No violation of Art. 10;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

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicant is a NORP citizen who was born in DATE and lives in GPE .

At the material time , the applicant was the major shareholder in ORG ve PERSON , a NORP limited liability company which owns a DATE review entitled Haberde Yorumda Gerçek ( “ ORG and Comments ” ) , published in GPE .

NORP In issue no . CARDINAL dated DATE , CARDINAL ORG letters , entitled “ LOC ” ( “ Weapons can not win against freedom ” ) and “ PERSON ” ( “ It is our fault ” ) , were published .

The letters read as follows ( translation ) :

( a ) “ Weapons can not win against freedom

In the face of the escalating war of national liberation in GPE , the fascist NORP army continues to carry out bombings . The ‘ Şırnak massacre’ which GPE journalists revealed at the cost of great self - sacrifice has been another concrete example DATE .

The brutalities in GPE are in fact the worst that have been experienced there in DATE . The massacre carried out in Halepçe in southern GPE by the reactionary PERSON administration is now taking place in northern GPE . Şırnak is concrete proof of it . By causing provocation in GPE , GPE was heading for a massacre . Many people were killed . In a DATE attack with tanks , shells and bombs , PERSON was razed to the ground .

And the bourgeois press , en masse , wrote about the slaughter . And as the bourgeois press has said , there are indeed scores of ‘ unanswered’ questions to be asked . As to PERSON , the attack on PERSON is the most effective form of the campaign that is being waged throughout GPE to eradicate the NORP . Fascism will follow it up with many more GPE .

But the struggle of our people for national freedom in GPE has reached a point where it can no longer be thwarted by bloodshed , tanks and shells . Every attack launched by GPE to wipe out the NORP intensifies the struggle for freedom . The bourgeoisie and its toadying press , which draw attention DATE to the brutalities in GPE , fail to see the brutalities committed in GPE . Of course , one can hardly expect reactionary fascists who call for a halt in the brutalities in GPE to call for a halt in the brutalities in GPE .

The NORP people , who are being torn from their homes and their fatherland , have nothing to lose . But they have much to gain . ”

( b ) “ It is our fault

The ORG [ ] murder gang is continuing its murders ... on the grounds of ‘ protecting GPE . But as people wake up to what is happening and become more aware , as they gradually learn to stand up for their rights and the idea that ‘ if they wo n’t give , then we ’ll take by CARDINAL gradually germinates in people ’s minds and grows stronger DATE by DATE as long as this continues , the murders will obviously also continue ... Beginning of course with those who planted the seed in people ’s minds DATE according to the generals , imperialism ’s hired killers , and according to the double - chinned , pot - bellied , stiff - necked LOC NORP and GPE ... Hence the events of DATE , hence the events of QUANTITY September ... Hence the gallows , hence the prisons , hence the people sentenced to DATE . Hence the people murdered in the torture rooms ‘ in order to protect GPE . Hence PERSON exterminated in FAC ... Hence the ORG recently officially assassinated ... The ORG murder gang is continuing DATE and will continue DATE to commit its murders . Because the awakening of the people is like a flood of enthusiasm ... Hence Zonguldak , hence the municipal workers , hence the public service employees ... Hence GPE . Can the ‘ murder gangs’ stop that flood ? There may be some who see the title of this letter and wonder what on earth it has to do with the text .

The ‘ hired ORG of imperialism , i.e. the authors of the CARDINAL DATE coup ORG , and their successors of DATE and DATE , those who are still looking for ‘ democracy’ , who in the past participated in CARDINAL way or another in the struggle for democracy and freedom , who now covertly or openly criticise their past actions , who confuse the masses and present the parliamentary system and the rule of law as the means of salvation , give the green light to the killings of the ORG murder gang .

I am addressing the ‘ faithful PERSON of imperialism and its hardened spokesman ( men ) , the one(s ) who said some time ago ‘ You wo n’t get me to say that the nationalists commit crimes’ [ ] , who ORG ) DATE ‘ Those are not what we call PERSON , who ORG ) ‘ Who ’s against demonstrations ? Who ’s against claiming one ’s rights ? Of course they can hold a march ... They ’re my workers , my peasants , my public employees’ , but then has ( have ) the public employees who march to GPE beaten up in the very heart of the city and ORG ) afterwards ‘ The police did the right thing’ , and who postpone(s ) strikes for DATE on end . I am addressing the blabbers , the deserters and the charlatans who are stirring up the reactionary consciousness of the masses , who try to judge these people by their attitude towards GPE and try to work out how ‘ democratic’ they are . The guilt of the murder gang is proven . It is through flesh - and - blood experience that people are beginning to see it and realise it . But what about the guilt of the charlatans , the ones who are thwarting the struggle for democracy and freedom ... Yes , what about their guilt ... They have their share in the killings by the murder gang ... DATE their ‘ union’ be a happy CARDINAL ! ”

NORP In an indictment dated DATE , the public prosecutor at ORG ( GPE PERSON ) charged the applicant in his capacity as the owner of the review , as well as the review ’s editor , with disseminating propaganda against the indivisibility of the ORG and provoking enmity and hatred among the people . The charges were brought under LAW and section CARDINAL of LAW DATE ( “ the DATE LAW see paragraphs DATE and CARDINAL below ) .

In the proceedings before ORG , the applicant denied the charges . He asserted that the expression of an opinion could not constitute an offence . He further stated that the letters in issue had been written by the readers of the review and for that reason could not engage his responsibility .

In a judgment dated DATE , the court found the applicant guilty of an offence under the first paragraph of section CARDINAL of the CARDINAL Act . It found no grounds for convicting him under LAW . The court initially sentenced the applicant to a fine of MONEY ( TRL ) . However , having regard to the applicant ’s good conduct during the trial , it reduced the fine to GPE CARDINAL . The editor of the review was for his part sentenced to CARDINAL months’ imprisonment and to a fine of GPE CARDINAL,CARDINAL,CARDINAL .

In its judgment , the court held that the incriminated letters contravened section CARDINAL of the CARDINAL Act . The court concluded that the letters referred to CARDINAL districts in the south - east of GPE as an independent ORG , “ GPE ” , described the ORG ( Workers’ party of GPE ) as a national liberation movement involved in a “ national independence war ” against ORG and amounted to propaganda aimed at the destruction of the territorial integrity of ORG . In addition the court found that the letters contained discriminatory statements on grounds of race .

The applicant appealed against his conviction to ORG , contending that his trial and conviction contravened Articles CARDINAL and CARDINAL of the Convention . He asserted that section CARDINAL of the DATE Act was contrary to the LAW and denied that the letters in question disseminated separatist propaganda . He also maintained that he had not been able to be present at the hearing at which the decision on his conviction had been given . He pleaded that the decision given in his absence and without his final statement having been taken was contrary to law .

On DATE ORG ruled that the amount of the fine imposed by ORG was excessive and set aside the applicant ’s conviction and sentence on that account . The court remitted the case to ORG .

In its judgment of DATE , ORG sentenced the applicant to a fine of GPE CARDINAL but subsequently reduced the fine to GPE CARDINAL,CARDINAL,CARDINAL . As to the grounds for conviction , the court , inter alia , reiterated the reasoning used in its judgment of DATE .

The applicant appealed . He relied on the defence grounds which he had invoked at his first trial . He also maintained that ORG had convicted him without having duly heard his defence .

On DATE ORG dismissed his appeal , upholding ORG reasoning and its assessment of the evidence .

Following the amendments made by PERSON no . CARDINAL of DATE to the DATE LAW see paragraph CARDINAL below ) , ORG ex officio re - examined the applicant ’s case . On DATE the court confirmed the sentence which it had initially imposed on him .

The relevant provisions of LAW read as follows :

“ Where the legislative provisions in force at the time when a crime is committed are different from those of a later law , the provisions most favourable to the offender shall be applied . ”

“ The term ‘ heavy fine’ shall mean payment to the ORG of from CARDINAL to MONEY , as the judge shall decide ... ”

“ In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence … ”

“ Harmful propaganda

A person who by any means whatsoever spreads propaganda with a view to establishing the domination of CARDINAL social class over the others , annihilating a social class , overturning the fundamental social or economic order established in GPE or the political or legal order of the ORG shall , on conviction , be liable to a term of imprisonment of from DATE .

A person who by any means whatsoever spreads propaganda in favour of the ORG ’s being governed by a single person or social group to the detriment of the underlying principles of the LOC and democracy shall , on conviction , be liable to a term of imprisonment of from DATE .

A person who , prompted by racial considerations , by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public - law rights guaranteed by the LAW or undermining or destroying patriotic sentiment shall , on conviction , be liable to a term of imprisonment of from DATE .

“ Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication , of whatever type – whether by tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled … ”

“ Non - public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months’ and CARDINAL years’ imprisonment and a heavy fine of from CARDINAL MONEY .

A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL years’ imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

The relevant provisions of LAW DATE read as follows :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

“ Where distribution of the printed matter whose distribution constitutes the offence is prevented … by a court injunction or , in an emergency , by order of ORG … the penalty imposed shall be reduced to CARDINAL of that laid down by law for the offence concerned . ”

NORP The relevant provisions of LAW DATE read as follows :

“ It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person ’s ... identity is divulged provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target .

It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to print or publish declarations or leaflets emanating from terrorist organisations .

Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the sales of the previous issue if the periodical appears DATE or less frequently , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ ] . However , the fine may not be MONEY . The editor of the periodical shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY .

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[CARDINAL ] . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY …

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . ”

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve .

However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL [ ] . ”

“ Persons convicted of the offences contemplated in the present PERSON who ... have been punished with a custodial sentence shall be granted automatic parole when they have served DATE of their sentence , provided they have been of good conduct .

The first and second paragraphs of LAW [ ] … of LAW ( Law no . CARDINAL ) shall not apply to the convicted persons mentioned above . ”

The following amendments were made to LAW DATE following the enactment of PERSON no . CARDINAL of DATE :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL [ ] and CARDINAL [ ] of PERSON no . CARDINAL of DATE . ”

The following provisions are relevant to sentences in respect of offences under LAW :

“ The execution of sentences passed on those who were convicted under LAW ( Law no . CARDINAL ) or other laws as editors for offences committed before DATE shall be deferred .

The provision in the first paragraph shall also apply to editors who are already serving their sentences .

The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought , or where a preliminary investigation has been commenced but criminal proceedings have not been instituted , or where the final judicial investigation has been commenced but judgment has not yet been delivered , or where the judgment has still not become final . ”

“ If an editor who has benefited under the provisions of the first paragraph of section CARDINAL is convicted as an editor for committing an intentional offence within DATE of the date of deferment , he must serve the entirety of the suspended sentence .

Where there has been a deferment , criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within DATE of the date of deferment .

Any conviction as an editor for an offence committed before DATE shall be deemed a nullity if the aforesaid period of DATE without any further conviction for an intentional offence . Similarly , if no criminal proceedings have been instituted , it shall no longer be possible to bring any , and , if any have been instituted , they shall be discontinued . ”

The Execution of Sentences Act DATE provides , inter alia :

“ The term ‘ fine’ shall mean payment to the ORG of a sum fixed within the statutory limits .

If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor .

The sentence of imprisonment thus substituted for the fine may not exceed DATE … ”

“ … persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... ”

The Code of Criminal Procedure contains the following provisions :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness [ ] . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where one of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .

Furthermore , the ORG submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : CARDINAL/CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL ; CARDINAL ; CARDINAL ; DATE ; CARDINAL ; CARDINAL ; CARDINAL/CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL–CARDINAL ; CARDINAL .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of “ propaganda ” , CARDINAL of the constituent elements of the offence , or on account of the objective nature of the words used .

The constitutional provisions governing judicial organisation of ORG are worded as follows :

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . ”

“ Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW … ”

“ ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .

The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .

Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .

Appeals against decisions of ORG shall lie to ORG .

“ Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... ”

Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG , provide as follows :

“ In the capitals of the provinces of … ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security . ”

“ The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . ”

“ The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian … judges , the other members , whether regular or substitute , military judges of the first rank … ”

“ The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .

Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG … may not be appointed to another post or place , without their consent , within DATE …

If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation . ”

“ ORG shall have jurisdiction to try persons charged with

( a ) the offences contemplated in LAW ,

( d ) NORP offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,

( e ) NORP offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State – meaning both the national territory and its people DATE or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

“ ORG shall hear appeals against the judgments of ORG . ”

“ The rules governing the rights and obligations of … military judges appointed to ORG and their supervision … , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession …

The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors … and the files on any investigations conducted in respect of them … shall be transmitted to ORG . ”

“ A ORG may be transformed into LAW , under the conditions set forth below , where a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG … ”

The relevant provisions of ORG are worded as follows :

“ The aptitude of military judges … appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG ( Law no . CARDINAL ) .

( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members … shall be the Minister of State in ORG , followed by PERSON .

“ Members … of ORG belonging to ORG … shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG … ”

“ Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces …

The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors … ”

“ The rules governing the salary scales , salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers . ”

“ The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :

A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .

B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .

The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file … ”

“ When military judges … sit in court they shall wear the special dress of their civilian counterparts … ”

Article CARDINAL of LAW of CARDINAL DATE provides :

“ It shall be an offence , punishable by DATE imprisonment , to abuse one ’s authority as a civil servant in order to influence the military courts . ”

Under LAW of LAW ORG of ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in DATE in GPE .

On DATE the applicant was taken into police custody on suspicion of being a member of an illegal organisation .

On DATE he was brought before the public prosecutor and investigating judge at ORG , who ordered his pre - trial detention .

On CARDINAL DATE the public prosecutor at ORG filed a bill of indictment against the applicant , charging him with membership of an illegal organisation .

On DATE due to the factual and legal connection between the cases , the court decided to joint the applicant ’s case to other proceedings , involving CARDINAL accused ( no . CARDINAL/CARDINAL ) .

On DATE the applicant was released pending trial .

On DATE a change took place in the judges sitting as a bench at ORG and therefore , the next hearing was scheduled on DATE .

On DATE the hearing was postponed to DATE due the change in the assignment of judges at the trial court .

On DATE the applicant was summoned to appear before the court in order to make his supplementary submissions for his defence , in view of a possible alteration of the offence he was charged with .

On DATE the court observed that the registered writ having sent to the applicant , returned to the case file without a delivery .

On DATE the public prosecutor at ORG filed an additional bill of indictment , charging the applicant with using explosives .

From the date of DATE to CARDINAL DATE , despite the authorities’ efforts to have summoned the applicant , his whereabouts could not be established . During that period , the court ordered ORG to make an enquiry to the applicant ’s family about his nonappearance . Subsequently , the court was informed that the applicant had gone abroad to study .

The trial court invited the prosecutor ’s office to transmit the arrest warrant against the applicant to the customs with a view to securing his appearance before the court once he entered the country .

Following a constitutional amendment , ORG were abolished and the applicant ’s case was transferred to ORG .

On DATE , in his defence submissions to the court , the applicant ’s lawyer claimed that the applicant had already been tried by another chamber of ORG on the basis of the same facts and requested that the matter be examined further .

On DATE ORG ordered the case file of the proceedings in question to verify the reason for the applicant ’s previous conviction .

On DATE the court ruled that the criminal proceedings be discontinued on the ground that the prosecution was time - barred . On DATE , the applicant ’s lawyer lodged an appeal against the judgment .

According to the submissions in the case file , the proceedings are currently pending before ORG .


Violation of Art. 6-1;No separate issue under Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

DATE the applicant used to live in a rented apartment located in the area of GPE , in the province of GPE . He was housing a NORP national whom the authorities maintain is the applicant 's cousin , whereas the applicant alleges he is only a friend .

On DATE a criminal complaint was filed against the applicant and against the person who was sharing the apartment with him for membership of a drug - trafficking ring .

On an unspecified date a search warrant was issued against the applicant 's friend / cousin . On CARDINAL DATE the applicant 's apartment was searched . The police found a certain amount of drugs , partly in the house and partly in a nearby barn . On DATE the applicant was arrested and charged with illegal possession of drugs .

During his police interrogation the applicant chose the family home of a couple of close friends , PERSON and PERSON , as the address for service of communications relating to the case , as provided for by LAW NORP Code of Criminal Procedure . The applicant was subsequently committed for trial before ORG on the charge of illegal possession of drugs .

On DATE ORG acquitted the applicant on the ground of lack of evidence ( insufficienza di prove ) . The court however found the applicant 's friend / cousin guilty of possessing drugs and sentenced him to DATE imprisonment .

Following his acquittal the applicant again elected PERSON and PERSON family home as his address for service . However , shortly after his acquittal the applicant moved to GPE where he obtained employment . The applicant did not inform the NORP authorities of this change of address as required by NORP law .

On an unspecified date ORG attached to ORG appealed against the judgment acquitting the applicant . On DATE the President of ORG issued a summons for the applicant to attend the appeal hearing set for DATE . On CARDINAL DATE the bailiff ( ufficiale giudiziario ) completed a form stating that he could not serve the summons on account of the fact that the applicant was no longer living there and that it appeared that he had left the country ( “ non potuto notificare perchè il notificando non è piu ' domiciliato presso la famiglia in questione ma pare sia ritornato CARDINAL ” ) . On CARDINAL DATE the bailiff completed a report stating that he had served the summons on the applicant by depositing it at the registry of ORG .

On DATE the registry of ORG issued a notice to PERSON , the applicant 's officially - appointed lawyer ( avvocato d'ufficio ) , which stated that , as it had not been possible to serve the summons on the applicant , it had been filed with the court registry . On DATE the bailiff served this notice on Mr D.

On DATE ORG reversed the first - instance judgment concerning the applicant and sentenced him to DATE imprisonment for illegal possession of drugs . The applicant , who had had no notice of the appeal proceedings , was not present at the hearing .

On DATE the bailiff wrote a report stating that the attempt to serve notice of the judgment on the applicant at the old address had failed , the applicant no longer being domiciled there , as declared by PERSON On DATE the bailiff completed a report ( relata di notifica ) stating that he had served notice of the judgment on the applicant by filing it with the registry of ORG . The applicant did not receive any notice of the appeal judgment or of the prison sentence passed on him .

On DATE the applicant was arrested when entering GPE on his return from a holiday . He was immediately imprisoned in compliance with ORG judgment of DATE .

On DATE the applicant made an application to ORG seeking leave to make a “ late appeal ” ( restituzione nel termine ) .

By a decision ( ordinanza ) of DATE , which was deposited in the court 's registry on DATE , ORG rejected the applicant 's request . It noted that the applicant had had knowledge of his conviction in absentia upon his arrest on DATE , whereas he had lodged the request for the late appeal on DATE , thus failing to comply with the DATE time - limit set out in LAW .

NORP In a letter dated DATE Mr and PERSON stated that they had never been served with notification that an appeal had been lodged in respect of the applicant . On or DATE the applicant was released from prison and was expelled to GPE .

Section CARDINAL paragraphs CARDINAL and CARDINAL of LAW provides as follows :

“ When a judgment is delivered in absentia , an accused who proves that he had no knowledge of the judgment can apply for an extension of the time - limit to lodge an appeal against it provided that the judgment has not already been appealed by his lawyer and that the fact that he did not have knowledge of the judgment is not attributable to him ....

The request for an extension of the time - limit shall be lodged by the accused within DATE of his actual knowledge of the judgment ” .

Section CARDINAL of Law no . CARDINAL of CARDINAL DATE provides as follows :

“ The running of procedural time - limits in the ordinary and administrative courts shall be automatically suspended from DATE to DATE each year and shall recommence at the end of the suspension period . Should a time - limit start running during this period , the starting - date shall be automatically postponed to the end of such period . ”

In a judgment ( no . CARDINAL ) of CARDINAL DATE , ORG stated that the DATE time - limit set out in LAW is also suspended from DATE to DATE pursuant to LAW CARDINAL/CARDINAL .


Violation of Art. 8;Just satisfaction reserved

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant took up the position of organist and choirmaster at the NORP parish church of PERSON ( “ the parish church ” ) in GPE .

Article CARDINAL of his contract of employment dated DATE stipulated , inter alia , that ORG ( see paragraph CARDINAL below ) , as currently in force , formed an integral part of the contract and that any serious breach of the ORG ’s principles constituted a material ground for termination of contract without notice , in accordance with LAW .

After the contract had been approved by the ORG ’s Vicar General , the applicant took the following oath :

“ I hereby undertake to discharge my professional duties and to fulfil and observe ecclesiastical obligations . ”

From DATE he also held the position of head musician in the deanery and was paid a gross DATE salary of MONEY ( MONEY ) .

In DATE the applicant left his wife , who was the mother of his CARDINAL children . The separation was made public in DATE . Since then the applicant has been living with his new partner , who has also been his representative before the employment tribunals and the ORG .

NORP On DATE , after the applicant ’s children had told people at their kindergarten that their father was going to have another child , the PERSON of the parish discussed the matter with the applicant .

On DATE the parish church dismissed the applicant with effect from DATE on the ground that he had breached his duty of loyalty under LAW ( the “ LAW – see paragraph CARDINAL below ) . In the light of ORG fundamental principles enshrining the sanctity of marriage , the applicant , by having an extramarital relationship with another woman , who was expecting his child , was accused not only of committing adultery but also of bigamy .

Following the applicant ’s dismissal his wife petitioned for divorce , which was granted on CARDINAL DATE .

On DATE the applicant took his case to ORG .

On DATE ORG granted the applicant ’s claim and found that the dismissal of DATE had not terminated his contract of employment . Observing the findings of ORG judgment of DATE ( see PERSON v. GPE , no . PERSON , § § CARDINAL , DATE ) , which had applied the principles set out by ORG in its leading decision of DATE ( see paragraph CARDINAL below ) , it took the view that the applicant ’s conduct did not yet ( noch nicht ) justify his dismissal , under section CARDINAL(CARDINAL ) of ORG ( see paragraph CARDINAL below ) . In the ORG ’s view , he had not been bound by heightened duties of loyalty ( gesteigerte ORG ) because he did not perform pastoral or catechistic duties , did not have a canonical mandate ( missio canonica ) and was not a member of the managerial staff ( leitender PERSON ) within the meaning of LAW of LAW . In the ORG ’s view , the respondent had not proved that the applicant ’s duties as head musician of the deanery were equivalent to managerial office ; accordingly , pursuant to LAW , the parish church should first have summoned him for a clarification interview ( klärendes LOC ) or issued him with a warning ( ORG ) before having recourse to the most serious of the disciplinary measures available , his dismissal , especially on account of his length of service in the parish church ( DATE ) and the fact that he had practically no chance of finding work as an organist on the labour - market outside ORG . ORG observed that an employer could only be dispensed from the obligation to issue a warning in the first instance where the employee could not expect his or her conduct to be tolerated by the employer in view of the seriousness of the breach , or where he or she was not inclined to perform , or capable of performing , his or her professional duties .

In the ORG ’s view , in so far as the parish church reproached the applicant for having fathered a child out of wedlock , such a shortcoming , after DATE of service , did not attain a level of seriousness that justified dismissal on that ground alone without prior warning . LAW expressly required consideration of the question whether a staff member opposed the precepts of ORG or , whilst recognising its precepts , had not succeeded in complying with them in practice . The ORG added that the parish church had failed to prove that the applicant had told the PERSON he did not wish to put an end to his new relationship .

On DATE ORG dismissed an appeal by the parish church . It endorsed the findings of ORG , observing that the reason for dismissal had not been the applicant ’s paternity of a child born out of wedlock but rather his long - term extramarital relationship . The ORG pointed out that , whilst the applicant ’s duties in the ORG did not fall under LAW of LAW , his dismissal nevertheless remained possible under LAW , in view of the proximity between his work and the ORG ’s proclamatory mission . However , after formally hearing evidence from the applicant as a party to the proceedings , ORG reached the conclusion that the dismissal had been vitiated by a procedural omission , as the parish church had failed to prove that the PERSON had first sought to induce the applicant to put an end to his extramarital relationship . In view of the fundamental significance of the case , the ORG granted leave to appeal on points of law before ORG .

On DATE ORG quashed the judgment of ORG . It took the view that LAW , which required a clarification interview , applied not only to dismissals decided under paragraph CARDINAL of that Article ( dismissal as the ultimate measure for a serious breach ) but also to those based on paragraph CARDINAL ( exclusion from post as a matter of principle , and possibility of waiving dismissal on an exceptional basis ) . The difference between the CARDINAL paragraphs being merely a question of degree , a clarification interview would be necessary in all cases . In the case before it , ORG took the view that considering the lack of clarity of the ecclesiastical provisions applicable to the applicant as to whether or not his functions entailed heightened duties of loyalty , it had not been clearly established that the applicant could have known with sufficient foreseeability that his dismissal would fall under LAW of LAW . If the holding of a clarification interview had been mandatory in the applicant ’s case , the absence of such an interview was thus capable of rendering his dismissal wrongful ( sozialwidrig ) . However , ORG observed that ORG had been mistaken in finding that no interview had been conducted with the applicant . On that point it took the view that ORG had wrongly omitted to hear evidence also from the PERSON , as a party to the proceedings , in order to establish whether or not he had attempted to induce the applicant to put an end to his extramarital relationship and that , accordingly , the judgment appealed against was to be quashed . However , since the facts had not yet been sufficiently established , ORG was not in a position to rule on the question whether the applicant ’s dismissal had been justified . As a result , it referred the case back to ORG .

ORG further observed that , where an employing church entered into employment contracts , it used not only the freedom of contract ( PERSON ) provided for under ordinary domestic labour law , but also the institutional guarantee of autonomous management enjoyed by the Churches . Church labour law was therefore applicable in conjunction with the ordinary domestic law . The enactment of LAW , in particular Articles CARDINAL and DATE , reflected the principle of ORG autonomy , as provided for in LAW of LAW ( see paragraph CARDINAL below ) . The application of domestic labour law could not call into question the specificity of ecclesiastical service , which was protected by LAW . ORG was therefore entitled to base its contracts of employment on the model of a NORP service community and , in particular , to require its NORP employees to recognise and comply with the principles of NORP religious and moral precepts , as provided for in LAW . As the credibility of the ORG might depend on its employees’ conduct and respect for the ecclesiastical order , including in DATE lives , Articles CARDINAL and CARDINAL of LAW stipulated the applicable criteria on which to assess contractual duties of loyalty and the seriousness of any breach of such duties .

ORG added that the specificity of the duties of loyalty lay in the fact that they concerned not so much occupational duties as conduct falling within secondary duties or even private life . It noted that the sanctity of marriage formed an integral part of the basic principles of ORG religious and moral precepts . The case concerned not only a relationship and a contract but also a sacrament . Even though adultery was no longer an offence since the new version of LAW of Canon Law , marriage had retained its indissoluble , perpetual and exclusive nature .

ORG noted that , when employment tribunals applied ordinary labour law , they were bound by the precepts of religious denominations in so far as those precepts took account of the criteria recognised by established Churches . However , in applying those precepts the employment ORG decisions could not run counter to the fundamental principles of law , which included the concepts of “ morality ” and “ public order ” . According to the case - law of ORG ( see paragraph CARDINAL below ) , it was for the employment tribunals to ensure that religious denominations did not impose excessive requirements of loyalty on their employees . ORG found that the beliefs of the ORG regarding fidelity in marriage were not at odds with the fundamental principles of law . Marriage enjoyed special protection under LAW and adultery was regarded as a serious fault in a civil law context . The ORG observed that it had , moreover , already found in its judgment of DATE that adultery constituted a serious fault in the view of ORG ( see PERSON , cited above , LAW ) .

ORG concluded that ORG had rightly considered that the applicant ’s conduct could be characterised as a serious personal moral fault , within the meaning of LAW , and that it therefore constituted a ground for dismissal for the purposes of LAW . It noted that the applicant ’s opinion that only a new marriage – which , according to ORG belief would be null and void – could be regarded as a serious breach was not substantiated by any provision of LAW or other instruments .

On DATE , after the case had been referred back to it , ORG upheld the parish church ’s appeal against the judgment of ORG of DATE . After hearing evidence from the PERSON as a party to the proceedings , and with the applicant having acknowledged that he had , at his interview of DATE with the PERSON , described as permanent his new relationship with his lawyer , the ORG held that the parish church had dismissed him in accordance with LAW . According to the PERSON ’s statements at the hearing DATE which the ORG found more credible than those of the applicant – there had indeed been an interview between the CARDINAL parties . In view of the applicant ’s inflexible position as regards his new relationship , the PERSON and the parish church had rightly considered that a prior warning would be superfluous .

ORG added that it was not unaware of the consequences of the applicant ’s dismissal , which would most likely prevent him from exercising his profession and from paying the same amount in child maintenance . However , it admitted that the parish church could not continue to employ the applicant without losing all credibility in relation to the mandatory nature of its religious and moral precepts . In this connection it was necessary to take into account the fact that , even if the applicant was not among those members of staff that were bound by heightened duties of loyalty under LAW , his activity was closely related to the ORG ’s proclamatory mission . It was thus hardly conceivable vis - à - vis the general public that the applicant and the PERSON could continue to perform the liturgy together . According to ORG , the interests of the parish church prevailed by far over those of the applicant .

On DATE ORG found inadmissible a request by the applicant to appeal on points of law .

On DATE ORG disallowed a constitutional complaint by the applicant ( no . DATE ) on the ground that it had insufficient chances of succeeding . In ORG opinion , the decisions appealed against did not raise any constitutional issues in the light of its DATE judgment ( see paragraph CARDINAL below ) .

Since DATE the applicant has been employed as choirmaster for a NORP church in GPE and he also directs CARDINAL choirs on a voluntary basis .

On DATE the parish church issued a second dismissal with effect from DATE . On DATE ORG rejected an application for annulment lodged by the applicant . To date those proceedings are still pending before ORG .

The status of Churches and religious societies is governed mainly by Articles CARDINAL to CARDINAL ( known as the “ ORG ” DATE ) of the Weimar Constitution of CARDINAL DATE , as incorporated into LAW . A large number of Churches and religious societies , including ORG ( CARDINAL members ) and ORG of Germany ( CARDINAL members ) , commonly known as the CARDINAL “ big Churches ” ( PERSON ) , have the status of public - law entity but are not , however , part of government . Other religious denominations have legal capacity under civil law . The status of public - law entity enables the Churches concerned , among other things , to receive ORG tax and to employ public servants .

ORG and ORG employ CARDINAL individuals , particularly in their charities , making them the second largest employer in GPE after the ORG . The CARDINAL main charities alone , ORG ( NORP ) and PERSON ( NORP ) , employ respectively CARDINAL and CARDINAL “ staff members ” . Their activities concern mainly the running of hospitals , schools , kindergartens , homes for children and the elderly and advice centres ( for HIV sufferers , migrants , victims of domestic violence ) . The NORP and Protestant Churches regard their social activities as being part of their proclamatory mission and a way of putting the “ love thy neighbour ” commandment into practice .

The law governing employment relationships between Churches and their public servants is based on civil - service law . As regards other employees , the ordinary domestic labour law will apply , but with a certain number of exceptions stemming from the Churches’ right of autonomy . As a result of that right they may , among other things , impose specific duties of loyalty on their employees ( see below ) . Moreover , in terms of industrial - relations law , Churches and their institutions are not bound by the domestic right of employee participation . Considering that their activities , especially charity work , are based on the model of a NORP service community , formed by the whole body of staff , they do not accept legal structures based in principle on an opposition between employer and employee . ORG and most of the NORP denominations thus refuse to enter into collective agreements with trade unions , and the right to strike or lock - out are non - existent in their institutions . However , they have created their own systems of representation and staff participation in management .

As regards their financing , Churches and religious societies having the status of public - law entity are entitled to receive ORG tax , which constitutes a significant portion ( PERCENT ) of their total budget . Church tax is levied by the ORG tax authorities on behalf of ORG and religious societies , which in return pay ORG of their tax revenue . This is based on income tax , amounting to CARDINAL thereof . It is paid directly to the ORG by the taxpayer ’s employer together with income tax . In this connection municipal authorities issue “ wage - tax cards ” ( Lohnsteuerkarte ) that employees are required to give their employers . The card contains information about the employee , including the tax regime , rebates for dependent children and membership of a ORG or religious society entitled to receive ORG tax .

Article CARDINAL of the Basic PERSON provides that Articles CARDINAL - CARDINAL and CARDINAL of LAW of DATE form an integral part of LAW . Article CARDINAL reads as follows :

“ ( CARDINAL ) There shall be no ORG church .

( CARDINAL ) NORP The freedom to form religious societies shall be guaranteed . ...

( CARDINAL ) NORP societies shall regulate and administer their affairs independently within the limits of the law that applies to all . They shall confer their offices without the involvement of central government or local authorities .

( CARDINAL ) NORP societies shall acquire legal capacity in accordance with the general provisions of civil law .

( CARDINAL ) NORP societies shall remain entities under public law in so far as they have enjoyed that status in the past . Other religious societies shall be granted the same rights upon application , if their constitution and size of membership provide guarantees of long - term existence ...

( CARDINAL ) NORP societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land .

( CARDINAL ) ORG whose purpose is to foster a philosophical belief in the community shall have the same status as religious societies .

( CARDINAL) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land . ”

On DATE ORG delivered a leading judgment on the validity of dismissals of ORG employees on the grounds of a breach of their duty of loyalty ( ORG . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL and DATE , judgment published in the Reports of Judgments and Decisions of ORG , volume CARDINAL , pp . CARDINAL ) . The subject matter of the constitutional complaints was , on the one hand , the dismissal of a doctor practising in a NORP hospital on account of a view he had expressed on abortion , and on the other , the dismissal of a commercial employee of a youth home run by a NORP monastic order because he had left ORG . The CARDINAL dismissed employees had been successful in proceedings before the employment tribunals and the employing Churches had then taken their cases to ORG , which allowed their complaints .

ORG observed that the right of religious societies to manage their affairs autonomously within the limit of the general law , as enshrined in LAW of LAW , applied not only to the Churches , but also , regardless of legal form , to any institution associated with them and participating in their mission . This constitutional guarantee included the right for the Churches to choose the staff they needed for the fulfilment of their mission and , accordingly , to enter into employment contracts . When the Churches chose to exercise their freedom of contract , like everyone else , then ordinary domestic labour law became applicable . However , the applicability of labour law did not have the effect of removing employment relations from the domain of a ORG ’s own affairs . The constitutional guarantee of autonomy ( PERSON ) afforded to Churches affected the content of contracts of employment . A ORG could thus , in the interest of its own credibility , base its contracts of employment on the model of a NORP service community , and , accordingly , require its employees to respect the general principles of its dogmatic and moral doctrines and the basic duties applicable to all its members . That did not mean , however , that the legal status of a ORG ’s employee became “ clericalised ” . It merely concerned the nature and scope of duties of loyalty stemming from employment contracts . The civil - law employment relationship was not thereby transformed into an ecclesiastical status that subsumed the employee and dominated his entire private life .

ORG further observed that the freedom of the Churches to manage their own affairs was circumscribed by the general law , including those provisions that granted protection against wrongful dismissal such as section CARDINAL of the Protection from Dismissal Act and LAW . However , those provisions did not automatically prevail over the so - called “ ORG ” of LAW . It was thus appropriate to balance the different rights , with particular weight being accorded to the Churches’ interpretation of their own faith and legal order . ORG continued as follows :

“ It follows that , whilst the constitutional guarantee of the Churches’ right to manage their affairs autonomously permits them to base their contracts of employment on the model of a NORP service community and to lay down the basic ecclesiastical duties , such guarantee must be considered in terms of constitutional law and its scope must be stipulated when it comes to applying the provisions concerning protection against dismissal to dismissals for a breach of duties of loyalty . An application of labour law that did not take account of the duties of ORG employees to respect the fundamental principles of NORP life that the Churches are entitled to impose would be at odds with their constitutional right of autonomy .

Consequently , in the event of a dispute , the employment tribunals must apply the criteria laid down by the Churches concerning the assessment of the contractual duties of loyalty since the LAW affords to Churches the right to decide on such matters autonomously . It is thus in principle for the established Churches ( verfasste PERSON ) to determine what is required by ‘ the credibility of the ORG and its proclamation’ , what ‘ specific ecclesiastical ORG are , what ‘ proximity’ to the ORG means , what ‘ the basic principles of religious and moral precepts are’ and what constitutes a breach DATE a serious breach in some cases – of its precepts . Matters governed by the Churches’ right of autonomy also include the question whether and how a scale of duties of loyalty must be applied to staff members working in the service of a ORG .

In so far as such principles correspond to the criteria laid down by the established Churches , a question that must be referred by the tribunal to the ORG authorities in case of doubt , the employment tribunals will be bound by them , unless by applying them they put themselves in conflict with the fundamental principles of law , such as the general prohibition of arbitrariness , the principle of morality , and public order . It is therefore a matter for the domestic courts to ensure that ecclesiastical institutions do not impose on their staff unacceptable demands of loyalty that might , in some cases , be at odds with the very principles of the ORG ...

If the tribunal reaches the conclusion that there has been a breach of such duties of loyalty , it must ascertain whether that breach objectively justifies dismissal under LAW and LAW ... ”

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG ( GPE ) provides , in particular , that a dismissal is socially unjustified unless based on reasons related to the employee himself or his conduct .

Article CARDINAL of the Civil Code allows each party to the contract to terminate the employment relationship without notice on serious grounds .

LAW ( b ) of ORG and Pay Regulations ( ORG Arbeits- und GPE ) for the Dioceses ( or Archdioceses ) of GPE , GPE , GPE ( GPE ) , PERSON ( part of GPE ) and GPE , dated DATE , as in force until DATE , required that the way of life of the employee and the members of his household be compliant with the basic principles of the religious and moral precepts of ORG .

Article CARDINAL provided that respect , manifested in words and deeds , for the principles of ORG , and a conduct in line with that required by ecclesiastical staff members , formed part of the employee ’s duties .

LAW , in the version currently in force , provides in particular that a serious ground justifying dismissal without notice is constituted by a patent breach ( großer äusserer GPE ) of ecclesiastical principles , for example the fact of leaving the Church ( GPE ) .

Articles DATE and CARDINAL of LAW for ecclesiastical service in the context of ecclesiastical employment relationships ( PERSON für den kirchlichen ORG i m Rahmen kirchlicher GPE ) , which were adopted by ORG of NORP Bishops on DATE and which came into force in the Diocese of Essen on DATE , read in their relevant parts as follows .

“ CARDINAL . NORP employees [ GPE PERSON ] are required to respect and comply with the basic principles of ORG religious and moral precepts . The example of personal life led in conformity with those principles is seen as important in particular for employees who perform pastoral , catechistic or educational duties , or who have a canonical mandate [ ORG canonica ] . These duties also apply to senior management staff .

Employees shall refrain from any hostile attitude towards the ORG . They shall not undermine , by their personal way of life or professional conduct , the credibility of the [ ORG and of the institution for which they work . ”

“ CARDINAL . Where an employee no longer satisfies the employment criteria , the employer shall seek by discussion to prevent the breach in question with permanent effect . The employer will have to ascertain whether , to put an end to the said breach of duty , a clarification interview [ klärendes LOC ] , a warning [ ORG ] , a formal reprimand , or any other measure ( relocation , contractual amendment ) would be appropriate . Dismissal may be envisaged in the last instance .

NORP The NORP shall regard as serious and as justifying dismissal on specifically ecclesiastical grounds [ GPE kirchenspezifischen Gründen ] the following breaches of the duty of loyalty :

– a breach of the duties provided for in Articles DATE hereof , in particular the fact of leaving the ORG and public defence of positions that run counter to ORG guiding principles ( for example those concerning abortion ) , and serious personal moral misconduct [ schwerwiegende persönliche sittliche PERSON ] ;

– the fact of entering into a marriage that is null and void in the light of the ORG ’s faith and legal order , as interpreted thereby ...

The existence of CARDINAL of the forms of conduct referred to under paragraph CARDINAL of the present Article , and which are regarded as a general rule as grounds for dismissal , shall preclude the possibility of maintaining an employee in his or her post if the employee performs pastoral or catechistic duties , is a member of the managerial staff , or has a canonical mandate [ ORG canonica ] .

Where the employee belongs to CARDINAL of the categories referred to in paragraph CARDINAL [ of the present Article ] , the possibilit institution might be called into question , the burden placed on the ecclesiastical service community , the nature of the institution and its task , the institution ’s proximity to the ORG ’s proclamatory mission , the employee ’s position within the institution and the nature and seriousness of the relevant breach of the duties of loyalty . It will also be necessary to consider whether the employee has opposed the precepts of the ORG or whether , whilst recognising those precepts , has not succeeded in complying with them in practice . ”

Under section CARDINAL(CARDINAL ) of LAW of DATE , a church musician employed by ORG must in principle be affiliated with a denomination which is a member of ORG of GPE or part of an ecclesiastical union therewith . Under section CARDINAL ) of that PERSON , in conjunction with section CARDINAL(CARDINAL ) of the implementing law of DATE , a person not fulfilling this condition may nevertheless be appointed , on an exceptional basis , to a post of church musician in secondary employment ( ORG ) if he or she is affiliated with a NORP denomination that is part of ORG in GPE ( ORG christlicher PERSON in GPE ) , to which ORG belongs . Under the Regulations of DATE on the employment of church musicians , the average DATE of such musicians in secondary employment represents TIME .

Recital CARDINAL

“ ORG in its Declaration No . CARDINAL on the status of Churches and non - confessional organisations , annexed to LAW of LAW , has explicitly recognised that it respects and does not prejudice the status under national law of Churches and religious associations or communities in GPE and that it equally respects the status of philosophical and non - confessional organisations . With this in view , Member GPE may maintain or lay down specific provisions on genuine , legitimate and justified occupational requirements which might be required for carrying out an occupational activity . ”

Article CARDINAL

Occupational requirements

“ CARDINAL . ... Member GPE may provide that a difference of treatment which is based on a characteristic related to [ religion or belief ] shall not constitute discrimination where , by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out , such a characteristic constitutes a genuine and determining occupational requirement , provided that the objective is legitimate and the requirement is proportionate .

Member GPE may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which , in the case of occupational activities within Churches and other public or private organisations the ethos of which is based on religion or belief , a difference of treatment based on a person ’s religion or belief shall not constitute discrimination where , by reason of the nature of these activities or of the context in which they are carried out , a person ’s religion or belief constitute a genuine , legitimate and justified occupational requirement , having regard to the organisation ’s ethos . ...

Provided that its provisions are otherwise complied with , this Directive shall thus not prejudice the right of Churches and other public or private organisations , the ethos of which is based on religion or belief , acting in conformity with national constitutions and laws , to require individuals working for them to act in good faith and with loyalty to the organisation ’s ethos . ”

The NORP legislature transposed the Directive into national law by means of LAW ( Gesetz zur GPE europäischer PERSON Gleichbehandlung – Allgemeines Gleichbehandlungsgesetz ) of DATE . Section CARDINAL thereof reads as follows :

“ ( CARDINAL ) Without prejudice to the provisions of LAW [ hereof ] , a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies , by institutions affiliated therewith , regardless of legal form , or by associations whose purpose is to foster a religion or belief in the community , where a justified occupational requirement is constituted by a given religion or belief , having regard to the employer ’s own perception , in view of the employer ’s right of autonomy or by reason of the nature of its activities .

( CARDINAL ) The prohibition of differences in treatment based on religion or belief shall not affect the right of the religious societies , institutions affiliated therewith , regardless of legal form , or associations whose purpose is to foster a religion or belief in the community , as referred to in the previous subsection , to require their employees to demonstrate loyal and sincere conduct within the meaning of their own perception . ”

On DATE ORG sent a letter of formal notice to GPE ( procedure no . CARDINAL ) concerning the transposition of Directive CARDINAL into NORP law and concerning , among other things , “ dismissals not covered by anti - discrimination law ” . It noted that , whilst the Directive permitted a difference in treatment only if the religion or belief constituted a genuine , legitimate and justified occupational requirement , having regard to the organisation ’s ethos , section CARDINAL(CARDINAL ) of ORG also provided for different treatment when the religion or belief constituted an occupational requirement on the basis of its right of autonomy and the religious society ’s or association ’s own perception , without necessarily having regard to the nature of the activity . According to ORG , such a difference not being covered by the terms of the Directive , this manner of transposition did not fulfil the Directive ’s objectives . Such transposition would enable a religious society to define an occupational requirement purely on account of its right of autonomy , without the requirement undergoing a proportionality test in the light of the actual activity . In addition , whilst LAW presented the question in terms of genuine and determining occupational requirements , section CARDINAL(CARDINAL ) of LAW had reduced that notion to CARDINAL of justified occupational requirements , which was a weaker standard than that of the Directive . ORG further observed that , whilst an organisation ’s particular ethos played a role in determining the occupational requirement , it should not be the sole criterion , otherwise NORP legislation might not guarantee such a difference in treatment and , even as regards ordinary assistance activities , specific requirements related to religious affiliation might be imposed .

On DATE ORG sent a reasoned opinion to GPE . It was stated in a press release published on DATE ( GPE ) that in its opinion the ORG had pointed out , among other things , that protection against discriminatory dismissals was not covered by NORP anti - discrimination law . The government ’s reply to the letter of formal notice , the Commission ’s reasoned opinion and the government ’s reply to that opinion have not been made public to date .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant company , ORG , is a NORP limited liability company , which was set up in DATE and is based in GPE . It was represented before ORG by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

On DATE the applicant company entered into a lease agreement with ORG ( “ the BSDC ” ) , a body of ORG , renting from it a ORG shop . It appears that the term of the lease agreement was periodically renewed until DATE .

On CARDINAL DATE the applicant company submitted a proposal to ORG to purchase the shop under the preferential privatisation procedure available to lessees of ORG and municipality - owned properties , provided for in section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

In a decision of CARDINAL DATE ORG declined the proposal . It reasoned that the conditions under LAW ( CARDINAL ) of LAW had not been met , because the BSDC was not a ORG enterprise and real property included in its assets could not be sold or exchanged .

NORP The applicant company applied for judicial review of ORG refusal . In a judgment of DATE , which was considered final , ORG ( “ the ORG ” ) quashed the decision of CARDINAL DATE and instructed the ORG to open a privatisation procedure . The ORG held that the shop was owned by the ORG and had been assigned to the ORG for use and management only .

Following that judgment , on DATE ORG opened a procedure for the shop ’s privatisation . On DATE its decision to that effect was published in ORG .

On an unknown date the ORG submitted a petition for review ( преглед по реда на надзора ) of the judgment of DATE .

On DATE a CARDINAL - member panel of the ORG quashed the judgment of DATE and remitted the case to a CARDINAL - member panel of the same court . The CARDINAL - member panel noted that , notwithstanding the fact that the shop was owned by the ORG , it was not subject to privatisation because the ORG did not have the status of a ORG enterprise .

Following a fresh examination , in a judgment of DATE a CARDINAL - member panel of the ORG dismissed the applicant company ’s application for judicial review . However , on appeal , in a final judgment of DATE a CARDINAL - member panel of the same court quashed the decision of DATE and instructed ORG to open a privatisation procedure aimed at selling the shop to the applicant company . It considered , most notably , that the shop was the property of the ORG and that the BSDC ’s legal status was not an obstacle to the privatisation . It considered , in addition , that the applicant company met all the requirements to benefit from the preferential conditions under LAW ( CARDINAL ) of LAW .

NORP Following that decision , on DATE ORG wrote to the applicant company proposing a price for the shop , inquiring whether the applicant company accepted to buy the shop and inviting it to propose payment conditions .

On DATE the applicant company informed ORG that it agreed to buy the shop at the price proposed . In addition , it suggested a payment scheme .

The signing of the privatisation contract was scheduled for DATE ; however , TIME before the meeting an employee of ORG informed the applicant company by telephone that it would be postponed .

Meanwhile , on DATE ORG inquired with the GPE municipality as to whether there were any restitution claims in respect of the shop . On DATE the regional governor of PERSON replied that on DATE he had decided to transfer the shop to a third party in compensation for their expropriated property ( see below ) .

It transpired subsequently that on DATE the ORG had transferred ownership of the shop to the GPE municipality . On DATE the GPE municipal council included it in the assets of the municipallyowned company managing municipal real properties . It is unclear whether ORG had been informed of those developments at the time .

It also transpired that on DATE a third party – the heirs of PERSON DATE had requested the transfer of the shop in compensation for expropriated real property . As already mentioned , in a decision of CARDINAL DATE the regional governor granted their request .

The applicant company applied for judicial review of that latter decision . However , on DATE ORG found its application inadmissible , holding that the applicant company had not been a party to the restitution proceedings and therefore had no standing to challenge the impugned decision .

The parties have not informed the ORG whether it was possible for the applicant company to challenge the transfer of the property from the ORG to the municipality , or resort to any other remedy directed against the municipality .

On DATE the applicant company sought judicial review of ORG failure to finalise the privatisation transaction in compliance with the judgment of DATE . However , on DATE the ORG rejected the application for judicial review as inadmissible , holding that the impugned failure to execute a final judicial act did not represent an administrative decision in itself and therefore was not subject to judicial control .

On an unspecified date the applicant company requested the assistance of ORG to finalise the privatisation transaction . In a letter of CARDINAL DATE the Minister of Economy invited ORG to comply with the judgment of DATE .

In letters of DATE , DATE and DATE and DATE the applicant company also invited ORG to finalise the privatisation procedure .

On DATE the ORG informed the applicant company that the shop had been transferred to the GPE municipality and that the regional governor ’s subsequent decision to transfer it in compensation to a third party represented a new circumstance which impeded the finalisation of the privatisation transaction .

NORP The applicant company applied for judicial review of ORG refusal . In a judgment of DATE a threemember panel of the ORG quashed the refusal and instructed the ORG to transfer title to the shop to the applicant company . It reasoned that the applicant company had acquired the right to buy the shop and the ORG was therefore obliged to sign the privatisation agreement . However , upon an appeal by ORG , in a final judgment of DATE a CARDINAL - member panel of the ORG found the applicant company ’s application for judicial review inadmissible . It held that the ORG ’s refusal to sign a privatisation agreement had not amounted to an administrative decision because , at that stage of the privatisation procedure , the CARDINAL parties had been acting on an equal footing . Thus , the existing dispute between them could not be settled in administrative proceedings .

On DATE the applicant company brought a civil action against ORG , seeking to have declared final the preliminary contract which it considered had been reached between them . PERSON and PERSON , heirs of PERSON , intervened in the proceedings with a claim for a declaratory judgment against the applicant company and ORG that they were the owners of the shop on the basis of the regional governor ’s decision of DATE .

On DATE ORG dismissed the action of the applicant company and declared that PERSON and PERSON were the owners of the shop . Upon an appeal by the applicant company , on DATE ORG upheld that judgment . It considered , in particular , that following the judgment of DATE ( see paragraph CARDINAL above ) the applicant company and ORG had exchanged correspondence in which they had reached an agreement on the main conditions of the sale of the shop , which represented a preliminary contract . However , ORG had not been the owner of the shop , which meant that the preconditions for declaring the preliminary contract final had not been present .

Following an appeal , in a final judgment of CARDINAL DATE ORG upheld the lower courts’ judgments . It considered , in particular , that the correspondence between the applicant company and ORG did not represent a preliminary contract .

In the meantime , on DATE a notary public , acting with the assistance of the police , put PERSON and PERSON in possession of the shop . It appears that by this time the applicant company , which was still holding the property , was no longer using it and it was in a state of abandon .

The Transformation and Privatisation of State and Municipal Enterprises Act ( ORG за преобразуване и приватизация на държавни и общински предприятия : “ the LAW ” ) of DATE provided for the transformation of public property and the privatisation of ORG and municipality - owned enterprises . It was superseded by other legislation in DATE .

Section CARDINAL of the Act indicated the bodies competent to take decisions on privatisation . As concerns ORG - owned properties , the competent bodies were either ORG , or , for the most important objects , ORG . The body competent to decide on the privatisation of municipally - owned properties was the relevant municipal council .

Under LAW ( CARDINAL ) of LAW , lessees of ORG and municipality - owned property could propose to buy the property rented by them , without a public auction or competition and for a price equal to the property ’s value assessed by certified experts in accordance with rules adopted by the ORG . Those preferential conditions were applicable to lessees of ORG and municipality - owned property who had concluded lease contracts before DATE and where the said contracts were still in force on the date of the respective privatisation proposal .

Section CARDINAL ( CARDINAL ) of LAW , as worded after DATE , provided that where a refusal by the competent administrative body to initiate a privatisation procedure following a proposal by the interested party had been quashed by means of a final court judgment , the relevant administrative body was obliged , within DATE of the judgment becoming final , to initiate the privatisation procedure , prepare the privatisation of the property at issue and offer to sell the property to the entitled party .

Paragraph CARDINAL of the transitional and concluding provisions of LAW addressed different situations of conflict of competing privatisation and restitution interests . It provided , in particular , that in cases where a privatisation contract had already been concluded , the parties claiming to have restitution rights were to be compensated through shares in the companies which had acquired the property , if any such shares were owned by the ORG or municipalities , or through compensation bonds .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr Ö. Kılıç , a lawyer practising in GPE . ORG ( “ the Government ” ) did not designate an Agent for the purposes of the proceedings before the ORG .

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

On DATE police officers from ORG in GPE arrested the applicant and transferred him to the Anti - Terrorism branch of ORG . He was accused of membership of an illegal organisation called the Revolutionary Left ( ORG ) . It was alleged that he had been involved in armed attacks organised by the said organisation in DATE . In particular , the applicant , whose code name was ‘ Yusuf’ within the organisation , allegedly took part in the killing of a police superintendent .

On DATE the applicant was questioned by CARDINAL police officers from the Anti - Terrorism branch in relation to his involvement in the organisation . He confessed to being a member of the THKP - C and to having taken part in the killing of the police superintendent . He claimed , however , that he had not been involved in the organisation DATE .

On DATE the applicant was examined by a doctor from ORG . The doctor , MD ORG , reported that the applicant had described to him a sensation of pain in his right shoulder and testicles as well as numbness in his right arm . It was also noted in the report that the applicant had complained of pain when urinating . The doctor concluded that the applicant should be transferred to a ORG hospital for a further neurological and urological examination .

Following his examination in ORG , the applicant was again examined on DATE by PERSON from ORG . Referring to the applicant ’s examination by the urology department of the ORG hospital , PERSON noted in his report that there was no pathological finding . However , the neurological examination had indicated that the applicant had felt weakness in the region of his shoulder and shoulder blade and in particular when squeezing his right hand . The applicant had also complained of pain in his right elbow and right shoulder when extending his arm . PERSON thus requested the applicant to undergo an ORG ( electromyogram ) examination DATE .

On DATE the applicant was brought before the public prosecutor attached to ORG , where he denied the charges . He submitted that the incriminating police statements had been taken under torture and that he had not been able to read the statements before signing them . He further stated that he did not have any connections with the said organisation and that he had not been in GPE in DATE .

On DATE , the applicant was taken before ORG . He denied the content of the police statements and maintained that he had been subjected to ill - treatment during his detention in police custody and had been forced to confess to crimes which he had not committed . The court ordered the applicant ’s detention on remand .

In an indictment dated DATE the public prosecutor attached to ORG initiated criminal proceedings against the applicant , charging him with membership of a terrorist organisation and recommending the imposition of the death penalty under LAW ( attempt to undermine the constitutional order ) .

On DATE the public prosecutor at ORG issued a decision of non - jurisdiction ratione materiae in relation to the alleged torture of the applicant during his detention in police custody DATE and DATE . Having completed his preliminary investigation , ORG transferred the investigation file containing medical reports and the applicant ’s statements to ORG office in LOC .

In a letter of DATE the PERSON public prosecutor requested ORG to instruct the authorities of FAC to take the applicant to a hospital and to have him undergo an ORG examination . On DATE , the public prosecutor wrote a letter to the Anti - Terrorism branch of ORG in which he requested that the names of the police officers who had questioned and taken statements from the applicant be reported to him . He further asked for a copy of the last page of the statements taken from the applicant , the arrest protocols as well as all relevant reports . On DATE ORG transferred the applicant to ORG for an ORG examination . However , given that this hospital lacked ORG facilities , ORG decided to transfer the applicant to ORG in GPE .

In a letter of DATE ORG requested ORG to order the transfer of the applicant to a special prison in GPE with a view to his examination and treatment at ORG .

On DATE the applicant submitted before ORG that he had been subjected to ill - treatment while in police custody .

On DATE the applicant underwent a urine analysis at ORG . The laboratory doctor prescribed antiinflammatory medicine and antibiotics for the applicant . He was then examined by a doctor at the neurology department of the same hospital . The neurologist noted in his report that the applicant felt weakness in his right arm and thus advised an ORG examination .

In a letter dated DATE ORG repeated his earlier request to ORG that the applicant be taken to a hospital for an ORG examination .

By a letter of DATE , ORG requested the authorities of ORG at ORG to provide him with a copy of the last page of the applicant ’s statements which were taken during his detention in police custody , the arrest protocols and reports as well as documents pertaining to the permission to hold him in custody . The public prosecutor also asked for the names of the police officers who had taken statements from the applicant or participated in his interrogation . He instructed that those police officers appear before the Fatih Chief Public Prosecutor ’s office . On DATE this letter was received by the police officers concerned , namely GPE , GPE , GPE and GPE

On DATE and DATE ORG took statements from GPE , GPE and PERSON , who had all been involved in the interrogation of the applicant . Referring to the medical report dated DATE , which stated that there was no pathological finding on the applicant ’s body , the police officers all denied that they had illtreated the applicant . They claimed that such allegations were a routine practice used by members of illegal organisations to deny the crimes which they had committed .

According to a report dated DATE , which was drafted by the ORG Director and signed by CARDINAL prison officers , the applicant refused to leave his cell and to be brought to ORG for an ORG examination . This report was sent to ORG office for information .

On DATE and CARDINAL DATE the applicant , at the request of ORG , was summoned to give evidence before ORG in relation to his allegations of illtreatment . The applicant refused to appear before the court for health reasons .

On DATE the applicant gave evidence before ORG . He alleged that he had been subjected to NORP hanging following his arrest . He had seen through his blindfold the police officers who had hit him . He had also seen the same officers when they had removed his blindfold in order to confront him with PERSON The applicant had filed a complaint through his lawyer about these police officers . He reiterated his request for the prosecution of the police officers who had tortured him .

On DATE the ORG initiated criminal proceedings before ORG against CARDINAL police officers , GPE and GPE , charging them with ill - treatment of the applicant in violation of Article CARDINAL § CARDINAL of LAW .

On DATE ORG heard evidence from GPE and GPE They both denied the charges and claimed that they had not been involved in the interrogation of the applicant . PERSON stated that he had only taken statements from the applicant in the course of his transfer to ORG . PERSON claimed that he had only acted as a clerk when taking statements from the applicant .

In a petition dated DATE , filed with ORG , the applicant requested information on the state of the proceedings concerning the prosecution of the impugned police officers .

In a letter dated CARDINAL DATE , which was served on the applicant on DATE in the Sakarya E - type prison , the president of ORG informed him that the criminal proceedings were still pending and that a final hearing was scheduled for DATE .

On DATE ORG delivered its judgment . Referring to the applicant ’s testimony dated DATE before ORG in which he had claimed that he had been ill - treated before his statements had been taken , and in view of the police ORG defence submissions , the court found that the CARDINAL accused police officers had merely taken statements from the applicant . However , it was undisputed that the alleged ill - treatment inflicted on the applicant occurred prior to that stage - either during his arrest or at the time of his interrogation . The court further took into consideration the medical report dated DATE which did not indicate any signs of bodily injury . Accordingly , the court concluded that there existed no evidence to substantiate that the applicant had been ill - treated by the accused police officers and therefore acquitted them of the charges . The court ’s decision was not served on the applicant since he had not intervened in the criminal proceedings against the accused police officers . As there was no appeal , the decision became final on CARDINAL DATE .

On DATE ORG ordered the applicant ’s release pending trial .

On DATE the applicant obtained a copy of ORG decision concerning the acquittal of the police officers .

The lawyer representing the applicant in the ORG proceedings also represented him in the proceedings before ORG .

In the meantime , the applicant provided the ORG with a copy of a document which indicated that ORG , CARDINAL of the accused police officers who had allegedly inflicted ill - treatment on the applicant , had been convicted of inflicting ill - treatment in the past .

On DATE ORG convicted the applicant of attempting to undermine the constitutional order of the ORG and sentenced him to life imprisonment .

On DATE the Deputy to ORG appealed to ORG and requested that the conviction be quashed on the grounds that there was insufficient evidence against the applicant and that the judgment was contradictory . The public prosecutor noted that the only evidence available was the applicant ’s statements to the police officers .

On DATE ORG quashed the judgment of DATE . It reasoned that ORG had failed to carry out a sufficient examination of the case in that it had not inquired into the outcome of the criminal proceedings concerning the alleged ill - treatment of the applicant by the security forces and the medical report to that effect .

“ CARDINAL . Whoever , being a president or member of a court or council or a public officer , tortures an accused person in order to obtain a confession , shall be punished by a prison sentence of DATE and shall be disqualified from holding public office , temporarily or for life . The offender shall be punished even if he had acted under an order or encouragement from his superior . ”

“ Any person who is injured as a result of a criminal act may , at any phase of the investigation , intervene in the public prosecution .

Those so intervening may also submit their personal claims for adjudication . ”

The intervening party is entitled to request compensation for the prejudice arising from the offence . However , the exercise of this right is subject to procedural rules : the person who is injured as a result of a criminal act must intervene in the public prosecution and request explicitly the right to ask for compensation . The compensation request is not therefore automatic . It also has to be justified and an assessment of the amount must accompany the request .

Section CARDINAL provides that intervention should be made by means of the submission of a petition to the relevant authority or by a declaration made to the clerk of the court . Thereupon , the intervening party enjoys the same rights as a prosecutor of personal claims ( section CARDINAL ) . Decisions rendered before the intervention remain valid and , if the public prosecutor does not appeal against the final decision within the requisite time - limit , the intervener loses the right to appeal ( section CARDINAL ) .

Furthermore , according to LAW , if the intervener or his / her representative does not attend the trial , the judgment is served on him / her . Section CARDINAL empowers the intervening party to file a separate appeal against a judgment regardless of whether the public prosecutor chooses to appeal . If the intervening party succeeds in his / her appeal , the public prosecutor is required to institute criminal proceedings afresh .