Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed (ratione temporis, ratione materiae, ratione personae, six month period);Violation of P1-1;Just satisfaction reserved

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

The applicants , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively and live in GPE .

NORP The applicants’ predecessor owned a plot of land with a residential building situated in GPE . The applicants are his heirs .

By virtue of the Decree of DATE on the Ownership and Use of Land in GPE ( “ the DATE Decree ” ) the ownership of all private land was transferred to GPE .

NORP The applicants’ predecessor requested to be granted the right of temporary ownership ( własność czasowa ) of the property pursuant to section CARDINAL of the CARDINAL Decree .

On DATE ORG ( PERSON ) refused the request . ORG also stated that the ownership of all buildings situated on the property had been transferred to ORG . The property was subsequently divided into smaller plots .

DATE the ORG sold several apartments in the residential building ( together with shares in the right of perpetual use of the land ) to third parties .

NORP In DATE , DATE and DATE the GPE Governor declared that on CARDINAL DATE GPE had acquired ex lege the ownership of the plots of land and the building thereon ( with the exception of the previously sold apartments ) .

On DATE ORG Praga - Południe District of FAC adopted a resolution on the basis of which it published a list of flats which could be sold to the tenants . In DATE and DATE they sold CARDINAL apartments .

On DATE the Praga - Południe District Office informed the applicants of the above resolution and of the possibility of exercising a right of pre - emption in respect of the remaining flats . The right of pre - emption had been introduced as from CARDINAL DATE on the basis of LAW of DATE on the management of real estates ( ustawa o gospodarce gruntami ) .

On DATE the applicants informed the municipality that the third applicant would buy the flat he had occupied so far . At the same time they requested that the further sale of other flats be stayed . They enclosed a decision of ORG of DATE declaring them to be heirs of GPE , GPE and GPE

On DATE the municipality allowed the ORG request .

On DATE ORG ( PERSON ) declared the decision of DATE null and void in respect of part of the property . However , ORG could not annul the decision in respect of the remaining part of the property in question , since the ownership rights to CARDINAL apartments and respective shares in the right of perpetual use of the land had been sold in the meantime to third parties . Thus , in view of the irreversible legal consequences of the DATE decision , ORG only declared that , in this respect , the decision had been issued in breach of law .

The Board noted that the obligations of ORG resulting from a breach of law had been taken over by GPE .

The ORG further noted that its decision entitled the applicants to seek compensation for damage caused by the administrative decision having been issued in breach of law .

In DATE the applicants lodged compensation claims with the Mayor of LOC ( Starosta Powiatu Warszawskiego ) and the President of GPE in respect of the relevant CARDINAL apartments .

On DATE the Mayor of GPE transferred the claim to ORG in view of the latter organ ’s competence . In DATE the ORG issued several decisions concerning particular apartments in which it refused to award compensation .

On DATE the applicants lodged compensation claims with ORG against the GPE municipality under LAW .

On DATE ORG dismissed the action . The court acknowledged that the applicants had sustained damage as a result of the DATE decision ( the court heard evidence , including an expert witness , who estimated the loss at ORG ) . However , the court eventually found that ORG should have been sued instead of the municipality . The court noted that according to ORG judgment of DATE the municipality had the legal capacity to be sued for compensation for damage resulting from an administrative decision issued before CARDINAL DATE . However , in the court ’s view , this interpretation had become obsolete in view of the subsequent interpretation of section CARDINAL of ORG ( LAW of DATE ( PERSON wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych ) .

On DATE the ORG lawyer lodged an appeal . He referred inter alia to ORG resolution of DATE , DATE CARDINAL/CARDINAL , which , in his opinion , justified the responsibility of the local government administration in the present case . In this context he also invoked section QUANTITY of the DATE ORG ( LAW and relied on the judgment of ORG DATE arguing that the firstinstance court had been wrong to consider the judgment obsolete .

On DATE ORG dismissed the applicants’ appeal . The court upheld the lower court ’s arguments , finding that ORG should have been sued for damages because the Governor ( the ORG ’s administration body ) was the legal successor of ORG .

The applicants lodged a cassation appeal . They submitted , inter alia , that the judgment was in breach of relevant substantive law on account of an erroneous interpretation and application of the provisions of LAW . They also invoked LAW arguing that the examination of the cassation appeal was justified because :

- the case raised a significant legal issue ( i.e. the question to what extent and in respect of which competences the obligations of the national councils had been taken over by communities ) , and

- the need for an authoritative interpretation of provisions which had been interpreted differently in the courts’ case - law ( in particular section QUANTITY of ORG ( Introductory Provisions ) ) , and

- the need to clarify the inconsistency of ORG judgment with the case - law invoked by the applicants and the alleged guidance provided by the decision of ORG of DATE .

On DATE ORG refused to entertain the cassation appeal . The decision was taken by a single judge sitting in camera . The written reasons provided as follows :

According to LAW , when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law ( LAW ) , ORG may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case , there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the ORG case - law or the cassation appeal is manifestly ill - founded ( § CARDINAL ) .

In the present case none of the circumstances set out in LAW was present and consequently ORG , having considered the grounds set out in § CARDINAL , found it justified to refuse to entertain the cassation appeal .

On DATE the applicants lodged a constitutional complaint with ORG , alleging a breach of their right of access to court and to a fair hearing on account of an erroneous application of LAW .

On DATE ORG discontinued the proceedings on the grounds that it had already examined the same issue in its judgment of DATE ( ORG CARDINAL ) .

On DATE the applicants requested the Mayor of GPE to grant them the right of perpetual use of the remaining apartments which had not been sold . They relied on the decision of ORG of DATE .

On DATE the applicants’ lawyer submitted a certificate of the mortgage writer ( pisarz hipoteczny ) of CARDINAL DATE certifying the ownership title of ORG DATE .

The proceedings are pending .

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a secondinstance court . A party had to be represented by an advocate or a legal adviser .

Article CARDINAL of LAW as applicable at that time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Article CARDINAL specified the requirements of a cassation appeal . It read in its relevant part :

“ § CARDINAL . A cassation appeal should include :

CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;

CARDINAL ) NORP an indication of the grounds for the cassation appeal ;

CARDINAL ) NORP arguments showing that its examination would be justified ;

CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . ”

Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG failed to find non - conformity with the law , it dismissed the cassation appeal .

Pursuant to Article CARDINAL a cassation appeal , in principle , was examined during a hearing by a panel of CARDINAL judges ; the court could , however , reject a cassation appeal on formal grounds at a sitting . The judgment or decision had to be accompanied by written reasons .

On DATE a law was enacted amending the Code of Civil Procedure . It entered into force on DATE . It introduced , inter alia , the following provision ( amended Article CARDINAL ) – the so - called “ pre - judgment ” ( preliminary assessment of a cassation appeal ) :

“ § CARDINAL . ORG may refuse to entertain the cassation appeal , if :

CARDINAL ) there is no appearance of any significant legal issue in the case ,

CARDINAL ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the ORG case - law ,

CARDINAL ) the appeal is manifestly ill - founded .

§ CARDINAL . Paragraph CARDINAL shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law . ”

Pursuant to amended Article CARDINAL the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera , in a single judge formation .

Although the legal provisions did not expressly provide for such a possibility , usually the written reasons accompanying such decisions were limited to a simplified , schematic formula which did not contain any legal analysis , did not indicate the specific grounds for the decision , did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case .

On DATE new provisions on a “ cassation complaint ” came into effect , replacing the provisions governing the cassation appeal .

In its judgment of DATE ( ORG CARDINAL ) ORG examined a number of constitutional complaints challenging the provisions of LAW .

ORG held that although the LAW did not guarantee a right to cassation as such , the fact that it was provided for by LAW meant that it had to meet the requirements of the rule of law and procedural justice .

The Constitutional Court observed , inter alia , that certain terms describing the conditions which a cassation appeal had to meet under Articles CARDINAL et seq . of the Code ( “ significant legal issue ” , “ provisions raising serious doubts or causing discrepancies in the ORG case - law ” , “ arguments showing that examination of the cassation appeal would be justified ” ) were drafted in the broadest terms . It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of ORG . ORG considered the relevant requirements of Article CARDINAL and their interpretation by ORG to be vague and subjective and , in practice , known exclusively to ORG but not to those who wished to lodge a cassation appeal .

According to ORG , if the conditions for admissibility of a claim ( preliminary assessment of a cassation appeal ) were formulated in imprecise terms , the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body .

In this context the court criticised , in particular , the practice of “ simplified reasons ” . It held that the use of open - ended concepts by the legislator could not be considered , in itself , as unconstitutional , as it allowed the courts a certain flexibility , to better - tailor their decisions to circumstances at hand . However , in such case the obligation to substantiate the legal norm was shifted to the stage of its application . This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision . Consequently , a general and imprecise procedural clause required a strong justification and indication of specific circumstances .

The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how , if at all , ORG had performed the necessary assessment to substantiate those vague terms . The case - law providing guidance on their application was thus practically non - existent . The court informed the addressee of its decision that the requirements of the given article had not been met , but did not indicate any circumstances which justified this conclusion . As a result , a principle of trust has been breached . Moreover , it was impossible for lawyers in general to recognise ORG understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future .

Consequently , the “ pre - judgment ” did not guarantee procedural predictability to the party , who has lodged a cassation appeal meeting all formal requirements . The right of access to a court had thus been transformed into a pretence of this right .

Nevertheless the Constitutional Court found that it was the practice of ORG that deserved disapproval and not the relevant provisions , and the wording of those provisions could not be considered unconstitutional . In this context the court observed that the practice was not uniform and certain chambers of ORG justified their decisions in a much more elaborate and substantive way . The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment .

Accordingly , ORG refused to decide on the compatibility of those provisions with the LAW and discontinued the proceedings in this respect .

Article CARDINAL § CARDINAL of the LAW , which entered into force on DATE , provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Article CARDINAL of the LAW , insofar as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”

Article CARDINAL of LAW reads :

“ CARDINAL . The ORG shall , at a sitting in camera , discontinue the proceedings :

CARDINAL ) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible ;

CARDINAL ) in consequence of the withdrawal of the application , question of law or constitutional complaint ;

CARDINAL ) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the ORG .

If these circumstances come to light at the hearing , the ORG shall take a decision to discontinue the proceedings .

Item CARDINAL ( CARDINAL ) of the present Article does not apply if giving a decision on the compatibility with LAW of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights . ”

Article CARDINAL of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which this judgment was given was incompatible with LAW . Such a request can be lodged with the competent court within DATE from the date of the judgment of ORG .

The Decree of DATE on real property in GPE expropriated real property situated in GPE and transferred ownership to the municipality of GPE .

Pursuant to section ORG ) of ORG of DATE , ownership of property situated in GPE was assigned to ORG .

A very significant reduction in ORG land resources was brought about by legislative measures aimed at reforming the administrative structure of the ORG .

ORG ( LAW of DATE ( PERSON wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “ the DATE LAW ) , which came into force on DATE , and other related statutes enacted at that time , re - established local government and municipalities and transferred to them powers that had previously been exercised solely by the local ORG administration . Pursuant to section QUANTITY ) , ownership of land which had previously been held by ORG and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality .

Section CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides , as far as relevant :

“ ORG takes over :

CARDINAL ) obligations and receivables of local bodies of state administration ( ... ) resulting from final and binding court rulings and administrative decisions delivered before CARDINAL DATE ( ... ) . ”

LAW permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest , if this is not prohibited by specific legal provisions . In particular , pursuant to LAW , a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction , or if it is without a legal basis or contrary to the applicable laws .

Article CARDINAL of LAW , as applicable at the material time , read in its relevant part :

“ A person who has suffered a loss on account of the issuing of a decision in a manner contrary to LAW or on account of the annulment of such a decision shall have a claim for compensation for actual damage , unless he has been responsible for the circumstances mentioned in this provision . ”

An administrative decision in respect of the compensation claim could be appealed against in a civil court .

In its resolution adopted on DATE ( ORG ) ORG concluded that disputes instituted under LAW of DATE concerning the right of perpetual use of a plot of land presently owned by the municipality , should be resolved by a competent mayor [ a local government body ] .

Section CARDINAL § CARDINAL ( CARDINAL ) of LAW raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform . The problem was subject to divergent judicial interpretation .

On DATE ORG delivered a judgment ( II CKN CARDINAL/CARDINAL ) in which it concluded that the municipality should be sued for compensation for damages caused by an administrative decision delivered before DATE .

On DATE a panel of CARDINAL judges of ORG adopted a resolution ( no . III CZP CARDINAL/CARDINAL ) , finding that the municipality DATE and not ORG – had the legal capacity to be sued for damages resulting from an administrative decision issued before DATE , provided that the decision had been annulled or declared unlawful after that date .

In its resolution of DATE ( no . III CZP CARDINAL/CARDINAL ) , adopted by a panel of CARDINAL judges , ORG concluded that ORG had the capacity to be sued for damages caused by an administrative decision delivered before CARDINAL DATE , even if the decision had been annulled or declared null and void after DATE . The resolution was adopted following a legal question referred to ORG by ORG having a similar case before it .

DATE . ORG confirmed this stance in several subsequent judgments , delivered in cases similar to the present one ( see below ) .

On DATE the Opolskie Governor declared that the decision of DATE of the Head of municipality NORP had been adopted in breach of law . The plaintiff ’s claim for compensation against ORG ( ORG Governor ) was dismissed by the first- and second - instance courts . In particular , ORG , invoking the resolution of ORG of DATE ( ref no . Ill CZP CARDINAL/CARDINAL ) , considered that ORG did not have the legal capacity to be sued in that case since municipality NORP had taken over its obligations under LAW .

ORG quashed the appellate judgment and remitted the case , relying on the above - mentioned resolution of DATE .

In DATE the ORG of ORG refused to grant the right of perpetual use of land covered by the operation of the CARDINAL Decree . Subsequently , ORG sold CARDINAL flats in the building . On DATE the Minister of Construction declared that the decision of DATE had been adopted in breach of law .

The plaintiffs lodged a civil action for compensation against ORG . ORG allowed their claim in part and awarded compensation from ORG .

On DATE ORG amended the first - instance judgment and dismissed the claim against ORG finding that it lacked legal capacity to be sued in the case .

On DATE ORG quashed the appellate judgment and remitted the case , invoking the resolution of DATE .

In its judgment of DATE ( no . I CKN CARDINAL/CARDINAL ) , ORG ruled that there was a causal link between an administrative decision , taken under the CARDINAL Decree , refusing to grant the previous owner of a real property ( a land with a building ) the right of temporary ownership ( perpetual use ) of that property and the sale of apartments in the building by ORG .

On DATE ORG adopted a resolution ( no . III CZP CARDINAL/CARDINAL ) in which it found that financial loss resulting from a decision under LAW refusing to grant the right of perpetual use , which had been issued in breach of law , constituted a loss within the meaning of LAW and an actual damage within the meaning of LAW .


W.G. S. AND M.S.L. S. v. THE UNITED KINGDOM

The first applicant is a citizen of GPE and of GPE . He was born in GPE in DATE and is currently living in GPE , GPE .

The second applicant , the first applicant ’s son , is a NORP national , born in DATE and living in GPE .

Both applicants are represented before ORG by PERSON , ORG , GPE , and by Mr PERSON , a lawyer practising in GPE .

A.

The applicants were directors of ORG ( GPE ) , which was responsible for managing various companies operating in the property investment sector . As a result of the property collapse from DATE , GPE ’s various sources of property - based income suffered and it ceased trading in DATE . GPE was placed into FAC on DATE .

The management functions of GPE were thereafter carried out by ORG ( GPE ) of which the applicants became directors on CARDINAL DATE . In DATE GPE agreed a schedule of payments of outstanding income tax but as trading conditions continued to deteriorate the agreed schedule of conditions could not be met and on DATE the Inland Revenue presented a winding up petition to the court and a winding - up order was made on DATE .

The Secretary of ORG subsequently appointed an ORG who became Liquidator on an interim basis . As such , he had various obligations under the provisions of LAW DATE ( “ the CARDINAL Act ” ) to look into the affairs of GPE and in particular its causes of failure .

The applicants , as well as a number of officers of companies within GPE ’s management remit , were interviewed by an ORG from ORG in connection with GPE ’s affairs . The persons interviewed were required to give written statements .

The first applicant was interviewed on DATE and DATE and the second applicant on DATE and DATE . The statements were given pursuant to the provisions of sections CARDINAL , CARDINAL and CARDINAL of the CARDINAL Act . The first applicant states that the first interview was unfair and oppressive and that the questioning was conducted in a peremptory and police - like manner . He was not advised that he had the right to have a legal adviser during interview . The first applicant signed a written statement in connection with this interview on DATE . He was accompanied by his solicitor at the second interview .

The second applicant also states that his first interview was conducted in an oppressive , intense and accusatory manner . He was not informed of his right to have his lawyer present at the interview and many of the questions put to him were not within his personal knowledge . His solicitor was present at the second interview , which was conducted smoothly , speedily and in a dignified and business - like manner .

On DATE the Official Receiver acting on behalf of the Secretary of ORG issued proceedings against the applicants under LAW DATE ( “ the LAW ” ) asserting that they were unfit to be company directors and should be disqualified from that competence .

The proceedings were founded on a report made to the court by the Deputy Official Receiver on DATE which drew extensively on the statements made by the applicants in interviews as well as materials which they and others produced to the ORG acting under compulsory powers .

On DATE a national newspaper published an article stating that proceedings had been issued against the applicants on DATE .

The disqualification proceedings were served on the applicant on CARDINAL or DATE and alleged , inter alia , that the applicants allowed GPE and GPE to continue to trade without there being any commercial prospect of the companies meeting their liabilities , misapplication of company funds and unlawful payments to directors . The applicants state that the criticism levelled against them is based on information obtained unfairly in the exercise of compulsory powers and that difficulties which GPE and GPE encountered are to be explained in terms of the exceptional cash flow problems due to market forces at the relevant time .

B. Relevant domestic law

Appointment etc . of official receivers under LAW DATE

Section CARDINAL of the Insolvency Act DATE states :

“ ( CARDINAL ) For the purpose of this LAW the official receiver , in relation to any bankruptcy or winding up , is any person who by virtue of the following provisions of this section or section CARDINAL below is authorised to act as the official receiver in relation to that bankruptcy or winding up .

CARDINAL ) The Secretary of ORG may ( subject to the approval of the ORG as to numbers ) appoint persons to the office of official receiver … .

( CARDINAL ) Where a person holds the office of official receiver , the Secretary of ORG shall from time to time attach him either to ORG or to a county court having jurisdiction for the purposes of ORG of this Act .

( CARDINAL ) Subject to any directions under subsection ( CARDINAL ) below , an official receiver attached to a particular court is the person authorised to act as the official receiver in relation to every bankruptcy or winding up falling within the jurisdiction of that court . ... ”

Company ’s statement of affairs

Section CARDINAL of the LAW reads :

“ ( CARDINAL ) Where the court has made a winding - up order or appointed a provisional liquidator , the official receiver may require some or all of the persons mentioned in subsection ( CARDINAL ) below to make out and submit to him a statement in the prescribed form as to the affairs of the company .

( CARDINAL ) The statement shall be verified by affidavit by the persons required to submit it and shall show ...

( e ) such further or other information as may be prescribed or as the official receiver may require .

( CARDINAL ) The persons referred to in subsection ( CARDINAL ) are

( a ) those who are or have been officers of the company ; ORG ...

( CARDINAL ) If a person without reasonable excuse fails to comply with any obligation imposed under this section , he is liable to a fine and , for continued contravention , to a DATE default fine . ... ”

Investigation by the official receiver

Section CARDINAL provides :

“ ( CARDINAL ) Where a winding - up order is made by the court in GPE and GPE , it is the duty of the official receiver to investigate

( a ) if the company has failed , the causes of the failure ; and

( b ) generally , the promotion , formation , business , dealings and affairs of the company ,

and to make such report ( if any ) to the court as he thinks fit .

( CARDINAL ) The report is , in any proceedings , prima facie evidence of the facts stated in it . ”

Section CARDINAL provides :

“ ( CARDINAL ) This section applies as does section CARDINAL ; and it also applies , in the case of a company in respect of which a winding - up order has been made by the court in GPE and GPE , as if references to the office - holder included the official receiver , whether or not he is the liquidator .

( CARDINAL ) Each of the persons mentioned in the next subsection shall

( a ) give the office - holder such information concerning the company and its promotion , formation , business , dealings , affairs or property as the office - holder may at any time after the effective date reasonably require , and

( b ) attend on the office - holder at such times as the latter may reasonably require . …

( CARDINAL ) If a person without reasonable excuse fails to comply with any obligation imposed by this section , he is liable to a fine and , for continued contravention , to a DATE default fine . ”

Section CARDINAL of the Perjury Act CARDINAL

Section CARDINAL(c ) of the LAW DATE makes it a criminal offence for any person knowingly or willingly to make a statement that is false in a material respect if that person is required to provide an oral declaration or an oral answer under or in pursuance of LAW for the time being in force .

LAW DATE gives power for the disqualification of directors of companies who are regarded as unfit .

Section CARDINAL reads :

" ( CARDINAL ) ... a court may , and under LAW shall , make against a person a disqualification order , that is to say an order that he shall not , without leave of the court

( a ) be a director of a company , or

( b ) be a liquidator or administrator of a company , or

( c ) be a receiver or manager of a company 's property , or

( d ) in any way , whether directly or indirectly , be concerned or take part in the promotion , formation or management of a company ,

for a specified period beginning with the date of the order . ...

( CARDINAL ) In each section of this LAW which gives to a court power or , as the case may be , imposes on it the duty to make a disqualification order , there is specified the maximum ( and , in section CARDINAL , the minimum ) period of disqualification which may or ( as the case may be ) must be imposed by means of the order .

( CARDINAL ) Where a disqualification order is made against a person who is already subject to such an order , the periods specified in those orders shall run concurrently .

( CARDINAL ) A disqualification order may be made on grounds which are or include matters other than criminal convictions , notwithstanding that the person in respect of whom it is to be made may be criminally liable in respect of those matters . ... ”

Section CARDINAL provides :

“ ( CARDINAL ) The court shall make a disqualification order against a person in any case where , on an application under this section , it is satisfied -

( a ) that he is or has been a director of a company which has at any time become insolvent ( whether while he was a director or subsequently ) , and

( b ) that his conduct as a director of that company ( either taken alone or taken together with his conduct as a director of any other company or companies ) makes him unfit to be concerned in the management of a company . … ”

Rule CARDINAL of LAW Proceedings Rules DATE reads as follows :

“ ( CARDINAL ) There shall , at the time when the summons is issued , be filed in court evidence in support of the application for a disqualification order , and copies of the evidence shall be served with the summons on the respondent .

( CARDINAL ) The evidence shall be by CARDINAL or more affidavits , except where the applicant is the official receiver , in which case it may be in the form of a written report ( with or without affidavits by other persons ) which shall be treated as if it had been verified by affidavit by him and shall be prima facie evidence of any matter contained in it .

( CARDINAL ) There shall in the affidavit or affidavits or ( as the case may be ) the official receiver ’s report be included a statement of the matters by reference to which the respondent is alleged to be unfit to be concerned in the management of a company . ”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

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

DATE the applicant was the head of the Prime Minister ’s political cabinet ( PERSON Prezesa PERSON ) .

NORP In DATE a prominent film producer PERSON , in exchange for a bribe , offered to TIME the editor of GPE ’s largest newspaper -Gazeta Wyborcza- to arrange for a change in a draft law aimed at limiting the print media ’s influence on radio and television . He claimed to be acting on behalf of what he called a “ group in power ” which wanted to remain anonymous . In DATE PERSON printed the partial record of A.M. ’s conversation with Mr GPE .

NORP In DATE the PERSON ( the lower house of the NORP parliament ) created a special parliamentary committee to conduct an investigation into the circumstances of the affair and the group in power .

Simultaneously , a separate criminal investigation was conducted against Mr GPE .

On DATE the PERSON committee officially terminated the parliamentary investigation . By a majority vote it adopted a final report which came to the conclusion that Mr PERSON had been acting on his own . Subsequently , the PERSON had to decide whether to accept the committee ’s official final report or CARDINAL of the various minority reports as the outcome of the investigation . Unexpectedly , on DATE it voted to accept the minority report that most radically departed from the majority report and named the applicant as a member of the “ group in power ” and one of the masterminds behind GPE ’s mission ( together with CARDINAL other persons : the former prime minister , deputy minister of culture , head of the NORP public television and a high - ranking politician ) . The authors of the report considered that the applicant had committed the criminal offences of bribery and false testimony .

On DATE the applicant requested ORG ( Prokurator Rejonowy ) to institute an investigation in order to establish whether he had committed the offences listed in the parliamentary committee ’s report .

The applicant ’s case was transferred to ORG ) and subsequently to ORG , where it was joined to an investigation which had already been pending ( concerning the “ group in power ” ) .

The applicant was heard by the prosecutor on DATE and DATE . It appears that he was not officially charged with a criminal offence .

On DATE the applicant ’s representative asked about progress in his case . In reply he was informed that it was not possible to envisage the date of termination of the proceedings .

On DATE the applicant ’s representative again asked ORG about the progress in the investigation . He confirmed that he was aware of the fact that the investigation concerned several persons and many issues .

On DATE ORG informed the applicant that since the alleged bribery scandal concerned CARDINAL other persons listed in the PERSON ’s report of DATE , it was impossible to terminate the proceedings only with respect to the applicant .

NORP In DATE in view of the organisational changes in the prosecution authorities , the investigation was transferred to the newly created State Prosecution ( ORG ) and its FAC office .

On DATE ORG discontinued the criminal proceedings partly on the ground that no offences had been committed and partly because some of the offences were time - barred . The Prosecutor obtained evidence from numerous witnesses including many politicians and obtained voluminous documentary evidence .

The applicant could not appeal against the decision to discontinue the proceedings , since he was not listed as CARDINAL of the culprits in the final decision .

The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE , no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ORG , and NORP v. GPE , no . CARDINAL ( dec . ) , ORG CARDINALVIII , and in its the judgment in the case of PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant , INDEX.HU PERSON , is a private joint stock company with its seat in GPE . It was represented before the ORG by PERSON , a lawyer practising in PERSON .

The applicant runs an internet - based news portal where it published the video footage of a demonstration . Several police officers – who had been filmed and whose images had been published without their consent LAW a civil - law action against the applicant before ORG , requesting the court to establish an abuse of their images .

The court found for the plaintiffs on DATE . ORG upheld this decision on DATE . The judgment was served on the applicant on CARDINAL DATE . It did not lodge a petition for review with ORG .

Act no . DATE on LAW provides as follows :

“ A petition for a review of the final decision by ORG may be filed , alleging a breach of the law , by any party ... ”

“ If the [ final ] decision ... was in breach of the law , ORG shall fully or partially quash the unlawful decision ; and if the facts of the case can properly be established on the basis of the case file , it shall give a new decision in compliance with the law , otherwise it shall instruct the first- or second - instance court in charge of the case to resume the proceedings and to adopt a new decision . ”


Remainder inadmissible;Violation of Art. 10;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in DATE and DATE respectively and live in GPE . The first applicant is the owner of a publishing house in GPE which published a book giving rise to the present application . The second applicant is the editor and author of the book in question .

On DATE the public prosecutor at ORG commenced an investigation in connection with a book , entitled PERSON , published and written by the first and second applicants respectively as a critique of the NORP penitentiary system . The book contains QUANTITY articles , CARDINAL of which are written by the second applicant , in which the authors criticise the cell system in NORP prisons . By way of examples from other countries and personal anecdotes , the second applicant claims in her articles that the cell system facilitates illtreatment and leads to deaths in prison . The introductory part of the book states the following :

“ This book is a salute to the new generations who fascism is trying to separate from our history of resistance and tradition of unity . It is a white page handed over by those who made courage and sacrifice the norm and created future revolutionary fighters . It is a message from those who , like a magnet , carried new powers from generation to generation to our ranks . We did not and will not allow [ future generations ] to forget the traditions and norms that were created during humanity 's , revolutionists ' and communists ' struggle and revolt against slavery , genocide , fascism and national and class exploitation ... In this book , we transmit our conscience and hearts to those who are fighting for a better future . ”

The book also contains CARDINAL other articles written by persons serving prison sentences , following their conviction for having been involved in an illegal armed organisation called the PERSON ( ORG ) . In their articles , entitled “ Isolation cells are death cells ” , “ She was in [ prison ] , I was out ” , “ Empty the dungeons , free the prisoners ” and “ Prisons and health ” , the authors criticise the isolation of prisoners , ill - treatment of detainees and poor prison conditions and recount their personal experiences of imprisonment . Furthermore , the book comprises newspaper clippings concerning the real events on which the articles are based .

On DATE the public prosecutor filed a bill of indictment against the applicants , accusing them of disseminating propaganda that undermined the territorial integrity and the indivisible unity of GPE through publishing , and of aiding and abetting an illegal armed organisation , namely , PERSON ( ORG ) , in certain parts of the book . The charges were brought under sections CARDINAL and CARDINAL subsections CARDINAL , CARDINAL and DATE of PERSON no . ORG and Articles CARDINAL and CARDINAL of the now defunct Criminal Code . The Government noted that PERSON ( ORG ) had been involved in a number of terrorist acts with a view to detaching part of the territory of GPE and forming a political regime based on ORG ideology . The organisation , which was qualified as a terrorist organisation under the domestic law of GPE , disseminated separatist propaganda within the NORP community and incited hatred and hostility by making distinctions on the basis of race and region .

At the first hearing , held on DATE , ORG invited the applicants to present their defence arguments against the bill of indictment filed by the public prosecutor . Both applicants requested an extension of the time - limit for the preparation of their defence , which was granted . The applicants were informed that they were expected to present their defence arguments at the next hearing and that otherwise they would be deemed to have waived their defence rights in so far as the bill of indictment was concerned .

At the second hearing , on DATE the applicants requested a further extension . The first applicant , PERSON , claimed that she had appointed a new lawyer who had prior engagements , and the second applicant argued that she had encountered problems in meeting with her lawyer due to the searches conducted on lawyers visiting the prison . ORG dismissed the applicants ' request for a further extension and indicated that that interim decision could be appealed against along with the decision on the merits .

At the third and fourth hearings , on DATE and DATE PERSON requested extensions of the time - limit for submission of her defence arguments , whereas PERSON or her representative did not attend . The court granted the extensions requested and ruled that at the next hearing the applicants were required to be present and make their final submissions .

On DATE ORG heard the applicants ' defence submissions . The applicants pleaded not guilty and argued that in the book they had merely criticised fascist policies in GPE and , particularly , had expressed their opinion about the prison system . They claimed further that their trial by a ORG security court for publication of a book had constituted a violation of ORG CARDINAL and CARDINAL of LAW . Following this hearing , ORG rendered its judgment and convicted the applicants under LAW of aiding and abetting the illegal armed organisation PERSON ( ORG ) . The court sentenced the first applicant to DATE and DATE imprisonment , convertible to a fine of MONEY ( TRL ) , and the second applicant to DATE , DATE and DATE imprisonment in view of her previous conviction of membership of the PERSON ( ORG ) . ORG did not make reference to any specific passages or pages of the book , but rather based its conviction on a review of the book as a whole .

By petitions dated CARDINAL and DATE the applicants appealed against the above - mentioned judgment and requested ORG to hold a hearing . ORG decided to hold a hearing in respect of PERSON but dismissed the request of PERSON on the grounds that the conditions required under LAW had not been met .

On DATE ORG upheld the judgment of ORG without holding a hearing . It noted that PERSON and her representative had not attended the hearing and had not informed the court of the reason for their absence . The opinion of ORG submitted to ORG was not communicated to the applicants .

On DATE the decision of ORG was returned to the registry of ORG .

On DATE the applicants requested a re - examination of their case by ORG in view of the future entry into force of the new criminal code on DATE ( PERSON no . DATE ) . They further asked the court to suspend the execution of their sentences .

In a judgment dated DATE ORG first determined which law was the most favourable in respect of the applicants . It held that the former criminal law was more favourable to the first applicant because she had been convicted of an offence under LAW and her sentence had been converted to a fine , whereas if the new amendments had applied she would have been sentenced to DATE of imprisonment , which could not be converted into a fine .

As regards the second applicant , PERSON , the court held that the provisions of the new criminal code were more favourable to her . Thus , it convicted her of the offence under section CARDINAL(CARDINAL ) of PERSON no . ORG . The court , after reducing the penalty to be imposed by CARDINAL under LAW , sentenced the second applicant to DATE imprisonment and to a fine of TRY CARDINAL . The applicants appealed .

On an unspecified date , ORG quashed the above judgment in respect of the first applicant , PERSON , on the ground that a pre - payment notice ( ön ödeme ihtaratı ) had not been served on her . It noted that the offence committed by the applicant fell within the scope of section CARDINAL(CARDINAL ) of PERSON no . ORG , as amended by PERSON no . DATE , and that the said provision provided for a fine and required pre - payment .

In a judgment dated DATE ORG convicted the first applicant , PERSON , of the offence under LAW and sentenced her to DATE and DATE imprisonment . ORG reiterated that the former criminal code was more favourable to the first applicant since it provided for a lighter sentence that could be converted to a fine . Thus , in the light of the new amendments , the court converted the first applicant 's prison sentence to a fine in the amount of TRY CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . The court noted that the first applicant and her representative had failed to attend the hearing and had also failed to make the pre - payment .

On DATE the first applicant appealed against that judgment . The proceedings are still pending before ORG .

At the time of the applicants ' conviction , LAW provided as follows :

“ Any person who , knowing that an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to CARDINAL and DATE imprisonment ... ”

On DATE this Article was amended and the part “ ... or facilitates its operations in any manner whatsoever ... ” was deleted .

Under section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL of DATE ) , any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of DATE .

Further information on the relevant domestic law and practice in force at the material time can be found in the following judgments and decision : PERSON v. GPE , ORG CARDINAL , CARDINAL and CARDINAL , § § CARDINAL - CARDINAL , DATE ; PERSON v. GPE no . CARDINAL/CARDINAL , § § DATE , DATE ; GPE v. GPE , no . CARDINAL , § § CARDINAL , DATE ; and ORG v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .

By PERSON no . CARDINAL of DATE , published in the official journal on DATE , ORG were abolished .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

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

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

The applicant was the Head of ORG ( nimismies , länsmannen ) .

In DATE a detainee set fire to the department ’s holding cell . In the subsequent investigation against the detainee in question , it turned out that the fire alarm had not gone off because it had been deliberately deactivated , presumably by CARDINAL of the police officers . While the officer appointed to investigate the suspected criminal damage by the detainee was questioning CARDINAL of his colleagues as a witness , the applicant entered the investigation room . He read the text of the unfinished report and noticed that the witness had indicated the name of a fellow officer who had , to his mind , deactivated the fire alarm . The applicant felt that such an allegation was improper and , after a discussion between the CARDINAL persons present , that part of the witness statement was removed . The report was then finalised and it was read and signed by the witness .

On DATE the public prosecutor brought charges against the applicant in ORG ( käräjäoikeus , tingsrätten ) , accusing him of abuse of public office and , in the alternative , violation of official duty . As to the latter charge , she invoked LAW , LAW , of LAW ( rikoslaki , strafflagen , as amended by Act no . DATE ) , which was the general provision sanctioning violation of official duty . She also invoked section CARDINAL , subsection CARDINAL , of ORG ( valtion virkamieslaki , statstjänstemannalagen ; Act no . CARDINAL ) , which stipulated that a civil servant was to perform his or her duties properly and without delay and follow supervisory orders . She further invoked section DATE , subsection CARDINAL , of LAW ( esitutkintalaki , förundersökningslagen , Act no . CARDINAL/CARDINAL , as amended by Act no . CARDINAL ) , according to which a report drawn up during questioning was not to be changed after the person giving the statement had checked it and any corrections and amendments requested by him or her had been made .

The applicant denied the charges . He contended that his actions had not been contrary to section DATE , subsection CARDINAL , of LAW . On the contrary , in contributing to the removal of the allegation which in his view had been defamatory , he had fulfilled his official duty as the superior officer , as defined in section CARDINAL , subsection CARDINAL , of ORG . He also regarded the effects of his conduct as insignificant . In any case , the requirement of criminal intent was not met .

During her closing arguments before ORG , the prosecutor claimed that the applicant should , at any rate , be convicted of negligent violation of official duty under LAW , LAW , of LAW .

On DATE ORG found the applicant guilty of violation of official duty , under LAW , LAW , of LAW and LAW , and sentenced him to a fine . According to the court he had , in his office as the Head of ORG , deliberately violated his official duty based on the provisions to be followed in official functions . The court found that , due to his intervention in the questioning , a statement already included in the report had been removed . As to the applicable legislation , the court stated that the general provision , LAW , LAW , of LAW , did not as such form a legal basis for a conviction . The actual substance of the official duty was to be found in other provisions or regulations . In the court ’s view , the applicant ’s actions had not been contrary to section CARDINAL , subsection CARDINAL , of LAW , as claimed by the prosecution . It did find , however , that section CARDINAL , subsection CARDINAL , of ORG provided a sufficient legal basis for the conviction , as the applicant ’s conduct , in the given circumstances , could not be regarded as proper .

The applicant appealed against the judgment to ORG ( hovioikeus , hovrätten ) relying mainly on his previous arguments . During the appeal proceedings the prosecutor renewed her charge concerning negligent violation of official duty . The applicant contested that charge , arguing that he had not been able to respond to it at first instance .

On DATE ORG , having held an oral hearing , convicted the applicant of negligent violation of official duty under LAW , LAW , of LAW and section CARDINAL , subsection CARDINAL , of ORG . It found that the applicant had acted carelessly rather than with criminal intent . It also reduced the amount of the fine by CARDINAL . As to the legal basis of the conviction the court reasoned its judgment as follows :

“ According to section DATE , subsection CARDINAL , of ORG , a civil servant shall perform his or her duties properly and without delay and follow supervisory orders . In the legal praxis [ reference to ORG precedence no . PERSON ] , it has been held that the said provision , governing the general duties of public officials , does not have an independent status irrespective of other provisions . In the judicial literature the provision has been regarded as problematic in the light of the principle of legality , which includes the requirement of precision of criminal statutes . Criminal liability presupposes a breach of a clearly defined official duty . On the other hand , it has been expressed in the judicial literature that , in practice , it is impossible to describe all official duties in detail in legal provisions and regulations . However , one must always be able to deduce the more specific aspects of an official duty from some provision or regulation or at least from the established practice . ... ”

“ The general principles to be followed in the pre - trial investigation are prescribed in sections DATE of LAW . For instance , those factors which are to be cleared up during the investigation are defined in these provisions . Further , sections DATE of LAW contain regulations about the procedure to be followed . According to those provisions a witness to the investigation , legal counsel of the person being questioned , his or her support person , guardian , trustee or other legal representative , the prosecutor and an interpreter may be present at the questioning , along with the questioner and the person being questioned . The statement given by the [ latter ] is recorded to the extent necessary , having regard to the issue under investigation . It is for the questioner to decide what , and to what extent , will be recorded in the report . The questioner must , however , always conduct the questioning in such a manner that the statement of the person being questioned is recorded according to his or her approval . Further , section CARDINAL of LAW provides that the use of any impropriate means or practices that affect [ a person ’s ] freedom of decision , will , memory or judgment , in order to obtain a statement leading for a specific direction , are forbidden . After the questioning the person being questioned shall be given an opportunity to check the report drawn up by the questioner , after which he or she shall be asked whether his or her account has been noted down correctly . The principle of impartiality is to be followed , which means that in the performance of official duties all persons must be treated equally ... ”

“ Even though the above - mentioned provisions of LAW do not directly regulate the duties of [ the applicant ] as the superior officer , the general requirement of proper discharge of duties , as defined in section CARDINAL , subsection CARDINAL , of ORG means , in this case , that the provisions and principles concerning pre - trial investigation are to be followed . In this respect , regard is to be had to [ the applicant ’s ] position and the nature of his duties and what that necessarily entails . ORG finds that , in the light of the above general principles and the provisions concerning pre - trial questioning , it was not the duty of [ the applicant ] as the superior officer to intervene in the questioning conducted by his subordinate officer , not even in the form of a conversation . As a result of such a conversation the subordinate officer being questioned had asked that a part of his statement , already entered in the report , be removed . ”

The applicant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) maintaining , inter alia , that he had been convicted without a sufficient legal basis . The substance of the official duty allegedly breached did not in his view transpire from those provisions of LAW referred to by ORG . He also contended that , in the appellate proceedings , the prosecutor had only demanded that he be convicted of negligent violation of official duty after the court had inquired whether she intended to do so . At no stage did the prosecutor modify the charges accordingly or indicate the applicable provision concerning that offence . He further argued that the prosecutor had never invoked any specific provision other than section CARDINAL , subsection CARDINAL , of LAW . As to the other provisions of LAW , ORG had at no point of the proceedings brought to the applicant ’s attention that it considered those provisions applicable to the case and that they could be relied upon for his conviction .

On DATE ORG refused the applicant leave to appeal .

LAW , article CARDINAL , of LAW , as in force at the relevant time , read as follows :

“ If a public official , when acting in his or her office , deliberately in a manner other than provided above in this chapter violates or fails to meet his or her official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty crime , he or she shall be sentenced for violation of official duty to a fine or to imprisonment for at DATE . ”

LAW , LAW , of LAW ( as amended by Act no . DATE ) , regulating negligent violation of official duty and as in force at the relevant time , read :

“ If a public official , when acting in his or her office , through negligence or carelessness in a manner other than referred to in LAW ) violates or fails to meet his or her official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty crime , he or she shall be sentenced for negligent violation of official duty to a warning or a fine . ”

Section CARDINAL , subsection CARDINAL , of ORG provides that a civil servant is to perform his or her duties properly and without delay and to follow superior orders .

Section CARDINAL , subsection CARDINAL , of FAC reads ( Act no . DATE ) as follows :

“ A person being questioned shall be treated in a calm and pertinent manner . The use of false notice , promises or innuendo of special advantages , exhaustion , threats , force or other improper means or practices affecting the person ’s freedom of decision , will , memory or judgment , in order to obtain a confession or a statement leading in a specific direction , are not allowed . ”

Section CARDINAL , subsection CARDINAL , of the said LAW reads :

“ The statement entered in the report shall be read out to the person being questioned immediately after the questioning , and he or she may check it . The questioner shall ask the person being questioned whether his or her account has been entered into the report correctly . Any such request to correct or amend the report which has not been complied with shall also be noted in the report . The report must not be changed after the person being questioned has checked it and the requested corrections and amendments have been made . ”

According to LAW , section CARDINAL , of LAW ( laki oikeudenkäynnistä rikosasioissa , lagen om rättegång i brottmål , Act no . CARDINAL ) , the court may pass a sentence only for the act for which a punishment has been requested or for which the court may , according to law , pass a sentence on its own initiative . The court is not bound by the heading of the offence or the reference to the applicable provisions in the charge .

The Government PERSON ( hallituksen esitys , regeringens proposition , no . HE CARDINAL/CARDINAL ) concerning the last - mentioned provision states , inter alia , that in criminal proceedings the court is only bound by the description of the events for which punishment is demanded . It is for the court to decide ex officio which offence the act described in the charge constitutes . The proceedings must be conducted in such a manner that the offence of which the defendant is convicted does not come as a surprise to him or her . The defence shall have the opportunity to point out any such circumstances which he or she feels are relevant in deciding about the culpability . If in the court ’s view the defendant should be convicted of some other offence or under some other provision than that indicated in the charge , the court should draw the defendant ’s attention to the matter in the course of the proceedings .


SELDENRIJK-RAAT AND OTHERS v. THE NETHERLANDS

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicants , PERSON - Raat , Mr PERSON and Mr PERSON , are GPE nationals who were born in DATE , DATE and DATE respectively . They live on a farm in Westergeest ( municipality of GPE , province of GPE ) .

CARDINAL

NORP In DATE CARDINAL animal health inspectors , P. and HCARDINAL , came to inspect a pony kept on the applicants’ farm and thought to be in a state of neglect . The applicants state that on that occasion they gave their full co - operation . The inspectors announced their intention to come back at a future date to take another look at the animal , accompanied by a veterinary surgeon if need be .

On DATE the inspector PERSON returned , accompanied by CARDINAL uniformed police officers , Officers HCARDINAL and NORP According to the applicants , they had a police dog with them .

According to official documents , the first applicant refused to admit them onto the LOC . The second applicant then ran towards the inspector and the police officers and tried to push Officer HCARDINAL away . Officer HCARDINAL then grabbed hold of the second applicant and told him that he was under arrest . The second applicant , however , refused to come quietly : he had to be wrestled to the ground by all CARDINAL , PERSON and Officers HCARDINAL and NORP , and brought under control with pepper spray . While this was going on the first applicant tried to pull the officials off the second applicant . The third applicant appeared , waving his arms about and telling the officials to leave . Officer HCARDINAL then sprayed pepper spray into his face . At that , the third applicant left , only to come back with a spade which he brandished in a threatening manner .

For their part , the applicants deny that the pony was neglected in the first place . They state that the officers failed to identify themselves and that they searched the applicants’ dwelling without a warrant .

They further allege that the first applicant was struck by Officer HCARDINAL ; that after the second applicant had been subdued and handcuffed , the police officers grabbed him by the neck , closing off his jugular artery and causing him pain and bruising ; that the second applicant was thrown onto the floor of a police van , where he was thrown about on the way to the police station ; that the first and third applicants were driven to the police station without being allowed safety belts ; and that the third applicant ’s mobile telephone was checked for private telephone numbers without the third applicant ’s permission .

They also allege that following their arrest they asked to see a lawyer but were met with a refusal .

The applicants were tried before a single - judge chamber ( politierechter ) of ORG ( rechtbank ) of GPE on DATE . Judgment was given DATE .

The first applicant was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript . She was fined CARDINAL ( ORG ) .

The second applicant was found guilty of resisting an official engaged in his lawful duties ( wederspannigheid ) . He was also fined ORG CARDINAL .

The third applicant , like the first applicant , was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript . He too was fined ORG CARDINAL .

In each case ORG CARDINAL of the fine was suspended .

Animal health inspector P. joined the proceedings as a civil party . His claims were declared inadmissible and remitted to the civil courts .

The applicants appealed .

The cases were re - heard by a single - judge chamber of ORG ( gerechtshof ) of GPE on DATE . Judgment was given DATE . The applicants were all convicted in the same terms used by ORG .

The first applicant was fined LAW , ORG CARDINAL of which was suspended . The second and third applicants were each fined ORG CARDINAL , ORG CARDINAL of which was suspended .

All CARDINAL applicants lodged appeals on points of law with ORG ( PERSON ) . In their statements of points of appeal on points of law ( cassatieschriftuur ) they complained that their conviction did not follow from the evidence . They inspected the case file after it had been transmitted to ORG by ORG .

On DATE the first applicant wrote to PERSON General to ORG complaining about the disappearance of a number of documents from the file when it was transmitted to ORG by the registry of ORG . Copies of the documents concerned were appended to the letter . It appears that these documents were copies of official police reports with the applicants’ critical remarks added in handwriting and statements by veterinary experts to the effect that the pony was very old but in good health for its age .

On DATE the Acting Procurator General gave advisory opinions in all CARDINAL cases recommending that the appeals be dismissed as unfounded since the evidence relied on by ORG was quite sufficient and the convictions were sound .

On DATE the applicants’ lawyer submitted a letter written by the applicants themselves by way of response to the Acting Procurator General ’s advisory opinion . This letter reiterated the applicants’ complaints about the actions of the various officials and their protestations of innocence . It also mentioned the letter with appended documents which they had written to PERSON ( paragraph CARDINAL above ) and stated that the Procurator General had forwarded it to a member of the registry of ORG for inclusion in the file .

On DATE ORG gave judgment dismissing the appeals on summary reasoning .


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively . The first applicant lives in GPE ( GPE ) and the second applicant lives in GPE .

The first applicant married an NORP citizen in DATE . The marriage was concluded in GPE , where the couple set up their common residence . On DATE their daughter , the second applicant , was born . The family 's last common residence was in GPE . Under the law of GPE the parents had joint custody over the second applicant .

On DATE the first applicant 's wife , without obtaining his consent , left GPE with the second applicant and took her to GPE .

On DATE the first applicant , relying on the DATE Hague Convention on the Civil Aspects of International Child Abduction ( “ the Hague Convention ” ) , requested the NORP courts to order the second applicant 's return . In these and the subsequent proceedings the first applicant was represented by counsel .

On DATE the second applicant 's mother filed an application with FAC ( LOC für GPE ) for the award of sole custody over the second applicant .

On DATE ORG , after having heard evidence from the first applicant and his wife and the oral statement of an expert in child psychology , Dr. PERSON , ordered that the second applicant be returned to the first applicant at her former place of residence in GPE .

The court , noting that under GPE law the first applicant and his wife had joint custody of their daughter , found that the first applicant 's wife had wrongfully removed the child within the meaning of LAW . Moreover , it dismissed the mother 's claim that the child 's return would entail a grave risk of physical or psychological harm within the meaning of LAW ( b ) of LAW . It considered that the second applicant 's return could not be hindered by the fact that the mother was her main person of reference and that returning could cause a massive trauma affecting her development . Otherwise , mothers of small children could easily circumvent the aim of LAW . As to the mother 's allegation that the first applicant regularly masturbated in the presence of the child , the court referred to the expert 's statement that such conduct would , in view of the child 's tender age , not cause immediate harm . The fact that such conduct , if proved , could in the long run be harmful to the child would have to be assessed in the custody proceedings . Finally , it held that the mother could be expected to return with the second applicant to GPE .

On DATE the ORG ( PERSON für PERSON ) dismissed an appeal by the second applicant 's mother .

ORG confirmed ORG assessment as regards the question whether the second applicant 's return would entail a grave risk of physical or psychological harm within the meaning of LAW ( b ) of LAW . It noted that the onus of proof was on the person opposing the return , i.e. the second applicant 's mother . Further , it noted that the statement of the expert in child psychology had denied that there was any such risk . That statement had been made on the assumption that the mother 's allegations were true . However , ORG emphasised that the truth of these allegations had not been proved and that ORG had had the benefit of hearing the first applicant and , thus , of forming a personal impression of him .

On DATE ORG ( Oberster Gerichtshof ) dismissed a further appeal by the second applicant 's mother .

On DATE the first applicant filed an application for enforcement of the return order of DATE .

Meanwhile , the first applicant had started divorce proceedings before ORG ( GPE ) . By a decision of DATE , the court pronounced a default judgment of divorce . Further , it awarded the first applicant sole custody of the second applicant and ordered that the second applicant should reside with the first applicant in the event of her return .

On DATE the file arrived again at FAC .

On DATE the ORG ordered the enforcement of the return order under section CARDINAL ( CARDINAL ) of ORG Ausserstreitgesetz ) . It noted that it was necessary to order coercive measures as there were indications that the mother was obstructing the child 's return . She had given an interview to a local newspaper according to which she frequently changed her whereabouts and was determined not to let the child be taken away from her .

NORP In TIME of CARDINAL DATE , an attempt to enforce the return order was made in accordance with the terms set out in the order of DATE A bailiff , assisted by a police officer , a locksmith and a representative of ORG , appeared at the house where the second applicant and her mother were living . The first applicant was also present . A search carried out in the house , necessitating the use of force against the second applicant 's mother and the forceful opening of several doors , remained unsuccessful . On the occasion of the enforcement attempt ORG decision of CARDINAL DATE and the enforcement order of CARDINAL DATE were served on the second applicant 's mother .

On CARDINAL DATE the second applicant 's mother appealed against the decision of CARDINAL DATE and again filed an application for the award of sole custody of the second applicant .

On DATE GPE , LOC of GPE , issued an arrest warrant against the second applicant 's mother on suspicion of international parental kidnapping .

On DATE the first applicant made a further application for enforcement of the return order .

By a decision of DATE the ORG , at the request of the second applicant 's mother , transferred jurisdiction to FAC , in the judicial district of which the second applicant had purportedly established her residence .

On DATE the ORG granted an appeal by the first applicant against the transfer of jurisdiction and , on the mother 's appeal , quashed FAC enforcement order of CARDINAL DATE and referred the case back to it .

Referring to section DATE ( CARDINAL ) of ORG , the court found that , in the enforcement proceedings , the child 's well - being had to be taken into account in so far as a change in the situation had occurred since the issue of the return order and the taking of coercive measures . However , LAW , this question was not to be examined by the court of its own motion but only upon an application by the person opposing the return . Following the service of the enforcement order of CARDINAL DATE the mother had submitted , in particular , that she was the second applicant 's main person of reference . Because of the lapse of time , the second applicant no longer recognised her father when she was shown his picture . By being taken away from her mother the child would suffer irreparable harm . The court therefore ordered FAC to examine whether the situation had changed since the return order of DATE . It also ordered ORG to obtain the opinion of an expert child psychologist on the question whether the child 's return would entail a grave risk of physical or psychological harm and whether coercive measures were compatible with the interests of the child 's well - being .

DATE numerous letters were exchanged between ORG and ORG , acting as their respective ORG under LAW . ORG repeatedly requested information as to which steps had been taken to locate the second applicant and to enforce the return order of DATE . ORG replied that the first applicant was represented by counsel in the NORP proceedings and that it was up to him to take all necessary steps to obtain the enforcement of the return order . It also pointed out that there were only rather limited possibilities to locate a child who had disappeared after a return order had been made .

On DATE ORG dismissed an appeal by the first applicant and set aside the enforcement order of CARDINAL DATE . It noted in particular that the notion of the child 's well - being was central to the entire proceedings . When ordering coercive measures under section CARDINAL ( CARDINAL ) of ORG , the court had to take the interests of the child 's well - being into account , despite the fact that the return order was final , if the relevant situation had changed in the meantime . Having regard to the aims of LAW , a refusal of coercive measures was only justified if the child 's return would entail a grave risk of physical or psychological harm for the child within the meaning of LAW ( b ) of LAW .

ORG acknowledged that particularly difficult problems arose in cases in which the abductor had created the situation in which the return represented a serious danger to the child 's well - being . Where the abductor of a small child was the latter 's main person of reference and refused to return with the child , a serious threat to the child 's well - being might arise . Nevertheless , Article CARDINAL ( b ) of the Hague Convention made clear that the child 's well - being took priority over the ORG 's general aim of preventing child abduction . Reasons of general deterrence or , in other words , the aim of showing that child abduction was not worthwhile could not justify exposing a child to a grave risk of physical or psychological harm .

In the present case , the mother had claimed that the child , who was now DATE , had become alienated from the father . The child 's abrupt removal from her main person of reference and her return to GPE would cause her irreparable harm . ORG emphasised that the particularity of the case lay in the fact that , in the main proceedings , the courts had denied that there was any risk of psychological harm ( as a result of the alleged sexual behaviour of the first applicant ) exclusively on account of the child 's tender age . In these circumstances , it could not be excluded that the child , who was now DATE and had been living solely with her mother for DATE , would suffer grave psychological harm in the event of a return to her father . Thus , ORG had rightly found that the question whether the return order could be enforced by coercive measures needed further examination , including an opinion by an expert in child psychology . It might also prove necessary to assess whether or not the mother 's allegations were at all true .

In accordance with ORG decision , the case was referred back to ORG .

On DATE ORG issued a “ safe harbour ” order , valid until DATE , which provided , inter alia , that pending determination of custody in expedited proceedings , the first applicant would not exercise his right to sole custody of the child ; the second applicant would live with her mother away from the first applicant , who would undertake to cover their living expenses ; and the arrest warrant against the mother would be set aside as soon as she and the second applicant boarded a direct flight to GPE .

On DATE ORG dismissed an application by the first applicant for enforcement of the return order .

In the continued proceedings , the expert on child psychology , Dr. PERSON , had submitted his opinion on DATE and the first applicant had been given an opportunity to comment . On the basis of the expert opinion , the court found that since the second applicant 's birth her mother had been her main person of reference . However , the first applicant had had regular contact with her until DATE , the date of her abduction . Thereafter they had had no contact at all . Since the return order had been made , DATE and DATE had elapsed and the first applicant had become a complete stranger to the second applicant . Given that a young child needed a stable relationship with the main person of reference at least until DATE , the second applicant 's removal from her main person of reference , namely her mother , would expose her to serious psychological harm . Having regard to the considerable lapse of time since the return order had been made on DATE , ORG found that there had been a change in the relevant circumstances , in that the second applicant had lost all contact with the first applicant while her ties with her mother and her maternal grandparents had become ever closer . Consequently , her return would expose her to serious psychological harm .

The court noted the first applicant 's statement of DATE and his offer within the meaning of the “ safe harbour ” case - law but considered that this offer did not guarantee that the second applicant 's relationship with her main person of reference would be preserved in the long run . As this relationship was indispensable for her well - being , the application for enforcement of the return order had to be dismissed .

On DATE ORG dismissed an appeal by the first applicant . It shared ORG view that the situation had changed fundamentally since the issuing of the return order . At that time the second applicant had been much younger and , given the short time which had elapsed between her abduction and the issuing of the return order , had not yet lost contact with the first applicant . A return of the second applicant accompanied by her mother could not be envisaged either . Apart from the reasons adduced by ORG , the mother would face criminal prosecution in GPE and the child would , accordingly , be taken away from her .

On CARDINAL , CARDINAL and DATE the first applicant was granted TIME of supervised access to the second applicant .

On DATE ORG dismissed a further appeal by the first applicant on the ground that it did not raise any important legal issues .

On DATE the second applicant 's mother was awarded sole custody of the second applicant by ORG . It noted that LAW , which prohibited the ORG to which the child has been abducted from taking a decision on custody while proceedings for the child 's return were pending , no longer applied , as the decision not to enforce the return order had become final . Following appeal proceedings the judgment became final on DATE .

The preamble of the ORG , which has been incorporated into NORP law , includes the following statement as to its purpose :

“ ... to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , ... ”

The object of such a return is that , following the restoration of the status quo , the conflict between the custodian and the person who has removed or retained the child can be resolved in the ORG where the child is habitually resident . This principle is based on the consideration that the courts of the ORG of habitual residence are usually best placed to take custody decisions .

“ The removal or the retention of a child is to be considered wrongful where

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or the retention ; and

( b ) at the time of the removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ... ”

“ ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures

( a ) To discover the whereabouts of a child who has been wrongfully removed or retained ;

( b ) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

( c ) To secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

( d ) To exchange , where desirable , information relating to the social background of the child ;

( e ) To provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

( f ) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;

( g ) Where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

( h ) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

( i ) To keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay ... ”

“ Where a child has been wrongfully removed or retained in terms of LAW ... , the authority concerned shall order the return of the child forthwith . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation . ... ”

Section CARDINAL ( CARDINAL ) provides that adequate coercive measures are to be taken without any further proceedings against a party refusing to comply with court orders .

According to ORG case - law the courts have , in any proceedings relating to the removal of a child , the courts have to take the interests of the child 's well - being into account when assessing whether coercive measures are to be ordered and , if so , which ones are to be applied .


CASE OF WYNNE v. THE UNITED KINGDOM (No. 2)

Violation of Art. 5-4;Violation of Art. 5-5

The applicant , born in DATE , is currently detained in FAC Full Sutton .

In DATE , the applicant was convicted of the murder of a woman whom he had violently assaulted . He was sentenced to a mandatory term of life imprisonment . In DATE ( or DATE , according to the applicant 's submissions ) , he was released on life licence after a positive recommendation from ORG .

NORP In DATE , the applicant killed a DATE woman . His plea of manslaughter on grounds of diminished responsibility was accepted by the court . In DATE a discretionary sentence of life imprisonment was imposed by the judge having regard to the extreme danger to the public posed by the applicant . At the same time , the court revoked his life licence concerning his earlier sentence of mandatory life imprisonment .

In DATE , the applicant was transferred to the hospital wing of GPE prison . Since then , he has been transferred into ordinary prison locations as a “ Category A ” ( high security ) prisoner .

The applicant learned that his “ tariff ” period fixed by the trial judge on the manslaughter offence expired in DATE . He was informed by a ORG of DATE that his continued detention was based on the risk he represented .

According to the applicant 's submissions , his only ORG review took place in DATE , when , without holding an oral hearing , the ORG declined to recommend release . According to the ORG 's submissions , ORG considered the applicant 's case in DATE and DATE . In DATE , it concluded that his behaviour was aggressive and intimidatory and that he represented a high risk to the public . On DATE , it concluded that he remained far too great a risk to warrant transfer to open conditions . Of the reports before ORG , none recommended early release or early transfer to open conditions .

Murder carries a mandatory sentence of life imprisonment under LAW DATE . A person convicted of other serious offences ( for example , . manslaughter or rape ) may also be sentenced to life imprisonment at the discretion of the trial judge in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside .

NORP Over DATE , the Secretary of ORG has adopted a “ tariff ” policy in exercising his discretion whether to release offenders sentenced to life imprisonment . This was first publicly announced in ORG by Mr PERSON on DATE ( ORG ) cols . CARDINAL - CARDINAL ) . In essence , the tariff approach involves breaking down the life sentence into component parts , namely retribution , deterrence and protection of the public . The “ tariff ” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence . The Secretary of ORG will not refer the case to ORG until DATE the expiry of the tariff period , and will not exercise his discretion to release on licence until after the tariff period has been completed ( per Lord PERSON , Ex parte V. and T. , [ DATE ] Appeal Cases CARDINAL , at pp . CARDINALG-CARDINALA ) .

NORP Under section CARDINAL of the CARDINAL Act , the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction . After expiry of the tariff , the prisoner may require the Secretary of ORG to refer his case to ORG which has the power to release if satisfied that it is no longer necessary to detain him for the protection of the public .

A different regime , however , applies under LAW to persons serving a mandatory sentence of life imprisonment . In relation to these prisoners , the Secretary of ORG decides the length of the tariff . The view of the trial judge is made known to the prisoner after his trial , as is the opinion of the Lord Chief Justice . The prisoner is afforded the opportunity to make representations to the Secretary of ORG who then proceeds to fix the tariff and is entitled to depart from the judicial view ( NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL Appeal Cases CARDINAL ; and see the ORG Secretary , Mr PERSON , policy statement to ORG , DATE , ( ORG ) cols . CARDINAL - CARDINAL ) .

At the relevant time , LAW DATE provided in section CARDINAL(CARDINAL ) :

“ If recommended to do so by the [ ORG , the Secretary of ORG may , after consultation with the Lord Chief Justice together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner . ”

On DATE , the Secretary of ORG made a statement in ORG explaining his practice in relation to mandatory life prisoners . The statement emphasised that before any mandatory life prisoner is released on life licence , the Secretary of ORG :

“ ... will consider not only , ( a ) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and , ( b ) whether it is safe to release the prisoner , but also ( c ) the public acceptability of early release . This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice . ”

In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences , the NORP courts have recognised that the mandatory sentence is , like the discretionary sentence , composed of both a punitive period ( “ the tariff ” ) and a security period . As regards the latter , detention is linked to the assessment of the prisoner 's risk to the public following the expiry of the tariff ( see , for example , NORP v. ORG , ex parte Bradley ( ORG ) [ DATE ] CARDINAL WLR CARDINAL ; NORP v. ORG ex parte ORG ) [ DATE ] CARDINAL AER CARDINAL ) .

Following the judgment in GPE v. GPE ( no . CARDINAL , ORG CARDINAL-IV ) , the Secretary of ORG announced in ORG on DATE his decision to introduce interim measures applicable to the review and release of mandatory life sentence prisoners applicable to reviews from DATE :

“ If , at the end of the review process , ORG favours the release of a mandatory life sentence prisoner once the minimum period has been served the ORG Secretary will normally accept such a recommendation . ... ”

This allows for prisoners , whose tariff had expired , to apply for an oral hearing at which they may have representation , receive full disclosure of material relevant to the question of release and be able to examine and cross - examine witness .