CASE OF LLOYD AND OTHERS v. THE UNITED KINGDOM

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

Josep Casadevall;Nicolas Bratza;Simon Brown

Each applicant failed to pay sums due in respect of either local taxes ( community charge , council tax or non - domestic rates ) or court - imposed fines . In respect of the failure to pay local taxes , the GPE court had in each case determined that the applicant was liable to pay ( issuing a “ liability order ” ) ; in fines cases , the GPE court had imposed the fine as the sentence following a criminal conviction .

Each applicant fell into arrears with the payments due from them . These cases involve the enforcement proceedings in respect of their arrears in the GPE court . Each applicant appeared before the court , following the issuing of an application for their committal to prison as a result of their failure to pay the sums due . At that hearing the magistrates found that the non - payment was due to the applicant ’s wilful refusal or culpable neglect . As a result each applicant was sentenced to a period of imprisonment . The sentence was either imposed immediately ( ORG ) or was suspended on terms that the applicant make periodic payments towards the outstanding sum . In the latter circumstances , when the applicant failed to comply with the terms imposed , a further hearing was held in the GPE court at which the suspended term of imprisonment was activated . Each applicant spent a period of time in prison . Legal aid ( free legal representation where the applicant did not have sufficient means to pay for it ) was not available for these enforcement proceedings prior to DATE and none of the applicants was legally represented at the hearings in front of the magistrates .

Following their imprisonment , an application was made on behalf of each applicant , by way of either judicial review or case stated , which resulted in ORG quashing the orders made by the magistrates . The majority of the applicants were released from prison on bail at the time of making their applications to ORG . In CARDINAL cases the orders of the magistrates were quashed in a judgment of ORG . In the remaining cases the orders were quashed following ORG approval of a consent order agreed between the applicants and the magistrates who had sentenced them .

With CARDINAL exception ( Christison , CARDINAL ) , the ORG has set out the relevant facts pertaining to each applicant in the table which appears at the end of the decision on admissibility ( ORG v. GPE , no . CARDINAL and others , decision of DATE ) . That table sets out the following information in respect of each applicant : their name and application number ; whether their case involved non - payment of community charge ( “ ORG ” ) , council tax ( “ GPE ” ) , non - domestic rates ( “ ORG ” ) or fines ( “ F ” ) and DATE which they spent in prison ; whether their proceedings in the GPE court took place before or after legal aid became available on DATE ; and the grounds upon which ORG quashed the orders of the magistrates . Additional relevant factual information appears in this column of the table where appropriate .

Where the orders of the magistrates were quashed following a judgment , the ORG has indicated that fact in the table and quoted from the relevant part of the judgment . Where the orders of the magistrates were quashed by means of a consent order , the ORG has set out the terms of the consent order in full . In such cases , where the terms agreed contain obvious mistakes or misquotations from domestic case - law , the ORG has inserted corrections in square brackets . However , where it is not obvious what the relevant correction should be , the ORG has simply left the order in its original form .

NORP Throughout the text of this judgment , where there is a reference to a specific applicant , the ORG has set out the surname of the applicant followed by their application number in brackets . The words “ justices ” and “ magistrates ” are synonymous in domestic law .

For reasons of space , the ORG sets out the facts of the Christison ( CARDINAL/CARDINAL ) application below .

This applicant ’s application for judicial review was determined by the judgment of Mr Justice PERSON in NORP v. PERSON Justices ex parte PERSON and PERSON ( CARDINAL DATE ) . It is clear from that judgment that the applicant was summoned to court as a result of her failure to pay council tax . On DATE , the justices , having neither received any evidence about , nor asked any questions about , the financial outgoings of the applicant , found her to have culpably neglected to pay the council tax and made an order imposing CARDINAL days’ imprisonment suspended on payment of QUANTITY ( GBP ) per month .

The applicant did not make the payments in compliance with the GPE order of DATE . She was therefore summoned to appear on DATE for the GPE court to determine whether the warrant of committal should be issued . The justices were told by the prosecutor that the applicant had been served with the notice of the hearing DATE prior to the hearing . They proceeded in her absence and issued the committal warrant . She spent a total of DATE in prison .

The order of CARDINAL DATE was quashed by Mr Justice PERSON on the following ground :

“ [ N]o proper means enquiry was carried out ... The Justices accept that there was no proper means enquiry and , therefore , the order is going to be quashed . ...

... Justices probably carry out means enquiries DATE . They must know , and if they do not , their clerks should advise them , what ought to be asked and what information ought to be obtained . They failed to do that in [ this ] case . ”

The order of DATE was quashed by Mr Justice PERSON for the following reasons :

“ ... Anyway , the applicant did not pay as she should have done and she also was summoned to appear on DATE . ... [ the bailiffs ] had served DATE or so before . Although the evidence of that has now been produced ... it is somewhat unsatisfactory because the bailiff ’s handwritten note does not make it clear whom they actually served . I am prepared ( because it does not make any difference to the outcome ) to assume that she was served , and the Justices again were told , although no evidence was produced , that bailiffs has served her DATE before ...

The time has come to try to make it abundantly clear to Justices that , in the view of this court , it is difficult to conceive that there will be circumstances which justify the making of a committal order when the defendant fails to appear before the court . It means that the Justices are unable to ascertain whether there are , in truth , reasons why payment has not been made which might excuse such payment , and furthermore , reasons why in an individual case it would be wrong to send the person immediately to prison . Alternatively , it might be proper to reduce the period of imprisonment that is considered appropriate , if any is considered appropriate . It may transpire that by the time that the question of implementing the suspended committal order is considered , the circumstances of the defendant have changed . Whereas before she might have been able to pay perhaps , through illness or whatever reason , by now she can not . Thus , it would be wrong to commit her . Committal , I must re - emphasise , can only occur if the Justices are satisfied that there is a continuing wilful refusal or culpable neglect .

The Justices have a perfectly sensible and powerful weapon available to them to deal with cases where a defendant does not attend , and that is a Warrant Not Backed for Bail . That is the means by which a person can be brought before the court and made to explain why he or she has not paid . Then the Justices will have the proper information before them to enable them to decide whether the committal is indeed correct . I can not emphasise strongly enough my view that Justices should not , unless there are very exceptional circumstances ( such as positive evidence that a defendant is refusing to attend and has expressed an unwillingness to comply with the court order ) commit to prison in the absence of a defendant . ...

It is true that in these cases , the Justices were told that service had been effected , but service DATE before is nothing to the point . Much can happen in that time ... Furthermore , there was no evidence put before the Justices to support the contention that service had been effected , and for my part I do not think it right , when someone ’s liberty is at stake , for Justices to rely upon the word of the prosecutor unsupported by any evidence .

A civil court which commits for contempt , which may be contempt occasioned by failure to comply with a court order , requires proof of service and that is usually done by a bailiff or whoever , indicating that service has been effected . It seems to me that it is quite wrong that Justices should put up with a lesser standard than that . ”

Mr Justice PERSON also awarded costs against the justices on the following basis :

“ It is unusual for costs to be awarded against Justices who do not attend applications against them for judicial review . The principle which is applied has recently been referred to by PERSON in NORP v. GPE - upon - Tyne Justices ex parte PERSON ( DATE ) RA CARDINAL . At page ORG of the report , the learned judge refers to a decision of ORG , NORP v. GPE ex parte Farmery CARDINAL JP CARDINAL , the head note of which reads :

‘ ... the court would be guided by the principles set out in NORP v. PERSON , ex parte PERSON ( DATE ) CARDINAL PERSON wherein it was decided respectively : ( i ) that costs would only be awarded against Justices in the rarest of circumstances when they have done something which calls for strong disapproval ; and ( ii ) that it was the practice not to grant costs against Justices merely because they have made a mistake in law , but only if they have acted perversely or with some disregard for the elementary principles which every court ought to obey , and even then only if it was a flagrant instance.’ ...

... In [ this ] case the committal took place in the absence of the defendant .

This court has made it clear that Justices must be satisfied , at the very least , that there has been proper service , and , as I have said , I find it very difficult to conceive of circumstances which would justify a committal in the absence of a defendant . Thus it seems to me that the conduct of these Justices can properly be said to fall within the description that I have set out and which is referred to in the GPE case by PERSON

By virtue of section CARDINAL of the Magistrates’ Courts Act DATE a party to proceedings before a GPE court may “ question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of ORG on the question of law or jurisdiction involved ... ” . This is known as the “ case stated ” procedure .

Under section CARDINAL of the CARDINAL Act , magistrates may grant bail to a party who applies to them to state a case ; but if they refuse to do so , in cases categorised as “ civil ” under the domestic law , ORG has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary .

According to GPE ’s ORG , ORG , Volume CARDINAL(CARDINAL ) at paragraph CARDINAL :

“ Judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts , tribunals and other bodies or persons who carry out quasi - judicial functions or who are charged with the performance of public acts and duties ...

Judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made , but the decision making process itself ...

The duty of the court is to confine itself to the question of legality . Its concern is with whether a decision making authority exceeded its powers , committed an error of law , committed a breach of the rules of natural justice , reached a decision which no reasonable tribunal could have reached or abused its powers . ”

The principles underlying the domestic law as set out under this heading are largely as previously stated in the case - law of the Convention organs , in particular in the judgments of the ORG in the cases of PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions PERSON , p. CARDINAL ( “ PERSON ” ) , and Perks and Others v. GPE , no . CARDINAL/CARDINAL and Others , DATE ( “ Perks ” ) , as confirmed in ORG v. GPE , no . CARDINAL and others , decision on admissibility of DATE .

In LANGUAGE law , orders of a GPE court which are in excess of jurisdiction are void from the outset , whereas orders made within jurisdiction remain valid until set aside by a superior court . It is only in respect of the former type of error that a court can be held civilly liable in damages ( under LAW DATE , which replaced section CARDINAL of the Justices of the Peace Act DATE see below ) .

The appropriate test for whether an order of a GPE court is void for lack of jurisdiction is that set out by ORG in ORG v. PERSON [ DATE ] CARDINAL ORG CARDINAL . In that case magistrates had made an order sending a CARDINAL-year - old boy to a training school after a hearing at which he was not legally represented , had not applied for legal aid and had not been informed of his right so to do . The order was quashed on judicial review on the ground that , by virtue of LAW ) of the Treatment of Offenders ( GPE ) DATE , magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented , unless he had applied for legal aid and had been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so .

The boy then applied for damages for false imprisonment against the magistrates . Since the case was decided prior to the enactment of ORG DATE and at a time when magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction , ORG was required to decide the jurisdictional question . Indeed , Lord Templeman in his judgment stated as follows :

“ The question to be determined on this appeal is whether the magistrates acted within their jurisdiction or without jurisdiction . ”

In addressing that question , Lord Bridge specifically referred to the case of ORG v. ORG [ DATE ] CARDINAL Appeal Cases CARDINAL ( ORG ) and stated as follows :

“ I do not believe that the novel test of excess of jurisdiction which emerges from the PERSON case , ... however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute , has any application whatever to the construction of s[ection ] CARDINAL of the DATE LAW or s[ection ] CARDINAL of the DATE [ Justices of the Peace ] Act . ”

In the judgment of ORG , it was held that a GPE court acted in excess of jurisdiction in CARDINAL circumstances only : ( CARDINAL ) if it acted without having jurisdiction over the cause , ( CARDINAL ) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity , or ( CARDINAL ) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent . The instant case fell within the third limb of the rule : the magistrates were liable in damages because they had not observed the requirements of LAW . As such , they had failed to fulfil the statutory condition precedent to the imposition of the sentence of detention .

During the course of his judgment , Lord PERSON commented on the jurisdiction of magistrates in conducting a criminal trial :

“ ... once justices have duly entered upon a summary trial of a matter within their jurisdiction , only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ... [ A]n error ( whether of law or fact ) in deciding a collateral issue on which jurisdiction depends will not do so . Nor will the absence of any evidence to support a conviction ... ”

Lord Bridge also said the following in relation to the second situation set out above in which a GPE court acted in excess of jurisdiction :

“ Justices would , of course , be acting ‘ without jurisdiction or in excess of GPE within the meaning of s[ection ] CARDINAL if , in the course of hearing a case within their jurisdiction , they were guilty of some gross and obvious irregularity of procedure , as for example if CARDINAL justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence , or of the rules of natural justice , as for example if the justices refused to allow the defendant to give evidence . But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice . Such convictions , if followed by a potential trespass to person or goods , would not , in my opinion , necessarily expose the justices to liability in damages . ”

The final limb of the rule formulated by ORG in ORG v. PERSON ( that is , that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent ) was applied by ORG and ORG in NORP v. ORG , ex parte PERSON [ DATE ] CARDINAL W.L.R. CARDINAL and [ DATE ] CARDINAL ORG , a case concerning rates ( a local tax which was the predecessor to the community charge ) . Mr Justice PERSON considered that the justice ’s plain failure to address themselves to the question whether or not the applicant ’s failure was due to culpable neglect was not a gross and obvious irregularity but a failure to satisfy the statutory condition .

In that case , the plaintiff had been unable to pay all of the rates for which he became liable in DATE , and in DATE he failed to follow his accountant ’s advice to close his business and elect bankruptcy . Applying legislation similar to regulation CARDINAL of ORG ( for which , see below ) , the magistrates found that his failure to follow the accountant ’s advice constituted culpable neglect and they committed him to prison . On appeal from the judgment of Mr Justice PERSON , ORG held that no causal connection had been established between the failure to follow the advice in DATE and the failure to pay the rates in DATE ; and that the magistrates had not properly entered into the inquiry as to whether the failure to pay was due to culpable neglect , which was required by the legislation as a statutory condition precedent to the exercise by the justices of their power to issue a warrant of commitment . They were therefore acting in excess of jurisdiction and were liable in damages .

The CARDINAL ORG judges expressed their findings in slightly different terms . Lord ORG O’Connor observed that “ they never carried out the inquiry required [ by the law ] ” . Lord Justice PERSON found that “ some inquiry about the applicant ’s finances was made ” , but that “ a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out . The justices never examined the question whether failure to pay was due to culpable neglect ... In my judgment , the statutory inquiry was not held in the present case ” . He explained that the making of an enquiry was a statutory condition precedent to the issue of a warrant of commitment : “ In other words , if the justices failed to hold any inquiry at all as required by the section they would have no jurisdiction to issue a warrant . ” Sir PERSON ( who dissented from the majority decision ) said : “ ... it is quite clear that the justices carried out an inquiry into means carefully and in detail ... It is equally plain that they misdirected themselves completely ... They ... failed to realise that the question they had to decide was whether the applicant ’s failure to pay his rates was ‘ due either to his wilful refusal or to his culpable ORG ” .

The relevant subordinate legislation is ORG DATE ( ORG ) ( “ the DATE LAW ) .

The relevant provisions of regulation CARDINAL ( “ application for a liability order ” ) are as follows :

“ ( CARDINAL ) If an amount which has fallen due ... is wholly or partly unpaid the charging authority may ... apply to a GPE court for an order against the person by whom it is payable .

( CARDINAL ) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid . ”

Regulation CARDINAL(CARDINAL ) provides for the seizure and sale of a debtor ’s property ( “ levying of distress ” ) :

“ Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made . ”

Regulation CARDINAL is concerned with the committal to prison of a debtor , and provides , so far as is relevant :

“ ( CARDINAL ) Where a charging authority has sought to levy an amount by distress under regulation CARDINAL , the debtor is an individual , and it appears to the authority that no ( or insufficient ) goods of the debtor can be found on which to levy the amount , the authority may apply to a GPE court for the issue of a warrant committing the debtor to prison .

( CARDINAL ) On such application being made the court shall ( in the debtor ’s presence ) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect .

( CARDINAL ) NORP If ( and only if ) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit -

( a ) NORP issue a warrant of commitment against the debtor , or

( b ) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions ( if any ) as the court thinks just .

( CARDINAL ) The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed DATE , unless the amount stated in the warrant is sooner paid ... . ”

Regulation CARDINAL makes further provision in respect of committal to prison . It provides , in relevant part , as follows :

“ ( CARDINAL ) Where an application under regulation CARDINAL has been made , and after the making of the inquiries mentioned in paragraph ( CARDINAL ) of that regulation no warrant is issued or term of imprisonment fixed , the court may remit all or part of the appropriate amount mentioned in regulation CARDINAL ) with respect to which the application related .

( CARDINAL ) Where an application under regulation CARDINAL has been made but no warrant is issued or term of imprisonment fixed , the application may be renewed ( except so far as regards any sum remitted under paragraph ( CARDINAL ) ) on the ground that the circumstances of the debtor have changed . ”

Regulations CARDINAL and CARDINAL of ORG Regulations DATE ( ORG CARDINAL/CARDINAL ) and regulations CARDINAL and CARDINAL of ORG ) ( ORG DATE ( ORG CARDINAL/CARDINAL ) , which concern the commitment to prison of a person for failure to pay council tax and non - domestic rates respectively , are in similar terms to regulations CARDINAL and CARDINAL of the DATE Regulations .

Sections CARDINAL(CARDINAL ) and CARDINAL of LAW DATE read , in relevant part , as follows :

“ CARDINAL . Postponement of issue of warrant .

( CARDINAL ) Where a GPE court has power to issue a warrant of commitment under this Part of this LAW , it may , if it thinks it expedient to do so , fix a term of imprisonment ... and postpone the issue of the warrant until such time and on such conditions , if any , as the court thinks just . ”

“ CARDINAL . Restriction on power to impose imprisonment for default

( CARDINAL ) Where on the occasion of the offender ’s conviction a GPE court does not issue a warrant of commitment for a default in paying any ... sum [ adjudged to be paid following conviction ] ... or fix a term of imprisonment under ... section CARDINAL(CARDINAL ) which is to be served by him in the event of any such default , it shall not thereafter issue a warrant of commitment for any such default or for want of sufficient distress to satisfy such a sum unless - ( ... )

( b ) The court has since the conviction inquired into his means in his presence on CARDINAL occasion .

( CARDINAL ) Where a GPE court is required by subsection ( CARDINAL ) above to inquire into a person ’s means , the court may not on the occasion of the inquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless -

( b ) The court

( i ) is satisfied that the default is due to the offender ’s wilful refusal or culpable neglect ; and

( ii ) has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful . ”

Section CARDINAL(CARDINALA ) lists the methods of enforcing payment that are mentioned in the above - cited subsection CARDINAL(CARDINAL)(b)(ii ) . CARDINAL such method that is listed in section CARDINAL(CARDINALA ) is the imposition of a ‘ fines supervision ORG under LAW of LAW . Section CARDINAL continues :

“ ( CARDINAL ) After the occasion of an offender ’s conviction by a GPE court , the court shall not , unless -

the court has previously fixed a term of imprisonment under section CARDINAL(CARDINAL ) above which is to be served by the offender in the event of a default in paying a sum adjudged to be paid by the conviction ;

issue a warrant of commitment for a default in paying the sum or fix such a term except at a hearing at which the offender is present .

( CARDINALA ) A GPE court may not issue a warrant of commitment under subsection ( CARDINAL ) above at a hearing at which the offender is not present unless the clerk of the court has first served on the offender a notice in writing stating that the court intends to hold a hearing to consider whether to issue such a warrant and giving the reason why the court so intends . ...

( CARDINALF ) A notice under subsection ( CARDINALA ) above to be served on any person shall be deemed to be served on that person if it is sent by registered post or the recorded delivery service addressed to him at his last known address , notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person .

( CARDINAL ) Where a GPE court issues a warrant of commitment on the ground that CARDINAL of the conditions mentioned in subsection ( CARDINAL ) or ( CARDINAL ) above is satisfied , it shall state that fact , specifying the ground , in the warrant . ”

Part I of the Criminal Justice Act DATE sets out provisions in relation to the custody and detention of persons DATE . LAW reads , in relevant part , as follows :

“ CARDINAL . General restriction on custodial sentences

( CARDINAL ) No court shall commit a person DATE to be detained under LAW below [ Detention of persons aged DATE for default or contempt ] unless it is of the opinion that no other method of dealing with him is appropriate ; ( ... )

( CARDINALA ) Where a GPE court commits a person DATE to be detained under LAW below , it shall -

( a ) state in open court the reason for its opinion that no other method of dealing with him is appropriate ; and

( b ) cause that reason to be specified in the warrant of commitment and to be entered in the register . ”

Section CARDINAL of the Criminal Justice Act CARDINAL reads , in relevant part , as follows :

“ CARDINAL . Restriction on imposing custodial sentences on persons DATE not legally represented .

( CARDINAL ) A GPE court on summary conviction or ORG on committal for sentence or on conviction on indictment shall not –

( a ) pass a sentence of detention in a young offender institution ...

in respect of or on a person who is not legally represented in that court , unless either –

( i ) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance ; or

( ii ) having been informed of his right to apply for legal aid and had the opportunity to do so , he refused or failed to apply . ”

Regulation CARDINAL(CARDINAL ) of the DATE LAW states that the above sections of LAW DATE apply to proceedings under regulation CARDINAL of the DATE Regulations .

Among the further case - law referred to in the judgments and consent orders of ORG , and/or referred to by the parties in their submissions , was the following :

In NORP v. PERSON Justices ex parte PERSON ( DATE ) , Mr Justice PERSON stated as follows in a case concerning the non - payment of the community charge :

“ ... It is important when dealing with the liberty of citizens only to set in train the process of imprisonment when all the requirements imposed by law have been carefully considered . It is important to note that , in this field as in the case of suspended sentences of imprisonment imposed pursuant to the criminal law , the same degree of care must be exercised in the case of a suspended penalty as in the case of an immediate penalty . ”

In NORP v. PERSON ex parte ORG [ DATE ] CARDINAL ORG Bench CARDINAL , ORG , in examining legislation in similar terms to GPE , emphasised that , in order to commit to prison , the justices , following their inquiry , had to be of the opinion that the failure to pay was due either to wilful refusal or culpable neglect .

In NORP v. PERSON Justices ex parte PERSON ( DATE ) Mr Justice Laws stated as follows :

“ ... The means inquiry required by regulation CARDINAL ) is of great importance because without it the Justices plainly can not properly arrive at a conclusion as to whether the failure to pay had been due to the debtor ’s wilful refusal or culpable neglect . A means inquiry , thus , is at the centre of the enforcement procedure which is laid down by these ORG . These Justices did not , in truth , embark upon a proper means inquiry at all . It follows that their order committing the applicant to prison is entirely vitiated . ”

In PERSON v. ORG ( CARDINAL DATE ) , a case involving the non - payment of fines , Lord Justice PERSON stated that :

“ ... an essential prerequisite to a finding of culpable neglect must be the holding of a full means inquiry ” .

In NORP ( on the application of PERSON ) v. ORG ( DATE ) , the judge noted that although the means enquiry was inadequate it was miles away from being arguable that the GPE consideration was “ so outrageous as to amount to a conduct outwith their jurisdiction ” .

In NORP v. GPE Justices ex parte GPE [ DATE ] Rating and Valuation Reporter ( “ RVR ” ) CARDINAL , an order committing the applicant to prison for non - payment of community charge following the issue of CARDINAL liability orders in respect of non - payment for DATE was quashed as a full means inquiry in respect of each liability order had not been made under regulation CARDINAL ) of the DATE Regulations . Mr Justice PERSON stated as follows during the course of his judgment :

“ It is apparent from the wording of the ORG that each liability order is to be considered separately and in respect of each liability order there has to be , as I see it , a decision as to whether there was wilful refusal or culpable neglect shown . ”

The above conclusion was followed by Mr Justice PERSON in NORP v. ORG ex parte ORG [ DATE ] ORG CARDINAL at CARDINAL ; by Mr Justice PERSON in NORP v. GPE Justices ex parte PERSON [ DATE ] ORG CARDINAL at CARDINAL ; and by Mr Justice PERSON in NORP v. PERSON Justices ex parte PERSON [ DATE ] ORG CARDINAL at CARDINAL .

In NORP v. NORP ex parte PERSON DATE ) , Mr Justice PERSON stated the following in respect of the burden of proof :

“ ... It is necessary in my judgment for Justices to be satisfied not merely on the balance of probability but so that they are sure , following a proper means inquiry , that the debtor ’s failure to pay has been due to his or her wilful refusal or culpable neglect to pay , before they can issue a warrant of commitment or fix a term of imprisonment and postpone the issue of the warrant . ...

If I am wrong in this , and if the proper standard is a civil standard , what is at stake for the individual makes it inescapable that only the highest standard of probability is commensurate with the exercise of the power of committal or of fixing a term of imprisonment .

The Justices , on advice , applied neither such standard .

In my judgment a bare balance of probability is not a sufficient standard and their decisions of DATE and DATE to fix terms of imprisonment and postpone the issue of warrants of committal on grounds of culpable neglect can not therefore stand . ”

Mr Justice PERSON concluded as follows :

“ ... To be open to criticism for the disposal of slender resources is CARDINAL thing ; to be guilty of culpable neglect in the disposal of them is another .

In my judgment the first fixing of the term of imprisonment and the postponement of the warrant were done after a means inquiry too perfunctory to constitute compliance with Regulation CARDINAL(CARDINAL ) . The fixing of a separate term of imprisonment and the postponement of the warrant in DATE , although it followed a much fuller inquiry , was again carried out on the basis of data which were not capable by themselves of founding a finding of culpable neglect to pay , whether on the lower standard of proof that was applied or on the higher standard which , as I have held , ought to have been applied .

Accordingly the applicant succeeds in his application to quash both decisions of the Justices ” .

In the case of NORP v. ORG ex parte PERSON ( DATE ) Mr Justice Laws expressly agreed with what Mr Justice PERSON had said in relation to the burden of proof in the above PERSON case .

In NORP v. the NORP Magistrates ex parte PERSON ( DATE ) the magistrates had come to the conclusion that they could not consider attaching the applicant ’s liability to pay his community charge to his income support as a viable alternative to prison . Mr Justice PERSON held that , in so concluding , the magistrates were “ plainly wrong ” and that , as such , there was a “ fundamental flaw ” in the case . In considering whether to order costs against the magistrates , he concluded :

“ I am wholly unable to find that there has been any perverse or outrageous conduct of any kind in this case . These are tricky cases . The law has been evolving in DATE . ”

He continued :

“ ... Community charge liability should only be visited with prison ( if I may use that shorthand expression ) if there is no other way in which the money can be extracted . Prison is not to be used as a big stick or primarily as punishment but as a means of extracting the liability . ”

Mr Justice PERSON stated that there may also have been a flaw in the case because the applicant was DATE at the time at which he was sentenced and the magistrates did not fulfil their requirement publicly to state that there was no alternative but prison in this case . However , he regarded it as unnecessary to conclude the case on that ground in the light of his earlier finding .

Lord Justice PERSON stated in NORP v. ORG , ex parte Mould [ DATE ] RA CARDINAL :

“ ... the power to commit to prison which is to be found in reg . CARDINAL is plainly intended to be used as a weapon to extract payment rather than to punish ...

... in the circumstances it might have been appropriate for the magistrate before making his order to ask the charging authority ’s representatives if any thought had been given to the possibility of an application to the Secretary of ORG [ for deductions from income support ] . I appreciate that ... a charging authority is not bound to take that course before seeking an order under reg . CARDINAL , but it would be relevant to the exercise of the GPE discretion to know if the possibility of [ deductions ] had at least been considered . ”

In NORP v. GPE - under - Lyme Justices , ex parte PERSON [ DATE ] CARDINAL All ER CARDINAL , Lord Justice PERSON stated :

“ A failure by justices to consider all possible alternative methods of enforcing payment before issuing a warrant for commitment might render their decision unreasonable in the PERSON sense ... ”

In the unreported case of NORP v. PERSON ex parte PERSON ( DATE ) Mr Justice PERSON stated :

“ [ A ] court which finds a debtor guilty of wilful refusal to pay the relevant sum has a discretion . The court is not required to commit such a debtor to a term of imprisonment ... Before committing a debtor to prison , it is incumbent upon justices to consider all available alternatives to effect recovery of the sum due ...

It does not follow that , because the applicant had wilfully refused to pay the relevant sum , there was no alternative other than an immediate sentence of imprisonment . Regulation CARDINAL(CARDINAL)(b ) makes that plain ... The applicant had stated that she could pay off the arrears at £ MONEY per week . This was a relevant factor for the justices’ consideration in the exercise of the discretion conferred , in particular by Regulation CARDINAL(CARDINAL)(b ) ...

In my view the approach of the justices and the decision to commit this applicant to prison was in the circumstances fundamentally flawed . ”

R. v. ORG ex parte ORG [ DATE ] CARDINAL JP CARDINAL concerned an applicant who was committed to prison after having failed to pay CARDINAL court - imposed fines . ORG held that a GPE court having inquired into an offender ’s means under section CARDINAL(CARDINAL)(b ) of LAW DATE and satisfied itself that the default in payment was due to his wilful refusal or culpable neglect , was under a duty imposed by section CARDINAL(CARDINAL)(b)(ii ) to consider or try all other methods of enforcing payment before issuing a warrant of commitment . In the current case , it held that , on the evidence available , that duty had not been fulfilled and accordingly the application was granted and the CARDINAL committal warrants were quashed .

During the course of his judgment , Mr Justice PERSON stated as follows in relation to section CARDINAL(CARDINAL)(b)(ii ) :

“ ... The words of the subsection are peremptory . There is no discretion in the court , they have either to consider or try all the other methods of enforcing payment . ”

He continued :

“ ... It needs to be emphasised that the proceedings which were taking place on DATE before the Norwich Justices were not proceedings intended to punish the applicant . He had already been before the court for the offences that he had committed and the Justices on those occasions had decided that a fine was an appropriate sentence to pass . When the time came for enforcement , therefore , it was necessary for the Justices to go through the judicial exercise of seeing if there was any other method of enforcing payment of the fine , short of committing the applicant to prison , and that necessarily included a procedure whereby he was examined as to what property or other earnings or income he might have . It is not to be assumed merely on their experience of other cases by the Justices that the proceeding is a formality or unnecessary . ”

In NORP v. GPE Justices ex parte PERSON ( DATE ) , the fact that the applicant was under CARDINAL at the time of his committal in respect of failure to pay community charge was accepted by the court to be the “ major point ” in the case . Mr Justice Laws , in quashing the committal order , concluded that the justices’ decision to commit had been unlawful in that they had failed to have regard to their statutory responsibilities in the case under regulation CARDINAL ) of the DATE LAW I of MONEY DATE . He noted that the power to imprison a person under DATE was only to be exercised if the court was of the opinion that no other method of dealing with him was appropriate and that it was the duty of the court , if of that opinion , to state in open court why the court believed that to be the case . He further noted that the magistrates had failed to state in open court why they believed that no alternative to imprisonment was available , that there was no evidence to show that the magistrates in fact felt that no other method was appropriate , or the reasons why they might so have felt ; and that it was quite clear that alternatives to imprisonment had been available to them . During the course of his judgment , Mr Justice Laws stated that the complaint made in respect of the decision to commit “ went to an important aspect of the GPE court ’s jurisdiction under regulation CARDINAL [ of the DATE Regulations ] ” .

In NORP v. PERSON and Another ex parte PERSON [ DATE ] Queen ’s Bench CARDINAL , each of CARDINAL applicants , who were DATE , had defaulted in paying fines arising from summary criminal convictions and had been committed to prison . In each case the warrant of commitment was defective in failing to comply with the duty imposed by section CARDINAL(CARDINAL ) of LAW DATE to describe the justices’ grounds for not placing an applicant of DATE under supervision ; and in failing to state the reason why no other method of dealing with such an applicant other than imprisonment was appropriate , contrary to section CARDINAL(CARDINALA ) of MONEY DATE . In the first CARDINAL cases , the warrants also failed to specify upon what ground they were issued , contrary to section QUANTITY ) of LAW ( which applied to both young and adult offenders ) . ORG held that a warrant of commitment which was defective for failure to comply with the requirements of sections CARDINAL ) or CARDINAL ) of MONEY Courts Act DATE , or section CARDINAL(CARDINALA ) of LAW DATE , was not void , and detention under it was not unlawful , unless and until the warrant was quashed .

DATE . The cases below concern the situation where the applicant was present at the hearing inquiring into his means and circumstances and fixing a postponed sentence of imprisonment , but was absent from the subsequent hearing at which the warrant of commitment was issued ( i.e. ordered to take effect , resulting in the immediate imposition of the previously postponed order of imprisonment ) .

In NORP v. ORG ex parte PERSON [ DATE ] ORG CARDINAL ORG had to determine whether the magistrates were entitled under regulation CARDINAL of the DATE Regulations to issue a warrant of commitment against a charge payer who was absent from the final hearing at which the warrant was issued .

At first instance [ DATE ] ORG , CARDINAL , Mr Justice PERSON held as follows :

“ The power to issue a warrant arises after the court has inquired in the debtor ’s presence into whether his failure to pay which led to the liability order being made was due to his wilful refusal or culpable neglect and has found that it was . But they need not exercise that power immediately . They can , as here , fix the term of imprisonment and postpone the issue of the warrant on conditions . Section CARDINAL [ of LAW DATE ] then would entitle them to exercise that power ( already vested in them ) ‘ from time to time as the occasion GPE unless the contrary intention appears . The occasion certainly does not require a repeat of the [ regulation ] CARDINAL ) inquiry . That is water under the bridge . The occasion does require application by the local authority , proper notice of that application to the defaulter to give him a fair opportunity to put his case as to why the warrant should not issue , followed by proof of a breach and notice and proper consideration of any relevant material put forward by the defaulter . That is all the occasion requires , and no contrary intention appears in the regulations .

Therefore it seems to me ... that natural justice requires notification to the applicant of that hearing . ”

The above conclusion was approved by the Master of the Rolls , PERSON , in ORG .

Lord Justice PERSON concluded as follows :

“ In this context , it goes without saying that it would be essential in , I would think , every case that the debtor be given proper notice of the time and place of the proposed application . If that were not done , the hearing would , I think , be fatally flawed . It is to be expected that , if the debtor were not present , the magistrates would not proceed with the hearing unless satisfied that proper notice of it had been given to the debtor . But if a debtor , having received proper notice , chooses not to attend the hearing , that is his affair , and for the magistrates to proceed in his absence can not , in my opinion , possibly be represented as being in breach of the requirements of fairness or of natural justice . ”

In NORP v. PERSON and ORG ex parte ORG [ DATE ] RA CARDINAL , Mr Justice PERSON stated as follows in considering both the nature of the hearing at which the warrant of commitment was issued and the significance of the applicant not having notice of it :

“ The magistrates in the present case appear to have accepted that a second hearing was necessary before the warrant of commitment was issued . They were right to do so . They did not apparently , however , consider that it was necessary for the debtor to have notice of the date and time of such a hearing . They clearly thought that she would have nothing new to say . They might well be right , but she is entitled , in my judgment , to be told of the date and time of the hearing as a matter of natural justice . The hearing affects her . It is held in public . She should have the right to be there . I do not , however , accept Mr PERSON ’s submission that the hearing can not proceed if she chooses not to attend .

The question arises : on what matter is a debtor entitled to address a court at such a hearing ? Clearly she is entitled to put the authority to proof of non - payment . Further , in my judgment a debtor is entitled to draw the court ’s attention to any change of circumstances since the decision to fix a term of imprisonment which renders it inexpedient for the warrant of commitment to issue . There must , in my judgment , be an inherent power in the court to vary its own order in a case where , since the decision was made , the debtor has become incapable of earning , for instance by reason of an accident . ”

In NORP v. PERSON Justices ex parte ORG ( DATE ) , Mr Justice PERSON held that , in the absence of sufficient proof of service of notice of the hearing at which the warrant of commitment was issued , the applicant was entitled to succeed on his application for judicial review . Mr Justice PERSON stated as follows :

“ The difficulty , though , for the magistrates is , that when there is no appearance before them , they really have no way of telling whether this may be one of those , no doubt , not over frequent cases in which a letter has miscarried for CARDINAL reason or another , perhaps because it has not been delivered or because the charge payer is absent for a continuing period from home , or because , in LOC with a number of separate occupiers , a letter has got into the wrong hands . It seems , therefore , to follow that where there has been service by ordinary post , careful consideration would have to be given to the particular circumstances of the charge payer , before , if ever , concluding that the notice must have come into his hands . ”

In NORP v. GPE - upon - Tyne Justices ex parte Devine [ DATE ] ORG , in which notice of the final hearing had been sent by the GPE court to the applicant ’s last known address , but was never received by the applicant as he had moved address and therefore did not appear at the hearing , Mr Justice PERSON quoted the above - cited passage of PERSON Justice PERSON in ORG and stated that the magistrates in the present case did not appear to have heeded it . This was notwithstanding that they had previously consented to an order being quashed because they had failed to carry out the appropriate inquiry to make sure that the notice of the final hearing must have come into the charge payer ’s hands . Mr Justice PERSON referred to the fact that the magistrates knew that the applicant was intermittently unwell and therefore should also have enquired to ensure that the applicant was not suffering from one of his periodic illnesses at the time of the hearing . In all the circumstances he concluded that “ the magistrates were quite wrong to issue a warrant of committal in his absence ” and that their decision to do so was “ vitiated ” .

DATE . In deciding to award costs against the justices , Mr Justice PERSON cited and applied what he had said in a previous case in which magistrates had on CARDINAL separate occasions fallen into the identical error of failing to make appropriate inquiry as to whether or not notice of the final hearing had been received by the applicant :

“ That seems to me to be behaviour which calls for strong disapproval , and because the principle which has apparently been ignored is CARDINAL which involves the elementary step of ensuring that the person who is liable to lose his liberty has had an opportunity of knowing that the court was considering that particular course on DATE , it is also a disregard for an elementary principle which every court ought to obey . ”

In NORP v. PERSON Justices ex parte PERSON ( DATE ) ( a case concerning the non - payment of a court - imposed fine , unlike the previous cases in this section which all concerned the non - payment of community charge ) , Lord Justice Rose in ORG held as follows :

“ [ Counsel for the applicant ] submits that to issue the Warrant for Commitment , with the knowledge which the Justices had [ that she had not received notice of the hearing because that notice had been returned to the Justices marked “ address inaccessible ” was an act of judicial impropriety and CARDINAL which can properly be characterised PERSON being perverse in that no reasonable bench of Justices would so have acted . ...

... I am entirely satisfied that the submissions of [ counsel for the applicant ] advanced to this court are well - founded . This case illustrates how unwise it may be for Justices to make an order committing someone to prison when they do not know , because that person is not before them and because that person does not know of the date of the hearing , what the up - to - date circumstances are . It seems to me that , knowing that the applicant had not been served with notice of the proceedings , the PERSON ought , much more prudently , to have adjourned the question of whether or not a Warrant of Commitment should be issued until such time as she had been served with notice of the proceedings .

... I am satisfied that , in issuing the warrant in the circumstances in which they did , the Justices did act perversely ... ”

The case of NORP v. PERSON Justices ex parte PERSON and PERSON ( CARDINAL DATE

The applicable principles are set out in the above - cited ex parte PERSON and PERSON

In NORP v. the Governor of PERSON , ex parte PERSON ( No . CARDINAL ) [ CARDINAL ] CARDINAL All England Reports CARDINAL , ORG held that where the executive had detained a person unlawfully , that person was entitled to recover compensation for the tort of false imprisonment . In that case , the responsibility for calculating the date on which the respondent was to be released from prison lay with the Governor of the prison . He had calculated her date of release to be DATE . However , accepting her arguments on judicial review , ORG held that the release date should actually have been CARDINAL DATE . On appeal to ORG , the Governor accepted that the respondent ’s continued detention after DATE had therefore been unlawful . Nevertheless , he contended that he could not be liable for false imprisonment since he had complied with the law as it was understood at the time of his decision . ORG held that the tort of false imprisonment was CARDINAL of strict liability and that its consequences could not be escaped even by showing that the Governor had acted in accordance with the view of the law which at the time was accepted by the court to be correct . There was no lawful justification for the action of the Governor , as the responsibility for calculating the release date lay with him , and not with the order of the court that sentenced the respondent to prison . The respondent was therefore entitled to compensation as it was agreed that her detention after CARDINAL DATE was unlawful .

During the course of his judgment , Lord Hope stated that , as he had decided in her favour on other grounds , it was not necessary for the respondent to rely on her additional argument that the position of the Governor had been contrary to LAW . However , he stated that as the issues that had arisen in the case had raised a novel point of law of some difficulty , it was of interest to see whether the provisions of LAW supported the conclusion which he had determined to represent the present state of the domestic law . In the course of this consideration , Lord Hope stated the following :

“ The jurisprudence of ORG indicates that there are various aspects to Art . CARDINAL ) which must be satisfied in order to show that the detention is lawful for the purposes of that Article . The first question is whether the detention is lawful under domestic law . Any detention which is unlawful in domestic law will automatically be unlawful under Art . CARDINAL ) . It will thus give rise to an enforceable right to compensation under Art . CARDINAL(CARDINAL ) , the provisions of which are not discretionary but mandatory . ”

A little later in his judgment , Lord Hope continued :

“ The question whether detention is or is not lawful under domestic law for the purposes of the ORG is a matter which the jurisprudence of ORG has left for decision by the domestic courts . ORG held that the respondent was entitled to release on CARDINAL DATE . It must follow that under domestic law her continued detention after that date was unlawful . This would indicate that there was a contravention of Art . CARDINAL ) . ”

During the course of his judgment , Lord ORG considered the arguments that ORG had presented on behalf of the Governor of the prison , and concluded as follows :

“ The argument of the Solicitor General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted ; it also confused a valid order which has not yet been set aside with an order which was never valid . These distinctions are basic to any legal system . An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied . But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed . ...

The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the LAW case - law as illustrated by PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL . ORG had categorised the relevant order as coming into the former category and therefore held that there had been a breach of Art . CARDINAL ; the ORG disagreed , categorising the order for detention as prima facie valid , and held that there had been no breach of that LAW . ORG and the ORG applied the same criteria in considering whether the detention had been lawful under the domestic law . Paragraph CARDINAL of the judgment ( at CARDINAL ) relied on by ORG does not support his argument :

‘ A period of detention will in principle be lawful if it is carried out pursuant to a court order . A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention . For this reason , the GPE organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of facts or ORG

In the present case there was an order ; it was never set aside nor did it have to be . The illegality arose because it did not authorise the detention which took place . The order was not obeyed . ”

Magistrates enjoy a statutory immunity from civil liability in certain circumstances . Before the coming into force of section CARDINAL of ORG DATE on DATE , this immunity was provided for by sections CARDINAL and CARDINAL of the Justices of the Peace Act DATE . In brief , a magistrate was liable in damages for acts done by him in his official capacity if it could be proved either ( CARDINAL ) that the act was done maliciously and without reasonable and probable cause , or ( CARDINAL ) that it was performed outside or in excess of jurisdiction .

The position under section CARDINAL of ORG DATE is now that an action lies against a magistrate only if it can be proved that he acted both in bad faith and in excess of jurisdiction .

Prior to DATE neither the civil nor the criminal legal aid scheme provided for full representation before the magistrates in committal proceedings relating to the non - payment of a fine , community charge , council tax or non - domestic rates . The “ Green Form ” legal aid scheme provided TIME of help from a solicitor , and could include preparation for a court case , but did not provide for representation . The assistance by way of a representation scheme ( “ NORP ” ) enabled the court , in limited circumstances , to appoint a solicitor who happened to be within the court precincts to represent a party who would not otherwise be represented . The appointment might be made either of the court ’s own motion or on application by a solicitor . The court was under no obligation to advise a party of the possibility of such an appointment . The ORG scheme , which provided representation for the accused in criminal cases before magistrates , did not extend to the proceedings with which this decision is concerned .

Following the ORG ’s judgment in PERSON , which found a breach of LAW and PERSON ) of the LAW in respect of the applicant ’s complaint of a lack of legal representation , the GPE enacted regulation CARDINAL(CARDINAL ) of ORG ) LAW ( S.I. CARDINAL , No . CARDINAL ) . Under that provision , with effect from DATE , any person whose financial resources are such as to make him eligible is entitled to assistance by way of representation in proceedings before a GPE court in which he is likely to be “ at risk of a term of imprisonment being fixed in his case ( whether at the hearing for which ORG is granted or subsequently ) ” as a result of his failure to pay any sum which he has been ordered to pay .


The applicant is a NORP national , born in DATE . He is currently living in GPE .

He is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

The applicant lived in GPE with his parents and siblings DATE . He went to school there and later on took up employment . His parents and CARDINAL brother have meanwhile acquired NORP citizenship .

On DATE ORG ) revoked the applicant ’s unlimited residence permit . It noted that ORG , on DATE , had convicted the applicant of damage to property and burglary and had sentenced him to CARDINAL months’ imprisonment suspended on probation . On DATE the same court had convicted him of attempted theft and attempted intimidation and had sentenced him to CARDINAL months’ imprisonment suspended on probation . In view of these convictions , both of which were final , the applicant no longer fulfilled the requirements for an unlimited residence permit .

On DATE ORG issued a residence ban of unlimited duration against the applicant on account of his convictions .

On DATE ORG ) , upon the applicant ’s appeal , quashed the residence ban against him . It relied on LAW ( PERSON ) according to which no residence ban may be issued against an alien if it would have been possible to grant him citizenship under LAW § CARDINAL of LAW , i.e. if he has been resident in GPE without interruption for DATE , before the offences in question were committed , except in case of offences punishable with more than DATE imprisonment .

On DATE ORG dismissed the applicant ’s request for a residence permit . His appeal to ORG for the ORG was to no avail .

On DATE ORG issued a deportation order against the applicant . It relied on DATE the DATE LAW , according to which illegally resident aliens are to be ordered to leave the Federal territory . It noted that in addition to his convictions in DATE and DATE , the applicant had been convicted of possession of illicit drugs by ORG on DATE , without an additional sentence being passed . On DATE ORG had convicted him of making illicit drugs accessible to minors and sentenced him to CARDINAL months’ imprisonment . On DATE ORG had convicted him of a number of offences including aggravated fraud , theft , assault and obstructing public authority and had sentenced him to CARDINAL months’ imprisonment . The authority acknowledged that the deportation constituted a serious interference with the applicant ’s private and family life . According to PERSON of the DATE LAW a deportation order was only to be issued if it was necessary within the meaning of LAW of LAW . Having regard to the applicant ’s repeated convictions including those for drugs offences , which involved particular dangers for public safety , the public interest in deporting him outweighed his interest in remaining in GPE .

On DATE ORG dismissed the applicant ’s appeal .

On DATE ORG Verfassungsgerichtshof ) refused to entertain the applicant ’s complaint . Subsequently , it referred the case to ORG ( Verwaltungsgerichtshof ) .

On DATE ORG dismissed the applicant ’s complaint . It found that the deportation order against the applicant was necessary within the meaning of LAW of LAW in the interests of public safety and the prevention of crime , having regard to his prolonged illegal residence since the withdrawal of his residence permit and the gravity of the offences , in particular the drugs offences , committed by him .

The decision was served on the applicant on DATE .

On DATE the applicant left GPE and is now living in GPE .


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

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

The applicant is a lawyer . His practice includes , inter alia , defending criminal cases at ORG and dealing with applications before ORG . Before becoming a lawyer he worked as a prosecutor at ORG .

In DATE the applicant was acting as defence counsel for a Mr LOC who had been charged with theft and was being kept in detention . TIME lodged an application with ORG , which resulted in a judgment in which violations of LAW , DATE and DATE were found ( see PERSON v. GPE , no . CARDINAL , DATE ) .

In DATE the applicant filed with ORG a habeas corpus petition on behalf of his client , Mr PERSON . A hearing on the petition was listed for DATE before the CARDINALth criminal panel of the court . The panel consisted of a presiding judge , PERSON , and CARDINAL lay judges .

The applicant submits that on DATE he requested to be given access to the case file of the investigation against his client in order to be able to prepare for the hearing . The presiding judge , PERSON , refused to give the applicant access , giving oral instructions to that effect to the court clerk in charge of the file .

At the hearing on DATE the applicant requested an adjournment , stating that he had not been given access to the investigation file by personal order of the presiding judge . The applicant submits that an argument ensued between him and the presiding judge as to whether he should have had access to the file .

DATE the applicant read TIME of the hearing . He submits that he discovered that they did not accurately reflect what had been said at the hearing . They read that his request for an adjournment had been based only on his assertion that he had not read the investigation file and no mention was made of the reasons of him not having read the file . The applicant apparently considered that the wording of the minutes gave the impression that it was his own fault not having read the file .

On DATE the applicant filed an application with ORG , requesting rectification of the TIME . The application read :

“ The GPE ORG CARDINALth criminal panel ...

Dear judges ,

At the insistence of the presiding judge , PERSON , incorrect and untrue facts , which do not correctly reflect my statements in my capacity of defence counsel , were recorded in the minutes of the hearing ... held on DATE :

Despite my express request the minutes do not reflect my statement that on DATE judge PERSON personally , by oral order , did not allow me to acquaint myself with the investigation file and that for this reason I consider that the interests of my client were prejudiced .

Instead , my statement was recorded , under the dictation of the judge , as : “ I have not acquainted myself with the investigation file ” .

The minutes do not reflect my statement that my request of DATE ... in which I ask the presiding judge ... to allow me to acquaint myself with the investigation file has not been put in the case file .

The minutes do not reflect the numerous attempts of the presiding judge to prevent me from adducing arguments in support of my position as to whether the court should proceed with the hearing .

For the above reasons and pursuant to LAW ] I request that the minutes be rectified as necessary so that they reflect the actual statements of the parties .

Only this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents . ”

On DATE the applicant complained to the chairperson of ORG that he was not allowed to consult the investigation file and that he could not have this fact entered in TIME of the proceedings .

The applicant submits that on DATE the minutes were corrected to reflect his statement as it actually was . He submits , however , that this was not done in keeping with the proper procedure for the rectification of minutes . On DATE the applicant withdrew his request for rectification of the minutes as having become moot .

Meanwhile , on DATE , judge PERSON complained to ORG , requesting the opening of criminal proceedings against the applicant for having defamed her by stating that in recording in TIME of the hearing of DATE incorrect and untrue facts , which did not correctly reflect his statements , she had committed a “ serious procedural violation which bordered on the criminal offence of falsifying documents “ .

On DATE ORG opened criminal proceedings against the applicant for having committed the offence of defamation , contrary to LAW in conjunction with LAW ) of LAW ( “ the ORG ” ) .

The applicant appealed to ORG , arguing that in the circumstances there was no indication of him having committed an offence .

On DATE ORG dismissed the appeal . It reasoned that , contrary to the applicant 's allegations in his application of DATE , his statement that he could not have access to the investigation file because of judge PERSON 's instructions had been entered in the minutes . It went on to state that the mere false imputation of conduct to the judge , without more , was defamatory .

On DATE the chairperson of ORG wrote to the Bar , informing them that , after considering the issue of granting defence counsels in habeas corpus proceedings access to the investigation files of their clients , the judges of the court had decided that there were no legal grounds for refusing such access and that henceforth counsels would be allowed to consult the files .

On DATE the applicant was charged under LAW ( CARDINAL ) in conjunction with LAW ORG with having imputed a crime –falsification of documents DATE to judge PERSON , by having written “ [ o]nly this would cure a serious procedural violation by the court which borders on the criminal offence of falsifying documents ” . As a measure to secure appearance at the envisaged trial the applicant was placed under an obligation to not leave the town .

DATE the applicant appealed to ORG . He objected against the charges , arguing that the facts alleged against him did not constitute a crime , but constituted merely the lawful exercise of his procedural rights as a defence counsel .

On DATE the head of ORG of GPE wrote to ORG , requesting the discontinuation of the proceedings against the applicant . He stated that the actions of LOC and ORG were in breach of the law and that the applicant had only exercised his procedural rights . He further stated that the court was a collective body and could not be defamed or insulted within the meaning of the ORG . He also expressed ORG concern that he prosecution had incriminated a routine procedural act performed in pursuance of a counsel 's professional duties . The prosecution had thus infringed a lawyer 's freedom to act in defence of his clients ' rights .

On DATE the investigator in charge of the case concluded that the applicant should be committed for trial .

On DATE ORG ordered that the proceedings be transferred to ORG , as the applicant had formerly been a prosecutor at ORG and the defamation 's alleged victim , judge PERSON , was a judge at ORG .

On DATE ORG discontinued the proceedings against the applicant . It stated that it would not examine whether the applicant had been properly charged , but reasoned that he had neither committed the actus reus of the crime of defamation , nor had the mens rea to commit defamation . In his application of DATE the applicant had used the form of address “ dear judges ” . Therefore , the application had not been addressed personally to judge PERSON judge had to acquaint herself with the application , which was addressed to the CARDINALth criminal panel of the court , in her professional capacity . By making this application for rectification of TIME the applicant had merely sought to defend the interests of his client , which was , indeed , within his professional obligations . It was also beyond doubt that the words “ borders on a crime ” featuring in the applicant 's text could not be considered as amounting to the imputation of a specific crime .

Article CARDINAL of the ORG , as in force at the relevant time , provided :

“ CARDINAL . Whoever divulges a vilifying fact about another or imputes to him a crime shall be punished for defamation by DATE imprisonment or a fine of MONEY , as well as by public reprimand .

NORP The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed crimes . ”

Article CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of the ORG , as in force at the material time , provided that if the defamed person was an official and the defamation was committed against him during or in connection with the performance of his or her duties , the punishment was DATE imprisonment and a public reprimand . Offences under Article CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of the ORG were publicly prosecutable ( LAW , as in force at the relevant time ) .

According to the doctrine , the actus reus of defamation consists of imputing to someone the commission of a crime , i.e. the defamer must state before a third party that the defamed has committed a specific crime , which the defamed has not in fact committed ( PERSON , PERSON право , PERSON част , PERSON против правата на човека , ORG , DATE , стр. CARDINAL ) . Defamation is completed when CARDINAL party has learned about the defamer 's statement ( i d . , стр. CARDINAL ) .

Criminal proceedings for a publicly prosecutable crime must be opened whenever the prosecution authorities receive a notification , supported by sufficient information , that a crime might have been committed ( Articles CARDINAL and CARDINAL of LAW ( “ the ORG ” ) ) . If the notification to the prosecuting authorities was not supported by sufficient information , they had to order a preliminary inquiry in order to determine whether the opening of criminal proceedings was warranted ( LAW ORG , as in force at the material time ) .

LAW ORG provides that when sufficient evidence is gathered that a person has committed an offence , he or she must be charged .

Under LAW ORG , a measure to secure appearance before the competent authority must be imposed in respect of every person charged with having committed a publicly prosecutable crime .

The most lenient such measure is a written undertaking by the accused that he or she would not leave his town without authorisation by the respective authority – the prosecutor or the court , depending on the stage of the proceedings ( LAW ORG ) .

Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) , which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts , provides , as relevant :

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

NORP accusation of a crime , if the accused is acquitted or if the criminal proceedings are discontinued because ... the act committed by the accused is not a crime ... ;

The ORG is liable for all pecuniary and nonpecuniary damages which are the direct and proximate result of the unlawful act ( section CARDINAL ) . The ORG 's liability is strict , i.e. no proof of fault is required ( section CARDINAL in fine ) . An action under the LAW is exempt from the initial payment of court fees ( section ORG ) ) .

Minutes must be kept of all court hearings ( LAW . They must set out , inter alia , all motions , remarks and objections of the parties ( LAW in conjunction with LAW ORG ) . They must be signed by the presiding judge and the secretary of the court ( Article CARDINAL § CARDINAL of the ORG ) .

If CARDINAL of the parties considers that the minutes are not complete or are erroneous , it may , within DATE after their drafting , make a written request for their rectification or amendment . The request is first examined by the presiding judge , and if he or she denies it , it is examined in private by the entire court panel ( LAW ORG ) .


Anatoly Kovler;Christos Rozakis;George Nicolaou

The applicants were born in DATE and live in GPE .

On DATE the applicants sued the ORG association seeking conclusion of employment contracts .

NORP The Nagatinskiy ORG of GPE ( “ the ORG ” ) scheduled the first hearing for DATE . Between DATE and DATE CARDINAL hearing was held as planned . CARDINAL scheduled hearings did not take place due to the respondent ’s default in appearance or requests for adjournment , QUANTITY hearings had to be postponed following the applicants’ failure to appear or requests for adjournment , and QUANTITY hearings could not proceed as both parties either failed to submit evidence or to show in court altogether .

On DATE ORG considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list .

On DATE the applicants asked the court to reinstate the case to its list claiming that they had not been able to appear at the hearings because the first applicant had been undergoing hospital treatment .

On DATE ORG quashed its earlier decision and reinstated the case to its list . The next hearing was scheduled for DATE . DATE and DATE CARDINAL hearings were held as planned , whereas CARDINAL other hearings were postponed due to the fault of the respondent , CARDINAL for the applicants’ failure to appear , and CARDINAL others for both parties’ default .

On DATE ORG again considered that the applicants no longer intended to pursue their civil action and decided to strike the case out of its list .

On DATE the applicants asked the court to reinstate the case to its list . On DATE the ORG quashed its decision of DATE after finding that the applicants had not been duly notified of certain unspecified hearings and resumed the proceedings . The next hearing was scheduled for DATE .

NORP The hearing of DATE was adjourned as the respondent did not appear .

On DATE and DATE the hearings were held as planned .

On DATE ORG dismissed the applicants’ claims in full .

On DATE ORG upheld the judgment on appeal .

On an unspecified date the first applicant sued ORG of GPE for recalculation of his pension .

On DATE the Justice of the Peace of ORG of LOC of GPE dismissed his claims .

On DATE the ORG of GPE upheld the judgment on appeal .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by Mr PERSON , of ORG .

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

In DATE the applicant was granted a tenancy , by way of an administrative decision , in respect of an apartment situated in a private house in FAC in GPE , subject at that time to the compulsory management of the ORG .

DATE the applicant worked in GPE , apparently living in a hotel . During that period he was registered for a temporary stay in the local register of inhabitants . This temporary registration was only possible on a condition that he had a permanent address elsewhere . On DATE the applicant voluntarily terminated the registration of his permanent residence in ORG . On DATE and on DATE respectively , the municipal authorities cancelled the permanent registration of PERSON and ORG , the applicant 's daughters , in view of the fact that they had emigrated from GPE to GPE .

On DATE the applicant 's tenancy was revoked by means of an administrative decision on the grounds that the applicant had ceased to satisfy the contractual requirements , as he had moved out of his apartment and was registered as a permanent inhabitant in GPE On DATE ORG of the FAC , acting as a second - instance administrative authority , upheld this decision . On CARDINAL DATE ORG dismissed the applicant 's appeal against the decision of DATE .

On DATE the ORG refused to register the applicant as having a permanent address in FAC . On DATE this decision was upheld by the higher administrative authority , which considered that it was beyond dispute that the applicant was not entitled to have a permanent residence at the apartment concerned . He had lost his entitlement following the final decision of CARDINAL DATE , by which the allocation of the apartment to him had ceased to be valid . The applicant had not been living there since DATE , when he had moved out and left it to his daughter . He had also requested that his name be struck off the register of persons having a permanent address there , and had moved into his brother 's apartment in L.

In DATE ORG of the FAC allocated replacement accommodation to the applicant , consisting of a room QUANTITY in size , with the use of a toilet and water tap in a communal flat . The applicant appealed against this decision , alleging that the rescission of the previous tenancy in FAC had been unlawful . On CARDINAL DATE the second - instance administrative authority at the FAC dismissed the applicant 's appeal .

On DATE the Minister of ORG refused to lodge an extraordinary appeal against the judgment of CARDINAL DATE , finding that it was in conformity with the law , particularly as the applicant had moved out of his apartment and registered his permanent address elsewhere , thus clearly relinquishing his entitlement to that apartment .

In DATE the applicant was summoned to vacate the apartment , but the eviction was subsequently stayed at the applicant 's request , and on the objection of the owner of the replacement accommodation .

On DATE ORG dismissed the applicant 's appeal against the decision of CARDINAL DATE , considering that the replacement accommodation met legal standards , and that the applicant 's appeal essentially sought to challenge the revocation of his entitlement to the previous apartment .

In DATE the ORG informed the applicant that he could not be registered with a permanent address at FAC .

On DATE the President of ORG informed the applicant that he would not consider requesting the Minister of ORG to lodge an extraordinary appeal against the judgment of CARDINAL DATE , account being taken of the fact that the allocation of replacement accommodation was the natural consequence of the applicant 's loss of entitlement to the previous apartment .

On DATE ORG of the ORG quashed the decisions of DATE and CARDINAL DATE by virtue of which the applicant had been allocated replacement accommodation . ORG noted that the house in which this apartment was situated was owned by PERSON , who had objected to that accommodation being allocated to the applicant .

On DATE the applicant lodged an action with the ORG for a declaration that the administrative decision of DATE remained valid . He submitted that he had lost the legal title to the apartment following the unlawful DATE decision in which the authorities had flagrantly breached the law , in particular by disregarding the fact that he had never permanently left the apartment . As a result of the decision depriving him of the tenancy contract , he could not be registered as an inhabitant , with all the adverse administrative consequences thereof . He referred to difficulties in obtaining his passport , and to the fact that he was regarded by the authorities as a homeless person . He had encountered difficulties in exercising his voting rights as it was only after persistent efforts that he was eventually registered on the electoral lists .

On DATE ORG refused to entertain his claim , apparently considering that it lacked jurisdiction to examine issues pertaining to the validity of administrative decisions .

In reply to the applicant 's complaint that he had been deprived of his right to vote in the municipal elections in DATE , the Secretary of ORG informed him on DATE that the voters ' lists had been prepared on the basis of municipal electoral lists . These lists included ex officio persons with permanent addresses in the given municipality . Persons temporarily residing in the municipality , who were not so registered could be included in electoral lists , provided that they submitted a request for registration .

In DATE the applicant complained to the FAC that , due to the fact that he did not have an officially registered permanent address , he could not obtain a certificate of entitlement to a share in a privatised ORG ( a ORG share certificate ) . Only those citizens who had a permanent abode were entitled to receive such certificates .

In a reply dated DATE , the applicant was informed that under the applicable laws on privatisation he had not been classified as a person eligible to collect a ORG share certificate , in the absence of a permanent registered address . Nevertheless , as a consequence of a judgment of ORG , confirmed by ORG , the entitlement of persons without a registered permanent address to receive a ORG share certificate had been recognised and such persons would be granted their share certificates in the course of time .

Apparently , the applicant is still living in the apartment in FAC . As he is regarded as staying in the apartment without any legal basis , he is obliged to pay double rent under applicable housing regulations .

DATE on , housing matters were subject to a high degree of state control under successive acts of housing legislation . The most important characteristic of this system , a so called “ special lease scheme ” was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant . Under these protected tenancies , the tenants paid controlled rent and the owners could not terminate lease by giving notice on the tenant . Although “ the special lease scheme ” was abolished under LAW , the system of protected tenancy is still applicable to the tenants who had been allocated their apartments on the basis of previous administrative decisions .

The obligation for NORP citizens residing in GPE to register their permanent address in a municipality 's register of inhabitants is stipulated in LAW ( LOC o ewidencji ludności i dowodach osobistych z CARDINAL.CARDINAL.CARDINAL ) .

Under LAW , the notion of “ living permanently ” implies residing at a given address with the intention of making it the principal centre of one 's vital interests .

Article CARDINAL ( CARDINAL ) of the DATE Act provided that : “ a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment ( or other dwelling LOC ) concerned . ” On DATE the NORP Constitutional Court declared Article CARDINAL ( CARDINAL ) of LAW unconstitutional and , subsequently , this provision was repealed with effect from DATE . As a result of the judgment of ORG , the certificate to the effect that a person is entitled to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered .

Under LAW of DATE and of LAW of DATE a person who has no fixed residence shall be registered , upon his own motion lodged DATE before the election at the latest , as a voter in the electoral list in a commune in which he is staying .

Under LAW of DATE ( LOC o narodowych funduszach inwestycyjnych i ich prywatyzacji ) every citizen of GPE aged DATE or over and permanently residing in GPE was entitled to receive ORG ( ORG ) share certificate ( to be later converted into company stock ) . Under the amended version of this provision , which came into force on DATE , the Minister of ORG and Administration was responsible for drawing up the lists of persons , not having a permanent residence address in GPE , who were entitled to receive a ORG share certificate .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Criminal charge;Reasonable time);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence)

On DATE ORG filed an action for payment of NORP schillings ( ORG ) CARDINAL against the applicant on the ground that , following termination of their contractual relationship , the applicant 's current account showed a debit balance for this amount .

On DATE ORG ( Bezirksgericht ) , in summary proceedings , issued an order for payment of the debt ( PERSON ) against the applicant . The applicant , represented by PERSON , filed an objection ( PERSON ) , which ORG received on CARDINAL DATE .

On DATE judge NORP at ORG held a hearing .

On DATE ORG received notice that PERSON no longer represented the applicant . On DATE a hearing which had been scheduled for CARDINAL DATE was cancelled . The ORG submit that this was due to the fact that the applicant 's representative had withdrawn from the case , while the applicant submits that the court was prevented from holding the hearing . Subsequently , CARDINAL DATE was set for the next hearing .

On DATE the applicant , represented by PERSON , filed a counterclaim ( PERSON ) requesting compensation in the total amount of ORG CARDINAL,CARDINAL for loss of interest which had allegedly been caused by the negligent conduct of the bank in connection with a loan taken out by a certain PERSON , for which he , the applicant , had mortgaged his property . Further , he requested a declaratory decision to the effect that a guarantee he had given to ORG in relation to PERSON 's debt was null and void .

On DATE , the bank filed preparatory submissions in reply . It particularly denied that there was a link between the CARDINAL claims at issue .

NORP On DATE judge PERSON at ORG held a hearing .

On DATE , DATE and DATE , judge P. at ORG held hearings . The parties presented documentary evidence and the court heard ORG and PERSON , CARDINAL employees of ORG , and PERSON , the lawyer involved in the case , as witnesses . At the last of these hearings the court decided to join the proceedings concerning the bank 's claim and the applicant 's counterclaim . It also noted that ORG had extended their claim , requesting additional payment of ORG CARDINAL for which the applicant was allegedly liable on account of his guarantee for the debt of E.

On DATE ORG decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and PERSON , which was pending before ORG ( PERSON ) , became final .

On DATE ORG , upon the applicant 's appeal , quashed the decision to adjourn on the ground that , according to the relevant procedural rules , it had to be taken in the course of an oral hearing .

On DATE PERSON informed ORG that she no longer represented the applicant . The applicant was subsequently represented by PERSON

On DATE and DATE , judge PERSON . at ORG held further hearings . The applicant was heard as a party and PERSON was again heard as a witness . At the latter hearing the ORG again decided to adjourn the proceedings until the judgment of ORG in the proceedings between the applicant and PERSON became final .

On DATE ORG , upon the applicant 's appeal , quashed the decision and ordered ORG to continue the proceedings . It found that ORG had wrongly assumed that the proceedings between the applicant and PERSON would resolve a preliminary incidental question . ORG received ORG decision on DATE .

On DATE the applicant extended his counterclaim to a total amount of ORG CARDINAL .

On DATE judge PERSON . at ORG , upon the claimant 's request , adjourned a hearing which had been scheduled for DATE to CARDINAL DATE .

On DATE the applicant informed ORG that he had revoked PERSON power of attorney .

On DATE judge PERSON . made a request to be replaced as she considered herself to be biased on account of certain accusations which the applicant had made against her . On DATE the President of ORG granted her request and assigned the case to judge PERSON hearing which had been scheduled for CARDINAL DATE was cancelled . The applicant was at that time represented by PERSON

The next hearing was scheduled for DATE but had to be postponed to CARDINAL DATE upon the claimant 's request .

On DATE the applicant requested legal aid . Upon ORG request , he supplemented his application on DATE .

On DATE ORG dismissed the applicant 's request for legal aid .

On DATE , who had been appointed as the applicant 's representative by ORG under section CARDINAL of LAW ( Rechtsanwaltsordnung ) - applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him - requested that the hearing scheduled for DATE be postponed . The applicant claims that he had only requested the appointment of counsel for this specific request , while the Lawyer 's Chamber appointed PERSON to represent him in the further proceedings .

On DATE ORG upon the request of PERSON postponed the next hearing which had been scheduled for DATE to CARDINAL DATE .

On DATE PERSON requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant . ORG dismissed the request . The applicant submits that he was unaware that PERSON acted as his counsel and that the latter had tried to contact him at a wrong address . He further claims that the summons to appear personally at the hearing of DATE was not correctly served on him .

On DATE judge A. at ORG held a further hearing and admitted the extension of the applicant 's counterclaim .

On DATE ORG cancelled the date for the next hearing which had been set for DATE . It noted that , in the proceedings at issue , the parties were obliged to be represented by a lawyer ( NORP ) . As the applicant had requested legal aid ( see paragraph CARDINAL below ) and was currently not represented , the hearing could not take place .

On DATE judge PERSON at ORG set DATE as a date for the next hearing . In the summons the applicant was informed that he had to be represented by counsel at the hearing . Should he not be represented , he would be considered as being in default . Upon the claimant 's request the hearing was postponed to DATE .

On DATE neither of the parties appeared at the hearing . Consequently , the proceedings were stayed ( Ruhen des PERSON ) . So far , neither of the parties has requested their continuation .

On DATE the applicant requested legal aid . He submitted a declaration of means , according to which he had no income , property , savings or other assets . Further , he declared that he had debts with ORG and the Sch . limited company . The standard form for this declaration contained a warning that , in case legal aid was obtained improperly by making false or incomplete statements , a fine for abuse of process ( PERSON ) could be imposed .

In his accompanying submissions the applicant stated , inter alia , that until DATE he had received ORG DATE from ORG Company . As of DATE he was without income and was moreover obliged to pay back any payments he had received from that company . His old - age pension was only due as of CARDINAL DATE . Further , the applicant stated that he had no relatives and received support from a few acquaintances .

On DATE judge Er . at ORG ordered the applicant to provide further information . He was requested to submit the names and addresses of the persons supporting him , and to specify the amounts , intervals and means of their payments . Further , the applicant was requested to submit a number of supporting documents .

On DATE the applicant submitted that he received ORG CARDINAL per week from a certain PERSON also submitted a number of documents .

On DATE ORG , without a hearing , dismissed the applicant 's request for legal aid and imposed a fine of ORG CARDINAL for abuse of process . Referring to the applicant 's declaration of means and his further submissions , it found that the applicant had made incomplete or false statements . In particular he had declared that he was without income since DATE and only received ORG DATE . However , the documents submitted by him showed that he had paid his rent of ORG CARDINAL from DATE to DATE . As the total income which he claimed per DATE was less than this sum , it could not be deduced from his submissions how he had been able to pay his rent . Finally , the ORG noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted improperly to obtain legal aid .

On DATE the applicant appealed against this decision .

On DATE ORG , sitting in private , dismissed the applicant 's appeal . It found that ORG had rightly rejected the applicant 's request for legal aid . The applicant 's submissions that he had savings which allowed him to pay his rent from DATE , constituted new facts which were inadmissible in the appeal proceedings . In his request for legal aid he had stated that he had received no income since DATE and depended on the support of acquaintances . Upon the ORG 's request to supplement his submissions , the applicant had specified that he received ORG CARDINAL per week as support . He had not , however , stated that he had any savings to cover his maintenance . ORG had rightly concluded that he had made incomplete or false statements and had , thus , failed to show that the costs of the proceedings would endanger his means of livelihood . It had also correctly imposed a fine for abuse of process in accordance with section CARDINAL of the Code of Civil Procedure ( Zivilprozessordnung ) .

On DATE ORG issued an order for payment of the fine for abuse of process .

On DATE ORG , referring to section QUANTITY of LAW , noted that an attempt to collect the fine had been futile , and converted the fine into CARDINAL days’ imprisonment . The applicant was informed that he could lodge an appeal against this decision . It appears that the applicant did not do so .

Section CARDINAL of the Code of Civil Procedure ( Zivilprozeßordnung ) provides that a court shall impose a fine for abuse of process of up to CARDINAL times the amount provided for in section QUANTITY CARDINAL of the same Code ( namely ORG CARDINAL,CARDINAL ) on a litigant who obtains legal aid improperly by making false or incomplete statements .

Section CARDINAL provides inter alia that a fine for abuse of process may not exceed ORG CARDINAL ( paragraph CARDINAL ) . In the event of an inability to pay , the fine shall be converted into imprisonment . The length of imprisonment shall be determined by the court , but may not exceed DATE ( paragraph CARDINAL ) .

According to section CARDINAL of the Code of Civil Procedure an appeal ( PERSON ) lies against any decision of a court , unless it is explicitly excluded .

Section CARDINAL of LAW ) deals with fines ( PERSON ) . It provides that fines shall be expressed as day - fines . They shall not amount to DATE - fines ( paragraph CARDINAL ) . Day - fines shall be fixed according to the offender ’s means and personal circumstances at the time of the judgment at first instance . However , they shall not amount to less than ORG DATE or more than ORG CARDINAL ( paragraph CARDINAL ) . If a fine proves to be irrecoverable , a sentence of imprisonment in default shall be passed . DATE imprisonment in default shall correspond to CARDINAL day - fines ( paragraph CARDINAL ) .