Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

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

NORP The applicant and her husband had CARDINAL children : a daughter D , born in DATE , and a son S , born in DATE . Following allegations against the applicant ’s husband of violence against the children and sexual abuse of D , ORG ( ORG ) removed both children from their home and placed them in a children ’s home as a provisional measure on DATE , having found the children to be in imminent danger as required by LAW .

In compliance with the time - limit set out in LAW , ORG thereafter , on DATE , applied to ORG ( GPE ) seeking to be awarded custody of the children for the purposes of their care and education and to have their placement in a children ’s home approved .

The applicant and her husband denied the allegations of domestic violence or sexual abuse and requested the court to dismiss the authority ’s application for custody .

ORG promptly heard the applicant and her husband , the children ’s teachers , other witnesses and commissioned an expert opinion . Following its investigation , on DATE the Innsbruck ORG dismissed ORG custody application , but ordered the parents to attend DATE psychotherapy sessions offered by a specialised association and to allow the children to receive psychological counselling if recommended by the association .

The children were returned to their parents on DATE .

ORG appealed against ORG decision , but on DATE the Innsbruck ORG ( GPE ) dismissed the appeal .

In addition to the above civil proceedings , the applicant applied on DATE to ORG ( Unabhängiger Verwaltungssenat Tirol ) and contested the measures taken by ORG . She requested it to rule that ORG had violated her rights by removing the children on DATE , complaining that the children had been taken away without the applicant having first given evidence , and arguing that until the court had issued a decision their placement in a children ’s home had been without any legal basis . She also argued that the provisional removal of the children from their home on the basis of suspicions of domestic violence had been disproportionate .

On DATE ORG rejected the application . It found that the measures were based on the provisions of LAW and not on the administrative law . Thus , only the civil courts were competent to decide on the lawfulness of the measure .

The applicant lodged a complaint with ORG against that decision under LAW .

On DATE ORG dismissed the complaint confirming its case - law whereby a provisional measure implemented by ORG pursuant to LAW was a measure under civil law . Accordingly , the administrative authorities had no jurisdiction to decide on the applicant ’s application .

The Constitutional Court ’s judgment was served on the applicant ’s counsel on DATE .

Under LAW of LAW ( ORG ) , the competent ORG must apply for court orders regarding custody measures which are necessary in order to ensure a child ’s well - being . Where a child is in imminent danger , ORG must also make the necessary provisional arrangements concerning care and custody until the competent court has given a decision . Such provisional arrangements have to be notified to the competent ORG immediately , at the latest within DATE .

Article CARDINAL of LAW ( Bundesverfassungsgesetz ) provides that ORG decides on conflicts of jurisdiction between the courts and the administrative authorities .

Under LAW , an application can be lodged with ORG alleging a violation of a constitutional right as the result of a decision of the administrative authorities , including ORG .

Pursuant to section CARDINAL of LAW ( Amtshaftungsgesetz ) , the Federation , the Länder , districts , municipalities , other bodies of public law and the institutions of social insurance ( hereinafter named “ legal entities ” ; PERSON ) are liable pursuant to the relevant civil law for any damages caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law . Sections CARDINAL and CARDINAL of LAW provide that , as a first step , an injured party shall demand a written statement of the legal entity , against which a claim of damages is to be raised , indicating whether the legal entity at issue accepts or rejects the claim for damages . Such a statement shall be rendered within DATE . After expiration of the delay of DATE and in the event the legal entity does not accept the claim ( in full ) , the injured party can lodge an action for damages with the competent ORG .


Remainder inadmissible;No violation of Art. 14+8;Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE . In DATE the applicant married ORG .

In DATE , the applicant became involved in the activities of ORG , a NORP branch of a new religious movement called PERSON .

In DATE , she divorced her husband . The permanent place of residence of the applicant 's CARDINAL daughters , ORG , born in DATE and DATE respectively , was not determined and they stayed with the applicant and her former husband in GPE .

In DATE , the applicant 's former husband brought an action requesting that his home be fixed as the place of residence of his daughters . He alleged , inter alia , that the applicant 's involvement in the PERSON religious movement could have a negative influence on the children .

On DATE PERSON District Child Rights Protection Agency , having visited the father 's place of residence , concluded that the living conditions were suitable and , taking into consideration the wishes of ORG and ORG , suggested fixing their place of residence with the father . On DATE the same ORG proposed to ORG of GPE that it hear the views of the children .

By a ruling of CARDINAL DATE , ORG decided that , pending the proceedings , ORG should reside with the applicant , and ORG should stay with her father .

On DATE the applicant and ORG moved to GPE , settling in an apartment situated in the same building as the GPE headquarters . The applicant was allowed to use that apartment free of charge . ORG stayed with her father .

On DATE the employees of ORG ( PERSON teisių apsaugos tarnyba ) visited the applicant 's residence . They noted the applicant 's explanation that she had CARDINAL rooms for her use , CARDINAL of them being reserved for ORG . When the applicant was absent , a nanny would take care of her . The living conditions seemed suitable for a child . However , during the interview ORG explained that she wanted to stay with her father , who took better care of her and did not leave her alone . She elaborated that her mother left her alone during DATE and that she often felt scared . The ORG then suggested fixing ORG 's place of residence with her father .

On DATE the employees of ORG , having visited the applicant 's place of residence in GPE , concluded that it was unsafe for ORG to live there and that the applicant was not caring enough about ORG 's upbringing and education . They noted that the applicant 's living space consisted of CARDINAL room and that the kitchen was shared with other residents of the house . ORG lived in that room with her mother , both of them sleeping in the same bed . The other room , which was supposed to be part of the applicant 's living space , was apparently also used by other persons . At the time of the interview with ORG , CARDINAL teenage boys entered the room without asking for permission . According to ORG , her mother did not take care of her ; she did not have any friends and , during DATE , was left alone . The girl had to cook for herself ; she was not allowed to go to the adjoining yard and the building next to it , where her mother was meditating . The nanny would only come to take care of ORG when the applicant left for DATE . ORG expressed her wish to live in GPE with her father and sister ORG . The ORG 's workers also interviewed ORG 's kindergarten teachers . According to them , ORG was often sad about not seeing her sister and father . ORG would also be picked up from the kindergarten by DATE girl , but at the time of the interview she was going home on her own . The ORG 's workers suggested to the applicant that she find another place to live where ORG would feel safer . However , the applicant refused because she did not have to pay rent for the current flat , and it was close to her meditation centre .

On DATE the employees of ORG again interviewed ORG , who repeated her wish to live with her father . The ORG also noted that ORG had stressed that she had made the same statement before the court of first instance and to the psychologists .

From DATE to DATE , ORG was examined by a psychologist . Again , she expressed her wish to stay with her father and older sister .

On DATE the ORG granted the action in part , ruling that ORG should live with the applicant 's former husband , and ORG should live with the applicant . The court noted that both parents were well educated and had sufficient salaries to provide for their daughters . In the course of the proceedings , both girls had been heard by the court as well as by a psychologist . They had both expressed their wish to stay with their father . However , the court agreed with CARDINAL of the experts that ORG ( then DATE ) was not mature enough to take a reasonable decision about her parental preferences . With respect to the applicant 's affiliation to the meditation centre , the court noted :

“ ORG has refused to register [ GPE ] as a religious community , suggesting that it should be registered as [ a non governmental organisation ] . There is no indication in the case file that the meditation centre has a negative influence on children or that it propagates certain intolerable views ; nor is there any evidence that the [ applicant 's ] children are involved in the activities of the centre .

The court concludes that [ the applicant 's ] active participation in the activities of the meditation centre does not have any negative impact on her children . In accordance with LAW , everyone is free to choose a religion or belief and ... to profess his religion , to perform religious practices , and to practise and teach his beliefs . ”

On DATE the ORG amended the decision , ruling that both daughters should live with their father . The court considered that too little weight had been afforded by the lower court to the express wish of ORG to live with her father . According to the appellate court , this had not complied with LAW on the Rights of the LAW or the relevant provisions of national law , which obliged the court to take into account a child 's wishes irrespective of its age . The appellate court had regard to the expert 's conclusion of DATE that the environment in which the applicant lived was unsafe , whereas the applicant 's husband was able to provide good living conditions for ORG . The recommendation by ORG to fix the place of residence of both daughters with the father was taken into account . The court also observed the girls ' wish to stay together , and to be close to other family members ( grandparents ) and friends living in GPE . Certain instances of inadequate care were noted , namely , the applicant 's failure on CARDINAL occasion to arrange for ORG 's medical assistance or to ensure her attendance at school . Finally , the appellate court observed that the first - instance court had not assessed ( nevertino ) the material submitted to ORG characterising the PERSON movement as controversial . Neither did the first - instance court give any credit to the fact that the movement had been unable to obtain registration as a religious community .

The applicant submitted a cassation appeal , alleging , inter alia , that the court 's decision was discriminatory , and that it had failed to respect her family life . She requested that her youngest daughter , ORG , live with her .

On DATE ORG dismissed the applicant 's cassation appeal . It emphasised that the rights of both parents in the education of their children were equal , regardless of their beliefs , convictions or views . The custody dispute was to be resolved taking into account the best interests of the children , in which context their wishes should be considered , regardless of their age . In assessing the significance of such wishes , the most important factor would be the children 's ability to formulate , express and substantiate their views .

ORG established that ORG had amply explained her preference to stay with her father during the entire proceedings , both in her submissions to the courts and during the interviews with the experts . She had stressed , in particular , that her mother had not taken adequate care of her , often leaving her alone and neglecting to cook meals . The girl had also expressed a preference for living in GPE , together with her sister and close to other relatives and friends . She had noted that her father spent more time with her and took better care of her . ORG emphasised that the experts had considered that the living conditions of the applicant were unsafe for children .

ORG further assessed the material conditions of accommodation offered by both parents . It was established that the applicant 's husband was able to provide his daughters with a separate room in a private cottage in the countryside near GPE .

ORG also emphasised the importance for the CARDINAL sisters to be brought up together , and underlined that close ties existed between them .

The applicant 's allegations of discrimination were dismissed as unsubstantiated . In this respect , ORG noted :

“ The applicant 's claim in her cassation appeal that the appellate court had breached the principle of non - discrimination , enshrined in LAW as well as in [ NORP law ] , by wrongly assessing the evidence on ORG and taking into account that the applicant belonged to it , is unfounded . When determining the place of residence of the CARDINAL children , whose parents live separately , ORG gave priority to the interests of the children , took into account their wishes , the ability and efforts of each parent to guarantee the basic rights of the children , and each parent 's living conditions , that is to say , those conditions in which the children would have to live once their place of residence was decided . The decision of the appellate court did not contain any indication that the resolution of the dispute was influenced by the fact that the applicant was a member of [ PERSON / GPE ] ... The appellate court only noted that the first - instance court had not assessed all the evidence regarding the meditation centre . However , that does not presuppose that the appellate court considered the applicant 's membership of the centre important in the resolution of the dispute . Had that been so , such a consideration would require an assessment of whether the prohibition of discrimination on grounds of religion was observed . In its judgments in the cases of PERSON v. GPE and GPE - GPE v. GPE , ORG ruled that the prohibition of discrimination on the basis of religion , enshrined in Articles DATE and CARDINAL of the LAW , had not been respected in cases where the courts had attached decisive importance to the [ applicant 's ] religious affiliation . However , when determining [ the custody dispute ] , the appellate court did not attach significance to the fact that the applicant was a member of [ PERSON / GPE ] . ”

NORP In an unrelated set of proceedings , ORG requested a court order obliging ORG to register it as a religious community . The action was granted by ORG on DATE . The court found no evidence that ORG propagated any controversial practices amongst its members . GPE was registered as a religious community on DATE .

DATE the Law on ORG ( PERSON teisių apsaugos pagrindų įstatymas ) , in force at the material time , provided that disputes arising over a child 's place of residence , in cases where the parents live separately , were to be resolved in court . It further stipulated that priority consideration had to be accorded to the interests and wishes of a child capable of expressing its own opinion as to which one of its parents it would wish to live with .

Article CARDINAL of LAW stipulates that , in the case of a dispute over a child 's place of residence , the court is to take into consideration the wishes and interests of the child . The child 's choice in the matter may be only disregarded if it is contrary to its best interests . Under LAW , when adjudicating disputes over children , the court must hear the child capable of expressing its views and ascertain its wishes .

On DATE the ORG of the Judges of ORG adopted a ruling “ On the application of laws in the case - law of the courts in determining the place of residence of minors when the parents are separated ” . The ruling reads :

“ CARDINAL . In deciding the dispute between separated parents over a child 's place of residence , the court hearing the case must clarify and establish the following facts of legal importance :

CARDINAL ) the opportunities and efforts of each parent to ensure the implementation of the fundamental rights and duties of the child enshrined in legal provisions ... ;

CARDINAL ) the conditions of the environment of each parent , namely , those conditions in which a child would live once its place of residence with CARDINAL of the parents had been decided ;

CARDINAL ) the wishes and views of the child . ...

( ... ) The court must also find out whether a child , over whose place of residence the dispute arose , has brothers or sisters .... The separation of brothers and sisters , especially in cases where the children have strong emotional attachments to each other and where they are fond of communicating and being together , would violate the interests of the children . ... ”

Article CARDINAL of the Code of Civil Procedure provides that a court shall make its own judgement on the probative value of evidence , based on the comprehensive and unbiased examination of that evidence in court .

On DATE the Seimas of GPE ratified the DATE United Nations Convention on the Rights of the ORG which then became an integral part of NORP law . The convention provides , in so far as relevant in the present case , the following :

“ CARDINAL . In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration .

GPE Parties undertake to ensure the child such protection and care as is necessary for his or her well - being , taking into account the rights and duties of his or her parents , legal guardians , or other individuals legally responsible for him or her , and , to this end , shall take all appropriate legislative and administrative measures .

GPE Parties shall ensure that the institutions , services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities , particularly in the areas of safety , health , in the number and suitability of their staff , as well as competent supervision . ”

“ CARDINAL . GPE Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child , the views of the child being given due weight in accordance with the age and maturity of the child .

For this purpose , the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child , either directly , or through a representative or an appropriate body , in a manner consistent with the procedural rules of national law . ”


HENKEL NEDERLAND B.V. v. THE NETHERLANDS

The applicant is a limited liability company ( besloten vennootschap met beperkte aansprakelijkheid , “ GPE ” ) having its registered seat in GPE , the GPE . It is represented before the ORG by Mr ORG PERSON , a lawyer and professor of ORG . The respondent Government are 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 limited liability company ORG instituted civil proceedings before ORG ( Arrondissementsrechtbank ) of GPE against the applicant company for alleged breach of contract ( wanprestatie ) claiming , inter alia , damages to an amount of CARDINAL NLG ( GPE guilders ) .

On DATE , ORG submitted its statement of claim ( conclusie van eis ) . In its statement of defence ( conclusie van antwoord ) , submitted on DATE , the applicant company contested ORG claim .

By interim judgment of DATE , ORG ordered the parties’ appearance ( comparitie van partijen ) at a hearing scheduled for CARDINAL DATE in order to clarify certain issues and to examine the possibilities for a settlement ( minnelijke schikking ) .

In its interlocutory judgment of CARDINAL DATE , following a hearing held on DATE , ORG invited the applicant company to prove allegations made . Pursuant to this invitation , CARDINAL witnesses for the applicant company were heard ( enquête ) before ORG on DATE . After this taking of evidence ORG scheduled the case for DATE to allow ORG to state whether it wished to submit evidence to the contrary ( uitlating contra - enquête ) . This time - limit was prolonged several times .

By letter of CARDINAL DATE , ORG lawyer informed ORG that ORG did not wish to submit evidence to the contrary and requested the court to proceed with the case .

The applicant company submitted its further conclusions as to these points of evidence ( conclusie na enquête ) on DATE , to which ORG responded on DATE . In its submissions of CARDINAL DATE , ORG further sought to amend its initial claim for damages by increasing it to NLG CARDINAL,CARDINAL.CARDINAL .

In its interlocutory judgment of CARDINAL March CARDINAL , ORG noted that ORG had failed to submit CARDINAL of the CARDINAL exhibits it had announced in connection with the amendment of its claim . After having considered the parties’ written submissions after the taking of evidence on DATE , ORG further held that the applicant company had failed to prove that it had been discharged by ORG of its contractual obligations and invited ORG to substantiate certain claims and scheduled the case for CARDINAL DATE .

ORG submitted the substantiation requested on CARDINAL DATE , in which it argued that the breach of contract had caused direct damages amounting to NLG CARDINAL,CARDINAL and additional consequential damages ( gevolgschade ) amounting to NLG CARDINAL .

In its written reply submitted to ORG on DATE , the applicant company objected to the increase of the claim . In its interim decision of CARDINAL DATE , ORG accepted an increase of the initial claim up to an amount of NLG CARDINAL but refused to take into consideration ORG additional claim for consequential damages .

The applicant company made further written submissions to ORG on DATE , as did ORG on DATE .

In its judgment of DATE , ORG found against ORG On DATE , ORG filed an appeal with ORG ( Gerechtshof ) of GPE . It was not before DATE that ORG submitted its objections against the judgment of CARDINAL DATE . The applicant company ’s reply was submitted to ORG on DATE .

In its judgment of DATE , ORG quashed the judgment of CARDINAL DATE and found against the applicant company .

In the applicant company ’s reply of CARDINAL DATE to ORG objections to the judgment of DATE , the applicant company had argued that ORG had violated principles flowing from rules of proper procedure by its failure to comply with the obligation of substantiation and had caused the proceedings to exceed the reasonable time requirement of LAW , inter alia , by having submitted its objections against the judgment of DATE after having issued the appeal summons .

In its judgment of DATE , ORG construed the applicant company ’s submissions as meaning that ORG appeal should be declared inadmissible on the ground that it had unduly prolonged the proceedings . It then rejected this argument . It held that ORG appeal had been lodged within the applicable time - limit . Moreover , the applicant company could have itself limited the delay by asking the ORG to set ORG a peremptory time - limit ( peremptoirstelling ) , of which possibility it had apparently not availed itself .

The applicant company subsequently sought legal advice as to the chances of success of an appeal on points of law to ORG ( PERSON ) . By letter of DATE , Mr H. , a lawyer practising in GPE , advised that such an appeal was likely to fail .

Insofar as the applicant company considered raising a complaint in respect of the length of the proceedings , PERSON considered that it was doubtful that ORG would accept such a complaint under LAW . He noted that ORG had rejected the argument that ORG appeal should be declared inadmissible on grounds of a finding that it had unduly prolonged the proceedings , pointing out that the applicant company could have sought a peremptory time - limit . PERSON further referred to ORG case - law according to which this provision of the LAW only created obligations for ORG and had no horizontal application between private parties .

Pursuant to LAW ) a claimant may amend the claim submitted to the civil courts throughout the proceedings . The adversary party may , however , object to such an amendment if , inter alia , this would cause an undue delay in the proceedings .

LAW states that the judge shall determine time - limits for written submissions and that , where the parties agree on this point , the judge shall respect their wishes unless this would lead to an unreasonable delay . Where CARDINAL of the parties seeks an extension of a given time - limit , which is considered unacceptable by the court or the opposing party , the court may decide to set a peremptory time - limit , i.e. a final time - limit .


The applicant , born in DATE , is a NORP national and residing in GPE . In the proceedings before the ORG , he is represented by Mr. PERSON , a lawyer practising in GPE .

On DATE , in the context of divorce proceedings before ORG ( ORG ) , the applicant and PERSON , his wife , concluded a maintenance agreement . Under the terms of this agreement , the applicant committed himself to pay maintenance for his CARDINAL children PERSON and GPE , born in wedlock in DATE and DATE , in the DATE amount of DEM CARDINAL each , and for PERSON in the DATE amount of DEM CARDINAL . The agreement also indicated the considerations underlying the calculation of the maintenance payments , in particular the applicant ’s DATE net income amounting to ORG and his personal financial needs ( ORG ) .

On DATE the applicant , represented by counsel , applied to ORG for legal aid with a view to institute proceedings against PERSON GPE , claiming that his maintenance payments for her as well as PERSON and GPE be reduced to CARDINAL as from CARDINAL DATE . He submitted that he had remarried in the meantime and that , following the birth of his daughter PERSON in DATE , he had agreed with his wife to take parental leave from DATE . His only income was therefore an educational allowance .

On DATE ORG dismissed the applicant 's request for legal aid on the ground that the intended action lacked sufficient prospect of success .

In its decision , the court stated that the action was inadmissible to the extent that the applicant 's maintenance obligations towards his children PERSON and GPE were concerned , as PERSON was not the proper defendant in this respect .

As regards his claim that his maintenance payments for PERSON be reduced , the court found that the applicant could not invoke his choice concerning the repartition of roles in his new family and resulting reduction of his income vis - à - vis PERSON In this respect , the court noted that the applicant was obliged to pay maintenance to PERSON on the ground that she took care of their CARDINAL minor children . The court , referring to the case - law of ORG ( ORG ) , stated that , for the purposes of maintenance , the divorced spouse only had to accept the termination of occupational activities in order to care for a new child , if such a repartition of roles had considerable advantages for the new family . The decisive factor in this respect was the overall amount of the family income . However , the solution envisaged by the applicant did not change the family income . It was only advantageous if his maintenance obligations towards PERSON and his minor children PERSON and GPE would be set aside . In such a situation , the applicant could not evade his primary maintenance obligations towards PERSON as well as PERSON and GPE .

On DATE ORG , upon the applicant ’s appeal ( Beschwerde ) , confirmed its decision of CARDINAL DATE .

On DATE the ORG ( Oberlandes - gericht ) dismissed the applicant 's appeal . ORG found that the impugned decision was consistent with the constant case - law of ORG . According to ORG , PERSON was entitled to maintenance under section CARDINAL of LAW ( Bürgerliches Gesetzbuch ) in order to be in a position to take care of the divorced spouses’ minor children . PERSON Referring to section DATE of LAW , ORG observed that , for the purposes of maintenance matters , a divorced spouse taking care of minor children took precedence over the second wife .

According to section CARDINAL of LAW , a divorced spouse can claim maintenance from the other divorced spouse , as long as and to the extent that , taking care of the spouses’ child , he or she can not be expected to take up gainful occupation . LAW provides that maintenance obligations of a divorced spouse may be reduced in case that the divorced spouse , given his or her earned income , assets and other financial obligations , would risk not to dispose of sufficient own financial means . In determining the maintenance entitlement of a divorced spouse under LAW , the divorced spouse takes , as a rule , precedence over a new spouse ( section DATE ) .

On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant 's constitutional complaint ( ORG ) .

Meanwhile , on DATE the applicant had accepted part - time occupation of TIME per week , with a salary of DEM CARDINAL,CARDINAL .


Violation of Art. 10;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

In DATE a controversy arose between His PERSON Prince Hans - Adam II of GPE ( “ the Prince ” ) and the GPE government on political competences in connection with the plebiscite on the question of GPE ’s accession to ORG . At the relevant time , the applicant was a member of the GPE government . Following an argument between the Prince and members of the government at a meeting on DATE , the matter was settled on the basis of a common declaration by the Prince , the Diet ( GPE ) and the government .

Following elections and the constitution of the new ORG in DATE , discussions on various constitutional issues took place between the Prince and the government , when the applicant no longer held a government office . The applicant had not stood for re - election in DATE , and he was appointed President of ORG ( PERSON ) in DATE for a fixed term of office ( see paragraph CARDINAL below ) .

On DATE , in the context of a series of lectures on questions of constitutional jurisdiction and fundamental rights , the applicant gave a public lecture at FAC , a research institute , on the “ Nature and Functions of the Liechtenstein Constitutional Court ” ( “ ORG ” ) . In the course of the lecture , the applicant expressed the view that ORG was competent to decide on the “ interpretation of the LAW in case of disagreement between the Prince ( government ) and the LAW ” ( “ GPE über die GPE der PERSON GPE ( PERSON ) und GPE ” ) .

On DATE the newspaper PERSON published an article on the lecture given by the applicant , mentioning , inter alia , his views on the competences of ORG .

On DATE the Prince addressed a letter to the applicant concerning the above lecture , as summarised in the article published in the Liechtensteiner Volksblatt .

NORP The letter , written on heraldic letter paper , read as follows :

“ FAC , DATE

PERSON

President of ORG

[ applicant ’s private address ]

Sir ,

I was astonished to read the report in the DATE issue of the Liechtensteiner Volksblatt on your lecture on the theme of the ‘ Nature and Functions of ORG . I assume that the statements you made on the ORG ’s areas of responsibility have been correctly reproduced in this report , in particular the comment that ORG can , as a court that interprets the law , be appealed to in the event of a disagreement between the Prince and the people .

You will doubtless remember the discussion between the government and me in the period before DATE , at which you were present as deputy head of government . I drew the government ’s attention during this exchange of views at FAC to the fact that it was not abiding by the LAW and read out the relevant Articles thereof . You replied that you did not agree ( or words to that effect ) with these parts of LAW in any case and that you therefore did not consider yourself bound by it . Since the other members of the government did not contradict you , I was forced to assume that the entire government was of the opinion that the CARDINAL bodies that hold supreme power , the people and the Prince , must observe the LAW and the ordinary laws but not the members of the government , who have sworn an oath of allegiance to LAW .

I considered your statement at that time and the government ’s attitude to be incredibly arrogant and therefore informed the government in no uncertain terms that it had lost my confidence . Following the compromise that was fortunately reached a little later between the government and the ORG , on the one hand , and myself , on the other , I declared that I once again had confidence in the government , doing so in the hope that individual members had realised that they had taken up an inexcusable position in relation to our LAW and now recognised that they were bound by it . Just as I would have appointed Mr PERSON head of government , had his party won the election , I appointed you President of ORG on the ORG ’s recommendation .

Unfortunately , I had to realise following the publication of the report in the Liechtensteiner Volksblatt that you still do not consider yourself bound by the LAW and hold views that are clearly in violation of both the spirit and the letter thereof . Anyone reading the relevant Articles of the LAW will be able to establish that ORG has no competence to decide as a court of interpretation in the event of a disagreement between the Prince and the people ( the ORG ) . In my eyes your attitude , PERSON , makes you unsuitable for public office . I do not intend to get involved in a long public or private debate with you , but I should like to inform you in good time that I shall not appoint you again to a public office should you be proposed by the ORG or any other body . I only hope that in your judgments as President of ORG you will abide by LAW and the ordinary laws for the rest of your term of office .

Yours sincerely ,

PERSON

Prince of GPE ”

“ PERSON , DATE . DATE

ORG Dr. PERSON

GPE der PERSON .

Verwaltungsbeschwerdeinstanz

PERSON geehrter PERSON

PERSON habe ich i m Liechtensteiner PERSON CARDINAL . Februar den ORG am GPE NORP zum Thema ‘ ORG und Aufgaben des Staatsgerichtshofes’ gelesen . PERSON an , dass ORG über die ORG in GPE Bericht korrekt wiedergegeben wurden , insbesondere jene , in der Sie feststellen , dass der Staatsgerichtshof als Interpretations - gerichtshof bei unterschiedlichen ORG und Volk angerufen werden könne .

Sie werden sich bestimmt noch an die PERSON mir vor dem CARDINAL . DATE erinnern , bei PERSON als stellvertretender GPE anwesend waren . PERSON habe damals bei der Aussprache auf PERSON die PERSON , dass sie sich nicht an die PERSON , und die entsprechenden ORG aus der PERSON vorgelesen . PERSON haben dazumal sinngemäss geantwortet , dass MONEY Teilen der GPE sowieso nicht einverstanden seien , und sich deshalb auch nicht an die GPE gebunden fühlten . PERSON die anderen PERSON nicht widersprochen haben , musste ich davon ausgehen , dass die gesamte PERSON , dass sich zwar die PERSON , ORG , an Verfassung und Gesetze zu halten haben , nicht aber die PERSON , welche einen Eid auf die GPE abgelegt haben .

PERSON habe ORG damalige Aussage sowie die ORG der PERSON als unglaubliche ORG empfunden , und deshalb habe ich der Regierung in sehr klaren PERSON mitgeteilt , dass sie mein Vertrauen verloren hat . PERSON , der glücklicherweise etwas später zwischen ORG GPE auf der einen Seite PERSON der anderen ORG erzielt wurde , habe ich der PERSON mein PERSON . PERSON habe dies auch in der PERSON getan , dass die PERSON ihre unentschuldbare GPE gegenüber unserer Verfassung eingesehen haben und die PERSON sie wieder als bindend anerkennen . PERSON ich ORG PERSON seiner Partei wiederum zum GPE ernannt hätte , so habe ich NORP über Vorschlag des Landtages zum Präsidenten der Verwaltungs - beschwerdeinstanz ernannt .

PERSON muss ich aufgrund des GPE i m Liechtensteiner Volksblatt nun feststellen , dass Sie sich nach wie vor nicht an die GPE gebunden fühlen und Auffassungen vertreten , die eindeutig gegen PERSON . PERSON einschlägigen ORG feststellen können , dass PERSON nicht NORP bei unterschiedlichen ORG zwischen ORG und Volk ( GPE ) ist . In meinen ORG sind Sie , PERSON Dr. PERSON , aufgrund ORG gegenüber der Verfassung ungeeignet für ein öffentliches ORG . PERSON habe nicht die PERSON , mich PERSON oder privat in eine lange ORG einzulassen , aber ich PERSON mitteilen , dass ich PERSON öffentliches ORG ernennen werde , sollten Sie mir DATE oder sonst irgendeinem Gremium vorgeschlagen werden . Es verbleibt mir die PERSON , dass PERSON als NORP der PERSON in GPE Urteilen an PERSON halten .

GPE vorzüglicher Hochachtung

PERSON .

PERSON GPE ”

NORP By letter of CARDINAL DATE the applicant informed the President of the ORG about the letter of CARDINAL DATE . He denied having ever made a statement to the effect that he did not consider himself bound by the LAW or parts thereof . He further explained his research on the competences of ORG in constitutional matters . According to him , the expression of an opinion not shared by the Prince could not be regarded as a failure to comply with LAW . However , taking into account the conclusions drawn by PERSON in the said letter , his office as President of ORG was called into question . The President of the ORG subsequently informed the applicant that the ORG had discussed the matter in camera and had come to the unanimous conclusion that the applicant ’s office was not called into question on account of his legal opinions as stated in the context of his lecture .

On DATE the applicant replied to the letter sent by the Prince on DATE , and enclosed a copy of his letter to the President of the ORG . He explained in particular that it was his conviction as a lawyer that his statements on the occasion of the lecture of DATE , namely that ORG was competent to decide on the interpretation of the LAW in case of a dispute between the Prince and the people ( ORG ) , were correct and did not infringe the LAW . The applicant concluded that the declaration made by the Prince that he did not intend to appoint the applicant to a public office , amounted to an interference with his rights to freedom of opinion and to freedom of thought , as guaranteed under LAW and LAW . It further called into question the constitutional right to equal access to public office and constituted an attempt to interfere with judicial independence .

NORP In his letter in reply dated DATE , the PERSON noted that PERSON PERSON had distributed the letter of CARDINAL DATE to a large group of persons . The PERSON stated that it had been his intention to avoid a public discussion in informing PERSON , in a personal letter , about his decision as early as possible . He considered that a long debate between them on the question of PERSON qualification for the office of judge was inappropriate , as PERSON had remained in office and the PERSON ’s criticism had not been directed at the decisions of ORG , but at Mr PERSON ’s general attitude towards the LAW .

The Prince added that it was left to his discretion whether or not to appoint a candidate for public office and that he was not obliged to give any reasons for such a decision . However , as he had known Mr PERSON for DATE , he had considered it appropriate to state the reasons for his decision regarding him . Moreover , the decision no longer to appoint him to the office of President of CARDINAL of the highest courts , on account of his attitude in the past as well as the opinions expressed by him , did not amount to an interference with PERSON rights to freedom of expression and to freedom of thought . All citizens were free to propose and to plead for amendments to constitutional or other legal provisions . However , PERSON , during his term of office as a member of the government and in his lecture , had not availed himself of such constitutional and democratic means , but had simply ignored those parts of the LAW with which he disagreed .

The Prince further explained that the relevant provision , namely LAW , concerned the competence of ORG to decide on the interpretation of the LAW in case of a dispute between the government and the ORG . Confusing the terms “ Government ” and “ ORG ” with “ Prince ” or “ people ” , as PERSON had done , would undermine the rule of law . As head of ORG , he was obliged to safeguard the constitutional order and the democratic rights of the people . He would be failing in his duties if he were to appoint to CARDINAL of the highest judicial offices a person whom , owing to his attitude and the statements he had made , he could not regard as being committed to upholding the LAW .

On DATE the Prince sent to the applicant , President of ORG , an open letter which was published in GPE newspapers . The PERSON noted that PERSON had made public at least part of the PERSON ’s letter of CARDINAL DATE . As this had given rise to various comments , the Prince considered it necessary to explain his point of view in an open letter .

In his opinion , in a democratic ORG based on the rule of law ( demokratischer PERSON ) , a distinction had to be drawn between freedom of expression and the means used by an individual for imposing his views in such a society . In that connection , the individual should respect the rules defined in the LAW and other statutory provisions . The Prince further stated that it was the right of PERSON , in his position as a judge , to express the opinion that the monarchy was no longer opportune ; that LAW should be amended ; that the Prince should be subject to the jurisdiction of the GPE judiciary ; and that ORG should be given supplementary competences . However , PERSON was not entitled to place himself above the existing LAW or incite ORG to lay claim to competences which were not vested in it by virtue of LAW . The Prince considered that PERSON , having regard to his education and professional experience , knew that the terms “ people ” ( “ Volk ” ) , “ ORG ” ( “ GPE ” ) , “ Government ” ( “ PERSON ” ) and “ Prince ” ( “ FAC ) and their respective rights and obligations were clearly defined in the LAW . The applicant ’s contention that these terms were interchangeable would jeopardise the LAW and the constitutional ORG as a whole .

The Prince also made reference to the political events in DATE and , lastly , he stated that , on the basis of the article in a GPE newspaper of CARDINAL DATE , he was forced to conclude that PERSON continued to have the intention of placing himself above LAW . He explained that he had therefore intended to inform PERSON , in a personal letter and as early as possible , about his decision not to appoint him to public office in future .

In DATE the applicant ’s term of office as President of ORG expired . On DATE ORG decided to propose the applicant again as President of ORG .

NORP In a letter of DATE to the President of the Diet the Prince refused to accept the proposed appointment . He explained that , considering his experiences with PERSON , he had become convinced that PERSON did not feel bound by LAW . In these circumstances , he would be failing in his duties as head of ORG if he were to appoint PERSON PERSON as President of ORG . The Prince further stated that PERSON , on account of his other professional qualifications , had made important contributions as a judge of ORG and that he ( the Prince ) could therefore understand the proposal made to a certain extent . If the ORG did not share his doubts regarding PERSON , it could elect him as associate judge of ORG .

The applicant is currently employed as a researcher by ORG .

The Principality of GPE is a constitutional , hereditary monarchy on a democratic and parliamentary basis ; the power of the ORG is inherent in and emanates from the Prince and the people and shall be exercised by both of them in accordance with the provisions of LAW ( LAW of DATE ) .

Chapter II of the LAW is entitled “ The Prince ” . In its LAW , it stipulates that the Prince is the head of the ORG and exercises his sovereign authority in conformity with the provisions of the LAW and of the other laws ; and that his person is sacred and inviolable . Further competences are laid down in LAW . According to LAW , the Prince appoints the ORG officials , in conformity with the provisions of LAW ( see LAW concerning the head of the government , the government councillors and their substitutes ; LAW concerning the president of ORG and his deputy ; LAW , in conjunction with LAW , concerning the first - instance judges ; LAW concerning the members of ORG ( Obergericht ) and ORG ( Oberster Gerichtshof ) ) . By letter of DATE , the Prince informed the GPE government that he instructed it to proceed , within its competence , with the appointment in DATE of ORG officials who , pursuant to LAW , were to be appointed by the Prince .

Chapter IV of the LAW contains the general rights and obligations of citizens of the Principality . LAW stipulates the equality of all citizens before the law , and also provides that the public offices are equally open to them , subject to observance of the legal regulations .

According to LAW , all decisions or orders by the government are subject to appeal before ORG . ORG consists of a president trained in the law and of his deputy , who are appointed by the Prince on the proposal of the ORG , and of CARDINAL appeal judges and their substitutes , who are elected by the ORG . The president and his deputy must be GPE nationals . Their term of office coincides with that of the ORG , and ends at such time as they are replaced .

According to LAW , ORG is , inter alia , competent to protect rights accorded by LAW . LAW ( Staatsgerichtshofgesetz ) provides that decisions of a court or of an administrative authority may be challenged before ORG , by alleging that there has been an infringement of constitutional rights or of rights guaranteed under LAW .

Pursuant to LAW , in conjunction with section CARDINAL of LAW , the judges of ORG are elected by the ORG ; the election of the president and the deputy president are subject to confirmation by the Prince .

Article CARDINAL of the LAW reads as follows :

“ If doubts arise as to the interpretation of specific provisions of the LAW and can not be dispelled on the basis of an agreement between the ORG and the ORG , ORG is called upon to decide on the matter . ”

“ PERSON über die GPE einzelner Bestimmungen der PERSON entstehen und nicht durch Übereinkunft zwischen der PERSON Landtage beseitigt werden können , so hat hierüber PERSON . ”

In DATE the GPE government introduced a bill in ORG with the object of amending LAW of DATE . In its comments on the provision regarding ORG competence to decide on the interpretation of specific provisions of the LAW , the government explained , inter alia , its views on the wording and purpose of LAW and in particular on the term “ Government ” which should be understood as referring to the Prince . At the preparatory stage , the Prince , in a letter addressed to the applicant , who at the time held the office of deputy head of the GPE government , had stated his disagreement with the proposed interpretation . The applicant explained the bill in ORG when it received its first reading in DATE . In the course of the discussions , the President of the ORG questioned the interpretation of LAW , as contained in the government ’s comments . The bill was passed by the ORG on DATE ; however , the Prince failed to sign it so that it did not enter into force .

Under LAW of ORG ( PERSON , LGBl DATE Nr . CARDINAL ) , judges are required to swear an oath , including the duties of loyalty to the Prince and of obedience to the laws and LAW .


Violation of Art. 14+P1-1;Not necessary to examine Art. 14+8;No violation of Art. 14+8 in connection with widow's pension;Not necessary to examine Art. 14+8 or 14+P1-1 in connection with alleged discrimination against applicant's late wife;No violation of Art. 13

The applicant is a NORP national born in DATE and living in GPE .

NORP In DATE the applicant married PERSON . They had CARDINAL children : PERSON , born on DATE , and PERSON , born on DATE . PERSON died of cancer on DATE , at DATE . The applicant is the administrator of his late wife 's estate .

PERSON had been employed as a local authority housing officer . For the greater part of her married life , she was the primary breadwinner . She had paid full social - security contributions as an employed earner until DATE , and was subsequently entitled to contribution credits as a person unfit for work . On DATE the applicant gave up work to nurse his wife and care for their children . Following his wife 's death , he worked part time DATE and DATE , for an DATE salary of MONEY ( GBP ) , but since this proved uneconomic he stopped working to care full time for the children .

On DATE the applicant applied to ORG for the payment of social - security benefits . He applied for benefits equivalent to those which a widow whose husband had died in similar circumstances to those of PERSON would have been entitled , namely a widow 's payment and a widowed mother 's allowance , payable under ORG DATE .

By a letter dated DATE , ORG informed the applicant that the benefits he had claimed did not exist for widowers , and that his claim accordingly could not be accepted as valid . The letter continued :

“ I am afraid I can only explain that the ORG says that it has no plans to introduce a widowers ' pension on the same line as the existing widows ' benefits .

It may help if I explain the current policy underlying widows ' benefits was established at a time when married women rarely worked . It is based on the assumption that women are more likely than men to have been financially dependent on their spouse 's earnings and therefore more likely on widowhood to face greater financial hardship . The benefits themselves are concentrated on those widows who are perceived to have the greatest problems , those with children and older women who may have been out of the labour market for DATE .

It is accepted that social patterns have changed considerably since the provisions were first introduced . However , it is still broadly the case that on bereavement , women are more likely than men to be in financial need . For instance , most widowers of working age will have been in employment before the death of their wives . They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work . Women on average earn less than men . So even for women who have been working , the financial loss on widowhood is likely to be significantly more than for men .

Widows ' benefits are not means tested and are paid regardless of the level of the widows ' earnings . The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings , and in some cases , very high earnings indeed . To make existing widows ' benefits provisions available to widowers would add MONEY to the DATE ORG budget . The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered , this is simply not a best use of scarce resources .

In making these points , the ORG says that it is in no way minimising the sad problems faced by widowers , in particular those left with small children to care for . For them there are already available benefits such as ORG and CARDINAL Parent Benefit , together with the range of income - related benefits , for example , Income Support for those not in full time work and ORG for low paid workers . In the ORG 's view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows ' benefits along the lines suggested . ... ”

NORP The applicant lodged a statutory appeal against this decision on DATE . ORG declined jurisdiction on the basis that no appealable decision had been made .

The applicant currently receives child benefit and , in respect of his son PERSON , received a disability living allowance and an invalid care allowance for a period following his wife 's death . He is also in receipt of a widower 's pension under PERSON occupational pension scheme . The applicant has capital , much of which is derived from a joint endowment policy ( for which he and PERSON had paid premiums ) which matured on PERSON death , from which he obtains a further income of MONEY per month . Because of his savings , the applicant does not qualify for means - tested benefits such as income support or family credit . All the social - security benefits he receives would also be received by a widow , who would in addition be paid a widow 's payment and a widowed mother 's allowance .

NORP Under GPE law , certain social - security benefits , including widow 's payment , widowed mother 's allowance and widow 's pension , are paid for out of ORG . By CARDINAL of ORG DATE ( “ the DATE LAW ) , the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of ORG by earners , employers and others , together with certain additions made to the ORG by ORG .

Male and female earners are obliged to pay the same social - security contributions in accordance with their status as employed earners or self - employed earners .

NORP Under section CARDINAL of the DATE Act , a woman who has been widowed is entitled to a widow 's payment ( a lump sum payment of GBP CARDINAL ) if :

( i ) she is under pensionable age at the time when her husband died , or he was not then entitled to a Category A retirement pension ; and

( ii ) her husband satisfied certain specified social - security contribution conditions set out in a schedule to LAW .

Under the relevant part of section CARDINAL of the DATE Act , a woman who has been widowed ( and who has not remarried ) is entitled to a mother 's allowance on certain conditions , the following being the conditions relevant to the circumstance of the present case :

( i ) her husband satisfied the contribution conditions set out in a schedule to the LAW ; and

( ii ) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband .

The widowed mother 's allowance currently amounts to GBP CARDINAL per week , with an extra GBP CARDINAL per week in respect of the eldest eligible child , and a further GBP CARDINAL per week in respect of other children .

Under LAW of the DATE Act , a woman who has been widowed ( and who is not remarried ) is entitled to a widow 's pension if her husband satisfied the contribution conditions set out in a schedule to the LAW ; and

( i ) at the date of her husband 's death she was over DATE but under DATE ; or

( ii ) she ceased to be entitled to a widowed mother 's allowance at the time she was over DATE but under DATE .

If the applicant were a woman , he could look forward to entitlement to a widow 's pension at some stage DATE , depending on when his youngest child ceased to be a dependant , at which time he would no longer be entitled to the widowed mother 's allowance .

Section CARDINAL(CARDINAL ) of the DATE Act , which applies to the applicant , provides that no entitlement to a benefit arises unless a claim for the benefit is made in the prescribed manner and within the prescribed time .

At the relevant time , the time - limits for claiming a widow 's payment and a widowed mother 's allowance were set out in ORG Regulations DATE ( Statutory Instrument CARDINAL/CARDINAL ) , Regulation CARDINAL of which provided :

“ ( CARDINAL ) The prescribed time for claiming benefits not specified in column ( CARDINAL ) of Schedule CARDINAL shall be –

( b ) DATE in the case of ... widow 's benefit ...

( CARDINAL ) The periods of TIME prescribed by paragraph ( CARDINAL ) are calculated from DATE on which , apart from satisfying the condition of making a claim , the claimant is entitled to the benefit concerned . ”

In addition , section CARDINAL(CARDINAL ) of ORG DATE provides , in relation to claims for a widow 's payment :

“ Where under subsection ( CARDINAL ) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it –

( a ) if the benefit is a widow 's payment , she shall not be entitled to it in respect of a death occurring DATE before the date on which the claim is made or treated as made ... ”

The Welfare Reform and Pensions Act DATE ( “ the DATE LAW ) introduces CARDINAL new social - security benefits , the widowed parent 's allowance and the bereavement allowance . The widowed parent 's allowance replaces the widowed mother 's allowance . The bereavement allowance replaces the widow 's pension . Both are payable to men and women who meet the relevant qualifying conditions . LAW also introduces a new social - security payment , called a bereavement payment , payable both to men and women in place of the widow 's payment .

NORP The relevant parts of the LAW came into force on DATE and allow any man whose wife dies before , on or after that date , or any woman whose husband dies on or after that date , to apply for the widowed parent 's allowance . It also allows any man whose wife dies on or after that date to apply for the bereavement payment or the bereavement allowance in exactly the same way as a woman whose husband dies on or after that date .

The transitional provisions of the DATE Act preserve the entitlements of women under LAW whose husbands died before DATE . Such women thus continue to be entitled to the widow 's payment , the widowed mother 's allowance and the widow 's pension where the relevant qualifying conditions are met .

On DATE Mr Justice PERSON delivered judgment in ORG in a case brought by CARDINAL claimants , all of whom were widowers claiming , inter alia , that their ineligibility for widows ' benefits under LAW was discriminatory contrary to LAW taken in conjunction with both LAW No . CARDINAL . CARDINAL of the claimants had been left with dependent children , with the result that the benefits at issue in their cases were the widow 's payment and the widowed mother 's allowance . The fourth claimant ( Mr Naylor ) had been left without dependent children , with the result that the benefits at issue in his case were the widow 's payment and the widow 's pension .

NORP The defendant government department conceded before ORG that there had been discrimination under LAW taken in conjunction with LAW to non - payment of the widowed mother 's allowance . As regards the question of whether the claimants ' complaints , in so far as they related to the widow 's payment and the widow 's pension , fell within the ambit of LAW commented as follows :

“ In my view , the availability of pecuniary support afforded by ORG and ORG does have a significant effect on the relationship of a family prior to the death of the spouse . They form a significant part of a family 's plans for a secure future . ...

Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse . ...

Moreover , Widow 's Payments and Widow 's Pensions form part of a congeries of provisions , all of which are designed to provide support to a surviving spouse at different stages of her life . Widow 's Payments ... are CARDINAL - off payments made immediately on bereavement . Widowed Mother 's Allowances are paid whilst she looks after dependent children and PERSON 's Pension payable in the longer term DATE when she has finished bringing up her children . Viewed as part of a package , the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband .

Accordingly , for those reasons I conclude that the failure to make Widow 's Payment and ORG available to a surviving widower falls within the ambit of LANGUAGE CARDINAL(CARDINAL ) . Thus LAW is itself engaged . ”

In dismissing the claimants ' arguments that the same complaints fell also within the ambit of LAW No . CARDINAL , Mr Justice PERSON commented :

“ ... In order to establish that the benefits in issue are their possessions , the claimants must establish a pecuniary right based upon their contributions . Absent such contributions , they have no possession within the meaning of LAW . There is no hint , in any of the cases that the [ ORG intended to depart from the fundamental principle that to come within the ambit of LAW , a property right must be established . ...

... A deceased widow 's entitlement to benefits depends upon the contributions of the deceased husband . ... A widower has no entitlement under domestic legislation arising from the contributions of his deceased spouse . He thus has no entitlement and consequently no possession within the meaning of LAW . ”

Prior to his examination of whether there was objective justification for non - payment of the widow 's pension to widowers , Mr Justice PERSON observed :

“ Only Mr PERSON 's case raises the issue of ORG . Although other claimants , in their written argument , raised the issue of future entitlement to ORG , such a claim is hypothetical , since they are too young to claim it now and may never become entitled should they re - marry , ... or should they co - habit ... ”

Mr Justice PERSON concluded that there was objective justification for the difference in treatment between widows and widowers as regards entitlement to a widow 's pension under LAW .


CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant company is based in ORG . Its business is publishing and marketing magazines , including the DATE Autoweek , which caters for readers who are interested in motoring .

On DATE , an illegal street race was held in an industrial area on the outskirts of the town of GPE . Journalists of PERSON attended this race at the invitation of its organisers .

The applicant company state that the journalists were given the opportunity to take photographs of the street race and of the participating cars and persons on condition that they guarantee that the identities of all participants would remain undisclosed . The Government , for their part , dispute the existence of any agreement involving more than a small number of organisers or participants at most .

The street race was ended by the police , who were present and eventually intervened . No arrests were made .

The applicant company intended to publish an article about illegal car races in LOC no . CARDINAL/CARDINAL of DATE . This article would be accompanied by photographs of the street race held on DATE . These photographs would be edited in such a manner that the participating cars and persons were unidentifiable , thus guaranteeing the anonymity of the participants in the race . The original photographs were stored by the applicant company on a CD - ROM , which was kept in the editorial office of a different magazine published by the applicant company ( not NORP ) .

The police and prosecuting authorities were afterwards led to suspect that CARDINAL of the vehicles participating in the street race had been used as a getaway car following a ram raid on DATE ( see paragraphs CARDINAL - CARDINAL below ) .

On TIME DATE , a police officer contacted the PERSON editorial office by telephone , summoning the editors to surrender to the police all photographic materials concerning the street race of DATE . This police officer was informed by the staff member whom she had called , namely the features chief editor ( chef reportage ) , that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race . The features chief editor further told this police officer that he thought that the press was reasonably protected against this kind of action and advised her to contact the editorial office in writing .

In TIME DATE , at TIME , QUANTITY police detectives visited the LOC editorial office and , after having unsuccessfully tried to obtain the surrender of the photographs , issued PERSON ’s editor - in - chief with a summons , within the meaning of Article CARDINALa of the Code of Criminal Procedure ( Wetboek van Strafvordering ) . This summons had been issued by the GPE public prosecutor ; it ordered the applicant company to surrender , in the context of a criminal investigation into offences defined in ORG CARDINAL - CARDINAL of LAW ( GPE ) against an unspecified person , the photographs taken on DATE during the illegal street race in GPE and all related materials . On behalf of the applicant company , ORG ’s editor - in - chief PERSON refused to surrender the photographs , considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity .

DATE , a telephone conversation took place between , on the one side , CARDINAL public prosecutors and , on the other , the lawyer of the applicant company Mr PERSON . Mr PERSON was told by the public prosecutors that “ it concerned a matter of life and death ” . No further explanation was given and Mr PERSON ’s request for written confirmation that the matter was CARDINAL of “ life and death ” was not entertained .

The police detectives and the public prosecutors threatened to detain PERSON during DATE of CARDINAL to CARDINAL DATE or even longer for having acted in violation of LAW , i.e. the offence of failure to comply with an official order ( ambtelijk bevel ) , and to seal and search the whole of the applicant company ’s LOC , if need be for DATE period and beyond , and remove all computers . The threatened search would entail financial damage for the applicant company as , during DATE , articles were to be prepared for publication on the subject of the wedding of the GPE PERSON , due to take place on DATE .

At TIME on DATE , PERSON was arrested on suspicion of having violated LAW . He was not taken to the police station but remained on the applicant company ’s LOC . After the GPE public prosecutor had arrived on these LOC and after he had been brought before the prosecutor , Mr PERSON was released at TIME

NORP The applicant company then consulted their counsel , PERSON , and a second lawyer , PERSON , the latter being a specialist in criminal procedure . At some point the CD - ROM was transferred to the ORG offices unbeknown to the public prosecutor and the police investigators . Upon this , the public prosecutor and the other persons involved went to the ORG offices .

Mr NORP spoke with the public prosecutors involved for TIME , from TIME . Taking the view that judicial authorisation was required , he sought and obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge ( rechter - commissaris ) of ORG ( rechtbank ) , who was then contacted by telephone . After having spoken with PERSON , and after having been briefed by one of the public prosecutors , the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company ’s journalistic privilege . While recognising from the outset that by law he lacked competence in the matter , he also stated that , had he had the power to do so , he would have been prepared to give an order to that effect and even to sanction a search of the offices .

On DATE at TIME , the applicant company , through Mr S. and Mr NORP and under protest , surrendered the CD - ROM containing the photographs to the public prosecutor , who formally seized it . An official receipt issued by a police officer describes it as a CD - ROM in purpose - made packaging , the packaging labelled in handwriting “ FAC , ORG [ ORG ] driving simulator , sidecar motorcycle with coffin ” . The receipt stated that Mr S. had handed over the CD - ROM under protest .

On DATE the applicant company lodged a complaint under LAW PERSON of LAW , seeking the lifting of the seizure and restitution of the CDROM , an order to the police and prosecution department to destroy copies of the data recorded on the CD - ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD - ROM .

On DATE a hearing was held before ORG during which the public prosecutor explained why the surrender of the photographs had been found necessary . The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of walls with the aid of a shovel loader , and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s ) of those robberies .

In its decision of DATE ORG granted the request to lift the seizure and to return the CD - ROM to the applicant company as the interests of the investigation did not oppose this . It rejected the remainder of the applicant company ’s complaint . It found the seizure lawful and , on this point , considered that a publisher / journalist could not , as such , be regarded as enjoying the privilege of non - disclosure ( verschoningsrecht ) under Article CARDINALa of LAW . Statutorily , the persons referred to in LAW and acknowledged as enjoying the privilege of non - disclosure were , amongst others , public notaries , lawyers and doctors . It considered that the right to freedom of expression , as guaranteed by LAW , included the right freely to gather news ( recht van vrije nieuwsgaring ) which , consequently , deserved protection unless outweighed by another interest warranting priority . It found that , in the instant case , the criminal investigation interest outweighed the right to free gathering of news in that , as explained by the public prosecutor during the hearing , the investigation at issue did not concern the illegal street race , in which context the undertaking of protection of sources had been given , but an investigation into other serious offences . ORG was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests , the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race . It found established that the data stored on the CD - ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing . It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified . ORG did not find that the seizure had been rash , although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter .

The applicant company lodged an appeal on points of law with ORG ( PERSON ) , which on DATE gave a decision declaring it inadmissible . ORG held that , as ORG had accepted the applicant company ’s complaint in so far as it related to the request to lift the seizure and to return the CD - ROM , the applicant company no longer had an interest in its appeal against the ruling of DATE . Referring to its earlier case - law ( ORG , CARDINAL DATE , PERSON ( GPE Law Reports – “ GPE ” ) DATE , no . CARDINAL , and ORG , CARDINAL DATE , GPE DATE , no . CARDINAL ) , it held that this finding was not altered by the circumstance that the complaint – apart from a request to return the CD - ROM – also contained a request to order that any print - outs or copies of the CD - ROM were to be destroyed and that data collected with the aid of the CD - ROM could not be used : neither Article CARDINALa nor any other provision of LAW provided for the possibility of obtaining a declaratory ruling that the seizure or the use of the seized item was unlawful once the item had been returned .

The order issued under LAW was closely related to a criminal investigation into a series of ram raids which had taken place on DATE , DATE and DATE . In these ram raids , cash dispensers were removed from walls using a shovel loader . A group of suspects was identified , the main suspects being A and M.

A telephone conversation involving M , tapped in the context of the investigation into those raids on DATE , revealed that M and A had participated in an illegal street race in GPE with an ORG RSCARDINAL motor car DATE .

On DATE another ram raid took place . During the incident , a bystander was threatened with a firearm . After ramming a wall , the perpetrators removed a cash dispenser and hauled it off in a lorry , which was followed closely by an ORG RSCARDINAL . The police , who had already been informed of the incident , saw the lorry stop and the driver get into an ORG , which then drove away with CARDINAL people inside . The police followed , but the ORG accelerated to QUANTITY and disappeared from view .

Article CARDINALa of the Code of Criminal Procedure reads as follows :

“ CARDINAL . If it is suspected that a crime within the meaning of LAW has been committed , the investigating officer may order a person to surrender an object if it is reasonable to suspect that the person has an object subject to seizure in his possession .

NORP The order shall not be issued to the suspect .

By virtue of their right to decline to give evidence , the following persons are not obliged to comply with an order of this nature :

a. the persons described in LAW ;

b. the persons described in LAW , insofar as surrender for seizure would violate their duty of confidentiality ;

c. the persons referred to in LAW , insofar as surrender for seizure would put them or their relatives at risk of prosecution for a criminal offence . ... ”

Article CARDINAL § CARDINAL of the Code of Criminal Procedure lists the offences in respect of which detention on remand may be ordered . These include , among others , the offences defined in Articles CARDINAL - CARDINAL of LAW ( theft , theft under aggravating circumstances , and robbery ) .

A failure to comply with an order under Article ORG constitutes an offence as defined in , as relevant to the case , Article CARDINAL ( failure to comply with an official order ) of LAW . This is an indictable offence ( misdrijf ) carrying a DATE maximum prison sentence or a fine .

Persons who , by virtue of ORG CARDINAL - CARDINAL of the Code of Criminal Procedure , enjoy the privilege of nondisclosure include

a. an accused ’s relatives , ( former ) spouse and ( former ) registered partner ( Article CARDINAL ) ;

b. persons who , by virtue of their position , profession or office , are bound to secrecy – albeit that their privilege of non - disclosure only covers matters the knowledge of which has been entrusted to them in that capacity ( LAW ; this category is traditionally considered to include doctors , advocates , clergy and notaries ) ; and

c. persons who , by giving evidence , expose themselves , their relatives to the second or third degree , their ( former ) spouse or their ( former ) registered partner to the risk of a criminal conviction ( Article CARDINAL ) .

Article CARDINALa of LAW entered into force on DATE . Prior to this date , only the investigating judge was competent to issue an order to surrender for the purposes of seizure ( former LAW ) .

Article PERSON of LAW reads as follows :

“ CARDINAL . Interested parties may lodge a written complaint about seizure , the use of seized objects , the failure to order the return , or the examination ( kennisneming ) or use of information recorded by means of an automatised device and recorded during a house search , and about the examination or use of information as referred to in Articles CARDINAL , CARDINAL , ORG and FAC [ i.e. letters and parcels sent by post , Articles CARDINAL , FAC and CARDINAL ; electronic data , such as internet traffic , recorded by CARDINAL party , ORG CARDINALi and CARDINALj ] .

The written complaint shall be lodged as soon as possible after the seizure of the object or the examination of the information at the registry of the trial court before which the case is being prosecuted or was last prosecuted . The written complaint shall not be admissible if it is lodged at a time when DATE have passed since the case prosecuted has been brought to a close .

The hearing in chambers ( raadkamer ) to examine the written complaint shall be public .

If the court considers the complaint to be well - founded , it shall give the appropriate order . ”

Until DATE , ORG did not recognise a journalistic privilege of non - disclosure . On DATE , it handed down a judgment in which it found that a journalist , when asked as a witness to disclose his source , was obliged to do so unless it could be regarded as justified , , that the interest of non - disclosure of a source outweighed the interest served by such disclosure . This principle was overturned by ORG in a landmark judgment of DATE on the basis of the principles set out in the ORG ’s judgment of DATE in the case of PERSON v. GPE . In this ruling , ORG accepted that , pursuant to LAW , a journalist was in principle entitled to non - disclosure of an information source unless , on the basis of arguments to be presented by the party seeking disclosure of a source , the judge was satisfied that such disclosure was necessary in a democratic society for CARDINAL or more of the legitimate aims set out in LAW ( Nederlandse Jurisprudentie ( ORG , “ GPE ” ) DATE , no . CARDINAL ) .

Guidelines on the position of the press in relation to police action ( ORG over de positie van de pers bij politieoptreden ) were issued by the Minister of ORG ( Minister PERSON ) on DATE . At the time of the events complained of , they provided , in relevant part :

“ CARDINAL . Seizure of journalistic material

Journalistic material may be seized in cases described in LAW . Journalists may be faced with seizure in CARDINAL ways .

NORP The police may , on the instructions of a public prosecutor ( officier van justitie ) or an assistant public prosecutor ( hulpofficier van justitie ) or not as the case may be , arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot .

There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed . In this situation , the journalist is arrested like any ordinary citizen .

If a prosecution ensues , it will be for the independent judge eventually to decide what is to be done with any seized DATE and unpublished – material .

B. Journalistic material may also be seized on the orders of an independent judge ( the investigating judge ) , if such material may – in the judge ’s opinion – serve to clarify the truth in a preliminary judicial investigation ( gerechtelijk vooronderzoek ) .

On DATE , the boards of ORG - in - Chief ( PERSON ) and GPE ( PERSON ) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials . This commission – which was composed of a professor of criminal law , the secretary of GPE , a ORG judge and an editor of a national DATE newspaper DATE concluded in its report of DATE , inter alia , that specific legislation was not necessary and that by way of making certain procedural changes – such as a preliminary assessment procedure , where it concerned the application of coercive measures in cases where the protection of sources was in issue – a number of problem areas could be resolved .

Already in DATE , PERSON DATE at the time a member of ORG of ORG ( ORG ) – had submitted a private member ’s bill ( initiatiefwetsvoorstel ) to amend LAW and LAW in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them . On DATE , after remaining dormant , this bill was eventually withdrawn without having been taken up in parliament .

On DATE , in the light of the case - law developments in this area and Recommendation No . R(CARDINAL ) CARDINAL adopted by ORG DATE ( see below ) , ORG ( College van procureurs - generaal ) adopted an ORG within the meaning of LAW of ORG ( Wet op de Rechterlijke Organisatie ) on the application by ORG of coercive measure in respect of journalists ( Aanwijzing toepassing dwangmiddelen bij journalisten ; published in ORG , no . CARDINAL ) , which entered into force on DATE for DATE . This Instruction defines who is to be considered as a “ journalist ” and sets out the pertinent principles and guidelines as regards the application of coercive measures , such as inter alia an order under LAW ORG , in respect of a journalist .

In a judgment given on DATE concerning the search of premises of a publishing company on DATE ( ORG [ National Jurisprudence Number ] PERSON ) , ORG held inter alia :

“ The right of freedom of expression , as set out in LAW , encompasses also the right to freely gather news ( see , amongst others , PERSON v. the GPE , judgment of DATE , GPE DATE , no . CARDINAL ; and Roemen and PERSON v. GPE , judgment of DATE [ ORG CARDINALIV ] ) . An interference with the right to freely gather news – including the interest of protection of a journalistic source – can be justified under LAW in so far as the conditions set out in that provision have been complied with . That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision . Secondly , the interference must serve CARDINAL of the aims mentioned in LAW . Thirdly , the interference must be necessary in a NORP society for attaining such an aim . In this , the principles of subsidiarity and proportionality play a role . In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other , less far - reaching ways ( minder bezwarende wegen ) can be followed along which this interest can be served to a sufficient degree . Where it concerns a criminal investigation , it must be considered whether the interference with the right to freely gather news is proportionate to the interest served in arriving at the truth . In that last consideration , the gravity of the offences under investigation will play a role . ”

The Court ’s judgment in the ORG case ( ORG v. the GPE , no . CARDINAL/CARDINAL , DATE ) has prompted the ORG to introduce new legislation . A bill now pending before ORG proposes to add a new LAW CARDINALa ) that would explicitly allow “ witnesses to whom information has been entrusted within the framework of the professional dissemination of news ( beroepsmatige berichtgeving ) or the gathering of information for that purpose , or the dissemination of news within the framework of participation in the public debate , as the case may be ” – that is , professional journalists in particular – to refuse to give evidence or identify sources of information . Such a right would be more limited than that enjoyed by the categories enumerated in Articles CARDINAL , CARDINAL and CARDINAL of LAW ; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest ( zwaarderwegend maatschappelijk belang ) would result from such refusal . However , persons covered by the proposed new Article CARDINALa would not be among those entitled to refuse outright to surrender items eligible for seizure : the bill proposes to include them in the enumeration contained in LAW ( paragraph CARDINAL above ) .

Several international instruments concern the protection of journalistic sources , among others , ORG , adopted at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) and the ORG on ORG by ORG ( DATE , ORG of ORG . C CARDINAL/CARDINAL ) .

ORG Recommendation No . R(CARDINAL ) CARDINAL on the right of journalists not to disclose their sources of information was adopted by ORG DATE and states , in so far as relevant :

“ [ ORG ] Recommends to the governments of member States :

to implement in their domestic law and practice the principles appended to this recommendation ,

to disseminate widely this recommendation and its appended principles , where appropriate accompanied by a translation , and

to bring them in particular to the attention of public authorities , police authorities and the judiciary as well as to make them available to journalists , the media and their professional organisations .

Appendix to Recommendation No . R ( DATE ) CARDINAL

Principles concerning the right of journalists not to disclose their sources of information

Definitions

For the purposes of this Recommendation :

a. the term ‘ journalist’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication ;

b. the term ‘ information’ means any statement of fact , opinion or idea in the form of text , sound and/or picture ;

c. the term ‘ source’ means any person who provides information to a journalist ;

d. the term ‘ information identifying a ORG means , as far as this is likely to lead to the identification of a source :

i. the name and personal data as well as voice and image of a source ,

ii . the factual circumstances of acquiring information from a source by a journalist ,

iii . the unpublished content of the information provided by a source to a journalist , and

iv . personal data of journalists and their employers related to their professional work .

Principle CARDINAL ( Right of non - disclosure of journalists )

Domestic law and practice in member GPE should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with LAW ( hereinafter : the Convention ) and the principles established herein , which are to be considered as minimum standards for the respect of this right .

ORG Right of non - disclosure of other persons )

Other persons who , by their professional relations with journalists , acquire knowledge of information identifying a source through the collection , editorial processing or dissemination of this information , should equally be protected under the principles established herein .

Principle CARDINAL ( Limits to the right of non - disclosure )

a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW . In determining whether a legitimate interest in a disclosure falling within the scope of LAW of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member GPE shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and

ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :

- an overriding requirement of the need for disclosure is proved ,

- the circumstances are of a sufficiently vital and serious nature ,

- the necessity of the disclosure is identified as responding to a pressing social need , and

- member GPE enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .

c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked .

ORG Alternative evidence to ORG sources )

In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person , authorities should consider , for the purpose of establishing the truth or otherwise of the allegation , all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist .

Principle CARDINAL ( Conditions concerning disclosures )

a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure .

b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested .

c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with LAW .

d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority .

e. Where journalists respond to a request or order to disclose information identifying a source , the competent authorities should consider applying measures to limit the extent of a disclosure , for example by excluding the public from the disclosure with due respect to LAW , where relevant , and by themselves respecting the confidentiality of such a disclosure .

Principle CARDINAL ( Interception of communication , surveillance and judicial search and seizure )

a. The following measures should not be applied if their purpose is to circumvent the right of journalists , under the terms of these principles , not to disclose information identifying a source :

i. interception orders or actions concerning communication or correspondence of journalists or their employers ,

ii . surveillance orders or actions concerning journalists , their contacts or their employers , or

iii . search or seizure orders or actions concerning the private or business LOC , belongings or correspondence of journalists or their employers or personal data related to their professional work .

b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions , although this might not have been the purpose of these actions , measures should be taken to prevent the subsequent use of this information as evidence before courts , unless the disclosure would be justified under LAW .

ORG against self - incrimination )

The principles established herein shall not in any way limit national laws on the protection against self - incrimination in criminal proceedings , and journalists should , as far as such laws apply , enjoy such protection with regard to the disclosure of information identifying a source . ”

For the precise application of the ORG , the explanatory notes specified the meaning of certain terms . As regards the term “ sources ” the following was set out :

“ c. Source

Any person who provides information to a journalist shall be considered as his or her ‘ source’ . The protection of the relationship between a journalist and a source is the goal of this Recommendation , because of the ‘ potentially chilling DATE an order of source disclosure has on the exercise of freedom of the media ( see , Eur . Court H.R. , PERSON v. GPE , DATE , para . CARDINAL ) . Journalists may receive their information from all kinds of sources . Therefore , a wide interpretation of this term is necessary . The actual provision of information to journalists can constitute an action on the side of the source , for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures . Information shall also be regarded as being ‘ provided’ when a source remains passive and consents to the journalist taking the information , such as the filming or recording of information with the consent of the source . ”

Media Legal Defence Initiative , Committee to Protect Journalists , Article CARDINAL , ORG and ORG , who were given leave by the President to intervene in the written procedure , submitted inter alia the following comparative - law information ( footnote references omitted ) :

“ Echoing the ORG scrutiny of review procedures and ORG recommendation that non - disclosure of sources be sanctionable only under ‘ judicial ORG . No . R(CARDINAL)CARDINAL , Principle MONEY ) ) , many national laws state that only courts may compel disclosure of information identifying confidential sources . The following can be taken as typical examples of legislation to this effect :

- Law on Radio and Television Broadcasting , Art . CARDINAL ( GPE ) , DATE , Law No . CARDINAL ( revisions in force DATE ) ( ORG audiovizualului ) ( only law courts may compel disclosure of a journalist ’s confidential sources ) ;

- Media Act ( GPE ) , Art . CARDINAL , CARDINAL DATE , ORG . CARDINAL ( Zakon o medijima ) ( similar ) ;

- Code of Criminal Procedure , Art . CARDINAL ( GPE ) , DATE , Law No . CARDINAL ( PERSON ) ( right to keep sources confidential is a testimonial privilege ) ;

- Law of GPE on ORG , Art . CARDINAL , DATE , ( ... ) ( disclosure may be compelled only by a ‘ court decision , in the course of a criminal proceeding’ of certain serious crimes ) ;

- Radio and Television Law , LAW ( GPE ) , DATE , Decree No . CARDINAL ( as amended DATE ) ( ORG за радиото и телевизията ) ( allowing for disclosure only in ‘ pending court proceedings or a pending proceeding instituted on an appeal from an affected person’ where court issues appropriate order ) .

Courts have stressed the same . The NORP constitutional court , investigating the compatibility of that country ’s sources laws with the standards set by ORG , has held that ‘ the legislator ... has a duty to establish , by law , also that in every case it is only the court that can decide whether the journalist must disclose the source of information.’

In GPE , search and seizure warrants may be issued only by a judge . Only when there is imminent risk may a prosecutor order such a search . The authorising judge or prosecutor must always consider the impact of the proposed action on press freedom ; and whether a search or seizure has been ordered by a judge or by a prosecutor , ex post facto judicial review must always be available .

In GPE , prior judicial review of efforts to compel information from journalists is a baseline requirement . In nearly all circumstances , law enforcement authorities must issue a subpoena to try to compel journalists to turn over information , which the journalists may then challenge in court before providing the information . In the very limited circumstances where police may proceed by search warrant ( as stated above , these include probable cause to believe the possessor of the information ‘ has committed or is committing the criminal offense to which the materials relate’ , or that the search or seizure is ‘ necessary to prevent death or serious ORG ) a judge must issue the warrant . ”