No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

The applicant was born in DATE and lives in PERSON . She married in DATE and in DATE gave birth to a girl .

In DATE the applicant instituted divorce proceedings . On DATE the spouses separated . The applicant moved out of the apartment where the family used to live . Thereafter , she lived in her sister 's apartment in PERSON but also spent time in the nearby village PERSON , where her boyfriend lived .

The applicant 's husband also moved out after the separation and returned to his parents ' house .

Ever since the spouses ' separation in DATE , the applicant 's daughter lived with her father and his parents who looked after her but she also spent short periods of time with the applicant . In particular , during DATE she spent DATE in PERSON , where the applicant , her boyfriend and his parents looked after her . The child visited the applicant again , in PERSON and in her apartment in PERSON . The frequency of those meetings is unknown .

On an unspecified date in DATE the applicant 's husband brought an action against her seeking alimony payments for the upbringing of their daughter . By judgment of CARDINAL DATE ORG ordered the applicant to pay alimony .

On DATE ORG pronounced the couple 's divorce . The court approved the parties ' agreement according to which the applicant would have custody of their daughter but the child would remain with her father until DATE since she attended an elementary school in the area of the father 's home . The agreement further stated that the child would move in with the applicant at TIME on DATE . Thereafter , the father would take the child to his home DATE and also for DATE during CARDINAL or DATE periods . The father undertook to pay alimony .

In DATE the applicant saw her child often and spent time with her , including in the village PERSON According to PERSON , a psychiatrist who held therapeutic sessions with the child in DATE and DATE , the father 's report that the child had returned tense and worried from some of those meetings was plausible since the child had been frustrated from the fact that her wish to be with both parents and to have all her mother 's attention and affection had not realised .

On DATE an argument erupted when the applicant , accompanied by her boyfriend and her lawyer , came to collect her daughter . The child was terrorised and refused to leave . It appears that from that moment on , all meetings between the applicant and her daughter were very short and often in the presence of other persons .

On DATE the applicant instituted enforcement proceedings before ORG .

On DATE the enforcement judge sent a summons to the applicant 's former husband inviting him to appear on DATE . The summons was not served for reasons which are unclear . In a statement made later , the enforcement judge stated that the father was hiding .

On an unspecified date the enforcement judge appointed medical experts to examine the child .

On DATE the applicant complained about the inactivity of the enforcement judge . On DATE ORG examined the applicant 's appeal against delays in the enforcement proceedings and found that there had been unjustified delays . In particular , insufficient efforts had been made to summon the father . Apparently implying that the failure to serve the summons was difficult to understand , ORG remarked that the mother of the applicant 's former husband , in whose house the child lived with her father , worked as clerical staff of ORG . The court ordered the enforcement judge to speed up the proceedings .

On DATE the enforcement judge invited a representative of the social services in PERSON to attend the hearings in the enforcement proceedings . On DATE the applicant wrote to the social services seeking their assistance and asking them to establish the circumstances in which her daughter lived with her father . That prompted an inquiry by Mr PERSON , an employee of the social services , which were also in charge of matters of protection of children . PERSON conducted an inquiry into the conditions in which the applicant 's daughter lived and the social circumstances of the applicant and on DATE drew up a report . PERSON stated in his report that , inter alia , the applicant lived with her sister and their father in PERSON in a CARDINAL - room apartment in good conditions . At that time the applicant had been a student in a school for medical personnel . During DATE she worked in her boyfriend 's restaurant in the village PERSON also described as good the conditions in the father 's home , where the child lived . As to the child , PERSON had spoken with her and had learned that she wanted to live with both parents or with her father but also wanted to see her mother often . She did not want to live in the village Z.

On DATE the enforcement judge attempted again to summon the father for DATE . The officer responsible for serving the summons was given CARDINAL addresses for the respondent father . However , the officer noted that the father could not be located at either address and , according to a neighbour , had left on holidays .

NORP The applicant filed another appeal against the delays in the enforcement proceedings which was examined on DATE by ORG . The court found that insufficient efforts had been made to locate the respondent and that attempts should be made to summon him at his place of work .

On DATE an attempt was made to serve a summons on the respondent father ordering him to appear on DATE . For that purpose , CARDINAL court officers and a police officer visited CARDINAL addresses indicated by the applicant including her former husband 's workplace . It was established that he was on holidays until DATE .

On DATE the father was eventually found at his address and summoned to appear before the enforcement judge to transfer the custody of the child on DATE .

NORP In DATE and DATE the applicant sent several complaints to the local prosecutor , to the police and other institutions seeking assistance and police protection for her daughter . The police replied that the case did not fall within the scope of the regulations on police protection of children as there was no indication that the child had disappeared or was in danger . On DATE the applicant 's former husband received a police warning to comply with his obligation to transfer the custody of the child . In DATE and DATE , upon the applicant 's complaints that the father was hiding , the local prosecuting office conducted an inquiry . The father , his parents and the applicant were questioned and visits were made to their homes . On DATE the prosecutor refused to open criminal proceedings . On an unspecified date the mother of the applicant 's former husband complained to the local prosecutor that the applicant 's lawyer had repeatedly disturbed them in their home and had used offensive language . On DATE the applicant 's lawyer received a police warning to abstain from threatening the family of the applicant 's former husband . According to statements made later by persons involved in the proceedings , offensive remarks and groundless allegations were not uncommon in the complaints submitted by the parties .

On DATE the applicant 's former husband submitted to the enforcement judge a request that PERSON , a psychiatrist who had monitored his daughter 's health , be present during the transfer of custody on DATE . He enclosed a certificate dated DATE issued by the psychiatrist . PERSON had seen the child in DATE and DATE as the father had noted that his daughter had become nervous , had no appetite , could not sleep well , tended to remain alone and cried . That was apparently caused by the changes in the child 's life as a result of her separation from “ part of her family circle ” . Having held therapeutic sessions with the child , the psychiatrist stated that an improvement was noted . However , the psychiatrist considered that it was essential to avoid future situations which could cause psychological trauma .

On DATE and DATE the applicant requested further psychiatric examinations of the child . She also stated that a paediatrician and Mr. PERSON , the employee of the local social service who had previously seen her daughter , should also be present during the transfer of custody on DATE .

On DATE the enforcement judge heard the applicant , her former husband , the child , PERSON , PERSON and the parties ' lawyers . The applicant was asked to leave when the child was being heard .

According to the minutes , the child stated that she wanted to be with her mother , but also wanted to be with her father and preferred to stay with her father and to pay visits to her mother .

PERSON , the psychiatrist , stated that the child needed to spend more time with her mother and that favourable conditions had to be created so as to avoid any traumatic incidents for the child , who was suffering as a result of the conflict between her parents . The child needed to receive more affectionate attention from her mother . Changes in the child 's home and school environment could be dangerous . PERSON also expressed the view that the child was not sufficiently prepared for the transfer of custody and should not be forced .

Mr K , the social services employee , stated that the child was not at risk with her father . She enjoyed a good social environment and her situation would continue to be monitored by the social services .

The father 's lawyer stated that an assessment should be made of the applicant 's ability to provide satisfactory conditions for her daughter .

The enforcement judge instructed PERSON and PERSON to provide additional information in writing before DATE and adjourned the proceedings .

On DATE and DATE the applicant complained to the health authorities about PERSON , to the social services about Mr PERSON , to the police about her former husband and to ORG about the enforcement judge . The applicant alleged that her daughter 's expressed reluctance to come with her had been the result of psychological manipulation and the administration of drugs on her by the enforcement judge and other persons . In her view , the enforcement judge should have immediately proceeded to handing the child to her . The applicant also filed a formal appeal against the adjournment of the proceedings and requested the recusal of the enforcement judge .

On DATE PERSON submitted a written opinion in which he stated that in his view the child , despite her low age , had grown to understand that her parents had separated and had formed a clear opinion in favour of staying with her father . She also wanted to see her mother more often . PERSON also confirmed that the child lived in good conditions with her father and grandparents .

On DATE PERSON , the psychiatrist , filed additional assessments . She stated , inter alia , that the child 's condition improved as she gradually adjusted to the circumstances . However , it was of utmost importance that the parents maintained better relations , which would allow a possibility for the child to see her mother more often . The child needed her mother 's care and affection . At the same time any changes in the child 's environment must be very carefully prepared .

On DATE the applicant complained about the delay in the enforcement proceedings .

On DATE ORG found that there were no undue delays in the proceedings in DATE .

During the relevant period the applicant made several visits to her daughter 's elementary school . In her submission , she could not see her daughter at the home of her former husband as he had threatening behaviour and did not allow normal contacts . His parents allegedly used offensive language against her . According to statements made by the applicant 's former husband before the relevant authorities , the applicant seldom sought contact with her daughter , was unable to demonstrate affection for her and tried to achieve the enforcement of the court order through legal means only , as a result of which the child was repeatedly confronted with representatives of the authorities and with the applicant 's lawyer and thus suffered stressful situations .

On DATE the applicant and her lawyer visited the elementary school attended by the applicant 's daughter , with the apparent intention to collect her . The applicant 's daughter started crying and explained to the teacher that she did not want to go . The applicant was upset by her daughter 's reaction . On DATE the applicant 's former husband complained to the prosecution authorities and to the local Bar against the behaviour of the applicant 's lawyer , who had allegedly made repeated visits to his daughter 's school and had insisted that the child be given to the applicant . In his written opinion given later , PERSON , the social service employee who worked on the applicant 's case , stated that the presence of the applicant 's lawyer and the applicant 's boyfriend had negative effect on the meetings between the applicant and her daughter .

It appears that an attempt to summon the applicant 's former husband at DATE or DATE was unsuccessful .

In DATE a hearing in the enforcement proceedings was scheduled for DATE . The applicant complained , stating that this long delay was unnecessary .

On DATE the applicant , her former husband , their daughter , their lawyers , CARDINAL employees of the child protection service and a police officer appeared before the enforcement judge . Apparently with the aim to put pressure to bear on the authorities , the applicant invited journalists from the local television station and the press who came with their cameras .

The judge spoke to the child and told her that she would live with her mother . The child stated that she did not want to go with her mother and , according to testimony given later by PERSON , one of the social service employees , uttered rude words at her . Thereupon , the judge decided that the applicant should be left alone with her daughter for TIME . When the hearing resumed the child still refused to go . The social service employees expressed the view that there was no valid reason why the applicant should not have the custody of her daughter . The enforcement judge decided that the applicant could take her daughter home in execution of the custody agreement . The hearing was closed .

As the parties walked out of the courtroom , the applicant 's former husband grabbed the child and ran away . A police officer who was present did not intervene .

The applicant complained to the prosecution authorities about the enforcement judge and the police . By decisions of CARDINAL and DATE they refused to open criminal proceedings .

On DATE the applicant complained to ORG that the father had taken the child away .

Upon the applicant 's request , the enforcement judge renewed the efforts to transfer the custody of the applicant 's daughter to her . On DATE ORG issued directions regarding the enforcement proceedings . On an unspecified date the applicant 's former husband appealed against the acts of the enforcement judge , arguing that the proceedings should be terminated as the custody of the child had already been transferred on DATE . On DATE ORG dismissed the appeal , considering that the enforcement proceedings could continue as the father had unlawfully taken his daughter away from her mother .

On DATE the applicant 's former husband instituted proceedings before ORG for a revision of the custody and contact measures , seeking the custody of his daughter ( see the chronology of those proceedings in paragraphs CARDINAL below ) .

He also requested a stay in the enforcement proceedings . On DATE that request was refused on grounds that a stay of execution would constitute a de facto partial revision of the custody measures while any decision on the matter had to cover all relevant aspects , including contact arrangements . The court also stated that the execution of the DATE custody agreement would not prejudge the matter or otherwise impede the execution of any custody order that may be issued in the revision proceedings .

Apparently in reaction to the applicant 's complaints against several judges , on an unspecified date all of the enforcement judges at ORG withdrew from the case , which was then transmitted to ORG .

Upon the applicant 's complaints to ORG and in reaction to other complaints concerning other persons , on DATE , the ORG appointed a CARDINAL - member commission to examine the work of the local agencies in GPE and ORG . The commission conducted meetings with several persons and examined documentary material . On an unspecified date in DATE it delivered a report in which it stated , inter alia , that in the applicant 's case PERSON , the local social service employee , had only had CARDINAL meetings with the child , that his conversations with the parents had not been documented , that a psychologist had never met the child and that more could be done to facilitate the enforcement of the judicial order on the custody of the child . The commission further stated that the delays in the enforcement proceedings had complicated and exacerbated the situation . The commission recommended , inter alia , the elaboration of a plan for meetings between the child and the parents in the presence of a social service employee and more active involvement of the agency employees in the efforts to facilitate the enforcement of the judicial order , including issuing directions to the father in case of non - compliance on his part .

In DATE the applicant complained that the custody agreement had not been enforced and that the recommendations of ORG had not been followed .

On an unspecified date the enforcement proceedings were transferred to ORG . A hearing was listed for DATE . The applicant was busy with her studies and was unable to attend . The case was adjourned until DATE .

On DATE the applicant and her former husband appeared before the enforcement judge . As the father had not brought the child , the parties and the enforcement judge went to the father 's home . The judge , the applicant and the child had a conversation . The child refused to follow her mother . On DATE the judge imposed a fine of MONEY ( “ BGN ” ) on the father on the ground that he had failed to abide by his obligation to prepare the child for the transfer of custody . The father was instructed to do so before DATE .

On unspecified dates the enforcement judge imposed additional fines on the applicant 's former husband for failure to abide by a final judgment . The total amount of the fines was ORG CARDINAL ( MONEY ) . On DATE the applicant complained to ORG that the fine had not been enforced . On an unspecified date the applicant 's former husband appealed against the fine stating , inter alia , that the applicant had been unavailable for DATE which had impeded the preparation of the child for the transfer .

The enforcement judge listed a hearing for DATE , with the purpose to effect the transfer of custody . The father and the child did not appear . The judge adjourned the matter . On DATE the applicant complained of delays in the proceedings .

The enforcement judge scheduled the transfer of custody for DATE . The applicant 's former husband did not comply . On DATE he was ordered to pay another fine of BGN CARDINAL .

On DATE the applicant 's former husband reported to the local social services that his daughter did not want to live with her mother and stated that he would not force her . On DATE the social service conducted an inquiry and recommended that it was in the interest of the child to see her mother more often .

During the relevant period the applicant saw her daughter several times when she visited her at her elementary school . In the applicant 's submission , since DATE she has been prevented from seeing her daughter or speaking to her on the telephone . In his submissions to the relevant authorities , the applicant 's former husband repeatedly stated that the applicant was calling seldom and did not come to see her daughter . In its judgment of DATE ( see paragraph CARDINAL below ) ORG , having heard several witnesses and examined documentary material , including all complaints submitted by the parties to various authorities and the files opened by the prosecuting authorities , found that the applicant had sought contacts with her daughter , but that her allegation that her former husband had prevented those contacts was groundless . The tense relations between the parents had been the main obstacle to normal contacts between the applicant and her daughter .

On DATE the applicant wrote to ORG stating that on DATE she had visited her daughter at her school , whereupon her former husband had appeared , shouting offensive expressions . He had hit her and threatened to batter her if she continued seeing their daughter . On DATE the applicant 's former husband was summoned by the police and was ordered to cease obstructing the exercise of the applicant 's parental rights .

On DATE the applicant requested the assistance of the social services for securing her right to meet her daughter . A meeting was organised on DATE between the applicant and her daughter in the presence of PERSON , employee of the social service , at the LOC of the social service . The meeting ended at the request of the child .

On DATE the applicant 's former husband instituted proceedings under LAW before ORG for a revision of the custody and contact measures , seeking the custody of his daughter . A judge at ORG in PERSON examined the file on DATE and scheduled a hearing for DATE .

The hearings listed for DATE , CARDINAL May and DATE could not proceed as the applicant had not been summoned properly . She had not been found at her address in PERSON . The attempts to notify the summons to her at the address of her boyfriend in the village PERSON , where she apparently moved in DATE , were also unsuccessful . The lawyer of the applicant 's former husband alleged that the mayor of the village obstructed the efforts to summon the applicant .

The first hearing was held on DATE . The applicant sought a stay of the proceedings pending the outcome of her application to ORG . That was refused . The court commissioned a report on the child 's living conditions at his father 's place and the applicant 's living conditions . The next hearing was listed for DATE .

In DATE the social services in PERSON submitted to ORG their report on the parents ' living conditions . At the hearing on DATE the court admitted the report and other evidence . The hearing was adjourned until DATE to allow the examination of witnesses .

On DATE the court heard several witnesses and decided to commission a report on the child 's psychological state , sensitivities and attitude towards her parents . The report was submitted to the court in DATE . The court held a hearing on DATE . The psychologists who had drawn up the report and an employee of the social services were heard . The last hearing in the case was held on DATE .

By judgment of DATE ORG revised the custody measures as agreed upon by the parties in DATE and granted the custody of the child to the applicant 's former husband . The applicant was granted the right to take her daughter home DATE and for DATE during DATE periods .

DATE . The judgment contained detailed reasoning . The court noted that in accordance with LAW a change of circumstances could justify a revision of the custody and contact measures and examined all events since DATE . The court stated that the custody dispute had to be decided primarily on the basis of the best interest of the child . It noted that according to the report of the psychologists , the child had suffered distress as a result of her separation from her mother but had stabilised with the passage of time . She loved her mother , did not express negative attitudes towards her and it was in her interest to see her more often and to restore normal contacts with her . However , the child felt safe and well in her current environment , where her father and her grandparents looked after her . She developed well and was offered good living conditions . A new change of environment would have a negative effect on the child 's development . The court further took into consideration that the child had repeatedly expressed her preference for staying with her father . The court rejected as unproven the applicant 's allegation that the father had been aggressive and had prevented the applicant from seeing her daughter . The main obstacle to the contacts between the applicant and her daughter had been the extremely tense relations between the parents who had filed numerous complaints against each other . That atmosphere was harmful for the child .

On appeal , on an unspecified date in DATE ORG upheld ORG judgment . The applicant filed an appeal on points of law . As of DATE the case was pending before ORG .

The Code of Civil Procedure DATE , which governs , inter alia , execution of final judgments , does not contain provisions setting out rules specifically applicable to transfer of custody of children .

In DATE , ORG set out several guiding principles in its interpretative decree No . CARDINAL ( CARDINALPPVS ) . According to these principles , the enforcement judge should organise the physical transfer of custody without delay but should act with care and seek where necessary the assistance of local social services . The interests of the child are paramount . The child should not be coerced but should be prepared for the change so as to avoid psychological trauma . Each case must be treated on an individual basis , with due regard to the child 's age , personal circumstances and emotional links with his or her parents . All possible methods of persuasion must be exhausted . Parents should be warned that refusal to co - operate may result in a modification of custody and contact orders . Police assistance should be used as a last resort , and only where the interests of the child require immediate execution . In exceptional cases , where the custody order has not been enforced for a long time and the relevant circumstances have changed , the enforcement judge may adjourn the case and propose to the competent court to re - examine the custody order . In cases where a parent 's refusal to comply constitutes a criminal offence , the matter should be referred to the prosecution authorities .

An enforcement judge has no power to order preparatory meetings , provisional contact arrangements or other measures with a view to achieve transfer of child custody if they are not provided for expressly in the judicial decision to be enforced . A parent considering that a change of circumstances requires a revision of the custody and contact measures fixed in a judicial decision may bring proceedings under LAW for revision of custody and contact measures . In such proceedings all relevant matters may be decided , including the use of the family home ( Decision No . CARDINAL of CARDINAL in case CARDINAL/CARDINAL , ORG , ORG ) .

In DATE an amendment to LAW ( new Article CARDINALa ) provided that in child custody cases the enforcement judge should apply the provisions concerning execution of orders to fulfil a particular act ( LAW seq . ) . According to those provisions , the only possible method of coercion is the imposition of fines on the debtor . It appears that in practice the guiding principles set out in LAW DATE are considered still valid after DATE .

LAW , in force since DATE , empowers ORG and local social services to act in situations of children whose wellbeing is under threat or whose rights are violated . The ORG has supervisory functions , whereas the local social services are in charge of concrete cases . In cases of children at risk , the social services may seek police protection for the child and initiate proceedings with a view to placing the child with a foster family or into public care . Social service employees take part in all judicial proceedings affecting children 's rights , in defence of the child 's interest . In all cases where the child 's rights are at stake , the social services may intervene through measures such as counselling and assistance and may also issue binding directions ( section CARDINAL § CARDINAL ( CARDINAL ) of the LAW ) . It appears , however , that there is no practice of issuing binding directions by the social services on questions relating to the enforcement of child custody judgments . It is considered that in such matters the judicial authorities are in charge . The social services have no power to order preparatory meetings or provisional contact arrangements that are not provided for expressly in a judicial decision .

Failure to abide by a final decision concerning custody of children may be punishable under LAW .


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

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

On DATE , the applicant underwent gynaecological surgery ( a hysterectomy ) under general anaesthetic in ORG . When she came round , her left leg was paralysed . Whereas she had been able - bodied prior to the operation , subsequently she could only move about in a wheelchair or on crutches .

On DATE PERSON , an expert in forensic medicine at the court of appeal , examined the applicant at her request . His report stated , inter alia :

“ ... immediately after [ the ] operation paralysis of the entire ... lower left limb occurred . To date , in spite of the various hypotheses put forward and ... the numerous in - depth examinations which have been carried out ... , it has not been possible to ascribe a precise aetiology to PERSON paralysis which would cause her sensory - motor disorder . The only undisputed fact is that this flaccid paralysis appeared in the immediate aftermath of the most recent operation on DATE ( on DATE ) . PERSON would appear to have a medico - psychological ‘ field’ which could have had an adverse impact on the durability of such disorders and the establishment of her current state . Nevertheless , as all the specialists agree ... , [ she ] has sustained a serious sensory - motor neurological injury , affecting the entire lower left limb , which arose following the operation of DATE . Is this the result of direct traumatic lesions to the nerve trunks ... or incorrect positioning on the operating table ? It is very difficult to choose between the various hypotheses put forward . In any event , [ the applicant ] has a serious disability which , in spite of every attempt at physiotherapy , seems to be permanent and without any significant possibility of improvement . Even if , as has been suggested , PERSON personal psycho - pathological ‘ field’ could have played a role in this situation , it is not the cause of it , which must be ascribed to the operation of DATE . It thus appears reasonable to request compensation for these post - operational complications from ORG . On the other hand , no ‘ serious’ fault giving rise to personal liability can be ascribed to the various specialists who treated the patient . ”

On DATE PERSON , who held a degree in judicial compensation for personal injury and acted as an expert for ORG , examined the applicant at her request . His report , dated DATE , found that the applicant ’s paralysis had begun immediately after the operation of DATE and concluded :

“ ... the only possibilities are : ( a ) incorrect positioning on the operating table ; or ( b ) , ‘ sleep ORG , which is very similar ... Whatever the underlying psychological reality – and in this regard we ... found PERSON not merely uncomplaining but also surprisingly serene DATE the causal link is clear to all . ”

On an urgent application by the applicant , the President of ORG appointed a medical expert ( Dr PERSON ) , who examined the applicant and studied her medical file . His report , dated DATE , concluded that there had been no medical or organisational error on the part of the hospital department . In particular , the report stated :

“ ... PERSON underwent a hysterectomy on DATE . Since the operation there have been indications of a left crural injury , namely minor problems of sensitivity and motility in the area of the lower left limb which is innervated by the crural nerve . This is a relatively frequent post - operative complication following a hysterectomy . The reason [ for it ] has not yet been identified with any precision ; it is known , however , that these problems generally disappear after DATE . DATE , however , PERSON is still suffering from monoplegia of the lower left limb ... We are ... led to conclude that what we have here is pithiatic monoplegia of the lower left limb , linked to conversion syndrome . No psychosomatic or anatomical condition corresponds to the dysfunction complained of . Consequently , we can state that the observed monoplegia , of a conversion - syndrome type , has no causal link to the operation . However , while the operation is not responsible for the establishment of this pithiatic monoplegia , there is no doubt that [ it ] occurred immediately after the operation and especially after a crural injury linked to that operation . This pithiatic monoplegia could only have appeared in a woman who had a predisposition to psychological problems of this nature , but ORG has ruled that under no circumstances may one refer to a predisposition that had not [ previously ] come to light , and it would not appear that PERSON had shown signs of psychological problems of this nature in DATE the operation , not having seen a doctor for that reason and not having been treated at home or in hospital for such problems . ... No medical error occurred and the operation proceeded normally but , in a predisposed environment , [ it ] triggered a conversion syndrome on a bias point which , in PERSON case , took the form of pithiatic monoplegia of the lower left limb . In consequence , even if there was no error or fault on the part of the care team or hospital , given that the problems were indisputably triggered following the operation , it might be possible to envisage compensation for the consequent dysfunctions from a legal perspective , without a medical error having occurred during the operation ; this will be for the court to decide . We emphasise that , in this approach , imputability must be considered absolute from the medico - legal perspective , since it has been impossible to produce evidence of [ PERSON ] previous condition , even if , medically speaking , her previous condition is perfectly clear . ... ”

The applicant applied to ORG , seeking to have ORG declared liable for the detrimental consequences of the surgery of DATE and to obtain an order that it was to pay compensation for her personal injury . Her application was dismissed on the following grounds by a judgment of DATE .

“ ... The inquiry into the facts , and particularly the expert report ordered in interlocutory proceedings , revealed that the operation ... proceeded normally , with no medical error or fault by the theatre team which could be alleged to have caused the emergence of the problems complained of by the claimant , and that the monoplegia observed in [ PERSON ] is not imputable to the conditions in which the operation was carried out ; the circumstance that this operation could , as a psychological factor , have triggered a conversion syndrome on a bias point which , in the patient ’s case , took the form of pithiatic monoplegia of the lower left limb is not in itself sufficient to establish a causal link between the operation and the paralysis complained of by the claimant ... ”

The applicant appealed against that judgment to ORG . She complained , in particular , that the hospital had failed in its obligation to inform her fully of the risks connected with the operation that she was to undergo , with the result that she had not been able to give informed consent and had failed to carry out prior research into whether she was predisposed to somatisation . ORG dismissed the appeal in a judgment of DATE , giving the following reasons .

“ ... The expert report reveals that , although the problems suffered by PERSON , which appeared in TIME following the operation before assuming a permanent nature , arose on the occasion of that operation , they are not a direct consequence of it but are only the expression of psychosomatic tendencies which had already been exhibited at a previous stage by PERSON ; there is therefore no direct causal link between the symptoms shown and the operation carried out .

PERSON also seeks to establish the hospital ’s liability , alleging that it had committed a fault in failing to carry out in - depth tests prior to the operation in order to take account of these tendencies and cancel the operation in question ; on the CARDINAL hand , it is not alleged that the hospital was aware of this psychological frailty in PERSON and , on the other , in any event , the investigation reveals that the persistence of the appellant ’s gynaecological problems over DATE , in spite of various measures , amounted to an indisputable indication for the operation , having regard to the chronic and disabling nature of those problems , which were indeed completely removed by the operation . ... ”

The applicant appealed to the ORG d’Etat . In her full pleadings , complaining in particular that the appeal court ’s judgment had not replied to her argument alleging a lack of investigation and information , she invited the PERSON d’Etat to hold that that judgment should be quashed and to determine the merits of the case .

On DATE the ORG d’Etat dismissed the appeal in a judgment which was worded as follows :

“ ... The evidence submitted to the trial judges reveals that , when finding that ‘ there is ... no direct causal link between the symptoms shown and the operation carried out’ , the court did not distort either the facts of the case or the conclusions of the expert report drawn up at the request of ORG , which noted that there is no direct link of cause and effect between the monoplegia suffered by PERSON and the operation .

In ruling that ‘ there is ... no direct causal link between the symptoms shown and the operation carried out’ and by thus finding that the precondition for any liability on the part of the hospital , either on the ground of strict liability or of liability for negligence , was not met , the court gave sufficient reasons for its judgment ... ”

In her observations in response to those of the Government , the applicant added that , at her lawyer ’s request , an expert named ORG had confirmed the following in a report of DATE ( not produced ) .

“ In this case , there is an obvious cause for the patient ’s condition , namely the operation of CARDINAL[CARDINAL ] DATE , complicated by a lesion of the left crural nerve .

The relationship between this cause and its consequences is substantiated by several factors : an initial injury to the crural nerve , confirmed by electromyogram ; a neurological syndrome of functional lameness of the lower left limb , in a person who was thus predisposed ; and an unconscious conversion in relation to the experience of the operation and the subsequent complication , taking the form of an injury to the crural nerve , which developed into a pithiatic symptom .

These complications are disproportionate to what might have been expected from the initial hysterectomy .

Conclusion : the problems evidenced on this date are to be directly and exclusively ascribed to the consequences of the operation of CARDINAL[CARDINAL ] DATE . ”


STATE HOLDING COMPANY LUGANSKVUGILLYA v. UKRAINE

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant is a legal entity , a state holding company , ORG холдингова компанія « PERSON ) , registered in GPE , GPE . It is represented before the ORG by Mr PERSON , a practicing lawyer .

On DATE the local department of ORG imposed a fine on the applicant company for failure to comply with the legislation on market circulation of shares .

In DATE the applicant company lodged a complaint with ORG against the aforementioned resolution of the Commission to impose a fine on it .

On DATE the court rejected this complaint as it was unsubstantiated . On DATE ORG upheld that judgment .

The applicant lodged an appeal in cassation with ORG , which on DATE refused to examine it for the applicant ’s failure to comply with the formal requirements envisaged in LAW for lodging such appeals .

On DATE ORG refused to institute cassation proceedings upon the applicant ’s appeal in cassation lodged against the resolution of DATE .

From extensive domestic law , including the acts of ORG , normative acts of ORG and various ministerial decisions and orders it ensues that the applicant company is managed and fully controlled by ORG of GPE , through its various institutional structures , including formerly through ORG and currently ORG of GPE . The company exercised certain public functions in administration of funds allocated by the ORG for restructuring of the coal industry .

On DATE ORG of GPE by an order no . CARDINAL , acting in accordance with ORG of GPE , ORG and ORG , ordered the liquidation of the state holding company ORG . The liquidation proceedings are still pending .


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Respondent State to take individual measures (Article 46-2 - Individual measures);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The first applicant , PERSON , is a NORP national who was born in CARDINAL ... and lives in GPE . The second applicant , PERSON , a NORP national , is his common - law wife who was born in CARDINAL .... The other CARDINAL applicants are their minor children .

On DATE the first applicant , once active in a drug - trafficking mafia run by NORP in a NORP country and subsequently in hiding in GPE under a false identity , was apprehended by the NORP police . It is disputed whether he turned himself in or was arrested . He admitted to various offences he had committed and gave information , secretly , about the activities of the mafia in question , enabling prosecution against it . He was offered a plea bargain which he accepted . Subsequently the NORP prosecution , despite his complaints , joined his own case to the one conducted against the criminals he had been informing about . This required him to appear in open court , disclose his identity and act publicly as a collaborator of justice .

NORP Since this event apparently resulted in the applicants being exposed to vengeance from the NORP mafia , the family was enrolled in ORG Scheme on DATE . The agreement on their enrolment contained a clause to the effect that if it was cancelled on account of a breach of the rules of the Scheme by the first applicant , the whole family would be excluded from the Scheme .

Within the framework of the Scheme , the following measures of special protection were introduced , in compliance with section DATE ) of Act no . ORG of DATE on ORG for Participants in Criminal Proceedings and Collaborators of Justice ( “ LAW DATE ” ) . The applicants were issued with new personal documents as part of providing them with new identities .

PERSON and the children were accommodated in a CARDINAL - room , then in a CARDINAL - room ‘ safe flat’ and finally in a CARDINAL - room family house . The CARDINAL elder children attended school , while the youngest child – who suffers from medium - grade autism – attended a crèche providing special care , then a kindergarten . The applicants submitted that , in any case , no adequate care was provided in respect of this child ’s condition DATE an assertion disputed by the Government . They further alleged that during this time the Scheme ’s operatives insisted that the first and second applicant should break up their relationship .

On or some time after their admission to the Scheme , the family – having otherwise no regular income in excess of the various welfare allowances due under the law – started to receive a DATE subsistence allowance . Their rent , public utility bills , health care and schooling costs ( including those related to the situation of the youngest child , in particular the fee of a teacher specialised in developing pedagogy ) were wholly or partly paid by the Scheme . Resources were allotted to the children ’s clothing , the maintenance of the family ’s car and their travel costs incurred when visiting the first applicant , who was in detention . The latter also received a sort of allowance with regard to his participation in the Scheme . The amounts of these disbursements were raised several times .

During this time , the first applicant was imprisoned in an unspecified jail . As to his contact history during the programme , the Government submitted that the family had kept regular contact with him through emailing , phone calls and in the form of DATE visits ( TIME as per the witness protection agreement ) . If a visit was , for some reason , omitted , it was substituted either by another occasion or by prolonging the next visit . The last time the first applicant and his family met while the programme was running was on DATE . The next visit , scheduled for DATE , was cancelled due to the illness of the youngest child . Arrangements for a substitute visit could not be made , since on CARDINAL DATE the first applicant was found in the possession of prohibited articles ( see paragraph CARDINAL below ) and subjected to a DATE , then a DATE confinement ; and on DATE the applicants’ enrolment in the programme was cancelled altogether .

DATE after his enrolment in the Scheme in DATE , the first applicant ’s whereabouts were communicated to his lawyer ; the latter subsequently attended several of his meetings with operatives of ORG .

The first applicant submitted that during his trial his mother was assaulted at her home in GPE and the perpetrators made it clear to him , in an unknown manner , that the assault was in connection with him being a collaborator of justice . He emphasised that he did not change his mind about becoming a collaborator of justice although a significant sum of ‘ blood money’ had been set by the NORP mafia on his head because of this , and his parents had been – and still were – being harassed by the NORP authorities and the mafia .

The Government submitted that the operatives of the Scheme carried out , as is the standard practice , a careful assessment of potential threats to the applicants , including interviewing some of the first applicant ’s relatives . However , although the first applicant repeatedly mentioned the setting of ‘ blood CARDINAL of CARDINAL on his head by NORP mafia men , no evidence corroborated this allegation in the eyes of the authorities . In the applicants’ view , the gathering of information in this respect was insufficient .

After numerous hearings held DATE and DATE , on DATE ORG convicted the first applicant , as a member of a criminal organisation consisting of another QUANTITY persons , of aggravated abuse of narcotics and of firearms and other offences and sentenced him to DATE of imprisonment . In the reasoning of its CARDINAL-page judgment , ORG relied inter alia on testimonies given by numerous experts and witnesses , including that of the first applicant , physical evidence , documents and information obtained through secret surveillance .

On DATE ORG reduced the first applicant ’s sentence to DATE .

On DATE ORG aggravated the first applicant ’s sentence to DATE .

Some of the persons who , in the authorities’ perception , represented a threat to the applicants were convicted in the same proceedings .

During his ensuing detention , on CARDINAL DATE a laptop computer and a mobile internet device , held without authorisation , were found by the guards in his cell . He was caught in the act of communication using a voice - over - internet service . It could not be established how the prohibited devices had been smuggled into the penitentiary . The identities of the person or persons the first applicant had communicated with could not be determined with certainty either . The authorities nevertheless deduced from the first applicant ’s oral statements and the circumstances that he might have maintained contacts with criminal circles .

As a sanction , the entire family was excluded from the Scheme on DATE . This was explained by the fact that , by carrying out illicit communications , the first applicant had seriously breached the clauses of the agreement with the Scheme . It was found that , by virtue of this exposure , he had become a source of danger in the first place for his family and also for the operatives of the Scheme . It was also recalled that the co - operation between him and the Scheme operatives had gradually become very difficult , since he had kept complaining about various matters and demanded advantages not provided in the protection agreement or their better implementation .

On DATE , the Scheme ’s operatives visited PERSON and informed her about the termination of the programme and of the protection measures , and about the fact that their original identities would simultaneously be restored .

The Government submitted that the agreement with the first applicant had been cancelled because of him having repeatedly breached its provisions , rather than because the threat to him and his family had diminished . In any case , in their view , this threat had indeed decreased on account of the apprehension of those persons who represented a danger for the applicants . The applicants contested this view , submitting that , despite these incarcerations , the criminal organisation which was after the first applicant was still active and posing a real threat .

The Government further submitted that after the applicants’ exclusion from the programme , another scheme called “ personal protection ” had been put in place for them , in application of section CARDINAL(CARDINAL ) of Government Decree no . CARDINAL . ( II.CARDINAL . ) . They had continued benefiting from the house , the car , the telephone line and the computer and other items as well as the allowances during the transitional period of DATE or so . ORG Scheme had arranged for returning their original documents and the withdrawal of cover documents , and taken the requisite steps with regard to the maintenance , under their original names , of the family ’s health and social care and the children ’s schooling . The family ’s public utility bills due for DATE had been paid by the Scheme , which had also assisted them in moving house , including the provision of free transport and free temporary storage facilities . For the first applicant , “ personal protection ” consisted of his relocation to the strict - regime department of PERSON which is physically separated from the rest of the institution . Here , he has been placed in a cell of QUANTITY ; the view from the window is blocked ; he is entitled to have an open - air walk once a day for an hour .

The applicants submitted that , the programme having been terminated irrespective of the persistent threat , no real care had been taken of Ms ORG and the children . The latter were bound to return to school under their real names ; and , inevitably , the fact that the family had been in witness protection for DATE must have been revealed as a consequence of this . The measures of “ special protection ” had included nothing but an emergency phone number available to PERSON and scarce visits paid to the family by police officers enquiring if anything was wrong . The family ’s personal particulars and whereabouts became accessible to anyone .

Act no . ORG of DATE on ORG for Participants in Criminal Proceedings and Collaborators of Justice ( “ LAW DATE ” ) provides as follows :

“ For the purposes of this LAW , the term :

“ Protection Programme ” means organised protection that can not be secured within the framework of personal protection , which is granted to a witness , an aggrieved party , a defendant , a relative of the above persons or to any other person under threat on account of the person concerned ,

a ) provided by the police under a civil law agreement concluded with the person under threat , and

b ) in the course of which the application of special measures ( section CARDINAL ) and – in order to help the social integration of the person concerned – mental , social , economic , human and legal support is needed ;

“ Agreement ” means a civil - law agreement between the police and the person under threat on the latter ’s enrolling in ORG , on the cooperation to be carried out under the ORG , and on the rights and obligations of the participants in ORG ;

“ Personal protection ” means measures carried out , in pursuit of a separate decree ... , by the police ... in order to secure personal protection for the participants in criminal proceedings and the officials of the authority in charge ... ; ”

“ ( CARDINAL ) To settle a dispute emanating from the agreement , the parties shall conduct conciliatory negotiations . If the parties are unable to settle the dispute in DATE , either party may seek a judicial ruling . ORG has exclusive competence to deal with such disputes and adjudicates them in non - contentious proceedings . Where appropriate , the court shall hear the parties in person . ”

“ ( CARDINAL ) In order to prevent an unlawful act against the life , bodily integrity or personal liberty of the person concerned , the ORG may apply the following special protection measures :

a ) placement ( moving ) of the person concerned in a safe place by changing his domicile or place of residence or by relocating a detainee covered by the ORG from the penitentiary institution in which he is placed into another one ;

b ) granting personal protection for the person concerned ;

c ) ordering that the data of the person concerned , stored in official registers , no longer be accessible and that any request for access to such data be signalled ;

d ) change of name ;

e ) change of identity ;

f ) participation in international cooperation . ”

Recommendation Rec(CARDINAL)CARDINAL of ORG on the protection of witnesses and collaborators of justice ( adopted by ORG on DATE at the PERSON meeting of ORG ) reads as follows :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Recommends that governments of member states :

i. be guided , when formulating their internal legislation and reviewing their criminal policy and practice , by the principles and measures appended to this Recommendation ;

ii . ensure that all the necessary publicity for these principles and measures is distributed to all interested bodies , such as judicial organs , investigating and prosecuting authorities , bar associations , and relevant social institutions .

For the purposes of this Recommendation , the term :

- “ witness ” means any person who possesses information relevant to criminal proceedings about which he / she has given and/or is able to give testimony ( irrespective of his / her status and of the direct or indirect , oral or written form of the testimony , in accordance with national law ) , who is not included in the definition of “ collaborator of justice ” ;

- “ collaborator of justice ” means any person who faces criminal charges , or has been convicted of taking part in a criminal association or other criminal organisation of any kind , or in offences of organised crime , but who agrees to cooperate with criminal justice authorities , particularly by giving testimony about a criminal association or organisation , or about any offence connected with organised crime or other serious crimes ;

- “ intimidation ” means any direct or indirect threat carried out or likely to be carried out to a witness or collaborator of justice , which may lead to interference with his / her willingness to give testimony free from undue interference , or which is a consequence of his / her testimony ;

- “ anonymity ” means that the identifying particulars of the witness are not generally divulged to the opposing party or to the public in general ;

- “ people close to witnesses and collaborators of justice ” includes the relatives and other persons in a close relationship to the witnesses and the collaborators of justice , such as the partner , ( ORG , parents and siblings ;

- “ protection measures ” are all individual procedural or non - procedural measures aimed at protecting the witness or collaborator of justice from any intimidation and/or any dangerous consequences of the decision itself to cooperate with justice ;

- “ protection programme ” means a standard or tailor - made set of individual protection measures which are , for example , described in a memorandum of understanding , signed by the responsible authorities and the protected witness or collaborator of justice .

Any decision to grant anonymity to a witness in criminal proceedings will be made in accordance with domestic law and NORP human rights law .

Any decision to grant anonymity should only be taken when the competent judicial authority finds that the life or freedom of the person involved , or of the persons close to him or her , is seriously threatened , the evidence appears to be significant and the person appears to be credible .

Where appropriate , witness protection programmes should be set up and made available to witnesses and collaborators of justice who need protection . The main objective of these programmes should be to safeguard the life and personal security of witnesses / collaborators of justice , and people close to them , aiming in particular at providing the appropriate physical , psychological , social and financial protection and support .

Protection programmes implying dramatic changes in the life / privacy of the protected person ( such as relocation and change of identity ) should be applied to witnesses and collaborators of justice who need protection beyond the duration of the criminal trials where they give testimony . Such programmes , which may last for a limited period or for life , should be adopted only if no other measures are deemed sufficient to protect the witness / collaborator of justice and persons close to them .

The adoption of such programmes requires the informed consent of the person(s ) to be protected and an adequate legal framework , including appropriate safeguards for the rights of the witnesses or collaborators of justice according to national law .

Where appropriate , protection measures could be adopted on an urgent and provisional basis before a protection programme is formally adopted .

Given the essential role that collaborators of justice may play in the fight against serious offences , they should be given adequate consideration . Where necessary , protection programmes applicable to collaborators of justice serving a prison sentence may also include specific arrangements such as special penitentiary regimes .

Protection of collaborators of justice should also be aimed at preserving their credibility and public security . Adequate measures should be undertaken to protect against the risk of the collaborators of justice committing further crimes while under protection and therefore , even involuntarily , jeopardising the case in court . The intentional perpetration of an offence by a collaborator of justice under protection should , according to the relevant circumstances , imply the revocation of protection measures .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

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

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

At the relevant time , the applicant was a judge at ORG .

On DATE ORG ( “ the RIS ” ) informed ORG of ORG attached to ORG ( “ the prosecutor ” ) that the lawyer PERSON ( the applicant in case no . CARDINAL ) had given bribes to several judges , including the applicant , in order to obtain decisions favourable to her clients . It based the accusation on information obtained through intercepting ORG ’s telephone , measure taken because CARDINAL of her clients was suspected of crimes against national security . The surveillance activity was carried out under PERSON no . CARDINAL on national security . The ORG handed over the audio tapes and their transcription to the prosecutor ’s office . The prosecutor then continued the surveillance of ORG activities , including through telephone tapping . Several conversations between ORG and other individuals ( but not the applicant ) had been recorded ; the applicant ’s alleged involvement in the suspected criminal acts had been mentioned by the participants in those conversations .

On DATE the prosecutor obtained ORG approval to start criminal investigations in respect of the judges involved that is the applicant and V.A. On DATE he started criminal proceedings against the applicant ( începerea urmăririi penale ) .

On DATE the prosecutor invited the applicant to his office , informed her of the accusations against her and ordered her not to leave town for DATE .

On DATE the applicant retired from office . Her request was accepted by ORG of magistrates on DATE .

NORP Throughout the proceedings , the applicant denied having committed the crimes .

On DATE the prosecutor indicted the applicant and committed her and several other persons to trial . In particular , he accused her of having received through ORG intermediary , MONEY ( ORG ) in bribes from ORG , in order to release one of her clients pending trial .

The case was heard by ORG .

NORP On DATE ORG heard testimony from each defendant separately and the relevant parts of the audio tapes were played in their presence . None of them denied having had the recorded conversations .

The defendants complained that the time between hearings was too short and that they could not properly prepare their defence . ORG allowed their complaint and decided to extend the period from DATE while nevertheless reiterating that where defendants were in detention pending trial ( as in the case of ORG ) the case had to be examined promptly .

The applicant again denied having committed any crime . She claimed that the only relevant discussions she had had with V.A. were in connection with the cases in which they had been sitting on the same bench . She declared that she did not know ORG , had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate .

L.P. and V.A. also denied committing any crime .

At the same hearing on DATE , the co - defendants alleged that there were procedural defects . They argued that as the prosecutor had failed to request the necessary authorisation for intercepting GPE conversations , the audio recordings were illegal .

The court gave detailed answers to their complaints . Concerning the telephone tapping , it noted that CARDINAL of ORG ’s clients had been indicted for weapons and ammunition smuggling , which , under LAW , constituted a threat to national security and thus allowed the ORG , under procedure regulated by LAW , to seek authorisation from the prosecutor to intercept the suspect ’s conversations . The fact that during the surveillance activity the authorities came across telephone discussions among the codefendants which led them to believe that ORG was trying to corrupt the defendant judges constituted preliminary investigation ( acte premergătoare ) .

ORG reiterated that so long as the recordings had been obtained during the preliminary investigation phase , they did not constitute evidence . Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file .

On DATE the declarations given by the defendants were read out in court . They were allowed to supplement their testimony and put questions to their codefendants .

The applicant ’s counsel opposed hearing testimony from an informer , arguing that “ the prosecutor is using [ him ] even though he is an offender ” ( “ infractor ” ) , to which the prosecutor , PERSON , replied “ an offender who is giving statements about other offenders ” . The applicant and V.A. asked for the prosecutor to withdraw from the case for having breached the presumption of innocence .

At the same hearing of DATE ORG heard testimony from witnesses for the prosecution .

On DATE and DATE ORG dismissed the objections raised concerning the prosecutor ’s withdrawal . PERSON continued to represent the prosecutor ’s office throughout the first - instance and appeal proceedings .

On DATE , at the GPE request , ORG ordered an expert examination of the audio tapes , in accordance with LAW ( “ ORG ” ) .

At a hearing on DATE ORG dismissed a request by the applicant and V.A. for the RIS to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the PERSON and the prosecutor ’s office . ORG considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations .

On DATE , DATE , CARDINAL May and DATE ORG heard eight witnesses for the defence .

On DATE the CARDINAL experts rendered their report , as requested by ORG . They concluded that the audio tapes were neither authentic nor original and advised against admitting them as evidence in the criminal trial .

On DATE ORG , sitting as a CARDINAL - judge bench , rendered its decision . It unanimously convicted the applicant for receiving bribe and sentenced her to DATE imprisonment and DATE of suspension of certain rights . V.A. was also convicted by a majority of CARDINAL votes .

ORG considered that the statements made by the defendants and the witnesses both before the prosecutor and in open court corroborated the theory that some of ORG ’s clients had been released from prison because she had bribed the judges , including to the co - defendants . The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted , either before the prosecutor or in court that they had been pressured by the defendants into changing their declarations . The court also considered that the testimonies given by the witnesses corroborated the transcripts of the telephone conversations .

ORG also made a lengthy analysis of the transcripts thus responding to the GPE allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage . The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court . It noted that the experts had not questioned that aspect either .

As for the authenticity and originality of the tapes , which the experts contested , the court pointed out that , in the sense of LAW , the report concerning the transcripts , drafted by the prosecutor after the opening of the criminal proceedings , represented the evidence and not the tapes themselves ( which were attached to the prosecutor ’s report , as the law required ) ; nor did the original harddisk onto which the recording had been done . In his report , the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected . The court confirmed those aspects . The defendants had had ample opportunity to challenge it , as provided for by the ORG .

Moreover , the court observed that the original recording had been digital , done straight onto the hard - disk of the equipment used by the RIS for telephone tapping ; the tapes attached to the prosecutor ’s report were consequently copies of the original recordings . Because of its nature and purpose , the hard - disk could not be attached to the prosecutor ’s report ; furthermore , it did not need to be attached as it did not constitute evidence . The court concluded that the absence of the hard - disk did not automatically disqualify the transcripts from being used as evidence .

Furthermore , the court noted that , for obvious reasons related to respect for the private life of those involved , it had not listened to all the conversations recorded by the ORG , but only to those relevant to the charges brought before it . However , the parts presented to it and to the defendants by the prosecutor represented full conversations . The dialogues were coherent ; the sentences were not truncated and no words were missing or had been inserted into the dialogues . It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified .

The court was therefore satisfied that the prosecutor ’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file .

All parties appealed against the judgment . In particular , the applicant argued that the indictment was illegal , in so far as the prosecutor lacked the credentials for working on the case DATE of experience ) and because the indictment had not been signed by ORG ; that the criminal proceedings were illegal in so far as she had not been informed of the accusation . She also alleged a breach of the right to defence during the investigations .

Furthermore , she argued that the judgment had not been signed by the dissenting judge and that the operative part of the decision did not correspond to the CARDINAL delivered in public . She complained about the court ’s interpretation of the evidence in the file , in particular that the audio tapes had been taken into account despite the expert opinion and the GPE opposition to their admission to the file .

She lastly complained about the fact that the prosecutor did not withdraw from the case after having breached her presumption of innocence with his statements .

The case was heard by a CARDINAL - judge bench of ORG who rendered a final decision on DATE . ORG dismissed the applicant ’s appeal and maintained the sentence . ORG gave a detailed answer to all arguments raised by the defence concerning both the procedural and the substantive aspects of the case before the prosecutor and the first - instance court .

ORG also considered that the prosecutor was right not to withdraw from the case after having called the defendants “ offenders ” , as those remarks had been uttered in the course of debates , where prosecutor and defendants were in positions of equality and had been provoked by the offensive statements of the applicant ’s counsel concerning the witness .

ORG noted that the telephone tapping had not observed the stricter requirements relating to magistrates . It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping ; on this point it reiterated that the information concerning the GPE alleged involvement had been obtained incidentally by the prosecutor . It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations . The court also reiterated that as the tapes had disclosed information on the commission of crimes , they could not have been ignored by the authorities . Furthermore , the tapes had been made with the prosecutor ’s prior approval , as the law had required at the time , and had not contravened public order . ORG attached great importance to the fact that the defendants had not denied having had the recorded conversations . It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file . It therefore concluded that the tapes could be used as evidence .

ORG also decided that the evidence had to be interpreted in its entirety and in context , and reiterated that the law did not give precedence to any type of evidence to the detriment of others .

ORG noted that the first - instance court had changed the legal classification of the crimes committed by ORG from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by V.A. from a continuous crime of trading in influence and aiding and abetting ORG to give bribes to several individual crimes of trading in influence and aiding and abetting ORG to give bribes . It accepted that the first - instance court had erred in not allowing the parties to discuss the new legal classification given by it to the crimes committed by V.A. However , it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification as the consequences in law for both situations were identical .

On DATE the applicant started serving her sentence . She was released from prison on DATE .

The legislation in force at the relevant time concerning telephone tapping , including LAW , is described in PERSON GPE ( no . CARDINAL ) ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

The relevant provisions of LAW concerning the preliminary investigation read as follows :

“ CARDINAL . The criminal investigation authorities may conduct any preliminary investigation measures .

The report of execution of any preliminary investigation measure shall constitute evidence . ”

“ The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article CARDINAL shall order , by decision ( rezoluţie ) , the opening of criminal proceedings where the content of that application or the preliminary investigation does not disclose any grounds for not prosecuting , as provided for in DATE , with the exception of the ground set out in subparagraph ( b)CARDINAL . ”

Concerning the telephone tapping at the preliminary investigation stage , ORG and ORG considered , in a decision rendered in an appeal on points of law ( decision no . CARDINAL of DATE ) that the lawfulness of the interception was not dependent on whether criminal proceedings had been opened ; it further noted that the law did not impose an obligation on the authorities to inform the person concerned of that measure , an omission which ORG found reasonable , given the purpose of the telephone tapping and its secrecy . However , the person concerned had subsequently had an opportunity to listen to the recordings and contest their content . ORG also reiterated that there was no prior value attached to the report drafted by the prosecutor , as the courts were free to assess the evidence in the context of the files under examination .

By its decision no . CARDINAL of DATE , ORG confirmed that LAW ORG did not allow for evidence to be gathered during the preliminary investigations ; any such evidence would fall under the ORG scrutiny .


The applicant was born in DATE and lives in GPE .

In DATE the applicant obtained a contract from ORG to carry out repair work in CARDINAL public schools in LOC in order to render them operational .

At DATE , however , he noticed that some of the schools had not yet been fully constructed . He applied to ORG in PERSON and requested the contract to be annulled . He submitted that the payment agreed on for the repairs was too low , given the amount of work needed to complete the construction of those schools .

ORG requested the applicant to start the construction and the repairs , reassuring him that he would be reimbursed for his additional work .

After having completed the construction , the applicant applied to ORG and requested additional compensation of MONEY ( TRL ) . However , his repeated efforts proved fruitless as no payment was made .

On DATE he filed an action with ORG and claimed the outstanding amount of GPE CARDINAL plus interest .

On an unspecified date , the court appointed an expert to determine the amount of additional payment that the applicant was entitled to recover . However , the expert failed to submit his report .

In the absence of the expert report , the court ordered on - site visits to the schools in order to establish the additional work carried out by the applicant .

On DATE the members of the court , accompanied by new experts , conducted an on - site examination at the schools .

On an unspecified date , the experts submitted their calculation of the sums incurred by the applicant for the additional work .

On DATE ORG awarded the applicant TRL CARDINAL plus interest calculated at CARDINAL different rates depending on the relevant period of time , i.e. , PERCENT per annum running from DATE to CARDINAL DATE ; PERCENT per annum from DATE to DATE ; and at the rediscount rate running from DATE until the date of payment .

The applicant appealed . In his petition to ORG he complained about the loss that he had suffered as a result of the high rate of inflation during the proceedings before the civil court .

On DATE ORG upheld the decision of the civil court . On DATE the same court dismissed the applicant 's request for rectification .

On DATE the applicant was paid the total amount of GPE CARDINAL , consisting of the capital plus interest incurred until the payment date .


Preliminary objection joined to merits (ratione materiae);No violation of Art. 6-1

He was accused of rape and committed for trial before an ORG .

At the commencement of the hearing of the case before ORG , the defence requested discovery of a number of relevant documents in the prosecution ’s possession . The defence further requested that a forensic examination of the complainant ’s knickers be carried out and that swabs taken from her vagina be analysed . The prosecution objected . After hearing argument from both sides , ORG granted the requests on DATE . This order was made pursuant to the provisions of Articles CARDINAL(CARDINAL)(b ) , and CARDINAL of LAW , Articles QUANTITY b ) of the LAW and the notion of a fair trial as developed in the recent case - law of the LANGUAGE courts . ORG also relied on Article CARDINAL(CARDINAL ) of GPE , PERSON . CARDINAL , as amended .

The Attorney General immediately applied for judicial review of the order by means of a writ of certiorari . The grounds invoked were lack of jurisdiction and error of law on the face of the record . The application was made ex parte and it came before Justice PERSON , a member of ORG . He granted leave and suspended the enforcement of the order . Thereafter , on DATE , after hearing the parties , Justice PERSON granted the application and quashed ORG order for excess of jurisdiction .

NORP The applicant ’s appeal ( no . DATE ) against this decision was heard by the plenary of ORG consisting of CARDINAL judges . The judges included ORG who , as it transpired towards the end of the subsequent trial , had been actively involved in the investigation that preceded the filing of the indictment against the applicant , in his capacity as senior attorney attached to ORG , i.e. the prosecution . However , at the time of the hearing of the certiorari appeal , the defence had been unaware of this fact and , therefore , no objection was taken to his participation in the proceedings . Neither the prosecution nor ORG referred to the matter .

On DATE the appeal was dismissed by a majority of CARDINAL to CARDINAL . Justice PERSON was part of the majority .

In the course of the subsequent proceedings before ORG , the prosecution provided several of the documents which the defence had previously requested . However , it objected to the defence having an opportunity to carry out forensic tests . The applicant claims that the latter was of the utmost importance for his defence since Vaseline was found on the knickers which the prosecution and ORG treated as strong corroborative evidence of his guilt .

The applicant was found guilty by ORG on DATE and sentenced to CARDINAL years’ imprisonment . He appealed against his conviction to ORG . The appeal ( no . CARDINAL ) was referred to a division of ORG consisting of CARDINAL judges . The first ground of appeal concerned ORG participation in the certiorari proceedings , in violation of the applicant ’s right to a fair trial by an independent and impartial tribunal . The appeal was accompanied by a plea , followed by a petition , that the certiorari judgment of ORG of DATE be vacated having regard to the principles enunciated in a recent decision of ORG in the case of NORP v. Bow Street Metropolitan Stipendiary Magistrate and others ex parte PERSON ( No CARDINAL ) ( DATE ) . Vacation of the said judgment was a precondition for the determination of the applicant ’s first ground of appeal .

At the beginning of the appeal hearing , it was pointed out to the defence that the court could not review the validity of a previous judgment of ORG in the context of an appeal . The defence then filed a separate petition to the plenary of ORG to vacate its previous judgment . The hearing of the appeal was accordingly adjourned pending the determination of the petition .

The petition was examined by the plenary of the Supreme Court consisting of CARDINAL judges , including the CARDINAL judges before whom the applicant ’s appeal was pending . The court was presided over by ORG . An objection to the participation of Justice PERSON was taken by the defence given his previous involvement in the case . It was claimed that his participation at this stage would render him a judge in his own cause and offend against the rule of impartiality . However , the objection was rejected .

The application to vacate was dismissed on DATE by a majority decision delivered by ORG , on the ground that ORG lacked jurisdiction to re - open the proceedings and examine the validity of its previous judgment .

Following dismissal of the petition , the hearing of the appeal was resumed . The appellate division of ORG indicated to the defence that , in view of the dismissal of the application to vacate , the first ground of appeal was left in a vacuum . The defence was then left with no option but to withdraw this ground of appeal as it could no longer be determined .

A hearing of the remaining grounds of appeal which the applicant had made then followed . The hearing was completed on DATE , and judgment was reserved . ORG dismissed the appeal on DATE , thereby re - affirming the applicant ’s conviction .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza

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

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

The applicant ’s wife died on DATE . They had no children from the marriage . In DATE the applicant made a claim for widows’ benefits under the new system in place as from DATE . On DATE the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before DATE . The applicant appealed on DATE and on DATE he was advised that he had no right of appeal .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .