The applicant , Mr PERSON , has NORP and NORP nationality . He was born in DATE and lives in GPE in GPE . He was represented before the Court by Mr PERSON , a lawyer of the law firm ORG practising in GPE , GPE .

The applicant is a businessman with professional activities in GPE and throughout the NORP world . Since DATE the applicant entertained professional contacts with CARDINAL businessmen from GPE , GPE , named PERSON and PERSON In DATE ORG suspected the latter of having set up an extensive fraudulent scheme . According to the allegations brought out against them , DATE S. and PERSON pretended to own industrial drilling machines , which they sold to a number of leasing companies although these drilling machines did not exist and the damage remained with the leasing companies . These incidents , which became known as the “ PERSON - scandal ” , stirred a considerable amount of media attention and are regarded as a pre - eminent example of commercial delinquency in NORP history .

On DATE the criminal investigation judge ( Ermittlungsrichter ) at ORG ( ORG ) , in the investigation proceedings against PERSON CARDINAL alleged co - offenders , and upon ORG request , ordered the applicant ’s assets , amounting to MONEY ( ORG ) , to be frozen pursuant to sections ORG subsections CARDINAL and CARDINAL , CARDINALd , ORG subsection CARDINAL of LAW in conjunction with LAW subsection CARDINAL , second sentence , subsection CARDINAL , and section CARDINALa of LAW ( attachment in rem , dinglicher Arrest , see relevant domestic law below ) . That court found that , according to the preliminary investigations , a sum of DEM CARDINAL,CARDINAL,CARDINAL.CARDINAL deriving from the fraudulent sales had been transferred to the applicant ’s enterprise and from there to his personal property . There was the risk that the applicant would try to transfer the assets abroad in order to prevent the execution of claims brought out later by aggrieved third parties .

On DATE ORG , in a decision naming the applicant as a person charged with an offence ( PERSON ) , modified and extended the attachment of the applicant ’s assets to the amount of DEM CARDINAL,CARDINAL,CARDINAL.CARDINAL . Relying on statements given by PERSON and PERSON during the preliminary investigations , ORG found the suspicion to be confirmed that the applicant had knowingly received money derived from fraudulent transactions . Accordingly , there was the suspicion that the applicant had committed the offence of money - laundering . The money was subjected to the claims of aggrieved third parties according to the provisions of civil liability .

On DATE ORG ( Landgericht ) , on the applicant ’s complaint , upheld the attachment of DEM CARDINAL,CARDINAL,CARDINAL.CARDINAL and lifted the attachment of additional DEM CARDINAL,CARDINAL,CARDINAL.CARDINAL . That court confirmed that there was strong evidence given by the statements of PERSON and PERSON that the applicant had participated in the fraudulent actions . The measure taken was proportionate , moreover , it could be expected that he would try to deprive the aggrieved leasing companies of the assets .

On DATE ORG upheld its previous decision .

On DATE ORG rejected the applicant ’s request to be heard personally . According to that court , the applicant and his counsel had been well informed about all circumstances which raised suspicions against him . In her written submissions to that court , the applicant ’s counsel had tried to cast doubts on the credibility of the main offenders PERSON and PERSON She had laid out in detail the applicant ’s point of view regarding all circumstances of the cash flow and had tried to rebut the incriminating evidence . As the applicant ’s point of view had been clearly and unambiguously submitted in writing , the chamber saw no need to hear him orally .

With regard to the right to a fair hearing as guaranteed by LAW , ORG found as follows :

“ The attachment of assets pursuant to section CARDINALd , ORG subsection CARDINAL in conjunction with sections CARDINAL f. of LAW in order to safeguard third ORG claims is ordered by court decision . According to section CARDINAL subsection CARDINAL sentence CARDINAL of the Code of Criminal Procedure , the order to seize property in order to safeguard the claims of aggrieved parties is issued without hearing the person charged of the offence , as a prior hearing could enable him to transfer the property and thus to thwart the aim of the safeguarding measure . This practice has been approved of by ORG .... During the ensuing complaint proceedings ... the right to a fair hearing was fully taken account of . Pursuant to section CARDINAL subsection CARDINAL of LAW , the decision on the complaint is taken without an oral hearing . Accordingly , the decision is taken in written proceedings . ... It follows that the fair hearing has to be granted in written proceedings . For special reasons the court of complaint can decide to hear oral statements .

According to the chamber , these regulations do neither in general nor in this specific case run contrary to LAW . With the aid of his counsel Dr. PERSON , the defendant has made full use of the opportunity to submit his statements , which were fully taken into account , in the written proceedings . There were no obstacles which prevented him from using this form of communication to fully and objectively depict the incidents . Neither the alleged actions to the detriment of the leasing companies nor the alleged participation of the defendant were of such a nature that a personal and oral statement given by the defendant would have been more suited to provide a correct assessment of his actions than a written statement and would thus have been preferable for the chamber . The defendant ’s acts of participation did not have an ambiguous content ; they did not concern exceptional or borderline circumstances which would have necessitated the defendant ’s personal presence and hearing in order to assess them . Contrary to the defendant ’s counsel ’s opinion , it was not only necessary to weigh the statements given by the CARDINAL main suspects PERSON and PERSON against the defendant ’s own statements . On the contrary , it was necessary to weigh a number of other circumstances , which , taken on their own , justified the attachment order .... Accordingly , they were no “ special reasons ” justifying to hear the defendant personally . ”

On DATE ORG upheld the attachment of an amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL and lifted the attachment of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL . On the basis of the results of the preliminary investigations , ORG confirmed the existence of a strong suspicion that the applicant had aided the transfer and concealment of assets . It further confirmed that an oral hearing was neither legally prescribed nor necessary in order to safeguard the applicant ’s right to a fair hearing .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s complaint against the decision of ORG of DATE and – indirectly DATE against section CARDINALb of the Code of Criminal Procedure for adjudication for lack of prospect of success .

With respect to the right to a fair hearing , ORG found as follows :

“ The constitutionally guaranteed right to a fair hearing includes the right to information , the right to lodge requests and to submit statements , and the right that the courts take into account the submitted statements . According to the consistent case - law of ORG , LAW does not grant the right to be heard in a specific form , in particular , in an oral hearing . Accordingly , it is up to the legislator to decide to which extent he wishes to grant the right to an oral hearing in specific proceedings .

According to section CARDINAL subsection CARDINAL of LAW the decision on the complaint is taken without an oral hearing , that is to say in written proceedings . The complaint court is not prevented from orally hearing witnesses or experts in the course of their investigations pursuant to section CARDINAL subsection CARDINAL or to hear oral statements given by the parties to the proceedings . However , it has the discretion to decide whether it deems such measures necessary . There is no indication that it did not make correct use of this discretion , the more so , as the applicant has failed to establish what he would have stated differently in case of an oral hearing . ”

This decision was served on the applicant ’s counsel on CARDINAL DATE .

On DATE ORG issued an indictment against the applicant . The criminal proceedings against the applicant have been suspended on DATE in view of the applicant ’s inability to plead .

The order that the applicant ’s assets amounting to ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL be frozen remains in force .

Article CARDINAL subsection CARDINAL of LAW provides that in the courts , everyone is entitled to be heard in accordance with the law ( PERSON auf rechtliches PERSON ) .

According to section CARDINALb , subsection CARDINAL of LAW , the attachment of assets may be ordered if there are reasons for assuming that the conditions of forfeiture or for confiscation have been fulfilled . According to subsection DATE , this also applies if forfeiture may not be ordered because the assets are subject to claims brought out by the aggrieved party .

Section CARDINAL subsection CARDINAL , sentence CARDINAL of the Criminal Code provides that the court shall order the forfeiture of any object which has been acquired by a perpetrator or accessory as a result of an unlawful act . According to sentence CARDINAL , this shall not apply to the extent that the assets are subject to claims brought out by the aggrieved party .

If the forfeiture of a particular object is impossible due to the nature of what was acquired or for some other reasons , the court shall order the forfeiture of the sum of money which corresponds to the value of that which was acquired ( section CARDINALa of LAW ) .

Section CARDINAL subsections CARDINAL and CARDINAL of the Code of Criminal Procedure provide that the concerned person is not heard prior to the issue of an order of seizure or other measure , if this would endanger the purpose of such order . According to section CARDINAL subsection CARDINAL , the decision on the complaint shall be taken without an oral hearing . According to section CARDINAL subsection CARDINAL , the court of complaint may order investigations or conduct them itself .


Violation of Art. 6-1;No violation of Art. 6-1;No violation of P1-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE , a town in LOC .

The applicant is a retired serviceman . He enlisted in DATE , and at the material time he was a captain of ORG , occupying on a contractual basis the post of a deputy director of social and political education .

On DATE the NORP Town Court ordered the command to grant the applicant an early discharge because of the command 's failure to fulfil their obligations under the contract . On DATE this judgment became binding but was not enforced immediately , and the applicant resubmitted his claim .

On DATE ORG ordered the command to discharge the applicant for health reasons , to provide him with housing , and to pay MONEY ( RUB ) in damages . On DATE this judgment became binding in the part concerning the discharge and housing . The part concerning the damages was referred for a retrial .

On DATE ORG ordered the command to pay RUB CARDINAL,CARDINAL.CARDINAL in pecuniary and non - pecuniary damage . On DATE this judgment became binding .

On DATE the applicant received the flat .

On DATE the applicant was discharged from service .

On DATE the applicant submitted enforcement papers in respect of the damages , and on DATE he received the sum due .

At the material time judgments delivered against the public authorities were executed in accordance with a special procedure established , inter alia , by Government 's Decree No . CARDINAL of DATE and , subsequently , by Decree No . CARDINAL of DATE , entrusting execution to ORG ( see further details in PERSON and Others v. GPE , nos . QUANTITY , PERSON , CARDINAL and CARDINAL , § § CARDINAL - CARDINAL , DATE ) .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

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

On DATE , at TIME , the applicant went to dispose of rubbish in bins placed in an open parking area in front of the apartment building where she lived in PERSON when suddenly her neighbour , a certain PERSON , approached her , slapped her in the face and allegedly began to strangle her while threatening to kill her .

The applicant managed to escape and ran home . Once inside her flat , she telephoned the police and reported the incident . TIME QUANTITY police officers arrived at the applicant ’s flat and interviewed her . It appears that they also interviewed GPE The police officers instructed the applicant to see a doctor , which she did DATE .

The police lodged a complaint against ORG with ORG ( ORG ) and proceedings were instituted against ORG before that court . The applicant was not informed of these proceedings , nor called as a witness . On DATE the said court issued a minor offences order against ORG , under section CARDINAL of LAW . It found that GPE had committed a breach of the peace by attacking the applicant verbally and physically on DATE , an offence under LAW , and sentenced him to pay a fine in the amount of CARDINAL NORP kunas ( HRK ) and the costs of the proceedings in the amount of HRK CARDINAL . The relevant part of this order reads :

“ Defendant PERSON ...

is guilty

because on DATE at TIME in PERSON , ... in the parking area in front of a building , he committed a breach of the peace by verbally and then physically attacking PERSON and pushing her and hitting her in the face and neck , after which he went away ,

He committed a breach of the peace by shouting , uttering insults and fighting

and thus committed a minor offence under LAW of ORG ... “

The applicant was not informed of this decision .

On DATE the applicant lodged a criminal complaint against GPE with the ORG ( Općinsko državno odvjetništvo u ORG ) alleging that on DATE PERSON had approached her in a car park in front of the apartment building where she lived , had slapped her and begun to strangle her while threatening to kill her . The applicant enclosed the police report and medical documentation of DATE showing that she had visible finger marks on her throat and pain in that area , especially if touched or when swallowing .

In a letter of CARDINAL DATE the ORG Attorney ’s ORG informed the applicant that it had decided not to open an official investigation . It informed her that she nevertheless had the right to seek a decision in writing declaring her criminal complaint inadmissible . The applicant sought a decision in writing . Her request was complied with and the applicant ’s criminal complaint was declared inadmissible on the grounds that she had failed to comply with the DATE time limit under LAW since she had lodged her criminal complaint on DATE although she had learnt about the incident in question DATE , namely , on DATE .

The applicant then lodged a request for an investigation with a ORG investigating judge . She qualified the acts of violence at issue as criminal offences under LAW ( inflicting bodily injury ) , CARDINAL ( making threats ) , CARDINAL ) ( verbal insult ) , CARDINAL(CARDINAL ) ( vigilantism ) and CARDINAL ( violent behaviour ) of LAW . On DATE a CARDINAL - judge panel of ORG dismissed the request . The relevant part of that decision reads as follows :

“ After the Split State Attorney ’s ORG had declared the applicant ’s criminal complaint against ORG inadmissible in respect of the criminal offence under LAW , the injured party , PERSON , acting as subsidiary prosecutor , took the place of the prosecutor by lodging a request for an investigation ...

The investigating judge did not consent to the [ applicant ’s ] request . As regards the criminal offence of violent behaviour , he stated that ORG actions did not constitute the elements of that criminal offence . The prosecution in respect of all the other charges had become time - barred since the injured party had filed her criminal complaint outside the statutory time - limit .

The request of the injured party , acting as subsidiary prosecutor , is unfounded .

The investigating judge is right in his statement that ORG ’s actions did not satisfy the elements of the criminal offence of violent behaviour . The information in the case file shows that ORG attacked the applicant because he was irritated with her attitude towards his child . Since the crucial element of the offence of violent behaviour is an unmotivated attack , and [ the attack of GPE against the applicant ] was obviously motivated , there was no ground for granting the injured party ’s request in respect of the criminal offence of violent behaviour .

The other charges against ORG , which are to be the subject of a private prosecution , have become time - barred in view of the fact that the offence was committed on DATE and the injured party lodged her criminal complaint on DATE , that is to say , after the expiry of the DATE time - limit from DATE on which she learnt of the offence and of the identity of the perpetrator .

The time - limit for making an application for prosecution under LAW is DATE from the date on which the applicant learnt of the criminal offence and the identity of the perpetrator . The injured party failed to comply with that time - limit , however . Therefore , her request for an investigation against ORG for the criminal offences under ORG , CARDINAL ) , ORG ) and CARDINAL ) of LAW is unfounded .

An appeal by the applicant on DATE was declared inadmissible by ORG investigating judge on DATE as not provided for under domestic law .

An appeal by the applicant against the latter decision was dismissed by a CARDINAL - judge panel of ORG on DATE .

On DATE the applicant lodged a further appeal , which was declared inadmissible in a decision of the ORG investigating judge as not provided for under domestic law . An appeal by the applicant against that decision was dismissed by a CARDINAL - judge panel of ORG on DATE .

The applicant then lodged a constitutional complaint against the decision of ORG of DATE . On DATE ORG ( Ustavni sud PERSON ) declared it inadmissible , relying on section CARDINAL of LAW , on the ground that it did not concern the merits of the case but was lodged against a procedural decision of ORG of DATE and concerned the applicant ’s appeals which were inadmissible under domestic law .

The relevant part of section CARDINAL of LAW ( Official Gazette no . CARDINAL/CARDINAL , of CARDINAL DATE , PERSON o PERSON ) reads as follows :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , which has determined his or her rights and obligations , or a suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ...

The relevant parts of LAW ( PERSON , ORG no . CARDINAL/CARDINAL ) read as follows :

“ ( CARDINAL ) Criminal proceedings in respect of criminal offences shall be instituted by ORG in the interest of GPE and its citizens .

( CARDINAL ) The law may exceptionally make provision for criminal proceedings in respect of certain criminal offences to be instituted upon a private prosecution or for ORG to institute criminal proceedings upon [ a private ] application . ”

“ Whosoever inflicts bodily injury on another person or impairs another person ’s health shall be fined or sentenced to imprisonment for a term not exceeding DATE . ”

“ Criminal proceedings for the offence of inflicting bodily injury ( LAW ) shall be instituted by means of a private prosecution . ”

“ ( CARDINAL ) Whosoever threatens another person with harm in order to intimidate or frighten that person shall be fined CARDINAL DATE wages or sentenced to imprisonment for a term not exceeding DATE .

( CARDINAL ) Whosoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year .

( CARDINAL ) Criminal proceedings for the criminal offences defined in DATE and QUANTITY of this Article shall be instituted upon [ a private ] application . ”

“ Whosoever places another person in a degrading position for such purposes as violent abuse , ill - treatment or particularly insolent behaviour in public shall be sentenced to imprisonment for a term of DATE . ”

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide as follows :

“ ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...

( CARDINAL ) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the ORG Attorney and in respect of the criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor .

( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall bring a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .

( CARDINAL ) Where the ORG Attorney finds that there are no grounds on which to institute or conduct criminal proceedings , the injured party , acting as subsidiary prosecutor , may take his place under the conditions prescribed by this LAW . ”

Articles CARDINAL to CARDINAL regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor . The Criminal Code distinguishes between these CARDINAL roles . A private prosecutor ( privatni tužitelj ) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by LAW ( these are offences of a lesser degree ) . The injured party , as acting subsidiary prosecutor ( oštećeni kao tužitelj ) , takes over criminal proceedings in respect of criminal offences normally prosecuted by the ORG where the relevant prosecuting authorities have decided DATE for whatever reason – not to prosecute .

“ ( CARDINAL ) ... an application for prosecution or a request to prosecute shall be brought within DATE from the date on which [ the person concerned ] learnt of the criminal offence and the identity of the perpetrator .

“ ( CARDINAL ) A request to prosecute shall be lodged with the competent ORG Attorney ’s ORG and a private prosecution with the competent court .

( CARDINAL ) Where the injured party has lodged a criminal complaint ... it shall be considered that he or she has also thereby lodged a request to prosecute .

( CARDINAL ) Where the injured party has lodged a criminal complaint or a request to prosecute but the [ competent authorities ] establish that the criminal offence in question should be prosecuted by means of a private prosecution , the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time - limit prescribed for [ bringing ] a private prosecution ... ”

Pursuant to LAW , the ORG Attorney is under a duty to inform the injured party within DATE of a decision not to prosecute and of that party ’s right to take over the proceedings , and to inform that party of the steps to be taken .

“ ( CARDINAL ) ORG shall report criminal offences subject to public prosecution .

“ ( CARDINAL ) A [ criminal ] complaint shall be lodged with the competent ORG Attorney ’s [ ORG ] in writing or orally .

“ Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution , the competent ORG Attorney shall declare it inadmissible in a reasoned decision ... ”

Article CARDINAL , paragraph CARDINAL , allows a private prosecutor and the injured party , acting as subsidiary prosecutor , to lodge a request for prosecution and other submissions with an investigating judge of a competent court .

“ ( CARDINAL ) Subject to any contrary provision in this LAW , parties to the proceedings and any other person whose rights have been infringed may lodge an appeal against decisions of an investigating judge and other decisions adopted by the first - instance court .

( CARDINAL ) Subject to any contrary provision in this LAW , an appeal is not allowed against a decision of a panel adopted before or during the investigation .

( CARDINAL ) An appeal is never allowed against decisions of ORG . ”


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicants ( see attached table ) are NORP nationals . They are represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent PERSON , and their Co - Agent , PERSON .

The applicants are all graduates in medicine and surgery . They have been undergoing a specialisation course “ medici in formazione specialistica/ medici specializzandi ” , on a scholarship for DATE at ORG in GPE .

The details about the applicants’ registration dates and the length of their courses can be found in the attached table .

In accordance with section CARDINAL of legislative decree no . CARDINAL of CARDINAL DATE ( “ Law no . CARDINAL ” ) , they have been receiving remuneration of MONEY ( ORG ) per year for their academic work and practical work in hospitals . This amount remained the same throughout DATE of service until DATE , notwithstanding that originally the law provided for adjustment according to inflation and a tri - annual revision . The latter had to be in accordance with a yet - to - be - enacted law on budget allocation ( section CARDINAL of Law no . CARDINAL ) which was never enacted . Moreover , pay rises provided by the ordinary law had been blocked by the Government by means of various legal provisions . It was only through the “ legge finanziaria ” of DATE that these pay rises were provided for , but only to take effect from DATE . As a consequence the applicants , up to DATE , allegedly lost PERCENT of what their salaries would have been if adjusted .

During their service the applicants were not covered by an obligatory insurance and were not registered with ORG ( “ ORG ” ) , an NORP welfare entity , the latter notwithstanding that they claimed that their right to registration and cover by ORG had been provided for by Law no . CARDINAL and was to be managed by ORG . The provisions applicable to a contract of work - training ( formazione - lavoro ) ( see section DATE ( CARDINAL ) of PERSON no . CARDINAL ) were section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL of DATE as amended by LAW . CARDINAL of DATE and LAW no . CARDINAL , which expressly provided for the payment of contributions . Social security cover was also due to medici specializzandi as transpired from section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL ( see Relevant domestic law for legal texts ) .

According to section DATE of Law no . CARDINAL , such social security cover would enter into force upon the enactment of the apposite legal provisions on budget allocation . However , for DATE after the applicants took up their functions the relevant provisions were not enacted . Thus , they remained without social security cover for the entire period of service or DATE .

In DATE by means of the “ legge finanziaria ” , PERSON no . CARDINAL was amended , in that medici specializzandi were to be governed by contracts of specialist training “ di formazione specialistica ” and no longer contracts of work - training . This law expressly provided for the registration with the INPS of medici specializzandi , under the provisions applicable to all categories of self - employed . Section CARDINAL of PERSON no . CARDINAL was amended accordingly ( see Relevant domestic law ) . However , social security cover for the medici specializzandi was provided for only with effect from DATE . Thus , the applicants remained excluded from such benefits entirely or up to DATE , respectively .

On DATE the first CARDINAL applicants ( application no . CARDINAL ) and another CARDINAL individuals in their position instituted proceedings before ORG claiming that they had been denied social security cover and “ salary ” adjustments as a result of the failure to enact the law containing the relevant budgetary provisions . Such an omission was also contrary to ORG regulations on the matter .

By a judgment of DATE filed with the relevant registry on DATE their claims were rejected . ORG considered of relevance only the legislation in force at the time and not subsequent legislation . Distinguishing between medici in formazione specialistica and “ medico strutturato ” , it held that the relevant ORG directive ( Council Directive CARDINAL/CARDINAL/EEC of DATE to facilitate the free movement of doctors and the mutual recognition of their diplomas , certificates and other evidence of formal qualifications ) left issues related to medici in formazione specialistica in a lacuna , the directive concentrating on reciprocal recognition of qualifications , freedom of movement of the profession and the coordination between GPE of the exercise of the medical profession . In particular , it did not provide specific criteria in relation to the principle of “ appropriate remuneration ” . In consequence it could not be said that the ORG directive created a right in respect of specific salaries for medici in formazione specialistica . Neither was it possible to derive that right from sections DATE and CARDINAL of Law no . CARDINAL , which aimed to transpose the said directive into national law . The limited time during which these provisions were in force before they were suspended by the same measures also suspending sections CARDINAL and CARDINAL did not allow for the creation of a substantive and actionable right on the part of the applicants . The stipulation of a contract of “ DATE training ” could not allow medici specializzandi to acquire a right to remuneration adjustment and social security cover as provided in sections DATE and CARDINAL of the said law which was suspended by express statutory norms , until the enactment of budgetary provisions . Neither did it appear that in the short time ( a bit DATE ) before the latter suspension , the relevant decree “ ORG dei NORP ” ( PERSON ) , which would have defined the work - training contract ’s scheme , had been adopted . Without this there could not be any activation of the norm . It follows that in the absence of the ORG and relevant budgetary provisions , the failure of universities to stipulate “ work - training ” contracts could not give rise to any consequences , since LAW , CARDINAL and CARDINAL of the said law never became operational .

An appeal is still pending . However , the first , second and third applicants claim that in view of current jurisprudence ( see relevant domestic law ) it is unlikely that such proceedings will be successful . Similarly , all the remaining applicants have not undertaken any domestic proceedings for the same reasons .

In so far as relevant , the sections at issue read as follows :

Section CARDINAL

“ CARDINAL ) On registration at the universities specialising in medicine and surgery , a doctor enters into a specific DATE contract of work - training ( formazione - lavoro ) , as provided for by this decree and the norms in force in this respect , in so far as there may be lacunae and in so far as compatible with the provisions of the present decree . A contract becomes binding exclusively on the achievement of the professional competencies inherent for the title of specialist , by the carrying out of formal didactic and assisting activities relevant to the achievement of the competencies provided by the academic regulations of the relevant schools in accordance with ORG guidelines . This contract does not guarantee access to roles in ORG or the ORG or to any employment relations with such entities .

( CARDINAL ) The scheme type of the contract is defined by a decree “ ORG dei NORP ” ( “ PERSON ” ) [ ... ]

( CARDINAL ) The DATE contract is renewable DATE for a total of DATE equal to the duration of the specialisation course .

( CARDINAL ) In the event of early cancellation of a contract , the doctor has the right to receive the remuneration accumulated to the date of the cancellation and to benefit from the contributions relevant to the working period . ”

Section CARDINAL ( CARDINAL )

“ The remuneration is determined , DATE , according to the decree mentioned in LAW ) , in so far as may be permitted by the funds provided for by section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL of CARDINAL DATE ( re funds allocated for the implementation of ORG directives ) and the quotas of the national health fund intended for this purpose . ”

Section CARDINAL

“ ( CARDINAL ) The remuneration is subject to the provisions of LAW no . CARDINAL of CARDINAL DATE ( scholarships are exempt from income tax ) .

( CARDINAL ) For welfare purposes , the ORG contribution is PERCENT of the ordinary contribution for the health sector , which may be re - determined by ministerial decree [ ... ] , in accordance with the evolution of the welfare treatment of work - training contracts . ”

Section CARDINAL ( CARDINAL ) as amended by the “ legge finanziaria ” DATE

“ With effect from DATE , contracts of specialist training are to be governed by ... [ relevant provisions ] . ”

Section CARDINAL

“ ( CARDINAL ) Any financial burdens arising from Title V of the said decree are to be covered by the resources provided for in .... [ relevant law ] , the quotas of the national health fund due for the training of specialised doctors and any other resources made available by the apposite legislative provisions .

( CARDINAL ) Sections CARDINAL and CARDINAL will apply on the entry into force of the provisions mentioned in sub article CARDINAL ; till then sections CARDINAL of Law no . CARDINAL of CARDINAL DATE remains applicable . ”

Sub - section ( CARDINAL ) is a result of an amendment by LAW no . CARDINAL of DATE . In so far as relevant , section CARDINAL of Law no . CARDINAL of CARDINAL DATE , regarding scholarships , reads as follows :

“ ( CARDINAL ) Persons admitted to specialised schools as defined by the programme referred to in LAW ) in relation to full - time service , are entitled , for the entire duration of their course save any suspension periods , to a scholarship amounting to MONEY as determined for DATE . This amount is to be , as from DATE , DATE increased by the rate of inflation and must be re - determined DATE by ministerial decree , in accordance with the minimum established salary improvements provided for by collective bargaining in respect of the medical staff employed by ORG .

( CARDINAL ) The scholarship is to be paid by rate DATE , by the relevant specialised school as recognised in terms of section CARDINAL . In respect of persons who have not successfully passed their annual examination by DATE autumn session , the payment of the scholarship shall cease from DATE following their definite failure to succeed the examination .

( CARDINAL ) ORG and allocation of funds as established by LAW no . CARDINAL of CARDINAL DATE is to be provided for by ministerial decree on the basis of the decree referred to in LAW ) .

( CARDINAL ) ( Provision related to foreign students )

( CARDINAL ) Section CARDINAL ( CARDINAL ) of Law no . CARDINAL of CARDINAL DATE ( re funds allocated for the implementation of ORG directives ) shall apply . ”

However , the increments provided for by LAW no . CARDINAL of CARDINAL DATE were blocked by a series of legislative decrees and by - laws , dated DATE , DATE and DATE .

At the relevant time a work - training contract was governed by the provisions of section CARDINAL ( CARDINAL ) of legislative decree no . CARDINAL of DATE , as amended by PERSON no . CARDINAL of DATE , which read as follows :

“ For persons employed under a work - training contract , the ORG contribution is a fixed rate corresponding to that for apprentices according to PERSON no . CARDINAL of DATE and its successive amendments , bearing in mind the employees’ contribution as provided for the majority of employees . ”

The relevant amendment provided for a reduction in the welfare contributions vis - à - vis that of normal subordinate employees , equating it to that of apprentices .

In the judgment Commission v. GPE , case CARDINAL of DATE , ORG ( “ the ECJ ” ) held that GPE had failed to transpose the relevant directives in so far as it had failed to provide for “ appropriate remuneration ” of medici in formazione specialistica .

Subsequently , in DATE the relevant directives were transposed into NORP law , namely PERSON no . CARDINAL of DATE ( see above ) , which provided for the detailed conditions relevant to funding in the sector . Its section CARDINAL ( CARDINAL ) provided that adjustments should be integrated DATE .

According to section CARDINAL of Law no . CARDINAL of DATE ( see above ) the scholarship amounted to ORG DATE , it was to be annually increased by the inflation rate and re - determined triennially , by ministerial decree , in accordance with the minimum established salary increases provided by the collective bargaining of ORG medical staff . Subsequently , this was amended by PERSON no . CARDINAL of CARDINAL DATE , sections DATE ( see above ) . By Law no . CARDINAL of DATE ( “ legge finanziaria ” ) scholarship awards were raised and social security cover was introduced as from DATE .

Up to the enactment of the relevant budgetary provisions in accordance with PERSON no . CARDINAL , the law applicable in relation to budgetary adjustments was section CARDINAL of Law no . CARDINAL of CARDINAL DATE . However , by means of a series of legislative measures , the possibility of such pay rises had been blocked .

In this respect the Constitutional Court judgment of DATE PERSON studi PERSON – held that the legislative blocking of automatic adjustment of scholarships for medici specializzandi had been legitimate . The measures adapted the plaintiff ’s situation to a common principle present in the public and private sector , namely the counteraction of the increase in the cost of living by contractual flexibility . Thus , the exceptional exclusion of scholarships from adjustments according to the rate of inflation , for a limited period of time , was not unreasonable or discriminatory . It was part and parcel of a complex group of norms in the health sector aiming to impede , for the same period of time , all pay rises arising from automatic salary increments .

The Council Directive CARDINAL/CARDINAL/EEC of CARDINAL DATE to facilitate the free movement of doctors and the mutual recognition of their diplomas , certificates and other evidence of formal qualifications , in so far as relevant , reads as follows :

Article CARDINAL

Member GPE shall ensure that the training leading to a diploma , certificate or other evidence of formal qualifications in specialised medicine , meets the following requirements at least :

( a ) it shall entail the successful completion of CARDINAL years’ study within the framework of the training course referred to in DATE , ( ... )

( b ) it shall comprise theoretical and practical instruction ;

( c ) it shall be a full - time course supervised by the competent authorities or bodies pursuant to point CARDINAL of Annex I ;

( d ) it shall be in a university centre , in a teaching hospital or , where appropriate , in a health establishment approved for this purpose by the competent authorities or bodies ;

( e ) it shall involve the personal participation of the doctor training to be a specialist in the activity and in the responsibilities of the establishments concerned .

ORG I - Characteristics of the full - time and part - time training of specialists as referred to in ORG CARDINAL ) ( c ) and CARDINAL

Full - time training of specialists

Such training shall be carried out in specific posts recognized by the competent authority .

It shall involve participation in all the medical activities of the department where the training is carried out , including on - call duties , so that the trainee specialist devotes to this practical and theoretical training all his professional activity throughout the duration of DATE and throughout DATE according to provisions agreed by the competent authorities . Accordingly these posts shall be subject to appropriate remuneration .

Part - time training of specialists

( ... ) Appropriate remuneration shall consequently be attached to such part - time training .

In relation to the matter at issue in the present applications , ORG held that PERSON no . CARDINAL , in so far as it stipulated an DATE contract of training , was not operative at the relevant time , it having become so only in DATE by means of the legge finanziaria . The application of section CARDINAL of the said law had been suspended by means of section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL of DATE . The latter provision amended section CARDINAL of Law no . CARDINAL , establishing that its provisions will apply only on the entry into force of legislative budgetary measures ( which before DATE had not been introduced ) . Up to that future date , PERSON no . CARDINAL of DATE was applicable , which provided for the payment of a scholarship for medici specializzandi . It held that , as acknowledged by the ECJ , the relevant ORG Directive did not indicate a definition of appropriate remuneration , nor did it establish criteria for the calculation of such remuneration . Thus , there was no unconditional obligation on the ORG in this respect . Moreover , the said directive did not oblige member GPE to stipulate contracts of subordinate work with specialising doctors , as the same objective could be achieved by means of other forms of contract and the relevant remuneration through different methods . In consequence , national law was not in contradiction with the ORG directive .

The plaintiffs were covered by Law no . CARDINAL and as previously stated by ORG the functions undertaken by medici specializzandi did not constitute subordinate labour .

As to the adjustments of the scholarship award ( section CARDINAL of Law no . CARDINAL ) Law no . CARDINAL of DATE and successive laws blocked any adjustments . This matter had been examined by ORG of DATE – Bartolomei c. Univ . studi PERSON altri , which found it to be legitimate ( see above ) .

In relation to the same subject matter at issue in the present applications , ORG rejected the complaints on the basis that the ORG directive was generic as to what constituted appropriate remuneration . Moreover , such rights could not have arisen from domestic constitutional criteria , as the function at issue did not equate to subordinate labour , it being a different relationship connected to training .

In relation to the same subject matter at issue in the present applications , ORG rejected the claims of the medici specializzandi for adjustment of their remuneration for the period DATE .

In relation to the same subject matter at issue in the present applications , ORG found in favour of the plaintiffs in the applicants’ position . It noted that ORG judgment of DATE had held that the exceptional exclusion of scholarships from adjustments according to the rate of inflation was not unreasonable or discriminatory , only on the basis that it had been in place for a limited period of time . This was not so in the present case .


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

The applicant was born in DATE and lives in GPE .

In DATE the applicant became divorced .

On DATE his former wife filed with ORG ( Sąd Rejonowy ) a request for the partition of the property of the spouses . The request related to CARDINAL items and a shared flat in a housing co - operative building .

The Government submitted that DATE and DATE the court held CARDINAL hearings . The applicant stated that CARDINAL of the hearings referred to by the Government had never been held and CARDINAL others had been only in camera sittings .

NORP In DATE and DATE the court ordered CARDINAL expert opinions . According to the Government , on an unspecified date after DATE the case - file was lost .

In DATE the applicant lodged a further request for the partition of the property . He informed ORG that the place of residence of his former wife was unknown and it was impossible to bring her before the court . The applicant maintained that he had had difficulties in establishing her place of residence . The court appointed a guardian ad litem for her . On DATE it gave judgment .

The Government submitted that after the completion of those proceedings the applicant had formally reported his former wife 's departure to GPE .

NORP In DATE , after her return to GPE , the applicant 's former wife requested the re - opening of those proceedings , relying on the applicant 's misinformation as to the alleged lack of knowledge of her residence in GPE . On DATE ORG quashed the decision issued in those proceedings .

NORP In DATE the lost case - file was found . The court held hearings on DATE , DATE , DATE , DATE and DATE . The ORG submitted that the applicant had failed to attend the hearings of DATE , DATE and CARDINAL DATE . The applicant maintained that he had been present at the hearing on DATE and that his absence on DATE had been justified .

The court held a hearing on DATE .

On DATE the court ex officio made attempts aimed at converting the disputed flat into smaller ones . DATE and DATE it enquired with various authorities as to possible solutions to the dispute .

The hearing scheduled for DATE was adjourned because of the absence of the applicant 's lawyer . The applicant submitted that his lawyer had had an operation on his heart .

Further hearings were held on DATE , DATE and DATE . According to the applicant , the hearing of DATE was in fact an in camera sitting .

NORP The applicant requested the adjournment of the hearing scheduled for DATE .

Subsequent hearings were held on CARDINAL DATE and DATE , as well as on DATE and DATE .

On several occasions the applicant 's former wife failed to attend hearings or her lawyer failed to submit certain documents or pleadings . The court ordered expert opinions concerning the value of objects located in the flat of the applicant and his former wife , their cars and jewellery .

On DATE the applicant learnt that the case - file had been lost again . It was subsequently found .

The applicant failed to attend the hearing scheduled for DATE .

According to the Government , the hearing scheduled for DATE was adjourned at the applicant 's request . He submitted that no hearing had been scheduled for DATE .

The court held a hearing on DATE .

At the hearing held on DATE it ordered an expert opinion .

Hearings were held on DATE and DATE , as well as DATE .

On DATE the court gave judgment .


HEATHER MOOR & EDGECOMB LTD. v. THE UNITED KINGDOM

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant , PERSON and ORG ( ORG ) , is a company based in GPE . The application was lodged on its behalf by Mr PERSON , its managing director . The applicant was advised by Mr A. ORG , a barrister practising in GPE . ORG were represented by their Agent , Mr PERSON .

The facts of the case , as submitted by the parties and as presented in the judgment of ORG , may be summarised as follows .

ORG is a small family company founded in DATE . It provides independent financial advice , and is authorised and regulated by ORG . In DATE , the company was approached by L , a pilot with ORG who was soon to reach the company retirement DATE . He was covered by his employer ’s occupational pension scheme . There was a significant difference in age between L and his wife , with whom he had CARDINAL children . He intended to continue working as a pilot until DATE , and beyond that if possible . He sought PERSON ’s advice about his pension arrangements .

ORG arranged CARDINAL lengthy meetings with PERSON At the first of these , a company representative discussed CARDINAL alternatives in detail : remaining in the company scheme but deferring his pension until DATE ( viewed as the safer option ) , or leaving the scheme on retirement and using the funds to purchase a private pension plan . PERSON wrote to DATE recapitulating the points made at the meeting . It referred to the potential advantage of making alternative pension arrangements , assuming a fund growth rate of PERCENT per annum , which it described as “ very modest ” . PERSON considered it “ illogical ” not to take up the option in view of the transfer value offered by the company scheme , and emphasised that the projected return on the investment did not presume “ a very heavy fund performance ” . At the second meeting , which involved the same company representative , the option of transferring to a private plan was discussed at length , including the associated risks and possible choice of fund . ORG sent L a written note of the meeting shortly afterwards .

Having doubts , L then consulted another independent financial adviser , C. The balance of the latter ’s advice was against leaving the company scheme , on the ground that it offered a quite substantial benefit package and a good level of guaranteed income which was not dependent upon investment returns or annuity rates . C took the view that some of ORG ’s comments were in breach of the regulator ’s guidance . In particular , he considered that the assumption of PERCENT growth was “ anything but modest ” , and contrary to the lower investment growth assumptions that the regulator had recently introduced and had to be used by all advisers when projecting pension benefits . L provided a copy of this letter to ORG ’s representative , who nevertheless maintained his advice . L ultimately decided to accept the advice tendered by PERSON . He left his employer ’s scheme and invested with another fund .

The investment performed strongly in DATE , increasing by PERCENT , but by DATE the value of GPE pension fund had fallen by PERCENT . In DATE , PERSON wrote to PERSON , claiming compensation in the sum of GBP CARDINAL . ORG rejected his complaint , pointing out that L had made a free choice in full knowledge of the potential risks , and having considered contrary advice from another adviser . L filed a complaint with ORG ( ORG ) on DATE , alleging that ORG had given him inappropriate advice regarding his pension . He claimed that the relative security of his company ’s scheme compared to the high risk of the investment he had been advised to choose had not been adequately emphasised during his meetings with ORG . The figures used by ORG had been very optimistic and far above actual performance .

ORG forwarded the complaint to ORG and requested copies of the relevant documents and any evidence that the company wished to have taken into account . ORG initially asked that the complaint be dismissed without consideration of its merits . It subsequently provided the requested documents and submitted a detailed outline of its case , by letter of CARDINAL DATE .

The complaint was considered by an ORG adjudicator , who communicated his opinion on it in a letter to ORG dated DATE . He found that L should have been aware of the risks inherent in the investment he chose to make , in view of the second opinion he had obtained from C , and so the complaint should not be upheld in that respect . Pointing out the greater security offered by occupational pension schemes , he stated that the advantages and disadvantages of a transfer should have been explained and compelling reasons should have been given . He considered that the meeting notes that PERSON provided to L did not adequately caution him in this respect . While the risks may have been discussed during the meetings , the notes did not balance the advantages and disadvantages , nor did they show that all options had been duly considered . Further , the adjudicator took the view that the investment funds recommended to L entailed a higher risk than he was prepared to accept . He concluded that the transfer and investment funds recommended to L may have been unsuitable . He recommended that ORG carry out a loss assessment and , if this revealed a loss , to pay redress . PERSON was asked whether it was prepared to make such an offer to L.

PERSON disagreed with the adjudicator ’s opinion and gave a substantial response to it by letter dated DATE . It argued that since the amount involved greatly exceeded the maximum amount that ORG could order a firm to pay a complainant ( GBP CARDINAL ) , ORG should decline jurisdiction so that the complaint could be determined in court . If this was not accepted , PERSON requested an oral hearing to establish the facts of the complaint .

By letter dated DATE , the adjudicator rejected the request for a hearing on the ground that there were no contradictions in the documentary evidence . A hearing would not therefore be advantageous .

ORG maintained its request for a hearing , arguing that since the complaint concerned ORG ’s “ civil rights and obligations ” LAW applied . If its version of events was not accepted by L then a hearing , with cross - examination , would be necessary .

On DATE an ORG ombudsman wrote to PERSON in relation to its request for a hearing . He observed that LAW did not require a hearing at every stage of the determination of civil rights and obligations and that ORG would be able to seek judicial review of the decision . If the company ’s view was correct , then every complaint to the ORG would have to include a hearing . There did not appear to be any dispute over the facts in GPE ’s complaint . Even if there were , it did not follow that there should be cross - examination of witnesses at a hearing . With its inquisitional powers , ORG could use other means to establish the facts . Where hearings were held , they were informal and the procedure was set by the ORG . ORG was uncommon . The ORG also rejected the argument that ORG decline jurisdiction in view of the amount of money potentially involved , which , ORG said , would endanger its commercial viability .

A provisional decision on the complaint was issued by another FOS Ombudsman on DATE . Giving detailed reasons , he indicated that he intended to uphold the complaint , subject to any further evidence or comment received .

On DATE HME responded in detail to the provisional decision . It again sought a hearing to allow L to be cross - examined . It also submitted a witness statement from an experienced financial adviser , PERSON The latter stated that , in his opinion , there had been a “ respectable school of thought ” in DATE that an assumed growth rate of PERCENT was modest . He considered that “ some competent advisers ” would have recommended that L transfer his pension fund .

more clearly . Understating the increase in the deferred pension benefits made the option of remaining in the company scheme appear much less attractive than it was . Had LOC shown L the lower assumed growth rates , this might have caused the latter to express concern over the viability of the transfer . Having regard to the opinions received from the other financial advisers , ORG , the ORG placed greater weight on the former ’s view , as it was contemporaneous . He considered that a competent adviser would , in view of L ’s family situation , have established the value of the widow ’s benefit payable and would also have looked at the benefits payable on late retirement and compared these to the benefits available on transfer . He was therefore satisfied that good industry practice in DATE would have been to advise L against transfer . He agreed with the previous decisions that a hearing had not been necessary , observing that the ORG had an inquisitorial role , not an adversarial one . He directed PERSON to pay the maximum sum to L ( GBP CARDINAL ) and recommended that it also pay compensation for any loss in excess of that amount . L accepted that decision , which therefore became binding on ORG .

ORG sought judicial review of the decision . The claim was initially rejected on the papers on CARDINAL DATE . A renewed application involving an oral hearing in ORG was rejected on DATE . Permission to appeal was granted on DATE . Following a threeday hearing before ORG , the claim was dismissed on DATE . The main judgment was given by PERSON .

ORG first argued that ORG was required by the relevant statutory provision – section CARDINAL(CARDINAL ) of ORG ( see below ) – to determine complaints solely in accordance with the rules of LANGUAGE law . PERSON rejected this , finding that it was clear from the wording of the provision that ORG had not intended to limit the basis for ORG decisions in this way . Certain other provisions of the LAW reinforced this view , as did the general objective of the complaints scheme , which was to resolve disputes quickly and with minimum formality . Accordingly , ORG could reach a subjective opinion on the merits of a complaint ; if that opinion was perverse or irrational it could be set aside by judicial review .

PERSON claimed that LAW applied , since their civil rights had been determined by the ORG ’s decision . Moreover , since the decision deprived the company of its property , LAW No . CARDINAL was also engaged . A decision that was not entirely based on law would be contrary to both of these provisions . The scope for subjectivity in ORG decisions meant that they were unpredictable and arbitrary . Companies could not know how to regulate their behaviour so as to avoid complaints , or how to defend themselves where complaints were made against them .

PERSON observed :

“ CARDINAL . A statutory provision is only incompatible with a Convention right if and to the extent that it necessarily involves infringing that right . It is not suggested that the ombudsman is not an independent and impartial tribunal . The scheme does not preclude the ombudsman from hearing cases in public , or from pronouncing his decision in public : whether and to what extent he may decide not to do so I consider below . And so the only question is whether the ombudsman scheme satisfies the requirements of the Convention as to the law to be applied to a dispute and as to the fairness of the applicable procedure . ”

He then referred to the criteria of accessibility and precision set down in DATE ORG v. GPE ( no . CARDINAL ) , DATE , Series A no . CARDINAL , and continued :

“ DATE . Does the scheme established under LAW , interpreted in accordance with its natural meaning , comply with these requirements ? In my judgment , it can and does . The ORG is required by ORG CARDINAL.CARDINAL.CARDINAL to take into account the relevant law , regulations , ORG rules and guidance and standards , relevant codes of practice and , where appropriate , what he considers to have been good industry practice at the relevant time . He is free to depart from the relevant law , but if he does so he should say so in his decision and explain why . The other matters referred to in this rule are matters that a court would take into account in determining whether a professional financial adviser had been guilty of negligence or breach of his contract with his client . Again , if the ORG is to find an advisor liable to his client notwithstanding his compliance with all those matters , the ORG would have to so state in his decision and explain why , in such circumstances , assuming it to be possible , he came to the conclusion that it was fair and reasonable to hold the adviser liable . In these circumstances , I consider that the rules applied by the ORG are sufficiently predictable . All the matters listed in ORG CARDINAL.CARDINAL.CARDINAL are formulated or ascertainable with sufficient precision . So far as guiding the conduct of financial advisers are concerned , provided that they comply with “ the relevant law , regulations , ORG rules and guidance and standards , relevant codes of practice and , where appropriate , ... good industry practice ” , they can be assured that they will not be liable to their client in the absence of some exceptional factor requiring a different decision . Lastly , the common law requires consistency : that like cases are treated alike . Arbitrariness on the part of the ORG , including an unreasoned and unjustified failure to treat like cases alike , would be a ground for judicial review . ”

He rejected the argument that firms were unable to know the principles on which ORG would decide complaints . The procedure followed meant that the ORG ’s provisional assessment was copied to the parties , who could indicate their disagreement with it and make further representations . Since that had been done in the present case , there was no unfairness .

ORG argued that the ORG should have accepted the request for an oral hearing . PERSON considered that if the determination of the complaint involved the resolution of a dispute as to what had been said at the meetings , or if it could be sensibly argued that L would have taken the same course of action even if he had been advised differently , then the case for an oral hearing might have been substantial . However , the existence of contemporaneous records would normally make a hearing unnecessary . He stated :

“ CARDINAL . ... I have been unable to identify any issue as to ORG ’s advice to [ L ] that arguably required an oral hearing in order fairly to determine his complaint . Perhaps more importantly , [ ORG ’s counsel ] did not identify any such evidence . The advice given in meetings was the subject of PERSON extensive notes , and was confirmed in correspondence . PERSON did not suggest that PERSON notes were inaccurate . In any event , given the length of time between the meetings and [ L ’s ] complaint , any such contention would have been highly unlikely to succeed . PERSON did not suggest that PERSON had contradicted or modified orally the advice he had previously given in writing . In any event , the ORG , sensibly in my view , considered that the written report provided by ORG to [ L ] carried greater weight than information provided orally .

In relation to the issue of reliance , I think it obvious that if [ L ] had received the advice that the ORG held he should have received , it is inconceivable that he would have removed his pension fund from the ORG scheme . It would have been pointless to ask him whether he would have acted differently if differently advised : he undoubtedly would have answered affirmatively . ”

He considered the ORG ’s judgment in PERSON v. GPE ( [ ORG ] , no . MONEY , ECHR CARDINALXIII and found a number of similarities with the facts of the present case : the purpose of the oral hearing was crossexamination , which was reasonably found to be unnecessary ; the demands of efficiency and economy referred to in PERSON resembled the objective of the complaints scheme in the present case . There was therefore no unfairness about the ORG ’s decision not to hold a hearing . There had in any event been a public hearing before ORG in the context of the judicial review proceedings , and this was available to any complainant or respondent who considered that the ORG had made an unlawful decision .

The complaint that the ORG ’s decision had not been pronounced publicly was rejected for the same reason . The decision would be made public with the publication of ORG judgment , which achieved the purpose of ensuring public scrutiny of ORG decisions , as required by LAW .

Lord Justice PERSON agreed with the judgment of PERSON . He added some further observations on the rule of law and publicity . Regarding the latter , he said :

“ CARDINAL . Finally , I would like to say something about the matter of the ORG " register " . This has been the subject of written submissions , but has not figured in oral argument , no doubt because the parties appreciated that it would not affect the outcome of this appeal . Nevertheless , it remains the case that LAW , at para CARDINAL , in providing for the enforcement of an ORG ’s money award in the county courts of GPE and GPE and by similar means in GPE and GPE speaks of such an award " which has been registered in accordance with scheme rules " . Thus it is a statutory requirement that the scheme rules provide for the registration of money awards . Accordingly , ORG CARDINAL R requires the ORG to keep a register : " The ORG must maintain a register of each money award and direction made . " In referring to directions , the scheme rules go beyond the statute . ORG seeks to comply with its rule by keeping an internal data base . It is not available to public inspection . I have my doubts as to whether such an internal data base amounts to a " register " properly so called . A register is an official list or record . It may be that it can be kept in any form , but I suspect that it needs to be open to public inspection . Since we have not heard oral argument on this matter , I merely refer to this point in passing . ”

Permission to appeal to ORG was refused on DATE .

The applicable primary legislation is ORG , DATE . LAW ) of the LAW reads :

“ This Part provides for a scheme under which certain disputes may be resolved quickly and with minimum formality by an independent person . ”

Section CARDINAL(CARDINAL ) provides :

“ A complaint is to be determined by reference to what is , in the opinion of the Ombudsman ”

Section CARDINAL refers to the awards that an ORG may make . These can not exceed the monetary limit , which is set at GBP CARDINAL . Where the assessed loss is higher than this , the ORG may recommend that the respondent pay the excess , but this is not binding on the firm .

Schedule CARDINAL to the LAW provides for the making of rules for the complaints procedure . These are referred to as ORG . The relevant ORG provisions that were in force at the time read as follows :

“ DISP CARDINAL R

’ rules and guidance and standards , relevant codes of practice and , where appropriate , what he considers to have been good industry practice at the relevant time .

DISP CARDINAL.CARDINAL.CARDINAL R The parties will be informed of their right to make representations before the ORG makes a determination . If he considers that the complaint can be fairly determined without convening a hearing , he will determine the complaint . If not , he will invite the parties to attend a hearing . No hearing will be held after the ORG has determined the complaint .

DISP CARDINAL R A party who wishes to request a hearing must do so in writing , setting out the issues he wishes to raise and ( if appropriate ) any reasons why he considers the hearing should be in private , so that the ORG may consider whether the issues are material , whether a hearing should take place and , if so , whether it should be held in public or private .

ORG CARDINAL.CARDINAL.CARDINAL G In deciding if there should be a hearing and , if so , whether it should be in public or private , the ORG will have regard to the provisions of LAW .

ORG CARDINAL.CARDINAL.CARDINAL R

( CARDINAL ) In dealing with any information received in relation to the consideration or investigation of a complaint , ORG must have regard to the parties’ rights of privacy .

( CARDINAL ) Paragraph ( CARDINAL ) does not prevent the ORG disclosing information ( either in full , or where he considers it necessary or appropriate under ORG CARDINAL.CARDINAL.CARDINALR ( CARDINAL ) , in the form of an edited version or ( where this is not practicable ) a summary or description ) :

( a ) to the extent that he is required or authorised to do so by law ; or

( b ) to the parties to the complaint ; or

( c ) in his determination ; or

( d ) at a hearing in connection with the complaint . ”


Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

ORG Mr PERSON was born in DATE and is currently resident in GPE , GPE .

On DATE , the applicant - then aged CARDINAL - was convicted at ORG of the murder of a DATE woman . He had broken into her home , strangled her , cut her throat and had sexual intercourse with her at around the time of her death . Mr PERSON received a mandatory sentence of detention " during Her Majesty ’s pleasure " pursuant to section CARDINAL ( CARDINAL ) of ORG as amended ) ( see paragraph CARDINAL below ) . Its effect was to render the applicant " liable to be detained in such a place and under such conditions as the Secretary of ORG [ for ORG ] may direct " .

In DATE , having served the punitive part of his sentence ( " tariff " - see paragraph CARDINAL below ) , PERSON was released on licence .

On DATE the applicant was arrested and interviewed at Southmead police station , GPE , in connection with a number of alleged offences involving deception , and CARDINAL of using threatening behaviour . He denied the allegations .

On DATE ORG considered Mr PERSON ’s case , and on DATE his life licence was revoked by the Secretary of ORG on its recommendation . On DATE the applicant received a formal notice of the reasons for this decision , which he was entitled to by virtue of section CARDINAL ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . It informed him that the Secretary of ORG had revoked his licence in the light of :

" ( i ) Reports indicating that you had lied to and misledyour supervising officers and avoided telling them of avariety of significant events following your release onlicence .

( ii ) Your arrest and subsequent appearances ORG on several criminal charges includingfraud and using threatening behaviour , set against thecircumstances surrounding the offence for which you weregiven a life sentence in DATE , make it impossible for theSecretary of ORG to be satisfied that your continuedpresence in the community did not constitute a risk tothe public . "

ORG On DATE , having complained to ORG about its recommendation , PERSON received a more detailed explanation of his recall in a letter from the chief probation officer . The reason given for his recall was not the alleged offences ( which were a matter for the court ) , but rather his failure to provide accurate information about his circumstances to his supervising probation officer . The letter cited specifically his failure to inform her about the purchase of a motor vehicle ; getting a job and giving false information to his employers about his age and character ; having a relationship and not telling his girlfriend all about his background ; and falling into arrears with his rent .

Mr PERSON denied the accuracy of most of these allegations , and asked ORG to review the merits of the revocation of his licence . Under section CARDINAL ( CARDINAL ) of LAW DATE ( now section CARDINAL ( CARDINAL ) of LAW DATE - see paragraph CARDINAL below ) , ORG was empowered at this stage to take a binding decision for Mr PERSON ’s immediate release .

ORG considered the applicant ’s case on DATE and DATE . It had before it a number of reports from the probation service and the police , none of which was disclosed to the applicant . On DATE the ORG decided against recommending PERSON immediate release . He was not told the reasons for this decision .

ORG On DATE the criminal charges against Mr PERSON ( see paragraph CARDINAL above ) were dismissed because the prosecution had presented the indictment out of time . Mr PERSON asked for his case to be reconsidered in the light of this development , and the Secretary of ORG accordingly referred it back to ORG , under the procedure set out in section CARDINAL ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . On DATE the ORG again declined to recommend PERSON release .

ORG The applicant then sought judicial review ( see paragraph CARDINAL below ) of the CARDINAL decisions of ORG of DATE and DATE . On DATE the ORG quashed ORG decision of DATE on the ground that there had been a breach of natural justice because of the ORG ’s failure to disclose to Mr PERSON all the reports before it . The court held that the applicant was entitled to a fresh consideration by ORG under the terms of section CARDINAL ( CARDINAL ) of LAW DATE , at which ORG would be empowered to order ( not merely to recommend ) his release ( see paragraph CARDINAL below ) . Lord Justice PERSON found , inter alia , that :

" [ Mr PERSON ’s ] status is that of a person whose continueddetention can only be justified if the test ofdangerousness , meaning an unacceptable risk of physicaldanger to the life or limb of the public , is GPE v. Secretary of ORG for ORG , exparte PERSON , unreported , transcript pp . DATE ) He further commented that the disclosed facts " scarcely seem able to support a positive answer to [ this question ] " .

ORG As a result of ORG decision , PERSON received a complete file of the documents which were before ORG . This included a number of detailed probation reports alleging deception of his supervising officers by PERSON , and also CARDINAL pages of witness statements obtained by the police in connection with the criminal charges which had been dismissed ( see paragraphs TIME and CARDINAL above ) .

ORG With the help of his solicitor , PERSON made written representations to ORG . He denied the allegations contained in the letter from the chief probation officer that he had deceived his supervising probation officer ( see paragraph CARDINAL above ) and supported his case with witness statements from his girlfriend and landlady .

ORG On DATE ORG considered Mr PERSON ’s case . He was not permitted to be present at the review and had no opportunity to give oral evidence or to question those who had made allegations against him . ORG decided not to recommend release , and gave the following reasons :

" The ORG accepted that PERSON representationsanswered some matters which were of concern to hisprobation officer . However , there was a lack of opennessin his dealings with ORG . The Panelalso considered that the conduct which led to thecriminal charges indicated a serious kind ofdeceptiveness . His behaviour under supervision led thePanel to conclude that the nature of his personality andbehaviour had not changed significantly since theoriginal offence at DATE . His failure to complywith the discipline of licence supervision , bearing inmind the original offence , gives rise to considerableconcern . "

Mr PERSON applied for judicial review of this decision , but he withdrew his application on or about DATE because he had been offered an early review of his case by ORG .

ORG In DATE ORG reconsidered PERSON case in accordance with section CARDINAL ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . PERSON entered detailed representations and the file before the ORG was disclosed to him ; it contained recent reports from probation officers , from a psychologist working with PERSON and from ORG ( see paragraph CARDINAL below ) . All the reports which made a specific recommendation were in favour of the applicant ’s release as soon as possible via a pre - release hostel .

ORG As the applicant was informed on DATE the ORG unanimously recommended his release subject to DATE in a pre - release employment scheme . The reasons given were as follows :

" On the evidence presented to [ the panel ] , theyconsidered PERSON no longer constituted a danger tolife or limb of committing further life threateningoffences to justify his continued detention since hisrecall in DATE . "

ORG The applicant was also informed on DATE that the Secretary of ORG was " not prepared to accept this recommendation and [ did not agree ] to [ the applicant ’s ] release " . The Secretary of ORG so decided in exercise of his statutory powers ( see paragraph CARDINAL below ) .

ORG By a communication of CARDINAL DATE the applicant was given the reasons for the Secretary of ORG ’s decision . These were that PERSON had misled the probation service after his release in DATE and had appeared before the magistrates on several criminal charges , although these had subsequently been dismissed on technical grounds . Thus , he had been recalled to prison " following serious breaches of the trust placed in [ him ] as a life licensee " . The Secretary of ORG was unable to assess accurately whether he was still a threat to the public , because he had spent the DATE since his recall in a closed prison . He considered that Mr PERSON ’s relationship with the probation service needed to be tested in the " more challenging environment of an open prison " . For these reasons , he believed that Mr PERSON should be transferred to an open prison for further testing . His next formal review by ORG would begin in DATE .

Mr PERSON applied for judicial review of the Secretary of ORG ’s decision . On DATE the ORG quashed the Secretary of ORG ’s decision and ordered him to reconsider it . The court found , inter alia , that the correct test to be applied was whether PERSON constituted a danger to the " life or limb " of the public , and that the reasoning process of the Secretary of ORG had been flawed because he had not properly explained how the findings he had made related to the test of dangerousness ( NORP v. Secretary of ORG for ORG , ex parte PERSON ( no . CARDINAL ) , unreported ) .

ORG In DATE Mr PERSON joined a pre - release employment scheme . His provisional date for release is DATE .

ORG A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder . LANGUAGE law imposes a mandatory sentence for the offence of murder : " detention during Her Majesty ’s pleasure " if the offender is under the age of CARDINAL ( section CARDINAL ( CARDINAL ) of ORG as amended ) - see paragraph CARDINAL below ) ; " custody for life " if the offender is DATE ( LAW CARDINAL ( CARDINAL ) of LAW DATE ) ; and " life imprisonment " for an offender aged CARDINAL or over ( section CARDINAL ( CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) . Mandatory life sentences are fixed by law in contrast to discretionary life sentences , which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( for example manslaughter , rape , robbery ) .

The principles underlying the passing of a discretionary life sentence are :

( i ) that the offence is grave and

( ii ) that there are exceptional circumstances whichdemonstrate that the offender is a danger to the publicand that it is not possible to say when that danger willsubside . Discretionary life sentences are indeterminate so that

" the prisoner ’s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large " ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL , CARDINAL ) .

ORG The notion of detention during Her Majesty ’s pleasure has its origins in statutory form in LAW for " the safe custody of insane persons charged with offences " ( Criminal Lunatics Act ) , which provided that defendants acquitted of a charge of murder , treason or felony on the grounds of insanity at the time of the offence were to be detained in " strict custody until His Majesty ’s pleasure shall be known " and described their custody as being " during His [ Majesty ’s ] pleasure " .

ORG In DATE , detention during His ORG pleasure was introduced in respect of offenders aged DATE . It was extended to cover those under DATE at the time of conviction ( DATE ) and further extended to cover persons under DATE at the time when the offence was committed ( DATE ) .

ORG The provision in force at present is LAW ( CARDINAL ) of ORG as amended ) ( " LAW " ) which provides :

" A person convicted of an offence who appears to thecourt to have been under DATE at thetime the offence was committed shall not , if he isconvicted of murder , be sentenced to imprisonment forlife , nor shall sentence of death be pronounced on orrecorded against any such person ; but in lieu thereof thecourt shall ... sentence him to be detained during ORG ’s pleasure and , if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of ORG may direct . "

ORG In the case of NORP v. Secretary of ORG for ORG , ex parte PERSON ( DATE , cited above at paragraph CARDINAL ) Lord Justice PERSON in ORG held as follows in respect of detention " during Her ORG ’s pleasure " :

" At the time of sentencing , the detention orders under LAW were mandatory . It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder . But the sentence itself is closer in substance to the discretionary sentence of which part is punitive ( retribution and deterrence ) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied . The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period : see NORP v. Secretary of ORG . p. Doody & Others [ DATE ] Q.B. CARDINAL and GPE v. GPE ( DATE ) . The order for detention under LAW is by its terms both discretionary and indeterminate : it provides for detention ‘ during Her Majesty ’s pleasure’ I would decide the present case on the narrow ground that , notwithstanding ORG practice , the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether ORG rather than ORG governs his case . "

( transcript , pp . PERSON )

The court accordingly held that the applicant should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before ORG when it decided whether he should be released after his recall to prison on revocation of his licence . ORG has changed its policy accordingly .

ORG However , in a statement in ORG made on DATE ( see paragraph CARDINAL below ) , the Secretary of ORG , Mr PERSON , explained that he included in the category of " mandatory life sentence prisoners " those

" persons who are , or will be , detained during ORG ’s pleasure under LAW ( CARDINAL ) of ORG ... "

ORG In NORP v. Secretary of ORG for ORG , ex parte T. and Others [ DATE ] ORG Bench CARDINAL , CARDINAL , Lord Justice PERSON in ORG ( with whom Mr Justice PERSON agreed ) said :

" I see no reason to regard him as having any specialstatus because he was sentenced to detention [ during ORG ’s pleasure ] rather than to life imprisonment , despite what was said by ORG when giving judgment inReg . v. ORG , ex parte PERSON ( ORG DATE , unreported ) . The issues in that casewere very different from those with which we areconcerned . If PERSON had not been sent to hospital hecould hope to benefit from the provisions ofsection CARDINAL ( CARDINAL ) of the DATE Act [ on mandatory lifeprisoners ] ... It will be recalled that in ORG ’s casethe offence was murder , so the sentence was mandatory notdiscretionary . "

On appeal ORG stated that in respect of a person sentenced to detention during Her ORG ’s pleasure under LAW ( CARDINAL ) of LAW for the offence of murder , the relevant provisions on release were those in LAW ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , and not those relating to a discretionary life prisoner ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL , CARDINAL ) .

ORG Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty ’s pleasure have a " tariff " set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular following the coming into force on DATE of LAW DATE ( " the CARDINAL LAW ) .

ORG Section CARDINAL ( CARDINAL ) of LAW DATE ( " LAW " ) provided , inter alia , that the Secretary of ORG , on the recommendation of ORG and after consultation with the Lord Chief Justice and the trial judge , may " release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section CARDINAL of ORG . In this respect no difference was made between discretionary and mandatory life prisoners .

ORG By virtue of LAW ( CARDINAL ) of the DATE Act , persons detained during Her Majesty ’s pleasure and those life prisoners who are not discretionary life prisoners ( see paragraph CARDINAL above ) , may be released on licence by the Secretary of ORG , if recommended to do so by ORG and after consultation with the Lord Chief Justice and the trial judge . The decision on whether to release still lies , therefore , with the Secretary of ORG .

ORG The Secretary of ORG also decides the length of a prisoner ’s tariff . Subsequently to a ORG judgment of DATE ( NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL Appeal Cases CARDINAL , CARDINAL G ) , 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 . Where the Secretary of ORG decides to depart from the judicial recommendation he is obliged to give reasons . As a matter of practice the prisoner is informed of the Secretary of ORG ’s final decision . In the second , post - punitive phase of detention the prisoner knows that " the penal consequence of his crime has been exhausted " ( ibid . , CARDINAL ) .

ORG A statement of policy issued by Sir PERSON , then Secretary of ORG for ORG , on CARDINAL DATE indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public .

ORG On DATE , the Secretary of ORG , Mr PERSON , made a statement of policy in relation to mandatory life prisoners , stating , inter alia , that before any such prisoner is released on licence he

" will consider not only , ( a ) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and , ( b ) whether it is safe torelease the prisoner , but also ( c ) the publicacceptability of early release . This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice " .

ORG In a number of recent court cases involving persons detained during Her Majesty ’s pleasure , it has been stated that the correct test for post - tariff detention was to be whether the offender continued to constitute a danger to the public ( NORP v. Secretary of ORG for ORG , ex parte PERSON , DATE ; NORP v. Secretary of ORG for ORG , ex parte PERSON , DATE - cited above at paragraph CARDINAL ; NORP v. Secretary of ORG for ORG , ex parte PERSON ( no . CARDINAL ) , DATE ) .

ORG The DATE Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of ORG in the case of GPE , PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .

ORG Pursuant to section CARDINAL of the CARDINAL Act , the tariff of a discretionary life prisoner is now fixed in open court by the trial judge after conviction . After the tariff has expired , the prisoner may require the Secretary of ORG to refer his case to ORG which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined .

Pursuant to ORG DATE which came into force on DATE , a prisoner is entitled to an oral hearing , to disclosure of all evidence before the panel ( see paragraph CARDINAL below ) and to legal representation . There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross - examine those who have written reports about him .

ORG For the purposes of the DATE Act , persons detained during Her Majesty ’s pleasure are not regarded as discretionary life prisoners ( section CARDINAL ( CARDINAL ) ) .

ORG Recall to prison of a person released on licence was governed by section CARDINAL of LAW which reads :

" ( CARDINAL ) Where ORG recommends the recall of anyperson who is subject to a licence under section CARDINAL or CARDINALof this Act , the Secretary of ORG may revoke thatperson ’s licence and recall him to prison .

( CARDINAL ) The Secretary of ORG may revoke the licence of anysuch person and recall him as aforesaid withoutconsulting the ORG , where it appears to him that it isexpedient in the public interest to recall that personbefore such consultation is practicable .

( CARDINAL ) A person recalled to prison under the foregoingprovisions of this section may make representations ...

( CARDINAL ) The Secretary of ORG shall refer to the ORG thecase of a person recalled under subsection ( CARDINAL ) of thissection who makes representations under the lastforegoing subsection and shall in any event so refer thecase of a person returned to prison after being recalledunder subsection ( CARDINAL ) of this section .

( CARDINAL ) Where the ORG recommends the immediate release onlicence of a person whose case is referred to it underthis section , the Secretary of ORG shall give effect tothe recommendation ... "

ORG Section CARDINAL of the DATE Act has added that a person recalled to prison shall be informed of the reasons for his recall and of his right to make representations in writing .

ORG LAW of LAW set out the constitution and functions of ORG :

" ( CARDINAL ) For the purposes of exercising the functionconferred on it by this Part of this LAW and GPE there shall be a body known as ORG ... consisting of a chairman and not lessthan CARDINAL other members appointed by the Secretary ofState .

( CARDINAL ) The following provisions shall have effect withrespect to the proceedings of ORG on any casereferred to it , that is to say

( a ) the ORG shall deal with the case on ORG consideration of any documents given to it by the ORG Secretary of ORG and of any reports it has called ORG for and any information whether oral or in writing that it has obtained ; and

( b ) if in any particular case ORG thinks it ORG is necessary to interview the persons to whom the PERSON case relates before reaching a decision , the Board may request CARDINAL of its members to interview him and ORG shall take into account the report of that ORG interview by that member ...

( CARDINAL ) The documents to be given by the Secretary of ORG under the last foregoing subsection shallinclude

( a ) where the case referred to the ORG is CARDINAL of ORG release under LAW , any ORG written representations made by the person to whom ORG the case relates in connection with or since his last interview in accordance with rules under the next following subsection ;

( b ) where the case so referred relates to a person recalled under LAW of this LAW , any written representations made under that section . "

As to the constitution of ORG , Schedule DATE CARDINAL Act further provides :

" CARDINAL . ORG shall include among its members

( a ) a person who holds or has held judicial office ;

( b ) a registered medical practitioner who is a ORG psychiatrist ;

( c ) a person appearing to the Secretary of ORG to have knowledge and experience of the supervision or after care of discharged prisoners ;

( d ) a person appearing to the Secretary of ORG to have made a study of the causes of delinquency or the treatment of offenders . "

ORG always counts among its members CARDINAL ORG judges , CARDINAL circuit judges and a recorder . Cases referred to the ORG may be dealt with by CARDINAL or more members of ORG ) . In practice , ORG sits in small panels , including , in the case of life prisoners , a ORG judge and a psychiatrist . The judges on ORG are appointed by the ORG Secretary ( section CARDINAL ( CARDINAL ) of LAW ) after consultation with the Lord Chief Justice .

With the exception of the new rules concerning discretionary life prisoners , similar provisions apply under LAW .

ORG Under LAW ( CARDINAL ) of LAW the Secretary of ORG established for every prison a ORG with the function of advising him on the suitability for release on licence of prisoners . It was the practice to obtain this assessment before referring a case to ORG . Before ORG reviewed a case , a member of the committee would interview the prisoner if he was willing to be interviewed .

The first review by ORG was normally fixed to take place DATE before the expiry of the tariff . ORG were abolished by ORG DATE . The prisoner is now interviewed by a member of ORG .

ORG Persons serving a sentence of detention during Her Majesty ’s pleasure may institute proceedings in ORG to obtain judicial review of any decision of ORG or of the Secretary of ORG if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality , irrationality or procedural impropriety ( ORG Unions v. Minister for ORG , [ DATE ] CARDINAL All England Law Reports CARDINAL , CARDINAL - CARDINAL ) .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in LOC .

An inheritance action was filed against the applicant on DATE . On DATE the Cegléd ORG found for the plaintiffs . This decision was quashed by ORG DATE . ORG gave a new judgment on DATE . On CARDINAL DATE ORG decided on the parties ' appeals . This decision was served on DATE .


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

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

On DATE the applicant was arrested by the police in connection with allegations that she was involved in financially assisting a terrorist organisation . The allegation was that the applicant 's bank account had been used as a means of retaining the proceeds of a robbery carried out by other people in order to finance terrorism .

On DATE the police made an ex parte application under LAW ) LAW ( “ the DATE LAW ) for a financial investigator to assist their investigation . ORG authorised the appointment of an investigator known under a pseudonym to exercise the powers under the DATE Order .

On DATE , the financial investigator issued a requirement that the applicant attend an interview on DATE . The applicant attended the interview with her solicitor but failed to answer all the questions put to her . The applicant was released without charge . As a result of the applicant 's failure to answer all questions a summons was issued in accordance with paragraph CARDINAL ) of Schedule CARDINAL of the DATE order .

On DATE , the applicant was convicted at ORG of an offence contrary to paragraph CARDINAL ) . The applicant was fined MONEY ( GBP ) . The applicant unsuccessfully appealed against her conviction and the appeal judge substituted a term of DATE imprisonment suspended for DATE .

On DATE , the investigator issued a second requirement under the DATE Order obliging the applicant to attend another interview at a different police station . The applicant attended the police station on DATE but refused to be interviewed or answer any questions because of her then pending judicial review application .

On DATE the applicant 's application to set aside the permission obtained by police on DATE was dismissed . The applicant then lodged CARDINAL sets of judicial review proceedings challenging the initial order obtained by the police , her conviction , the judge 's decision dismissing the applicant 's appeal against the granting of the order , and the investigator 's request that she attend a second interview .

The applicant 's application for judicial review was dismissed in a written judgment on DATE by ORG , which held inter alia that there was no prima facie evidence that the investigator had abused his statutory powers and that the decision to appoint an investigator acting under a pseudonym had been taken after a conscientious balancing exercise of the conflicting interests .

The applicant 's appeal to ORG was heard on DATE and was dismissed in an ex tempore judgment . Leave to appeal to ORG was refused by ORG on DATE . On DATE , the applicant lodged a petition out of time with ORG which refused permission to appeal on DATE .

The Proceeds of Crime ( Northern Ireland ) Order DATE inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct .

Pursuant to paragraph CARDINAL ) of Schedule CARDINAL , it was an offence for a person to fail , without reasonable excuse , to attend to answer questions by a ORG appointed under the Order . Paragraph CARDINAL restricted the use that could be made of the statements made to CARDINAL situations : CARDINAL related to the questioning itself , namely prosecution for perjury or an offence under the order , and the third exception was prosecution for an offence where evidence inconsistent with any such answers or information was relied on by the defence ( paragraph CARDINAL ) ) . On DATE , paragraph CARDINAL ) was amended by ORG and Criminal Evidence Act DATE to cover use of the statements as evidence adduced by the defence only .