Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE . She lives in LOC .

By a judgment of DATE the ORG dismissed the applicant 's appeal against a secondinstance administrative decision by which she had been refused a DATE social assistance benefit . This judgment , with its written reasons , was served on the applicant on DATE .

On an unspecified later date the applicant was granted , by a decision of an official of the court 's registry , legal aid for the purposes of lodging a cassation appeal with ORG .

By a further decision of a registry official given on DATE the registry requested the local ORG to assign a legal - aid lawyer to the case . That order was complied with on DATE .

On DATE the ORG informed the court that Mr M. S. had been assigned to the case . Mr PERSON was so informed on DATE .

On DATE he examined the case file and found that the time - limit for lodging a cassation appeal had expired on CARDINAL DATE .

By a letter to the court dated DATE the lawyer informed the court that he saw no legal grounds on which he could draft a cassation appeal . He presented a detailed legal analysis of the case and an explanation why he considered that legal grounds for a cassation appeal did not obtain . He further an appeal , having been served with the judgment after the time - limit for its submission had already expired .

Legal aid can be granted under section CARDINAL read together with section CARDINAL of the Act on Procedure before ORG if a party to the proceedings demonstrates that he or she is unable to cover the relevant costs and the case has no prospects of success whatsoever . A decision on the request to grant legal aid can be issued either by the court or by an official from the court registry . Pursuant to section CARDINAL of the Act , a grant of legal aid covers exemption from court fees and the appointment of a qualified representative . A representative is assigned to the case by a subsequent decision of the local ORG or other relevant professional organisation .

Section CARDINAL of the Act on Procedure before ORG provides that a cassation appeal can be lodged against a judgment of the regional administrative court .

Pursuant to section CARDINAL , a cassation appeal should be prepared and lodged with the court by an advocate , legal counsel , a tax adviser or a patent agent . An appeal brought by a party him- or herself shall be rejected . Under section CARDINAL § CARDINAL , the DATE time - limit for lodging a cassation appeal with ORG starts to run on DATE on which a judgment of ORG , together with its written grounds , has been served on the party concerned or his or her representative , if the party is legally represented .

Pursuant to section CARDINAL of the PERSON on the Procedure before Administrative Courts , a party to the proceedings may request retrospective leave to take a procedural step outside the prescribed timelimit . Under section CARDINAL , this step shall be performed simultaneously with the act of lodging the request for leave and within DATE from the removal of the impediment which had prevented the party from taking this step .

In a number of decisions the administrative courts have held that the running of the time - limit for lodging a cassation appeal is not affected in any way by a request for legal aid and its subsequent grant . The time - limit starts to run on the date when the party was served with the decision of the regional administrative court with its written grounds . They referred to what they considered to be the established case - law of ORG ( ORG decision , PERSON referred to as NSA – see decisions ORG , PERSON CARDINAL/CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE , II OZ CARDINAL/CARDINAL of DATE ; II OZ CARDINAL of CARDINAL DATE ; ORG , ORG / Ol CARDINAL of DATE ) .

In its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit by a legally - aided applicant could be admitted for examination .

When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legally - aided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL/CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , PERSON CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .

In a number of its recent decisions ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant case - law of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine that moment in a manner compatible with the effective access to the highest administrative court and equal for parties represented by lawyers appointed under the legal - aid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal ; not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legal - aid lawyer ( I FZ CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; ORG of DATE ; I FZ CARDINAL of DATE ) .

In DATE ORG issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal in civil proceedings . It replied to the question in the affirmative , having noted that issues involved in the grant of legal aid concerned not only the proper administration of justice , but also touched on human rights , and the right of access to a court in particular . The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism .

The court observed that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client 's wishes . The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party , including as to the prospects of success offered by a cassation appeal against a given judgment .

This resolution was summarised in detail in the ORG 's judgment in the case of ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .

On DATE ORG changed its previous position concerning the date on which the timelimit for lodging a cassation appeal started to run . It examined a particular situation where a legal - aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings , finding that a cassation appeal would offer no prospects of success . It held that in such a situation the appellate court was obliged to instruct the defendant that the time - limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer 's refusal and not on DATE when the judgment of the appellate court was served on the defendant himself . It stated that it was not open to doubt that a defendant faced with a legal - aid lawyer 's refusal had a right to take other measures to seek legal assistance necessary for an effective lodging of a cassation appeal ( III KZ CARDINAL/CARDINAL ) .

ORG reiterated its position in a decision of DATE and in a number of similar decisions given in DATE . It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time - limit in such situations was calculated , but the strand of the case - law launched by the decision given in DATE was both dominant and correct , and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to ORG within a reasonable time - frame ( II KZ CARDINAL/CARDINAL ) .


The applicant , an NORP citizen born in DATE , lives in GPE where he practises the profession of accountant and financial consultant ( ORG ) .

On DATE , an CARDINAL-year - old woman , Mrs. PERSON , acting through a lawyer , reported to the GPE public prosecutor 's office that DATE during a quarrel Mr. PERSON had thrown at another person , Mrs. PERSON , a bunch of keys which had then struck her ( Mrs. PERSON ) , causing her injury . In her letter headed " request to inquire into a set of facts " , she called on the prosecutor 's office to take criminal proceedings against the applicant and stated that she would be a civil party claiming damages in any such proceedings ( Privatbeteiligte ) .

The federal police at GPE , instructed on DATE by the public prosecutor 's office to investigate whether or not a punishable act had been committed , interrogated several persons cited by Mrs. Proxauf at witnesses and , on DATE , the applicant himself . He denied the facts alleged against him and denounced the complaint as being knowingly false . After pointing out that the object alleged to have caused the injury was , in fact , an envelope containing a single key , he asserted , amongst other things , that he had not thrown it : he had wanted to give it back to Mrs. PERSON , but it had slipped out of his hand and touched her arm . Mrs. PERSON , he said , had picked it up and thrown it , just above his head , over a distance of QUANTITY in the direction of his house . Mr. PERSON 's wife and CARDINAL employees had written a note setting out what they remembered of the incident . This note , he stated was available to the court , as an item for inclusion in the case - file . The police accepted the note , but did not question Mrs. PERSON or the employees .

On DATE , the public prosecutor 's office , to which the file had been returned , asked ORG ( Bezirksgericht ) to procure a medical report on the seriousness of Mrs. PERSON 's injury . The ORG registered the case on DATE ; under the heading " punishable act " it specified " section CARDINAL of LAW " , which is a provision , amongst others , dealing with the infliction of bodily harm .

Following receipt of the doctor 's opinion , ORG assessed the costs of that opinion on DATE . The district prosecutor ( GPE ) requested ORG on DATE to " decide that the conditions of section CARDINAL of LAW [ were ] fulfilled " ( see paragraph CARDINAL below ) . The ORG acceded to the request on DATE by inserting in the file a note worded as follows : " B " ( PERSON , decision ) : " ... the proceedings are closed pursuant to section CARDINAL par . CARDINAL of LAW " ; in addition , it added to the register , under the heading " date and manner ... of disposal of the matter " ( GPE ) : " CARDINAL . CARDINAL . Section CARDINAL par . CARDINAL of LAW " .

On DATE , an application was made to ORG by Mr. PERSON who , after consultation of the file on his case , had come to learn on DATE of the submissions made by the public prosecutor 's office on DATE ; however , like that office , he was not aware of the decision of DATE . He denied that he had injured Mrs. PERSON , whether by throwing a bunch of keys or otherwise , and contested the doctor 's findings , claiming in particular that the latter had based his opinion on information that was contradicted by the material in the case - file ( aktenwidrig ) . He called on ORG either to acquit him after trial or to terminate the proceedings pursuant to section CARDINAL par . CARDINAL of LAW ( see paragraph CARDINAL below ) . He requested that , if ORG should choose the first alternative , fresh medical evidence be taken forthwith .

On DATE , ORG notified an associate of the applicant 's lawyer that the proceedings had been terminated - on an unspecified date - in pursuance of section QUANTITY Following a request made by Mr. PERSON on DATE , the ORG served on him on DATE a decision dated DATE which reads as follows ( translation from NORP ) :

" Decision

In the criminal case ( ORG ) against Dr. PERSON for the offence of inflicting bodily harm , within the meaning of LAW of LAW , ORG of Innsbruck has decided as follows upon the request of the public prosecutor :

The conditions of section CARDINAL of LAW are met ; the proceedings are terminated in accordance with section CARDINAL par . CARDINAL of LAW .

Reasons

By letter of DATE , the civil party PERSON informed the public prosecutor of an incident involving herself and the accused ( PERSON ) which had happened on DATE . She alleged that the accused had caused her an injury , namely a bruise on her left arm and another below her left breast , with a bunch of keys . The investigations made thereupon and the expert opinion have shown ( ergeben ) that in the course of a quarrel the accused flew into a rage and threw an envelope containing a key in the direction of Mrs. PERSON who however managed to avoid the missile , while the DATE PERSON standing behind her was hit . The key first struck the back of the right hand , causing a superficial abrasion , and then bounced against the left side of the above - named person 's chest . No injury could be established on the chest .

The injury found ( festgestellte ) is insignificant ( geringfügig ) as it does not exceed the DATE limit ; the fault ( GPE ) of the accused may be described as insignificant ( geringfügig ) , and his character gives cause to expect that he will conduct himself properly in future .

Therefore the conditions of section DATE of LAW are met , justifying the above decision .

ORG of GPE , Section CARDINAL , DATE . "

The applicant challenged this decision before ORG ( PERSON ) of GPE which , on DATE , declared the appeal ( Beschwerde ) inadmissible on the ground that section CARDINAL par . CARDINAL of LAW limited the right of appeal to the prosecutor ( Ankläger ) .

On DATE , a little more than six months after ORG had accepted the application , the ORG ( the public prosecutor attached to ORG ( Oberster Gerichtshof ) filed , with ORG , pursuant to section CARDINAL par . CARDINAL of LAW , an application for annulment of the decision dated DATE in the interests of the proper application of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) .

The ORG drew a distinction between the termination of proceedings by virtue of section CARDINAL par . CARDINAL and their termination by virtue of section CARDINAL par . CARDINAL of LAW . The former provision applied when , prior to the trial hearing , the court was satisfied that the conditions of section CARDINAL of LAW were met ; where , however , no sufficient grounds existed for continuing with the prosecution , the public prosecutor should close the file ( zurücklegen ) on the complaint and the investigating judge should bring the proceeding to an end in accordance with the general rules laid down in LAW . CARDINAL and CARDINAL par . CARDINAL . In both cases , he said , the decisions would be taken without the formal hearing of evidence ( GPE ) , something which , as followed in any event from LAW CARDINAL ( article CARDINAL ) of LAW CARDINAL par . CARDINAL ( article DATE ) being a provision that has constitutional status in NORP law - , should in principle precede any finding of guilt ( NORP ) .

Thus , in the submission of the ORG , section CARDINAL of LAW was not appropriate where , on the basis of the complaint or the preliminary enquiries , no offence could be established on the facts or existed in law . On the other hand , for CARDINAL to apply it was not essential for there to be proof of guilt , but merely a suspicion ( PERSON ) such as would warrant the opening of preliminary enquiries or an application seeking the imposition of a penalty . A court decision terminating proceedings in accordance with LAW could therefore only be grounded on a " suspected state of affairs " ( PERSON ) as disclosed by the case - file : the court had to limit itself to ascertaining whether there existed against the suspect sufficient suspicion for proceeding with the prosecution and whether , on the hypothetical assumption that the suspect had indeed committed the alleged offence , he was or was not entitled to benefit from the ground for exoneration ( PERSON ) provided for under section CARDINAL of LAW . It seemed inadmissible to state in the reasons for such a decision conclusions on the objective and subjective aspects of the act and to take it as proved against the suspect that he had engaged in a certain course of conduct constituting a punishable act . Such an assertion in the reasons for a decision terminating proceedings amounted to a finding of guilt without any formal taking of evidence at a public hearing , which would be in violation of LAW . CARDINAL ( article LAW ) of the Convention .

In the instant case , said the ORG , ORG had clearly indicated that it accepted the account of the incident given by Mrs. PERSON and corroborated by the police investigations and by the medical evidence , and that it disbelieved the applicant 's denials which were mainly concerned with what had happened during the incident ( GPE ) . He submitted that as the decision in issue was not capable of causing Mr. PERSON any direct prejudice , a finding that it had infringed the law would be sufficient . The ORG therefore moved ORG to hold that the Innsbruck ORG decision dated DATE was , as regards its reasoning , contrary to the law , that is to say section CARDINAL par . CARDINAL of LAW read in conjunction with LAW . CARDINAL and CARDINAL ( article DATE , article DATE ) of the Convention .

On DATE , Mr. PERSON submitted to ORG certain observations on the application for annulment . Whilst welcoming the initiative taken by the ORG , he considered that the latter had disregarded essential elements of violation of the law inherent in the impugned decision . In particular , he disputed the interpretation given by the ORG to section CARDINAL of LAW ; in the applicant 's view , this section in fact required the court to make a positive finding of an act fulfilling the description of a criminal offence . He relied on section CARDINAL par . CARDINAL of LAW which places the judge under a duty to satisfy himself , before bringing the proceedings to a close , that the conditions stipulated under LAW of LAW are met ; in order to do this , so the applicant contended , the judge must have regard to all the evidence adduced and not simply to the evidence supporting the suspicion .

Mr. PERSON criticised ORG for having failed to take into consideration evidence in his favour , for having declined to hear witnesses requested by him and for not having given him the opportunity to challenge the expert medical opinion ; he alleged a breach of LAW . CARDINAL and CARDINAL ( d ) ( article DATE , article CARDINAL - CARDINAL-d ) of the LAW . He accordingly called on ORG to find infringements of the law other than those pleaded by the ORG and to order that the proceedings be terminated under section CARDINAL par . CARDINAL of LAW .

ORG rejected the application for annulment on DATE .

In the opinion of ORG , the application of section CARDINAL par . CARDINAL of LAW did not place the suspect in a worse position than where the case is closed for some other reason ( for example , in pursuance of LAW . CARDINAL of LAW ) , that is to say , a closure of the case which , in general , does not involve establishing the innocence of the person concerned . LAW is not at all meant to be used to terminate proceedings when it is certain that an offence can not be proved on the facts or does not exist in law . On the other hand , CARDINAL does not demand verification of the objective and subjective elements of the offence ; indeed , this would be contrary to the main object of the section , namely procedural economy ( PERSON - the principle that the court 's time should be usefully employed ) . The person concerned thus has no right to have doubtful issues in the case clarified .

Section CARDINAL simply requires the existence of a suspicion . Even if a court describes the suspect 's conduct in terms of findings of fact , any statements to this effect could not be regarded as judicial findings ( Konstatierungen ) , within the meaning of section CARDINAL par . CARDINAL , no . CARDINAL , of LAW , with the attendant legal consequences . In point of fact , by reason of its basic legal character , any decision taken in pursuance of CARDINAL of LAW can only be understood in one way : further clarification of , and possible prosecution in , a case which is already recognisable as being a trifling matter is to be avoided , not least in the interests of procedural economy . Howsoever the reasons given therefore may be worded , any such decision contains - if only because of its very nature - a negative ruling on the merits of the case and does not at all amount to a declaration , equivalent to a finding of guilt , that the suspect has ( unlawfully and with criminal intent ) committed a punishable act .

It would certainly have been preferable had ORG stated this explicitly and without ambiguity in the decision being challenged . Nonetheless , the more or less apposite choice of wording in the reasoning could not deprive the reasoning of the specific significance it had as a result of the nature of the decision given and could not , therefore , in any way adversely affect the person concerned .

Since legal proof of the suspect 's guilt is not the object pursued under section DATE of LAW , no question arises as to the extent to which a decision given in pursuance of this provision has or has not been preceded by proceedings complying with the requirements of LAW . CARDINAL ( article CARDINAL ) of the Convention .

The judgment of ORG was reproduced in an NORP legal journal but the applicant 's identity was not revealed . The accompanying commentary on the judgment referred to an article entitled " A trivial affair leads to an application against GPE " ( " PERSON Klage gegen PERSON " ) , which had been published in a newspaper in DATE and which did disclose his name , profession and place of residence .

The professional association to which Mr. PERSON belongs has not instituted any disciplinary proceedings against him in respect of the facts underlying Mrs. PERSON 's complaint .

According to Mr. PERSON , the file on his case , including the Innsbruck ORG decision dated DATE , has been produced in evidence in a civil action between himself and Mrs. PERSON in the matter of an easement ( GPE ) ; an order issued by the competent civil court in GPE took the case - file into consideration .

The costs of the procedure , and notably the costs of the medical opinion , were borne by the ORG . The applicant himself had to pay his lawyer 's fees and his own expenses .

In GPE , the public prosecutor ( Staatsanwalt ) is required by law to inquire into the correctness of any report ( ORG ) of an offence for which a prosecution must be brought as a matter of course ( section CARDINAL par . CARDINAL of LAW ) . He is obliged , as a matter of course , to prosecute in respect of any offence which appears to him to have been committed and where it is not a precondition of investigation and punishment that an application be made by the victim or some other person concerned ; it is his duty to cause the competent court to take the necessary measures of investigation and punishment ( section CARDINAL par . CARDINAL ) .

In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file ( GPE ) on a complaint , the public prosecutor may have preliminary enquiries ( FAC ) carried out by the investigating judge , the district courts and the police authorities ( section CARDINAL par . CARDINAL ) .

Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution , he shall either apply for the institution of a preliminary investigation ( Voruntersuchung ) or file a formal accusation ( PERSON , section CARDINAL par . CARDINAL ) . However , in district court proceedings there is no formal process of investigation and no special procedure of accusation : all that is required is a written or oral application from the district prosecutor seeking the imposition of a penalty on the person concerned ( Antrag auf gesetzliche ORG , section CARDINAL par . CARDINAL ) .

Where sufficient grounds for prosecuting the individual in question are lacking , the public prosecutor shall take no further action on the complaint and shall transmit the file to the investigating judge , together with a statement to the effect that he sees no reason to continue with the prosecution ; the judge must then terminate the preliminary enquiries ( section CARDINAL par . CARDINAL ) . This provision applies , mutatis mutandis , to district court proceedings ( section CARDINAL par . CARDINAL ) .

Under the terms of section CARDINAL par . CARDINAL of LAW , the public prosecutor may alternatively ask the investigating judge to hold that the conditions of section CARDINAL of LAW are met . In cases before a district court , the decision terminating proceedings is governed by section CARDINAL par . CARDINAL of LAW , which provides ( translation from NORP ) :

" If the court is satisfied that the conditions laid down in section DATE are met , it shall terminate the proceedings by a decision . The public prosecutor may lodge an appeal against any such decision ... "

Section CARDINAL of the Penal Code reads as follows ( translation from NORP ) :

" ( CARDINAL ) Where an act requiring public prosecution as a matter of course involves liability to no more than a fine , a custodial sentence not exceeding one year or both , the act shall not be punishable ( strafbar ) if

the guilt ( Schuld ) of the author of the act is slight ( gering ) ;

the act has had no or only trifling consequences , and if addition

punishment is not necessary in order to deter the author of the act or other persons from committing criminal offences .

( CARDINAL ) The decision whether or not the conditions of paragraph ( CARDINAL ) hereof are met shall be taken by the court ; where the court decides in the affirmative , it shall bring the proceedings to a close no matter what stage they may have reached . "

Section CARDINAL was introduced into the new NORP Penal Code which entered into force on DATE , and is aimed at avoiding criminal trials in trivial cases , notably for reasons of procedural economy ; the section is headed " acts not meriting punishment " ( " mangelnde GPE der Tat " ) . ORG and the great majority of legal commentators regard it as a clause which is not concerned with mere procedure but which provides a substantive ground for exonerating the accused ( sachlicher PERSON ) .

A decision taken by a court in pursuance of section DATE to terminate proceedings is not entered in the criminal record of the person concerned . The file relating to a case closed in this manner may be used in other legal ( and disciplinary ) proceedings , as may , in principle , the case - file in any legal action whatever its outcome .

According to Mr. PERSON , anyone may go to the court and consult the register of cases and the register of names and , at least as far as the former is concerned , ask for an extract . The Government contested these assertions , save apparently as regards the possibility of having access to the register of names . The latter simply contains a reference to the register of cases without giving any indication as to the nature of the litigation .

As a result of the present case , CARDINAL circulars were issued on DATE and CARDINAL March DATE by the relevant NORP authorities drawing the attention of the courts to the problems raised by the application of CARDINAL of LAW and to the need for a careful wording of the relevant decisions ( see paragraphs CARDINAL of the report of the Commission ) .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant , a NORP citizen living in GPE , GPE , and PERSON , an NORP citizen living in GPE , are the parents of a daughter who was born out of wedlock on DATE . The latter was registered with the registry of births , deaths and marriages as the child of the applicant and Mr P. Since the child ’s birth , PERSON has not assumed any parental duties .

The applicant instituted proceedings against PERSON in ORG , claiming maintenance for her minor daughter .

On DATE ORG ordered the defendant in absentia to pay maintenance in an amount equivalent to QUANTITY ( PLN ) ( MONEY ( ORG ) ) per month from DATE , plus statutory interest should he default . This decision became final on DATE .

Having received no payments , on CARDINAL DATE the applicant sought to avail herself of ORG on the Recovery Abroad of Maintenance of DATE . She applied to ORG ( acting as ORG ) for the recovery of maintenance through ORG ( acting as ORG ) , as provided for by that convention .

In her request , the applicant first asked for payment of the sum due of ORG CARDINAL per month plus default interest which , by DATE , came to a total of PLN MONEY ( approximately ORG CARDINAL,CARDINAL ) . The applicant also requested an increase in maintenance from PLN CARDINAL per month to PLN CARDINAL ( approximately EUR CARDINAL ) per month , on the grounds that she had learnt that PERSON was earning MONEY per month and that the costs of bringing up the child were constantly rising . Finally , she asked the NORP authorities to start judicial proceedings against PERSON to execute the decision of ORG , and to recover her court costs if PERSON refused to comply with the judgment .

On CARDINAL DATE ORG sent the applicant ’s request to ORG .

In a letter sent to ORG on DATE , ORG confirmed that it had received the applicant ’s request on DATE and had referred it to ORG . It added that , in so far as the existing decision obliged PERSON to pay ORG CARDINAL per month , a different amount could not be claimed . On DATE ORG sent another letter to ORG informing it that ORG had been appointed to initiate proceedings for the execution of the decision .

On DATE ORG informed ORG that he had started these proceedings in DATE .

On DATE ORG held a hearing at which it decided that the parties had to make their final submissions on DATE . On that date the court adjourned the case to DATE and reserved judgment , which , by law , could not be delivered before the expiry of a period of DATE . On DATE ORG declared the GPE ORG decision enforceable in GPE . On DATE ORG invited the debtor to comply with his obligations . On DATE the decision of ORG became final .

On DATE the NORP ORG asked the NORP authorities for an updated calculation of the debt , which the NORP authorities furnished on DATE .

On DATE the Prefecture of Terni informed the Ministry that on DATE and DATE it had formally invited the debtor to pay the amounts due . As he did not do so , ORG was asked on DATE to start enforcement proceedings . The first attempt at enforcement was unsuccessful , as PERSON had no possessions . On DATE a new set of enforcement proceedings – started on DATE led to the seizure of property and a priority notice being entered in the land register . According to information submitted by the Government , PERSON lawyer made an informal request to be allowed to pay the arrears in instalments , but did not file a formal request with the courts .

The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on DATE by ORG on Maintenance Obligations . This conference had been convened by ORG of ORG ( see ORG , Treaty Series , DATE , pp . CARDINAL and CARDINAL - CARDINAL ) . The convention came into force on CARDINAL DATE . GPE and GPE ratified it on DATE and CARDINAL DATE respectively . The relevant provisions of the convention read as follows :

“ CARDINAL . The purpose of [ the ] Convention is to facilitate the recovery of maintenance to which a person , hereinafter referred to as claimant , who is in the territory of CARDINAL of the Contracting Parties , claims to be entitled from another person , hereinafter referred to as the respondent , who is subject to the jurisdiction of ORG . This purpose shall be effected through the offices of agencies , which will hereinafter be referred to as ORG .

The remedies provided for in this Convention are in addition to , and not in substitution for , any remedies available under municipal or international law . ”

“ CARDINAL . Each Contracting Party shall , at the time when the instrument of ratification or accession is deposited , designate CARDINAL or more judicial or administrative authorities , which shall act in its territory as ORG .

Each Contracting Party shall , at the time when the instrument of ratification or accession is deposited , designate a public or private body , which shall act in its territory as ORG . ”

“ Where a claimant is on the territory of CARDINAL ORG , hereinafter referred to as the ORG of the claimant , and the respondent is subject to the jurisdiction of ORG , hereinafter referred to as the ORG of the respondent , the claimant may make application to a ORG in GPE the claimant for the recovery of maintenance from the respondent . ”

“ The Transmitting Agency shall transmit the documents to ORG of ORG respondent , unless satisfied that the application is not made in good faith . ”

“ The Transmitting Agency shall , at the request of the claimant , transmit , under the provision of LAW , any order , final or provisional , and any other judicial act , obtained by the claimant for the payment of maintenance in the competent tribunal of ORG , and , where necessary and possible , the record of the proceedings in which such order was made . ”

“ CARDINAL . The Receiving Agency shall , subject always to the authority given by the claimant , take on behalf of the claimant , all appropriate steps for the recovery of maintenance , including the settlement of the claim and , where necessary , the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance .

The Receiving Agency shall keep ORG currently informed . If it is unable to act , it shall inform ORG of its reason and return the documents .

Notwithstanding anything in this Convention , the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the ORG of the respondent , including its private international law . ”

Section CARDINAL of Law no . CARDINAL of DATE indicates the cases in which a judgment delivered by a foreign court will be recognised in GPE without recourse to a specific procedure . Section CARDINAL contains provisions on the execution of judgments and decisions following the voluntary assumption of jurisdiction and in cases of refusal to comply .

This Act , which came into force on DATE , completes Article CARDINAL of LAW , which provides that the right to have proceedings conducted within a reasonable time shall be guaranteed by legislation . The new LAW enables a claim for compensation to be made in ORG , which will apply the case - law of ORG , by anyone who has sustained pecuniary or non - pecuniary damage as a result of the inordinate length of proceedings .

“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable time’ requirement in LAW , shall be entitled to just satisfaction .

NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary sitting in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is pending .

NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing before the relevant chamber shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG [ Avvocatura dello Stato ] DATE prior to the date of the hearing before the ORG .

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up until DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on application by the parties .

The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

“ A claim for just satisfaction may be lodged while the proceedings in respect of which a violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

“ If the court decides to grant an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants concerned by the proceedings . ”

“ CARDINAL . Within DATE [ extended to CARDINAL by PERSON no . DATE ] after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

NORP The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”


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

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

The applicant was placed in care with ORG ( “ the ORG ” ) from DATE as his mother could not cope . DATE until DATE he remained under the ORG 's care , with occasional periods with his mother . He was placed in various homes operated by ORG of accommodating children in their care .

From DATE until DATE , the applicant was placed at FAC , Children 's Home , GPE which was run by PERSON with the assistance of her husband . During his residence there he was subjected to acts of cruelty which damaged his mental and physical health . Amongst other incidents , PERSON and PERSON tied the applicant to chairs outside the LOC at night , restrained the applicant by tying him down with a sheet so that on occasion he could not avoid urinating , subjected him to racial abuse , denied him proper quantities of food such that he became malnourished , neglected his physical condition such that he developed gangrene of the toes , allowed their own children to assault the applicant and subjected him to psychological and sexual abuse .

On DATE , the applicant was admitted to hospital where he was observed to be malnourished , dirty and with gangrene of the toes and to exhibit disturbed behaviour .

Since then the applicant continues to suffer from personality disorders , post traumatic stress disorder , panic attacks and depression and permanent physical injury to his foot .

In DATE , the applicant requested the ORG to provide him with his social records as the only coherent record of his childhood and early development . His request was refused . In DATE , the applicant sought access to his records through his then solicitors . After a meeting with a social worker very limited information was provided and no copies provided .

On DATE , the applicant 's present solicitors applied to ORG applicant 's social services ' records .

Following further approaches , the ORG responded to a letter of DATE by refusing the request .

On DATE , the applicant 's solicitors issued an application for pre - action discovery to compel the ORG to release the records . The application was opposed by the ORG and adjourned pending the judgment of this ORG in PERSON and others v. the GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL ) .

On DATE , the ORG provided brief details from the applicant 's file , setting out the periods and locations where he was in their care . Following the judgment in PERSON ( cited above ) , the ORG maintained their opposition to discovery .

DATE the applicant 's solicitors repeatedly sought disclosure of his records . In DATE they sought an appointment with the ORG 's legal advisor which was refused .

On DATE , in correspondence with the applicant 's solicitor , ORG highlighted LAW DATE under which the applicant would have a right of access to his social service records .

On DATE the ORG stated that they were prepared to allow the applicant 's solicitors access to the applicant 's social services records . In DATE the ORG commenced the procedure of disclosure which took some time to complete .

On DATE , the applicant issued proceedings in the ORG seeking damages from ORG for the psychological and physical injuries which he suffered at FAC . During the course of these proceedings , further documentation relevant to the applicant 's childhood and early development was disclosed .

On DATE , the applicant 's personal property contained in his social service records was released to him , namely , CARDINAL photographs , correspondence between him and his siblings and CARDINAL swimming certificates .

On DATE , ORG found that the applicant had suffered prolonged cruelty and neglect and acts of physical and sexual abuse from PERSON and PERSON and that the ORG had been in breach of its duty to protect his well - being . The judge awarded GBP CARDINAL covering the applicant 's psychological injuries and the injury to his toes and GBP CARDINAL to cover need for private treatment and taking into account a discount to reflect the factors which were not attributable to the ORG .

ORG in ORG ( DATE ) held that ORG , in refusing access to the social services records , had correctly balanced the public interest in maintaining an efficient child - care system with the individual 's interest in obtaining access to records , and that it was not necessary for the court to review the records in question in order to so decide .

In DATE a binding circular , PERSON , was issued setting out the principles to be applied by local authorities in permitting access to their care records . Access to records was , in principle , to be permitted subject to necessary exceptions ( such as the preservation of third party confidences and the protection of sources ) .

ORG Regulations DATE both entered into force on DATE . The LAW and the LAW gave subjects the statutory right to know what was recorded about them in manually maintained records held by the local authority for the performance of social service functions . A number of exceptions were retained for the preservation of third party confidences and the protection of sources , but there was a right of review ( and , subsequently , of judicial review ) of a refusal of access . LAW did not , however , apply to records created before DATE .

Circular GPE was issued to provide guidance to the local authorities on the implementation of LAW and LAW . The previous circular ( LAC(CARDINAL)CARDINAL ) was cancelled and LAW to the new circular pointed out that , while there was no obligation to furnish pre - DATE information , “ there is likely to be significant advantage in authorities making available as much information as possible . This could lead to greater clarity and understanding of an individual 's background . ”

On DATE LAW DATE ( “ the DATE LAW ) came into force and repealed LAW , LAW and circular GPE . It provided a statutory right of access for a “ data subject ” to information held about him in care records and other personal files ( both manual and electronic ) regardless of the date when the information was recorded , together with a right of appeal to the domestic courts or to ORG Commissioner if access were refused , or where a contributor or a relevant third party had not consented .


CASE OF JASAR v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Art. 3 (alleged ill-treatment);Violation de l'Art. 3 (effective investigation into these allegations);Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , in the former GPE .

On DATE , at TIME , the applicant and his friend PERSON , both citizens of the former GPE of GPE ethnic origin , were having a drink in a downtown bar in PERSON . On the other side of the bar , CARDINAL men were gambling . The man who lost pulled out a gun , fired several shots into the air and CARDINAL into the ground , and asked for his money back . All those in the bar , including the applicant and his friend , tried to leave , but were ultimately unable to do so because of the crowd that had already blocked the exit .

In the meantime , QUANTITY police officers arrived at the scene of the incident and turned to the applicant and his friend . CARDINAL of the police officers caught the applicant by his hair and pushed him against the police car , while another officer grabbed his friend 's arm and twisted it behind his back . Shortly afterwards , the police took them to the local police station , where they were locked up in CARDINAL separate cells .

The applicant maintains that TIME one of the police officers concerned came to the cell where he was being held and told him to bend over . The applicant alleges that the police officer kicked him in his head , which caused bleeding from his mouth . As he fell down on the floor , the police officer grabbed him by his hair and allegedly started hitting him savagely with his fists and a truncheon . The applicant further maintains that another police officer , who was allegedly beating his friend in the other cell , came to his cell later and continued to batter him until TIME They were then taken to an office , where they were questioned about the incident . After drawing up a report , the police released the applicant and his friend at TIME DATE .

Following his release , the applicant went to ORG at ORG and asked for medical assistance . A medical certificate issued on DATE by the doctor who had examined him indicated that the applicant had sustained several bodily injuries which were described as slight . In addition , the certificate stated that the applicant had declared that he had been beaten at the police station with a truncheon and kicked all over his body . The medical certificate did not specify the possible origin of the injuries , their timing or the way in which they had been inflicted .

The applicant submitted an excerpt from a newspaper together with his statement concerning the incident in which he had made no allegations of being beaten at the scene in the bar . A photograph of him having a swollen right eye also appeared in the newspaper .

The applicant and his friend have never been charged with any offence in relation to the incident at issue .

On DATE , CARDINAL , the applicant and PERSON arrived at the café bar ORG . They joined a group watching people gambling with dice . At TIME on DATE one of the losing gamblers claimed that the dice had been fixed and demanded his money back . An argument started in which the applicant and PERSON participated . When a certain ORG took out a pistol and fired , ORG tackled him and the gun fell on the floor . At TIME the police came to the scene after the shooting incident had been reported to them . Meanwhile , there was a certain disruption inside the bar , after which some people went outside . The police 's inspection of the scene lasted until TIME

The police sought to take GPE , an individual reported to them , into custody . The applicant and PERSON , who had taken the side of GPE in the dispute , obstructed the police 's efforts , allowing PERSON to escape . PERSON also assaulted another person on the scene . The police then decided to take all those present , including the applicant , to the police station .

At TIME the applicant and PERSON were interviewed by the police . They were released at TIME No force was used against the applicant during the questioning , nor did he make any complaint at the police station concerning any abuse by the police or any injury he had sustained . No charges were subsequently brought against him .

On CARDINAL DATE the applicant , through his legal representative , filed a criminal complaint ( кривична пријава ) with ORG ( Основно Јавно Обвинителство Штип ) against an unidentified police officer under LAW ( see “ Relevant domestic law ” ) . In the complaint , the applicant set out a factual account of the incident and alleged that the officer concerned had ill - treated him while he was in police custody . He requested the public prosecutor 's office to initiate proceedings as provided for by law . The medical certificate of DATE was produced in support of his complaint .

On CARDINAL DATE the applicant 's legal representative wrote a letter to the PERSON public prosecutor , stressing that his criminal complaint had been filed DATE previously and that since then he had received no information and had no knowledge as to whether any steps had been taken by the public prosecutor 's office to identify the offenders and to initiate a formal investigation .

As there was again no reply , on DATE the applicant 's lawyer sent another letter to the public prosecutor , requesting information about any action undertaken concerning the applicant 's case . He made no reference to the civil proceedings that had already finished and did not inform the public prosecutor of the identity of the police officers concerned , which had been determined in the course of the civil proceedings .

In a letter dated DATE the PERSON public prosecutor replied that his office had responded to the criminal complaint at issue by officially requesting additional inquiries from ORG ( “ the Ministry ” ) . However , to date his office had received no information from ORG .

As the applicant has not received any fresh information since then as to any action taken by the relevant prosecuting authorities , the proceedings concerning his criminal complaint are still pending .

On CARDINAL DATE the applicant submitted a compensation claim against the respondent ORG and ORG for the non - pecuniary damage he had suffered as a result of the violence to which he had been subjected while in police custody . He made the same statements as in the criminal complaint , namely that after the police officers had arrived at the bar , one of them had grabbed him by his hair and pushed him against the police car ; that at the police station he had been told to do push - ups and had been subsequently kicked in the head , which had caused his mouth to bleed ; and that he had been punched and beaten with a truncheon all over his body .

The ORG stated that in DATE , following the bringing of the civil action , ORG had requested information from ORG concerning the incident . In DATE the PERSON police submitted a report based on the official notes and records , stressing that the police had not used force at the station and had intervened and placed the applicant in the police van when he and his friend had resisted them at the scene and his friend had attacked another person . They added that no force had been used against the applicant , nor had he submitted any complaint concerning the injuries allegedly sustained during the police intervention at the bar . Among the documents accompanying this report , ORG provided the official police record of the statements given by the applicant while being questioned . No complaints of alleged abuse or injuries had been noted in that record .

On DATE ORG Instance dismissed the applicant 's claims as ill - founded . The court heard evidence from PERSON and several police officers who had participated in the police raid on TIME of the incident . It also heard evidence from a specialist doctor , who provided his expert opinion about the applicant 's injuries indicated in the medical certificate . As stated by him , the following injuries had been observed : a blow on the back of the head ; contusion of the left eye ; swollen and bruised left cheek ; bruise on the lower part of the chest and punch on the right hand . He stated that the injuries had been probably inflicted by a blunt object such as a hand or a tool and that no special treatment had been necessary for the applicant 's recovery . The court also admitted as evidence the medical certificate of CARDINAL DATE and the photographs showing the applicant 's condition after the incident .

The court found it undisputed that the applicant had been injured , but stated that there was no evidence that the injuries had been inflicted as a result of police brutality . It established that the applicant had sustained certain injuries , but concluded that it could not be inferred under what circumstances they had been inflicted , or by whom or when . On the basis of the police officers ' statements , the court further established that the applicant had sustained some injuries to his head and eye before he had been taken to the police station . It found that the injuries had either been sustained during the fight in the bar ( while the applicant was assisting the escape of a person who had fired a gun and caused a disturbance ) or had resulted from the legitimate action of police officers in trying to restrain the applicant who had resisted arrest . 's argument that he had not been able to undergo a medical examination immediately after being released from custody owing to his lack of financial means , since this was contradicted by the medical certificate dated DATE .

On DATE the applicant appealed .

On DATE ORG dismissed the applicant 's appeal as ill - founded . It stated that the lower court had indisputably found that the applicant had sustained certain injuries before he had been taken into police custody and that the police officers had not inflicted them . It concluded that the lower court had reasonably found that the ORG could not be held liable and had dismissed the applicant 's claim for damages .

On DATE the applicant requested the public prosecutor to lodge with ORG an application for the protection of legality ( барање за заштита на законитоста ) . Referring to the outcome of the civil proceedings , he did not provide the public prosecutor with the identity of the police officers who had allegedly beaten him and who had given evidence in the course of those proceedings .

On DATE the public prosecutor rejected the applicant 's request .

Section CARDINAL of LAW ( Кривичен законик ) provides that a person who , in the performance of his duties , mistreats , intimidates , insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of DATE .

The relevant provisions of LAW ( “ LAW ” ) ( ORG за кривичната постапка ) may be summarised as follows :

Section CARDINAL provides that criminal proceedings must be instituted at the request of an authorised prosecutor . In cases involving offences subject to ex officio prosecution by the ORG or on an application by the injured party , the authorised prosecutor is the public prosecutor , whereas in cases involving offences subject to merely private charges , the authorised prosecutor is the private prosecutor . If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings , his role may be assumed by the injured party , acting as a subsidiary prosecutor under the conditions specified in the LAW .

Section CARDINAL sets forth the duty of the public prosecutor to proceed with a criminal prosecution if there is sufficient evidence that a crime subject to ex officio prosecution has been committed ( the principle of legality ) .

In accordance with section DATE , in discharging this statutory right and duty , the public prosecutor is empowered to take measures to detect crimes , to identify their perpetrators and to coordinate preliminary criminal inquiries ; to request the opening of an investigation ; to file and to defend an indictment or application for prosecution before the competent court ; to lodge appeals against decisions which have not become final ; and to make use of extraordinary judicial remedies against final court decisions .

Section CARDINAL provides , inter alia , that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution , he shall notify the injured party of his decision within DATE . He shall also inform the injured party that that party may conduct the prosecution himself .

Section CARDINAL ) provides that the public prosecutor is to dismiss the criminal complaint if it transpires that the act reported is not a criminal offence subject to ex officio prosecution ; that the statute of limitations has expired ; that the offence has been amnestied or pardoned or that other circumstances exist which preclude prosecution ; or that there is no reasonable suspicion that the person in question committed the offence . The public prosecutor shall notify the injured party of the dismissal of the complaint and of the grounds for the dismissal within DATE ( section DATE ) and , if the complaint was filed by ORG , he shall notify the latter accordingly .

Section CARDINAL(CARDINAL ) provides that if the public prosecutor is unable to establish , from the criminal complaint , whether or not the allegations set out in the complaint are credible , or if the information given in it is insufficient for him to take a decision on whether to request the opening of an investigation , or if he has merely learned of rumours that a crime has been committed , particularly where the perpetrator is unknown , he shall , if he can not do this alone or through other authorities , request ORG to gather the necessary information and to take other measures to investigate the offence and identify the offender . The public prosecutor may at any time require the ORG to inform him about the measures taken .

Section CARDINAL provides , inter alia

LAW provides that an investigation is to be opened in respect of a particular person where a reasonable suspicion exists that he has committed an offence .


VEFA HOLDING SH.P.K. AND ALIMUCAJ v. ALBANIA

Ján Šikuta;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant company , ORG . , is a limited liability company , currently in compulsory administration , whose registered office is in GPE , GPE . The application was introduced on its behalf by Mr PERSON , an NORP national who was born in DATE and is serving a prison sentence in Peqin prison ( “ the individual applicant ” ) . Mr PERSON was the applicant company ’s president and sole shareholder until it was placed in compulsory administration .

The applicants were represented before the ORG by PERSON . ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

NORP The individual applicant was the owner of the applicant company , which was initially founded as a trading company on CARDINAL DATE . The scope of its activity progressively expanded over DATE , as a result of which it changed its registered name and scope of activity on DATE , DATE and DATE respectively , to be finally registered and known as “ ORG . ” Owing to the unwillingness of the commercial banks to provide financial resources for its expansion , the applicant company entered into loan agreements ( kontratë huaje ) with individuals . It would appear that from DATE to DATE the applicant company continued to borrow money in order to proceed with its investment plans .

In DATE GPE was hit by large - scale civil unrest , which was prompted by the collapse of the alleged pyramid schemes which had been established during DATE .

The ORG intervened to restore public order and passed legislation .

On DATE LAW was enacted ( see “ Relevant domestic law and practice ” below ) . The LAW precluded both applicants from continuing to enter into loan agreements with individuals to pursue the company ’s investments .

On DATE the Non - banking LAW ( “ Act no . CARDINAL ” ) was enacted . Act no . CARDINAL underwent a number of amendments as outlined in the “ Relevant domestic law and practice ” section below .

On DATE the Government decided to subject the applicant company to an audit pursuant to section CARDINAL of the amended NORP - banking LAW ( “ Act no . CARDINAL ” ) . It therefore appointed CARDINAL NORP administrators . The decision did not mention any of the specific legal grounds referred to in DATE , upon which the ORG relied .

On an unspecified date in DATE the applicant company appealed against the ORG ’s decision of CARDINAL DATE to ORG ( “ the Court of Appeal ” ) .

On DATE ORG quashed the decision and ordered the suspension of the compulsory administration measure . It found that no public interest existed for the appointment of administrators .

On DATE the Government confirmed the same CARDINAL administrators as in its previous decision of CARDINAL DATE , giving no further reasons under LAW no . CARDINAL .

On DATE the Government concluded a contract for services with an international company , D , which was to replace the CARDINAL individual administrators and act as the single administrator of the applicant company . Under the terms of reference , D ’s tasks were to be performed in CARDINAL phases . During the first phase D would , inter alia , take control of the applicant company , exercise all the powers and rights vested in the company , including the power to carry on its business , pay its debts , suspend operations , sell its assets and retain , dismiss or replace staff or managers . An inventory of the applicant company ’s assets would be compiled and a plan of action prepared for the recovery of the assets . An audit would be conducted by qualified auditors to be appointed by the Government . During the second phase , D would implement the plan of action for the recovery of the assets , including their sale , deposit all the proceeds of the asset recovery with the entity designated by the Government , assist in the redistribution process , collaborate in the preparation of an audit of the closing position and prepare a final report for the Government .

On an unspecified date in DATE the individual applicant challenged section LAW no . CARDINAL before ORG , insofar as it empowered the administrators to replace him and take over all the property rights which were stricto sensu related to his ownership of the applicant company .

On DATE ORG declared unconstitutional LAW no . CARDINAL . It found that assigning the administrators certain tasks , such as the suspension of contractual obligations , the management of business operations and the entity ’s property , the exercise of the shareholder ’s rights and the sale of property , had divested the sole shareholder of all property rights in breach of sections CARDINAL of the Act on Major Constitutional Provisions . As such rights lay only within the purview of the domestic courts , their transfer to the administrators had encroached upon the constitutional principle of separation of powers . It held that LAW no . CARDINAL was contrary to section CARDINAL of the Act on Major Constitutional Provisions .

On DATE of the Act on Major Constitutional Provisions was supplemented by introducing the right of the ORG to control and administer the property of private entities such as the applicant company . As a result , on DATE , ORG passed an amendment to the NORP - banking LAW ( “ Act no . CARDINAL ” ) , reintroducing the wording of the previously unconstitutional section CARDINAL of Act no . CARDINAL .

On DATE the Government repealed its decision of CARDINAL DATE ( see paragraph CARDINAL above ) . It renewed the compulsory administration measure in respect of the applicant company and appointed D as the administrators .

On DATE D submitted its first report to the Government . Valuation schedules for key assets , projected returns from sales and financial statements were appended to the report . The executive summary of the report contained a paragraph in bold letters which stated ( taken from the original version in LANGUAGE ) :

“ The Administrators’ recommendation is to sell the company ’s assets . This should be done in the most appropriate manner to ensure the best return to creditors within a reasonable time period . ”

The report further stated that the applicant company had been a diverse business consisting of CARDINAL operations in GPE and joint venture operations and agencies in CARDINAL other countries . Many of its operations had been damaged in the civil unrest in DATE . In preparing the report , no audit of the applicant company was conducted as that was not part of their mandate . D stated that the financial information provided to them by the company or by third parties , including various Government agencies , was often unreliable or incomplete due to destruction of documents and records during the riots , the alleged disappearance of certain of the companies books and records , the refusal of some parties to produce relevant information or , when requested , to provide explanations of questionable information or data and , the failure of some of the parties to maintain proper books and records . In addition , certain properties allegedly owned by the applicant company could not be located ; properties not listed were discovered , some properties had been ‘ ORG and , at other properties , ownership was claimed by third parties . Further , the data on aggregate PERSON claims had come from the company ’s ORG books and records , not from the creditors themselves .

The key findings about the financial position of the applicant company as of DATE contained , inter alia , that the applicant company never operated at a profit , would run out of cash in the near future , were unable to meet their liabilities and were insolvent , their balance sheet did no reflect funds received from creditors and their books and records were not consistent with each other . The proposed strategy to maximise recovery for creditors was to sell the applicant company ’s assets .

On DATE the ORG decided to conduct an audit of the applicant company and appointed CARDINAL individual auditors .

On DATE the Minister of Finance modified the terms of reference of the contract that had been concluded between the ORG and the administrators , D , according to which the administrators would “ make every effort to convert as many assets and business of the funds as possible to cash ( liquidate ) before DATE ” . This marked the initiation of the second phase of the administrators’ services .

On DATE the ORG appointed company B as auditors in addition to the individual auditors appointed on DATE . Consequently , on DATE B filed a report . According to the report , it had been impossible to obtain any documents until DATE . Owing to this delay , the limited time available did not allow B to conduct and complete the audit of the company .

NORP The audit of the applicant company was to be based solely upon documents provided by ORG and the administrators , D , and was to be completed by DATE . No documents or financial data about the company prior to DATE were obtained as they had been destroyed during the riots in DATE . Additionally , an examination of the documents that were kept by the prosecutor ’s office in the course of the criminal proceedings against the individual applicant , including QUANTITY computer terminals , was not permitted . Therefore , according to the report , the cash flow provided did not accurately represent the applicant company ’s actual cash flow as “ absolute accuracy , albeit desirable , could not be achieved ( and will not be achieved ) given the available information ” .

NORP The report provided a summary of the company ’s domestic and international operations , its organisational chart and the organisation of its accounting system and auditing . Section CARDINAL included a table of the cash flow ( pasqyra e rrjedhjes së fondeve ) . The report concluded by stating that “ at its inception , it would appear that [ the company ] was engaged in commercial business . However , following the taking of loans [ towards DATE , in DATE and particularly in DATE ] , it started to display characteristics of a pyramid scheme , in which the commercial activity took on a secondary role compared to deposits . In fact , the level of income from commercial activities was not and could not be sufficient to pay off the high interest rates and the capital invested by depositors , to the extent that new deposits had to be accepted in order to pay off previous depositors . ”

On DATE the Sale of Non - banking LAW was enacted , on the basis of which all property belonging to non - banking entities that had taken loans from members of the public would be put up for sale by the administrators within DATE . The applicant company ’s assets and property were subsequently sold .

On DATE the LAW of GPE entered into force . On an unspecified date the applicant company , relying on the LAW , requested ORG to declare unconstitutional the NORP - banking LAW and LAW . On DATE ORG dismissed the request on the grounds that it did not comply with Articles CARDINAL ( f ) and CARDINAL of the LAW , apparently for lack of standing ( see “ Relevant domestic law ” below ) .

On an unspecified date , most likely in DATE , the administrators submitted a financial report corresponding to the conclusion of the second phase , which had focused on the sale of the applicant company ’s property . The report also included a statement of receipts and disbursements , a summary of cash flow and an estimated outcome statement as at DATE .

On DATE ORG established a commission of inquiry ( komision hetimor ) to investigate the transparency of the process for the administration and sale of property belonging to , inter alia , the applicant company . The dissenting opinion of members of the commission of inquiry , running to CARDINAL pages , was highly critical of the entire process , notably the extrajudicial insolvency procedure that had been followed by the Government .

On DATE ORG informed the applicant company that the process was still ongoing and that no court decision had yet been taken to declare the company insolvent .

On DATE ORG sent a letter to ORG . According to the letter the applicant company was certified as a company operating under a pyramid scheme on the basis of the administrators’ report . By a decision of ORG the repayment coefficient for the applicant company was fixed at MONEY . The applicant company ’s outstanding debt amounted to CARDINAL NORP leks ( ALL ) , owed to CARDINAL creditors in total . CARDINAL creditors had benefited from repayment and the liquidation process was continuing for the remaining CARDINAL , for a total amount of ALL CARDINAL . It concluded that efforts were being made for the repatriation to GPE of a number of deposits found in foreign countries . The compulsory administration of the applicant company continued in accordance with the laws and by - laws in force .

On DATE the administrators requested that the individual applicant be criminally prosecuted for deception . On DATE the prosecutor charged the individual applicant with deception ( mashtrim ) . The individual applicant was arrested on DATE .

On DATE the prosecutor decided to appoint CARDINAL experts to prepare a financial accounting report of the applicant company .

On DATE the experts submitted their report , according to which the number of creditors was CARDINAL and the applicant company ’s total liabilities were CARDINAL NORP leks ( “ ALL ” ) , the equivalent of MONEY ( “ USD ” ) . Their estimates were based on the information that had been deposited with and processed by ORG . They had not relied on the report produced by the auditing company appointed by the Government on DATE .

By a detailed judgment of CARDINAL DATE ORG found the applicant guilty of deception and sentenced him to DATE imprisonment . The applicant and the prosecutor appealed on an unspecified date in DATE .

On an unspecified date in DATE ORG appointed the same CARDINAL experts to produce another financial report .

On DATE the experts submitted their report . According to the report , the total number of creditors was CARDINAL and the overall debt amounted to ALL CARDINAL , the equivalent of CARDINAL at the material time . This figure was drawn from the applicant company ’s computers , which had been seized by the prosecutor ’s office . Referring to the number of claims made by creditors after the start of the compulsory administration proceedings , the report indicated that the overall number of creditors was CARDINAL , whereas the total debt was ORG CARDINAL .

As regards the value of the applicant company ’s assets , the report concluded that , as of DATE , its assets totalled ORG CARDINAL,CARDINAL,CARDINAL . This estimate was based on a decision of ORG of DATE , which listed the company ’s property and the corresponding monetary value . However , it deducted the value of mines and other mineral reserves .

Following the start of the compulsory administration proceedings , the total value of the applicant company ’s assets amounted to USD CARDINAL,CARDINAL,CARDINAL , of which ORG CARDINAL consisted of the proceeds from the sale of assets and ORG CARDINAL was the estimated value of assets which had not yet been sold .

As regards the cash flow in the applicant company ’s bank accounts , the report concluded that its balance was ORG CARDINAL,CARDINAL,CARDINAL . However , not all the banks concerned had submitted cash flow reports . The outstanding debt owed by third parties to the applicant company was calculated to be CARDINAL . The report assessed the damage to the applicant company ’s assets as a result of the DATE civil unrest at MONEY .

On DATE ORG relied on the same facts as set forth in ORG judgment . It found the individual applicant to be responsible for the deception of CARDINAL creditors in the total amount of ALL CARDINAL . The court explained the decrease in the overall number of creditors and the total amount of debt by the deduction of capitalised interest and the exclusion of inaccurate records . The court further dismissed the figures resulting from the compulsory administration proceedings as being inaccurate , having regard to the fact that not all creditors might have submitted their claims .

ORG sentenced the individual applicant to twenty years’ imprisonment in accordance with LAW ( “ the ORG ” ) , which had entered into force on DATE .

On DATE the individual applicant appealed .

On DATE ORG found the individual applicant guilty as charged . Relying on the same facts as those described in the lower courts’ decisions , ORG held that the individual applicant ’s actions and the applicant company ’s activities had been improper and unlawful . It upheld the findings of ORG with regard to the total number of creditors , namely , CARDINAL . However , it concluded that the total amount of the applicant ’s liabilities was ALL PERSON ( approximately USD CARDINAL,CARDINAL,CARDINAL at the material time ) after having deducted the company ’s cash flows , which totalled ALL CARDINAL .

In passing sentence on the individual applicant , ORG reasoned that he should be held criminally liable on as many counts as the overall number of creditors , that is CARDINAL , in accordance with LAW , which prescribed a term of imprisonment of DATE . Consequently , it sentenced the individual applicant to DATE imprisonment .

A detailed description of the facts concerning the criminal proceedings against the individual applicant can be found in the case of PERSON v. GPE , no . CARDINAL/CARDINAL communicated on DATE .

By note verbale of DATE , which was registered at the ORG General on DATE , ORG , in accordance with LAW , informed the Secretary General of ORG intention to derogate from its obligations under the Convention . According to the note verbale restrictions had been imposed inter alia on the right of assembly , the freedom of press and information and the free movement of people . No restrictions were imposed on the right of property .

By note verbale of DATE , registered at the ORG General on DATE , ORG informed the Secretary General of ORG that the Government were withdrawing their notice of derogation under LAW .

Until the adoption of the LAW in DATE , LAW was the basic law in GPE . Section CARDINAL provided for the separation of powers ( the legislative , the executive and the judiciary ) . Section CARDINAL , which enshrined the right to economic activity , read as follows :

“ The country ’s economy is based on diversity of property ownership , the free initiative of all economic entities and the regulatory role of the ORG .

Economic initiatives by legal entities and natural persons may not be taken contrary to the social interest and should not infringe NORP safety , liberty and human dignity . ”

Section CARDINAL recognised the enjoyment of the right of property

Following the Constitutional Court ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) , the following paragraphs were added to section QUANTITY on Major Constitutional Provisions on DATE :

“ The unlawful activity of private entities which widely affects the interests of individuals or social groups , opposes and damages the principles of the free market economy and of national and international economic fiscal policies and undermines the economic and social stability of the country , shall be placed under the control and administration of specialised national and international institutions .

The degree of interference , as well as the powers of control and administration of these private entities by the above - mentioned institutions , shall be defined by law .

In such cases , the ORG has the right and duty to take possession of ( disponojë ) the property of private entities only in order to protect the interests of injured parties .

No one shall be denied the right of access to a court to contest measures aimed at the control , administration and disposal ( disponim ) of his or her property , and to seek full compensation for the damage suffered . ”

On DATE ORG sub - commission on ORG adopted an opinion on the amendments effected to LAW on DATE . According to the opinion , the constitutional ad hoc amendment had a legitimate purpose and might have been required by specific temporary needs . However , the opinion stated that the first section of the amendment , which provided the basis for the ORG intervention , used a large number of broad concepts to which it was very difficult to give a precise legal meaning . It was of the view that the ad hoc text , which responded to a pressing social need of the moment , was not viable as a long - term principle of the NORP constitutional order . It cautioned against the repeated use of such ad hoc constitutional amendments in the area of economic regulation and considered that the text chosen should not be integrated as it was into the future LAW of GPE .

The LAW of GPE entered into force on DATE . It repealed the Act on LAW as outlined above . The relevant provisions read as follows :

Article CARDINAL

“ The Constitutional Court shall decide on :

( a ) the compatibility of a law with the LAW or international agreements as provided for LAW CARDINAL

( f ) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

Article QUANTITY ( f ) and CARDINAL

ORG may initiate proceedings only at the request of :

( f ) political parties and other organisations ;

( g ) individuals .

The entities designated in the first paragraph , letters ... ( f ) and ( g ) , may lodge applications only on issues connected with their interests . ”

Article CARDINAL of LAW ( “ the ORG ” ) provides :

“ A loan is a contract by which CARDINAL party ( the lender ) transfers into the possession of another party ( the borrower ) an amount of money or other material objects defined by their quantity , weight or size . The borrower is obliged to repay an equal amount of money or material objects of the same kind and quality , within the term provided for in the contract , or in the absence of such a term , at the request of the lender . ”

Articles CARDINAL–CARDINAL regulate the adjudication of administrative disputes .

Article CARDINAL , as in force at the material time , provided that no action could be brought against a Government administrative act , in so far as it contained a general obligation , unless it infringed ORG lawful rights and interests .

LAW , as in force at the material time , applied to legal entities which , like the applicant company , had been established in accordance with LAW . For proceedings to be started on the strength of a legal action by the creditor , he or she needed to prove that the debtor had defaulted on payment . In any event , the debtor could also file a similar action . Bankruptcy proceedings were court proceedings . Consequently , the decision to declare them open lay with the district court which could decide to place the debtor in compulsory administration by appointing an administrator . During the discharge of his duties , the administrator acted under the supervision of the court , which was empowered to replace the administrator by stating reasons . LAW provided for the adoption of a restructuring plan , which required the court ’s approval . In the event that the restructuring plan was rejected , the court would decide to proceed with the immediate liquidation of the debtor ’s assets . LAW provided for the right to appeal against the district court ’s decision .

The Act provided that organised borrowing ( huamarrja ) on the basis of fraudulent pyramid schemes was unlawful . The establishment and operation of fraudulent pyramid borrowing schemes constituted a criminal offence , carrying a sentence of CARDINAL twenty years’ imprisonment and the confiscation of movable and immovable property .

Section CARDINAL stated that all the companies and non - banking entities concerned were to be subject to a financial audit in relation to their financial position , the number of creditors , their assets and liabilities and their domestic and foreign deposits , by a group of financial experts appointed by the Government in accordance with Act no . CARDINAL .

Section CARDINAL established a ORG ( PERSON ) , composed of CARDINAL members , to monitor the entire process . ORG coordinated activities between the experts and the entities subject to Act no . CARDINAL in accordance with section CARDINAL and reported to ORG .

Under LAW the financial experts examined the ORG cash books , contracts concluded with the creditors and any other relevant documents . Section CARDINAL stipulated that the final experts’ reports were to be submitted to a number of relevant ORG bodies , including ORG .

Act no . CARDINAL did not provide for any possibility of judicial scrutiny .

Section CARDINAL outlined the scope of Act no . CARDINAL . All individuals and legal entities who had taken loans from members of the public were subject to an audit , with the exception of : banks licensed by ORG in accordance with the legislation in force ; companies which issued bonds for investment in accordance with the legislation in force ; and natural persons who had taken loans in accordance with LAW , on condition that CARDINAL requirements were cumulatively satisfied .

Under LAW , the ORG appointed administrators ( administrator ) for entities subject to the financial audit . The administrators were to be natural persons or a legal entity . The administrators were appointed on condition that : a ) the entity concerned had defaulted on payments or there was a risk of its defaulting on payments ; b ) the entity concerned had suspended , or was ready to suspend , payments or was unable to satisfy its obligations on the relevant date , in accordance with the agreements concluded with third parties ; c ) the business operations of the entity concerned were in breach of recognised financial principles and rules ; d ) the business and financial situation of the entity concerned was in breach of recognised financial principles and rules ; e ) it was in the public interest that the entity concerned and other individuals related to it be subject to the law , owing to the fact that they had attracted the investment of third parties’ property .

The entity concerned had the right to appeal to ORG within DATE against the appointment of the administrators . If ORG upheld the appeal , it would order ORG to suspend ( ndërpres ) the compulsory administration measure . The delivery of a court decision ( in the event that it quashed a Government decision ) did not prevent the Government from taking another decision on the appointment of other administrators in relation to the entity concerned , provided that the law was complied with .

Under section CARDINAL , the administrators appointed by the Government had , inter alia , the following tasks : to suspend partially or entirely the payment of a loan or obligation to third parties ; to manage the operations and property of the entity concerned ; to exercise all NORP rights , ORG rights and the related rights of administrative personnel ; to sell or legally dispose of the property of the entity concerned as he or she deemed appropriate ; to seize the assets of named individuals connected with the schemes ; and to hire experts and trace assets abroad .

Section CARDINAL provided that administrators could be dismissed from their position by the ORG under certain conditions . Under LAW , administrators had to provide regular reports to the Government about the progress of work .

DATE . The Act did not provide for any legal remedies to be made available to non - banking entities to challenge the administrators’ actions .

Following the insertion of the new paragraph in section CARDINAL of the Act on LAW ( see above ) , section DATE CARDINAL Act no . CARDINAL reintroduced the wording of LAW no . CARDINAL , which had been repealed by ORG decision of CARDINAL DATE ( see paragraphs CARDINAL–CARDINAL above ) .

Section CARDINAL of Act no . CARDINAL provided that “ insofar as the companies concerned are subject to audit and compulsory administration under the LAW , the judicial authorities shall not hear any civil actions and shall suspend all enforcement proceedings in respect of previously adopted decisions . ”

Section CARDINAL of Act no . CARDINAL provided that ORG was to report to ORG .

Section CARDINAL empowered the administrators of non - banking legal entities to proceed with the sale of the property of such entities and those of their owners and the latter ’s family members . The proceeds would be used to provide the public with monetary compensation during the redistribution process . Under section CARDINAL former presidents of companies which were subject to the Non - banking LAW did not have the right , following the sale of property , to buy it or lodge an action with the domestic courts for its return .

Section CARDINAL stipulated that the administrators were responsible for the sale of the property and for deciding on the procedure . The starting sale price was determined by an evaluation group pursuant to section CARDINAL . Any natural person or legal entity , whether domestic or foreign , could attend the sale of the property in accordance with section CARDINAL . Under section CARDINAL of LAW , the sale had to take one of the forms prescribed by law : direct sale , auction or public tender . Under LAW , the sale took the form of auction . LAW of the DATE Act provided that the process was to be concluded , in principle , before DATE . Under LAW , property that had not been sold by DATE was to be put up for sale by ORG .

Section CARDINAL provided that only the auditors ( ekspert kontabël ) could seek to have the sale declared null and void by a court . The request had to be made within DATE from the date when they considered a breach of the provisions of the LAW to have occurred .

Section CARDINAL stipulated that the redistribution of financial assets of non - banking entities was to be carried out on the basis of a repayment coefficient which was different for each entity . In accordance with section CARDINAL , the coefficient was to be calculated as the division of the sum of the existing monetary values in the non - banking entities’ bank accounts and the proceeds secured from the sale of their property by the amount of the outstanding debt that the non - banking entity owed to its creditors .

DATE . On DATE the Government adopted a decision on the redistribution of financial assets to the applicant company ’s creditors on the basis of a coefficient . According to the decision , the redistribution coefficient for creditors was calculated at MONEY . The proceeds collected from the sale of assets totalled ALL CARDINAL ( approximately QUANTITY – “ EUR ” ) . The outstanding debt of the company remained at ALL PERSON ( approximately ORG CARDINAL,CARDINAL,CARDINAL ) .

Section CARDINAL provided that the administrators were to identify all natural persons and legal entities which had outstanding debts and obligations towards non - banking entities that had been subject to the Non - banking LAW . Under section CARDINAL the administrators were to adopt a decision on the names of persons who would be declared debtors and the outstanding financial and proprietary assets that should be returned to the bank accounts of the non - banking entities . This decision constituted an execution title and was enforceable . Section CARDINAL gave debtors DATE from notification of the administrators’ decision in which to comply ; failure to comply resulted in mandatory enforcement by the bailiff .

Under LAW , the aggrieved party had the right to challenge the administrators’ decision and the bailiff ’s actions within DATE respectively before ORG .

On DATE the applicant company ’s administrators adopted a decision concerning the names of the company ’s debtors . A list containing CARDINAL debtors and their corresponding outstanding debts was appended to the decision . The individual applicant ’s name was included on the list , with an outstanding debt in the amount of ALL CARDINAL ( approximately ORG CARDINAL,CARDINAL,CARDINAL ) .