Violation of Art. 8;Remainder inadmissible;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant is a practising lawyer . He has been a member of the GPE bar since DATE . His office is located in the centre of GPE .

On DATE a Mr GPE lodged a complaint with ORG in GPE . He alleged that DATE , DATE , he had been abducted by several persons working for his former employer , a company called ORG . He had been taken to a certain Mr GPE , an employee of that company , who had threatened him and his family with violence on account of his failure to repay certain money which he owed to the company . He had later been taken to the applicant ’s office , where he had been coerced into signing written promises to pay money , as well as a contract to hand over his car . All these documents had been drafted by the applicant .

On DATE Mr GPE ’s complaint was referred to ORG in GPE , which on DATE opened a criminal investigation against an unknown perpetrator on allegations of extortion contrary to LAW .

At TIME on DATE the police brought Mr GPE and CARDINAL other individuals in for questioning . The applicant , who was the legal counsel of ORG , was informed of PERSON arrest . He called the police officer in charge of the case , offering to assist by going to the police station .

The applicant went to the police station at TIME on DATE . Once on the LOC , he was taken to a room where he saw several other persons called for questioning , and was apparently not allowed to leave . However , no warrant was issued for his arrest , whereas at TIME the police decided to detain Mr GPE and the CARDINAL other individuals for twentyfour TIME .

TIME the officer in charge of the investigation interviewed the applicant as a witness . The applicant said that he knew Mr PERSON , because he had been an employee of ORG . However , he said that he had not seen him on DATE and completely denied the allegations that on DATE Mr GPE had been coerced into signing certain documents in the applicant ’s office . He also said that he had a computer in his office and that Mr GPE was a client of his . After the interview the applicant was allowed to leave the police station .

At TIME DATE several police officers sealed the door of the applicant ’s office and left a guard in front of the door .

NORP The applicant alleged that shortly after that his mobile telephone was tapped , as evidenced by the constant noise on the line . The Government denied this , saying that the investigation case file did not contain a single document relating to such tapping . In support they produced an inventory of all documents in the file .

At TIME DATE , DATE , the police officer in charge of the case organised a confrontation between the applicant and Mr LANGUAGE , in their capacity as witnesses , with a view to eliminating the discrepancies between their versions of the events of DATE . Both stuck to their original accounts . The confrontation ended at TIME

At TIME on DATE the police officer in charge of the case applied to ORG for a search warrant for the applicant ’s office . He said , without giving further particulars , that on the basis of the available evidence there were grounds to believe that objects and documents which would be relevant for the investigation would be found there . He also said that the proposed search would be conducted on DATE .

At TIME DATE the onduty judge at ORG , having reviewed the evidence gathered up to that point , issued a search warrant for the applicant ’s office . She held that there existed evidence which was sufficient to enable the court to make a plausible supposition that the office contained objects which would be relevant to the case . In particular , the victim of the alleged offence had given information about the office and had asserted that evidence of that offence could be found there .

TIME and TIME DATE the police officer in charge of the case , helped by CARDINAL other police officers , executed the search warrant for the applicant ’s office . They seized his computer , monitor , printer and other peripherals , thirtythree floppy disks , a piece of paper noting CARDINAL motor vehicle registration numbers , and a certificate from a language school saying that Mr PERSON had completed a course in LANGUAGE and NORP . The computer and the disks were found on a desk opposite the front door , and the papers were found in a filing cabinet beside a window . The search was carried out in the presence of CARDINAL certifying witnesses , neighbours of the applicant . The applicant arrived on the LOC after the beginning of the search . The police drew up a record containing an inventory of the seized items . The record was signed without comment by the certifying witnesses . The applicant wrote that he objected to the search , as it had been carried out in breach of the CARDINAL LAW ( see paragraph CARDINAL below ) . After the search the applicant ’s office was sealed .

On DATE the officer in charge of the case asked an expert to determine whether the seized computer ’s hard drive and the floppy disks had any files on them relating to the investigation . He delivered the computer with all its peripherals and the floppy disks to the expert . On DATE the expert informed the officer that , despite having searched the content of the hard drive and of the floppy disks with a special programme using keywords , she had found no such files .

In the meantime , on DATE , the applicant asked the prosecution authorities to return the seized items to him .

On DATE a prosecutor of ORG decided to stay the investigation . He reasoned that despite the steps which had been taken , the identity of the alleged perpetrator had not been established . He also ordered that the applicant ’s computer , monitor , printer , peripherals and floppy disks be returned to him .

On DATE the applicant asked the chairman of ORG to inform him whether DATE and DATE that court had issued a warrant for the tapping of any of his telephones . In a letter of DATE the chairman of ORG told the applicant that his request had been left unexamined , because his legal interest in the matter should have been satisfied by the existence of the CARDINAL Special Intelligence Means Act and LAW . of LAW ( “ the ORG ” ) ( see paragraph CARDINAL below ) .

Article CARDINAL § CARDINAL of the ORG , as in force at the material time , provided that where there existed sufficient grounds to believe that certain premises contained objects or documents which might be relevant to a criminal investigation , the authorities could carry out a search and seizure there .

According to LAW ORG , as in force at the material time , during the preliminary investigation a search and seizure could be carried out only pursuant to a warrant issued by a judge of the competent firstinstance court . The warrant was issued in ex parte proceedings , without notification or participation of the persons concerned . An exception to the warrant requirement was only possible in exigent circumstances ; in that case the record of the search had to be produced for approval before a judge within twentyfour TIME ( LAW ORG ) .

As a rule , the search and seizure had to be carried out during DATE and in the presence of the person using the LOC , as well as of CARDINAL certifying witnesses ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG ) . The officers carrying out the search could not undertake any actions which were not necessary for the search ( LAW ORG ) .

NORP In DATE these provisions were replaced by Articles DATE of the DATE Code of Criminal Procedure .

Section CARDINAL ) of the CARDINAL GPE , presently superseded by section CARDINAL ) of the CARDINAL Bar Act , provided that a lawyer ’s files and papers were inviolable and could not be checked or seized .

The domestic law regulating secret surveillance is described in detail in paragraphs CARDINAL of the ORG ’s judgment in the case of ORG and PERSON v. GPE ( no . CARDINAL , DATE ) .

Article CARDINAL § CARDINAL of the ORG , as in force at the material time , provided that witnesses in criminal proceedings had a duty to appear for questioning when called and to remain at the disposal of the authorities until necessary for this purpose .

Section CARDINAL(CARDINAL ) of the DATE ORG Caused to LAW ( „ Закон за отговорността на държавата за вреди , причинени на граждани DATE this was the original title ; on DATE it was changed to the ORG and ORG , „ Закон за отговорността на държавата и общините за вреди “ ) , as in force at the material time , provided that the ORG was liable for damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of administrative action . According to ORG caselaw , the actions of the investigation and the prosecution authorities in the context of a criminal investigation do not amount to administrative action and they are therefore not liable under LAW ( реш. № CARDINAL от DATE г. на ORG по гр. д. № CARDINAL г. ; тълк. реш. № CARDINAL от CARDINAL април DATE г. на ORG по PERSON № CARDINAL/CARDINAL г. , ORG ) .

Section CARDINAL of the LAW provides for liability of the investigation and prosecution authorities and the courts in CARDINAL situations : unlawful pretrial detention ; bringing of charges or conviction , if the proceedings have later been abandoned or if the conviction has been overturned ; coercive medical treatment or coercive measures imposed by a court , if its decision has later been quashed as being unlawful ; and serving of a sentence over and above its prescribed duration .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicants were born in DATE , DATE and DATE respectively and live in GPE .

The applicants are heirs of Mr PERSON , Mr PERSON PERSON and PERSON Koleva who owned a house in GPE with a yard with a total surface area of QUANTITY .

By a mayor ’s order of CARDINAL DATE , based on section CARDINAL of the Territorial and Urban Planning Act ( “ the PERSON ” ) , the house and the yard were expropriated “ for embassy needs ” , but with a view to realising CARDINAL separate public FAC projects : ( a ) the construction of a block of flats and shops ( ORG ) ; and ( b ) the construction of an embassy ( Project B ) . The area designated for ORG ) was QUANTITY and the area designated for ORG ( Plot B ) was QUANTITY . The applicants’ ancestors’ house remained in DATE The value of the entire expropriated property was assessed at CARDINAL old NORP levs ( ORG ) .

NORP The mayor ’s order of CARDINAL DATE also provided that for the expropriation of the property “ for embassy needs ” each of the ORG antecedents would be compensated with an apartment , situated in a building to be constructed by ORG ( “ the BSDC ” ) .

By CARDINAL supplementary orders of DATE , based on section CARDINAL of the PERSON , the mayor determined the exact location , area and other details in respect of the future apartments offered as compensation . The CARDINAL apartments had a total value of ORG CARDINAL .

A CARDINAL - room apartment of QUANTITY was designated for Mr PERSON , who had passed away on an unspecified date in DATE . By virtue of his will , the property was to be received by his grandson , the first applicant .

Mr PERSON , whose heirs were the first and second applicants , his son and wife , was to receive a CARDINAL - room apartment with an area of QUANTITY .

NORP And lastly , PERSON Koleva was entitled to a threeroom apartment of QUANTITY , which was to be received by her daughter , the third applicant .

The value of the expropriated property ( BGL CARDINAL,CARDINAL.CARDINAL ) was directly credited against the value of the apartments offered as compensation . As the latter sum was higher , on unspecified dates the applicants and their ancestors paid the difference , BGL CARDINAL,CARDINAL.CARDINAL , to the ORG .

By orders of CARDINAL and DATE Mr PERSON and the first applicant were provided with temporary housing in CARDINAL flats owned by the BSDC . It appears that after Mr PERSON death the second applicant continued to use the apartment provided for him .

Construction of the block of flats in which the apartments offered as compensation were to be located was never commenced .

On DATE , following the entry into force of the DATE LAW ( see paragraph CARDINAL below ) , the applicants made a request to the mayor of GPE for the restitution of the entire property , because neither of the public works projects had commenced and the expropriated house was still standing . No response was received and on an unspecified date in DATE or DATE the applicants appealed against the tacit refusal .

On an unspecified date , most likely in DATE , the expropriated house was pulled down and the BSDC commenced the realisation of Project B ( see paragraph CARDINAL above ) , the construction of a NORP embassy complex .

Upon the ORG appeal against the mayor ’s tacit refusal , on DATE the ORG found partly in their favour . It noted that their property had been expropriated for CARDINAL distinct public works projects DATE ORG , to be realised on Plot A , and ORG , to be realised on Plot B. In so far as the realisation of Project B had commenced on Plot B , this part of the property , namely QUANTITY of the site , could not be restored . However , as ORG had not commenced , the restitution of Plot A , amounting to QUANTITY , was possible .

The Sofia City Court further noted that under the original expropriation and compensation orders ( see paragraphs CARDINAL above ) the applicants and their antecedents had been provided with apartments as compensation in respect of the property expropriated “ for embassy needs ” ( Plot B ) and that the value of ORG had been credited against the value of the apartments . On this basis , the domestic court held that the restitution of ORG would be effective upon reimbursement of its value . On the basis of the original expropriation and compensation orders of DATE , it calculated that amount to be ORG . Apparently , the value of ORG was much higher than the value of Plot B ( which remained ORG ) as this was where the applicants’ ORG house had been standing .

None of the parties appealed against this judgment and it entered into force . In order to effect the restitution , on CARDINAL DATE the applicants paid ORG which , owing to inflation and the depreciation of the NORP currency , equalled MONEY .

In DATE the GPE municipality petitioned ORG to interpret its judgment of DATE in respect of whether it still owed the applicants CARDINAL apartments as compensation .

On DATE ORG refused to provide the interpretation sought , pointing out that its judgment was quite clear as regards the dispute examined , namely about the claimants’ right to restitution of the property .

By a letter of DATE the ORG informed the applicants that following the judgment of ORG of DATE the apartments offered as compensation for the expropriation of the property were no longer due .

On DATE the mayor of GPE revoked the CARDINAL orders of DATE ( see paragraph CARDINAL above ) . The applicants appealed against this decision .

By a judgment of CARDINAL DATE ORG dismissed the appeal . The applicants appealed again .

In a final judgment of DATE ORG ( “ the ORG ” ) quashed the lower court ’s judgment and the decision of the mayor of GPE of DATE . However , it based its conclusions on the finding that it had not been necessary for the mayor to formally revoke the CARDINAL orders of DATE ; they had been automatically revoked by virtue of the judgment of DATE ( see paragraphs CARDINAL above ) . In particular , ORG held :

“ The revocation of the expropriation , even concerning only part of the [ original ] property , in respect of which the requirements of [ the DATE LAW ] were met , resulted , by virtue of the [ judgment of ORG of DATE ] , in the revocation of the orders under sections CARDINAL [ of the PERSON ] , as it is to be considered that no expropriation ever took place . That is why the [ GPE ] mayor did not have to expressly revoke the orders under LAW [ of the PERSON ] . ”

The ORG did not explain why it considered that the partial restitution of the applicants’ property by virtue of the judgment of DATE had removed their entitlement to any compensation at all .

No apartments or other compensation have thereafter been provided to the applicants . Neither did the authorities ever reimburse the applicants for any of the payments they had made to the ORG in respect of ( CARDINAL ) the difference in the value of the apartments offered as compensation and the expropriated property ( BGL CARDINAL,CARDINAL.CARDINAL ) , which the applicants and their ancestors had paid to the ORG in DATE ( see paragraph CARDINAL above ) ; or ( CARDINAL ) the value of Plot A ( BGL CARDINAL,CARDINAL.CARDINAL ) , which had been credited against the value of the apartments promised as compensation and which the applicants had paid to the ORG in order to effectuate the partial restitution ( see paragraph CARDINAL above ) .

On an unspecified date after DATE the first applicant was evicted from the flat provided for him as temporary housing ( see paragraph CARDINAL above ) .

The relevant law and practice regarding the expropriation of private property for public use has been summarised in the judgment of PERSON and Others v. GPE ( nos . CARDINAL , CARDINAL , DATE and CARDINAL , § § DATE , DATE ) .

In DATE ORG adopted the PERSON on ORG ( ORG за възстановяване на собствеността върху някои отчуждени имоти по ORG , ORG , ORG , ORG и ЗС , “ the DATE LAW ” ) which provided for the restitution of expropriated property where specific conditions were met .

Section CARDINAL § CARDINAL of the DATE LAW provides that upon the revocation of an expropriation , any property received in compensation by the claimant shall pass to the municipality by virtue of the ruling or judgment ordering the revocation . Any amounts paid by an owner who had received restitution , to cover the difference between the value of an expropriated property and any property received as compensation , are to be reimbursed by the authorities within DATE of the date of the ruling or judgment granting the restitution ( section CARDINAL § CARDINAL ) .

The domestic courts have examined numerous actions under the DATE LAW . In a case concerning formerly co - owned property , and where the restitution had been sought by only some of the co - owners , the courts ordered partial restitution , in accordance with the co - ORG respective shares , and partial return of the compensation received ( judgement no . CARDINAL of DATE of ORG , case no . CARDINAL ) .

The domestic courts also consider that in cases where the expropriated property has lost some of its value because , for instance , any buildings on it have been demolished , the former owners , if they decide to initiate restitution proceedings , still owe the ORG the entire compensation they have received ( judgment no . CARDINAL of DATE of ORG , case no . CARDINAL/CARDINAL ; judgment no . DATE of DATE of ORG , case no . CARDINAL/CARDINAL ) .


The first applicant is a NORP national , born in DATE and living in GPE , GPE . He is represented before ORG , lawyers practising in PERSON , GPE . The second applicant is a NORP national living in GPE . He is represented before the ORG by PERSON , lawyers practising in St Helier , GPE . The respondent Government were represented by Mr PERSON of ORG .

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

At TIME on DATE the first applicant collected CARDINAL bags containing QUANTITY of cannabis resin from an accomplice in a car park in GPE . He transferred those bags to a car and was arrested at TIME while attempting to make a telephone call from a kiosk . He said that he thought the bags contained money as he had previously been involved in similar exchanges of money with the accomplice as part of a tax evasion scheme . He contended that he did not have an opportunity to examine the contents of the bags before his arrest . He maintained that he had been surprised to have been given the bags by the accomplice on the occasion concerned as he had on previous occasions normally given bags to that person . He said that the telephone call was an attempt to clarify the situation with another accomplice .

The first applicant ’s trial was in FAC before the inferior number , which consisted of a judge of law ( the “ deputy bailiff ” ) and CARDINAL judges of fact ( the “ jurats ” ) . His defence was that he did not know that the bags contained drugs and had no reason to believe that this was the case . At DATE trial the deputy bailiff delivered a summing up in open court before retiring with the jurats . The first applicant was convicted on DATE of offences of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis resin and of being in possession of a controlled drug . No reasons were given for the verdict . He was sentenced to DATE , CARDINAL months’ imprisonment .

In a judgment delivered on DATE ORG allowed his appeal against conviction for being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the deputy bailiff had failed to direct the jurats fully on the ingredients of that offence . It dismissed his appeal against the conviction of being in possession of a controlled drug with intent to supply and substituted a sentence of CARDINAL years’ imprisonment .

The principal grounds of appeal related to alleged deficiencies in the summing up by the deputy bailiff . CARDINAL allegation was that the summing up had contained a number of factual deficiencies because it had referred to the first applicant ’s defence counsel as having implied that the purpose of the first applicant ’s going to the telephone kiosk was to telephone an accomplice to ask him what was in the bags and because it stated that part of his evidence was that a woman had rushed in and out of the kiosk “ within TIME of his being there ” . ORG concluded that :

“ In our judgment these minor factual errors are not significant and could not possibly have affected the verdict of the jurats . ”

Another allegation was that the summing up had not fairly put the defence case . For example , it indicated that it would have been “ very easy ” for the first applicant to inspect the bags before his arrest without referring to the defence counsel ’s contentions to the contrary . In this regard the court concluded :

“ We have examined carefully the points made by [ the first applicant ’s counsel ] in relation to this submission but we find no force in it . Some of the points which were alleged to be unfavourable to the appellant on analysis proved to be neutral or even favourable to him ... .While it is true that the jurats were not reminded of every piece of evidence which was favourable to the defence , the deputy bailiff was under no duty to do so . What we do find is that the deputy bailiff was at pains to remind the jurats throughout the summing up that the appellant ’s defence was that he did not know that the bags contained cannabis resin and that it was his state of mind at the relevant time which was important . The deputy bailiff also reminded the jurats on CARDINAL occasion that the appellant ’s version of events was supported by other witnesses . We accordingly reject this criticism of the summing up ” .

In the course of the proceedings before ORG , argument was also heard on the question whether , having delivered a summing up in open court , the presiding judge ( in this case the deputy bailiff ) should retire with the jurats , who are initially the sole judges of fact ( see below ) . The court made no observations on this point other than to suggest that

“ ... this is an issue which merits careful consideration by the ORG ” .

ORG concluded that :

“ There was ample evidence upon which the jurats could make a finding of guilt . The appeal against conviction for possession of the cannabis resin with intent to supply was accordingly dismissed . ”

The first applicant petitioned ORG of ORG for special leave to appeal against his conviction . On DATE , after an oral hearing , this was refused .

The second applicant was arrested on TIME of DATE following a stop and search by police on a street in GPE . He was found to be in possession of CARDINAL packages of diamorphine ( heroin ) valued at GBP CARDINAL . He had travelled to GPE and back DATE . He said at his trial that he had gone there to visit an exhibition at ORG and maintained that he had only found the packages upon his return to his flat that TIME . He said that he initially thought that the packages contained diamonds , as he had previously carried them for a man called PERSON between GPE and GPE , where he had handed them over to a man called DATE He had met DATE at GPE railway station in GPE DATE but had explained to him that , at that time , he had no diamonds . He maintained that , at the time of his arrest , he was on his way with a friend to a public house to try to find PERSON because he did not know what was in the packages and had not examined their contents .

The second applicant ’s trial commenced before the inferior number of ORG of GPE on DATE . At the conclusion of the closing speeches of the defence and prosecution counsel , the deputy bailiff and CARDINAL jurats retired . The deputy bailiff ’s summing up was delivered in private . On DATE the second applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug and of being in possession of a controlled drug with intent to supply it to another . No reasons were given for the verdict . He was sentenced to DATE , CARDINAL months’ imprisonment .

The second applicant appealed on a number of grounds , including the fact that the deputy bailiff summed up in private . However , shortly before the appeal hearing , in a letter dated DATE , he withdrew CARDINAL of the CARDINAL grounds of appeal , and elected to proceed only on the question whether there had been sufficient evidence that the applicant had imported the heroin to form the basis of a conviction on the first charge .

DATE before the appeal hearing ORG disclosed to the second applicant ’s representatives the existence of witness statements given by CARDINAL NORP police officers who had observed his movements in GPE on DATE in question . Those statements confirmed , inter alia , that the second applicant had met DATE at GPE station DATE and had gone on to ORG .

On DATE ORG allowed the appeal against the conviction of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the prosecution should have disclosed this evidence before , or at least during , the trial and that the non - disclosure had led to a substantial miscarriage of justice in relation to that conviction . It dismissed the appeal against the conviction of being in possession of a controlled drug with intent to supply on the ground that the non - disclosure did not affect that conviction . It stated that the new evidence :

“ ... could not go to substantiate either directly or indirectly [ the second applicant ’s ] claim to have an entirely separate relationship with PERSON as a diamond courier . Nor could it explain his behaviour in relation to the QUANTITY packages on TIME after they had been left in his flat according to [ him ] by some unidentified person and without any explanation ” .

ORG substituted a sentence of CARDINAL years’ imprisonment .

The second applicant petitioned ORG of ORG for special leave to appeal against his conviction , reverting , inter alia , to the question whether the summing up in private had been fair . There was a hearing before ORG on DATE , which was attended by the applicant ’s counsel and a representative of ORG . An account of this hearing prepared by ORG representative states :

“ ... Their Lordships after hearing counsel on both sides and a short deliberation informed the parties that the Petition would be dismissed .

I should point out that Lord PERSON [ the presiding judge ] remarked with great surprise at there being no summing - up by the Bailiff in open court , but went on to say that since the matter had not been raised before ORG , he did not believe that it would be appropriate for ORG to intervene in this regard at this stage without having any views from ORG .

I rather got the impression from Advocate PERSON for the Petitioner , who attended at the hearing , that someone may well be looking at raising this subject again in an appropriate case in ORG , so that the matter may be raised yet again before ORG . ... ”

The PERSON was first extended to LOC , under LAW ( now LAW , by a declaration registered at the Secretariat General on DATE . Protocol No . CARDINAL was extended to GPE with effect from DATE .

There is CARDINAL bailiff and CARDINAL deputy bailiff in GPE . They are appointed by the Queen and can only be removed from office by her . The deputy bailiff is able to perform all the bailiff ’s functions , on the authority of the bailiff .

ORG , comprised of bailiff and jurats , has existed in GPE since DATE . PERSON are charged with the execution of a range of judicial tasks . They are not required to decide legal issues , but instead represent the lay element in the process of judicial decision - making . They also form part of ORG and ORG . They have powers , inter alia , to authorise the removal of arrested persons to prison in certain circumstances , to supervise dealings in the property of persons under certain forms of legal disability and to supervise the conduct of public elections .

PERSON are not chosen at random from the electoral roll , as in the case of ordinary jurors both in GPE and GPE . Rather , they are elected by a special electoral college whose members include the bailiff , the jurats , advocates and solicitors of ORG and members of GPE ’s legislature , ORG . PERSON do not necessarily have a legal qualification , but are usually individuals with a known history of sound judgment and integrity , which has been consistently demonstrated throughout a lengthy professional , business or civic life .

The qualifications required for election to the office of jurat are governed by LAW ( Jersey ) Law , DATE as amended ( Annex CARDINALA , pp . CARDINAL - CARDINAL ) ( “ the DATE LAW ) , which currently provides as follows :

“ QUALIFICATIONS FOR THE OFFICE OF ORG

CARDINAL ) A person shall , unless disqualified under the provisions of this PERSON or any other enactment , be qualified to be appointed PERSON if he has attained DATE and is a NORP subject and -

( a ) was born in LOC ; or

( b ) has during DATE of appointment been ordinarily resident in the LOC .

CARDINAL ) For the avoidance of doubt , it is hereby declared that -

( a ) a person , by reason of the fact that he is not a member of ORG , shall not be disqualified for being appointed PERSON ;

( b ) a woman , by reason of her sex or marriage , shall not be disqualified for being appointed PERSON ; ”

Disqualifications for the office of jurat are governed by LAW . FAC for disqualification include the holding of any paid office or other place of profit under the ORG or the GPE or any other administration of the GPE , or any parochial authority : DATE ( a)(b ) .

Retirement of jurats is governed by LAW DATE Law as amended , which provides as follows :

“ RETIREMENT OF PERSON

A NORP shall cease to hold office on DATE upon which he attains DATE :

Provided that a NORP who , for a continuous period of DATE fails , without good reason , to discharge the duties of his office , or who , in the opinion of the ORG , is permanently unable , through physical or mental incapacity , or for any other reason , efficiently to carry out the duties of his office , may be called upon by the ORG to resign and , unless he , within a reasonable time , presents to the Bailiff , for transmission to Her ORG , a petition praying that Her Majesty may be pleased to permit him to resign his office , he shall be removable by Order of Her Majesty in Council on the petition of ORG . ”

Other than trial in the ORG , there are CARDINAL forms of criminal trial in GPE , namely an “ assize trial ” before a judge and jury , and “ trial by the inferior number ” before a bailiff ( or deputy bailiff ) and CARDINAL jurats . In the case of serious statutory offences , including those of which both applicants were accused , trial is always before ORG by the inferior number .

The roles of the bailiff and jurats at trial by inferior number are set out in LAW , which provides :

“ POWERS OF THE BAILIFF AND PERSON

CARDINAL ) In all causes and matters , civil , criminal and mixed , the Bailiff shall be the sole judge of law and shall award costs , if any .

CARDINAL ) In all causes and matters , civil , criminal and mixed , other than criminal causes tried before ORG , in which causes the jury shall ... find the verdict , the PERSON ... shall be the sole Judges of fact and shall assess the damages , if any .

CARDINAL ) In all criminal and mixed cases , the PERSON shall determine the sentence , fine or other sanction to be pronounced or imposed .

CARDINAL ) In all causes and matters , civil , criminal and mixed , the Bailiff shall have a casting vote whenever the PERSON -

( a ) being CARDINAL in number , are divided in opinion as to the facts or as to the damages to be awarded or as to the sentence , fine or other sanction to be pronounced or imposed ; or

( b ) ( ... ) ”

Since the entry into force of the DATE Law , the bailiff has - as a consequence of his own role as the sole judge of the law - been obliged to give the jurats guidance or directions on relevant matters of law . These directions are generally known as a summing up .

In giving his directions on the law , it is common for the bailiff or deputy bailiff to advert to the issues of fact which are crucial to the legal issues upon which the directions are given . As a matter of practice , it is not usual for the bailiff to give a full and formal summing up of the facts , in the manner common in jury trials . The summing up used normally ( though not invariably ) to be given in private , after the trial itself - including the closing speeches of prosecuting and defence counsel - had taken place in public . However in the first applicant ’s case it was given in public . As a consequence of the comments of ORG in that case , it has been given in public in subsequent cases .

After the trial , the bailiff ( or deputy bailiff ) and jurats retire together . This practice was referred to by ORG in the first applicant ’s case . The President stated in his judgment :

“ ... we heard some argument as to whether , having delivered a summing up in open court , the presiding judge should any longer retire with the PERSON [ since initially they alone are the judges of fact ] . We make no observations on this point other than to suggest that this is an issue which merits careful consideration by ORG . ”

DATE , in the case of Attorney General v. PERSON and PERSON ( DATE FAC ) , ORG held that the presiding judge should retire with the jurats when they consider their verdict , since by virtue of LAW ) of the DATE Law , he was given a casting vote whenever the jurats were divided on an issue of fact . However , ORG also held that it was the presiding judge ’s responsibility to ensure that when he retired with the jurats , he limited his contribution to their discussion to matters of law , so that the decision on the facts was theirs alone , as stipulated by LAW .


The first applicant has both NORP and NORP citizenship . He was born in DATE and is living in GPE . The second applicant is his daughter . She is a NORP national , born in DATE , and currently living with her father . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

The first applicant was born and raised in GPE , where in DATE he married PERSON , whom he divorced by repudiation on DATE . The second applicant was born out of this marriage and , after her GPE divorce , remained in the care and custody of her mother .

On DATE , the first applicant married with PERSON and , on DATE , moved to the GPE . Out of this marriage , CARDINAL children were born in the GPE in DATE , DATE and DATE respectively . Like the first applicant , PERSON has both NORP and NORP citizenship .

After having learned in DATE that , on DATE , PERSON had entrusted the second applicant ’s care and custody to her sister PERSON , the first applicant took proceedings before ORG in PERSON ( GPE ) seeking to obtain the custody of the second applicant .

In its judgment of DATE , ORG Instance noted that PERSON had remarried in the meantime and held that , consequently , she had lost the entitlement to the custody of her daughter to the benefit of the father . It therefore awarded the second applicant ’s custody to the first applicant . PERSON was ordered to hand the second applicant over to the first applicant , who in turn was to pay A.B. a maintenance allowance for the second applicant ’s care as well as an allowance for having looked after the second applicant . This judgment was notified to the parties on DATE . On DATE , the second applicant took up residence with her parental grandparents in GPE .

On DATE , on behalf of the second applicant , the first applicant filed a request for a provisional residence visa ( machtiging tot voorlopig verblijf ) on grounds of family reunification . Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights .

On DATE , the Minister of ORG ( Minister PERSON ) rejected the request . Insofar as the applicants relied on LAW , the Minister held that there had been no interference with these rights in that the second applicant had not been deprived of a residence entitlement enabling her to enjoy family life with her father in the GPE . The Minister further held that there was no positive obligation under LAW to allow the second applicant to take up residence in the GPE since the refusal to grant her a residence permit did not prevent a continuation of the applicants’ family life as it existed then whereas it had not been established that there was an obstacle to the exercise of their family life outside the GPE .

On DATE , the second applicant filed an objection ( bezwaar ) with the Minister of ORG against the decision of CARDINAL DATE . In the course of a hearing held on DATE , the first applicant stated , inter alia , that – apart from his parents DATE he also had CARDINAL married sisters and CARDINAL brothers living in GPE . In his decision of DATE , the Minister rejected the objection . On DATE , the second applicant filed an appeal with ORG ( ORG ) sitting in GPE .

At some unspecified date in DATE , the second applicant travelled to the GPE , where she moved in with the first applicant ’s family .

Following a hearing held on DATE , ORG rejected the appeal on DATE . ORG held , inter alia , that there was no indication that the first applicant had always had the intention of being reunited with the second applicant . It noted in this respect that , when the first applicant left GPE for the GPE in DATE , he had left the second applicant behind with her mother in GPE and found it established that this situation had been intended as being a permanent arrangement . It was only after having learned that the second applicant was in fact being cared for by her maternal aunt that the first applicant took proceedings seeking to obtain the custody of the second applicant . Furthermore , ORG did not find it established that there had been any regular contacts between the applicants during the period when the second applicant had been cared for by her mother and her maternal aunt . On this point , it noted that the first applicant learned only after DATE that the second applicant had been entrusted to the care of her maternal aunt . This was not altered by the fact that the first applicant had paid for the costs of the second applicant ’s care and upbringing since he had only started to do so after a judicial order to this effect .

As regards LAW , ORG held that this provision does not contain a general obligation to enable the exercise of family life by way of immigration , but that the existence of such an obligation is dependent on the particular circumstances of each case . In this connection , ORG held that the applicants had not submitted any facts or circumstances on the basis of which it should be held that their personal interest outweighed the interests of the GPE authorities in maintaining a restrictive immigration policy , and concluded that the Minister had not acted unlawfully in refusing to grant the second applicant a provisional residence visa .

In view of the situation in the GPE as regards population size and employment , Government immigration policy DATE defined in FAC ( Vreemdelingencirculaire ) of DATE is aimed at restricting the number of aliens admitted to the GPE . In general , aliens are only granted admission for residence purposes if : ( a ) the GPE are obliged under international law to do so ; ( b ) this serves the “ essential interests of the GPE ” , e.g. economic or cultural interests ; and ( c ) there are “ cogent reasons of a humanitarian nature ” ( LAW ACARDINAL/CARDINAL.CARDINAL of FAC ) .

The policy for admission for family reunification purposes is laid down in LAW of FAC . This provides , insofar as relevant , that a residence permit for the purposes of family reunification may be granted to a parent of NORP nationality with minor children , when the children factually belong to his / her family and family ties with one of the parents already existed abroad . Family ties are considered to have definitely ceased to exist in case of long - term integration of the child into another family while the parent(s ) no longer exercise parental authority and no longer provide for the costs of the upbringing and care of the child .


FAMILJEN DENEV PENSIONSSTIFTELSE and DENEV v. SWEDEN

The first applicant is a NORP foundation . The second applicant , a NORP and NORP national , is a member of the board of directors of the first applicant . The Government are represented by PERSON , ORG .

A.

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

On DATE the second applicant sold CARDINAL pieces of real property to the first applicant , CARDINAL of which were agricultural estates .

On DATE , pursuant to sections CARDINAL and CARDINAL of the Act on Foreign Acquisitions of ORG etc . ( ORG om utländska förvärv av fast egendom m.m . , PERSON ; hereinafter “ the DATE LAW ) , the first applicant submitted a request to ORG ( länsstyrelsen ) of GPE for a permit to retain the acquired properties .

On DATE the request was submitted to ORG ( lantbruksnämnden ) for an opinion . The opinion of ORG was received at ORG on DATE .

On DATE the first applicant stated , inter alia , that ORG opinion was illegal and should therefore not be taken into account . Furthermore , the first applicant wanted immediately to obtain a decision regarding those property units which were not agricultural or forestry properties .

On DATE ORG informed ORG ( kommunstyrelsen ) of GPE about the first applicant ’s request and asked ORG to inform ORG not DATE whether it was going to make use of its right to acquire the properties in accordance with ORG , CARDINAL ; hereinafter “ the DATE Act ” ) .

On DATE the decision of ORG of Malung not to use its right to acquire the properties arrived at ORG . The decision was dated DATE .

On DATE the first applicant submitted a request for a permit to retain CARDINAL of the property units in the matter . It stated that the bill of sale of DATE , on which its earlier application was based , had become invalid due to the lengthy handling of the case . On DATE the first applicant made additional submissions .

On DATE ORG decided to grant the first applicant ’s request for acquisition permits with respect to several of the property units in question .

On DATE the first applicant submitted to ORG a request for a permit to retain CARDINAL of the property units in the matter . The application was based on a deed of gift according to which the second applicant assigned the CARDINAL units to the first applicant . The deed was dated DATE .

On DATE the first applicant submitted a request for a permit to retain CARDINAL property units . This request was based on CARDINAL bills of sale , CARDINAL of which was going to replace the deed of gift of CARDINAL DATE with respect to CARDINAL of the units . On DATE the first applicant submitted further observations .

By a decision of CARDINAL DATE ORG , following a recommendation of ORG , rejected the first applicant ’s request in respect of CARDINAL of the agricultural estates . In so doing , ORG relied on LAW , LAW of LAW , according to which a permit to acquire a property shall be refused if such a permit would have been refused under LAW ( ORG , ORG ; hereinafter “ the DATE LAW ) .

On DATE the first applicant appealed against the decision . On DATE ORG transmitted the case file to the Government . The first applicant submitted observations on CARDINAL and CARDINAL DATE and on DATE .

On DATE the ORG quashed the decision of DATE . They found that , as of DATE , LAW had been replaced by LAW Lagen om tillstånd till vissa förvärv av fast egendom , CARDINAL ; hereinafter “ the DATE LAW ) , the transitional rules of which stipulated that the new legislation was to be observed regardless of whether the acquisition had occurred before or after the entering into force of the DATE Act . For this reason , so the ORG stated , the first applicant ’s request had to be considered on the basis of the DATE Act . Finding that this should be done at first instance , they referred the case back to ORG .

By decision of CARDINAL DATE , ORG found that the DATE LAW as opposed to LAW did not apply to NORP foundations . Thus , under LAW , no permit was required for the first applicant ’s acquisition of the agricultural estates . ORG noted , however , that acquisitions by NORP foundations of agricultural holdings were subject to public approval under other legislation , viz . LAW . Being the competent authority to deal also with requests for acquisition permits according to LAW , the ORG decided to consider the first applicant ’s request on the basis of the said act . In the decision of CARDINAL DATE the request was rejected . ORG stated the following :

( Translation )

“ Under LAW of the [ CARDINAL LAW ... , a legal person may only be issued an acquisition permit if

the legal person relinquishes or can be expected to relinquish land which is of significance for the rationalisation of agriculture or forestry and , in terms of

size or value , is equivalent or almost equivalent to the land acquired by the legal person ,

the acquisition has the consequence that land already belonging to the legal person becomes more suitable for its purpose ,

the land is intended for other purposes than agriculture or forestry ,

there are other particular reasons .

In ORG opinion , none of the conditions stated in [ LAW ] has been fulfilled in the instant case . The agricultural holdings are situated in areas where the partition of land is inappropriate and where efforts are being made to improve the general layout of estates . For this reason , all of the holdings , regardless of size , are of significance to agriculture and forestry . The fact that holdings may have been given low rateable values [ taxeringsvärden ] does not constitute particular reasons within the meaning of [ LAW ] . Thus , a permit to acquire the properties shall be refused . ”

Following the first applicant ’s appeals , ORG decision was upheld by ORG ( ORG jordbruksverk ) on DATE and ORG ( kammarrätten ) in GPE on DATE .

On DATE the first applicant lodged an appeal with ORG ( Regeringsrätten ) . On DATE the first applicant was requested to submit its appeal petition in the original . This was done on DATE . On DATE and DATE and on CARDINAL DATE the first applicant submitted further observations . It stated , inter alia , that ORG would commit a deliberate crime of omission against the will of ORG if it did not quash the criminal judgment of ORG .

On DATE ORG refused the first applicant leave to appeal . Thus , on DATE , ORG decision of CARDINAL DATE gained legal force . As a consequence , the first applicant ’s purchase of the CARDINAL agricultural estates became invalid .

B. Relevant domestic law

a. Permission to acquire certain real property

At the time of the first applicant ’s acquisition of the land in question , a permit was required for acquisition of land in accordance with LAW . Without such a permit the purchase became null and void . Thus , according to LAW , potential purchasers of real property , with respect to which LAW applied , could not acquire real property without an acquisition permit . With certain exceptions , not relevant to the present case , LAW was applicable to NORP foundations like the first applicant .

An application for an acquisition permit was to be submitted not DATE after the acquisition ( LAW , LAW ) . The acquisition was invalid if a permit had not been applied for within the prescribed time or if a permit was refused ( LAW , LAW ) . Questions relating to acquisitions were examined by ORG ( Chapter CARDINAL , LAW ) . A permit was not granted if it would have been refused in connection with an examination in accordance with LAW .

LAW was repealed on DATE when the DATE Act entered into force . According to the transitional provisions of LAW , this LAW shall apply even when the acquisition took place before its entry into force , except in cases where the acquisition did not require a permit under LAW in force at the time of the acquisition . Under LAW , an acquisition permit is required in certain cases in connection with the acquisition of real property which for taxation purposes is to be regarded as a small house or as agricultural property . However , a permit is not required under LAW when the purchaser is a NORP legal entity ( LAW ) ) . On the other hand , as regards agricultural property , there is a permit requirement under LAW .

LAW is applicable , inter alia , in connection with acquisition of agricultural property by purchase , exchange or gift ( LAW ) . Under LAW , an acquisition permit is required , inter alia , when the acquirer is a legal entity ( LAW ) . As a rule , permit matters are examined by ORG of the county within which the property is situated .

The material rules for granting permits are found in Sections CARDINAL–CARDINAL of LAW . LAW contains provisions on granting an acquisition permit to a legal entity . As examples of when a permit may be granted could be mentioned cases where the acquisition means that the land already in the purchaser ’s possession will become more functional ( § ORG ) ) or that the property is intended for purposes other than agriculture or forestry ( § CARDINAL(CARDINAL ) ) .

An application for an acquisition permit shall be submitted not DATE after the acquisition took place ( LAW ) . The question of granting a permit based on a purchase or an exchange may not be decided until it has been clarified whether pre - emption according to LAW will be exercised , unless it is obvious that pre - emption will not be exercised ( LAW § CARDINAL ) . The acquisition becomes null and void if the application is not submitted within the prescribed time , or if the permit is refused ( LAW ) .

According to LAW a local municipality may , under certain circumstances , exercise the right of pre - emption in respect of an agreed purchase of a piece of real property which is needed for certain purposes in the public interest .

b. Appeal procedure

Under LAW , LAW an appeal could be lodged with the ORG against decisions in permit matters made by public authorities other than the Government .

Under LAW of LAW an appeal may be lodged with ORG against decisions made by ORG . A decision by ORG may be appealed against to an administrative court , i.e. ORG and then to ORG . Prior to DATE an appeal could be lodged directly with ORG . An appeal may be lodged with ORG against decisions made by ORG . However , by virtue of LAW of ORG ( ORG , ORG ) , leave to appeal is required .

c. Provisions pertaining to expeditious processing

LAW and the DATE Ordinance on Foreign Acquisitions of Real Property ( Förordningen om utländska förvärv av fast egendom m.m . , CARDINAL ) contain no provisions concerning the procedure as far as demands for speediness are concerned , nor do the DATE LAW ( Förordningen om tillstånd till vissa förvärv av fast egendom , DATE ) . However , with respect to cases examined under LAW , LAW ( ORG , GPE ) stipulates that questions concerning acquisition permits shall be examined without delay and that decisions in the matter shall be rendered not DATE after the application was made , unless there are special reasons .

Section CARDINAL of the Administrative Procedure Act ( ORG , CARDINAL ) , which contains general rules governing the procedure before the administrative authorities and which is applicable to the procedure before ORG and ORG , prescribes that cases shall be handled as simply , rapidly and economically as is possible without jeopardising legal security ( Section CARDINAL ) . There are no special provisions concerning how rapidly cases are to be handled before the administrative courts in ORG .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the city of GPE , GPE .

On DATE the applicant had a quarrel with his neighbours , Mr and PERSON , which led to a fight . The applicant was arrested by the police and brought to the police station .

On DATE ORG fined the applicant CARDINAL CARDINAL karbovanets ( QUANTITY ) for the administrative offence of swearing in a public place .

On DATE ORG instituted criminal proceedings against the applicant upon the complaint of PERSON and PERSON for inflicting medium bodily harm on Mr L.

On DATE the police investigator instituted criminal proceedings against the applicant for extremely malicious hooliganism ( особо злостное хулиганство ) .

On DATE the applicant was formally charged with the extremely malicious hooliganism and gave a written undertaking not to abscond .

On DATE the applicant finished consulting the case - file .

On DATE the investigation was resumed . The proceedings against the applicant for extremely malicious hooliganism were discontinued . Instead , he was charged with inflicting medium bodily harm .

On DATE the investigation was completed and the applicant was given access to the case - file . He finished consulting the case - file on DATE .

On DATE the case was referred to ORG .

On CARDINAL DATE the court ordered a forensic examination and adjourned the hearing .

On DATE the court ordered an additional forensic examination and adjourned the hearing .

On DATE the court sentenced the applicant to DATE imprisonment with DATE probation . The court confirmed the obligation not to abscond , i.e. not to leave his place of residence , as a restrictive measure .

On DATE ORG upheld the decision of the first instance court .

On DATE the ORG of ORG quashed the decisions of DATE and DATE under the supervisory review procedure and remitted the case for an additional investigation .

On DATE ORG ( “ the ORG ” ) closed the criminal case against the applicant and quashed the preventive measure imposed on him . On DATE this decision was quashed and the case was reopened .

On DATE the case was again closed and the preventive measure was quashed . On DATE the decision of CARDINAL DATE was quashed . The applicant maintained that in DATE he had requested a permission to visit his sick mother in another town in GPE , but had been refused . The case was then closed on DATE , being finally reopened on DATE . On DATE the applicant once again gave his obligation not to leave his place of residence .

On DATE the case was sent to ORG .

On DATE the court found the case ready for examination and scheduled the hearing for DATE .

On DATE the court heard the merits of the case and adjourned the hearing till DATE .

On DATE the court postponed the hearing due to the failure of the applicant 's lawyer to appear .

On DATE the hearing was adjourned following the applicant 's request .

On DATE the court postponed the hearing till DATE due to the failure of the applicant 's lawyer to appear .

On DATE the court postponed the hearing till DATE due to the failure of the victim to appear .

On DATE the applicant requested the court 's permission to leave for GPE till DATE . The court allowed this request .

On DATE the court postponed the hearing till DATE , and on DATE the court postponed the hearing till DATE due to the failure of the applicant 's lawyer to appear .

By a ruling of DATE , the court rejected the applicant 's request to close the criminal case against him . The applicant appealed against this ruling , therefore the hearing on his case was adjourned .

On DATE ORG rejected the applicant 's appeal against the ruling of DATE as it could not be appealed separately .

The hearing was resumed in ORG on DATE and adjourned till DATE .

On DATE the applicant requested the court not to hear the case in absence of his lawyer .

On DATE the court rejected the applicant 's request to replace the investigators in his case .

On DATE the court rejected the applicant 's request to replace the judge in his case .

On DATE the court rejected the applicant 's request to terminate the criminal proceedings against him because the administrative offence for which he was found guilty in DATE was different from the offence for which he was charged under the pending criminal proceedings .

On DATE ORG acquitted the applicant for a lack of evidence .

On DATE ORG quashed the decision of DATE and remitted the case for a fresh consideration .

On DATE the Judge of ORG of GPE rejected the applicant 's appeal in cassation against the decision of DATE as that decision was not subject to appeal .

On DATE and DATE the hearing was adjourned due to the victim 's failure to appear .

On DATE the President of ORG allowed the applicant 's request to replace the judge in his case . Judge PERSON was replaced by Judge PERSON .

On DATE the hearing was adjourned till DATE due to the applicant 's failure to appear .

On DATE , DATE and CARDINAL DATE the hearing was adjourned due to the victim 's failure to appear .

The court heard the merits of the case on DATE , DATE and DATE .

On DATE the applicant challenged the judge in his case .

DATE . On DATE the hearing was adjourned till DATE due to the prosecutor 's failure to appear .

On DATE and CARDINAL DATE the hearing was adjourned due to the prosecutor 's failure to appear .

On DATE the court convicted the applicant of inflicting medium bodily harm and sentenced him to DATE imprisonment . The court exempted the applicant from serving the sentence as the charges against him had become time - barred .

On DATE the Zhytomir Regional Court of Appeal upheld the judgment with minor changes .

The criminal proceedings are still pending before ORG .

The text of ORG CARDINAL , CARDINAL of the Code of Criminal Procedure of DATE , which are the general rules on preventive measures , is set out in Merit v. GPE ( no . MONEY , judgment of DATE ) .

According to LAW , an undertaking not to abscond consists of an obligation by a suspect or an accused not to leave his or her place of residence or temporary stay without the permission of an investigator . In the event of a breach of such a written undertaking , a stricter measure of restraint may be applied .

According to LAW at the material time ( LAW in force as of DATE ) , the charges of medium gravity become time - barred after DATE from the date of committal .


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

The applicant , a retired judge , was born in DATE and lives in GPE , GPE .

The applicant retired in DATE . The amount of his pension was calculated by ORG ( ORG ) , a public institution responsible for , inter alia , the administration of old age pensions . The applicant ’s pension was calculated in accordance with the relevant provisions of GPE of DATE . It was based on his contributions to the pension scheme and on the amount of his salary at the time of his retirement , which was equivalent to CARDINAL per cent of the average salary .

On DATE ORG issued a new decision concerning the applicant ’s pension . This decision was based on the law amending LAW adopted on DATE and it reduced the applicant ’s pension by CARDINAL old zlotys . The reduction resulted from a provision in the amending legislation which imposed a ceiling on the amount of the salary used for the calculation of the pension . The ceiling was equal to CARDINAL per cent of the average salary , regardless of the actual amount of the salary at the time of retirement .

On DATE the applicant appealed against this decision to ORG ( PERSON ) . He submitted that DATE ceiling introduced by the amendment deprived him of a part of his pension .

On DATE ORG ( Sąd Apelacyjny ) agreed to the request submitted by all the judges of ORG to have the applicant ’s case examined by another court in view of the fact that he had been their superior for DATE . The case was subsequently transferred to ORG .

On DATE ORG held a hearing and dismissed the applicant ’s appeal against the decision of DATE . It considered that the impugned decision was in conformity with the relevant provisions of LAW as amended .

Subsequently , on DATE ORG took another decision concerning the applicant ’s pension . It was based on certain new documents indicating that the applicant ’s salary at the time of his retirement had in fact been higher than the amount which had been used as the basis of the decision taken on DATE ( see paragraph CARDINAL above ) . The applicant appealed against this decision , repeating his earlier complaint that the basis for the recalculation of his pension should not have been limited to CARDINAL per cent of the average salary . On DATE ORG allowed the applicant ’s appeal in part as regards the period up until DATE but dismissed it in so far as it related to the period after that date , i.e. after the entry into force of the amendment of CARDINAL DATE .

On DATE the applicant also filed with ORG a compensation claim against ORG . He complained that his pension had been recalculated and reduced in accordance with applicable legislation and in disregard of the fact that his actual salary at the time of his retirement had been equivalent to CARDINAL per cent of the average salary . Furthermore , the applicant submitted that ORG , in basing itself on the DATE law imposing a ceiling of CARDINAL per cent of an average salary on the amount used for the calculation of a pension , had failed to respect its obligations towards him . These obligations arose from the applicant ’s payment of contributions to the social security old age pension scheme over a period of DATE . Throughout this period no legal provision had ever provided for any ceiling on the amount of the retirement pension . The applicant alleged that the actions of ORG were unlawful and rendered the ORG liable in tort .

On DATE ORG agreed to the request submitted by all the judges of ORG to have the appeal in the applicant ’s compensation proceedings examined by another court . That request was based on the fact that the applicant used to be a Deputy President of ORG . It ordered that the appeal proceedings in the case be transferred to ORG which received the case file on DATE .

On DATE the ORG agreed to the request submitted by all the judges of ORG to have the case examined in the first instance by another court and decided that the case should be tried by GPE .

On DATE the ORG , at the request of the judges of GPE , decided that the case should be examined in the first instance by ORG .

The first hearing before FAC was fixed for DATE . However , the court adjourned the hearing because it did not receive a confirmation that the defendant ORG had received the summons .

On DATE the applicant informed ORG that he maintained his claim and requested that a certain witness be heard . ORG requested ORG to hear this witness .

The hearing before ORG was fixed for DATE but was adjourned as the witness requested by the applicant failed to appear .

The date of the hearing before ORG was then fixed for DATE . The applicant requested that this hearing be adjourned . ORG fixed a new hearing for DATE and heard the witness requested by the applicant on that date .

On DATE the applicant requested that the ORG rectify TIME of the hearing held on DATE . ORG complied with this request on DATE .

The next hearing before ORG was scheduled for DATE but was adjourned , as the court did not receive a confirmation that the defendant had received the summons .

On DATE the applicant complained to ORG about the length of the compensation proceedings and requested that the date of the next hearing be fixed . He also requested that the former Prime Minister be heard as a witness to support his claim that in the past social security contributions had been used by the ORG for purposes other than the payment of social security benefits .

On DATE the applicant requested that the date of the next hearing be fixed without delay . On the same date the presiding judge ordered that the applicant be informed that due to serious staffing difficulties the date of the hearing would be fixed at a later stage .

The next hearing was fixed for DATE . On DATE the applicant informed ORG that he would be unable to attend the hearing , at which his presence was not obligatory . He maintained his claim and referred to ORG judgment of CARDINAL DATE which had found certain provisions of the amendment to LAW of DATE to be incompatible with the LAW . On DATE the hearing was adjourned , as the parties did not appear .

The next hearing was fixed for DATE . On DATE the applicant informed ORG that he would be unable to attend the hearing , at which his presence was not obligatory . He maintained his claim and again requested that the former Prime Minister be heard .

On DATE the hearing was further adjourned as ORG decided to request ORG to submit the applicant ’s case file to it . It reached the court on DATE .

On DATE the applicant complained to the Minister of ORG about the length of the proceedings and in particular about the hearings having been adjourned on numerous occasions without justification .

NORP The President of ORG replied in a letter of CARDINAL DATE informing the applicant that his case should be considered privileged since , in view of the fact that ORG was understaffed , the intervals between the hearings were such as to secure appropriate progress in the proceedings . He also pointed out that the applicant had failed to appear at all these hearings and that the next hearing had been set for DATE and that the case was ready for a prompt ruling .

In his reply of CARDINAL DATE the applicant stressed that he had been present at the hearing of DATE and had extensively pleaded his case . Although it was true that he had not been present at other hearings , he had requested that the case be considered in his absence . Moreover , the court had never required his attendance at any of the hearings . He had submitted several letters to the court explaining his position in the light of the progress in the case . It had not transpired from the information which he had obtained on the phone after every hearing that any of the hearings had been adjourned either because of his absence or his failure to submit documents or evidence required by the court .

In a letter to ORG of DATE the applicant stated that he would be unable to attend the hearing on DATE and pointed out that his attendance was not obligatory . He maintained his claim and submitted additional written pleadings to support it .

On DATE ORG rejected the applicant ’s claim , considering that the matter was res judicata . It noted that the issue of the ceiling imposed on his pension had already been decided in CARDINAL sets of proceedings which resulted in the judgments of DATE and CARDINAL DATE ( see paragraphs CARDINAL–CARDINAL above ) .

On DATE there was a fire in the building of ORG .

On DATE the applicant lodged an appeal against the decision of CARDINAL DATE .

On DATE the ORG quashed the decision of DATE and ordered that the case be reconsidered . It observed that in the appeal proceedings the only issue which had been decided was whether the calculation of the applicant ’s pension complied with the relevant legal provisions . However , in the compensation proceedings the applicant claimed compensation for the alteration of the conditions of the contract with ORG and his claim was based on tort . As these CARDINAL claims were not identical , the compensation claim could not be considered res judicata .

The next hearing before ORG was held on DATE . The court deferred the delivery of the judgment . It was then delivered on DATE . On DATE the applicant requested the reasoned judgment which was served on him on DATE . On CARDINAL DATE the applicant filed an appeal with ORG which dismissed it on DATE .


Violation of Art. 5-3 in that the applicant was not brought before a judge or other officer exercising judicial power;Violation of Art. 5-3 in respect of the lack of justification for the detention pending trial;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE ORG opened an investigation against Mr GPE , a bank branch manager , and several others , in connection with a number of financial transactions effected by them ( see PERSON v. GPE , no . CARDINAL , LAW , DATE and PERSON v. GPE , no . CARDINAL , LAW , DATE ) .

NORP In the course of the investigation Mr GPE was accused , inter alia , of having guaranteed on behalf of the bank – without having the right to do so – nine promissory notes issued by companies related to the applicant .

On an unspecified date in DATE , in the course of questioning , Mr PERSON stated that the applicant had prompted him to guarantee the promissory notes . On the basis of this statement the investigator decided to accuse the applicant of having incited and abetted Mr PERSON to commit the alleged crime .

On DATE the applicant was charged under LAW and CARDINAL in conjunction with LAW and CARDINAL of LAW ( “ CC ” ) with having incited and abetted Mr PERSON to breach his professional duties with a view to an unlawful gain for himself and others .

Eight persons were charged in all . The charges were modified several times in the course of the investigation .

During the investigation , which lasted DATE , the investigator heard CARDINAL witnesses , examined numerous financial and banking documents , commissioned expert reports , and undertook searches .

On DATE the investigation was completed and the case file was sent to the prosecutor .

On DATE the prosecutor submitted to ORG a CARDINAL - page indictment accompanied by CARDINAL binders of documentary evidence .

The first hearing took place from DATE . ORG heard the accused as well as several witnesses and experts . Some witnesses did not appear . Both the prosecution and the defence requested an adjournment .

The trial resumed on DATE . ORG heard several witnesses . CARDINAL other witnesses were absent as they had not been subpoenaed properly and others , albeit subpoenaed , did not show up . The trial was adjourned until DATE .

The trial resumed on CARDINAL and DATE . The court adjourned it to CARDINAL DATE , as some witnesses did not appear , and ordered an additional financial report .

The hearing listed for DATE was adjourned to DATE and then again to DATE by reason of the ill health of CARDINAL of the applicant ’s coaccused .

On DATE ORG held its last hearing . It heard the closing argument of the parties .

On DATE ORG found the applicant guilty of having incited and abetted Mr GPE to guarantee on behalf of the bank , without having the right to do so , CARDINAL promissory notes . It sentenced him to DATE imprisonment and banned him from engaging in financial dealings for DATE .

The reasoning of ORG judgment was deposited in the registry of that court on an unspecified date in DATE .

Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant ’s coaccused against their detention . In practice , upon such an appeal , the entire case file would be transmitted together with the appeal .

NORP Throughout the proceedings ORG and later ORG sought police assistance to establish the addresses of witnesses and ensure their attendance .

On DATE the applicant appealed against his conviction and sentence .

DATE , on DATE , ORG held its first hearing , which was adjourned to CARDINAL DATE because of health problems of the applicant .

On CARDINAL and DATE ORG resumed its hearing in the case .

On DATE ORG quashed the lower court ’s judgment and remitted the case to the preliminary investigation stage .

ORG , considering that ORG judgment was unclear or erroneous , sought to appeal against it or request its interpretation . There ensued a dispute about the time - limit for such an appeal , which was brought by the prosecution authorities to ORG . On DATE that court dismissed the prosecution ’s request .

Nothing was done in the case thereafter , at least until DATE , date of the latest information from the parties . At that time the investigation in the applicant ’s case was pending before the prosecution authorities .

On DATE the applicant was arrested and brought before an investigator who decided to detain him . That decision was confirmed the same day by ORG .

On an unspecified date towards DATE or DATE the applicant applied for release to ORG . He asserted that there was no evidence of him having committed a crime . Also , he had a permanent address and could not obstruct the investigation .

On DATE ORG dismissed the application on the ground that the applicant had been charged with a serious intentional crime , in which case the law provided for pretrial detention . The testimony of CARDINAL of the witnesses and certain documents indicated that the applicant had engaged in unlawful conduct . ORG also found a likelihood that the applicant would try to hide important documents relating to the facts of the crime of which he was accused .

On DATE the applicant appealed to ORG . He argued that there was no danger of him absconding , as he had a permanent address , nor of him impeding the investigation .

The appeal was dismissed on DATE . ORG held that since the applicant had been charged with a serious intentional crime , he had to be detained by virtue of paragraph CARDINAL of LAW ( “ ORG ” ) . He could only be released if the exception of paragraph CARDINAL of that Article was applicable . However , this was not the case , because there was a risk that if released he might impede the investigation by suborning witnesses and hiding documents , regard being had to the complexity of the case , the high number of witnesses to be questioned and the need to organise confrontations between the applicant and certain witnesses .

On DATE the applicant appealed to ORG . He argued that there was no evidence of him having committed a crime and that ORG had not relied on any specific facts justifying the conclusion that the applicant might abscond or tamper with evidence .

On DATE ORG dismissed the appeal . It subscribed to the reasoning of the lower prosecutor ’s offices , but also relied on the fact that there was another investigation pending against the applicant which , pursuant to LAW ORG , barred any possibility for release . That investigation had been opened during DATE and in DATE was still pending without having proceeded to trial .

On DATE the applicant applied for release , arguing , inter alia , that his state of health was such that detention could be dangerous for him .

On DATE the applicant was sent to a hospital for a medical examination .

On DATE ORG dismissed the applicant ’s request for release on the ground of ill health but ordered his transfer to hospital . It referred to its earlier findings about the reasons for the applicant ’s continuing in detention .

On DATE the applicant applied to ORG for release on health grounds . The application was referred to ORG .

After examining the application , on DATE ORG ordered the applicant ’s release on bail . It relied on the conclusions of the medical experts , noting that the applicant would not be able to maintain the required dietary regime and undergo the necessary medical supervision if he were returned from hospital to the detention facility . In addition , the supervising prosecutor and the investigator had come to the opinion that all documentary evidence had been gathered and the facts of the case had been clarified . Therefore , there was no risk of the applicant tampering with evidence . The investigation was continuing only in view of the fact that there were difficulties in summoning certain witnesses . Finally , there was no indication that the applicant would abscond . As to the fact that another investigation was pending against him , ORG found that this should not be used to the applicant ’s detriment as the investigation in question had already been pending for DATE .

On DATE the applicant posted bail and was released .

Article CARDINAL § CARDINAL of the ORG provides :

“ A person [ exercising a function of managing another ’s property or an official function ] , who acts in breach or dereliction of his professional duties or exceeds his power or rights with a view to a pecuniary gain for himself or another or damage to another , and thus causes significant harm , shall be punished with up to DATE imprisonment ... ”

Article CARDINAL § CARDINAL , read in conjunction with the first and the second paragraphs of the same provision , provides for CARDINAL years’ imprisonment in very grave cases when the resulting damage is substantial or the offender holds a high ranking post .

Article CARDINAL of the ORG defines an “ inciter ” as one who has intentionally incited another to commit a crime . LAW defines an “ abettor ” as one who has intentionally aided another in the commission of a crime , by counselling , advising , offering help etc . Both inciters and abettors are accomplices in the crime and are punishable in the same manner as the principal , account being taken of the nature and the degree of their participation ( LAW ) .

At the relevant time and until the reform of the ORG of DATE an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody . The investigator ’s decision was subject to approval by a prosecutor . The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG ’s judgment in the case of ORG v. GPE ( [ ORG ] , no . ORG , ECHR MONEY ) .

Pretrial detention was governed by LAW ORG , which read in relevant part :

“ CARDINAL . Pretrial detention shall be imposed [ in cases where the charges concern ] a serious intentional crime .

NORP In the cases falling under paragraph CARDINAL [ detention ] may be dispensed with if there is no risk of the accused evading justice , obstructing the investigation , or committing further crimes . ... ”

A “ serious ” crime is defined by LAW as one punishable by PERCENT DATE imprisonment .

ORG has held that it was not open to the courts , when examining an appeal against pretrial detention , to inquire whether there existed sufficient evidence to support the charges against the detainee . The courts had to examine only the formal validity of the detention order ( опред. № CARDINAL от DATE г. по ORG № DATE г. на ВС NORP н.о. ) .

According to ORG practice at the relevant time ( it has now become at least partly obsolete as a result of amendments in force since DATE ) , LAW required that a person charged with a serious intentional crime be detained . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any risk of absconding or re - offending was objectively excluded as , for example , in the case of a detainee who was seriously ill , elderly or already in custody on other grounds , such as serving a sentence ( опред. № CARDINAL от CARDINAL май DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL октомври DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL ноември DATE г. по н.д. CARDINAL/CARDINAL г. ) .

Paragraph CARDINAL of Article CARDINAL , as in force until DATE , provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable crime were pending against the accused person , or where he was a recidivist .

On DATE ORG examined a request by ORG for an interpretative decision on LAW ORG . ORG considered that LAW of the LAW was incompatible with the LAW , the LAW and LAW . It therefore decided to submit the matter to ORG which is competent to rule on the compatibility of legislation with the LAW and international treaties . Ultimately , ORG did not decide the point as the impugned provision was repealed with effect from DATE .

Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) provides , as relevant :

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

NORP unlawful pretrial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds[. ] ”

The reported case - law under section CARDINAL(CARDINAL ) of the LAW is scant . In CARDINAL recent judgments ORG held that pretrial detention orders must be considered as being “ set aside for lack of lawful grounds ” – and that ORG liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven ( MONEY CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL г. на ВКС ) or where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от CARDINAL юли DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) . The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded .

On the other hand , the Government have not informed ORG of any successful claim under section CARDINAL(CARDINAL ) of the LAW in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions . It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “ set aside for lack of lawful grounds ” within the meaning of section CARDINAL(CARDINAL ) of the LAW . Also , the terms “ unlawful ” and “ lack of lawful grounds ” apparently refer to unlawfulness under domestic law .

By CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by the “ unlawful bringing of criminal charges ” . Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty . In contrast with the solution adopted under section CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) , ORG has held that no liability arises under section CARDINAL(CARDINAL ) where the criminal proceedings were discontinued at the pretrial stage on the ground that the accusation was not proven ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ВКС GPE г.о. ) .

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of ORG have no claim under general tort law as LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на ВС GPE ) . The Government have not referred to any successful claim under general tort law in connection with unlawful pretrial detention .