Violation of Art. 6-1;Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG In a decision of CARDINAL DATE the Prefect of the département of PERSON made a declaration that it was in the public interest to acquire by compulsory purchase land needed for the development of a residential area in the town of FAC , known as the PERSON project . The land included a plot belonging to the applicant on which stood a building used as a secondary residence by a member of her family .

ORG On DATE the mayor of PERSON had applied to the LOC expropriations judge , who on DATE made an expropriation order transferring the applicant ’s land to the municipality and setting the amount of compensation to be paid to her . On CARDINAL DATE the applicant appealed against the order .

ORG On DATE the ORG ( EPEVRY ) , which was responsible for carrying out the scheme , informed PERSON that she should have vacated the land by DATE . In DATE the town council demolished the fence , the buildings , the infrastructure for the supply of services , the vegetable garden and the orchard on the land .

ORG On DATE , on the appeal by the expropriated applicant , ORG of ORG increased the amount of the expropriation compensation to MONEY ( ORG ) , which is currently held in deposit at ORG ( Essonne Treasury ) .

ORG On DATE PERSON had brought proceedings in ORG . On DATE the court set aside the public - interest declaration on the grounds that it was ultra vires . It held that the declaration should have been made in a decree after consultation of the ORG d’Etat and not in a prefectoral decision ( see paragraph CARDINAL below ) . The inspector appointed to conduct the inquiry prior to the declaration in question had recommended that the scheme should not include existing houses that had sufficient land to make a garden for family use , as was the case with the applicant ’s property .

ORG The town council appealed on DATE and lodged a pleading on DATE .

In a judgment of CARDINAL DATE the ORG d’Etat upheld ORG judgment . It refused PERSON application for formal note to be taken that the town council had automatically abandoned the proceedings as it had failed to file a supplementary pleading in time , and also refused her claim for compensation , which had been submitted for the first time on appeal .

ORG The applicant lodged CARDINAL appeals on points of law with ORG , the first against the expropriation order of DATE and the second against the judgment of ORG of DATE .

In CARDINAL judgments of CARDINAL DATE ORG ) set aside the expropriation order providing for the transfer of ownership and " in consequence " set aside the judgment of ORG , which had ruled on the expropriation compensation . These judgments were served on the town council on CARDINAL DATE .

ORG On DATE PERSON applied unsuccessfully to the town council , seeking either restoration of her rights or compensation in the amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL .

ORG On DATE and CARDINAL DATE PERSON applied to ORG . On DATE he decided to take no action .

ORG On DATE the applicant challenged the town council ’s implied decision to refuse her application in ORG . Her claim for restoration of her rights was accompanied by an application for compensation for non - pecuniary damage and loss of enjoyment of her property , which she assessed at FRF CARDINAL,CARDINAL,CARDINAL .

ORG On DATE she brought proceedings in the NORP tribunal de grande instance against the mayor of PERSON and EPEVRY , seeking an order for demolition of the buildings erected on her land by the town council , with periodic penalties in the event of failure to comply , and damages .

In joint submissions the defendants argued that it was not possible to return the property . It had been sold to EPEVRY with a view to a housing development and the individual building plots had in turn been sold to various different purchasers and had now been built on and were occupied .

ORG On DATE the Evry tribunal de grande instance deferred judgment until ORG ruled and listed the case for the hearing that was to be held on DATE by the judge in charge of preparing the case for trial .

ORG held a hearing on DATE and gave judgment on DATE .

It held that the claim for return of the land was inadmissible on the ground that " it [ was ] not for the administrative courts to issue orders to the authorities " and ruled as follows on the claim for compensation :

" It is clear from the preparation of the case for trial that the expropriation ... in the public interest [ on ] DATE was carried out unlawfully . The dispossession of [ PERSON ] was accordingly an illegal expropriation of private property . It is for the ordinary courts alone , which protect private property , to deal with [ her ] claim for compensation for the loss [ she allegedly ] sustained as a result of the dispossession or of any direct consequences of it . "

ORG In the meantime , on DATE , PERSON application had been struck off the list of the Evry tribunal de grande instance . It was entered in the list again on DATE . On DATE the applicant filed fresh submissions seeking compensation .

ORG In a judgment of CARDINAL DATE the Evry tribunal de grande instance noted that PERSON had implicitly abandoned her application for the buildings on her land to be demolished and held that she was entitled to compensation from the expropriating town council . It deferred judgment on the compensation claim , ordered an expert report on the value of the expropriated plot of land as at DATE and on the loss arising from her being deprived of her land and the price of it since then , and ruled that the town council should pay an advance on the costs of the expert report .

ORG The expert received the file on DATE . He summoned the parties to an inspection of the site on DATE and filed his report on DATE . He assessed the total value at FRF CARDINAL , which he broke down as follows : FRF CARDINAL for the value of the property , covering the sum needed to purchase a similar property , FRF CARDINAL for the interest on the principal sum from DATE to DATE and ORG CARDINAL,CARDINAL compensation for loss of the enjoyment of the property over the same period . For this last item he adopted a rate of return of PERCENT on the value of the property , excluding the sum needed to purchase a similar property .

ORG The proceedings are at present pending in the NORP tribunal de grande instance .

Expropriation proceedings in the public interest comprise CARDINAL separate stages .

The first stage is administrative . It begins with a preliminary inquiry - opened by a prefectoral decision - to gather information on the grounds for the expropriation . The inspector appointed to conduct the inquiry has DATE from the date on which it ends to consider observations from the public , to draw up his findings and then to forward the file to the administrative authority . If his opinion is unfavourable , or is favourable subject to conditions that the expropriating authority is not minded to satisfy , the public - interest declaration must be made in a decree adopted after consultation of the ORG d’Etat rather than in a prefectoral decision . This declaration establishes that the scheme is in the public interest . The expropriation liability order subsequently made by the ORG identifies the property to be expropriated and ends the administrative stage of the expropriation .

The next step in the procedure is for the expropriating authority to forward the expropriation liability order , within DATE of its publication , to the judicial authority for expropriation matters , a judge of the ordinary court , failing which it will lapse .

ORG The second stage takes place before the expropriations judge . He alone has the power to order expropriation and assess compensation . He does not , however , have competence to assess the lawfulness of the steps taken by the administrative authority . On receipt of the expropriation liability order that has been forwarded to him , he will issue an expropriation order transferring ownership to the expropriating authority and depriving the former owner of the right to dispose of his property . The former owner , however , retains the use of it as a provisional occupier until compensation for the loss of possession is paid or , in the event of a dispute , deposited .

The proceedings for issuing the expropriation order are separate from those leading to the judicial assessment of the expropriation compensation ; they are generally conducted entirely by the expropriating administrative authority . This second set of proceedings may commence as soon as the prefectoral decision to open the public inquiry has been taken .

The calculation of the expropriation compensation takes into account the value of the expropriated property , all the costs necessarily incurred in purchasing a replacement and , as subsidiary compensation , the depreciation in value of the remaining property where only part of it has been expropriated . The compensation amount may always be fixed by agreement , even after the expropriation order has been issued .

ORG Anyone affected by an expropriation that enables a scheme in the public interest to be carried out may challenge the validity of the public - interest declaration in the administrative court within DATE of its publication . Appeals against expropriation liability orders must be brought within the same time . As a prefectoral decision to open a public - interest inquiry is seen as a purely preliminary measure , its lawfulness may only be challenged in conjunction with CARDINAL of those CARDINAL remedies . Any application on the merits may be accompanied by an application for a stay of execution , but appeals to the administrative courts do not in any event have a suspensive effect and do not prevent the expropriation proceedings continuing in the ordinary courts .

ORG The only means of challenging an expropriation order is by lodging an appeal on points of law within DATE of the order being served . An appeal against a judgment in which compensation has been assessed may be brought within DATE of the decision being served and any appeal on points of law must then be brought within DATE of ORG judgment being served . These appeals do not have a suspensive effect and do not prevent possession being taken of the expropriated property .

Lastly , if the compensation has not been either paid or deposited by the expropriating authority within DATE of the decision whereby it was assessed , the person expropriated may seek review of it by the expropriations judge .

ORG Once a public - interest declaration has been set aside , there is no legal basis for the expropriation order . If , however , the declaration is set aside after the order has become final , the expropriation can not be legally challenged . It is accepted that a further public inquiry may be held to rectify the situation . In any event , the adage " public buildings that have been erected unlawfully are not demolished " applies .


The applicant , PERSON , is a GPE national , born in GPE in DATE and living in GPE , GPE .

The facts of the case , as set out in documents submitted by the applicant , may be summarised as follows .

The applicant was involved in a boundary dispute with his neighbours . In DATE he had built a brick wall on an area which the neighbours claimed was their land , with the result that the neighbours commenced a civil action in trespass against the applicant in ORG in DATE . The neighbours instructed a partner in the litigation department at a local firm of solicitors , PERSON , PERSON and PERSON ( “ ORG ” ) , to act for them in connection with the dispute . The firm was the largest in GPE .

The case was originally to be heard by a ORG Judge who , following the hearing of a number of preliminary issues on the case , became unavailable and was replaced by another such Judge ( “ the Deputy Judge ” ) on DATE . The applicant disputes the unavailability of the first Judge to preside over the proceedings after that date .

The Deputy Judge and his wife had instructed the private client partner at ORG to prepare their wills in DATE . ORG had thereafter kept custody of the wills and , in DATE or DATE , the Deputy Judge and his wife instructed the same partner at ORG to amend their wills by way of new codicils . They made an appointment to call in at ORG ’s offices on TIME of CARDINAL DATE which , as the Deputy Judge was aware , would coincide with his presiding over the trespass proceedings .

The trial commenced on DATE in order to allow CARDINAL of the ORG witnesses to give evidence , since he would not be available on the dates listed for trial DATE . On DATE , the District Judge heard the applicant ’s request that he withdraw from the case in favour of the original ORG Judge on the basis that the latter had been involved in the case throughout . The Deputy Judge refused the application . On DATE , the Deputy Judge heard an application by the applicant for summary judgment on the basis of alleged deliberate failure by the claimants , their expert and ORG to obey ORG . At the hearing , the Deputy Judge asked the applicant whether he was making a complaint about the conduct of ORG , to which the applicant responded that he was not . The applicant maintains that the Deputy Judge ’s question was aimed only at a specific part of the application for summary judgment , which part concerned failures only on the part of the ORG expert witness .

The Deputy Judge informed the applicant upon resumption of the trial on DATE that ORG had made his will DATE previously , and that they still held it , and the applicant took no point on the issue . By DATE CARDINAL of the ORG , and CARDINAL of the applicant ’s , witnesses of fact had been examined at length . On TIME , the Deputy Judge or CARDINAL of his assistant staff approached the ORG counsel outside the judges’ robing room and informed him of the Deputy Judge ’s intention to impose a timetable for the trial , including a limit on the time to be allowed for examination - in - chief of outstanding witnesses of both parties . The ORG counsel passed on this message to the applicant as requested by the person who had spoken to him , and the Deputy Judge , upon resumption of the hearing , announced a TIME limit upon examination - in - chief of the remaining witnesses . As a result , the applicant decided not to call his second witness of fact , who was to travel to the hearing from GPE to testify , and that witness ’s written statement was not admitted into evidence .

The hearing ended on TIME CARDINAL November CARDINAL and the Deputy Judge rose to consider his judgment TIME . He and his wife arrived at the offices of ORG and signed the codicils as previously arranged , meeting a solicitor and a paralegal who each witnessed the signatures . The paralegal had been waiting to meet a colleague in the reception area and was asked to witness the codicil on the spur of the moment . She had worked at ORG since around DATE in the firm ’s debt collection department and had assisted in typing some letters in connection with the ORG case against the applicant in DATE , CARDINAL and DATE . ORG subsequently wrote to the applicant and named the solicitor as a member of the firm ’s tax , trusts and probate department , but this identification is disputed by the applicant .

The following TIME the Deputy Judge delivered judgement in the ORG proceedings in favour of the neighbours . The applicant was required to remove the wall which he had built on the land at issue , which was held to constitute part of the applicant ’s property . The applicant was also made subject to an injunction prohibiting him from entering onto the neighbour ’s land or interfering with it . The applicant was ordered to pay GBP CARDINAL in damages to the neighbours and a proportion of their costs .

The applicant was granted leave to appeal to ORG by that court in DATE . He raised CARDINAL grounds of appeal : that the Deputy Judge had misunderstood or misdirected himself with regard to the necessary components of an “ adverse possession ” claim in that the neighbours had never had the necessary intention to possess ; that because the Deputy Judge before and during the trial had dealings with the solicitors acting for the neighbours , there was an appearance of bias ; and that the Deputy Judge conducted the hearing in an unfair manner , limiting the applicant ’s examination of his witnesses in a way in which the neighbours had not been so limited . Lord Justice PERSON , in granting leave , commented that he considered all CARDINAL grounds arguable , but that the third was of lesser weight .

The applicant found out about the Deputy Judge ’s DATE meeting at ORG shortly afterwards .

At the hearing of the appeal before ORG on DATE , the applicant confined his grounds of appeal to the first CARDINAL grounds considered at the leave stage , although the court did comment on all CARDINAL grounds in its judgment . On the first ground , following a fresh examination of the facts , the court concluded that adverse possession had been established in favour of the neighbours , and that such possession had continued for DATE thereby extinguishing the applicant ’s predecessor - in - title ’s ownership of the land . Lord Justice PERSON went on to comment on the second and third grounds of appeal as follows :

“ CARDINAL . It seems to me that the fair - minded and informed observer would recognise that every judge lives in the community and that in his private life , away from his judicial life , he may need to use the services of service providers , including solicitors . That observer would also appreciate that solicitors , by the very nature of their work , have many clients the affairs of each of whom must be kept separate from those of another client . The use by a judge of the services of a firm of solicitors for his personal purposes , such as for drafting his will , would not , I think , give rise to any expectation , or even any suspicion , in the fair - minded and informed observer that the judge in his judicial capacity would , by reason of that connection over his will , be untrue to his judicial oath and favour another client of those solicitors . The observer would take note of the fact that at the time when the Deputy Judge heard the evidence of Mr PERSON [ the applicant ’s predecessor - in - title ] he was not aware who were the solicitors of the claimants [ ie the applicant ’s neighbours ] and that , having heard that evidence , the Deputy Judge was the obvious person to complete the hearing of the trial . Indeed , if he had stood down , there would at least have been a risk that Mr PERSON ’s evidence would have to be taken in front of another judge , thereby adding disproportionately to the costs of what is essentially a very minor dispute . The observer would take note of the fact that the Deputy Judge volunteered the information that the PERSON solicitors had acted for him in preparing his will and that the Deputy Judge had obtained the express confirmation of the parties that there was no objection to him continuing to preside in the case . The observer would , in my view , have attached particular importance to the fact that the will , as the Deputy Judge told the defendants [ ie the applicant ] was being kept by the PERSON solicitors . That in itself would indicate that there was a continuing relationship with the solicitors and that it was possible that the will might need to be altered in some way ( and codicils are frequently made after a will has been executed ) , when probably there would be contact between the Deputy Judge and those solicitors . As the Deputy Judge obtained confirmation from the defendants that despite his connection with the solicitors over his will there was no objection to him continuing to sit , the observer would reasonably regard the completion of a codicil , which the solicitors had been asked by the Deputy Judge to prepare , as within the reasonable scope of what had been cleared with the parties .

The witnessing of the signature of the testator on a testamentary document , as the informed observer would know , is a mere ministerial task , and the fact that a secretary in the litigation department of the solicitors happened to be available to be such a witness is in itself neither sinister nor significant . The observer would note that the Deputy Judge as made clear that he did not discuss the PERSON case against the defendants when he went to complete his codicil .

The passing of a message to the claimants’ counsel by the Deputy Judge , or the court usher , or the Deputy Judge ’s clerk would not , in my view , be regarded by the observer as of any significance whatsoever . There is no evidence that the Deputy Judge was consulting PERSON in passing that message to PERSON and PERSON PERSON . I have already stated that what PERSON has said occurred . In my judgment , it is impossible to regard that incident as indicating any appearance of bias .

... the mere fact that a witness of the Deputy Judge ’s signature to his codicil was a secretary who had some connection with the case , in that her initials appear ( with the initials of another ) on letters to the defendants in relation to this case , would not appear to the fair - minded observer to be of any importance . Nor , in my judgment , can there possibly be some sort of duty on the Deputy Judge to have investigated precisely what functions were performed in the affairs of the claimants’ solicitors by a mere witness to his signature .

Looking at the matter objectively , I am wholly unable to see that the fair - minded and informed observer would conclude from the various matters to which Mr PERSON has attached importance that this was a case in which there has been an appearance of bias . For this reasons , therefore , I do not accept his arguments on this ground .

For completeness I should also deal briefly with Mr PERSON ’s further objection that the Deputy Judge conducted the trial unfairly in imposing a timetable on the trial at DATE , only allowing TIME for the examination in chief of further witnesses . Mr PERSON submits that this is quite unfair , because CARDINAL witnesses for the claimants were examined in chief at greater length on DATE .

In my judgment there is nothing in this point either . The chief witness of fact for the defendants was PERSON . It is apparent from the transcript of the hearing in DATE that Mr PERSON was examined by Mr PERSON in chief at some length . The fact that the CARDINAL sons of the late Mr PERSON were examined on DATE for rather longer than TIME does not , to my mind , lead to the conclusion that on CARDINALth DATE the Deputy Judge , exercising his case management powers and imposing a rather more rigorous timetable from then on , was showing bias or acting unfairly . The Deputy Judge ’s direction also applied to the further witnesses of the claimants . In any event , as I have said , the main witness of the defendants had already given evidence without any time limit . Further the other witnesses had produced witness statements and there was no need for there to be a lengthy examination in chief . ( ... ) ”

ORG therefore dismissed the appeal .

The applicant has recently discovered that the Deputy Judge was never charged by ORG for the work done in connection with the codicils signed on DATE . In this connection , the Deputy Judge wrote to the head of ORG in DATE indicating that the purpose of the codicils was to delete a charitable gift that he and his wife had decided to give instead in celebration of his wife ’s seventieth birthday . He attached a letter dated DATE from ORG , which explains that the codicil involved the deletion of CARDINAL clause of the wills of the Deputy Judge and his wife and that , given the simplicity of the work , it would have been uneconomic to render an account for it .

The applicant has informed the ORG that be a further hearing is listed before ORG for DATE on the question of whether or not that court has jurisdiction to re - open the matter in light of the recent developments .


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

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

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

On DATE the applicant was taken to the NORP police headquarters for questioning in relation to fraud charges . He was suspected , together with GPE , his business associate , of having written cheques to be drawn on the bank account of the company they owned together , despite being aware that there was no money in that account . In the absence of a lawyer , the applicant gave a statement and maintained that he had acted in accordance with the law at all times . At TIME , after he gave this statement , the police informed the applicant that he was accused ( învinuit ) , according to domestic law . The applicant waived his right to have an appointed lawyer .

On DATE the applicant was brought before a prosecutor . He gave a new statement in the presence of a lawyer who had been appointed to represent him . It appears from the documents in the file that he maintained his initial statement . He was then placed under arrest and taken to the cells of Bihor police station .

On DATE a complaint that the applicant had lodged against the arrest warrant was allowed and ORG ordered his immediate release .

On DATE he was summoned to appear in front of the prosecutor for further questioning . On that occasion , he was again placed in pre - trial detention . He was subsequently released on DATE , following a decision of ORG allowing a challenge to his arrest brought by the applicant .

NORP Before being released , on DATE he was transferred to FAC , where his head was shaved .

The applicant was committed for trial and the case was registered with ORG . On DATE the county court fixed a new date for the start of the trial , because the summons had not been served on the applicant at the correct address . On CARDINAL DATE following a written request from the applicant , the trial was again postponed to CARDINAL June DATE . On DATE , the applicant was absent from the trial hearing but his lawyer was present . The county court questioned GPE and dismissed further requests for witnesses to be heard made by GPE and the prosecutor , holding that the written evidence in the file was a sufficient basis on which to decide the case . It proceeded to judge the case , convicting the applicant of having been an accessory to fraud and sentencing him to six years’ imprisonment . In so ruling , the county court mainly relied on the parties’ submissions and on the commercial and accounting evidence adduced before it .

The applicant lodged an appeal . On DATE ORG examined the case by calling , at the applicant ’s request , one witness and also hearing the parties’ submissions . The applicant was present on this occasion . On DATE , ORG acquitted the applicant of all charges , holding that the first - instance court had erred in its interpretation of the evidence as to the applicant ’s guilt . It considered that the simple fact that the applicant had written CARDINAL cheques following the instructions of his co - accused did not indicate that he was guilty , as long as he had not been aware that the cheques could not be cleared because of a lack of money in the account .

The prosecutor appealed . The case was heard by ORG on DATE . The applicant was present at the hearing and he was also represented by CARDINAL lawyers of his choosing . His lawyers presented arguments for dismissing the appeal on points of law . From the report of the hearing , it appears that the applicant made a concluding statement to the effect that he agreed with his ORG submissions .

In his application , the applicant maintained that both he and his coaccused had been heard by ORG . However , he submitted that he had only been asked CARDINAL questions during the hearing , namely : ( i ) if he was a business associate of his coaccused ; and ( ii ) if the new criminal proceedings pending against him also related to fraud . He also claimed that these CARDINAL questions , and his answers to them , were purposely omitted from the transcript of the hearing . The Government did not provide any clarification on that point .

On DATE , the same date as the hearing , ORG delivered a final decision by which it found the applicant guilty , convicted him of having been an accessory to fraud and sentenced him to DATE imprisonment . It held that the evidence available in the case file was sufficient to indicate that the applicant had knowingly written the cheques and had been aware that there was no money in the account to clear them .

On the basis of this final decision , the applicant started serving his prison sentence . He was conditionally released on DATE .

The relevant provisions of LAW with regard to the authority of the courts of appeal , as in force at the time of the events , read as follows :

“ ( CARDINAL ) A court judging on an appeal shall review the contested decision on the basis of the evidence in the file and all additional written documents that were adduced before it .

( CARDINAL ) NORP In order to decide on the appeal , the court can make a new assessment of the evidence in the file and can order any new evidence that it deems necessary ( ... ) ”

“ A court judging an appeal shall decide to :

( ... ) CARDINAL . uphold the appeal and :

( a ) quash the decision of the first - instance court , deliver a new decision and proceed in accordance with LAW . to [ render ] a judgment on the merits ( ... ) ”

The relevant provisions of LAW with regard to the authority of the courts examining appeals on points of law that were in force at the time of the events , as well as the amendments to those provisions adopted in DATE , are detailed in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

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

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

Following a car accident on DATE , the applicant was sued by third parties for damages .

According to section CARDINAL ( CARDINAL ) of LAW ( ORG ) the action was filed with ORG ( ORG ) . As the parties did not agree on the choice of arbitrator , an arbitrator was appointed by the ORG ’s Chairman according to section CARDINAL ( CARDINAL ) of the ORG ( see relevant domestic law ) . The applicant acknowledged that the CARDINAL insurance policies covering the traffic accident had not been issued by an insurance company for which the arbitrator nominated acted as a legal adviser when working in private practice . Thus , there was no direct conflict of interest .

At the first sitting the applicant submitted that the law making this type of action subject to arbitration , as opposed to the ordinary courts , breached his LAW rights under LAW . At the request of the applicant the proceedings were suspended pending the outcome of constitutional proceedings ( see below ) . After they were resumed in DATE the proceedings were again suspended pending the outcome of proceedings before this ORG . According to the applicant , had he not requested these suspensions , the ORG would have argued that he had accepted the jurisdiction of the arbitrator .

On DATE the applicant instituted constitutional redress proceedings alleging a breach of LAW on account of the fact that he was forced to submit his case to an arbitrator who did not offer sufficient guarantees of independence and impartiality . He requested the court to stay the proceedings .

By a judgment of CARDINAL DATE ORG ( FAC ) in its constitutional jurisdiction upheld the applicant ’s claim . It considered that the applicant had a legal interest in filing the claim as it was the law itself and not its application in the applicant ’s case that infringed his rights . It held that since arbitration was mandatory in certain cases , the tribunal had to be independent and impartial . Having analysed the ORG provisions ( see relevant domestic law ) , it considered that an arbitrator was subject to the ORG ’s decision . The ORG ’s Chairman had a discretion to decide whether to appoint a person as arbitrator and whether to appoint that person again in a subsequent case . It followed that the appointment of an arbitrator to CARDINAL or more cases depended on the subjective appreciation of the ORG , who was to an extent subject to the control of the Minister . Thus , the arbitrator did not enjoy security of tenure . He or she would be chosen for specific cases and might never be chosen again if disliked . The court further considered that an appeal on points of law could not remedy this defect , since such right of appeal was limited in scope . In consequence , ORG did not fulfil the requirement of independence under LAW , particularly where , as in the instant case , the parties had not agreed on the choice of arbitrator . The court further held that the system also created justified doubts as to the objective impartiality of ORG , having regard to its composition , organisation and the appointment and removal of arbitrators .

On DATE the defendants appealed .

By a judgment of DATE ORG upheld the appeal and reversed the first - instance judgment . Reiterating that the ORG must comply with the requirements of impartiality and independence , it held that the criteria for choosing an arbitrator according to LAW ( see relevant domestic law ) were intended to ensure that persons appointed as arbitrators were competent and displayed integrity . In the absence of agreement between the parties , the selection of an independent arbitrator was left to the chairman . While it was true that the chairman was appointed by the Minister and was therefore to a certain extent subject to the Minister ’s control , this could not be relevant since in most cases the Government were not a party to the arbitration proceedings . It followed that section CARDINAL ( CARDINAL ) of the ORG ( see relevant domestic law ) offered sufficient guarantees . Moreover , the removal of an arbitrator was , like any other decision of the ORG , an administrative decision subject to judicial review . However , the removal of an arbitrator from a particular case was usually intended to increase the efficiency and effectiveness of the procedure and could not raise issues as to security of tenure . Lastly , in the applicant ’s case there was no actual or realistic threat to the independence of the tribunal . For the reasons stated above , the court also considered that there was no issue of partiality , particularly because the arbitrator was independent of the parties in a case and the law offered sufficient guarantees in this respect . A chairman making an appointment would have to take account of all the relevant considerations beforehand . Indeed , in the present case , it did not appear that the applicant was complaining about the specific choice of arbitrator in his case . Since such proceedings were LAW compliant it was not necessary to consider whether an appeal could have remedied the defect alleged .

In so far as relevant , the pertinent provisions of LAW , LAW of LAW , read as follows :

Section CARDINAL

“ ( CARDINAL ) There shall be a ORG which shall be responsible for the policy and general administration of the affairs and business of the ORG .

( CARDINAL ) The ORG shall consist of not CARDINAL and not CARDINAL members , appointed by the President of GPE acting on the advice of the Minister , one of whom shall be designated by the Minister as chairman . The Minister shall also designate another member as deputy chairman and such member shall have all the powers and perform all the functions of the chairman during his absence , or until a new chairman has been appointed following the resignation , termination of appointment , or death of the chairman .

( CARDINAL ) The Minister shall select the members of ORG from among persons who appear to him to be qualified by reason of having had experience of and shown capacity in matters relating to international or domestic arbitration , conciliation and the settlement of disputes , international trade , commerce , industry , investment and maritime affairs .

( CARDINAL ) In the exercise of their functions under this LAW all the members of the ORG shall exercise their functions in their individual judgment and shall not be subject to the direction or control of any other person or authority . ”

Section CARDINAL

“ ( CARDINAL ) Subject to the provisions of sections CARDINAL , CARDINAL and DATE , the members of the ORG shall hold office for a DATE period ; a member shall , on ceasing to be a member , be eligible for reappointment :

Provided that the Minister may at any time , on the recommendation of ORG established under article LAW , terminate the appointment of a member of ORG if in his opinion , confirmed by the recommendation of ORG as aforesaid , such member is unfit to continue in office or has become incapable of properly performing his duties as member of ORG , and ORG is hereby vested with the function and power to make a recommendation to the Minister as aforesaid . ”

Section CARDINAL

“ ( CARDINAL ) The Centre shall have a registrar , who shall also be the secretary of ORG . In connection with his functions under this LAW , the registrar shall have power to administer oaths , including , without prejudice to the generality of the aforesaid , the power to administer oaths of office that may be required to be taken by arbitrators or any other person involved in arbitration proceedings under any rule made under LAW : ( ... ) ”

Section CARDINAL

“ ( CARDINAL ) The ORG may , from time to time , draw up panels of arbitrators for domestic arbitration and panels of arbitrators for international commercial arbitration :

Provided however that a person may be included in CARDINAL panel .

( CARDINAL ) Domestic arbitration panels may be appointed on matters related to commerce , insurance , traffic collisions , building construction , the maritime sector and such other fields as the ORG may deem expedient from time to time . The panels shall be composed of persons who in the opinion of the ORG are qualified to carry out the duties and functions of arbitrators in a particular field of expertise .

( CARDINAL ) A person may be removed from any panel by ORG at any time , and a person may at any time resign by letter addressed to the registrar :

Provided that any such removal or resignation shall not be deemed to include the removal or resignation of that person from any arbitration proceedings in which he may have already been appointed before his removal or resignation . ”

Section CARDINAL

“ ( CARDINAL ) If a sole arbitrator is to be appointed , either party may propose to the other the names of CARDINAL or more persons , CARDINAL of whom may serve as the sole arbitrator .

( CARDINAL ) If within DATE after receipt by a party of a proposal made in accordance with subsection ( CARDINAL ) , the parties have not reached agreement on the choice of a sole arbitrator , the sole arbitrator shall be appointed by the chairman .

( CARDINAL ) The chairman shall , at the request of CARDINAL of the parties , appoint the sole arbitrator as promptly as possible ; his decision shall be final and binding .

( CARDINAL ) In making the appointment , the chairman shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and to the members of ORG established under section ORG ) . ”

Section CARDINAL

“ ( CARDINAL ) A person who is approached as a prospective arbitrator shall disclose to those who approach him in connection with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence .

( CARDINAL ) An arbitrator , once appointed or chosen , shall disclose to the parties the circumstances mentioned in the previous subsection unless the parties have already been informed by him of these circumstances . ”

Section CARDINAL

“ ( CARDINAL ) Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubt as to the arbitrator ’s impartiality or independence .

( CARDINAL ) A party may challenge the arbitrator appointed by him only for reasons of which he becomes aware after the appointment has been made . ”

Section CARDINAL

“ ( CARDINAL ) A party who intends to challenge an arbitrator , shall send notice of his challenge within DATE after the appointment of the challenged arbitrator has been notified to that party or within DATE after the circumstances mentioned in DATE became known to that party .

( CARDINAL ) The challenge shall be notified to the registrar , to the other party , to the arbitrator who is challenged and to the other members of the arbitral tribunal . The notification shall be in writing and shall state the reasons for the challenge .

( CARDINAL ) When an arbitrator has been challenged by CARDINAL party the other party may agree to the challenge . The arbitrator may also , after the challenge , withdraw from his office . In neither case does this imply acceptance of the validity of the grounds for the challenge . In both cases the procedure provided in articles CARDINAL and CARDINAL shall be used in full for the appointment of the substitute arbitrator even if during the process of appointing the challenged arbitrator a party had failed to exercise his right to appoint or to participate in the appointment . ”

Section CARDINAL

“ ( CARDINAL ) If the other party does not agree to the challenge and the challenged arbitrator does not withdraw , the decision on the challenge will be made by the chairman , and his decision shall be final and binding .

( CARDINAL ) When the chairman sustains the challenge , he shall appoint a substitute arbitrator . ”

By virtue of LAW ( CARDINAL ) of the LAW disputes arising from collisions between vehicles are subject to mandatory arbitration and in such cases the parties shall be deemed to be bound by an arbitration agreement in relation to such disputes .

In so far as relevant LAW , Subsidiary Legislation CARDINAL , LAW of CARDINAL as amended in DATE and DATE , read as follows :

Section CARDINAL

“ The appointment of an arbitrator shall be accompanied by a confirmation by such arbitrator accepting his appointment together with a declaration by him confirming his independence and impartiality in terms of LAW . ”

Section CARDINAL

“ ( CARDINAL ) In case of breach of duty by an arbitrator in relation to the management of the arbitration proceedings , the Registrar [ of the FAC ] may issue orders in writing to the arbitrator who shall be bound to comply as soon as possible with such order .

( CARDINAL ) ORG may request the Registrar to issue any such orders to any arbitrator if , when reviewing progress in any arbitration , the ORG notes that any provisions of the LAW , these rules or any guidelines are not being observed or that the arbitrator is failing to manage the arbitration process efficiently .

( CARDINAL ) When an arbitrator fails to observe the orders of the Registrar issued in terms of this rule , the Registrar shall report on such circumstances to ORG and the Board shall determine what disciplinary action to take against the arbitrator .

( CARDINAL ) In case of breach of the duty of independence by the arbitrator because of an undisclosed conflict of interest or because of irregular communication or otherwise , with CARDINAL of the parties or any person on behalf of a party , the Registrar shall make a written report to ORG copied to the arbitrator and to the parties and the ORG shall decide what actions are to be taken .

( CARDINAL ) In cases referred to above , the ORG shall determine the issue after giving the arbitrator the opportunity of being heard and after considering such other evidence as may be appropriate .

( CARDINAL ) In such cases the ORG has the power to take such disciplinary action as it considers appropriate in view of the circumstances . The powers of the ORG include :

( a ) the issuing of orders in relation to the proceedings ;

( b ) the removal of the arbitrator from the arbitration ;

( c ) the removal of the arbitrator from the domestic panel of arbitrators , and

( d ) the imposition of a disqualification to act as an arbitrator in GPE for a stated period not exceeding DATE .

( CARDINAL ) Action taken in terms of this rule by the ORG shall be without prejudice to any rights of the parties under applicable law .

( CARDINAL) Nothing in the foregoing rule shall limit the rules applicable to the challenge of arbitrators in the LAW . ”

By means of Act IX of DATE a number of amendments to LAW were passed by ORG , improving the guarantees applicable to arbitration . However , the Minister retained the power of introducing such amendments at later stages by means of a legal notice . On DATE correspondence with the applicant , namely DATE , these amendments had not yet come into force .


The applicant , PERSON is a NORP national , born in DATE and living in PERSON .

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

On DATE the applicant acquired , at a public auction , a business situated in a commercial centre in GPE in accordance with the relevant provisions of ORG of DATE ( see “ Relevant domestic law ” below ) . On DATE the owner of the premises in which the business was situated concluded a tenancy agreement with the applicant as required by LAW . The tenancy agreement was concluded for a period expiring on DATE . On DATE the ownership of the commercial centre was transferred to a private limited company .

As the new owner and the applicant failed to reach an agreement as regards the tenancy of the LOC , the owner sued the applicant and claimed that she should vacate the LOC .

On DATE the Bratislava III ORG ( then ORG , at present ORG súd ) granted the action and on DATE ORG ( ORG ) upheld this decision . The judgments stated , inter alia , that the original tenancy agreement of CARDINAL DATE was void as it had not been approved by the competent administrative authority as required by the law . On DATE ORG ( Najvyšší súd ) dismissed the applicant ’s appeal on points of law .

On DATE the applicant filed an action with GPE ORG claiming that the new owner of the LOC should be ordered to conclude a tenancy agreement with her for a DATE period pursuant to LAW . She joined the text of the agreement to be concluded to her action .

On DATE the Bratislava III ORG granted the action and ordered the defendant to conclude a tenancy agreement with the applicant as suggested by the latter . The defendant appealed .

On DATE ORG ( PERSON súd ) overturned the first instance judgment . ORG held , inter alia , that the applicant had benefited from her right under LAW of ORG in that she had concluded a tenancy agreement with the original owner .

On DATE the applicant filed an appeal on points of law . She alleged that the tenancy agreement of CARDINAL DATE was void and that she had not , therefore , used the premises de iure . She maintained that the period during which she had used the LOC could therefore not be taken into consideration when determining her right under LAW ) of ORG .

On DATE ORG dismissed the applicant ’s appeal on points of law . It established that the applicant had used the premises de facto for a certain time . In ORG view , it was irrelevant whether this use had been covered by a valid legal title when examining whether and to what extent the applicant ’s right under LAW ) of ORG had been respected . ORG concluded that the applicant was entitled to claim that the new owner should conclude a tenancy agreement with her only for the outstanding period , i.e. so that the overall period during which she would be able to effectively use the premises amounts to DATE . ORG further recalled that in cases when a plaintiff seeks the injunction that an agreement be concluded and the draft text of such an agreement is joined to the action , a court can either grant the action or reject it , but it lacks jurisdiction to modify the terms of the agreement proposed by the plaintiff . ORG judgment was served on DATE .

Section CARDINAL of ORG of DATE ( PERSON o prevodoch vlastníctva štátu k niektorým veciam na iné právnické alebo fyzické osoby , Coll . No . DATE ) , as in force until DATE , provides that a person who acquired a business under the provisions of this LAW has the right to have an agreement on tenancy of the LOC in which the business is located concluded with the owner of the LOC or , as the case may be , his or her legal successor . The duration of the tenancy agreement should be DATE unless the parties otherwise agree .

Under LAW ) of ORG , as in force from DATE , the persons concerned have the right to have such a tenancy agreement concluded for DATE .

Under LAW ) of ORG , as in force from DATE , when the person concerned and the owner of the LOC fail to reach an agreement as regards the rent , its amount shall be determined by the competent administrative authority in accordance with the relevant law .


Violation of Art. 10;Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award

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

On DATE the first applicant , acting in his capacity as a journalist , published an article in ORG , a DATE newspaper , under the headline “ Minister PERSON convicted of tax fraud ” ( Minister PERSON überführt ) . He alleged in the article that the minister had broken the Seventh , Eighth and Ninth Commandments by committing value - added tax ( VAT ) frauds . He went on to say that a politician from the right might have been expected to take the rules so carefully drawn up by PERSON more seriously . He added that a fiscal fine of MONEY had been imposed on the minister . He said in conclusion that the minister ’s conduct was particularly shameful in that it involved a public figure , who should have set an example .

The applicants produced documents showing that the fine had been imposed on the minister concerned on DATE by the Director of the Registration and ORG et des domaines ) , pursuant to section CARDINAL(CARDINAL ) of LAW of DATE . The decision had been served on the minister on DATE . It also appears that on DATE the minister appealed to ORG against the fine . In a judgment of DATE , ORG ruled that the fine was not justified as the offence under section CARDINAL(CARDINAL ) of LAW of DATE had not been made out . An appeal was lodged against that judgment to ORG . The parties have not furnished any further information regarding developments in those proceedings .

The decision of DATE was the subject of comment in other newspapers , such as the DATE FAC and the weekly d’Lëtzebuerger Land . A NORP member of ORG also tabled a parliamentary question on the matter .

CARDINAL sets of court proceedings were issued following the publication of the first applicant ’s article .

On DATE the minister brought an action in damages in ORG against the first applicant and ORG , arguing that they had been at fault in publishing the information concerning the fiscal fine and making comments which he said constituted an attack on his honour . In a judgment of DATE , ORG dismissed the minister ’s action on the ground that the article came within the sphere of freedom of the press . In a judgment of DATE , ORG overturned ORG judgment .

On DATE the minister lodged a criminal complaint .

On DATE the public prosecutor requested the investigating judge to open an investigation into a suspected offence by the first applicant of handling information disclosed in breach of professional confidence , and by a person or persons unknown of breach of professional confidence . The public prosecutor stated in his submissions : “ The investigation and inquiries should determine which civil servant or civil servants from the Registration and ORG had any involvement in the case and access to the documents . ” The public prosecutor also requested the investigating judge to carry out or arrange for searches of the first applicant ’s home and any appurtenances , the offices of ORG and the ORG and ORG offices .

Various searches were then carried out .

On DATE the investigating judge issued CARDINAL warrants for searches to be made of the first applicant ’s home and workplace , the investigators being instructed to “ search for and seize all objects , documents , effects and/or other items that [ might ] assist in establishing the truth with respect to the above offences or whose use [ might ] impede progress in the investigation ” . The first order specified that the places to be searched were “ PERSON home and appurtenances , ... , any place in which he may be found and cars belonging to or used by him ” .

Both warrants were executed on DATE , but no evidence was found .

On DATE the first applicant applied for orders setting aside the warrants issued on DATE and all the investigative steps taken pursuant thereto , in particular the searches carried out on DATE . In addition to arguments based on domestic law , he alleged a violation of LAW , emphasising that he was entitled to protect his journalistic sources .

ORG , sitting in closed session , dismissed both applications in CARDINAL orders of DATE . It noted that the minister had complained of a number of matters , including the unlawful disclosure of information to the first applicant by Registration and ORG officials , which the first applicant had allegedly gone on to use in a calumnious and defamatory newspaper article . Those matters were capable of falling within the definition of various criminal offences , including breach of professional confidence , breach of fiscal confidentiality , theft , handling , calumny and criminal defamation . ORG said that civil servants were prohibited by LAW ( statut général des fonctionnaires ) from disclosing any information that was confidential by nature which they had acquired in the course of their duties . It was a criminal offence under LAW to disclose confidential fiscal information and an offence under LAW for anyone receiving confidential information as part of their professional duties to divulge it . As to the handling offence , ORG said that LAW applied to anyone who , by whatever means , knowingly benefited from the proceeds of a serious crime ( crime ) or other major offence ( délit ) . According to legal commentators and the leading cases , handling could extend to intangible property , such as claims , but also manufacturing secrets or material covered by professional privilege . In that connection , the fact that the circumstances in which the property had been obtained had not been fully established was of little relevance if the alleged handler was aware of its unlawful origin ; the classification of the primary offence was immaterial . ORG found that the investigating judge in charge of the investigation had been entitled to order an investigative measure to obtain corroboration of the incriminating evidence already in his possession . It added that there had been no violation of LAW , since the searches – which had been ordered to assemble evidence of and establish the truth concerning possible criminal offences that may have led to or facilitated the publication of a newspaper DATE had not infringed freedom of expression or freedom of the press .

By CARDINAL judgments of DATE , ORG , sitting in closed session , dismissed appeals that had been lodged against the orders of DATE .

On DATE the investigating judge issued a search warrant for immediate execution at the offices of the second applicant , who was the first applicant ’s lawyer in the domestic proceedings .

In the course of the search , the investigators seized a letter of DATE from the Director of the Registration and ORG to the Prime Minister bearing a handwritten note : “ To ORG . Letter transmitted in confidence for your guidance . ” The applicants explained that the letter had been sent anonymously to the editorial staff of ORG and the first applicant had immediately passed it on to his lawyer , the second applicant .

On DATE an application was made to have the search warrant and all subsequent investigative steps set aside .

ORG , sitting in closed session , granted that application on the ground that , in breach of section CARDINAL of LAW , the report of the police department that had executed the warrants on DATE did not contain the observations of the Vice President of ORG , who was present during the search and seizure operations . ORG ruled that the seizure carried out on DATE was invalid and ordered the letter of DATE to be returned to the second applicant .

The letter was returned on DATE .

NORP However , on DATE the investigating judge issued a fresh search warrant with instructions to “ search for and seize all objects , documents , effects and/or other items that might assist in establishing the truth with respect to the above offences or whose use might impede progress in the investigation and , in particular , the document dated DATE bearing the manuscript note to the heads of division ” . The letter was seized once again DATE .

On DATE the second applicant applied for an order setting the warrant aside , arguing , inter alia , that there had been a breach of the principle guaranteeing the inviolability of a lawyer ’s offices and of the privilege attaching to communications between lawyers and their clients . That application was dismissed by ORG , sitting in closed session , on DATE . It noted , firstly , that investigating judges were empowered to carry out searches even at the homes or offices of persons whose professional duties required them to receive information in confidence and who were legally bound not to disclose it and , secondly , that the provisions of section CARDINAL of LAW of DATE had been complied with . The search and seizure operations had been executed in the presence of an investigating judge , a representative of the public prosecutor ’s office and the President of ORG . In addition , the presence of the President of ORG and the observations he had considered it necessary to make regarding the protection of the professional confidence attaching to the documents to be seized had been recorded in the police department ’s report .

In a judgment of CARDINAL DATE , ORG , sitting in closed session , dismissed an appeal against the order of DATE .

In a letter of DATE , the first applicant enquired of the investigating judge as to progress in the case . He complained that no other steps had been taken and reminded the judge that he was not supposed to disregard the provisions of LAW . He sent a similarly worded reminder on DATE .

On DATE the applicants provided the ORG with an article from DATE edition of the DATE newspaper d’Lëtzebuerger Land , containing the following extract :

“ ... the inquiry in the PERSON case has thus just ended with a search of the home of a Registration and ORG official , a member of ORG , and the logging of the incoming and outgoing telephone calls of CARDINAL other members of the [ ORG ] ... ”

On DATE the first applicant sent a further reminder to the investigating judge , who stated in a reply of DATE : “ The judicial investigation is continuing . ”

Following a letter from the first applicant dated DATE , the investigating judge informed him DATE that the police inquiries had finished and that the investigation file had just been sent to the public prosecutor for his submissions .

On DATE the first applicant referred the public prosecutor to the terms of LAW and reminded him that although the investigation in the case had taken DATE , he had yet to be charged .

On DATE the first applicant received a summons requiring him to attend for questioning on DATE in connection with the offences referred to in the complaint . He was informed that he was entitled to have a lawyer present .

The first applicant was charged by the investigating judge on DATE with “ handling information received in breach of professional confidence ” .

The applicants produced an article from the CARDINAL DATE edition of the newspaper ORG , which revealed that the Prime Minister “ considered that the methods employed by the investigating judge in the investigation into a breach of professional confidence were ‘ NORP ” .

An order made on DATE by ORG , sitting in closed session , reveals that the charges against the first applicant were ruled to be null and void and that the case file was sent to the investigating judge with jurisdiction with instructions either to end or to continue the investigation .

On DATE the applicant sent the ORG a letter from the investigating judge dated DATE informing him that “ the judicial investigation [ had ] just ended ” .

Article CARDINAL of LAW provides : “ Searches shall be carried out in any place in which objects that would assist in establishing the truth may be found . ”

Article CARDINAL of that Code provides : “ The investigating judge shall carry out the seizure of all objects , documents , effects and other items referred to in Article QUANTITY . Article QUANTITY provides that the following may be seized : “ ... and generally , anything which may assist in establishing the truth , whose use may impede progress in the investigation or which is liable to confiscation or restitution . ”

Section CARDINAL(CARDINAL ) of LAW of DATE provides :

“ Lawyers’ workplaces and all forms of communication between lawyers and their clients shall be inviolable . If in civil proceedings or a criminal investigation a measure is taken against or in respect of a lawyer in the circumstances defined by law , such measure shall not be implemented other than in the presence of the President of ORG or his or her representative or after they have been duly convened .

The President of ORG or his or her representative may submit observations to the authorities which ordered the measures regarding the protection of professional confidence . A record of a seizure or search shall be null and void unless it contains a statement that the President of ORG and his or her representative were present or had been duly convened and any observations they considered it necessary to make . ”


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

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

On DATE the applicant and his wife ( hereafter PERSON ) divorced before FAC . In this context , ORG granted them joint custody of their QUANTITY daughters , aged DATE at that time .

On DATE , following PERSON appeal ( Beschwerde ) and after hearing both her and the applicant as well as CARDINAL representatives of the local ORG , ORG granted PERSON sole custody of the children , while allowing the applicant to retain a right of access . It found that , given the fact that the parents did not seem entirely willing to co - operate in practical matters , it would be in the children ’s best interest if decisions concerning their everyday life were taken by their mother alone . It added that the mother had agreed to discuss important decisions with the applicant and that she was expected to ensure that contacts between the applicant and his daughters would continue on a regular basis . In its decision , ORG did not admit an appeal on points of law ( weitere Beschwerde ) .

On DATE the applicant lodged a constitutional complaint with ORG . He claimed in particular that the decision of ORG had misinterpreted the existing provisions on custody of children , notably Section CARDINAL of LAW ( see Relevant domestic law , below ) , and infringed his parental rights guaranteed by LAW .

On DATE the President of ORG informed the applicant that he had communicated the case to CARDINAL parties , who had the right to submit their observations until DATE . The list of third parties included ORG ( GPE ) , ORG PERSON ) , ORG , ORG , the President of ORG , the parties of the proceedings before ORG , as well as various national organisations dealing with family law issues and involved in the protection of children .

On CARDINAL DATE , following the applicant ’s request dated CARDINAL DATE , ORG forwarded the pertinent written observations dated CARDINAL and DATE , CARDINAL and DATE , CARDINAL DATE and CARDINAL DATE and CARDINAL DATE . These included the observations of ORG of DATE stating that the ORG planned an amendment of the law on family matters , inter alia by introducing explicit provisions on joint custody after divorce .

DATE , the applicant received a telephone call from ORG informing him that the questions raised by his complaint would become obsolete with the expected entry into force of the amended LAW DATE ( Kindschaftsrechtsreformgesetz ) on DATE . The applicant was asked whether he wanted to declare that his constitutional complaint had been disposed of ( PERSON ) under these circumstances .

On DATE the applicant requested ORG to deliver a decision despite the change of law brought about by ORG .

On DATE ( decision served on DATE ) , ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint . It found that due to the amended PERSON on Family Matters , the constitutional complaint no longer raised issues of general interest . The applicant ’s complaints could be adequately dealt with in proceedings for the amendment of a court order ( ORG ) pursuant to Section CARDINAL § CARDINAL of LAW ( see Relevant domestic law , below ) before the competent civil courts . In these proceedings , the new legal provisions on family matters could be taken into account .

Section CARDINAL of LAW , in its version in force until DATE , provided that the court sitting in family matters had to grant the custody of a child to CARDINAL of his or her parents divorcing . The provision has been amended by ORG , which entered into force on DATE . Pursuant to the amended Section DATE of LAW , parents who split up keep , as a rule , joint custody of their children . The courts sitting in family matters award sole custody to CARDINAL parent only if a motion is filed to this end and certain further conditions are satisfied , especially if sole custody is best for the child ’s well - being .

The statutory provision on the amendment of a court order concerning the custody of a child , Section CARDINAL § CARDINAL of LAW , in its version in force until DATE , was worded as follows :

“ The court sitting in guardianship matters and the court sitting in family matters may modify their decisions at any time during the continuation of parental custody , if they consider this to be necessary in the interest of the child . ”

Section CARDINAL § CARDINAL of LAW , as amended by ORG in force since DATE , provides :

“ The court sitting in guardianship matters and the court sitting in family matters must modify their decisions , if this is necessary for cogent reasons which have a lasting effect on the child ’s well - being . ”


Mr PERSON , a retired headteacher , lives in GPE ( Pistoia ) .

On DATE he took early retirement . On DATE he asked to be reappointed to his former post , but on DATE ORG refused his request , in accordance with the unfavourable opinion of ORG . Mr PERSON then appealed to ORG ( “ the ORG ” ) , which , on DATE , set aside the ORG 's decision on the ground that no reasons had been given for it . On CARDINAL DATE the applicant applied to be reinstated , but this request was likewise refused on CARDINAL DATE .

On DATE the applicant again applied to the ORG for judicial review of the decision of CARDINAL DATE .

On DATE the applicant asked for a date to be fixed for the hearing and on CARDINAL October of DATE he filed an application for the case to be set down for an urgent hearing .

On DATE the case was set down for DATE .

On DATE appointed the ORG gave judgment in the applicant 's favour . The text of its decision was deposited with the registry on DATE .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the Court by Mr J. Södergren , a lawyer practising in GPE . The respondent Government were represented by PERSON of ORG , as Agent .

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

In TIME of DATE , the so - called “ DATE TIME ” , a row broke out between the applicant and his wife in the couple ’s home . Later , on DATE , at TIME , a fire ravaged the home , a wooden house owned by the applicant , which burned down to the foundation walls .

The applicant was subsequently charged under LAW , LAW , with ill - treating his wife , and LAW , LAW with arson for setting his house on fire .

In DATE ORG convicted the applicant on the first count and sentenced him to DATE imprisonment . On the second count , it acquitted him , finding that , notwithstanding the existence of strong arguments supporting the prosecution ’s case , it had not been shown beyond reasonable doubt that the applicant was guilty of the offence .

On DATE ORG upheld the judgment . As regards the arson charge , it observed :

“ As found by ORG , there are strong reasons for believing that [ the applicant ] started the fire in his villa . However , there is nothing in the investigation that directly links him to this act . Nor does the investigation exclude the possibility that the fire was caused by an accident or had been started by another person . Since it can not therefore be regarded as established beyond reasonable doubt that [ the applicant ] started the fire , the charge must be rejected . ”

Subsequently , the applicant instituted civil proceedings against his insurance company , ORG , requesting a declaratory judgment to the effect that the latter was obliged under the insurance contract to pay him compensation for the damage caused by the fire to his house and personal belongings .

ORG , sitting with a different bench from the one in the criminal case , held an oral hearing during which evidence was heard from the applicant , the witnesses who had given evidence during the criminal trial and a number of new witnesses . The written evidence adduced by the parties was to a large extent the same as had been submitted in the criminal proceedings .

In its judgment of DATE , ORG found for the insurance company and against the applicant . The judgment contained an introductory section entitled “ Background ” , in which ORG quoted ORG above - cited conclusion , and a summary of the parties’ submissions ( “ PERSON ” ) . This was followed by ORG reasoning ( “ Domskäl ” ) , which gave an itemised description of the written and oral evidence , reiterated the contents of some of the new oral evidence , and set out ORG assessment . It first reiterated the standards of proof applicable to cases of insurance compensation , noting that it was not disputed here that an insured event had occurred , but only whether the matter fell within the exception clause in H CARDINAL of the insurance policy , cf . section CARDINAL of LAW ( konsumentförsäkringslagen ) , which it was for the insurance company to prove . In this connection the ORG emphasised that a factor that was significant for distinguishing the assessment of evidence in the civil case from that of the criminal case was the applicant ’s silence .

ORG then examined , at quite some length , the evidence , including that from experts , as to the possible natural causes of the fire , notably the house ’s electrical installations and heating system , in particular a combined wood - and - oil burner and the chimney . It concluded that such causes could be excluded and that there were therefore weighty reasons for considering that the cause must lie somewhere else . It went on :

“ As already stated , [ the applicant ] for his part has not been able to contribute with any explanation as to the origin of the fire . He had good opportunities to start the fire . According to the investigation , shortly before the fire , he went in and out of the house several times .

ORG considers that no person other than [ the applicant ] can be suspected of having started the fire . The information provided by [ his wife ] to the police during the first interview makes the suspicion against him particularly strong . During the police interview she had stated inter alia that [ the applicant ] threatened to burn the house down if she and her son were to move . The evidence obtained at the police interviews must be given particular evidential value . Subsequently she has provided new and different information in a curious manner . Her new statement does not seem credible . She has strong personal reasons for trying to save the family ’s financial situation . The new information could be explained , or at least seen , in the light of the fact that , as she admits , she talked with [ the applicant ] about the circumstances relating to the origin of the fire before ORG hearing . Even during the hearing in the previous case PERSON gave barely credible explanations for departing from the information that she had spontaneously provided during the first police interview and has not convincingly presented her new version , inter alia that she should have been inside the house immediately before the fire and seen smoke in the house , amongst other things . She has been further examined on these points and has stated that she did ‘ not know how she should reply’ .

What first and foremost indicated that [ the applicant ] started the fire is that , in connection with a row with his wife , he expressed a threat to burn the house down , plus the fact that his state of mind was clearly such that , in a fit of desperation , he could very well be believed to have started the fire by using the inflammable liquids that were in the house . His disposition for taking dramatic steps is confirmed by the suicidal thoughts that he expressed immediately after the fire . The assumption that [ the applicant ] himself started the fire with the help of inflammable liquids is supported by the development of the fire as witnessed by several eye witnesses and , with the exception of PERSON , by the evidence heard from technical experts on fire incidents . CARDINAL of the apparent factors which likewise suggests that [ the applicant ] started the fire is that , as pointed out by ORG in its judgment of CARDINAL DATE , immediately before the fire [ the applicant ] carried his son from his room in the house out to the lorry and the fact that [ the applicant ] was in the house , in the cellar , at the precise moments that the smoke became apparent . Furthermore , it should be taken into consideration that [ the applicant ] himself , voluntarily , raised the question of arson with Mr Mats Eriksson [ police officer ] when the police intervened against him after the fire .

ORG finds that the circumstances adduced in support of the submission that [ the applicant ] intentionally started the fire outweigh other possible causes of the fire to such a high degree that insurance compensation should not be paid . The appeal shall therefore be rejected . ”

The applicant appealed to ORG . That court , too , sat in a different composition from that in the criminal case . The applicant relied mainly on the same evidence as before ORG . ORG heard evidence from the applicant at his own request and from several expert witnesses and heard tape recordings of a number of witness statements taken by ORG , including those of the applicant ’s wife and mother , at their request .

In its judgment of CARDINAL DATE ORG upheld ORG judgment .

Like ORG , ORG first considered the various possible technical causes of the fire and endorsed ORG findings that such causes had to be excluded .

“ [ The applicant ] ’s behaviour during the DATE TIME and the disquiet and anxiety that he aroused in PERSON and his mother indicate that he was mentally highly imbalanced . The information that PERSON finally provided in order to protect him appears , as ORG held , not to be credible . Furthermore regard should be had to the fact that the statements initially made by [ the applicant ] about the fire during the police interviews – the first time , when he had not yet been informed that he was under suspicion of having committed an offence – are not supported by the remainder of the investigation . Thereafter he has not been able to contribute any explanation . ORG draws the same conclusion as ORG from the fact that after the initial police interview [ the applicant ] has given hardly any information about the event . Against this background and having regard to the case as a whole , there is no possibility of considering that the fire was started by any person other than [ the applicant ] .

In view of these considerations the insurance company must be considered to have shown – in accordance with the standard of proof applicable to civil cases of this kind DATE that [ the applicant ] started the fire . His request for a declaratory judgement shall therefore be rejected and ORG judgment shall stand . ”

The applicant sought leave to appeal against ORG judgment . On DATE ORG refused leave .

LAW , section CARDINAL , of LAW ( brottsbalken ) provides :

“ If a person starts a fire , which entails a danger to another person ’s life or health or extensive damage to another person ’s property , he or she shall be convicted of incendiarism and be sentenced to imprisonment of DATE .

Where the offence is less serious , the person shall be sentenced to imprisonment of DATE . ”

LAW , section CARDINAL , first sub - paragraph of LAW reads :

“ Unless otherwise specifically provided , an act shall be considered a criminal offence only if it has been committed with intent . ”

“ If you have caused the insured event by intent you shall not receive any compensation for your part . The same applies if another person acted with your consent or if the person has significant financial interests in common with you ( for example your spouse ) and there are no particular reasons to the contrary .

This is also the case - except where it concerns a third party insurance - if the insured event has been caused by gross negligence and there are no particular reasons to the contrary . ”

It is not claimed that the above - cited policy clause conflicted with the relevant provisions of LAW , section CARDINAL of which provides that no insurance cover will be provided in favour of an insured person who has intentionally caused the insured event and that the cover may on certain conditions be reduced if an insured event has been caused by gross negligence or negligence which is not insignificant .

Different standards of proof apply to criminal and civil cases . In a criminal case the burden of proof is entirely on the prosecutor , who must establish beyond any reasonable doubt that the defendant has committed the act in question and that he did so with the necessary intent or negligence . In a civil case , the burden of proof is normally on the plaintiff . The standard of proof in a civil case differs according to the type of case and the circumstances that have to be proved , but is less strict than in a criminal case .

According to examples of ORG case law submitted by the Government ( see , e.g. , ORG DATE p. CARDINAL , NJA DATE p. CARDINAL , NJA DATE p. CARDINAL , NJA DATE p. CARDINAL and ORG DATE p. CARDINAL ) , in cases concerning insurance compensation to consumers it is for the policyholder to show that , having regard to the circumstances as a whole , it is more likely than not that an insured event has occurred . The policyholder ’s burden of proof is viewed as somewhat more lenient than the ordinary civil burden of proof . If the insurance company responds that no compensation shall be granted because the policyholder has intentionally caused the insured event , the burden shifts onto the company , which has to prove this in accordance with the ordinary civil standard .


Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

On DATE ORG of the LOC commenced bankruptcy proceedings against ORG GPE Zavod ” , the applicant 's former employer . According to the Government , these proceedings are still pending .

On DATE the ORG ordered that company to pay the applicant UAH CARDINAL,CARDINAL in salary arrears .

On DATE ORG instituted enforcement proceedings .

NORP By letter of DATE , ORG of ORG informed the applicant that the judgment in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor company and that the procedure for the forced sale of assets belonging to it had been blocked by the PERSON on the Introduction of a Moratorium on the Forced Sale of Property of DATE .

On DATE ORG sold PERCENT of the debtor 's share capital to a private company . Under the terms of the sales contract , the latter undertook to pay all the salary - related debts of the debtor company .

On DATE the full amount of the judgment debt was transferred to the deposit account of ORG . The applicant was invited to submit his bank account details to ORG . On an unspecified date the applicant received the full amount of the debt .

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


Mr PERSON , the applicant in application No . CARDINAL ( the first applicant ) , was born in DATE and lives in GPE . Mr PERSON , the applicant in application No . CARDINAL ( the second applicant ) , was born in DATE and lives in GPE .

DATE and DATE the second applicant was the representative of the company PERSON , ORG . and he was entitled to act on the company 's behalf in that capacity . On DATE he was replaced by the first applicant who carried out that function until DATE . Prior to that , on DATE , the second applicant had authorised the first applicant , then director of company PERSON , ORG . , to act on the company 's behalf . From DATE to CARDINAL DATE Mr I. succeeded the first applicant as the above company 's representative .

On DATE Mr T. , a police investigator of ORG in Prešov , accused PERSON of unauthorised trading in foreign currency . PERSON was accused of having authorised , as a co - owner of the company PERSON , a sale of bills of exchange in GPE without the approval of the central bank . The transaction had been carried out in DATE . The investigation file had the number KÚV-CARDINAL/CARDINAL - CARDINAL .

On DATE investigator PERSON accused Mr I. of a different offence in the context of proceedings KÚV-CARDINAL/CARDINAL - CARDINAL . I. was accused of fraud and money laundering on the ground that he had unlawfully obtained and used a sum of money while acting as the representative of companies PERSON o.c.p . , a.s . and C.S.I. PERSON , a.s . According to the accusation , ORG had issued bills of exchange which had been uncovered and void . The transaction had allegedly been made in GPE in DATE and it had involved the same person as the above transaction of DATE .

The police investigator summoned the first applicant to an interview as a witness in the case against ORG first applicant appeared before the investigator and indicated that he wished to avail himself of the right under LAW of LAW to remain silent with a view to avoiding any criminal proceedings against him . This fact is recorded in TIME applicant 's interview of DATE .

On DATE investigator ORG issued a decision , under LAW , in which he imposed a procedural fine of SKK CARDINAL,CARDINAL on the first applicant . The decision stated that the applicant had refused , on DATE , to make a witness statement in the criminal case against NORP concerning fraud . The decision also stated that the applicant had relied on LAW and that the investigator had concluded , after having considered the position in the case , that the applicant 's statement as a witness could not result in the initiation of criminal proceedings against him . The decision had the number GPE .

The second applicant , like the first applicant , was summoned to an interview by investigator PERSON in the context of criminal proceedings brought against Mr I. On DATE , prior to interviewing the second applicant , the investigator informed him that he could remain silent , pursuant to LAW , if his statement could result in his or his close relatives ' prosecution for a criminal offence . The second applicant used that right . According to the minutes , he had stated that he would not mention the reasons for his decision to remain silent .

In a decision of CARDINAL DATE the investigator imposed a procedural fine of SKK CARDINAL,CARDINAL on the second applicant under LAW . The decision stated that the applicant had refused , without justification , to make a witness statement in a criminal case and that he had been warned that he could be fined therefor . According to the decision , the applicant had not indicated any reason for his refusal and the investigator concluded , after having considered the evidence in the case , that his witness statement had not been susceptible of resulting in his prosecution .

On DATE the police investigator accused the first applicant of conspiracy to defraud on the ground that he had been involved in the fraudulent elaboration of a contract with a view to obtaining a considerable sum of money from the ORG . The decision had the file number PERSON .

On DATE investigator ORG issued CARDINAL decisions under investigation file number KÚV-CARDINAL/CARDINAL - CARDINAL accusing several persons of criminal offences .

In the first decision PERSON , the CARDINAL applicants and CARDINAL other persons were accused of conspiracy to defraud . The case concerned the transfer of securities of the joint stock company ORG , a.s . The alleged offence had been committed in DATE . A public prosecutor at ORG in ORG quashed the investigator 's decision on DATE . No further criminal proceedings have been brought against the second applicant subsequently .

In the second decision dated DATE investigator PERSON accused the first applicant , together with Mr I. and another person , of preparatory acts relating to money laundering . It was imputed to the first applicant that , as representative of the company GPE , a.s . , he had participated in the fraudulent elaboration of a contract in DATE , and that he had transferred securities of ORG , a.s . to his company .

On DATE the police investigator joined to a single set of proceedings the above cases against Mr I. and , inter alios , the first applicant registered under file numbers KÚV-CARDINAL/CARDINAL - CARDINAL , KÚV-CARDINAL/CARDINAL - CARDINAL and KÚVCARDINAL/OVEK-CARDINAL . On DATE the investigator discontinued the proceedings against Mr I. ( file number KÚV-CARDINAL/CARDINAL - CARDINAL ) brought on DATE as no offence had been committed .

On DATE the public prosecutor indicted the first applicant , PERSON and QUANTITY other persons before ORG in Prešov in the context of transfer of securities of Transpetrol , a.s . The first applicant was charged with CARDINAL offences .

Firstly , the applicant was accused of fraud , together with PERSON and QUANTITY other persons , on the ground that they had fraudulently elaborated a pre - dated contract , in DATE , after a tax authority had issued a warrant with a view to securing a possible debt of company ILaS Vranov , ORG . As the warrant had prevented the company PERSON , ORG . from complying with its obligations under the above contract , the ORG had later been ordered to pay SKK CARDINAL,CARDINAL,CARDINAL as compensation for the fine foreseen under that contract . The ORG 's alleged debt had subsequently been enforced by means of a transfer of securities of ORG , a.s . The public prosecutor concluded that , as a result , ORG had suffered a financial loss totalling SKK CARDINAL .

Secondly , the first applicant was accused of having engaged in preparatory acts relating to money laundering in that he had acquired , as representative of the company GPE , a.s . , CARDINAL shares in the company Transpetrol a.s . which had been obtained by means of the above transasction and that he had intended to sell those securities abroad through his co - accused Mr I.

On DATE ORG in PERSON returned the case to the public prosecutor for further investigation .

On DATE ORG quashed ORG decision of CARDINAL DATE and ordered the first - instance court to proceed with the case . In its decision ORG referred to the fact that the second applicant had refused to make statements as a witness at interviews on DATE , CARDINAL DATE and DATE with reference to LAW . Further questioning of the second applicant would in such situation amount to undue pressure with a view to forcing him to make a statement which he had refused to make in accordance with the relevant provisions of LAW . ORG concluded that any evidence obtained in those circumstances could not be used in subsequent proceedings .

The criminal proceedings are pending .

On DATE the first applicant filed a complaint against the decision of DATE to impose a fine on him . He argued that he had availed himself of his right to remain silent as he had considered that his statement could give rise to criminal proceedings against him . He had not been warned that a fine could be imposed on him , and the investigator had not informed him that the position in the case excluded the bringing of criminal proceedings against the first applicant .

On DATE the ORG Deputy Prosecutor dismissed the complaint . The decision stated that the first applicant had not indicated the reason for his refusal to make a statement . Under LAW of LAW , a witness was obliged to inform an investigator why he or she refused to make a statement . Where the investigator did not accept the reasons invoked , the witness was obliged to answer the questions .

The first applicant requested that an extra - ordinary complaint be filed against the above decision imposing a fine for his refusal to make statement as a witness .

On DATE a public prosecutor at ORG dismissed the request . In his letter the public prosecutor summed up the relevant facts as follows . On DATE the first applicant had to be heard as a witness in the context of criminal proceedings KÚV-CARDINAL/CARDINAL - CARDINAL against Mr I. Those proceedings concerned an unlawful sale of bills of exchange , in DATE , which had resulted in the transfer of approximately SKK CARDINAL to the account of the company ILaS Vranov , ORG . on DATE . The offences imputed to the accused comprised also several other actions including the misuse , in DATE , of bonds issued by a company of which PERSON had been the director and transfer of that company 's assets to several persons including the applicant . The police investigator had joined the above proceedings , on DATE , as both the applicant and PERSON had been accused in the case registered under file number KÚV-CARDINAL/CARDINAL - DATE . However , the actions imputed to Mr I. in proceedings KÚV-CARDINAL/CARDINAL - CARDINAL , in the context of which the applicant had refused to make a witness statement , were entirely unrelated to the facts of the other cases .

NORP The public prosecutor held that a witness could remain silent only to the extent that a specific part of his statement was susceptible of resulting in the introduction of criminal proceedings against the witness or his or her next of kin . As the first applicant had had no apparent reason for refusing to make a witness statement , and since he had given no specific reason for such a refusal , the decision imposing a procedural fine had been justified .

The second applicant filed a complaint against the decision imposing a fine on him . He argued , with reference to the record of the interview with the investigator , that he had remained silent as he had considered that a statement could give rise to criminal proceedings against him . The fine amounted to the application of psychological pressure to him .

On DATE the ORG Deputy Prosecutor dismissed the second applicant 's complaint . The decision stated that the applicant had not given any reason for his refusal to make a statement . Under LAW of LAW , a witness was obliged to inform the investigator why he or she refused to make a statement . Where the investigator did not accept the reasons invoked , the witness was obliged to answer the questions .

On DATE the second applicant petitioned ORG for a complaint in the interest of the law to be filed on his behalf . He challenged the above procedural fine . The fact that the same investigator had accused him of an offence on DATE proved that the fine had been imposed with a view to coercing the second applicant to make a statement on the relevant facts .

In a letter of DATE a public prosecutor of ORG refused to file an extra - ordinary complaint on the second applicant 's behalf for reasons similar to those set out above in respect of the petition filed by the first applicant .

On DATE a different public prosecutor of ORG confirmed that conclusion . The letter stated , in particular , that the interview in question had concerned offences imputed to other persons and that the second applicant , therefore , had had no valid reason for refusing to answer the questions . The offence of which the second applicant had been accused subsequently concerned facts different from those on which he had been asked to make a witness statement .

Article CARDINAL § CARDINAL reads as follows :

“ Everyone is entitled to refuse to make a statement where it would be susceptible of resulting in his or her prosecution for a criminal offence or in prosecution of a different person close to him or her . ”

Under LAW , a person who , despite previous warnings , disturbs proceedings or behaves in an offensive manner in relation to a court , a public prosecutor , an investigator or a police authority or , without sufficient excuse , does not obey an order or does not comply with an instruction addressed to him or her under LAW , can be punished with a procedural fine of up to SKK CARDINAL,CARDINAL .

Pursuant to Article CARDINAL , everybody is obliged to appear before a prosecuting authority upon summons and to make a statement as a witness about facts which he or she knows about an offence , its perpetrator or issues which are considered important for the purpose of criminal proceedings .

“ A witness is entitled to refuse to make a statement where such a statement would entail the risk that criminal proceedings would be brought against him , against his relative in direct line , his sibling , a person whom the witness adopted or by whom he was adopted , against the spouse or partner of such a witness or against any other person with whom the witness has family - like relations and whose harm the witness would justifiably perceive as being his own harm . ”

NORP The domestic authorities have held that a person who wishes to remain silent pursuant to LAW must state the reason for his or her refusal to make a statement . The decision whether or not such a person 's recourse to LAW is justified lies with the authority by whom the witness is to be heard . Where the authority concerned does not accept the reasons invoked , the witness is obliged to make a statement .

Where the refusal of a witness to make a statement is justified , an investigator can not circumvent the witness 's right to remain silent by inquiring into the reasons for such a refusal and facts related to the subject - matter of the envisaged interrogation , and by mentioning those facts subsequently in TIME of the interrogation . The information contained in such an unlawfully obtained statement can not be used as evidence in criminal proceedings .