OBG LTD. AND OTHERS v. THE UNITED KINGDOM

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The first applicant , ORG , is a limited company registered in GPE . The second applicant , ORG , is also a limited company registered in GPE . They are companies in liquidation . They are referred to throughout as “ ORG ” .

The third applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The fourth applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The third and fourth applicants were appointed as liquidators of the first and second applicants in DATE .

The CARDINAL applicants are represented before the ORG by Mr PERSON , a lawyer practising in GPE with PERSON , assisted by Mr J. PERSON and Mr PERSON , counsel .

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

In LANGUAGE law , a debenture is a document creating or acknowledging the terms of a loan . It may be secured by a charge , which is an interest in a company ’s property that is created in favour of a creditor . CARDINAL type of charge is a “ floating ” charge , which does not attach to any specific assets .

In LANGUAGE company law , administrative receivership is the process by which administrative receivers are appointed in respect of a company which is unable to meet its debts under a debenture . Administrative receivers may be appointed by the holders of any debenture which is secured by a charge ( see section CARDINAL ) of LAW at paragraph CARDINAL below ) . Thus , administrative receivership is essentially a debt enforcement mechanism for a debenture holder . When administrative receivers are appointed , their primary duty is to the debenture holder , and their function is to ensure that , through the disposal of the company ’s assets , they raise enough money to pay the amount due to the debenture holder .

Administrative receivership is to be distinguished from CARDINAL other processes which may apply to a company which is experiencing financial difficulties : liquidation and administration . Liquidation ( or winding up ) is the process by which an insolvent company is dissolved and its assets sold for the benefit of its creditors . Administration is a process which allows for the appointment of an external manager to run a company and manage its assets . It differs from administrative receivership in that it is done for the benefit of the company and its general creditors , not for a particular debenture holder . It is also different from liquidation in that its goal is to ensure the survival of the company .

CARDINAL

ORG conducted a major utilities construction business in DATE . Its major customer was ORG ( “ ORG ” ) , which accounted for PERCENT of its turnover .

NORP OBG ’s business with ORG was based on a series of contracts , each of which contained a clause ( clause CARDINAL ) which meant that , if ORG went into liquidation , ORG could expel ORG from its sites and employ another contractor to do the work . Under clause CARDINAL , if the other contractor did the work more cheaply than ORG , then the savings made by ORG became due to ORG . If the other contractor cost more , then ORG had to pay the excess to ORG .

On DATE , ORG mortgaged its assets and undertakings in favour of ORG ( “ RBS ” ) , by means of a debenture . The debenture was secured by a floating charge over ORG ’s assets and undertakings .

In DATE , a dispute arose between ORG and ORG , in which ORG alleged that it had been overcharged by ORG . As a result , ORG suspended payments to ORG and sought repayment of sums already paid to ORG under the contracts . This suspension of payments meant that ORG was unable to pay the debts which it owed to its sub - contractors , suppliers and other creditors . This included its debts to one of its major sub - contractors , ORG ( “ NORP ” ) , of over GBP CARDINAL .

Therefore , to ensure the continued solvency of ORG and PERSON , ORG entered into negotiations with PERSON for a secured loan . Those negotiations were inconclusive and no loan agreement was concluded between ORG and PERSON . However , in the course of the negotiations PERSON ’s solicitors , PERSON , drew up documents arranging for the transfer of the ORG debenture from ORG to PERSON . The documents were only executed by ORG and PERSON .

The difficulty with these arrangements was that ORG had owed nothing to ORG under the floating charge in the debenture . Consequently , no secured debt was assigned to PERSON with the debenture . Nonetheless , PERSON was advised by PERSON that it could attach ORG ’s unsecured debts onto the debenture .

Pursuant to Penningtons’ advice , on DATE PERSON appointed administrative receivers over all of ORG ’s assets and undertakings . It did so in order to recover the money which it was owed by ORG .

The applicants maintained that , because PERSON could not attach its unsecured debts to the debenture , PERSON had no lawful authority to take over the rights of ORG under the debenture . Therefore , it had no right to appoint administrative receivers to recover the money that it was owed by ORG .

The receivers also took legal advice from PERSON and were told by PERSON that their appointments were valid . Pursuant to that advice , on DATE , the receivers took possession of all ORG ’s assets and business . The receivers negotiated with ORG for the release of funds owed by ORG to ORG , in order to fund future activity . However , these negotiations were also unsuccessful . Consequently , on DATE , the receivers instructed ORG ’s staff and contractors to cease all work due under the contracts between ORG and ORG . On DATE , the receivers also terminated the majority of the ORG ’s contracts with its staff and contractors .

The receivers then realised ORG ’s assets . They did so by selling its land , plant and equipment ; negotiating the settlement of its claims under its contracts with ORG ; completing , assigning or abandoning its contracts with other customers ; collecting its book debts ; and taking the credit balance in its bank account . In so doing , the receivers realised a total amount of GBP CARDINAL .

The negotiations with ORG resulted in an agreement that ORG would pay ORG GBP CARDINAL in full and final settlement of all claims under the contracts . This agreement was signed in DATE by ORG and by the receivers on behalf of ORG , with the concurrence of its liquidators . The entire sum realised by the receivers was used to repay ORG ’s debt to PERSON and to pay the fees and expenses of the receivers .

Having no further assets with which to pay their remaining creditors , ORG ’s directors called a meeting with their creditors on DATE , at which resolutions were passed to wind up ORG and to appoint liquidators . On DATE , it is estimated that ORG owed its creditors , excluding PERSON , approximately GBP CARDINAL .

ORG ’s sole remaining asset was a claim against PERSON and the receivers for the unlawful appointment of the receivers and the ORG subsequent realisation of its assets .

Consequently , and with their LOC approval , ORG commenced proceedings on DATE against PERSON and the receivers , claiming that the appointment of the receivers had been unlawful and seeking damages .

NORP However , by this date , PERSON was neither solvent nor trading , and went into liquidation on DATE . It did not , therefore , take an active part in the proceedings commenced by the applicants . PERSON were subsequently added as defendants in the proceedings .

Prior to the first hearing in ORG , PERSON admitted that their advice to the receivers , namely that their appointment had been valid , had been negligent and that PERSON were accordingly liable to the receivers for any loss resulting from their advice .

By order dated DATE and a written judgment of DATE , ORG declared that the appointment of the receivers was invalid . It ordered the receivers to pay damages to be assessed at DATE .

At this stage of proceedings , ORG abandoned a claim it had made for an “ account ” . This is a claim requiring a party to account to another party for his dealing with property which has been held under a “ constructive trust ” . ( A constructive trust exists , for example , in respect of the assets of a company in receivership . )

Instead , ORG claimed damages inter alia for trespass and wrongful interference with its property , and loss and damages suffered as a result of the ORG invalid appointment .

The basis of ORG ’s claim was that , but for the invalid appointment of the receivers , ORG would have obtained orders for administration . ORG further claimed that , if orders for administration had been obtained , it would have survived as a business .

Alternatively , ORG claimed there would have been a better realisation of its assets , particularly in relation to the value of its contracts with ORG . This was because it had become apparent , through the disclosure of previously undisclosed documents by ORG , that , in DATE , ORG had made substantial savings when it gave ORG ’s work to another contractor . Accordingly , by operation of clause CARDINAL of the contracts between ORG and ORG ( see paragraph CARDINAL above ) , the fact that ORG had gone into receivership meant that the savings made by ORG became due to ORG .

In later pleadings ORG also alleged that the receivers had committed the tort of conversion ( a tort involving the misappropriation of property : see paragraph CARDINAL below ) . ORG also alleged that this tort had occurred in respect of both its “ chattels ” ( tangible assets other than freehold land ) and its “ choses in action ” ( intangible assets such as contractual rights ) .

In the course of proceedings it was made clear by ORG that its claim for damages was based on the valuation of the business at DATE ( the date on which the receivers took over ) . Its claim was not that the receivers were in breach of the duties they would have owed to ORG had they been validly appointed .

ORG also pleaded that these torts were committed on DATE . This had the consequence that the damages which ORG sought were the difference between the value of the business at that date and the amount actually realised by the receivers . ORG did not , however , allege negligence in the way the receivers had realised the assets or allege that there had been any intention on the part of the receivers to cause loss .

The High Court gave judgment for ORG on DATE . The trial judge rejected ORG ’s submission that , but for the ORG invalid appointment , it would have survived as a business . Instead , he concluded that ORG ’s liquidation or insolvency would have occurred even if the receivers had not been appointed .

The trial judge also rejected ORG ’s submission that the tort of conversion could apply to intangible assets such as contractual rights , finding that there was no basis in the common law for this approach .

The trial judge found , however , that ORG could rely on the tort of interference with contractual relations . This tort applied equally to the ORG interference with ORG ’s tangible assets and to the ORG interference with ORG ’s intangible assets ( such as the ORG contracts ) .

The trial judge accepted that liquidators would have realised a larger sum than the receivers did , particularly in relation to the value of the contracts with ORG . CARDINAL GBP CARDINAL more could have been realised from the contracts than the receivers had achieved . Therefore , he assessed the total damages due to ORG at ORG CARDINAL plus interest in the sum of GBP CARDINAL . The damages as assessed included both ORG ’s tangible assets and its intangible assets , such as its rights under the ORG contracts .

The receivers and PERSON appealed to ORG . They conceded that ORG could rely on the tort of trespass in respect of ORG ’s land , of which the receivers had taken control . They also conceded that ORG could rely on the tort of conversion in respect ORG ’s tangible assets , of which the receivers had taken control . However , the receivers and PERSON argued that the torts of conversion and wrongful interference with contractual relations did not allow damages to be recovered in respect of intangible assets .

On DATE ORG held unanimously that the tort of conversion did not apply to intangible assets . It was not open to the court to invent such a tort .

ORG was , however , divided as to whether the tort of wrongful interference with contractual relations allowed damages to be recovered in respect of intangible assets . Lord Justice PERSON and Lord Justice Carnwath found that it did not ; Lord Justice PERSON found that it did .

Lord Justice PERSON considered that the issue was whether the tort of wrongful interference with contractual relations should be extended to cover situations where there was no intention by a third party to procure a breach of a contract or to impede the performance of a contract . He found that there was no authority for extending the tort in this way . To do so would be to change the nature of the tort : it had always required an intention to procure a breach of contract or a breach of duty .

For Lord Justice PERSON , the receivers had intended to manage the contractual rights of ORG . There had been an intention to interfere in ORG ’s business ( though no intention to cause loss or damage ) . However , this did not amount to an interference with contractual relations in any relevant sense . This conclusion meant ORG ’s claim had to be dismissed , a conclusion which he reached “ with regret ” : the wrongful taking control of intangible assets by an invalidly appointed receiver ought to have had consequences in law . Other claims brought in equity or negligence might have been successful , but ORG ’s claim based on tort had to fail .

Lord Justice Carnwath agreed with Lord Justice PERSON . He found that it would have been a significant extension of the tort if it were to include cases where the interference was not directed at hindering performance of contractual obligations . There was also no policy reason for extending the tort to cases where negligence could not be established ( i.e. to impose strictly liability on the receivers ) . The unusual facts of ORG ’s case made it unsuitable for such an extension .

Lord Justice PERSON , dissenting on this issue , found that the receivers had directly interfered with ORG ’s contracts with ORG . The interference was not intended to cause loss but , in the circumstances , this was not a prerequisite of liability for the tort . The tort of wrongful interference with contractual relations extended to any situation in which a person ’s pre - existing legal situation was altered , even if this did not involve any breach or non - performance of an obligation to a third party . The ORG intervention had changed significantly the way in which ORG ’s rights under the ORG contracts had been ascertained and settled . For ORG , this was sufficient for the purposes of the tort of wrongful interference with ORG ’s pre - existing legal position . It was immaterial that the receivers did not realise that they were acting without authority . It was also immaterial that they had no intention to cause harm to ORG . It was appropriate to find that an invalidly appointed receiver was strictly liable for interference with tangible assets and that he or she was also strictly liable for interference with contractual relations .

By order dated DATE , ORG reduced the amount of damages owed to the applicants to GBP CARDINAL plus interest . ( The difference between the damages as assessed by ORG and those as assessed by ORG is explained by the finding by the majority of ORG that the law of tort did not provide for damages to the applicants in respect of intangible assets , such as their bank account , sums due under contracts , or other debts . )

ORG appealed to ORG . By judgment of CARDINAL DATE , and by a majority of CARDINAL to CARDINAL , ORG upheld ORG judgment and dismissed the appeal .

The five Law Lords hearing the appeal unanimously rejected ORG ’s claim based on an interference with contractual relations . Lord PERSON , who gave the lead speech , held that there were CARDINAL possible causes of action : the tort of procuring a breach of contract or the tort of causing loss by unlawful means . ( Lord PERSON , concurring on this point , observed that there was no “ hybrid tort ” of interfering with contractual relations . ) It was plain and obvious to Lord PERSON that the requirements for liability under either of these torts were not satisfied .

For the first , the tort of procuring a breach of contract was a tort of “ accessory liability ” ( the principle that a person who procures another to commit a wrong incurs liability as an accessory ) . The tort required ( i ) intention to cause a breach of contract and ( ii ) a breach of contract in fact to take place . In ORG ’s case , there had not been any breach or nonperformance of a contract . Therefore , there was no wrong to which accessory liability for procuring a breach of contract could attach .

For the second , the tort of causing loss by unlawful means required ( i ) the use of unlawful means and ( ii ) an intention to cause loss to the claimant . In ORG ’s case the requirements of the tort had not been met either . The receivers had neither used unlawful means nor intended to cause the applicants any loss .

Lord PERSON added that Lord Justice PERSON ’s approach ( see paragraph CARDINAL above ) referred to the tort of causing loss by unlawful means . Lord PERSON reiterated , however , that this tort required both the use of unlawful means and an intention to cause loss . Neither of these elements was present in the applicants’ case .

Lord PERSON disagreed with Lord Justice PERSON expression of regret that ORG did not have a remedy in law for the acts of the invalidly appointed receivers . He noted that this was not a case in which an invalid appointment of receivers had caused damage to a solvent company . The trial judge had found that ORG would not have survived as a business and that it had been heading for liquidation or insolvency . The receivers had acted in good faith , believing their appointment to be valid . Furthermore , ORG ’s liquidators had concurred in the agreement reached with ORG for the full and final settlement of all claims arising under ORG ’s contracts with ORG . Therefore , it could not be said that , as a result of the actions of the receivers , ORG had suffered a loss which it would not otherwise have suffered .

As to ORG ’s claim in respect of the tort of conversion , ORG were divided CARDINAL to CARDINAL . The majority concluded that this claim should also be rejected .

Lord PERSON , writing for the majority , noted that the tort of conversion was historically a tort against a person ’s interest in a chattel ( tangible asset ) . Consistent with its ancient origin , it was a tort of strict liability ( i.e. a tort which did not require the claimant to prove that the defendant was at fault ) . The law had always been very wary of imposing any kind of liability for “ pure economic loss ” ( loss which does not arise directly from physical damage or injury ) .

Moreover , the torts of procuring a breach of contract and causing loss by unlawful means were highly restricted in their application . They were not torts of strict liability : as he had noted , the tort of procuring a breach of contract required proof of an intention to procure a breach of the contract ; the tort of causing loss by unlawful means required proof of an intention to cause loss ( see paragraphs DATE and CARDINAL above ) .

Against this background , it would be an extraordinary step suddenly to extend the tort of conversion to impose strict liability for pure economic loss on receivers who had been appointed and had acted in good faith . Such a step would be for ORG to take .

ORG and PERSON agreed with Lord PERSON . They both added that the facts of ORG ’s case made it singularly unsuitable for such a major change in law .

Lord PERSON and ORG dissented on this point . Lord PERSON argued that the tort of conversion had been extended in the past to cover not only tangible assets but also certain intangible assets which were embodied or recorded in a document ( such as share certificates ) . He saw no reason why the tort of conversion could not be extended still further to encompass intangible assets which were not so documented . This was a “ modest but principled extension ” of the doctrine , which fully accorded with the role of the courts in developing the common law and which respected the intentions of ORG .

ORG found that it made no sense for the receivers to be strictly liable for what was lost on ORG ’s tangible assets but not for what was lost on its intangible assets . It would be inconsistent with principle if the tort of conversion were not extended to encompass both tangible and intangible assets .

Part III of LAW DATE deals with administrative receivership . An “ administrative receiver ” is defined at section CARDINAL(CARDINAL)(a ) as being :

“ a receiver or manager of the whole ( or substantially the whole ) of a company ’s property appointed by or on behalf of the holders of any debentures of the company secured by a charge which , as created , was a floating charge , or by such a charge and CARDINAL or more other securities . ”

Section CARDINAL of the same LAW provides that :

“ Where the appointment of a person as the receiver or manager of a company ’s property under powers contained in an instrument is discovered to be invalid ( whether by virtue of the invalidity of the instrument or otherwise ) , the court may order the person by whom or on whose behalf the appointment was made to indemnify the person appointed against any liability which arises solely by reason of the invalidity of the appointment . ”

Section CARDINAL provides that :

“ ( CARDINAL ) The administrative receiver of a company –

is deemed to be the company ’s agent , unless and until the company goes into liquidation ;

is personally liable on any contract entered into by him in the carrying out of his functions ( except in so far as the contract otherwise provides ) and on any contract of employment adopted by him in the carrying out of those functions ; and

is entitled in respect of that liability to an indemnity out of the assets of the company .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) ( b ) the administrative receiver is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within DATE after his appointment .

( CARDINAL ) This section does not limit any right to indemnity which the administrative receiver would have apart from it , nor limit his liability on contracts entered into or adopted without authority , nor confer any right to indemnity in respect of that liability . ”

Section CARDINAL provides :

“ The acts of an individual as administrator , administrative receiver , liquidator or provisional liquidator of a company are valid notwithstanding any defect in his appointment , nomination or qualifications . ”

The tort of conversion is based on the ancient tort of “ trover ” . Historically , trover was based on the fictitious allegation that the claimant had lost a chattel and that the defendant had found it . The modern tort of conversion holds that anyone who “ converts ” a chattel ( that is , does an act inconsistent with the rights of the owner ) is liable for the loss caused , however innocent he may be . ORG is thus a tort of strict liability .

ORG Act DATE defines wrongful interference with goods to include conversion of goods . “ Goods ” is defined in section CARDINAL(CARDINAL ) to include “ all chattels personal other than things [ choses ] in action and money ” . The Act thus excludes intangible assets from the tort of conversion .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently in a forensic psychiatric clinic in GPE .

In DATE , DATE and DATE respectively the applicant was convicted of attempted rape .

On DATE the applicant was placed in pre - trial detention .

On DATE the GPE am ORG convicted the applicant of CARDINAL counts of attempted rape , combined with sexual assault in CARDINAL case , with assault in another case and with dangerous assault in the third case . Having consulted an expert , who had diagnosed the applicant as suffering from a schizoid and narcissistic personality disorder , the court considered that the applicant had committed his offences with diminished criminal responsibility . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered his placement in a psychiatric hospital ( LAW , see Relevant domestic law below ) .

The applicant was detained in prison until DATE . Since then , he has been detained in a psychiatric hospital ( apart from the period from CARDINAL DATE to CARDINAL DATE during which he was in preventive detention ) , initially in PERSON and since DATE in GPE .

The applicant ’s detention in a psychiatric hospital has been reviewed at regular intervals ( compare Article PERSON and Article CARDINAL of LAW , see Relevant domestic law below ) .

In particular , on DATE ORG , in a decision confirmed on appeal , rejected the request of the applicant , represented by counsel , to terminate or suspend on probation his detention in a psychiatric hospital . It had regard to the report of an external expert consulted in DATE , who had diagnosed the applicant with a schizoid personality disorder with narcissistic and sadist elements , to CARDINAL earlier medical expert reports and to a statement of the director of the GPE clinic for forensic psychiatry of DATE . The latter had agreed with the finding of the external expert that the applicant ’s personality disorder persisted and had confirmed that , contrary to the applicant ’s own assessment , the applicant had not cured his sexual sadism by meditation . ORG found that the conditions for the detention of the applicant , who kept refusing all offers of therapy made to him , in a psychiatric hospital were still met and that there was a risk that the applicant would commit further serious sexual offences if released PERSON ( Article PERSON of LAW , see Relevant domestic law below ) .

On DATE ORG dismissed the applicant ’s constitutional complaint ( file no . DATE ) . It found , in particular , that the courts ordering the continuation of the applicant ’s lengthy detention respected the principle of proportionality . In finding that there was a risk that the applicant would commit serious offences , the courts had not only considered earlier expert reports , but also a recent statement made by the psychiatric hospital . It had not yet been necessary to consult an external psychiatric expert again . Even though the applicant ’s detention had lasted for DATE , its continuation was not yet excessive as the offences the applicant might commit were serious and as the applicant refused any therapy .

On DATE ORG dismissed the request of the applicant , who had refused to be heard in person , to have his detention in a psychiatric hospital terminated or suspended on probation ( see Article DATE and LAW of LAW ) . Having regard to the applicant ’s written submissions and referring to its decision of DATE ( see CARDINAL.b . above ) , it argued that there had been no changes justifying a different assessment . In particular , as the director of the GPE forensic psychiatric clinic had confirmed in his statement of DATE , no progress in the applicant ’s treatment could be made as the applicant kept refusing all offers of therapy . The applicant still suffered from a schizoid personality disorder and might suffer from sexual sadism . Even though this did not necessarily entail a constantly diminished criminal responsibility , the applicant still risked committing sexual offences if released , similar to the ones of which he had previously been convicted .

On DATE the GPE am ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal . Referring also to the decision taken by ORG on DATE , as confirmed on appeal and by ORG , ORG found that the grounds for these decisions , in particular the applicant ’s dangerousness , had not changed .

ORG further considered that the applicant ’s continued detention for DATE was still proportionate . There was a risk that the applicant would commit offences causing grave damage if released and kept refusing treatment even though he had himself been aware of his need of therapy since DATE , believing that he could cure himself by meditation . As had again been confirmed by the medical director of the GPE forensic psychiatric clinic in his statement of DATE , repeated attempts to motivate him to accept treatment had been to no avail .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) lodged against the decisions of ORG dated DATE and of the GPE am ORG dated CARDINAL DATE .

ORG found that the applicant ’s complaint had no prospect of success . The courts dealing with the execution of the applicant ’s detention had had sufficient regard to the numerous external and internal expert reports obtained during the applicant ’s long detention and had taken into account possibly different assessments made by these experts . There was nothing to indicate that the reports drafted by external experts had failed to comply with the minimum standards required by LAW . In so far as the applicant considered himself cured , he was simply replacing by his own view the assessment made by the courts with the help of experts and by the psychiatric hospital .

As to the question whether the applicant ’s continued detention in a psychiatric hospital was proportionate , ORG referred to the reasons of its decision of DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL , see CARDINAL.b . above ) .

The German Criminal Code distinguishes between penalties ( PERSON ) and socalled measures of correction and prevention ( Maßregeln der Besserung und GPE ) to deal with unlawful acts . Penalties ( see Articles CARDINAL et seq . of LAW ) consist mainly of prison sentences and fines . The penalty is fixed according to the defendant ’s guilt ( LAW ) . Measures of correction and prevention ( see Articles CARDINAL et seq . of LAW ) consist mainly of placement in a psychiatric hospital ( LAW ) or a detoxification facility ( LAW ) or in preventive detention ( LAW ) . The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them . Placement in a psychiatric hospital may be ordered against offenders who have acted with diminished criminal responsibility , in addition to their punishment ( compare LAW ) . The measure must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants concerned , as well as to their dangerousness ( LAW ) .

Article CARDINAL of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility , the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive evaluation of the defendant and his act reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public .

Article PERSON of the Criminal Code governs the duration of detention . In its version in force at the relevant time , it provided :

Article GPE

“ ( CARDINAL ) Detention in a detoxification facility may not exceed DATE ...

( CARDINAL ) If there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release . Suspension shall automatically entail supervision of the conduct of the offender .

( CARDINAL ) If a person has spent DATE in preventive detention , the court shall declare the measure terminated if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . ( ... ) ”

If the court considers following the commencement of detention in a psychiatric hospital that the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate , it declares the measure terminated ( Article CARDINAL § CARDINAL ) .

Article CARDINAL of LAW provides for the review of a person ’s detention , inter alia , in a psychiatric hospital . The court may review at any time whether the further execution of the detention order should be suspended on probation . It is obliged to do so within fixed time - limits ( § CARDINAL of Article CARDINAL ) . For persons detained in a psychiatric hospital , this time - limit is DATE , for persons in preventive detention it is DATE ( § CARDINAL of Article CARDINAL ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public judgment);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant was appointed as an inspector at ORG of ORG . In DATE he was transferred to ORG ( the ORG internal structure had been altered in DATE ) . At that time he had the rank of major . His duties included counterintelligence , the recruitment and managing of secret agents , the gathering and dissemination of information from secret sources , secret surveillance , etc .

NORP In DATE a proposal was made for the applicant ’s disciplinary dismissal . The proposal was prompted by an internal investigation which found indications that the applicant had engaged , aside from his duties at the Ministry , in fish farming , and that he had sought to resolve disputes with the persons employed by him by threatening them with his position . It was felt that these activities were incompatible with the duties of an officer of ORG and tarnished the reputation of the service .

The proposal was not upheld due to the lack of sufficient evidence .

On DATE the Director of ORG sent a letter to the head of ORG ( see paragraph CARDINAL below ) . He referred in detail to the above facts and suggested that the applicant be subjected to psychological assessment on the basis of Instruction no . ICARDINAL ( see paragraph CARDINAL below ) .

On DATE the Director of ORG ordered the applicant to present himself for assessment at ORG .

The applicant underwent a psychological assessment on DATE . It consisted of a psychological test , an interview and a polygraph test .

NORP The results of the assessment were available on DATE . The psychologist who had carried it out described the results of his observations and of the polygraph test , and expressed the opinion that the applicant was mentally unfit to work at ORG . The document was classified and the applicant was not allowed to see it .

On DATE the Director of ORG proposed to the Minister of ORG to dismiss the applicant from his post under section CARDINAL(CARDINAL)(CARDINAL ) of ORG DATE and regulation CARDINAL(CARDINAL)(CARDINAL ) of the Act ’s implementing regulations ( see paragraphs CARDINAL and CARDINAL below ) . In his proposal he described in detail the attempt to dismiss the applicant on disciplinary grounds and the results of the psychological assessment . The applicant was allowed to have sight of the proposal the same day .

In an order of DATE the Minister of ORG dismissed the applicant by reference to the legal provisions mentioned in the proposal .

The applicant was acquainted with the order on CARDINAL DATE and noted his disagreement with the grounds for issuing it .

On DATE the applicant sought judicial review of the Minister ’s order . He argued , inter alia , that it had not been duly reasoned and that the psychological assessment on the basis of which it had been issued had not been objective .

In the course of the proceedings before ORG presented a copy of the applicant ’s psychological assessment . The proceedings as a whole were then classified , apparently because the case file contained a classified document .

The applicant was initially represented by CARDINAL lawyers . The first of them withdrew from the proceedings because he could not obtain the requisite security clearance to be able to have access to the documents in the case file . The second also withdrew because she did not have enough legal experience to be granted rights of audience before ORG . The applicant accordingly retained another counsel who had the requisite experience and security clearance .

In her written pleadings counsel for ORG submitted , inter alia , that after the applicant had been found mentally unfit for work , under section CARDINAL(CARDINAL)(CARDINAL ) of ORG ( see paragraph CARDINAL below ) , the Minister had been bound to dismiss him from his post .

A threemember panel of ORG heard the case on DATE . Counsel for the applicant argued , inter alia , that the psychological assessment had not been correctly carried out and that its results could not be trusted . Counsel for ORG argued , inter alia , that the assessment could not be subjected to judicial scrutiny .

In a judgment of DATE ( реш. № CARDINAL от CARDINAL октомври DATE г. по адм. д. № СCARDINAL/CARDINAL г. , ORG , V о. ) , the threemember panel rejected the applicant ’s claim , finding that no breaches of the rules of procedure had occurred in the course of the dismissal procedure . It went on to say that it was not competent to review the results of the psychological assessment carried out by ORG . Under the terms of regulation CARDINAL(CARDINAL)(CARDINAL ) of the implementing regulations of ORG ( see paragraph CARDINAL below ) , such assessments amounted to incontrovertible proof of unfitness for work at ORG , and ORG was the only body competent to determine that issue . The panel also found no indication that the dismissal order was not in line with the purpose of the law .

The applicant appealed on points of law . He challenged , inter alia , the psychological assessment procedure and the independence of the experts who had carried it out . He also contested the threemember panel ’s ruling that ORG was the only body competent to carry out such an examination and that the court could not scrutinise the correctness of the ORG ’s opinion . In an additional memorial filed on DATE he pointed out that in a judgment of CARDINAL DATE ( see paragraph CARDINAL below ) another panel of ORG had stated that the assessment of mental fitness for work at the ORG should be amenable to judicial scrutiny .

In a final judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL май DATE г. по адм. д. № СCARDINAL/CARDINAL г. , PERSON , петчл. св ) , a fivemember panel of ORG dismissed the appeal . It held , inter alia , that the psychological assessment procedure had been duly followed , and that the threemember panel had been correct to find that it could not scrutinise the assessment . Its judgment had been given before the judgment of DATE which had partly struck down regulation CARDINAL ) of the implementing regulations of ORG DATE ( see paragraph CARDINAL below ) and had been based on the wording of that regulation in force before the judgment of DATE .

As the proceedings were classified , the applicant could not obtain copies of ORG judgments . On DATE he asked the court to issue certificates containing the ORG operative provisions and indications as to the subject matter of the case . The president of the fivemember panel which had dealt with the case acceded to the request , and on DATE the applicant was issued CARDINAL certificates , CARDINAL in relation to the threemember panel ’s judgment and another in relation to the fivemember panel ’s judgment .

In the meantime , on DATE the applicant requested the reopening of the proceedings .

In a judgment of DATE ( реш. № ORG от CARDINAL април DATE г. по адм. д. № СCARDINAL/CARDINAL г. , PERSON , петчл. св ) ORG rejected the request .

On DATE a commission appointed by the president of ORG declassified the TIME of the hearings before the threemember and fivemember panels , as well as their judgments . It did so by reference to regulation CARDINAL ) of the Regulations for the implementation of ORG , which provides that the level of classification must be changed if it has been set incorrectly .

Article CARDINAL of the LAW of DATE provides :

“ CARDINAL . The courts shall review the lawfulness of the administration ’s acts and decisions .

Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them , save as expressly specified by statute . ”

Section CARDINAL(CARDINAL ) of ORG ( “ the DATE LAW ) , in force until DATE , provided that the ORG ’s activities were subject to “ civic control [ exercised ] through the authorities set out in the LAW and LAW ” .

Section CARDINAL(CARDINAL)(CARDINAL ) of the Act provided that civil servants employed by ORG were to be dismissed from their posts if they were unfit to carry out their duties . Section CARDINAL ) provided that unfitness of work within the meaning of section CARDINAL(CARDINAL)(CARDINAL ) was to be established in the manner laid down in the Act ’s implementing regulations . The dismissal order was subject to judicial review ( section CARDINAL ) .

Regulation CARDINAL(CARDINAL ) of the Act ’s implementing regulations , which came into force in DATE and were repealed in DATE , specified that unfitness within the meaning of section CARDINAL(CARDINAL)(CARDINAL ) of the LAW could result from : ( a ) a final conviction and effective sentence of imprisonment ; ( b ) the inability to carry out one ’s duties effectively , as established by an internal audit ; ( c ) the systematic or repeated commission of disciplinary offences which were not of a level of gravity warranting disciplinary dismissal ; ( d ) a failure to complete the initial professional qualification course ; ( e ) a failure to submit a conflict - of - interest declaration or an incompatibility established on the basis of such a declaration ; ( f ) mental unfitness for work at the ORG , as established by ORG ( regulation CARDINAL(CARDINAL)(CARDINAL ) ) ; and ( g ) a court order preventing the person concerned from holding certain types of employment as a punishment in a criminal case .

On DATE the Minister of ORG issued Instruction no . ICARDINAL on “ the psychological selection and psychological aspects of the appraisal ( reselection ) of the civil servants ( officers , sergeants and civilian staff ) employed by the Ministry ” . The instruction was issued under , inter alia , regulation CARDINAL of the CARDINAL Act ’s implementing regulations , which provided that the mental and physical fitness of the ORG ’s staff was to be assessed periodically in a manner laid down by the Minister ( this regulation was repealed in DATE ) . Section CARDINAL of the ORG provided that those assessments were to be carried out by ORG ( see paragraph CARDINAL below ) . By virtue of section CARDINAL , the purpose of the psychological assessment of the ORG ’s staff was to determine ( a ) their current mental condition , ( b ) diminished motivation , behavioural or emotional inadequacy , or general deadaption leading to low professional effectiveness , or ( c ) abuse of position for financial gain . In carrying out the assessment of staff suspected of abusing their posts , the ORG ’s experts could resort to a polygraph test ( section CARDINAL(CARDINAL)(a ) ) . Such persons could be subjected to sporadic assessments with a view to protecting the ORG from “ staff members who ha[d ] lost their mental or emotional stability or other professional qualities and [ could ] cause damage to themselves , the [ Ministry ] or society through actions or omissions ” ( section CARDINAL(CARDINAL ) ) . The conclusion of the assessment could be “ mentally fit for the post ” , “ mentally unfit for the post ” or “ mentally unfit for work at ORG ” ( section CARDINAL(CARDINAL ) ) . The results of the assessment could , inter alia , constitute grounds for dismissal under section CARDINAL(CARDINAL)(CARDINAL ) of the CARDINAL Act and regulation CARDINAL(CARDINAL)(CARDINAL ) of the Act ’s implementing regulations ( section CARDINAL(CARDINAL ) ) . The conclusion that a person was “ mentally unfit for work at ORG ” was final and not subject to review ( section CARDINAL(CARDINAL ) ) .

The Ministry ’s Psychology Institute was set up by the Government in DATE for the purpose of carrying out initial and followup psychological examinations of the staff of ORG , drawing up psychological expert reports , and training the ORG ’s staff ( point CARDINAL of Decree no . CARDINAL of DATE of ORG ) . At the relevant time its structure and activities were governed by Regulations no . ICARDINAL issued by the Minister of ORG on DATE ( in DATE they were superseded by Regulations no . GPE ) . Its director was appointed and dismissed by the Minister .

In its early caselaw under section CARDINAL(CARDINAL)(CARDINAL ) of the LAW and regulation ORG ) , ORG consistently held that the ORG ’s assessment of a person ’s mental fitness for work at ORG was not subject to judicial review and could not be contested through any means , and that a conclusion that a person was mentally unfit for work at ORG required the Minister to dismiss that person ( see реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , петчл. св ; реш. № CARDINAL от DATE г. по адм. д. № GPE DATE г. , ORG , V о. ; реш. № CARDINAL от CARDINAL март DATE г. по адм. д. № ORG г. , ORG , V о. ; реш. № DATE от CARDINAL декември DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от CARDINAL февруари DATE г. по адм. д. № CARDINAL/CARDINAL г. , ORG , V о. ; реш. № CARDINAL от CARDINAL май DATE г. по адм. д. № DATE г. , ORG , V о. ; and реш. № CARDINAL от CARDINAL юни DATE г. по адм. д. № DATE г. , ORG , V о. ) .

In DATE several persons brought a legal challenge to regulation CARDINAL(CARDINAL)(CARDINAL ) ( see paragraph CARDINAL above ) . In a judgment of DATE , which came into force on DATE following its publication in ORG ( реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № CARDINAL/CARDINAL г. , PERSON , петчл. св , обн. , GPE , бр. CARDINAL от CARDINAL февруари DATE г. ) , a fivemember panel of ORG partly upheld the challenge and decided to strike out the wording “ established by the [ ORG ] Psychology Institute ” . It noted , inter alia , that the ORG was directly subordinate to the Minister , and that its assessments of a person ’s mental fitness for work at ORG were not subject to any form of review . There was therefore no guarantee that in carrying out those assessments the ORG ’s experts would not commit errors , abuse their powers or deprive those concerned of their rights . That was important because if the ORG ’s experts assessed a member of staff to be mentally unfit for work at ORG , the Minister had no discretion and was bound to dismiss him or her . Although the member of staff concerned could seek judicial review of the Minister ’s order , such a challenge would be futile because the assessment , which formed the basis of the Minister ’s order , was not amenable to judicial scrutiny . The court acknowledged that the employment of the ORG ’s staff touched upon national security . Nonetheless , it went on to hold that considerations relating to national security had to yield to a person ’s right under LAW ( see paragraph CARDINAL above ) to judicial review of all administrative decisions affecting his or her rights . The court said that the assessment of a person ’s mental fitness for work at ORG should be amenable to “ the same control for lawfulness , [ namely ] by several independent experts and by the court , as in the case of assessing health conditions [ for the purpose of granting disability benefits ] ” . Therefore , in as much as it provided that ORG was the only body authorised to assess mental fitness for work at ORG , regulation CARDINAL(CARDINAL)(CARDINAL ) ran counter to section DATE CARDINAL Act ( see paragraph CARDINAL above ) and LAW . It was in addition contrary to the purpose of the law .

Following the delivery of that judgment , a panel of ORG held that , as a result of the partial strikedown of regulation CARDINAL(CARDINAL)(CARDINAL ) , the ORG ’s assessments could , even if predating the strike - down , be subjected to judicial scrutiny in proceedings for judicial review of a dismissal order ( see реш. № CARDINAL от CARDINAL април DATE г. по адм. д. № CARDINAL г. , PERSON , V о. ) .

However , other panels of the court abided by the old caselaw , holding that the lawfulness of dismissals which preceded the entry into force of the judgment of CARDINAL DATE was to be judged by reference to the wording of regulation CARDINAL(CARDINAL)(CARDINAL ) before its partial strikedown because the strikedown did not have retroactive effect ( see реш. № CARDINAL от DATE г. по адм. д. № С-CARDINAL/CARDINAL г. , PERSON , петчл. св ; реш. № CARDINAL от QUANTITY DATE г. по адм. д. № DATE г. , PERSON , ORG ; реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от CARDINAL май DATE г. по адм. д. № DATE г. , PERSON , ORG ; № ЯCARDINAL от CARDINAL януари DATE г. по адм. д. № CARDINAL г. , PERSON , V о. ; and № ЯCARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , PERSON , петчл. св ) . In CARDINAL judgment a panel stated that the effect of that judgment had been to make it possible to challenge the ORG ’s psychological assessment in cases where the dismissal had taken place after the judgment ( see реш. № CARDINAL от CARDINAL юни DATE г. по адм. д. № CARDINAL/CARDINAL г. , PERSON , V о. ) .

A panel of the court also held that the order that a member of staff should submit to a psychological assessment was merely a preparatory act and was not itself amenable to judicial review ( see реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , V о. ) .

In a number of judgments given between DATE and DATE panels of the court found that the psychological assessment procedure had been used to circumvent the rules governing disciplinary liability , and on that basis quashed the dismissal orders ( see реш. № DATE от DATE г. по адм. д. № DATE г. , PERSON , V о. ; № DATE от DATE г. по адм. д. № DATE г. , ORG , V о. ; № DATE от DATE г. по адм. д. № DATE г. , ORG , V о. ; № CARDINAL от DATE г. по адм. д. № DATE г. , ORG , V о. ; реш. № DATE от CARDINAL ноември DATE г. по адм. д. № CARDINAL г. , PERSON , V о. ; реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , PERSON , ORG ; реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от CARDINAL юли DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от CARDINAL юли DATE г. по адм. д. № DATE г. , PERSON , V о. ; and реш. № DATE от CARDINAL юли DATE г. по адм. д. № DATE г. , PERSON , V о. ; and реш. № CARDINAL от CARDINAL март DATE г. по адм. д. № DATE г. , PERSON , ORG ) . In some of those cases the panels also held that , as far as it provided that the psychological assessment could determine whether the member of staff had abused his or her position for financial gain , Instruction no . PERSON ( see paragraph CARDINAL above ) ran counter to the Act : mental fitness for work was not to be confused with the commission of disciplinary offences ( see реш. № DATE от DATE г. по адм. д. № DATE г. , ORG , V о. , and реш. № DATE от DATE г. по адм. д. № DATE г. , PERSON , V о. ) .

Section CARDINAL(CARDINAL)(CARDINAL ) of ORG ( “ the CARDINAL Act ” ) , which superseded LAW in DATE , provides that a civil servant employed by ORG must be dismissed on health grounds if he or she can not perform his or her duties as a result of a health condition which has led to a permanent disability or as a result of medical contraindications .

Section CARDINAL(CARDINAL ) ( until DATE section CARDINAL(CARDINAL ) ) of the CARDINAL Act provides that the circumstances under section CARDINAL ) are to be determined by ORG , whose assessment may be challenged before ORG . Regulation CARDINAL(CARDINAL ) of the Act ’s implementing regulations , adopted in DATE , specifies that that Commission is attached to ORG .

When dealing with challenges to dismissal orders issued by reference to section CARDINAL ) , some panels of ORG have stood by the position that the assessment whether a person is fit for work at ORG was not amenable to judicial scrutiny in proceedings directed against the dismissal order ( see реш. № CARDINAL от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , ORG ; реш. № DATE от CARDINAL октомври DATE г. по адм. д. № CARDINAL г. , PERSON , ORG ; and реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № CARDINAL/CARDINAL г. , PERSON , петчл. св ) . However , another panel examined the validity of such an assessment by reference to the conclusions of medical experts appointed in the course of the judicial review proceedings ( see реш. № DATE от CARDINAL юли DATE г. по адм. д. № DATE г. , PERSON , петчл. св ) .

The administrative courts have on several occasions examined direct challenges to assessments of the abovementioned ORG . In doing so , they have sought the assistance of medical experts , and have taken into account the opinions of those experts ( see реш. № DATE от CARDINAL юли DATE г. по адм. д. № DATE г. , ORG ; реш. № CARDINAL от CARDINAL юни DATE г. по адм. д. № DATE г. , ORG ; and реш. № CARDINAL от CARDINAL юли DATE г. по адм. д. № DATE г. , АССГ ) .


Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

In DATE ORG ( “ the Council ” ) approved guidelines for the operation and management of ORG . The ORG tape recordings would be retained initially for DATE , this period to be reviewed from time to time and reduced to a minimum , and the tapes would be erased on completion of the storage period . In the section headed “ privacy to neighbouring properties ” , it was noted that the ORG system should ensure adequate provision for the avoidance of unwarranted intrusion in areas surrounding those under surveillance . In the event of it becoming apparent that privacy was being violated , it was foreseen that the ORG would take such steps as to ensure that “ either an electronic ( digital ) screening or physical screening is taking place ” . In DATE the ORG installed a ORG surveillance system in GPE . It was fully operational by DATE . The ORG 's monitoring operator had a direct visual and audio link to the police so that if it was considered that an incident warranting police intervention was taking place , the images being captured could be switched through to the police .

In DATE the applicant was suffering from depression as a result of personal and family circumstances . On DATE at TIME he walked alone down the high street towards a central junction in the centre of GPE with a kitchen knife in his hand and he attempted to commit suicide by cutting his wrists . He stopped at the junction and leaned over a railing facing the traffic with the knife in his hand . He was unaware that a ORG camera , mounted on the traffic island in front of the junction , filmed his movements . The ORG footage later disclosed did not show the applicant cutting his wrists , the operator being solely alerted to an individual in possession of a knife at the junction .

The police were notified by the ORG operator and arrived . They took the knife from the applicant , gave him medical assistance and brought him to the police station . He was detained under LAW DATE . His custody record refers to the self - inflicted injuries to his wrists on arrival and notes that he was examined and treated by a doctor , after which he was released without charge and taken home by police officers .

On DATE the ORG working party of the ORG agreed to authorise the release of regular press features on the ORG system . The ORG also decided to cooperate with third parties in the preparation of factual programmes concerning their ORG system .

The ORG 's first press feature , ORG , was released on CARDINAL DATE and included CARDINAL photographs taken from the ORG footage of the applicant to accompany an article entitled “ Defused – The partnership between ORG and the police prevents a potentially dangerous situation ” . The applicant 's face was not specifically masked . The article noted that an individual had been spotted with a knife in his hand , that he was clearly unhappy but not looking for trouble , that the police had been alerted , that the individual had been disarmed and brought to the police station where he was questioned and given assistance for his problems . The article included the name of a ORG employee in the event that readers wished to obtain copies of the pictures .

On DATE the ORG used a photograph of the incident involving the applicant on its front page to accompany an article on the use and benefits of the ORG system . The applicant 's face was not specifically masked .

On DATE an article entitled “ Gotcha ” appeared in ORG , a local newspaper with a circulation of CARDINAL . The article was accompanied by a photograph of the applicant taken from the ORG footage . The newspaper article referred to the applicant having been intercepted with a knife and a potentially dangerous situation being defused as a result of the ORG system . It was noted that the applicant had been released without charge .

As a result ORG sought , and the ORG provided , footage of the incident involving the applicant . On DATE extracts from that footage were included in its news programme about the ORG system , a local broadcast to an average audience of CARDINAL . The applicant 's face had been masked at the ORG 's oral request . However , that masking was later considered inadequate by ORG ( see below ) , the applicant 's distinctive hairstyle and moustache making him easily recognisable to anyone who knew him .

On DATE the Chairman of ORG informed ORG that cooperation had been , and would continue to be , given in the preparation of factual documentary programmes concerning the ORG system . He referred to the feature on ORG which had been broadcast by ORG on DATE .

In DATE or DATE the applicant became aware that he had been filmed on ORG and that footage had been released because a neighbour told his partner that the former had seen him on television . He did not take any action then as he was still suffering from severe depression .

On DATE a second article entitled “ Eyes in the sky triumph ” was published in ORG outlining the benefits of ORG in the fight against crime and was accompanied by the same photograph as had been previously used by that newspaper . It appears that a number of people recognised the applicant . A letter of DATE from the ORG opined that the applicant was not identifiable . ORG did not decide whether or not the applicant was identifiable from the photograph ( see below ) .

At or about that time the ORG agreed to furnish ORG footage of , inter alios , the applicant to the producers of “ Crime Beat ” , a series on ORG national television with an average of CARDINAL viewers . ORG imposed orally a number of conditions on the producers including that no one should be identifiable in the footage and that all faces should be masked . The ORG were also to consult with the police to ensure that they had “ no objection to recordings being shown because of sub judice issues ” .

DATE the applicant was told by friends that they had seen him on DATE in trailers for an episode of “ Crime Beat ” which was to be broadcast soon . On DATE he complained to the ORG about the forthcoming programme , at which stage the ORG became aware of his identity . The ORG contacted the producers who confirmed that his image had been masked . That evening the ORG footage was shown on “ Crime Beat ” . The applicant 's image was masked in the main programme itself but ORG ( see below ) later found that masking inadequate . Many of the applicant 's friends and family who saw the programme recognised the applicant .

In response to the applicant 's request for a copy of the ORG 's licence agreement with the producers of “ Crime Beat ” , by letter dated DATE , the ORG provided an unsigned and undated agreement which did not appear to relate to the applicant but which contained a requirement to mask all faces in any copies of the relevant video . By letter dated DATE the ORG confirmed that it could not locate a signed copy of the agreement with the producers but it included an earlier draft of that agreement which had been signed by the producers , which related to the footage of the applicant but which did not include any masking requirement .

The applicant made a number of media appearances thereafter to speak out against the publication of the footage and photographs . On DATE he participated in a national radio programme ( ORG CARDINAL ) . On DATE he spoke to a journalist who published an article in a national newspaper and this was the first time the applicant 's name appeared in the media . Other newspaper articles included photographs of the applicant or quotes given by him . He also appeared on national television : on DATE on ORG “ Right to Reply ” , on DATE on ORG “ GPE and on DATE on ORG CARDINAL 's “ You Decide ” . He also had his photograph published in ORG on DATE .

On DATE the applicant lodged a complaint with the ORG in relation to , inter alia , the “ Crime Beat ” programme alleging an unwarranted infringement of his privacy and that he had received unjust and unfair treatment . On DATE the ORG upheld both of his complaints .

The ORG noted that the ORG had already accepted that it had meant to mask the applicant 's image and that this had not been done in the trailer due to an oversight . The ORG also considered the masking during the programme inadequate as the applicant had been recognised by viewers who had not seen the trailer . It was accepted that the ORG had not intended that the applicant would be identifiable . However , the ORG found that the effect was to reveal to the applicant 's family , friends and neighbours an episode which he did not wish to reveal , and that the outcome had been distressing and amounted to an unwarranted infringement of his privacy . The ORG added that the fact that the applicant later chose to speak publicly about this incident did not alter the infringement established . The ORG was directed to broadcast a summary of the adjudication of the ORG with the episode of “ Crime Beat ” on DATE and a summary of the adjudication was also published in ORG on DATE .

On DATE the applicant complained to the ORG in respect of the broadcast by ORG . The latter had already apologised to the applicant and conceded that it had breached the privacy requirements of section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ( sections concerning coverage of events in public and scenes of suffering and distress ) . The ORG noted that the implication was that a man carrying a knife was likely to be intent on a criminal act . It found that the applicant 's identity was not adequately obscured and that he was readily identifiable and easily recognisable by those who knew him . It found that section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW had been breached and the decision of the ORG was published in its ORG and Interventions Report of DATE . Given the admission and apology by ORG , no further action was taken by the ORG .

On DATE the applicant complained to the ORG in respect of the articles published in ORG . The ORG rejected the applicant 's complaint without a hearing and the decision was communicated to the applicant by letter dated DATE . The ORG considered that , whether or not the applicant was identifiable from the photographs , the events in question took place in a town high street , open to public view . It did not consider that the juxtaposition of the photographs and the articles implied that the applicant had committed a crime and it had been made clear that he was released without charge , the second article indicating that the applicant was ill at the relevant time .

On DATE the applicant applied to ORG for leave to apply for judicial review of the ORG 's disclosure of the ORG material arguing , inter alia , that that disclosure had no basis in law . On DATE a single judge of ORG refused leave . On DATE the High Court granted leave on a renewed request and leave to amend the application to include a complaint that the disclosure was irrational , even if lawful .

By judgment dated DATE ORG rejected the application for judicial review . It found that the purpose of section CARDINAL of ORG “ the DATE LAW ) was to empower a local authority to provide ORG equipment in order to promote the prevention of crime or the welfare of victims of crime :

“ By publicising information about the successful operation of the ORG , the ORG was providing information about its effectiveness and thereby reinforcing the deterrent effect of its operation . The making available to the media of footage from the ORG film to show the effectiveness of the system can properly be said ... to be incidental to and to facilitate the discharge of the ORG 's function under LAW [ of LAW ] because it thereby increased , or tended to increase , the preventative effect of the equipment which [ the ORG was ] providing for the purposes of the prevention of crime . ”

It concluded that the ORG had the power to distribute the ORG footage to the media by virtue of section CARDINAL of LAW DATE in the discharge of their functions under section CARDINAL of the CARDINAL Act .

As to the “ rationality ” of the ORG 's decision to disclose , the applicant submitted that the ORG acted irrationally in disclosing the footage with the aim of crime prevention when he had not been , in fact , involved in any criminal activity . He argued that by failing to consult the police to see if he had been charged with a criminal offence and to impose sufficient restrictions as regards disclosure of his identity , the ORG had facilitated an unwarranted invasion of his privacy which was contrary to the spirit , if not the letter , of the ORG 's guidelines .

The High Court judge had some sympathy with that submission but did not consider it correct in law . He went on :

“ I have some sympathy with the applicant who has suffered an invasion of his privacy , as is borne out by the findings of ORG and ORG . However , if I am right in deciding that the ORG does have power to distribute the film footage from its ORG system , there may on occasion be undesirable invasions of privacy . Unless and until there is a general right of privacy recognised by LANGUAGE law ( and the indications are that there may soon be so by incorporation of ORG into our law ) , reliance must be placed on effective guidance being issued by Codes of practice or otherwise , in order to try and avoid such undesirable invasions of a person 's privacy .

The evidence is that the ORG cameras in public places play an important role in both crime prevention and crime detection . In this case , the film footage showed a man walking in the High Street carrying a large knife in his hand . It did not show him attempting to commit suicide . It was plainly a potentially dangerous situation which the ORG 's monitoring employee quite properly put to the police , as a result of which the man was arrested . ... It was not unreasonable for the ORG to conclude that the footage was a useful example of how a potentially dangerous situation can be avoided . ... In those circumstances , it seems to me that the decision of the ORG to distribute the film footage to the media could not be said to be irrational or unreasonable , bearing in mind that the film did not show an attempted suicide and that , at the time , they did not know the applicant 's identity . They therefore had no reason to consult the police as to whether an offence had been committed . They did not sell the take - outs from the ORG footage for commercial gain and , more importantly , they had imposed on the television companies a requirement that an individual 's face should be masked . It is true that that was a verbal rather than a written requirement , but I am not persuaded that what happened was likely to have been different if it had been a written requirement . In the event , the fault lay with the television companies . ORG failed to mask the applicant 's identity adequately . The ORG failed to mask the applicant 's identity at all in the trailers . As soon as the ORG were notified about that by the applicant , DATE before the programme went out , which was the first time they were aware of the applicant 's identity , they immediately contacted the ORG and received assurances that his image had been masked in the programme . In the event , unknown to the ORG , it had not been adequately masked in the programme .

I am sure that lessons can be learnt from this unfortunate incident , and it may be that , with the benefit of hindsight , the ORG will want to see if they can tighten up their guidelines to seek to avoid a similar incident in the future . I am , however , equally sure that , in the circumstances that I have described , the ORG can not be said to have acted irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable local authority could sensibly have acted . ”

An application to ORG for leave to appeal to ORG was rejected . The subsequent leave application to a single judge of ORG was rejected on DATE because

“ ... the [ High Court ] Judge was plainly correct in his interpretation of the relevant statutory provisions and the ORG was neither acting outside its statutory authority nor irrationally in making the film and photographs available to the media . The injury , of which complaint is made , arises from a failure on the part of the media to sufficiently disguise the applicant when making the film and photographs visible to the public . That is and has been the subject of complaint against the media involved but is not capable of supporting a claim for a declaration against ORG ” .

Following an oral hearing before the full ORG , the applicant 's leave application was dismissed on DATE .

The Criminal Justice and LAW DATE ( “ the DATE LAW ) came into force on DATE . The relevant parts of CARDINAL provide as follows :

“ CARDINAL . Without prejudice to any power which they may appear to exercise for those purposes under any other enactment , a local authority may take such of the following steps as they consider will , in relation to their area , promote the prevention of crime or the welfare of the victims of crime –

( a ) providing apparatus for recording visual images of events occurring on any land in their area ;

( b ) providing within their area a telecommunications system which , under Part II of LAW DATE , may be run without a licence ;

( c ) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority .

Any power to provide , or to arrange for the provision of , any apparatus includes power to maintain , or operate , or , as the case may be , to arrange for the maintenance or operation of , that apparatus . ”

The relevant part of section CARDINAL(CARDINAL ) of LAW DATE provides as follows :

“ Without prejudice to any powers exercisable apart from this section but subject to the provisions of this LAW and any other enactment passed before or after this LAW , a local authority shall have the power to do anything ... which is calculated to facilitate , or is conducive or incidental to the discharge of any of their functions . ”

Essex Police Policy Guidelines dated DATE concern the involvement of the police in the installation and operation of ORG systems in their remit . In the section concerning the release to the media of video footage , it was pointed out that care should be taken not to jeopardise any existing or future legal proceedings , that licence agreements covering all appropriate terms and conditions of release should be drawn up and that care should always be taken to ensure that victims or other innocent parties featured were aware of its potential use and , where possible , their consent obtained . Where possible , the identity of victims , police employees and suspects ( where identification might jeopardise criminal proceedings ) should be masked .

As an extension of ORG announced in DATE , government funding for ORG systems was introduced in DATE and the sum of MONEY ( GBP ) has been made available over DATE , of which MONEY has already been allocated to CARDINAL ORG schemes . CARDINAL of the requirements of such funding is that the scheme should be regulated by a suitable code of practice to ensure that it operates fairly and with proper respect for personal privacy . In DATE of operation of the ORG system in GPE , there was a PERCENT reduction in crime .

Where a public authority has exceeded its powers or has acted irrationally or has reached a decision in breach of the rules of procedural fairness , then a person aggrieved may challenge the decision by means of a judicial review . If a decision is so disproportionate to its intended objective as to be irrational , the ORG will strike it down . The LANGUAGE courts do not recognise proportionality as a separate head of judicial review . However , in the case of NORP ( ORG ) v. Secretary of ORG for ORG ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , Lord PERSON of ORG stated obiter dictum :

“ I consider that even without reference to LAW DATE the time has come to recognise that this principle [ of proportionality ] is part of LANGUAGE administrative law , not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law . ”

The remedy of breach of confidence is made up of CARDINAL essential elements : the information itself must have “ the necessary quality of confidence about it ” ; the information “ must have been imparted in circumstances importing an obligation of confidence ” ; and there must have been an “ unauthorised use of that information to the detriment of the party communicating it ” ( PERSON v. ORG [ DATE ] Reports of Patent Cases CARDINAL , at p. CARDINAL ) . A fuller description of this cause of action together with more recent domestic case - law are detailed in PERSON and PERSON v. GPE ( applications nos . CARDINAL and DATE , Commission decision of DATE , Decisions and Reports ( GPE ) CARDINALA , p. CARDINAL ) .

Where a public official abuses his position by performing an administrative act maliciously , or which he knows he has no power to do , and causes foreseeable harm , then the injured person may recover damages on the basis of misfeasance in public office .

The remedy of defamation is well established in LANGUAGE law . Every person is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse .

The essential elements of malicious falsehood are that a defendant has published words about the claimant that are false , that they were published maliciously and that special damage has followed as a direct and natural result of their publication ( PERSON [ DATE ] FAC CARDINAL ) .

The tort of nuisance consists of an unwarranted interference with the use or enjoyment of land ( see , for example , ORG [ DATE ] Law Reports : ORG ) . ORG consists of an unjustifiable intrusion by CARDINAL person upon the land in the possession of another . The domestic courts have been developing the concept of a tort of harassment causing personal injury ( see , for example , PERSON v. PERSON [ DATE ] CARDINAL Family Law Reports CARDINAL , and GPE v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

Depending on the circumstances in which any film has been made or published , the unauthorised taking or publication of pictures might be prevented ( or damages recovered ) on the grounds of copyright , breach of contract or inducing breach of contract .

Statute law provides certain protection in the form of ORG . Statutory regulation of surveillance is provided by ORG DATE , by LAW DATE and by LAW . The purpose of LAW is to ensure that the relevant investigatory powers of the authorities are used in accordance with human rights . Many users of ORG will have to comply with the provisions of LAW DATE . Specific statutory protection of privacy is accorded in certain other contexts such as the anonymity of rape victims ( Sexual Offences LAW DATE ) and the prohibition of the publication of the names or photographs of children involved in legal proceedings ( Children and Young Persons Act DATE ) .

LAW DATE came into force in DATE . It requires that , so far as it is possible to do so , primary and subordinate legislation be read and given effect in a manner compatible with LAW and further provides that it is unlawful for a public authority to act in a way incompatible with a Convention right .

In PERSON ( [ DATE ] ORG CARDINAL ) , ORG indicated that he was prepared to find that there was now a qualified right to privacy under NORP domestic law , although other members of ORG ( PERSON and PERSON ) did not find it necessary to rule on that point .

ORG ( ORG ) was established by LAW with effect from DATE . It is the duty of the ORG to draw up and publish a code giving guidance as to the principles to be observed and practices to be followed in connection with the avoidance of unjust or unfair treatment in programmes or the unwarranted infringement of privacy in programmes ( section CARDINAL of the CARDINAL Act ) . In this respect , paragraph CARDINAL of the code points out that broadcasters should take care with material recorded by ORG cameras to ensure identifiable individuals are treated fairly and that “ any exceptions to the requirement of individual consent would have to be justified by an overriding public interest ” . The ORG is also required to consider and adjudicate on complaints relating to unjust or unfair treatment in programmes , or to unwarranted infringement of privacy in programmes ( sections CARDINAL and CARDINAL of the DATE Act ) .

The ORG has powers , inter alia , to direct broadcasting bodies to publish the findings of the ORG or a summary of them ( section CARDINAL ) , but it has no powers to direct a broadcasting body not to broadcast a programme .

ORG ( ORG ) is a public body set up by LAW DATE to licence and regulate commercially funded television ( excluding television services provided by , inter alia , the ORG ) . The LAW requires the ORG to draw up and enforce a code governing programming standards and practice , which code covers issues of privacy . The ORG adjudicates upon complaints made under the code and , where a breach is confirmed , the ORG may impose sanctions such as requiring on - screen apologies , ordering fines and revoking licences .

ORG ( ORG ) is a non - statutory body set up by the newspaper industry for the purposes of self - regulation . The ORG operates a voluntary code of practice , which code includes provisions relating to privacy . If a newspaper is found to be in breach of the code , the newspaper is to publish the adjudication of the ORG . The ORG has no legal powers to prevent publication of material , to enforce its rulings or to grant any legal remedies to a complainant .


Violation of Art. 6-1 (one aspect);No violation of Art. 6-1 (other aspect);Violation of P1-1;Pecuniary damage - reserved;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant is a NORP incorporated insurance company , with its seat in PERSON .

On DATE , a governmental order allowed the applicant company to enter “ banking and investments operations ” , apart from its main insurance activity .

On DATE , the applicant company obtained from ORG a licence to engage in banking operations . During a routine audit procedure , the company refused to disclose its books , claiming it did not perform any banking activities . On DATE , the applicant company ’s licence was withdrawn . The applicant company did not challenge this decision .

On DATE , the applicant company concluded a DATE contract ( “ the contract ” ) , with company F. , entitled “ Joint Commercial Transaction ” . The applicant company made a capital contribution of CARDINAL NORP lei ( ORG ) to company ORG , and in exchange it was to receive the sum of MDL CARDINAL , payable in DATE instalments . Company F. was also to reimburse the capital contribution in a lump sum by DATE . Non compliance with the terms of the contract gave rise to a penalty of PERCENT of the unpaid sum for DATE . By a collateral contract , company F. mortgaged its plant and equipment , as security .

By DATE , company F. had paid the applicant company MDL CARDINAL . Due to a slowdown in the national economy , company F. was , as of that date , unable to pay the balance in full and had no reasonable prospect of complying with the terms of the contract .

On DATE the applicant company filed an application with ORG for breach of contract and requested that company F. be ordered to pay MDL CARDINAL , constituting the capital contribution and contractual penalties .

Company F. argued that the contract contained an implied obligation , arising from the nature and purpose of the contract , that the applicant company was to contribute to the expenses and losses of the joint venture . As the company had experienced losses , in spite of its good faith in performance , it asked for an adjustment or cancellation of the MDL CARDINAL debt , invoking the Civil Code provisions on risk - sharing in joint ventures . As a subsidiary argument , it submitted that , in the absence of this implied obligation , the contract became a regular loan , for which the applicant company did not possess a licence .

On DATE ORG partially allowed the applicant company ’s application , but it reduced the contractual penalties by PERCENT , considering the claim to be disproportionate in relation to the actual damage experienced by the applicant company , and issued an order of payment for an amount of MDL ORG ( the equivalent of MONEY ( ORG ) at the time ) ) .

On DATE , ORG , who was not a party to the proceedings , lodged an ordinary appeal against the judgment of DATE .

On DATE the “ Law on Economic Courts ” entered into force . It provided for the re - organisation of the part of the judiciary system dealing with economic disputes . The re - organisation process resulted in a suspension of the hearings for DATE .

On DATE ORG withdrew his appeal against the judgment of DATE . The judgment of ORG thus became final .

On DATE ORG lodged a request for annulment ( recurs PERSON anulare ) under LAW of ORG against the judgment of DATE , asking that the contract be declared null and void for non - compliance with ORG .

On DATE the Appeal on Points of Law Chamber of ORG allowed the ORG ’s request , quashed the judgment of CARDINAL DATE , and dismissed the applicant company ’s action .

On DATE , ORG rejected the applicant company ’s appeal against the above judgment . It found that the contract was a disguised credit operation and since the applicant company no longer possessed a banking licence , such a contract was illegal .

On DATE ORG dismissed the applicant ’s extraordinary appeal ( contestaţie în anulare ) on the ground that the conditions for the re - opening of the case had not been fulfilled .

On DATE , pursuant to LAW , the Prosecutor General filed an application with ORG , seeking the annulment of the contract concluded between the applicant company and company F. on DATE . According to ORG , the contract was a disguised credit operation subject to a very high interest rate and the applicant company was not entitled to perform credit operations without a licence .

On DATE ORG dismissed ORG application . The court found , inter alia , that according to ORG , insurance companies were allowed to provide commercial and financial services and that the provision of credit was also permitted under LAW . ORG did not examine the question of the need for a licence . Since no party appealed , the judgment became final .

On DATE ORG lodged under LAW of ORG a request for annulment ( recurs în anulare ) of the judgment of DATE .

On DATE the Appeal on Points of Law Chamber of ORG dismissed the request .

On DATE the Prosecutor General lodged under LAW an appeal on points of law ( recurs ) against this decision .

On DATE , ORG quashed the judgments of DATE and of DATE . It found in favour of ORG and declared the contract between the applicant company and company F. null and void on the ground that it was a disguised credit operation for which the applicant company had no licence .

On DATE the applicant company lodged an extraordinary appeal ( contestaţie în anulare ) against the decision of DATE .

On DATE ORG dismissed the extraordinary appeal .

On DATE ORG and ORG filed an application with ORG of GPE for the confiscation of MDL CARDINAL from the applicant company . The amount represented the profit obtained by ORG as a result of the contract with company ORG , which had been declared null and void by ORG judgment of DATE . In his application , ORG referred , inter alia , to the judgment of DATE of the Appeal on Points of Law Chamber of ORG and to the judgment of DATE of ORG .

On DATE the Prosecutor General requested that the amount to be confiscated be reduced . In this respect , the Prosecutor General pointed out that , according to ORG , an enterprise having exercised an illegal activity was accountable for the profit obtained and for a penalty equal to the profit . Since ORG ’s profit amounted to MDL CARDINAL , the Prosecutor General requested that MDL CARDINAL be confiscated .

On DATE , ORG of GPE found in favour of ORG and ORG and ordered ORG to pay ORG CARDINAL ( the equivalent of ORG CARDINAL,CARDINAL.CARDINAL at the time ) .

On DATE the applicant ’s appeal was dismissed by a final judgment of the Appeal on Points of Law Chamber of ORG of GPE .

On DATE the applicant applied to ORG for revision of the judgments of DATE and DATE . On DATE ORG dismissed the applicant ’s request .

On DATE ORG applied to ORG for revision of the judgments of DATE . On DATE ORG dismissed the request .

Law No . CARDINAL of DATE on ORG , in so far as relevant , reads as follows :

“ The Prosecutor General and his deputies may lodge , within DATE , with the Appeal on Points of Law Chamber of ORG of GPE , a request for annulment ( recurs PERSON anulare ) of any final decision of ORG ... on the ground that the substantive or procedural law was violated ... They may also request a stay of execution of the decision of ORG . ”

DATE . The relevant provision of Law No . CARDINAL of CARDINAL DATE reads as follows :

“ In LAW . CARDINAL of DATE on ORG the words ‘ within one GPE shall be deleted . ”

NORP The relevant provisions of LAW in force until DATE , state :

“ Courts may commence to examine a civil action ... at the prosecutor ’s request , in cases relating to ... the ORG ’s and the society ’s interest regarding ...

e ) ... the nullity of contracts infringing the ORG ’s interest ... ;

f ) ... and for the annulment of acts and activities of corruption and protectionism . ”

“ The parties , ... [ and ] the Prosecutor General ... may , either on their own motion or on an application by CARDINAL of the parties , lodge with ORG an extraordinary appeal ( recurs ) against any final judicial decision of ORG , on the following grounds :

( CARDINAL ) where the judgment has no legal basis or is contrary to the law or the law was wrongly applied ... ” .

DATE , ORG made little use of Article CARDINAL(CARDINAL ) , and the courts interpreted it in a restrictive manner . An application for termination of a contract was rejected , as relating neither to the categories of persons protected under the provision , nor to the ORG ’s interest ( ORG of GPE , judgment PERSON . CARDINAL of DATE ) . In a demand for the annulment of an apartment sale for non - compliance with the residence permit , ORG acknowledged the ORG ’s interest , but rejected the case on the merits ( ORG , plenary judgment PERSON . CARDINAL / a-CARDINAL/CARDINAL of DATE ) .