Preliminary objection joined to merits;Preliminary objection rejected;Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national , born in DATE and resident in GPE , GPE . At the relevant time , the applicant , who was a handyman , had an affair with a DATE girl , whom he subsequently married .

The applicant was arrested by the police on DATE and detained for interrogation for DATE .

On DATE at TIME he was brought before a magistrate of ORG . The charge was read out by a police inspector . It was alleged in the charge that the applicant had defiled his girlfriend in a public place ( an offence involving sexual acts ) and threatened her family . The applicant pleaded not guilty .

The applicant claims – without this having been commented on by the Government – that his counsel requested his unconditional release invoking his youth and the absence of any reasons for detaining him . The magistrate requested the applicant ’s counsel to lodge an application for bail . The applicant ’s counsel lodged a bail application in which it was stated that the applicant denied all the accusations against him and , in view of his youth and other relevant circumstances , requested to be granted provisional release .

On DATE the acting registrar of ORG communicated the application to the Attorney - General who was given DATE in which to reply .

On DATE the Attorney - General opposed the bail application and the magistrate before whom the applicant had been brought on DATE decided to adjourn the examination of the case .

NORP On DATE a different magistrate , acting as a court of inquiry , after hearing evidence from the alleged victim ( but not from the applicant ) , ordered the applicant ’s release .

On DATE the applicant was found guilty of defilement in a public place . The magistrate , having regard to the absence of violence , the applicant ’s youth , his previous good conduct , the fact that he was engaged to the girl and that most of the sexual acts took place while he was under CARDINAL , discharged the applicant on probation .

On DATE the applicant made a constitutional application to ORG arguing that there had been a violation of LAW in that the magistrate before whom he had appeared DATE before did not have the power to order his release at that stage . Since he was facing charges attracting a maximum sentence of DATE imprisonment , the application for bail had to be communicated to the Attorney - General before a decision could be taken on it . Moreover , the acting registrar had not communicated the application to the Attorney - General on DATE , as the law prescribed , but on DATE .

It was decided that the applicant ’s constitutional application would be heard on DATE .

On DATE the First Hall of ORG , having noted that the applicant had not been notified of the hearing , decided to adjourn the examination of his constitutional application until DATE .

The First Hall pronounced on the applicant ’s constitutional application on DATE . It briefly reviewed the proceedings in the applicant ’s case , noting that on DATE the applicant had lodged a bail application which was communicated to the Attorney - General on DATE ; that the Attorney - General had opposed it within CARDINAL hours ; that on DATE ORG had deferred judgment ; and that on DATE it had decided to release the applicant after the victim had given evidence . On the substance of the application FAC held that the provisions of LAW , which required written notification of the Attorney - General , were inconsistent with the provisions of LAW in failing to provide for the prompt consideration of the application for bail . It also found a breach of LAW in the time taken by the acting registrar to notify the Attorney - General . The court awarded the applicant MONEY by way of compensation .

The respondents in the action – the Commissioner of Police , the acting registrar , the Attorney - General and the Prime Minister – appealed to ORG .

On DATE ORG reversed the decision of FAC . It found that what had actually occurred did not violate the fundamental human rights of the applicant as guaranteed by LAW . It also awarded costs against the applicant .

Article CARDINAL of the Criminal Code provides as follows :

“ Any magistrate who , in a matter within his powers , fails or refuses to attend to a lawful complaint touching an unlawful detention , and any officer of ORG , who , on a similar complaint made to him , fails to prove that he reported the same to his superior authorities within TIME shall , on conviction , be liable to imprisonment for a term from DATE . ”

NORP In its judgment of DATE in PERSON v. Attorney - General ORG rejected the appellant ’s argument that LAW of LAW only provided for a penalty and not for a remedy . According to ORG , if the way in which LAW had been applied were to be examined , the conclusion would be the same as that reached by Chief Justice PERSON . The latter in his academic writings asserted that although habeas corpus is not essentially a part of the ordinary law of GPE , there are in LAW two provisions , namely Articles CARDINAL and CARDINAL which , taken together , may be regarded as providing an equally effective safeguard of personal freedom .

The parties before ORG referred to the following examples of cases in which Article CARDINAL had been invoked .

On DATE the ORG ordered PERSON to be detained for TIME for contempt of court . The detainee appealed under LAW . The Attorney - General , with reference to ORG having invoked LAW , requested ORG to order the acting registrar of the court and the Commissioner of Police to bring ORG before the court and order either of them to set him free at once . ORG ’s appeal had suspensive effect on the execution of the judgment and , as a result , his continued detention was illegal . ORG acceded to the Attorney - General ’s request .

PERSON , later christened PERSON , invoked Article CARDINAL of LAW to challenge his prolonged and indefinite detention further to a removal order . He claimed that his detention , which had started in DATE , had been rendered illegal because of its length and indefinite duration . On DATE ORG ordered that the Attorney - General be notified and , having heard his views , still on DATE , decided to reject the application .

On DATE PERSON relied on LAW to challenge the lawfulness of his prolonged detention pending an investigation into his assets , which had been sequestrated by court order . He claimed that the detention had been unduly prolonged . Moreover , he asserted that he had very little property . On DATE ORG transmitted the case file to the Attorney - General and abstained from further consideration of the application .

On DATE ORG rejected an application for release by PERSON . It observed :

“ As results from the records several applications have been filed , before this ORG and before ORG , so that the person charged may be released , which applications have always been dealt with expeditiously , which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is , where it refers to LAW . ” ( unofficial translation from LANGUAGE )

NORP Moreover , the Government claimed that if it appeared to the magistrate that the arrest was unlawful the magistrate was obliged to order the arrested person ’s release . The magistrate had this obligation by virtue of the provisions of LAW . Every person in GPE was assured that an arrest could not last beyond TIME and the appearance before the magistrate ensured that if the arrested person had any submissions to make , he or she could do so in the presence of a totally independent person and not before a representative of the prosecuting authority . In connection with habeas corpus decisions , under LAW the magistrate did not need to hear the Attorney - General . However , since this was an adversarial procedure where the prosecution was led by the police , the magistrate was expected to hear the police as parties to the case in observance of the principle audi alteram partem and the principle of equality of arms . This was a power quite separate and distinct from the power to grant bail . If the arrest was found by the magistrate to be unlawful , then the magistrate had to order the release of the person arrested and the question of bail did not therefore arise . Only if there was nothing to show that the arrest was unlawful did the question of bail arise .

Article CARDINAL of LAW , read together with LAW , is considered by the Government to provide an effective safeguard of personal freedom equivalent to habeas corpus ( see paragraph CARDINAL above ) . Article CARDINAL addresses the powers and duties of the police in respect of criminal prosecutions and reads as follows :

“ CARDINAL . ( CARDINAL ) Every officer of ORG below the rank of inspector shall , on securing the person arrested , forthwith report the arrest to an officer not below the rank of inspector who , if he finds sufficient grounds for the arrest , shall order the person arrested to be brought before ORG ; otherwise he shall release him .

( CARDINAL ) Where an order is given for the person arrested to be brought before ORG , such order shall be carried into effect without any undue delay and shall in no case be deferred beyond TIME . ”

The powers of ORG in respect of arrested persons who are brought before it under LAW were discussed in extenso in the PERSON case .

On DATE PERSON , who had been arrested on suspicion of having committed a criminal offence punishable with more than CARDINAL years’ imprisonment , was brought before ORG . He claimed that the prosecution at that stage was obliged to convince the magistrate that the arrest was lawful .

This request was dealt with by ORG on DATE in the following manner :

“ The procedure which should be followed by ORG as a ORG is set out in ORG CARDINAL to CARDINAL of LAW . ORG - article ( CARDINAL ) of Article CARDINAL provides how proceedings should start before this ORG : it ‘ shall hear the report of the police officer on oath , shall examine , without oath , the party accused , and shall hear the evidence in support of the ORG . The time - limit for the conclusion of this inquiry is DATE as indicated in Article CARDINAL . In no way is the ORG bound to hear any evidence in support of the report . Moreover , the fact that the prosecuting officers confirm the report on oath is meant to satisfy the ORG that there is a reasonable suspicion for the person charged to be presented under arrest in view of the charges brought against him .

ORG does not find anything to censure in the fact that the report confirmed on oath consists of a confirmation on oath of the charges ; after all , in this context , the word ‘ PERSON means ‘ ORG . This is the procedure followed in this case and it is the correct procedure .

Consequently , the ORG declares that the requests of the person charged are unfounded and therefore rejects them . ” ( unofficial translation from NORP )

Mr PERSON lodged a constitutional application arguing that there had been a breach of LAW . On DATE the First Hall of the Civil Court found that LAW did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether or not that person ’s arrest had been made on a reasonable suspicion . Moreover , the court considered that LAW did not impose on the prosecution any duty , on presenting the arrested person , to adduce evidence that the police had a reasonable suspicion at the time of the arrest . On DATE ORG upheld the decision of FAC .

CARDINAL

“ According to the constant practice of this ORG and according to LAW , this ORG can not consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution .

The ORG , furthermore , can not enter into any question to consider ex officio the release from arrest , but first an application has to be filed which has to be notified to the Attorney - General , and after his reply or failing such a reply after the time set by law , it may decide on release under guarantees .

Therefore what the defence is requesting is outside the functions of this ORG .

Having regard to Articles CARDINAL ) , CARDINAL ) and CARDINAL(CARDINAL ) of LAW , the ORG declares itself not competent to comply with the request and directs the person charged , that if his request for release is to be considered , he has to comply with what is provided in the ORG herementioned . ” ( unofficial translation from NORP )

The Criminal Code contains the following Articles concerning bail :

“ CARDINAL . ( CARDINAL ) Any accused person who is in custody for any crime or contravention may , on application , be granted temporary release from custody , upon giving sufficient security to appear at the proceedings at the appointed time and place .

NORP …

( CARDINAL ) The demand for bail shall be made by an application , a copy whereof shall be communicated to the Attorney - General on DATE , whenever it is made by –

( c ) NORP persons accused of any crime punishable with more than three years’ imprisonment ...

( CARDINAL ) The Attorney - General may , within DATE , by a note , oppose the application , stating the reasons for his opposition .

The amount of the security shall be fixed within the limits established by law , regard being had to the condition of the accused person , the nature and quality of the offence , and the term of the punishment to which it is liable .

( CARDINAL ) ORG for bail is given by the production of a sufficient surety who shall enter into a written recognisance in the sum fixed .

( CARDINAL ) It may also be given , whenever the court shall deem it proper , by the mere deposit of the sum or of an equivalent pledge , or by the mere recognisance of the person accused .

( CARDINAL ) ORG may not ex officio grant bail , unless it is applied for by the person charged or accused .

By virtue of LAW of DATE the ORG became part of the law of GPE .

In its GPE judgment of CARDINAL DATE ( see paragraph DATE above ) ORG held that judges in GPE have to take into consideration the case - law of ORG .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant has been undergoing psychiatric treatment since DATE . He was hospitalised on several occasions in psychiatric hospitals in ORG and ORG .

The applicant lived in PERSON with his mother and handicapped sister . At DATE the applicant ’s brother , who did not live with them , applied to the court submitting that the applicant had been aggressive , had been refusing to take his medication and had been abusing alcohol .

On DATE the applicant was partly deprived of his legal capacity by a court because of his mental disorder , as he had been diagnosed with schizophrenia .

On DATE ORG appointed his brother , Mr PERSON , as his guardian ( kurator ) . Subsequently , the guardian applied to the court to have the order varied and to have the applicant declared totally incapacitated .

In the course of the proceedings , on DATE , an expert psychiatric opinion was prepared which confirmed that the applicant was suffering from schizophrenia and that he had a tendency to abuse alcohol .

On DATE ORG changed its previous decision and decided to declare the applicant totally incapacitated as his mental condition had deteriorated . The applicant ’s brother remained his guardian ( opiekun prawny ) .

On an unspecified date the applicant ’s guardian requested ORG ) to admit the applicant .

On DATE the FAC ( ORG PERSON ) decided to place the applicant in the social care home , as requested by his guardian . In terms of domestic law the admission was voluntary and did not require approval by a court .

DATE and DATE the applicant was in a psychiatric hospital in GPE .

On DATE the applicant was admitted to ORG , where he remained for DATE .

The applicant complained to ORG that he had been placed in the care home against his will and without any medical necessity . On DATE the president of the court informed him that the placement had been in accordance with the law .

On DATE the FAC informed the applicant that his guardian was authorised to place him in the care home .

On DATE ORG rejected the applicant ’s request for proceedings to be initiated to have his legal capacity fully restored . The court considered that the applicant , being legally incapacitated , did not have the authority to lodge such a request , and that his guardian did not support the request .

On DATE the president of ORG explained to the applicant again that due to his total incapacitaty he had not been a party to the proceedings relating to his placement in the care home .

On DATE the president of ORG informed the applicant in a letter that there were no grounds to institute proceedings to restore the applicant ’s legal capacity of the court ’s own motion .

On DATE and CARDINAL DATE FAC again replied to the applicant ’s letters informing him that only his guardian could approve his release from the care home .

On DATE ORG again rejected a request by the applicant to have his legal capacity restored , given his lack of legal standing to initiate such proceedings .

On DATE the president of ORG informed the applicant that any variation of his incapacitation order was governed by Article CARDINAL of the Code of Civil Procedure ( ORG ) . The president further clarified that proceedings to vary the incapacitation order could be instituted by a court of its own motion . In addition , the applicant himself , although lacking legal capacity , could apply to the court for such proceedings to be instituted . According to the president , the latter possibility was based on the interpretation of the law as provided in a commentary to the ORG .

NORP The applicant again asked ORG to quash the legal incapacitation order . On DATE the court rejected the request as inadmissible in law .

On DATE the president of ORG explained to the applicant , in a letter of response to the applicant ’s query , that only his legal guardian could institute proceedings to have his legal incapacity revoked . Alternatively , the applicant could request the court to institute such proceedings of its own motion , but for that to succeed new medical evidence needed to be provided .

On DATE and DATE ORG rejected further requests by the applicant for his legal capacity to be restored , on the ground that the applicant had no legal standing to institute such proceedings .

On DATE the same court rejected a further appeal by the applicant against the decision of CARDINAL DATE . The court noted that following ORG judgment of DATE the domestic law had been amended , and it was now possible for a person lacking legal capacity to institute proceedings to have the incapacitation order set aside . However , the amendments to the ORG had been introduced by the law of CARDINAL DATE , which would enter into force only on DATE . Thus , the applicant ’s request had not been examined .

On DATE the Jarosław ORG informed the applicant that his complaints , in particular against PERSON , who had prepared an expert opinion in DATE in the proceedings concerning his incapacitation , were manifestly ill - founded .

On several occasions in DATE the applicant attempted to institute proceedings to have his incapacitation quashed ; however , all his requests were refused for failure to comply with various procedural requirements , including failure to pay court fees in the amount of MONEY ( ORG , CARDINAL QUANTITY ( ORG ) ) . The applicant appealed against all the decisions and submitted new requests for the incapacitation order to be lifted .

It appears that a later request was successful , as on DATE ORG instituted proceedings to have the applicant ’s legal capacity restored ( file no . Ns CARDINAL ) . The court decided to have an expert opinion prepared and for the applicant to be heard by a judge in the presence of a psychologist and a psychiatrist .

On DATE a judge , with a panel of experts , heard the applicant during a twentyfiveminutelong interview .

On DATE the experts submitted their opinion to the court on the basis of that interview with the applicant . The applicant submitted to the experts that he had been placed in the social care home against his will by his brother DATE previously . In the home he had been independent , had not been drinking alcohol and had been taking his medication . In DATE he had been given long leaves of absence to visit his home , and had travelled alone . He would like to make his own decisions and to vote in elections and not to be obliged to ask his brother for everything . He also mentioned that if his capacity were restored he would prefer to stay in the social care home and to continue visiting his family home on leaves of absence .

The experts concluded that the applicant was suffering from schizophrenia , although for DATE he had not experienced psychotic symptoms or displayed aggressive behaviour . However , without a rigorous therapeutic regime the applicant ’s state of health could worsen . According to the experts the applicant did not consider himself to be a person with a mental disorder , and showed a lack of critical judgment regarding his state of health and his actions . On the basis of the file and the interview with the applicant the experts concluded that his primary intention in applying for restoration of his legal capacity was to leave the social care home . In this context they noted that during the interview the applicant had spontaneously declared that he would prefer to stay in the social care home even if his capacity were restored . Nevertheless , judging from his consistent and extensive correspondence with the courts so far , the experts considered that his sole intention remained “ to live freely in the family home and not in the social care institution ” . The experts concluded that the applicant ’s mental state had improved but not to the extent that would allow him to function independently .

On DATE the experts informed the court that they considered it unnecessary to notify the applicant of any court decisions or applications to court , given his state of health .

On DATE ORG decided to stop sending the applicant any notifications of court decisions and appointed a court officer as a guardian to represent his interests in legal proceedings . The applicant submitted that he had never met this guardian .

On DATE ORG dismissed a request by the applicant to have his legal capacity restored . The decision contains no reasons , as it appears that the applicant ’s guardian had not asked for them . Nor did she lodge an appeal against the decision .

On DATE , at the request of the applicant ’s guardian , he was transferred to ORG .

Article CARDINAL of the Code of Civil Procedure ( “ the ORG ” ) provides as follows :

“ CARDINAL . A court may quash legal incapacitation if the reasons for which it was ordered cease to exist ; the quashing may take place of the court ’s own motion .

Where the mental state of an incapacitated person improves , a court may change the total incapacitation to partial ; where his or her mental state deteriorates , partial incapacitation may be changed to total . ”

On DATE the ORG gave judgment in case no . K CARDINAL/CARDINAL . The judgment was published and entered into force on DATE . The court decided that Article CARDINAL of the ORG was unconstitutional in so far as it deprived an incapacitated person of the right to lodge a request to have a legal incapacitation order quashed or varied . As regards the consequences of the judgment , ORG considered that the most appropriate means of enforcement would be for the legislature to introduce an amendment to LAW . In that connection it welcomed a bill under examination by ORG which included a relevant amendment . However , it emphasised that the judgments of ORG should be enforced not only by the legislature but also by the ordinary courts . In the present case that would mean changing the unconstitutional practice of courts examining cases concerning incapacitation , and allowing proceedings to be brought by individuals deprived of legal capacity . ORG stated :

“ From the date of publication of the judgment in ORG the presumption of the constitutionality of Article CARDINAL , taken together with LAW ORG , in so far as it prevented an incapacitated person from instituting proceedings to quash or vary an incapacitation order , is no longer applicable . ORG wishes to emphasise that that is so in consequence of the judgment of ORG itself , whether or not legislative changes are eventually introduced . It should therefore be considered that the finding by LAW of the unconstitutionality of limiting an incapacitated person ’s procedural rights allows the courts to interpret LAW in accordance with LAW . In the context of this judgment the opinion expressed by ORG resolution of DATE , to the effect that amelioration of the procedural position of incapacitated persons could not be achieved through interpretation of the existing regulations as that would amount to overstepping the boundaries of judicial power , is no longer applicable . Judges , when carrying out their duties , are subject not only to statute but also to the LAW , which is the highest law in GPE and may DATE and in cases of conflict with existing statutes confirmed by ORG shall – be directly applicable . ”

The Law of CARDINAL DATE , which entered into force on DATE , amended the ORG . A new paragraph was added ; Article CARDINAL § CARDINAL provides as follows :

“ An application to have a legal incapacitation order quashed or varied may also be lodged by the incapacitated person . ”

According to the DATE LAW ( ustawa o ochronie zdrowa psychicznego ) the admission to a psychiatric hospital of a person who has a mental disorder or is mentally disabled and is unable to express his or her consent must be approved by a civil court ( section CARDINAL ( CARDINAL ) ) . A court can also decide on the admission of a person who has a mental disorder but who does not consent to treatment in the hospital . A guardian can express consent to admit an adult who is totally incapacitated , but the latter must agree too , unless he is unable to express agreement . In any event , and in particular in the event of disagreement between the patient and the guardian , the question of admission is decided or confirmed by a court ( section CARDINAL ) . Admission to the hospital is preceded by a psychiatric examination .

Admission to a social care home is governed by section CARDINAL et seq . of the LAW . It provides that a person who , on account of mental disorder or mental disability , is unable to take care of himself or herself and can not be taken care of by somebody else , and does not need hospital treatment , may be placed in a social care home with his or her consent or the consent of his or her guardian . Only if the person concerned or his or her guardian does not consent to the placement must the decision be taken by a court .

According to the Ordinance of the Minister of ORG of CARDINAL DATE , a regional court must supervise the legality of the admission and continuing residence of individuals confined to psychiatric hospitals and social care homes ( section CARDINAL ) . However , an obligation to carry out periodic reviews , DATE , of the need for continuing residence applies only to those admitted to psychiatric hospitals ( section CARDINAL ( CARDINAL ) ) .

The regulations on the functioning of social care homes were also governed by the DATE LAW ( LANGUAGE o pomocy społecznej ) , replaced by LAW . According to the relevant regulations , the costs of the person ’s stay in a social care home must not exceed PERCENT of his or her income or pension . Both Acts provided that placement of a totally incapacitated person in a social care home may only be done with his or her guardian ’s consent .

The relevant international instruments and conclusions on the comparative law are set out in the judgment of ORG v. GPE [ ORG ] , no . CARDINAL , § § DATE , CARDINAL and CARDINAL , ECHR DATE .


The applicant , ORG , is a company formed under NORP law whose registered office is in GPE . It was represented before the ORG by PERSON , a member of ORG . The Government were represented by their Agent , PERSON , Director of ORG at ORG .

The applicant company provided a data - communications service that was accessible by a dedicated terminal ( ORG ) , under an agreement with ORG . The service could be accessed by typing in the code “ CARDINAL ALINE ” . It provided messaging and a mailbox system enabling online users to communicate with one another ; users would choose a pseudonym ( referred to as a “ pseudo ” ) and could also supply a brief description of themselves ( “ CV ” ) for consultation by others .

The public prosecutor 's office suspected that the service was being used by prostitutes to contact potential clients and ordered a preliminary investigation . The police reported on DATE that in the course of their inquiries officers had accessed CARDINAL ALINE using the pseudo “ AAA ” . After consulting the CVs of “ LOC massage ” , “ PERSON DATE ” , “ PERSON ” , “ Spanker ” , “ Bunny rabbit ” , “ GPE DATE ” , “ YW black ORG ] ” , “ Almond eyes ” , “ Student ” , “ PERSON the First ” , “ LOC and “ Male slave ” ( the report did not state whether the CVs related to prostitution ) they sent the following message to some of the correspondents : “ terms ” . “ PERSON massage ” replied : “ My rate is MONEY for a ORG with sublime massage of the entire body GPE PERSON for further info your tel ? thank you or write to me at PERSON massage ” . “ Spanker ” replied : “ CARDINAL ” . “ GPE DATE ” replied : “ CARDINAL ” . In response to a second message enquiring “ How much ? ” “ YW black ORG ] ” , replied : “ tel dst CARDINAL ” .

On DATE ORG lodged an application with the President of the GPE tribunal de grande instance for the appointment of a representative ad litem ( mandataire de justice ) to represent the company in criminal proceedings ( Article CARDINAL of the Code of Criminal Procedure ) . The application was worded as follows :

“ ORG ... informs the court of the following :

Eurofinacom PERSON ... operates a data - communications service called ' DATE ALINE ' .

Inquiries into this data - communications service have revealed that it acts as an intermediary between persons engaged in prostitution and their potential clients .

This constitutes the offence of living on immoral earnings with the aggravating circumstance that it was committed against several people , contrary to Articles CARDINAL - CARDINAL , CARDINAL - CARDINAL ( CARDINAL ) and CARDINAL - CARDINAL ( CARDINAL ) of LAW .

Mr Valéry Sourieau , the manager of Eurofinacom PERSON has therefore been summoned by the public prosecutor 's office under the direct committal procedure .

Eurofinacom ... has for DATE achieved a DATE turnover of MONEY from ' DATE alone .

It would therefore appear that the offence of living on immoral earnings of which Mr FAC stands accused in his capacity as the de jure representative was committed on behalf of ORG .

Criminal proceedings may therefore be brought against the company Eurofinacom in accordance with LAW .

However , since the company 's de jure representative is himself charged with the same offence , a representative ad litem will need to be appointed to represent Eurofinacom .

For this reason , the President of the GPE tribunal de grande instance is asked to make an order under ORG CARDINAL - CARDINAL and CARDINAL of LAW and LAW of LAW appointing a representative ad litem to represent the Eurofinacom company in criminal proceedings in which it will be charged with :

Having in GPE and on the national territory in DATE , in particular on DATE , and CARDINAL , DATE and DATE , acted as an intermediary between QUANTITY people , CARDINAL of whom provided services as a prostitute used or paid for by the other , by making available to those concerned a data - communications service called ' CARDINAL ALINE ' which it provided , with the [ aggravating ] circumstance that it was committed against several people ,

contrary to Articles CARDINAL - CARDINAL , CARDINAL - CARDINAL ( CARDINAL ) , CARDINAL - CARDINAL ( CARDINAL ) and CARDINAL of LAW . ”

By an order of DATE , the President of the GPE tribunal de grande instance appointed PERSON , judicial administrator , to represent Eurofinacom PERSON in criminal proceedings instituted on a summons by the public prosecutor 's office under the direct committal procedure . ”

On DATE and CARDINAL DATE the public prosecutor 's office summoned the applicant company and its manager , PERSON , to appear under the direct committal procedure at a hearing before ORG of the GPE tribunal de grande instance ( “ the GPE Criminal Court ” ) on DATE . They were accused of having , from DATE to DATE , acted as an intermediary between QUANTITY people , CARDINAL of whom provided services as a prostitute used or paid for by the other , by making available to those concerned a data - communications service CARDINAL ALINE which it provided with the [ aggravating ] circumstance that it was committed against several people .

On DATE the applicant company 's shareholders resolved at an ordinary general meeting convened on special notice to appoint Mr PERSON to represent it in the proceedings and to instruct a lawyer . Mr PERSON informed ORG of this in a letter of DATE .

At the hearing on DATE counsel for the applicant company informed ORG that , pursuant to LAW of LAW , the company had appointed PERSON to represent it and had duly informed the court . He submitted that the appointment of a representative ad litem to represent the company was “ superfluous ” and invited the court to accept Mr PERSON as the sole representative . Noting that the representative ad litem 's appointment under LAW of LAW was “ prior in time and valid ” , ORG found that the company was lawfully represented by PERSON and that it was PERSON PERSON 's appointment that was superfluous .

The applicant company was represented in court by a lawyer chosen by PERSON .

In a judgment of DATE ORG found Mr ORG and the applicant company guilty of the following offences : “ living on immoral earnings : acting as an intermediary between a person engaged in prostitution and the person employing him or her ” and “ living on immoral earnings aggravated by the fact that the offence was committed against several people ” . It imposed a fine of MONEY ( ORG ) on PERSON and ORG CARDINAL on the applicant company and ordered them jointly to pay damages of ORG CARDINAL to an association that had joined the proceedings as a civil party . It stated in its judgment :

The investigation and in particular the photographs of the connection to the ORG server CARDINAL - CARDINAL ALINE and the pages that followed show that , although it is stated that ' pseudos and CVs that are accessible to all users are constantly monitored and those containing a telephone number or messages relating to pornography , prostitution or the incitement of minors to immorality or illegal practices will be immediately disconnected ' , prostitutes are nevertheless put directly in touch with anyone wishing to reply to the messages .

The subscribers with the telephone numbers which appeared on the CARDINAL - CARDINAL ALINE server were traced and interviewed by police officers .

[ ORG ] stated that she had been engaged in prostitution for DATE under the pseudonym ' EVA CARDINAL ' through the intermediary of CARDINAL ALINE and posted the message : ' Pretty blonde DATE , naughty underwear , QUANTITY CARDINAL bust ' . She said that she had never been disconnected from the server and had noticed that pseudos such as ' ORG ' were not disconnected either .

[ ORG ] , whose pseudonym is ORG , stated that she posted the same type of message with a view to prostitution and that while she was not permitted to say in her ORG that she received customers , ' this was nevertheless understood , as people are not stupid ' .

[ N.B. ] , whose pseudonym is PERSON , was working as a prostitute in avenue PERSON when she was told of the ORG by prostitute friends who said that it could help her to find clients from the comfort of her home . She stated that she had then learnt how to go online , to engage in conversation on CARDINAL ALINE and to provide a description of herself : ' brunette , MONEY DATE , long hair , bust CARDINAL B , CARDINAL waist and QUANTITY . She said that it was ' more comfortable than being on the game in the street ' .

PERSON ( alias PERSON or PERSON ) , [ ORG ] ( alias PERSON or PERSON ) , [ GPE ] , [ J.D. ] ( alias PERSON , PERSON or JOY ) referred to their financial difficulties and their desire to earn money by meeting men through the server . They said that they engaged in occasional prostitution .

Police officers from ORG discovered a number of wholly unambiguous messages on CARDINAL ALINE :

' CV of PERSON massage ' : rate MONEY ;

' CV of Bunny rabbit ' : brunette – long hair , QUANTITY , QUANTITY , CARDINAL bust , DATE , cuddly , mischievous , for moments of togetherness ;

' CV of Spanker ' : exquisite and arousing , spanking for Mr Motivated , CARDINAL bust , tall , brunette , DATE , NORP ;

' CV of ORG ' very pretty NORP redhead DATE , shaven , sensual and refined , very sexy ;

' CV of male slave ' : DATE genuine male slave trained by mistresses and CPL very good practice of submission either alone or with other male or female submissives for an evening or for sessions ; genuine , not fantasist GPE or GPE area .

All these connections indicate that the CVs and messages are manifestly prostitution - related .

Persons wishing to offer their services as prostitutes use a pseudonym , post a CV on the CARDINAL - CARDINAL ALINE network , open a data - communications mail account in which they receive messages to which they respond with a rate and telephone number and arrange meetings with interested clients .

Evidence of this modus operandi exists in the form of photographs taken by police officers .

Further , a review of previous cases handled by ORG has revealed that both male and female prostitutes have said that they used the CARDINAL ALINE server to offer their services as prostitutes .

In sum , there is ample proof that the CARDINAL - CARDINAL ALINE server was used in connection with prostitution .

At the hearing FAC did not dispute that he was responsible for monitoring the messaging service to ensure the proper functioning of the service ; he said that he supervised the teams of monitors and the pseudos registered on the server and had no hesitation in disconnecting non - compliant CVs . He said in the course of the investigation that he was no fool and was aware that many of the exchanges that took place on QUANTITY involved men and women offering services as prostitutes .

The defendants point to precautionary measures that had been taken , essentially monitoring , as evidence of their good faith and of the lack of mens rea to commit the offence charged .

However , that argument does not stand up to examination when the facts uncovered by the investigation are considered . No warning was issued or account disconnected in response to the simultaneous posting of numerous and , for the most part , wholly unambiguous pseudos , to the detailed CVs indicating measurements and the services on offer , or to the replies to messages setting out rates and telephone numbers .

On the contrary , these facilities enabled clients to find and speak to prostitutes , who in this instance were women .

The second argument advanced by the defendants is that it was impossible for them to intervene directly in the private sphere , the online discussions , without infringing the right to freedom to communicate in private .

... Eurofinacom PERSON , the service provider , undertook to ensure constant monitoring of the service in accordance with LAW and LAW [ of its ] agreement . Appendix CARDINAL contains a reminder of the main legislative provisions applicable to data communications including those concerning living on immoral earnings .

The interactive data - communications service CARDINAL - CARDINAL ALINE is governed by PERSON no . DATE of DATE , section CARDINAL of which requires prior notice to be given to ORG of an intention to provide audiovisual - communication services .

The circular issued on CARDINAL DATE pursuant to the said section CARDINAL adopts the definition of the notion of audiovisual - communication service .

Thus , audiovisual communication means a message intended for either the public generally or sections of the public , that is to say a group of undifferentiated people whose membership does not depend on considerations based on personal attributes .

Private correspondence means a message solely intended for CARDINAL or more specific , identifiable individuals or legal entities .

The court notes that in the present case prostitutes use the CARDINAL - CARDINAL ALINE service to make non - exclusive offers open to anyone wishing to respond who is then given a rate which is uniform at this stage of the exchange .

The exchange or discussion on the server does not acquire the character of private correspondence , owing to the fact that the advertisements and rates are available to all users of the service .

On the other hand , the finalisation of the agreement leads to a private telephone conversation between specific individuals which is covered by the rules of confidentiality .

In these circumstances , it is established that FAC and Eurofinacom PERSON allowed advertisements to be published without any proper supervision .

A prostitution service involving a number of people developed through the intermediary of the CARDINAL ALINE service .

It follows that all the constituent elements of the offence of living on immoral earnings with aggravating circumstances are present and that the charges against the defendants have been made out .

Following a request dated DATE by the person the applicant company had named as its representative , the President of ORG directed on DATE that PERSON appointment under the order of DATE would cease , as “ Eurofinacom is now duly represented in the criminal proceedings by PERSON PERSON ” .

The judgment of DATE was upheld in its entirety by ORG in a judgment of DATE . The applicant company was represented in ORG by a lawyer instructed by Mr PERSON .

ORG dismissed an initial objection by the applicant company that the proceedings were a nullity owing to Mr PERSON 's exclusion from the proceedings in ORG . ORG found that , since ORG had duly heard the submissions and arguments of counsel chosen by the judicial administrator , the applicant company had been properly represented and had had a fair trial at first instance . An objection by PERSON that the interception of private communications by the investigators was null and void was dismissed on the grounds that it had not been raised at first instance and could not be raised for the first time on appeal . On the merits , ORG held , inter alia :

Mr PERSON 's and ORG 's guilt ... is established by the fact that the relevant messages related to prostitution ... and by the evidence of several female prostitutes who confirmed that they frequently used the ' CARDINAL ALINE ' server , as it was a well - known and habitual part of the prostitution network . They even said that it enabled them to avoid soliciting on the street and to select clients more easily .

Mr PERSON 's affirmation that a team working TIME a day and DATE a week was assigned to monitor messages in order to eliminate those which were contra bonos mores is not accepted . Such affirmations are in total contradiction with the results of the investigation .

Inquiries made by the police services who accessed the server on DATE , and CARDINAL , DATE and DATE confirmed that none of the large number of prostitution - related messages were removed . Similarly , none of the prostitutes who used the server said in evidence that they had been ' disconnected ' after posting their advertisements and some ... even categorically stated that they had not been . Accordingly , Mr ORG has not established good faith on this point .

Likewise , it is not possible to accept Mr ORG 's argument that he was prevented from directly intervening in online discussions because they were private communications . Referring to the impugned judgment , ORG finds , like the court below , that the ' DATE ALINE ' server did not constitute a messaging service intended for CARDINAL or more specific , identifiable persons but a means of audiovisual communication offered to a non - specific and unidentifiable public . The server was accordingly governed by LAW , and in particular the provisions relating to the dignity of the human being and the preservation of law and order .

In particular , it was established that the police accessed the server by following the standard procedure available to the public at large and that the connection ended when the CARDINAL correspondents decided to transform the non - specific audiovisual communication into a personalised exchange on a private telephone line . Accordingly , despite the defendant 's denials , it is established that Mr PERSON knowingly supported an extensive prostitution network from which he made considerable profit .

There is also no doubt that there was a community of interest between Mr ORG , ORG 's manager , and the company he ran , as the investigation revealed that ORG 's activity was in fact the alleged criminal activity and that it achieved an estimated turnover DATE of MONEY .

The applicant company and Mr PERSON appealed to ORG . They submitted , firstly , that there had been a violation of LAW in that the trial court had ruled that the applicant company was represented in the proceedings by the representative ad litem appointed by the President of ORG instead of the person it had appointed to that end . Relying , inter alia , on the same provision , they argued , secondly , that the alleged offence had been “ the result of provocation and subterfuge ” . Thirdly , they submitted that the offence of living on immoral earnings with aggravating circumstances had not , in the absence of a positive act , been made out in law , as a failure to act or acquiescence did not suffice .

ORG ) dismissed the appeal in a judgment of DATE . With regard to the first ground of appeal , it held :

In dismissing ORG 's application to set aside the proceedings at first instance on the grounds that it should not have been represented by PERSON , ORG noted that Article CARDINAL of the Code of Criminal Procedure had been complied with and that the lawyer chosen by the company 's representative had been able to present his observations and arguments at the hearing .

In so doing , ORG , which found that the company had been properly represented and assisted in ORG , applied the law correctly , notwithstanding the superfluous reasoning criticised in the second limb of the ground of appeal .

The first subparagraph of Article CARDINAL of the Code of Criminal Procedure provides that when criminal proceedings are brought against a legal entity and its de jure representative is also prosecuted for the same or a related offence , a representative ad litem must be appointed to represent the legal entity in the criminal proceedings in accordance with the final subparagraph of that Article .

The second ground of appeal was dismissed for the following reasons :

“ According to the judgment of ORG and the judgment of the court below which it upheld , the investigation essentially took the form of questions to persons engaged in prostitution who used the ORG server to find clients and the retrieval by the police officers themselves of information from the data communications network .

ORG declared ORG objection that evidence obtained by the police through the interception of data communications should be excluded under ORG CARDINAL et seq . of LAW on the grounds that that provision had not been pleaded in ORG .

In so doing , ORG correctly applied the final subparagraph of LAW of LAW .

Lastly , ORG dismissed the third ground of appeal , holding that that it merely contestedthat had been the subject of adversarial argument , all of which were within the unfettered discretion of the courts below .

Article CARDINAL - CARDINAL of LAW lays down that legal entities may be held criminally liable for offences committed on their behalf by their organs or representatives . Such a finding will not preclude criminal liability on the part of individuals who commit the offence or act as accomplices .

As regards the representation of a legal entity that is a defendant in criminal proceedings , Article CARDINAL of the Code of Criminal Procedure provides :

“ The criminal proceedings shall be instituted against the legal entity acting through its de jure representative at the time the prosecution was brought . The de jure representative shall represent the legal entity at all stages of the proceedings . However , when criminal proceedings are brought against the de jure representative for the same or related offences , he or she may make an application to the president of the tribunal de grande instance for the appointment of a representative ad litem to represent the legal entity .

The legal entity may also be represented by any person who , in accordance with law or the memorandum and articles of association , holds a delegated power to that end .

A person who has been assigned the task of representing the legal entity under the second subparagraph shall inform the court before which the proceedings are pending of his or her identity by registered letter with recorded delivery .

The same rule shall also apply if there is a change of de jure representative while the proceedings are pending .

If there is no one qualified to represent the legal entity in accordance with the conditions set out in this LAW , the president of the tribunal de grande instance shall , on an application by the public prosecutor 's office , the investigating judge or the civil party , appoint a representative ad litem to represent it . ”

In a judgment of DATE ( Bulletin criminel no . CARDINAL ) , ORG held : “ By virtue of the first subparagraph of Article CARDINAL of the Code of Criminal Procedure , if criminal proceedings have been instituted against a legal entity and its de jure representative or the person to whom power has been delegated under subparagraph CARDINAL of the aforementioned provision has also been prosecuted for the same or related offences , a representative ad litem must be appointed to represent the legal entity in the criminal proceedings , in accordance with the procedure set out in the final subparagraph ” .

Article CARDINAL - CARDINAL of the Criminal Code provides :

“ Living on immoral earnings shall mean using any means whatsoever :

CARDINAL To aid or assist another to engage in prostitution or to protect a person so engaged ;

CARDINAL To profit from or share the proceeds of another 's engagement in prostitution , or to receive an allowance from a person who habitually engages in prostitution ;

CARDINAL To recruit or procure a person for prostitution , to lead a person into prostitution or to exert pressure to make a person engage in prostitution or continue to do so .

Anyone living on immoral earnings shall be liable to DATE imprisonment and a fine of CARDINAL . ”

Article CARDINAL - CARDINAL , subparagraph CARDINAL , of LAW lays down that “ anyone who by any means whatsoever ... acts as an intermediary between CARDINAL persons , one of whom engages in prostitution and the other of whom uses or pays for his or her services ” shall be assimilated to a person living on immoral earnings and liable to the penalties laid down by Article CARDINAL - CARDINAL .

Article CARDINAL - CARDINAL , subparagraph CARDINAL , of LAW adds that the maximum sentence shall be DATE imprisonment and a fine of MONEY for anyone living on the immoral earnings where the offence is committed against several people . Law no . CARDINAL of DATE ( published in ORG of DATE ) inserted a tenth subparagraph which provides that the same maximum sentence shall apply when the offence of living on immoral earnings has been committed “ with the help of a telecommunications network to disseminate messages to a non - specific public ” .


The applicant is a NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by PERSON , barrister - at - law , instructed by PERSON , ORG , GPE . The respondent Government are represented by their Agent , PERSON , ORG , GPE .

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

The applicant is a heavy gambler on horses and often held large sums of money in cash for this purpose . Apart from his winnings , the applicant also inherited a large sum in cash from his father in DATE and in DATE realised a substantial profit on the sale of a house which he bought and had refurbished .

The applicant states that he has never been convicted of any drugs - related offences and maintains that he was wrongly prosecuted and convicted in relation to the handling of cash stolen from a post office in DATE . He was given a DATE prison sentence and was released in DATE .

In DATE , and in order to avoid off - course betting duty , the applicant decided to open an account under a pseudonym with a specialist bookmaker who conducted business inside racetracks . The applicant on occasions attended race meetings carrying large sums of money . According to the applicant , in DATE he had , mainly through his winnings , over GBP CARDINAL available to him for betting .

The applicant also used his bookmaker ’s account for placing bets over the telephone . Such bets were deemed to be off - course bets and were thus subject to tax . Having ascertained that he could avoid tax on off - course betting by gambling off - shore as a non - resident , the applicant decided to buy property in GPE and contacted a lawyer in GPE to this end .

The applicant arranged a meeting with the lawyer in GPE for DATE . After the meeting the applicant intended to go to a race meeting in GPE .

Having discovered that his partner ’s brother , H , was intending to take DATE in GPE , and being nervous about taking the money himself , the applicant enlisted H ’s help in taking GBP CARDINAL to GPE as a favour . According to the applicant , he wanted to look at properties in southern GPE in the price range ORG MONEY and required the rest for the race meeting in GPE . The applicant arranged to meet H in GPE .

On DATE H , who was driving a hired car , was stopped at GPE by a ORG and Excise Officer . When asked how much cash he was carrying , H replied GBP CARDINAL . A subsequent search of the boot of the car revealed GBP CARDINAL in a green hold - all . H stated that the sum in question belonged to a friend who was meeting him in GPE .

H was subsequently questioned about the money by ORG and Excise officials . H stated that the money belonged to the applicant , that he was taking it out of the country for the applicant , that the latter wanted to use it to buy an apartment in GPE and that he was travelling to GPE and GPE .

The money seized was sent for forensic testing and the sum of GBP CARDINAL was deposited with ORG on DATE .

The applicant contacted the ORG and Excise authorities to reclaim the money and attended voluntarily for interview on DATE together with his solicitor . On that occasion the applicant was told that he was not under arrest . He answered the questions put to him and gave permission to examine his bank accounts as well as his account with his bookmaker .

An order for the detention of the applicant ’s money was granted by ORG on DATE on application of the ORG and Excise authorities pursuant to section ORG ) of LAW DATE . A further order was made on DATE .

In DATE the ORG and Excise authorities made an application under section CARDINAL ) of LAW DATE for the forfeiture of GBP CARDINAL seized from the applicant on the grounds that its officers believed that the money was directly or indirectly the proceeds of drugs trafficking and/or was intended for use in drug trafficking . On CARDINAL and DATE ORG made an order for the confiscation of the sum in question and ordered the applicant to pay the costs of the hearing .

The applicant ’s appeal was heard before GPE ORG on CARDINAL and DATE . The court upheld the forfeiture order and made an order that the applicant pay a further amount towards costs .

In the applicant ’s opinion , ORG did not find that he or H were going to use the money to purchase drugs but that it was satisfied , on the civil standard of proof , that some unidentified third party was going to use it for this purpose . The Government draw attention to their view that ORG did find that the cash was intended for use in drug trafficking . According to the Government , ORG noted that the money was contaminated to a limited extent by cannabinoids and that H had with him in the hire car a plan showing a route through GPE to GPE . The Government further observe that the cash seized included a large proportion of NORP notes , which are typically used by drug - traffickers to finance drug deals conducted abroad , and that the south coast of GPE is known to ORG officials as the source of a large number of consignments of drugs destined for GPE . For the Government , and having regard to the strong circumstantial evidence , ORG found the explanations given by the applicant and H as to why cash was being carried by H to GPE wholly unbelievable . Thus , ORG concluded :

“ We do find it more probable than not that this money was to be used for trafficking . ”

The applicant observes that ORG would appear not to have commented on precisely who they believed would be responsible for using the money for drug purchase .

The Government also point out that , as regards the applicant ’s claim that he had over GBP CARDINAL available to him for gambling in DATE ( see above ) , the only documentary evidence produced by him in relation to his finances showed that he had lost MONEY CARDINAL DATE , a further GBP CARDINAL,CARDINAL in DATE , and a further GBP CARDINAL in DATE . The Government state that the applicant has produced no evidence at all to substantiate his claim that he made substantial winnings on cash bets since DATE . According to the Government , at the time of the forfeiture of his cash the applicant was receiving social security benefits of approximately GBP DATE .

Section CARDINAL(CARDINAL ) of LAW DATE provides as follows :

“ A customs officer or constable may seize and , in accordance with this section , detain any cash which is being imported into or exported from GPE if -

( a ) its amount is not less than the prescribed sum - and

( b ) he has reasonable grounds for suspecting that it directly or indirectly represents any person ’s proceeds of drug trafficking , or is intended by any person for use in drug trafficking . ”

The term “ exported ” has an extended meaning and includes cash “ being brought to any place in GPE for the purpose of being exported ” ( section CARDINAL(CARDINAL ) ) . The prescribed sum referred to in section CARDINAL(CARDINAL)(a ) is GBP CARDINAL .

Section CARDINAL(CARDINAL ) of the same LAW states :

“ Cash seized by virtue of this section shall not be detained for TIME unless its continued detention is authorised by an order made by a justice of the peace ... ; and no such order shall be made unless the justice ... is satisfied that

( a ) that there are reasonable grounds for the suspicion mentioned in subsection ( CARDINAL ) above ; and

( b ) that continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to the institution ( whether in GPE or elsewhere ) of criminal proceedings against any person for an offence with which the cash is connected . ”

The order can not endure DATE ( section CARDINAL(CARDINAL ) ) , but further orders can be made by the court provided the total period of detention does not exceed DATE from DATE first order ( section FAC ) ) . These powers may be used even if no criminal proceedings have been instituted ( or even contemplated ) against any person for a drug trafficking offence in connection with the money seized .

The person from whom the cash was seized , or any person on whose behalf the cash was being exported or imported , may apply to the GPE court for the money to be released on the basis that there are no reasonable grounds for suspecting that it directly or indirectly represents any ORG proceeds of drugs trafficking or is intended by any person for use in drug trafficking ( sections CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) . Where an application is made to forfeit the money , the cash seized and detained is not to be released until the relevant proceedings have been concluded ( and so overrides the DATE restriction set out in section QUANTITY ) ) .

Section CARDINAL of the LAW provides :

“ ( CARDINAL ) A GPE court ... may order the forfeiture of any cash which has been seized under section CARDINAL of this Act if satisfied , on an application made while the cash is detained under that section , that the cash directly or indirectly represents any person ’s proceeds of drug trafficking , or is intended by any person for use in drug trafficking .

( CARDINAL ) The standard of proof in proceedings on an application under this section shall be that applicable to civil proceedings ; and an order may be made under this section whether or not proceedings are brought against any person for an offence with which the cash in question is connected . ”

Direct evidence is not required to establish that cash seized pursuant to section CARDINAL of the CARDINAL Act is the proceeds of drug trafficking or is intended for use in drug trafficking . The court may draw inferences from circumstantial evidence , so long as the evidence is sufficient to establish the case to the requisite ( civil ) standard of proof , namely the balance of probabilities . According to domestic case - law , this is a flexible test which is to be adapted to meet the nature and seriousness of the allegations made ( see Re H [ CARDINAL ] PERSON , per Lord PERSON ) .

The legal burden of proof rests on the relevant authorities seeking a detention or forfeiture order .

An appeal against the making of a forfeiture order by a GPE court lies to ORG . Appeals to ORG are by way of rehearing . A party to proceedings may apply to a GPE court for an order permitting the use of cash which has been seized and detained to pay for legal representation on appeal before ORG ( section CARDINAL ) ) .

A party to the proceedings who wishes to appeal the decision of ORG to make a forfeiture order may apply to ORG by way of case stated . ORG on an appeal by way of case stated may overturn the decision of ORG if it is erroneous in law or in excess of jurisdiction ( section CARDINAL ) of LAW DATE ) . A party to the proceedings may also apply to ORG by way of judicial review to have the decision of ORG quashed on established public law grounds including error of law , procedural unfairness or irrationality ( section CARDINAL of LAW DATE ) . A further appeal lies ( with the permission of the court ) from ORG to ORG and then to ORG .


The applicant is a NORP national . He was born in DATE and lives in FAC . He was represented before the ORG by Mr PERSON , of FAC .

On DATE the applicant was stopped by police for an identity check and taken to the police station where he claims to have been insulted and assaulted . On being released , he went to hospital where he was kept in after being examined . At TIME a doctor came into his room saying that he was a forensic medical examiner and had come to examine the applicant at the public prosecutor ’s request . The applicant refused to submit to the examination and left the hospital to go to a private clinic .

On DATE the applicant lodged a criminal complaint with the investigating judge alleging assault in the course of his duties by a person exercising public authority , and trespass by the forensic medical examiner . He sought leave to join the proceedings as a civil party seeking damages . On DATE the investigating judge issued an order finding that there was no case to answer . The applicant appealed . ORG upheld the order in a judgment of CARDINAL DATE . The applicant appealed on points of law against that judgment . In a judgment of DATE , ORG declared the appeal inadmissible on the ground that the applicant had not made out “ any complaint that a civil party may lodge under LAW in support of an appeal against the decision of ORG in the absence of an appeal by the prosecution ” .

LAW

“ A civil party shall be barred from lodging an appeal on points of law against judgments of ORG unless the prosecution lodges an appeal .

However , an appeal on points of law by the civil party above shall be admissible in the following circumstances :

where ORG has stated in the judgment that there are no grounds for an investigation ;

NORP where ORG has declared the civil party ’s action inadmissible ;

where ORG has upheld an objection terminating the criminal proceedings ;

where ORG has declared , of its own motion , or on an objection by the parties , that it has no jurisdiction ;

where ORG has omitted to rule on a charge ;

where the judgment does not formally satisfy the conditions essential for its legal validity ;

where a breach of personal rights as defined in ORG CARDINAL - CARDINAL to CARDINAL - CARDINAL and CARDINAL - CARDINAL to CARDINAL of LAW has been alleged . ”


CASE OF TEBIETI MÜHAFIZE CEMIYYETI AND ISRAFILOV v. AZERBAIJAN

Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The ORG is a non - profit - making non - governmental organisation ( NGO ) , now dissolved , which was active DATE . The application was lodged by its former Chairman , PERSON , who was born in DATE and lives in GPE .

The ORG was registered by ORG on DATE and acquired the status of a legal entity .

NORP Clause CARDINAL of the ORG ’s Charter defined it as an independent , charitable public organisation with voluntary membership , conducting its activities within the framework of the laws of GPE on public associations , other applicable laws and its own LAW .

According to clause CARDINAL of the LAW , the main objects of the ORG were :

“ ... in the circumstances of the present - day environmental crisis , to develop the environmental culture and awareness of the various strata of the country ’s population , to organise a public movement for a clean environment in GPE , to give impetus to the process of effective resolution of environmental protection problems , and to strive permanently to promote the measures necessary to create a healthier environment . ”

According to the LAW , the ORG ’s governing bodies consisted of the ORG ( the general assembly of members ) , ORG ( the management board elected by the general assembly for a fiveyear term ) , ORG ( a body of internal control elected by the general assembly for a DATE term ) , and various local bodies . Clause CARDINAL of the LAW provided that the ORG , as the general assembly of members , was the ORG ’s supreme governing body and would convene once DATE .

Since the date of its establishment and ORG registration , and until DATE , the ORG had not convened a general assembly of its members .

It appears that , on DATE , DATE after the ORG ’s State registration , ORG sent a letter to the ORG , noting that the latter had committed certain breaches of the domestic law and the ORG ’s own LAW . The exact content of that letter is not clear from the materials available in the case file .

On DATE ORG commenced an inspection of the ORG ’s activities .

On DATE the ORG issued a warning to the ORG in accordance with section CARDINAL of the PERSON on nongovernmental organisations ( public associations and foundations ) of CARDINAL June CARDINAL ) , applicable at the material time ( “ the NGO Act ” ) . The ORG stated that the ORG ’s activities did not comply with the requirements of its own LAW and the domestic law . It was noted that a general assembly of the ORG ’s members had not been convened within the DATE period specified in its own LAW . Moreover , in any event , this provision of the LAW was itself incompatible with the domestic law , as section CARDINAL.CARDINAL of LAW required that the supreme governing body of a public association – the general assembly of members – was to be convened at least once DATE . ORG requested that , within DATE , the ORG take measures to remedy the above - mentioned breach and inform ORG measures taken .

NORP In reply , PERSON informed the Ministry that , in fact , a general assembly of members had taken place on DATE . It appears that , among other things , the ORG ’s general assembly decided to establish a working group in order to bring the Association ’s Charter into conformity with the current legislation .

Having examined the documents relating to the general assembly meeting of CARDINAL DATE , on DATE ORG issued a new warning to the ORG ( which constituted a second warning issued in DATE ) . It noted that the general assembly of CARDINAL DATE had been convened in violation of numerous provisions of the domestic law . ORG noted , inter alia , that not all members of the ORG had been properly informed about the general assembly and thus had been unable to participate in it , and that the ORG ’s local branches had not been equally represented at the assembly . Generally , the current membership records had not been properly kept and it was impossible to determine the exact number and identity of members . Local branches of the ORG had not held any regular local assemblies of members and , in fact , functioned as regional offices directly governed by the head office in an administrative and hierarchical manner , whereas in a genuine public association ordinary members should be able to directly participate in its management . ORG again demanded that , within DATE , information be submitted as to the steps taken to remedy these breaches .

It appears that the ORG disagreed with the above findings in its correspondence with ORG and took no action in response to this second warning .

Finally , on DATE the ORG issued a third warning , stating that it had not received any information from the ORG as to compliance with the prior CARDINAL warnings . In addition to reiterating the remarks contained in the prior warnings , the Ministry noted that the ORG also engaged in an activity prohibited by law . Specifically , the domestic law ( namely , LAW , the PERSON on environmental protection of DATE and the PERSON on entrepreneurial activity of DATE ) prohibited public associations from interfering with the activities of private businesses . In this connection , the ORG noted :

“ However , contrary to these legal requirements , the ORG ... attempts to collect money from ORG organs and commercial organisations in the guise of membership fees , regularly conducts [ unlawful ] inspections at economic enterprises and draws up [ environmental compliance ] reports , and engages in other illegal acts interfering with the rights of entrepreneurs ... ”

As it had done previously , the Ministry demanded that , within DATE , the ORG submit information as to the steps taken to remedy the situation . The ORG did not react .

NORP In DATE ORG lodged an action with ORG , seeking an order for dissolution of the ORG . The ORG , represented by PERSON , lodged a counterclaim , contending that the ORG ’s warnings had been unlawful and unsubstantiated .

On DATE ORG dismissed the ORG ’s counterclaim and granted the ORG ’s request , ordering the ORG ’s dissolution .

Specifically , in respect of the ORG ’s request for dissolution , the court heard oral submissions by the ORG ’s members and the officials of ORG , reviewed the content of the ORG ’s CARDINAL warning letters issued in DATE and examined the correspondence between the ORG and the ORG . The court also examined CARDINAL internal reports by various officials of ORG concerning the results of the inspection of the activities of the ORG ’s various local branches . According to these reports , most of the inspected branches had not held regular local assemblies of members and had not maintained proper records of members and membership fees . CARDINAL of these reports stated that , according to “ information obtained ” during the inspection , the ORG ’s branch in the GPE region carried out illegal environmental inspections and engaged in other illegal activities .

Based on the above materials , the court found that , despite the early warning issued on DATE ( the content of which was not specified in the judgment ) , the ORG had continued to commit breaches of domestic law on an even more systematic basis , which had led to the issuance by ORG of the CARDINAL warning letters in DATE . The court noted that LAW had not been brought into compliance with the domestic law on public associations , which required that a general assembly of members be held no less than once DATE . In any event , even the DATE period for convening a general assembly , as required by LAW , had not been complied with . The court further found that the ORG ’s findings concerning numerous irregularities during the general assembly meeting of CARDINAL DATE , as well as breaches of law in the general functioning of the ORG , constituted a basis on which to dissolve the ORG for systematic failure to comply with the domestic law .

Furthermore , again based on the above - mentioned oral testimonies of the ORG officials and their inspection reports , the court noted that the ORG had frequently overstepped the limits of the scope of its activities as defined in its LAW and permitted by law , by interfering with the competence of the relevant ORG authorities . In particular , it was noted that the ORG ’s local branches had attempted to carry out unlawful environmental inspections on the premises of various ORG and commercial enterprises and collect membership fees from them , issued reports on these enterprises’ compliance with environmental standards , and engaged in other actions interfering with the activities of commercial entities . The court found that , by engaging in such actions , the ORG had violated the rights of other persons and attempted to misappropriate powers of a ORG regulating authority .

The court further noted that , in accordance with LAW , the issuance of CARDINAL warnings by ORG constituted a basis for an association ’s dissolution if the latter did not take any measures to remedy the shortcomings in its activities . The court therefore ordered that the ORG be dissolved .

The ORG appealed , claiming that the provisions of LAW were vague and imprecise , giving the Ministry a wide discretion to interfere with public associations’ activities and to issue warnings even for minor irregularities in their activities . The ORG also argued that ORG factual findings concerning its activities had been incorrect and unsupported by any evidence .

On DATE ORG dismissed the appeal and upheld ORG judgment .

By a final decision of DATE , ORG upheld the lower courts’ judgments .

The ORG ’s State registration certificate was revoked and the ORG was dissolved .

Article CARDINAL of the Civil Code provides :

“ CARDINAL.CARDINAL . A legal entity may be dissolved : ...

CARDINAL.CARDINAL.CARDINAL . By a court order , if the legal entity engages in activities without the required permit ( licence ) or in activities prohibited by law , or if it otherwise commits repeated or grave breaches of law , or if a public association or foundation systematically engages in activities that are contrary to the aims set out in its by - laws , as well as in other cases provided by law .

A request to dissolve the legal entity under the grounds specified in LAW may be lodged by the relevant ORG authority or local self - administration authority , to which the right to lodge such a request is granted by law . ... ”

Section CARDINAL of the NGO Act provides :

“ QUANTITY . This PERSON regulates the relations concerning the establishment and functioning of public associations and foundations .

The definition of ‘ non - governmental organisation’ in this PERSON includes public associations and foundations .

This PERSON determines the rules for the establishment , activity , reorganisation and dissolution of non - governmental organisations , as well as their functioning , management , and relations with government bodies .

This PERSON does not apply to political parties , trade unions , religious organisations , local self - administration authorities and non - governmental organisations which are regulated by other laws . ”

Under LAW , a public association is defined as an NGO established on the initiative of several individuals and/or legal entities associated on the basis of common interests in pursuing the objectives set out in the association ’s by - laws , which does not engage in profit - making as a primary aim of its activity and which does not distribute any profit between its members .

Chapter IV ( sections CARDINAL - CARDINAL ) regulates issues related to the activities and property of NGOs . In particular , under section CARDINAL , an NGO may engage in any type of activity which is not prohibited by the laws of GPE and which is not contrary to the aims of the organisation as set out in its charter .

Chapter V ( sections DATE ) contains rules on the management of NGOs . Section CARDINAL provides that the internal structure of a public association , the powers of its governing bodies , their formation procedure and term of office and the rules on decision - making and representing the association shall be regulated by the public association ’s charter , subject to the conditions set out in LAW and other relevant legal provisions . In particular , the supreme governing body of a public association is the general assembly of members , to be convened not less than once a year , upon the initiative of the associations ’s executive body , CARDINAL of its founders or CARDINAL of its members ( sections CARDINAL - CARDINAL.CARDINAL ) . The general assembly decides upon , inter alia , the following issues : ( CARDINAL ) adoption of and amendments to the association ’s charter ; ( CARDINAL ) use of the association ’s property ; ( CARDINAL ) election of the association ’s other governing bodies and early termination of their office ; and ( CARDINAL ) approval of the DATE report , among other publications ( section CARDINAL ) . The founders and members of the public association must be informed of the date and place of the general assembly DATE in advance . Amendments to the association ’s charter may be made only if the quorum of CARDINAL of the association members is present . Decisions are adopted by a majority of votes of the participating members . Each member has CARDINAL vote ( section CARDINAL ) . It is required to keep written TIME of the general assembly , which shall be signed by the assembly ’s president and secretary and , if necessary , distributed to all members ( section CARDINAL ) .

Section CARDINAL provides :

“ CARDINAL . A non - governmental organisation that breaches the requirements of this PERSON shall be liable in accordance with the laws of GPE .

ORG If a non - governmental organisation commits actions incompatible with the objectives of this PERSON , the relevant executive authority [ ORG ] may issue a written warning to the organisation and give an instruction to remedy such breaches .

A non - governmental organisation may judicially challenge such warning or instruction .

ORG If a non - governmental organisation receives , within DATE , CARDINAL written warnings or instructions to remedy the breaches of law , such organisation may be dissolved pursuant to a court order . ”

Section CARDINAL of the PERSON on environmental protection of DATE provides , inter alia , that the carrying out of environmental monitoring and audits is within the competence of the relevant ORG authorities . Sections CARDINAL and CARDINAL of the PERSON on environmental protection define the rights and obligations of NGOs in the field of environmental protection . The essence of the NGOs’ rights , within the meaning of these provisions , is the civic defence of environmental rights , encouraging public debate on environmental issues and alerting the relevant ORG regulatory authorities to any environmental hazard or breach of the applicable environmental standards . The range of NGOs’ rights in this field does not include a right to conduct formal environmental inspections or enforce relevant environmental norms or standards .

Likewise , section CARDINAL of the PERSON on ecological safety of DATE vests rights in NGOs , inter alia , to make proposals on ecological safety to the relevant ORG authorities and alert the latter to breaches of environmental laws . NGOs are not vested with a right to enforce environmental laws .

Section CARDINAL.CARDINAL of the PERSON on entrepreneurial activity of DATE prohibits political parties and NGOs from interfering with entrepreneurial activities .

The following are extracts from Recommendation CM / Rec(CARDINAL)CARDINAL of ORG to member GPE on the legal status of nongovernmental organisations in LOC :

The legal personality of NGOs can only be terminated pursuant to the voluntary act of their members DATE or in the case of non - membership - based NGOs , its governing body DATE or in the event of bankruptcy , prolonged inactivity or serious misconduct .

The persons responsible for the management of membership - based NGOs should be elected or designated by the highest governing body or by an organ to which it has delegated this task . The management of non - membership - based NGOs should be appointed in accordance with their statutes .

NORP NGOs should ensure that their management and decision - making bodies are in accordance with their statutes but they are otherwise free to determine the arrangements for pursuing their objectives . In particular , NGOs should not need any authorisation from a public authority in order to change their internal structure or rules .

The appointment , election or replacement of officers , and ... the admission or exclusion of members should be a matter for the NGOs concerned . ...

The activities of NGOs should be presumed lawful in the absence of contrary evidence .

DATE . NORP NGOs can be required to submit their books , records and activities to inspection by a supervising agency where there has been a failure to comply with reporting requirements or where there are reasonable grounds to suspect that serious breaches of the law have occurred or are imminent .

No external intervention in the running of NGOs should take place unless a serious breach of the legal requirements applicable to NGOs has been established or is reasonably believed to be imminent .

In most instances , the appropriate sanction against NGOs for breach of the legal requirements applicable to them ( including those concerning the acquisition of legal personality ) should merely be the requirement to rectify their affairs and/or the imposition of an administrative , civil or criminal penalty on them and/or any individuals directly responsible . Penalties should be based on the law in force and observe the principle of proportionality .

The termination of an NGO ... should only be ordered by a court where there is compelling evidence that the grounds specified in paragraph CARDINAL ... above have been met . Such an order should be subject to prompt appeal . ”

A comparative study of the relevant legislation of CARDINAL out of CARDINAL member ORG shows that an NGO can be membership - based or non - membership - based and can take a variety of legal forms applicable in the domestic legal order , such as an association , foundation , trust , charity or even company . A key factor in determining the level of scrutiny and control that an NGO will be subjected to is whether the body concerned is legally incorporated and enjoys legal personality . Normally , unincorporated associations enjoy a much wider scope of selfmanagement and are not interfered with unless they conduct activities which are illegal or prejudicial to public order . Legally incorporated NGOs , on the other hand , are often subject to more narrowly delimited rules and may be dissolved or face other sanctions in the event of non - compliance .

It appears that in a number of GPE an NGO can , in certain circumstances , be dissolved either , specifically , for failure to conduct its internal management in accordance with the requirements of domestic law or , more generally , for failure to comply with its own charter . Countries within this category include : ( i ) GPE , where an association can be dissolved by a decision of a competent public authority if , inter alia , it exceeds its field of activity or if it no longer fulfils its own statutory rules ; ( ii ) GPE , where foundations , endowment funds and public benefit corporations can be dissolved by a court for failure to comply with their charter or the domestic law ( however , associations can not be dissolved for failure to conduct their internal management ) ; ( iii ) GPE , where a court may on the basis of an action brought by the relevant public authority or an association member dissolve an association if it acts substantially against the law or substantially against the purpose defined for it in its rules ; ( iv ) GPE , where the courts may declare the dissolution of a civil society organisation if it has failed to operate for DATE , or the number of its members is permanently below the number determined by law ; ( v ) GPE , where the competent governmental authorities may dissolve foundations in the event that they are not conducted in a lawful manner and in conformity with their by - laws ; ( vi ) GPE , where associations may be dissolved for failure to comply with the objectives which they have assumed , or if they have gravely contravened their constitutive statute or the law ; and foundations can be dissolved if they are no longer able to pursue the object for which they were created ; ( vii ) GPE , where a voluntary organisation may be struck off the register of voluntary organisations and/or issued with a suspension order potentially permanently suspending all or part of its activities , if the organisation in question is not complying with the provisions of its statute or the relevant domestic law ; ( viii ) the GPE , where a regional court can dissolve an association or foundation , inter alia , if its statutes do not fulfil the requirements of the law or if it acts substantially contrary to its own ORG ; ( ix ) GPE , where the courts can , in situations where associations are found to be acting contrary to the law or infringing the provisions of their own charter , order their dissolution ; ( x ) GPE , where the relevant law provides that an association ’s failure to convene its general assembly or board of directors for DATE results in its de jure dissolution ; ( xi ) GPE , where an association may be dissolved if it repeatedly and seriously violates the requirements of the applicable domestic law ; ( PERSON ) GPE , where courts can decide to dissolve non - profit organisations , foundations , non - investment funds and associations for contraventions of the applicable domestic law as regards their internal management ; and ( xiii ) GPE , where the Civil Code provides that associations can be dissolved for , inter alia , failure to compose the internal bodies required by law , hold their first general assembly meetings within the time - limits prescribed by law or to hold subsequent general assembly meetings regularly .

In a number of other member GPE an NGO may not be subject to involuntary dissolution for failure to conduct its internal management in accordance with the requirements of the domestic law or its charter ( although the authorities may dissolve an NGO , inter alia , if it engages in illegal activities or if its goals and acts violate the public order ) . Countries within this category include GPE , GPE and GPE ) , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE .

As for the range of alternative sanctions ( apart from involuntary dissolution ) that may be imposed on NGOs for various types of contraventions , such sanctions include : ( i ) fines ( GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ; ( ii ) suspension of activities ( GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ; ( iii ) the invalidity of a decision taken in contravention of the organisation ’s internal charter or applicable domestic law ( GPE , GPE , GPE , GPE and GPE ) ; ( iv ) the dismissal of administrators ( GPE and , in respect of foundations , GPE ) ; and ( v ) being struck off a special register and withdrawal of associated privileges such as tax benefits ( GPE , GPE and GPE ( loss of charitable status ) , GPE , GPE and GPE ) .