Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

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

At the material time the applicant worked as a lawyer in a private company “ Naddnistryanka ” .

On DATE ORG ( hereinafter DATE the ORG ) instituted criminal proceedings against the applicant for bribing . On DATE the Deputy Prosecutor General sanctioned the applicant ’s arrest and detention . On DATE the applicant was arrested and detained until DATE .

While in detention , the applicant was allegedly subjected to psychological pressure by the investigation officers . Prior to interrogation the applicant allegedly was placed in a tiny ( CARDINAL ) cold room without windows , where he had to stay for TIME . The applicant states that he lost consciousness during interrogations and was interrogated while being seriously ill . In detention and afterwards the applicant suffered from chronic bronchitis and chronic neuritis . The applicant was beaten by CARDINAL of the cellmates . The applicant maintained that the offender was a former ORG officer . The applicant further alleges that drugs were added to his meals . According to the applicant , his family members were not allowed to see him in detention . On his numerous complaints about such treatment the applicant received answers that no violations had been revealed during pre - trial investigation in his case .

After his release the applicant was on a written undertaking not to abscond until DATE . In DATE criminal charges in the applicant ’s case were several times changed . By DATE the criminal case against the applicant was closed . By a prosecutor ’s decision of CARDINAL DATE the applicant was awarded UAH CARDINAL,CARDINAL.CARDINAL ( at the material time – EUR DATE ) in compensation for material damage .

In DATE the applicant instituted proceedings in ORG against ORG of GPE claiming ORG CARDINAL,CARDINAL in compensation for moral damage . The applicant later raised his claims to UAH CARDINAL,CARDINAL,CARDINAL . In DATE he claimed UAH CARDINAL in compensation for moral damage from the ORG . These claims were joined and examined together . On DATE ORG found in part for the applicant and ordered the ORG to pay him ORG CARDINAL in compensation for material and moral damage caused by the unlawful criminal action against the applicant and his unlawful detention . On DATE ORG upheld this decision and it became final . On an unidentified date the applicant requested the Deputy Chairman of ORG to lodge a supervisory review request ( protest ) against these decisions . His request was satisfied , the judgment of DATE was quashed and the case was remitted for a fresh consideration . On DATE ORG found in part for the applicant and ordered the State to pay him UAH CARDINAL ( approximately EUR CARDINAL ) in compensation for moral damage for the unlawful criminal action against the applicant , for his unlawful detention and for being on a written undertaking not to abscond . This compensation had to be paid from the funds allocated for maintenance of the ORG . On DATE ORG upheld this decision and it became final .

On DATE the ORG suspended the enforcement of the judgment of DATE . On DATE the Deputy Prosecutor General lodged a protest with ORG of GPE asking to quash the decision of DATE in the part concerning the source of the payment on the ground that the awarded amount should not be paid from the funds allocated for the maintenance of the ORG .

On DATE ORG found unconstitutional the provisions of LAW according to which the compensation for damage inflicted by unlawful actions of the prosecutors had to be paid from the funds allocated for the maintenance of the ORG .

On DATE the Pecherskiy ORG opened the enforcement proceedings in the applicant ’s case . On DATE ORG requested ORG to transfer the amount awarded to the applicant to the deposit account of ORG . On DATE the applicant received the amount awarded and the enforcement proceedings were closed .

On DATE ORG of GPE satisfied the protest and decided that the compensation in the applicant ’s case had to be paid directly from ORG .

NORP In DATE the applicant instituted proceedings in the NORP ORG against ORG , which had been his employer at that time , for his allegedly unlawful dismissal . On DATE the court found against the applicant . On DATE ORG upheld this decision .

The applicant instituted CARDINAL sets of proceedings in ORG against the ORG claiming ORG CARDINAL,CARDINAL.CARDINAL and CARDINAL,CARDINAL,CARDINAL.CARDINAL in compensation for material damage . The applicant stated that according to the labour contracts of CARDINAL DATE and DATE his employer , the private company “ GPE ” , had to pay him the above mentioned amounts of remuneration for the work performed . The applicant alleged that because of his detention and the investigation in the criminal case against him he had not been able to receive this money as the company went bankrupt in DATE . On DATE and DATE the court found against the applicant on the ground that the ORG was not an appropriate defendant to this claim and that the applicant should institute proceedings against his ex - employer . On DATE and DATE ORG upheld these decisions . On DATE and CARDINAL DATE ORG rejected the applicant ’s appeals in cassation .

In DATE a number of articles about the applicant were published in different newspapers .

In DATE the applicant complained to police and to other bodies that unknown people , who were allegedly policemen and the ORG agents , threatened to destroy him in particular because he had raised complaints about ORG and the ORG before ORG . By letter of DATE the police informed the applicant that checks were carried out following his complaints . It was revealed that in DATE the former investigation officer , Mr PERSON , who had investigated the applicant ’s case , threatened the applicant . Mr PERSON was wanted for committing several crimes . By another letter of CARDINAL DATE the police informed the applicant that an unknown person , who called him and threatened to eliminate him , was identified and warned about possible responsibility for such actions . By letters of DATE and DATE the police informed the applicant about the refusal to institute criminal proceedings following his complaints for the absence of the corpus delicti .

The applicant requested the investigation officer to allow him to represent PERSON in a criminal case against the latter . By a decision of DATE the investigation officer rejected the applicant ’s request on the ground that in spite of having a law degree the applicant did not possess an advocate ’s certificate . On DATE ORG upheld this decision .

The relevant provisions read as follows :

“ Everyone has the right to compensation , at the expense of the ORG or bodies of local self - government , for material and moral damages inflicted by unlawful decisions , actions or omission of bodies of state power , bodies of local self - government , their officials and officers during the exercise of their authority . ”

“ ... In the event that a court verdict is revoked as unjust , the ORG compensates the material and moral damages inflicted by the groundless conviction . ”

“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”

At the material time , LAW of LAW allowed a final and binding judgment to be reviewed under the supervisory review procedure . The supervisory review procedure was repealed in DATE .

Paragraph CARDINAL of Article CARDINAL provides that the enforcement proceedings may be suspended upon decision of the ORG official entitled to such actions by law .

At the material time , part CARDINAL of Article CARDINAL provided that the prosecutors who brought an appeal for supervisory review in the civil cases were entitled also to suspend the enforcement proceedings in such cases .

In DATE this Article was repealed .

NORP The relevant parts of the decision of DATE read as follows :

“ CARDINAL ... Therefore , LAW On FAC for the Year CARDINAL ” ... de facto introduces civil and not public responsibility of ... , the prosecutor ’s offices , ... for the material and moral damage caused to the citizens by unlawful actions of these bodies . Concurrently , LAW guaranties the right of the citizens for the compensation by the ORG and not from the funds allocated for the maintenance of these bodies ( LAW ) .

ORG has decided :

To consider as contrary to LAW ( unconstitutional ) provisions of LAW On FAC for the Year CARDINAL ” ... according to which the compensation for damage inflicted to the citizens by unlawful actions of ... , the prosecutor ’s offices , ... is to be provided from the funds allocated for the maintenance of the courts , ORG , ORG of GPE , and ORG .

Provisions of LAW On FAC for the Year CARDINAL ” ... are considered unconstitutional , and void from DATE this decision is made by ORG . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE and is curently detained in FAC Full Sutton . He is represented before the ORG by Mr NORP O’Connell , a lawyer practising in GPE , GPE .

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

The applicant is a NORP national , who came to GPE in DATE using his brother ’s passport and was granted permission to remain for DATE . On CARDINAL DATE , the applicant was arrested in a public house in GPE , on suspicion of drug dealing and possession of an offensive weapon . Upon arrest he gave the name PERSON . After being interviewed by the police , he was arrested and interviewed again by an Immigration Officer called GPE as a suspected ‘ ORG . PERSON knew the applicant ’s true identity and in a report dated CARDINAL DATE , described the applicant as ‘ extremely violent’ and indicated that he should be detained . However , over DATE , GPE , together with PC PERSON from “ NORP ” , ( a special operations unit of the LOC police ) , recruited the applicant as a police informer . With the assistance of GPE the applicant completed an application for political asylum and was released on temporary admission to GPE on DATE .

The applicant was not charged with any drugs offences despite the fact that a substance later proved to be cocaine had been found on him when he was arrested in DATE . In DATE he appeared before ORG in respect of the offence of possession of an offensive weapon and was fined , having pleaded guilty in the name of PERSON . Immigration Officer PERSON was at court . DATE , the applicant had his first official meeting with his handlers and began to supply information about the activities of NORP ‘ Yardie’ gangs operating in GPE .

In DATE the applicant was arrested for an offence of rape and was detained in custody . Whilst detained he was visited by GPE and another officer and on DATE PC PERSON and a ORG attended ORG in an attempt to persuade the prosecutor not to object to bail . On DATE the rape proceedings were discontinued and , although they would later deny it , the applicant believed this was as a result of intervention by his ‘ CARDINAL .

DATE and DATE the applicant gave information to police about the alleged criminal activities of PERSON , known as ‘ Miss V’ , involving drug dealing and false passports . On DATE , the applicant gave information to PC PERSON about Miss V ’s son , PERSON . PERSON was arrested DATE in possession of a handgun and ammunition and was subsequently sentenced to CARDINAL years’ imprisonment .

On or about DATE , a DATE , PERSON ( known as ‘ Zena’ ) was murdered . She had been stabbed some CARDINAL times and the prosecution case was that she had been raped before being killed . Her body was not found until TIME of Friday , DATE . The door to her flat was unlocked and the telephone had been left off the hook . On CARDINAL DATE the applicant was interviewed as a potential witness . His former girlfriend , PERSON , with whom he was still living , was a friend of PERSON and his fingerprint had been found on a glass in the deceased ’s flat . The applicant said he knew of her , but had not actually met her before the afternoon of DATE , when he went to her house with a mutual friend , PERSON , to buy cannabis . He did not disclose that he had had a sexual relationship with the deceased .

In DATE the applicant ’s DNA profile was matched with semen samples taken from the deceased ’s vagina and he was arrested for her murder . When interviewed in DATE he said that he had been having a sexual relationship with the deceased for some time and had returned to her house on DATE , DATE to have sex with her , but she had been alive when he left and she must have been murdered some time after he last saw her .

The fact that the applicant was an informant became known to the officer in charge of the murder investigation , PERSON , who informed ORG ( ORG ) in DATE . PERSON was told by a colleague about a telephone call the applicant made from prison to PC PERSON , in which he had asked if something could be ‘ sorted out’ . ( He later confronted PC PERSON about the call , who denied any knowledge of it ) . PERSON visited SOCARDINAL and looked at the applicant ’s Informant file but did not see anything of relevance to the murder investigation and took no further action . Senior officers at SOCARDINAL gave instructions that there was to be no further contact with the applicant . In DATE the murder proceedings against the applicant were discontinued , counsel having advised that there was insufficient evidence to proceed , and he was released from custody .

As far back as DATE the decision had been taken to refuse the applicant ’s application for asylum , but the letter of refusal was not served on him and no steps were taken to deport him . At some point after the DATE decision to discontinue the murder proceedings , contact was resumed between the applicant and PC PERSON .

ORG PERSON obtained authority to resume the murder investigation and on DATE PERSON made a witness statement in which she said that she had been with the applicant on an occasion in DATE when he appeared worried about police questions and asked her what ‘ forensic’ meant . He had a bag in which she saw a pair of bloodstained trousers , which he then took to be dry cleaned . PERSON was the niece of PERSON and the granddaughter of Miss PERSON She had not made a statement to the police during the initial investigation . The police also then obtained further evidence from a mobile telephone company tending to show that the applicant was near or at ORG flat on TIME , when the prosecution believed her to have been murdered and when the applicant claimed to have been at home . The applicant was re - arrested on DATE .

At the start of the trial , on DATE , the prosecution made an application for public interest immunity ( ORG ) in respect of the fact that the applicant was an informant . The applicant had not told his own legal representatives and the defence team were not aware of his status as an informant . Prosecuting counsel told the trial judge that the applicant was an informant and that he had had involvement with the police and with GPE . Counsel had not been told that the applicant had informed on the relatives of the prosecution witness PERSON and both prosecuting counsel and the judge were unaware of any possible relevance to the trial of the fact that the applicant was an informant . Prosecuting counsel made it clear to the judge that he did not know whether the applicant had told his own solicitors or counsel that he was an informant . The judge ruled that there should be no order for disclosure .

After the ORG hearing , PERSON was approached by a journalist who said that he knew the applicant was an informant and asked if the officer knew anything about the discontinuance of the proceedings in DATE being as a result of an approach to the ORG by SOCARDINAL . PERSON brought the conversation to the attention of prosecuting counsel . Counsel took the view that the conversation had no relevance to the trial and it was not brought to the attention of the judge . During the trial , the same journalist discussed his knowledge of the applicant ’s informant activities with members of the deceased ’s family and others in the public gallery , some of whom were friends of prosecution witnesses . CARDINAL of the group told the journalist that he knew the applicant was an informant and he wanted him to be convicted of the murder . The deceased ’s sister discussed the conversations with PERSON , who did not confirm or deny that the applicant was an informant .

The prosecution evidence at trial included details of when , where and to whom the applicant had made telephone calls , revealing inconsistencies in his account , the telephone evidence that he was near to the flat on DATE TIME , evidence from PERSON and PERSON about the applicant ’s movements and the account of PERSON . In addition , the clothing found on the deceased , stained with the applicant ’s semen , was not the same as the clothing she had last been seen in by PERSON in TIME , tending to suggest that the applicant had had sexual intercourse with her after , rather than as he said , before that time . In cross examination PERSON credibility was to some extent damaged when she claimed that on DATE the applicant told her the police were harassing him about a murder , that is , before the body had been discovered .

The applicant disputed the alleged time of death and relied on the evidence of a pathologist to the effect that the murder was more likely to have taken place on DATE , DATE . He maintained that he had not seen the deceased after they had consensual sexual intercourse on DATE , CARDINAL DATE . He called alibi evidence for the DATE TIME , including evidence from a PERSON , ( against whom it later transpired he had informed ) .

On DATE the applicant was convicted of the murder by a majority of CARDINAL . On TIME of the applicant ’s conviction , a story on the television news referred to the applicant as a police informant . Subsequently , information about the applicant ’s activities as an informant appeared in newspaper articles , a television programme and a book . In DATE the applicant was served with the letter written in DATE , confirming that his application for asylum had been refused .

Following a complaint by the deceased ’s relatives , a police inquiry was held ( ORG ) . From DATE a large volume of material was collated . Those who made statements in the course of the inquiry included PERSON and PERSON It was clear from the statements that they and many others had suspected or known before the murder that the applicant was an informer and that he had given information leading to the arrest and imprisonment of PERSON . It was also suspected that he had informed on a relative of another prosecution witness ( who had not in the event been called to give evidence at the trial ) . It was not clear whether they had said this to the police when they initially gave their statements in the murder investigation . PERSON gave evidence to the inquiry and confirmed that he was unaware of any connection between the information given by the applicant and the murder investigation until after the trial .

The applicant lodged grounds of appeal in DATE , and his application was referred directly to ORG , who granted leave to appeal . The court ordered disclosure of statements and documents from ORG and part of the applicant ’s Informant file . It was only as a result of the disclosure that the applicant ’s representatives became aware of the information the applicant had given about the relatives of PERSON and others and of the discussion between the journalist and PERSON during the trial . They also became aware that a senior officer from SOCARDINAL had attempted to see the applicant in the cells during his trial to inform him that his status as an informant had become known , but that this was no fault of SOCARDINAL . The ORG representative at court had refused the officer permission to visit the applicant . The applicant lodged more detailed grounds of appeal in DATE following the disclosure ordered by the court .

In DATE , the applicant argued before ORG that , ( a ) the ORG should have disclosed to the applicant ’s representatives the fact that he was an informer and the nature of the information he had given , ( b ) the ORG should have made the same disclosure to the trial judge , ( c ) the judge was wrong to make no order for disclosure on the ORG hearing , ( d ) the restricted information given to the trial judge meant that he was unable properly to fulfil his functions and discretion as to disclosure , ( e ) the ORG should have disclosed to the applicant and/or his lawyers and the trial judge the fact that some prosecution witnesses knew he was an informant , ( f ) when it became known , the ORG should have disclosed to the judge , the applicant and/or his lawyers that press and members of the public knew of the applicant ’s status , and ( g ) the reason the applicant had not told his lawyers of his informant status was because his handlers had put pressure on him not to .

ORG heard evidence from the applicant , his handlers and PERSON . The court noted that the information given by the applicant ( in particular that relating to the relatives of PERSON ) was relevant to an issue in the case , but there was no duty on the Crown to disclose it as it was known to the applicant , who chose not to disclose it . The judge had been correct to make no order for disclosure . There were good public policy reasons why information given confidentially to the ORG by the applicant should not be disclosed to his lawyers without his permission . The court did not accept the applicant ’s argument that pressure had been put on him by his handlers not to reveal his status to his lawyers . Having heard evidence from the applicant on the point the court found him to be untruthful .

As to the submission that the applicant and/or his lawyers should have been told when it became apparent that the knowledge of his informant status had become public , Lord Justice PERSON said :

“ It is a matter of some concern that not even the judge was told of this development . Had it come to the knowledge of the appellant it may very well be that it would have worked a change of heart with regard to telling his counsel about his informant status .... There was no longer any good reason for keeping the information to himself and counsel would have been free to cross - examine PERSON as to motive . We say ‘ free to cross - examine’ advisedly . It would have been a matter requiring careful thought . After all ... cross - examination on the lines suggested could have had a serious down side , namely the loss of the alibi witness , PERSON , against whom the appellant had informed and the introduction of the risk of character being put in issue . ”

ORG considered that ORG was an accurate and truthful witness and accepted that neither he nor prosecuting counsel had any reason to know the relevance of the applicant ’s informant status to the issues in the trial . The court went on to conclude that the possible advantage to which the applicant could have put the information was not without risk , and in any event the ORG ’s case did not depend on PERSON evidence . Evidence of the applicant ’s guilt was overwhelming . On DATE the appeal was dismissed .

The procedure to be applied when determining questions of disclosure was governed at the time by common law . At common law , the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged .

In DATE the Attorney - General issued Guidelines , which did not have the force of law , concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ( ( DATE ) CARDINAL Cr . App . PERSON ( “ the LAW ) ) . According to the LAW , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive material ” which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as including :

“ ... ( b ) it is by , or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ... ”

According to paragraph CARDINAL ,

“ ... in deciding whether or not statements containing sensitive material should be disclosed , a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence . ”

The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution , although any doubt should be resolved in favour of disclosure .

In NORP v. Ward ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) ORG stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity . It explained that :

“ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed . ”

ORG judgment in PERSON , ORG . CARDINAL Cr . App . PERSON ) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including , where appropriate , making an application to the court ex parte . It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing , the defence had “ as much protection as can be given without pre - empting the issue ” . Finally , it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed . Issues might emerge during the trial which affected the balance and required disclosure “ in the interests of securing fairness to the defendant ” . For this reason it was important for the same judge who heard any disclosure application also to conduct the trial .

In NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p. CARDINAL ) , the Lord Chief Justice , giving the judgment of ORG , held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity . “ Material ” evidence was defined as evidence which could be seen ,

“ ... on a sensible appraisal by the prosecution : ( CARDINAL ) to be relevant or possibly relevant to an issue in the case ; ( CARDINAL ) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use ; ( CARDINAL ) to hold out a real ( as opposed to fanciful ) prospect of providing a lead on evidence which goes to ( CARDINAL ) or ( CARDINAL ) ” .

Once the judge was seized of the material , he or she had to perform the balancing exercise between the public interest in non - disclosure and the importance of the documents to the issues of interest , or likely to be of interest , to the accused . In that respect , the more full and specific the indications given of the issues the defence were likely to raise , the more accurately the prosecution and judge would be able to assess the value to the defence of the material . If the disputed material might prove the defendant ’s innocence or avoid a miscarriage of justice , the balance came down firmly in favour of disclosing it . Where , on the other hand , the material in question would not be of assistance to the accused , but would in fact assist the prosecution , the balance was likely to be in favour of non - disclosure .

In NORP v. PERSON ( [ DATE ] Cr . App . CARDINAL ) , ORG referred to the duty of the trial judge to keep material under review and to the duty of prosecuting counsel to inform himself fully about the content of any “ disputed material ” , so that he was in a position to invite the judge to reassess the situation if appropriate . The court recognised that there was a limit to the scope of discovery required of the ORG however , and for example , there was no legal duty on the Crown to disclose material which was only relevant to the credibility of a defence witness . ORG ( [ DATE ] A.C. CARDINAL ) , confirming the ORG of Appeal decision , observed that :

“ ... the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the ORG . ”


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON . He was the executive director of ORG , a ORG company , against which bankruptcy proceedings were opened in DATE .

On DATE the Teteven ORG opened criminal proceedings against the applicant and against the deputy director of ORG and a company employee .

On DATE the applicant was charged with abuse of office and making false official documents , contrary to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( “ the ORG ” ) . It was alleged that , together with the deputy director , he had abused his managerial position during DATE DATE and had occasioned losses to the company in order to secure a financial benefit for a private limited liability company in which his wife was a member . The alleged loss to ORG amounted to CARDINAL old NORP levs ( ORG ) . It was also charged that to facilitate that offence the applicant had made false documents and had incited the deputy director and a company employee to make false documents .

On DATE a prosecutor of ORG ordered the suspension of the applicant from his position of executive director , on the grounds that the charges against him were for jobrelated offences and that there were sufficient grounds to believe that he could jeopardise the investigation if he remained in office .

On DATE the investigator in charge of the case ordered an expert financial report , which was assigned to CARDINAL former employees of ORG .

On DATE counsel for the applicant requested to be allowed to consult the case file . The request was granted on DATE .

A graphological report ordered earlier was ready on DATE .

On DATE the applicant was questioned . Counsel for the applicant requested to be allowed to inspect the case file . The investigator allowed them to consult certain documents but refused access to the whole file .

On DATE the expert financial report ordered on DATE was ready .

On DATE and DATE the investigator ordered expert reports on the prices of certain items relevant to the investigation .

On DATE the applicant was questioned and was allowed , together with his counsel , to consult certain documents in the case file , including the expert reports .

On DATE counsel for the applicant requested the disqualification of CARDINAL of the experts who had prepared the expert financial report . They argued , inter alia , that CARDINAL of the experts had been chief accountant of ORG and had been dismissed for disciplinary reasons by the applicant , which cast doubt on his objectivity . The request was denied .

It seems that most of the witnesses in the case were questioned on dates DATE .

On DATE the applicant was questioned . His request to be allowed to consult the case file was granted .

On DATE counsel for the applicant again requested the disqualification of the experts who had prepared the expert financial report . They repeated their arguments in respect of the first expert and also averred that the other expert had been involved in the bankruptcy proceedings of ORG .

DATE the applicant was presented with the amended charges . These included aggravated embezzlement facilitated by the making of false official documents ( Article CARDINAL in conjunction with Article CARDINAL of the ORG ) , embezzlement ( LAW ) , abuse of office ( LAW ) , deliberately entering into contracts disadvantageous to the company he was managing ( LAW ) and making false official documents ( LAW ) . It was alleged that DATE and DATE , together with the deputy director of ORG , he had embezzled company assets amounting to ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , for the commission of which offence he had made false official documents , that in DATE he had misappropriated a trailer owned by ORG , that DATE and DATE , together with the deputy director , he had abused his office to secure a financial benefit for a private company , that DATE and DATE , together with the deputy director , he had deliberately made disadvantageous contracts between ORG and the same private company for which he had secured a financial benefit , and that in DATE he had made CARDINAL false invoices for sums amounting to MONEY .

After the being charged the applicant was questioned in the presence of counsel . He refused to give explanations .

On DATE the applicant and his counsel were allowed to consult the entire case file . The applicant objected to the expert reports and requested the disqualification of the experts . The investigator denied his requests and proposed to the prosecution that the applicant be indicted .

On DATE counsel for the applicant requested that the case be remitted for additional investigation , arguing that this was necessary to rectify certain procedural violations .

On DATE ORG granted the request and referred the case back for investigation . It observed that the relevant circumstances about the relations between ORG and the private company which had allegedly benefited from it had not been fully elucidated and that the investigator had erred in the legal qualification of the offences . It gave specific instructions as to the facts which had to be established . It further expressed the view that the applicant ’s request for the disqualification of CARDINAL of the experts who had prepared the expert financial report was wellfounded , since he had been dismissed by the applicant for disciplinary reasons and the applicant had good reasons to fear his lack of objectivity . It was therefore necessary to prepare a new expert report . In addition , it asserted that it was necessary to charge the applicant anew , since the original presentation of the charges against him had not been specific enough . Finally , it noted that the applicant ’s counsel had also been ORG ’s counsel in the bankruptcy proceedings against the company , which raised certain doubts as to a potential conflict of interests . It was therefore necessary to establish whether the applicant had reason to doubt the loyalty of his counsel , because if that issue was not elucidated , the applicant could use it as an argument that his defence rights had been infringed .

On DATE the investigator , complying with the instructions of the prosecution , ordered a new financial report .

On DATE the Teteven ORG , finding that the investigator in charge of the case had not carried out any of its instructions apart from ordering a new financial report , replaced him with a new one .

On DATE the new investigator proposed to discontinue the proceedings , on the ground that the charges against the applicant were not supported by sufficient evidence .

On DATE the Teteven ORG rejected the proposal and referred the case back for additional investigation . It held that the evidence was not sufficient because the investigation had not been performed thoroughly .

On DATE the investigator allowed the applicant to consult the case file .

On DATE the financial report ordered on DATE was ready .

On DATE counsel for the applicant informed the investigator that she would be unavailable until DATE .

On DATE the investigator charged the applicant anew . The charges included , apart from the previous ones , a new charge under LAW ( mismanagement resulting in loss for the company ) . After charging the applicant the investigator questioned him and allowed him and his counsel to consult the case file .

On DATE the investigator recommended that the applicant be indicted solely under LAW .

On DATE the Teteven ORG decided to discontinue the investigation in respect of the charges under Articles CARDINAL ( aggravated embezzlement ) , CARDINAL ( abuse of office ) and CARDINAL ( making false official documents ) of the ORG . On DATE ORG overturned that decision and referred the case back to the investigator . On appeal by the investigator on DATE the ORG affirmed the overturning .

On DATE ORG decided to drop the charges under LAW . Its decision was overturned by the NORP Tarnovo Appellate Prosecutor ’s Office on DATE and the case was referred back to ORG with instructions to carry out certain investigative steps ( inter alia , to order an expert report ) and elucidate certain facts relating to transactions carried out by ElpromEMT during DATE .

On DATE , when the case was back at the investigation stage , the investigator ordered an additional expert report .

On DATE the applicant ’s counsel informed the investigator that she would be unavailable until DATE .

On DATE the investigator allowed the applicant and his counsel to consult the case file .

On DATE the investigator recommended that the applicant be indicted under Articles CARDINAL ( mismanagement resulting in loss ) , and CARDINAL ( making false official documents ) of the ORG .

On DATE ORG decided to drop the charges under LAW and to transfer the case to ORG for continuation of the proceedings under the remaining charges .

On DATE the Teteven ORG remitted the case for additional investigation , holding that the investigative steps carried out up until then had not established all relevant circumstances .

On DATE the investigator ordered a new expert report , assigning it to new experts .

On DATE the applicant and the prosecution entered into a pleabargain agreement . The criminal proceedings against him were apparently discontinued soon after .

On DATE the applicant was put under house arrest by an investigator who saw him in person and questioned him .

On DATE the applicant lodged with ORG a request to be released on bail . On DATE ORG denied the applicant ’s request . The applicant appealed to ORG . The appeal was dismissed by an order of DATE . The applicant appealed to ORG . On DATE ORG dismissed the appeal . The applicant lodged an appeal with the Head of ORG of ORG . On DATE the Head of ORG dismissed the appeal .

In the meantime , on DATE and DATE , ORG had denied CARDINAL requests by the applicant to be allowed to leave his home for DATE . Another request by the applicant to be allowed to leave his home for DATE was denied on DATE . On DATE ORG allowed the applicant to leave his home for DATE .

DATE . On DATE the Teteven ORG denied a renewed application for release by the applicant .

On DATE the applicant submitted a new request for release on bail . On DATE ORG granted bail , setting the amount at FAC . On an unspecified date in DATE the applicant paid the amount of the bail and was released from house arrest .

By LAW ( “ the ORG ” ) , a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecutable offence . CARDINAL such measure is house arrest .

Article CARDINAL of the ORG , as in force at the material time , defined house arrest as follows :

“ ORG arrest shall consist in prohibition for the accused to leave his home without permission by the relevant authorities . ”

In its interpretative decision no . CARDINAL/CARDINAL ( реш. № CARDINAL от CARDINAL юли DATE г. по конституционно дело № CARDINAL от DATE г. , обн. , NORP брой CARDINAL от DATE г. ) ORG held as follows :

“ ... [ ORG arrest is also a form of detention and [ constitutes ] an interference with the inviolability [ of the person ] . ”

At the relevant time and until DATE house arrest at the pretrial stage of criminal proceedings could be ordered by an investigator or by a prosecutor . The investigator or prosecutor was not under an obligation to interview the accused in person when ordering house arrest . The role of investigators and prosecutors under NORP law has been summarised in paragraphs CARDINAL of the ORG ’s judgment in the case of ORG v. GPE ( [ ORG ] , no . ORG , ECHR MONEY ) .

At the relevant time the ORG did not provide for judicial review of house arrest . Thus , the only possibility for a person put under house arrest was to apply to a prosecutor who could order his release . If the prosecutor refused to release the person under house arrest , he or she could appeal to a higher prosecutor ( ORG CARDINAL and CARDINAL of the ORG ) .

The ORG was amended with effect from DATE and at present provides , in the newly introduced paragraph CARDINAL of its LAW , for full initial and subsequent judicial review of house arrest .

On DATE ORG decided to request ORG to rule on the compatibility of LAW ORG , governing pretrial detention , with , inter alia , LAW . It reasoned that by virtue of LAW was incorporated into NORP law and that all statutory provisions should therefore be in compliance with it . It also stated that when deciding cases before them the NORP courts should take into account the caselaw of ORG CARDINAL от CARDINAL март DATE г. по ORG № DATE г. на ОСНК на ORG ) .

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

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

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

The reported caselaw under section CARDINAL(CARDINAL ) of the LAW is scant . However , all judgments in which ORG liability was found to arise under this provision related specifically to pretrial detention under LAW ORG , not house arrest under LAW ORG or any other form of deprivation of liberty ordered in the context of criminal proceedings ( реш. № DATE г. от DATE г. PERSON № DATE г. на ВКС , реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) . The reported case - law also suggests that the terms “ unlawful ” and “ lack of lawful grounds ” refer to unlawfulness under domestic law .

By CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by the “ unlawful bringing of criminal charges ” . Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty .

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


The first applicant , Mr PERSON , and the second applicant , his daughter PERSON , are respectively NORP and NORP nationals born in DATE and DATE and living in GPE , GPE , and GPE , GPE . They are represented before the Court by Mr PERSON , a lawyer practising in GPE .

The facts of the case , as described mainly in the judgments of the national courts , may be summarised as follows .

The first applicant arrived in GPE in DATE and was granted a temporary residence permit for education purposes . In DATE he was granted a residence permit for an indefinite duration .

According to the first applicant he had met the second applicant ’s mother at DATE . They had established a relationship as from DATE , had got engaged in DATE and had planned to marry in DATE , but this did not materialise as PERSON was detained on remand in DATE on suspicion of drug offences .

On DATE the Eidsivating High Court ( lagmannsrett ) convicted the first applicant of the possession and attempted sale of QUANTITY of heroin . It deemed the heroin to have been of a particularly high degree of purity and noted that CARDINAL user had died . While the first applicant 's replies to the charges had said little more than the bare minimum , ORG did not find it established from where he had received the drugs or what role he had played in the importation and acquisition of the drugs . However , although he had submitted that he had been put under strong pressures and had reluctantly received the heroin in order to store it , ORG did not find that his role had been as modest as he had claimed . He had failed to explain why , in defiance of what he described as an order , he decided to sell a large part of the drug to CARDINAL of his co - accused and to keep another part . It was further noted that in connection with a delivery of heroin by the first applicant , CARDINAL of his co - accused in the trial had come to the agreed place with CARDINAL other co - accused as a bodyguard . In view of the particularly serious nature of the offence , ORG sentenced the first applicant to DATE imprisonment .

On DATE ORG decided to expel the first applicant . On appeal , the latter decision was upheld by ORG ( PERSON ) on CARDINAL DATE . He subsequently requested that the expulsion order be altered , but ORG and ORG , in decisions dated respectively DATE and DATE , refused the request .

The first applicant and his wife were married at Ullersmo prison in DATE , i.e. after the applicant 's conviction and sentence to DATE imprisonment and the decision to expel him from GPE . CARDINAL daughters were born to them , the second applicant , born in DATE , and PERSON , born in DATE .

While serving his prison sentence the first applicant had extensive contact with his wife and the second applicant . Following his release in DATE , the first applicant lived with his family for DATE until DATE , when he was expelled from GPE to GPE . His wife and the second applicant accompanied him to GPE , but returned after DATE . The first applicant was twice granted a visa to enter GPE in order to attend the court proceedings , but was denied a visa in connection with PERSON 's birth . During DATE , his wife and CARDINAL children lived with him for DATE in GPE .

A medical certificate of DATE issued by a paediatrician states that , since the second applicant was a baby , she had suffered from atopical eczema causing her nuisance particularly during DATE , DATE and DATE , and requiring that her entire body be treated with moistening cream DATE and with oil baths . She was allergic to milk and was taking substitute milk products . She was also allergic to eggs and pollen . She had asthma and had experienced asthma fits serious enough nearly to require hospitalisation .

According to certain statements dated DATE and DATE by personnel in charge of the second applicant 's kindergarten , the first applicant had been present and actively took part in her care ; she had said that she missed her father and there was a clear risk that her separation from him would have negative psychological consequences for her .

On DATE ORG ( byrett ) rejected the first applicant 's appeal against the ORG 's above - mentioned decision of CARDINAL DATE . He then appealed to ORG , which , on DATE , upheld ORG judgment . He further appealed to ORG ( PERSON ) which , in a judgment of CARDINAL DATE , by CARDINAL votes to CARDINAL , upheld ORG conclusion on the merits but overturned the lower courts ' decisions ordering him to pay legal costs .

In its judgment ORG considered , inter alia , whether the expulsion would be consistent with GPE 's obligations under LAW , as interpreted and applied in a number of cases by the Convention institutions , in particular whether the measure was necessary in a NORP society , which the first applicant disputed . Mr Justice PERSON stated on behalf of the majority :

“ The ground for the expulsion is the very serious drug offence of which Mr PERSON has been found guilty . ...

PERSON was convicted under LAW ) , cf . ( CARDINAL ) , of LAW for serious narcotics offences relating to a very large quantity of drugs . The maximum penalty was DATE imprisonment , while the minimum was DATE . It was thus a very serious offence of which he was found guilty and the penalty imposed was DATE imprisonment , of which DATE and DATE had been served . PERSON was found guilty of the possession and attempted sale in respect of QUANTITY of heroin of a high degree of purity . It is stated in ORG judgment that each QUANTITY of the product could be divided into CARDINAL doses ; so that the substance posed a very great danger of being commercialised . ...

… In the present case , there is no information to the effect that PERSON has been involved in other criminal offences . This is relevant to the assessment but is overshadowed by the seriousness of the offence of which he has been found guilty .

I now turn to the arguments submitted against expulsion .

Even though it has been conceded that PERSON own interests would not on their own suffice to make the expulsion incompatible with the Convention , it must be relevant that he has resided in GPE from DATE and has received an education and worked here . Until his detention on remand he had lived here for DATE . It may be mentioned that it was only after he was detained that he applied for NORP citizenship and that his application was refused . He has maintained links with his family in GPE during his visits to the country in DATE and DATE . …

The circumstances , which most strongly militate against expulsion , are those related to his family life with his spouse and CARDINAL daughters . The marriage was concluded while PERSON was serving his prison sentence and after the police had ordered the expulsion . Nevertheless , there is agreement that family life was established before he was detained on remand . The couple ’s eldest child , [ the second applicant ] , who is now DATE , was born while her father was serving his sentence but , according to the information available , she has had contacts with him during visits and home - leave and the family lived together for DATE from the applicant ’s release until his expulsion was effected . As already mentioned , [ the second applicant ] has considerable health problems related to asthma and allergies . Like ORG , I find it established that the maintenance of the expulsion order would split the family since , because of [ the second applicant ] , it is not expected that the mother and the daughters will settle in GPE . The possibilities of visits will be limited - in GPE , because of [ the second applicant ’s ] health - and in GPE , because PERSON expulsion is made permanent . It is evident that this will constitute a considerable burden to them all , in particular to [ the mother ] who will be alone in assuming the care of the daughters , one of whom is in particular need of care .

It has been specifically claimed that in GPE it will not be possible to bring up the daughters in accordance with the mother ’s NORP faith . Reference is made to LAW CARDINAL § § CARDINAL and CARDINAL of LAW . I will not consider those matters more closely since I take it that it is not expected that the mother and the daughters will move to GPE . ...

The appellant party has referred , inter alia , to the report recently given by the ORG in the case of ORG v. GPE and has submitted that to a high degree it supports his views . ...

As regards this decision , I should like to point out that second generation immigrants often raise particular issues , whereas under NORP law expulsion may not be effected with respect to persons who are born in GPE and have lived there continuously . PERSON was DATE when he came here for educational purposes and has maintained contacts with GPE .

The way I interpret the existing case - law is that in cases of such serious narcotics offences as this , it falls within the ORG ’s margin of appreciation to expel foreign nationals , even though it would seriously affect the person expelled and his family . …

In the final assessment I can not see that in the case under consideration the authorities’ decision to expel constitutes a disproportionate measure against the scourge of drug trafficking . This was clear in DATE when the expulsion was decided by the police and ORG . The interest in protecting family life has nevertheless been given greater weight in the subsequent refusals to alter the expulsion order , the last refusal being issued by ORG on DATE . The matter was then considered on the basis of the relevant circumstances obtaining at that time . Nevertheless , having regard to the serious drug offence in respect of which PERSON has been found guilty , I consider that the interest of protecting family life does not suggest that expulsion would be disproportionate and incompatible with the LAW , despite the considerable burden it entails . It is , however , a very difficult balancing of interest with which we are faced here . ”

In his dissenting opinion , Mr Justice PERSON concluded on behalf of the minority that the expulsion order must be declared unlawful ( ugyldig ) as being disproportionate . His reasoning may be summarised as follows . Although the seriousness of the offence was a consideration that weighed heavily and the interests of PERSON could not on their own justify declaring the expulsion order unlawful , the consequences for the family ought to be decisive in this case . The situation for the first applicant 's wife and the consequences for their marriage were almost identical to those described in paragraphs CARDINAL and CARDINAL of the NORP v. GPE judgment of CARDINAL DATE ( Series A no . CARDINAL-A ) . In the present case the interests of minor children were also at stake . Because of the second applicant 's illness it was excluded that the wife would move to GPE . There were great difficulties involved in maintaining family life by means of relatively short , occasional visits by the family to GPE . While it was very likely that the spouses sooner or later would be forced to divorce , the interest of avoiding divorce weighed more heavily when , as here , they had children . Moreover , there was obviously a greater risk than normal that the contacts between the father and the children would be damaged . A child in as much need of care as the second applicant would have a particular need for maintaining close contact with both parents . The mother , who alone assumed the responsibility for the CARDINAL daughters , had a strong need for the father ’s help in caring for the children .


PERSON , is a LOC national , who was born in DATE and lives in GPE , GPE . She is complaining on behalf of her daughter , PERSON , and her grand - daughter , Ms PERSON . They were born in DATE , respectively , and live in GPE . PERSON PERSON and PERSON and PERSON are hereafter referred to as “ the applicants ” . They are represented before ORG by Ms PERSON .

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

PERSON arrived in GPE on DATE , under a temporary residence permit granted for the period from DATE until DATE . The residence permit was issued for the purpose of university studies . She immediately , on DATE , applied for a permanent residence permit for business activities and studies .

PERSON daughter , PERSON , was born on DATE in GPE .

ORG ( ulkomaalaisvirasto , utlänningsverket ) issued a temporary residence permit for the period from DATE until DATE for the purpose of studies .

PERSON was no longer registered with the university for the term of DATE . The applications of GPE and PERSON to be granted a residence permit were refused by ORG on DATE . It noted that ORG , who had been granted a residence permit in GPE for DATE on the basis of her studies in GPE , had returned to GPE after having attended only a few courses at ORG . PERSON argued that she had been unable to study because of her pregnancy . The ORG considered that PERSON , who had however not been hindered by her pregnancy from founding a business together with CARDINAL of her brothers , did not have such family ties in GPE that she would be entitled to stay there . Taking into account that ORG husband lived in GPE and that PERSON could continue her business from there ( the business idea was to import goods from GPE to GPE ) , her request was refused . Accordingly , PERSON was not granted a residence permit either . PERSON and PERSON travelled to GPE in DATE .

On DATE PERSON ’s parents arrived in GPE as visitors with a DATE tourist visa . They were later granted a residence permit on a humanitarian basis as CARDINAL of their sons had already stayed in GPE for over DATE and had been granted NORP citizenship . The parents were both also diagnosed with severe chronic illnesses ( the father with cancer and the mother with kidney failure ) which could not be treated effectively in their country of origin .

ORG and PERSON appealed to ORG , arguing that most of their family lived in GPE and that PERSON wished to continue her studies which she had not yet finished . Their appeal was refused by ORG on DATE . The court noted that PERSON had originally arrived in GPE because of her studies but that the reason for her visit had changed into business and family ties during her stay . Taking into account that PERSON was DATE , ORG did not find that the interests of the child rendered the refusal of the residence permit unreasonable .

ORG and PERSON applied for leave to appeal from ORG on the basis of new circumstances as PERSON ’s mother , PERSON , had fallen seriously ill in GPE , suffering from kidney failure , requiring dialysis CARDINAL times a week . On DATE ORG refused PERSON and PERSON leave to appeal .

PERSON gave birth to her second daughter in GPE in DATE .

In DATE PERSON and her family applied for visas to enter GPE . The requests were refused on DATE , with reference to LAW ( ulkomaalaislaki , utlänningslagen ) . The visa application indicated that visas were not sought for “ travel or other comparable short - term stay in the country ” but rather for long - term stay for which a residence permit should be applied for instead . On DATE the ORG advised ORG and her family to apply for residence permits , if their purpose was not to stay in the country for a short time only .

On DATE PERSON submitted to the ORG applications for a residence permit for herself and her family . The family was interviewed at ORG on DATE and the difference between a residence permit application and a visa application was explained to them .

On DATE PERSON informed the ORG that they wished to withdraw the residence permit applications and apply instead for a short - term visa . Subsequently , the fees they had paid ( amounting to LOC ) for the residence permit applications were returned by ORG .

ORG and her family filed new visa applications on DATE . These applications were also refused and the decisions on refusal were mailed to the persons concerned on DATE . The reasons for the refusals were the same as in respect of the first visa applications . However , having received several petitions , the ORG reviewed the visa applications and sent PERSON a letter on DATE , offering her and her younger child a possibility to have a DATE tourist visa for GPE for the purpose of travelling to see their sick mother / grandmother . PERSON was not offered a visa . Since then PERSON has not been in contact with the ORG and nor has she replied to the letter or filed a visa application as suggested .

On DATE PERSON ’s brother sent the Embassy an e - mail message , according to which his family was not able to accept that visas should be issued only to her sister and her younger child , since in their opinion the whole family should travel together .

Since ORG and her family ’s earlier applications for visas had been refused by appropriate decisions , and she had herself withdrawn the residence permit applications , they have at present no residence permit or visa applications pending .

According to LAW of LAW ( CARDINAL/CARDINAL ) , a visa means a permit or a decision issued for tourist travel or comparable short - term visit on the basis of which an alien may enter GPE , provided that he fulfils the other entry conditions .

Under LAW of LAW , a visa must be issued by a NORP diplomatic representation or consulate abroad .

Section DATE ( CARDINAL/CARDINAL ) of LAW defines the family members to whom a residence permit may be issued . Such family members include the spouse of the alien residing in GPE as well as his or her children under DATE for whose custody he is responsible . Should the alien residing in GPE be under DATE , his custodian is considered a family member to whom a residence permit may be issued on the basis of family ties .

Section DATE ( CARDINAL ) of LAW provides for a possibility to issue a residence permit on the basis of family ties .

According to LAW , subsection CARDINAL ( CARDINAL ) of LAW , residence permits on the basis of family ties shall be issued by ORG .

According to LAW of LAW , an appeal may be lodged within DATE to ORG against ORG decision not to grant a residence permit .

According to LAW , there is no appeal against decisions which are not mentioned in Sections CARDINAL , CARDINAL or DATE of LAW . Accordingly , there is no right of appeal against the decision not to grant a tourist visa .


Remainder inadmissible;No violation of Art. 8

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants are father and son . The first applicant was born in DATE and lives in PERSON . The second applicant was born in DATE and lives in GPE .

The first applicant was in a relationship with S.Ć. The relationship ended DATE before the second applicant was born . The first applicant acknowledged the child by signing a statement on paternity with ORG enota PERSON ) . The second applicant 's mother PERSON never gave her consent to the above - mentioned statement .

On DATE the first applicant brought an action with ORG ( Okrožno sodišče v PERSON ) for custody and determination of paternity . He also lodged a request for an interim measure ensuring him contact with his son pending the outcome of the main proceedings . Moreover , he requested the appointment of a special representative to represent the second applicant and to be exempted from paying court fees .

On DATE ORG issued a decision rejecting the request for an interim measure . The court stated that the question of paternity should be resolved before such measure could be applied . The first applicant appealed .

On DATE and DATE the first applicant lodged CARDINAL requests for a hearing to be set and for the matter to be resolved promptly .

On DATE ORG ( PERSON ) issued a decision upholding the appeal and remitting the question of provisional contact arrangements for re - examination .

On DATE the first applicant lodged a supervisory appeal ( nadzorstvena pritožba ) with ORG ( Ministrstvo za pravosodje ) , complaining that the judge 's work in the case was slow and ineffective .

On DATE the first applicant lodged preliminary submissions and a reply to the counterclaim lodged by S.Ć. on CARDINAL March CARDINAL .

On DATE ORG issued the first interim contact order allowing the first applicant to have contact with the second applicant once DATE for TIME . The order was immediately enforceable , as appeals do not stay the enforcement of such orders .

S.Ć. lodged an objection .

On DATE the ORG ( Center za socialno delo PERSON ) issued a decision appointing a curator ad litem to represent the second applicant .

On DATE ORG sent a report to ORG regarding the progress in the case following the first applicant 's supervisory appeal .

On DATE the first applicant lodged an appeal against the order on provisional contact arrangements issued on DATE . He claimed that S.Ć. and her father had prevented him from visiting the second applicant and had threatened him with physical violence . He requested the first - instance court to modify the interim contact order concerning the enforcement by setting a fine in the event of non - compliance to ensure contact with the second applicant .

On DATE the first applicant lodged a request for priority treatment , claiming that he had again been prevented from seeing the second applicant . He also lodged a complaint ( ustna ovadba ) with the police .

On DATE ORG set a hearing for DATE . The first applicant requested that the hearing be set earlier .

On DATE ORG issued a decision exempting the first applicant from paying court fees .

On DATE the first applicant requested the hearing to be rescheduled , which was refused .

On DATE ORG held a hearing regarding provisional contact arrangements and the objection of S.Ć. to the order of CARDINAL DATE . The court issued a new contact order of its own motion pending the resolution of the case . The court allowed contact between father and son twice DATE under the supervision of a social worker . It also set out a fine of CARDINAL NORP tolars ( SIT ) ( approx . CARDINAL ( ORG ) ) to be imposed in the event of non - compliance . On DATE a partial judgment was issued establishing that the first applicant was indeed the biological father of the second applicant . The parents also resolved the issue of alimony by signing a court settlement .

On DATE the first applicant lodged an appeal challenging both interim contact orders ( see paragraphs CARDINAL above ) by requesting more frequent contact .

On DATE ORG quashed both appeals .

On DATE the first applicant lodged a request for a new interim contact order , requesting more frequent contact .

On DATE ORG rejected the first applicant 's request and issued an order of its own motion , allowing contact under new terms . The court allowed contact twice a week without supervision and every other DATE and fixed an arrangement for DATE . The court set a fine of SIT CARDINAL ( approx . EUR CARDINAL ) in the event of non - compliance . S.Ć. lodged an objection .

On DATE and CARDINAL DATE the first applicant lodged CARDINAL requests with ORG for imposition of a penalty or use of physical force to enforce the order , since GPE was not respecting the interim contact order and was obstructing the applicant 's visiting rights . The first applicant stated that the visits had been obstructed on CARDINAL occasions DATE and DATE . It transpires from the case - file that the second applicant was frequently ill DATE and DATE and was hospitalized on DATE .

On DATE the first applicant lodged a supervisory appeal in accordance with the provisions of the LAW on the Protection of the Right to a Trial without Undue Delay ( “ the CARDINAL Act ” ) .

On DATE ORG held a hearing regarding contact arrangements and rendered a decision , rejecting ORG objection to the decision issued on DATE ; the decision therefore remained in force ( see paragraph CARDINAL above ) . Both parties appealed .

On DATE ORG issued a decision appointing an expert in psychology in order to determine which party to the proceedings should be granted custody . On DATE , following an unsuccessful contact , the first applicant lodged a complaint with the police against DATE accusing her of abduction of a minor . It transpires from the case - file that the first applicant lodged CARDINAL such complaints during the proceedings .

On DATE CARDINAL ORG issued a decision , rejecting the first applicant 's requests from CARDINAL and DATE as unsubstantiated . The court found that the contact visits had been obstructed or prevented mainly because of the child 's illness , and that the first applicant had not made an attempt to reschedule as set out in the interim order . The first applicant appealed .

On DATE the supervisory appeal was rejected as unfounded ( see paragraph CARDINAL ) .

The second applicant was again hospitalized DATE and DATE .

On DATE ORG issued a decision quashing the decision of DATE ( see paragraphs CARDINAL and DATE above ) and rejected the first applicant 's request for a new interim contact order . The court found that despite the progressing relationship between father and son allowing contacts without supervision was premature and such changes should be done more gradually . The order of CARDINAL DATE was now again in force .

On DATE ORG received the expert 's opinion .

On DATE the first applicant lodged a new request for an interim contact order .

On DATE ORG issued an interim contact order of its own motion allowing more frequent contact visits following the favourable expert opinion . A fine for non - compliance was set . S.Ć. lodged an objection .

On DATE ORG issued a decision rejecting the objection lodged by GPE to the interim contact order .

On DATE S.Ć. lodged an appeal against the decision of DATE , claiming that the order was based on an expert opinion on which she had not been given the opportunity to comment .

On DATE the court received a report by the ORG , from which it was evident that both parents had been offered assistance by the department of psychology . S.Ć. had attended CARDINAL meetings , the first applicant none .

It transpires from the case - file that the second applicant was frequently ill DATE and DATE and again hospitalized on DATE .

On DATE ORG upheld the appeal and remitted the case for re - examination ( see paragraph CARDINAL above ) .

On DATE ORG issued a decision requesting the appointed expert to modify the report .

On DATE the first applicant lodged a request for a hearing to be set and a new request for an interim contact order .

On DATE ORG received the modified expert opinion .

On DATE the first applicant lodged a supervisory appeal under LAW .

On DATE the supervisory appeal was rejected as unsubstantiated .

On DATE the first applicant lodged a new request for an interim contact order and a request for a hearing to be set .

On DATE the first applicant 's representative lodged a motion for a deadline under LAW .

On DATE the motion for a deadline was rejected .

DATE . On DATE the first applicant personally lodged a motion for a deadline .

On DATE the motion for a deadline was upheld and the case was given priority treatment .

On DATE the first applicant lodged an urgent request for the issuing of a new interim contact order .

On DATE the court issued a new interim contact order of its own motion , allowing more frequent contact visits without supervision and imposing a fine of EUR CARDINAL for non - compliance . S.Ć. lodged an objection .

On DATE the case was reassigned to a new judge due to the previous judge 's extended sick leave .

On DATE a hearing was held and a new interim contact order was issued , setting a fine for non - compliance and further modifying contact arrangements . Both parties waived the right to appeal .

On DATE S.Ć. lodged a preliminary submission requesting an additional expert opinion , whereby it could be established whether there had been physical violence against the second applicant by the first applicant . She had also informed ORG about her concerns .

On DATE the first applicant requested amendments to the new interim contact order .

On DATE the first - instance court rejected both requests and found it unnecessary to change the contact arrangements . The court acknowledged that the relations between the parties presented a problem , since there had been frequent accusations of a criminal nature on both sides . Following the report by ORG , the court assessed that the circumstances are not of such nature that the contact arrangements should be altered .

On DATE a main hearing was held regarding custody . The first - instance court tried unsuccessfully to reach a settlement between the parties . The court also ordered the expert to supplement the opinion and establish whether there is any reason the contacts between father and son should not take place . A new interim contact order was issued setting new contact arrangements and a fine for non - compliance . DATE appealed .

On DATE a hearing was held at which the first applicant submitted a request for a new interim contact order . The court issued a new order slightly modifying the provisional contact arrangements until the next main hearing , fixed for DATE . Based on the supplemented expert opinion the court slightly extended the contacts . A fine in the event of non - compliance was set again .

On DATE a hearing was held . ORG issued a judgment whereby the child was placed in the care of S.Ć. and contact arrangements were set . The first applicant stated that the contact visits had been carried out in line with the last interim decision . Both parents stated that the contact visits had gone ahead satisfactorily in DATE . Pending final resolution of the case the court issued a new interim order establishing in detail the contact arrangements for DATE and public holidays .

On DATE the first applicant lodged an appeal against the first - instance judgment .

On DATE ORG rejected the appeal and upheld the first - instance judgment .

For the description of the relevant domestic law see PERSON and PERSON GPE ( nos . CARDINAL/CARDINAL and CARDINAL , DATE , § § CARDINAL ) .


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

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

In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated a plot of land belonging to the applicant in GPE . A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place .

On DATE , following the applicant ’s request for increased compensation , ORG awarded him an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum . On DATE ORG upheld the decision of the first - instance court . The due amount which was MONEY ( TRL ) including the interest , was paid to the applicant on DATE .

Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest was increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .

A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , § § CARDINAL - CARDINAL .


Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was employed by ORG ( ORG národný výbor ) in ORG . In DATE he was dismissed for breach of discipline . Subsequently courts at CARDINAL levels of jurisdiction declared the dismissal unlawful . Their decisions became final on DATE .

In DATE , while the above proceedings were pending , the national committees ceased to exist ex lege , and their liquidation formally ended on DATE . The national committees were replaced by district offices ( okresné úrady ) which were not formally their legal successors .

On DATE the ORG gave notice to the applicant pursuant to LAW ( CARDINAL ) ( b ) of LAW . The dismissal became effective on DATE . The applicant challenged this decision . He argued , in particular , that the dismissal was unlawful and claimed compensation for damage caused by the termination of his contract of employment .

On DATE ORG ( Okresný súd ) heard the parties and dismissed the applicant ’s action .

The applicant appealed . He alleged that the governmental regulations relating to liquidation of the former national committees were unlawful , that he had become an employee of ORG after his dismissal in DATE had been declared unlawful on CARDINAL DATE , and that ORG had paid his salary until DATE .

On DATE ORG ( PERSON súd ) heard the parties . The case was adjourned and the representative of the defendant was requested to submit the ORG ’s regulation of CARDINAL DATE concerning the practical aspects of liquidation of the national committees . On DATE the applicant complained to ORG that it should have decided on the case on DATE as it had had all relevant evidence before it . Another hearing before ORG was held on DATE . The parties were acquainted with documentary evidence submitted by the representatives of the defendant . The applicant requested the exclusion of ORG judges .

On DATE ORG ( PERSON súd ) quashed the first instance judgment and ordered ORG to take further evidence . The decision stated that the first instance court had not established with sufficient certainty whether or not the applicant had been employed by ORG DATE and his second dismissal . In particular , ORG considered it necessary to establish whether the applicant had received a salary , or compensation therefor , during the period in question , that is , whether the sums which he had received had been paid from the funds allocated to ORG or from a special fund of ORG . The appellate court further instructed ORG to establish whether or not ORG had authorised the head of ORG to settle the applicant ’s claims . The decision stated that witnesses should be heard with a view to establishing the above facts . The case was sent back to ORG for a new adjudication .

The applicant and the representative of the defendant failed to appear before ORG on DATE . The applicant did not appear at subsequent hearings scheduled for DATE and CARDINAL DATE . He excused his absence on the last mentioned date . In his letter of CARDINAL DATE the applicant explained that he could not attend the hearing for personal reasons and that he had not been allowed to become properly acquainted with the case file . The applicant further requested that witnesses and representatives of the defendant should not be heard in his absence .

Another hearing was scheduled for DATE . ORG proceeded with the case in the applicant ’s absence as , according to the Government , the summons had been served on the applicant ’s daughter and the applicant had not excused himself . The applicant contends that he was not summoned . On DATE the ORG heard CARDINAL officials of ORG who confirmed that the applicant had not been employed by that authority and that he had not received any pay from the budget of ORG . The compensation for pay the applicant received between CARDINAL DATE and DATE , that is , until his dismissal became effective , were paid from a special fund of ORG . The witnesses further explained that the notice which ORG had sent to the applicant related to his contract of employment with ORG which , in the meantime , had ceased to exist . ORG had sent it in accordance with the relevant instructions issued by ORG .

On DATE ORG adjourned the case as the applicant had excused himself in advance that he was ill .

The next hearing was scheduled for DATE . The applicant received the summons on DATE . According to the applicant , he submitted , at TIME on DATE , a letter to ORG registry informing the court that he would not attend the hearing scheduled for TIME on DATE . In the letter the applicant explained that , DATE , he had not been allowed to consult the case file and that , therefore , he did not consider it necessary to excuse himself for his absence . The Government maintain that the letter was delivered to the court ’s registry at TIME This is contested by the applicant who alleges that the time of receipt of the letter was added to it later and that his copy of the letter , stamped by the court ’s registry , bears no indication of TIME when it was submitted .

On DATE ORG proceeded with the case in the applicant ’s absence . It delivered a judgment by which it dismissed the action . In the judgment ORG found that ORG was not a legal successor to the applicant ’s former employer and that the applicant had no right to be employed by ORG . The court held that , by sending a notice to the applicant , ORG had acted in accordance with the relevant regulations of ORG and of ORG . Under these regulations , the district offices were charged with settling issues concerning labour relations which remained unresolved after the working groups established with a view to liquidating the national committees had ceased to exist by CARDINAL DATE . The court concluded that ORG had acted in accordance with LAW .

NORP The applicant appealed . He alleged that ORG had had no power to send him a notice , and that it should have offered him a job after his dismissal by the previous employer had been declared unlawful . He alleged , with reference to the relevant pay slips , that he had been paid from the same account as the other employees of ORG after his first dismissal had been declared unlawful on DATE . The applicant considered irrelevant that ORG had put at ORG disposal a sum of money for the purpose of settling any outstanding issues relating to the existence of the former national committees as , in his view , that sum of money had been used for different purposes . In his appeal the applicant stated that he had been a supervisor and that he had an excellent knowledge of the relevant issues . The veracity of his allegations could be proved by an expert .

The applicant also complained to the appellate court that ORG had not considered his arguments , that it had not established the relevant facts and that it had decided in his absence . Finally , the applicant stated that the appellate court should proceed with the case in his presence , that he had the intention to make further oral submissions to the court and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified .

Hearings before ORG scheduled for DATE and DATE were adjourned as the parties did not appear . The applicant excused his absence on both occasions . Prior to the latter hearing the applicant informed the court that he had encountered various difficulties including health problems and requested that the case be decided in his presence .

The next hearing was scheduled for DATE . ORG invited the applicant to submit a medical certificate should he not be able to attend , failing which the case would be decided in his absence . On DATE the applicant sent a registered letter in an envelope addressed to the “ ORG ” in PERSON . In the letter the applicant informed ORG that he was ill and enclosed a medical certificate . The applicant further asked the court not to proceed with the case in his absence . The letter indicated the case number , the name of the presiding judge and also the date of the hearing .

NORP The letter was stamped by the registry of ORG . The stamp indicates that the letter was delivered on DATE . The letter bears a hand - written remark by the president of ORG dated DATE and indicating that it should be transmitted to the presiding judge . The letter bears another hand - written remark by the presiding judge indicating that the chamber by which the case fell to be examined had received it on DATE at TIME

The Government submit that the letter was considered to be a complaint and that the envelope was submitted , unopened , to the secretariat of the president of ORG on DATE . The president of ORG mistakenly dated his above instruction DATE . According to the ORG , the applicant ’s letter reached the presiding judge TIME after the delivery of the judgment on the case .

On DATE ORG examined the case in the applicant ’s absence and upheld the first instance judgment . It stated that the applicant ’s letter posted on DATE had reached the judges on DATE at TIME , that is after the hearing was over . The judgment further stated that the letter had been addressed to the president of ORG and not directly to the presiding judge .

In its judgment ORG pointed out that it had taken further evidence , in that it had requested ORG to submit a report concerning the delegation of its powers to ORG . It concluded , with reference to all the evidence before it , that the applicant ’s appeal was ill - founded .

NORP In particular , ORG found that the applicant ’s dismissal by ORG had been declared unlawful by a decision which became final on DATE . By that time the national committees had ceased to exist ex lege , and their liquidation had formally ended . In accordance with the relevant instructions issued by ORG and ORG , the newly established district offices were ordered to settle any labour issues relating to the former national committees which could not be resolved by DATE . ORG therefore upheld the view of the first instance court according to which ORG had acted in accordance with LAW . ORG had also regard to the supplementary evidence which ORG had taken on DATE and which indicated that the money which had been paid to the applicant had been derived from the budget of ORG . ORG concluded that the applicant had not become an employee of ORG . Accordingly , the notice in question was in conformity with LAW ( CARDINAL ) ( b ) of LAW .

On DATE the applicant lodged an appeal on points of law . He complained , inter alia , that he had not been able to act before the appellate court and invoked Article CARDINAL ( f ) of LAW .

On DATE ORG ( Najvyšší súd ) rejected the appeal on points of law as being inadmissible without hearing the parties . In its decision ORG found that there had been no shortcomings within the meaning of Article CARDINAL ( f ) of LAW in the proceedings challenged by the applicant . ORG did not address the merits of the case .

Section DATE ( CARDINAL ) ( b ) provides that a person may be dismissed from a job when the organisation employing him or her ceases to exist or when a part of that organisation is to be incorporated into another organisation and the latter has no possibility of offering the person concerned a job in accordance with his or her contract of employment .

Pursuant to Section CARDINAL , in cases when an organisation is being liquidated , the liquidator or the ORG has to satisfy the claims of the employees of such an organisation .

Article CARDINAL ( CARDINAL ) provides that the parties are obliged to assist the court in achieving the purpose of the proceedings , by inter alia , complying with the court ’s instructions . LAW CARDINAL entitles the court to proceed with a case even when the parties remain inactive . When a party to the proceedings fails to appear at a hearing despite the fact that he or she has been duly summoned and when such a party has not requested that the hearing be adjourned for a serious reason , the court may proceed with the case in the absence of that party . It shall thereby have regard to the contents of the file and the evidence which has been already taken .

Pursuant to LAW ( f ) , an appeal on points of law is available when a party has been prevented , by the appellate court ’s conduct , from acting before the court .

In accordance with ORG case - law ( Collection of the Judicial Decisions and Opinions of ORG , No . R CARDINAL/CARDINAL ) , a party ’s illness which has been duly certified by a doctor represents a serious reason within the meaning of LAW . When a party to the proceedings has asked in time that the proceedings be adjourned in such a case , the court ’s proceeding with the case in that party ’s absence is considered as preventing him or her from acting before the court within the meaning of LAW ( f ) of LAW .