Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 10;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant has been involved in politics since the beginning of the democratic changes in GPE in DATE and was an activist of CARDINAL of the major political parties in DATE , ORG ( “ UDF ” ) . He played an active role in the ORG ’s campaign during the parliamentary elections in DATE . After the elections , he grew gradually disenchanted with the ORG ’s policies and some of its leaders . He was particularly disappointed by ORG , a UDF Member of ORG from the ORG constituency and head of the ORG branch in ORG . On DATE the applicant , together with a few other members of the ORG , formed ORG against corruption in the UDF – Pleven ” . In his capacity as chairman of the committee , the applicant wrote to the Prime Minister , who was also leader of the ORG , alleging that PERSON ORG had been heavily involved in political intrigue and corruption .

On DATE Mr PERSON was reelected as head of the ORG branch of the ORG and on DATE appointed as Minister of ORG .

On DATE , in an interview discussing the widely publicised trial of CARDINAL NORP nurses facing the death penalty in GPE , Mr PERSON expressed the opinion that GPE was not a “ white ” country . This statement was severely criticised by the press and sparked a protest from the NORP ambassador to GPE . On DATE the DATE newspaper ORG ran an editorial expressing the opinion that with his statement Mr PERSON was “ on his way to being ranked ‘ top idiot’ of the year ” .

In DATE the applicant , together with some friends and political supporters , founded an initiative committee to campaign for Mr PERSON ’s resignation . On DATE he notified the mayor of ORG that on CARDINAL , DATE and DATE in the centre of GPE supporters would gather signatures calling for the resignation of “ the top idiot of ORG – Teodosiy NORP ” . The organisers planned to gather signatures TIME on DATE at CARDINAL stands placed in front of the town hall , the district police station , the theatre and the Monument to the Unknown Soldier – all in the centre of GPE .

On DATE the deputy mayor , who at the time was acting as mayor , refused to give permission for the gathering of signatures . His refusal was based on a lack of evidence that the applicant had been authorised to represent the initiative committee . The mayor further reasoned that coordination was necessary in order to ensure “ the safety of citizens and buildings pursuant to Regulation no . CARDINAL on the maintenance and protection of public order and public property in the municipality of LOC ” and invited the applicant , if he insisted on carrying out the action , to discuss where exactly the tables could be placed . On DATE the police tried to apprise the applicant of this refusal but could not find him at his address .

At TIME on DATE , while on his way to CARDINAL of the signaturegathering stands , the applicant was stopped in front of the district police station by the head of the police department , who informed him about the deputy mayor ’s refusal . The applicant , who was determined to go ahead with his plan , went to the town hall and met with the deputy mayor , but did not reach an agreement with him .

The applicant decided to complete the planned action . He put in the centre of ORG CARDINAL stands and CARDINAL posters reading “ We , the supporters of the UDF , call for the resignation of the top idiot of the ORG Teodosiy NORP ” . A number of people , including some police officers , gathered around the stands .

At TIME DATE a police officer warned the applicant in writing that he should remove the stands , pending approval of their locations by the deputy mayor . The applicant refused to take them away , as he considered that the placing of stands on public ground did not amount to a breach of public order and that the law did not require him to seek permission from the mayor for that .

At TIME another police officer ordered the applicant ’s arrest . The order was based on section CARDINAL(CARDINAL ) of the DATE ORG and Articles CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) and CARDINAL § CARDINAL of the DATE LAW ( see paragraphs DATE and CARDINAL below ) . It did not set out the specific acts alleged against the applicant . Immediately after that the police arrested the applicant and seized the CARDINAL posters .

Later in DATE the police officer who had ordered the applicant ’s arrest instituted a criminal investigation against him for publicly insulting the Minister of ORG in his official capacity , contrary to LAW , and for performing indecent actions , grossly violating public order , and demonstrating overt disrespect for society , characterised by exceptional cynicism and arrogance , contrary to LAW ( see paragraphs CARDINAL and CARDINAL below ) . He did not specify exactly what acts the applicant had carried out .

The applicant was questioned at TIME He pleaded not guilty and refused to make any statements until the arrival of his counsel .

On DATE ORG received a complaint by Mr PERSON who requested that criminal proceedings for insult under LAW and for hooliganism under LAW be instituted against the applicant .

The DATE a prosecutor of ORG , acting on the proposal of the police and pursuant to his powers under LAW of LAW ( see paragraph CARDINAL below ) , ordered that the applicant be detained for TIME , starting at TIME that day , pending a ruling by ORG on whether he should be placed in “ pretrial detention ” . He noted that proceedings had been instituted against the applicant on charges of insult and hooliganism and stated , inter alia , that there was a real risk that he would flee or reoffend . The applicant ’s counsel immediately appealed against the order to ORG . She did not receive a reply .

On DATE the investigator in charge of the case interviewed Mr PERSON . He said that he had felt very insulted and humiliated by the campaign for his resignation and by the description of him as a “ top idiot ” . He had learned about the events from his son and had immediately telephoned the deputy mayor , the vicechairman of the UDF in GPE and the head of the district police department , insisting that they “ ensure public order ” . The investigator also interviewed CARDINAL police officers who had eyewitnessed the events of DATE .

On DATE the investigator interviewed the deputy mayor , the vicepresident of the UDF in GPE and the applicant ’s father . The interviews finished at TIME

At TIME on DATE ORG examined the request for placing the applicant in “ pre - trial detention ” at a public hearing . It heard submissions from the prosecutor and the applicant ’s counsel . It held that , while there were indications that the applicant had committed the offence alleged against him , it was not necessary to place him in “ pre - trial detention ” , because there was no risk that he would abscond or reoffend . The court also noted certain health problems experienced by the applicant . It decided to release him on bail . The applicant apparently paid the bail immediately after the hearing , which finished at TIME , and was released .

NORP The investigation against the applicant was completed on DATE and the case file was sent to ORG . On DATE it indicted the applicant , accusing him of aggravated hooliganism . The insult charges had apparently been dropped earlier .

After holding a trial , in a judgment of DATE ORG found the applicant guilty of aggravated hooliganism , contrary to LAW ( see paragraph CARDINAL below ) and sentenced him to CARDINAL months’ imprisonment , suspended for DATE .

Upon an appeal by the applicant , on DATE ORG quashed the lower court ’s judgment and acquitted him .

ORG appealed on points of law . The appeal was examined by ORG at a public hearing which took place on DATE . The prosecution , which was represented by a prosecutor of ORG , expressed the opinion that the acquittal was correct and should be upheld .

In a final judgment of CARDINAL DATE ORG upheld the applicant ’s acquittal in the following terms :

“ ... The court of first instance failed to give any arguments , but merely declared that [ the applicant ’s ] acts amounted to ‘ a brutal demonstration against the established ORG and had caused ‘ considerable harm’ to this order . ... the testimony of the persons authorised to preserve public order – the [ police officers ] questioned as witnesses , and in particular , [ CARDINAL of them ] , who was specifically asked about this DATE shows that no ‘ disarray , commotion or breach of public ORG had occurred at the place where [ the applicant ] and the other ORG supporters had organised the gathering of signatures in support of the removal from office of the then Minister of Justice PERSON . The only thing which could be characterised as scandalous is the label ‘ top ORG accompanying the name of the witness ORG on the CARDINAL posters explaining the aim of the event . However , there is no evidence whatsoever that the use of these words was intended to discredit PERSON by lowering his prestige and dignity . ”

The court went on to say that it was public knowledge that DATE before the events of DATE Mr PERSON had made an unacceptable statement in respect of GPE , which , in view of its potentially damaging repercussions for relations between the CARDINAL countries , had been assessed very negatively by the press and had eventually led to the loss of his post . It was the press that had first called Mr PERSON a “ top idiot ” and there was no indication that any newspaper had been called upon to answer for this phrase . It was thus completely natural for the applicant , when calling for the Minister ’s resignation , to use the same phrase , thus expressing the public – and not merely his own – attitude towards Mr PERSON ’s activities . On this basis , the court concluded that :

“ It is clear from the above , that , as regards the subjective element , no offence under LAW or CARDINAL [ of the DATE LAW ] has been committed , because there were no acts which meant to breach public order or demonstrate overt disrespect for society . The offence alleged against [ the applicant ] was not objectively committed either : there was no public disorder and the presence of police officers at the site was due to the need to prevent possible incidents . The expression of indignation by [ some of the persons who were present there ] , which was an act of political support for T. ORG , can not be seen as a consequence of hooliganism either . ”

Article CARDINAL § § CARDINAL and CARDINAL of the DATE LAW , as in force at the relevant time , provided :

“ CARDINAL . Whoever carries out indecent actions which grossly violate public order and show overt disrespect for society shall be punished for hooliganism by DATE imprisonment or by corrective labour , as well as by public reprimand .

NORP If the actions are accompanied by resistance against [ a law enforcement officer ] , or are characterised by exceptional cynicism or arrogance , the penalty shall be up to five years’ imprisonment . ”

In a binding interpretative decision made in DATE ( Постановление № CARDINAL от CARDINAL ноември DATE г. по ORG № CARDINAL/CARDINAL г. , GPE на ВС ) , ORG defined the elements of hooliganism . The first element is the perpetration of indecent actions , which are described as actions which are “ improper or impudent , expressed through curses , raving , bad manners or other actions scandalising society ” . Indecent actions must both grossly violate public order and demonstrate overt disrespect for society . Gross violation of public order occurs when “ through his actions the perpetrator makes a brutal demonstration against the established order ” . These actions violate “ important ORG , public or personal interests or substantially affect morality ” . “ Overt disrespect for society ” is present when through his actions the perpetrator “ openly demonstrates a high level of disrespect for the individuals and the rules of society ” .

According to the decision , “ exceptional cynicism ” within the meaning of paragraph CARDINAL of Article CARDINAL is present when “ the acts of hooliganism are particularly impudent , grossly violate moral values and affect ORG feelings ” . Obscene actions which are performed in public and cause indignation in society are also “ exceptionally cynical ” . “ Exceptional arrogance ” is present when “ the actions gravely and persistently affect public and personal interests and express a disparaging attitude towards public order or other public or personal interests ” . These actions “ scandalize society and demonstrate rude impudence or cause grave insult ” .

Insult is a criminal offence under LAW . It is aggravated if committed in public and/or in respect of public officials carrying out their duties ( LAW ( CARDINAL ) and ( CARDINAL ) of the LAW ) . DATE it was privately prosecutable save in cases where the victim was a public official ( LAW , as in force before DATE ) . After an amendment to the Code of DATE insult became privately prosecutable in all cases and was no longer punishable with a term of imprisonment . This means that there is no pretrial investigation ( Articles CARDINAL and CARDINAL of the DATE Code of Criminal Procedure and Articles CARDINAL and CARDINAL § CARDINAL of the DATE Code of Criminal Procedure ) and that no preventive measures , such as pretrial detention or bail , may be imposed on the accused , as they are possible solely in respect of publicly prosecutable offences ( LAW and LAW ) . Pretrial detention is not permissible either , as it can only be imposed when the charges concern an offence punishable with a term of imprisonment or a harsher penalty ( LAW and LAW ) .

Under the DATE ORG , as in force at the relevant time , the police could , on the basis of a written order to that effect ( section CARDINAL(CARDINAL ) ) , arrest an individual who had committed a criminal offence ( section CARDINAL(CARDINAL)(CARDINAL ) ) . An individual taken in police custody was entitled to be assisted by counsel and seek judicial review of his detention ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) . The application had to be examined immediately ( section CARDINAL(CARDINAL ) in fine ) . Police detention under section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL)(CARDINAL ) could not exceed twentyfour TIME ( section DATE in fine ) .

Police detention under section CARDINAL(CARDINAL)(CARDINAL ) was lawful only if it immediately preceded the opening of a preliminary investigation against the arrestee ( реш. № DATE от CARDINAL ноември DATE г. по адм. д. № DATE г. , ORG , V отд. ) . It was imposed with a view to instituting such a preliminary investigation ( реш. № CARDINAL от CARDINAL април DATE г. по адм. д. № DATE г. , PERSON , V отд. ) . The power to detain was given to the police to assist them in the investigation of crime ( реш. № DATE от CARDINAL февруари DATE г. по адм. д. № DATE г. , ORG , V отд. ; реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , ORG , V отд. ; MONEY от CARDINAL март DATE г. по адм. д. № DATE г. , ORG , V отд. ) . All reported cases under section CARDINAL ) concern publicly prosecutable offences .

Arrest orders under section CARDINAL were administrative decisions . According to the case - law of ORG ( опр. № DATE от CARDINAL февруари DATE г. по адм. д. № DATE , ORG , V отд. ; реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , V отд. ) , the persons affected by them could challenge their lawfulness before a court and , if they were set aside , they could seek damages under LAW ORG ( see paragraph CARDINAL below ) .

Article CARDINALa of the DATE Code of Criminal Procedure , which governs the procedure for imposing “ pretrial detention ” ( “ задържане под стража ” ) under LAW , was changed in its entirety with effect from DATE , in a bid to bring NORP law in line with LAW ( тълк. реш. № CARDINAL от CARDINAL юни DATE г. по ORG CARDINAL/CARDINAL г. , ORG на ORG ) . The amended paragraph CARDINAL of Article CARDINALa provided that the investigation and the prosecution authorities had to ensure the immediate appearance of the accused before the competent firstinstance court and , if necessary , detain them until TIME . Such detention could not exceed twentyfour TIME if ordered by an investigator and TIME if ordered by a prosecutor . This distinction was apparently intended to ensure compliance with LAW in fine of LAW , which provides that any deprivation of liberty has to be reviewed by an “ organ of the judicial power ” within TIME .

Section CARDINAL of the DATE ORG to Citizens Act ( “ the ORG ” – „ Закон за отговорността на държавата за вреди , причинени на граждани DATE this was the original title ; on DATE it was changed to the ORG and ORG , „ Закон за отговорността на държавата и общините за вреди “ ) , provided that the ORG was liable for damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . Section CARDINAL(CARDINAL ) , as in force at the material time , provided that compensation for damage arising from unlawful decisions could be claimed after the decisions concerned had been annulled in prior proceedings .

Section CARDINAL of the ORG reads , in so far as relevant :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :

NORP pretrial detention , including when imposed as a preventive measure , when it has been set aside for lack of lawful grounds ;

NORP criminal charges , if the person concerned has been acquitted , or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence ... ”

According to the ORG caselaw , the ORG is liable for all damage caused by pre - trial detention where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) or the criminal proceedings discontinued on grounds that the charges have not been proven , the perpetrated act is not an offence , or the criminal proceedings were unlawful from the outset because they were opened after the expiry of the relevant limitation period or an amnesty ( реш. № DATE г. от DATE г. PERSON № DATE г. на ВКС ) .

In a binding interpretative decision ( тълк. реш. № CARDINAL от CARDINAL април DATE г. на ORG по PERSON № CARDINAL/CARDINAL г. , ORG ) , made on DATE pursuant to the proposal of the President of ORG , the Plenary Meeting of ORG of that court resolved a number of contentious issues relating to the construction of various provisions of the ORG . CARDINAL of the decision it held that compensation awarded in respect of the nonpecuniary damage arising under section CARDINAL(CARDINAL ) or ( CARDINAL ) of the ORG should also cover nonpecuniary damage stemming from unlawful pre - trial detention imposed during the proceedings , whereas compensation for pecuniary damage resulting from such detention should be awarded separately . The reasons it gave for this conclusion were as follows :

“ Pretrial detention is unlawful when it does not comply with the requirements of [ LAW ] .

The ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG when the pretrial detention has been set aside as unlawful , irrespective of how [ the criminal ] proceedings unfold later . In such cases compensation is determined separately .

If the person has been acquitted or the criminal proceedings have been discontinued , the ORG is liable under section CARDINAL(CARDINAL ) [ of the ] ORG . In that case , the compensation for non - pecuniary damage has to cover the damage resulting from the unlawful pretrial detention . If pecuniary damage has arisen , compensation for it is not included but has to be awarded separately , taking into account the particular circumstances of each case . ”

Persons seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the ORG have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на GPE , GPE г.о. ) .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicant is a NORP national who was born in DATE and currently resides in GPE . He is a lawyer practising in GPE .

On DATE ORG registered the applicant as the representative of a candidate for the presidency of GPE , PERSON Olexander O. Moroz . The latter was the leader of ORG of GPE at the time .

NORP On DATE ORG Donetsk ( the “ ORG ” ) conducted a criminal investigation into allegations that the applicant had interfered with the citizens ' right to vote ( LAW of GPE – “ the ORG ” ) .

On DATE the applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate , the incumbent President Mr PERSON . The applicant had allegedly disseminated this information on CARDINAL and DATE in the form of a statement by the Speaker of PERSON ( ORG ) published in a special nationwide issue of the PERSON newspaper Holos Ukrayiny ( газета “ ORG ) . The text of the article disseminated by the applicant reads as follows :

Following the applicant 's arrest , ORG carried out a formal criminal investigation into the allegations made against him .

On DATE ORG decided to detain the applicant on suspicion of having committed a crime under LAW ( see paragraph CARDINAL below ) . The applicant was detained in ORG of GPE . He remained there until DATE .

On DATE the applicant was formally charged with having committed an offence under LAW ( see paragraph CARDINAL below ) . The prosecution service classified his actions as having been committed by an official .

On DATE the applicant lodged an application ( dated DATE ) with ORG of Donetsk to be released from detention . On DATE the court dismissed his application .

On DATE the applicant was transferred to ORG . CARDINAL .

On DATE the applicant underwent a medical examination . He was found to be suffering from bronchitis and second - degree hypertension . The medical commission recommended that the applicant be hospitalised .

On DATE ORG completed the pre - trial investigation into the applicant 's case and committed him for trial .

On DATE the case file was transferred to the court . On DATE the GPE ORG of Donetsk ( the ORG ” ) committed the applicant to stand trial on charges of interference with the citizens ' right to vote , contrary to LAW ( see paragraph CARDINAL below ) . It also decided not to release him from detention .

In the course of the trial Judge PERSON of ORG on DATE passed a resolution ( постанову ) ordering He also requested the prosecution to reconsider the preventive measure of detention applied in respect of the applicant and to reclassify the charges against him . In particular , he stated :

On DATE the deputy prosecutor of GPE lodged a protest with the ORG of ORG ( “ the ORG ” ) against the resolution of CARDINAL DATE and requested the initiation of supervisory review proceedings in the applicant 's case . He also sought to set aside the resolution of DATE in which the case had been remitted for additional investigation . The deputy prosecutor considered that there was sufficient evidence to corroborate the applicant 's interference with the citizens ' right to vote ( LAW ) . On the same date the registry of the court acknowledged receipt of the protest .

On DATE the ORG , composed of its President , ORG , and the judges ORG , P.L.V. , R.L.I. , ORG and GPE , in the presence of a prosecutor , quashed the resolution of DATE and remitted the case for further judicial consideration . In particular , the ORG found that ORG had remitted the case back for additional investigation without a thorough examination of the indictment and of the requisite actus rea and mens rea of the offence with which the applicant had been charged . It had also not mentioned which particular investigative measures the prosecution was required to take . The ORG decided not to release the applicant from detention . In particular , it stated :

On DATE ORG dismissed a petition filed by the applicant 's lawyer requesting that the case be remitted for additional investigation . It also dismissed the applicant 's application for release from detention .

On DATE ORG dismissed a further application for the applicant 's release .

On DATE ORG changed the preventive measure applied in respect of the applicant to an undertaking not to abscond .

On DATE ORG , chaired by Judge PERSON , who had heard the case on DATE , convicted the applicant of interfering with the citizens ' right to vote for the purpose of influencing election results by means of fraudulent behaviour . ORG sentenced the applicant to DATE imprisonment , which was suspended for a DATE probationary period as the actions of Mr PERSON “ in fact entailed no grave consequences ” . It also ordered the applicant to pay a fine of CARDINAL NORP hryvnyas ( ORG ) . It held as follows :

On DATE ORG , composed of the judges D.A.D. , ORG , upheld the judgment of DATE .

On DATE and DATE respectively ORG and ORG of GPE dismissed , as being unsubstantiated , the applicant 's complaints and his request for a supervisory review of his conviction .

On DATE the ORG annulled the applicant 's licence to practise as a lawyer ( no . DATE , issued on DATE ) . It based its decision on the applicant 's conviction of DATE .

On DATE the applicant received a new licence to practise as a lawyer ( no . CARDINAL ) , after passing an examination before ORG and paying the sum of ORG CARDINAL . He was allowed to sit exams after the legal effects of his conviction were annulled ( погашена судимість ) .

In DATE the applicant instituted proceedings in ORG of Donetsk against the prosecution service of GPE and ORG of ORG , claiming compensation for the non - pecuniary and pecuniary damage resulting from his unlawful DATE detention in DATE in ORG ( ORG ) . In particular , it was contended that he should have been held in ORG ) and not in ORG , as his status had been that of a suspect in criminal proceedings .

On DATE ORG of Donetsk allowed his claims in part . It also ordered the prosecution service of GPE and ORG of ORG to pay ORG MONEY ( EUR CARDINAL ) to the applicant .

On DATE ORG decided that ORG , and not the prosecution service or ORG , was liable for compensating the applicant . It therefore ordered ORG to pay the applicant ORG CARDINAL,CARDINAL ( EUR CARDINAL ) in compensation for pecuniary and non - pecuniary damage .

The applicant alleges that this compensation was not paid to him .

The relevant provisions of LAW read as follows :

The relevant provisions of LAW of DATE , with subsequent changes and amendments , as in force at the material time , read as follows :

Section CARDINAL of this LAW provides that any citizen of GPE who has attained DATE CARDINAL and has a minimum of DATE legal experience may become a judge . By section GPE ) , judges are appointed for a maximum initial period of DATE , following an examination by the judicial qualifications commission and a decision of the relevant local authority . In accordance with sections CARDINAL and CARDINAL of the LAW , a judge of the district court may be subject to disciplinary investigation on the basis of a request by the President of the regional court .

NORP By sections CARDINAL and CARDINAL of this LAW , the qualifications commissions had the power to institute disciplinary proceedings , and to submit conclusions on the feasibility of appointing a candidate for a position as a district - court judge and on the renewal of the judicial term of a judge elected for an initial period of DATE . They could also request an attestation for a judge proposed for a promotion in judicial or administrative rank within the court , or an assessment of his legal knowledge . The presidents of the regional courts could request the qualifications commissions to certify or assess judges ' knowledge and qualifications . In accordance with sections CARDINAL and CARDINAL of the LAW , the presidents of the higher courts were allowed to request the institution of disciplinary proceedings against judges of the district courts .

The relevant provisions of LAW , LAW , of LAW read as follows :

The relevant provisions of LAW of LAW provide as follows :

The relevant provisions of the reservation contained in the instrument of ratification are set out in the judgment of GPE v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .

The relevant transitional provisions of LAW are set out in the GPE judgment cited above .

The relevant resolution of ORG of GPE reads as follows :

In its decision ORG found that ORG had acted unconstitutionally in passing the resolution of DATE ( no . CARDINAL ) that reduced the expenditure of the DATE State budget on the needs of : ORG by PERCENT , the regional courts by PERCENT , the district ( and city ) courts by PERCENT , ORG by PERCENT , the arbitration courts by PERCENT , and the military courts by PERCENT . According to the information issued by ORG ( responsible for the courts ' administration at the material time ) , this expenditure covered PERCENT of the needs of the first - instance courts and PERCENT of the needs of the regional courts . ORG found that ORG no . CARDINAL exerted financial influence on the courts and infringed the citizens ' right to judicial protection .

ORG , in its Decision no . CARDINAL of DATE , found that the existing procedure for the selection and appointment of candidates for judicial posts , as established by ORG , ORG and the judicial qualifications commissions , was not compatible with the need to form a highly qualified judiciary able to administer justice effectively and independently .

On DATE ORG no . CARDINAL , finding that the decisions of ORG to lower judicial salaries were contrary to the principle of the independence of the judiciary .


Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Anatoly Kovler;Christos Rozakis;Françoise Tulkens;Loukis Loucaides;Peer Lorenzen;Snejana Botoucharova

The applicant is a limited company specialising in petroleum products . Its predecessor was called NORP petroleum , oil and lubricants – Industrial and commercial limited company ( ORG ) .

On CARDINAL DATE the applicant company paid the tax authorities MONEY ( GPE ) ( MONEY ( ORG ) ) as an advance payment on the income tax due for DATE . On CARDINAL DATE the tax authorities granted the applicant company a PERCENT reduction on the amount paid , as a bonus for paying the full advance payment due without requesting to pay by instalments . Accordingly , the advance tax payment ultimately paid by the applicant company amounted to GPE CARDINAL ( approximately EUR CARDINAL ) .

On DATE the applicant company filed its tax return with the tax authorities for DATE . The return showed that the company had sustained a substantial loss of profit , which meant that the authorities had to refund the applicant company the amount paid as an advance payment since it had been unduly paid .

On DATE and CARDINAL DATE the applicant company sought a refund of GPE CARDINAL from the GPE tax authorities dealing with limited companies , which was the amount levied in income tax for DATE . On an unspecified date the ORG refused to comply with its request .

On DATE the applicant company brought proceedings against the ORG in ORG . It requested a refund , under section CARDINAL ) of PERSON no . CARDINAL/CARDINAL , of the sum of GPE CARDINAL,CARDINAL,CARDINAL that had been unduly paid in income tax . It also claimed default interest on that amount accruing from DATE , when the ORG had been informed that the tax had been unduly paid , up until payment . The applicant company based its claims on LAW , which provides for the payment of default interest in the event of a pecuniary debt .

Law no . CARDINAL/CARDINAL was published on DATE . LAW provides that the ORG will pay interest in the event of a refund of tax unduly paid . With regard to cases pending at the time of publication of the PERSON , it provides that interest shall start to accrue on DATE following DATE after its publication .

On DATE , prior to the hearing in the case listed for DATE , the ORG refunded the applicant company GPE CARDINAL , which corresponded to the tax it had paid . In its submissions before ORG , the applicant company limited its claims to statutory interest for the delay in paying the refund .

On DATE ORG declared the applicant company ’s application inadmissible ( decision no . CARDINAL ) . On DATE the applicant company appealed .

On DATE ORG declared the applicant company ’s appeal admissible , but held that it was ill - founded on the ground that at the material time the LAW for ORG did not provide that the ORG was liable to pay interest in the event of a delay in refunding tax unduly paid . Moreover , the court held that LAW did not apply to the present case , since the provision governed only civil - law relations ( decision no . CARDINAL/CARDINAL ) .

On DATE the applicant company lodged an appeal on points of law .

On DATE , by judgment no . CARDINAL , ORG dismissed the appeal . It found that the ORG was not bound to pay late - payment interest in the event of tax unduly paid . Such an obligation did not derive from the relevant provisions of LAW relating to late - payment interest because these did not apply to a debt arising from a public - law relationship . Furthermore , ORG pointed out that no such obligation had been incumbent on the ORG prior to PERSON no . CARDINAL/CARDINAL , published on DATE ( see paragraphs CARDINAL and CARDINAL below ) . That judgment was finalised and certified by the court on DATE .

The relevant Articles of the Civil Code provide :

“ A creditor of a pecuniary debt is entitled , when serving notice to pay , to claim default interest stipulated by law or by the legal document concerned without having to prove loss . Subject to any contrary statutory provision , a creditor who also establishes other loss is entitled to claim compensation for that as well . ”

“ A debtor owing a pecuniary debt , even if not served with a notice to pay , shall be liable to pay statutory interest accruing from the date of service of legal proceedings relating to the debt due . ”

“ Anyone who has been unjustly enriched by means of or to the detriment of another ’s property shall make restitution of the gain . This obligation shall apply , inter alia , in the event of a payment made unduly or a service rendered for a purpose that has not been realised or has ceased to exist or is illegal or immoral . ... ”

“ Anyone who benefits [ inter alia from unjust enrichment ] shall be subject to the same obligations as if a writ of action had been served on him : ( CARDINAL ) in the event of a claim for an amount unduly received , if he was aware that the debt did not exist or from the time when he became aware ; ( CARDINAL ) in the event of a claim on grounds of an illegal or immoral purpose . ”

DATE no . PERSON provides :

“ Debts due and owing from the ORG shall be subject to a late - payment surcharge that shall accrue from DATE following the date on which the debt falls due . The surcharge shall accrue at a rate of PERCENT per month ’s delay . ”

Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL provided that the ORG was bound to refund tax unduly paid without having to pay interest . LAW no . CARDINAL/CARDINAL amended section CARDINAL ) of PERSON no . CARDINAL/CARDINAL . That provision , as amended , now provides :

“ Any direct or indirect , principal or additional , tax or duty , or any fine , recognised in a final decision of an administrative court as having been unduly paid ... shall be offset or refunded with interest at the rate applicable to ORG bonds for a DATE period . ... With regard to cases pending at the time of publication of this statute , interest shall start to accrue from DATE following DATE after publication of the said statute . ”

In CARDINAL judgments ( nos . CARDINAL and DATE ) ORG held that the ORG had an obligation to pay default interest even in respect of cases that were pending , that is , those in which the tax unduly paid had not yet been refunded on the date of publication of PERSON no . CARDINAL/CARDINAL ( DATE ) . According to ORG , that obligation was incumbent on the ORG from the date on which proceedings were brought in the relevant courts .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in GPE .

On DATE he was arrested on suspicion of setting up a criminal organisation , namely ORG ) . On DATE he went through a medical examination at ORG . The medical report drafted following that examination noted that there was no sign of ill - treatment on his body .

During his time at police custody , on DATE , the applicant was examined once more , this time at ORG . The second report drawn up there also indicated that there existed no sign of ill - treatment on his body .

The applicant was released on CARDINAL DATE . Immediately after his release , he went through CARDINAL more medical examinations at CARDINAL different institutions , namely ORG and ORG . The reports drawn up after each examination indicated once again the lack of any sign of ill - treatment on his body .

The first CARDINAL medical reports were issued in respect of the applicant together with some other persons , who were also arrested on suspicion of having committed the same offence .

On DATE the public prosecutor at ORG filed an indictment with that court , accusing the applicant , together with several others , of setting up and running a criminal organisation . Subsequently , on DATE the applicant was placed in pre - trial detention . DATE , on DATE he was heard by ORG and released pending trial .

In DATE , following a constitutional amendment , state security courts were abolished and the case was transferred to ORG .

NORP On DATE ORG discontinued the proceedings as the statutory time - limit for prosecuting the offence of setting up a criminal organisation had expired .

On DATE ORG upheld the judgment of ORG .

On an unspecified date in DATE the applicant filed a complaint , together with the others , against several police officers , claiming that he had been subjected to ill - treatment during his time in police custody . According to his submissions , his testicles had been squeezed and he had been beaten , handcuffed to a chair and insulted .

On DATE the ORG public prosecutor issued a decision not to prosecute .

On DATE ORG rejected the applicant ’s objection to the public prosecutor ’s decision .

Nevertheless , on DATE , following an objection filed by CARDINAL of the other complainants , the same court decided to extend the scope of the investigation and requested medical reports from ORG .

Subsequently , on DATE , although the medical reports had not yet been submitted , the court annulled the decision of the ORG public prosecutor and held that criminal proceedings would be brought against the police officers involved .

Accordingly , on DATE the GPE public prosecutor filed an indictment with ORG , accusing the police officers of torture pursuant to LAW no . CARDINAL ) as he considered that provision to be more favourable for the accused .

During the course of the proceedings against the police officers , the Head of ORG examined the applicant . In her report dated DATE she noted that the applicant had complained that , during his police custody in DATE and his pre - trial detention in DATE , his testicles had been squeezed and he had been beaten , insulted and forced to perform physical activities which would overstrain his body . After examining the medical reports which had been issued in respect of the applicant in DATE , she reported that although those reports had indicated no sign of ill - treatment on the applicant ’s body , none of them had been drafted in compliance with the general principles of forensic medicine set forth by ORG . In this connection , she stated that each report had been issued in respect of several individuals and it was not clear whether the patients had been under psychological duress at the time or what kind of examinations had been conducted by the doctors . She concluded , therefore , that the reports issued immediately after the applicant ’s release from police custody could not be accepted as proof against his allegation of ill - treatment .

On DATE ORG submitted a report to ORG upon the request of the latter . That report maintained that some lesions and problems in the applicant ’s meniscus had been found in DATE . It added also that he appeared to be suffering from post - traumatic stress disorder . The report noted however that it was not possible to conclude that those conditions resulted from the alleged illtreatment inflicted on the applicant in DATE .

On DATE ORG drafted another report following the court ’s request . According to that report , the first CARDINAL medical reports , which stated that there was no sign on the applicant ’s body , were unclear as each of them had been drawn up in respect of several individuals .

ORG conducted CARDINAL hearings during which it heard the statements of the complainants , the accused and the witnesses . It also evaluated medical reports in respect of each complainant as well as the above - mentioned expert reports . The proceedings are still pending before that court .

Article CARDINAL § CARDINAL of the former LAW ( Law no . CARDINAL ) which regulated torture committed by civil servants read as follows :

“ Any public official who , in order to extract a confession of guilt in respect of a criminal offence , tortures or ill - treats a person , engages in inhuman conduct or violates human dignity , shall be punished by DATE imprisonment and disqualified from holding public office temporarily or for life . ”


The applicant is a NORP national , born in DATE and living in GPE .

The applicant , a police commissioner , was suspected of involvement in a conspiracy to smuggle non - ferrous metals in view of his alleged failure to investigate properly the activities of certain smugglers in DATE . He was arrested on DATE in the context of criminal proceedings instituted in DATE . There were CARDINAL co - accused in the case , including the applicant .

On DATE he was charged with obtaining property by deception ( sukčiavimas ) under LAW , abuse of office ( piktnaudžiavimas tarnyba ) under LAW , and official forgery ( tarnybinis suklastojimas ) LAW . On DATE the prosecution dropped the last charge .

From DATE to DATE the co - accused had access to the case - file . On DATE a prosecutor confirmed the bill of indictment whereby the applicant was indicted for offences under ORG CARDINAL and CARDINAL of LAW . On DATE the case was transferred to ORG .

On DATE a judge of ORG ordered additional investigations and requested that the prosecution supplement the charges under ORG CARDINAL and CARDINAL of LAW . On DATE ORG quashed the decision , finding that ORG was able to consider the question of committal for trial without further investigation measures . ORG also ordered the applicant ’s release on bail . He was released in open court . On DATE ORG remitted the case to ORG .

On DATE the judge of ORG committed the applicant for trial on the charges under ORG CARDINAL and CARDINAL of LAW .

During the trial hearing on DATE the judge stated :

“ ... the charge of cheating may be supplemented ... [ and ] the charge under LAW [ of LAW ] may be amended by adding the ‘ selfish interest’ ... . ”

During the trial hearing on CARDINAL DATE the judge said :

“ ... the charge under LAW may be supplemented ... with alleged breaches of [ the specific provisions ] of LAW ... . ”

During that hearing the trial judge informed the parties that she would pronounce the judgment on CARDINAL DATE .

On CARDINAL DATE ORG acquitted the applicant on the count of obtaining property by deception under LAW . In connection with the charge under LAW the court held : “ the charge of abuse of office can not be sustained ... . However , [ the applicant ] , being a ORG official , improperly performed his functions because of negligence ” in that he had failed to ensure proper investigation and control of the smuggling case . Since this failure amounted to a breach of certain provisions of LAW , the judge found the applicant guilty of official negligence ( tarnybos pareigų neatlikimas dėl nerūpestingumo ) under LAW . He was sentenced to DATE imprisonment and deprived of the right to occupy an official position in the system of law enforcement . The judge reduced the custodial sentence by CARDINAL pursuant to an amnesty law , and found that the applicant had completed the sentence on account of the time spent in detention on remand .

The applicant appealed against the judgment of CARDINAL DATE , stating that ORG had convicted him of an offence not covered by the initial charges and in respect of which he had not been in a position to defend himself . He noted in particular that during the trial the judge had in no way indicated that the charge of abuse of office could be replaced by CARDINAL of official negligence .

On DATE ORG held an appeal hearing on questions of fact and law in the presence of the applicant and his defence lawyer . The appeal court heard addresses by the applicant and a prosecutor . ORG dismissed the applicant ’s appeal on the ground inter alia that :

“ the allegation that the reclassification was not permitted is unfounded . Both ORG [ CARDINAL and FAC of LAW ] punish offences against ORG office . The [ first instance court ] court only established that [ the applicant ] improperly performed his functions as an officer because of negligence , but that he did not deliberately take advantage of his official position contrary to the interests of his office . The [ original ] charge did not refer to breaches [ by the applicant ] of specific provisions of LAW . In accordance with Articles CARDINAL § CARDINAL and CARDINAL of the Code of Criminal Procedure , the court warned [ the applicant ] that the charge could be supplemented with breaches of [ the specific provisions ] of LAW . An adjournment was offered for the preparation of the defence , but the parties did not request such an adjournment ... . The allegation that [ the applicant ] could not defend himself against the charges is therefore dismissed . ”

The applicant filed a cassation appeal with ORG , complaining inter alia that the reclassification of the charge had breached his right to defend himself . On DATE ORG dismissed the appeal , upholding the decisions of the lower courts . The cassation court held inter alia that the first instance court had reclassified the offence of abuse of office with that of official negligence in accordance with Articles CARDINAL § CARDINAL and CARDINAL of the Code of Criminal Procedure as the appeal court had replaced the initial charge with a lesser one , merely drawing the legal conclusions consistent with the facts laid before it .

PERSON . RELEVANT DOMESTIC LAW AND PRACTICE

Article CARDINAL creates liability for deliberate abuse of office which may be punished by up to CARDINAL years’ imprisonment or a fine .

Article FAC punishes improper performance by ORG officials of their functions because of negligence with a custodial sentence of DATE imprisonment or a fine .

Disqualification from holding certain public offices may also be imposed as a supplementary penalty for these offences .

At the material time , LAW allowed a court to replace a charge with another one during the trial . Pursuant to LAW , a court was entitled to replace a charge with a less severe one , provided that the facts on which the new charge was based did not , in principle , differ from those of the initial one . Under LAW § § CARDINAL and CARDINAL , the court could also replace a charge with a more severe one . In the latter case , on the defendant ’s request , the court could adjourn the trial to enable a revision of the defence .

On DATE ORG ruled that the provisions of LAW were compatible with the principles of a fair trial and defence rights guaranteed by LAW . ORG also ruled that LAW and CARDINAL of the LAW , to the extent that it permitted the court to replace a charge with a more severe one , was incompatible with the LAW .

Pursuant to LAW , if an appeal is filed against a judgment of the first instance court , the judgment becomes effective upon the determination of the appeal . In accordance with ORG CARDINAL - CARDINAL , the competence of the appeal court extends to all questions of fact and law established by the first instance court , and the appeal court has the power to take a decision quashing or amending the conviction , or to pronounce a new judgment . Under LAW an appeal hearing is obligatory , and it must be conducted in the presence of the parties . Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL provide that the decision of the appeal court becomes effective when it is pronounced .

Under Articles CARDINAL - CARDINAL of the Code , a cassation appeal can be submitted to ORG against a judgment which has become effective . The competence of the cassation court extends to questions of fact and law , and it has the power to quash or amend lower decisions .


CASE OF EDWARDS AND LEWIS v. THE UNITED KINGDOM

Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

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

On DATE , following a surveillance and undercover operation , he was arrested in a van in the company of an undercover police officer known only as “ PERSON ” . In the van was a briefcase containing QUANTITY of PERCENT pure heroin . On DATE the applicant was convicted in ORG of possessing a Class A drug with intent to supply and was sentenced to DATE imprisonment .

The first applicant ’s defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery . He alleged that his participation had been organised by a man named PERSON GPE , whom he had met DATE while both were detained on remand in FAC . According to the applicant , DATE before his arrest PERSON had introduced him to a man called PERSON and a man introduced to him only as “ PERSON ” . DATE before the arrest , the applicant was contacted by GPE and asked if he would be interested in going to GPE in connection with a jewellery deal in which GPE was acting as intermediary to PERSON . He would be given a cut of the purchase price . The applicant agreed that ORG would pick him up from his home DATE .

The following morning he was told that the plans had changed , as PERSON was now coming to GPE . The first applicant agreed to accompany ORG to a public house where , at TIME , a red ORG and a white van drew up . The driver of the ORG was introduced to the applicant as “ PERSON ; he was accompanied by a man and a woman , subsequently addressed as “ PERSON and “ PERSON . The driver of the van was introduced as “ PERSON ” . PERSON gave PERSON a briefcase containing MONEY ( GBP ) . They all then left in convoy for FAC , FAC , where they were to meet PERSON .

At the hotel , ORG decided to stay with the money in the car and asked the applicant to see if PERSON had arrived . The applicant therefore went into the hotel where he met PERSON , who told him that the arrangements had changed again as PERSON was now in GPE . GPE and PERSON asked the applicant to take a taxi to FAC and ask PERSON to return with him to ORG . The applicant followed these instructions and found PERSON , who told him he had to leave immediately for another meeting . PERSON , having spoken to PERSON or PERSON on a mobile phone , gave the applicant the key to a room in the nearby FAC , and explained that the “ goods ” were in a briefcase in the room .

According to the applicant , PERSON came from LOC in his van and met the applicant outside FAC . PERSON then suggested that the applicant should accompany him up to the room and offered to give him a lift back to ORG afterwards . In the hotel room , PERSON forced the lock on the case while the applicant was in the bathroom , and when he came out PERSON was ready to go . They returned to the van , where the briefcase was opened , and within moments the applicant was arrested .

Of all the participants in the above transaction , only the applicant was arrested and charged . The applicant suspects that the other participants were undercover police officers or informers acting on police instructions , but their identities and status have never been revealed to him . In this regard , he considers it relevant that , at the time of the alleged dealings , GPE was on bail to ORG in respect of a large - scale conspiracy to supply cannabis . One of the conspirators was a former ORG detective . It was known to the applicant that PERSON had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant ’s case had also investigated the conspiracy for which FAC was on bail . The applicant believes that sentencing in GPE ’s trial was deliberately postponed until DATE , DATE after the conclusion of the applicant ’s own trial , as a disincentive for GPE to come forward and give evidence concerning the true nature of the transaction .

Prior to the commencement of the applicant ’s trial , the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in NORP v. PERSON , PERSON and PERSON ( see paragraph CARDINAL below ) . Judge PERSON , who considered the material in the absence of the defence , concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it . This ruling was subsequently reconsidered by the trial judge , who had the benefit of a document prepared by the defence outlining the issues in the case , as well as of the oral submissions of defence counsel . In the course of the proceedings before ORG , the Government revealed for the first time that the material placed before the trial judge had included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation . The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings , either at first instance or on appeal . The trial judge , who directed himself in accordance with the approach set out by ORG in NORP v. PERSON ( see paragraph CARDINAL below ) , decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non - disclosure .

Following the ruling on disclosure , the defence made an application to the trial judge under section CARDINAL of ORG PACE – see paragraph CARDINAL below ) to exclude the evidence of PERSON , on the basis that the applicant had been entrapped into committing the offence . These submissions were rejected . The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section CARDINAL on grounds of entrapment . He continued that , if he had seen or heard any such material , he would have ordered disclosure .

Apart from the applicant , PERSON was the only participant in the offence to give evidence at the trial . He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room . Although PERSON claimed to have made a full note of the alleged conversations , these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers . According to the applicant , it was , however , difficult for the defence to undermine PERSON ’s credibility because his full name and other identifying details were not disclosed .

Following his conviction , the applicant appealed to ORG on the ground , inter alia , that the judge had been wrong to refuse to order disclosure . Dismissing the appeal on DATE , ORG , having itself examined the undisclosed evidence , observed that “ each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial ; indeed quite the reverse ” .

The second applicant was born in DATE and lives in GPE . Prior to the events in question , he had been of good character and employed as accounts director in a firm which had gone into liquidation DATE . At the time of his arrest in DATE , he was unemployed and in considerable debt .

NORP The applicant ’s version of events , which he maintained from the time of his first interview with the police , was that he had been introduced to a man named “ PERSON ” by an acquaintance , PERSON , since PERSON appeared interested in purchasing from the applicant some bankrupt stock . At a meeting in DATE , PERSON had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction . Although the applicant had never hitherto been involved with counterfeit currency , he did have a contact , “ PERSON , who was able to supply forged banknotes .

PERSON went on to introduce the applicant to CARDINAL men called “ NORP ” and “ Jazz ” . At a third meeting on DATE , PERSON turned up with “ PERSON ” , who was subsequently revealed to be an undercover police officer , and an order for a large amount of currency was placed . It appears from the transcript of covert tape recordings made during this meeting that , while the applicant was not unwilling to become involved , he was actively encouraged to do so by PERSON and PERSON , who put a certain amount of pressure on him to supply more notes of a higher denomination than had at first been agreed . On DATE the applicant met PERSON and another undercover officer , “ PERSON , in a public house car park . He showed them some counterfeit notes , and was immediately arrested by uniformed officers . More counterfeit notes were found when his house was searched .

The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences . On DATE he applied to ORG judge for an order that the indictment should be stayed on the grounds that , as a result of the covert activities of undercover police officers and/or participating informers , ( a ) it was not possible for him to have a fair trial and ( b ) the moral integrity of the criminal proceedings had been impaired . He also requested the judge to order the prosecution to provide more information and documents , including information relating to the question whether PERSON , PERSON or “ GPE , GPE or PERSON were participating informers or undercover police officers .

Prior to making his ruling on the defence application , the judge heard , ex parte , an application by the prosecution to withhold certain material evidence on grounds of public interest immunity . The judge refused to grant a stay or to order further disclosure , indicating that most of the information sought was subject to public interest immunity . He also ruled that , while it was clear that PERSON had been coaxing the applicant , there was no evidence of pressure having been applied .

A second submission was then made on the applicant ’s behalf to exclude the evidence of undercover police officers under section CARDINAL of PACE . However , before evidence was called from the officers in question – PERSON and PERSON –defence counsel sought guidance from the judge as to the areas of cross - examination which would or would not be allowed , given that certain issues relating to the investigation were covered by public interest immunity . It became apparent that most of the areas of cross - examination necessary to develop the submission were not to be allowed . Accordingly , the submission was withdrawn and the applicant entered guilty pleas to the indictment on DATE .

On DATE he was sentenced to a total of DATE imprisonment .

On DATE counsel advised that the applicant had no prospects of success in appealing against conviction , since he would have to demonstrate that the convictions were unsafe before an appeal could succeed . This would be impossible given that , on his own account , he had been motivated by money to enter into the deal to sell counterfeit currency . Counsel also expressed the view that :

“ Had there been anything within the [ public interest immunity ] material which could have assisted the Defendant in developing his case to exclude the evidence under s.CARDINAL PACE I am confident the Judge would have released it . In those circumstances , I advise that there are no grounds of appeal against conviction . ”

The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under LANGUAGE law . The judge does , however , have a discretion to order a stay of a prosecution where it appears that entrapment has occurred , as ORG affirmed in PERSON ; Attorney - General ’s Reference ( no . CARDINAL of DATE ) ( [ DATE ] ORG DATE ) , a judgment which followed and approved earlier case - law , including case - law which applied at the time of the applicants’ trials ( for example , the judgment of ORG in NORP v. PERSON [ DATE ] CARDINAL Weekly Law Reports ORG ) .

In GPE , Lord PERSON of GPE explained ( § CARDINAL ) :

“ My ORG , every court has an inherent power and duty to prevent abuse of its process . This is a fundamental principle of the rule of law . By recourse to this principle courts ensure that executive agents of the ORG do not misuse the coercive , law - enforcement functions of the courts and thereby oppress citizens of the ORG . Entrapment ... is an instance where such misuse may occur . It is simply not acceptable that the ORG through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so . That would be entrapment . That would be a misuse of ORG power , and an abuse of the process of the courts . The unattractive consequences , frightening and sinister in extreme cases , which ORG conduct of this nature could have are obvious . The role of the courts is to stand between the ORG and its citizens and make sure this does not happen . ”

In addition , the court has a discretion , under section CARDINAL of ORG , to exclude evidence obtained by an undercover police officer where , inter alia , the defendant would not have committed the offence without police incitement ( see NORP v. PERSON ; NORP v. PERSON ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL , judgment of ORG ; and PERSON , cited above ) . Of the CARDINAL remedies , the grant of a stay , rather than the exclusion of evidence , is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court ’s process and should not have been brought in the first place .

In GPE , ORG agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “ ORG - created crime ” . In each case it was for the judge , having regard to all the circumstances , to decide whether the conduct of the police or other law - enforcement agency was so seriously improper as to bring the administration of justice into question . Factors to be taken into account included the nature of the offence , the reason for the particular police operation , the possibility of using other methods of detection and the nature and extent of police participation in the crime ; the greater the inducement offered by the police , and the more forceful and persistent the police overtures , the more readily a court might conclude that the police had overstepped the boundary , since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind . The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing , and the police operation should be properly supervised . The defendant ’s criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police ( per Lord PERSON , § § DATE ; Lord PERSON , § § DATE ) .

At common law , the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged . This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence .

NORP In DATE the Attorney - General issued guidelines , which did not have force of law , concerning exceptions to the common - law duty to disclose to the defence evidence of potential assistance to it ( ( DATE ) CARDINAL Criminal Appeal Reports DATE “ the Guidelines ” ) ) . According to the Guidelines , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

“ ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of , an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of , a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier – e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and/or might create risk of domestic strife . ”

In NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity . It explained that “ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed ” .

In NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted . The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence would then have the opportunity to make representations to the court . Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte . The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .

ORG observed that although ex parte applications limited the rights of the defence , in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute , and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that , even in cases in which the sensitivity of the information required an ex parte hearing , the defence had “ as much protection as can be given without pre - empting the issue ” . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure “ in the interests of securing fairness to the defendant ” . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .

The leading case on disclosure at the time of the applicants’ trials was the judgment of ORG in NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . The Lord Chief Justice , giving the judgment of the court , held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity . “ Material ” evidence was defined as evidence which could be seen , “ on a sensible appraisal by the prosecution : ( CARDINAL ) to be relevant or possibly relevant to an issue in the case ; ( CARDINAL ) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use ; ( CARDINAL ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead on evidence which goes to ( CARDINAL ) or ( CARDINAL ) ” .

Once the judge was seized of the material , he or she had to perform the balancing exercise between the public interest in non - disclosure and the importance of the documents to the issues of interest , or likely to be of interest , to the accused . If the disputed material might prove the defendant ’s innocence or avoid a miscarriage of justice , the balance came down firmly in favour of disclosing it . Where , on the other hand , the material in question would not be of assistance to the accused , but would in fact assist the prosecution , the balance was likely to be in favour of non - disclosure .

In the case of NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG returned to the balancing exercise , stating , inter alia :

“ Since NORP v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles , alleging that those details are essential to the defence . Defences that the accused has been set up , and allegations of duress , which used at one time to be rare , have multiplied . We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care . They will need to be astute to see that assertions of a need to know such details , because they are essential to the running of the defence , are justified . If they are not so justified , then the judge will need to adopt a robust approach in declining to order disclosure . Clearly , there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will . Again , there will be cases where the informant is an informant and no more ; other cases where he may have participated in the events constituting , surrounding , or following the crime . Even when the informant has participated , the judge will need to consider whether his role so impinges on an issue of interest to the defence , present or potential , as to make disclosure necessary ... ”

The requirements of disclosure have since been set out in a statutory scheme . Under the Criminal Procedure and Investigations Act DATE ( ORG ) , which came into force in GPE and GPE immediately upon gaining FAC on DATE , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor ’s view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused ’s defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .

Following the judgments of ORG in PERSON v. GPE ( DATE , Reports of Judgments and Decisions DATE ) and ORG and Others and PERSON and Others v. GPE ( DATE , Reports CARDINAL ) , the GPE introduced legislation making provision for the appointment of a “ special counsel ” in certain cases involving national security . The provisions are contained in ORG Act DATE ( “ the CARDINAL Act ” ) and LAW DATE ( “ the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his or her legal representatives , the Attorney - General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however “ responsible to the person whose interest he is appointed to represent ” , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed . The relevant rules giving effect to the DATE and CARDINAL Acts are set out in the ORG ’s judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL , § DATE , DATE ) .

In DATE the government commissioned a comprehensive review of the criminal justice system , under the chairmanship of a senior ORG judge , Sir PERSON . The report , published in DATE after extensive consultation and entitled “ The Review of the Criminal Courts in England and GPE ” ( “ the Auld Report ” ) , recommended , inter alia , the introduction of a “ special counsel ” scheme in cases where the prosecution wished to seek , ex parte , non - disclosure on grounds of public interest immunity . The recommendation was explained in ORG as follows ( footnotes omitted ) :

“ CARDINAL . The scheme [ developed by the common law since NORP v. Ward and reflected in the Criminal Procedure and Investigations Act DATE : see above ] is an improvement on what went before and has been generally welcomed on that account . But there is widespread concern in the legal professions about lack of representation of the defendant ’s interest in the [ ex parte ] forms of application , and anecdotal and reported instances of resultant unfairness to the defence . ... A suggestion , argued on behalf of applicants in GPE and widely supported in the ORG , is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ‘ special independent ORG . He would represent the interest of the defendant at first instance and , where necessary , on appeal on a number of issues : first , as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim ; second , on the strength of the claim to public interest immunity ; third , on how helpful the material might be to the defence ; and fourth , generally to safeguard against the risk of judicial error or bias .

In my view , there is much to be said for such a proposal , regardless of the vulnerability or otherwise of the present procedures to LAW . PERSON , in a paper prepared for the ORG , has argued powerfully in favour of it . It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications . It should not be generally necessary for special counsel to be present throughout the trial . Mostly the matter should be capable of resolution by the court before trial and , if any question about it arises during trial , he could be asked to return . If , because of the great number of public interest immunity issues now being taken in the courts , the instruction of special counsel for each would be costly , it simply indicates , as PERSON has commented , the scale of the problem and is not an argument against securing a fair solution .

NORP The role would be similar to that of an amicus curiae brought in to give independent assistance to a court , albeit mostly on appeal . In rape cases , where an unrepresented defendant seeks to cross - examine a complainant , the court must inform him that he may not do so , and should he refuse to instruct counsel , the court will appoint and instruct one . After the decisions of ORG in PERSON and PERSON , the government introduced such a procedure in immigration cases involving national security . Although such cases are extremely rare , it is sufficient that the principle of a ‘ ORG or ‘ special’ counsel being instructed on behalf of a defendant has been conceded in a number of areas .

The introduction of a system of special independent counsel could , as PERSON has also noted , in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in ORG , to which LAW and supporting Rules do not apply . Where there has been a breach of LAW because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction , ORG has held that the breach can not be cured by a hearing before ORG in the absence of the appellant . The ORG ’s reasons for so holding were that the appeals court is confined to examining the effect of non - disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury ’s verdict into underestimating the significance of the undisclosed material .

NORP However , even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure , whether out of incompetence or dishonesty , to indicate to the prosecutor the existence of critical information . Unless , as I have recommended , the police significantly improve their performance in that basic exercise , there will be no solid foundation for whatever following safeguards are introduced into the system .

I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non - disclosure of sensitive material . ”

In NORP v. H. ; PERSON ] ORG DATE , decided on DATE after the ORG judgment in the present case , ORG of ORG held , inter alia :

“ DATE since the decision in PERSON see paragraph CARDINAL above ] and the enactment of the ORG [ see paragraph CARDINAL above ] have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who can not ( either personally or through his legal representative ) , for security reasons , be fully informed of all the material relied on against him . The procedure is to appoint a person , usually called a ‘ special advocate’ , who may not disclose to the subject of the proceedings the secret material disclosed to him , and is not in the ordinary sense professionally responsible to that party but who , subject to those constraints , is charged to represent that party ’s interests . ...

There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent , as an advocate in ORG [ public interest immunity from disclosure ] matters , a defendant in an ordinary criminal trial ... But novelty is not of itself an objection , and cases will arise in which the appointment of an approved advocate as special counsel is necessary , in the interests of justice , to secure protection of a criminal defendant ’s right to a fair trial . Such an appointment does however raise ethical problems , since a lawyer who can not take full instructions from his client , nor report to his client , who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer - client relationship , is acting in a way hitherto unknown to the legal profession . While not insuperable , these problems should not be ignored , since neither the defendant nor the public will be fully aware of what is being done . The appointment is also likely to cause practical problems : of delay , while the special counsel familiarises himself with the detail of what is likely to be a complex case ; of expense , since the introduction of an additional , high - quality advocate must add significantly to the cost of the case ; and of continuing review , since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure , unless the special counsel is present throughout or is instructed from time to time when need arises . Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction , and any new procedure can offer opportunities capable of exploitation to obstruct and delay . None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it . But the need must be shown . Such an appointment will always be exceptional , never automatic ; a course of last and never first resort . It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant . ... ”


The applicant , Efraym Caliskan , is a NORP national of NORP origin , born in DATE and , at the time of introduction of the application , he was detained in the GPE for expulsion purposes . He is represented before the ORG by Ms G.E.M. Later , a lawyer practising in GPE .

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

On DATE , following the apprehension of the NORP leader PERSON by the NORP authorities , a protest demonstration took place in GPE in the course of which protesters occupied the residence of the NORP Ambassador and members of the Ambassador 's household were prevented from leaving the LOC . On DATE , the applicant was arrested and subsequently detained in police custody ( inverzekeringstelling ) on suspicion of having been involved in the events in the residence of the NORP Ambassador .

The applicant was released from custody on DATE after having been served with an indictment to stand trial on charges in relation to the events in the NORP Ambassador 's residence . On DATE , he was handed over to the aliens ' police ( vreemdelingenpolitie ) . He was subsequently placed in aliens ' detention for the purposes of expulsion ( vreemdelingenbewaring ) under LAW ( a ) of LAW ( Vreemdelingenwet ) .

At some unspecified point in time , the applicant applied for asylum or , alternatively , a residence permit on humanitarian grounds . This request was rejected by the ORG Secretary of ORG ( ORG ) at an unspecified point in time . The applicant filed an appeal with ORG ( ORG ) against the ORG Secretary 's refusal of his request for asylum . As the applicant had been placed in aliens ' detention he was not required , like asylum seekers not placed in such detention , first to file an objection ( bezwaarschrift ) with the ORG Secretary of ORG before filing an appeal with ORG . The applicant further requested ORG for an injunction on his expulsion pending the appeal proceedings .

In a decision taken on DATE , ORG rejected an appeal filed by the applicant against his placement in alien 's detention .

On DATE , the applicant filed a second appeal with ORG against his placement in aliens ' detention .

On DATE , ORG rejected the applicant 's appeal against the ORG Secretary 's decision to reject his request for asylum . It further rejected the applicant 's request for an injunction on his expulsion .

On DATE , following a hearing held on DATE , ORG rejected the applicant 's second appeal against his placement in aliens ' detention . Insofar as relevant , it held :

“ ORG considers at the outset that the lawfulness of the measure of placement in aliens ' detention has , as such , already been determined in its decision of DATE . The present appeal concerns the question whether , after a balancing of all interests involved , a further continuation of the placement should reasonably be considered as unjustified .

ORG is of the opinion that it can not be said that there are no real prospects for expulsion within a reasonable time . On behalf of the < ORG Secretary > it has been submitted that the alien will be presented to the NORP < consular > authorities at short notice , given that his request for an injunction in connection with his request for entry to the GPE as a refugee or on humanitarian grounds was rejected on DATE and the appeal ... declared illfounded . ORG sees no reason to find that < the ORG Secretary > is proceeding with insufficient diligence . ORG further finds that < the ORG Secretary > , pending the alien 's presentation to the NORP authorities , can reasonably adopt the position that the alien 's placement in aliens ' detention should be maintained .

As to the complaint of the alien 's representative that < the ORG Secretary > has given undertakings to the effect that the issue of expulsion of NORP who are being prosecuted for their alleged participation in the occupation of the NORP Ambassador 's residence in GPE will only be addressed once the criminal proceedings have come to an end , ORG considers as follows . It appears neither from the case - file nor the oral submissions in the present case that < the ORG Secretary > has made solid and legally binding undertakings as to the expulsion of persons who occupied the NORP Ambassador 's residence . Neither can such an undertaking be read into the replies given by < the ORG Secretary > to questions of members of ORG of ORG . ORG further does not perceive a need for the alien who has been placed in aliens ' detention to be allowed to remain in the GPE pending his trial . After his expulsion , the alien may apply for a visa in order to attend his trial , as has been indicated at the hearing by the representative of < GPE

Having regard to the above , ORG considers that the appeal is illfounded . The placement in aliens ' detention will not be lifted . Having regard to Article PERSON of LAW there is no reason to award compensation . ”

On DATE , the ORG Secretary informed ORG that , in view of reports on what had happened to CARDINAL asylum seekers who had been expelled to GPE , a policy decision had been taken to suspend temporarily the expulsions of NORP nationals of NORP origin . On DATE , the applicant was released from aliens ' detention .

On DATE , the applicant 's representative informed the ORG that the applicant , following his release on DATE , had gone to GPE for a family visit . The applicant 's representative further stated that the applicant had been apprehended , detained and expelled from GPE to GPE despite the fact that there were asylum proceedings ongoing in the GPE . According to his representative , the applicant was detained in GPE and tortured for DATE .

LAW , insofar as relevant , provides :

“ CARDINAL . If the interests of public order , public policy or national security so require , the following categories of aliens may be detained :

a. aliens whose expulsion has been ordered ;

b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered ;

c. aliens who are not allowed to reside in the GPE by virtue of any of the provisions contained in ORG CARDINAL - CARDINAL < of LAW > , pending the decision on an application for a residence permit , a permanent residence permit or leave to enter as refugees .

An alien shall not be detained when , and detention shall be terminated as soon as , he intimates that he wishes to leave the GPE and is in fact in a position to do so .

Detention for the reasons set out in the first sentence of paragraph CARDINAL and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than DATE .

An alien whose expulsion has been ordered can , in principle , remain in aliens ' detention for an unlimited period of time . The lawfulness of a placement in aliens ' detention can , however , be challenged before a court . Where the court is of the opinion that there are no prospects of expulsion within a reasonable time , it can order that the measure of placement in aliens ' detention be terminated .

It has been established in the case - law of ORG ( ORG ) of ORG that the interest of an alien to be released from aliens ' detention increases with the passage of time . Where a placement in aliens ' detention exceeds a period of DATE , it is generally held that the alien 's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , this point in time may also be reached before or after DATE have passed . It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control .

Although no appeal lies against a decision by ORG in proceedings concerning requests for release from detention for expulsion purposes , an appeal to ORG ( Gerechtshof ) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes . Furthermore , an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected ( cf . ORG , CARDINAL DATE , PERSON , nr . CARDINAL )

There is no time - limit for the filing of an appeal against a decision of placement in aliens ' detention and in principle a person placed in aliens ' detention may file as many appeals against this decision as he sees fit . When the lawfulness of a decision of placement in aliens ' detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens ' detention as from DATE last judicial decision taken on this point .

On DATE , the ORG Secretary of ORG requested ORG to suspend until DATE its examination of appeals , including requests for injunctions on expulsions , filed by asylum seekers of NORP origin , in view of a recent report of CARDINAL such asylum seeker having encountered serious problems after his expulsion to GPE . As the veracity of this report was not certain , the Minister of ORG had been requested to investigate the matter and to submit his findings as to the origin , background and veracity of the report before DATE .

On DATE , the ORG Secretary informed ORG that , in view of reports on what had happened to CARDINAL asylum seekers who had been expelled to GPE , a policy decision had been taken to suspend temporarily the expulsion of NORP nationals of NORP origin .

On DATE , the ORG Secretary informed ORG that the results of an investigation into the facts on the basis of which the expulsion of NORP nationals of NORP origin had been temporarily suspended had led to the lifting of that suspension .