No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Serbia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The first applicant is Mr LOC born in DATE , the second applicant is PERSON born in DATE , and the third and fourth applicants are their sons , born in DATE and DATE . They are currently in GPE .

The applicants are of GPE descent and lived in the village of GPE . Following the outbreak of war in DATE , the first applicant refused to participate in the fighting and hid from the armed forces . Due to this , the other applicants were subjected to threats and beatings by NORP military . Finally , they were driven out of their home by NORP militia . They fled by train to ORG , another village in GPE . On their way , they lost a bag containing their passports and identification papers . They hid at a friend ’s home , where they remained completely isolated from the world until they travelled to GPE in DATE . They had felt harassed in GPE because of their being GPE , but they had not been subjected to any persecution , allegedly due to their isolation . They applied for asylum and permanent residence permits on arrival .

On DATE ORG ( Migrationsverket ) rejected their applications . First , the ORG found that the applicants had not proved their identity . By submitting an UNMIK certificate on their residency in GPE , they had made it plausible that they were from GPE or GPE . However , the ORG found that neither the general situation in GPE nor that in GPE was such that it in itself constituted grounds for granting asylum . Also , the ORG found that the applicants were not to be considered as refugees or as in need of any other specific protection . In regard to the applicants’ GPE ethnicity , the ORG noted that the first applicant ’s mother was NORP , that none of the family members spoke PERSON or had any contact with other GPE . In GPE , they had lived in NORP areas and had only socialised with NORP . In the ORG ’s view , it was difficult to conclude in these circumstances that the applicants would be seen as GPE upon return . Noting , furthermore , that they had not been subjected to any persecution because of their ethnicity previously , ORG concluded that they had failed to show that there was such a risk upon return .

The Board went on to assess whether the applicants’ personal situation could constitute a ground for granting residence permits . The first , second and third applicants submitted that they suffered from medical problems .

The first applicant claimed that he was hypertonic . ORG found that this was a common medical condition and that he would not be subject to any medical risk if he were to return to GPE or GPE .

The second applicant claimed that she suffered from psychological problems and submitted a certificate issued by a nurse on DATE and extracts from her medical records covering the period from DATE to CARDINAL DATE . ORG found that the certificate had not been issued in accordance with NORP regulations and did not contain any prognosis . Therefore , it was not able to assess fully the gravity of her condition or what type of care she needed . Nevertheless , it found that her condition was not life - threatening and thus could not constitute a ground for granting a residence permit .

The third applicant claimed that he also suffered from psychological problems and submitted a medical certificate issued by a senior physician on DATE . ORG found that the medical certificate did not contain any diagnosis and that it therefore could not assess whether or not the applicant could receive appropriate medical care in GPE or GPE . ORG noted that treatment for depression was offered both in GPE and GPE . It further noted that the applicant ’s health had not improved after he had received treatment in GPE and that his condition would probably only improve if he were in a more secure and stable environment .

The applicants appealed to ORG ( Migrationsdomstolen ) in GPE where they held to their earlier submissions and added the following . The whole family moved to a children ’s home in DATE , when the authorities decided that the parents did not have the ability to take care of their children under the existing circumstances . The applicants also submitted several medical certificates regarding the first , second and third applicants . According to the certificates regarding the first and second applicants , there was a risk that they might commit suicide if they were to be expelled from GPE . Regarding the second applicant , it was stated that she had earlier attempted suicide and that she showed clear signs of post - traumatic stress disorder ( PTSD ) .

According to the certificate regarding the third applicant , issued on DATE by PERSON , specialist in youth psychiatry , he was in a very bad state on arrival in GPE . He was depressed and could hardly interact with other persons . During DATE , he was in contact with the Children and ORG ( Barn- och ungdomspsykiatrin ) in PERSON , which found that he suffered from depression . His condition improved when he started school and began to play football and also had a contact person assigned . However , after ORG decision in DATE , his depression became worse again . He isolated himself at home and became apathetic . In DATE , he attempted suicide by overdose of anti - depressants . He was committed to hospital , but discharged after DATE . When the family arrived at the children ’s home in DATE , he was in very poor condition , refused to eat solid food and stayed in bed most of the time . There would be a serious risk of another suicide attempt if he were to be expelled from GPE .

On DATE ORG rejected the appeal , upholding the ORG ’s reasoning and conclusion , adding the following . The third applicant would soon be DATE . Although he suffered from severe depressive devitalisation , it could not be assumed that his psychosocial development would be damaged if he were to be expelled from GPE . Also , psychiatric care was available in both GPE and GPE , at least for those who could pay . Therefore , neither the third applicant ’s health nor his personal situation were enough to justify granting him a residence permit . This reasoning also applied to the other applicants , who were all in better health . CARDINAL of the lay judges delivered a dissenting opinion finding that the third applicant ’s health constituted a sufficient reason to grant him a residence permit . Applying the principle of respect for family life , they also found that the rest of the family should be granted a right to stay .

The applicants proceeded to ORG ( Migrationsöverdomstolen ) and submitted that they had been subjected to persecution in GPE due to their ethnicity and that this had caused their health problems . Their possibilities to receive proper care if sent back were limited , especially regarding the third applicant . Also , they would not have access to the health care system due to their ethnicity . Their health had deteriorated , as allegedly shown by several medical certificates submitted .

On DATE ORG delivered its judgment . Regarding the third applicant , the court found that the medical certificates showed that he suffered from severe mental illness , that he was unlikely to get better in the foreseeable future and that the necessary treatment presupposed that he was in a safe , secure and stable environment . Furthermore , it found that health care was available in both GPE and GPE , but that the applicant ’s health issues had arisen due to events taking place there . Considering all this , the court quashed the lower court ’s judgment and granted him a permanent residence permit . Regarding the other applicants , it upheld the lower court ’s reasoning and decision .

CARDINAL dissenting opinions were attached to the appellate court ’s judgment . In the first , CARDINAL of the judges held that the third applicant had recently turned DATE , that he therefore should be regarded as an adult and that his circumstances should be assessed separately from the other applicants . Taking this into account , and also the fact that proper health care would be available to him in GPE or GPE , the judge found that he had no right to remain in GPE . He should therefore be expelled together with the other applicants .

In the second dissenting opinion , another judge held that the medical certificates clearly showed that the first , second and third applicants in particular suffered from severe mental illness . The documents available also showed that the condition for the third applicant ’s well - being was a safe , secure and stable environment . Although he had turned DATE , the family ’s situation had to be taken as a whole . Therefore , all of the applicants should be granted permanent residence permits .

On DATE the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order . They submitted new medical certificates and argued that their conditions had worsened . On DATE ORG rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no impediments to the enforcement of the first , second and fourth applicants’ deportation order . Moreover , as the third applicant had reached the age of majority , they could no longer be granted residence permits on account of family ties to him .

On DATE the applicants requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of the first , second and fourth applicants’ deportation to GPE or GPE .

On DATE , the applicants submitted new medical certificates concerning the first , the second and the third applicants . The certificates were issued jointly by PERSON , specialist in youth psychiatry , ORG , psychologist and psychotherapist , and PERSON , trained social worker and psychotherapist and were dated DATE .

The medical certificate regarding the first applicant stated that he suffered from grave depression , insomnia and eating disorders . He had suicidal tendencies , but had not made any suicide attempts out of concern for his children . The diagnosis was grave depression and complex PTSD . According to the medical certificate regarding the second applicant , her condition was serious and possibly fatal and she would not be able to cope with a separation from her son . The prognosis was that all treatment presupposed a safe , secure and stable environment . She was diagnosed with grave depression , depressive devitalisation and complex PTSD . The medical certificate regarding the third applicant stated that he was in need of professional therapy to be able to deal with his traumatic experiences . It was not possible for him to cope without the support of his family . If his parents and his brother were to be returned to GPE or GPE , there was a grave risk that his depression would become worse and that his rehabilitation would be compromised . He was diagnosed with grave depression , depressive devitalisation and complex PTSD .

On DATE , the applicants submitted new medical certificates issued by PERSON and dated DATE . According to these , the first applicant had been feeling slightly better since the family had moved from the children ’s home to an apartment in GPE in DATE . However , he still suffered from feelings of futility and despair . The second applicant had been feeling better since the ORG ’s decision not to deport them until further notice . However , she had recently been feeling worse again due to her fear of a possible deportation . She still suffered from severe depression and PTSD and was worried about the third applicant ’s health . The third applicant had gradually been feeling better since he had been granted a residence permit . However , his positive development had been halted by the threat of disruption of the family and he showed clear signs of falling into depression again . The fourth applicant had , due to his young age , been spared the traumatic experiences in GPE . However , according to the medical certificate , a disruption of the family could be expected to cause him a severe trauma .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utlänningslagen , DATE hereafter referred to as “ the Aliens Act ” ) , as amended on DATE . The following refers to LAW in force at the relevant time .

LAW , LAW , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment LAW , LAW , of LAW ) .

NORP Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section CARDINAL of LAW ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of LAW ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

It should also be noted that LAW , LAW defines a child as a person DATE .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) .

ORG , states , inter alia , the following regarding the situation in GPE :

“ Institutional and societal discrimination persisted against ORG , ORG , and NORP communities in employment , education , social services , language use , freedom of movement , the right to return , and other basic rights . Members of the GPE PERSON and NORP communities also complained of discrimination , while GPE PERSON and GPE Montenegrin communities were nominally acknowledged through appointment of their representatives to the GPE president ’s ORG . GPE ORG leaders continued to complain that many of their community members continued to depart the country as a result of discrimination and , increasingly , an absence of economic opportunities . Members of the GPE , NORP , and NORP communities were subject to pervasive social and economic discrimination ; often lacked access to basic hygiene , medical care , and education ; and were heavily dependent on humanitarian aid for survival . Reports of violence and other crimes directed at minorities and their property persisted . There were clashes between groups of GPE NORP and GPE NORP during DATE . ”

The International Organisation for Migration ’s report “ Returning to GPE , country information ” from DATE provides the following :

“ The public health care system in GPE is still in a phase of post - war reconstruction . The rehabilitation of the mental health system is one of the priorities of the PERSON [ ... ] . However , the system faces many challenges . The number of mental health professionals is very limited and the present educational system for mental health is underdeveloped . Existing institutions also have limited access modern know - how in psychiatry . Nevertheless , there is a favourable environment for accelerating reforms , supported by ORG DATE of the MoH.

The mental health needs of the severely traumatised population are very high but there is CARDINAL psychiatrist for CARDINAL inhabitants and CARDINAL mental health worker for CARDINAL inhabitants . There are CARDINAL clinical psychologists and a small number of social workers . The psychiatric treatment provided is biologically - oriented , using pharmaceuticals and hospitalisation as the main , if not the only , tools .

This sector suffers also from the destruction of medical equipment during and since the conflict in DATE . Treatment of post - traumatic stress disorder ( PTSD ) , which became a matter of the greatest importance after the wars in GPE and the turmoil in GPE in DATE , is in desperate need of improvement . Some calculations suggest that CARDINAL people ( CARDINAL of the population ) are suffering from PTSD . The mental health care system in GPE simply does not have sufficient resources of people or facilities to respond to the need for treatment for mental health disorders .

Because of the lack of clinical psychologists and psychiatrists , there is almost no time for psychotherapy . The extreme lack of beds for chronically mentally ill people , and the lack of forensic psychiatry services aggravate the problem . There is CARDINAL child psychiatrist in the public health service to provide adolescent mental health services for a population that is overall very young . Drug addiction is also a growing problem without an adequate solution because of the lack of specialised professionals and institutions .

However , with international support , new facilities , called “ ORG , have been opened in ORG , ORG , PERSON , PERSON / a and ORG . These facilities offer protected apartments for people with minor mental health problems , as well as therapeutic and psycho - social support . In DATE the new ORG ( ICPU ) of the ORG in LOC became operational . This facility is intended to offer psychiatric treatment to people with severe mental health problems . ORG and ORG ( GPE ) will provide training support to the ICPU .

ORG offer community - based outpatient mental health services and can be found in the following cities : ORG , PERSON / a , PERSON , PERSON , PERSON , LOC , Gjilan / Gnjilane

There are neuropsychiatry wards at general hospitals for acute psychiatry in : PERSON , PERSON , ORG , PERSON / a , ORG , LOC In LOC the neuropsychiatry ward is at the ORG . The ward in LOC provides CARDINAL acute psychiatric beds , while wards in other regions provide around CARDINAL beds for psychiatric patients . In addition , there are special institutions ( SSI ) in LOC and ORG . These institutions come under the mandate of ORG ( ORG ) . They were intended to provide services to a specific population with severe learning difficulties during the previous regime but they ended up accommodating CARDINAL people with psychiatric problems . The mental health services , through the programme of protected apartments , are supporting the de - institutionalisation of patients in Gjilan / Gnjilane and Gjakovë / Djakovica , which are designed for the rehabilitation of long - term psychiatric patients . The ORG has its own programme to improve the quality of life in the institutions . ”

The Non - Governmental Organisation Praxis report “ Access to rights and integration of returnees on the basis of readmission agreements , analysis of the main problems and obstacles ” provides , inter alia , the following regarding the health care for GPE in GPE :

“ Health care

In order for a person in GPE to exercise the right to health care , he / she needs to be registered in the system of mandatory health insurance and to possess a health booklet . In addition to the proof of insurance ( employment contract , decision on the right to pension , etc . ) , one needs to present an ID card or a birth certificate ( for minors ) in order to register for insurance and issuance of a health booklet . The request is submitted at the branch office of ORG ( ORG ) as per place of permanent / temporary residence . ORG identifies GPE , who do not have a registered permanent / temporary residence in GPE , as a category of persons for whom contributions are paid from the budget of the Republic . However , the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance in effect until DATE stipulated that when applying for registration to health insurance , GPE must give a statement on belonging to this population , and the proof of temporary residence registration in addition to it .

As the said regulation was in contravention of ORG , ORG sent a request to ORG to assess the legality of this regulation . In DATE , the Rulebook on Amendments to the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance stipulating that the GPE who do not have permanent / temporary residence registered on the territory of the municipality they truly live in , may register health insurance by giving only a statement about the address at which they truly live in addition to the statement on belonging to the GPE minority . The implementation of these changes in the LAW was not uniform . Partly due to inadequate levels of information of employees in ORG branch offices throughout GPE , partly due to resistance to the concrete novelties and lack of sensitivity , the branch offices in certain municipalities refused to enable GPE to exercise the right to health insurance and issue health booklets under the above stated conditions . On behalf of its clients , ORG intervened repeatedly and pointed to the changed regulations , managing to have its clients registered . Also , as the impossibility to register permanent residence makes obtaining ORG cards impossible , the ORG branch offices request that GPE submit at least birth certificates instead of ID cards . Returnees on the basis of the readmission agreements with travel documents are allowed only access to urgent medical care for which the Republic budget funds are allocated , until regulation of the status of an insured person or until the expiry of the validity of the travel document . Returnees who fail to obtain ID cards or birth certificates for children born within the period of validity of the travel document ( e.g. re - registration into registry books or registration in birth registry book abroad was not done ) will remain outside the health care system . Only exceptionally will some ORG branch offices issue health booklets to undocumented persons and establish a provisional citizen ’s unique personal number . ”


No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

“ On TIME DATE , I was tricked into opening the door as they said that they were PERSON and Şefik , my brothers - in - law . The CARDINAL people who entered the house said they were from the anti - terrorism branch and they pulled my headscarf over my mouth . They were carrying PERSON . They asked for my daughter and said they were going to kill me and my children ... CARDINAL of them spoke NORP and said that he was from GPE . The one who was tall and thin , with white skin and black hair , strangled me with an iron cord . CARDINAL of them , who I can not describe , took off my baggy trousers and pants . I fainted from shame and fear when the other inserted a truncheon into my sexual organ ... When I woke up they were searching the house . They found money underneath the bed and took it with them ... When my son arrived he took me to a private doctor . This doctor did not draw up a report but gave me medicine and an injection . As I was not getting better he took me to the doctors at FAC [ foundation ] ... These same CARDINAL people came to my house on DATE and said that it was not good that I had complained about them ... they called their superior and a police patrol came to pick us up . My son GPE was next to me ... At the police station , an officer named PERSON was nice to us ... I was sent to the hospital . The doctor said , without examining me , that there was nothing wrong with me . After this date I was not harassed . ”

A description of the relevant domestic law at the material time can be found in GPE and Others v. GPE ( nos . CARDINAL and QUANTITY , § § CARDINAL , DATE ) .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - finding of violation sufficient

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

At the time of the events the applicant was serving in ORG . On DATE the military prosecutor filed an indictment against the applicant with ORG ( PERSON ) . He accused the applicant of wilfully disobeying his superior contrary to section CARDINAL of LAW .

On DATE ORG , composed of a military officer with no legal background and CARDINAL military judges , found the applicant guilty as charged and sentenced him to DATE and CARDINAL days’ imprisonment .

On DATE ORG rejected the applicant ’s appeal . The applicant stated that he learned of this decision on DATE when he was summoned to the prosecutor ’s office . The applicant served his prison sentence between DATE and DATE .

The relevant provisions of the LAW provide :

“ Judicial power shall be exercised by independent courts on behalf of ORG . ”

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

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

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

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

“ Military courts shall be composed of CARDINAL military judges and a military officer . ”

In a decision dated DATE and published in ORG on DATE , ORG examined the independence and impartiality of military courts on account of the presence of a military officer on the bench . ORG TIME pointed out that the officer sitting on the bench of the military criminal court was appointed on a case by case basis by his hierarchical superiors and continued to perform his other military duties while also acting as a judge . Noting that the military officer remained in the service of the military authorities , ORG found that military courts could not be considered as compatible with the principle of judicial independence guaranteed under LAW . As a result , ORG decided to repeal section CARDINAL ) of PERSON no . CARDINAL on the Composition and Functioning of Military Courts . The decision of ORG became effective DATE after its publication in the official gazette .


BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND

The applicants are PERSON , PERSON , PERSON and PERSON , all NORP citizens who live in PERSON and PERSON in GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE . The applicants were among the CARDINAL applicants in the previous PERSON and Others v. GPE case ( see judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV , pp . CARDINAL et seq . ) .

The applicants live in the alarm zone CARDINAL within a radius of CARDINAL from the nuclear power station at GPE in GPE .

On DATE , ORG ( Bundesrat ) granted to the GPE nuclear power station the operating licence for a limited period , i.e. until DATE . This decision of ORG was contested before the ORG and led to the judgment in the Balmer - Schafroth and Others case ( cited above ) .

In DATE the company which operated the nuclear power station , ORG , maintaining economic reasons , filed a request to cancel the limitation of the period of operation , and to obtain a licence for an unlimited period . The application was published in ORG , whereupon CARDINAL persons and CARDINAL organisations filed objections thereto .

ORG ( Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement ) then requested ORG , a NORP association , to examine in particular the relevance of certain cracks in the inner nuclear casing ( Kernmantel ) of the nuclear power station . In its expert opinion of DATE , numbering CARDINAL pages , the ORG concluded that the cracks endangered neither the possibility to turn off , or to cool , the reactor . The calculations of the growth in the cracks disclosed that in DATE the security would only insignificantly be reduced . Moreover , the producer had considered all possible accident combinations . The report also noted that the control programs and methods were such that they could detect such cracks and determine their size , and to do so within a time - limit before the cracks became dangerous .

Following this expert opinion , various persons applied to ORG for a complete examination of all welded joints of the nuclear casing . The “ GPE association ” , an association aiming at the closure of the GPE nuclear power station , requested PERSON , a physicist , to comment on the ORG expert opinion .

In his reply , dated DATE , the expert PERSON concluded that the “ size of the cracks may [ have been ] substantially underestimated ” , and that so far the effects of the cracks in the nuclear casing upon the security of the nuclear power station had only insufficiently been examined .

By decision of CARDINAL DATE ORG dismissed the various objections and prolonged the operating licence for DATE , i.e. until DATE . The decision considered that due to various modernisations the GPE nuclear power station had meanwhile become more secure than when it had been constructed . There were no defaults of a technical nature which would exclude a secure operation of the station . ORG ( GPE für die ORG ) had given the go - ahead , and the ORG expert opinion concluded that the cracks found did not impair the security .

The decision also noted that LAW ( Atomgesetz ) did not grant a right to an unlimited period of operation . In view of a popular consultative referendum in the GPE of GPE in DATE , in which the populace had in fact expressed itself against the GPE nuclear power station , ORG decided to grant a license for only a limited period of DATE .

On DATE , the “ GPE association ” wrote to ORG , requesting a public hearing of ORG as to the conditions for a possible closure of the GPE power station . By letter dated DATE , Mr PERSON , a ORG PERSON ) , refused the request . Annexed to the letter was a statement of ORG dealing , inter alia , with the issue of an earthquake in the GPE area . It was considered that the probability of damage to the nuclear reactor lay between ( CARDINAL - CARDINAL)xCARDINAL - DATE , a figure based on all accidents of nuclear power stations of the world resulting from earthquakes , and that indeed , the GPE nuclear power station had been constructed to withstand earthquakes . The probability of a plane crash on the nuclear power station was negligibly small .

On DATE the applicants filed with ORG a request for reconsideration of its decisions of DATE and CARDINAL DATE .

Under LAW ( a ) of the DATE LAW , a licence from the ORG is required for the construction and operation of nuclear installations and for any changes in the purpose , nature or scale of such installations . LAW provides that a license must be refused or granted subject to appropriate conditions or obligations if that is necessary in order , in particular , to protect people , the property of others or important rights . LAW provides that ORG or a body designated by it decides license applications . No appeal lies against its decisions . Section CARDINAL stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision ; ORG and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order , in particular , to protect people , the property of others and important rights ; they are also entitled to supervise compliance with these instructions .

Under ORG case - law , the safety of nuclear power plants can be considered by the ORG only in the context of its licensing procedures ( see judgments of ORG ( BGE [ Bundesgerichtsentscheide ] CARDINAL GPE , p. CARDINAL ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant is ORG ( PERSON ) ( “ the applicant organisation ” ) . The applicant organisation is represented before the ORG by its President and representative PERSON . PERSON .

organisation , may be summarised as follows .

The applicant organisation was established by Law no . DATE ( “ LAW ” ) which was amended by LAW CARDINAL of DATE and PERSON no . CARDINAL of DATE .

Prior to DATE a public notary in GPE was considered a public servant and the role and profession of notary were not recognised as a liberal profession .

On an unspecified date the applicant organisation became a member of ORG , UINL ) .

On an unspecified date the applicant organisation lodged a constitutional complaint with ORG , complaining that PERSON no . CARDINAL of DATE was unconstitutional . According to the applicant organisation , the PERSON gave the Minister of ORG control over the exercise of the profession of notary which was incompatible with the nature of liberal professions , thus infringing its rights to freedom of association . It argued that the character of its organisation was akin to that of non - profit - making organisations . It maintained that the new PERSON had applied rules applicable to public servants to the profession of notary . In particular , sections CARDINAL § DATE , CARDINAL ( f ) , CARDINAL § CARDINAL , QUANTITY and DATE , CARDINAL § CARDINAL and DATE provided for the most important decisions taken by ORG to be approved by the Minister of ORG , thus stripping it of its decision - making powers and infringing its independence . According to the applicant organisation , the PERSON gave the Minister of ORG powers that went beyond his supervisory role , subjecting notaries to hierarchical dependence . Lastly , the applicant organisation contested the age - limit imposed by the PERSON on the exercise of the profession of notary as at variance with the principle of the exercise of liberal professions .

On DATE ORG dismissed the applicant organisation ’s complaint and upheld the constitutionality of the PERSON contested . The court assessed that the basis for the restrictions on the exercise of the profession of notary , in contrast with other liberal professions , had to be found in the public effects of notaries’ actions and in the control that the ORG needed to exercise over notaries’ services in order to guarantee the interest of the community .

“ ORG decides on :

( a ) the compatibility of a law with the LAW or international agreements as provided for LAW CARDINAL ...

ORG can be seized only at the request of ... ( f ) political parties and other organisations ...

The entities designated in the first paragraph , letters ... f ... can lodge applications only on issues connected with their interests . ”

Pursuant to LAW of DATE , as amended in DATE , the profession of notary in GPE was considered a liberal profession and notaries in exercising their profession were independent and bound by the legal provisions in force . For the purpose of exercising his duties , a notary was equivalent to a public servant and enjoyed protection under the law .

The LAW sets forth the structure and bodies of the notary profession . It provides for notaries to be organised at district and national level . All practising notaries engaged within a given district must be members of the district notary chamber . The LAW provides that a notary chamber is a legal entity and as such is to be registered in accordance with the procedures prescribed for registering a legal entity . The governing bodies of district notary chambers are the general assembly of all practising notaries in the district and the council of notary chambers . The LAW describes in detail the powers of each of these bodies . Disciplinary measures such as : a reprimand , a reprimand with a warning of dismissal , and a fine , are taken by district notary chambers . The disciplinary measure of dismissal is taken by the Minister of ORG .

Section CARDINAL of the LAW establishes ORG , which is composed of notaries elected by the general assembly of district notary chambers . The central bodies of ORG are the general assembly of representatives of district notary chambers , the national council and the president . The tasks of the president and the national council are defined in ORG statute , which is approved by its general assembly . The LAW sets forth the following chief tasks of ORG : a ) to coordinate the activities of all notary chambers at district level ; b ) to represent and defend the interests of district notary chambers before state authorities and other institutions ; c ) to draft a Professional Ethics Code to be approved by the Minister of ORG ; d ) to approve the standard statute ( statuti tip ) of district notary chambers and their internal rules of procedure ; e ) to draw up and keep national and regional registers of notaries ; and f ) to determine the amount of funds to be allocated to the national council for the performance of its duties .

The LAW describes the procedure for entering and practising the notary profession . Thus , before engaging in private practice an incumbent notary has to sit an entrance examination whose overall organisation is run directly by the Minister of ORG . A notary must also obtain a licence issued by the Minister of ORG prior to entering professional practice . The appointment , transfer and removal from office of a notary are made by order of the Minister of ORG . Before assuming their duties notaries take an oath before the Minister of ORG or a duly authorised person appointed by the Minister . Under the DATE LAW from office of a notary was not conditional on age .

The LAW also contains provisions governing , inter alia , the rights and obligations of notaries . ORG , having regard to the opinion of ORG and ORG , determines the schedule of notary fees . LAW stipulates that ORG supervises notaries’ [ legal ] performance .

In DATE ORG enacted PERSON no . CARDINAL of DATE , which amended several sections of LAW . In particular , the new PERSON strengthened the role of the Minister of ORG . Sections CARDINAL § CARDINAL , CARDINAL ( f ) , CARDINAL § CARDINAL , QUANTITY and DATE , CARDINAL § CARDINAL and DATE provide for the most important decisions to be adopted by the Minister of ORG , having regard to the written opinion of ORG . Most notably , it stipulates that the transfer of a notary to another district must be authorised by the Minister of ORG . It empowers the Minister of ORG to initiate disciplinary proceedings and decide on the disciplinary measures to be taken , even though the notary chamber may refuse to impose such a measure .

Section CARDINAL introduces an upper age limit on the notary profession . A notary ’s licence will thus be removed when that notary reaches DATE .


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

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

The applicant is a veterinary doctor . On DATE , while driving to his work place in the countryside , the applicant was stopped by CARDINAL policemen , GPE and GPE . The policemen asked for the applicant ’s papers . Having established that the applicant had no driving licence , ORG took the wheel of the applicant ’s car . ST followed him in the police car , with the applicant sitting in the back seat . They drove QUANTITY and stopped on a side road in the countryside .

The applicant presented the following account of the subsequent events :

The policemen asked the applicant to take an alcohol test . The applicant requested that they replace the tip of the alcotest ( breath - analyser ) , as it might have been used by another person . This request allegedly infuriated the policemen . It appears that the applicant nonetheless took the test , and he was found not to be under the influence of alcohol .

ORG made a written record of an administrative offence , warning the applicant that he would be fined in the amount of LTL CARDINAL,CARDINAL ( about ORG CARDINAL ) for driving without a licence . The applicant having commented on the allegedly disproportionate amount of the fine , GPE hit him on the neck .

The applicant jumped out of the police car , attempting to escape . The policemen pursued him and apprehended him by using tear - gas . The applicant was then brought to the ground by a strong blow to the face by GPE . The policemen then continued to beat the applicant by kicking him on his thighs , elbows , chest , back , abdomen and crotch . The policemen having subsequently handcuffed the applicant while he was lying face - down on the ground , GPE sat on him and inflicted several blows to his head . At the same time , GPE kicked his thigh . The applicant was then taken to the police station , where the policemen continued beating him .

After the applicant ’s release from the police station TIME , he immediately went to the hospital where he was treated .

Upon the applicant ’s request , on DATE , he was examined by a medical expert . The expert found a scratch on the applicant ’s vertex ( CARDINAL×CARDINAL PERSON ) and forehead ( CARDINAL PERSON ) , bruises on his right cheek ( QUANTITY ) and left forearm ( CARDINAL PERSON ) , and a fracture of his left elbow . The expert noted that the injuries had been made by hard , blunt objects . The fracture resulted in a long - term impairment of the applicant ’s health .

On DATE the applicant filed a complaint against the police , alleging ill - treatment . On the same date the prosecution took his statement and ordered an expert medical examination , which took from DATE . The expert mentioned the same injuries as those in the examination of DATE , noting in addition that the applicant had a scratch on his upper lip .

The expert opined that the injuries had been made by CARDINAL impacts or blows . He could not unequivocally identify the mechanism whereby the injuries had been incurred . He noted that the fracture of the applicant ’s elbow and the bruise on his left forearm could have resulted either from kicking or twisting the applicant ’s arms behind his back , or by him falling on the ground and hitting his arm against a hard surface . The scratch on the applicant ’s forehead could also have been the result of the applicant hitting the ground with his head .

On DATE criminal proceedings were instituted against GPE , who was charged with abuse of office ( LAW ) , by causing the applicant medium bodily harm . In particular , GPE was suspected of having kicked the applicant while he was lying on the ground , and having hit the applicant on his head . The applicant took part in the proceedings as the victim . He did not claim pecuniary or non - pecuniary damages .

The charges brought against GPE were withdrawn , there being no indication of a crime having been committed by him . The applicant did not appeal against that decision , and GPE then took part in the other proceedings as a witness , along with several other eyewitnesses to the events .

From DATE to DATE , the medical expert examination was repeated upon the initiative of the prosecution . The expert mentioned the same injuries as those determined at the last examination and reiterated that the injuries had been made by CARDINAL impacts or blows . He further explained that the scratches on the applicant ’s forehead , vertex and lip , as well as the bruises on his right cheek , could have been caused either by the administration of blows or by the applicant hitting himself against hard objects . As to the fracture of his elbow , the expert opined that it was ‘ unlikely’ that it could have been the outcome of hitting or falling , but had ‘ most likely’ occurred when the arm of the applicant had been twisted behind his back in order to handcuff him . The bruise on his left forearm could have appeared after the tissue of the elbow had been injured by the fracture .

On DATE the prosecutor requested the applicant to undergo a psychiatric examination , referring to the possibility that , during the incident , he might have suffered epileptic seizures . The applicant was brought to the clinic , but the examination did not take place due to the absence of a qualified expert . Eventually , no examination was carried out , as the applicant refused to report to the clinic .

The investigation into the incident included the questioning of CARDINAL witnesses , several confrontations , the on - site verification of evidence , the examination of the police car allegedly damaged by the applicant ’s resistance and other measures .

On DATE ORG acquitted GPE , holding that his actions had not gone beyond those necessary in the circumstances . It accepted the version of the events given by the policemen . In particular , it was established that the applicant had been the first to attack GPE , hitting him on the nape of the neck while sitting in the back seat of the police car . GPE ’s version was corroborated by the medical evidence that he had sustained a bruise as a result . Thus , it was considered that the applicant had himself provoked the use of force by the policemen , who had then taken the applicant out of the car and had attempted to handcuff him , the applicant having actively resisted the lawful arrest . The applicant ’s resistance warranted the use by the policemen of the “ special measures ” foreseen in LAW , in order to handcuff him . The court then referred to the experts’ conclusion that the fracture of the applicant ’s elbow could have occurred as a result of his arms being pulled and twisted backwards for handcuffing . The bruises on his face and head could have been the result of the applicant actively resisting the police , whilst falling down and hitting himself against a hard surface . The court did not find it established that the applicant had been kicked or hit while lying on the ground or after being handcuffed . The court also took account of the video recording , taken by the ORG camera in the police station , showing the applicant ’s continued resistance . The court ’s conclusions were essentially based on the submissions of the accused officer , GPE , as well as those of GPE .

The applicant and the prosecutor appealed . On DATE ORG rejected their appeal . The court noted that the applicant had been the first to have recourse to violence , the subsequent use of force by GPE being the consequence of the applicant ’s aggressive behaviour . The court also held that there was no evidence that GPE had purposefully injured or tortured the applicant when trying to handcuff him . It further reiterated the lower court ’s conclusions as to the origin of the applicant ’s injuries . Finally , the court noted that the different version of the incident given by other witnesses might have been distorted by their emotional reaction to the events .

ORG and the applicant lodged cassation appeals . The prosecution argued in particular that the policemen ’s version , according to which the applicant had assaulted GPE , was not credible . The applicant had been sober , he had not disputed the fact of driving without a licence , and he had cooperated with the policemen while they wrote up the administrative offence . Moreover , the applicant had been alone . Therefore it was highly dubious that he could have assaulted CARDINAL policemen . The courts had unreasonably dismissed the submissions of CARDINAL independent witnesses , and based their conclusions on the allegations of GPE and GPE , ignoring the fact that they both had a clear interest in the outcome of the proceedings .

On DATE ORG quashed the appellate decision , remitting the case for a new examination by the appeal court . ORG noted inter alia :

“ [ T]he trial court unconditionally believed only the version of the defendant and his colleague , and dismissed the submissions of other witnesses on the ground that they had been contradictory . However , no essential contradictions were specified ...

The courts failed to assess fully whether the policeman had overstepped the legitimate limits of the use of force . LAW authorises the use of force against persons who refuse to submit to the lawful requirements of the police . ORG can be used only insofar as it is necessary to execute a professional duty , and only after all other possible means have proved themselves to be ineffective . LAW authorises the use of “ special measures ” ( specialiosios priemonės ) only in order to stop an activity giving rise to a danger to society , or to an arrest , bringing the person engaged in such activities to the police station . “ Special measures ” may be used only having regard to the nature of the offence , the personality of the offender and the particular circumstances of the situation . There is also an obligation to make efforts to avoid severe consequences , as well as to warn the person before using such measures against him . The courts did not consider the actions of GPE in the light of the requirements of the above law , or those of the Rules on Road Traffic Police [ of CARDINAL DATE ] ; the courts failed to give reasons for their conclusions regarding the right to use force , its aims and limits .

[ The applicant and GPE ] gave different accounts of the events that led to the fight . If GPE ’s version - that the applicant had violently resisted police demands - were accepted as truth ... there is no doubt that criminal proceedings should have been instituted against him . However , that was not the case . Nor was [ the applicant ] held liable for an administrative violation ...

The court of first instance acknowledged that force had been used against the applicant by GPE , in the form of applying “ special measures ” . However , the courts had failed to specify which particular measures had been used . GPE had submitted ... that he had only pushed the applicant to the ground once , had twisted his arms behind his back , and had put the handcuffs on with the assistance of GPE . This ... use of force clearly contradicts the evidence given by the medical experts , who had established that the injuries to the applicant had been caused by way of CARDINAL blows .

The fracture of the elbow might have been caused ... by twisting the arm behind the applicant ’s back and putting on the handcuffs . The applicant had also sustained other injuries . However , the courts failed to give a reasonable explanation as to the way in which the other injuries may have been caused . Assuming [ the truth of ] GPE ’s version that he had only brought the applicant down once , it remains unclear how a wide scratch on the applicant ’s vertex and the injuries [ elsewhere on his body ] were caused , as they must have originated from separate actions . [ The applicant ’s version of the cause of those injuries ] does not contradict the submissions of witnesses . Still , the court refused to believe them , and dismissed their submissions without giving a reasonable explanation , notwithstanding the fact that none of those witnesses had had any interest in giving false evidence . ”

On DATE ORG examined the case at the appeal level , upholding GPE ’s acquittal . On DATE ORG dismissed the applicant ’s cassation appeal . The courts concluded that the applicant had assaulted GPE by hitting him on the nape of the neck , and that the policemen had properly exercised their right to use force . Moreover , it was deemed highly improbable that GPE could have hit the applicant while he was in the back of the police car .

The courts recognised that ORG had not used excessive force , and that the applicant had not been beaten after being forced to the ground and handcuffed . They concluded that the evidence had been insufficient to establish GPE ’s guilt . The submissions of the applicant were considered incoherent and unreliable . While the applicant had stated during his early questioning that he had been hit and kicked on various parts of his body , subsequently he had adjusted his version in accordance with the results of the expert examinations . The evidence given by other independent witnesses was also dismissed as being too incoherent to be relied on .

The following version of the events of DATE and their legal assessment were established by the courts .

The applicant used violence against GPE in the police car , while the latter was performing his official duty . He refused to obey the order to get out of the car . When the policemen were trying to take him out by force , the applicant was kicking with his legs , breaking a door - handle . Nor did he yield after being taken out of the car . Instead , he grabbed the policemen ’s clothes and attempting to hit GPE in the face . He was thus brought down close to the police car , his hands being twisted behind his back , and he was handcuffed . As a result , the applicant sustained bodily injuries . ST did not cause any injury deliberately , other than to effect the applicant ’s submission . The use of combat action ( kovinių veiksmų panaudojimas ) in these circumstances was provoked by the unlawful actions of the applicant . There were no other measures which the officers could have employed in view of the applicant ’s resistance . In these circumstances , GPE did not exceed his authority as a police officer .

The courts also explained the origin of the injuries sustained by the applicant in the following way :

( a ) The scratch on the applicant ’s vertex ( CARDINAL×CARDINAL PERSON ) must have resulted from the applicant hitting his head on the ground during the conflict ; it may not have been the outcome of direct blows with a fist , as alleged by the applicant , because in that case he would have sustained larger bruises .

( b ) While the experts were not able to give a definite answer as to the origin of the fracture of the applicant ’s elbow , they admitted that it may have been the result of GPE and GPE twisting his arms behind his back in order to handcuff him . The version of the applicant being kicked was thus dismissed .

( c ) The bruises on the applicant ’s cheek ( QUANTITY ) and forehead ( CARDINAL PERSON ) could also have been the result of the applicant having been forced to the ground , in the course of his resistance to the policemen while they were trying to handcuff him . This version did not contradict the results of the medical examinations . Thus the applicant ’s allegation that he had suffered direct blows to his face was refuted .

( d ) Insofar as the applicant had alleged that he had been hit and kicked on other parts of the body , no signs of other blows were detected in support of these submissions .

It appears that no charges were brought against the applicant for his refusal to submit to the lawful requirements of the police , despite the fact that a report to this effect had been filed by officers GPE and GPE right after the incident .

LAW as applicable at the material time provided :

“ ... If the demands of a police officer are not complied with , the officer shall have the right to use force ( panaudoti prievartą ) , but only to the extent necessary to perform his / her official duties and only after all measures of persuasion have proved to be ineffective . ... ”

LAW envisaged the right of the police officer to order the offenders to discontinue their unlawful activities , failing which and provided all measures of persuasion were exhausted , the use of force was permitted .

Article CARDINAL of LAW further stated :

“ ... The police shall use special measures ... , in order to discontinue actions that endanger the public or to apprehend a perpetrator of such actions and bring him / her to the police station . ...

When using special measures ... an officer shall take into account the nature of the offence , the personal features of the offender and other particular circumstances of the situation . ... [ T]he police officers shall try to avoid detrimental consequences .

Before using special measures ... , and if the circumstances allow , the person concerned shall be given a warning ... ”

Article CARDINAL of LAW listed as “ special measures ” , inter alia , handcuffs , combat action ( kovinių veiksmų panaudojimas ) and gas . It specified that :

“ The police shall have the right to use handcuffs in order to apprehend the perpetrator of dangerous actions and to take him / her to the police station , when there are grounds to believe that he / she can resist or try to evade the arrest .

Handcuffs can be used when ... the actions of a person cause danger to him / herself or other people .

Combat actions can be used in order to detain a person who has committed dangerous actions or to take him / her to the police station , when such a person resists arrest or tries to evade it , as well as in cases where an offender intentionally refuses to obey the lawful requirements or resists the lawful actions of the police . ...

Gas can be used [ inter alia ] during the arrest ... ”

Article CARDINAL § CARDINAL of LAW as then in force punished abuse of office .


Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant started working as a shop assistant in DATE . From DATE until her dismissal on DATE she was employed as a shop assistant and cashier in a supermarket in GPE . She has been unemployed since then .

The applicant 's employer noted in DATE that there were irregularities concerning the accounts in the drinks department of that supermarket , in that the sum of the till receipts for empty deposit bottles which had been printed out exceeded the total value of empty deposit bottles received by the supermarket . It suspected the applicant and another employee of having manipulated the accounts .

DATE and DATE the applicant 's employer , with the help of a detective agency , carried out covert video surveillance of the supermarket 's drinks department . The camera covered the area behind the cash desk including the till , the cashier and the area immediately surrounding the cash desk . The detective agency made a video and examined the data obtained . It drew up a written report and produced several photos from the recording , which it sent to the applicant 's employer together with CARDINAL copies of the video ( CARDINAL concerning the applicant and CARDINAL concerning the other employee monitored ) .

On DATE the applicant 's employer dismissed the applicant without notice for theft . The applicant was accused of having manipulated the accounts in the drinks department of the supermarket and of having taken money ( CARDINAL euros during the period in which she had been filmed ) from the tills for herself which she had hidden in her clothes .

On DATE the applicant , who was represented by counsel throughout the proceedings , brought an action in ORG against her employer , requesting that the court find her dismissal invalid . She further claimed compensation for non - pecuniary damage she had suffered as a result of the covert video surveillance and requested to be given the videotapes , including all copies made thereof . She was granted legal aid for these proceedings .

The applicant contested having manipulated the tills or having stolen money and submitted that she had only put tips she had received from customers into her pockets . In accordance with the supermarket 's practice , she had later put these tips into a separate till where all tips received by supermarket staff were collected . She further objected to the use of the covert video surveillance , arguing that this surveillance had breached her right to protection of her privacy .

On DATE ORG dismissed the applicant 's action , having held a hearing in which it heard as witnesses the CARDINAL staff members of the defendant party involved in the applicant 's video surveillance and dismissal and having watched the video tapes submitted by the defendant party .

ORG found that the defendant party had been entitled to dismiss the applicant without notice . It considered that the defendant party had been authorised to observe the applicant by means of covert video surveillance and to use the recording obtained thereby . The losses discovered in the drinks department during stocktaking and the irregularities between the amount of money paid out for returned empty deposit bottles and the value of the full bottles sold in the market during the applicant 's working time had constituted sufficient grounds for the defendant party to order her surveillance . The defendant party 's property rights had been seriously interfered with .

In such circumstances , the video observation of an employee was lawful , as had been confirmed by ORG in its judgment of CARDINAL DATE ( file no . CARDINAL ORG CARDINAL , see ' Relevant domestic law and practice ' below ) . In case of the covert video surveillance of an employee on suspicion of theft , the employer 's fundamental right to respect for his property rights had to be weighed against the employee 's fundamental right to privacy vis - à - vis third persons , including his employer or his colleagues . Special circumstances were necessary to justify an interference with the employee 's right to privacy , which had to be proportionate .

Weighing these competing interests in the present case , ORG found that the defendant party had been entitled to put the applicant under covert video surveillance . Having regard to the organisation of work in the drinks department of the supermarket , there were no other means to protect the defendant party 's property rights . The surveillance had not been random , but carried out following suspicions of theft against CARDINAL employees . The video records obtained had been used by the management staff of the defendant party and had been submitted to the court in order to justify the applicant 's dismissal without notice . There was no risk of the records being used in a different manner . Therefore , the applicant neither had a right to non - pecuniary damage nor to be given the video tapes .

ORG , having regard to the evidence before it including the information obtained by examining the video tapes in question , found that the defendant party had had sufficient grounds to conclude that the applicant had repeatedly committed offences against its property during the relevant period . The applicant had not proven that the money she had undeniably taken from the till had been tips . In any event , it had not been necessary to hear the witnesses named by the applicant to prove that the money concerned had been tips because such tips were , in any event , also the property of the defendant party according to the work regulations in place .

On DATE the GPE ORG , which had granted the applicant legal aid , dismissed the applicant 's appeal and refused to grant her leave to appeal on points of law .

ORG , referring to the case - law of ORG ( judgment of DATE , file no . CARDINAL ORG CARDINAL , see ' Relevant domestic law and practice ' below ) , endorsed ORG finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desk area of the drinks department . Her dismissal without notice had been justified as , following the examination of the videotapes in the proceedings , the applicant had stopped contesting that she had taken money from the till on several occasions .

The covert video surveillance of the applicant had complied with section CARDINAL of ORG ( Bundesdatenschutzgesetz , see ' Relevant domestic law and practice ' below ) , which transferred Directive CARDINAL/CARDINAL/EG into domestic law . The workplace of a cashier behind the cash desk was not an area in the supermarket accessible to the public . Therefore , video surveillance thereof did not have to be made visible under section CARDINAL LAW . In any event , a cashier whose surveillance had been justified could not rely on the fact that the video surveillance had also covered customers who were standing at the cash desk and in respect of whom the covert video surveillance had not been permitted .

ORG further considered that it had not been necessary to take further evidence in the proceedings , in particular to play the videotapes , after the applicant had stopped contesting having taken money from the till and having put it in her pockets on several occasions . As this fact alone justified the applicant 's dismissal without notice , the use of the impugned videotapes as evidence in the proceedings had not been necessary . Even assuming that the defendant party had illegally obtained knowledge of the fact that the applicant had taken money from the till and even if this evidence were excluded , the defendant party had not been prevented from alleging this issue and the applicant had been obliged to reply truthfully .

Moreover , it had not been necessary to take further evidence in order to verify whether the applicant had taken only tips from the till which she had later put into another till designated for tips . An employer could not be expected to further employ a cashier who put money from the till into her pockets without keeping any records on where the money was to be found . The witnesses named by the applicant to prove that there had been a separate till for tips and that the applicant had put money into that till would not be sufficient to prove that all the money taken from the till in the drinks department had been tips and had been put into the till designated for tips .

ORG finally found that , at least at that stage of the proceedings , the applicant could not ask for the videotapes to be erased . The defendant party had a right to keep the videotapes at least until a final decision was given in the court proceedings brought by the applicant and until the admissibility and necessity of the tapes as evidence was no longer at issue ( compare section CARDINAL § CARDINAL of ORG ) .

By a decision of DATE ORG dismissed the applicant 's complaint about the refusal of ORG to grant her leave to appeal . It further dismissed the applicant 's request for legal aid as her complaint had not had reasonable prospects of success .

ORG found , in particular , that ORG had not diverged from ORG case - law . In any event , ORG had left open whether the video surveillance of the applicant had been lawful and whether the evidence obtained thereby should have been used in the proceedings before the labour courts . It had instead based its judgment on facts uncontested between the parties . As it had considered the applicant 's dismissal lawful , it had also considered her claim for damages ill - founded . The lawfulness of the video surveillance had therefore been irrelevant to the outcome of the proceedings .

On DATE the applicant lodged a constitutional complaint with ORG . She argued , in particular , that her right to privacy ( allgemeines ORG ) had been breached by the unlawful covert video surveillance , by the processing of the data obtained thereby and by their use in the proceedings before the labour courts , which had refused to order the destruction of the video recording . Moreover , she submitted that her right to a fair trial and to be heard had been violated in that the labour courts had failed to take relevant evidence . She further submitted that ORG refusal to grant her legal aid had breached her right of equal access to court .

On DATE ORG declined to consider the applicant 's constitutional complaint and dismissed the applicant 's request to be granted legal aid ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found that the applicant 's complaint had no prospects of success as there was nothing to indicate that her fundamental rights had been violated by the decisions of the labour courts .

Provisions aimed at protecting individuals against infringements of their right to privacy as a result of the way in which their personal data are handled are contained in ORG . Changes to that LAW entered into force in DATE in order to implement Directive CARDINAL of ORG and of ORG on the protection of individuals with regard to the processing of personal data and on the free movement of such data .

Section CARDINAL of ORG contains rules on the monitoring of publicly accessible areas with optic - electronic devices . Such video surveillance is lawful only in so far as it is necessary , in particular , to pursue legitimate aims for specifically defined purposes and if there are no indications of overriding the legitimate interests of the data subject PERSON ( section CARDINAL § CARDINAL no . CARDINAL ) . Suitable measures shall be taken to make it visible that the area is being monitored and to identify the controller ( section CARDINAL LAW ) . The data shall be erased as soon as they are no longer needed to achieve the purpose or if further storage would conflict with the legitimate interests of the data subject ( section CARDINAL § CARDINAL ) .

On DATE a new section CARDINAL of ORG entered into force . It codifies ( see judgment of ORG of DATE , file no . CARDINAL Ca CARDINAL/CARDINAL ) ) the previously developed case - law of ORG on video surveillance at the workplace ( see below ) . Under paragraph CARDINAL of section CARDINAL , an employee 's personal data may be collected , processed or used for employment - related purposes where necessary for decisions regarding hiring or , after hiring , for carrying out or terminating the employment contract . Employees ' personal data may be collected , processed or used to investigate criminal offences only under the following circumstances : if there is a documented , factual reason to believe that the data subject has committed a criminal offence in the course of his work ; if the collection , processing or use of such data is necessary to investigate the criminal offence ; if the employee does not have an overriding legitimate interest in ruling out the possibility of the collection , processing or use of such data , and , in particular , if the type and extent are not disproportionate to the aim pursued .

On DATE ORG rendered a leading judgment on the lawfulness of covert video surveillance in the workplace ( file no . CARDINAL AZR CARDINAL ) .

ORG , upholding the judgment rendered by ORG on DATE ( file no . CARDINAL Sa CARDINAL b/CARDINAL ) , found that the covert video surveillance of an employee by his employer interfered with the employee 's fundamental right to privacy as guaranteed by LAW , read in conjunction with LAW , which also had to be respected in the relationship between private persons , including employment relations . This right had to be weighed against the employer 's interest in securing evidence for his claim , having regard to the necessity of an effective judicial system required by the rule of law .

However , such an interference with the employee 's right to privacy was justified and did not entail an exclusion of the evidence obtained thereby in subsequent court proceedings if there was a substantiated suspicion that the employee had committed an offence or was guilty of other serious misconduct towards his employer , if less intrusive means to examine the suspicion had been exhausted , if the video surveillance was , in practice , the only means which remained to verify the suspicion and if it was not as a whole disproportionate .

ORG confirmed this judgment in several subsequent decisions ( see the decision of ORG of DATE , ORG file no . QUANTITY ; decision of DATE , file no . CARDINAL ORG CARDINAL/CARDINAL ; and decision of CARDINAL DATE , file no . CARDINAL ABR CARDINAL/CARDINAL ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed

David Scicluna;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE . They are certified public accountants acting personally and in their capacity as partners of the partnership ORG .

On an unspecified date the applicants were sued , personally and in their capacity as partners of the partnership ORG , as auditors of ORG , in a civil action by a company , ORG The latter claimed that the applicants’ audit firm had acted negligently and fraudulently in its drawing up of ORG audit report / financial statements , and was therefore liable for the losses sustained by V as a result of its reliance on those documents .

During the proceedings the applicants raised a preliminary plea to the effect that reliance by ORG on the audit report when taking a particular credit decision , and knowledge on the part of the applicants of such reliance when taking that decision , were lacking . These requirements were fundamental to this type of action .

On DATE ORG dismissed this plea in a preliminary judgment .

On DATE the applicants requested special leave to appeal the preliminary judgment under LAW ( “ COCP ” ) . On DATE , ORG in its ordinary jurisdiction granted leave to appeal .

On DATE the applicants lodged an appeal .

On DATE , having heard the parties’ arguments , ORG dismissed the appeal as out of time . It noted that while the legislator had clearly established that the time - limit for lodging an appeal against an interlocutory decree ran from the date of authorisation to appeal , in respect of an appeal against a “ judgment ” the legislator had made no distinction between a “ judgment ” and a “ partial judgment ” ( sentenża parżjali ) . It followed that the DATE time - limit which ran from the date of delivery of a judgment according to LAW applied also to appeals necessitating prior leave to appeal .

On DATE the applicants instituted constitutional redress proceedings before ORG in its constitutional jurisdiction , claiming that such an erroneous interpretation by ORG deprived them of access to court .

On DATE ORG upheld the ORG claims , finding that a right to appeal could not arise before leave to appeal had been given . Moreover , an appellant did not have to tolerate the delays of a court in giving leave to appeal . ORG interpretation had therefore deprived the applicants of access to court in violation of LAW . It declared ORG judgment null and void .

On DATE ORG , on appeal by the Attorney General , acknowledged that the interpretation given to the law had been erroneous , thereby depriving the applicants of their right to appeal at an early stage . Nevertheless , it did not uphold the first - instance judgment , since a wrong interpretation did not suffice to lead to a violation of the ORG . While reiterating that an appeal could be heard before ORG only once , it considered that the applicants had the opportunity to appeal in the civil case after the final judgment . Thus , given that a defect in first - instance proceedings could be remedied on appeal , the right to a fair hearing would similarly not be violated if a remedy which had been inappropriately denied became available at a later stage of the proceedings .

Article CARDINAL ( CARDINAL ) of LAW ( “ COCP ” ) ( LAW of LAW ) , at the relevant time , read as follows :

“ Where several issues in an action have been determined by separate judgments , appeal from any such judgments may only be entered after the final judgment and within the prescribed time , to be reckoned from the date of such final judgment ; and in such an appeal express mention of the judgment or judgments appealed from shall be made :

Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court ; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within DATE from such judgment . ”

The Article was amended in DATE , whereby the following phrase was added to the proviso :

“ and when such leave to appeal from such separate judgments is granted the time for the filing of the appeal in respect thereof shall commence to run from DATE on which the said leave is read out in open court . ”

Article CARDINAL ( CARDINAL ) of the ORG reads as follows :

“ An appeal is entered by means of an application to be filed with the registry of ORG within DATE from the date of the judgment . ”


CASE OF KAROUSSIOTIS v. PORTUGAL [Extracts]

Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, same application submitted to other procedure);Violation of Art. 8

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in GPE ( GPE ) .

On DATE she gave birth to a child in GPE whose father , PERSON , is a NORP national .

NORP In DATE the child ’s father was sentenced by the court of GPE to DATE imprisonment for drug trafficking . His exclusion from GPE having been ordered , he was deported to GPE in DATE .

The applicant and the child ’s father separated while he was in prison .

NORP In DATE , accompanied by a paternal uncle , the child went to GPE to visit his father .

On DATE the applicant travelled to GPE to collect her child . She returned alone to GPE on DATE .

In DATE the applicant lodged , with the Federal Attorney - General , a request for the child ’s return to GPE in accordance with LAW on the Civil Aspects of International Child Abduction of DATE ( “ the LAW ” ) .

On DATE the NORP public prosecution service sent a request to the NORP authorities to obtain the child ’s return , alleging that the child had been wrongfully removed from GPE in breach of LAW .

The request was served on the child ’s father , who opposed the return . A. denied , in particular , that the child ’s removal had been wrongful and stated that the decision for the child ’s trip had been taken by both parents . He explained that the child ’s movement had been decided by both parents because the child ’s mother had envisaged settling in GPE .

On DATE the ORG gave a judgment to the effect that the child should not be returned to GPE , finding that the child ’s retention in GPE was not wrongful within the meaning of LAW of LAW or of LAW ( ORG ) no . CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ( “ ORG no . CARDINAL ” ) .

On DATE the applicant appealed against the judgment before ORG arguing , among other things , that she had not been heard by ORG .

In a judgment of DATE , ORG granted the applicant ’s request . Annulling the judgment of ORG , ORG referred the case back to it , directing in particular that it should hear the child ’s mother .

The child ’s father appealed against the judgment of ORG before ORG , which dismissed his appeal on DATE .

On DATE , pursuant to an international letter of request from ORG dated DATE , the mother was heard by the GPE court .

On DATE the GPE court reported back to ORG , sending the record of the hearing .

In a judgment of CARDINAL DATE , ORG again rejected the request for the child ’s return , finding that the child ’s removal had not been wrongful as it had been agreed between the CARDINAL parents .

On DATE the applicant lodged an appeal before ORG . Her appeal was dismissed by a judgment of CARDINAL DATE .

NORP In its judgment , ORG stated :

“ ... it must be concluded that from the time when the mother of PERSON returned to GPE without her son , he began to be wrongfully retained in GPE . Her return request showed , categorically , that she did not wish her son to remain in GPE . ”

Even though ORG recognised that the case concerned a situation of wrongful retention of a child , under the terms of ORG no . CARDINAL/CARDINAL , it found it preferable for the child to remain in GPE for the following reasons :

“ The facts of the case show that the child , who has been looked after by his great - grandmother since DATE , has a particular emotional attachment to her , seeing in her a mother figure , to the point of almost forgetting the image of his mother . His great - grandmother is the person who takes care of him day - to - day , with tenderness ... The mother very rarely calls her child , and when she does so , the child does not consider it very important . The child sees his great - grandmother , at the current stage of his development , as a figure of authority who brings him security and tranquillity , as shown in his behaviour at school and in his relationships with others . He is content in the environment in which he lives and has been very successful at school . Accordingly , to change his environment and take him away from the person to whom he relates would risk causing him psychological harm ...

All the conditions are thus met for the respondent ORG to prevent the child ’s return , in the light of the child ’s best interests , which must take precedence over the free movement of children DATE even if this is done safely – in accordance with LAW b ) of LAW [ on ORG ] of DATE . Taking the view that a return to GPE would be harmful for the child , the respondent ORG has acted in accordance with LAW . ”

On DATE the public prosecutor at the PERSON court opened proceedings in respect of parental responsibilities ( regulação do poder paternal ) vis - à - vis the child . Custody was provisionally awarded to the father .

On DATE the ORG held its first conciliation hearing . As they failed to reach an agreement , the parents were requested to submit pleadings .

On DATE the applicant filed her pleadings . Submitting that the child ’s retention in GPE was wrongful , the applicant argued that ORG lacked territorial jurisdiction , as in her view the NORP courts had jurisdiction in accordance with ORG no . CARDINAL .

The child ’s father , in his pleadings of DATE , requested the court to award him custody .

On DATE the public prosecutor at ORG submitted that the decision should be deferred until the completion of the proceedings before the NORP courts concerning the child ’s return .

In a decision of DATE , the ORG amended the provisional allocation of parental authority in respect of the child , transferring it to the child ’s great - grandmother .

On DATE the applicant ( represented by her lawyer ) and the child ’s father jointly requested ORG to award custody of the child to the applicant .

On DATE the applicant requested the court to speed up the proceedings .

On DATE the child ’s father was remanded in custody in connection with an investigation into false imprisonment , extortion , drug trafficking , unlawful carrying of a weapon and theft .

On DATE the applicant reiterated her request to ORG to obtain parental authority of the child . In a decision of DATE , the court dismissed the applicant ’s request , indicating that the proceedings had been stayed .

On CARDINAL DATE the child ’s great - grandmother requested the court to grant her permanent custody of the child .

Following the judgment of ORG of CARDINAL DATE , ORG decided on CARDINAL DATE that the proceedings in respect of parental responsibilities should be resumed .

On DATE and CARDINAL DATE the applicant requested ORG to award her custody of the child , invoking her agreement with the child ’s father .

By an international letter of request , the court sought information from the NORP social services about the applicant ’s social and financial circumstances .

On DATE the ORG received the reports that had been requested from the NORP authorities . On DATE it received a report from the NORP social services showing the child ’s general situation of well - being in GPE .

To date , the proceedings are still pending before ORG .

On DATE the applicant filed a complaint with ORG alleging an infringement of ORG no . DATE . She complained about the excessive length of the proceedings before ORG , relying on LAW .

On DATE the applicant sent various documents in support of her application to ORG .

On DATE the ORG ’s ORG for ORG , ORG and ORG asked the applicant for additional information concerning the proceedings for the return of the child on grounds of wrongful removal and retention . On DATE the applicant sent that information to ORG , submitting a copy of ORG judgment of DATE .

According to the most recent information from the applicant , dating from DATE , the proceedings thus initiated before ORG were still pending .

The relevant part of LAW provides as follows :

“ CARDINAL . The Commission shall promote the general interest of the ORG and take appropriate initiatives to that end . It shall ensure the application of the ORG , and of measures adopted by the institutions pursuant to them . It shall oversee the application of Union law under the control of ORG of ORG . It shall execute the budget and manage programmes . It shall exercise coordinating , executive and management functions , as laid down in the Treaties . With the exception of the common foreign and security policy , and other cases provided for in the Treaties , it shall ensure the ORG ’s external representation . It shall initiate the ORG ’s DATE and multiannual programming with a view to achieving interinstitutional agreements . ”

Article CARDINAL of the LAW on the Functioning of ORG ( formerly LAW establishing ORG ) provides as follows :

“ If the Commission considers that a member ORG has failed to fulfil an obligation under the Treaties , it shall deliver a reasoned opinion on the matter after giving the ORG concerned the opportunity to submit its observations .

If the ORG concerned does not comply with the opinion within the period laid down by the ORG , the latter may bring the matter before ORG of ORG . ”

In addition , the relevant part of LAW ( formerly LAW establishing ORG ) provides as follows :

“ CARDINAL . ... If the ORG [ of ORG of ORG ] finds that there is an infringement it may impose a lump sum or penalty payment on the member ORG concerned not exceeding the amount specified by the ORG . The payment obligation shall take effect on the date set by the ORG in its judgment . ”

The explanatory note accompanying the complaint form to be addressed to ORG for non - compliance with ORG law explains as follows :

“ Anyone may lodge a complaint with the ORG against a member ORG about any measure ( law , regulation or administrative action ) or practice which they consider incompatible with a provision or a principle of Community law . Complainants do not have to demonstrate a formal interest in bringing proceedings . Neither do they have to prove that they are principally and directly concerned by the infringement complained of . To be admissible , a complaint has to relate to an infringement of ORG law by a member ORG . ... ”


The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in LOC . He is represented by his mother , PERSON , who exercises parental authority ( ouderlijk gezag ) over him . In the proceedings before the ORG he is represented by PERSON ORG , a lawyer practising in GPE .

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

The applicant suffers from PERSON Dystrophy ( DMD ) , a disease characterised by progressive muscle degeneration , loss of the ability to walk and often the loss of lung or cardiac functions . There is currently no known cure for ORG . Most affected people survive into DATE .

The applicant is unable to stand , walk or lift his arms , and his manual and digital functions are virtually absent . He uses an electric wheelchair to move about , both outside the home and at school . He uses an adapted joystick to control the movement of the chair as he lacks the muscle strength required to operate the standard joystick . For every act he needs or wishes to perform , including eating and drinking , he is completely dependent on assistance from third persons .

On DATE the applicant ’s parents requested their health insurance fund ( ziekenfonds ) to provide him with a “ MANUS Manipulator ” , a robotic arm specifically designed to be mounted on electric wheelchairs in order to give disabled people more autonomy in handling objects in their environment . This request was supported by a rehabilitation specialist ( revalidatiearts ) who informed the health insurance fund that when the applicant had tried out the robotic arm he had shown that he would be able to learn how to use it . Providing the applicant with the robotic arm would enable him to perform many acts unassisted , such as :

– pouring drinks and drinking ;

– picking up various remote controls and using them ;

– operating audio and video players , for example inserting and removing audio and video cassettes ;

– switching a computer and printer on and off ;

– pressing lift buttons and door bells when visiting third persons ;

– shopping ;

– making telephone calls and sending faxes ;

– picking up items off the floor or out of cupboards ;

– picking up papers and/or books and turning pages ;

– scratching himself ; and

– playing games .

Since the applicant was receiving the CARDINAL-hour assistance he required mainly from his parents , it was not possible to quantify in monetary terms the savings which would result from the use of the robotic arm . However , not long after being provided with the robotic arm , the applicant ’s dependence on the constant presence of carers would be reduced by CARDINAL to TIME a day . This would alleviate the task of the carers , who would thus be better able to continue fulfilling their task . In addition , the applicant would be able to continue living at home ( for a longer period of time ) . The total cost of the robotic arm amounted to QUANTITY ( ORG ) .

On DATE the health insurance fund rejected the request for the reason that the provision of a robotic arm was covered neither by ORG ( GPE ) , the Exceptional Medical Expenses Act ( Algemene Wet Bijzondere Ziektekosten ) nor by any other social insurance scheme .

The objection ( bezwaar ) which the applicant ’s parents filed against this decision was rejected by the health insurance fund on DATE . The insurance fund held that since LAW ( Verstrekkingenbesluit Ziekenfondsverzekering ) stipulated that insured persons were entitled to those medical devices which had been designated by ORG ( Minister PERSON , ORG ; “ the Minister ” ) , it was not allowed to provide for , pay for or make a payment towards devices other than those mentioned in LAW ( PERSON hulpmiddelen DATE ; “ the Regulation ” ) . A robotic arm was not listed in that Regulation .

The appeal lodged by the applicant ’s parents against this decision was upheld by ORG ( arrondissementsrechtbank ) of GPE on DATE . ORG considered that the health insurance fund had given too narrow an interpretation to certain provisions of the Regulation . It therefore ordered the health insurance fund to come to a new decision on the request for the robotic arm . In view of this finding ORG considered that it was not necessary to examine the arguments raised by the applicant ’s parents relating to LAW .

The health insurance fund appealed against the judgment of ORG to ORG ( ORG ) . It maintained that the robotic arm was not a medical device which could be provided pursuant to the ORG . In this connection it pointed to the fact that ORG ( College voor zorgverzekeringen ) had advised the Minister in DATE to include the robotic arm in the Regulation . However , the Minister had decided not to adopt this proposal for the time being . Obviously , if an insured person was already able to enforce a right to be provided with a robotic arm , neither the advice of ORG nor the decision of the Minister would have been necessary .

The arguments presented on behalf of the applicant in the proceedings before ORG included extensive reasoning relating to LAW .

On DATE ORG rejected the appeal . It found that the Regulation did not contain an entitlement for the applicant to be provided with a robotic arm . As to LAW held as follows :

“ The ORG is of the opinion that it has to be said that a direct and immediate link exists between [ the applicant ’s ] private life and the measure demanded from [ the health insurance fund ] , to wit the provision of a robotic arm . Taking into account the wide margin of appreciation which the ORG enjoys in these matters , it can nevertheless not be said that , when weighing the general interest , including the costs of health care , against the individual interest , the ORG could not reasonably have decided to exclude the robotic arm at issue from the package of treatment and services that persons are entitled to pursuant to ORG . ”

The above - mentioned report of ORG stated that CARDINAL persons DATE might be eligible for the robotic arm if it were to be included in the health insurance fund package . If the lifespan of a robotic arm was set at DATE , the yearly costs would amount to ORG CARDINAL per arm . It was likely that the provision of a robotic arm would also entail savings , but the exact extent of these savings was difficult to estimate .

Insurance under LAW is statutory : everyone who meets the criteria laid down in the legislation is automatically insured and consequently obliged to pay the statutory contribution . These criteria relate mainly to income ; individuals whose income exceeds a certain amount are expected to take out private insurance . Children to whose maintenance an insured person contributes at least a particular amount per week are also insured .

A person insured under LAW must register with a health insurance fund in order to obtain insurance entitlements . The nature of the care available to those covered by LAW is defined in the LAW itself and in more detail in ORG Decree and the associated ministerial regulations .

In addition , all residents of the GPE are statutorily insured under the Exceptional LAW ( Algemene Wet Bijzondere Ziektekosten ) which provides cover for very severe financial burdens as a result of serious long - term illnesses or disorders .