Violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - national proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE ORG found the applicant guilty of drug trafficking involving QUANTITY of hashish and sentenced him to DATE imprisonment .

In a judgment of DATE ORG found the applicant guilty of a drug offence , following the discovery in his garage of CARDINAL bags containing QUANTITY of cannabis , and sentenced him to DATE imprisonment , in addition ordering his exclusion from NORP territory for DATE . It gave the following reasons for its decision :

“ We have a young man returning from GPE in DATE , with no job or verifiable income , who , having tried his hand in turn at property , trading in linen , crockery , air - conditioners , foie gras and , incidentally , counterfeit CARDINAL notes ( ? ? ) , found himself , somehow or other – he repeatedly tried to explain this with a story about profitable ' air - conditioners ' DATE in possession of a considerable pile of money , MONEY , at his home ( see ORG ) , scattered about and hidden in the unlikeliest places ( such as the maintenance hatch under the bath ! ! ) .

Even better , the arrest on DATE in the morning resulted in the seizure , without a warrant , of CARDINAL bundles of drugs , consisting of QUANTITY of prohibited substances , laid out , packed and wrapped in a manner bearing little resemblance to a craft industry .

Nobody claimed them DATE which CARDINAL of H. or PERSON turned the other one in ? ?

What is more , PERSON was in possession of QUANTITY of the same kind of resin ( see the expert report , DCARDINAL ) and MONEY in cash , stored in the glovebox of his car .

The circumstances outlined above amount to CARDINAL pieces of evidence against PERSON , which elicited nothing more than vague and inconsistent explanations in which he accused PERSON of being the delivery man , claimed ignorance as to the nature of the CARDINAL bundles ( ! ! ! ) , and referred again and again , as a kind of ' judicial trump card ' , to the money - spinning air - conditioners ( repeatedly ) and the savings of his late brother ( A. ) .

A third piece of evidence results from shadowing , tracking and telephone - tapping .

Treading stealthily like a NORP and behaving like a secret agent , before and after DATE , PERSON moved about a good deal , showing a preference for TIME , twisting and turning constantly , keeping a sharp lookout where necessary , and receiving his ' contacts '' vehicles in his garage ( albeit for very short amounts of time ) ... What was going on ? ?

What was going on , his counsel argued , as , subsequently , did counsel for NORP and NORP , was indeed ' trading ' , but in linen , foie gras ( in ' blocks ' ) , counterfeit banknotes , trousers , but never hashish .

This cunning strategy was supported by the statements of PERSON ( DCARDINAL ) , and indeed those of ORG or C.

Furthermore , and above all , no air - conditioners , foie gras or trousers were seized on DATE ; what was physically observed in this case was hashish , and a sizeable quantity of it .

Accordingly , PERSON , who already has several convictions , having , in particular , been sentenced to DATE imprisonment in DATE for a drug offence , can not lay claim to any indulgence , even in view of the particularly well - organised nature of his activities ( the court has left aside the pagers , mobile phones , etc . used for ' contacts ' ) . The public prosecutor , for his part , sought an DATE term of imprisonment and the court endorses and imposes that sentence , which is still mild when it is borne in mind that the defendant is classified in law as a recidivist . A proportionate fine and continued detention , in addition , in order to ensure that the sentence is executed and that the offence is not repeated . Lastly , as an additional penalty , exclusion from national territory for DATE . ”

ORG also sentenced the applicant 's mother and his partner , PERSON , to DATE imprisonment , suspended , for handling the proceeds of drug offences .

In a judgment of DATE ORG increased the applicant 's sentence to DATE imprisonment and upheld the exclusion order . It observed , among other things :

“ By LAW , a person is deemed to be a recidivist where , having already been convicted with final effect of an offence punishable by DATE imprisonment , he commits a further offence carrying a similar sentence within DATE of the expiry of the limitation period for enforcing the previous sentence .

That was so in the case of ORG , who , having been sentenced by ORG on DATE , after adversarial proceedings , to DATE imprisonment for offences under the regulations on buying , possessing , using , trading in and transporting drugs , punishable under LAW , paragraph CARDINAL , of LAW , as applicable at the time , by a term of DATE imprisonment , and having completed that sentence on DATE , committed the offences with which he was charged , which likewise carry a sentence of DATE imprisonment pursuant to LAW , in the course of DATE and DATE .

In convicting him on the charges set out in the order committing him for trial , the court below made a correct analysis of the facts of the case and drew the necessary legal inferences . Its judgment must therefore be upheld as to the finding of guilt .

Despite having been convicted on DATE of drug offences relating to the possession of QUANTITY of cannabis resin , PERSON , with no declared income since DATE , had no hesitation in committing further drug offences , making a substantial profit which he shared with his family and amassing a sizeable fortune which he invested shrewdly .

A total of QUANTITY of cannabis resin – a substance extremely harmful to the health of young people , in particular those living in poverty , who are exposed to the illegal and dangerous activities of unscrupulous individuals – was found at his home . He had asked PERSON , who had sought his help in finding a decent job , to sell hashish for him .

Accordingly , both the nature and the seriousness of the accused 's conduct , reflecting a deep - seated inclination to crime for financial gain regardless of the risk to other people 's lives and occurring at a time when he was liable to be classified as a recidivist , dictate that he should be sentenced to DATE imprisonment ... ”

NORP The applicant appealed on points of law , arguing , among other things , that his classification in law as a recidivist contravened the rule governing the application of successive criminal laws , ORG having retrospectively applied the harsher provisions of the new legislation .

In a judgment of CARDINAL DATE ORG dismissed his appeal . It held that ORG had been justified in deeming him to be a recidivist , on the following grounds :

“ ... where a law introduces new rules on recidivism , for them to apply immediately it is sufficient for the offence constituting the second component of recidivism – which the offender may choose to commit or not to commit DATE to have been committed after the law 's entry into force . ”

The applicant is due for release on DATE .

The relevant provisions of LAW , as in force before DATE , were as follows :

“ Anyone who , having been sentenced for a serious crime [ crime ] to a term of imprisonment DATE , commits , within DATE of the expiry of that sentence or of the time allowed for its enforcement , a further serious crime or other major offence [ délit ] punishable by imprisonment shall be sentenced to at least the statutory maximum penalty for that offence and , at most , twice that penalty . ”

“ The same shall apply to persons who have been sentenced for a major offence [ délit ] to a term of imprisonment DATE and , within DATE , are found guilty of the same offence or of a serious crime punishable by imprisonment .

Anyone who , having previously been sentenced to a shorter term of imprisonment , commits the same offence within the same period shall be sentenced to a term of imprisonment of at least twice the previous sentence and , at most , twice the statutory maximum sentence .

Article CARDINAL - CARDINAL of the new Criminal Code , which came into force on DATE , provides :

“ Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by DATE imprisonment commits , within DATE of the expiry of the previous sentence or of the time allowed for its enforcement , a further offence carrying a similar sentence , the maximum sentence and fine that may be imposed shall be doubled .

Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by DATE imprisonment commits , within DATE of the expiry of the previous sentence or of the time allowed for its enforcement , a further offence carrying a prison sentence of DATE but DATE , the maximum sentence and fine that may be imposed shall be doubled . ”

DATE ORG held :

“ ... the increase in the sentence in the event of recidivism amounts to an additional penalty not for the first offence but for the second , which the offender may choose to commit or not to commit . Accordingly , new legislation may , without having retrospective effect , lay down the penalties that may be imposed in future for offences committed while it is in force ; the offender can not request the application of the penalties under the previous legislation for an offence committed since the new legislation has been in force , his status as a recidivist being determined by the new legislation . ” ( PERSON . crim . , CARDINAL DATE , PERSON )

That position has been reiterated in subsequent judgments of ORG ( PERSON . crim . DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ) .

During the passage through ORG of a bill amending the general provisions of LAW , the rapporteur for the ORG stated , among other things ( ORG no . CARDINAL , appended to the record of the sitting of DATE ) :

“ Article CARDINAL - CARDINAL

Recidivism entailing a serious crime or other major offence punishable by DATE imprisonment and a further offence carrying a sentence of DATE or DATE

The increased severity of the rules on recidivism applicable where the second offence is punishable by DATE imprisonment lies in the extension of the ' probationary period ' ( DATE ) within which a convicted person may be deemed to be a recidivist . If the second offence is punishable by a prison sentence of DATE , the rules on recidivism apply only if the ' relapse ' occurs within DATE . In both cases , the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism .

The existing rules on the subject derive from a law of DATE and are set out in LAW . They provide for a conception of recidivism that is general in scope but limited in time ( the probationary period being DATE ) where a person who , having been sentenced for a serious crime to a penalty exceeding DATE imprisonment ( i.e. DATE and life ) , is prosecuted for a further serious crime or other major offence punishable by imprisonment . In such cases the sentence is increased to at least the statutory maximum penalty for the second offence and , at most , twice that penalty ... ”

Article CARDINAL of the Code of Criminal Procedure , on criminal records , provides , inter alia :

“ ... The following shall be removed from a person 's criminal record : entries concerning convictions that have been expunged as a result of an amnesty or of automatic or judicial rehabilitation , or amended in accordance with a decision to rectify the criminal record . The same shall apply , save in the case of convictions for crimes not subject to limitation , to entries concerning convictions dating back DATE which have not been followed by a further conviction for a serious crime or other major offence .

Entries concerning the following shall also be removed from the criminal record :

( CARDINAL ) NORP personal bankruptcy orders or disqualifications provided for in CARDINAL of the aforementioned LAW no . CARDINAL of DATE where such measures are expunged by means of a judgment terminating the proceedings on account of the payment of outstanding debts , by means of rehabilitation , or upon the expiry of DATE from the date on which the orders in question became final ; and also orders for the liquidation of a natural person 's assets , upon the expiry of DATE from the date on which the orders in question became final , or after the delivery of a judgment rehabilitating the person concerned .

However , if the personal bankruptcy order or disqualification is valid for DATE , an entry concerning these measures shall remain in the criminal record for the same period ;

( CARDINAL ) disciplinary decisions expunged as a result of rehabilitation ;

( CARDINAL ) sentences which are wholly or partly suspended , with or without probation , upon the expiry of the periods laid down in ORG CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW , calculated from the date on which the sentences are to be deemed void ;

( CARDINAL ) NORP discharges , upon the expiry of a DATE period starting on the date on which the conviction became final ;

( CARDINAL ) convictions for petty offences [ contraventions ] , upon the expiry of a DATE period starting on the date on which the convictions became final ; this period shall be increased to DATE where repetition of the offence in question constitutes a more serious offence [ délit ] ;

( CARDINAL ) measures carried out under the agreed penalty scheme , upon the expiry of DATE from the date on which it is certified that the measure has been carried out , if during that period the person has not been convicted of a serious crime or other major offence or carried out a further measure under the agreed penalty scheme ; and

( CARDINAL ) measures ordered in accordance with Articles CARDINAL , DATE , CARDINAL , DATE , QUANTITY of the aforementioned Ordinance no . CARDINAL of DATE , upon the expiry of DATE from the date on which the measure was ordered , if during that period the person has not received a sentence for a serious crime or other major offence , or carried out a measure under the agreed penalty scheme , or been the subject of a further measure ordered in accordance with the aforementioned provisions of the GPE . ”


The applicant was born in DATE and lives in Bjugn .

On DATE the head of the social services in the municipality of Bjugn contacted the local police after having received reports from PERSON kindergarten indicating that the applicant , who was an assistant at the kindergarten at the time , had sexually abused CARDINAL or more of the children there . Subsequently , a criminal investigation was carried out . On DATE the applicant was interrogated . He denied the accusations . On the same date he was suspended from his post .

On DATE the applicant was formally indicted with respect to various offences under LAW , CARDINAL and CARDINAL of LAW ( straffeloven ) concerning the sexual abuse of minors , allegedly committed against CARDINAL children at the kindergarten , and under LAW with respect to one of them . On DATE the indictment was extended to CARDINAL children at the kindergarten and , on DATE , a new indictment was issued involving CARDINAL children . On DATE the indictment was again extended to offences of sexual abuse of CARDINAL named children and an unknown number of children at the kindergarten .

On DATE , CARDINAL further persons were indicted for sexual offences in relation to the same matter : the applicant 's wife , CARDINAL employees at the kindergarten and the local sheriff .

As a result of the above , the applicant spent CARDINAL periods in pre - trial detention – respectively CARDINAL , DATE and DATE – a total of DATE . In the course of the investigations , CARDINAL searches were carried out at the applicant 's home .

On DATE the applicant was formally indicted under Articles CARDINAL , CARDINAL and CARDINAL of the Penal Code for having allegedly committed various offences of sexual abuse against CARDINAL kindergarten children .

On DATE the charges against the CARDINAL other accused persons were dropped . They later claimed compensation under ORG CARDINAL to CARDINAL of LAW ( straffeprosessloven ) . The local sheriff obtained a settlement of ORG CARDINAL in compensation for non - pecuniary damage ; the CARDINAL others obtained a court order requiring the ORG to pay ORG CARDINAL to each of them . The applicant 's wife obtained , in addition , ORG CARDINAL in compensation for pecuniary damage .

The applicant 's trial took place before FAC ( lagmannsrett ) , sitting with CARDINAL judges and a jury , over a period of DATE , DATE and DATE . After the jury had answered all of the CARDINAL questions relating to the indictment in the negative , the applicant was acquitted by a judgment of DATE .

The applicant subsequently filed a petition with ORG , claiming compensation under ORG CARDINAL to CARDINAL of LAW .

ORG , sitting with CARDINAL of the judges who had taken part in the trial and a new judge ( replacing the judge who had presided at the trial , disqualified from sitting in the compensation case ) , held an oral hearing CARDINAL DATE .

In its decision of CARDINAL DATE , ORG ordered the ORG to award him the entirety of his claim of ORG CARDINAL in compensation for pecuniary damage under Article CARDINAL , according to which provision such “ compensation for special or disproportionate damage as a consequence of the criminal prosecution ” could be awarded as was “ reasonable in the circumstances ” . Moreover , under Article CARDINAL , cf . CARDINAL , ORG awarded him ORG CARDINAL in compensation for non - pecuniary damage suffered as a result of the prosecution . However , on the basis of an assessment , the relevant parts of which are quoted in ORG ( PERSON ) decision cited below ( paragraph CARDINAL ) , ORG rejected his claim for supplementary compensation under LAW , it not having been shown probable that he did not commit the act which was the basis of the charge . ORG referred to the evidence presented during the trial hearing DATE and DATE and during the oral hearing in the compensation case in DATE .

The applicant appealed against ORG decision of CARDINAL DATE to ORG of ORG ( Høyesteretts kjæremålsutvalg ) . He complained that ORG decision contained assumptions of criminal liability and that , consequently , it violated LAW . He requested ORG to quash ORG decision .

By a decision of CARDINAL DATE , notified to the applicant by mail on DATE , ORG , considering that the applicant 's appeal concerned ORG application of LAW , rejected the appeal .

In its reasoning , ORG first recalled that in its decision reported in GPE DATE , p. CARDINAL , ORG had stated ( at p. CARDINAL ) :

“ It is the accused who carries the burden of proof that he did not carry out the act . It is sufficient that it is more probable than not . I do not agree with counsel for the defence that the accused has discharged the burden of proof where both alternatives , on the basis of the available evidence , appear to be equally likely . In this assessment the ordinary standards of evidence shall apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the possibilities for the accused to show that he did not carry out the act . Given the manner in which the provision has been formulated the situation may easily arise that an acquittal is not sufficient to justify a compensation claim when the accused is unable to discharge this burden of proof . I should like to stress that the refusal of a compensation claim does not entail that the previous acquittal is undermined or that the acquittal is open to doubt . The compensation case must be determined on an independent basis and the rules on evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims . The legislator has as a starting point opted for a solution whereby the financial burden caused by the institution of criminal proceedings , which are discontinued or which end with an acquittal , must be borne by the accused unless he is able to show that it is probable that he did not commit the act . ”

The Appeals Selection Committee further recalled that in the above case ORG considered the relationship between the conditions for compensation under LAW and the case - law of ORG , in particular the GPE v. GPE judgment of CARDINAL DATE ( Series A no . CARDINAL-A ) . ORG concluded that the rules in LAW were not , as such , contrary to LAW . ORG affirmed that it would base itself on this view in its assessment of the present case . It further recalled that , in the DATE decision , ORG had expressed the following view on the PERSON judgment :

“ [ In this case ] decisive importance was attached to the reasoning in the particular case for rejecting the compensation claim . If in the reasoning for refusing compensation doubt is voiced as to whether the acquittal was correct or if the reasoning contains assumptions about criminal liability , then the relationship to LAW would be problematic . ”

Then ORG went on to state :

“ As pointed out by the prosecution in its reply to the appeal , ORG had to justify why it considered that the conditions for making an award for compensation under LAW had not been fulfilled . ORG must determine whether the reasoning of ORG conflicted with the requirements of LAW .

The ORG refers to the fact that the reasoning must be formulated in the light of the conditions for compensation as mentioned above . It is further clear that ORG ... was aware of the rules in LAW , ORG PERSON judgment and the DATE decision of ORG . In its decision concerning compensation under LAW , ORG , after having quoted the provision , specifies the subject - matter of the case as follows .

' Following the High Court 's acquittal , Mr PERSON is not guilty under the criminal law . This question has not been submitted to ORG which will not deal with it . The present case is a compensation claim brought by PERSON . The question is whether he , in view of the rules of evidence under the law of compensation , is able to show that he did not carry out the acts which were referred to in the indictment . '

The ORG points to the fact that here the High Court clearly specifies that Mr ORG is not liable under the criminal law . Furthermore it is specified that the compensation claim must be determined on the basis of the rules of evidence applying under the law on compensation . ORG then concludes , against the background of the evidence adduced , that considering the case as a whole , PERSON PERSON ' has not shown it to be probable that he did not carry out the acts which grounded the charge . '

Moreover , in the concluding remarks , it is stated :

' When ORG , considering the case as a whole , reached the conclusion that Mr PERSON had not discharged his burden of proof , account was also taken of the fact that the requirements as to the strength of the evidence must to a certain extent be adapted to the possibility which he has for showing that he [ Mr NORP ] did not commit the acts .... Nevertheless , in the assessment , it is the usual rules on evidence which should apply .... '

In support of his submission that ORG reasoning contains assumptions about criminal liability , he points to certain intermediate passages in which the ORG states :

' Medical experts have in the light of their investigations reached conclusions which in practice imply a very high degree of probability that the CARDINAL children referred to in the indictment have been exposed to sexual abuse . The medical experts have discounted the possibility of self - inflicted injuries , that the injuries are caused by pathological conditions or conditions at variance from the norm . As pointed out by the prosecution , the children themselves gave statements to their parents , during the judicial examinations and to a psychologist , about abuse by PERSON . Through the video recording of the judicial examinations of the children , the ORG has been able to see how the children expressed themselves .

The ORG has been able to apprise itself of how the children during the examinations changed their behaviour when presented with questions of sexual abuse .

Nor does the following fact make it less likely that he carried out the acts for which he was charged : the children markedly changed their behaviour , inter alia , in the form of bedwetting , refusing or expressing fear about going to the kindergarten , several children had a sore crotch , sore abdomen and , on CARDINAL or several occasions , blood on their underwear , circumstances which essentially occurred after PERSON NORP started to work at the kindergarten and which diminished after his departure .

The High Court further finds it established that at the kindergarten it was possible to perpetrate such abuse without it being revealed either from a technical or practical point of view .

In the aftermath , several of the employees at the kindergarten have pointed to a few surprising situations : for instance the governor 's eyewitness evidence , her perception of the situation , when she came over to Mr NORP while he was washing a child in the crotch under peculiar circumstances .

ORG does not find any reason to go further into the discussion about the possibility of paedophilia . It is not only the so - called real paedophiles who commit abuse against children . Nor can a diagnosis which excludes paedophilia be deemed accurate , or notional paedophilia be defined precisely . '

Having regard to the fact that the High Court clearly specified that its assessment was confined to the compensation case which was to be determined on the basis of the rules of evidence applying in such cases , ORG finds that ORG s reasoning does not go further than is necessary to carry out a careful examination of the compensation claim and that it does not entail any infringement of the presumption of innocence laid down in the Convention . The ORG once more emphasises that a refusal to award compensation under LAW does not imply that the previous acquittal is being undermined .

In the light of the foregoing , the appeal must be rejected . ”

NORP Under the NORP jury system , when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion , and no records are kept which could disclose that a negative answer as to the applicant 's guilt was not unanimous . The criminal system knows CARDINAL conclusions in a criminal case – guilt or acquittal ( see Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW ) . There is no third alternative , which was known in some other NORP countries , where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt .

Articles CARDINAL to CARDINAL of LAW provide for compensation where a person has been acquitted , or the prosecution discontinued . The provisions read as follows :

“ Article CARDINAL : If a person charged is acquitted or the prosecution against him is discontinued , he may claim compensation from the ORG for any damage that he has suffered through the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge . If a sentence of imprisonment or other custodial sanction has already been served , any damage resulting from this shall be compensated without regard to what has been shown to be probable .

Compensation shall not be awarded when the person charged , by making a confession or otherwise , has wilfully instigated the prosecution or the conviction .

If he has otherwise contributed to the damage by negligence , the compensation may be reduced or dispensed with entirely .

Article CARDINAL : Even if the conditions prescribed in Article CARDINAL are not fulfilled , the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal prosecution whenever this appears to be reasonable in the circumstances .

Article CARDINAL : If the conditions relating to compensation prescribed in ORG CARDINAL or CARDINAL are fulfilled , the court may , when special reasons so indicate , award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution . ”

In addition , there are certain formal conditions set out in Article CARDINAL for the submission and examination of a compensation claim made under ORG CARDINAL to CARDINAL :

“ Any claim for compensation or redress must be submitted not DATE after the person charged has been informed of the decision that finally concludes the case . The provisions of LAW , first paragraph , shall apply correspondingly .

If the case has been concluded without any judicial trial of the evidence relating to the issue of guilt , the claim shall be submitted to a court of summary jurisdiction .

Otherwise the claim shall be submitted to the court that shall conduct or has last conducted any such trial . If the claim is submitted to ORG or ORG , but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing , ORG shall also decide the question of compensation . On the hearing of the claim the court shall as far as possible sit with the same judges who decided the criminal case . In ORG lay judges or the selected jurors who join the court pursuant to LAW shall not take part unless the decision is made at the same court sitting as that at which judgement is pronounced in the case . ”

Compensation after acquittal or a discontinued prosecution is not automatic and is not granted unless the conditions in the above - cited ORG are met .

When compensation is granted to persons considered innocent as they have been acquitted or the prosecution against them has been discontinued , Articles CARDINAL and CARDINAL are the general provisions and , de facto , the main provisions providing for compensation . In the present case the applicant was awarded compensation both under ORG CARDINAL and CARDINAL .

In addition the applicant requested compensation under the special provisions of LAW , under which the ORG may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities . The liability of the ORG to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act of which he or she was charged . In the assessment of the latter , none of the other constitutive elements of a criminal offence , such as criminal intent , is in issue .

According to the case - law of ORG , the evidentiary standard applying with respect to liability to pay compensation under LAW differs from that applying to criminal liability . Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the incriminated act , in compensation proceedings it is for the claimant to show that , on the balance of probabilities , it was PERCENT probable that he or she did not carry out the act grounding the charge . The requirement of proof in compensation cases may nevertheless be adjusted ( i.e. to PERCENT ) in the light of the claimant 's ability to adduce evidence , especially where a long time has elapsed since the alleged criminal act . The competent court has to make a new assessment , independently of the acquittal , of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge .

It is not a requirement for obtaining compensation that the acquitted claimant adduce new evidence . The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion .

In DATE ORG ) made a recommendation to ORG that ORG CARDINAL to CARDINAL of LAW be amended in a number of respects , including the abolition of the condition whereby the claimant must prove that on the balance of probabilities he or she did not carry out the act giving rise to the charge . Nevertheless , the ORG was of the view that the provisions in force are not inconsistent with GPE 's obligations under LAW , as interpreted by ORG in its case - law ( see PERSON GPE ORG ) , PERSON i anledning straffeforfølgning ( Compensation in connection with ORG ) , DATE : CARDINAL , pp . CARDINAL , DATE , CARDINAL ) . On DATE a Government PERSON was presented to ORG ( Ot.prp.nr.CARDINAL , DATE ) , proposing inter alia the repeal of this condition .


CASE OF PRIDATCHENKO AND OTHERS v. RUSSIA

Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov);Non-pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov, Mr Sychev)

At the time of the described events Mr PERSON ( born in DATE ) , PERSON ( born in DATE ) , and Mr PERSON ( born in DATE ) were active military officers . Mr PERSON ( born in DATE ) was a retired military officer . On different dates they sued their actual or former employers , respective military units , in courts . The applicants claimed payment of their salaries , various service - related benefits due to them , provision of free housing , compensation of travel expenses , compensation of damages , etc . In all cases the courts ruled in their favour ( at least in part of their claims ) making monetary awards . However , for some time the judgments in their favour remained unenforced .

On DATE the ORG granted in part the applicant 's claims concerning free housing due to him under the military service contract . The court also awarded the applicant MONEY ( RUR ) for legal costs . That judgment was not appealed against and became final on DATE .

On DATE the ORG granted the applicant 's claims concerning the amount of compensation of his travel expenses awarding him arrears in the amount of ORG , plus RUR CARDINAL for legal costs . That judgment was not appealed against and became final on DATE .

On DATE the ORG at the applicant 's request held unlawful the refusal to dismiss the applicant from military service and awarded him RUR CARDINAL for legal costs . That judgment was not appealed against and became final on DATE .

On DATE the court issued a writ of execution on the basis of the judgment of DATE . The applicant forwarded it with accompanying documents to the ORG treasury office of LOC . On DATE the writ was returned to the applicant unexecuted . The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt . The applicant was advised to address the writ of execution to the head office of ORG in GPE , which he did on DATE . However , the judgment remained unexecuted .

On DATE the court issued CARDINAL writs of execution on the basis of the judgments of DATE and DATE ( concerning the legal costs awarded to the applicant ) . The applicant forwarded them with accompanying documents to the ORG treasury office of LOC . On DATE the treasury office returned the unexecuted writs to the applicant referring to the lack of funds on the debtor 's account . The applicant was advised to address the writs to the head office of ORG , which he did on DATE . However , the writs remained unexecuted .

On DATE ORG allocated from the ORG budget to ORG in the applicant 's name with reference to the writ of execution issued on DATE on the basis of the judgment of CARDINAL DATE .

On DATE ORG allocated from the ORG budget to ORG CARDINAL,CARDINAL in the applicant 's name with reference to the writ of execution issued on DATE on the basis of the judgment of DATE .

According to the applicant , the aforementioned amounts were transferred to his account on DATE . He submitted copies of banking receipts as evidence in that respect .

On DATE ORG of LOC granted the claims awarding him RUR CARDINAL,CARDINAL of salary arrears . The judgment was not appealed against and became final on DATE .

On DATE the court issued a writ of execution . The applicant sent it to the bailiff 's office . On DATE the bailiff 's office returned the unexecuted writ to the applicant and advised him to forward it to ORG of the ORG treasury .

On DATE the forenamed branch of the ORG treasury returned the unexecuted writ to the applicant and explained that it was not responsible for financial obligations of the debtor military unit , apparently in accordance with a territorial jurisdiction principle .

It appears that the judgment of ORG of LOC of DATE has not yet been executed .

On DATE ORG by the final decision awarded the applicant LAW for non - pecuniary damages caused by the refusal to grant the applicant annual leave .

On DATE the court issued a writ of execution on the basis of the judgment of DATE . The applicant forwarded it with accompanying documents to the treasury office of GPE . On DATE the writ was returned to the applicant unexecuted . The Belogorsk town treasury office advised the applicant that it was not competent to deal with such requests .

On an unspecified date in DATE the applicant sued his military unit for the refusal to send him for a medical examination , whereas his state of health was deteriorating . He claimed non - pecuniary damages in that respect . On DATE FAC granted the applicant 's claims awarding him RUR CARDINAL,CARDINAL for non - pecuniary damages , plus ORG for legal costs . The judgment was not appealed against and became final on DATE . On DATE the court issued a writ of execution on the basis of the judgment of DATE .

On an unspecified date in DATE the applicant sent both the writs of CARDINAL DATE and DATE to the local bailiff 's office and to the town treasury office . On DATE the Belogorsk town treasury office paid the applicant RUR CARDINAL,CARDINAL on account of the judgment of DATE . On the same date they informed the applicant that the debtor had no money for paying off the rest of the judgment debt ; the applicant was advised to address himself to the head office of ORG . On DATE the bailiff 's office returned both writs unexecuted and advised the applicant to forward them to the treasury office .

On an unspecified date in DATE the judgments of DATE and DATE were enforced in full .

On DATE the ORG granted the applicant 's claims concerning compensation of his travel expenses , and awarded him arrears in the amount of ORG . It appears that the judgment was not appealed against and became final .

NORP However , for some time the judgment of DATE remained unexecuted . Referring to that fact the applicant brought proceedings requesting indexation of the judicial award due to him .

On DATE the ORG granted the applicant 's claims and awarded him damages caused by non - enforcement of the judgment of CARDINAL DATE in the amount of ORG and RUR CARDINAL for legal costs . That judgment was not appealed against and became final on DATE .

On DATE a writ of execution was issued . The applicant forwarded it with accompanying documents to the ORG treasury office of GPE . On DATE the writ was returned to the applicant unexecuted . The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt . The applicant was advised to send the writ of execution to the head office of ORG , which he did on DATE . However , the judgment of CARDINAL DATE remained unexecuted .

On DATE the judgment of CARDINAL DATE was enforced in full . The applicant informed the ORG about this fact ; however , he maintained his complaints about the non - enforcement of the judgment of DATE .

On DATE ORG allocated from the ORG budget to ORG CARDINAL,CARDINAL.CARDINAL in the applicant 's name with reference to the writ of execution of DATE relating to the judgment of CARDINAL DATE .

According to the applicant , the aforementioned amount was transferred to his bank account on DATE . He submitted a copy of a banking receipt as evidence in that respect .

The Russian Law on Enforcement Proceedings ( no . CARDINAL-ФЗ of DATE ) designates the court bailiffs ' service as the authority charged with enforcement of court decisions ( LAW ) . Court judgments can also be executed by tax authorities , banks , financial institutions , other organisations , ORG officials and individuals – all of them are not considered to be the enforcement authorities ( LAW ) .

Section CARDINAL of the Law on Federal Budget for DATE ( no . CARDINAL of DATE ) provided that writs of execution issued against the treasury of GPE were to be sent for execution to ORG of GPE and were to be executed in accordance with the procedure established by ORG . A similar provision was included in LAW of ORG DATE . However , LAW of ORG DATE ( no . CARDINAL of DATE ) established , in addition to the similar requirement that writs of execution were to be submitted to ORG , that the court bailiffs could not enforce judgments against GPE .

On DATE ORG approved “ Rules on recovery of funds due on the basis of the writs of execution issued by the courts on account of monetary obligations of the recipients of federal budget funds ” ( “ the Rules ” ) . Sections CARDINAL and CARDINAL of the Rules provide that the creditor must submit the writ of execution and a copy of the judgment to the office of the federal treasury where the debtor has its current account . The federal treasury office must grant the recovery within DATE in the part not exceeding the balance of the account ( Section CARDINAL ) . Should the balance of the account be insufficient for a full recovery , the writ of execution must be returned to the creditor who can then apply to ORG to recover the outstanding amount from the debtor 's funding entity ( Section CARDINAL ) .

On DATE ORG adopted Decree no . CARDINAL which enacted the “ Rules of Execution by ORG of court judgments against the ORG of GPE arising from the claims for damages caused by unlawful acts or omissions of the ORG authorities or ORG officials ” . The procedure of execution of such judgments provided by DATE was essentially the same as provided by the Rules of DATE cited above .

On DATE ORG of the Russian Federation delivered judgment no . ГКПИ CARDINAL - CARDINAL concerning the lawfulness of certain provisions of the Rules . In particular , the court held that the Rules did not govern the enforcement of court judgments because the federal treasury was not an enforcement body , pursuant to LAW . In subsequent judgment no . ГКПИ DATE of DATE the court clarified its position as follows :

“ The contents of the contested Rules indicate that they do not govern the procedure for enforcement of court decisions , rather they establish the procedure for voluntary execution of court decisions and for recovery of funds under monetary obligations of recipients of the federal budget funds ...

The court also has regard to the fact that the contested Rules do not prevent the creditor from resorting to the enforcement proceedings in respect of a court decision ... ”

In judgments ORG . TIME DATE and DATE of DATE ORG of GPE confirmed that neither the LAW , nor ORG prevented the creditor from seeking enforcement of a court judgment in accordance with the procedure set out in GPE , ORG and LAW . Finally , ORG again upheld this position in judgment no . ГКПИ CARDINAL - CARDINAL of DATE .

On DATE ORG of GPE in its decision no . KAC CARDINAL ruled that the Rules , adopted by Decree no . CARDINAL of DATE , concerned the voluntary execution of court decisions against the ORG treasury and did not prevent the creditor from seeking enforcement through the court bailiffs .

NORP The functioning of military courts is regulated by LAW , the Law on Judicial System of DATE , the Law on Military Courts of DATE . Military courts belong to the judicial system of GPE , they are courts of general jurisdiction exercising judicial power in the armed forces . military courts are established or dissolved by a federal law . Military courts are organised in the places of stationing of military units . Military courts administer justice on behalf of GPE examining cases in their jurisdiction by way of civil , administrative and criminal proceedings . In particular , military courts examine complaints of military personnel against acts or omissions of military officials or military command . Such cases are examined pursuant to the provisions of LAW . Military courts administer justice independently subject only to LAW , federal constitutional laws and federal laws . The judges of the military courts are appointed by the President and should have a military rank , in addition to a law degree and necessary qualifications .


Remainder inadmissible;No violation of Art. 5-1

Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and is currently detained in FAC .

DATE the applicant was convicted of sexual offences including attempted rape , sexual abuse of children , sexual assault , attempted sexual assault and dangerous assault in CARDINAL judgments and spent DATE in prison .

On DATE the ORG convicted the applicant of CARDINAL counts of sexual assault . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered his ( first ) preventive detention under LAW ( see paragraphs CARDINAL below ) . It found that in DATE and DATE the applicant , acting with full criminal responsibility , had sexually assaulted CARDINAL hitchhikers whom he had taken with him in his car . Having consulted a neurological expert , it further found that owing to his criminal tendencies , it was very likely that the applicant would commit further serious sexual offences comparable to those he was found guilty of on release and was dangerous to the public . Therefore , his preventive detention was necessary .

The applicant served his prison sentence until DATE and was then held in preventive detention until DATE , when the preventive detention order was suspended on probation and the applicant released .

On DATE the ORG convicted the applicant of attempted sexual assault and falsification of a driving licence . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered his ( second ) preventive detention under LAW . ORG found that in DATE the applicant , acting with full criminal responsibility , had again attempted to sexually assault a hitchhiker . He had threatened her with a gas pistol , but she had succeeded in wresting the pistol from him and making good her escape . Having regard to the facts that the applicant had begun to reoffend almost immediately after spending DATE in detention and that , according to the convincing view expressed by an expert , it would take DATE to rehabilitate the applicant , if ever , the court further considered its second order of preventive detention to be proportionate .

On DATE ORG revoked the suspension on probation of the applicant ’s first preventive detention , ordered in ORG judgment of DATE , as the applicant had reoffended and had not diligently continued his therapy .

The applicant served his full prison sentence imposed in the judgment of DATE until DATE . Since CARDINAL DATE the applicant has been in preventive detention in FAC as ordered both in the judgment of ORG of DATE and in the judgment of that same court of DATE .

On DATE the ORG , reviewing the applicant ’s preventive detention , refused to suspend his preventive detention on probation .

On DATE the applicant requested ORG to order his release from preventive detention , arguing that preventive detention violated LAW .

On DATE the ORG , examining the applicant ’s request under LAW ( see paragraph CARDINAL below ) , decided that his objections against the admissibility of the execution of his preventive detention were ill - founded . The applicant ’s preventive detention , ordered by ORG in DATE under LAW , constituted lawful detention after conviction by a competent court within the meaning of LAW ( a ) of the LAW .

On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal . It added that preventive detention under LAW , which was to be qualified as a measure of correction and prevention and not as a penalty , neither violated the LAW nor LAW . Moreover , Article CARDINAL § CARDINAL of LAW , in its version in force since DATE ( see paragraph CARDINAL below ) , was constitutional .

On DATE ORG , referring to its leading judgment of DATE in the case of PERSON ( file no . CARDINAL BvR CARDINAL/CARDINAL ; application no . CARDINAL to ORG ) , declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) , in which he had complained that his preventive detention of an indefinite duration had violated LAW .

On DATE , DATE and DATE the Aachen ORG , reviewing the applicant ’s detention , refused to suspend the applicant ’s preventive detention on probation . It considered that it could not be expected that the applicant , who refused to make a therapy with an external psychologist offered to him , would not reoffend on release .

The applicant was in his first preventive detention as ordered in the judgment of ORG of DATE until DATE . From DATE , the applicant ’s preventive detention as ordered for the second time in the judgment of ORG of DATE is executed .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions referred to in the present case provide as follows :

The sentencing court may , at the time of the offender ’s conviction , order his preventive detention , a socalled measure of correction and prevention , under certain circumstances in addition to his prison sentence , a penalty , if the offender has been shown to be dangerous to the public ( LAW ) .

NORP In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years’ imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .

Under Article CARDINAL § CARDINAL of LAW , in its version in force prior to DATE , the first placement in preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY § CARDINAL ) .

Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL § CARDINAL , in its amended version , provided that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINAL § CARDINAL of LAW to LAW , the amended version of Article CARDINAL of LAW was to be applied without any restriction ratione temporis .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides that a court decision must be obtained if objections are raised to the execution of a sentence .

On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period ( compare the provisions in paragraphs CARDINAL above ) and about the retrospective order of the ORG preventive detention respectively ( file nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all provisions of LAW on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the most . In relation to detainees whose preventive detention had been prolonged or ordered retrospectively , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of “ persons of unsound mind ” in LAW sub - paragraph ( e ) of the LAW made in this ORG ’s case - law . If the above pre - conditions were not met , those detainees had to be released no later than DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .

In its judgment , ORG stressed that the fact that the LAW stood above the LAW in the domestic hierarchy of norms was not an obstacle to an international and NORP dialogue between the courts , but was , on the contrary , its normative basis in view of the fact that the LAW was to be interpreted in a manner that was open to public international law ( völkerrechtsfreundliche GPE ) . In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ) .


Violation of Art. 10;No separate issue under Art. 6-2

By a decree of CARDINAL DATE , a “ Mission for coordination , information and action against terrorism ” was set up . This “ anti - terrorist unit ” at ORG operated from DATE to DATE within the office of the NORP President , engaging in telephone tapping and recording .

NORP In DATE a DATE magazine published a handwritten note dated DATE , under the letterhead of ORG , containing indications that telephone lines , in particular those of certain journalists and lawyers , had been tapped .

In DATE a list of the people who had been placed under surveillance was published in the press .

The case aroused considerable media interest and a judicial investigation was opened in DATE .

In the course of the proceedings ORG , deputy director of the NORP President 's private office at the time of the surveillance , was placed under formal investigation on a charge of invading the privacy of others .

On DATE , DATE after President PERSON 's death , the publishers PERSON published a book entitled FAC du Président ( “ The President 's Ears ” ) , which had been written by the first CARDINAL applicants , both journalists , on the subject of the monitoring operations at FAC .

On DATE ORG lodged a criminal complaint , with an application to join the proceedings as a civil party , against Mr PERSON and PERSON , accusing them of handling documents obtained through a breach of professional confidence , of knowingly deriving an advantage from such a breach and of handling stolen property . In his complaint PERSON noted that appendix CARDINAL of the book consisted of CARDINAL “ facsimile telephone - tap transcripts ” which were identical to documents in the case file and that the other CARDINAL appendices ( list of individuals under surveillance ) were also based on information from the file . He further cited CARDINAL passages from the work which reproduced officially - recorded statements made to the investigating judge by the individuals under investigation or witnesses .

In the ensuing judicial investigation the applicants denied having obtained their information illegally . They refused to reveal their sources and claimed that many of the people examined by the judge had since publicly disclosed the content of their statements . As regards the facsimile telephone - tap transcripts and the content of the official records , the applicants argued that they had been circulating among journalists well before the opening of the judicial investigation .

In a judgment of DATE the GPE tribunal de grande instance found that both the facsimiles and the record extracts came from the judicial investigation file , which was only accessible to persons bound by the secrecy of the judicial investigation or by a duty of professional confidence . The court considered that , regardless of how the documents in question had been transmitted , they could not have fallen into the applicants ' hands without an offence being committed . In the court 's opinion , experienced journalists could not have been unaware of that fact . Observing that all the elements of the offence of handling illegally - obtained items ( recel ) were sufficiently established , the court found Mr PERSON and Mr PERSON guilty of the offence of handling information obtained through a breach of the secrecy of the investigation or through a breach of professional confidence , under Articles CARDINAL - CARDINAL , CARDINAL - CARDINAL , CARDINAL - CARDINAL and CARDINAL - CARDINAL to CARDINAL of LAW , and ordered each of them to pay a fine of MONEY ( equivalent to MONEY ( ORG ) ) . The court further ordered them , jointly and severally , to pay MONEY ( ORG CARDINAL,CARDINAL.CARDINAL ) in damages and found the company GPE PERSON civilly liable . The applicants ' book continued to be published and no copies were seized .

The applicants appealed . They claimed , among other things , that LAW had been breached and argued that the judgment against them could not be regarded as necessary in the light of the LAW .

On DATE ORG upheld the judgment , for the following reasons in particular :

“ ... The quantity , diversity and accuracy of the sources used by the defendants show that they were actually in possession of reproductions of documents from the judicial investigation file , as mere transcriptions or oral accounts would not have enabled them to make such systematic use of the material in that file ... The defendants could only therefore have obtained the documents through the intermediary of persons involved in the proceedings , who can be divided into CARDINAL groups . The first group is bound by the secrecy of the investigation ( judges and prosecutors , clerks , police officers , etc . ) , any breach of which will constitute a criminal offence . The second group consists of persons who are entitled to obtain copies of documents but who are not bound by the secrecy of the investigation , namely lawyers and the parties themselves ... These clear and coherent provisions show that compliance with certain conditions ensuring the secrecy of the investigation forms an integral part of the duty of professional confidence . To be sure , the rights of the defence must not be impaired by that duty . ... Thus the documents used by the defendants were necessarily obtained illegally and the precise classification of the offence has no bearing on the unlawfulness of their origin , which is the necessary and sufficient basis of the statutory characterisation of the offence of handling ( recel ) , as is confirmed by the case - law of ORG . ... ”

As regards LAW , ORG held as follows :

“ Even though the actual object of the handling specifically consists of elements of the judicial investigation , it should first be observed that the offence of handling provided for under LAW corresponds to a commonly used characterisation . ... Accordingly , whilst proceedings in their current form may not be very numerous , they are based on clear and established provisions , which have been implemented in foreseeable conditions .

Under paragraph CARDINAL of the above - mentioned LAW , the exercise of freedom of expression may be subject to restrictions , in particular for the protection of the reputation or rights of others or for maintaining ' the authority and impartiality of the judiciary ' .

It has been established that , by obtaining a number of the confidential documents from proceedings in which [ ORG ] had been placed under judicial investigation , the defendants interfered with his private life and with his defence rights as an individual under judicial investigation . That action further demonstrated a wilful disregard for the rules governing the functioning of the judicial authority . In addition , the act of publication , which was the avowed objective of Mr PERSON and PERSON , was bound to prejudice the presumption of innocence , a right which must be guaranteed for every person against whom criminal proceedings are brought .

... An obligation to comply with the basic rules governing the functioning of courts and the practices of persons involved in the administration of justice contributes to maintaining the democratic features of society . Accordingly , the rules concerning respect for the secrecy of the judicial investigation , like those concerning the duty of professional confidence , have the effect of protecting the judicial authority from excessive pressure , as well as protecting essential interests of those involved in the proceedings .

The restrictions to which freedom of expression is subject are therefore necessary , particularly because it has not been established that the constraints imposed in the present case really had an adverse effect on the informing of public opinion , having regard to the articles published on the subject , any more than it has been established that there was a breakdown in the administration of justice of which public opinion had to be informed . ”

The applicants appealed on points of law .

In a judgment of DATE ORG dismissed their appeal .

ORG rejected the ground of appeal in which the applicants alleged , among other things , that there had been a violation of LAW , finding as follows :

“ In finding guilty the defendants , who had denied having obtained the information unlawfully , but had refused to reveal their sources , ORG notes that the book contained facsimile telephone - tap transcripts which are exact copies of pages from the investigating judge 's case file , and of official records of statements drawn up by the judge . The court adds that , absent any evidence to support the hypothesis of accidental disclosure , the source could only have been a professional bound by a duty of confidence , whether CARDINAL of the persons required to respect the secrecy of the judicial investigation or a lawyer bound by a duty of professional confidence under LAW of the decree of CARDINAL DATE on the organisation of the legal profession . The court infers from the foregoing that , regardless of how the documents in question were transmitted , they could not have fallen into the hands of the defendants without an offence being committed . It adds that experienced journalists could not have been unaware of this fact .

ORG , reasoning as follows , also dismissed the applicants ' ground of appeal , based on a violation of LAW , in which they submitted that the simple fact that the telephone tapping described in the book was the subject of a judicial investigation was not sufficient to justify the interference with their freedom of expression and that the judgment against them did not fulfil any necessity :

“ In dismissing the complaint that there had been a violation of LAW , ORG , by reasoning of its own and espousing that of the court below , notes that the essential subject matter of the offending work consists of the actual case file from the judicial investigation in progress ; that the book reproduces , among other things , numerous passages from interviews with individuals examined by the investigating judge ; and that this information was used in some detail in the authors ' observations on the functioning of the monitoring system set up within the NORP ORG . The court explains that the defendants found themselves in possession of confidential information on [ ORG ] to which they had no right of access , thus interfering with a legitimate interest of the latter . The court adds that the limits to which freedom of expression is subject are necessary , particularly because it has not been established that the constraints applied in the present case caused any real prejudice to the informing of public opinion or that there was any breakdown in the administration of justice of which public opinion had to be informed .

Having regard to the foregoing findings , from which it transpires that the defendants were prosecuted for disclosing the content , that remained confidential , of material from a judicial investigation in progress , and that such a measure was justified by the necessity of protecting the rights of others , CARDINAL such right being the presumption of innocence , and by the need to prevent disclosure of confidential information and to maintain the authority and impartiality of the judiciary , ORG duly substantiated its decision for the purposes of LAW of ORG .

In awarding damages to the civil party , on the ground that the publication by the defendants of confidential information concerning that party had directly contributed to the damage he had sustained , ORG substantiated its decision for the purposes of LAW . ”

In a judgment of ORG dated DATE , PERSON was given a suspended DATE prison sentence and fined ORG CARDINAL .

“ The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by DATE imprisonment and a fine of CARDINAL . ”

“ The offence of handling ( recel ) is constituted by the concealment , possession or transmission of a thing , or by the fact of acting as an intermediary with a view to its transmission , in the knowledge that the said object was obtained by means of a serious crime ( crime ) or other major offence ( délit ) .

The offence of handling is also constituted by the fact of knowingly deriving an advantage , by any means , from the product of a serious crime or other major offence . Handling shall be punished by DATE imprisonment and a fine of QUANTITY . ”

Recommendation Rec(CARDINAL)CARDINAL of ORG to member GPE , on the provision of information through the media in relation to criminal proceedings , reads as follows :

Recalling that the media have the right to inform the public due to the right of the public to receive information , including information on matters of public concern , under LAW , and that they have a professional duty to do so ;

Recalling that the rights to presumption of innocence , to a fair trial and to respect for private and family life under Articles CARDINAL and CARDINAL of the Convention constitute fundamental requirements which must be respected in any NORP society ;

Stressing the importance of media reporting in informing the public on criminal proceedings , making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system ;

Considering the possibly conflicting interests protected by Articles CARDINAL , CARDINAL and DATE of the LAW and the necessity to balance these rights in view of the facts of every individual case , with due regard to the supervisory role of ORG in ensuring the observance of the commitments under the Convention ;

Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings , and to foster good practice throughout LOC while ensuring access of the media to criminal proceedings ;

Recommends , while acknowledging the diversity of national legal systems concerning criminal procedure , that the governments of member states :

take or reinforce , as the case may be , all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation , within the limits of their respective constitutional provisions ,

disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and

bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals .

Appendix to Recommendation Rec(CARDINAL)CARDINAL - Principles concerning the provision of information through the media in relation to criminal proceedings

ORG of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .

Principle CARDINAL - Presumption of innocence

Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial . Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .

Principle CARDINAL - Regular information during criminal proceedings

In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public , judicial authorities and police services should inform the media about their essential acts , so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings . In cases of criminal proceedings which continue for DATE , this information should be provided regularly .


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

NORP Under current GPE law , the state pension age is DATE for men and CARDINAL for women . Until these ages , men and women who work are required to pay national insurance contributions ( “ NICs ” ) if their earnings are above a threshold amount , currently QUANTITY ( GBP ) per month .

The applicant is over DATE and works as an administrator . Since he has not reached the state pension age for men of DATE , he is required to pay NICs on his earnings . At the time of introduction of the application , his DATE salary was GBP CARDINAL,CARDINAL and he paid PERCENT of his earnings ( between the primary threshold of GBP CARDINAL and the upper earnings limit of GBP CARDINAL ) in NICs ( Class CARDINAL ) , amounting to GBP CARDINAL per month and GBP CARDINAL per annum . From DATE , NICs increased to PERCENT of the amount up to the upper earnings limit , plus PERCENT on all earnings above the limit . The applicant ’s NICs increased to GBP CARDINAL per month .

The applicant will be required to pay national insurance contributions from his earnings until he reaches DATE .

A woman of DATE or more who continued to work would not be required to pay any NICs on her earnings .

The applicant wrote to his Member of ORG and the Paymaster General complaining about the difference in treatment for men and women . Both replied stating that since liability to pay national insurance contributions is linked to the state pension age , the treatment of men and women would equalise in DATE when the state pension age will equalise .

The National Insurance Act DATE , which first established the basis for the national social security scheme in GPE , set out a system of funding under which all employers and the majority of the working population , whether employed or self - employed , are liable to pay compulsory NICs contributions . This legislation has since been replaced , most recently , by the consolidating provisions of ORG DATE ( “ SSCBA DATE ” ) and ORG DATE .

Section CARDINAL(CARDINAL ) of the SSCBA DATE sets out the various classes of ORG . Of these , the largest category is Class CARDINAL contributions which consist of earnings - related contributions paid by employers and employees . Such contributions are levied as a percentage of earnings which varies according to the employee ’s earnings band . The ORG scheme is financed on a “ pay as you go ” basis , that is , current NICs fund current benefits : thus an individual ’s contributions fund not his or her own benefits but those of others ( NORP ( PERSON ) v. Secretary of ORG [ DATE ] CARDINAL All ORG paragraphs CARDINAL - CARDINAL ) .

A substantial contribution has been made to ORG from NICs for DATE . Following the National Insurance Act CARDINAL , which imposed an additional deduction of PERCENT of earnings above the upper earnings limits , the element of calculation of the ORG allocation was also increased from PERCENT of earnings paid in DATE to PERCENT .

Section CARDINAL(CARDINAL ) of the LAW provides that only those under the state pension age are liable to pay NICs from their earnings . The state pension ages are currently set as CARDINAL for men and CARDINAL for women according to section CARDINAL .

Section CARDINAL of the Pensions Act DATE provides for the equalisation of state pension ages for men and women to DATE . The state pension age for women will increase gradually from DATE and the equalisation will be complete in DATE . At the same time , the age until which women are liable to pay NICs will gradually increase in line with the increase in the state pension age .

Council Directive CARDINAL/CARDINAL/EEC of DATE provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security . However , in LAW provides for derogation in the matter of “ the determination of pensionable age for the purposes of granting old - age and retirement pensions and the possible consequences therefore for other benefits ” .

In LOC The Queen v. Secretary of ORG , ex parte ORG [ DATE ] ECRCARDINAL - CARDINAL ( “ the ORG case ” concerning reference for a preliminary ruling from ORG ) , ORG found that :

Article CARDINAL had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old - age and retirement pensions and also forms of discrimination which are necessarily linked to that difference ;

Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where , having regard to the financial equilibrium of the national pension system in the context in which it appears , it can not be dissociated from a difference in pensionable age ;

In view of the advantages allowed to women by national pension systems , in particular as regards statutory pensionable age and length of contribution periods , and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from DATE to the next in respect of those periods , the ORG legislature intended to authorise the progressive implementation of that principle by the member ORG and that progressive nature could not be ensured if the scope of the derogation authorised by LAW were to be interpreted restrictively . ( Summary of judgment )


Violation of Art. 6-1;Violation of Art. 13+6-1

Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant was charged with aiding and abetting large scale embezzlement . The charges were brought within the framework of criminal proceedings for abuse of power and embezzlement against several persons .

On DATE the applicant was questioned in connection to the above charges and a search of his business premises was carried out .

On DATE , DATE , DATE and DATE the applicant , some of the other persons charged and witnesses were questioned .

On DATE the applicant was also charged with documentary fraud , was questioned in that connection and bail was fixed for him .

DATE CARDINAL questioning sessions and a search were carried out and several other persons were charged with abuse of power and embezzlement .

As the applicant did not pay the bail and could not be found for questioning , on an unspecified date in DATE the NORP authorities , with the assistance of ORG , initiated a national and an international search for him .

On DATE the applicant was found in GPE and on DATE he was extradited to GPE .

Meanwhile , the criminal proceedings against him were still pending and between CARDINAL DATE and DATE CARDINAL questioning sessions were carried out and CARDINAL expert opinions were commissioned .

On DATE the applicant was questioned and the findings of the investigation were presented to him .

DATE a number of questioning sessions and several other investigative actions took place and the charges against the applicant were separated from these against the other persons involved .

On DATE a prosecutor from the GPE city public prosecutor ’s office dropped some of the charges against the applicant and prepared an indictment . Thus , the applicant remained charged only with aggravated documentary fraud , as a result of which he unlawfully received a large amount of money .

On DATE the indictment was sent to ORG .

During the first hearing of CARDINAL DATE it became clear that the applicant had returned the allegedly embezzled amount to the victim company .

For the period DATE and DATE ORG held CARDINAL hearings .

By a judgment of CARDINAL DATE ORG acquitted the applicant .

NORP The prosecutor appealed .

The Sofia Court of Appeal held CARDINAL hearings . By a judgment of CARDINAL March CARDINAL it upheld the acquittal .

The prosecutor appealed further . On CARDINAL DATE ORG held a hearing .

By a judgment of DATE ORG quashed ORG judgment because of procedural breaches and remitted the case for fresh examination .

After the remittal ORG held hearings on DATE and DATE .

In a judgment of CARDINAL DATE ORG upheld ORG judgment of DATE .

So did ORG in a final judgment of DATE .

Apparently , no civil claim was brought against the applicant throughout the proceedings .

During the search of the applicant ’s business LOC , carried out on DATE , a metal safe was seized . On CARDINAL DATE an investigator from ORG opened the safe and seized the amount of CARDINAL old NORP levs ( ORG ) ( the equivalent of MONEY at the time or MONEY ( ORG ) ) . In the seizure record of CARDINAL DATE it was stated that the amount had been seized pursuant to LAW ORG ) . The amount was deposited in a special bank account under which no interest was due .

After the end of the criminal proceedings against the applicant , he requested the return of the seized amount .

In a decision of DATE ORG ordered the amount to be returned to the applicant . It found that no civil claim had been lodged within the framework of the criminal proceedings and no attachments had been imposed . The applicant received CARDINAL new NORP levs ( ORG ) , MONEY , which was the equivalent of the seized amount after the denomination of DATE .

The domestic law provisions concerning remedies in respect of length of criminal proceedings have been summarized in paragraphs CARDINAL of the ORG ’s judgment in the case of Atanasov and ORG v. GPE , no . CARDINAL , DATE .

Article CARDINAL of the ORG , as in force DATE , provided for attachment measures to guarantee the satisfaction of civil claims against the perpetrator , the payment of fines or the execution of confiscation orders . The provisions of LAW of DATE ( ORG ) , including as regards appeals to higher courts , applied in respect of the attachment procedure .

In case no civil action had been lodged within the prescribed time - limit , the interested party could request from the court to lift the imposed measure ( LAW .

Article CARDINAL of the ORG provided that the orders of the investigator were subject to appeal before the prosecutor and the orders of the prosecutor could be appealed before the prosecutor with a higher rank .

Articles CARDINAL - CARDINAL provided for the seizure of documents and other objects that could be of importance for the criminal proceedings . Pursuant to LAW ORG chattels and other objects could be collected as physical evidence and had to be held by the authorities until the termination of the criminal proceedings . They could be returned to their owners before that only as long as this would not hinder the establishment of the facts in the case ( LAW ) . As of DATE Article CARDINAL of the ORG was amended , thus clarifying that it was within the powers of the prosecutor ’s office to rule on requests for the return of such objects and introducing the right to appeal before the court in case of refusal .