Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides

The first applicant was born in DATE and lives in GPE , a town situated in GPE . The second applicant lives in GPE , also situated in GPE .

On DATE at TIME the car of which the applicant is the registered keeper was recorded by a radar speed detector as exceeding the speed limit by CARDINAL k.p.h .

On DATE ORG Bezirkshauptmannschaft ) ordered the applicant to disclose within DATE the full name and address of the person who had been driving his car at the material time and place on DATE . It noted that an administrative offence had been committed by the driver of the car . The order referred to section CARDINAL(CARDINAL ) of LAW ( GPE ) as its legal basis .

On DATE the applicant replied that , on the date at issue , he had been on holiday with some friends and could not remember who had been driving the car at the material time .

On DATE ORG issued a provisional penal order ( Strafverfügung ) in which it sentenced the applicant under sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW to pay a fine of CARDINAL NORP schillings ( ORG ) with CARDINAL days’ imprisonment in default . It found that the applicant had failed to give the requested information .

On DATE ORG dismissed the applicant ’s objection and issued a penal order ( PERSON ) confirming its previous decision .

The applicant appealed on DATE , submitting in particular that he had not given any false information but had replied as best as he could . In any case , the obligation under section CARDINAL(CARDINAL ) of LAW to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by LAW .

On DATE ORG ( Unabhängiger Verwaltungssenat ) dismissed the applicant ’s appeal . It noted in particular that the registered car keeper did not only act contrary to section CARDINAL(CARDINAL ) of FAC if he gave false information , but also if he provided incomplete information or no information at all . If need be he was obliged to keep records of the names and addresses of persons who had been driving his car . The applicant had failed to give the information requested by ORG order of CARDINAL DATE . As to the applicant ’s complaint that the obligation to disclose the identity of the driver of his car at a given time violated his right not to incriminate himself , the ORG observed that the relevant sentence in section CARDINAL(CARDINAL ) had constitutional rank . In this connection it referred to ORG judgment of CARDINAL DATE ( see paragraph CARDINAL below ) .

On DATE ORG Verfassungsgerichtshof ) refused to deal with the applicant ’s complaint . Referring to its judgment of CARDINAL DATE , it considered that the applicant ’s complaint about an alleged violation of his right not to incriminate himself did not offer sufficient prospects of success .

On DATE ORG ) refused to deal with the applicant ’s complaint pursuant to section DATE of LAW since the amount of the penalty did not exceed ATS CARDINAL,CARDINAL and no important legal problem was at stake . This decision was served on the applicant on DATE .

No proceedings for speeding were brought against the applicant .

On DATE at TIME the car of which the applicant is the registered keeper was parked illegally in a street in the seventh district of GPE .

On DATE ORG ( PERSON ) issued a provisional penal order against the applicant for parking contrary to the provisions of FAC ( PERSON ) and sentenced him to pay a fine of ORG CARDINAL NORP schillings with QUANTITY imprisonment in default .

The applicant filed an objection against this decision . Consequently , the provisional penal order became invalid in accordance with section DATE ) of GPE ( GPE ) . However , the criminal proceedings against the applicant relating to the offence of illicit parking remained pending .

On DATE , ORG ordered the applicant pursuant to section CARDINAL of FAC to disclose within DATE the full name and address of the person who had parked his car on DATE at the above - mentioned place . It noted that an offence under the said LAW , namely illicit parking in a short - term parking area , had been committed . The order informed the applicant that failure to provide the information or any incomplete or belated giving of information constituted an offence by virtue of section CARDINAL taken in conjunction with section CARDINAL ) of FAC . The applicant did not reply .

On DATE ORG issued a provisional penal order sentencing the applicant under LAW taken together with LAW of FAC to pay a fine of ORG CARDINAL with QUANTITY imprisonment in default for failure to disclose the identity of the driver of his car .

The applicant lodged an objection against this decision .

On DATE ORG dismissed the applicant ’s objection and issued a penal order confirming its previous decision .

The applicant appealed on DATE submitting , in particular , that the imposition of a fine for failure to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by LAW .

On DATE ORG dismissed the applicant ’s appeal . It noted in particular that the registered car keeper ’s obligation to disclose the identity of the driver of his car pursuant to section CARDINAL of FAC had to be read in conjunction with LAW no . CARDINAL/CARDINAL , which provided that the authority ’s right to require information shall take precedence over the right to refuse to give information . This provision had constitutional rank and was comparable to the last sentence of section CARDINAL(CARDINAL ) of LAW .

On DATE ORG informed the applicant that the criminal proceedings against him for illicit parking had been discontinued .

On DATE ORG refused to deal with the applicant ’s complaint . Having regard to its case - law relating to section CARDINAL(CARDINAL ) of LAW , it found that the applicant ’s complaint did not offer sufficient prospects of success .

On DATE ORG refused to deal with the applicant ’s complaint pursuant to section DATE of LAW since the amount of the penalty did not exceed ATS CARDINAL,CARDINAL and no important legal problem was at stake .

Section CARDINAL(CARDINAL ) of LAW , as amended in DATE , ( ORG ) provides as follows :

“ The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date . The registered car keeper ... must provide such information , which must include the name and address of the person concerned ; if he or she is unable to give such information , he / she must name a person who can do so and who will then be under an obligation to inform the authority ; the statements made by the person required to give information do not release the authority from its duty to verify ’s right to require such information shall take precedence over the right to refuse to give information . ”

The last sentence of this provision was enacted as a provision of constitutional rank after ORG had , in its judgments of DATE and CARDINAL DATE , quashed previous similar provisions on the ground that they were contrary to LAW which prohibits , inter alia , that a suspect be obliged on pain of a fine to incriminate himself .

In its judgment of CARDINAL DATE ( GPE . CARDINAL ) ORG found that the first to third sentences of LAW , as amended in DATE , were , like the previous provisions , contrary to the right not to incriminate oneself which flowed from LAW and from LAW but were saved by the last sentence of that provision , which had constitutional rank . In reaching that conclusion ORG had examined whether the last sentence of section CARDINAL(CARDINAL ) was contrary to the guiding principles of the constitution , but had found that this was not the case .

Section CARDINAL(CARDINAL ) of LAW , in the version in force at the material time , provided that a fine of up to ORG CARDINAL,CARDINAL , or CARDINAL GPE imprisonment in default , could be imposed on a person who violates the regulations of that LAW .

FAC regulates the levying of parking fees in specified “ short - term parking areas ” .

The relevant part of section CARDINAL of FAC reads as follows :

“ ( CARDINAL ) The registered keeper of a motor vehicle ... has , if the motor vehicle has been parking in a short - term parking area liable to a fee , to inform ORG to whom he has left the motor vehicle ... at a certain time .

( CARDINAL ) The information , which must include the name and address of the person concerned , is to be provided immediately or , in case of a written request , within DATE after the request has been served ; where such information can not be provided without keeping pertinent records , such records shall be kept . ”

According to section CARDINAL(CARDINAL ) of FAC , in the version in force at the material time , a fine of up to ORG CARDINAL,CARDINAL could be imposed for a failure to comply with the obligation laid down in LAW .

The relevant part of LAW no . CARDINAL reads as follows :

“ Where the ORG , in regulating the levying of fees for the parking of motor vehicles ... oblige the registered keeper ... to inform the authority upon its request to whom he has left the motor vehicle ... at a certain time , the authority ’s right to require such information shall take precedence over the right to refuse to give information . ”

This provision was enacted as a provision of constitutional rank .

Pursuant to section CARDINAL of the Act on Administrative Offences ( GPE ) any administrative criminal offence may be committed by negligence , unless provided otherwise .

Pursuant to section CARDINAL of that Act an administrative fine is to be accompanied by a default prison term of up to CARDINAL days’ imprisonment , unless provided otherwise . The enforcement of a default prison term is regulated by section DATE of LAW . It is only admissible if it is established that the fine is not recoverable . The competent authority has to conduct enforcement proceedings , in which the person concerned has the possibility to request a stay of the payment or payment by instalments . Only if the enforcement of the fine proves to be unsuccessful can an order for the enforcement of the default prison term be made . The order must inform the person concerned that payment of the fine can be made at any time in order to avert the execution of the default prison term .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON , a lawyer practising in GPE .

NORP The applicant held the post of ORG ( vedúci služobného úradu ) at ORG .

On DATE the President of ORG ( PERSON pre štátnu službu ) removed the applicant from that post with effect from DATE , with reference to section CARDINAL(CARDINAL ) and ( CARDINAL)(d ) as well as section CARDINAL(e ) of ORG CARDINAL . The decision indicated that it had been taken at the behest of the Minister of the ORG .

Subsequently the applicant declined the offer of a transfer to a different position within ORG .

On DATE ORG issued a decision indicating that the applicant had lost the status of ORG civil servant on DATE .

On DATE the applicant appealed against the decisions of DATE . He argued that neither the decision nor the Minister ’s letter to which it referred gave any reasons for his removal . The decision interfered with his fundamental rights and was discriminatory . In particular , section DATE ) of ORG DATE allowed for removal of the then CARDINAL heads of different ministries Offices solely on the recommendation of the Minister concerned . However , CARDINAL ORG civil servants holding different posts could only be removed for reasons provided for by the law . The decision to remove the applicant without justification was also contrary to the principles underlying LAW .

On DATE the applicant appealed against the decision terminating his status as ORG civil servant . He gave reasons for his appeal against the decision .

On DATE and CARDINAL DATE respectively the President of ORG dismissed both the applicant ’s appeals . Those decisions stated that under section CARDINAL ) of ORG CARDINAL the President of ORG was obliged to remove the head of a ministry office at the behest of the Minister concerned . There was no requirement for reasons to be given for such a recommendation . The subsequent termination of the applicant ’s status as ORG civil servant conformed to section CARDINAL(CARDINAL)(c ) of ORG CARDINAL .

On DATE the applicant brought an action with ORG . He sought a review of the administrative decisions of DATE and CARDINAL DATE removing him from the post of ORG at ORG . He argued that he had been discriminated against in that he had been removed without reasons being given . The applicant proposed that ORG should stay the proceedings on his action and request ORG to examine the conformity of section DATE ) of ORG DATE with , inter alia , Article CARDINAL ) of the LAW , LAW , and directives of ORG .

On DATE ORG transferred the case to ORG for reasons of jurisdiction .

On DATE ORG stayed the proceedings , as it considered the relevant provision of ORG CARDINAL to run contrary to LAW and LAW . It referred that issue for determination by ORG .

On DATE ORG discontinued the proceedings , because section CARDINAL(CARDINAL)(d ) of ORG CARDINAL had been repealed with effect from DATE . The decision stated that ORG power to review conformity of legal rules with the LAW extended exclusively to those rules which were actually in force . CARDINAL constitutional judges attached a dissenting opinion to that conclusion .

On DATE ORG dismissed the applicant ’s action . It found that the applicant had been removed at the behest of the Minister of the ORG pursuant to section CARDINAL(CARDINAL)(d ) of ORG CARDINAL , as in force at the relevant time . There had been no breach of the applicable law in that context .

The applicant appealed . He noted that ORG itself had expressed the view that the provision under which the applicant had been removed ran contrary to the LAW and international treaties by which GPE was bound . In the absence of a decision of ORG on conformity with LAW of the relevant legal rule , the issue fell to be determined by the ordinary court dealing with the case . To proceed in a different manner would amount to a denial of justice .

On DATE ORG upheld the first - instance judgment . It held that the applicant ’s removal from post had been in accordance with the law . The ordinary courts within the administrative judiciary were not called upon to determine conflicts of law . Their role was restricted to examining whether administrative decisions complied with applicable law .

On DATE the applicant brought an action with ORG in which he challenged the decisions of DATE and CARDINAL DATE terminating his status as civil servant . With reference to the reasons for his action of CARDINAL DATE seeking review of the administrative decisions , the applicant argued that the contested decisions were unlawful and contrary to the LAW and international treaties by which GPE was bound . As in his previous action , the applicant asked for the proceedings to be stayed and for ORG to be petitioned for a review of the constitutionality of the relevant provision of ORG DATE .

On DATE ORG dismissed the action . It noted that , following his removal as ORG at ORG , the applicant had been offered CARDINAL different posts at that Ministry . After he had declined those offers , his status as ORG civil servant had been terminated pursuant to section CARDINAL(CARDINAL)(c ) of ORG CARDINAL . There had been no breach of the applicable law in that context .

On DATE the applicant appealed . He argued that his removal from the position of ORG had been unlawful and that judicial proceedings concerning that issue were pending . The applicant asked for the proceedings to be discontinued pending the final determination of the action concerning the lawfulness of his removal .

On DATE ORG upheld the first - instance judgment . With reference to the reasons for its judgment of CARDINAL DATE it concluded that the applicant ’s status as civil servant had been terminated in accordance with the law .

On DATE the applicant lodged a complaint with ORG . He alleged that ORG CARDINAL judgments of CARDINAL DATE breached his rights under LAW and CARDINAL of the LAW , as well as their constitutional equivalents , and also his right under LAW to protection against arbitrary dismissal and discrimination in employment . In particular , the applicant asserted that the ordinary courts had decided arbitrarily , while disregarding the discriminatory nature of the legal provision pursuant to which he had been removed .

On DATE ORG dismissed the complaint . It noted that the primary issue was conformity of the relevant statutory provision with the LAW and international treaties . However , such decisions lay within the power of ORG in plenary session , and they could not be addressed in the context of individual complaints under LAW . In those circumstances , both ORG and the ordinary courts were bound by the presumption that the relevant statutory provision was in conformity with LAW .

ORG concluded that in the judgments complained of ORG had given relevant reasons for its conclusions which were not arbitrary .

Article CARDINAL § CARDINAL provides , inter alia , that international treaties on human rights ratified and promulgated in accordance with the law take precedence over laws .

Article ORG ) guarantees protection for employees against arbitrary dismissal and discrimination .

Pursuant to LAW ) , ORG decides on conformity of laws with the LAW , constitutional laws , and international treaties approved by ORG which have been duly ratified and promulgated .

Article CARDINAL § CARDINAL entitles ORG to decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE , unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

Article CARDINAL § CARDINAL provides for independence of judges in the exercise of their function . When deciding on cases judges are bound by the LAW , constitutional laws and international treaties referred to , inter alia , in LAW and laws .

Pursuant to LAW , where a court considers that a legally binding legal rule or a part thereof bearing on the matter before it is contrary to LAW , a constitutional law , an international treaty within the meaning of LAW , or a law , it is to stay the proceedings and petition for proceedings to be brought LAW CARDINAL § CARDINAL of the LAW . The legal opinion set out in ORG decision is binding on the court concerned .

Under LAW , the interpretation and application of constitutional laws , laws and other generally binding legal rules must conform to LAW .

Pursuant to Article CARDINAL § CARDINAL(b ) , a court stays proceedings where , before determination of the merits , it concludes that the generally binding legal rule bearing on the case before it is contrary to the LAW , a law , or an international treaty by which GPE is bound . In such an event it petitions ORG for determination of that issue .

At the material time the relevant provisions of ORG ( PERSON o štátnej službe a zmene niektorých zákonov ) provided as follows .

Pursuant to section CARDINAL(CARDINAL ) , the purpose of the LAW is to govern legal relations in the context of the ORG civil service , namely the rights and obligations of the ORG and the civil servant in that context . LAW CARDINAL lists professionalism , political independence and impartiality among the principles on which the ORG civil service is built .

Section CARDINAL(CARDINAL)(a ) lists ministries and other central ORG administration bodies as “ service offices ” ( služobný úrad ) for the purpose of the LAW .

Pursuant to section CARDINAL ) , the head of a service office is the hierarchical superior of all the employees working in that service office . Subsection CARDINAL of section CARDINAL provides for appointment of heads of service offices at ministries at the behest of the minister concerned from among applicants who have been successful in the selection process .

Section CARDINAL(CARDINAL ) provides for dismissal of a head of a service office at a ministry in the following cases :

( a ) failure to meet objectives set ;

( b ) inability , for health reasons , to carry out the required duties for DATE ;

( c ) at his or her own written request ;

( d ) on the Minister ’s written recommendation ; and

( e ) where the service office concerned has ceased to exist .

Sub - section CARDINAL of section CARDINAL provides for a head of a service office who has been removed to be transferred to a different appropriate civil service post unless a different agreement is reached .

Section CARDINAL(CARDINAL)(c ) allows for termination of a person ’s status as a ORG civil servant where a head of a service office who has been removed can not be transferred to an equivalent post because no such equivalent post exists , and where no other agreement has been reached . CARDINAL months’ salary is to be paid to the person concerned in such a case .

With effect from DATE ORG DATE was amended in that , inter alia , subsections CARDINAL to CARDINAL were deleted from section CARDINAL . The reports accompanying the draft amendments indicated that their purpose was to eliminate shortcomings resulting from earlier amendments and to harmonise the removal of heads of service offices who fell under the direct managerial responsibility of politically nominated superiors at ministries and other central authorities of the ORG administration .


Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants , PERSON and Ms GPE , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . They are mother and daughter and are represented before the ORG by PERSON , a lawyer practising in GPE .

ORG were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

The applicants travelled to GPE via GPE , with the first applicant ’s son , born in DATE , and lodged an asylum request there on DATE . The applicants had not lodged an asylum request in GPE , but they had held a visa for entry into the country , which was valid from DATE .

At the request of the NORP authorities GPE accepted jurisdiction with regard to the applicants’ asylum proceedings , pursuant to ORG ( ORG ) No CARDINAL/CARDINAL ( hereinafter “ LAW ” ) .

In the course of the NORP proceedings the first applicant claimed to fear refoulement from GPE to PERSON and lack of access to medical treatment in GPE . Her whole family , with the exception of the youngest boy , was suffering from depression . The second applicant in particular was very ill , uncommunicative , and suffered from headaches . The first applicant claimed that her husband was registered as a suspect with the NORP military services . As a result , he had gone into hiding in the mountains . The first applicant and her family had been repeatedly threatened , to induce them to disclose the whereabouts of her husband ’s hiding place .

On DATE ORG ( Bundesasylamt ) rejected the asylum requests in line with LAW ) in conjunction with LAW of LAW , and ordered the applicants’ transfer to GPE .

On DATE ORG ( Asylgerichtshof ) quashed those decisions and noted that the statements made by ORG regarding the health of the second applicant were insufficient and that the authority had failed to establish that the second applicant was fit to be transferred to GPE ( GPE ) . Furthermore , the authority had failed to evaluate information regarding access to medical treatment in GPE . Finally , since the applicants must be considered vulnerable persons , the authority needed to get assurances from the NORP authorities regarding housing , related support and access to medical treatment .

On DATE the NORP ORG responded to the NORP request for information concerning the reception conditions by stating in general terms that the reception and lodging of asylum seekers in GPE was guaranteed in governmental asylum centres ( ORG or ORG ) . It was further especially referred to the fact that GPE paid particular attention to vulnerable asylum seekers . Therefore , to ensure appropriate medical and welfare support for such vulnerable groups , the NORP authorities were requested to submit detailed information for each individual case .

On DATE ORG again rejected the applicants’ asylum request pursuant to the DATE LAW and LAW , and ordered their expulsion to GPE . Referring to relevant country reports , it found that asylum seekers had access to medical treatment in GPE after initial registration with the welfare unit . Vulnerable persons also had special access to lodgings with the “ ORG per Richiedenti NORP e Rifugiati ” ( Protection System for Asylum Seekers and Refugees , hereinafter “ ORG ” ) . With reference to the medical documents concerning the second applicant ’s health , it found that the fact that the applicants had access to NORP medical services meant that they could count on the necessary support if transferred to GPE . To complement this information , the authority also referred to the fact that at the time of the actual transfer the immigration police ( Fremdenpolizei ) was called upon to decide whether a transfer was possible or not for medical or psychological reasons .

On DATE ORG rendered CARDINAL decision with regard to the CARDINAL applicants and the first applicant ’s younger son , dismissing the applicants’ appeal against those decisions as unfounded . The decision featured the CARDINAL file numbers of all parties concerned and the CARDINAL separate operative parts referred to the different file numbers by reference number .

NORP In substance it found that the applicants had not sufficiently proved that they would not have access to medical treatment in GPE . Furthermore , the applicants had not even lodged an asylum request in GPE , which weakened their criticism of the NORP asylum system . The general information available to the authority would not warrant the opinion that the applicants would be subjected to treatment contrary to LAW if they were returned to GPE . Acknowledging the fact that the second applicant , and also the first applicant , who had less serious symptoms , was suffering from psychological impairments , ORG found that they had to accept the possibility that their health would deteriorate and that their opportunities to receive medical treatment would be reduced if they were transferred , which was in line with the ORG ’s case - law . Furthermore , the NORP authorities would treat the transfer as “ problematic ” and thus provide medical assistance during the removal attempt . Finally , the NORP authorities had also declared that they would inform the NORP authorities of the planned transfer in due time , to enable them to prepare the reception of the applicants in GPE .

On DATE the first applicant applied for legal aid to lodge a complaint with ORG . In the application she referred only to the file number of her proceedings before ORG . Thereupon , on DATE , ORG Verfassungsgerichtshof ) granted legal aid to the first applicant to lodge a complaint against that last decision . By a decision of DATE the first applicant ’s complaint was not granted suspensive effect by ORG . The complaint proceedings are pending .

The transfer of the applicants and the youngest son was originally planned to take place on DATE .

In preparation for the transfer the NORP authorities submitted a quantity of medical information to the NORP authorities on DATE , including a statement from ORG dated DATE ( see paragraph CARDINAL below ) .

On DATE the NORP authorities again requested information regarding the applicants’ medical status . The NORP authorities responded on DATE that there was no new medical information and that all relevant information had already been submitted .

NORP However , on DATE the NORP authorities had to cancel the applicants’ transfer to GPE because the first applicant ’s younger son had disappeared and could not be found by the authorities . Thereupon , the NORP authorities informed the NORP authorities of the expansion of the transfer period to DATE because of the disappearance of the first applicant ’s son .

On DATE the second applicant was admitted to the secure ward of ORG in GPE ( Landesnervenklinik PERSON ) . That admission to the secure ward was approved by the competent court by a decision based on an expert ’s diagnosis of acute post - traumatic stress disorder with serious suicidal tendencies and specific thoughts of putting those tendencies into practice . The second applicant was treated in the secure ward until DATE and remained in the hospital until DATE , in the open ward .

CARDINAL older psychological statements , commissioned by ORG and dated DATE and DATE respectively , diagnosed an adjustment disorder in respect of the second applicant , but no acute suicidal tendencies .

A first psychological statement of ORG of DATE confirmed that the second applicant had been in regular treatment at the hospital since DATE and diagnosed post - traumatic stress disorder with distinct symptoms and a traumatic neurosis . In the course of the treatment , a sleep activating anti - depressive therapy had been initiated . However , since the start of the therapy only a slight improvement in the second applicant ’s condition had been noticed . The statement recommended a stable environment ; cessation of the treatment could lead to aggravation of the symptoms . Furthermore , the second applicant showed suicidal tendencies with some impulses to put them into practice . From a psychiatric point of view it was recommended that the second applicant stay in an environment that she considered safe .

A second statement of ORG of DATE confirmed that pharmacological treatment and psychotherapy had begun ; however , no improvement in the second applicant ’s condition was yet noticeable . The insecure status of the second applicant ’s stay in GPE had led to depression , sleep disorder and continuing weight loss . It further stated that continuing and long - term treatment of the second applicant was essential , and that disruption of the second applicant ’s environment could mean a worsening of the symptoms , including the suicidal tendencies . The applicant was treated with GPE , GPE and PERSON forte and was in regular psychotherapeutic treatment .

In the course of the proceedings before the ORG the applicants provided further medical documentation of CARDINAL DATE from ORG for children and young persons at ORG ; this indicated that the second applicant remained in outpatient treatment after her release from the hospital in DATE , and that she was still suffering from post - traumatic stress disorder , manifesting itself with insomnia and a depressed state of mind including suicidal tendencies and weariness . She was continuing to lose weight . The statement continued that on - going and long - term psychotherapeutic treatment was essential , and that security and a sense of safety were important factors that would provide a prospect of improvement . The next steps recommended were drug therapy , regular medical checks , preferably in a familiar environment , continuing trauma - specific psychotherapy , and educational support .

On DATE the ORG applied the interim measure under Rule CARDINAL and requested ORG to stay the ORG transfer to GPE until further notice .

The first applicant ’s husband and elder son entered GPE illegally and lodged asylum requests on DATE . To secure the union of the family , the NORP authorities agreed on DATE to also accept jurisdiction regarding their asylum proceedings . ORG thereupon rejected the asylum requests ; however , an appeal lodged with ORG against those decisions was awarded suspensive effect on DATE .

The relevant NORP and NORP law , instruments , principles and practice have only recently been exhaustively summarised , in PERSON v. the GPE and GPE ( dec . ) , no . CARDINAL , § § CARDINAL and CARDINAL , DATE . In the following , only information that is particularly relevant to the present case will be repeated .

Under the ORG , the member GPE must determine , on the basis of a hierarchy of objective criteria ( Articles CARDINAL to CARDINAL ) , which member ORG bears responsibility for examining an asylum application lodged on their territory . The aim is to avoid multiple applications and to guarantee that each asylum seeker ’s case is dealt with by a single member ORG .

Where it is established that an asylum seeker has irregularly crossed the border into a member ORG , having come from a third country , the member ORG thus entered is responsible for examining the application for asylum ( Article CARDINAL § CARDINAL ) . This responsibility ceases DATE after the date on which the irregular border crossing took place .

Where the criteria in the regulation indicate that another member ORG is responsible , that ORG is requested to take responsibility for the asylum seeker and examine the application for asylum ( LAW ) .

By way of derogation from the general rule , each member ORG may examine an application for asylum lodged with it by a third - country national , even if such an examination is not its responsibility under the criteria laid down in the Regulation ( Article CARDINAL § CARDINAL ) . This is called the “ sovereignty ” clause . In such cases the ORG concerned becomes the member ORG responsible and assumes the obligations associated with that responsibility .

Section CARDINAL of LAW DATE ( Asylgesetz ) provides that an asylum application shall be rejected as inadmissible if , under treaty provisions or pursuant to LAW , another ORG has jurisdiction to examine the application for asylum . When rendering a decision rejecting an application , the authority shall specify which ORG has jurisdiction in the matter .

According to Section CARDINAL , an appeal lodged with ORG against a decision of ORG rejecting an asylum request has no suspensive effect . A complaint against a removal order connected with such a decision to reject may be awarded suspensive effect by ORG within DATE ( see LAW ) .

Reference is made to the extensive description of the NORP asylum procedure and domestic law in PERSON , cited above , § § CARDINAL - CARDINAL .

NORP In particular , paragraphs CARDINAL explain that

“ CARDINAL . A person wishing to apply for asylum in GPE should do so with the border police or , if already in GPE , with the police ( questura ) immigration department . As soon as an asylum request has been filed , the petitioner is granted access to GPE as well as to the asylum procedure , and is authorised to remain in GPE pending the determination of the asylum request by ORG for ORG .

For petitioners who do not hold a valid entry visa , an identification procedure ( fotosegnalamento ) is carried out by the police – if need be – with the assistance of an interpreter . This procedure comprises the taking of passport photographs and fingerprints . The fingerprints are checked for matches in ORG and the domestic ORG ( Automated Fingerprint Identification System ) database . At DATE procedure , the petitioner is given a notice confirming the first registration ( cedolino ) , on which future appointments are noted , in particular the appointment for the formal registration of the request .

The formal asylum request will be made in writing . On the basis of an interview held with the petitioner in a language which he or she understands , the police will fill out the ‘ Standard form C/CARDINAL for the recognition of refugee status according to LAW ( ORG C/CARDINAL per il riconoscimento dello status di rifugiato ai sensi della PERSON di PERSON ) , which contains questions on the petitioner ’s personal data ( name , surname , date of birth , citizenship , name and surname of parents / spouse / children and their whereabouts ) as well as the details of the journey to GPE and reasons for fleeing the country of origin and for seeking asylum in GPE . The petitioner will be asked to provide a written paper , which will be appended to the form , containing his or her asylum account and written in his or her own language . The police will retain the original form and provide the petitioner with a stamped copy .

The petitioner will then be invited by a notification served in writing by the police for a hearing before the competent ORG for ORG . During this hearing , the petitioner will be assisted by an interpreter . ”

The ‘ Dublin II Regulation National Report’ on GPE of DATE states additionally to the above - mentioned information with regard to access to the asylum procedure for GPE - returners ( pages CARDINAL and CARDINAL of the report ) :

“ At the arrival in the main airports , the applicant finds NGOs / associations which may help him / her to find an accommodation centre and provide him / her with further information on the asylum procedure . At the airport , FAC carry out the fotosegnalamento and verify the person ’s identity in the ORG database . After having undertaken these procedures , the applicant will receive a letter ( called “ verbale di invito ” ) saying that s / he has to go to the PERSON competent to continue the asylum procedure . The asylum seeker may be addressed to the office of the PERSON where s / he was fingerprinted and photographed or to the office where s / he lodged the asylum application or where the documents related to his / her case are kept . The law does not foresee any support for reaching the competent PERSON . In the practice the NGOs working at the border points can provide the train ticket for that destination on the basis of a specific agreement with the competent GPE . However , this support is not always guaranteed and often it happens that the ORG does not have information on the real arrival of the asylum seekers and on whether s / he has found an accommodation there .

Once the person is at the PERSON , s / he may face different outcomes according to whether s / he did not apply or s / he did apply for asylum when s / he was in GPE previously .

If the person had never applied for international protection before , s / he is able to ask for protection DATE and is entitled to the same rights as the other asylum seekers . ... ”

Both the ORG in its “ Recommendations on Important Aspects of Refugee Protection in GPE ” of DATE ( page CARDINAL ) and ORG and the NORP NGO Juss - Buss in their report ‘ Asylum procedure and reception conditions in Italy’ of DATE ( page CARDINAL ) inform on incidents in which asylum seekers have had difficulties lodging a formal asylum application with the PERSON , or only got an appointment with the PERSON DATE after their arrival in GPE . In this period of time however , asylum seekers have no access to lodging or subsistence .

The reception scheme and the reception conditions in GPE are summarised again in PERSON , cited above , § § DATE .

NORP In particular , it is noted in respect of vulnerable asylum seekers that pursuant to Legislative Decree no . PERSON , implementing ORG of DATE on laying down minimum standards for the reception of asylum seekers , asylum seekers in GPE are entitled to reception facilities . According to LAW , reception arrangements are to be made on the basis of the specific needs of asylum seekers and their families , in particular the needs of vulnerable persons , namely unaccompanied minors , disabled persons , pregnant women , single parents with minor children , and persons who have been subjected to torture , rape or other forms of serious psychological , physical or sexual violence . NORP domestic law provides for special guarantees for such vulnerable persons , including a reserved quota of places in the ORG reception scheme ( see ibid . , § DATE ) . The NORP authorities specified in their comments on the report by ORG for Human Rights dated DATE that the system of reception in the ORG centres , which accommodate asylum seekers , envisaged that a range of services must be provided to migrants , including , inter alia , socio - psychological support , with special attention for persons belonging to vulnerable categories and medical assistance appointments with consultants . Those reception conditions were also guaranteed to GPE - returners . This category received a preliminary form of reception upon arrival when the services present in the main airports were activated ; subsequently they were accommodated in government reception centres . When the transferring country reported an asylum seeker as belonging to a vulnerable category , appropriate medical measures were taken in the centres , intended to provide appropriate reception . Special attention was paid to migrants with physical or [ psychological ] trauma and to victims of torture , who were entrusted to the medical stations of the reception centres or at a local level to receive treatment and support of a professional and appropriate nature ( see ibid . , § CARDINAL ) .

As regards medical assistance , the NORP comments established ( ibid . ) that

“ in GPE , foreign citizens , even those not complying with the provisions regulating their presence , are entitled to ordinary and/or urgent treatment through ORG .

In the government centres for migrants the psychic / physical health of guests is recognized as an unalienable right of the individual , which is safeguarded by article CARDINAL of LAW and it has always been put at the forefront when the regulatory and management system of the centres is being prepared .

More specifically , the medical assistance service provided for in the centres for migrants must grant guests the following :

a ) Visit upon entry and medical first aid , carried out in a consulting room set up within the facility with medical staff and nurses , whose shifts must be based on the ratio guests / staff as indicated in the tables of the tender specifications ;

b ) When the need arises , possible transfer of guests to hospitals outside the centres , in compliance with LAW as migrants hosted in ORG centres can benefit from the services of ORG by showing their ORG cards ( Temporarily Present Alien ) , issued by ORG , whereby they can enjoy treatment in the consulting room or in hospitals , when it is urgent or essential in case life is in peril ;

c ) Administering of medicines and medical devices necessary for first aid and for ordinary medical assistance , including for generic conditions of psychological type ;

d ) Recording of a personal medical file , a copy of which must be handed over to the guest . In this connection it is worth mentioning that doctors , when screening the guests upon entry must also evaluate their psychic - social situation as well as the presence of vulnerability factors ( serious psychic - psychological conditions , including previous ones , victims of mistreatment / torture , substance addiction , etc . ) in order to prescribe possible drug treatment or psychological counselling .

It is further specified that as provided for by the above mentioned LAW ( ORG ) , foreign citizens who are on the national territory but do not comply with provisions regulating their presence are anyway entitled to treatment in public health care facilities either in consultation rooms and/or in hospital ( both urgent and continuing treatment ) because of illness or accident and they also benefit from the programmes of preventive medical treatment aimed at safeguarding individual and collective health .

Regardless of the possession of a residence permit , the NORP legislation provides for the social protection and medical assistance to expectant mothers and to mothers , the protection of the psychic - physical health of minors ( as a result of ORG , interventions of prevention , diagnosis and treatment of infectious diseases and the decontamination of the related centres of infection .

Finally , when aliens not complying with provisions regulating their presence visit public medical facilities , they are not reported to ORG .

As far as social services are concerned , the principle enshrined in LAW DATE LAW according to which the status of a refugee is equal to that of a national DATE is embodied in the NORP legislation also as a consequence of article CARDINAL of the above mentioned Legislative Decree No . CARDINAL of CARDINAL DATE , which lays down that individuals benefiting from refugee status and from subsidiary protection have the same status as NORP citizens and thus they have access to all services and benefits , including economic ones , covered by the social and medical assistance system .

Furthermore , the projects funded through resources of the ORG include measures to ease the access to social security , particularly on the part of vulnerable groups . ”

And finally , with regard to the reception of GPE - returners , the “ Dublin II Regulation National Report ” on GPE stated in particular that ( ibid . , § DATE )

“ Within this broader category , another distinction is deemed necessary according to whether the returnee had already enjoyed the reception system while s / he was in GPE .

If returnees ( international protection seekers , beneficiaries of international protection or of a permit of stay for humanitarian reasons ) had not been placed in reception facilities while they were in GPE , they may still enter reception centres . Due to the lack of available places in reception structures and to the fragmentation of the reception system , the length of time necessary to find again availability in the centres is DATE in most of the cases - too long . Since , there is no general practice , it is not possible to make a quantification of the time necessary to access to an accommodation . However , in DATE , temporary reception systems have been established to house persons transferred to GPE on the basis of GPE . However , it concerns a form of temporary reception that lasts until their juridical situation is defined or , in case they belong to vulnerable categories , an alternative facility is found .

Such temporary reception has been set up thanks to targeted projects funded by ORG . For instance , in GPE , there are currently projects providing assistance to CARDINAL persons – within this broader category CARDINAL places are for vulnerable categories .

However , it happens that GPE returnees are not accommodated and find alternative forms of accommodation such as self - organized settlements .... ”


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr PERSON , is an NORP national who was born in DATE . He is currently serving a prison sentence .

and as they appear from the documents on file , may be summarised as follows .

On DATE the ORG convicted the applicant of manslaughter , attempted murder and violent and threatening behaviour . He was sentenced to DATE imprisonment to which an unserved sentence of DATE from an earlier judgment was added .

According to the text of the judgment DATE which was drawn up in LANGUAGE – an interpreter participated in the hearing ; the applicant was assisted by a lawyer . It would appear that the proceedings in ORG were conducted mainly in NORP since the applicant and several other participants in the proceedings were LANGUAGE - speakers .

On DATE the ORG heard the applicant 's appeal . The applicant was assisted by a lawyer ; an interpreter also participated in the hearing . According to the documents submitted by the applicant , ORG informed the participants in the hearing that its judgment would be available on DATE at the court 's office and explained that any notice of appeal against its judgment had to be submitted to the court 's office within DATE of CARDINAL DATE . The participants in the proceedings confirmed that they had understood the appeal procedure .

By a judgment of CARDINAL DATE ORG dismissed the applicant 's appeal . It appears that the operative part of the judgment was available at the court 's office on DATE . A translation into NORP of the operative part of the judgment was served on the applicant , who was in detention in FAC , on CARDINAL DATE .

According to the applicant , he had been informed after the examination of his appeal in ORG that the court had to be notified of any intention to appeal within DATE and that only a lawyer had the right to lodge an appeal in cassation with ORG . His lawyer had not come to the prison to discuss further action despite his promise to do so . On an unspecified date he had called his lawyer , who had told him to inform the court of his intention to appeal and to lodge an appeal in cassation .

On DATE and DATE the applicant handed over to the prison authorities applications addressed to ORG and ORG informing them of his intention to appeal .

On DATE the ORG refused to accept the applicant 's notification of appeal , finding that the time - limit for submission of any such notification had expired on DATE , that is , DATE after the applicant had received the translation into NORP of the operative part of the judgment , whereas the applicant 's letters had been handed over to the prison authorities too late , on DATE and DATE . ORG noted that the applicant had not requested that the court restore the time - limit and had not provided any explanation why he had failed to comply with it .

In the meantime , on DATE , the applicant requested ORG to restore the time - limit for appeal . By a decision of DATE ORG rejected the application . It noted that pursuant to LAW both an appeal in cassation and a request for restoration of the time - limit for appeal had to be drawn up by a lawyer . ORG decision was sent to the applicant on DATE .

On DATE the applicant lodged a procedural appeal with ORG against ORG decision of DATE . On DATE ORG rejected the appeal because it too should have been drawn up by a lawyer . ORG decision was sent to the applicant on CARDINAL DATE .

Article CARDINAL of LAW ( ORG seadustik ) concerns the pronouncement of a first - instance court 's judgment . Pursuant to LAW it also applies , mutatis mutandis , to appellate court judgments . It reads as follows :

“ ( CARDINAL ) A judge or ... the presiding judge shall pronounce a judgment at the time announced pursuant to LAW .

( CARDINAL ) NORP If the accused is not proficient in the language of the criminal proceedings , the judgment shall be interpreted or translated for him or her after its pronouncement .

( CARDINAL ) The judge shall ask whether the person acquitted or convicted understands the judgment and explain its content to him or her if necessary .

( CARDINAL ) A court may decide to pronounce only the operative part of the judgment , in which case it shall explain the main reasons for the judgment orally upon its pronouncement .

( CARDINAL ) After the pronouncement of a judgment or its operative part the judge or presiding judge shall :

CARDINAL ) upon the pronouncement of the operative part of the judgment , give notification of the date on which the judgment will be available in court for examination by the parties to the court proceedings and shall make a corresponding notation in the record of the court hearing ;

CARDINAL ) NORP give notification of the term for appeal against the judgment and explain the procedure for appeal provided for in LAW and the possibility to waive the right of appeal ;

CARDINAL ) NORP explain that the county court must be notified in writing of the intention to exercise the right of appeal within DATE of the pronouncement of the judgment or its operative part .

( CARDINAL ) Waiver of the right of appeal shall be recorded in the record of the court hearing . A lawyer may waive the right of appeal only with the written consent of the defendant .

( CARDINAL ) If all parties to the court proceedings waive the right of appeal or if during the term provided for in paragraph CARDINAL(CARDINAL ) of this Article none of the parties to the court proceedings gives notification of their intention to exercise the right of appeal , only the [ introductory part and operative provisions ] shall be set out in the judgment .

( CARDINAL) If the parties to the court proceedings do not waive the right of appeal , the full judgment shall be prepared within DATE of the date on which the county court is notified of an intention to exercise the right of appeal . ”

Article CARDINAL provides that a court must send a copy of a judgment to a party who was not present at its pronouncement ( § CARDINAL ) . Where the defendant is under arrest , a copy of the judgment must be sent to him or her immediately after its pronouncement or immediately after it is made available at the court 's office ( § CARDINAL ) .

Article CARDINAL § CARDINAL ( CARDINAL ) provides that if a court of appeal dismisses an appeal and upholds the judgment of the first - instance court , it can limit its judgment to the introduction and operative part and make reference to the provisions of procedural law pursuant to which the judgment was made .

Article CARDINAL provides that after the parties ' closing statements a court of appeal must announce the date when its judgment will be available for the parties to the proceedings at the court of appeal 's office ( § CARDINAL ) . If the court of appeal pronounces its judgment or the operative part of the judgment immediately after deliberations , the provisions of Articles CARDINAL and CARDINAL apply ( § CARDINAL ) . Paragraph CARDINAL provides that copies of a judgment of the court of appeal must be served in accordance with LAW .

In LAW the persons entitled to lodge an appeal in cassation with ORG are listed . That list includes ORG , a defence lawyer ( advokaat ) and other parties ' lawyers .

Article CARDINAL lays down the rules concerning the time - limit for an appeal in cassation . It provides that a court of appeal must be notified in writing of any intention to appeal in cassation within DATE after its judgment or the operative part of its judgment has been pronounced or made available through the court 's office ( § CARDINAL ) . An appeal in cassation must be lodged in writing with the court of appeal within DATE of the date when the party to the court proceedings has the opportunity to examine the judgment of the court of appeal ( § CARDINAL ) .


Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nina Vajic

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

By a decision of ORG ( PERSON ) of DATE the applicant was ordered to pay a “ first surcharge ” for the late payment of his income tax ( erster PERSON ) for DATE . ORG held that the applicant had failed to pay the taxes by their due date of DATE .

By letters dated CARDINAL and DATE the applicant appealed against the decisions regarding the surcharges for income tax for DATE and DATE respectively . The surcharges amounted to PERCENT of the outstanding taxes , totalling MONEY ( ORG ) .

By a decision of DATE ORG ( PERSON DATE “ the IFP ” ) dismissed the applicant ’s appeals as ill - founded and upheld the decision of DATE .

The applicant , who was in receipt of legal aid , complained to ORG ( Verwaltungsgerichtshof ) on DATE , arguing that the law applicable at the time the tax surcharges were due , did not provide for “ first surcharges ” , but only for “ surcharges ” .

On DATE the ORG submitted comments on the applicant ’s complaint .

On DATE the applicant submitted comments in reply .

By a decision of DATE ORG rejected the applicant ’s complaint . It held that while the law in force at the time only provided for ( CARDINAL ) surcharge , and “ first ” , “ second ” and “ third ” surcharges were only introduced by a later amendment to the law , the applicant had not suffered any disadvantage , as the substantive content of the law before and after the amendment was the same . The amount of the surcharge itself was the same under the law in force at the time as the amount of a “ first ” surcharge under the law after the amendment . It was only their denotation that had changed . The decision was served on the applicant ’s counsel on DATE .

On DATE the applicant informed the ORG that by a decision of ORG of DATE , the decision obliging him to pay surcharges had been annulled .

Section CARDINAL of LAW ( Bundesabgabenordnung ) deals with the imposition of surcharges for the late payment of taxes . The provision in force at the material time provided that the surcharge was to be fixed at PERCENT of the amount of tax not paid in time .


The applicant , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by Mr Ł. Jura , a lawyer practising in GPE . The respondent Government were represented by Mr J. Wołąsiewicz , of ORG .

On DATE the ORG ( FAC ) convicted the applicant of dealing in stolen goods and sentenced him to a sixteenmonth prison term .

The applicant filed an appeal to ORG ( PERSON ) in which he complained about the severity of the sentence .

On DATE ORG informed the applicant that a legal aid counsel had been appointed for him and that an appeal hearing would take place on DATE .

However , counsel never contacted the applicant . The applicant , who was serving a prison sentence in another case , asked that he be brought before the appellate court but his request was refused .

On DATE , after a hearing at which the prosecutor and the applicant ’s counsel , but not the applicant , were present , ORG dismissed the applicant ’s appeal .

On DATE the applicant asked the ORG to serve him with a copy of the reasoned judgment with the purpose of lodging a cassation appeal with ORG . On DATE the court served him the reasoned judgment .

The applicant failed to lodge a cassation appeal within the time - limit and on DATE the President of ORG of the Poznań ORG declared that the judgment was final .

Under LAW of the Criminal Procedure , which entered into force on DATE , a party to criminal proceedings may lodge a cassation appeal with ORG against a final judgment of an appellate court which has terminated the criminal proceedings .

Article CARDINAL § CARDINAL of the CARDINAL Code provides , in so far as relevant :

“ A cassation appeal may be lodged only on the grounds referred to in LAW [ these include a number of procedural irregularities , such as , for instance , incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of rules governing jurisdiction in criminal matters ; trying a person in absentia where his presence was obligatory etc . ] or on the ground of another flagrant breach of law provided that it could significantly affect the substance of the ruling in question . No cassation appeal may be directed against the severity of the penalty imposed . ”

A cassation appeal must be lodged within DATE from the date of notification of the reasoned judgment of the appellate court ( Article CARDINAL of the DATE Code ) .

Pursuant to Article CARDINAL :

The appellate court shall order an accused , who is detained , to be brought to the appellate hearing , unless it finds that the presence of his lawyer is sufficient . If the court decides not to bring to the hearing an accused who has no defence counsel , it shall appoint for him ex officio a legal aid lawyer .

ORG has examined in numerous judgments cassation appeals based on the allegation that the absence of an accused at the appeal hearing was a flagrant breach of law that could significantly affect the substance of the ruling in question , within the meaning of Article CARDINAL of the Code of Criminal Procedure .

ORG on many occasions found that the refusal to bring the accused to the appeal hearing , although not in violation of LAW in force , constituted a breach of LAW CARDINAL and CARDINAL ( c ) of the Convention read in conjunction with LAW . In such cases , ORG quashed the appeal judgment and remitted the case ( judgment of DATE , III KKN CARDINAL/CARDINAL , judgment of DATE , III KKN CARDINAL/CARDINAL ) .

The resolution of CARDINAL judges of ORG of DATE ( ORG CARDINAL /CARDINAL ) dealt with the ORG ’s request for clarification of issues relating to the presence of the accused at the appeal hearing in the light of LAW and LAW of the Criminal Procedure . ORG , inter alia , stated :

“ ... Finally , it should be underlined , that even if the accused requests to be brought to the appeal hearing , the court may establish that the presence of the lawyer at the appeal hearing would be sufficient . If the accused does not have a counsel , it is necessary to appoint for him a legal aid lawyer whose presence at the hearing would be obligatory . It should however be noted that if an accused deprived of liberty requests to be brought to the appeal hearing , granting such request should be a rule ... Finding that the presence of the lawyer would be sufficient could occur in particular if the appeal hearing concerned only questions of law . ”


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON is a NORP national . He is an economist and resides at ORG in GPE . At the material time , he was employed by ORG ( Sveriges Industriförbund ) .

In DATE the applicant formed together with others a foundation named ORG . According to him its aim was to scrutinise governments of communist regimes in LOC and ORG ( ORG socialdemokratiska arbetareparti - the " SAP " ) .

In DATE a publishing house , GPE förlag ORG , published a book entitled " Till höger om neutraliteten " ( To the right of neutrality ) . It contained a survey of right - wing organisations and individuals , including a CARDINAL-page chapter on the applicant and his involvement in ORG . The author of the book , Mr PERSON , was then employed by the publisher and had previously served as an ideological adviser to the ORG .

PERSON förlag ORG was , from its foundation in DATE until DATE , owned by the ORG directly . As of the latter date , PERCENT of its shares were held by a company owned by the ORG , namely ORG . PERCENT were held by GPE Centralorganisation which , the applicant states , was controlled by the ORG . GPE förlag GPE is known for publishing books and articles portraying social democratic views .

On DATE the applicant brought a private prosecution for aggravated libel ( grovt förtal ) , and in the alternative for libel ( förtal ) , against Mr Hansson in ORG ( tingsrätten ) of GPE , under LAW , section CARDINAL , paragraph CARDINAL , of the CARDINAL Freedom of the Press Act ( tryckfrihetsförordningen , an instrument forming part of LAW ) and LAW , ORG CARDINAL and CARDINAL , of LAW ( brottsbalken ) . In the same proceedings he sued both the author and the publisher for damages , claiming MONEY . He contended that the book contained allegations implying that he belonged to certain nazi and fascist groups , calculated to cast doubt on his honour and to expose him to contempt ; in view of the wide distribution of the book and the applicant ’s central position in GPE , the libel was aggravated .

The impugned passages of the book included allegations which can be summarised as follows :

( a ) in DATE the applicant had chaired the youth section of the World Anti - Communist League ’s Conference in GPE , an organisation whose membership was said to consist largely of neo - nazis and former ORG - members , for example the then chairman of the NORP - oriented ORG ;

( b ) the applicant had , by reason of his right - wing extremism , been expelled in DATE from ORG and ORG ; it was therefore regrettable that he still held important positions within ORG and the NORP Employers’ Federation ;

( c ) he had been reported to the police for embezzlement of ORG funds ; an audit had shown that he had transferred MONEY from the association ’s account to his own account ;

( d ) he had failed to dissociate himself immediately from a co - member of a splinter group of ORG , who had provided grenades to CARDINAL ORG activists and who had urged the latter to place one of the grenades in an office of ORG and advised them on how to enter the office ; the activists had been convicted of having placed the grenades and the applicant ’s associate of having aided and abetted causing bodily harm ;

( e ) ORG had been collaborating with the above - mentioned ORG in GPE and GPE and the applicant had negotiated with the latter about the setting up of a local ORG group ;

( f ) organisations like ORG were infiltrated to the highest echelons by neo - nazi groups , which selected the most militant members of such organisations and incited them to engage in illegal activities .

At a sitting held by ORG on DATE , the defendants , but not the applicant , asked for the case to be considered with a jury . As a result of the GPE request , the question whether a criminal offence had been committed was to be examined , according to the provisions of the Freedom of the Press Act , by a jury , composed on the basis of a list of CARDINAL groups of names ( see paragraphs CARDINAL , DATE and DATE below ) . The list , which had been published by ORG ( Stockholms läns landsting ) , indicated the ORG political affiliations . The first group comprised CARDINAL persons , CARDINAL of whom were members of the ORG , CARDINAL of ORG , CARDINAL of ORG , CARDINAL of ORG and CARDINAL of ORG . The second group included CARDINAL names , of whom CARDINAL were members of the ORG , CARDINAL of ORG and CARDINAL of ORG .

The applicant , referring to paragraph CARDINAL of LAW ( rättegångsbalken ) , filed a complaint with ORG under LAW , section CARDINAL , of DATE , asking it to exclude as being disqualified those jurors who were members of the ORG ( see paragraph CARDINAL below ) . In support of his request , he pointed to the position as regards ownership of GPE förlag GPE ( see paragraph CARDINAL above ) and argued that the publisher was the " mouthpiece " of the social democratic movement . However , ORG rejected his request on DATE , finding that , regardless of whether the publisher could be seen as a " mouthpiece " as described by the applicant , the reasons invoked by him did not constitute grounds for disqualifying the jurors concerned .

In an appeal against this decision to ORG ( PERSON ) , the applicant submitted , in addition to the above arguments , that the contents of the book were of a political nature and that the case had political undertones . ORG dismissed the appeal on DATE , without stating any reasons . It was not open to the applicant to appeal further against this decision ( LAW , section CARDINAL , of the Freedom of LAW ) .

In the meantime , at the above - mentioned sitting on DATE , ORG proceeded with the constitution of the jury in accordance with LAW of the Freedom of LAW . Exercising their right under section CARDINAL , the applicant and the defence each rejected CARDINAL jurors from the first group and CARDINAL from the second group . Those eliminated by the applicant were all ORG members and those by the defendants were members of ORG . Lots were drawn in accordance with the procedure described in paragraph CARDINAL below , and a jury of CARDINAL members was constituted . Of these , CARDINAL were members of the ORG - one of the them was subsequently replaced by another ORG member - , CARDINAL of ORG , one of ORG and CARDINAL of ORG .

As appears from information submitted by the applicant , which was not contested by the Government , the ORG jurors were active members of the ORG , holding or having held various offices in it and on its behalf at local level ( for further details , see paragraph CARDINAL of the Commission ’s report ) .

On DATE , ORG , sitting with CARDINAL judges and a jury of CARDINAL , examined the merits of the case . In its judgment of DATE the court noted that the jury had replied in the negative to the questions put to it concerning the alleged unlawfulness of the impugned passages of the book . Accordingly , ORG dismissed the charges made by the applicant and his claims for damages . In view of the conclusions reached on the merits , it ordered him to pay MONEY in costs .

It was not possible under NORP law for the applicant to appeal against the jury ’s verdict ( see paragraph CARDINAL below ) .

In GPE freedom of expression as regards the printed word is regulated by the DATE Freedom of the Press Act , which has constitutional status . The first such LAW dates back to DATE . The jury system was introduced when a revised version of the LAW entered into force in DATE . The merits of the system underwent a thorough examination in the course of the revision which led to the DATE version of the LAW . However , the predominant view was that the jury system constituted an important safeguard of press freedom in GPE and that it should be maintained . For similar reasons , more recent proposals to abolish the jury system have also been resisted .

LAW of the LAW contains special provisions governing judicial proceedings instituted to establish civil or criminal liability for prohibited statements in print ( section CARDINAL ) . These cases are heard by ORG within whose jurisdiction the county administration has its seat ( LAW , section CARDINAL ) . It sits with CARDINAL judges and , in proceedings brought under the LAW , also with a jury of CARDINAL members to examine whether a criminal offence has been committed or whether civil liability has been incurred , unless the parties on both sides declare their willingness to have the issue determined by the court without a jury ( sections CARDINAL and CARDINAL ) . In any event , matters such as evidence , sentencing , damages and legal costs are dealt with by the judges alone .

In a jury trial ORG is presided over by a judge . If a jury has given a negative answer to the question whether an offence has been committed or whether civil liability has been incurred , the defendant must be acquitted or the case must be dismissed . If the reply is in the affirmative - and this requires a majority of CARDINAL members - the issue is to be examined also by the judges . Should they disagree with the jury , they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury or , in civil proceedings , dismiss the case ( sections CARDINAL and CARDINAL ) .

A judgment by ORG may be appealed against to ORG , whose jurisdiction , like that of ORG , is limited by the terms of the jury ’s verdict ( LAW , LAW ) .

LAW , section CARDINAL , provides that any person entrusted with the task of passing judgment on alleged abuses of the freedom of the press must constantly bear in mind the fundamental character of this freedom in a free society ; he should attach more attention to whether an expression is illegal by reason of its substance rather than its form and also to its purpose rather than to the manner in which it has been represented ; where there is doubt , he should acquit rather than convict .

In each county the county council , alone or in some cases together with the municipal council , elects jurors for a term of DATE ( LAW , section CARDINAL ) . They are divided into CARDINAL groups , CARDINAL of CARDINAL jurors and the other of CARDINAL , the latter being composed of persons who hold or have held positions as lay members of the ordinary or administrative courts ( section CARDINAL ) . The names of jurors are entered on a list in which each of the CARDINAL groups are listed separately ( section CARDINAL ) .

Only NORP citizens residing in GPE are eligible for election as jurors . A further condition is that they be known to be independent and fair - minded and to have sound judgment . Different social groups and currents of opinion as well as geographical areas should be represented among the jurors ( section CARDINAL ) . In practice , jurors are normally elected from among people who have been politically active .

In proceedings involving a jury , ORG presents the above - mentioned list of jurors to the parties and queries whether there exist grounds for the disqualification of any of the jurors ( LAW , section CARDINAL ; see also paragraph CARDINAL below ) . Thereafter , each party is given the opportunity to exclude CARDINAL jurors in the first group and CARDINAL from the second . Subsequently , ORG , by drawing lots , selects the substitute members until there remain CARDINAL jurors in the first group and CARDINAL jurors in the second group ; these CARDINAL jurors become full members of the jury ( LAW , section CARDINAL ) .

LAW , LAW , of ORG ( regeringsformen ) , which forms part of LAW , provides that neither a public authority nor ORG may determine how a court should adjudicate or apply the law in a particular case . Moreover , all public power must be exercised subject to the law ; courts and public authorities shall , in the performance of their functions , ensure the equality of all persons before the law and remain objective and impartial ( LAW , sections CARDINAL and CARDINAL ) . These fundamental principles apply also to a jury sitting in a trial under LAW .

The statutory rules on disqualification of judges extend to jurors ( LAW , section CARDINAL , of the Freedom of LAW ) . LAW , LAW , of LAW enumerates a series of specific grounds on which a judge may be disqualified : for instance , where he is a party in the case or otherwise has an interest in its subject - matter or can expect special advantage or damage from its outcome ; or where he is related through family or marriage to someone in such a position ; or has been involved in the case as judge , or as lawyer or adviser to CARDINAL of the parties or as witness or expert . Pursuant to the last provision of this LAW , paragraph CARDINAL , which was the one relied on by the applicant in the domestic proceedings , a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case .

According to section CARDINAL of the DATE Act containing certain provisions on Proceedings relating to LAW med vissa bestämmelser om rättegången i tryckfrihetsmål ) jurors must take the following oath before participating in a trial :

" I , ORG , solemnly swear and declare on my faith and honour that , as a member of this jury , I shall to the best of my ability answer the questions put by the court and maintain total secrecy in respect of what has been uttered during the jury ’s deliberations and how the jurors have voted . This I will and shall faithfully observe as an honest and upright judge . "

Clause CARDINAL of the ORG ’s articles of association provides that a member may be excluded if he is disloyal to the ORG , disseminates propaganda which is evidently in conflict with its general object and purpose or is otherwise detrimental to its interests . ORG candidates for public office are required to contribute through their office to the implementation of the ORG ’s programme . Other political parties have similar rules .

On the other hand , none of the various party rules produced to the Convention institutions contain specific provisions imposing obligations as to the manner in which a member ought to carry out his tasks as a juror . It appears from the legislation summarised in paragraphs CARDINAL above and the preparatory works to the DATE Freedom of the Press Act that he is expected to perform this role with the same independence and impartiality as a judge ( see ORG offentliga utredningar - " ORG " CARDINAL , p. CARDINAL ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and resides in the town of GPE , GPE , GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON and Mr PERSON .

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

In DATE the applicant instituted proceedings in ORG against PERSON , a private person , seeking recovery of a debt .

On DATE the court restricted Mr S. ’s right to dispose of his property in order to secure the applicant ’s claim . However , on CARDINAL DATE some of PERSON property ( part of an apartment ) was sold to PERSON

On DATE the court found for the applicant and awarded him CARDINAL NORP hryvnas ( ORG ) against PERSON On DATE ORG upheld this judgment and it became final .

The judgment of DATE was not enforced allegedly due to PERSON lack of funds .

In DATE the applicant instituted proceedings in the same court against Mr S. , PERSON and ORG No . CARDINAL , seeking to invalidate the apartment sales agreement . On DATE the court found that the agreement was valid . In particular , the court found that the injunction on the sale of the disputed apartment had only been forwarded to the notary on DATE and therefore , at the material time , the notary had acted in good faith . On DATE ORG upheld this judgment .

By letters of CARDINAL May and DATE , ORG informed the applicant that , because of the court ’s negligence , the decision of CARDINAL DATE had only been received by ORG and the notary on DATE .

In DATE the applicant instituted proceedings in ORG against ORG for an allegedly improper enforcement of the judgment of DATE . On DATE the court rejected the applicant ’s complaint for having been submitted out of time . On DATE the ORG quashed this decision and remitted the case for a fresh consideration .

On DATE the court returned the applicant ’s complaint without consideration because it did not comply with the procedural requirements prescribed by law . The applicant neither appealed against this decision , nor lodged his complaint anew .

On DATE the applicant revoked the writ of enforcement and the enforcement proceedings were closed . The applicant states that there was no sense in continuing the enforcement proceedings because ORG was inactive and PERSON had no assets to seize .

At the material time LAW provided that a decision to secure a claim should be enforced immediately in accordance with the procedure for the enforcement of judgments .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

The applicant had worked , under a contract of indefinite duration , as a laboratory assistant in a tuberculosis hospital since DATE . By an order of DATE , the hospital administration ( “ the respondent ” ) dismissed her .

The applicant sued for unlawful dismissal and , in a judgment of CARDINAL DATE , the ORG in GPE found in her favour .

Enforcing the terms of the above judgment , the respondent issued , on DATE , an order reinstating the applicant to her previous position .

On DATE the respondent offered , and the applicant accepted , an employment contract for DATE .

On DATE the respondent notified the applicant that her contract would expire on DATE and that no extension was possible .

On DATE the applicant filed another action , requesting , inter alia , that the respondent be ordered to re - employ her . She claimed that she had signed the DATE contract by mistake .

On DATE the ORG , overturning a lower instance decision , found for the applicant , ordering the respondent to offer her a contract of indefinite duration , as the situation had stood prior to her unlawful dismissal of DATE . The appellate judgment noted , in its operative part , that a cassation appeal lay within DATE following delivery of its motivated copy to the parties .

On DATE the respondent lodged a cassation appeal .

On DATE ORG allowed the respondent ’s cassation appeal , by quashing the appellate judgment of DATE and dismissing the applicant ’s employment action of DATE . The cassation court established that the ORG binding decision of CARDINAL DATE had been properly enforced , in so far as the respondent had duly issued , on DATE , an order reinstating the applicant to her permanent position . It was only subsequent to that reinstatement that the respondent had offered her an employment contract for DATE , which she had accepted herself . ORG noted in that regard that LAW did not preclude employers and employees from replacing a permanent labour relation with that of a definite duration . Nor did the labour legislation impose upon employers an obligation to extend contracts of limited duration against their will .

Throughout the second set of proceedings , a labour union of which the applicant was a member submitted to the domestic courts legal arguments on her behalf .

Pursuant to LAW ( “ the ORG ” ) , if a cassation appeal had not been lodged within the statutory period , the appellate judgment became binding .

Subsequent to LAW ORG , the period for lodging a cassation appeal , which could not be either restored or extended , was DATE . That period started to run from the moment of delivery of the appellate judgment to a party in question . Delivery was made either by handing a copy of the appellate judgment or its communication by registered post to a party .

Article CARDINAL § CARDINAL of the ORG further stated that , if the appellate court had orally pronounced the reasoned text of its judgment in the presence of a party concerned , the period for lodging a cassation appeal started to run upon pronouncement .


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON and PERSON , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by Mr P. GPE , the former Representative of GPE at ORG , and then by PERSON , their Representative at ORG . The facts of the case , as submitted by the parties , may be summarised as follows .

At the relevant time the applicant was working as a police investigator . He was in charge of a criminal case against ORG , a student suspected of illegal possession of drugs . The case against ORG was opened on DATE .

According to the official account of events , in DATE the applicant repeatedly contacted ORG ’s parents offering to close the case against their son in exchange for payment of a certain sum of money . The applicant ’s father , PERSON , tentatively agreed . However , some time later PERSON , having discussed the matter with his wife , decided to report the applicant and secretly recorded their conversations on several audiotapes . On DATE ORG informed ORG ( hereinafter the “ ISS ” ) of the offer he had received from the applicant . He gave them the audiotapes at DATE . It is unclear when those recordings were made and what they contained .

The applicant claimed that he had been incited by ORG to take the money . He also maintained that ORG had been acting on ORG orders , and that the ORG had instructed ORG to make him accept the deal and to secretly record their conversations .

The ORG ’s first official record of ORG ’s statement reporting the applicant was dated DATE . To the extent that ORG ’s statement is legible ( the record of his questioning is hand - written ) , it can be summarised as follows . According to ORG , in DATE the applicant solicited a bribe from ORG mother . In DATE the applicant made a similar approach to PERSON The applicant allegedly asked for MONEY ( US$ ) , which were supposed to go to a supervising prosecutor . PERSON claimed that he had taped some of his conversations with the applicant on his own initiative .

On DATE , the ORG conducted a covert operation targeting the applicant . They equipped FAC with a radio - transmitting device connected to a tape - recorder and instructed him to record his conversation with the applicant . They also gave ORG money to be handed over to the applicant , and recorded the serial numbers of the banknotes in a document , signed by CARDINAL attesting witnesses – soldiers from a nearby military base .

Again on DATE PERSON called the applicant , who told PERSON that they should meet at the regional ORG . They met there at TIME and discussed the deal . Their conversation was recorded by the ORG through the radio transmitter . In the course of the conversation , the applicant reproached PERSON for having brought MONEY , namely CARDINAL the amount agreed earlier . PERSON replied that he would bring DATE . The applicant also asked PERSON whether he had told anybody about their deal . PERSON replied in the negative . The applicant then asked PERSON to leave the money on a table , in a plastic bag . When PERSON had done so , the applicant gave him an official note signed by the applicant and confirming that the case against ORG had been closed .

As soon as the applicant left the building , ORG contacted the ORG officers , who were waiting nearby and informed them that the money had been handed over . The ORG officers immediately apprehended the applicant , but found that he was not in possession of the money . They then searched the LOC where FAC had met the applicant and found the money in a plastic bag , hidden in the corridor . The serial numbers on the banknotes found there corresponded to those on the banknotes received by MONEY from the ORG . The ORG officers drew up a report of the search of the place of the incident , which was attested by the same CARDINAL witnesses . The applicant was questioned and arrested . The case was then transferred to the regional ORG , and on DATE the applicant was formally charged with taking a bribe . Material obtained by the ORG during the covert operation was declassified and attached to the criminal case file . On DATE the prosecution sent the case with a bill of indictment to ORG .

In the course of the trial the applicant pleaded not guilty and alleged that it was PERSON who had offered him money . The applicant did not deny that he had agreed to take the money but claimed that his real intention had been to report PERSON as a briber . He had arranged for the meeting to take place at ORG in order to report him to his friends who worked there . The applicant also claimed that the tape recorded on DATE and the search report should not have been admitted in evidence .

NORP The prosecution insisted that the applicant had extorted money from FAC In support , they produced the report of “ the search of the place of the incident ” ( namely the corridor where the money had been discovered in a plastic bag ) . They also produced the report of an expert examination of the fingerprints on the plastic bag , according to which the fingerprints belonged to the applicant . A record of the conversation of DATE between the applicant and PERSON was also presented to the court . Finally , the prosecution submitted the official note signed by the applicant certifying that the case against ORG was closed ..

NORP The court heard several witnesses . PERSON testified that the applicant had offered to discontinue the proceedings against his son in exchange for a sum of money . His testimony was corroborated by ORG , who testified that in DATE his father had told him about the offer made by the applicant . Another witness , PERSON ’s wife , stated that she had known about the deal and had persuaded her husband to inform the ORG about it . The court also examined the ORG officers involved in the operation . They confirmed that ORG had informed them about the offer made by the applicant . The applicant ’s immediate superiors and colleagues were also examined . They claimed that the applicant had never told them that PERSON had offered him money to close the criminal case against ORG

The court also examined the record of the applicant ’s first questioning and noted that the applicant had not referred to “ incitement ” when questioned . The court also heard the CARDINAL attesting witnesses who had been present on DATE during the preparation of the covert operation and during the search of the premises of the regional ORG . They confirmed the accuracy of the reports drawn up by the ORG .

Finally , the court listened to the tape recording made secretly during the meeting between PERSON and the applicant on DATE , examined the transcript of the tape and studied the official note concerning the closure of the criminal case against ORG

On DATE ORG found the applicant guilty of taking a bribe and sentenced him to CARDINAL years’ imprisonment .

The applicant appealed . He maintained that ORG officers had framed him . He submitted that the ORG should have first obtained ORG ’s written statement , then opened an inquiry or instituted criminal proceedings , but that none of that had been done . The applicant also contested the admissibility and authencity of the tape recording of his conversation with V.K .. He also contested the admissibility of the search report . He submitted that those pieces of evidence had been obtained in breach of the law . Furthermore , the applicant challenged the veracity and consistency of statements of the witnesses who had testified against him .

On DATE ORG of GPE upheld the decision of ORG and confirmed the findings of the first - instance court as to the facts of the case . It also noted that the operation that had led to the applicant ’s arrest had been carried out in conformity with the applicable legislation . The material obtained by the ORG had been duly incorporated in the body of evidence . Furthermore , in accordance with criminal procedure rules , the ORG had the right to search LOC without waiting for an investigator from ORG .

For relevant provisions of ORG of DATE , as in force at the material time , see PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE .