriate evidence ( Articles CARDINAL § § CARDINAL , CARDINAL and CARDINAL § CARDINAL ) .

Chapter CARDINAL of the Code regulates the so - called “ right to rehabilitation ” ( право на реабилитацию ) , which includes , among other things , the right for an individual to obtain from the ORG full compensation for pecuniary and non - pecuniary damage sustained as a result of criminal prosecution , irrespective of any fault of the investigating authorities , prosecutors or courts ( LAW ) .

The right to compensation arises in the case of acquittal and also a number of other situations where the criminal prosecution is terminated on so - called “ rehabilitation ” grounds ( реабилитирующие основания ) , that is , for example , where the prosecution has dropped the charges or where criminal proceedings have been terminated owing to a lack of corpus delicti or because the person was not involved in the criminal act ( LAW ) . However , no right to compensation arises where the prosecution is terminated on “ non - rehabilitation ” grounds , such as in the case of an amnesty or where the prosecution has become time - barred ( LAW ) .

Article CARDINAL § CARDINAL specifically provides that any person on whom a measure of restraint has been unlawfully imposed in connection with a criminal prosecution has a right to compensation under the rules of LAW .

In a judgment acquitting an individual a court has to mention explicitly that he has the right to “ rehabilitation ” ( Article CARDINAL ) . A claim for compensation of pecuniary damage is to be lodged with the same authority which issued the decision to acquit or the decision to terminate the criminal prosecution ( LAW ) , whereas any claims for monetary compensation of non - pecuniary damage are to be lodged with civil courts and examined under the relevant provisions of LAW ( LAW ) .

The Civil Code of GPE provides as follows :

“ CARDINAL . Damage caused to a citizen as a result of unlawful conviction , unlawful criminal prosecution , ... [ or ] unlawful detention on remand ... shall be compensated at the expense of the ORG of GPE , and in the instances provided for by law , at the expense of the ORG of the subject of GPE ... in full , irrespective of the fault of the officials of the agencies ... ”

“ Compensation for non - pecuniary damage shall be made irrespective of the fault of the person having caused the damage when :

... the damage has been caused to a citizen as a result of his unlawful conviction , unlawful criminal prosecution , [ or ] unlawful detention on remand ... ”

In its ruling ( определение ) no . CARDINAL-O of DATE ORG held , inter alia , as follows :

“ ... LAW ORG ] ... does not limit an individual ’s right to obtain compensation in connection with a criminal prosecution only to situations of rehabilitation of a suspect or an accused ...

Accordingly , in providing that pecuniary and non - pecuniary damage sustained by a citizen as a result of , among other things , unlawful ... detention , is to be compensated for irrespective of the fault of the relevant officials , Articles CARDINAL § CARDINAL and QUANTITY of LAW of GPE do not make the issuing of such decisions conditional upon the existence of a judgment acquitting the citizen ...

Hence , the legislation in force ... does not exclude that a court can also issue a decision to compensate a citizen for pecuniary and non - pecuniary damage sustained as a result of unlawful prosecution and ... unlawful detention in cases where an investigating authority , a prosecutor or a court did not take a decision on the full rehabilitation [ решение о полной реабилитации ] of a suspect or an accused ... ”

CARDINAL

The Constitutional Court specifically noted in its ruling no . CARDINAL of CARDINAL DATE that , pursuant to LAW ORG , any person who was unlawfully held in detention in connection with his criminal prosecution had a right , under the rules of LAW of the ORG , to compensation for the damage sustained .

In its resolution ( постановление ) no . CARDINAL of CARDINAL DATE , the Plenary of ORG of GPE provided clarifications on the application by the courts of the provisions concerning compensation for pecuniary and non - pecuniary damage sustained as a result of unlawful criminal prosecution . It noted , among other things , that in assessing claims for compensation of non - pecuniary damage the domestic courts were to take into account the level and nature of the physical and mental suffering and the individual characteristics of the person who had sustained the damage , and other circumstances , such as the length of the proceedings against him , the length and conditions of his detention on remand , and the type of penitentiary institution where he had served his sentence , as well as considerations of justice and reasonableness . The courts were also directed to set out those circumstances in their decisions awarding damages .

On the notion of “ unlawfulness ” of criminal prosecution and detention , as interpreted by the NORP courts , see PERSON v. GPE ( no . CARDINAL , § DATE , DATE ) .


No violation of Art. 5-3;No violation of Art. 6-1

The applicant was arrested and detained on remand on DATE on suspicion of aggravated fraud of MONEY . The Wrocław ORG considered that the detention was necessary in view of the dangerousness of the offence concerned and in order to ensure the proper conduct of the proceedings .

On DATE the bill of indictment was transmitted to ORG . On CARDINAL DATE the President of the ORG found that the indictment was complete and decided that the case could be heard by the court .

DATE the applicant was treated at a specialist hospital .

The first hearing was held on DATE and DATE and CARDINAL of the accused was questioned . The next hearing , set for DATE , was adjourned as the applicant first requested to be granted access to the case - file , and after the court refused , having regard to the fact that the applicant had already had such access from DATE , he stated that he felt unwell . On DATE the applicant again unsuccessfully requested access to the file and stated that he could not participate in the hearing on health grounds . The court ordered the applicant ’s examination by a specialist in forensic medicine .

At a hearing on DATE the applicant complained of bad health . The hearing set for DATE was then cancelled and adjourned to CARDINAL DATE . On DATE the court adjourned the hearing as its order of CARDINAL DATE for the applicant ’s medical examination had not been carried out .

On DATE the applicant submitted a request for release .

On DATE and DATE the hearing was adjourned as a lay judge and CARDINAL of the accused were not present . Apparently a new hearing was fixed for CARDINAL and DATE , but then adjourned to CARDINAL until DATE .

On DATE a medical expert opinion was submitted to the ORG which stated that the applicant ’s health condition did not prevent him from participating in the proceedings and was not incompatible with his detention .

On DATE the applicant requested his release , invoking LAW . He submitted that the bill of indictment did not disclose a reasonable suspicion that he had committed the offence in question . He also complained of the length of his detention .

On DATE the ORG refused to allow the applicant ’s requests for release of DATE and CARDINAL DATE . The court found that the evidence gathered so far supported a reasonable suspicion that the applicant had committed the offences concerned , and that his release would jeopardise the court proceedings , in particular as they were in their initial phase .

On DATE the ORG also informed the applicant that the hearing of CARDINAL and DATE had been adjourned " for objective organisational reasons " .

On DATE the applicant withdrew his lawyer ’s power of attorney , complaining that the latter had failed to comply with the applicant ’s request to contact him .

On CARDINAL DATE the applicant appealed to ORG against the decision of CARDINAL DATE refusing his requests for release . He submitted that this decision had not been issued within the DATE time - limit provided for by law , and that his lawyer was not entitled to attend the examination of his request , whereas the prosecutor was . He complained that ORG had failed to consider his argument based on LAW . He pointed out that the court ’s statement that the judicial proceedings were in an initial phase confirmed his complaint that the proceedings were not progressing . On DATE the applicant submitted his further request for release .

At the hearing on CARDINAL DATE it was established that ORG had intercepted the applicant ’s letter to his lawyer and transmitted it to him only on DATE . The hearing set for CARDINAL until DATE was therefore adjourned to CARDINAL and DATE in order to allow the applicant time to be assigned an officially appointed lawyer as he had withdrawn his power of attorney for his counsel . Apparently , also on CARDINAL DATE , ORG refused the applicant ’s further request for release . The applicant appealed against this decision to ORG , invoking LAW and LAW . He submitted that there had been no progress in the proceedings since DATE , i.e. the date of the first hearing .

On DATE ORG upheld the decision of DATE not to release the applicant . The court accepted that ORG had breached LAW in that it had considered the applicant ’s request of DATE only after a month , instead of within DATE . With regard to the applicant ’s complaint that ORG had failed to consider his complaints under LAW CARDINAL and LAW , the court considered that it was sufficient that ORG decision was well - founded and in accordance with LAW .

On DATE the applicant again requested his release . He submitted that his detention was unjustified and too long . He complained that there was no reasonable progress in the proceedings . On DATE ORG dismissed this request .

On DATE the President of ORG , apparently in reply to the applicant ’s letters , stated that the proceedings were not exceeding a reasonable time . He stated that " the length of the proceedings is due to various circumstances , including the state of your health and the court ’s efforts ( ... ) to guarantee your defence rights " .

In a letter of DATE the applicant complained to ORG about the length of the proceedings .

On DATE the applicant appealed against the decision of DATE . He stated that this decision was in breach of LAW and LAW . On DATE ORG dismissed this request as the applicant had failed to submit any new arguments which would justify his release .

The hearing set for CARDINAL and DATE was not held as the lawyer of CARDINAL of the applicant ’s co - accused failed to appear .

On DATE judge ORG of ORG informed the applicant in reply to his letter of DATE that his complaints about the length of the proceedings were inappropriate . The judge stated that " as CARDINAL accused were detained on remand , the dates of hearings were being set in the manner foreseen for cases of this kind and in accordance with the existing facilities of the court " .

On DATE CARDINAL of the lay judges failed to appear and the hearing was adjourned . On DATE another co - accused was ill . The hearing was adjourned to CARDINAL DATE .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of DATE . The court considered that the applicant had failed to indicate any new circumstances justifying his release .

On DATE the hearing was discontinued at TIME as CARDINAL judge had to leave the court urgently .

On DATE the President of ORG informed ORG , to whom the applicant had apparently complained , that the case was complex . He submitted that as the applicant had frequently submitted requests for release , the case - file had to be sent to ORG and thus it was impossible to set the dates of the hearing before ORG . On CARDINAL and DATE and on DATE the hearing had not been held as the applicant had been ill . Moreover , the applicant had wished to have access to the case - file , which had prevented the court from holding the hearing . The President confirmed that on CARDINAL and DATE the lay judge had failed to appear .

On DATE , DATE and DATE no hearings were held as CARDINAL of the co - accused had failed to appear .

On DATE the applicant underwent a medical examination in the prison out - patient ward and was subsequently referred to the prison hospital .

On DATE the applicant wrote a letter to the Minister of Justice , complaining about the length of the proceedings .

On DATE a medical panel found that the applicant ’s condition necessitated a minor surgical intervention in the prison hospital and that his condition could be treated in prison and was not incompatible with his detention .

The next hearing was held on DATE . The hearing set for DATE was not held as the judge received a promotion on DATE . The hearing set for DATE was not held as CARDINAL of the accused had failed to attend .

On DATE ORG decided to release the applicant . The court considered that the case was no longer in an initial stage and ample evidence had been gathered . Thus , the risk that the applicant would jeopardise the proceedings by hiding or suppressing evidence had diminished . The detention had therefore become devoid of its purpose . The court found no risk of absconding as the applicant wished to get married .

Hearings set on CARDINAL and DATE were not held as CARDINAL of the co - accused , GPE , had failed to appear .

On DATE the ORG informed the court that GPE had failed to comply with the summons for a medical examination . Subsequent summonses were not served on him and the postal authorities informed the court that he had moved .

The Wrocław Regional Court set DATE for a hearing for DATE . This hearing started at TIME The court decided to separate the case of GPE from that of the applicant as it transpired that he had left the country , and to continue the hearing . The applicant objected thereto , complaining that his new counsel had not had enough time to study the case - file . The court refused to grant this request . The hearing was nevertheless adjourned at TIME due to a bomb alert in the court .

The hearing set for DATE was not held as CARDINAL accused , including the applicant , were ill . The applicant ’s lawyer did not submit a relevant medical certificate .

The hearing fixed for DATE was adjourned due to the applicant ’s bad health . The applicant ’s counsel stated that he had tried to establish contact with his client , but to no avail . The court adjourned the hearing and ordered the applicant to submit a medical certificate to confirm his bad health . On DATE the applicant submitted a sick leave certificate from DATE .

The hearing set for DATE was adjourned for personal reasons concerning the judge . From DATE to CARDINAL DATE the applicant was in a hospital for treatment .

On DATE the court requested ORG of the ORG to examine the applicant in order to verify whether his health allowed him to participate in the proceedings . The applicant did not comply with the relevant summonses for DATE and CARDINAL DATE . The applicant was summoned to the court for CARDINAL DATE in order to explain the reasons for his failure to undergo the medical examination . He undertook to comply with the court ’s order . However , he subsequently failed again to report for the examination . On CARDINAL July and CARDINAL DATE the court again requested the ORG to examine the applicant , but he failed to comply with the relevant summonses .

On DATE the applicant was re - arrested in connection with another criminal case pending against him . On DATE he was examined at ORG . According to a medical opinion , his health was not such as to prevent him from attending the hearings . On DATE the applicant withdrew his counsel ’s power of attorney and requested the court to appoint for him a lawyer paid under the legal aid scheme . The court allowed his request by a decision of DATE .

DATE . On DATE the court decided to re - open the trial as the composition of the panel of judges had changed . At the same hearing the applicant ’s lawyer informed the court that the applicant had withdrawn his power of attorney . The court refused the applicant ’s request to have the hearing adjourned for lack of a sufficient time to prepare his defence .

On DATE the applicant challenged all judges of that court . On DATE the ORG appointed a new defence counsel for the applicant . By a decision of DATE ORG dismissed the challenge of the judges as unfounded .

On DATE CARDINAL of the co - defendants PERSON was arrested and remanded in custody .

A hearing set for DATE was not held as the court had failed to inform the applicant ’s officially assigned lawyer thereof . On DATE the applicant again challenged all judges of ORG . On DATE ORG dismissed this motion , and held a hearing , at which CARDINAL co - defendants were questioned . The next hearing was held on DATE . On DATE the hearing was adjourned as one of the accused had failed to attend . On DATE the judge was ill . The next hearing was held on DATE .

On DATE the hearing was adjourned as the defence counsel for CARDINAL of the accused , PERSON , failed to attend . At that hearing the applicant complained to the court that his lawyer did not represent him properly . On DATE the hearing was struck out of the court ’s list as CARDINAL of the lawyers failed to attend . On DATE the applicant ’s lawyer requested the court to discharge her from the obligation to defend the applicant , arguing that his statements as to her alleged lack of co - operation with the applicant were untrue . On DATE one of the accused failed to comply with the summonses and the court adjourned the hearing . On DATE the applicant and his lawyer withdrew their request for the change of the applicant ’s defence counsel .

On DATE the hearing was adjourned at the applicant ’s request , the applicant invoking his bad health . On DATE the hearing was discontinued after TIME , as a medical certificate as to the applicant ’s bad health had not been submitted to the court by the prison authorities . The court ordered that the applicant be examined by physicians .

The next hearing was held on DATE . The applicant was questioned by the court . His questioning was discontinued and the applicant requested the court to adjourn the hearing in view of his bad health .

The hearing scheduled for DATE was cancelled at the request of CARDINAL of the defendants . On DATE the ORG fixed the dates of the next hearings for CARDINAL , DATE and DATE . On DATE the court appointed a new legal aid lawyer for the applicant as the previous lawyer had to step down due to health problems . The hearing scheduled for DATE was adjourned at the applicant ’s and his new lawyer ’s requests as they had not had sufficient time to prepare the defence . The next hearing was held on DATE . On DATE the applicant complained about the allegedly inadequate conduct of the case by his new counsel .

The next hearing was held on DATE . On DATE the applicant requested again that a new counsel be appointed for him . At a hearing held on CARDINAL DATE the applicant again complained about the alleged lack of competence of his new lawyer and stated that he was not ready to submit any motions in defence . The court adjourned the hearing until DATE . On CARDINAL DATE the applicant again requested that his lawyer be replaced . The subsequent hearings were held on DATE and DATE .

On DATE the ORG pronounced a judgment , by which the applicant was sentenced to CARDINAL years’ imprisonment . On DATE the applicant was served with the written grounds for the judgment . On DATE the applicant and on DATE his defence counsel appealed against the first - instance judgment . On DATE ORG fixed the date of the hearing to be held in the appellate proceedings . On DATE the applicant requested the court to adjourn the hearing as he had been placed in a psychiatric hospital . On DATE the request was allowed and the hearing was cancelled .

On DATE ORG requested information from the hospital as to the expected duration of the applicant ’s stay . On DATE the court was informed that the applicant would likely be discharged in DATE .

A hearing was held on DATE . On DATE ORG upheld the first instance judgment .

The DATE Code of Criminal Procedure , applicable at the relevant time , listed as " preventive measures " , inter alia , detention on remand , bail and police supervision .

CARDINAL

After the bill of indictment was transmitted to the court , orders relating to detention were to be made by the court . A decision concerning preventive measures could be appealed to a higher court .

Article CARDINAL of the old Code of Criminal Procedure , provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond , in particular when he or she did not have a permanent address or his / her identity could not be established . Further , detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings . Finally , alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society , or that he was a recidivist within the meaning of LAW .

The notion of “ danger to society ” as set out in the Criminal Code related to the assessment of the seriousness of criminal offences and , if the " danger to society " represented by a given offence was serious , this was also an aggravating circumstance which the court had to take into consideration when determining a sentence .

Pursuant to LAW , if there were no special considerations to the contrary , detention on remand should not be imposed or should be lifted , if it involved danger to life or limb or entailed particular hardship for a suspect or his family .

After LAW of DATE entered into force on DATE , grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding , in particular when his identity could not be established or he had no permanent domicile . Secondly , detention could be imposed if there was a reasonable risk that he would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means .

DATE . At the material time there were CARDINAL types of proceedings enabling a detainee to challenge the lawfulness of his detention . Under LAW § CARDINAL of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor ( see above ) . Under LAW § § CARDINAL ( CARDINAL ) and CARDINAL he could appeal against a further decision by that court prolonging his detention at a prosecutor ’s request . Under LAW the detainee could at any time request the competent authority to quash or alter the decision concerning the preventive measure imposed in his case . Such an application had to be decided by the prosecutor or , after the bill of indictment had been lodged with the court competent to deal with the case , by that court , within DATE .


Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

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

The applicant was a shareholder in a company which owned a bar where she worked as a bartender .

The police received an anonymous tip that the applicant ’s bar was selling inaccurate , reduced measures of alcohol . Consequently , on DATE police officer DATE , accompanied by CARDINAL other officers , ORG and ORG , carried out a “ test purchase ” ( kontrolinis pirkimas ) of drinks at the bar . He posed as a regular private customer , in order to establish whether it was serving the correct quantities of alcohol offered by its menu . Having asked for CARDINAL shots of QUANTITY grams of brandy , the applicant served AD shots of CARDINAL and QUANTITY grams respectively .

On the same date police officer ORG filed a record of an administrative offence , concluding that the applicant had thus defrauded the client ( DATE ) in the amount of MONEY ( ‘ LTL’ ; that is MONEY -’EUR’ ) .

On DATE the FAC found the applicant guilty of the administrative offence of defrauding a customer ( Article CARDINAL - CARDINAL of LAW ) . She was fined LTL CARDINAL ( about EUR CARDINAL ) . The court had before it by way of evidence , inter alia , the protocols of the offence and the “ test purchase ” , the testimony of the QUANTITY police officers AD , ORG and ORG , and the explanations of the applicant .

On DATE ORG rejected the applicant ’s appeal against the lower decision , stating inter alia :

“ The ‘ test purchase’ is not an act of a forceful nature . Human rights are not restricted by such an action , and the information received in the execution thereof does not lose its value as evidence just because the execution of a ‘ test purchase’ is not regulated [ by law ] . ”

According to the Government , LAW at the material time provided , insofar as relevant , as follows :

“ Defrauding buyers or clients while weighing , thus increasing the fixed prices and tariffs of goods and services , failing to follow the requirements of the price references established in legal acts , or otherwise defrauding buyers or clients while selling them goods and providing services , shall be punished by a fine of CARDINAL LTL , [ and ] employees of companies , including self - employed natural persons or officials , shall be punished by a fine of CARDINAL LTL ... ”

The factual data of the case is determined by the protocol of the administrative law offence , the photographs , the audio and visual records , the testimony of witnesses , the explanations of the aggrieved party and the offender , the protocol of the seizure of the goods and documents , and by any other documentation . ”

According to the applicant , LAW at the material time provided that , if a person failed to pay an administrative fine , it could be levied on the individual ’s personal property , or replaced by community service . If none of these alternatives were viable , administrative arrest of DATE could be ordered . The place for such an arrest was to be fixed by the police authorities ( LAW ) .

The Law on Police Activities at the material time provided , insofar as relevant , as follows :

“ CARDINAL . The main tasks of the police shall be as follows :

i. the protection of human rights and freedoms ;

iv . the prevention of criminal acts and other violations of law ;

v. the detection and investigation of criminal acts and other violations of law ; ... ”

“ CARDINAL . While investigating a criminal act or possessing information that such an act is being planned , is being carried out or has been carried out , the police officer shall , in the manner and on a basis established by legal acts , have the right :

i. to inspect the economic and commercial , as well as the financial or other activities of enterprises , agencies and organisations of all types , the state of protection of material valuables and goods , [ and ] the legality of their acquisition , production , utilisation and sale ... ;

iii . to ... check measurements ... ; to examine , review and seize ... samples of raw materials , products and goods [ or ] other items ... ;

iv . to obtain information and explanatory statements concerning criminal acts or violations from managers , officers and other persons materially responsible ... ;

vi . to enter the LOC , agencies and organisations of all types during TIME ... ;

vii . within his [ her ] competence , to perform operational activities , investigate criminal cases ... and carry out any other activities provided for by laws and other legal acts . ”