CASE OF ROWE AND DAVIS v. THE UNITED KINGDOM

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

Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney

During TIME , a series of offences occurred in GPE , GPE .

The first , which may have occurred sometime after TIME , involved an attack on CARDINAL men in a parked car in a field near a public house in GPE . Just after the conclusion of sexual activities between the CARDINAL men ( Mr PERSON and PERSON ) , CARDINAL masked men appeared . CARDINAL carried a knife , the other a gun . PERSON was pulled out of the car and QUANTITY ( GBP ) was taken from him . On orders , he lay face down on the ground while the man with the knife kept guard over him . PERSON became aware of a third masked man . The robbers wanted to take the car which belonged to PERSON , who objected and was attacked . PERSON was made to crawl over to where PERSON was lying tied up . He was also tied up and gagged . Petrol was spread around both of them . PERSON saw a lit cigarette and passed out . When he recovered consciousness , PERSON 's FAC car had gone and PERSON was dead . The attackers had abandoned a stolen Spitfire car in which they had arrived on the scene in the entrance to a field , QUANTITY away .

This offence was followed , at TIME , by CARDINAL masked robbers arriving at the PERSON household in GPE . They entered by a back window . CARDINAL of them went into PERSON room ; one had a knife , the other a gun . Meanwhile , PERSON ( the father ) was awakened by the third robber armed with a revolver . He was taken into PERSON 's room . Both were told they would be shot if they did not cooperate . They attacked the robbers and forced them downstairs . In the struggle , PERSON arm was cut and an artery was severed . PERSON was forced back upstairs to the bedroom where his wife was waiting . A knife was pointed at her and she was told to remove her rings and jewellery or her fingers would be cut off . The other CARDINAL robbers ransacked the room before all CARDINAL fled taking PERSON 's Toyota car . PERSON was rushed to hospital . He was found to have a stab wound to his back that had punctured the pleural cavity and required the insertion of a chest drain . PERSON 's car was found abandoned nearby .

At TIME , at the home of PERSON in GPE , she and her partner ( Mr Almond ) awoke to find CARDINAL masked men in their bedroom . They were asked for money , jewellery and car keys . They told the intruders where to find them . ORG and Almond were bound and gagged and the house was ransacked . It was TIME before the robbers left , taking a large amount of property and the couple 's CARDINAL cars , a ORG and a Cavalier . PERSON ORG was found abandoned nearby .

There was considerable interest in the above events , including publication in the national media DATE of the offer of a reward of GBP CARDINAL for information leading to the conviction of the offenders . On DATE the police incident room received information that the persons responsible for the murder and other offences were living at FAC , GPE , GPE ( “ No . CARDINAL ” ) . In addition , the caller said that a considerable quantity of property which had been stolen during the course of the robberies had been taken by other persons resident at No . CARDINAL and stored at the flat of a female associate at ORG .

No . CARDINAL was owned by PERSON , who occupied the ground floor and basement . The remainder of the house , consisting of the CARDINAL upper floors , was divided into flats occupied by the applicants , PERSON and PERSON , amongst others . PERSON visited the house from time to time , most recently to help repair the wiring and various electrical appliances , and he was said to have been there on TIME DATE . PERSON , PERSON and PERSON were black .

CARDINAL white men also lived at No . CARDINAL : PERSON , PERSON and PERSON ( “ the ORG ” ) . They were then aged DATE and DATE respectively . PERSON and PERSON sniffed glue on a regular basis . All CARDINAL had criminal records .

As a result of the information received by the police , search warrants were obtained for each of the CARDINAL addresses and were executed simultaneously at TIME on DATE . In a search of No . CARDINAL carried out sometime between TIME on DATE and TIME on DATE , the police found a brooch from the ORG robbery in ORG 's wastepaper basket . Other ORG items were found in a storeroom and , also in the storeroom , were some porcelain figurines ( not connected with these offences ) which bore PERSON 's fingerprints . Blood stains on a jacket found in PERSON 's bedroom were analysed and found to be of a blood group shared by PERCENT of the population , including the murder victim , PERSON . PERSON , PERSON , Jobbins and PERSON were arrested on suspicion of aggravated burglary . PERSON was arrested on DATE .

PERSON , a DATE school student and girlfriend of ORG , produced to the police a number of items from ORG robbery , including CARDINAL eternity rings , a yellow metal watch strap and a lady 's watch . She told them that she visited PERSON quite regularly and was there during TIME DATE . She said that she did not know Jobbins , PERSON or PERSON except by sight .

PERSON informed the police that she had stayed with another resident of No . DATE , PERSON , for a period in DATE . She knew PERSON , PERSON , GPE , PERSON and PERSON . She had been at No . CARDINAL during TIME DATE and had stayed in ORG 's room .

The other search warrant was executed at CARDINAL ORG . It resulted in the arrest of the tenant , PERSON , who was the girlfriend of GPE , and the recovery of a large amount of stolen property .

PERSON was arrested on DATE after an extensive car chase by several police officers . At the time , he was carrying a revolver . In his statement he agreed that he had been to No . CARDINAL on several occasions and , on the night in question , was probably there until late . He denied involvement in the offences and said in police interviews that he might have spent TIME with a girlfriend .

The trial of the CARDINAL applicants and PERSON took place at ORG in DATE .

NORP The prosecution case was that the CARDINAL men had been involved in each incident . It was argued that there was evidence to link the offences : the PERSON Princess stolen from PERSON was found at the scene of the PERSON robbery ; the ORG stolen from the ORG was found abandoned close to the ORG / Almond household ; and the vehicles stolen from the latter couple were connected to the occupants of No . DATE . In addition , the witnesses to each of the robberies had described a team of CARDINAL robbers , CARDINAL of whom was carrying a gun and a second one a knife , dressed in black and wearing balaclavas .

The prosecution relied substantially upon the evidence of ORG . The latter admitted having jointly stolen the Spitfire which had been found abandoned near the scene of the first robbery and murder , and having driven the ORG and Cavalier stolen at the last robbery to a field in GPE where they had set fire to them . They gave evidence , inter alia , that on TIME , PERSON had asked if he could use the Spitfire and that he , PERSON and another black man had requested help in other ways , such as the loan of a balaclava and assistance in starting the NORP . ORG also gave evidence relating to the events of TIME ( DATE ) , when PERSON had allegedly made a number of incriminating comments about his own involvement in the crimes and had requested them to dispose of the stolen ORG cars and to store the stolen property elsewhere .

In addition , the prosecution relied on the evidence of PERSON that PERSON had left her during TIME and had returned TIME at TIME ; that he gave her rings from the PERSON robbery in order to have them valued ; that he scratched his bedroom window with CARDINAL of the diamond rings and that he told her about the stolen cars . The prosecution also relied on the evidence of PERSON , that she had been given a plant by PERSON that , it was suggested , came from the boot of the car stolen from Almond . Finally , PERSON , an inmate at Her FAC Prison Brixton where PERSON had been held on remand , gave evidence of incriminating remarks allegedly made to him by PERSON .

All CARDINAL of the accused denied any involvement in the offences . Their defence relied on the facts that PERSON and others had given evidence that PERSON and PERSON had been in their company at times during TIME to DATE which were inconsistent with a sighting of the Spitfire at a similar time close to the scene of the PERSON murder and that the victims of the offences , including PERSON , the ORG and ORG , had described their attackers as white . On behalf of PERSON it was argued that there was no evidence of his involvement in the preparatory acts or subsequent disposals .

The defence submitted that many of the witnesses for the prosecution were unreliable . Thus , PERSON 's evidence included a number of inconsistencies , as did the testimony and statements of ORG . It was argued that if anyone from No . CARDINAL had been responsible for the crimes , it was ORG , and that Jobbins , PERSON and PERSON had given a deliberately false account to the police in order to implicate the accused and thus exonerate themselves . PERSON may have been an accomplice because she knew PERSON and PERSON , and PERSON evidence may have been motivated by jealousy of PERSON 's relationship with another girlfriend and was in any event inconsistent with a letter which she had sent to PERSON whilst he was in prison . The defence sought to impugn PERSON 's evidence on the grounds that he may have lied in order to obtain parole . In addition , the defence referred to the substantial reward which had been offered as a factor which may have motivated prosecution witnesses to give evidence .

PERSON gave evidence , consistent with his statement to the police , that he had played no part in the offences and had had nothing to do with the NORP . He claimed to have spent TIME of DATE at home , and agreed with PERSON account of going out and not returning until TIME PERSON 's evidence was also consistent with his statement to the police . He denied having played any part in the offences and said that after returning to No . CARDINAL at TIME , he had then slept with PERSON PERSON throughout TIME . PERSON did not give evidence .

On DATE the jury returned unanimous verdicts convicting the applicants and PERSON of murder , assault occasioning grievous bodily harm , and CARDINAL counts of robbery . They were each sentenced to concurrent terms of life , DATE and DATE imprisonment .

The applicants and PERSON appealed on the grounds , inter alia , that their convictions were unsafe and unsatisfactory because of weaknesses and inconsistencies in the evidence against them .

On DATE , at the first hearing before ORG , counsel for the prosecution handed to the court a document which was not shown to defence counsel . He sought ORG ruling on a matter of disclosure ( see paragraphs CARDINAL below ) , and informed the court that the matter was sensitive to a degree which would require the court to hear him either ex parte or , if inter partes , only on an undertaking by defence counsel not to disclose what took place to their solicitors or clients . Both defence counsel indicated that they could not conscientiously give such an undertaking and withdrew from the hearing , which proceeded ex parte .

On DATE and DATE the issue of disclosure was re - canvassed before a differently constituted ORG ( although the Lord Chief Justice , PERSON , participated in both hearings ) , because defence counsel had reconsidered their position and had concluded that they had been incorrect in withdrawing voluntarily as they had done at the first hearing . It was argued by the defence that ( i ) defence counsel should have been permitted to hear the application by the ORG without giving an undertaking and ( ii ) counsel for the ORG should , at the least , have been obliged to disclose the category of material in question so that defence counsel could then have made submissions as to whether or not disclosure of material in that category should be ordered . ORG , in its judgment , remarked that the procedure to be followed when the prosecution was in possession of material which it believed should not be disclosed to the defence had been changed by the judgment in NORP v. Ward ( see paragraph CARDINAL below ) in that it was now for the court , and not the prosecution , to decide whether disclosure should be made , and set out a series of procedural guidelines to be followed in such cases ( see paragraphs CARDINAL below ) . In conclusion , however , it refused to order disclosure .

On DATE , at the outset of the hearing of the substantive appeal before a differently constituted ORG , defence counsel invited the court to order the ORG to disclose the name of any person or persons to whom any reward money had been paid for information given to the police concerning the applicants , and sought access to ORG concerning a complaint by ORG . The prosecution showed the court documents relevant to the request for disclosure which were not shown to the defence . However , defence counsel were able to make submissions as to the factors weighing in favour of disclosure and the nature of the balancing exercise to be undertaken by the court . Having considered those submissions and having examined the relevant documents , the court refused to order disclosure .

On DATE ORG upheld the applicants ' convictions and that of PERSON , concluding that there was no basis to say that there was even a lurking doubt about their safety .

The applicants applied to ORG for leave to appeal to ORG , but this application was refused on DATE .

By a letter of CARDINAL DATE the first applicant 's solicitor , with reference to NORP v. PERSON ( see paragraph CARDINAL below ) , asked ORG for disclosure of any reward claim made prior to the trial by any witness and , in particular , by CARDINAL of ORG , PERSON or PERSON .

On DATE ORG replied :

“ Regarding the question raised in paragraph ( CARDINAL ) of your letter of DATE , you will know that the topic of rewards was raised by [ defence counsel ] at the outset of the appeal in this matter . This resulted in an ex parte application which was heard in camera . This application was upheld and referred to by ORG in his final judgment in these terms : ' We upheld the claim and refused to order disclosure of any kind for reasons we gave on DATE and which are recorded ' . ”

In DATE the applicants applied to ORG for a review of the safety of their convictions . In DATE ORG ( “ the ORG ” ) was set up under LAW DATE and the applicants ' case was transferred to it . In DATE the ORG appointed an officer from ORG to investigate the events surrounding the prosecution of the applicants and PERSON . The investigating officer 's report was submitted in DATE .

In its report of DATE the ORG found , inter alia , that PERSON was a long - standing police informant , who , on DATE had approached a NORP police officer and told him that the applicants were responsible for the crimes of DATE . As a result of his assistance to the police and the evidence which he gave at the applicants ' trial , PERSON had received a reward of GBP CARDINAL , in addition to police protection DATE and immunity from prosecution in relation to his admitted participation as an accessory to the offences in question . It appeared from police records of the information supplied by PERSON that the latter had never identified PERSON as CARDINAL of the offenders . These facts had not previously been disclosed to the defence on grounds of public interest immunity . The ORG also found that “ the police were not keen that ORG should be prosecuted and there was a corresponding inertia on the part of the prosecuting authorities ” , and commented that “ if the jury had been aware of this then the credibility of ORG might have been assessed in a more critical manner ” . Moreover , PERSON had retracted his statement concerning the incriminating comments allegedly made by PERSON .

The ORG concluded that , in the light of this new evidence , there was a real possibility that PERSON was not involved in the offences of CARDINAL to DATE . Whilst there was evidence linking the CARDINAL applicants to the robberies , if the prosecution case against CARDINAL of the CARDINAL , PERSON , might no longer be sustainable , in the PERSON 's view ORG ought at the same time to have the opportunity to consider whether the case could still be sustained against PERSON and PERSON . It therefore referred the convictions of the applicants and PERSON back to ORG , since it considered that there was a real possibility that these convictions would not be upheld if such a reference were made ( LAW DATE , section CARDINAL ) .

At the time of the adoption of the present judgment the applicants ' case is pending before ORG .

At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .

NORP In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common - law duty to disclose to the defence certain evidence of potential assistance to it ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL : “ the Guidelines ” ) . The Guidelines attempted to codify the rules of disclosure and to define the prosecution 's power to withhold “ unused material ” . Under paragraph CARDINAL , “ unused material ” was defined as :

“ ( i ) All witness statements and documents which are not included in the committal bundle served on the defence ; ( ii ) the statements of any witnesses who are to be called to give evidence at the committal and ( if not in the bundle ) any documents referred to therein ; ( iii ) the unedited version(s ) of any edited statements or composite statement included in the committal bundles . ”

According to the Guidelines , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

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

According to paragraph CARDINAL , “ in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence ” . The decision as to whether or not the balance in a particular case required disclosure of sensitive material was CARDINAL for the prosecution , although any doubt should be resolved in favour of disclosure . If either before or during the trial it became apparent that a duty to disclose had arisen , but that disclosure would not be in the public interest because of the sensitivity of the material , the prosecution would have to be abandoned .

Subsequent to the applicants ' trial in DATE , but before the appeal proceedings in DATE , the Guidelines were superseded by the common law .

In NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) ORG dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity . It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case , because :

“ ... [ When ] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings . Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence . If , in a wholly exceptional case , the prosecution are not prepared to have the issue of public interest immunity determined by a court , the result must inevitably be that the prosecution will have to be abandoned . ”

ORG described the balancing exercise to be performed by the judge as follows :

“ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed . ”

In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , ORG emphasised that , in performing the balancing exercise referred to in Ward , the court must view the material itself :

“ In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity . When public interest immunity is claimed for a document , it is for the court to rule whether the claim should be upheld or not . To do that involves a balancing exercise . The exercise can only be performed by the judge himself examining or viewing the evidence , so as to have the facts of what it contains in mind . Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure . ”

This judgment also clarified that , where an accused appeals to ORG on the ground that material has been wrongly withheld , ORG will itself view the material ex parte .

In NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity , and outlined CARDINAL different procedures to be adopted .

The first procedure , which had generally to be followed , was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held . The defence then had the opportunity to make representations to the court .

Secondly , however , where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed , the prosecution should still notify the defence that an application to the court was to be made , but the category of the material need not be disclosed and the application should be ex parte .

The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question . In such cases the prosecution should apply to the court ex parte without notice to the defence .

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

Following the applicants ' appeal , the NORP courts further clarified the principles and procedures relating to the issue of disclosure .

In NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) ORG emphasised that , since the ex parte procedure outlined in PERSON , PERSON and PERSON was “ contrary to the general principle of open justice in criminal trials ” , it should be used only in exceptional cases . It would be an abdication of the prosecution 's duty if , out of an abundance of caution , it were simply “ to dump all its unused material in the court 's lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential ” . Thus , the prosecution should put before the court only those documents which it regarded as material but wished to withhold . “ Material ” evidence was that which could , on a sensible appraisal by the prosecution , be seen ( i ) to be relevant or possibly relevant to an issue in the case ; ( ii ) to raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use ; or ( iii ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead of evidence going to ( i ) or ( ii ) . Exceptionally , in case of doubt about the materiality of the documents or evidence , the court might be asked to rule on the issue . In order to assist the prosecution in deciding whether evidence in its possession was “ material ” , and the judge in performing the balancing exercise , it was open to the defence to indicate any defence or issue which they proposed to raise .

In NORP v. PERSON ( The ORG , DATE ) , ORG held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justified overturning a conviction .

In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , ORG reviewed the operation of the Guidelines . It stated :

“ The Attorney - General 's objective was no doubt to improve the existing practice of disclosure by the ORG . That was a laudable objective . But the Attorney - General was not trying to make law and it was certainly beyond his power to do so ... The Guidelines are merely a set of instructions to ORG lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors , the LAW would be unobjectionable if they exactly matched the contours of the common law duty of disclosure ... But if the LAW , judged by the standards of DATE , reduce the common law duties of the ORG and thus abridge the common law rights of a defendant , they must be pro tanto unlawful ...

[ T]oday , the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects . First , the judgment in LOC established that it is for the court , not prosecuting counsel , to decide on disputed questions as to discloseable materials , and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... Secondly , the LAW are not an exhaustive statement of the ORG 's common law duty of disclosure : NORP v. Ward at CARDINAL and CARDINALD. To that extent too the Guidelines are out of date . Thirdly , the LAW were drafted before major developments in the field of public interest immunity . [ I]n paragraph CARDINAL the Guidelines are cast in the form of a prosecutor 's discretion ... Much of what is listed as ' sensitive material ' is no doubt covered by public interest immunity . But not everything so listed is covered by public interest immunity ... ”

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

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

It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which , coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up , gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter . We , therefore , conclude that if CARDINAL applies the principle which has been quoted from NORP v. PERSON ... to the facts of the present case , there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence , present and potential , that the balance which the judge had to strike came down firmly in favour of disclosure . ”

In DATE a new statutory scheme covering disclosure by the prosecution came into force in GPE and GPE . Under LAW , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor 's view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused 's defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .

Following the judgments of ORG in PERSON v. GPE ( DATE , Reports of Judgments and Decisions DATE ) and ORG and Others and PERSON and Others v. GPE ( DATE , Reports CARDINAL-IV ) GPE has introduced legislation making provision for the appointment of a “ special counsel ” in certain cases involving national security . The provisions are contained in ORG Act DATE ( “ the CARDINAL Act ” ) and LAW DATE ( “ the DATE LAW ) . Under this legislation , where it is necessary on national security grounds for the relevant tribunal to sit in camera , in the absence of the affected individual and his or her legal representatives , the Attorney - General may appoint a special counsel to represent the interests of the individual in the proceedings . The legislation provides that the special counsel is not however “ responsible to the person whose interest he is appointed to represent ” , thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which can not be disclosed .

For example , in the immigration context , the relevant Rules under LAW are contained in GPE ( Procedure ) Rules DATE ( ORG no . DATE ) . Rule CARDINAL provides that in exercising its functions , the Commission shall secure that information is not disclosed contrary to the interests of national security , the international relations of GPE , the detection and prevention of crime , or in any other circumstances where disclosure is likely to harm the public interest . Rule CARDINAL relates to the special advocate established by section CARDINAL of LAW . It provides , inter alia :

“ CARDINAL . ...

( CARDINAL ) The function of the special advocate is to represent the interest of the appellant by -

( a ) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded ;

( b ) cross - examining witnesses at any such proceedings ; and

( c ) making written submissions to the Commission .

( CARDINAL ) Except in accordance with paragraphs ( CARDINAL ) to ( CARDINAL ) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission .

( CARDINAL ) The special advocate may communicate with the appellant and his representative at any time before the Secretary of ORG makes the material available to him .

( CARDINAL ) At any time after the Secretary of ORG has made the material available under Rule CARDINAL(CARDINAL ) , the special advocate may seek directions from the ORG authorising him to seek information in connection with the proceedings from the appellant or his representative .

( CARDINAL) The Commission shall notify the Secretary of ORG of a request for direction under paragraph ( CARDINAL ) and the Secretary of ORG must , within a period specified by the Commission , give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made .

( CARDINAL ) Where the Secretary of ORG makes an objection under paragraph ( CARDINAL) , Rule CARDINAL shall apply as appropriate . ”

Rules DATE , to which Rule CARDINAL refers , provide :

“ CARDINAL . ( CARDINAL ) If the Secretary of ORG intends to oppose the appeal , he must , no later than CARDINAL days after receiving a copy of the notice of appeal -

( a ) provide the ORG with a summary of the facts relating to the decision being appealed and the reasons for the decision ;

( b ) inform the Commission of the grounds on which he opposes the appeal ; and

( c ) provide the ORG with a statement of the evidence which he relies upon in support of those grounds .

( CARDINAL ) Where the Secretary of ORG objects to material referred to in paragraph ( CARDINAL ) being disclosed to the appellant or his representative , he must also -

( a ) NORP state the reasons for the objection ; and

( b ) if and to the extent it is possible to do so without disclosing information contrary to the public interest , provide a statement of that material in a form that can be shown to the appellant .

( CARDINAL ) Where he makes an objection under paragraph ( CARDINAL ) , the Secretary of ORG must make available to the special advocate , as soon as it is practicable to do so , the material which he has provided to the ORG under paragraphs ( CARDINAL ) and ( CARDINAL ) .

( CARDINAL ) Proceedings under this Rule shall take place in the absence of the appellant and his representative .

( CARDINAL ) ORG shall decide whether to uphold the Secretary of ORG 's objection .

( CARDINAL ) Before doing so it shall invite the special advocate to make written representations .

( CARDINAL ) After considering representations made under paragraph ( CARDINAL ) the ORG may -

( a ) invite the special advocate to make oral representations ; or

( b ) uphold the Secretary of ORG 's objections without requiring further representations from the special advocate .

( CARDINAL ) Where the Commission is minded to overrule the Secretary of ORG 's objection , or to require him to provide material in different form from that in which he has provided it under Rule ORG ) , the Commission must invite the Secretary of ORG and the special advocate to make oral representations .

( CARDINAL ) Where -

( a ) ORG overrules the Secretary of ORG 's objection or requires him to provide material in different form from that in which he has provided it under Rule ORG ) , and

( b ) NORP the Secretary of ORG wishes to oppose the appeal ,

he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal . ”

In the context of fair employment proceedings in GPE , the scheme under sections CARDINAL of the CARDINAL Act and the relevant Rules is identical to the mechanism adopted under LAW ( above ) .

In addition , the government has recently placed before ORG CARDINAL bills which make provision for the appointment of “ special counsel ” ( operating under the same conditions ) in other circumstances . ORG Bill DATE provides for the appointment of a “ special representative ” in proceedings before an ORG to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications . In the context of criminal proceedings , ORG and Criminal Evidence Bill DATE makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross - examining in person the complainant in a sexual offence .


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

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

In DATE the applicant started his military service . After DATE , he was diagnosed with Hepatitis B and , as a result , he was discharged . On DATE the applicant brought an action in ORG against ORG , requesting pecuniary and non - pecuniary compensation for having allegedly been infected with the Hepatitis B virus during his military service . Based on an expert report , which stated that the applicant could have been infected before starting his military service , on DATE ORG dismissed the applicant ’s case .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - State to pay outstanding judgment debt;Non-pecuniary damage - financial award

The applicant was born in DATE and resides in the town of GPE , GPE region , GPE .

In DATE the applicant instituted proceedings in the ORG against ORG No . CARDINAL - a ORG - owned enterprise - to recover compensation for work related injuries and other payments . By decision of DATE , the court awarded the applicant ORG .

On DATE ORG suspended the enforcement proceedings in the applicant ’s case . On DATE the ORG ordered ORG to resume the enforcement proceedings .

By decisions of CARDINAL DATE and CARDINAL DATE , in the course of bankruptcy proceedings against the debtor , ORG of GPE imposed a ban on the seizure and sale of the debtor ’s assets .

In DATE the applicant instituted proceedings in the ORG against ORG for failure to enforce the judgment in his favour . On DATE the court found against the applicant , finding no fault on the part of the bailiff . On DATE ORG of GPE upheld the decision of the first - instance court . On DATE the judge of the ORG adjourned consideration of the applicant ’s appeal in cassation for failure to comply with procedural requirements and to pay the court fees . The parties did not submit any information with regard to the outcome of these proceedings .

In DATE ORG was reorganised and became a structural subdivision of ORG . As the latter thereby became the debtor , in DATE the enforcement proceedings were transferred to the ORG ( PERSON исполнительной службы Селидовского городского управления юстиции ) .

The applicant instituted proceedings in the ORG against the Selidovskiy ORG claiming compensation for material and moral damage caused by a lengthy non - enforcement of the judgment in his favour . On DATE the ORG asked the applicant to pay a court fee . The parties did not submit any further information about these proceedings .

The judgment of DATE has been enforced in part and the applicant was paid UAH CARDINAL , the remaining debt being UAH MONEY .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


The applicant was born in DATE and lives in PERSON . He is represented before the Court by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

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

The applicant worked as a printer from DATE until DATE , when he had to report sick , having suffered from headaches , nose bleedings , dizziness and fatigue for some time .

On DATE his doctor reported to ORG , formerly called GPE ) that the applicant ’s illness could be a work related injury resulting from organic - solvents poisoning , and thus giving rise to compensation .

On DATE , ORG informed the applicant that it was unable to make its assessment within DATE time - limit set out in GPE against the consequences of Industrial Injuries ( lov om forsikring mod følger af arbejdskade ) , the reason being that the disease did not meet the conditions for recognition according to the list of occupational diseases pursuant to the said LAW . Therefore the case had to be submitted to ORG ) before a decision could be taken .

On DATE ORG recommended dismissal of the case as the disease was not exclusively or predominantly due to the applicant ’s work . By decision of DATE the ORG refused to acknowledge that the applicant ’s illness was an occupational disease within the meaning of ORG against the consequences of Industrial Injuries .

On DATE , the applicant appealed against the decision to ORG ( PERSON ) , which on DATE upheld the decision .

Twice , enclosing new medical assessments , the applicant requested in vain that the case be reopened . His requests were refused by ORG on DATE and CARDINAL DATE and , on appeal , by ORG on respectively CARDINAL DATE and DATE , with the reasoning that the result of the new medical examinations confirmed the previous ones .

On DATE , anew the applicant requested a reopening of his case , which resulted in ORG initiating a neurological examination of the applicant . On DATE ORG , on the basis of the neurological medical certificate , re - opened the case and , by decision of CARDINAL DATE , it recognised that the applicant ’s injury was work related .

Thereafter , on DATE ORG found that the applicant ’s degree of disablement amounted to PERCENT .

On DATE it found that the degree of his loss of working capacity amounted to PERCENT .

On appeal , on DATE ORG upheld the calculation as to the degree of disablement and on DATE as to the degree of the loss of working capacity .

On DATE , the applicant applied for free legal aid with GPE ( PERSON ) with a view to initiating civil proceedings before the courts against ORG claiming that his loss of working capacity amounted to PERCENT , In this connection the latter heard ORG , which on DATE decided to re - open the case and re - calculate the applicant ’s degree of loss of working capacity to PERCENT .

On DATE , having been granted free legal aid , the applicant instituted civil proceedings before ORG of Eastern GPE ( PERSON ) claiming that the degree of his loss of working capacity be set to PERCENT . By judgment of DATE the High Court found for ORG . On appeal , on DATE , ORG ( Højesteret ) upheld the judgment .

NORP In the meantime , on DATE ORG refused to re - open the case concerning its assessment of the applicant ’s degree of disablement . Consequently , on DATE the applicant instituted another set of proceedings before the High Court claiming that ORG should acknowledge that his degree of disablement be set to PERCENT , or in the alternative PERCENT . ORG stated that in accordance with the new scale ( méntabel ) to be used as from DATE , it could accept that the degree be set to PERCENT . By judgment of DATE the High Court found that the degree of disablement should be set to PERCENT .

The applicant appealed against the judgment to ORG . Having obtained another medical expert statement on DATE , by judgment of DATE , ORG upheld the High Court judgment of DATE .

According to NORP law it is not a requirement for instituting civil court proceedings that administrative appeal proceedings have been exhausted beforehand , unless specifically provided .

The relevant provisions of the then applicable Act on Protection against LAW PERSON om forsikring mod følger af arbejdskade , nu afløst af PERSON om arbejdsskadesikring ) , were worded as follows :

Where nothing to the contrary has been provided , ORG Injuries shall make decisions on all matters under LAW .

Decisions made by ORG under section DATE may be brought before ORG by

a ) the injured person or the injured person ’s surviving relatives ; [ and ] ...

A ORG judgment printed in ORG ( ORG ) , DATE , page CARDINAL , concerned a nurse who injured her back during work . Having acknowledged that her injury was work related , ORG fixed her degree of disablement at PERCENT and her loss of working capacity at PERCENT . Without pursuing any further administrative appeals , the nurse brought the decision concerning the degree of loss of working capacity directly before ORG , which passed judgment remitting the case to ORG on the ground that the latter had not taken the nurse ’s income into account when making its decision . The nurse appealed against ORG judgment to ORG , which by judgment of DATE fixed her loss of working capacity at PERCENT .

Pursuant to section CARDINAL of ORG ( Retsplejeloven ) , as the main rule , civil proceedings are instituted before ORG being the first judicial instance . Certain lawsuits , however , are brought before ORG ( sections CARDINAL and CARDINAL of the said Act ) as the court of first instance , for example if a dispute between an individual and the public concerns a review of a decision taken by the administrative body , which has the highest authority , like ORG .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient

András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre

On DATE the applicants jointly notified the FAC district governor that they would be gathering before the GPE PERSON memorial on DATE at TIME to celebrate Labour Day and commemorate their friends who had lost their lives during the demonstrations of CARDINAL DATE .

On DATE the FAC district governor authorised a gathering at the requested location for representatives of trade unions only . The district governor specifically indicated that a demonstration on a larger scale at the said location was not authorised .

Subsequently , certain government authorities , including the Minister of the ORG and the ORG ’s spokesman , as well as the GPE Governor ’s office , issued press statements , declaring that they were in possession of intelligence reports which precluded them from authorising any demonstration in FAC , for security reasons . The authorities held that any demonstration held in GPE on CARDINAL DATE would be unlawful and unconstitutional on account of possible provocations and disruption of traffic and public order . They further stated that they were going to take extensive security measures on DATE , including shutting down certain schools in the nearby districts , stopping the operation of ferries and subways , blocking the roads leading to FAC and deploying extra police for DATE . As alternative locations , the GPE Governor ’s office indicated CARDINAL other squares for the demonstration , namely CARDINAL on the NORP side and QUANTITY on the NORP side of GPE .

On DATE the first applicant lodged a complaint against the Governor of GPE with the GPE public prosecutor , accusing him of denying the trade unions their right to assembly in a discriminatory manner . The first applicant complained that there was no justification for denying them access to FAC on Labour Day , when the same location was available for other large - scale demonstrations and celebrations ( investigation no . CARDINAL/CARDINAL ) .

At TIME , members of the PERSON and KESK began gathering in front of the ORG headquarters located in the district of PERSON for Labour Day celebrations . At TIME the police asked the group to disperse , warning them that they were acting in violation of ORG ( Law no . CARDINAL ) . The members of the group refused , arguing that they were merely waiting in front of the ORG headquarters , which was a pedestrian area , and that they were not violating the said law in any way . The police , however , proceeded to disperse the group , by spraying them with pressurised water , paint and tear gas , both inside and outside the ORG building .

Similar police interventions occurred over DATE with increasing intensity . Some of the demonstrators were injured as a result of the use of force by the police . While the injured demonstrators were trying to reach the nearby ORG for medical care , they were chased by the police and were subjected to gas attacks even within the hospital LOC . Some members of the PERSON were arrested .

At TIME the group of demonstrators broke up of its own accord to forestall any further violence .

On DATE the Chief of ORG gave a statement to the police , stating that on DATE around CARDINAL demonstrators had entered the hospital and opened a banner . Subsequently , police officers had also entered the hospital premises in their pursuit and used a gas bomb in the hospital ’s garden to neutralise the demonstrators . He further explained that CARDINAL of the police officers had mistakenly sat on a gas bomb and exploded it in the police car parked at the entrance of ORG ; as a result staff working in ORG as well as some of the patients had been affected . He concluded by stating that the gas bomb was not deliberately thrown in the hospital building .

On an unspecified date after DATE , the director of the ORG , along with other persons , lodged a complaint with the GPE public prosecutor against various authorities , including the office of the Prime Minister , the Minister of the ORG , the Minister of ORG , the GPE Governor ’s office , the Head of ORG and the police officers involved in the incidents of DATE , accusing them of breach of the right to freedom of assembly and a disproportionate use of force ( investigation no . CARDINAL ) . On an unspecified date , the public prosecutor issued a decision of lack of jurisdiction in connection with the complaint lodged against the GPE Governor and the Head of ORG . The case file was accordingly transferred to ORG at ORG . Pursuant to the terms of PERSON no . DATE , the public prosecutor at ORG sought authorisation from the Minister of the ORG to prosecute the GPE Governor and the Head of ORG . On an unspecified date , the Minister refused to do so . Consequently , on DATE the public prosecutor decided not to proceed with the case . This decision was notified to the applicants’ lawyer on DATE . The applicant ’s appeal lodged against this decision was further dismissed by ORG as the court held that pursuant to domestic legislation , no appeal was possible against the decision of DATE .

Regarding the complaint lodged against the Prime Minister , the Minister of the ORG , and the Minister of ORG , on DATE the GPE public prosecutor delivered a decision of non - prosecution , holding that pursuant to the LAW , the Prime Minister , the Minister of the ORG , and the Minister of ORG could not be held liable for their actions in the course of their duties . This decision was served on the applicants’ lawyer on DATE . The ORG appeal was rejected on CARDINAL DATE by ORG , which held that no objection could be lodged against the decision of the public prosecutor dated DATE .

On DATE the representative of the first applicant handed to the PERSON public prosecutor an undetonated gas bomb belonging to the police force , found inside the ORG headquarters following the events of CARDINAL DATE .

On DATE , upon a complaint lodged by the GPE Governor ’s office , the ORG public prosecutor questioned the director of the ORG in relation to the events that took place on DATE ( investigation no . CARDINAL ) . It appears from the documents in the case file that no prosecution was initiated against the applicants in relation to the events of DATE .

DATE LAW provides :

“ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission .

The formalities , conditions , and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law . ”

Section CARDINAL of Law No . CARDINAL prohibits demonstrations and processions on public streets , in parks , places of worship and buildings in which public services are based . Demonstrations organised in public squares have to comply with security instructions and not disrupt ORG movements or public transport . Finally , LAW provides that demonstrations and processions which do not comply with the provisions of this law will be dispersed by force on the order of the governor ’s office and after the demonstrators are warned .


CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (ARTICLE 50)

Costs and expenses award - Convention proceedings

The DATE Times case was referred to the ORG by ORG ( " the Commission " ) in DATE . The case originated in an application against GPE and GPE lodged with the ORG in DATE by ORG , the publisher of the NORP DATE newspaper ORG , by Mr. PERSON , the latter ’s editor , and by ORG as a group of journalists , composed of Mr. PERSON himself , Mr. PERSON , Mr. PERSON and Ms. PERSON .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to DATE of the ORG ’s judgment of DATE ( Series A no . CARDINAL , pp . DATE ) .

By that judgment , the ORG held , inter alia , that there had been a breach of LAW ) by reason of an injunction granted against ORG in accordance with the NORP law of contempt of court but no breach of LAW ) ( points CARDINAL and CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , ibid . , pp . CARDINAL and CARDINAL ) .

During the proceedings on the merits , the applicants , without quantifying their claim , had requested the ORG to declare , in application of LAW ) , that the Government of GPE ( " the Government " ) should pay to them a sum equivalent to the costs and expenses which they , the applicants , had incurred in connection with the contempt litigation in the NORP courts and the proceedings before the Commission and the ORG . The ORG reserved the whole of the question of the application of LAW ) . Those appearing before the ORG were invited to notify it , within DATE from the delivery of the judgment , of any settlement at which the ORG and the applicants might have arrived ( point CARDINAL of the operative provisions and paragraphs CARDINAL - CARDINAL of the reasons , ibid . , pp . DATE ) .

By letters of CARDINAL and DATE , the Deputy Agent of the ORG and the Deputy Secretary to the ORG advised the Registrar that no settlement had been arrived at .

In accordance with Orders of the President ( DATE , DATE and DATE ) and a decision of ORG ( DATE ) , the following documents were filed with the registry :

- on DATE , observations of the applicants , transmitted by ORG ;

- on DATE , memorial of the Government ;

- on DATE , observations of the Delegates , together with the applicants’ observations on the ORG ’s memorial ;

- on DATE , supplementary memorial of the Government .

Having consulted , through the Registrar , the Deputy Agent of the ORG and the delegates of the ORG , the ORG decided on DATE that there was no call to hold oral hearings .

On DATE , the Secretary to ORG , acting on the Delegates’ instructions , transmitted to the registry some comments by the applicants on the Government ’s supplementary memorial which they had sent to him on their own initiative . On DATE , the ORG decided , on the ground that the case was already ready for decision , not to take this document into account and , accordingly , not to communicate it to the Government .

The ORG claim may be summarised as follows :

( a ) for the litigation in the LANGUAGE courts ( " the LANGUAGE costs " ) : QUANTITY ;

( b ) for the proceedings before the ORG and ORG ( " the GPE costs " ) :

- MONEY up to the delivery of the judgment of DATE ;

- an additional amount in respect of LAW CARDINAL ( article CARDINAL ) proceedings ;

( c ) interest at PERCENT per annum on the sums awarded .

There was appended to the applicants’ observations of DATE a schedule with particulars of the quantified items , incurred since DATE . For ease of reference , relevant details are included below in the section " As to the law " .

The costs of the litigation in GPE had been the subject of certain " without prejudice " correspondence . On DATE the Legal Adviser to ORG had written to the ORG Solicitor as follows :

" ... I am writing to you now to see whether the matter of costs could be dealt with by agreement , thus avoiding any argument at the resumed hearing , when judgment is given .

I do not think you will be surprised to hear that we expect ORG to find in favour of the Attorney - general ...

In normal circumstances it would be difficult to resist the argument that costs should follow the event , but I venture to suggest that there are a number of features about the present case which would justify a departure from the normal rule ... "

There followed a list of circumstances surrounding the litigation in the LANGUAGE courts , together with an assertion that ORG had acted " with great restraint and responsibility " and had " frequently subordinated its private interest to the more general public interest " .

The letter concluded :

" ... we ... base our suggestion that it should be agreed that , in the event of a judgment by ORG in favour of the Attorney - General , there should be an agreed Order that each side pay their own costs , both in ORG and in the courts below , on the ... grounds which I have outlined above . "

The Deputy ORG Solicitor had replied on DATE :

" I have obtained the instructions of the Attorney - General on your letter of DATE . He considers that each party should bear their own costs of all the proceedings , whatever the outcome of the appeal to ORG . "

On DATE , that is DATE after giving judgment on the merits in favour of the Attorney - General , ORG ordered : " That , by consent , each party do bear and pay their own costs here and below . " Counsel for the Attorney - General had pointed out that " in the ordinary way the Attorney - General would have asked for costs " but that , in the circumstances , it had " been agreed that each party should pay their own costs " ; no observations had been added on behalf of ORG .

In LANGUAGE law , a litigant must bear his own costs unless the court otherwise orders . An award of costs lies within the discretion of the court but , as a general rule and in the absence of special factors , " costs follow the event " : the unsuccessful party will be ordered to pay to his opponent the latter ’s costs , although the actual amount recoverable will be assessed by the court and will very rarely cover the full expenditure . There is jurisdiction to award costs against a successful party but it is exercisable only in the most exceptional circumstances ( see PERSON v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

An order by consent made by an NORP court is not a contract , but it is sufficient evidence of the contract upon which it is based . Such an order , like the contract which it evidences , is not necessarily to be read literally but is to be construed in the light of any admissible evidence of surrounding circumstances , including evidence as to the nature of the dispute compromised by the order ( per Mr. Justice PERSON and , on appeal , per Lord Justice PERSON in ORG and ORG [ DATE ] ORG , vol . CARDINAL at CARDINAL and vol . CARDINAL at CARDINAL ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant , Mr. PERSON , was born in DATE . He is a citizen of GPE and , at the time of the domestic proceedings in question , he resided at GPE .

ORG The applicant came to GPE in DATE to do certain research work at ORG . However , his initial plans did not come to fruition and his financial situation forced him to look for other work . In DATE he found a job at ORG ( PERSON ) . He was , however , obliged to pass a NORP driving test , since he only had an NORP driver ’s licence . On DATE he took the test but failed . This led to an angry exchange of views on CARDINAL DATE between the applicant and the traffic assistant who had been in charge of the test ; subsequently the traffic assistant reported the incident to the police .

ORG In DATE the applicant was questioned by the police about the matter , and on DATE , he was charged with threatening a civil servant in breach of LAW , section CARDINAL of LAW ( brottsbalken ) .

ORG During the trial hearing ( huvudförhandling ) before ORG ( NORP tingsrätt ) on DATE , both the applicant and the traffic assistant were heard . On this testimony ORG in a judgment on DATE found the applicant guilty of the charge brought against him and sentenced him to a fine of CARDINAL NORP Crowns ( SEK ) . The costs of the proceedings were to be borne by the ORG . At ORG the applicant was assisted by CARDINAL public defence lawyers .

ORG On DATE , the applicant appealed against this judgment to ORG for Western Sweden ( hovrätten för ORG ) requesting acquittal as he claimed he had not committed the criminal act of which he was accused . Before ORG , he was represented , first by a public defence lawyer and later by a private counsel .

In his first written statement of evidence to ORG on DATE , the applicant took it for granted that a hearing would be held and requested that the traffic assistant appear in person before ORG .

On DATE , the public prosecutor declared that he did not wish to adduce any new evidence . At the same time he applied for the case to be dealt with without a hearing in ORG . In the event of a hearing he requested a rehearing of the testimony of both the applicant and the traffic assistant .

In a new statement of evidence of DATE , the applicant ’s counsel requested that a witness be heard . The witness was to inform the ORG about " the applicant as a person and his credibility " . In his reply of DATE , the public prosecutor did not oppose the calling of this new witness if a hearing were to be held . However , he asked that , in that event , CARDINAL other new witnesses should be heard to prove inter alia " Mr. PERSON ’s lack of credibility and that the [ traffic assistant ’s ] statement of the course of events on DATE was correct " .

The applicant ’s defence counsel , on DATE , objected to the calling of these CARDINAL new witnesses .

On DATE , ORG informed the parties by means of a written notice that , as the case might be determined without a hearing , they were invited to file their final submissions in writing .

On DATE , the public prosecutor declared that he had no objection to ORG ’s giving judgment without a hearing . He added that , if there was a hearing , he would insist on the examination of the CARDINAL new witnesses . On DATE , the applicant ’s counsel stated his objection to the case being determined on the basis of the case - file , on the ground that a hearing was necessary for a thorough examination of the case . He also reiterated his objections to the calling of the witnesses called for by the prosecution . He added that , if ORG should reach a decision on the basis of the case - file and acquit the applicant , he claimed reimbursement of his costs and expenses .

ORG held no hearing and in its judgment of CARDINAL DATE simply stated : " ORG confirms ORG judgment . "

ORG On DATE , the applicant appealed to ORG ( högsta domstolen ) . He asked ORG either to quash ORG decision and send the case back for a hearing , or to acquit him , or to remit the sentence imposed .

In support of his claims he stated :

" The case concerns the credibility of Mr. PERSON and of the aggrieved party . In support of his credibility , Mr. PERSON has requested the hearing of a person who was not heard by ORG . The prosecutor has not objected to the hearing of the new witness by ORG . Since the case concerns new evidence of decisive importance for the outcome of the case , the second sub - paragraph of LAW in LAW of LAW ( rättegångsbalken ) ought not to be applied . The preparatory work also indicates that great consideration should be given to the wishes of the parties even in the case of a fine and in particular to those of the accused ( PERSON DATE , pp . CARDINAL et seq . ) . Also the prosecutor requested the hearing of new evidence before ORG . For Mr. PERSON it is of great importance that he is not sentenced without having received an opportunity to have the evidence adduced by him tested . ORG ought to make its own assessment of Mr. PERSON . In addition , the holding of a hearing would not lead to any major increase in the costs of the proceedings . "

On DATE , ORG held :

" ORG finds no reason to grant leave to appeal , for which reason ORG judgment shall stand . "

ORG Under the rules on public access to official documents , contained in the Freedom of LAW ( tryckfrihetsförordningen ) and LAW ( sekretesslagen , CARDINAL ) , the case - files from the courts involved were all available to the public .

ORG According to LAW of LAW , lower courts shall as a rule render judgment in criminal cases only after the accused has been able to defend himself at an oral hearing . Exceptions to this rule do however exist , particularly at appellate level . Thus LAW , section CARDINAL of LAW , as applicable at the relevant time , stated that :

" ORG may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party .

The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty ( vite ) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ... "

As of DATE - and therefore after the facts of the present case - this provision has been amended to read as follows in the relevant parts ( NORP Författningssamling CARDINAL:CARDINAL ) :

" ORG may dispose of an appeal on the merits without a hearing ,

if the prosecutor appeals only for the benefit of the accused ,

if an appeal brought by the accused is supported by the opposing party ,

if the appeal is plainly unfounded , or

if no cause exists to hold the accused legally liable , or to impose a sanction upon him , or to impose a sanction other than a fine or conditional sentence , or a combination of such sanctions .

If , in a case referred to [ above ] , a party has requested a hearing , this shall take place unless manifestly unnecessary .

For a ruling not relating to the merits a hearing need not take place . "

ORG has the power to review both questions of law and of fact . However , there are certain limitations to ORG full jurisdiction . LAW , LAW ( as amended by Laws DATE : CARDINAL and CARDINAL ) contains a rule proscribing reformatio in pejus in certain cases :

" In an appeal lodged by the accused , or by the prosecutor for the benefit of the accused , ORG may not sentence the accused to a criminal sanction more severe than the one imposed by the lower court . If the accused was sentenced by the lower court to imprisonment , ORG may order suspension of sentence , probation or placing under special care ; in addition to suspension of sentence and to probation or placing under care within the social service , ORG may impose a fine or probation coupled with imprisonment pursuant to LAW , section CARDINAL , of LAW . When the lower court has ordered a sanction of the kind referred to above , ORG may impose a different kind of sanction . "


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

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

On DATE ORG in PERSON accused the applicant of fraud and brought criminal proceedings against him . On DATE ORG in PERSON dismissed the applicant ’s complaint against this decision .

The applicant was examined by the police investigator on DATE and on DATE .

On DATE the applicant refused to be examined as his lawyer was ill .

Another examination was held on DATE . It had to be adjourned as the applicant had health problems .

Examinations were scheduled for DATE , DATE and DATE . On DATE the applicant refused to answer further questions as his complaint about the investigator had not been decided upon .

At the examination held on DATE the applicant availed himself of his right not to answer the investigator ’s questions .

On DATE the applicant was allowed to consult the case file and he was examined by the investigator .

In a report of CARDINAL DATE a public prosecutor noted that the length of the preliminary proceedings was due to the fact that documentary evidence had to be obtained from GPE . The report stated that it had been difficult to contact the witnesses during DATE and that the applicant and his lawyer had also contributed to the length of the proceedings . The police was instructed to conclude the investigation before DATE .

On DATE the applicant requested the public prosecutor to order further evidence to be taken .

On DATE the applicant was questioned for TIME . Subsequently he decided to remain silent and refused to have his handwriting examined by an expert as an expert opinion to the same effect had already been ordered .

On DATE the applicant challenged an expert . The public prosecutor dismissed the request on CARDINAL DATE .

On DATE the public prosecutor filed an indictment with ORG súd ) .

On DATE ORG returned the case to the public prosecutor . ORG shared the applicant ’s view that the case had not been properly investigated into and ordered further comprehensive evidence to be taken . On DATE ORG ( PERSON súd ) dismissed the public prosecutor ’s complaint against ORG decision . On DATE the case file was returned to ORG and it reached the police investigator on DATE .

On DATE and on DATE respectively the applicant challenged the officials dealing with his case and complained about shortcomings in the examination of a witness . On DATE ORG in GPE found that the investigators were not excluded .

A reconstitution of the alleged offence was scheduled for DATE . It did not take place as the applicant objected that several witnesses were absent . The reconstitution was held on DATE . The applicant challenged the way in which it was carried out and proposed further evidence to be taken .

On DATE the applicant complained to the public prosecutor that the police investigator lacked impartiality . On DATE the public prosecutor instructed the investigator to remedy shortcomings in the proceedings .

On DATE another reconstitution of the alleged offence was carried out .

On DATE a witness was heard and confronted with the applicant in GPE . The applicant challenged the examination .

On DATE an expert was appointed at the applicant ’s request .

Another confrontation of the applicant with a witness in GPE was scheduled for DATE . In TIME of the same day the lawyer informed the police that the applicant was ill and that he could not attend .

On DATE the applicant challenged all PERSON police investigators . On DATE ORG refused to exclude the PERSON police investigators from dealing with the case .

On DATE the applicant challenged the public prosecutor involved in his case . On DATE ORG dismissed the request .

On DATE the applicant challenged the police investigators and the public prosecutor dealing with his case . The case file was submitted to ORG .

On DATE ORG discontinued the criminal proceedings on the ground that the applicant had committed no offence . The person who had filed the criminal complaint against the applicant lodged a complaint which was dismissed by ORG . The decision to discontinue the criminal proceedings against the applicant thus became final on DATE .


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

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

On DATE the applicant lodged an application with the Minister of Agriculture ( Minister PERSON i PERSON ) , seeking annulment of the Minister ’s decision of CARDINAL DATE to expropriate the property of the applicant ’s father .

The applicant complained several times to the Minister and the ORG about lack of progress in the proceedings .

On DATE the Minister informed the applicant that his application would be examined in DATE .

On DATE the applicant lodged a complaint about the Minister ’s inactivity with ORG ( PERSON ) .

On DATE ORG ordered the Minister to deal with the applicant ’s case within DATE .

The Minister failed to do so and , on DATE , the applicant lodged a further complaint with ORG about the Minister ’s inactivity . The court examined his complaint on DATE .

In the meantime , on DATE , the Minister stayed the proceedings . He found that it was necessary to obtain a geodetic expert opinion . The Minister upheld his decision on DATE .

On DATE , upon the applicant ’s request , ORG ( ORG PERSON ) quashed both decisions as inadmissible in law .

On DATE the Minister of Agriculture gave a decision . He found that the decision of CARDINAL DATE was not in accordance with law . However , he refused to restore the property to the applicant .

On DATE the applicant made an application to the Minister for the matter to be reconsidered ( wniosek o ponowne rozpatrzenie sprawy ) .

NORP The Minister upheld his original decision on DATE .

On DATE the applicant lodged an application for compensation for the loss of his estate .

NORP The Minister granted the request on DATE . The applicant was awarded MONEY in compensation .

On DATE , the Law of CARDINAL DATE on ORG ( “ the DATE LAW ) entered into force . Under section CARDINAL of the DATE ORG was competent to examine complaints about inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings .

Section CARDINAL of the Act provided :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”

Pursuant to section CARDINAL of LAW , the decision of ORG ordering an authority to put an end to its inactivity was legally binding on the authority concerned . If the authority had not complied with the decision , the court might , under section CARDINAL , impose a fine on it and might itself give a ruling on the right or obligation in question .

LAW was repealed and replaced by the Law of DATE on ORG ( “ the DATE Act ” ) which entered into force on DATE . LAW of LAW , contains provisions analogous to section CARDINAL of the CARDINAL Act . A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings with an administrative court . Under section CARDINAL , if a complaint is well - founded , an administrative court shall oblige the authority concerned to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law .

NORP The relevant domestic law provisions are set out in the ORG ’s judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL ( extracts ) .


No violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in PERSON , GPE .

On DATE the applicant purchased a house and a plot of land located in ORG in the Otyń municipality , for which he paid MONEY ( PLN ) .

NORP In DATE the applicant discovered that the plot in question was QUANTITY . m smaller than the size specified in the contract .

On an unspecified date in DATE the applicant lodged a claim against the municipality with the Zielona ORG , seeking ORG CARDINAL in compensation for the alleged difference between the actual size of the property and the CARDINAL declared in the notarial deed . He claimed that due to the fact that the plot was in fact smaller he could not construct a special sanitary tank there and consequently could not open a bakery , which he had originally planned to do . He also sought exemption from the entire amount of court fees which were set at ORG CARDINAL . The applicant claimed that his DATE income was only an invalidity pension of ORG CARDINAL.CARDINAL . He submitted that after paying rent for his cooperative flat , his net income amounted to LAW .

ORG requested the applicant to supplement his declaration of means . Subsequently , the applicant submitted that he owned a house in ORG which according to him had a value of ORG , and that he had a cooperative flat in PERSON , a plot of land ( QUANTITY sq . m ) , a small retail outlet and a van ( valued at PLN MONEY ) used for temporary work . He claimed that he had purchased the ORG property using his savings and family loans , and that he intended to use it to create employment for him and his family . He also informed the court that he had invested ORG MONEY of his own money in the house .

On DATE ORG refused his application for exemption from court fees . It held , in so far as relevant :

“ Pursuant to LAW from court fees may be sought by a party who is unable to bear them without entailing a substantial reduction in his or her standard of living . The plaintiff does not satisfy this requirement . It is evident to the court that the plaintiff has a substantially higher income than the declared pension which he knowingly does not disclose , in that his retail outlet and his van must generate profits . These profits must be substantial because otherwise he could not have a cooperative flat and CARDINAL other properties and could not invest MONEY in other business projects and maintain them . The plaintiff continuously conceals his real profits and they are substantial , because nobody could believe that he lives on PLN CARDINAL per month .

Exemption from court fees is a privilege serving to legally protect the indigent , and the plaintiff is a very affluent person in NORP terms ” .

The applicant appealed against that decision and pleaded that he was in an exceptional situation . He submitted that he had acquired ORG , which was the subject of his dispute with the municipality , and had invested ORG MONEY in it with a view to conducting business activity there . However , he could not execute his business plans since the property did not conform to certain unspecified requirements and as a result his financial situation had worsened . He further submitted that he had to pay back a loan of PLN MONEY obtained from his brother for renovation of the house . He produced a statement signed by his brother which attested that the applicant had received the loan and had not paid it back as of DATE .

NORP The applicant further submitted that he had a cooperative flat , but that he was in arrears of rent in the amount of FAC CARDINAL,CARDINAL.CARDINAL . In addition , he maintained that his and his wife ’s retail outlet was making losses . He produced their joint tax return which attested that in the DATE tax year he had sustained a loss of PLN CARDINAL,CARDINAL.CARDINAL . Furthermore , the applicant claimed that he was financially supported by his family , in particular his mother who provided him with ORG CARDINAL DATE . He produced a statement from his mother to that effect .

On DATE the ORG upheld the contested decision . It held , in so far as relevant :

“ The appeal should be considered unfounded . In particular , the first - instance court was right when holding that the applicant ’s declaration of means was unreliable . In that declaration of means the applicant did not state , inter alia , that he was conducting a business activity , and he explained that circumstance only in the appeal proceedings . It is also not difficult to notice the differences between the applicant ’s declared income and the value of his assets . It is a well - established principle in the case - law that being an owner of ORG immovable ] property excludes the possibility of granting exemption from court fees ( judgments of ORG of DATE , no . ORG and of DATE , no . C II CARDINAL/CARDINAL ) .

The applicant can pay the court fees for his action since he has considerable assets and given that he has recently , as he claims , invested ORG MONEY in CARDINAL of his properties . What is more , the fact at the origin of the dispute , namely that the property acquired by the applicant from the municipality is in fact smaller than declared in a notarial deed , has been known to the applicant since DATE . Thus , he could have made savings with a view to funding his litigation . ”

Consequently , the applicant was summoned to pay the court fees for proceeding with his claim against the municipality . On DATE the ORG returned the applicant ’s statement of claim since he had not paid the fees in question . The applicant appealed against that decision . However , he was informed that his appeal would not be considered until he had paid ORG in court fees .

NORP The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL-VI ; see also PERSON and GPE v. GPE , no . GPE , § § CARDINAL ) .


CASE OF ZIMMERMANN AND STEINER v. SWITZERLAND

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

ORG Mr. PERSON and Mr. PERSON were born in DATE and DATE respectively . Mr. PERSON is a fitter and resides at ORG ) ; Mr. PERSON is retired and resides at Bargen ( GPE ) .

Until DATE , each of the applicants was the tenant of a flat , Mr. PERSON in GPE and Mr. PERSON in GPE ; these localities are close to ORG airport , which is in the territory of , and operated by , the GPE of GPE .

ORG In DATE , the applicants sought compensation from the GPE of GPE for the damage caused by the noise and air pollution resulting from the operation of the airport ; Mr. PERSON claimed a lump sum of CARDINAL GPE and Mr. PERSON a lump sum of CARDINAL GPE . Having been unable to arrive at a settlement with them , the LOC applied on DATE for assessment proceedings to be opened CARDINAL of LAW of DATE . The case was referred to ORG having jurisdiction in the matter , namely ORG for the Tenth District ; on this occasion it was presided over by a judge of ORG and also comprised an architect , an engineer and the registrar of that court ( sections CARDINAL et seq . of the above - mentioned LAW of DATE on ORG and Order of CARDINAL DATE on LAW ) .

ORG rejected the ORG claims by a decision of DATE , which was served on them on DATE . It recognised that under NORP case - law and legal theory tenants could in principle rely on the law of nuisance ( voisinage ) set out in LAW ( Articles CARDINAL and CARDINAL ) ; however , it considered that the applicants were alleging non - pecuniary damage and not damage to property , whereas only the latter fell to be taken into account under LAW .

ORG On DATE , Mr. PERSON and Mr. PERSON lodged with ORG an administrative - law appeal against ORG decision ( section CARDINAL § CARDINAL of LAW ) . ORG sought the views of ORG on DATE . The latter filed its observations on DATE and the administrative authorities of the GPE of GPE filed theirs on DATE . This concluded the pleadings ( procédure contradictoire ) .

ORG The applicants’ lawyer wrote to ORG on DATE to enquire about the state of the proceedings . It replied , on DATE , that it had not yet been able to deal with the case because of its excessive workload , but hoped to be able to give a decision during DATE . ORG enclosed with its letter a copy of the observations filed by the GPE of GPE .

The applicants reverted to the matter on DATE . In a letter of DATE , the judge acting as rapporteur of the First Public - Law Chamber of ORG informed them that , save for unforeseen circumstances , a decision would be given before the court vacation .

On DATE , the applicants’ lawyer again asked ORG for information about the state of the proceedings . On DATE , the judge acting as rapporteur , whilst expressing his regrets about the delay in examining the case , replied that judgment would be delivered after the court vacation .

ORG The First Public - Law Chamber of ORG dismissed the appeal on DATE .

Its judgment , which was CARDINAL pages in length , began by analysing the situation of residential and agricultural tenants in the event of expropriation . It went on to observe that when - in DATE and DATE respectively - the applicants signed their leases , which were renewable DATE , they were aware of the nuisance to which they would be subjected ; they had not established that it had grown noticeably worse in the meantime ( section CARDINAL of LAW ) .

ORG According to the statistics supplied by the Government , from DATE to DATE the total number of appeals rose from CARDINAL to CARDINAL , that is an increase of PERCENT . The rate of growth was PERCENT for public - law appeals ( CARDINAL against CARDINAL ) and PERCENT for administrative - law appeals ( CARDINAL against CARDINAL ) .

As early as DATE , ORG decided to increase the number of members of ORG from CARDINAL and the number of substitute judges from CARDINAL to CARDINAL ; thereafter LAW had CARDINAL members instead of CARDINAL .

In its report for DATE , published on DATE , ORG drew attention to a build - up in the volume of litigation ; it stated that " despite the increase , in DATE , in the number of judges " , it would " already have to consider at an early date the measures to be taken to deal with the growth in the quantity of cases " .

In DATE , ORG submitted to ORG a number of urgent proposals designed to reduce this excessive workload ; at the same time it suggested that a thorough review be undertaken of the whole organisation of the Federal courts , especially in public- and administrative - law matters , as regards its objectives and its relationship with the administration of the Cantonal courts .

In its message of CARDINAL DATE to ORG , ORG put forward draft texts designed , on the one hand , to modify LAW as regards LAW of ORG and , on the other hand , to amend LAW fixing the number of registrars and secretaries ; it proposed that the number of judges be increased from CARDINAL to CARDINAL and the number of registrars and secretaries from CARDINAL to CARDINAL . In its preliminary observations , ORG stated :

" The cases coming before LAW of ORG constitute a task which , for DATE , has been growing continuously and threatening to become an excessive workload of a permanent nature ; in the long term and having regard to the ORG ’s present organisation , it will not be possible to keep abreast of this task without there being detrimental effects on the quality of the handling of cases and , at DATE , on protection under the law . "

However , ORG itself requested that these reforms be deferred , pending a full - scale revision of LAW ; this revision has not yet been effected ( see paragraph CARDINAL below ) .

ORG In its report for DATE , dated DATE , ORG recorded that there had been no diminution in the growth of its caseload , above all in the area of public and administrative law . It attributed this not only to the extension of the ORG ’s powers in administrative matters but also to the fact that citizens were having increased resort to the guarantees which the law afforded to them vis - à - vis the public authorities .

On DATE , ORG had recommended to the ORG urgent measures similar to those it had sought in DATE . As a result , in DATE ORG took a first series of decisions . It increased the number of Federal judges from CARDINAL to CARDINAL and , with effect from DATE , the number of registrars and secretaries from CARDINAL to CARDINAL . It also decided to split LAW into CARDINAL LAW .

ORG , for its part , adopted on DATE revised Rules of Procedure which also came into force on DATE . Public - law and administrative - law cases are now distributed , according to their subject - matter , amongst the different Divisions of ORG .

ORG These reforms were to prove insufficient . In its management report for DATE , dated CARDINAL DATE , ORG recorded that CARDINAL cases had been brought and CARDINAL disposed of during DATE ; however , it had been necessary to carry over to DATE the examination of CARDINAL cases that is CARDINAL of those registered in DATE . ORG observed that the vast majority ( PERCENT ) of the cases remaining on its list concerned public and administrative law and stated :

" In these areas , if no immediate solution is found , a litigant will in future have to wait for DATE before the ORG rules on his case . In a ORG governed by the rule of law , such a situation is incompatible with the role that should be played by ORG . "

ORG therefore proposed in their message of CARDINAL DATE to ORG that the number of registrars and secretaries be increased from CARDINAL . It should be noted that these are not junior administrative staff but highly - qualified lawyers who play an essential role in the functioning of ORG ( Rule CARDINAL of ORG , dated DATE ) ; indeed they act in a consultative capacity during deliberations ( Rule CARDINAL , second paragraph ) .

ORG In its management report for DATE , dated DATE , ORG pointed out that the situation was still serious . It regretted that the CARDINAL legislative ORG had not yet been able to adopt the Government ’s proposals and added :

" Owing to its overwhelming workload , the ORG is now no longer able , in certain areas , to fulfil its role as guardian of the law , even though for its part it is doing everything possible , as regards internal organisation , to keep abreast of its obligations . "

On DATE , ORG adopted a Decree raising from CARDINAL the posts for registrars and secretaries of ORG and also increasing its administrative staff .

These measures led to some improvement : in its report for DATE , dated CARDINAL DATE , ORG noted that for the first time since DATE it had succeeded in disposing of almost as many cases ( CARDINAL ) as had been registered ( CARDINAL ) ; however , it had been obliged to adjourn CARDINAL . It concluded from this that " for DATE more it will remain burdened by an excessive workload and will therefore not be able to decide cases within a time which would , having regard to their nature , appear reasonable in terms of the LAW and the LAW " .

ORG Quite apart from these decisions intended to cater for the immediate problem , the Federal committee of experts preparing a full - scale revision of LAW of DATE , designed to reduce ORG workload and accelerate its proceedings , completed its work at DATE . Recently , ORG and Police submitted a preliminary draft text to the Government , with a view to setting in motion a consultation procedure which should be terminated in DATE .

ORG has itself taken practical steps aimed at coping with its backlog of pending business . Believing that to process cases in chronological order would give rise to serious injustices , it has , in particular , utilised a system , known as " sorting " , based on the degree of urgency and the human implications of each case .


The applicant is an NORP national , born in DATE and currently residing in GPE .

In an order of DATE , served on the applicant on DATE , ORG informed the applicant that criminal proceedings were instituted against him for kidnapping and rape and that his ORG had requested the investigating judge to prolong the maximum period for the completion of the investigations .

In an order of DATE , filed with the registry on CARDINAL DATE , ORG requested that the applicant be committed for trial . In an order of DATE , the investigating judge scheduled the preliminary hearing for CARDINAL DATE , on which date the case was adjourned by reason that the committal for trial had not been duly served on the accused . In an order of DATE the investigating judge committed the applicant for trial , commencing on DATE before ORG . The case - file was subsequently forwarded to the investigating judge because the committal for trial had not been duly served on the accused .

In an order of CARDINAL DATE , the investigating judge committed the applicant for trial , commencing on DATE before ORG .

The first hearing did not take place because of a ORG strike . On DATE and CARDINAL DATE the case was adjourned at the applicant ’s request .

On DATE the case was postponed by reason that the witnesses summoned to appear were absent . On DATE the case was adjourned until DATE because some witnesses were absent and by reason of the fact that the bench of the court was composed of judges other than those who participated in previous hearings .

A hearing scheduled for DATE did not take place because the lawyers of ORG were on strike . On DATE , the case was adjourned because the witnesses were absent . In a judgement of CARDINAL DATE , filed with the registry on DATE , ORG acquitted the applicant . The decision became final on DATE .

In the meanwhile , on an unspecified date the applicant requested to be enrolled in the list of experts of ORG . However , this request was refused by reason that criminal proceedings were pending against him .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was injured in an accident at work . The applicant ’s employer had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

At an undetermined time in DATE , the judge presiding the case was appointed to ORG and the case was transferred to a new judge .

On DATE and DATE , the applicant requested that a date be set for a hearing .

DATE and DATE , the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

Of the CARDINAL hearings held DATE and DATE , none was adjourned at the request of the applicant .

During the proceedings , the court appointed CARDINAL medical experts .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court dismissed both appeals .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

On DATE the court dismissed the applicant ’s appeal .