ITEMID: 001-92955
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DATSER v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Ms Valentina Aleksandrovna Datser, is a Russian national who was born in 2001 and lives in Biysk, Altay Region. The application is lodged on her behalf by her father, Mr Aleksandr Ervinovich Datser. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born to Ms Yelena Donova and Mr Aleksandr Datser, a Russian citizen of German ethnic origin. The applicant’s mother was HIV-positive; she also suffered from tuberculosis, hepatitis and a number of other diseases.
On 18 January 2001 the applicant was born in the Town Hospital no. 2. The birth was premature and the applicant suffered from serious health problems, in particular, respiratory troubles, a non-expanding lung, third-degree prenatal malnutrition, central nervous system affliction caused by oxygen deprivation in utero, foetal infection, conjugated jaundice and rickets. The mother chose not to put the father’s name on the birth certificate because the applicant was born out of wedlock and the father was serving a prison sentence at the time.
On 23 January 2001 the mother, being unable to perform parental duties, waived her parental authority in favour of the Biysk Town Council.
On the same day the applicant was transferred to the pathology ward for babies of the Town Hospital no. 2. On 24 January 2001 the applicant was diagnosed with cerebral oedema.
On 16 February 2001 the Biysk Town Council ordered the transfer of the applicant into State care and her placement in the Biysk Orphanage (Дом ребенка). However, the applicant remained in the Town Hospital no. 2. On 27 April 2001 she was transferred to the Biysk Central Town Hospital. She was kept in an isolation ward in the infectious diseases section of the hospital as a child born to an HIVpositive mother.
According to the applicant’s father, the ward was overcrowded, the babies were underfed, they were not taken out for walks and did not have outdoor clothing, and sanitary requirements were not respected. He also alleged that the applicant’s health had deteriorated in the hospital and that her development was retarded. The applicant’s father submitted no documents to corroborate his allegations and it appears that he did not visit the applicant in the hospital.
According to the Government, in the Biysk Central Town Hospital the applicant was placed in a ward that measured 24 square metres with two other babies with similar diagnosis: prenatal contact with an HIV-positive mother. The ward corresponded to the requirements of the Ministry of Healthcare. It contained a bed for each baby, a cupboard, a nappy changing table, toys and baby care products. Babies were provided with both indoor and outdoor clothes. Crockery was provided individually for each baby. It was cleansed in compliance with sanitary requirements. The ward was washed two or three times every day with special products authorised for use in children’s hospitals. Thorough cleansing of the wards was conducted once in seven days. During this time the babies were placed in a different ward which had already been cleansed.
Nurses washed, dressed and bathed the babies and changed their linen on a daily basis. They took them out for walks in accordance with sanitary requirements and medical indications. Nurses also attended to the babies so they could develop various skills corresponding to their age, such as sitting up, walking or holding a spoon.
On being admitted to the Biysk Central Town Hospital the applicant was examined by an immunologist and a neuropathologist. She was diagnosed with prenatal damage to the nervous system of hypoxic genesis, pyramidal insufficiency, psychomotor and speech retardation, rickets and anaemia. She underwent HIV tests on 31 August and 2 October 2001 and 14 March and 8 August 2002, all of which were negative. She underwent blood tests on 10 August and 16 October 2001, 22 January and 22 April 2002 and a biochemical blood test on 3 October 2001. In the Biysk Central Town Hospital the applicant also underwent electrocardiogram and ultrasonic scanning of internal organs. She was also examined a number of times by otolaryngologists, ophthalmologists, surgeons, neuropathologists and dermatologists.
The applicant was examined daily by a doctor and permanently cared for by the ward’s nurse and a hospital attendant. The nurse fed the applicant six or seven times a day and carried out medical interventions prescribed by the doctor. All parenteral interventions were carried out using disposable instruments. The babies’ temperatures were taken daily.
The Government enclosed extracts from the applicant’s medical file and the Biysk Central Town Hospital’s internal documents to corroborate their submissions.
On 7 August 2002 the applicant was transferred from the Biysk Central Town Hospital to the Biysk Orphanage.
On 28 August and 2 September 2002 the applicant was examined by a paediatrician who stated, in particular, that her state of health was satisfactory, she was receiving sufficient nutrition, could walk independently, spoke in syllables and played with toys.
On 31 December 2001 the applicant’s mother died of tuberculosis. Some time later the applicant’s father was released from prison and returned to the town. He brought proceedings seeking the acknowledgement of his paternity vis-à-vis the applicant.
On 21 August 2002 the Vostochny District Court of Biysk established paternity on the part of the applicant’s father. On 17 September the Town Council ordered the applicant’s transfer to her father’s custody and the next day he took the applicant from the orphanage.
On 27 November 2002 the father brought proceedings before the Vostochny District Court of Biysk on the applicant’s behalf against the social security office and the finance office of the Town Council, claiming non-pecuniary damages for the applicant’s allegedly unlawful placement in the Biysk Central Town Hospital. He maintained that, instead of having been transferred to a specialised institution, the Biysk Orphanage, his daughter had been kept for 600 days in the isolation ward of the hospital, as a result of which she had allegedly contracted conjugated jaundice, damage to the central nervous system, dystrophy, chicken pox and anaemia and her development was retarded. He claimed, on behalf of the applicant, 3,000,000 Russian roubles (RUB) in respect of non-pecuniary damage.
On an unspecified date the Vostochny District Court granted the applicant’s father’s request to order a medical expert examination of the applicant with the purpose of establishing a cause and effect relationship between the applicant’s placement in the hospital and her state of health. It was ordered at the father’s expense. However, he refused to pay for it, and the court proceeded with the case without conducting the examination.
On 26 February 2003 the Vostochny District Court dismissed the claim in full as unsubstantiated. The court established that the placement of the applicant in the hospital was lawful and served the interests of the child. The father appealed.
On 16 April 2003 the Altay Regional Court upheld the decision of 26 February 2003.
The courts at both instances examined the applicant’s father’s allegations that her placement at the Biysk Central Town Hospital was unlawful. They did not examine the allegations of inadequate conditions and treatment in the hospital since those had not been properly raised. The Altay Regional Court specifically noted in its decision of 16 April 2003 that the applicant’s father did not make a claim for damages against the Biysk Central Town Hospital, which remained open to him.
On an unspecified date in 2002 the father wrote a letter to the regional office of the Federal Security Service seeking institution of criminal proceedings against various officials of the Town Council alleging that, while the applicant’s mother was pregnant with her, certain doctors or social workers had tried to persuade her to have an abortion.
On 25 November 2002 the Deputy Town Prosecutor decided not to open a criminal investigation in that respect. The applicant complained to a higher prosecutor about the refusal.
On 21 December 2002 the Prosecutor’s Office of the Altay Region informed the applicant’s father that his complaint was dismissed and the refusal to open criminal investigation was upheld. The applicant’s father did not appeal to a court.
The applicant’s father maintained that their family was constantly discriminated against on the ground of their German origin. In particular, the applicant had allegedly been denied free hospitalisation in the town hospital when she had bronchitis. Furthermore, a municipal official had allegedly shouted at them, suggesting that they should “pack themselves off to Germany”.
On 20 January 2003 the father applied to the Biysk Prosecutor’s Office seeking institution of a criminal investigation. He alleged that on 6 January 2003 a group of people, according to him, social security workers accompanied by a policeman, had come to his flat, had tried to abduct the applicant and had stolen 10,000 United States dollars.
On 23 January 2003 the complaint was transferred to the Biysk town police department.
On 6 February 2003 the police opened a criminal investigation into the alleged theft.
On 7 April 2003 the investigation was suspended for failure to identify the culprits.
The applicant’s father then complained to the Vostochny District Court that the Biysk Prosecutor’s Office had taken no action in connection with his allegations of trespassing and “attempted hostage taking”.
On 28 July 2003 the Vostochny District Court allowed the complaint. The decision was upheld by the Altay Regional Court on 4 September 2004.
On 20 October 2003 the Biysk Prosecutor’s Office refused to institute criminal proceedings into the allegation of trespassing and “attempted hostage taking”. The applicant’s father complained about the refusal to the Vostochny District Court.
On 2 December 2003 the Vostochny District Court dismissed the complaint and found the refusal to be lawful. The Altay Regional Court upheld the decision on 15 January 2004.
The decision to suspend the investigation into the alleged theft of 7 April 2003 was quashed on an unspecified date. However, the investigation was again suspended on 20 May 2005. The applicant’s father also tried unsuccessfully to institute several sets of criminal proceedings against police and prosecution officials involved in the investigation.
Article 96 § 3 of the Code of Civil Procedure provides that a court or a justice of peace may exempt a party to the proceedings from payment of, inter alia, costs related to expert fees or reduce such costs, taking into account the party’s financial state.


ITEMID: 001-5451
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ALLFREY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a citizen of the United Kingdom, born in 1940 and living in Malvern in Worcestershire.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant brought proceedings against the local authority, the Southend on Sea Borough Council (“the Council”), in which he challenged a civil action brought by the Council in connection with his barge. The action was compromised on 18 November 1981. Thereafter, in December 1982, the Council took possession of the barge and its contents, and sold them.
On 29 January 1988, the applicant issued a writ in which he claimed that the Council was not entitled to sell the barge and contents, and had not properly accounted for the proceeds of sale. The writ was served on the Council on 8 February 1988 and a statement of claim was served on 6 April 1988. The Council responded with a Defence and Counterclaim, and a Request for Further and Better Particulars of the Statement of Claim on 28 June 1988. The applicant served a Reply and Defence to Counterclaim and a Request for Further and Better Particulars of the Defence on 22 November 1989. On that date he also supplied responses to the Council’s request for Particulars. Pleadings were deemed (by the Rules of the Supreme Court) to be closed in December 1989. The applicant’s summons for directions was issued on 30 May 1991 and a hearing took place on 2 July 1991.
On the 16 July 1991 the applicant issued a summons for specific discovery. On the same date the Council issued a summons applying to strike out the applicant’s claim for want of prosecution. The summonses were due to be heard together on 5 August 1991, but were adjourned due to lack of time.
In June 1992 the applicant took steps to have his summons restored for hearing. On 28 August 1992 the applicant’s summons was adjourned for 28 days; it was adjourned for a second time at the request of the parties from 21 November 1992 to 6 January 1993.
On 6 January 1993 a District Judge acceded to the Council’s submissions that the applicant had been guilty of inordinate and inexcusable delay, causing prejudice to the Council, and he accordingly dismissed the applicant’s claim.
The applicant appealed to the High Court. The appeal was heard on 14 June 1993 and the judge’s order was sealed on 30 June 1993. The applicant’s appeal was allowed and leave to appeal against the order was refused.
The Council then applied to the Court of Appeal for leave to appeal against the order. The Council’s application was rejected on the papers by Lord Justice Hirst on 29 September 1993, the decision being set out in an order dated 7 October 1993. The Council therefore applied for, and secured, an oral hearing before the Court of Appeal on 7 December 1993, at which hearing leave to appeal was granted.
The parties lodged bundles of documents for the appeal on 7 February 1994. The bundles were approved by the Court of Appeal on 16 February 1994. There was subsequently a clarification of the law on dismissal for want of prosecution in a leading decision by the House of Lords (Roebuck v Mungovin [1994] 2 AC 224). This led to the Council amending its notice of appeal, and the appeal bundles were finalised by 17 March 1994.
On 9 August 1994 the Council’s appeal was listed to be heard on 13-14 February 1995. On the 14 February 1995 the Court of Appeal, relying upon the decision of the House of Lords in Roebuck v Mungovin, allowed the Council’s appeal and dismissed the action for want of prosecution. The Master of the Rolls, Sir Thomas Bingham, who gave the leading judgment, referred to the “regrettable lapse of time” prior to the hearing of the appeal by the Court of Appeal.
By a letter dated 21 February 1995, the applicant sought the leave of the Court of Appeal to appeal to the House of Lords. This was refused on 27 February 1995. The applicant then presented a petition for leave to appeal to the House of Lords on 14 March 1995. The applicant failed to lodge the relevant documents with this appeal. The judicial office of the House of Lords requested the documents of the applicant on 28 June 1995 and again on 7 November 1995. On 31 January 1996 the Appeal Committee rejected the applicant’s petition for leave.


ITEMID: 001-57459
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF CHAPPELL v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
JUDGES: Gaukur Jörundsson
TEXT: 8. Mr Chappell, who was born in 1948, lives at Frome, Somerset.
In late 1980 and until the end of April 1981, he operated - through Video Exchange Limited, a company which he controlled - a club for the exchange of video cassettes, under the name of the Video Exchange Club. The company recorded cassettes which were subsequently made available to subscribers to the club, of whom there were some 4,000. A substantial number of the recordings distributed through the club had been made in breach of copyright, although the applicant contended that he had received counsel’s advice to the effect that the club’s exchange activities were within the law.
9. The applicant’s business came to the notice of two film companies and two organisations formed to protect film producers and film distributors, respectively, from activities carried out in breach of copyright ("the Plaintiffs"). The investigator employed by the Plaintiffs, a former policeman, discovered and reported to them that their copyright was, in his view, being breached by the applicant and his company ("the Defendants").
Accordingly, on 26 February 1981, the Plaintiffs, as a preliminary step in an action against the Defendants, applied to the High Court for interim relief in the form of an order known as an "Anton Piller order" (see paragraphs 10-24 below). Their application was supported by two affidavits, one sworn by the investigator and the other by W., a solicitor. The order was made on the same day by Mr Justice Whitford. The Defendants were not present in court: in accordance with the practice in such cases (see paragraph 11 below), no notice was given to them of either the application or its outcome.
10. Under section 45 of the Supreme Court of Judicature (Consolidation) Act 1925 - now section 37 of the Supreme Court Act 1981 -, the English High Court had and has a general power to grant an injunction by interlocutory order in all cases in which it appears to be just or convenient so to do. Order 29, rule 2, of the Rules of the Supreme Court specifically empowers it to make orders "for the detention, custody or preservation of any property which is the subject-matter of the cause or matter".
In this context, the High Court developed - in particular from 1974 onwards - the practice of granting in appropriate cases to the plaintiff or intending plaintiff in civil proceedings "Anton Piller orders", so called after the name of a case in which their use was approved by the Court of Appeal (Anton Piller KG v. Manufacturing Processes Ltd [1976] 1 All England Law Reports 779). They are of a procedural and essentially provisional nature only, being granted pending the trial of the action on the merits.
11. One of the basic purposes of this interlocutory measure being to preserve for that trial evidence in the possession of the defendant or prospective defendant, its essence is surprise. For this reason, the court - by virtue, so it was held in the Anton Piller case, of a power deriving from its inherent jurisdiction - grants the order on an ex parte application, that is without the defendant’s being given notice and without his being heard. For the same reason, the application is invariably heard in private and the defendant will become aware of the order’s existence only when it is served on him with a view to immediate execution.
Over the years, the principles governing the grant and the terms of these orders have been restated and refined in numerous judgments.
12. An Anton Piller order will normally contain restrictive or mandatory injunctions:
(a) prohibiting the defendant from dealing with materials that are the subject of the action (for example, "pirate" - that is, unlicensed or unauthorised - video tapes);
(b) requiring the defendant to disclose to the person serving the order the whereabouts of all such materials and details of suppliers and customers, and to deliver up the materials to the plaintiff;
(c) requiring the defendant to make within a specified time-limit an affidavit containing all the information to be disclosed by him under the order;
(d) requiring the defendant to permit the plaintiff to enter specified premises for the purpose of searching for and removing specified items.
As regards this last injunction, the court will confine the items specified to documents and materials directly relating to the action. It will also restrict the time of entry (commonly from 9 a.m. to 6 p.m. on weekdays) and the number of persons who are to be permitted to enter (very rarely more than four or five). The latter will include the plaintiff’s solicitor, who is an officer of the court (see paragraph 17 in fine below).
13. Whilst Anton Piller orders have been made in a wide variety of cases, the great majority are granted in proceedings involving allegations of infringement of patents, trade marks or copyright or of passing off. Of these, by far the most frequent have been cases involving pirate records, tapes and video cassettes, where the risks of suppression of evidence are especially strong. It appears that some 500 such orders were made each year between 1975 and 1980, but the current figure has dropped to between 50 and 100. This reduction reflects the decrease in the incidence of video piracy, which in the late 1970’s and early 1980’s had attained epidemic proportions.
14. An Anton Piller order is usually applied for at the very outset of proceedings, at the same time as the writ commencing them is proposed to be issued.
The plaintiff or intending plaintiff will submit to the court a draft of the order sought, accompanied by supporting evidence in the form of affidavits (or drafts to be sworn subsequently). The evidence, which is often provided by a professional investigator, will outline the plaintiff’s business and how it is alleged to be prejudiced by the defendant’s activities. There will be a description of those activities, very often including a record of a visit to the defendant’s premises and the purchase and presence there of, for example, pirate video cassettes.
15. The plaintiff must, however, state at the beginning what his charges are and what facts they are based on; he must not use an Anton Piller order as a means of finding out what sort of charges he can make (per Lord Justice Lawton in Hytrac Conveyors Ltd v. Conveyors International Ltd [1982] 3 All England Law Reports 415).
Furthermore, he is under a duty to disclose all material facts when applying for the order. Failure to comply, even innocently, with this obligation will, unless the court in its discretion otherwise decides, lead to a refusal or discharge of the order, even though there may be facts justifying its grant.
16. Before making an Anton Piller order, the court must be satisfied that:
(a) the plaintiff has made out an extremely strong prima facie case that his claim will succeed on the merits;
(b) the actual or potential damage is very serious for him; and
(c) there is clear evidence that the defendant has in his possession incriminating documents or things, and that there is a real possibility that, if he is forewarned, he may destroy such material.
17. If so satisfied, the court will nevertheless accede to the application only on terms which will be incorporated in its written order, in the form of undertakings given to the court. These are designed to protect the position of the absent defendant, counsel for the plaintiff being under a duty to ensure that the order contains all proper safeguards for this purpose. The court determines in its discretion what undertakings are to be given, there being no invariable rules or practice in this respect. Examples are the following, item (a) being found in all, and items (b), (c) (i) and (c) (ii) in most cases:
(a) an undertaking by the plaintiff to pay to the defendant any damages sustained by him as a result of the making of the order;
(b) an undertaking by the plaintiff that the order and other relevant documents, such as the affidavit evidence underlying it, the writ instituting the proceedings and the notice of the next hearing, will be served on the defendant by the plaintiff’s solicitors;
(c) undertakings by those solicitors:
(i) to offer to explain to the person served, fairly and in everyday language, the meaning and effect of the order, and to inform him that he has the right to obtain legal advice before complying with the order or parts thereof, provided such advice is obtained forthwith;
(ii) to retain in their custody any items taken by or delivered to them pursuant to the order;
(iii) to answer any question from the defendant as to whether an item is within the scope of the order;
(iv) to prepare, before their removal from the premises, a list of the items taken;
(v) to use any information or document obtained under the order only in connection with the civil proceedings in question;
(vi) to ensure that the exercise of rights under the order remains at all times under the control of a solicitor.
The significance of the intervention of a solicitor in this procedure and in the undertakings given is that solicitors are officers of the Supreme Court and, as such, subject to its inherent jurisdiction in disciplinary matters. A failure by a solicitor to comply fully with an undertaking given by him personally to the court in his professional capacity will render him liable to summary proceedings for contempt of court with a potential sanction of imprisonment, a fine or an order to pay compensation or costs. It will also constitute professional misconduct, punishable in professional disciplinary proceedings by striking off the roll, suspension from practice or a financial penalty.
18. In addition to the fact that it is issued to a private party in civil proceedings, and not to the police in criminal proceedings, an Anton Piller order is to be distinguished from a search warrant in that it confers no right of forcible entry onto premises. Its terms require the defendant to permit the plaintiff to enter, but it remains open to the defendant to refuse and, if he so wishes, to apply by urgent motion for variation or discharge of the order (see paragraph 20 below). He is, however, under pressure to give permission, especially since refusal to comply will expose him to the risk of proceedings for contempt of court on the motion of the plaintiff, with a possible penalty of imprisonment. Moreover, even if the defendant later succeeds in having the order discharged, his disobedience whilst it was in force will - unless it was made in circumstances in which it was a nullity in law - still constitute a contempt, albeit one which will probably be treated as technical and will usually attract no penalty (per Lord Justice Buckley in Hallmark Cards Inc. v. Image Arts Ltd [1977] Fleet Street Reports 153).
19. It is common practice - and this has received judicial approval - to arrange for a policeman to be present, outside the premises, when an Anton Piller order is being executed, with a view to forestalling any breach of the peace.
20. An Anton Piller order will expressly reserve to the defendant liberty to apply by urgent motion for its variation or discharge on giving specified notice to the plaintiff (usually 24 hours but sometimes less). Being an essentially provisional measure, it will in any event limit the duration of the relief which it affords to a specified period, generally about one week. On the expiry of that period, there will in principle be a hearing inter partes at which the court will review the order and consider whether the relief should be continued. On that occasion, or at any time subsequently, the defendant may apply for the order to be varied or discharged. Whilst the court may set aside the order even after its execution, it will not do so unless discharge was applied for reasonably soon thereafter and will serve some practical purpose (Booker McConnell plc v. Plascow [1985] Reports of Patent Cases 425).
An Anton Piller order can be set aside if there existed no, or no sufficient, grounds for its making, if the plaintiff failed to disclose material facts when applying for it or, it seems, if it was improperly or oppressively executed.
If the order is set aside, the defendant will be relieved from complying with the injunctions contained therein and any materials seized thereunder will be returned to him. Partial relief of a similar nature may also be granted by the court even if the application for discharge is unsuccessful (see paragraphs 44-45 below).
21. In addition or as an alternative to applying for the order’s discharge, the defendant may seek damages under the plaintiff’s cross-undertaking (see paragraph 17 (a) above) on the ground that the order was improperly obtained or executed. Damages may be awarded even if the order is not set aside and even if the plaintiff’s action succeeds on the merits (Columbia Picture Industries Inc. v. Robinson [1986] 3 All England Law Reports 338). Whilst they may be determined earlier, claims for damages are usually stood over until the trial on the merits (Dormeuil Frères SA v. Nicolian International (Textiles) Ltd [1988] 3 All England Law Reports 197). Damages are primarily intended to compensate the defendant for loss occasioned by the order but they may be aggravated if it was executed in an excessive or improper manner (see the Columbia Picture Industries case).
22. If the defendant considers that the plaintiff or his solicitors are in breach of their undertakings contained in the Anton Piller order or that the latter have acted improperly in executing it, he can proceed against them for contempt of court (see paragraph 17 in fine above).
23. The defendant can also claim damages for trespass if, for example, entry to his premises was obtained by a trick or without real consent, or materials were removed without justification under the order.
24. In the Columbia Picture Industries case, Mr Justice Scott reviewed extensively the law and practice relating to Anton Piller orders. He considered that the availability of damages did not meet the main objection to the procedure, namely that it produced for the defendant, without his being heard, damaging and irreversible consequences, often in the form of the closure of his business.
Furthermore, whilst it was proper to make Anton Piller orders in suitable cases, they had, in his opinion, been too readily granted and with insufficient safeguards for defendants, the balance that had to be struck between the rights at issue having swung much too far in favour of plaintiffs. He was of the view that the draconian and essentially unfair nature of an Anton Piller order from the defendant’s point of view required that it be restricted to the minimum extent necessary to achieve its purpose and he gave several examples of steps to be taken to meet this standard.
25. The interlocutory relief obtained by the Plaintiffs on 26 February 1981 in the shape of the Anton Piller order was granted until 5 March 1981 or until further order. The Defendants were given liberty to apply to the court for variation or discharge of the order on giving 24 hours’ notice to the Plaintiffs.
26. The order contained, inter alia, the following.
(a) An injunction prohibiting the Defendants from making, selling, hiring, distributing or parting with possession of any unlicensed copies of any films the copyright in which was owned by the Plaintiffs, and from parting with possession of any documents relating to the supply of such copies to or by the Defendants.
(b) An injunction requiring the Defendants to permit not more than three persons authorised by the Plaintiffs, together with a solicitor and one other solicitor or employee of the Plaintiffs’ solicitors, to enter forthwith specified premises on any weekday between 8 a.m. and 9 p.m. for the purpose of searching for and removing into the custody of the Plaintiffs’ solicitors any unlicensed copies of the said films and any documents appearing to relate to the acquisition, supply or disposal of such copies. The premises identified in the order were those under the control of Mr Chappell and his company; they were in fact where he carried on business but - apparently unbeknownst to the Plaintiffs - they were also occupied by him in part as his home (see paragraph 36 below) and constituted at the time his only residence.
(c) An injunction requiring the Defendants to reveal to the Plaintiffs’ solicitors the whereabouts of, and to deliver to them, all the aforesaid copies and documents in the Defendants’ possession.
(d) Injunctions requiring the Defendants to disclose to the Plaintiffs’ solicitors the names and addresses of the Defendants’ suppliers of and customers for unlicensed copies of the said films; and to swear, within four days after service of the order, an affidavit setting forth this information ("the affidavit of disclosure").
27. The order also contained undertakings by the Plaintiffs or their solicitors in terms akin to those mentioned in paragraph 17 above, other than items (c) (iii), (c) (iv) and (c) (vi), together with an undertaking not to commence or instigate criminal proceedings against any of the Defendants in respect of the acts forming the subject-matter of the action. The undertaking to inform the Defendants of their right to obtain legal advice related, however, solely to the requirement to disclose particulars of their suppliers and customers (see paragraph 26 (d) above but cf. paragraph 38 below).
28. The Anton Piller order was executed on 2 March 1981, simultaneously with a police search warrant. The circumstances that led to this special feature of the present case are set out below.
29. On 16 February 1981 the Plaintiffs’ investigator, posing as a customer, had visited Mr Chappell’s business premises in order to collect pirate video cassettes of three films, the copyright in which was allegedly owned by the Plaintiffs. He was also shown an extract from another cassette which he considered obscene; in his affidavit in support of the application for the Anton Piller order, he stated that he was asked if he was interested in cassettes of this kind but "did not pursue this as such material is not of interest to my [employers]".
In fact, the investigator went immediately to the Bath police and informed them about the material he regarded as obscene. He saw Detective Chief Inspector A, to whom he sent a written statement on 17 February. On the same day he told the Plaintiffs’ solicitors - who had been instructed following his report to obtain an Anton Piller order - that the police were "interested in the porno material" he had seen and that he would "make arrangements with the police in Bath".
30. On 24 February 1981 the investigator telephoned Detective Chief Inspector A at the request of the Plaintiffs’ solicitors to inform him that an Anton Piller order was to be applied for on 26 February, the intention being to serve and execute it on 2 March. He arranged with A that, if the order was obtained, there would be a meeting between those who were to execute it and the police at Bath police station at 10.45 a.m. on 2 March. The reason for this arrangement was that the police planned to execute, in connection with possible proceedings under the Obscene Publications Act 1959 and at the same or about the same time as the order, a warrant to search the Defendants’ premises for and seize any pornographic video films.
31. During the course of the application for the order on 26 February 1981, the following exchange took place between counsel for the Plaintiffs and Mr Justice Whitford:
"(Counsel): My Lord, there is one other matter which I ought to draw to your Lordship’s attention and that is that the local police force are very much interested in these defendants in relation to matters which are not the subject of this action, namely, the adult films.
(The judge): Yes. Well, that is a different matter altogether.
(Counsel): My Lord, it is a different matter, but I felt I ought to draw your Lordship’s attention to the fact that they propose a visitation upon [the applicant] and his company at about the same time as we propose to serve this order upon them.
(The judge): Yes, but they are not interested in ...
(Counsel): No.
(The judge): ... these films.
(Counsel): They are just interested in the obscenity.
(The judge): It’s only the self-incrimination.
(Counsel): My Lord, that’s right.
(The judge): So far as that is concerned there is no indication that the police are ...
(Counsel): None whatever.
(The judge): As to that you gave the undertaking."
32. A letter of 27 August 1981 from the Plaintiffs’ solicitors to Mr Chappell - which was put in evidence by the Plaintiffs in another connection - contained the following passage concerning the arrangements with the police:
"We would like to deal ... with the point about the simultaneous execution of the police search warrant with the [Anton Piller order] ... [We] would like to make our position plain ... On 17 February [we] first received instructions to obtain an [order]. It is quite clear from our attendance note of the conversation that [the investigator] also told [H.] that the police were interested in you and [the applicant’s company] in relation to pornographic material. It was also clearly assumed that should the police wish to take action then a joint execution of the search warrant and the [order] would be the ideal arrangement. Obviously anything other than a simultaneous execution might well prove to be to little or no effect. Of course no one could be certain at that time that such simultaneous execution would take place since it depended, inter alia, on a judge granting a full Anton Piller order and the police obtaining a search warrant quite apart from any other practical difficulties. That was the position when the application before the application judge was made on [26] February [1981]. Let us be quite clear, we do not in any way deny that it was the intention that the [order], if granted, would be served and executed at the same time as the search warrant, assuming that [that] was granted to the police and that the other arrangements could be made. We repeat that such is obvious. We also think reference to the transcript [of the hearing concerning the application for the order] makes it quite clear that the application judge was informed of the police interest and the likelihood or possibility of a search warrant being executed."
33. As soon as the Anton Piller order was made on 26 February 1981, the Plaintiffs’ solicitors informed the Bath police, who had obtained a search warrant on the same day. The previous arrangements were confirmed.
34. At 10.45 a.m. on 2 March 1981 the Plaintiffs’ party (H., another solicitor and three employees of the Plaintiffs, including the investigator) met the police at Bath police station. They then went, together with the police party responsible for executing the search warrant (eleven or twelve policemen in plain clothes, led by A), to the Defendants’ premises.
35. On arrival, the investigator went in first, again posing as a customer, his stated object being to be able to "observe what happened right from the start".
A few minutes later, A, who was accompanied by some of the Plaintiffs’ party including H. but by no policemen, rang the doorbell. The lady who opened the door initially refused entry but, after being shown the search warrant, she reluctantly admitted the group (see also paragraph 43 (d) below).
36. The premises were on four floors. The ground-floor entrance gave access to a passage and stairs leading to the other floors. On the first of those were Mr Chappell’s office and a general office; on the second, his bedroom, a room used for processing video cassettes and the office of an employee of his company; and on the third, three further offices.
37. Detective Chief Inspector A and those accompanying him found Mr Chappell in his office, where he was served with the search warrant. The other ten or eleven policemen entered the building at 11.40 a.m. Having been assigned to various rooms or tasks, they began their search; it was concluded at 4.20 p.m., after 274 items (mostly video tapes) had been logged and signed for.
38. As soon as the warrant had been served and whilst the police were beginning their search, H. served the Anton Piller order on Mr Chappell and informed him of its effect. Furthermore, in accordance with the general obligation incumbent on solicitors in such cases, he went further than his express undertaking (see paragraph 27 above), in that he urged Mr Chappell to obtain legal advice on the order in its entirety. The latter asked for a member of his usual firm of solicitors to attend, but the only person available was a trainee solicitor. On his arrival shortly afterwards, Mr Chappell, who was distracted by the police search, was advised of the implications of the order and accepted service of it; service was accepted on behalf of his company by the trainee solicitor.
Thereupon - but not before - the Plaintiffs’ party started their search of the premises, which was conducted simultaneously with the police search and concluded at about the same time. They seized, inter alia, 377 video cassettes as pirate copies; some of these, in which the copyright was not owned by the Plaintiffs, were subsequently returned to Mr Chappell.
39. The applicant maintained that, owing to the simultaneous searches, he was unable to supervise the operations and take note of the material seized. In particular, he stated that the Plaintiffs’ solicitors took a number of private, confidential and personal documents, having no bearing on the action for breach of copyright. The Government submitted that, not being a party to the search, they could not comment on or dispute these contentions.
A note on the solicitors’ file records that H. went through the drawers of correspondence and other documents and "encountered some protest" from Mr Chappell "who attempted to separate material which was not relevant", but that "all necessary material was finally removed". No itemised list of the seized material was prepared, neither was this required under the order (see paragraph 27 above), but the applicant did take copies of some of it. The Commission found it "clear" that personal correspondence had been examined and, in certain cases, taken by the solicitors.
40. The aforesaid and another note made by the Plaintiffs’ solicitors reveal that they returned after the search to the police station and, in Mr Chappell’s absence, went through the documentation seized by the police and copied or borrowed certain relevant items.
41. The matter of the Anton Piller order came before the High Court (Mr Justice Dillon) on 5 March 1981 for a hearing inter partes (see paragraph 20 above). The applicant did not then seek the discharge of the order on the ground that it had been improperly obtained, although he did apparently ask for the return of the seized cassettes.
As regards the affidavit of disclosure which was due to be filed by the Defendants by 6 March 1981 (see paragraph 26 (d) above), Mr Justice Dillon, by order of 9 March, extended the time-limit to 14 March: at the hearing the Defendants had given various undertakings to the court, including one to disclose the same information as that originally stipulated under the Anton Piller order and to make the corresponding affidavit. The time-limit was subsequently extended, by agreement between the parties, to 27 March. However, the applicant, who had changed solicitors twice and visited the Plaintiffs’ solicitors’ office several times to examine the seized materials, continued to refuse to file the affidavit; he objected, in particular, to giving details of the members of the Video Exchange Club.
42. On 6 May 1981 the Plaintiffs served on the Defendants a notice of motion for contempt of court for failure to comply with the disclosure undertaking given to Mr Justice Dillon; in it they sought Mr Chappell’s committal to prison.
On 26 May the applicant withdrew his instructions from his professional advisers and thereafter conducted his case in person. He then issued a variety of cross-motions against the Plaintiffs. In one of these, dated 21 July, he requested that the Anton Piller order be set aside; that the Defendants be released from their undertakings; that the seized materials be returned to them; that the Plaintiffs’ action be dismissed; and that he be awarded damages. His principal ground for claiming this relief was that the order had been improperly obtained, served and executed - notably on account of the combined searches by the Plaintiffs and the police and the failure to inform Mr Justice Whitford of the plans in this connection - with the result, he submitted, that the order and the evidence obtained thereunder were invalid.
Another cross-motion by Mr Chappell related to alleged contempt of court by the Plaintiffs and their investigator, notably for failure to comply with undertakings incorporated in the order.
43. On 10 November 1981, after hearing substantial argument and several witnesses (including the applicant and others who had been present at the search), Mr Justice Warner gave judgment in the High Court on the Plaintiffs’ and Mr Chappell’s motions. He addressed, inter alia, the following matters.
(a) After describing an Anton Piller order as being of a "draconian nature", he quoted in this connection the following dictum of Mr Justice Browne-Wilkinson in the High Court:
"... [T]he rule of full disclosure to the court is almost more important in Anton Piller cases than in other ex parte applications. Since Anton Piller orders give compulsory rights of inspection, once those inspections have taken place the information procured from [them] is in the hands of the other side and the situation is irreversible."
(b) He noted that although the investigator’s affidavit in support of the application for the order contained sufficient evidence to warrant the latter’s making, it included two inaccuracies which were neither trivial nor immaterial, one being the omission of a clear explanation of his contact with the police on 16 February 1981 (see paragraphs 9 and 29 above).
(c) He recited the exchange between counsel and Mr Justice Whitford on 26 February 1981, but described the Plaintiffs’ actual intentions in respect of their proposed co-operation with the police as being "more accurately described" in their solicitors’ letter of 27 August 1981 (see paragraphs 31-32 above).
(d) Whilst finding that the lady who gave admission to the premises (see paragraph 35 above) "obviously took it that H. and the others were police officers", he was of the view that the Anton Piller order had been validly served.
(e) He examined various complaints concerning the execution of the order and noted that Mr Chappell "was able to look after his interests as well as anyone in his position would have been". He nevertheless adverted to the difficulties created for a defendant by the simultaneous execution of a search warrant and an Anton Piller order, as regards supervision of the searching and taking advice from and giving instructions to his solicitor. To protect the defendant, he suggested, the warrant and the order should be served at the same time but the two searches should be conducted consecutively.
(f) He was satisfied that various allegations of improper behaviour on the part of the Plaintiffs and their solicitors, relating to matters other than the obtaining, service and execution of the order, were unfounded.
(g) He arrived at the following conclusions:
"... [T]here was nothing inherently wrong with the mode of execution of the Anton Piller order, except that the presence of the police executing their search warrant at the same time made it more oppressive than it should have been ... [T]he real vice lies in the fact that Mr Justice Whitford was not told with all the candour that was called for in the circumstances what the intentions of the plaintiffs and the police were. He ought ... at least to have been told that it was intended that the Anton Piller order ... and the search warrant ... should be executed at the same time ....
... [T]he plaintiffs’ failure fully to inform Mr Justice Whitford ... [did not go to the question whether the order should be made at all]. It only meant that [he] did not consider whether he should include in his order some safeguard against the risk of the simultaneous execution of the search warrant and of the order proving oppressive ... If [he] had known all that I have learnt ... about the way in which [the applicant’s company] conducted its business, he would have been all the more certain that he should make the order."
44. In the light of the foregoing, Mr Justice Warner gave the following decisions.
(a) Whilst he could not undo the irreversible, he would not allow the Plaintiffs to derive any further advantage from the Anton Piller order. Accordingly, he released the Defendants from the disclosure undertaking given to Mr Justice Dillon (see paragraph 41 above) and set aside those parts of the original order that required disclosure of particulars of suppliers and customers (see paragraph 26 (d) above).
(b) He declined to order return of the materials seized under the order.
(c) He held that he could neither dismiss the Plaintiffs’ action nor, at that stage, award damages to Mr Chappell.
(d) Whilst the Defendants were undoubtedly in contempt of court for failure to make the affidavit of disclosure, no penalty should be imposed: it would be incongruous to release them from their undertaking and at the same time punish them for non-compliance.
(e) He dismissed Mr Chappell’s cross-motion for contempt of court.
45. On 15 June 1982, the Court of Appeal rejected an appeal by Mr Chappell against dismissal of his contempt motion and allowed a cross-appeal by the Plaintiffs. The judgments given contained, inter alia, the following points.
(a) Whilst an Anton Piller order was necessary and salutary in certain cases, it was a draconian measure. It infringed what is normally the fundamental principle of audi alteram partem, as a result of proceedings in which the defendant had not been heard and of which he had not even previously been informed. Hence the importance of full disclosure to the court from which the order was sought and of observing not only in the letter but in the spirit the stipulations it incorporated for the defendant’s protection.
(b) Whilst Mr Justice Whitford had not been adequately informed of the plan to execute the order and the search warrant simultaneously, there had been no deliberate intention to deceive him.
(c) There had not been a plot by the Plaintiffs to enter the premises without permission, but it was "disturbing" that the Defendants were not given a proper opportunity to refuse entry at the door. Once inside, the Plaintiffs’ solicitors had behaved with complete propriety and Mr Chappell, far from being "shattered", as he had contended, was "reasonably calm and collected".
(d) There was no objection in principle to a search warrant and an Anton Piller order obtained in respect of the same premises being executed "more or less contemporaneously", lest valuable evidence be lost. However, Lord Justice Oliver added that, if this was intended, the court from which the order was sought had to be told in advance so that it could consider safeguards for the defendant as regards, for example, the order of the searches or the conduct of the plaintiff on obtaining entry. In Lord Justice Lawton’s view, steps should be taken to ensure that the two searches were not conducted "simultaneously" and that the solicitors executing the order did not seem to be "the hangers on of a squad of police officers".
(e) Mr Chappell had admitted dealing in "a substantial volume" of pirate material, he had not applied to Mr Justice Dillon in March 1981 for discharge of the order but had instead given wide undertakings, and the order was necessary for the Plaintiffs’ protection.
Whilst describing what had happened as "unfortunate and regrettable", the Court of Appeal concluded that it was not necessary to set the Anton Piller order aside for the purpose of doing justice to Mr Chappell. It therefore restored the order, including the original disclosure requirements, but found it inappropriate to impose a penalty for his contempt of court in having failed to comply with his obligations in this respect.
The Court of Appeal also refused leave to appeal to the House of Lords. A petition by Mr Chappell for such leave was rejected by the House of Lords on 7 October 1982.
46. Mr Chappell had continued, until the end of April 1981, to operate a club for the exchange of video cassettes, but rather unsuccessfully on account of the seizure of his stock and books. On 21 December 1982 the action for breach of copyright was concluded by a High Court order, to which he, allegedly under duress of the risk of self-incrimination, and the Plaintiffs consented. This order:
(a) recorded the agreement of the Plaintiffs and Mr Chappell to release each other from all liability arising from the subject-matter of the action and its pursuit by the Plaintiffs;
(b) restrained Mr Chappell from any dealings with unlicensed copies of any films the copyright in which was owned by the Plaintiffs;
(c) required him to make an affidavit setting out the information about his suppliers and customers which the Anton Piller order had directed him to disclose by affidavit (see paragraph 26 (d) above), but omitting the names and addresses of bona fide members of the Video Exchange Club;
(d) released the Plaintiffs and their solicitors from their undertakings incorporated in the Anton Piller order, including that as to the confidentiality of the material obtained thereunder;
(e) directed that "all the documents and films" relating to the action be returned to Mr Chappell, after erasure of the films from the cassettes;
(f) directed that all further proceedings in the action be stayed.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-87741
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SZTERGAR v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1954 and lives in Pécs.
5. The applicant's employer went into liquidation on 8 October 1991. On 14 December 1991 the applicant was dismissed from his job and he received 174,135 Hungarian forints (approximately 690 Euros) in severance pay. The applicant's further claims against his former employer were channelled into the ongoing liquidation procedure. Ultimately, the review bench of the Supreme Court awarded him HUF 124,480 (approximately EUR 494) in compensation in 1997, which, as far as it can be determined from the case file, was never paid to him. Because of his abovementioned pending and registered claim (hitelezői igény), he remained a “creditor” and, therefore, a party to the proceedings.
6. On 23 January 2006 the Baranya County Regional Court deleted the applicant's former employer from the Company Register. In April 2006 the Pécs Court of Appeal ordered the stay of the proceedings until the legal successor of the debtor joined the proceedings. The applicant appealed against this decision.
7. In October 2006 the Supreme Court quashed the order and remitted the case to the Court of Appeal. In January 2007 the Court of Appeal indentified the legal successor of the debtor and continued the liquidation proceedings which are still pending.
VIOLATED_ARTICLES: 6


ITEMID: 001-58256
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF CASTILLO ALGAR v. SPAIN
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 7. Mr Ricardo Castillo Algar was born in 1947 and lives in Madrid. At the material time, he was a lieutenant–colonel in the infantry and attached to the Spanish Legion.
8. By an order (auto de procesamiento) of 18 December 1989 investigating judge no. 1 (juez togado militar central) at the Madrid Central Military Court (tribunal militar central) charged the applicant with having set up, to the detriment of the Armed Forces Treasury and contrary to Article 189 § 1 of the Military Criminal Code, an unregulated private fund that was not subject to tax or audit by the tax authorities.
9. On the applicant’s appeal, the Central Military Court set aside the order on 19 March 1990 and then on 12 July 1990 held that there was no case to answer.
10. The public prosecutor's office appealed on points of law. In a judgment of 20 January 1992 the Supreme Court (Military Division) allowed the appeal and quashed the Central Military Court’s decision that there was no case to answer, holding that the facts of the case “could be considered, solely for the purposes of the investigation ... and without prejudice to whatever subsequent classification might be adopted, to constitute an offence against the Armed Forces Treasury under Article 189 § 1 of the Military Criminal Code”. The Supreme Court added, however, that that conclusion, while sufficient to justify its quashing the impugned decision, was not to influence the courts below in their decisions on the merits.
11. The applicant’s constitutional appeal (recurso de amparo) against the judgment of 20 January 1992 was dismissed by the Constitutional Court on 23 March.
12. Consequently, on 6 May 1992 the investigating judge issued a fresh order in which he charged the applicant with the same offence.
13. On 11 May 1992 the applicant appealed against that second order. Repeating the submissions he had made in his first appeal to the Central Military Court, the applicant contended in particular that the decisions in his case had been inconsistent, despite the fact that they had been based on the same facts and there was no new evidence. He said that the decision of 19 March 1990 had been final (see paragraph 9 above) and submitted that by charging him a second time contrary thereto the investigating judge had acted arbitrarily, as had the Supreme Court in quashing the Central Military Court’s decision that there was no case to answer (see paragraph 10 above) without considering the merits.
14. On 7 July 1992 the Central Military Court dismissed the applicant’s appeal and upheld the order of 6 May. There were three military judges (vocales togados generales militares) in the chamber that heard the appeal, including E.S.G., the president (auditor presidente general consejero togado), and R.V.P., a judge (vocal togado general auditor). In its decision, the chamber held in particular:
“... It suffices to read [the Supreme Court’s judgment of 20 January 1992] to infer that it found, in the ‘as to the law’ section, that there was sufficient evidence to allow of the conclusion that a military offence has been committed, that there were no grounds in law for invalidating the classification (tipicidad) of the offence adopted in the original proceedings and insufficient grounds for setting aside [the charges] and disregarding the prima facie evidence of the commission of an offence ... on which [the charges] had been based.”
In the light of the Supreme Court’s judgment and the constitutive elements of the offence under Article 189 § 1 of the Military Criminal Code, the chamber held that the order appealed against satisfied the conditions as to validity laid down by Organic Law no. 2/1989 and that the investigating judge’s findings on the facts of the case had been reasonable and not arbitrary.
15. On 6 April 1994 the three military judges sitting in the Central Military Court (see paragraph 13 above) made an order (providencia) setting the applicant’s case down for trial on 18 May. It was also indicated in the order that the names of the two officers (vocales militares) who were to complete the trial chamber would be drawn by lot (insaculación), it being a statutory requirement that the chamber be mixed (escabinado), comprising three military judges (vocales togados) and two officers.
The order was served on the applicant’s lawyer that same day and on 13 April he was given the name of the two officers on the bench.
16. On 25 May 1994 the chamber of the Central Military Court sitting in the applicant’s case found him guilty of the offence as charged and sentenced him to three months and one day's imprisonment. The chamber was presided over by E.S.G. and included the military judge, R.V.P., who acted as the reporting judge.
17. The applicant appealed on points of law to the Supreme Court. He maintained that the chamber that had tried him could not be considered impartial as two of the judges, E.S.G. and R.V.P., had previously sat in the chamber that had heard his appeal against the order of 7 July 1992 by which he had been charged.
18. On 14 November 1994 the Supreme Court (Military Division) dismissed the appeal. In so deciding, it found in particular that the applicant had failed to challenge the judges whom he accused of bias even though he had had an opportunity to do so, his lawyer having been informed of the composition of the chamber when it was constituted and before the trial began on 18 May 1994 (see paragraphs 22–23 below).
Nevertheless, the Military Division considered the merits of the argument that the Central Military Court had not been impartial. It held that the decision to dismiss the applicant’s appeal could not be regarded as being part of the investigation of the case. In its reasons for dismissing the appeal, the Central Military Court had confined itself to noting that the Supreme Court did not disagree with the investigating judge’s finding that there was evidence of guilt. The Military Division took the view that the dismissal of the appeal accordingly could not be considered to have been an investigative measure capable of undermining the objective impartiality of the chamber that had ruled on the merits of the case.
19. The applicant then lodged an amparo appeal with the Constitutional Court relying, inter alia, on his right to a fair hearing by an independent and impartial tribunal, as guaranteed by Article 24 § 2 of the Constitution (see paragraph 21 below).
20. On 20 February 1995 the Constitutional Court, entirely agreeing with the reasoning of the Supreme Court (Military Division), dismissed the applicant’s appeal.
21. Article 24 of the Constitution provides:
“1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights.
2. Likewise, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent...”
22. The relevant provisions of Organic Law no. 2/1989 of 13 April 1989 concerning grounds for challenge read as follows:
“Judges, presidents and members of military tribunals ... shall not take part in judicial proceedings if any of the grounds set out in section 53 applies; if they do take part [they] may be challenged.”
“[A judge] shall withdraw or, if he does not do so, may be challenged on any of the following grounds:
...
5. if he has acted as counsel for or has represented one of the parties, has as a lawyer drawn up a report in the proceedings or similar proceedings, or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness;
6. if he is or has been a complainant against or accuser of one of the parties; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection;
...
11. if he has taken part in the same proceedings in another capacity.”
“...
If the tribunal or the judge considers that there is no justification for withdrawal, it or he shall order the person who has offered to withdraw to continue in the case, without prejudice to the parties’ right of challenge.
No appeal shall lie against such an order.”
23. Under section 56 challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event at least forty–eight hours before the hearing unless the ground comes to light subsequently.
24. As regards orders by which an accused is charged (auto de procesamiento) and appeals against such orders, the Organic Law provides:
“Where there is reasonable evidence of guilt on the part of one or more identified persons, the investigating judge shall charge them...
The charges shall be brought by an order (auto), in which shall be mentioned the punishable acts the accused is alleged to have committed, the presumed offence constituted by those acts and the [relevant] statutory provisions ... followed by the charges and the measures relating to the accused’s release or detention pending trial...”
“... The accused and the other parties may lodge an appeal, which shall have no suspensive effect, against the order by which the accused is charged within five days after [its] service...”
“... If the appeal against the order by which the accused is charged is allowed ..., an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include on the case file or which were referred to in the initial pleading on appeal.”
25. In a judgment of 8 February 1993 the Supreme Court decided a case in which the trial court had been presided over by a judge who had previously made the order by which the accused had been charged. The Supreme Court held:
“... Consequently, if a judge, after sitting in the court that made the order by which the accused was charged – which order undoubtedly presupposes an assessment, albeit a provisional one, of the issue of guilt – and, in order to do so, having earlier had to hear the accused or thoroughly examine the [result of the] investigative steps taken in order provisionally to assess whether there was criminal liability, subsequently sits in a court that has to hear and decide the merits of the same case ..., it is [legitimate] to consider that [the person] charged and later tried by [that judge] may be concerned that his case will be considered and tried without the maximum guarantees of impartiality...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1