Mr PERSON , who was born in DATE , lives at GPE , GPE .

In DATE and until DATE , he operated - through ORG , a company which he controlled - a club for the exchange of video cassettes , under the name of ORG . The company recorded cassettes which were subsequently made available to subscribers to the club , of whom there were CARDINAL . A substantial number of the recordings distributed through the club had been made in breach of copyright , although the applicant contended that he had received counsel ’s advice to the effect that the club ’s exchange activities were within the law .

ORG The applicant ’s business came to the notice of CARDINAL film companies and CARDINAL organisations formed to protect film producers and film distributors , respectively , from activities carried out in breach of copyright ( " the Plaintiffs " ) . The investigator employed by the Plaintiffs , a former policeman , discovered and reported to them that their copyright was , in his view , being breached by the applicant and his company ( " the Defendants " ) .

Accordingly , on DATE , the Plaintiffs , as a preliminary step in an action against the Defendants , applied to ORG for interim relief in the form of an order known as an " PERSON order " ( see paragraphs TIME below ) . Their application was supported by CARDINAL affidavits , CARDINAL sworn by the investigator and the other by PERSON , a solicitor . The order was made on DATE by Mr Justice PERSON . The Defendants were not present in court : in accordance with the practice in such cases ( see paragraph CARDINAL below ) , no notice was given to them of either the application or its outcome .

Under LAW of ORG ( Consolidation ) Act DATE - now section CARDINAL of ORG DATE - , ORG had and has a general power to grant an injunction by interlocutory order in all cases in which it appears to be just or convenient so to do . LAW , rule CARDINAL , of the Rules of ORG specifically empowers it to make orders " for the detention , custody or preservation of any property which is the subject - matter of the cause or matter " .

In this context , ORG developed - in particular from DATE TIME - the practice of granting in appropriate cases to the plaintiff or intending plaintiff in civil proceedings " PERSON orders " , so called after the name of a case in which their use was approved by ORG ( PERSON v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . They are of a procedural and essentially provisional nature only , being granted pending the trial of the action on the merits .

One of the basic purposes of this interlocutory measure being to preserve for that trial evidence in the possession of the defendant or prospective defendant , its essence is surprise . For this reason , the court - by virtue , so it was held in the PERSON case , of a power deriving from its inherent jurisdiction - grants the order on an ex parte application , that is without the defendant ’s being given notice and without his being heard . For the same reason , the application is invariably heard in private and the defendant will become aware of the order ’s existence only when it is served on him with a view to immediate execution .

Over DATE , the principles governing the grant and the terms of these orders have been restated and refined in numerous judgments .

ORG An PERSON order will normally contain restrictive or mandatory injunctions :

( a ) prohibiting the defendant from dealing with materials that are the subject of the action ( for example , " pirate " - that is , unlicensed or unauthorised - video tapes ) ;

( b ) requiring the defendant to disclose to the person serving the order the whereabouts of all such materials and details of suppliers and customers , and to deliver up the materials to the plaintiff ;

( c ) requiring the defendant to make within a specified time - limit an affidavit containing all the information to be disclosed by him under the order ;

( d ) requiring the defendant to permit the plaintiff to enter specified premises for the purpose of searching for and removing specified items .

As regards this last injunction , the court will confine the items specified to documents and materials directly relating to the action . It will also restrict the time of entry ( commonly from TIME on DATE ) and the number of persons who are to be permitted to enter ( very rarely CARDINAL ) . The latter will include the plaintiff ’s solicitor , who is an officer of the court ( see paragraph CARDINAL in fine below ) .

ORG Whilst PERSON orders have been made in a wide variety of cases , the great majority are granted in proceedings involving allegations of infringement of patents , trade marks or copyright or of passing off . Of these , by far the most frequent have been cases involving pirate records , tapes and video cassettes , where the risks of suppression of evidence are especially strong . It appears that CARDINAL such orders were made DATE , but the current figure has dropped to CARDINAL . This reduction reflects the decrease in the incidence of video piracy , which in DATE and DATE had attained epidemic proportions .

ORG An PERSON order is usually applied for at the very outset of proceedings , at the same time as the writ commencing them is proposed to be issued .

The plaintiff or intending plaintiff will submit to the court a draft of the order sought , accompanied by supporting evidence in the form of affidavits ( or drafts to be sworn subsequently ) . The evidence , which is often provided by a professional investigator , will outline the plaintiff ’s business and how it is alleged to be prejudiced by the defendant ’s activities . There will be a description of those activities , very often including a record of a visit to the defendant ’s premises and the purchase and presence there of , for example , pirate video cassettes .

ORG The plaintiff must , however , state at the beginning what his charges are and what facts they are based on ; he must not use an PERSON order as a means of finding out what sort of charges he can make ( per Lord Justice PERSON in ORG Conveyors International Ltd [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

Furthermore , he is under a duty to disclose all material facts when applying for the order . Failure to comply , even innocently , with this obligation will , unless the court in its discretion otherwise decides , lead to a refusal or discharge of the order , even though there may be facts justifying its grant .

ORG Before making an PERSON order , the court must be satisfied that :

( a ) the plaintiff has made out an extremely strong prima facie case that his claim will succeed on the merits ;

( b ) the actual or potential damage is very serious for him ; and

( c ) there is clear evidence that the defendant has in his possession incriminating documents or things , and that there is a real possibility that , if he is forewarned , he may destroy such material .

ORG If so satisfied , the court will nevertheless accede to the application only on terms which will be incorporated in its written order , in the form of undertakings given to the court . These are designed to protect the position of the absent defendant , counsel for the plaintiff being under a duty to ensure that the order contains all proper safeguards for this purpose . The court determines in its discretion what undertakings are to be given , there being no invariable rules or practice in this respect . Examples are the following , item ( a ) being found in all , and items ( b ) , ( c ) ( i ) and ( c ) ( ii ) in most cases :

( a ) an undertaking by the plaintiff to pay to the defendant any damages sustained by him as a result of the making of the order ;

( b ) an undertaking by the plaintiff that the order and other relevant documents , such as the affidavit evidence underlying it , the writ instituting the proceedings and the notice of the next hearing , will be served on the defendant by the plaintiff ’s solicitors ;

( c ) undertakings by those solicitors :

( i ) to offer to explain to the person served , fairly and in DATE language , the meaning and effect of the order , and to inform him that he has the right to obtain legal advice before complying with the order or parts thereof , provided such advice is obtained forthwith ;

( ii ) to retain in their custody any items taken by or delivered to them pursuant to the order ;

( iii ) to answer any question from the defendant as to whether an item is within the scope of the order ;

( iv ) to prepare , before their removal from the LOC , a list of the items taken ;

( v ) to use any information or document obtained under the order only in connection with the civil proceedings in question ;

( vi ) to ensure that the exercise of rights under the order remains at all times under the control of a solicitor .

The significance of the intervention of a solicitor in this procedure and in the undertakings given is that solicitors are officers of ORG and , as such , subject to its inherent jurisdiction in disciplinary matters . A failure by a solicitor to comply fully with an undertaking given by him personally to the court in his professional capacity will render him liable to summary proceedings for contempt of court with a potential sanction of imprisonment , a fine or an order to pay compensation or costs . It will also constitute professional misconduct , punishable in professional disciplinary proceedings by striking off the roll , suspension from practice or a financial penalty .

ORG In addition to the fact that it is issued to a private party in civil proceedings , and not to the police in criminal proceedings , an PERSON order is to be distinguished from a search warrant in that it confers no right of forcible entry onto LOC . Its terms require the defendant to permit the plaintiff to enter , but it remains open to the defendant to refuse and , if he so wishes , to apply by urgent motion for variation or discharge of the order ( see paragraph CARDINAL below ) . He is , however , under pressure to give permission , especially since refusal to comply will expose him to the risk of proceedings for contempt of court on the motion of the plaintiff , with a possible penalty of imprisonment . Moreover , even if the defendant later succeeds in having the order discharged , his disobedience whilst it was in force will - unless it was made in circumstances in which it was a nullity in law - still constitute a contempt , albeit one which will probably be treated as technical and will usually attract no penalty ( per Lord Justice PERSON in ORG v. ORG [ DATE ] FAC ) .

ORG It is common practice - and this has received judicial approval - to arrange for a policeman to be present , outside the LOC , when an PERSON order is being executed , with a view to forestalling any breach of the peace .

ORG An PERSON order will expressly reserve to the defendant liberty to apply by urgent motion for its variation or discharge on giving specified notice to the plaintiff ( usually TIME but sometimes less ) . Being an essentially provisional measure , it will in any event limit the duration of the relief which it affords to a specified period , generally DATE . On the expiry of that period , there will in principle be a hearing inter partes at which the court will review the order and consider whether the relief should be continued . On that occasion , or at any time subsequently , the defendant may apply for the order to be varied or discharged . Whilst the court may set aside the order even after its execution , it will not do so unless discharge was applied for reasonably soon thereafter and will serve some practical purpose ( PERSON plc v. PERSON [ DATE ] Reports of Patent Cases CARDINAL ) .

An PERSON order can be set aside if there existed no , or no sufficient , grounds for its making , if the plaintiff failed to disclose material facts when applying for it or , it seems , if it was improperly or oppressively executed .

If the order is set aside , the defendant will be relieved from complying with the injunctions contained therein and any materials seized thereunder will be returned to him . Partial relief of a similar nature may also be granted by the court even if the application for discharge is unsuccessful ( see paragraphs DATE below ) .

ORG In addition or as an alternative to applying for the order ’s discharge , the defendant may seek damages under the plaintiff ’s cross - undertaking ( see paragraph CARDINAL ( a ) above ) on the ground that the order was improperly obtained or executed . Damages may be awarded even if the order is not set aside and even if the plaintiff ’s action succeeds on the merits ( ORG v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Whilst they may be determined earlier , claims for damages are usually stood over until the trial on the merits ( ORG v. ORG [ DATE ] CARDINAL ORG ) . Damages are primarily intended to compensate the defendant for loss occasioned by the order but they may be aggravated if it was executed in an excessive or improper manner ( see ORG case ) .

ORG If the defendant considers that the plaintiff or his solicitors are in breach of their undertakings contained in the PERSON order or that the latter have acted improperly in executing it , he can proceed against them for contempt of court ( see paragraph CARDINAL in fine above ) .

ORG The defendant can also claim damages for trespass if , for example , entry to his LOC was obtained by a trick or without real consent , or materials were removed without justification under the order .

ORG In the ORG case , Mr Justice PERSON reviewed extensively the law and practice relating to PERSON orders . He considered that the availability of damages did not meet the main objection to the procedure , namely that it produced for the defendant , without his being heard , damaging and irreversible consequences , often in the form of the closure of his business .

Furthermore , whilst it was proper to make PERSON orders in suitable cases , they had , in his opinion , been too readily granted and with insufficient safeguards for defendants , the balance that had to be struck between the rights at issue having swung much too far in favour of plaintiffs . He was of the view that the draconian and essentially unfair nature of an PERSON order from the defendant ’s point of view required that it be restricted to the minimum extent necessary to achieve its purpose and he gave several examples of steps to be taken to meet this standard .

ORG The interlocutory relief obtained by the Plaintiffs on DATE in the shape of the PERSON order was granted until DATE or until further order . The Defendants were given liberty to apply to the court for variation or discharge of the order on giving CARDINAL hours’ notice to the Plaintiffs .

ORG The order contained , inter alia , the following .

( a ) An injunction prohibiting the Defendants from making , selling , hiring , distributing or parting with possession of any unlicensed copies of any films the copyright in which was owned by the Plaintiffs , and from parting with possession of any documents relating to the supply of such copies to or by the Defendants .

( b ) An injunction requiring the Defendants to permit not CARDINAL persons authorised by the Plaintiffs , together with a solicitor and CARDINAL other solicitor or employee of the GPE solicitors , to enter forthwith specified LOC on any weekday TIME for the purpose of searching for and removing into the custody of the GPE solicitors any unlicensed copies of the said films and any documents appearing to relate to the acquisition , supply or disposal of such copies . The LOC identified in the order were those under the control of PERSON and his company ; they were in fact where he carried on business but - apparently unbeknownst to the Plaintiffs - they were also occupied by him in part as his home ( see paragraph CARDINAL below ) and constituted at the time his only residence .

( c ) An injunction requiring the Defendants to reveal to the GPE solicitors the whereabouts of , and to deliver to them , all the aforesaid copies and documents in the GPE possession .

( d ) Injunctions requiring the Defendants to disclose to the GPE solicitors the names and addresses of the GPE suppliers of and customers for unlicensed copies of the said films ; and to swear , within DATE after service of the order , an affidavit setting forth this information ( " the affidavit of disclosure " ) .

ORG The order also contained undertakings by the Plaintiffs or their solicitors in terms akin to those mentioned in paragraph CARDINAL above , other than items ( c ) ( iii ) , ( c ) ( iv ) and ( c ) ( vi ) , together with an undertaking not to commence or instigate criminal proceedings against any of the Defendants in respect of the acts forming the subject - matter of the action . The undertaking to inform the Defendants of their right to obtain legal advice related , however , solely to the requirement to disclose particulars of their suppliers and customers ( see paragraph CARDINAL ( d ) above but cf . paragraph CARDINAL below ) .

ORG The PERSON order was executed on DATE , simultaneously with a police search warrant . The circumstances that led to this special feature of the present case are set out below .

ORG On DATE the GPE investigator , posing as a customer , had visited Mr PERSON ’s business premises in order to collect pirate video cassettes of CARDINAL films , the copyright in which was allegedly owned by the Plaintiffs . He was also shown an extract from another cassette which he considered obscene ; in his affidavit in support of the application for the PERSON order , he stated that he was asked if he was interested in cassettes of this kind but " did not pursue this as such material is not of interest to my [ employers ] " .

In fact , the investigator went immediately to the NORP police and informed them about the material he regarded as obscene . He saw Detective Chief Inspector A , to whom he sent a written statement on DATE . On DATE he told the GPE solicitors - who had been instructed following his report to obtain an PERSON order - that the police were " interested in the porno material " he had seen and that he would " make arrangements with the police in Bath " .

ORG On DATE the investigator telephoned Detective Chief Inspector A at the request of the Plaintiffs’ solicitors to inform him that an PERSON order was to be applied for on DATE , the intention being to serve and execute it on DATE . He arranged with A that , if the order was obtained , there would be a meeting between those who were to execute it and the police at Bath police station at TIME on DATE . The reason for this arrangement was that the police planned to execute , in connection with possible proceedings under LAW DATE and at the same or about the same time as the order , a warrant to search the GPE LOC for and seize any pornographic video films .

ORG During the course of the application for the order on CARDINAL DATE , the following exchange took place between counsel for the Plaintiffs and Mr Justice PERSON :

" ( Counsel ) : My Lord , there is CARDINAL other matter which I ought to draw to your Lordship ’s attention and that is that the local police force are very much interested in these defendants in relation to matters which are not the subject of this action , namely , the adult films .

( The judge ) : Yes . Well , that is a different matter altogether .

( Counsel ) : My Lord , it is a different matter , but I felt I ought to draw your Lordship ’s attention to the fact that they propose a visitation upon [ the applicant ] and his company at about the same time as we propose to serve this order upon them .

( The judge ) : Yes , but they are not interested in ...

( Counsel ) : No .

( The judge ) : ... these films .

( Counsel ) : They are just interested in the obscenity .

( The judge ) : It ’s only the self - incrimination .

( Counsel ) : My Lord , that ’s right .

( The judge ) : So far as that is concerned there is no indication that the police are ...

( Counsel ) : None whatever .

( The judge ) : As to that you gave the undertaking . "

ORG A letter of CARDINAL DATE from the GPE solicitors to PERSON - which was put in evidence by the Plaintiffs in another connection - contained the following passage concerning the arrangements with the police :

" We would like to deal ... with the point about the simultaneous execution of the police search warrant with the [ PERSON order ] ... [ We ] would like to make our position plain ... On DATE [ we ] first received instructions to obtain an [ order ] . It is quite clear from our attendance note of the conversation that [ the investigator ] also told [ H. ] that the police were interested in you and [ the applicant ’s company ] in relation to pornographic material . It was also clearly assumed that should the police wish to take action then a joint execution of the search warrant and the [ order ] would be the ideal arrangement . Obviously anything other than a simultaneous execution might well prove to be to little or no effect . Of course no one could be certain at that time that such simultaneous execution would take place since it depended , inter alia , on a judge granting a full PERSON order and the police obtaining a search warrant quite apart from any other practical difficulties . That was the position when the application before the application judge was made on [ CARDINAL ] DATE ] . Let us be quite clear , we do not in any way deny that it was the intention that the [ order ] , if granted , would be served and executed at the same time as the search warrant , assuming that [ that ] was granted to the police and that the other arrangements could be made . We repeat that such is obvious . We also think reference to the transcript [ of the hearing concerning the application for the order ] makes it quite clear that the application judge was informed of the police interest and the likelihood or possibility of a search warrant being executed . "

ORG As soon as the PERSON order was made on DATE , the GPE solicitors informed the NORP police , who had obtained a search warrant on DATE . The previous arrangements were confirmed .

ORG At TIME on DATE the Plaintiffs’ party ( H. , another solicitor and CARDINAL employees of the Plaintiffs , including the investigator ) met the police at Bath police station . They then went , together with the police party responsible for executing the search warrant ( CARDINAL policemen in plain clothes , led by A ) , to the GPE LOC .

ORG On arrival , the investigator went in first , again posing as a customer , his stated object being to be able to " observe what happened right from the start " .

TIME , A , who was accompanied by some of the Plaintiffs’ party including H. but by no policemen , rang the doorbell . The lady who opened the door initially refused entry but , after being shown the search warrant , she reluctantly admitted the group ( see also paragraph CARDINAL ( d ) below ) .

ORG The premises were on CARDINAL floors . The ground - floor entrance gave access to a passage and stairs leading to the other floors . On the first of those were Mr PERSON ’s office and a general office ; on the second , his bedroom , a room used for processing video cassettes and the office of an employee of his company ; and on the third , CARDINAL further offices .

ORG Detective Chief Inspector A and those accompanying him found PERSON in his office , where he was served with the search warrant . The other CARDINAL or QUANTITY policemen entered the building at TIME Having been assigned to various rooms or tasks , they began their search ; it was concluded at TIME , after CARDINAL items ( mostly video tapes ) had been logged and signed for .

ORG As soon as the warrant had been served and whilst the police were beginning their search , PERSON served the PERSON order on PERSON and informed him of its effect . Furthermore , in accordance with the general obligation incumbent on solicitors in such cases , he went further than his express undertaking ( see paragraph CARDINAL above ) , in that he urged PERSON to obtain legal advice on the order in its entirety . The latter asked for a member of his usual firm of solicitors to attend , but the only person available was a trainee solicitor . On his arrival shortly afterwards , PERSON , who was distracted by the police search , was advised of the implications of the order and accepted service of it ; service was accepted on behalf of his company by the trainee solicitor .

Thereupon - but not before - the Plaintiffs’ party started their search of the LOC , which was conducted simultaneously with the police search and concluded at about the same time . They seized , inter alia , CARDINAL video cassettes as pirate copies ; some of these , in which the copyright was not owned by the Plaintiffs , were subsequently returned to PERSON .

ORG The applicant maintained that , owing to the simultaneous searches , he was unable to supervise the operations and take note of the material seized . In particular , he stated that the GPE solicitors took a number of private , confidential and personal documents , having no bearing on the action for breach of copyright . The Government submitted that , not being a party to the search , they could not comment on or dispute these contentions .

A note on the solicitors’ file records that H. went through the drawers of correspondence and other documents and " encountered some protest " from PERSON " who attempted to separate material which was not relevant " , but that " all necessary material was finally removed " . No itemised list of the seized material was prepared , neither was this required under the order ( see paragraph CARDINAL above ) , but the applicant did take copies of some of it . The Commission found it " clear " that personal correspondence had been examined and , in certain cases , taken by the solicitors .

ORG The aforesaid and another note made by the GPE solicitors reveal that they returned after the search to the police station and , in PERSON absence , went through the documentation seized by the police and copied or borrowed certain relevant items .

ORG The matter of the PERSON order came before ORG ( Mr Justice PERSON ) on DATE for a hearing inter partes ( see paragraph CARDINAL above ) . The applicant did not then seek the discharge of the order on the ground that it had been improperly obtained , although he did apparently ask for the return of the seized cassettes .

As regards the affidavit of disclosure which was due to be filed by the Defendants by DATE ( see paragraph CARDINAL ( d ) above ) , Mr Justice PERSON , by order of CARDINAL DATE , extended the time - limit to DATE : at the hearing the Defendants had given various undertakings to the court , including CARDINAL to disclose the same information as that originally stipulated under the PERSON order and to make the corresponding affidavit . The time - limit was subsequently extended , by agreement between the parties , to DATE . However , the applicant , who had changed solicitors twice and visited the GPE solicitors’ office several times to examine the seized materials , continued to refuse to file the affidavit ; he objected , in particular , to giving details of the members of ORG .

ORG On DATE the Plaintiffs served on the Defendants a notice of motion for contempt of court for failure to comply with the disclosure undertaking given to Mr Justice PERSON ; in it they sought Mr PERSON ’s committal to prison .

On DATE the applicant withdrew his instructions from his professional advisers and thereafter conducted his case in person . He then issued a variety of cross - motions against the Plaintiffs . In CARDINAL of these , dated DATE , he requested that the PERSON order be set aside ; that the Defendants be released from their undertakings ; that the seized materials be returned to them ; that the GPE action be dismissed ; and that he be awarded damages . His principal ground for claiming this relief was that the order had been improperly obtained , served and executed - notably on account of the combined searches by the Plaintiffs and the police and the failure to inform Mr Justice PERSON of the plans in this connection - with the result , he submitted , that the order and the evidence obtained thereunder were invalid .

Another cross - motion by Mr PERSON related to alleged contempt of court by the Plaintiffs and their investigator , notably for failure to comply with undertakings incorporated in the order .

ORG On DATE , after hearing substantial argument and several witnesses ( including the applicant and others who had been present at the search ) , Mr Justice PERSON gave judgment in ORG on the GPE and PERSON motions . He addressed , inter alia , the following matters .

( a ) After describing an PERSON order as being of a " draconian nature " , he quoted in this connection the following dictum of Mr Justice PERSON in the High Court :

" ... [ T]he rule of full disclosure to the court is almost more important in PERSON cases than in other ex parte applications . Since PERSON orders give compulsory rights of inspection , once those inspections have taken place the information procured from [ them ] is in the hands of the other side and the situation is irreversible . "

( b ) He noted that although the investigator ’s affidavit in support of the application for the order contained sufficient evidence to warrant the latter ’s making , it included CARDINAL inaccuracies which were neither trivial nor immaterial , CARDINAL being the omission of a clear explanation of his contact with the police on DATE ( see paragraphs CARDINAL and CARDINAL above ) .

( c ) He recited the exchange between counsel and Mr Justice PERSON on DATE , but described the GPE actual intentions in respect of their proposed co - operation with the police as being " more accurately described " in their solicitors’ letter of CARDINAL DATE ( see paragraphs CARDINAL - CARDINAL above ) .

( d ) Whilst finding that the lady who gave admission to the premises ( see paragraph CARDINAL above ) " obviously took it that PERSON and the others were police officers " , he was of the view that the PERSON order had been validly served .

( e ) He examined various complaints concerning the execution of the order and noted that PERSON " was able to look after his interests as well as anyone in his position would have been " . He nevertheless adverted to the difficulties created for a defendant by the simultaneous execution of a search warrant and an PERSON order , as regards supervision of the searching and taking advice from and giving instructions to his solicitor . To protect the defendant , he suggested , the warrant and the order should be served at the same time but the CARDINAL searches should be conducted consecutively .

( f ) He was satisfied that various allegations of improper behaviour on the part of the Plaintiffs and their solicitors , relating to matters other than the obtaining , service and execution of the order , were unfounded .

( g ) He arrived at the following conclusions :

" ... [ T]here was nothing inherently wrong with the mode of execution of the PERSON order , except that the presence of the police executing their search warrant at the same time made it more oppressive than it should have been ... [ T]he real vice lies in the fact that Mr Justice PERSON was not told with all the candour that was called for in the circumstances what the intentions of the plaintiffs and the police were . He ought ... at least to have been told that it was intended that the PERSON order ... and the search warrant ... should be executed at the same time ....

... [ T]he plaintiffs’ failure fully to inform Mr Justice PERSON ... [ did not go to the question whether the order should be made at all ] . It only meant that [ he ] did not consider whether he should include in his order some safeguard against the risk of the simultaneous execution of the search warrant and of the order proving oppressive ... If [ he ] had known all that I have learnt ... about the way in which [ the applicant ’s company ] conducted its business , he would have been all the more certain that he should make the order . "

ORG In the light of the foregoing , Mr ORG gave the following decisions .

( a ) Whilst he could not undo the irreversible , he would not allow the Plaintiffs to derive any further advantage from the PERSON order . Accordingly , he released the Defendants from the disclosure undertaking given to Mr Justice PERSON ( see paragraph CARDINAL above ) and set aside those parts of the original order that required disclosure of particulars of suppliers and customers ( see paragraph CARDINAL ( d ) above ) .

( b ) He declined to order return of the materials seized under the order .

( c ) He held that he could neither dismiss the Plaintiffs’ action nor , at that stage , award damages to PERSON .

( d ) Whilst the Defendants were undoubtedly in contempt of court for failure to make the affidavit of disclosure , no penalty should be imposed : it would be incongruous to release them from their undertaking and at the same time punish them for non - compliance .

( e ) He dismissed PERSON cross - motion for contempt of court .

ORG On DATE , ORG rejected an appeal by PERSON against dismissal of his contempt motion and allowed a cross - appeal by the Plaintiffs . The judgments given contained , inter alia , the following points .

( a ) Whilst an PERSON order was necessary and salutary in certain cases , it was a draconian measure . It infringed what is normally the fundamental principle of audi alteram partem , as a result of proceedings in which the defendant had not been heard and of which he had not even previously been informed . Hence the importance of full disclosure to the court from which the order was sought and of observing not only in the letter but in the spirit the stipulations it incorporated for the defendant ’s protection .

( b ) Whilst PERSON Justice PERSON had not been adequately informed of the plan to execute the order and the search warrant simultaneously , there had been no deliberate intention to deceive him .

( c ) There had not been a plot by the Plaintiffs to enter the premises without permission , but it was " disturbing " that the Defendants were not given a proper opportunity to refuse entry at the door . Once inside , the GPE solicitors had behaved with complete propriety and PERSON , far from being " shattered " , as he had contended , was " reasonably calm and collected " .

( d ) There was no objection in principle to a search warrant and an PERSON order obtained in respect of the same premises being executed " more or less contemporaneously " , lest valuable evidence be lost . However , Lord Justice PERSON added that , if this was intended , the court from which the order was sought had to be told in advance so that it could consider safeguards for the defendant as regards , for example , the order of the searches or the conduct of the plaintiff on obtaining entry . In Lord Justice PERSON ’s view , steps should be taken to ensure that the CARDINAL searches were not conducted " simultaneously " and that the solicitors executing the order did not seem to be " the hangers on of a squad of police officers " .

( e ) PERSON had admitted dealing in " a substantial volume " of pirate material , he had not applied to Mr Justice PERSON in DATE for discharge of the order but had instead given wide undertakings , and the order was necessary for the Plaintiffs’ protection .

Whilst describing what had happened as " unfortunate and regrettable " , ORG concluded that it was not necessary to set the PERSON order aside for the purpose of doing justice to Mr PERSON . It therefore restored the order , including the original disclosure requirements , but found it inappropriate to impose a penalty for his contempt of court in having failed to comply with his obligations in this respect .

ORG also refused leave to appeal to ORG . A petition by PERSON for such leave was rejected by ORG on DATE .

Mr PERSON had continued , until DATE , to operate a club for the exchange of video cassettes , but rather unsuccessfully on account of the seizure of his stock and books . On DATE the action for breach of copyright was concluded by a ORG order , to which he , allegedly under duress of the risk of self - incrimination , and the Plaintiffs consented . This order :

( a ) recorded the agreement of the Plaintiffs and PERSON to release each other from all liability arising from the subject - matter of the action and its pursuit by the Plaintiffs ;

( b ) restrained PERSON from any dealings with unlicensed copies of any films the copyright in which was owned by the Plaintiffs ;

( c ) required him to make an affidavit setting out the information about his suppliers and customers which the PERSON order had directed him to disclose by affidavit ( see paragraph CARDINAL ( d ) above ) , but omitting the names and addresses of bona fide members of ORG ;

( d ) released the Plaintiffs and their solicitors from their undertakings incorporated in the PERSON order , including that as to the confidentiality of the material obtained thereunder ;

( e ) directed that " all the documents and films " relating to the action be returned to PERSON , after erasure of the films from the cassettes ;

( f ) directed that all further proceedings in the action be stayed .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr U. Jacobson , a lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .

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

Following the applicant ’s laryngectomy operation in DATE , at which his cancerous larynx was removed , ORG ( försäkringskassan ; hereinafter “ the Office ” ) of GPE granted him disability benefits under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE Act ” ) amounting to PERCENT of a basic amount geared to the price index ( basbelopp ) .

On DATE the ORG reviewed the applicant ’s eligibility for disability benefits and decided that such payments should be discontinued as he had retired from work and no longer had needs or additional costs which entitled him to further benefits . The applicant requested the ORG to review its decision under LAW , section CARDINAL a of the DATE Act . Attaching a list of alleged additional costs , he claimed that the decision of DATE had been based on incomplete information .

On DATE the ORG , having regard to the applicant ’s submissions , changed its earlier decision and granted the applicant disability benefits amounting to PERCENT of the basic amount . In an attached document , the ORG indicated which additional costs had been accepted and which ones had not . In regard to several items , it also stated summary reasons for its decision .

The applicant appealed to ORG ( länsrätten ) of GPE , requesting that the benefits be fixed at a higher percentage of the basic amount . In substance , he maintained what he had submitted to the ORG .

By a judgment of DATE ORG rejected the appeal , subscribing to the reasons given by the ORG . The court did not hold an oral hearing , nor did the applicant request one .

On DATE the applicant appealed to ORG ( kammarrätten ) in GPE , essentially maintaining his previous submissions on additional costs and complaining that the Office and ORG had failed to give reasons for their decisions . He completed his appeal on DATE , submitting further arguments in regard to his costs . At the end of that document , the following handwritten note had been added : “ P.S. Requesting an oral hearing . ” No reasons for the request were given .

On DATE the appellate court rejected the request for an oral hearing . After having restated section CARDINAL of ORG ( ORG , ORG ; hereinafter ” the DATE LAW ; see further below ) , the court gave the following reasons :

“ Having regard to the subject - matter at issue and the information that has come to hand in the case , [ the court ] finds that an oral hearing is unnecessary and rejects the request to that effect . ... [ The applicant ] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within DATE after having been notified of this decision .

The case can be determined notwithstanding a failure to submit such written observations . ”

The applicant reiterated his request for an oral hearing on CARDINAL DATE stating that it was necessary in order to “ clarify circumstances relating to the subject - matter of importance to the outcome of the case ” .

By a judgment of DATE ORG rejected the applicant ’s appeal and his renewed request for an oral hearing . It stated that it shared the conclusion reached by the lower instances that the applicant ’s needs and additional costs were not such that he was entitled to higher disability benefits than had already been granted .

The applicant appealed to ORG ( Regeringsrätten ) . He complained about the lack of oral hearings in the lower courts and asked ORG to hold one . In those respects , he claimed that the case had not been adequately investigated .

By a letter of CARDINAL DATE the court informed the applicant that it normally did not hold oral hearings . He was given the opportunity to submit further observations in writing . He made such submissions on DATE repeating , in regard to the oral - hearing issue , that a hearing had been necessary in order clarify circumstances relating to the subject - matter of the case .

On DATE ORG refused the applicant leave to appeal .

According to chapter CARDINAL , section CARDINAL of LAW , a person who is ill or handicapped is entitled to disability benefits , provided that , before reaching DATE , he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses . The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation . It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG . Appeals may be made against the ORG ’s ordinary decision or a decision upon review DATE , section CARDINAL a of LAW .

The latter provision enables the ORG to change a decision it has previously taken in order to rectify certain obvious defects of that decision , provided that it has not already been reviewed by a court . Thus , the ORG must change its earlier decision if it contains a writing error , miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason . A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned .

The procedure in the administrative courts is governed by the provisions of LAW . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party ’s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


Violation of P1-3;Not necessary to examine Art. 14;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant , a NORP national born in DATE and living in GPE ) , is a member of the LANGUAGE - speaking minority in GPE .

By a decision of CARDINAL DATE ORG ( PERSON vēlēšanu komisija ) registered the list of the candidates of ORG ( ORG saskaņas partija ) in the elections to the NORP parliament ( GPE ) of DATE . The applicant 's name appeared on the list as the candidate for the constituency of ORG .

At the time of the registration of its list of candidates ORG supplied ORG with all the documents required by LAW , including a copy of the certificate attesting to the fact that the applicant knew the ORG 's official language – Latvian – issued on DATE by ORG in the town of GPE , a body responsible to ORG ( NORP valodas centrs ) , an administrative institution which was itself answerable to ORG .

On DATE an examiner employed by ORG ( NORP valodas inspekcija ) , part of ORG , went to the applicant 's place of work and examined her orally to assess her knowledge of NORP . As the applicant had not been notified of the visit , the examiner approached her while she was conducting negotiations with her business associates .

Having informed the applicant of her intention to verify the level of her competence in NORP , the examiner struck up a conversation with her in that language . During the conversation , which lasted TIME , the examiner asked the applicant , among other questions , why she supported ORG rather than some other party .

The examiner returned DATE accompanied by CARDINAL persons whom the applicant did not know , who were to act as invigilators . The examiner asked the applicant to write an essay in NORP . The applicant agreed to do so and began to write . However , being extremely nervous , because she had not expected such an examination and because of the constant presence of the invigilators , the applicant stopped writing and tore up her work .

The examiner then drew up a report to the effect that the applicant did not have an adequate command of the official language at the “ third level ” , the highest of the CARDINAL categories of competence defined in NORP regulations .

On DATE ORG sent the chairman of ORG a letter certifying the level of knowledge of the official language attained by a number of candidates on the lists registered for the parliamentary elections . Although the letter referred to the report drawn up by the examiner from ORG , the report was not appended to it . According to the certificate , of the CARDINAL candidates actually examined only the applicant did not have a command of NORP at the “ third level ” . CARDINAL other candidates , who had not been required to take an examination , had documents certifying that their knowledge was at the requisite level .

By a decision of CARDINAL DATE ORG struck the applicant 's name out of the list of candidates .

On DATE ORG , acting on the applicant 's behalf , asked ORG to set aside the above decision . In its pleading the party alleged that when the list of candidates in the election was registered a copy of the certificate attesting to the applicant 's knowledge of the ORG language had been supplied to ORG . It submitted that ORG should have taken that certificate into account , instead of relying solely on the certificate issued by ORG , as the CARDINAL documents contradicted each other .

In a final judgment of CARDINAL DATE ORG refused the application on the ground that ORG had acted within the limits laid down by LAW . In its judgment ORG noted that LAW of the LAW made possession of a certificate of knowledge of the official language at the “ third level ” by all candidates who had not completed their primary or secondary education in NORP a prerequisite for the registration of a list of candidates . Consequently , ORG had complied with the requirements of the LAW by deciding to register the list on which the applicant 's name appeared . On the other hand , section CARDINAL of the LAW empowered the ORG to rectify the lists already registered by striking out the names of candidates whose level of knowledge of the official language had proved to be insufficient ; in the applicant 's case the inadequacy of her linguistic competence had been confirmed by ORG certificate . ORG accordingly held that there had been no breach of the law .

On DATE ORG , acting on the applicant 's behalf , lodged third - party appeals against that judgment with the President of ORG of ORG and the Attorney - General , asking for the proceedings to be reopened on account of a serious and manifest breach of the substantive legal rules , resulting from faulty interpretation of LAW .

By CARDINAL letters dated DATE and DATE respectively , the Attorney - General 's office and the President of ORG of ORG dismissed the appeals , ruling that ORG had given reasons for its judgment and that the judgment was in accordance with the law .

DATE Satversme ) of GPE , adopted in DATE , provides :

“ Any NORP citizen in possession of his full civic rights who has reached the age of DATE by the date of an election shall be eligible for election to ORG . ”

The relevant provisions of the Law of CARDINAL DATE on parliamentary elections ( Saeimas vēlēšanu likums – “ LAW ” ) are worded as follows :

Section CARDINAL

“ Any NORP citizen who has reached the age of DATE by the date of an election shall be eligible for election to ORG , provided that he is not barred by CARDINAL of the restrictions set out in section CARDINAL of this Act . ”

Section CARDINAL

“ The following persons may not stand as candidates in an election or be elected to ORG :

( CARDINAL ) persons who do not have a command of the official language at the third ( upper ) level of knowledge . ”

Section CARDINAL

“ The following documents must be enclosed with the list of candidates :

( CARDINAL ) a certified copy ... of the certificate of knowledge of the official language at the third ( upper ) level , where the candidate was not taught in NORP at school ... ”

Section CARDINAL

( CARDINAL ) Once registered , lists of candidates may not be altered , and the only corrections which ORG may make to them are :

NORP striking a candidate 's name out of the list where :

( a ) the candidate is not a citizen in possession of full civic rights ( see sections CARDINAL and CARDINAL above ) ;

( CARDINAL ) ... [ T]he candidate 's name shall be struck out of the list by virtue of a certificate from the relevant authority or a decision of the court . The fact that the candidate :

does not have a command of the official language at the third ( upper ) level of knowledge shall be certified by ORG ; ... ”

By CARDINAL of the Law of DATE on the rules of parliamentary procedure ( Saeimas kārtības rullis CARDINAL “ the Rules of Parliamentary Procedure Act ” ) , NORP is the sole working language in ORG and its committees . All draft legislation and decisions , challenges and questions by members , and any documents appended to them must be written in NORP .

The relevant provisions of LAW likums ) , in force at the material time and DATE , were worded as follows :

Section CARDINAL

“ In GPE the official language shall be NORP . ”

Section CARDINAL

“ ... [ A]ll agents of public institutions ... must be capable of understanding and using the official language and the other languages at the level which is necessary for them to be able to perform their professional duties . The level of linguistic knowledge required of these agents shall be laid down in a regulation approved by the ORG ... ”

Section CARDINAL

“ [ I]n public institutions the official language shall be the language used for information documents and for all working meetings . Persons who do not have a command of the official language may , at working meetings and with the consent of the other participants , use another language . In that case , whenever CARDINAL participant so requests , the organiser shall ensure that a translation into the official language is provided . ”

Section CARDINAL

“ In GPE ... institutions and organisations must use the official language in all official information documents and in correspondence with addressees within the country . ... ”

At the material time the precise levels of knowledge of NORP were laid down by the regulation of CARDINAL DATE on certification of knowledge of the ORG language ( NORP valodas prasmes atestācijas nolikums ) . LAW of the regulation fixed the limits of the CARDINAL levels of knowledge of NORP , of which the third was defined as follows :

“ Mastery of the spoken and written language is required for agents and employees whose professional tasks entail management of an undertaking and organisation of labour , or ... frequent contact with the public , [ and for those ] whose duties have to do with the well - being and health of the population ( for example , members of parliament , persons managing public or administrative institutions or their structural units , boards of directors , inspectorates or undertakings , their deputies and secretaries , senior specialists , advisers , auditors , employees of NORP cultural , educational and scientific bodies , doctors , assistant doctors , lawyers and judges ) . ...

This level of knowledge of the official language entails the ability to :

( CARDINAL ) NORP converse freely ;

( CARDINAL ) understand texts chosen at random ; and

( CARDINAL ) NORP draft texts relating to one 's professional duties . ”

Chapter IV of the regulation provided that examinations to test linguistic competence were to be organised by certification boards of CARDINAL , CARDINAL or CARDINAL members , as the case required . Thus a board to verify the linguistic competence of a firm 's employees had to have CARDINAL members , including CARDINAL representative of the trade concerned , CARDINAL member delegated by the municipal certification board , and specialists in NORP .

LAW of the regulation governed in detail the procedure for assessing the linguistic knowledge of persons required to take the examination . Each examination was to include a written part and an oral part . Each candidate was to have TIME to prepare answers to the questions asked by members of the board , who could ask supplementary questions , but should , in principle , refrain from interrupting the candidate . The linguistic competence of each candidate was then assessed according to a number of different criteria ( his narrative , conversational and writing skills , the breadth of the vocabulary used , and observance of grammatical rules ) . After the examination , board members deliberated before deciding by a simple majority vote which candidates had passed . Where the municipal certification board 's delegate expressed an unfavourable vote , the unsuccessful candidate could appeal against the final decision to the board which had delegated him . A report had to be written on each candidate .

Section CARDINAL of LAW ( see paragraph CARDINAL above ) provides :

“ An organisation which has submitted a list of candidates , or the candidates themselves , may challenge the decision of an electoral commission within DATE by means of an appeal to the court in whose territorial jurisdiction the electoral commission concerned falls . ”

Administrative appeals are governed by the provisions of LAW of LAW kodekss ) , applicable to all relations covered by administrative law , except those for which a special appeals procedure has been laid down by law . In respect of electoral matters the lex specialis is LAW of the Code , whose relevant provisions provide as follows :

LAW

“ ... candidates for election to ORG ... may challenge an electoral commission 's decisions by means of an appeal to the court in whose territorial jurisdiction the electoral commission concerned falls . ”

Article CARDINAL

“ After hearing the appeal , the court shall deliver a judgment , either

( CARDINAL ) NORP ruling that the electoral commission 's decision was taken in accordance with the law and dismissing the appeal ; or

( CARDINAL ) upholding the appeal and setting aside the electoral commission 's decision .

No appeal shall lie against this judgment , which shall take effect on delivery . The court shall immediately serve a copy of it on ORG ... ”


CASE OF VAN DROOGENBROECK v. BELGIUM (ARTICLE 50)

Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed

ORG The present case was referred to the ORG in DATE CARDINALO by ORG ( " the Commission " ) and in DATE by ORG ( " the Government " ) . The case originated in an application ( no . CARDINAL/CARDINAL ) against that ORG lodged with the ORG on DATE by Mr. PERSON , a NORP national .

ORG On DATE , the ORG constituted to examine the case relinquished jurisdiction in favour of ORG ( Rule CARDINAL of the Rules of Court ) . By a judgment of DATE , the latter held that when Mr. PERSON was detained pursuant to section CARDINAL of LAW of DATE , he had not been able to take any proceedings satisfying the requirements of paragraph CARDINAL of Article CARDINAL ( article CARDINAL - CARDINAL ) of the LAW ; on the other hand , the ORG concluded that there had been no violation of paragraph CARDINAL of Article CARDINAL ( article CARDINAL - CARDINAL ) or of LAW no . DATE , points CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , pp . DATE ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL to CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL - CARDINAL ) .

ORG At the hearings of DATE , Mr. PERSON who , as the applicant ’s lawyer and together with Mr. PERSON , was assisting ORG had requested ORG , should it find a violation , to afford his client just satisfaction under LAW ) . He had declared that he would leave the item of " pecuniary and non - pecuniary damage " to the ORG ’s discretion ; as regards " fees and expenses " , he had listed these shortly afterwards in a note dated CARDINAL DATE , which the Secretary to ORG transmitted to the Registrar on DATE . The Government had not taken a stand on the matter .

In its judgment of DATE , the ORG reserved the whole of this question and referred it back to ORG CARDINAL § CARDINAL of ORG ( ibid . , § § DATE of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL ) . On DATE , ORG invited the ORG to submit , within DATE , its written observations , including notification of any friendly settlement at which the ORG and the applicant might have arrived ( Series A no . CARDINAL , p. CARDINAL ) .

ORG After CARDINAL extensions of the above - mentioned time - limit by the President of the ORG , and in accordance with his Orders and directions , the Registrar received :

- on DATE , the observations of the ORG ’s ORG , accompanied by a memorial dated DATE in which Mr. PERSON himself set out his claims ;

- on DATE and CARDINAL DATE , the comments of the Government .

These documents revealed that no friendly settlement had been arrived at .

ORG In addition , the applicant sent directly to the Registrar numerous letters asking to be supplied with a series of documents and items of information . In several of those letters he stated that he had denied Mr. PERSON and Mr. PERSON the right to act for him ; in the last , which was dated DATE , he asked to be allowed time to enable him to reply to certain of those documents and to instruct a new legal adviser .

ORG Mr. PERSON and Mr. PERSON , substitute judges , took the place of Mrs. PERSON - Robert and Mr. PERSON , whom the President had exempted from sitting on the case ( Rule CARDINAL § CARDINAL of ORG ) .

ORG After consulting , through the PERSON , the Agent of the Government and ORG , the ORG decided on DATE that there was no call to hold hearings . It also resolved , since the case was ready for decision , not to defer adoption of its judgment .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

The facts of the case , as submitted by the parties and as they appear from the documents on the file , may be summarised as follows .

The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered . The investigation also focused on whether there had been debtor dishonesty or fraud .

On DATE the applicant was questioned by the police as a suspect and he was subsequently charged with CARDINAL counts of economic crime allegedly committed in DATE .

On DATE the ORG ( käräjäoikeus , tingsrätten ) upheld the applicant ’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible . On DATE ORG ( hovioikeus , hovrätten ) upheld the decision . On DATE ORG ( korkein oikeus , högsta domstolen ) quashed the previous decisions and remitted the case to ORG .

Meanwhile , a second hearing was held on DATE . On DATE the applicant was charged with aggravated fraud allegedly committed in DATE . At the third hearing on DATE , ORG upheld his claim that he had not been properly summoned . On DATE ORG quashed the decision . On DATE ORG upheld the appellate court ’s decision .

At the same hearing on DATE the public prosecutor was found to be biased and a new prosecutor was assigned to the case , which was then adjourned until DATE .

On DATE ORG upheld co - defendant X ’s claim that he had not been properly summoned and that the statute of limitations had already expired . On DATE ORG quashed the decision and remitted the case to the lower court . On DATE ORG upheld the appellate court ’s decision .

Meanwhile , on DATE ORG noted in its minutes that the parties disagreed as to whether the “ reasonable time ” requirement in LAW had been complied with , and that the court would decide at a later stage whether the trial could continue .

On DATE ORG issued a separate decision dismissing the applicant ’s request that the charges against him be declared inadmissible due to the length of the proceedings . It held , inter alia , that the case was exceptionally difficult , involving voluminous evidence and being of significant public interest . On DATE it dismissed the applicant ’s renewed request . On DATE the applicant lodged a procedural complaint with the appellate court . It was dismissed on DATE .

There were DATE of hearings in ORG up to DATE , held at intervals of DATE .

On DATE a NORP court acceded to the request of ORG for the extradition of the applicant , who was residing in GPE at the time , to GPE to serve a prison sentence which had previously been imposed on him . According to an arrangement , the applicant would be granted immunity from further prosecution in GPE for offences he had previously committed .

On DATE ORG found that the criminal case against the applicant was barred on the basis of immunity .

On DATE ORG applied to the NORP authorities for permission to continue the applicant ’s prosecution in GPE in respect of offences other than those for which he had been extradited . On DATE the relevant NORP court acceded to the request . The applicant ’s appeal was rejected on DATE . On DATE the NORP Government consented to his continued prosecution in GPE .

The applicant challenged the lawfulness of the continued prosecution before the NORP courts . During DATE he changed counsel . On DATE ORG rejected his claim for continued immunity , finding that the immunity had been annulled by the afore - mentioned decision of ORG . The decision was upheld by ORG on DATE .

The present case was adjourned until DATE owing to the need to replace the public prosecutor , who had fallen ill .

Meanwhile , on DATE and DATE respectively ORG dismissed the applicant ’s further requests that the charges be ruled inadmissible owing to the length of the proceedings . On DATE it also dismissed his renewed request , observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings . The appellate court upheld the last - mentioned decision on DATE . On DATE ORG refused leave to appeal .

On DATE ORG dismissed the applicant ’s renewed request to have the charges against him declared inadmissible on account of the length of the proceedings .

During the trial the police conducted CARDINAL additional investigations , the last of which , according to the Government ’s observations in the case of PERSON v. GPE ( no . CARDINAL , § CARDINAL , DATE ) , was completed on DATE .

There had been a total of DATE of hearings DATE when ORG had started to obtain evidence . Thereafter , there were DATE of hearings up until DATE .

On DATE ORG , noting that he lacked competence to interfere with the ongoing proceedings , drew the ORG ’s attention to the need for the allocation of adequate financial resources to both ORG and the authorities involved in the case .

On DATE the ORG gave its judgment . It found that the “ reasonable time ” requirement laid down in the LAW and the LAW had not been respected .

The court dismissed as time - barred the charges concerning CARDINAL counts of debtor dishonesty and acquitted the applicant of CARDINAL counts of aggravated fraud . Finally , it dismissed the charge of debtor dishonesty . It ordered the applicant and CARDINAL co - defendants jointly to pay damages in the amount of MONEY ( ORG ) , together with interest from DATE .

The public prosecutor appealed . ORG held CARDINAL preparatory hearings in DATE . In the main hearing the case was heard over DATE in DATE .

On DATE ORG gave its judgment , convicting the applicant of aggravated fraud . It concurred with the lower court that the “ reasonable time ” requirement had not been respected and that the applicant was therefore entitled to redress , which had to be significant and substantial . It also had to be given in a clear and measurable manner . No reason had emerged not to impose a sentence . The court , however , found that the applicant had contributed to the length of the proceedings as , at the time when the summonses were served , he had been abroad and thereby been difficult to reach . Nevertheless , the court stated that it would reduce the applicant ’s sentence by CARDINAL owing to the lengthy proceedings .

Having noted the length of the standard sentence for the aggravated fraud in question and having as a mitigating factor taken into account that the sentence could have been imposed at the time of the imposition of the applicant ’s previous sentences ( which would have been more advantageous for the applicant ) and in that connection the so - called maximum sentence rule laid down by LAW , LAW , of LAW ( rikoslaki , strafflagen ; as amended by Act no . CARDINAL/CARDINAL ) , ORG noted that CARDINAL days’ imprisonment would have been appropriate had the proceedings not been excessively lengthy . However , owing to the breach of the “ reasonable time ” requirement , ORG sentenced him to an immediate term of CARDINAL days’ imprisonment . It applied LAW , article DATE , of LAW ( as amended by Act no . CARDINAL/CARDINAL which took effect on DATE ) . Having regard to the seriousness of the applicant ’s offence , the damage thereby caused and the considerable advantage pursued and achieved , the court considered that the maintaining of general obedience to the law required that the prison term be an immediate one . The CARDINAL latter factors led the court to conclude that community service was not an option .

The applicant requested leave to appeal to ORG , which was refused on DATE .

LAW , article CARDINAL , point CARDINAL of the Penal Code reads :

“ In addition to what is provided above in section CARDINAL , grounds for mitigating the sentence that are also to be taken into consideration are

( CARDINAL ) a considerably long period that has passed since the commission of the offence ;

if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result . ”

LAW , article CARDINAL , point CARDINAL , of the Penal Code provides :

“ The court may waive the sentence if

CARDINAL ) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in LAW , article CARDINAL , point CARDINAL and LAW , article CARDINAL or the measures taken by social and health services ;

In its judgment of DATE ( ORG CARDINAL ) ORG noted that , although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings , such a dismissal or declaration of inadmissibility might in some exceptional circumstances , for example if their duration ruled out a good defence , be the only effective remedy satisfying the requirements of LAW . That was , however , not the case here . In considering whether there were grounds for applying LAW , article DATE , of LAW , ORG held that it had to be decided in PERSON whether the duration of the proceedings ( here over DATE ) had been unreasonable . It concluded that , in this case , there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings .

In its judgment of DATE ( ORG CARDINAL ) ORG , applying LAW , article DATE , of LAW , reduced the sentence by DATE owing to the lengthy proceedings ( DATE ) . It imposed an immediate term of CARDINAL months’ imprisonment , finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment .

On DATE ORG delivered a judgment ( ORG CARDINAL:CARDINAL ) in which , applying LAW , article CARDINAL , point CARDINAL , of LAW , it afforded redress for the breach of the “ reasonable time ” requirement ( here the proceedings had lasted DATE ) by waiving the sentence .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was dismissed from his job at the ORG enterprise ( PERSON сільське комунальне господарство « PERSON ) , a subsidiary of the municipal entity Oblsilkomungosp ( GPE обласне виробничо-кооперативне об'єднання сільського комунального господарства « Облсількомунгосп PERSON ) .

NORP In DATE the applicant challenged his dismissal and sought compensation before ORG .

On DATE the court allowed the applicant 's reinstatement claim and ordered Oblsilkomungosp to pay him CARDINAL NORP hryvnias ( ORG ) .

On DATE ORG instituted enforcement proceedings .

On DATE ORG upheld that judgment .

On DATE the ORG enterprise was formally reorganised into a private company , NORP

On several occasions the enforcement proceedings were discontinued for various reasons and reopened following complaints by the applicant that these decisions were unfair . It is unclear from the parties ' submissions whether the debt under the judgment was paid .

NORP In DATE the debtor entity was fined for failure to enforce the judgment of DATE . Additionally , ORG requested the local prosecutor to institute criminal proceedings against the managers of Oblsilkomungosp , which request was subsequently rejected .

On DATE a decision was taken to initiate liquidation of Oblsilkomungosp .

On DATE ORG returned the enforcement writ to the applicant unenforced .

On DATE ORG instituted insolvency proceedings against Oblsilkomungosp and on DATE declared the company insolvent .

On DATE the ORG further approved the liquidation balance sheet and declared Oblsilkomungosp liquidated , following which declaration on DATE the company was deleted from ORG .

On DATE the applicant instituted proceedings in LOC against Oblsilkomungosp , seeking compensation on account of its prolonged failure to reinstate him .

On DATE the court , finding that the judgment of CARDINAL DATE in the part concerning reinstatement had still not been enforced , awarded the applicant ORG CARDINAL,CARDINAL.CARDINAL .

On DATE ORG of Appeal increased this sum to ORG CARDINAL .

On an unspecified date ORG instituted enforcement proceedings . On DATE ORG terminated the enforcement proceedings as the debtor had been liquidated .

The judgment of CARDINAL DATE , as amended by the judgment of DATE , remains largely unenforced .

In DATE the applicant instituted proceedings in the NORP ORG against Oblsilkomungosp , seeking compensation for its failure to reinstate him after DATE .

On DATE the court , finding that the judgment of CARDINAL DATE in the part concerning reinstatement had still not been enforced , allowed his claim and awarded the applicant ORG CARDINAL,CARDINAL.CARDINAL . The court also found that the applicant had resigned on DATE as a result of his employer 's liquidation and ordered the liquidation commission to prepare documents for the applicant 's pension .

On DATE ORG of Appeal quashed that judgment in the part concerning the applicant 's resignation and the liquidation commission 's obligation to prepare documents for the applicant 's pension and gave a new judgment dismissing these claims . The court further upheld the remainder of the judgment .

The judgment at issue remains unenforced .

In DATE the applicant instituted proceedings in the NORP ORG against the local department of justice and CARDINAL local departments of ORG , seeking compensation for non - pecuniary damage incurred as a result of the lengthy non - enforcement of the judgment of CARDINAL DATE .

In a judgment of DATE the court ordered the defendants jointly to pay the applicant the total amount of ORG CARDINAL .

On DATE ORG of Appeal quashed that judgment in the part concerning the obligation of the local department of justice to pay the applicant compensation and rendered a new one dismissing this claim and reducing thereby the amount awarded to ORG CARDINAL .

On DATE it returned the writs of enforcement to the applicant owing to the debtors ' lack of funds .

On DATE the NORP ORG amended its previous judgment , awarding the applicant an additional amount of ORG DATE in court fees .

The judgment of DATE as amended , remains unenforced .

In DATE the applicant instituted proceedings in the FAC against Y. and PERSON , the manager and his deputy , of Oblsilkomungosp , seeking compensation for non - pecuniary damage incurred as a result of the lengthy non - enforcement of the judgment of CARDINAL DATE . In a final decision of DATE ORG dismissed his claim . Later , the applicant requested the courts to review the impugned judgment under the extraordinary procedure , but in vain .

The applicant also requested a local prosecutor to institute criminal proceedings against the above - mentioned persons . However , on DATE the prosecutor found no prima facie case for instituting the proceedings as requested . The applicant appealed against that decision but in a final decision of DATE ORG of GPE dismissed his appeal . Subsequently , the applicant requested the courts to review the impugned decision under the extraordinary procedure , but to no avail .

The applicant further claimed compensation from the local prosecutor 's office for its failure to enforce the judgment of CARDINAL DATE . On DATE the ORG found against the applicant . On DATE ORG upheld that judgment .

In DATE the applicant instituted proceedings in ORG against Oblsilkomungosp and the local ORG , seeking to have the reorganisation of PERSON declared void . On DATE the court dismissed his claim . On DATE ORG upheld that judgment . Subsequently , the applicant requested the courts to review the impugned judgment under the extraordinary procedure , but to no avail .

In DATE the applicant instituted proceedings in LOC against Oblsilkomungosp , seeking the annulment of the reinstatement orders of DATE and CARDINAL DATE . On DATE the court dismissed his claim . On DATE ORG upheld that judgment . Later , the applicant unsuccessfully requested the courts on several occasions to review the impugned judgment under the extraordinary procedure .

On an unspecified date the applicant instituted proceedings in LOC against the local department of justice , seeking compensation for non - pecuniary damage incurred as a result of the lengthy non - enforcement of the judgment of DATE . In a judgment of CARDINAL DATE his claim was dismissed . The applicant did not appeal against that judgment .

On an unspecified date the applicant instituted proceedings in ORG of GPE against ORG and its President . On DATE the court dismissed his claim , stating that it should have been lodged with a relevant district court .

In DATE the applicant instituted proceedings in the GPE ORG against Oblsilkomungosp and other persons , seeking , inter alia , to have the judgment of CARDINAL DATE reviewed under the extraordinary procedure . It appears that the proceedings are still pending before that court .

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


Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by PERSON , ORG at ORG .

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

On DATE the applicant married Mr PERSON , who at the time was standing trial on charges of several acts of aggravated hooliganism involving violent attacks on citizens under a minor pretext , with the use of arms , threats of killing , use of obscene language , infliction of physical pain and bodily harm on his victims , and characterised by a total disregard for society and flagrant violation of public order , with one of the episodes having taken place at a public hospital in the presence of patients and medical staff . He was also accused of creating and leading an armed gang with the aim of misappropriating others’ property by way of attacks on citizens and organisations , which had allegedly carried out robberies and extortion in DATE with use of arms and violence dangerous to life and health , illegal storage and transportation of misappropriated industrial gold , and arms - related offences . The charges had been brought against PERSON PERSON in DATE and DATE . In a judgment of DATE he had been found guilty of battery , indemnified from punishment as the prosecution had by then become time - barred , and acquitted of the other charges . The proceedings against him were pending before a trial court after that judgment had been set aside on appeal on the ground of serious violations of procedural rules on the selection of jurors and during the trial .

On DATE Mr PERSON , who had been at liberty for DATE after being remanded in custody during the preliminary investigation and the first hearing , was remanded in custody again in the interests of the proceedings in the case , in view of several GPE and ORG refusal or reluctance to testify in court out of fear of reprisals from Mr PERSON and his co - accused . He was placed in the GPE SIZOCARDINAL .

On DATE the applicant visited Mr PERSON in SIZO-CARDINAL .

On DATE a ORG judge presiding over Mr PERSON ’s trial refused the applicant ’s next request to visit Mr PERSON . The applicant ’s complaint about that refusal , which she made on DATE to the President of the High Qualification Board of Judges of GPE , and that of DATE , which she made to the President of ORG , were answered on DATE and DATE respectively , by statements that those officials had no competence to deal with the matter .

From DATE to CARDINAL DATE the applicant was present at CARDINAL hearings in PERSON PERSON ’s case . According to the Government , she could communicate with him before and after the hearings and during the breaks . According to the applicant , no contact with her husband had been possible in the courtroom . No new requests for leave to visit her husband in his detention facility were made by the applicant during this time .

On DATE the applicant gave birth to a son .

In DATE she asked for leave to visit her husband in SIZO-CARDINAL . Her request was granted , as well as her all subsequent requests . According to a document from SIZO-CARDINAL , no . CARDINAL of DATE , such visits took place on DATE , DATE and DATE , DATE , DATE and DATE , DATE , DATE and DATE , DATE , DATE , CARDINAL DATE and DATE , and CARDINAL and DATE , CARDINAL DATE and QUANTITY DATE . According to the applicant , the visits were TIME long . On CARDINAL occasions she brought her son with her .

There were CARDINAL cubicles in SIZO-CARDINAL for short visits , designed in accordance with directives approved by ORG on DATE . Visitors and detainees were separated by a partition made of wood to a height of QUANTITY , and then glass to the ceiling . There were metal bars and steel wire on the glass partition . The cubicles were equipped with communicating phones and seats . A place for an officer on duty was equipped with a device for wiretapping , warning and interruption of communication .

According to the applicant ’s submissions in her original application form , the cubicles were dirty and littered , with rats running on the floor , and they had no normal chairs . According to the Government , the cubicles were cleaned DATE by prisoners under the supervision of an officer on duty . Their sanitary condition was routinely checked by authorised officials . They were regularly disinfected and disinfested in compliance with the relevant sanitary regulations by a specialised company under the supervision of the SIZOCARDINAL medical unit , which was confirmed by the relevant documentation . In her comments on the Government ’s observations the applicant clarified that she had seen rats in a different room , which was used for passing parcels to detainees .

According to the applicant , her husband ’s remand in custody had put her in a difficult position . She lacked means of subsistence for herself during her pregnancy , which was complicated by the threat of miscarriage , and later also for her child . In order to hand over parcels to her husband she had to wait for TIME , especially before holidays , because of the large number of people there . According to a SIZO-CARDINAL document dated DATE , Mr PERSON received CARDINAL parcels .

Under section CARDINAL of LAW on the Remand in Custody of Suspects and Persons Accused of Offences no . CARDINAL-FZ of DATE , subject to written consent from the official or authority in charge of the criminal case a suspect or accused may have up to CARDINAL meetings per month with relatives and others , each visit to last for TIME .