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

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

Before his discharge from the army , the applicant was serving as a specialist doctor at ORG in GPE .

Following an administrative ordinance issued by ORG ( ORG ) on DATE the applicant and his family were denied access to the military LOC on the ground that a photo showing his wife wearing NORP scarf was not acceptable for the military and social security identity cards . The applicant ’s close relatives wearing NORP scarves were also not allowed into the military buildings .

On DATE the applicant was appointed to ORG as the chief of the laboratory department .

On DATE the applicant filed an action with ORG ( ORG PERSON ) . He requested the court to annul his appointment to ORG .

On DATE ORG decided to annul the applicant ’s appointment as an interim measure ( yürütmeyi durudurma kararı ) . Within DATE from this decision , the applicant was again appointed to ORG .

The applicant appealed . On DATE ORG again decided to annul the applicant ’s appointment as an interim measure .

In DATE ORG ( ORG ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant was a member of ORG GPE sect . He was involved in disseminating the ideology of the sect and made hatred speeches . He established contacts with a certain PERSON who was discharged from the army . He attended meetings organised by persons who adopted the same extreme religious ideology . He acted discriminatorily in favour of soldiers who adopted the same ideology .

The applicant had an antisocial character and his wife carried NORP scarf . He refused to participate in social gatherings where alcohol was served . He avoided watching TV and did not allow his family members to do so .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions .

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


TRAVEL TIME, EMBASSY ENTERPRISES, HARMONY HOLIDAYS, MALBOROUGH PROMOTIONS LTD v. THE UNITED KINGDOM

The applicants , ORG ( GPE ) ORG , ORG , ORG and ORG , are companies registered in GPE . They are represented before the ORG by ORG , solicitors , in GPE . The respondent Government are represented by Mr PERSON of ORG .

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

The applicants were companies involved in the timeshare industry , being responsible for finding potential purchasers of timeshare slots in holiday resorts . CARDINAL of the applicants were telesales companies , whose role it was to persuade members of the public to attend a timeshare presentation . The other CARDINAL applicants were responsible for issuing certificates at the end of the presentation which entitled their bearers to a DATE in a resort abroad .

On DATE , the Secretary of ORG ( “ the Secretary of ORG ” ) issued petitions to wind up each of the applicants pursuant to section CARDINALA of the Insolvency Act DATE .

The petitions contained allegations of fraud and deceit by the applicants . The central allegations were that the CARDINAL telesales companies deliberately deceived members of the public into attending the presentations , partly by false statements made on the telephone and partly by the omission of matters that the public ought to have been told . The CARDINAL holiday certificate companies were said to have collected a significant amount in processing fees ( QUANTITY per couple ) and then deliberately organised matters so as to get away with sending the minimum possible number of people on holiday . In effect , the case against them was that , having extracted processing fees out of CARDINAL of couples , they then cheated most of them out of a holiday .

On DATE , the Secretary of ORG , without notice to the applicants , applied to ORG for the appointment of a provisional liquidator . The application was granted by Mr Justice Lloyd in the absence of the applicants , without any requirement upon the Secretary of ORG to give an undertaking in damages ( an undertaking that , should the application prove subsequently to have been ill - founded , damages could be payable for losses suffered by the companies ) .

Mr Justice Lloyd ’s Order appointed the official receiver as the provisional liquidator . His powers included the ability to ( i ) enter onto the applicants’ premises and take possession , collect in and protect the ORG assets , whether within or outside the jurisdiction , ( ii ) take possession of and secure the books and records of the applicants , ( iii ) retain and pay or dismiss employees at his discretion , ( iv ) terminate , complete or perfect any contracts or transactions relating to the ORG businesses , ( v ) retain and operate the existing bank accounts of the applicants and ( vi ) open and operate new accounts with liberty to pay therefrom any necessary expenses incurred on behalf of the applicants by the official receiver while carrying out his powers and duties under the LAW .

Mr Justice Lloyd ’s Order further ordered that ( a ) notice of it was to be given to the applicants forthwith and that ( b ) the applicants were at liberty to apply to the court to vary or discharge the Order on TIME notice given to the official receiver or to the Secretary of ORG ’s solicitor . The applicants did not make any such application .

On DATE , immediately after the appointment , ORG ( “ the ORG ” ) issued a press release concerning the appointment of the provisional liquidator that , it is alleged by the applicants , was grossly misleading and damaged the applicants’ reputations .

The official receiver immediately took control of the applicants and their LOC . He dismissed employees and then closed down the applicants’ businesses as quickly as he could . He was in control of the applicants for DATE following his appointment , during which time he failed to deal with ORG telephone queries and did not administer any holiday breaks . The applicants allege that this resulted in a loss of income to them and destroyed their businesses and reputations .

On DATE , the applicants applied for permission to seek judicial review of the Secretary of ORG ’s decision both ( i ) to bring the winding up petitions and ( ii ) to seek the appointment of the provisional liquidator for the companies . On DATE , the question of whether such permission should be granted was ordered by Mr Justice PERSON to be determined by the judge hearing the petitions .

The action was tried in DATE . By his judgment of DATE , Mr Justice PERSON dismissed the Secretary of ORG ’s petitions to wind up the applicants and he discharged the provisional liquidator . The Secretary of ORG ’s applications for permission to appeal were dismissed by both Mr Justice Park and ORG .

Mr Justice Park found that there was no substance in the above allegations made by the Secretary of ORG . In relation to the CARDINAL holiday certificate companies he further found that the ORG had fundamentally misunderstood the nature and the economics of the applicants’ businesses . In relation to other regulations , Mr Justice Park did not find any infringements that would have justified winding up any of the applicants .

Mr Justice PERSON further expressed his opinion about the ORG ’s investigation and actions . He stated that PERSON , the official at the ORG in charge of the investigations into the CARDINAL applicants :

“ ... conducted his investigations almost entirely on the basis of documents ... He had no prior knowledge of the usual way that timeshare marketing was organised , and if he tried to find out about it from other sources he did not say so . He decided to take action against the companies , including the drastic step of applying for the appointment of a provisional liquidator without the companies having notice of the application , almost entirely on the basis of inferences which he drew from the documents . He did not put any of his concerns to P or A [ the directors of the companies ] and ask whether they had an explanation .

... If , before launching the petition , Mr. PERSON had spoken to P and A ( with their solicitor present if they had wished , as they probably would ) they might have been able to convince him , as they have convinced me , that his conclusions were mistaken . Even if they had not , and Mr. PERSON had still decided to petition for the companies to be wound up and to apply for the appointment of a provisional liquidator , the judge on that application would have been told that the ORG ’s allegations were disputed by the companies and the directors . I take it for granted that , if explanations by P and A had been given to Mr. PERSON , he would have described them in his affidavit as fairly as he could , even if he did not accept them himself .

As matters happened , however , the ORG launched the petition without any warning . It applied for the appointment of a provisional liquidator without notice to the companies . The only evidence before PERSON was Mr. PERSON ’s affidavit which presented the matter on the basis that the ORG operations were indisputably and incontrovertibly dishonest . That is , of course , how Mr. PERSON saw the matter and neither I nor Mr. PERSON ( counsel for the companies ) suggest for a moment that Mr. PERSON was influenced by any motive other than his sincere belief about what the protection of the public required . On the material before ORG I do not see how the judge could have done other than accede to the application for the appointment of the provisional liquidator . But thereby the businesses of CARDINAL companies were destroyed . ”

Mr Justice Park awarded costs to the applicants on the “ standard ” basis , but declined to award on the “ indemnity ” basis .

After Mr Justice Park had delivered his judgment , the applicants referred to their application for permission to seek judicial review of the Secretary of ORG ’s decision to bring the winding up petitions and to seek the appointment of the provisional liquidator . Mr FAC indicated to the applicants that he was not minded to grant such permission on the basis that there was no obligation on the Secretary of ORG to provide compensation for losses caused by the appointment of a provisional liquidator at his request . Therefore , as no compensation could be awarded in judicial review proceedings , no purpose would be served by an application by the applicants for judicial review . The applicants thereafter decided not to pursue the application , on the grounds that to do so would have been pointless .

The applicants allege that the effect of the appointment and subsequent continuation in office of the provisional liquidator was to destroy the applicants’ goodwill and to devastate their businesses . All the applicants are now in liquidation .

The applicants allege that , in effect , the Secretary of ORG has a common law immunity from having to give a cross - undertaking in damages upon the appointment of a provisional liquidator at his request , in circumstances in which a private litigant would be obliged to do so . In the absence of any right to seek compensation from the Secretary of ORG , the applicants do not have any means of obtaining financial redress for losses caused by the appointment of the provisional liquidator .

Section CARDINAL of LAW DATE empowers the Secretary of ORG to require a company to produce documents during the course of an investigation into its affairs .

Section CARDINALA of LAW DATE provides that :

“ Where it appears to the Secretary of ORG from-

( a ) any report made or information obtained under Part ORG of LAW DATE ( company investigations , & c. ) ...

that it is expedient in the public interest that a company should be wound up , he may present a petition for it to be wound up if the court thinks it just and equitable for it to be so . ”

Section CARDINAL of the Insolvency Act CARDINAL allows the court , at any time after the presentation of a winding up petition , to appoint a liquidator provisionally .

Under section CARDINAL(CARDINAL ) of LAW DATE , a provisional liquidator is required to take into his custody or under his control all property and things in action to which the company is or appears to be entitled .

The effect of an undertaking in damages is that the applicant agrees to abide by any order the court may make as to damages if the court later determines that the company sustained loss as a result of the application . The applicant will also be required to give an undertaking to be responsible for the acts and defaults of the provisional liquidator in such circumstances .

In ORG [ DATE ] ORG CARDINAL at page CARDINAL - i , Sir PERSON set out the position on the general law as follows :

“ First , the general practice is to require an undertaking in damages if a provisional liquidator is appointed ex parte . Second , the general practice is not to require an undertaking in damages if the appointment is made inter partes . The distinction , I think , or a distinction , must be that the protection of the undertaking will be given where the company has had no opportunity of providing any answer or explanation to contentions which may prove to be wholly unfounded , whereas if the company has at least had the opportunity of being heard , the court will be making the appointment after considering what the company has said , if it has chosen to speak , and so can better assess the propriety of making the appointment . ”

However , in Re GPE ( at page CARDINALe ) , the position of the Secretary of ORG was said to be different :

“ ... where , as here , the Secretary of ORG is seeking to have the company wound up not in order to assert some proprietary claim of the ORG but by virtue of LAW DATE , section CARDINAL , [ the then equivalent of section CARDINALA of LAW DATE ] I think that the doctrine of the PERSON case provides sufficient authority and guidance to provide an exemption of the ORG from being required to offer an undertaking in damages as the price of obtaining the appointment of a provisional liquidator , save where the company can establish special circumstances which justify such a requirement being made . ”

The applicants state that the phrase “ special circumstances ” remains undefined by the courts .


Preliminary objection allowed (non-exhaustion of domestic remedies)

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in GPE .

From the establishment of GPE in DATE and up to his dismissal from the public service , the applicant worked as Governor of ORG operative ORG in GPE . On DATE ORG instituted disciplinary proceedings against him and decided to dismiss him retrospectively by reason of the fact that on DATE he had been found guilty by ORG of stealing , breach of trust and abuse of authority . He had been sentenced to DATE imprisonment . His appeal against both conviction and sentence had been dismissed by ORG on DATE .

ORG held that the applicant had managed the resources of the above - mentioned department as if it were his private property and spent them for purposes other than those of the department . The disciplinary sanction of dismissal also resulted in the forfeiture of the applicant 's retirement benefits , including his pension , in accordance with section CARDINAL(CARDINAL ) of LAW ( no . CARDINAL/CARDINAL ) , from the date of his conviction by ORG . In GPE , pensions are part of the overall employment contract offered to public servants . The pension scheme is non - contributory .

On DATE the applicant filed an application with ORG requesting that the decision to dismiss him from the public service be declared null and void . The applicant 's main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal , with the consequent forfeiture of retirement benefits , was disproportionate to the gravity of the offence . He also contended that the forfeiture was contrary to LAW , which guarantees the right not to be tried or punished twice . He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act .

By a judgment delivered on DATE , ORG rejected the applicant 's application and confirmed ORG decision . In particular , ORG held :

“ It has been established by case - law that ORG does not have the authority to intervene on the subject of the sanction imposed unless it is evident that the disciplinary body has exceeded the limits of its discretionary power .

ORG powers in such issues bear no resemblance to its powers while exercising its jurisdiction over the appeal of the district courts ' judgments , on which it has the authority to intervene when the decision on the sentence is either incorrect from the outset , evidently excessive or insufficient .

The assessment of the severity of such a disciplinary sanction is outside the limits of this ORG 's authority ( see , among others , ORG , ( DATE ) CARDINAL C.L.R. CARDINAL , and Papacleovoulou v. the Republic , ( DATE ) CARDINAL C.L.R. CARDINAL , CARDINAL - CARDINAL ) .

It has been repeatedly established ... in a series of judgments that an administrative court , during the judgment of an appeal against the imposition of a disciplinary sanction , does not as a rule have the authority to intervene in the essential judgment and assessment of the facts by the competent body . ...

Section CARDINAL(CARDINAL ) of Law no CARDINAL/CARDINAL enumerates a limited number of disciplinary sanctions that can be imposed under the provisions of the same PERSON . These sanctions include the sanction of dismissal , which , according to section CARDINAL(CARDINAL ) of PERSON no CARDINAL/CARDINAL , results in the loss of all the entitlements upon discharge .

The judgment in PERSON v. the Republic , CARDINAL R.S.C.C. DATE , which the applicant 's lawyer cited in order to support his submission that the provisions concerning the deprivation of an employee 's pension rights are unconstitutional with respect to LAW and QUANTITY of the LAW , does not apply to the present case .

The submission by the applicant 's lawyer that there is a contradiction with LAW remains unproved . ”

ORG stated that it could review neither the severity of the sanction imposed by a disciplinary body , save if the latter had exceeded the limits of its margin of appreciation , nor the manner in which the body had assessed the facts of the case . It held that the discretion of ORG only concerned the nature of the sanction , the loss of retirement benefits being the normal consequence of the particular sanction imposed by the commission .

On DATE the applicant appealed on points of law to ORG sitting as a court of appeal . CARDINAL grounds were included in the notice of appeal . The fifth ground challenged the finding of ORG sitting as a first - instance court that the loss of retirement benefits was not contrary to LAW .

On DATE the applicant filed an application for amendment of his grounds of appeal . ORG granted the application on DATE . Amended grounds CARDINAL to CARDINAL read as follows :

“ ( CARDINAL ) The finding of the first - instance court that the sanction that was imposed on the applicant by ORG was not excessively onerous and disproportionate to the gravity of the offence committed and/or that ORG took fully into account the mitigating circumstances during the consideration of the sanction and/or did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous .

According to LAW , the law can not provide for a penalty that is disproportionate to the gravity of the offence . The above constitutional requirement introduces in GPE the principle of proportionality , according to which there must be a connection ( reasonable relation ) between the measure taken and the intended purpose ; the measure is proportionate only if it is necessary in relation to the facts of the case .

Despite the fact that during the assessment of the penalty the criminal court as well as the administrative body took into account and accepted a series of mitigating circumstances , and in particular that the applicant did not obtain any material gain , the sanction which was finally imposed on him is the heaviest sanction provided by law .

This is a sufficiently serious breach of the principle of proportionality , which was introduced by LAW and is applied in NORP jurisprudence and the practice of law itself , particularly in the interpretation of LAW . It also constitutes an act beyond the extreme limits that define the framework of actions of the administration when exercising its discretionary power .

( CARDINAL ) The finding of the court that ORG imposed the sanction of dismissal on the applicant correctly and lawfully and without exceeding the limits of its discretion is erroneous .

The principle of a sanction that is not disproportionate to the gravity of the offence and the principle of proportionality during the assessment of the sanction in administrative proceedings certainly define the framework and/or limits of the administrative authority of the administrative body .

The fact that the administrative body adopted and/or took into account the serious mitigating circumstances in favour of the applicant during the assessment of the sanction , but did not avoid imposing the heaviest sanction provided for by law , is an act that lies beyond the extreme limits of the exercise of its discretionary power .

( CARDINAL ) The finding of the first - instance court that the loss of the applicant 's pension rights is not contrary to LAW is erroneous . ”

In his opening address on DATE , the applicant 's lawyer , Mr Efstathiou , stated that he would only deal with the third and fourth grounds of the appeal . In particular , according to the verbatim record of the hearing on that date , the following exchange took place between the applicant 's lawyer and ORG :

“ Mr Efstathiou : ...

I will be very brief . Essentially , I will only deal with grounds CARDINAL and CARDINAL of the appeal .

Judge PERSON : Do you withdraw the others ?

PERSON : Indeed , I do .

The Court : The remaining grounds of appeal are dismissed and we shall hear your position on grounds CARDINAL and CARDINAL .

PERSON : I will not deal with these grounds , because ground CARDINAL is badly worded , while ground CARDINAL is covered by grounds CARDINAL and CARDINAL .

The penalties that can be imposed by the court are listed in section CARDINAL(CARDINAL ) of Law no . CARDINAL/CARDINAL . These penalties go from ( a ) to ( j ) , which means that CARDINAL different disciplinary sanctions can be imposed according to the gravity of the offence , each CARDINAL more severe than the previous one , while the maximum sanction is dismissal . Section CARDINAL(CARDINAL ) states that dismissal entails the loss of all entitlements upon discharge .

I shall deal with the amended grounds CARDINAL and DATE , and thus ground CARDINAL emanating from them .

Judge PERSON : Will you deal with grounds CARDINAL and CARDINAL as a whole ?

PERSON : As a whole and the consequences thereof .

We can not , therefore , and with all due respect to the court that delivered the judgment , accept that this ORG can not , in fact , intervene in the decisions of ORG , when these deal with issues of sanction . It would , indeed , be extraordinary if this ORG were competent to address the decisions of criminal courts , but not competent to address and examine whether the commission , which is a disciplinary court , exceeded the limits of its discretionary power . Not only would this be completely alien to the organisation and construction of the jurisprudence , it would also be extraordinary , because a court could intervene DATE and I am not saying that it would intervene on appeal , no it is not that . Given that the ORG intervenes , why should n't it DATE even more so – intervene there ?

Judge PERSON : On the issue of disciplinary sanctions .

Mr Efstathiou :

When you examine the case , I plead with you to take into account the fact that the dismissal of the appellant resulted in forfeiture of his pension rights . This means that the consequence of his dismissal entailed the additional misfortune of the loss of his pension rights , which were a result of DATE of contributions to the ORG . This service of DATE and more , I submit with respect , creates for the appellant parallel rights to receive a pension , autonomous rights which are based on a legal framework that is independent and autonomous in comparison to other legislative regulations . The creation of public servants ' pension funds is regulated separately and is created through deducting part of their emoluments . Thus , by imposing this sanction on the appellant , other parallel and autonomous rights were infringed , which should not escape the attention of ORG . These are acquired rights to which an employee is entitled to for DATE of offering his service to the ORG , in parallel with the right to acquire the payment of a salary . For DATE of work , he receives his salary and also has another entitlement , which is preserved in order to be given to him when he is discharged , and which at the same time constitutes an autonomous right . This is the right every employee has to a pension as part of his emoluments . He has another benefit , secret , hidden , but ' activated ' from DATE he leaves the service .

Consequently , the imposed sanction of dismissal has the following direct consequences , which are all contrary to constitutional rights and the fundamental principles of law and jurisprudence . [ Firstly , it ] renders the sanction particularly onerous and reinforces the argument that it was disproportionate to the gravity of the offence , which apart from constituting an abuse of discretionary power , violates LAW , which states that a penalty shall not be disproportionate to the gravity of the offence .

Secondly , it denies the applicant 's right of property by which he is entitled to a pension for which he was has contributed part of his salary . The new Law no . CARDINAL contains a revised section CARDINAL , which represents a somewhat incomplete regulation of this issue . Namely , when a public servant is dismissed , a pension is paid to his dependants as though he had died . This is unpleasant , but represents a solution that was found and agreed upon at the time .

Judgment was reserved .

In the meantime , CARDINAL of the members of the bench hearing the case was appointed Minister of Defence , and ORG decided to reopen the proceedings . The appeal was heard for a second time on DATE . The verbatim record of the hearing reads as follows :

“ Mr PERSON : Your Honours , the facts of this case are , in simple terms , as follows :

I will deal with grounds CARDINAL and CARDINAL of the appeal and grounds CARDINAL and CARDINAL emanating from them . I will deal with all of them ...

PERSON : In the previous court session , grounds CARDINAL , CARDINAL and CARDINAL were withdrawn .

PERSON : Indeed , as I have said .

Judge PERSON : For the sake of order , I see in the transcript of the previous hearing that you have withdrawn all the grounds of appeal , apart from CARDINAL and CARDINAL .

PERSON : Indeed .

In closing , we conclude that the appellant 's DATE of service have brought about pension rights – independent rights that are based on a legal structure which is independent and autonomous compared to other legislative regulations . Everyone contributes to the creation of the capital of the pension ; the government also contributes ; it is part of the employee 's emolument . This sanction ... according to section CARDINAL(CARDINAL ) [ entails the loss of all retirement benefits ] .

Therefore , the imposition of the sanction of dismissal , the direct consequence of which is the forfeiture of pension rights , has legal consequences that violate constitutional principles , essential rights and the case - law . The sanction is therefore particularly onerous .

Judge PERSON : You also clarified it last time , but we must bring up the subject once more . We must realise that there is no issue of constitutionality of the law itself but that the subject is being discussed within the framework of the position you are advocating , that it was not reasonably permissible to impose such a sanction .

PERSON : Because this is also a consequence of that . It is so . The imposition of the sanction exceeded the limits of the exercise of discretionary power and violated the constitutional principle of LAW that the penalty should not be disproportionate to the gravity of the offence . Thus , the principles of law , the principles of proportionality , the principles of not exceeding the extreme limits of discretionary power and of respect for the appellant 's vested rights have been violated . I have told you all this before . ”

Judgment was delivered on DATE , dismissing the appeal . ORG held as follows :

The first - instance court held that the sanction of dismissal imposed on the appellant by ORG was just and lawful and within the bounds of its discretion . Also , it stated that the commission had considered the various mitigating circumstances in favour of the applicant before it reached a decision , and that its discretionary power did not concern the issue of the appellant 's pension , but only the matter of the sanction . The forfeiture of the appellant 's entitlements following discharge was , under the same PERSON , a consequence of the sanction imposed on him .

In the end , the appeal was limited to CARDINAL grounds , which are stated in the amended notice of appeal and which are the following :

' ( CARDINAL ) The court 's finding that the sanction imposed on the appellant by ORG was not excessively onerous and disproportionate to the gravity of the offence and/or that ORG did take the mitigating circumstances into account in their consideration of the sanction and/or that it did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous .

( CARDINAL ) The court 's finding that the sanction of dismissal imposed on the appellant by ORG was just and lawful and within the limits of its discretionary power is erroneous . '

The position of the appellant 's lawyer is that the principles of law relevant to criminal proceedings are implemented analogously in disciplinary proceedings . Whilst the commission accepted the existence of mitigating circumstances in the case under examination , such as the appellant 's long service in the NORP struggle for liberation and the Co - operative ORG , and the fact that there was no material gain for him personally , it nevertheless imposed the heaviest sanction on him , rather than a sanction of , for example , compulsory retirement , which would also have resulted in his removal from service . The appellant stated that the sanction of dismissal was excessively onerous and disproportionate to the gravity of the offence and claimed that the principle of proportionality had been infringed , and thus argued that the commission had exceeded the extreme limits of its margin of discretion . In clarifying this position , he stated that he did not request the ORG to change the case - law and interfere with the sanction imposed , but to declare the decision null and void on the ground that it exceeded the extreme limits of the commission 's margin of discretion .

The respondent 's lawyer contended that the judgment of the first - instance court was just and challenged the claims of the appellant 's lawyer by arguing that ORG does not have the authority to interfere in matters of sanction , unless the disciplinary body had clearly exceeded the extreme limits of its margin of discretion . She also stated that the assessment of the facts and the severity of the sanction were beyond the jurisdiction of ORG .

We concur with the opening address of the respondent 's lawyer . In fact , it has been established , under LAW , that ORG is not competent , amongst other things , to determine the severity of a disciplinary sanction .

The first - instance court , on examining the issue of the discretionary power of the commission , stated the following on page CARDINAL of its judgment :

' Having carefully examined the case file , as well as the relevant verbatim record , where the ratio decidendi and the statement of reasons are included in detail , I judge that ORG imposed the sanction of dismissal on the applicant justly and lawfully , without exceeding the limits of its discretionary power . ORG , as it is explicitly reported in the relevant transcript ( see Appendix CARDINAL of the Plea ) took into account the applicant 's various mitigating circumstances before reaching a decision . ORG discretionary power was not related to pension issues , but only to the matter of the sanction . The sanction imposed on the applicant entailed , according to the same PERSON , the forfeiture of all his entitlements upon discharge . '

This conclusion of the first - instance court is correct . The commission chose to impose the severest sanction . This decision was within its jurisdiction . It has not been demonstrated that the commission did not act within the extreme limits of its margin of discretion , either due to the fact that it acted irrationally or due to the fact that it acted in breach of the principles of good administration , the latter including the principle of proportionality , on which the appellant 's lawyer has essentially based his case .

The fact that ORG imposed the severest sanction provided for by the relevant law even though it had established the existence of mitigating circumstances does not demonstrate that it did not act within the extreme limits of its margin of discretion . Evidently , as shown by its decision , it deemed that , despite the existence of mitigating circumstances , the seriousness and the effects of the offence were such that it was justified in imposing the severest sanction provided for by law . This follows from the commission 's decision , in which , while highlighting the seriousness of the offences , it also referred to parts of the decision of the criminal court . Below is a quote from ORG decision :

' The ORG has no other choice but to consider the offences , on the grounds of which the public servant in question was sentenced to prison , as being of the gravest nature . As the judge who tried the case aptly said :

“ The one and only aim of his actions was to promote himself as a person who could easily solve all of the problems on the island due to the financial strength of the Co - operative ORG , which he claimed to have founded himself . I should , at this point , underline the fact that he was managing the resources of ORG as though they were his private property . However , he had no right to use the ORG 's resources for purposes other than those for which the ORG - operative Institutions had entrusted him with significant sums of money .

His bad faith is also evident , amongst other things , in the fact that he took great care to conceal the source of the funds whenever he made payments for purposes other than those for which he had been entrusted with the money . He viewed the ORG an inexhaustible source of resources that allowed him to be popular with those in positions of power as well as his friends .

The fact that large sums of money were given away to charities does not exonerate the defendant from responsibility for his actions . Philanthropic acts using funds provided by others do not constitute charity at all , but are merely acts of exploitation and self - promotion . ” '

Following this and prior to reaching a decision on the sanction to be imposed , the commission also stated the following :

' A high - ranking official who shows such disregard for his responsibilities and duties as in the present case and who , additionally , so openly violates the law and/or the regulations of service in order to promote himself as a benefactor of society places himself out of the public service . '

For all the above reasons , the appeal is dismissed with all expenses to be paid by the appellant . ”

At the material time , the relevant parts of section CARDINAL of LAW ( no . CARDINAL/CARDINAL ) read as follows :

“ CARDINAL . In accordance with the present PERSON , the following disciplinary penalties may be imposed : ...

( a ) reprimand

( b ) severe reprimand

( c ) disciplinary transfer

( d ) interruption of DATE salary increase

( e ) suspension of DATE salary increase

( f ) pecuniary penalty which can not exceed DATE salary

( g ) reduction in the salary scales

( h ) reduction to the ranks

( i ) NORP compulsory retirement

( j ) dismissal .

Dismissal entails the loss of all retirement benefits . ”

A revised version of section CARDINAL(CARDINAL ) of the PERSON is now in force in GPE and provides as follows :

“ Dismissal entails the loss of all retirement benefits . It is understood that a pension is paid to the wife or dependent children , if any , of a public servant who was dismissed as though he had died on DATE of his dismissal and which will be calculated on the basis of his actual DATE of service . ”

Under the provisions of LAW , the duties and responsibilities for posts in the public service are set out in the relevant “ schemes of service ” , approved by ORG . According to the scheme of service for the post of Governor of ORG held by the applicant , the duties and responsibilities were as follows :

“ Management of ORG - operative Development and responsibility for the promotion , development and orderly operation of the Co - operative ORG in the island . Exercise of the power and duties provided by the relevant laws and regulations . Adviser to the Minister of Finance on co - operative matters . Represents the Co - operative ORG in various committees and bodies . Performance of any other duties which may be assigned to him . ”

A public servant 's entitlement to a pension is governed by GPE , LAW . LAW , which was in force at the time of the applicant 's dismissal , provided that no pension , gratuity or other allowance shall be granted except upon retirement from the public service in CARDINAL of the cases specifically enumerated . Section CARDINAL(f ) referred to “ the case of termination of employment in the public interest as provided in this Law ” , that is section CARDINAL of the PERSON , which in turn provided as follows :

“ Where an officer '

Until DATE , section CARDINAL(CARDINAL ) of LAW provided as follows :

“ No officer shall have an absolute right to compensation for past services or to pension , gratuity or other allowance ; nor shall anything in this PERSON affect the right of the Crown to dismiss any other officer at any time and without compensation . ”

This section was repealed by Law no . CARDINAL/CARDINAL , which came into force on DATE .

Furthermore , section CARDINAL(CARDINAL ) of the same PERSON , which read :

“ Pensions , gratuities and other allowances may be granted by the Governor in accordance with the regulations contained in the Schedule to this Law to Officers who have been in the service under the Government of GPE ... ”

was amended by PERSON no . CARDINAL/CARDINAL by replacing the word “ may ” with the word “ shall ” .

Regulation CARDINAL , issued under LAW , which provided :

“ Subject to the provisions of the PERSON and of these LAW , every officer holding a pensionable office under the Government of GPE , who has been in the service under ORG in a civil capacity for DATE or more , may be granted on retirement a pension at the DATE rate of CARDINAL QUANTITY of his pensionable emoluments for DATE of his pensionable service . ”

was also amended by PERSON no . CARDINAL/CARDINAL by replacing the word “ may ” with the word “ shall ” .

Article CARDINAL § CARDINAL of the LAW reads as follows :

“ There shall be charged on ORG , in addition to any grant , remuneration or other moneys charged by any other provision of this LAW or law

( a ) NORP all pensions and gratuities for which the Republic is liable ... ”

Article CARDINAL CARDINAL of the LAW reads as follows :

“ Treaties , conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have , as from their publication in the official ORG , superior force to any municipal law on condition that such treaties , conventions and agreements are applied by the other party thereto . ”

The relevant parts of LAW read as follows :

“ CARDINAL . Every person , alone or jointly with others , has the right to acquire , own , possess , enjoy or dispose of any movable or immovable property and has the right to respect for such a right . The right of the Republic to underground water , minerals and antiquities is reserved .

No deprivation or restriction or limitation of any such right shall be made except as provided in this Article .

Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals , or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others , may be imposed by law on the exercise of such a right .

Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property ; in case of disagreement , such compensation is to be determined by a civil court .

Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the ORG , or by a municipal corporation or by a ORG for educational , religious , charitable or sporting institutions , bodies or establishments within its competence and only from the persons belonging to its respective community , or by a public corporation or a public utility body on which such a right has been conferred by law and DATE

( a ) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within DATE from DATE coming into operation of this LAW ;

( b ) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition ;

( c ) upon payment in cash and in advance of just and equitable compensation , to be determined in case of disagreement by a civil court .

“ CARDINAL . ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or an omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person .

Such a recourse may be made by a person whose any existing legitimate interest , which he has either as a person or by virtue of being a member of a ORG , is adversely and directly affected by such decision or act or omission .

Such a recourse shall be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse .

Upon such a recourse the ORG may , by its decision

( a ) confirm , either in whole or in part , such decision or act or omission ; or

( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever ; or

( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed .

Any decision given under paragraph CARDINAL of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned .

The applicant attached to his further observations on the merits ( dated DATE ) in reply to the ORG 's observations a document established by ORG on DATE , in which the following is specified :

“ It is a well - known fact that the pension constitutes an integral part of the employment contract that the GPE government offers to all of its employees , namely civil servants .

This is a hard - earned right that the unions have secured over DATE and the government has undertaken to pay such a pension as part of the employment contract . This can also be seen from the schemes of service that the government has .

A civil service position is accompanied by a compulsory retirement scheme , which consists of receiving certain retirement benefits at the end of one 's employment , which include a DATE pension and a lump sum .

This is part of the overall employment package the government undertakes to provide , and civil servants contribute with DATE of service and by having a certain amount deducted from their salary by way of taxes . This package is based on the employment relationship and the government has undertaken to finance it and provide it at the end of an employee 's career . ”


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government were represented by their Agents , PERSON and subsequently by PERSON .

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

On DATE the applicant complained to ORG and Town Planning ( ORG zaštite okoliša i prostornog uređenja – “ the Ministry ” ) that her flat in PERSON had frequently been flooded from the flat above , where her neighbours GPE and GPE were “ drilling holes ” .

On DATE and CARDINAL DATE the ORG made in situ inspections in the applicant ’s flat and established the existence of damp stains of unknown origin .

On DATE the ORG gave decision ( rješenje ) finding that , because of the frequent flooding of the applicant ’s flat from the neighbouring one , her life and health were in serious danger since the water had also damaged electric installations . ORG ordered the neighbours to repair the sewage and water pipes in their flat within DATE following the receipt of the decision and indicated that otherwise it would fine them CARDINAL NORP kunas ( HRK ) . Since the parties did not appeal , the decision became final .

On DATE the neighbours informed the ORG that they had made the repairs indicated and thereby complied with the decision .

On DATE the ORG made another in situ inspection and established that the ceiling and the walls were dry and that there were no traces of damp . However , on DATE the applicant informed ORG that the wet stains had reappeared .

On DATE the ORG made another in situ inspection during which GPE promised to call a plumber to repair the pipes .

The applicant submits that on CARDINAL and DATE she invited GPE to inspect her flat and that GPE did so . She further submits that on DATE the plumber shortly visited her flat without making any repairs , and that ORG also visited her flat with the plumber on CARDINAL occasions .

On DATE the applicant phoned ORG and complained that the neighbours had done nothing to stop the leakage . After that date she did not contact the Ministry again .

On DATE the ORG issued an enforcement order ( zaključak o dozvoli izvršenja ) establishing that its decision of DATE had become enforceable and that the neighbours had not complied with it . Consequently , the ORG fined the neighbours HRK CARDINAL,CARDINAL . The neighbours were again ordered to repair the pipes , or the order would be carried out by another person at their expense .

On DATE NORP informed ORG that it was impossible for her to comply with the order . She argued that she had been unable to locate the pipe damage since the applicant had not allowed her or the plumber to enter her flat on QUANTITY occasions ( DATE ) . Relying on the same arguments , GPE appealed against the enforcement order to the second instance authority within ORG . On DATE her appeal was dismissed .

It appears that , to date , the enforcement order has not been carried out .

The DATE LAW ( Ustav PERSON , ORG no . CARDINAL ( consolidated text ) ) guarantees as fundamental rights , inter alia , the right to a fair trial within a reasonable time ( LAW ) , the right to respect for home ( LAW ) and right to property ( LAW ) .

Sections CARDINAL -CARDINAL of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL , CARDINAL/CARDINAL and DATE ) provide for special proceedings for the protection of constitutional rights and freedoms from unlawful ( physical ) acts ( or omissions ) of public officials , if no other judicial remedy is available .

Section CARDINAL provides that these proceedings shall be instituted by bringing an ‘ action against the unlawful act’ in the competent municipal court . The action shall be brought against the public authority to which the act ( or omission ) is imputable ( the respondent ) .

Section CARDINAL provides that in the proceedings following an ‘ action against the unlawful act’ the court shall proceed urgently .

Section CARDINAL provides that the court shall without delay serve the complaint on the respondent and set a time - limit for reply . However , the court may , depending on the circumstances , give a decision immediately . Under the case - law of ORG ( decision no . PERSON - CARDINAL of DATE ) , the court may give a decision even without holding a hearing .

Section CARDINAL provides that the court shall decide on the merits of the case by a judgment . If it finds in favour of the plaintiff , the court shall order the respondent to desist from the unlawful activity and , if necessary , order restitutio in integrum .

Section CARDINAL provides that parties may appeal to the competent county court against the first instance decision within DATE following the service . An appeal does not postpone the enforcement , but the court may , if it finds it necessary , decide otherwise . No appeal on points of law ( revizija ) lies against the second instance decision . In the proceedings following an ‘ action against the unlawful act’ the court shall apply mutatis mutandis the provisions of LAW .

Sections DATE provide that , if the court finds in favour of the plaintiff , the respondent shall comply with the judgment within DATE following the service . If it fails to do so , the enforcement shall be carried out in the judicial enforcement proceedings . In addition , disciplinary proceedings for a grave disciplinary offence shall be instituted against the responsible official who may also be fined .

In its decision no . Us-CARDINAL/CARDINAL of CARDINAL DATE ORG held that failure of the administrative authorities to carry out their own enforcement order constituted ‘ unlawful act’ within the meaning of Section CARDINAL of LAW . In its decision no . Gž-CARDINAL/CARDINAL of DATE ORG reached the same conclusion .


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Mr PERSON , a NORP national born in DATE , is an inspector of electronic equipment with an annual salary of MONEY ( ORG ) , but he often has to take sick - leave .

ORG He was infected with the human immunodeficiency virus ( HIV ) DATE and DATE . As a severe A - haemophiliac he had received frequent blood transfusions . As early as DATE he was classified as having reached stage IV , the last stage of infection , on the scale of ORG .

Mr PERSON is CARDINAL of CARDINAL brothers , all infected with the human immunodeficiency virus . Being unaware that he was HIV - positive , he infected his girlfriend .

ORG On DATE the applicant submitted a preliminary claim for compensation to the Minister for ORG , ORG , in accordance with LAW ( see paragraph CARDINAL below ) . He sought ORG , maintaining that he had been infected with the human immunodeficiency virus as a result of the Minister ’s negligent delay in implementing appropriate rules for the supply of blood products .

CARDINAL similar claims were sent to the Minister ; the number of haemophiliacs who had been infected was CARDINAL .

ORG On DATE , shortly before the expiry of the statutory DATE time - limit ( see paragraph CARDINAL below ) , the Director - General for Health rejected the applicant ’s claim .

ORG On DATE Mr Vallée lodged an application with ORG for the annulment of the ministerial decision and for compensation from the ORG in the amount of ORG plus statutory interest . On DATE he submitted a supplementary memorial .

The Minister filed his defence pleadings on DATE . In them he called on the court to " dismiss the applicant ’s claim " but added :

" However , in the event of the court ’s accepting the principle of negligence on the part of the ORG , I would ask you to appoint an expert with a view to establishing whether the damage for which the applicant seeks compensation is genuinely attributable to such negligence . "

ORG Under an order of CARDINAL DATE transferring jurisdiction , made pursuant to Article R.CARDINAL et seq . of ORG , the case was referred to ORG , which had been designated to deal with all the applications lodged against the ORG by infected haemophiliacs .

ORG On DATE ORG sent the applicant ’s lawyer an official request for information , asking him to indicate the date on which the applicant had learned he was HIV - positive and his current state of health . Although he had already provided a copy of his haemophiliac ’s health record with his supplementary memorial of DATE , Mr PERSON immediately sent the court a memorial together with a medical certificate , which summarised the situation as follows :

" Subject to any new developments , the last negative result in a serological test was recorded in DATE and the first positive result in DATE . Since these results were obtained with first - generation tests , a serological control is being performed using serum - bank samples taken on DATE , CARDINAL DATE and DATE .

From a clinical point of view , the patient ’s general state of health is good but he was assigned to group PERSON of the ORG classification on account of herpes zoster , which he contracted in DATE . The DATE performed in DATE also revealed skin mycosis . From a biological point of view , his CDCARDINAL + lymphocyte count is CARDINAL per mmCARDINAL . The patient is not receiving any special treatment at present . PERSON should shortly be prescribed . "

To supplement the information given in the medical certificate the applicant also indicated in his memorial that :

" The Centre Air et Soleil run by PERSON did not prescribe any blood transfusions from DATE to DATE .

However , except for serious incidents , for which he received treatment at the centre , Mr Vallée effected transfusions himself at home , and his haemophiliac ’s health record ( see exhibit no . CARDINAL to the supplementary memorial ) shows that he injected himself with ORG on DATE , DATE , CARDINAL May and CARDINAL DATE .

There are accordingly sufficiently serious , precise and concurring grounds for supposing that Mr PERSON was infected DATE and DATE . "

ORG The case was set down for hearing on DATE . On DATE the court gave an interlocutory decision as follows :

" ... The ORG is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non - heat - treated blood products during the period of liability defined above , that is DATE and DATE . "

It also ordered the applicant to send it " the results of the serological tests performed on the blood samples taken on DATE , CARDINAL DATE and DATE " .

The decision was served on Mr Vallée DATE . On DATE he filed a memorial to which the documents requested were appended .

ORG A hearing took place on DATE . In his submissions the Government Commissioner ( commissaire du gouvernement ) recommended that the court should order the ORG to pay the applicant compensation of ORG CARDINAL , plus interest at the statutory rate from CARDINAL DATE . This amount was higher than the sum of ORG CARDINAL,CARDINAL,CARDINAL normally awarded to persons who had reached stage IV of the illness , to take into account the fact that all of Mr PERSON ’s brothers had likewise been infected and that he himself had been infected while still very young .

On DATE the applicant ’s lawyer wrote to the President of the court to express his concern that no judgment had yet been served on his client .

A further hearing was held on DATE .

ORG On DATE ORG gave the following judgment :

" The ORG ’s liability

The investigation has shown that on DATE Mr Vallée did not have any antibodies revealing the presence of human immunodeficiency virus and that he was found to be HIV - positive on DATE after having undergone transfusions of non - heat - treated blood products in DATE and DATE ; the ORG is accordingly liable vis - à - vis the applicant for the damage suffered as a result of the transfusions he received DATE and DATE ;

Mr PERSON will be adequately compensated for all his problems by an award of FRF CARDINAL ; "

In the same decision the court - acting under LAW of the LAW of DATE ( see paragraph CARDINAL below ) - referred the case to the PERSON d’Etat for an opinion on a point of law concerning the application Mr PERSON had made concurrently to ORG ( see paragraph CARDINAL below ) . It accordingly deferred its final decision until the PERSON d’Etat had given its opinion or , if no opinion was forthcoming , until DATE after the date on which the file was forwarded to the ORG d’Etat .

The judgment was served on Mr PERSON on DATE , and the file was transmitted to the ORG d’Etat DATE .

ORG On DATE the applicant filed a memorial . His main submission was that the request for an opinion was inadmissible ; in the alternative he pointed out that an opinion was not necessary because the issue had already been determined by the ORG d’Etat .

On DATE , since the ORG d’Etat had not given its opinion within the statutory time - limit , Mr PERSON requested ORG to give judgment without further delay .

On DATE the ORG d’Etat gave the following opinion :

" CARDINAL . The decree of DATE ... , which is applicable to cases pending at the date of its publication , ... provides a solution to the problem raised in ORG first question .

... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by CARDINAL party , when the evidence shows this to be the case , even if that party does not file submissions , on the basis of its subrogation to the rights of the victim , seeking the reimbursement of the amounts it has paid as compensation for the damage suffered by the latter .

Accordingly , an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must , when it has been informed by CARDINAL of the parties that the victim or his heirs have already received compensation for the damage complained of , deduct of its own motion such compensation from the amount payable in respect of the damage .

Where the sum offered by the ORG has been accepted by the claimants , or where a sum has been fixed in a judgment of ORG , against which no appeal on points of law has been lodged , or again where an appeal on points of law against ORG ’s judgment has been dismissed by ORG , it should be held that all or part of the damage complained of has been actually and finally compensated by the ORG . Consequently it is incumbent on an administrative court which has been informed that this is the case to deduct , of its own motion , the amount thus owed by the ORG from the compensation which it orders the public authority liable for the damage to pay to the victim . "

ORG held a further hearing on DATE . On DATE it gave the following decision :

" LAW is ordered to pay Mr ORG the sum of FRF CARDINAL .

LAW This amount shall bear interest from DATE at the statutory rate . The sum of ORG CARDINAL paid to Mr PERSON by ORG and GPE shall bear interest at the statutory rate from DATE until DATE .

Article CARDINAL : The interest due on the FRF CARDINAL as at CARDINAL DATE and DATE shall be capitalised on each of those dates so that it also bears interest . The interest due on the FRF CARDINAL,CARDINAL,CARDINAL as at CARDINAL DATE shall be capitalised on DATE so that it also bears interest until DATE .

DATE : The ORG shall be subrogated to the rights of Mr PERSON any party acknowledged to have jointly caused the damage for which reparation is made in this judgment .

The judgment was served on Mr PERSON on DATE . The time - limit for filing an appeal will expire on CARDINAL DATE . At the date of the adoption of the present judgment , the applicant had not appealed to ORG .

ORG On DATE Mr ORG submitted a claim to ORG set up by LAW of DATE ( see paragraph CARDINAL below ) .

On DATE the ORG offered him as " HIV - infection compensation " a sum of ORG CARDINAL,CARDINAL,CARDINAL , payable in CARDINAL instalments over DATE , from which ORG CARDINAL paid out by the private CARDINAL solidarity fund was to be deducted . In addition the applicant was to receive a sum of ORG CARDINAL,CARDINAL as soon as he developed AIDS ( acquired immunodeficiency syndrome ) .

ORG The applicant turned down this offer and appealed to ORG under section CARDINAL VIII of the Act of DATE .

In a judgment of CARDINAL DATE that court decided that the HIV - infection compensation should be paid in a single instalment . On the other hand , it upheld the ORG ’s decision to pay the " AIDS compensation " of ORG QUANTITY only at a later date .

On DATE the ORG sent the applicant a cheque for ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL .

Mr PERSON appealed on points of law , seeking a declaration that it was unlawful to defer payment of the " AIDS compensation " . ORG dismissed the appeal on DATE .

ORG On DATE Mr PERSON applied to ORG to be joined as a civil party to the proceedings at the trial of certain senior officials of the blood transfusion service .

On DATE the court awarded him ORG CARDINAL,CARDINAL as compensation for deception as to the quality of the products .

Mr PERSON appealed against the judgment but subsequently withdrew his appeal .

The Act of DATE making miscellaneous social - welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products . Section CARDINAL provides :

" I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the NORP Republic shall be compensated in the manner set out below .

II . ...

III . Full compensation for the damage defined in subsection I shall be provided by ORG , having legal personality , presided over by a serving or retired divisional president or judge of ORG and administered by a compensation board .

IV . In their claims for compensation , victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives .

Victims or their heirs shall communicate to the ORG all the information in their possession .

Within DATE of the receipt of a claim , a period which may be extended at the request of the victim or his heirs , the ORG shall consider whether the conditions for payment of compensation have been fulfilled . It shall investigate the circumstances under which the victim was infected and make any necessary inquiries , which may not be resisted on grounds of professional secrecy .

ORG shall be required to make an offer of compensation to any victim referred to in subsection I within a time - limit laid down by decree , which may not exceed DATE from DATE on which the ORG receives full proof of the damage ...

ORG . The victim shall inform the Fund of any judicial proceedings pending . If legal proceedings are brought , the victim shall inform the court of his application to the ORG .

VII . ...

ORG . The victim shall not be entitled to take legal action against ORG unless his claim for compensation has been dismissed , no offer has been made to him within the time - limit referred to in the first paragraph of subsection V , or he has not accepted an offer made to him . Proceedings shall be brought in ORG .

ORG . The Fund shall be subrogated , for an amount no higher than the sums paid out , to the victim ’s rights against the person liable for the damage and against persons required , for whatever reason , to make full or partial reparation for that damage , within the limits of those ORG liabilities . However , the ORG may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence .

The ORG may intervene in proceedings in the criminal courts , even if it does not do so until the appeal stage , where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .

If the acts which caused the damage have given rise to criminal proceedings , the civil court shall not be required to defer its decision until there has been a final decision by the criminal court .

X. Unless otherwise provided , the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the ORG d’Etat .

ORG . ...

ORG . ORG sources of revenue shall be specified in a subsequent LAW .

XIII . ...

ORG . ... "

ORG At the material time ORG contained , inter alia , the following provisions :

" Except in cases concerning public works , proceedings may not be instituted in ORG otherwise than in the form of an appeal against a decision ; such an appeal shall be lodged within DATE of the notification or the publication of the contested decision .

Where no reply is forthcoming from the relevant authority for DATE , that silence is to be construed as a decision rejecting the complaint .

" The President of ORG or of ORG , or a judge delegated by CARDINAL of them , may , where the existence of an obligation can not seriously be contested , award an advance to a creditor who has filed an application on the merits in the court in question . He may , even of his own motion , make the payment of the advance subject to the lodging of a security . "

" Immediately after the application instituting the proceedings has been registered by the registry , the president of the court or , in GPE , the president of the division to which the application has been transmitted , shall appoint a rapporteur .

Under the authority of the president of the court or division to which he belongs , the rapporteur He may request the parties to supply any evidence or documents relevant to the resolution of the dispute , which shall be added to the file so as to be accessible to all the parties . "

" A member of ORG or ORG may be assigned by the competent court or by the latter ’s president to carry out any investigative measures other than those provided for in DATE of this chapter . "

Section CARDINAL of the Act of DATE on the reform of the organisation and functioning of the administrative courts provides as follows :

" Before giving a decision on an application which raises a new point of law of particular difficulty arising in a large number of cases , ORG may , by a decision from which no appeal lies , transfer the case file to the ORG d’Etat , which shall examine the point at issue within DATE . The decision on the merits shall be deferred until the ORG d’Etat has given its opinion or , if no opinion is forthcoming , until the expiry of this time - limit . "

Decree no . CARDINAL - CARDINAL of DATE applies to all proceedings pending at the date of its publication . It lays down provisions for the implementation of section QUANTITY of the Act of DATE ( see paragraph CARDINAL above ) :

" Part II

Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section CARDINAL of the aforementioned LAW DATE

Article CARDINAL

In order to bring the action by subrogation provided for in subsection ORG of section CARDINAL of the aforementioned LAW DATE , the ORG may intervene in proceedings in any of the administrative or ordinary courts , even if it does not do so until the appeal stage . In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .

Article CARDINAL

The registries of the administrative and ordinary courts shall send the ORG by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section CARDINAL of the aforementioned LAW DATE .

Article CARDINAL

Within DATE of receipt of the letter referred to in LAW , the ORG shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and , if so , what stage the procedure has reached . It shall also state whether or not it intends to intervene in the proceedings .

Where the victim has accepted the offer made by ORG , the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted . The Fund shall , where relevant , indicate the stage reached in proceedings instituted in ORG under the provisions of Part I of this decree and forward any judgment delivered by that court .

The registry shall notify the parties of the information communicated by the ORG .

Article CARDINAL

The registry shall send the ORG copies of the decisions given at first instance and , where relevant , on appeal in proceedings in which the ORG has not intervened .

Article CARDINAL

Article CARDINAL

The provisions of ORG CARDINAL to CARDINAL shall be applicable to cases pending on the date of entry into force of [ this ] decree ... "


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

On CARDINAL DATE a warrant to search the applicant ’s home was granted by justices sitting at ORG under , inter alia , section CARDINAL ( CARDINAL ) of ORG DATE . The warrant authorised a search for cannabis and associated drug paraphernalia . It was granted on the basis of an ORG dated DATE , sworn by police constable PERSON , which set out the following grounds for the application :

“ In DATE , the police were contacted by an anonymous male stating that they had witnessed various persons visiting the target address at all times of DATE , both on foot and in vehicles . These persons were unknown to the source but only visited the target LOC for a matter of TIME before leaving . It has been stated that the LOC were involved in the supply of cannabis .

The source has since contacted the police and confirmed that the activity is constant .

This same unregistered source has contacted the police on several occasions and has supplied reliable information .

Enquiries with the council reveal that [ the applicant ] is the tenant of the semi - detached property and they have also received complaints in relation to vehicles visiting the address in DATE by local residents .

The vehicles , which are visiting the address on a regular basis , are used by the local drug fraternity who have previous criminal convictions for possession of cannabis . ”

The Information went on to outline why alternative methods of enquiry were considered unsuitable and why the search was necessary . It stated :

“ A search warrant is considered to be a proportionate response ” .

The warrant was executed on DATE . CARDINAL police officers searched the applicant ’s home for TIME , during which time the applicant and his wife were present . No items were found and no further action was taken against the applicant .

The applicant issued judicial review proceedings in DATE , alleging that the failure of the justices to give reasons for their decision or to make a record of the hearing at which the warrant was granted meant that there were no adequate or effective safeguards against abuse of the warrant procedure . He submitted that the information supplied to the justices was ambiguous and inconsistent ; for example because the “ anonymous ” male was also a “ source ” known to the police , and because the statement that the premises were involved in the supply of cannabis was merely an unattributed assertion . Moreover , the source of the statement about the use of the vehicles by the local “ drug fraternity ” was unclear .

Permission to apply for judicial review was granted on DATE . Witness statements were served from the police officer , the CARDINAL lay magistrates and the legal adviser who were at the hearing on DATE . The police officer made CARDINAL statements , the second of which outlined police concerns that , as applications for warrants were often based on confidential information , recording of the evidence or the justices’ reasons at the hearing of an application for a warrant could have a severe impact on police effectiveness . As to the particular application , the officer recalled being asked various questions by the justices about the vehicles mentioned in the ORG and the geographical layout of the area .

The legal adviser to the justices , although unable to remember the specific case , gave details in his statement of his “ invariable practice ” when dealing with applications for warrants . In particular , he stated that he would draw the ORG attention to the relevant statutory requirements and if any matters arose during the application which did not appear within the body of the ORG , he would direct the justices to endorse those matters on the Information . In general , he asserted that the ORG itself became the written record of evidence , together with any additional comments noted as a result of the justices’ questions to the constable . Taking a full note of the evidence would therefore simply be to restate the facts already set out in the ORG and serve no useful purpose .

In ORG judgment on DATE , the Lord Chief Justice , dismissing the application and endorsing the views of the legal adviser to the justices , said :

“ CARDINAL . The evidence that exists in this case , as it seems to me , shows that the safeguards which the statute rightly requires and which article CARDINAL makes necessary , which would also be required in the appropriate circumstances by article CARDINAL , were fully complied with . In considering compliance with article CARDINAL and article CARDINAL the facts of the particular case will in the end always be decisive . When justices accept an information as containing all the material upon which they rely as satisfying them ... it is unreasonable to require them to make a note . If a particular matter is elicited in the course of questioning the deponent who is seeking the warrant , then ... it would be desirable to make a note of that matter , not only for the benefit of any subsequent citizen who wished to challenge the legality of the warrant , but also to protect the justices and police from unwarranted allegations . ”

The Lord Chief Justice went on to say that , in the applicant ’s case :

“ The material upon which the warrant was issued is clearly contained in the information and the basis on which the warrant was issued is obvious without any need for the justice merely to repeat that he is satisfied as required by LAW . To require the justice to set out that he was so satisfied would serve no purpose whatsoever . ”

ORG referred with approval to the prescribed form in which ORG was contained , noting that it appeared to have been carefully drafted with Articles DATE and CARDINAL of the LAW in mind . The court concluded that , whilst an exceptional case would have to be considered on its merits , in the ordinary case it would be unreasonable to require anything additional to the ORG itself , which the person affected ought to be able to obtain . The court refused permission to appeal , as did ORG itself on DATE .

Section CARDINAL of the Police and Criminal Evidence Act CARDINAL ( “ PACE ” ) provides :

“ Search warrants - safeguards . ( CARDINAL ) This section and LAW below have effect in relation to the issue to constables under any enactment , including an enactment contained in an LAW passed after this LAW , of warrants to enter and search LOC ; and an entry or search of LOC under a warrant is unlawful unless it complies with this section and LAW below .

( CARDINAL ) Where a constable applies for any such warrant , it shall be his duty-(a ) to ORG ) the ground on which he makes the application ; and ( ii ) the enactment under which the warrant would be issued ; ( b ) to specify the premises which it is desired to enter and search ; and ( c ) to identify , so far as is practicable , the articles or persons to be sought .

( CARDINAL ) An application for such a warrant shall be made ex parte and supported by an information in writing .

( CARDINAL ) The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him .

( CARDINAL ) A warrant shall authorise an entry on CARDINAL occasion only .

( CARDINAL ) A warrant-(a ) shall specify-(i ) the name of the person who applies for it ; ( ii ) the date on which it is issued ; ( iii ) the enactment under which it is issued ; and ( iv ) the premises to be searched ; and ( b ) shall identify , so far as is practicable , the articles or persons to be sought .

( CARDINAL ) CARDINAL copies shall be made of a warrant .

( CARDINAL) The copies shall be clearly certified as copies . ”

Section CARDINAL of PACE deals with the procedure for the execution of a warrant .

Code B of PACE , set out under LAW , includes provision that an application for a warrant should not be made on the basis of uncorroborated anonymous information .

Section CARDINAL ( CARDINAL ) of ORG DATE provides , as relevant :

“ If a justice of the peace ... is satisfied by information on oath that there is reasonable ground for suspecting- ( a ) that any controlled drugs are , in contravention of this LAW or of any regulations made thereunder , in the possession of a person on any LOC ; ... he may grant a warrant authorising any constable acting for the police area in which the LOC are situated at any time or times within DATE from DATE of the warrant , to enter , if need be by force , the LOC named in the warrant , and to search the LOC and any persons found therein ... ”


No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Burundi);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Burundi)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE .

On DATE the applicant arrived in GPE . He applied for asylum DATE . He stated , in interviews and written submissions , that he is of mixed NORP / NORP ethnicity and that his mother and younger brother had been killed in DATE during ethnic violence . Following the victory in the DATE general elections by PERSON ( ORG pour la Défense de la Démocratie ORG ) , that party had set out to imprison and assassinate people suspected of being members of Palipehutu - FNL ( ORG pour la ORG du Peuple Hutu – Forces ORG ) and other organisations hostile to LOC . He claimed that he and his family had been threatened and harassed on several occasions , being accused of collaborating with the ORG group . On DATE CNDD - ORG supporters had come to the family ’s home and had killed the applicant ’s father and arrested the applicant . He had then been detained for DATE , during which time he had been beaten and tortured DATE . A return to GPE would entail the risk of renewed detention and torture as well as death , as he would be able to give evidence about what had happened to his family .

On DATE ORG ( Migrationsverket ) rejected his application . It stated that the general situation in GPE , due to recent improvements , was not a sufficient ground for asylum . It further considered that the events alleged by the applicant had to be seen as acts of individual soldiers which did not constitute persecution by the PERSON authorities . Moreover , the applicant had not shown that the authorities were unwilling or unable to protect him from such crimes . ORG also considered that the situation in GPE had changed since DATE and that there was no evidence that the applicant would any longer be of interest to the authorities or the ORG . Thus , he had not made plausible that there was a real risk of ill - treatment upon return .

The applicant appealed to ORG ( NORP - domstolen ) in GPE . He submitted a search warrant dated DATE , purportedly issued by the NORP intelligence service ( ORG ) , which had allegedly been given to a friend of his father and forwarded to the applicant by that friend ’s wife . He further submitted a death certificate concerning his father issued by a hospital in GPE . At the oral hearing before the court , he claimed that he had not been politically active in GPE but had been involved in an organisation working for peace . He further stated that a guard had helped him to flee from detention . Then his father ’s friend had contacted a man who had taken him out of the country . His father ’s friend had subsequently been arrested .

On DATE the court rejected the appeal . It noted that the applicant had not proved his identity . Moreover , it found that his explanation how he had come into possession of the above - mentioned documents of the security police and the hospital was peculiar . In these circumstances , the court considered that the documents had a low value as evidence . It further called into question the applicant ’s account on how he had been able to flee the prison and then leave the country without himself showing identity papers en route . Thus , in general , the applicant was not credible . As to the alleged risks facing him in GPE , the court noted that he had not been politically active or otherwise active in seeking justice for the alleged crimes against his family . It therefore questioned that the PERSON authorities would have any particular interest in him .

Following the applicant ’s further appeal , on DATE ORG ( Migrationsöverdomstolen ) refused him leave to appeal .

On CARDINAL subsequent occasions , the applicant claimed that there were impediments to his deportation and requested that his application for a residence permit be examined anew . In support of the second of these applications , he submitted a birth certificate and other documents to prove his identity . He further stated that he had been the deputy head of the youth section of ORG ( ORG pour la PERSON ) , a NORP organisation working for peace and reconciliation in GPE . Because of his membership in ORG and also due to his having refused to join the ORG , the latter organisation had tried to kill him several times and had also extorted food and money from his family . Moreover , in DATE , the applicant had been informed that his remaining CARDINAL siblings , who had been abducted by CNDD - ORG members on CARDINAL DATE , had been found murdered . Previously , he had not known of their fate .

By decisions of DATE and CARDINAL DATE , ORG found that the applicant ’s new submissions were just additions or modifications of circumstances already alleged which could neither qualify as impediments to deportation or reasons to examine his asylum application anew .

NORP In his third application for a new examination , the applicant added that he had been politically active in GPE , having organised and participated in several demonstrations against the government of GPE . He had also received telephone calls from an unknown person , who had stated that the NORP government knew of these activities and would kill him upon return to the country .

On DATE ORG did not find that the applicant had made it plausible that he would risk persecution in GPE on account of sur place activities in GPE . Thus , no new circumstances constituting an impediment to his deportation had been adduced . Nor were there reasons to re - examine the question of a residence permit .

The applicant ’s appeals against ORG decisions of DATE and CARDINAL DATE were rejected by ORG . It appears that the applicant did not appeal against the ORG ’s decision of DATE .

On DATE , following the ORG ’s decision under LAW ( see paragraph CARDINAL above ) , ORG decided to stay the applicant ’s deportation until further notice .

The basic provisions applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) .

An alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE ( LAW , LAW CARDINAL of the CARDINAL Act ) . The term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country ( Chapter CARDINAL , section CARDINAL ) . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( Chapter CARDINAL , section CARDINAL ) .

NORP Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section CARDINAL ) . Special consideration should be given , inter alia , to the alien ’s health status . According to the preparatory works ( Government PERSON , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for the grant of a residence permit .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , section CARDINAL ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced ( LAW , section CARDINAL ) . If a residence permit can not be granted under this criteria , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , section CARDINAL ) .

NORP Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances : ORG , ORG and ORG ( LAW , section CARDINAL , and LAW , section CARDINAL ) .