Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is currently detained in NORP No . CARDINAL Prison .

Under a contract of DATE , ORG ( “ the Ministry ” ) undertook to transfer to the applicant PERCENT of the shares of the “ ORG ” ( “ the company ” ) , on condition that he , amongst other obligations , increased the company ’s initial capital to CARDINAL NORP laris ( EUR CARDINAL,CARDINAL ) within DATE of signing the contract .

On DATE and DATE , ORG requested an up - date of the progress made in the performance of the contractual obligations . The applicant replied by submitting documents , according to which the amount of ORG CARDINAL ( EUR CARDINAL ) , initially placed with a NORP bank , had been transferred to the company ’s account opened with a NORP bank .

Following the recommendation of ORG ( a ORG agency ) , ORG ( “ the ORG ” ) examined the applicant ’s financial operations . In a decision of CARDINAL DATE , a senior prosecutor of the ORG , having established the authenticity of the bank records submitted by the applicant , refused , pursuant to LAW ( “ the ORG ” ) , to institute criminal proceedings for an alleged falsification of those documents . ( The applicant did not submit a copy of that decision to the ORG . )

On DATE the Prosecutor General personally opened a criminal case regarding the misappropriation of PERCENT of the ORG ’s shares by fraud and the falsification of bank documents , offences envisaged respectively by ORG CARDINAL § CARDINAL ( b ) and CARDINAL of LAW ( “ the ORG ” ) . ( The parties did not submit a copy of that decision . )

On DATE the applicant was charged and taken into custody .

Initially , the applicant was placed in a “ quarantine cell ” at GPE No . FAC . According to him , the cell was filthy , dilapidated , infested with vermin , and without ventilation or natural light . Shortly afterwards , the applicant was transferred to an ordinary cell in the same prison where there were CARDINAL beds for the CARDINAL inmates held there . The detainees were obliged to take turns to sleep . The cell was unsanitary and the food putrid .

On DATE the Krtsanisi - Mtatsminda District Court in GPE dismissed the applicant ’s request for release , remanding him in custody for DATE . An oral hearing was held . In its reasoning the court stated :

“ the collected evidence ... discloses a reasonable suspicion that the accused has committed the incriminated offences ... The evidence has been gathered in conformity with procedural norms ... Due regard should be had to the fact that the applicant is charged with serious crimes ... The case materials substantiate the suspicion that he might interfere with the establishment of the truth ... In view of the prospect of a severe punishment , [ he ] may abscond ... ”

In his appeal of CARDINAL DATE , the applicant complained that the imposition of detention on remand had been justified solely by the gravity of the charges and the severity of the sentence . In his view , the prosecution had not put forward any specific evidence or arguments supporting any actual risk of him colluding or absconding . The applicant claimed to have been actively cooperating with the prosecution authority even prior to his arrest by always appearing , whenever summoned for interviews , and by producing all the requested evidence which , in fact , had become the basis of the criminal case file against him . As another guarantee of his reliability , the applicant referred to his “ good reputation ” , associated with the fact of being a designated trustee of ORG .

The ORG replied that the detention was justified by the gravity of the charges and a reasonable suspicion that the applicant could interfere with the establishment of the truth . However , no concrete arguments or factual circumstances of the particular case were put forward in this regard .

On DATE the ORG dismissed the applicant ’s appeal against the remand measure at an oral hearing . Whilst analysing various pieces of evidence , the court had regard mostly to whether or not the charges were well - founded . Concerning the grounds for detention , the court reiterated that , pursuant to ORG CARDINAL and CARDINAL of the ORG , the gravity of the offence justified the imposition of the measure . The appellate hearing was attended by the applicant and his advocates .

On DATE the ORG terminated the preliminary investigation and transferred the case , along with the bill of indictment , to the trial court .

On DATE the GPE ORG in GPE committed the applicant for trial under LAW ORG and confirmed the remand in custody . This decision was rendered in a standard , template form with pre - printed reasoning . The judge simply added , in the blank spaces , a brief statement of facts , the name of the accused , the definition of the impugned offence and the measure of pre - trial restraint . As regards the confirmation of the latter , the printed standard phrase read as follows :

“ The measure of pre - trial restraint – detention DATE has been correctly chosen . ”

On DATE the NORP - Saburtalo ORG in GPE started the examination of the case on the merits , and on DATE convicted the applicant of attempted fraud . The court sentenced him to DATE in prison . The charge of falsification of bank documents was dropped as timebarred . The verdict was based on a thorough assessment of the criminal case materials .

On DATE the NORP ORG dismissed the applicant ’s appeal and upheld the verdict of CARDINAL DATE with some merely textual amendments .

On DATE ORG dismissed the applicant ’s cassation appealcarefully examined by the preliminary and judicial investigations , that no significant breaches of procedural law had occurred and that the lower courts had correctly assessed the facts and the law .

Amongst the complaints made by the applicant before the appellate and cassation courts , the applicant raised the same matters as those now put before ORG LAW ( see paragraph CARDINAL below ) .

After his conviction , the applicant was transferred to Rustavi No . CARDINAL Prison , where the conditions were , according to him , similar to those in GPE No . FAC .

The applicant alleged that the following incident occurred during his detention : In TIME of DATE , he was awoken by the noise of machine gun fire in NORP No . CARDINAL Prison . As it appeared later , the police forces had conducted a special operation against criminal elements there .

NORP The applicant complained about the conditions in Rustavi No . CARDINAL Prison and the incident of DATE to several national and international non - governmental organisations , but never to the prosecution or judicial authorities , according to the case file . Whilst claiming to have written a letter to ORG , informing the latter of the poor conditions of his detention , the applicant did not produce any copy thereof , or indicate its date .

On an unspecified date , the administration of Rustavi No . CARDINAL Prison disciplined the applicant for failing to attend a mandatory inspection of prisoners , and he was placed in a punishment cell for DATE . However , he has never complained about this to any competent national authority , considering that such a course of action would have been ineffective .

On DATE ORG , the authority in charge of the penitentiary system , initiated criminal proceedings against the applicant for using a mobile telephone in NORP No . FAC , in breach of the prison rules .

At an oral hearing on DATE attended by the applicant , ORG allowed the prosecutor ’s motion and imposed upon the applicant detention on remand for DATE . The court reasoned that , since the applicant was already detained following his conviction , it was impossible to apply any other measure of pre - trial restraint .

On DATE the NORP ORG , sitting in camera , dismissed the applicant ’s appeal and upheld the order of CARDINAL DATE .

The applicant addressed several complaints to the ORG , requesting the termination of the allegedly unlawful proceedings . He also claimed that his procedural rights were breached during the investigation .

According to the case file , the second set of criminal proceedings against the applicant is still pending before a court of first instance .

LAW

“ ... the accused can not be held on remand for DATE . ”

Code of Criminal Procedure , as it stood at the material time

LAW CARDINAL - “ FAC for the refusal to initiate criminal proceedings and for the decision to terminate the initiated proceedings ”

“ Criminal proceedings shall not be initiated and the initiated proceedings shall be terminated , if :

a ) The action , envisaged by the criminal law , does not exist ...

m ) The inquiry , investigation or prosecution authority has refused to initiate criminal proceedings or decided to terminate the proceeding initiated for the same offence ... ”

Article CARDINAL § CARDINAL

“ Before the end of the investigation , the parties have the right to lodge an application with the court which has imposed a measure of pre - trial restraint ... requesting its annulment or modification ... The parties may exercise this right only when newly discovered circumstances of a substantial character , which were not known to the judge at the time of the imposition of the pre - trial restraint measure , require that the reasonableness of that measure be reviewed . ”

Article CARDINAL § CARDINAL

“ Charges shall be preferred TIME after the arrested person is brought before an inquiry agency . If , within TIME , the court does not decide on the imposition of detention on remand or another measure of restraint , the arrested person shall be released immediately . ”

LAW , CARDINAL and CARDINAL - “ The basis for and objectives of the imposition of a restraint measure ”

“ A restraint measure shall be applied to ensure that the accused can not avoid the preliminary investigation and trial , that his or her further criminal activity is prevented , that he or she can not interfere with the establishment of the truth in the given criminal case , or that the court ’s verdict is executed .

The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article .

The ground for the imposition of detention on remand can be a substantiated suspicion that the accused may abscond , interfere with the establishment of the truth in the criminal case , or if a serious or grave crime has been committed . ”

Apart from detention on remand , LAW envisages the possibility of using such measures of pre - trial restraint as police supervision , home arrest , bail or a personal undertaking not to leave the place of residence .

LAW ”

“ Detention on remand shall be imposed only with regard to the person who is charged with an indictable offence carrying [ a punishment of ] DATE in prison ... ”

The PERSON distinguished CARDINAL periods of detention on remand : detention “ pending investigation ” , that is whilst the competent prosecution agency investigated the case , and detention “ pending trial ” , whilst the case was tried in court . The person detained “ pending investigation ” was referred to as an “ accused ” . After the case was sent to a court , that person would become a “ defendant ” ( LAW and DATE ) . Although there was no difference in practice between CARDINAL periods of detention , the calculation of the time - limits was different .

Pursuant to Article CARDINAL § § CARDINAL , the maximum permitted period of detention “ pending investigation ” was DATE . It started to run from the moment the person was taken into custody and ended DATE when the prosecutor sent the case , along with the bill of indictment , to the trial court ( Article CARDINAL § § CARDINAL and CARDINAL ) .

The maximum permitted term of detention “ pending trial ” , calculated from DATE when the prosecutor forwarded the case to the competent court until the final cassation verdict , was DATE if CARDINAL instances of jurisdiction were involved , and DATE if the case was examined by CARDINAL instances ( Article CARDINAL § § CARDINAL and CARDINAL ) .

LAW classified crimes , according to the terms of imprisonment which they carried , as minor , serious or grave .

Pursuant to LAW , a premeditated offence carrying DATE imprisonment as a maximum term , or an offence committed by negligence which carried CARDINAL years’ imprisonment as a minimum term , were considered to be serious crimes .

LAW ( b ) stated that fraud , i.e. the misappropriation of another person ’s property by deception , committed with regard to objects of great value , was punishable by a prison sentence of DATE .

Article CARDINAL criminalised the fabrication and use of false identity cards , templates of various formal documents , seals , etc . This offence was punishable by a prison sentence of DATE .

The complainants challenged various provisions of LAW ORG , differentiating between the period of detention “ pending investigation ” and that “ pending trial ” , for their compatibility with LAW . They alleged that the unnecessary distinction between the QUANTITY types of detention often resulted in situations where the overall term of detention exceeded the constitutional time - limit of DATE .

ORG dismissed the complaint , noting that Article CARDINAL § CARDINAL of the LAW solely defined the maximum permitted term of detention “ pending investigation ” which , pursuant to LAW when the prosecutor sent the case to the competent court for trial :

“ ORG observes that LAW of the LAW determines the term only for the detention of a suspect or accused person pending investigation , excluding the detention period of a defendant pending trial ... ”


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE - on - Don .

The applicant served in the military . By a judgment of DATE ORG of the Vladikavkaz Garrison declared unlawful the refusal of the commander of military unit CARDINAL to pay the applicant additional DATE combat allowance , obliged the head of the finance department of ORG to allocate funds for such payment and recovered in the applicant ’s favour the allowance arrears in the amount of MONEY ( RUB ) . By another judgment of DATE the same court delivered a similar judgment and recovered additionally RUB CARDINAL in favour of the applicant .

On DATE the regional office of ORG returned the writs of execution to the applicant on the ground that the military unit did not have an account there . The writs of execution were also returned by the main office of ORG on DATE . In their letter of the same date ORG suggested that the applicant submit the writs of execution to the bailiff service . It is not clear from the parties’ submissions whether the applicant has done so .

The judgments remain unenforced to date .


The first applicant is a NORP national , born in DATE and living in GPE , GPE . The second applicant , also a NORP national , is his wife , born in DATE . The third and fourth applicants are their children , born respectively in DATE and DATE . The applicants were represented in the initial stages of the application by the first applicant and then by PERSON , a legal consultant with ORG , GPE , GPE .

The facts of the case may be summarised as follows .

The first applicant was the owner of a NORP restaurant situated in a designated conservation area in the centre of GPE . The applicant and his family lived on the LOC . In DATE the applicants had to abandon their restaurant and their home above it on account of the emission of toxic cellulose paint spray fumes from a warehouse ( unit CARDINAL ) used by a company ( “ Namesakes ” ) owned by a Mr PERSON . The company was engaged in the manufacture of wooden toys . In addition to the financial loss they suffered as a result of the closure of their business , the applicants’ health ( as well as that of others living in the locality ) was also badly affected by the toxic emissions .

A complaint was first made to ORG ( “ the ORG ” ) in DATE . Subsequent complaints followed . Although the ORG served a prohibition notice and an abatement notice on the company DATE and DATE , it would appear that no steps were taken to enforce these notices . In DATE the company relocated its activities and the applicants returned to their premises in DATE .

The applicants insist that the paint spraying operation was illegal and that the ORG has tried to conceal the illegality by purporting there to be planning permission for the activity operating out of unit CARDINAL . They maintain , inter alia ,

The applicants commenced litigation against Mr PERSON in DATE . The applicants subsequently sued the ORG , claiming damages for personal injury and damage to property . They contended that the ORG acted beyond its discretion , ultra vires and abused its power by purporting there to be planning permission when , according to the ORG ’s own records , no planning permission had ever been granted to the building ( unit CARDINAL ) where the company ’s operation took place . The actions against the company and the ORG were consolidated .

On DATE Mr Justice PERSON , on the application of the ORG , ordered that the applicants’ writ against the ORG be struck out as showing no cause of action either under statute or at common law . Mr Justice PERSON considered that the applicants’ primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance . Mr Justice PERSON also referred to the range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance , including a private law claim against the person creating the nuisance and the laying of a complaint before a ORG .

According to the applicants , Mr Justice PERSON , without justification , diverted the basis of their claim by proceeding on the assumption that planning permission had been given in DATE to the company to use unit CARDINAL for its paint spraying activity .

On DATE ORG , dismissed the ORG appeal against Mr Justice PERSON ruling . According to the applicants , ORG accepted the false statement of the ORG that planning permission was in place without requiring it to substantiate this or to have regard to their evidence disproving the ORG ’s assertion .

On DATE ORG refused the applicants leave to appeal .

The first applicant subsequently complained to the ORG that a pottery business which had taken over occupancy of CARDINAL of the units ( unit CARDINAL ) was emitting smells and noises and that it did not benefit from planning permission . He contended that planning permission had never been granted in respect of either unit CARDINAL or unit CARDINAL .

At the meeting held on DATE the ORG ’s planning committee ( “ the committee ” ) decided that there had been no breach of planning conditions and that no enforcement action had to be taken against the owner of the pottery business . According to the first applicant , the committee did not answer his challenge to the very existence of planning permission for the use of units CARDINAL and CARDINAL . The first applicant insists that the committee was deliberately misinformed by its officers about the scope of the original planning application made by Mr PERSON ’s company and the true state of the planning record .

The first applicant was present at part of the meeting and made representations to the committee . According to the first applicant , he only received official notification of the committee ’s decision on DATE through a ORG official who had agreed to reconsider the local authority ’s decision . The ORG official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance .

On DATE , DATE after being notified of the committee ’s decision , the first applicant sought leave to apply for judicial review . He maintained , inter alia , that the ORG had failed to take enforcement proceedings against the owner of the pottery business who was operating it without the necessary planning permission .

The first applicant stresses that , in the ensuing judicial review proceedings , the ORG argued that planning permission had been granted to unit CARDINAL . However , this was in contradiction to the stance the ORG had taken in the earlier civil proceedings in which it contended that unit CARDINAL benefited from planning permission . The first applicant reiterates that the true position is that neither unit benefited from planning permission since the records showed that planning permission only covered a storage building at the rear of their home and restaurant . The first applicant draws attention to his view that ORG officials fraudulently deleted the existence of the storage on the planning documentation which was submitted in the judicial review proceedings .

On DATE Mr Justice PERSON refused the first applicant ’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of DATE . The judge considered that the applicant had ample time to produce such evidence between the date when the ORG notified him that it would oppose the application on grounds of delay and the start of the proceedings . The judge dismissed the first applicant ’s application for leave to apply for judicial review .

On appeal , Lord Justice PERSON conceded that the scope of Mr PERSON ’s application for planning permission and the extent of the permission granted was not entirely clear . However , with reference to Order CARDINAL , rule CARDINAL ) of the Rules of ORG and by analogy with time - limits laid down in planning legislation , Lord Justice PERSON found himself :

“ ... driven to the conclusion that here the application was not made promptly , as required by LAW , rule CARDINAL of the Rules of ORG . There seems to be no reason why the applicant should have waited to receive the letter of DATE before seeking to challenge the decision of CARDINALth DATE . I can find no good reason to extend the period laid down by the LAW . ”

Lord Justice PERSON further observed that , even if DATE the use made of the LOC was unauthorised , it was now too late for the local authority to institute enforcement action . Lords Justices PERSON and PERSON agreed with Lord Justice PERSON ’s reasoning . In a judgment dated CARDINAL DATE ORG dismissed the applicant ’s renewed application .

The first applicant points out that Lord Justice PERSON had sat in ORG in the appeal against the ruling of Mr Justice PERSON and failed to draw the attention of his colleagues hearing the appeal on the applicant ’s judicial review application to the fact that the ORG had earlier argued that planning only related to unit CARDINAL , whereas in the judicial proceedings it was now claiming that it only covered unit CARDINAL .

Meanwhile , the applicants’ civil claim in ORG against PERSON had been stayed pending the outcome of the proceedings against the ORG . In DATE Mr PERSON applied for an order that directions be given for the future conduct of the applicants’ claim .

On DATE Deputy Master PERSON ordered that the stay be lifted and that the case be transferred from FAC in GPE to GPE ORG . Deputy Master PERSON noted in this connection that the proceedings against the ORG had come to an end and , moreover , that ORG had on DATE declared inadmissible an application lodged by the applicants ( no . ORG ) .

The applicants appealed against the Order . The ORG appeal was heard by PERSON Justice PERSON on DATE . The applicants argued that it was premature to lift the stay in the proceedings since they had lodged a further application ( no . CARDINAL/CARDINAL ) with the ORG in GPE contesting the ORG ’s inadmissibility decision of DATE . Mr Justice PERSON dismissed the applicants’ appeal on this point . Having examined the ORG ’s inadmissibility decision , he considered that the applicants’ fresh application had no prospects of success . As to the applicants’ objection to the transfer of the civil action from GPE to GPE , the judge concluded that Deputy Master PERSON has reached his decision in the proper exercise of his discretion on case management issues .

COMPLAINTS

The applicants maintain that the ORG ’s inadmissibility decision of DATE ( application no . CARDINAL ) is based on an incorrect statement of the facts and that the legal reasoning is seriously flawed . They contend that the ORG in that decision committed the same error as the domestic courts by assuming that planning permission had been granted to PERSON by the ORG in DATE and at no stage addressed themselves to the true scope of the permission actually given . The applicants submit that the ORG should establish what was actually granted by the ORG under planning application no . CARDINAL . DATE and to reach its decision with reference to the documentation that they have supplied . They maintain that the documentation clearly shows that neither unit CARDINAL nor unit CARDINAL was covered by planning permission and that the only premises addressed in planning application no . CARDINAL was a storage building .

The applicants assert that the facts of their case disclose breaches of ORG , DATE and CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL thereto insofar as an illegal industrial activity has been deliberately allowed to operate to the detriment of their health and property and the ORG has knowingly sought to conceal the true nature of the planning record and to purport throughout that planning permission had been given .

Furthermore , the facts relied on show that they had no effective remedy to obtain a determination of their complaints against the ORG and its officers who acted unlawfully and abused their powers by purporting there to be planning permission for the illegal activity . They rely on Articles CARDINAL , CARDINAL and DATE of the Convention .

The applicants submit that they have been discriminated against on account of , among other things , their NORP origin and have been treated differently from those responsible for the emission of the toxic fumes behind their home and restaurant . They rely on LAW in conjunction with ORG and CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL .

With reference to the pending civil action against PERSON , the applicants stress that the outcome of that action is closely linked to the question whether PERSON can rely on the grant by the Council of planning permission to carry on his paint spraying operation . In their submission , if the domestic courts were to accept PERSON defence , despite clear evidence to the effect that ORG officials purported there to be planning permission for his activity and unlawfully misled the domestic courts in the litigation against the ORG by manipulating and concealing the true nature of the planning record , there would a breach of their rights under LAW , DATE , DATE and DATE of the Convention . They maintain that the ORG was biased n favour of Mr PERSON .

The applicants contend , among other things , that Mr Justice PERSON in his judgment of DATE did not act independently or impartially since he did not query the documents allegedly showing that the ORG had given Mr PERSON planning permission , and this despite evidence confirming that ORG officials had acknowledged that this was not the case . They invoke Articles CARDINAL and CARDINAL of the Convention .

The applicants further contend under LAW that the judge was wrong to rely on certain statements in the ORG ’s inadmissibility decision of DATE , misconstrued the essence of their claim against the ORG and made impermissible use of domestic case law .

The applicants insist that the facts relied on disclose a breach of their rights under LAW since the domestic courts treated their claim as a claim based on damage caused by a legal activity , whereas the true basis of their claim was that they had suffered harm on account of an unlawful activity .

The applicants further allege a violation of LAW , including in conjunction with LAW . They maintain that they have been discriminated against on account of their NORP origin and that by denying them their rights to a fair hearing ORG failed to treat them on an equal footing to other citizens .

The applicants argue that the facts of the case give rise to a breach of LAW .

With reference to LAW the applicants state that the judge purported that the toxic emissions from which they suffered emanated from a legal industrial activity , whereas that activity was illegal and interfered with their property rights .

The first applicant lodged the above application on DATE . In the proceedings before the ORG , the applicant is represented by PERSON , a legal consultant with ORG , GPE , GPE .

On DATE ORG of ORG refused the applicants’ petition for leave to appeal . TIME of the proceedings recorded that the ORG could apply for its costs and if the application was granted the amount would be certified if no agreement could be reached on it .

The first applicant ’s solicitor at the time received a notification dated DATE to attend a taxation hearing regarding the costs incurred by the ORG in respect of the applicants’ petition for leave to appeal to the ORG of the ORG against the decision of ORG in the civil proceedings against the ORG referred to in application no.CARDINAL/CARDINAL .

A taxation hearing was held on DATE before the Judicial Taxing Officer of ORG . By a decision of DATE , the Judicial Taxing Officer of ORG allowed the ORG ’s bill of costs in full ( MONEY ) .

The first applicant protested about the decision , including through his MP , but without success . The first applicant maintained that the ORG had not been invited to make submissions on the above - mentioned petition ( and which was in effect ex parte ) , that his solicitor had informed him that he had never seen any such submissions , that the ORG had never discussed with his solicitor that it would be making an application for costs and what the nature of those costs would be and that the Taxing Officer had abused his powers .

The first applicant sought to challenge this decision by way of judicial review . By letter dated DATE the first applicant was informed by ORG that ORG had no jurisdiction in the matter since its jurisdiction only extended to decisions of inferior courts and tribunals .

COMPLAINTS

The first applicant complains , inter alia , that the Taxing Officer abused his discretion , acted in breach of procedural rules , was biased against him and overlooked the fact that the local authority itself had not complied with ORG own practice directions on the matter of costs . He submits that the Taxing Officer ordered him to pay the ORG ’s inflated costs in the absence of any authority to do so and further maintains that there was no justification for seeking the ORG ’s comments on his petition before it had been considered by ORG .

The first applicant submits that he was denied a fair hearing in the proceedings before the Taxing Officer , had no effective remedy in respect of the decision reached by him and was the victim of an abuse of rights since the Taxing Officer awarded costs to the defendant ORG to which it was not entitled .

The first applicant relies on Articles CARDINAL , CARDINAL and DATE of the Convention .

The application was lodged on DATE . In the proceedings before ORG , the first applicant is represented by PERSON , a legal consultant with ORG , GPE , GPE .

The first applicant joined ORG ( “ FSB ” ) in DATE . He paid his membership fee , and thereafter renewed his membership DATE . His decision to become a member was influenced by the ORG ’s undertaking in its promotional literature to pay legal and accountancy fees up to GBP CARDINAL,CARDINAL in dealing with an in - depth Inland Revenue investigation .

The Inland Revenue carried out an in - depth investigation of the first applicant in DATE , after he had sought advice from the tax authorities about his tax situation . In DATE the Inland Revenue cleared the first applicant of any suspicion of fraud . The first applicant sought to be indemnified for the accountants’/consultants’ costs he had incurred in defending himself during the investigation . According to the first applicant , the ORG ’s insurer reversed its initial decision not to indemnify him and agreed to reimburse him the costs he had incurred , only to renege later on its promise . The first applicant declined the insurance company ’s proposal to submit the full claim to arbitration . Dissatisfied with the outcome of his dealings with the insurer , on DATE the first applicant sued the ORG for breach of contract , relying on the ORG ’s unqualified undertaking to cover its ORG costs .

On DATE District Judge PERSON ordered that the first applicant ’s claim be struck out as disclosing no cause of action against the ORG . The judge accepted ORG ’s defence that the first applicant ’s claim lay against the insurance company which underwrote the undertaking and that ORG ’s obligation was limited to introducing him to an insurer .

On appeal , His Honour Judge PERSON , on DATE , ordered that the first applicant ’s claim be reinstated , being satisfied , firstly , that there was no contractual relationship between the first applicant and the insurance company and , secondly , that the first applicant ’s only avenue of redress was to sue the ORG with which he had concluded a contract . Further directions for trial of the case were to be given by a District Judge .

On DATE District Judge PERSON ordered that the question whether the ORG was liable to the first applicant and , if so , the scope of its liability , be determined as a preliminary issue .

On DATE His Honour Judge PERSON ordered that all matters relating to the case were to be tried in the current trial window . The first applicant sought leave to appeal against that order in the hope of having the issue of liability tried separately .

On DATE Mr PERSON proceeded to try the issue of the ORG ’s liability to the first applicant . Following a hearing , the judge found on the evidence , and with reference to domestic case - law ( the ORG of Lords’ decision in PERSON v. ORG ) , that the ORG had only agreed to gave the first applicant the benefit of an insurance policy to guard against the expenses incurred as a result of an in - depth tax investigation . The first applicant ’s claim to be indemnified therefore lay against the insurer , and not with the ORG . The judge however expressed the view that the ORG could have clarified better in its advertising what the scope of its obligation was in this area . The first applicant appealed .

On DATE , ORG dismissed the first applicant ’s appeal following a hearing . Having reviewed the documents relied on by the applicant , Lord Justice Laws considered that the first applicant had not made out a case that he had concluded a contract with the ORG under which the ORG would meet without qualification all of the expenses incurred by the first applicant in the course of an in - depth FAC investigation . In his opinion , the words used by the ORG were not inconsistent with an intention to provide insurance services rather than an unqualified indemnity . Furthermore , the provision to the first applicant of insurance documentation at the time he joined the ORG indicated that his membership entailed his access to insurance services .

Complaints

The first applicant maintains that the domestic courts distorted the facts of the case , reached conclusions in the absence of evidence , erred on matters of law , diverted the basis of his claim , abused their powers and did not act independently and impartially . He refers , among other things , to the improper manner in which Mr PERSON and ORG dealt with the issues before them and to the fact that the ORG took it upon himself to decide who was the correct defendant to the proceedings , even though this issue had already been settled by Judge PERSON . The first applicant relies on LAW to condemn these and other breaches of his right to a fair hearing which he has identified .

Under LAW , the first applicant complains that ORG reached its decision by adducing a document which did not exist , thereby abusing its power and acting without authority by assuming there was such a document .

The first applicant further relies on LAW . He maintains , among other things , that he was discriminated against in his access to justice on account of his status as a litigant in person .

The first applicant finally maintains that the abuse of power on the part of ORG amounts to a breach of LAW .


CASE OF STRAISTEANU AND OTHERS v. MOLDOVA

Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The first CARDINAL applicants , Mr PERSON , Ms GPE GPE and PERSON , are a family of NORP nationals who were born in DATE respectively . The fourth applicant , ORG , is a limited liability company incorporated in GPE . PERCENT of its stock belongs to the first CARDINAL applicants’ family .

The first applicant is a well - known businessman and a former member of ORG , DATE . He was , inter alia , the founder of the first NORP private television company and owned a chain of petrol stations . After ORG won the general election in DATE he retired from politics and had to wind up most of his businesses , including the television station and the petrol business .

In DATE the fourth applicant bought a plot of land measuring QUANTITY from ORG . The land was later sold by the fourth applicant to the first CARDINAL applicants . Subsequently , the first applicant donated a part of the land to the third applicant and an artificial lake was built on the family ’s property .

Also in DATE , the fourth applicant concluded a contract of lease with ORG for a period of DATE concerning a natural lake measuring QUANTITY adjacent to the property which it had bought .

The first CARDINAL applicants settled on the above property and developed it with a view to using it for tourism and fishing . According to them , in DATE Government officials started to exercise pressure on the first applicant to induce him to give up the property .

On DATE the first applicant was arrested in PERSON together with his driver . At the police station , he was informed that he and his driver were being accused of carrying out a series of car thefts over DATE in PERSON . It would appear that several criminal complaints concerning car thefts were joined in a single procedure , while others were joined later ( see paragraph CARDINAL below ) .

On DATE ORG issued a detention warrant in the first applicant ’s name for DATE . The grounds for detention were that he was suspected of committing a serious offence punishable by DATE imprisonment , that the criminal case was complex , and that he might abscond , hinder the investigation and the finding of the truth . An appeal by the applicant was dismissed and his detention was subsequently extended on the same grounds .

On DATE Judge PERSON from the same court ordered the applicant ’s release . The grounds for release were that there were no reasons to believe that the applicant would abscond or hinder in any way the investigation . However , the prosecuting authorities refused to comply with the order and continued to hold the applicant in detention . They applied a second time for an extension of the detention but Judge PERSON refused again on DATE and found that the prosecutor had failed to comply with his previous decision and that therefore the applicant ’s detention had been unlawful . The prosecutor refused again to comply with the order of release and ordered his further detention on account of charges of theft from a ORG car , an episode which had not been joined to the main criminal case at that time . On DATE the prosecutor applied to another court , ORG , for a detention warrant . The charges against the first applicant were the same as before and no new reasons for detention were adduced . On DATE that court upheld the application and ordered the continued detention of the applicant . It did not give any reasons for detention except that the prosecutor ’s application related to another criminal case .

On DATE ORG issued a press release which stated that the first applicant was a member of a criminal gang which was robbing car drivers in PERSON . The major NORP media reported on the event DATE .

On DATE the episode concerning the theft from a ORG car was joined to the main criminal proceedings against the applicant .

On DATE the applicant appealed against the detention warrant of CARDINAL DATE .

On DATE the criminal case in the applicant ’s case was remitted to a court for examination and from that date on the applicant was detained without a detention warrant .

On DATE ORG discontinued the appeal proceedings against the detention warrant of CARDINAL DATE on the ground that the criminal case had been remitted to a court and that therefore no detention warrant was now needed .

His habeas corpus applications were dismissed and he remained in detention until DATE , when a judge ordered his release .

During the first applicant ’s detention he was held in the detention facility of FAC ( Comisariatul General de Poliţie ) . According to him , the cells in which he was detained were overcrowded , dark , damp , dirty and hot . There was no natural light , but instead there was a very weak light bulb which was switched on all the time . The ventilation was not working properly and the inmates were allowed to smoke in the cell . The cell was infested with vermin and rats and the inmates were allowed to take showers only once DATE with cold water . The cells measured CARDINAL or QUANTITY and were occupied by CARDINAL people at all times . Because of the conditions of his detention the applicant contracted influenza .

On DATE ORG organised action in support of the first applicant on its web page , stating , inter alia , the following :

“ ORG is concerned that PERSON is being charged on the basis of evidence which has been extracted under torture . ORG has information that a second individual gave evidence after being subjected to torture by investigating officers . However , he reportedly fears that he will be subjected to further ill - treatment if his name is mentioned . The organization is also concerned that PERSON is being detained arbitrarily .

On DATE the central district court of PERSON ordered the release of PERSON on bail , but police officers immediately re - detained him in the court room and took him back to the temporary detention facility despite the court decision . On DATE , after his lawyer appealed against this arbitrary detention , the court declared that his detention was illegal . However , police officers again defied the court order and detained him in the court room . On CARDINAL DATE PERSON was sentenced to CARDINAL days’ imprisonment by the court of LOC in PERSON . DATE period was due to expire on DATE , but the investigating authorities have declared that the investigation is closed and that the case has now been transferred to the court . This effectively prolongs PERSON detention until the court hearing has been held .

Furthermore , ORG is concerned about the conditions in which PERSON is being held at the temporary detention facility on FAC . He is currently being held in a cell with CARDINAL other detainees . The only washing facility is a tap and a basin in the cell , and conditions are damp and badly ventilated . PERSON has contracted influenza since he has been in detention and his family report that he has difficulty breathing . He has not been given access to a doctor and he has only been able to receive the medicine that his daughter passed to him when she saw him in court ....

Please send appeals to arrive as quickly as possible [ to ORG , ORG affairs and/or to ORG abroad ] ... :

· expressing concern for the health of PERSON and asking for assurances that he will be given access to the medical care he requires in conformity with the ORG Standard Minimum Rules for the Treatment of Prisoners ;

· expressing concern at allegations that some of the evidence that has been used to convict PERSON has been extracted from another individual under torture ;

· urging the authorities not to use any evidence extracted under torture in this case and reminding the authorities that as a party to LAW and other LAW they must ensure that any statement which has been made as result of torture is not used as evidence in criminal proceedings ;

· expressing further concern at allegations that the police did not respect court decisions regarding the illegal detention of PERSON and that he was arbitrarily detained by police twice in defiance of court orders ;

· urging an investigation into the allegations of arbitrary detention and asking for his release if the allegations are found to be correct . ”

On an unspecified date in DATE the President of GPE , PERSON , held a meeting with high ranking officials , among whom was the Prosecutor General , the head of ORG , the head of ORG and the prefect of the county where the applicants’ land was situated . During the meeting he expressed great dissatisfaction with the fact that in spite of his clear indications to numerous ORG bodies , the applicants’ property was still in their possession and had not been returned to the ORG and a monastery . He gave them a deadline of CARDINAL DATE to solve the problem , threatened them with dismissal and left the room , slamming the door .

A video of this event was broadcast by a television channel on DATE in a programme entitled ‘ The President ’s working day’ which reported on the busy schedule of the President . A copy of it was sent to the ORG by the applicant .

According to the applicants , after the first applicant ’s arrest their family started to experience harassment from law enforcement bodies such as ORG , the police and ORG , who intimidated and pressured them to give up their property . While in detention the first applicant was approached by police officers , who proposed that he sell the property in exchange for his release . The second applicant was visited on numerous occasions by people claiming to be representatives of the above bodies . They requested her family to leave the property , failing which she would not see her husband again . The third applicant was contacted on numerous occasions by police officers and investigators in charge of her father ’s case and ordered to sell the property .

On DATE the second applicant lodged a complaint with ORG complaining about the actions of CARDINAL police officers who had entered her property without any legal basis and ordered her , also in the absence of any legal basis , to take down a billboard at the entrance to the property .

On DATE the second applicant received a letter from ORG , in which she was informed that the matters described by her had proved to be partially true ; however , there were no sufficient reasons to justify the prosecutor office ’s intervention .

On DATE the Prosecutor General filed an action with ORG asking for the annulment of the contract of lease for CARDINAL hectares of land concluded between ORG and the fourth applicant in DATE , on the ground that ORG had failed to organise an auction .

On an unspecified date the President of ORG and the President of ORG , PERSON , inquired with the Vice President of ORG , Judge PERSON , about the above case .

In a letter of CARDINAL DATE Judge PERSON wrote to PERSON stating , inter alia , that the case was scheduled to be examined on DATE and that she would be dealing with it . It appears that the hearing of CARDINAL DATE was adjourned .

On DATE the fourth applicant was sent a registered letter informing it that the hearing in the case was scheduled for DATE . It appears that the fourth applicant was no longer at the address to which the summons was sent and therefore did not receive the summons .

On DATE Judge PERSON examined the case in the absence of the fourth applicant and upheld ORG action relying on LAW , in force at the time of the conclusion of the lease contract . It found that ORG had contravened the law by failing to organise a public auction for the lease of the property .

On an unspecified date in DATE the fourth applicant appealed against the above judgment and argued , inter alia , that it had not been summoned and that it did not even know about the prosecutor ’s application before DATE . According to the law in force at the time of the conclusion of the lease , there was no obligation to hold an auction . That obligation referred only to sale of land by local authorities , but not to leases . In any event , the action was time - barred .

On DATE a panel of ORG presided over by Judge PERSON dismissed the applicant ’s appeal and argued , inter alia , that it had been summoned at the address which appeared in the database of ORG , and that therefore the applicant had been legally summoned . The court also found that the local council had been under an obligation to organise an auction before renting out the land in question . ORG did not refer to the applicants’ objection concerning LAW .

On an unspecified date the fourth applicant lodged an action with ORG claiming compensation for the investments it had made in respect of the leased property . It claimed CARDINAL Moldovan lei ( MDL ) .

On DATE ORG refused to examine the application because the fourth applicant had not paid the court fees of MONEY of the amount sought .

In DATE and DATE the fourth applicant paid a part of the court fees and applied again to the court . It argued that it did not have any more money because all its assets and bank accounts had been frozen by ORG .

On DATE ORG refused again to examine the action on the same grounds . The fourth applicant ’s appeal was dismissed .

On DATE the Prosecutor General brought an action with ORG of GPE seeking the annulment of the purchase of the plot of land of QUANTITY by the fourth applicant from ORG in DATE and of all the subsequent contracts by which the property had been transmitted to the first , second and third applicants . ORG argued that ORG had acted ultra vires and had committed numerous irregularities in organising the auction , establishing the price of the property and selling the property .

The applicants opposed all ORG submissions . Their main arguments were that ORG action was time - barred , that they had acquired the property in good faith and that the property could not be expropriated without compensation . At the same time the second and third applicants lodged a counter action in which they submitted that if ORG action was upheld they should be entitled to compensation for the investments they had made in the development of the property in an amount of MONEY ( ORG ) and LAW respectively .

On CARDINAL DATE ORG requested the applicants to pay court fees in the amount of PERCENT of the claimed amounts . The applicants appealed and argued that all their accounts had been seized by ORG , that they were unemployed and that they could not pay the court fees . They asked , on the basis of the law on court fees , to be allowed to pay the fees after the adoption of a judgment in the case .

On DATE a panel of ORG presided by Judge PERSON dismissed the appeal .

NORP On DATE the ORG counter action was dismissed on the ground of their failure to pay court fees . The applicants appealed against this decision . However , their appeal was dismissed on DATE by a panel of ORG presided over by Judge PERSON

On DATE Judge PERSON from ORG upheld the action lodged by ORG , relying on LAW , in force at the time of the conclusion of the lease contract . Judge PERSON found that ORG had breached the rules concerning the conduct of public auctions , namely that it had failed to observe the rules concerning the advertising of the auction , the composition of the auction commission and the drafting of the auction record . The court did not refer to the applicant ’s objection concerning LAW and considered all the prosecutor ’s arguments well - founded . It ordered that the parties be put in the same position as they had been prior to the conclusion of the contract .

The applicants appealed and argued , inter alia , that they had been punished for errors of the local authorities which were not imputable to them , that the court was not independent and impartial , that the action was time - barred and that the actions against them had been orchestrated by President PERSON , submitting a copy of the video in which the President was shown instructing ORG officials to take away their property .

On DATE ORG dismissed the ORG appeal . It held that according to LAW claims filed in the ORG ’s interest were exempt from the requirement to observe time - limits .

On DATE a bailiff came to the applicants’ property , accompanied by the mayor of GPE , in order to enforce CARDINAL of the civil judgments concerning the applicants’ property . A quarrel took place between the first applicant and the mayor and DATE the latter lodged a complaint with ORG , complaining that the first applicant had made death threats against him . In particular , he submitted that during the quarrel the first applicant had said that he would feed him ( the mayor ) to the fishes .

On DATE the applicant was arrested and placed in detention . On DATE ORG issued an order for him to be detained for DATE . That was extended on numerous occasions and the first applicant ’s appeals and habeas corpus requests rejected .

He was detained in the detention centre of ORG until DATE and then in PERSON no . CARDINAL prison . According to the applicant , the conditions of detention in both detention facilities amounted to inhuman and degrading treatment .

The applicant ’s detention under the new charges continued until DATE , when he was placed under house arrest .

On an unspecified date in DATE the first applicant initiated civil proceedings against the Government claiming compensation for poor conditions of detention in DATE and in DATE and for detention contrary to LAW . He relied , inter alia , on the ORG ’s findings in respect of conditions of detention in PERSON v. GPE ( no . CARDINAL/CARDINAL , CARDINAL DATE ) , ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) , and PERSON GPE ( no . CARDINAL , DATE ) in which the applicants had been detained in the same detention facilities .

DATE . On DATE ORG dismissed the applicant ’s action , upholding the ORG ’s position and finding that the conditions of detention on both occasions were acceptable . The court accepted several of the applicant ’s submissions , such as that his cell window did not have glass for DATE , that a person with scabies was placed in his cell on CARDINAL occasion , that there was no linen or mattresses in the cell , and that there was no sewerage in CARDINAL of the detention facilities . Nevertheless , it considered that these shortcomings were not sufficient for the application to be upheld , because the applicant did not have to share a bed with the ill prisoner , the latter had been receiving treatment for DATE and at the time of his placement in the cell he was no longer contagious . Moreover , the window cell was repaired after DATE and in any event the temperatures at DATE were usually moderate . In addition , prisoners were allowed to bring their own mattresses and linen . In so far as the complaint under LAW was concerned , the court found that there were no civil remedies against the alleged breaches under NORP law . This judgment was confirmed by ORG on DATE and by ORG on DATE .

On DATE the applicant lodged another action with ORG , again claiming compensation for his allegedly unlawful detention DATE . It appears that his action has not yet been determined .

The relevant findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG , unofficial translation ) read as follows :

B. Establishments visited

... - EDP of ORG ( Follow - up visit )

... b. remand centres ( EDPs )

In its report on the DATE visit ( paragraph CARDINAL ) , the ORG was forced to conclude that material conditions of detention in the remand centres ( EDPs ) visited amounted in many respects to inhuman and degrading treatment and , in addition , constituted a significant risk to the health of persons detained . While recognising that it was not possible to transform the current situation in these establishments TIME , the ORG recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity .

NORP Unfortunately , during the DATE visit , the delegation found barely any traces of such palliative measures , in fact quite the opposite . ...

One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the NORP authorities have paid no attention to the ORG recommendations . In fact , this state of affairs strongly suggests that , setting aside economic considerations , the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty .

Turning to the other EDPs visited across GPE , with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions . A detailed description is superfluous , since it has all been highlighted already in DATE of the report on the DATE visit .

In PERSON , these conditions were exacerbated by serious overcrowding . At the time of the visit , there were CARDINAL prisoners for CARDINAL places , requiring QUANTITY persons to cram into a cell measuring QUANTITY into cells of CARDINAL m² .

The delegation also received numerous complaints about the quantity of food in the EDPs visited . This normally comprised tea without sugar and a slice of bread in the morning , cereal porridge at lunch time and hot water in TIME . In some establishments , food was served just once a day and was confined to a piece of bread and soup . ...

... Concerning the issue of access to toilets in due time , the ORG wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of CARDINAL or several other persons , in a confined space such as the ORG cells which also serve as their living space , is in itself degrading , not only for the individual concerned but also for those forced to witness what is happening . Consequently , the ORG recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should DATE if they so request – be taken out of their cell without delay during DATE in order to go to the toilet .

The ORG also recommends that steps be taken to :

- reduce the overcrowding in PERSON as rapidly as possible and to comply with the official occupancy level ;

- supply persons in custody with clean mattresses and clean blankets ;

- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter .

In the light of certain observations made , particularly in the ORG of ORG , the ORG also reiterates its recommendation concerning strict compliance , in all circumstances , with the rules governing separation of adults and minors . ”

Conditions of detention .

a. Institutions of ORG

Since DATE , when it first visited GPE , the ORG has serious concern for the conditions of detention in the institutions of ORG .

The ORG notes that CARDINAL out of CARDINAL EDPs have been subjected to “ cosmetic ” repair and that CARDINAL have been equipped with places for DATE walks . Nevertheless , the DATE visit did not allow lifting the concern of ORG . In fact , most recommendations made have not been implemented .

Whether CARDINAL refers to the police stations or EDPs visited , the material conditions are invariably subject to the same criticism as in the past . Detention cells had no access to daylight or a very limited such access ; artificial light – with rare exceptions – was mediocre . Nowhere did the persons obliged to pass TIME in detention receive mattresses and blankets , even those detained for prolonged periods . Those who had such items could only have obtained them from their relatives ...

As for food ... in the EDPs the arrangements made were the same as those criticised in DATE ( see paragraph CARDINAL of the report on that visit ) : generally CARDINAL modest distributions of food per day including tea and a slice of bread in the morning , a bowl of cereals at TIME and tea or warm water in TIME . Sometimes there was CARDINAL distribution of food per day . Fortunately , the rules for receiving parcels have been relaxed , which allowed detainees with relatives outside to slightly improve these meagre DATE portions .

In sum , the material conditions remain problematic in the police stations ; they remain disastrous in EDPs , continuing in many aspects to amount , for the detainees , to inhuman and degrading treatment . ”

II . Institutions of ORG

In so far as the conditions of detention in the police establishments are concerned , it appears that this is the field in which the least progress has been achieved . It is not necessary to enumerate here in detail all the shortcomings observed by the delegation , which are more or less the same as those observed during past visits ( and of which ORG is perfectly aware ) . ... Numerous persons are still detained overnight in police establishments , in cells which should not be used to detain persons for TIME . It is high time to remedy these problems , in particular by placing accused persons under the supervision of institutions of ORG and building new prisons corresponding to ORG standards and to the norms laid down by the NORP legislation . ”

Article CARDINAL of the LAW of GPE , in so far as relevant , states as follows :

“ ( CARDINAL ) Detention takes place on the basis of a warrant issued by a judge for a maximum period of DATE . The lawfulness of the warrant may be challenged , in accordance with the law , before a hierarchically superior court . The period of detention may be extended only by a court , in accordance with the law , to a maximum of DATE . ”

The relevant part of LAW reads as follows :

( CARDINAL ) The application for a detention warrant ... shall be examined without delay by the investigating judge ... at the place of the conduct of the criminal investigation , at the place of arrest or at the place of residence of the detainee ’s representative .

( CARDINAL ) A repeated application for a detention warrant ... in respect of the same person and in the same proceedings , after the dismissal of a previous application , shall be possible only if new reasons for detention have appeared .

The relevant provisions of LAW , in force at the relevant time , provide :

The general limitation period for protection through a court action of the rights of a [ natural ] person is DATE ; it is DATE for lawsuits between ORG organisations , collective farms and any other social organisations .

The competent court ... shall apply the limitation period whether or not the parties request such application .

Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim .

If the competent court ... finds that the action has not commenced within the limitation period for well - founded reasons , the right in question shall be protected .

The limitation period does not apply :

( CARDINAL ) to claims by ORG organisations regarding restitution of ORG property found in the unlawful possession of ... other organisations ... and of citizens ; ” .

The relevant provisions of the new Civil Code , in force after DATE , read as follows :

“ ( CARDINAL ) The civil law does not have a retroactive character . It can not modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished . The new law can not alter or abolish the already created effects of a legal situation which has extinguished or in the process of execution . ”

In a judgment of DATE ( case nr . CARDINAL ) ORG dismissed the plaintiff ’s contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that , therefore , the provisions of the old Civil Code were applicable .


No violation of Art. 6;Not necessary to examine Art. 13

On DATE the applicant was convicted at ORG , inter alia , of CARDINAL count of robbery and CARDINAL counts of burglary . The jury ’s decision was by a majority verdict of CARDINAL . He received a sentence of imprisonment of DATE for the robbery , and CARDINAL sentences of DATE each for the burglary offences . All CARDINAL sentences were to be served concurrently .

The evidence against the applicant consisted of detailed oral admissions that he had allegedly made to the police concerning his involvement in the CARDINAL offences . According to the police he was questioned on CARDINAL separate occasions and contemporaneous notes were taken of his statements . However , he had declined to sign them .

His defence during the trial was to maintain that these statements had been concocted by the police . He protested his innocence pointing out that he had not denied his numerous misdeeds in the past . The only witnesses called by the defence during the trial were the CARDINAL police officers who had interviewed him .

Leave to appeal against the sentence but not the conviction was granted by a single judge of ORG ) on DATE . On CARDINAL DATE the substantive appeal against sentence was dismissed by the full court .

The victim of the robbery ( Miss Sizer ) which took place on DATE was a lady of DATE of age who was awakened from her sleep to find a man standing over her . Before having her hands tied behind her back and being blindfolded she was able to take a quick glance at him . She remained tied up until she was freed TIME . In a statement to the police she gave a description of the man which corresponded with the applicant and stated that she thought she would recognise him again . She was not called as a witness during the trial but her written statement was read to the jury .

The CARDINAL counts of burglary related to separate incidents which occurred on DATE and DATE also involving the home of an elderly woman . On the latter occasion the police arrested the applicant ’s co - defendant in the vicinity . It was his statement to the police which led to the applicant ’s arrest .

On DATE , the applicant petitioned the Secretary of ORG for ORG with complaints against police officers who had investigated his case and given evidence at his trial . An independent police investigation was ordered in the course of which certain facts came to the applicant ’s attention ( see paragraphs CARDINAL below ) . On DATE , the applicant applied for leave to appeal against conviction out of time . The police report ( the PERSON report ) , dated DATE , was delivered to ORG which directed it to ORG . The report was requested by the applicant ’s advisers but its disclosure was refused on the grounds of public interest immunity .

In DATE , ORG decided that there was insufficient evidence to support criminal charges against the police officers , but recommended that disciplinary charges be brought against QUANTITY police officers . At the disciplinary hearing , on DATE , the tribunal decided that there was no case to answer and dismissed the charges .

On DATE , the Secretary of ORG for ORG referred the applicant ’s case to ORG ) under section CARDINAL ( CARDINAL)(a ) of LAW DATE ( " the CARDINAL Act " ; see paragraphs CARDINAL and CARDINAL below ) . The reference was heard on DATE and judgment delivered on DATE .

The applicant submitted to ORG that the verdict should be set aside as unsafe and unsatisfactory because of certain shortcomings in the prosecution case , in particular , that certain information had been withheld by the police . At the trial one of the police witnesses had stated under cross - examination that no fingerprints were found at the scene of the crime . In fact CARDINAL fingerprints had been found which later turned out to be those of the next door neighbour who was a regular visitor to the house . The applicant had not been informed of this by the prosecution before his trial .

It was argued by the applicant that the police officer had told lies and that his veracity as regards the admission statements was thus called into question .

ORG rejected this submission as follows :

" We do not accept that interpretation of Detective PERSON evidence . We think quite plainly what he was indicating there and intended to indicate was that no fingerprints relating to either of the CARDINAL alleged burglars were discovered at the scene : neither the fingerprint of Rose nor the fingerprint of PERSON , the present appellant .

We do not think , had the matter been carried further , it would have been demonstrated that PERSON was a person who to that extent could not be believed on his own . "

A further shortcoming complained of by the applicant related to the fact that the police had shown CARDINAL volumes of photographs of possible burglars ( including a photograph of the applicant ) to the elderly victim of the robbery who said that she had caught a fleeting glimpse of the burglar . Her statement , read to the jury , said that she thought she would be able to recognise her assailant . Yet she did not pick out the applicant from the photographs .

This fact was not , however , mentioned by CARDINAL of the police witnesses who had made a written statement which was read out to the jury and had not been indicated to the applicant before or during his trial . Counsel for the applicant submitted to ORG that this omission cast such doubt on the evidence of the prosecution that it might have led the jury to believe that the confession statements had indeed been " manufactured " by the police as the applicant alleged .

ORG also rejected this argument :

" The fact that Miss PERSON had a fleeting glimpse of her assailant , and the fact that such identification as she did make was largely directed to other matters of identification rather than his features , leads us to believe that the jury would not have been influenced to act other than they did if they had the full story of the photographs and of Police Constable PERSON ’s activities with regard to that . "

ORG examined other impugned shortcomings which it did not consider to cast any doubt on the verdict . It was of the opinion that , even if these matters had been investigated , it would have made no difference to the outcome .

The court concluded as follows :

" It is clear that there was some slipshod police work in the present case , no doubt because they took the view that here was a man who had admitted these crimes fully , and consequently there was very little need for them to indulge in a further verification of whether what he said was true . Although this is a matter which perhaps casts the police in a somewhat lazy or idle light , we do not think in the circumstances there was anything unsafe or unsatisfactory in the end about these convictions . Consequently , treating this matter as we have to according to LAW , we think this appeal fails and must be dismissed . "

Counsel for the applicant did not request ORG to exercise its discretionary power to rehear evidence under LAW ( see paragraph CARDINAL below ) with a view , for example , to cross - examining the police officers who gave evidence at the applicant ’s trial . He considered that there was little prospect of such a request being granted . Nor did he request the court to order the production of the PERSON report ( see paragraph CARDINAL above ) .

The applicant took advice concerning the possibility of appealing to ORG but was informed , in an opinion of counsel dated DATE , that there were no grounds on which an appeal could successfully be pursued before ORG .

He petitioned the Secretary of ORG for ORG on DATE without success . He is currently serving a sentence of CARDINAL years’ imprisonment following his conviction on DATE at ORG on CARDINAL counts of burglary .

Under the Attorney General ’s Guidelines issued in DATE , the prosecution is obliged ( subject to specified discretionary exceptions ) to disclose to the defence " unused material " , which includes all witness statements not enclosed in the bundle of statements served on the defence at the stage of committal of the case by ORG to ORG .

The prosecution is also under a duty to inform the defence of any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . Consequently where evidence of a prosecution witness is given before the court stating that the witness would recognise the accused again , and the prosecution knows that when shown a photograph of the accused the witness in fact failed to identify him , it is required to inform the defence of that fact .

For the purpose , among others , of ensuring compliance with this duty , ORG has stated that all the statements which have been taken by the police should be put before counsel for the ORG , and that it should not be left to the police to decide which statements he is to receive ( NORP v. ORG , DATE ) .

A jury ’s verdict may be either unanimous or by a majority . It must be unanimous unless the trial judge , in accordance with section CARDINAL of the Juries Act DATE , has directed , after TIME of unsuccessful jury deliberations , that a majority verdict will be accepted . A majority verdict will be effective if , where there are not CARDINAL jurors , CARDINAL of them agree on the verdict , or , where there are QUANTITY jurors , QUANTITY of them agree . If the jury do not agree on either a unanimous or majority verdict , they may , at the discretion of the trial judge , be discharged , but such a discharge does not amount to acquittal and the accused may be tried again by a second jury . In the event of a second jury disagreeing , it is common practice for the prosecution formally to offer no evidence .

Section CARDINAL(CARDINAL)(a ) of the DATE LAW as follows :

" Where a person has been convicted on indictment , or been tried on indictment ... the Secretary of ORG may , if he thinks fit , at any time either :

( a ) refer the whole case to ORG and the case shall then be treated for all purposes as an appeal to the ORG by that person ;

The scope of ORG powers is set out in section CARDINAL of the DATE Act which provides :

" ( CARDINAL ) Except as provided by this LAW , the Court of Appeal shall allow an appeal against conviction if they think :

( a ) that the conviction should be set aside on the unsafe or unsatisfactory ;

( b ) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law ; or

( c ) that there was a material irregularity in the course of the trial ,

and in any other case shall dismiss the appeal .

Provided that the ORG may , notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant , dismiss the appeal if they consider that no miscarriage of justice has actually occurred .

( CARDINAL ) In the case of an appeal against conviction the ORG shall , if they allow the appeal , quash the conviction .

( CARDINAL ) An order of ORG quashing a conviction shall , except when under section CARDINAL below the appellant is ordered to be retried , operate as a direction to the court of trial to enter , instead of the record of conviction , a judgment and verdict of acquittal . "

Section CARDINAL of LAW enabled ORG to order a retrial only where the conviction was quashed by reason of evidence received or available to be received under LAW . In relation to appeals subsequent to DATE , section CARDINAL has been amended to confer on ORG a broader basis to order a retrial .

LAW the DATE LAW , inter alia , as follows :

" ( CARDINAL ) For purposes of this part of the LAW , ORG may , if they think it necessary or expedient in the interests of justice -

( a ) order the production of any document , exhibit or other thing connected with the proceedings , the production of which appears to them necessary for the determination of the case ;

( b ) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the ORG , whether or not he was called in those proceedings ; and

( c ) ...

( CARDINAL ) Without prejudice to subsection ( CARDINAL ) above , where evidence is tendered to ORG thereunder the ORG shall , unless they are satisfied that the evidence , if received , would not afford ground for allowing the appeal , exercise their power of receiving it if -

( a ) it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal ; and

( b ) they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it .

( CARDINAL ) ... "

It falls to the court to determine , if necessary , claims by the ORG that documents should not be disclosed on the grounds of public interest immunity ( see , inter alia , NORP v. PERSON , judgment of ORG ) of DATE ) .

The approach to be adopted by ORG when considering under section CARDINAL ) of the DATE Act whether a trial verdict was unsafe or unsatisfactory was discussed by ORG in the context of a section CARDINAL reference in GPE v. Director of Public Prosecutions [ DATE ] Appeal Cases CARDINAL . PERSON , with whom the other members of ORG agreed , stated :

" I do not suggest that in determining whether a verdict is unsafe or unsatisfactory , it is a wrong approach for the court to pose the question - ‘ Might this new evidence have led to the jury returning a verdict of not guilty?’ If the court thinks that it would or might , the court will no doubt conclude that the verdict was unsafe or unsatisfactory ... It would , in my opinion , be wrong for the court to say : ‘ In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused . We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours , we quash the conviction’ for ORG has , in terms , said that the court should only quash a conviction if , there being no error of law or material irregularity at the trial , ‘ they think’ the verdict was unsafe or unsatisfactory . They have to decide and ORG has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come . If the court has no reasonable doubt about the verdict , it follows that the court does not think that the jury could have CARDINAL ; and , conversely , if the court says that a jury might in the light of the new evidence have a reasonable doubt , that means that the court has a reasonable doubt . "

ORG has held that the powers under LAW of the DATE Act extend to rehearing evidence which has already been given at the trial , if this is necessary or expedient in the interests of justice . The court has also held that it has a general power under LAW ( CARDINAL ) to admit further evidence , not restricted to the circumstances set out in LAW ( CARDINAL ) ( NORP v. PERSON and others [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . However it is unusual for ORG to exercise that power since it is reluctant to substitute its own findings of fact for those of the jury which has already seen and heard the relevant witness . In practice , the exercise of the power to receive evidence is thus mainly confined to fresh evidence which has arisen since the trial and which the jury did not have the benefit of hearing . No statistics are available on the frequency with which the power to rehear evidence is exercised .

In DATE the Secretary of ORG for ORG announced the appointment of ORG which is expected to consider , inter alia , the general application of LAW .


CASES OF DE WILDE, OOMS AND VERSYP ("VAGRANCY") v. BELGIUM (ARTICLE 50)

Preliminary objection rejected (non-exhaustion of domestic remedies);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The ORG is called upon to rule only on the question of the application of LAW ) in the present cases . Thus , as regards the facts the ORG will confine itself here to giving a brief outline and for the rest it refers to paragraphs CARDINAL of its judgment of DATE .

That judgment concerned the detention of ORG , Ooms and PERSON ordered by decisions of the magistrates at GPE , GPE and GPE on DATE , CARDINAL DATE and CARDINAL DATE respectively under LAW ( in the cases of ORG and PERSON ) and DATE ( in the case of Ooms ) of the LAW of DATE for the suppression of vagrancy and begging . PERSON regained his freedom after DATE ( CARDINAL of which he spent serving a prison sentence ) , Ooms after DATE and PERSON after DATE , DATE .

In the course of the proceedings before the ORG , the applicants each claimed MONEY ( BF ) damages per day of detention . Their counsel , Me . Magnée , now relies on the judgment of DATE to claim , on behalf of each of them , damages of CARDINAL BF per day of " unlawful detention " .

With that object , Me . Magnée began by addressing to the NORP Minister of Justice , on CARDINAL and DATE , CARDINAL letters of which the first related to PERSON and the second to Ooms . On DATE , the Minister replied that the Government could only apply the law as it stood while waiting for the PERSON on " social misfits " - which it had introduced even before the judgment of DATE - to be passed . Considering this reply to amount to a refusal contrary to the principle of the supremacy of international treaty law over national law , Me . Magnée informed the Minister , on DATE that he proposed to bring the matter before the " competent authorities " and to notify the Commission .

Counsel for the applicants did in fact write first to ORG to inform them of the Minister of ORG ’s refusal which implied , he alleged , a violation of the ORG ’s judgment ; he later wrote , on DATE , to the ORG referring to Articles CARDINAL ( CARDINAL ) , DATE and DATE ( article DATE , article CARDINAL , article CARDINAL ) of the Convention and requested the ORG to bring before the ORG the claim made by each of his CARDINAL clients .

On DATE , he addressed to the Minister of ORG a letter concerning PERSON which was worded in the same terms as the letters of CARDINAL and DATE . The Minister acknowledged its receipt on CARDINAL DATE , noting that along with the other CARDINAL it had been communicated by Me . ORG .

In its memorial of DATE , the Government pointed out to the ORG that on DATE it had tabled in ORG a Bill on " social misfits " intended to replace LAW . The Government added that , desiring to comply with the judgment of DATE without awaiting the passage of this PERSON , it had voted by LAW of DATE amending LAW and containing CARDINAL sections . The first , which inserted a new section , numbered CARDINAL bis , in LAW , provides that decisions taken under LAW and DATE are henceforth made subject to the remedies available under LAW , including appeal . LAW was a transitional provision : it specified that vagrants or beggars held in detention on the entry into force of LAW ( DATE ) in execution of a decision taken under LAW of LAW , could exercise for DATE the remedy provided for at LAW bis .