The applicant , Mr ORG , is a GPE national , born in DATE and living in GPE . He is represented before the ORG by Mr Lockley , a lawyer practising in the GPE .

The applicant is a lawyer and partner of the firm ORG , based in offices in GPE . Since DATE , CARDINAL of his clients , Mr Frestadius , had been under investigation by ORG .

On DATE , the Inland Revenue sought to execute a search warrant on the applicant ’s offices . The applicant claimed legal professional privilege in relation to the files which they wished to examine and seize . The Inland Revenue agreed not to examine or seize any of them .

On DATE , Mr Frestadius was committed for trial on CARDINAL counts of cheating the revenue of tax payable . It was alleged that he had taken part in a scheme to evade tax by diverting commission offshore .

On DATE the Inland Revenue obtained from ORG an ex parte search warrant in order to search the applicant ’s premises for documents evidencing offences of serious tax fraud , suspected to have been perpetrated by CARDINAL or more of the applicant ’s clients . ORG also suspected that the applicant might himself have committed such offences , in particular that he had been involved in the arrangements for the diversion of commission offshore and assisted in concealing those arrangements from ORG .

The wording of the warrant was as follows ;

‘ any officer who enters under the authority of this warrant may ; ( a ) take with him such other persons as appear to him to be necessary ; ( b ) seize and remove any things whatsoever relating to or appearing to relate to serious tax fraud in relation to ORG , ORG and other obligations touching upon them and which he has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of such an offence as is mentioned above and ; ( c ) search or cause to be searched any person found on the LOC whom he has reasonable cause to believe to be in possession of any such things ; but no person shall be searched except by a person of the same sex . No item may be taken from the LOC which is subject to legal privilege ( as defined in section CARDINAL of the Police and Criminal Evidence Act DATE ) ( ‘ PACE CARDINAL’)’ .

The warrant was executed on DATE , but no property was initially examined or seized . Discussions took place between the parties to agree the resolution of issues of legal professional privilege , but no resolution was reached . The same day solicitors on behalf of the applicant applied for leave to judicially review the grant of the warrant . On DATE , leave was granted subject to the Inland Revenue giving an undertaking that any material removed from the premises would be sealed in opaque bags and not inspected until the full hearing . The first warrant was due to expire on DATE and the Inland Revenue obtained a second ex parte warrant with identical wording apart from the following addition ; ‘ ... obligations touching upon them , in relation to the persons named in the attached schedule , which he has reasonable cause ... ’ The attached schedule contained the names of CARDINAL companies and persons involved in the arrangements which the Inland Revenue alleged were designed to cheat .

On DATE , the second search warrant was then executed . CARDINAL documents , files and books were examined and seized . The procedure was as follows . Officers searched for relevant material . Once relevance had been decided , material was then reviewed by the counsel nominated by the Attorney - General and instructed by ORG for the purposes of advising whether any document or other thing shown to him ( a ) was subject to legal professional privilege , ( b ) was not subject to legal professional privilege , ( c ) would have been subject to legal professional privilege but for the fraud / crime exception set out in section ORG ) of PACE DATE . Any document found to be subject to legal professional privilege was handed back to solicitors for the applicant . All the documents seen by counsel were listed , with counsel ’s opinion as to each .

On CARDINAL NovemberCARDINAL , ORG took the view that neither warrant was unlawful .

It rejected the applicant ’s arguments that the warrant failed to give adequate particulars of the materials which could be seized , holding that the there was nothing in the statute which required the particularity for which he contended . The validity of the warrant depended not upon its particularity but upon there being reasonable suspicion that an offence of serious fraud had been committed and there being reasonable ground for suspecting that evidence was to be found on the LOC .

“ The fallacy in the applicant ’s argument lies in the content that greater particularity will provide greater protection against the seizure and removal of things which are irrelevant to the investigation or which are subject to legal professional privilege . ... The protection against the seizure and removal of irrelevant or privileged material lies in sub - section CARDINAL . Even if the warrant had been more specific it would provided no greater protection . Greater particularity of the kind for which the applicant contended would and could not have prevented officers of the revenue seizing and removing that which they were permitted to take by virtue of sub - section CARDINAL . ”

As regarded the applicant ’s complaints against the scrutiny of counsel instructed by ORG , the court stated :

“ The prohibition under subsection ( CARDINAL ) is absolute . If a document is the subject of professional privilege it can not be seized or removed . If therefore , an officer does seize and remove documents which are properly the subject matter of professional privilege , he acts unlawfully and can be prevented from so doing by the court . The court would also order him to return such documents . Moreover if the officer has acted unlawfully , the revenue may be liable in damages . Thus if it subsequently turns out that counsel was wrong , his presence will not assist the revenue to resist any action taken by the court in an attempt to remedy the unlawful seizure and removal of documents subject to professional privilege . It is for the court to determine whether the documents in fact seized and removed were subject to such privilege . The fragility of professional privilege is to be protected , under the statutory regime , by the processes of and the sanctions imposed by the courts . It is only when they are found wanting that one can see that the rights to privacy and access to lawyers have been infringed . Therein lies a difficulty for this applicant . The complaint as to infringement of its rights would be easier to assess in the context of a complaint that professionally privileged documents were , in fact , seized and removed ; That issue , possibly , remains to be litigated , but , as yet , there is no evidence that any of the documents seized and removed was privileged .

In the meantime it was open to the revenue in seeking to protect itself against unlawful seizure and removal to obtain the assistance of counsel nominated by the Attorney General . Such presence also protected the applicant ... the lawfulness of the seizure and removal was not tainted by the presence of counsel . Indeed , I would have thought that his presence , in cases such as these , was to be encouraged , so long as it is understood that his presence should not inhibit a solicitor who wishes to assert a genuine claim to legal professional privilege from making his assertion as speedily as he can before the courts . ”

The applicant petitioned ORG for leave to appeal and was refused on DATE .

On a date unspecified , DATE , a decision was taken not to prosecute the applicant .

Section CARDINAL of LAW DATE ( as amended ) provides :

“ ( CARDINAL ) If the appropriate judicial officer is satisfied on information given on oath given by an officer of the board that

– ( a ) there is reasonable ground for suspecting that an offence involving serious fraud in connection with , or in relation to , tax is being , has been or is about to be committed and that evidence of it is to be found on premises specified in the information ; and ( b ) in applying under this section , the officer acts with the approval of the board given in relation to the particular case , the authority may issue a warrant in writing authorising an officer of the board to enter the LOC , if necessary by force , at any time within DATE from the time of issue of the warrant and search them . ...

( CARDINAL ) An officer who enters ... may ( a ) take with him such other persons as appear to him to be necessary ; ( b ) seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence .

( CARDINAL ) Nothing in sub - section ( CARDINAL ) above authorises the seizure and removal of documents in the possession of a barrister , advocate or solicitor with respect to which a claim to professional privilege could be maintained . ”

Role of the counsel instructed to review the materials removed during the search

According to the instructions issued to counsel nominated by the Attorney - General to act on such searches , counsel ’s role was to advise in relation to any document or thing over which a claim of legal professional privilege ( LPP ) is or could be made to decide whether it was :

( a ) subject to ORG and the fraud / crime exception does not apply ;

( b ) relevant and not subject to ORG ; or

( c ) relevant , ORG would ordinarily apply but the fraud / crime exception defeats the claim of LPP .

Counsel was told :

“ CARDINAL You are not part of the search team but there to give independent advice . You must not allow yourself to become part of the evidential trail as to the discovery of items during the search . Once they have been discovered by an officer who could give evidence about it if the matter proceeded to trial , it is your task to examine them for the specific purpose set out in these instructions .

CARDINAL In the event of a claim of ORG being made in relation to any item or in the event that any officer uncovers an item which may attract LPP , it will be your responsibility to assess the validity of that claim . Although you received your instructions to attend from the Revenue , you are there to act independently in assessing whether the item attracts LPP . ”

Section CARDINAL of the Police and Criminal Evidence Act DATE provides :

( CARDINAL ) Subject to subsection ( CARDINAL ) below , in this LAW , “ items subject to legal privilege ” means-

( a ) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client ;

( b ) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings ; and

( c ) items enclosed with or referred to in such communication and made-

( i ) in connection with the giving of legal advice ; or

( ii ) in connection with or in the contemplation of legal proceedings and for the purposes of such proceedings ...

( CARDINAL ) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege . ”


Violation of P1-1;Remainder inadmissible;Pecuniary damage  - reserved

Geoffrey Valenzia;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE

The applicant is CARDINAL of CARDINAL owners of a piece of land in GPE , GPE , having an area of QUANTITY ( “ sq.m . ” ) .

The land was the subject of a declaration by the Governor General dated CARDINAL DATE , stating that it would be expropriated for a public purpose . The public purpose intended was a social housing project .

At the time , the initiation of compensation proceedings was an action which could only be undertaken by the authorities and to which no time - limit applied . However , in DATE domestic case - law confirmed that the ordinary courts had the competence , upon a request made by persons in the applicant ’s position , to set a time - limit for the performance of the obligation by virtue of LAW , a long - standing provision .

Following DATE of silence on the part of the authorities , on DATE the ORG issued a notice to treat and offered the owners of the land MONEY ( MTL ) , MONEY ( ORG ) . This reflected the value ( on the date of valuation ) of the property as agricultural land , including some rural structures according to an independent architect ’s evaluation commissioned by ORG on DATE . The owners refused this offer and proceedings were initiated before ORG ( “ LAB ” ) to assess the amount of compensation due . These proceedings are still pending to date since they have been suspended pending the completion of the ordinary and constitutional proceedings instituted ( see below ) .

DATE the property remained unused . On DATE , pending the proceedings mentioned below , the authorities ordered the restitution to the owners of part of the land measuring CARDINAL sq.m . , which was eventually released in DATE . On DATE the applicant and the other owners signed a sworn declaration to the effect that no further claims for compensation or damages would lie in respect of this piece of land .

NORP The remaining land ( CARDINAL sq.m . ) was kept by the authorities with the aim of building a social housing project . In DATE the Government started constructing apartments and maisonettes . While the price offered for the remaining land still has to be apportioned by the ORG , the ORG estimated that a fair pro rata value would amount to ORG CARDINAL,CARDINAL , approximately ORG CARDINAL,CARDINAL .

On DATE the applicant ’s predecessor instituted ordinary civil proceedings . He contended that the order of expropriation had not been made for a public purpose , since the land had remained unused and the purpose put forward , namely the construction of housing units for third persons , could not be considered to be in the public interest . In consequence , they requested that the expropriation be declared null and void .

On DATE ORG dismissed the claim , holding that it had not been proved that the expropriation had been in contravention of the law , namely ORG ) Ordinance .

No appeal was lodged against this judgment .

On DATE the owners of the land ( including the applicant ) instituted constitutional redress proceedings . They claimed a violation of their rights under LAW No . CARDINAL to the LAW in that the expropriation had not been carried out for a public purpose , since the land had remained unused for DATE and the purpose put forward , namely the construction of housing units for third persons , could not be considered to be in the public interest . They further argued that the measure had not been proportionate in view of the compensation offered and that they should be compensated according to the market value of the land at that date .

On DATE ORG ( FAC ) in its constitutional jurisdiction found a violation of LAW No . CARDINAL to the Convention and awarded the owners ORG CARDINAL,CARDINAL in compensation for non - pecuniary damage . It held that the land had originally been taken in the public interest , namely for the housing project , construction of which , however , had only recently started . However , this public purpose had not been pressing , since the land had remained unused for DATE , during which the authorities had not initiated compensation proceedings . In consequence the ORG property rights had been breached . Lastly , noting that the owners were not calling into question the relevant compensation provisions of the law , but simply arguing what compensation should be payable , it refused to take cognisance of the claim regarding compensation for pecuniary damage , since the amount payable still had to be determined by the ORG . The expenses were to be borne by both parties .

By a judgment of DATE , ORG , on appeal , altered the first - instance judgment in part . While considering that a public interest had existed originally , and had persisted since indeed some apartments had eventually been built , it confirmed that there had been a delay on the part of the authorities in initiating proceedings , which had been to the detriment of the owners , and this constituted a breach of their property rights . However , it noted that although the owners had an available remedy to speed up the process , they had done nothing about it . In consequence , while upholding the finding of a violation , ORG reduced the award in respect of non - pecuniary damage to ORG CARDINAL . It further confirmed that the complaint regarding compensation for pecuniary damage was premature , that issue still having to be determined by the LAB . It ordered the expenses to be borne by both parties .

ORG ) Ordinance ( LAW of LAW ) , in so far as relevant , reads as follows :

Section CARDINAL

“ The President of GPE may by declaration signed by him declare any land to be required for a public purpose . ”

Prior to the amendments introduced in DATE , ORG ) Ordinance provided that :

Section CARDINAL(CARDINAL )

“ ... the competent authority shall give to the owner a notice ... by means of a judicial act , stating the amount of compensation , as shown in a valuation to be attached to the notice to treat . ”

Section CARDINAL(CARDINAL )

“ The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ( ... ) . ”

Section CARDINAL

“ If the owner shall by a judicial act decline to accept the offer made by the competent authority , the matter shall be brought before ORG by an application to be made by the competent authority , and the ORG shall give all necessary orders or directions in accordance with the provisions of this Ordinance . ”

Article CARDINAL ( b ) of ORG , LAW of LAW , in so far as relevant , reads as follows :

“ Where the time for the performance of the obligation has been left to the will of the debtor , or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so , or when he will have the means for so doing , the following rules shall be observed :

( b ) if the subject - matter of the obligation is other than the payment of a sum of money , the time within which the obligation is to be performed shall be fixed by the court according to the circumstances . ”


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award;Just satisfaction reserved (one applicant)

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

On DATE the applicants were in detention in FAC when a large - scale security operation was conducted there by CARDINAL members of the security forces consisting mainly of gendarmes and soldiers . As the remaining facts of the case are in dispute between the parties , they will be set out separately . The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the applicants and the Government is summarised in Section D ( paragraphs CARDINAL ) .

On DATE a number of remand prisoners in FAC were beaten by gendarmes on their way back from a court hearing . On DATE CARDINAL detainees , including CARDINAL of the applicants , informed the prison administration that , unless steps were taken to guarantee their safety , they would not be appearing at a hearing in ORG scheduled for DATE . Neither the prison authorities nor the prosecutors responded to their calls .

At TIME on DATE , members of the security forces arrived at the prison in large numbers . Using the furniture in their dormitories the inmates unsuccessfully tried to block the doors to stop the soldiers from coming in . The soldiers locked the windows to the prison cells , set fire to the cell doors and tried to confine the inmates in CARDINAL part of the prison , measuring QUANTITY . The applicants PERSON and PERSON suffered burns in the fire . When the inmates were confined in the same QUANTITY the soldiers used tear gas and various other chemical gases on them .

A hole was opened in the walls of this room with a digger . When the digger went through the hole and into the room the applicant Mr PERSON waved his arm at the operator of the machinery , trying to tell him to withdraw the digger . The operator saw Mr PERSON but proceeded , tearing off Mr Saçılık ’s left arm from above his elbow . The severed arm was not collected by the authorities with a view to preserving and reattaching it , but was left there in the rubble . It was later taken from the mouth of a stray dog which had snatched it from the rubble .

Furthermore , a gas bomb detonated nearby seriously damaged the applicant PERSON right hand and eardrum .

The soldiers then started beating the inmates , dragging them on the floor , sexually assaulting female detainees and threatening them with rape . The detainees were then handcuffed , with their hands behind their backs , and were kept in that position for DATE TIME . The beatings continued even after the detainees were handcuffed . The soldiers attempted to insert a truncheon and a fluorescent light stick into the anuses and vaginas of the applicants PERSON and PERSON and started raiding the detainees’ personal belongings .

The injured detainees , some with life - threatening injuries , were subsequently taken to hospital . However , it was too late for PERSON arm to be stitched back on , so he permanently lost his arm . The health of a number of other applicants also worsened because of the delays . Moreover , the soldiers prevented some of the detainees from receiving medical assistance at the hospital and took them back to the prison before their treatment had been completed .

On DATE CARDINAL detainees , including CARDINAL of the applicants , refused to obey the prison authorities and attend a hearing at ORG . ORG requested assistance from a number of other military headquarters in an operation to be carried out in the prison .

The applicants and a number of other detainees began rioting in the prison . At TIME on DATE , members of the security forces entered the prison in order to restore safety and security . They warned the prisoners and asked them to stop rioting . CARDINAL prisoners complied with the soldiers’ instructions , but the remaining ones , including the applicants , continued to riot . They barricaded themselves in , opened fire , set fire to the dormitories and corridors , attacked members of the security forces with hand - made harpoons and iron bars and threw various explosive and corrosive chemicals at them . CARDINAL gendarmes were injured as a result of the attacks .

As soon as members of the security forces managed to pass the barricades , the prisoners moved to the next dormitory after setting fire to the one they had been in . At that point the soldiers opened holes in the ceilings of the dormitory where the prisoners had gathered , and threw in tear gas canisters with a view to stopping the riots and minimising further damage .

A total of CARDINAL holes were opened . The applicant PERSON was injured when a machine was opening the holes .

At the end of the operation a search was carried out . A number of documents belonging to an illegal organisation , CARDINAL iron bars , CARDINAL wooden bars , CARDINAL hand - made objects used for cutting and digging holes , CARDINAL saws , CARDINAL pairs of scissors and CARDINAL hammers were found during the search .

Apart from the severe damage caused to the prison building , CARDINAL security force personnel , CARDINAL prison guards , CARDINAL civilian and QUANTITY prisoners were wounded during the operation . The QUANTITY wounded prisoners were taken to hospitals . When CARDINAL other prisoners refused to go to hospital for medical checks , CARDINAL doctors were taken to the prison to provide medical assistance to them .

Although the applicant PERSON alleged that she had been raped with a truncheon , the medical reports pertaining to her examination revealed that her hymen was intact .

In the course of the investigation prosecutors questioned the applicants and members of the security forces , and examined the medical reports . On DATE the ORG prosecutor concluded that the soldiers’ actions had become unavoidable as a result of the ORG behaviour , and decided not to prosecute any members of the security forces .

NORP The applicant PERSON successfully filed a civil suit for his injuries , claiming MONEY ( TRL ) in respect of pecuniary damage and CARDINAL in respect of non - pecuniary damage . On DATE the sum of TRL CARDINAL ( MONEY ( ORG ) at the time ) , which included accrued interest , was paid to PERSON .

The following information emerges from the documents submitted by the parties .

On DATE the president of ORG sent a letter to the ORG prosecutor and stated that CARDINAL inmates at the prison had failed to attend a hearing scheduled for DATE . The president urged the prosecutor to ensure the inmates’ attendance at the next hearing scheduled for DATE , “ if necessary by forceful means so that judicial functions could be performed and the authority of the ORG would not be undermined ” .

NORP In his letter of CARDINAL DATE the governor of ORG informed the PERSON prosecutor ’s office about ORG president ’s letter . In the opinion of the prison governor , force would need to be used to uphold the “ ORG ’s authority ” but there was an insufficient number of prison guards at the prison to handle such an intervention .

On DATE the ORG public prosecutor asked ORG to ensure the attendance of the CARDINAL detainees at the hearing , if necessary by forceful means . The same day ORG asked a number of other military headquarters , including the special forces at the GPE and ORG , to assist them in an operation to be carried out in FAC DATE .

According to incident reports drawn up by soldiers on DATE , the soldiers went to the prison in TIME and asked the QUANTITY detainees to leave the prison and go to the hearing . When this request met with the ORG refusal , the soldiers entered the prison and saw that the inmates had barricaded themselves in their dormitories using their bunk - beds , tables , lockers and other furniture . When the inmates were all confined in CARDINAL room , the walls of the room were demolished and the soldiers threw in gas canisters . However , the inmates covered their heads with wet fabrics to protect themselves from the effects of the gas , before proceeding to throw the gas canisters back at the soldiers . The inmates then started throwing cleaning products containing acid and bleach at the soldiers and hitting them with metal rods made from window bars . When the soldiers finally gained control of the prison , CARDINAL of their number had either been beaten up by the inmates or intoxicated by the tear gas . When the operation ended at TIME the injured inmates were taken to hospitals .

The applicants were all examined by doctors on a number of occasions . Details of their injuries , as noted in the medical reports , are as follows :

PERSON : Mr PERSON was taken to hospital on DATE and was discharged again on DATE . It was not possible to stitch his arm back on and his injury was deemed to be life - threatening by the doctors . His injury prevented him from working for DATE .

PERSON : Examined by CARDINAL doctors . Various injuries to the face , arms and legs . Unable to work for a period of DATE .

PERSON : Examined by CARDINAL doctors . Various injuries , some infected , and bruising on the torso , arms and legs , requiring a DATE healing period . Unable to work for a period of DATE .

PERSON : Examined by CARDINAL doctors . Various injuries and bruising on the head and on the back of his body , legs and ankles . Unable to work for a period of DATE .

PERSON : Examined by CARDINAL doctor . His injury prevented him from working for DATE .

PERSON : Examined by CARDINAL doctors . Various injuries and bruising on the shoulders and arms . Unable to work for a period of DATE .

PERSON : Examined by CARDINAL doctors . Various injuries , some infected , and bruising on the shoulders and the back of the body , arms and legs . Unable to work for a period of DATE .

PERSON : After the operation Mr GPE was taken to a hospital suffering from gas intoxication and his condition was deemed to be life - threatening by doctors who also observed various injuries and bruises on the left ear , head , arms and legs . Unable to work for a period of DATE .

PERSON Examined by CARDINAL doctors . Various injuries and bruises on the back of the body , ribs , arms and legs . Unable to work for DATE .

PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the head and round the eyes and extensive injuries to the shoulders , the back of the body and the arms , wrists and fingers . Unable to work for a period of DATE .

Necla Çomak : Ms Çomak was examined by CARDINAL doctors . Various injuries and bruises on various parts of the body including the head and the eyes . Unable to work for a period of DATE .

PERSON : Examined by CARDINAL doctors CARDINAL of whom was an ear , nose and throat consultant . Various infected injuries on the right hand . Various injuries and bruises on the head , face , eyes , ears , shoulders , arms and legs . Perforated ear drum and hearing loss . Unable to work for a period of DATE .

PERSON Examined by CARDINAL doctors . Various injuries and bruises on the head and the right shoulder blade . Unable to work for a period of DATE .

PERSON : After the operation PERSON was taken to a hospital suffering from gas intoxication and his condition was deemed to be life - threatening by doctors . He was discharged from the hospital DATE . The doctors also observed various injuries and bruises on the ribs , knees , legs and torso , which prevented him from working for a period of DATE .

PERSON : After the operation PERSON was taken to a hospital suffering from gas intoxication and her condition was deemed to be life - threatening by doctors , who also observed extensive injuries and bruising on her face and legs . Unable to work for a period of DATE .

Veysel Yağan : Examined by CARDINAL doctors . Extensive injuries and bruising on the back of the body , arms , hands , legs and feet . Unable to work for DATE .

PERSON : Examined by CARDINAL doctors and taken into hospital for a head trauma . Various injuries and bruises around the eyes , nose , face , ears , lips , shoulders , arms and knees and a nose fracture . Unable to work for DATE .

PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the face , chest and back of the body , arms and legs . Unable to work for a period of DATE .

Cavit Temürtürkan : Examined by CARDINAL doctors . Extensive injuries and bruising on the head , face , back of the body and legs . Unable to work for a period of DATE .

PERSON : Examined by CARDINAL doctors . Extensive injuries and bruising on the head , knees , lumbar region , sternum , arms and legs . On DATE PERSON was also examined by a doctor in relation to her allegations of sexual attacks and it was established that her hymen was intact . Her various injuries rendered her unfit for work for a period of DATE .

PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the face , back of the body , lumbar region and legs . Unable to work for a period of DATE .

PERSON : After the operation Mr PERSON was taken to a hospital suffering from gas intoxication and his condition was deemed to be life - threatening by doctors , who also observed extensive injuries and bruising on his head , ears , chest , back of his body , arms , legs and feet . His injuries prevented him from working for a period of DATE .

PERSON Davran : Examined by CARDINAL doctors , who observed various injuries and bruises on her back , arms , and legs , which prevented her from working for a period of DATE .

PERSON : Examined by a doctor who observed various injuries and bruises on her head , eyes , neck , shoulders and legs . Her injuries rendered her unfit to work for a period of DATE .

PERSON : Examined by CARDINAL doctors . Various injuries and bruises on the head , face , chest , back of the body , arms and legs . Unable to work for a period of DATE .

On DATE and DATE the applicants were questioned by public prosecutors . They told the prosecutors that they had been subjected to various forms of ill - treatment .

DATE and DATE the applicants submitted CARDINAL separate complaint petitions to prosecutors and asked for the security personnel responsible for their injuries to be prosecuted .

On DATE lawyers representing the applicants , as well as CARDINAL other detainees , submitted a joint and detailed complaint to the office of the Burdur public prosecutor and asked for prosecutions to be brought against those responsible for the ill - treatment and injuries .

In his letter of DATE the ORG informed the relevant ministerial authorities that the force used by the soldiers had remained within the permissible limits of the applicable legislation . The soldiers had been particularly cautious in not using their weapons and careful not to infringe the NORP human rights ; they had never attacked the inmates and had not caused any injury to any of them . The inmates who had been intoxicated by the gas used by the soldiers , as well as Mr Saçılık , who had been “ injured while throwing bricks at the driver of the digger ” , had “ promptly ” been taken to hospital . In his letter the governor also stated that “ CARDINAL of the CARDINAL inmates had been taken to hospitals in ambulances after the operation had ended at TIME and the remaining inmates had been held in the prison ” .

On DATE the soldiers who took part in the operation were questioned by an army officer . DATE they were further questioned by prosecutors . They all denied having ill - treated the applicants , and maintained that respect for human rights had been paramount during the operation . A number of prison guards who had been on duty at the prison DATE stated that they had not seen or heard anything .

In the meantime , on DATE the applicant PERSON submitted a separate complaint to the ORG prosecutor and gave details of the sexual assault to which she claimed she had been subjected during the operation . According to PERSON , the soldiers had forced a truncheon into her vagina and the doctor who examined her had refused to establish whether her hymen had been torn . She asked the prosecutor to refer her to a hospital specialising in post - traumatic stress disorders and to carry out an investigation “ in compliance with ORG .

On DATE the ORG gendarmerie commander PERSON drew up his preliminary investigation report in which he concluded that the soldiers had not ill - treated any of the inmates . The inmates had made the allegations of ill - treatment in order to damage the reputation of the armed forces .

Acting on officer ORG advice , on DATE the ORG declined to grant the necessary authorisation to the prosecutors to investigate a number of gendarme officers . ORG lodged an objection against that decision on DATE .

On DATE ORG asked for permission to prosecute CARDINAL officers implicated in the allegations .

In his letter of CARDINAL DATE ORG informed ORG that “ a number of inmates had been injured in the course of an operation which had been necessary to quell a large - scale riot against the prison administration ” . In a similarly worded letter addressed to ORG in GPE on DATE , ORG stated that “ during forceful resistance by terrorists , security forces had to use force and a number of security personnel and terror convicts were injured ” .

On DATE ORG brought prosecutions against the applicants and a number of other inmates for “ having caused a riot ” .

The same day Prosecutor Uyav requested permission from the ORG governor to investigate the actions of CARDINAL members of the security forces who had taken part in the operation . The ORG governor appointed his deputy Mr PERSON to carry out a preliminary investigation

NORP In its decision of DATE ORG upheld the prosecutor ’s objection of CARDINAL DATE , and held that the preliminary investigation should have been conducted by ORG .

In its decision of DATE ORG appointed gendarmerie colonel PERSON to examine the allegations with a view to advising as to whether a prosecution should be brought against the soldiers .

In his report of DATE Colonel PERSON recommended ORG to refuse the authorisation sought by the ORG prosecutor to prosecute the CARDINAL members of the security forces . It appears from this report that a total of CARDINAL of the CARDINAL security personnel had been questioned by Colonel PERSON and they had all denied the allegations against them . Colonel PERSON concluded that the operation had been a success , the uprising had been halted and the authority of the ORG had been restored . Other than their abstract allegations , there was no evidence to support the applicants’ “ ill - intentioned allegations ” .

Acting on Colonel PERSON ’s advice , on DATE the ORG governor declined the authorisation sought by the PERSON prosecutor .

On DATE ORG prosecutor PERSON lodged an objection against the ORG governor ’s decision of DATE .

In his decision of DATE the PERSON governor refused to grant authorisation for the prosecution of a further CARDINAL gendarme officers .

On DATE ORG upheld the Burdur prosecutor ’s objection and the file was forwarded to that prosecutor ’s office for a judicial investigation to be opened .

In the course of the investigation the prosecutors questioned the applicants and examined the medical reports detailing their injuries .

On DATE a colonel at ORG in GPE wrote to the ORG public prosecutor informing him that exorbitant sums of compensation were being awarded to the inmates by administrative courts despite the absence of a court decision placing criminal responsibility on the administration and despite the fact that the operation in question had been conducted with a view to protecting the right to life and quelling riots staged by prisoners acting under orders from illegal organisations . The colonel added that there was a need for the investigation to be concluded as soon as possible so that it could be established whether or not the administration was at fault . He asked the prosecutor to provide him with information about the investigation .

In his decision of CARDINAL DATE the PERSON public prosecutor decided not to prosecute any members of the security forces . The prosecutor noted that the driver of the digger which had severed ORG arm had subsequently been tried for , and acquitted of , the offence of causing bodily injury by recklessness . The prosecutor also noted that a number of doctors and nurses working at the hospital where PERSON had been treated had also been tried for neglecting their duties , but had been acquitted . Criminal proceedings brought against the inmates for causing a riot , on the other hand , were still pending .

The prosecutor considered that the soldiers’ intervention had become unavoidable as a result of the actions of inmates who had refused to surrender but had instead gone on to set fire to the objects in their dormitories and to attack the soldiers with wooden sticks and iron bars . PERSON arm had been severed when he had tried to throw bricks at the soldiers through the hole in the prison wall opened by the digger .

The prosecutor observed that , according to the medical reports , all applicants had suffered various injuries , preventing them from working for different periods . Although PERSON had alleged that she had been raped with a truncheon , the medical reports showed that her hymen was intact . There was no medical evidence of any sexual assault of the other female detainees and , as such , their allegations of sexual abuse were unfounded .

In the prosecutor ’s opinion , the soldiers had had to resort to the use of force in order to quell the ORG riot , and the amount of force used had been “ no more than absolutely necessary ” within the meaning of LAW .

An objection lodged against the prosecutor ’s decision was rejected on CARDINAL DATE by ORG , which considered that the prosecutor ’s decision was in accordance with the applicable legislation and procedure .

Furthermore , on DATE ORG terminated the criminal proceedings against the applicants for causing a riot , as the statutory time - limit for such proceedings had been reached .

In DATE Mr PERSON brought proceedings against ORG and ORG , claiming TRL CARDINAL for pecuniary damage and TRL CARDINAL for non - pecuniary damage .

On DATE ORG concluded that the use of heavy machinery in a prison had been unusual . Even assuming that its use had been necessary , PERSON had at that time been intoxicated by the gases used by the soldiers and had been trying to get fresh air through the hole opened by the digger . It had not been alleged that he was posing any threat to the soldiers or to the driver of the digger ; indeed that would have been most improbable given his state of health at the time . It was also clear that the driver of the digger had seen Mr PERSON but had carried on regardless . The ORG were therefore responsible for his injury caused by the use of disproportionate force . It thus awarded PERSON the sums claimed by him in full , plus statutory interest .

The ORG appealed . According to the applicable procedure , appeal proceedings do not affect the execution of first - instance court decisions . Thus , the total sum of ORG was paid to ORG before the appeal was decided .

The appeal lodged by ORG was upheld by ORG on DATE and the decision awarding Mr Saçılık the compensation was quashed . The applicant ’s request for a rectification of that decision was rejected by ORG on DATE .

Proceedings were restarted before ORG , which decided on DATE to reject the applicant ’s claim for compensation . According to ORG , the applicant had contributed to the incidents in the prison and members of the security forces had had to restore discipline in the prison . The applicant ’s actions had thus severed the link of causation between the actions of the security forces and the ensuing damage .

On DATE the judgment was served on the applicant , who lodged an appeal through ORG . The latter failed to transfer the applicant ’s appeal to ORG within the statutory time - limit . Following the applicant ’s challenge and , having noted this administrative error , ORG granted the appeal on DATE . In the meantime , in his observations ORG at ORG opined that the applicant ’s appeal should be dismissed . The proceedings are still pending .


CASE OF PETRI SALLINEN AND OTHERS v. FINLAND

Violation of Art. 8;Not necessary to examine under Art. 6;Not necessary to examine under Art. 13;Non-pecuniary damage -  financial award (one applicant);Finding of violation sufficient (others);Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The first applicant was born in DATE and lives in GPE . He is a member of ORG . The other CARDINAL applicants were his clients at the relevant time ( “ the client applicants ” ) .

On DATE the police conducted a search – it is not entirely clear of which premises – based on the suspicion that the first applicant 's clients X and Y ( not client applicants before the ORG ) had committed aggravated debtor 's fraud . In the course of that search X managed to destroy the original of a promissory note which the police had attempted to seize and which may have been relevant to the financial arrangements underlying the suspected offence .

At the time the first applicant 's status in the investigation had been that of a witness . On DATE the police requested him to attend for questioning in this capacity . This request was apparently cancelled before he had taken any action thereon .

A police officer in charge of the criminal investigations granted a search warrant and on DATE CARDINAL officers of ORG ( keskusrikospoliisi , centralkriminalpolisen ) , assisted by a tax inspector and an enforcement official ( ulosottomies , utmätningsman ) , searched the first applicant 's law office , flat and vehicles . This search warrant was likewise based on the suspicion that NORP and Y had committed aggravated debtor 's fraud but the first applicant was now indicated as a suspect , namely that he had aided and abetted the offences by drafting certain documents .

Under the terms of the warrant the search aimed at examining “ the documents , computers and archives of the law office ” as well as the first applicant 's flat and vehicles “ so as to investigate the share transactions by the limited liability company [ H. ] in DATE and to find material relating to those transactions ” .

During the search of his law office all of the first applicant 's client files were allegedly perused . The police also examined all floppy disks and examined his note books pertaining to his meetings with clients . In addition , the hard disks in the office computers were copied : CARDINAL were copied on the spot and CARDINAL computers , including the CARDINAL used by the first applicant himself , were seized for later disk - copying on police premises . Those computers were returned on DATE .

The first applicant 's computer also contained software for electronic mail , including his private and professional messages .

A fellow member of the Bar assisted the first applicant during part of the search .

On DATE the first applicant requested ORG ( käräjäoikeus , tingsrätten ) of GPE to revoke the seizure as being unlawful . On DATE the court nevertheless maintained it , noting that the first applicant was suspected of aiding and abetting aggravated debtor 's dishonesty .

On CARDINAL DATE ORG ( hovioikeus , hovrätten ) of ORG upheld ORG decision and on DATE ORG ( korkein oikeus , högsta domstolen ) refused the first applicant leave to appeal .

On DATE the police certified the return of CARDINAL of the CARDINAL hard disks and that they had destroyed any copies thereof . They stated however that they would retain a copy of the fourth hard disk until the lawfulness of the seizure had been finally decided or until the material could be destroyed for any other reason .

In DATE CARDINAL of the applicants ( nos . CARDINAL and CARDINAL) requested ORG to revoke the seizure of the copy of the fourth hard disk ( which contained material relating to their instructions to the first applicant ) and to order the police to compensate their costs . They argued that the seizure had been unlawful from the outset . At any rate , the copy in question was of no relevance to the pre - trial investigation concerning NORP and Y.

In its rejoinder ORG referred to ORG decision of CARDINAL DATE in which the seizure had been found lawful . Moreover , the hard disks had only been subjected to a targeted search and they were able to search information concerning only relevant companies and individuals . Only the potentially relevant client files in the law office had been perused . The search and seizure had thus not been of wholesale nature . The tax and enforcement officials who had witnessed the search had been DATE and remained DATE under a duty to keep secret any information thereby obtained .

On DATE the ORG agreed with the CARDINAL client applicants and ordered that the copy of the fourth hard disk be returned . It rejected , as not being based on law , the applicants ' claim for compensation in respect of their costs . The applicants appealed on this point , whereas the police appealed against the revocation order .

NORP In its submissions to ORG the National Bureau of Investigation listed the contents of the copied hard disk . For example , specific mention was made of what appears to have been the promissory note which the police had been looking for ( and had found ) . The submissions indicated the debtor 's and the creditor 's names as well as the amount of the debt . ORG furthermore explained that the material on the relevant hard disk had been copied to a so - called optical disk which could in any case not be returned as it also contained internal police data . The submissions by the ORG were apparently not ordered to be kept confidential .

On DATE ORG declined to examine the parties ' appeals , considering that the matter had been resolved res judicata in the first set of proceedings ending with ORG decision of CARDINAL DATE . ORG granted leave to appeal to the CARDINAL client applicants in question .

On DATE the public prosecutor charged , among others , X and Y with aggravated debtor 's dishonesty but decided to press no charges against the first applicant , having found no evidence of any crime .

On DATE ORG ruled that although a final decision had already been rendered in respect of another appellant , it did not prevent the courts from examining similar appeals filed by other parties . The case was referred back to ORG which , on DATE , revoked ORG decision on the basis that the seizure had been lawful .

The CARDINAL client applicants in question were again granted leave to appeal to ORG . On DATE it revoked the seizure in so far as it pertained to information which those applicants had given to the first applicant .

ORG found it undisputed that the copied hard disk contained information relating to the CARDINAL client applicants ' instructions to the first applicant . It had not been argued that this information was not protected by counsel 's secrecy obligation under LAW , section CARDINAL of the Code of Judicial Procedure . Nor did the information in question pertain to any suspicion that the first applicant or any one else had committed a crime .

ORG accepted that the police had been entitled by LAW , section CARDINAL of LAW ( pakkokeinolaki , tvångsmedelslagen TIME ) to seize the first applicant 's hard disk and make a copy thereof . Technical reasons and practical needs ( the fact that the police had been obliged at the time of the search to copy the whole hard disk ) did not however permit any deviation from the prohibition on seizure of privileged material . The police should therefore have returned the computer files immediately or destroyed them . The appellants were awarded reasonable compensation for their costs and expenses .

On DATE the Chief Enforcement Officer of PERSON confirmed that the copy of the hard disk had been destroyed on DATE .

On DATE the Deputy Chancellor of ORG ( valtioneuvoston apulaisoikeuskansleri , justitiekansleradjointen i statsrådet ) issued his decision in response to a petition by ORG concerning , inter alia , the alleged unlawfulness of the coercive measures against the first applicant . He found it established that the tax inspector and the enforcement official had attended the search in their respective capacity as a witness and expert . He nevertheless concluded , inter alia , that from the point of view of foreseeability of domestic law , as required by LAW , the relationship between LAW ( LAW , section CARDINAL , subsection CARDINAL ) , LAW ( LAW , section CARDINAL , subsection CARDINAL ( CARDINAL ) ) and LAW ( section CARDINAL c ) was somewhat unclear and permitted very diverging interpretations as to the extent to which privileged material could be subject to search and seizure . The Deputy Chancellor therefore requested ORG to consider whether there was a need to amend the relevant legislation .

Under LAW ( GPE the police may conduct a search , inter alia , if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds DATE imprisonment ( LAW , section CARDINAL ) . The search warrant is issued by the police themselves .

A search may also be conducted on the LOC of a person other than the one who is under reasonable ( todennäköinen , sannolik ) suspicion of having committed an offence of the aforementioned nature , provided the offence was committed on those LOC or the suspect was apprehended there or if there are very strong reasons for assuming that a search of those LOC will produce an object to be seized or other information pertaining to the offence ( LAW , section CARDINAL ) . In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in the criminal proceedings , that it may have been removed from someone by a criminal offence or that the court may order its forfeiture ( LAW , section CARDINAL ) .

A sealed letter or other private document which has been seized may only be opened by the head of investigation , by the prosecutor or by the court . In addition , only the investigators of the offence in question may examine such a document more closely . However , an expert or other person whose assistance is used in investigating the offence or who is otherwise heard in the case may examine the material , as directed by the head of investigation , by the prosecutor or by the court ( LAW , section CARDINAL) .

NORP Whenever possible , the officer in charge shall call a witness to attend the search . If deemed necessary , the officer may also seek the assistance of an expert or other person ( LAW , section CARDINAL , subsection CARDINAL ) .

The officer in charge may allow a complainant or his representative to attend a search in order to provide necessary information . The responsible officer must nonetheless ensure that a complainant or representative does not obtain any more information than necessary through the search ( LAW , DATE , subsection CARDINAL ) .

According to section CARDINAL of the Pre - trial LAW , only such evidence as may be considered relevant in the case shall be placed on record .

As regards other evidence , it is the respondent Government 's view that a police officer is under an obligation to respect the confidentiality requirement stipulated by LAW ( valtion virkamieslaki , statstjänstemannalagen CARDINAL ) .

Section CARDINAL of ORG ( esitutkintalaki , förundersökningslagen CARDINAL/CARDINAL ) stipulates that in an investigation no one 's rights shall be infringed any more than necessary for the achievement of its purpose . No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily .

Chapter CARDINAL , section CARDINAL a , of LAW provides that only such measures may be used which can be deemed justified in light of the seriousness of the offence under investigation , the importance of the investigation and the degree of interference with the rights of the suspect or other persons subject to the measures , as well as in light of any other pertinent circumstances .

According to LAW , LAW , a seizure shall be lifted as soon as it is no longer necessary . If charges have not been brought within DATE of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants .

Chapter CARDINAL , section CARDINAL , subsection CARDINAL of LAW provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in LAW , section CARDINAL , of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed . A document may nevertheless be seized if , under section CARDINAL , subsection CARDINAL of ORG , a person referred to in LAW , Article CARDINAL , of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre - trial investigation about the matter contained in the document .

Under LAW , section CARDINAL , subsection CARDINAL of the Code of Judicial Procedure counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case , unless the client consents to such testimony . Although subsection CARDINAL provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of DATE imprisonment ( or attempting or aiding and abetting such an offence ) , this exception does not extend to counsel for an accused .

Under section CARDINAL c ( CARDINAL ) of LAW ( laki asianajajista , lagen om advokater ) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity . Breach of this confidentiality obligation shall be punishable in accordance with LAW , section CARDINAL or CARDINAL , of LAW ( rikoslaki , strafflagen ) , unless the law provides for a more severe punishment on another count .

In their book “ ORG - trial investigation and coercive measures ” ( ORG pakkokeinot , GPE , DATE ) PERSON , PERSON and PERSON state ( at page CARDINAL ) that in the legal literature and in police practice a principle has been consistently followed whereby a search may not be performed in order for investigators to obtain documents that are subject to a seizure prohibition .

The Ministry of Justice appointed a ORG on ORG ( tietoverkkorikostyöryhmä , arbetsgruppen för IT brottslighet ) which also considered the question of searches and seizures of computer files and computers by the police . On DATE ORG issued a report , which was sent out for comments to various interest groups and experts . On the basis of the working group 's report and the comments given , ORG is expected to prepare a government bill .

Chapter CARDINAL , section CARDINAL , of LAW provides that at the request of a person whom the case concerns the court shall decide whether the seizure shall remain in force . A request which has been submitted to the court before its examination of the charges shall be considered within DATE from its reception by the court . The court shall provide those with an interest in the matter an opportunity to be heard , but the absence of anyone shall not preclude a decision on the issue . A decision reviewing a seizure is subject to a separate appeal .

According to section CARDINAL , subsection CARDINAL of the LAW ( perustuslaki , grundlagen GPE ) everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation , official or other person in charge of a public function be held liable for damages , as provided in more detail by an LAW . This section is equivalent to CARDINAL of the repealed LAW of DATE ( PERSON , ORG ) , as in force at the relevant time .

Until DATE , LAW , section CARDINAL of the Penal Code provided that if a search of LOC was carried out by someone lacking the authority to do so , or if someone having such authority carried it out in an unlawful manner , he or she was to be sentenced to a fine or to imprisonment for a maximum of DATE . According to Government Bill no . CARDINAL , the provision was proposed to be repealed as “ in cases where the above - mentioned act is committed by a public official in the performance of his or her official duties , LAW , section CARDINAL is applicable ” .

Chapter DATE , section CARDINAL , subsection CARDINAL of the Penal Code provides that if a public official , when acting in his office , intentionally in a manner other than that provided above in this LAW violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not petty , he shall be sentenced for violation of official duties to a fine or to imprisonment for DATE .

Chapter DATE , LAW of LAW provides that if a public official , when acting in his office , through carelessness or lack of caution , in a manner other than that referred to in LAW , violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not petty , he shall be sentenced for a negligent violation of official duties to a warning or to a fine .

According to LAW , section CARDINAL of LAW ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål CARDINAL/CARDINAL ) , an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges .

Under LAW ( vahingonkorvauslaki , skadeståndslagen CARDINAL ) proceedings may be brought against the ORG in respect of damage resulting from fault or neglect by its employees in the performance of their duties ( LAW ) .

Recommendation ( DATE ) CARDINAL of ORG to member states on the freedom of exercise of the profession of lawyer provides , inter alia , as follows :

“ Principle I - General principles on the freedom of exercise of the profession of lawyer

... CARDINAL . All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer - client relationship . Exceptions to this principle should be allowed only if compatible with the rule of law . ”

ORG ( Finlands Advokatförbund , LOC ) noted that the case did not meet a single criterion for the lawful execution of search and seizure as set out in the case law of ORG . Further , under NORP legislation , there are no provisions affording a legal remedy against a search warrant issued by the police . A search may be carried out on the premises of a person to whom a confidentiality obligation applies provided that the object to be seized may be found there . The threshold for the execution of a search is low in the extreme and the execution of a search in and of itself interferes with the right and obligation of secrecy of a person to whom a confidentiality obligation applies .

The wording of the instructions pertaining to the search in the present case was rather expansive and no attempt was made to attend to the advocate 's confidentiality obligation . Disregard of this obligation is particularly manifest in the participation of a tax inspector and an enforcement official in the search . The confidentiality obligation of advocates was also disregarded in respect of the seizures executed in connection with the search . The hard disks of the law office 's computers , floppy disks and several notebooks pertaining to meetings with clients were seized in connection with the latter search , in addition to which data on the office secretary 's computer was copied . Subsequent to the seizure , the material was not e.g. sealed and consigned for safekeeping until a court could rule on the lawfulness of the seizure .

NORP In terms of the confidentiality obligation , the possibility of submitting the issue of a seizure to the court for review as provided for in LAW had in this case remained a dead letter . All the information deemed confidential by the advocate and his clients had been disclosed prior to the court proceedings , as the authorities examined the seized material without waiting for a court to rule on the issue .

The ORG further maintained that the police could have availed themselves of the procedure provided for in LAW , wherein the searched material would have been examined by an outside advocate who would have determined which material was related to the pre - trial investigation being conducted by the police and which was not . This procedure would have allowed for the upholding of the advocate 's confidentiality obligation as well as the client 's right to confidentiality .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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 PERSON , former Representative of GPE at ORG , and subsequently by their Representative , PERSON .

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

Since DATE the applicant has been working as a special investigator for important cases at ORG .

On DATE ORG of ORG started an investigation into a case concerning customs and financial fraud involving a group of companies which were allegedly affiliated with various high - ranking ORG officials .

On DATE the fraud case was assigned to the applicant , and from DATE he was in charge of the investigation team working on this case . The investigation involved surveillance and telephone interception ; the applicant claims that he also received instructions from his superior to conduct searches , if necessary without prior authorisation , under the extraordinary powers provided for in urgent cases .

On DATE the applicant , acting under his own authority , ordered a series of urgent searches . The searches were carried out on CARDINAL , DATE and DATE . CARDINAL suspects were arrested but both were released DATE .

On DATE the office of ORG notified ORG that “ some unlawful searches and arrests had taken place in connection with the [ fraud ] case ” and withdrew the case file from ORG .

ORG carried out an internal enquiry and concluded that there had been no abuse of authority on the part of the applicant .

The applicant alleged that certain documents disappeared from the case file as soon as ORG took over the case .

On DATE the Prosecutor General instituted criminal proceedings against the applicant on charges of abuse of official powers and ordering unlawful arrest ( Article CARDINAL § CARDINAL and LAW ) , on account of the above searches and arrests . DATE and DATE the applicant was under an obligation not to leave the city . The recognisance not to leave the city was renewed on DATE and remained in force until the date of his conviction , DATE .

On DATE the Minister of the ORG sent a letter to ORG in which he contested the charges against the applicant . He alleged that the searches were necessary and that the applicant ’s decision to proceed without prior authorisation was made in accordance with the law and was justified by the special circumstances . He also contended that a persecution of the investigators had been orchestrated by the suspects in the fraud case , through certain contacts within ORG , and that the same persons had attempted to have the fraud case file closed . The Minister of the ORG requested ORG to end the proceedings against the applicant .

On DATE the Prosecutor General discontinued criminal proceedings in the fraud case .

On DATE the applicant was indicted on charges of exceeding official powers and ordering unlawful arrest .

On DATE a newly appointed Minister of the ORG wrote to ORG restating , in substance , his predecessor ’s letter of CARDINAL DATE .

On DATE the Deputy Prosecutor General replied to the Minister of the ORG that the criminal proceedings against the applicant had been instituted lawfully and reasonably .

On DATE the criminal case against the applicant was submitted to ORG . At first ORG President assigned the case to judge GPE , but owing to the latter ’s heavy workload it was transferred to judge GPE

On DATE the President of ORG of ORG made an official inquiry about the state of proceedings against the applicant , in reply to which ORG allegedly stated “ I will lock him up ” .

On DATE ORG issued a ORG entitled “ Parliamentary Question to the Prosecutor General , PERSON , about the Circumstances surrounding the Investigation into the case concerning ORG into the GPE ” . The ORG read as follows :

“ On DATE ORG of ORG opened criminal proceedings concerning the fraudulent import of furniture into GPE through a shell [ company ] , following a finding by ORG that there had been a breach of customs rules . ... ORG started its investigation . ORG and ORG set up a joint investigation group which made important progress in investigating the facts of furniture smuggling ...

Subsequently the case file was reclaimed by ORG and the case was transferred to the special investigator for important cases at ORG office , who decided to terminate the proceedings for a lack of corpus delicti . ORG also instituted criminal proceedings against P. PERSON , the investigator of ORG who investigated the [ case of fraud ] , and charged him with having ordered searches and arrests in breach of the procedure prescribed by law , ...

To ensure a fair and objective assessment of this situation , and further to a proposal by ORG , a joint expert group was set up , in which ORG , ORG of GPE and ORG took part .

On DATE ORG of the State Duma heard the report of the joint expert group . The President of ORG , the acting Chief of ORG and the experts representing these agencies , who were all present at the meeting , expressed their disagreement with the termination of the [ fraud investigation ] , having noted that the special investigator for important cases at ORG had failed to examine a number of substantive issues ...

Having regard to the above , the [ State Duma ] requests that [ the Prosecutor General ] resumes criminal proceedings in the case concerning the smuggling of furniture into GPE ... ”

ORG did not resume the criminal proceedings requested by ORG . These proceedings were resumed DATE .

In the meantime the criminal case against the applicant had continued . On DATE ORG , composed of judge PERSON and CARDINAL lay assessors , examined the case and acquitted the applicant of all charges .

On DATE ORG of GPE granted an appeal by the public prosecutor and reversed the acquittal , on the grounds that the court ’s conclusion had been self - contradictory . It remitted the case for fresh examination by the first - instance court in a different composition .

On DATE that court , composed of PERSON as judge , and CARDINAL lay assessors , PERSON and PERSON , began to examine the case . PERSON and PERSON were subsequently replaced for unknown reasons . On DATE the hearing was adjourned on the grounds of the applicant ’s illness . On DATE the court , composed of judge GPE and CARDINAL newly appointed lay assessors , PERSON and PERSON , resumed the hearing .

During the hearing on DATE judge PERSON invited the public prosecutor to present evidence for the prosecution . The prosecutor replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted . On DATE , DATE , he challenged Ms GPE on the grounds of bias which she had allegedly shown when questioning CARDINAL of the victims . Other parties to the proceedings , including the victim in question , objected to the challenge . On DATE the lay assessors dismissed the challenge , following which the public prosecutor challenged both lay assessors . The parties to the proceedings objected to the challenge and it was dismissed . On DATE the public prosecutor filed another challenge to the lay assessors on the grounds of bias , which was also dismissed by PERSON on DATE .

On DATE both lay assessors filed a motion to withdraw from the proceedings .

On DATE the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records . The court refused this motion , on the grounds that the minutes could be accessed after their completion .

On DATE PERSON allowed the withdrawal of both lay assessors , stating as follows :

“ At the hearing the lay assessors I and D declared their withdrawal from the proceedings , on the grounds that they were unable to participate in the examination of the case because of the [ public prosecutor ’s ] biased and discourteous behaviour towards them and due to the perverse environment at the hearing , for which he is responsible and which made them ill . ”

ORG President , PERSON , then during the proceedings called PERSON to her office and asked her about the details of the proceedings , putting certain questions regarding the conduct of the trial and the decisions on the above motions .

The parties disagree on the circumstances of PERSON withdrawal from the case . According to the applicant , PERSON removed PERSON from sitting in the case on DATE , DATE after the lay assessors’ withdrawal . According to the Government , the case remained with PERSON until DATE , when it was withdrawn from her on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for DATE leave from DATE to DATE , which she filed on DATE .

On DATE the ORG President assigned the case to judge M.

On DATE ORG , composed of judge PERSON and lay assessors Mr B. and PERSON , began to examine the case . On DATE the court found the applicant guilty of having exceeded his official powers . The other charge had been dropped by the prosecutor . The applicant was sentenced to CARDINAL years’ imprisonment , suspended , with DATE probation . The court also decided that an injunction against holding office in the bodies of ORG was not necessary .

The applicant appealed against the judgment to ORG of GPE , pleading not guilty and claiming that his conviction was based on the wrong assessment of evidence and misinterpretation of LAW .

While the applicant ’s appeal was pending , on DATE Ms GPE lodged a complaint with ORG , in which she referred to certain alleged procedural irregularities in the criminal case against the applicant . Her complaint read as follows :

“ I request that the President of ORG , PERSON , be charged with a disciplinary offence for exerting unlawful pressure on me in DATE , when I was presiding in the criminal proceedings against PERSON . She demanded that I give an account on the merits of this case while its examination was underway , and that I inform her about the decisions the court was about to take ; she even called me out of the deliberations room for that purpose . [ She ] insisted on removing certain documents from the case file , forced me to forge TIME of the hearing , and also recommended that I ask the lay assessors not to turn up for the hearing . Following my refusal to bow to this unlawful pressure [ she ] removed me from the proceedings and transferred the case to another judge .

As to the particular circumstances , they were as follows .

I was appointed to examine the case against GPE and the court , acting in a bench with CARDINAL lay assessors , NORP and NORP , started its examination .

Having started the trial , the court questioned a number of victims . The public prosecutor who was representing ORG clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing . For no reason he challenged me as a judge , the lay assessors and the whole composition of the court . His motions were made in a manner that was humiliating , offensive and insulting to the court , and were clearly untrue . Soon after his challenge was rejected by the court , ORG President PERSON called me to her office .

In violation of LAW and section CARDINAL of the Law “ On the Status of a Judge in the GPE ” , ORG President demanded an explanation from me as to why the lay assessors and I were putting CARDINAL or other question to the victims in the trial and why CARDINAL or another motion by the parties was refused or accepted . In my presence ORG President had a telephone conversation with the [ First Deputy Prosecutor General ] , who had issued the indictment against GPE . PERSON informed [ the First Deputy Prosecutor General ] that the judge was being called to account with regard to what was going on in the proceedings .

Back in my office I told the lay assessors what had happened . By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor , and they therefore considered it impossible to continue to take part in the proceedings . CARDINAL of the assessors , PERSON , was seeking medical assistance due to a health problem . For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of ORG .

At the court ’s following meeting the lay assessors announced their withdrawal on the above grounds . Their written requests were given to me to be enclosed in the file , and the court adjourned for deliberations .

I was again called from the deliberations room by ORG President , PERSON . This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take . Her main point was that there should have been no mention in the ORG written requests that the reason for their withdrawal was pressure being exerted on the court . ORG President also insisted on excluding from TIME any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure . In essence , PERSON was pushing me to forge the case file . Moreover , she proposed that I ensure that the assessors did not turn up for the hearing , literally ‘ ask them not to come to the court any ORG . The aim was obvious – if the assessors [ did ] not appear the proceedings themselves [ would ] fall apart . It seemed that for some reason [ she ] did not want the case to continue to be examined in this composition . The unlawfulness of ORG President ’s actions was obvious .

I followed none of her instructions . The lay assessors’ requests were included in the file , the court allowed their withdrawal and stated that the reason for it was the pressure being applied by ORG . The hearing TIME reflected everything that happened in the proceedings .

Once I signed [ the minutes ] PERSON withdrew the case from me and transferred it to another judge without stating reasons .

I consider that such acts on the part of ORG President , PERSON , are incompatible with the status of a judge and undermine judicial authority , and are thus destructive for justice , for which she must be held liable . This is what I hereby request from ORG of GPE . ”

The applicant was not notified of this complaint . In DATE Ms GPE , furthermore , gave CARDINAL radio interview and CARDINAL newspaper interviews reiterating the above allegations and criticism .

Following this , on DATE PERSON , one of the lay assessors who had , on DATE , withdrawn from the criminal case against the applicant sent a letter to ORG which read as follows :

“ Further to the publication of an interview with judge PERSON ... I decided to write you because I participated in GPE ’s case as a lay assessor .

I entirely support everything judge PERSON said in her interview .

During the trial the [ public prosecutor ] did everything to prevent the court from hearing the case . He was rude and aggressive to the court ; in his interventions and requests he deliberately misrepresented what was going on in the proceedings , and he repeatedly filed objections to the court ’s composition . These motions were made in a humiliating , even obnoxious manner . By doing so he was exerting pressure on the court , to force it to give a judgment that was convenient to him , or , alternatively , to set the court hearing at naught .

I was appalled by that , but what was my surprise when I learned about the pressure also being exerted on judge GPE by the court President !

We , the assessors , were there when , during the interval , judge GPE received a phone call from the court President to come and see her . After some time judge GPE returned , she was upset and depressed . To our question she replied that [ the court President ] had accused her that the court was reluctant to examine the case ; that the lay assessors were asking the victims the wrong questions ; and that she had suggested that judge GPE arrange for the lay assessors not to appear at the court proceedings .

... On TIME ... both PERSON and I decided to withdraw from the proceedings .

At the start of the hearing on DATE the public prosecutor , before he was called by the court , began with a motion in which he , in essence , again degraded and insulted me by repeating [ a ] comment made by [ the victim ] outside the courtroom about me ... he did not react to the reproof by the judge .

After that ... I declared that I was withdrawing from sitting in the proceedings on the grounds of the public prosecutor ’s rude and offensive behaviour , which could not be defined as anything but pressure on the court . After that PERSON also withdrew .

Before the trial I had never met anybody [ involved in the proceedings ] : not the judge , not [ the applicant ] , not the public prosecutor , not the defence counsel ; I had no personal interest in the case . The public prosecutor ’s behaviour was therefore inexplicable and came as a shock to me .

At TIME judge PERSON was called out from the deliberations room , where the court was taking a decision . It was the court President who called her . ...

On DATE ... judge PERSON told us that the court President had shouted at her , demanding that she refrain from enclosing [ the assessors’ ] withdrawal requests in the file and not refer in the court ’s decision to the reason for the withdrawal .

PERSON and I were shocked by what was going on . First it was the public prosecutor who put pressure on us at the hearing , and then it turned out that the [ court President ] joined in .

What a surprise it was when the [ court ’s Deputy President ] came into the deliberations room and started trying to persuade me and PERSON not to comment on the public prosecutor ’s behaviour in the court decision , but to state in our requests and in the court decision that we withdrew on medical grounds . She said that they would invite me and PERSON to take part in other proceedings .

PERSON and I refused to change our requests , and after the Deputy President had left the court issued the decision [ to allow withdrawal ] which reflected what had happened .

I have been a lay assessor before , I have taken part in several other proceedings , but this was the first time that I came across such pressure being exerted on the court .

I request you to look into the above events and to take action against the [ court ’s President and her Deputy ] . ”

On DATE the other lay assessor who had withdrawn , PERSON , sent a similar letter to ORG .

Following PERSON complaint of DATE , the High Judiciary Qualification Panel appointed PERSON , a judge of ORG , to examine the allegations against PERSON , ORG President . The Government submitted a copy of an internal report prepared by PERSON and submitted to ORG , which contained the following conclusions :

– during the hearing of the criminal case against the applicant judge PERSON herself consulted PERSON , seeking advice on the conduct of the proceedings in view of the public prosecutor ’s behaviour ;

– further communications between judge PERSON and PERSON and , on another occasion , the deputy court president , took place in private and their content could not be established ;

– there was insufficient evidence that PERSON exerted pressure on judge PERSON , since both PERSON and the deputy court president denied the allegations ;

– Ms Yegorova transferred the criminal case file against the applicant to another judge on the grounds that PERSON “ was unable to conduct the court hearing , her procedural acts were inconsistent , [ she acted ] in breach of the principle of adversarial proceedings and equality of arms , she stated her legal opinion on the pending criminal case and she attempted to seek the court president ’s advice on that case , and in view of the existence of confidential reports by relevant agencies to ORG President with regard to judge GPE , in connection with the examination of GPE ’s case and other criminal cases ” .

On DATE the High Judiciary Qualification Panel reported to the President of ORG their findings concerning the complaint against PERSON . The President decided , without elaborating on the reasons , that there were no grounds for charging PERSON with a disciplinary offence .

On DATE the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against PERSON . No copy of this decision was provided to the ORG . The applicant was not informed about the enquiry conducted by ORG , or about its findings . On DATE PERSON was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary .

On DATE the High Judiciary Qualification Panel wrote a letter to both lay assessors stating that no grounds had been found to bring disciplinary proceedings against the President of ORG .

On DATE , following disciplinary proceedings against Ms GPE , the High Judiciary Qualification Panel decided that her office as a judge should be terminated on account of her statements in the interviews given in DATE .

On DATE ORG of GPE examined the applicant ’s appeal against his conviction . The court , composed of CARDINAL judges , upheld the judgment of DATE by a majority , having found that the applicant ’s conviction was lawful and wellfounded . Judge PERSON expressed a dissenting opinion stating that the applicant ’s actions had no constituent elements of a crime as provided for by LAW .

On DATE ORG sent an official enquiry to the Deputy Minister of the ORG about the applicant ’s continued employment in ORG , in spite of his conviction for abuse of powers . ORG reviewed the applicant ’s file and considered that it was not necessary to dismiss the applicant , in view of the court ’s decision to dispense with an injunction against holding office in the bodies of ORG .

On DATE the First Deputy Prosecutor General sent an official letter of warning to the Minister of the ORG . The letter referred to the generally unsatisfactory performance by ORG in investigating criminal cases and pointed out certain instances of breach of procedure . Among the latter the prosecutor ’s office indicated the “ appalling example ” of the applicant ’s continued employment in ORG after his conviction for abuse of power .

On DATE the acting First Deputy Minister of the ORG replied to the prosecutor ’s warning . In so far as it concerned the applicant , he relied on the decision by the first - instance court , upheld by ORG , to dispense with an injunction against the applicant holding office in ORG entities and informed the prosecutor ’s office that the applicant had not been dismissed .

LAW of LAW of the Russian Soviet Federative Socialist Republic , in force at the material time , provided that in urgent cases an investigating officer could exceptionally order and carry out a search without prior authorisation by the prosecutor . The prosecutor was to be notified within TIME of a search carried out under this provision .

LAW of the Russian Federation provides :

“ Acts by an official which clearly go beyond his or her authority , if they incur a substantial breach of individual rights and the legitimate interests of a person or organisation , or of state or public interests protected by law

– are punishable by a fine of MONEY or of CARDINAL times the DATE salary or other income of the convicted , or by a prohibition to hold certain official posts or to perform certain official functions for DATE , or by arrest for DATE , or by imprisonment of DATE . ”

The Code of Criminal Procedure of the Russian Federation provides :

“ CARDINAL . The case must be examined by CARDINAL and the same judge or by a court bench in one and the same composition .

If CARDINAL of the judges is no longer able to take part in the hearing he or she must be replaced by another judge , and the court hearing must restart from the beginning . ”

Law no . ORG of DATE “ On ORG in the NORP Federation ” provides :

“ CARDINAL . The ORG President , at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by LAW , carries out the following functions :

( CARDINAL ) organises the court ’s work ;

( CARDINAL ) NORP distributes duties between the President ’s deputies and , in accordance with the procedure provided for by ORG , between the judges ; ... ”

The instruction on ORG internal document management in force at the material time provided that the court President was responsible for the court ’s clerical and office management .

As a matter of common practice , a court President distributes cases lodged with a court between the judges of that court .

... the city courts of [ GPE and GPE ] , ... have jurisdiction in criminal proceedings concerning :

( CARDINAL ) NORP criminal offences provided for by Articles ... , CARDINAL - CARDINAL , ... of LAW of GPE ;

( CARDINAL ) NORP criminal cases remitted to these courts in accordance with Articles DATE and CARDINAL of this Code ;

ORG of GPE has jurisdiction in the criminal cases indicated in LAW and other criminal cases that fall under its jurisdiction in accordance with LAW and LAW . ”

“ A criminal case against a member of ORG , a deputy of ORG or a judge of a federal court is to be examined by ORG of GPE at their request , to be submitted before the beginning of the court examination in their case . ”

“ A criminal case must be examined by a court in the place where the crime has been committed , except for the cases provided for by LAW . ”

“ CARDINAL . When the judge who decides on the scheduling of a hearing establishes that the case ... falls outside the jurisdiction of that court , he or she shall issue an order to remit the case according to jurisdiction .

“ CARDINAL . Territorial jurisdiction in a criminal case may be changed :

( CARDINAL ) at a party ’s request – if it has successfully challenged , in accordance with LAW , the entire court composition of the relevant court .

Territorial jurisdiction of a criminal case may only be changed before the beginning of the court examination . ”

“ CARDINAL . A challenge brought against several judges or the whole court composition must be decided upon by the same court in its entire composition , by a majority vote .

If the challenge to a judge , several judges or the whole court composition is granted the criminal case , the request or the complaint must be transferred to another judge or court composition in accordance with the procedure provided for by this LAW . ”

The grounds for quashing of a judicial decision [ by the cassation instance ] are , in any event , as follows :

( CARDINAL ) NORP judgment held by an unlawful court composition ... ”

“ The court examining the case as a cassation instance may quash the [ first instance ] conviction and terminate the proceedings if there exist grounds provided for by this Code . ”

“ CARDINAL . Criminal case is remitted for a fresh examination :

( CARDINAL ) to the same court that held the [ first instance ] judgment but in a different composition ... ”