Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant deposited CARDINAL new roubles ( “ roubles ” ) in a savings account with the commercial bank PERSON ( “ the bank ” ) offering an interest rate of PERCENT per annum . DATE he withdraw MONEY , representing interest that had accrued on that account . After the bank announced that it was changing the interest rate , the applicant requested the closure of his account in DATE , but the bank informed him that it was unable to repay him his capital plus interest as its funds were insufficient .

The applicant brought proceedings against the bank , seeking repayment of the capital he had deposited , together with interest , a penalty payment at PERCENT per day and compensation for pecuniary damage ( in connection with the construction of a house ) and for non - pecuniary damage ( on account of health problems ) .

On DATE ORG of the town of GPE partly upheld his claims . It established that on the closure of his account the bank owed the applicant MONEY , representing the capital deposited and the interest due for DATE . After calculating the index - linked sum , it ordered the bank to pay the applicant MONEY . It further ordered a penalty payment of MONEY and awarded MONEY for non - pecuniary damage , making a total of MONEY .

NORP That decision was upheld at last instance on DATE .

NORP In a decision of the Oktyabrskiy court of DATE , the above - mentioned judgment debt was raised to MONEY in view of the failure to pay MONEY and the rate of inflation .

In the meantime , on DATE , at the request of ORG and ORG , ORG for the FAC region declared the bank insolvent .

On DATE the insolvency procedure was opened by that court and a liquidator was appointed to oversee the liquidation .

On DATE ORG approved the provisional statement of affairs based on the bank ’s financial situation at DATE .

On the basis of that statement the committee of creditors of the bank decided on DATE and DATE to distribute the assets in the first place to certain categories of creditors . Accordingly , disabled persons , Second World War veterans , individuals in need and persons having taken an active part in the liquidation process , that is to say CARDINAL persons in total ( PERCENT of creditors ) , were reimbursed by the liquidator at PERCENT of the index - linked amount of their capital together with interest . It was decided to reimburse the other creditors in the same manner , as and when further assets became available .

The applicant sent the liquidator a request for the repayment of the MONEY owed to him . In response to that request , the sum of MONEY was paid to him on DATE .

On DATE the applicant challenged , before ORG , the fact that other creditors had received repayment at PERCENT , whereas he , as a preferential creditor , had received MONEY . Relying on sections DATE of LAW DATE ( “ the DATE LAW ) , he sought the repayment of the remainder of the sum owed to him in accordance with the principle of proportional distribution . LAW provided that , where a company ’s assets were insufficient to satisfy all creditors , creditors of the same class would be paid in proportion to their respective claims . In the present case , at the date of the applicant ’s request , MONEY had been collected in the liquidation process and these funds had been used for PERCENT repayment to creditors in the various categories mentioned above ( see paragraph CARDINAL above ) .

On DATE the applicant ’s action was dismissed at first instance on the ground that the amount owed to him ( MONEY ) represented PERCENT of the assets totalling MONEY which , having been collected in the liquidation process , had been used to repay certain categories of creditor . According to the principle of proportional distribution he was therefore entitled to receive PERCENT of MONEY , i.e. MONEY . That sum had already been paid to him on DATE , whilst the remainder would be paid as and when more funds became available in the course of the ongoing liquidation process .

Hearing the case on appeal , ORG held on DATE that , contrary to the requirements of section CARDINAL of the DATE Act , the liquidator ’s list of creditors had not identified those that had priority or the corresponding sums to be paid to them separately . On the basis of the documents produced by the liquidator it was not possible to establish the applicant ’s level of priority in relation to the other creditors , and the liquidator himself had stated orally that the applicant belonged to the fifth level of priority . ORG took the view that , in deciding to repay certain categories of creditors at PERCENT , the PERSON committee had overstepped the limits of its remit under section CARDINAL of the DATE Act . By enforcing that decision and distributing the assets accordingly , the liquidator had , in turn , disregarded the requirements of sections CARDINAL and QUANTITY . Pointing out that section CARDINAL of the LAW was not open to a broad interpretation of its provisions , ORG ordered the liquidator to redress the violations thus observed within DATE and to inform it of the measures taken in that connection .

NORP The liquidator appealed on points of law to ORG for the LOC , arguing that he had distributed the assets pursuant to a decision of the PERSON committee , that the distribution had complied with LAW and that it had not therefore been in breach of the requirements of LAW ( see paragraphs CARDINAL and DATE below ) . On DATE his appeal on points of law was dismissed . Upholding the decision of CARDINAL DATE , the court stated that the liquidator should not have enforced a decision by the PERSON committee that was in breach of the law .

The enforcement of the decision of CARDINAL DATE and , in particular , the redressing of the applicant ’s financial situation , were not possible on account of the lack of assets .

In view of the failure to enforce the decision of CARDINAL DATE , the applicant filed a complaint with ORG on DATE , subsequently supplementing it with a complaint of DATE . He requested that the liquidator in person repay him the index - linked amount of the remainder of his award of MONEY , with interest and compensation for the non - pecuniary damage caused by his unlawful action .

NORP The complaints in question were examined in the context of the insolvency procedure opened against the bank .

On DATE ORG rejected the applicant ’s request on the ground that , on DATE and DATE , ORG had awarded the applicant the sum of MONEY to cover his claim and damages , and that it was not possible to rule on the same request a second time . ORG established that the applicant appeared in the list of creditors under the number CARDINAL and that , in respect of the actual capital deposited , the bank owed him a residual amount of MONEY . The court pointed out that this sum could be paid to him under the conditions laid down in DATE LAW .

On DATE judges of ORG , hearing the case on appeal , upheld the decision of CARDINAL DATE and pointed out that , in accordance with LAW of DATE that was in force at the time the applicant ’s complaints were examined , only those debts that had accrued in the course of the bank ’s operations could give rise to repayment . Accordingly , the requests for the payment of various sums to which the applicant was allegedly entitled after the bank ’s insolvency and during its liquidation could not be granted . The appellate court found that , by virtue of the judicial decisions , the applicant had secured a judgment debt of MONEY , which corresponded to the damage caused to him by the bank before it became insolvent . It added that the applicant would be able to recover this sum once sufficient assets had been realised in the liquidation process . The applicant ’s complaint was confined , in the appellate court ’s view , to the seeking of the above - mentioned sum together with penalties for non - payment .

On DATE ORG for the LOC dismissed the applicant ’s appeal on points of law on the following grounds :

“ The decision of the PERSON committee and the liquidator ’s action concerning the PERCENT repayment of debts to CARDINAL creditors ( out of the bank ’s CARDINAL creditors , whose claims amounted to MONEY ) admittedly breached the principle of proportional payment to creditors at the same level of priority , but did not cause Mr Kotov the damage he alleged , because the PERCENT satisfaction of all first - level creditors was not possible on account of the lack of assets available for distribution . The sum repaid to PERSON was thus calculated in proportion to the amount of his claim and to the assets realised in the course of the liquidation ... ”

The court further pointed out that the liquidation process was still pending and that the applicant ’s claim could thus be satisfied .

On DATE ORG confirmed the statement of affairs , as presented by the liquidator and approved by the general meeting of creditors , and closed the insolvency procedure on grounds of insufficient assets .

After the Government had been given notice of the application , the President of ORG of GPE lodged , on DATE , an application for supervisory review ( protest ) against the decisions of CARDINAL February , DATE and DATE ( see paragraphs DATE above ) , on the ground that they had been given in breach of LAW , which determined the jurisdiction of the commercial courts . Among other things , he stated that the examination of the applicant ’s complaints of DATE and DATE , in the context of the insolvency procedure opened against the bank , had been contrary to the DATE LAW such proceedings . Since those complaints had concerned a dispute between the applicant and the liquidator , they were not related to the insolvency procedure as such and the applicant should have submitted them to the courts of general jurisdiction .

On those grounds the President sought the annulment of the decisions at issue and the discontinuance of the proceedings concerning the above - mentioned complaints . On DATE the Presidium of ORG of GPE fully granted those requests , espousing the arguments raised in the application .

On DATE the applicant submitted a request for revision of the DATE decision to the same ORG . On DATE his request was dismissed as ill - founded by the Vice - President of ORG .

Under LAW , after the expiry of the period within which creditors have to file their claims , the liquidation committee draws up a provisional statement of affairs containing information on the bankrupt ’s estate , the claims filed by the creditors and the results of the examination of those claims . The statement has to be approved by the body that has taken the decision to wind up the company . If the company ’s monetary assets are insufficient to satisfy the LOC claims , the liquidation committee will sell off the estate by auction . The distribution of assets to the creditors may begin in accordance with the interim statement once it has been approved , except in respect of fifth - level creditors who will not be able to receive any money owed to them for DATE following that approval . Once all the payments have been made , the final statement of affairs is drawn up and approved in the same manner . Should the assets prove insufficient , the unsatisfied creditors may request the courts to order the owner of the company to honour their claims out of his own personal funds .

LAW , as in force prior to DATE , made a distinction CARDINAL classes of creditors , providing that payment could be made to a given class only when the creditors at the previous level had been satisfied . According to this classification the applicant belonged to the fifth class of “ other creditors ” . Article CARDINAL made no mention of a class of creditors who were pensioners , Second World War veterans or persons in need .

Under a new provision that was inserted into this LAW DATE , when a bank or other lending institution is wound up , private persons having made deposits with it are to be repaid as a first priority .

Article CARDINAL further provides that where a legal entity in liquidation has insufficient assets , they must be distributed among creditors at the same level in proportion to their respective claims .

Under section QUANTITY of the CARDINAL LAW , insolvency cases fall within the jurisdiction of the commercial courts , which examine them in accordance with the rules laid down in the LAW or , where no such rule exists , in accordance with LAW .

Under LAW of the LAW , insolvency procedures are opened in order to satisfy the LOC claims on a pari passu basis , to declare the bankrupt released from his obligations and to protect the parties from unlawful actions against each other .

Section CARDINAL § CARDINAL provides that , after a company has been declared insolvent and an insolvency procedure has been opened against it , any claims against the company ’s assets may be submitted only in the context of those proceedings .

Under section DATE , the commercial courts appoint the liquidator and , in the cases provided for by the LAW , examine the lawfulness of acts of the parties involved in the insolvency procedure . LAW lists those parties as the liquidator , the PERSON committee , the creditor , etc .

Under section CARDINAL § CARDINAL the liquidator takes control of the bankrupt ’s property , analyses the financial situation , examines the merits of the LOC claims , accepting or rejecting them , oversees the liquidation process to realise the assets , takes over the administration of the insolvent entity , sets up and heads the liquidation committee , and convenes the general meeting of creditors .

In accordance with section CARDINAL § CARDINAL , taken together with section CARDINAL § CARDINAL , candidates to the office of liquidator must be economists or lawyers or have experience of company management . They must not have a criminal record . No persons holding a position of responsibility in a company that is a debtor or creditor may be appointed . Candidates to the office of liquidator must declare their income and assets .

Under section CARDINAL § CARDINAL the liquidator may challenge any decisions of the general meeting of the LOC committee when those decisions fall outside the remit of that meeting .

Under section CARDINAL § CARDINAL , after the expiry of a DATE period within which the creditors must submit their claims against the bankrupt , the liquidator will draw up a list of the accepted and rejected claims indicating the amounts for those that have been accepted and the level of priority for each one . The list must be sent to the creditors within DATE .

Section CARDINAL establishes the various levels of priority for the distribution of the proceeds of the liquidation . Payment of the sums due to creditors at a given level is made once those at the previous level have been satisfied ( paragraph CARDINAL ) . If not enough assets are realised to pay in full the creditors at a given level , the money that is available will be paid to them pari passu in proportion to the amounts of their respective claims ( paragraph CARDINAL ) . LAW makes no mention of a class of creditors who are disabled , Second World War veterans or persons in need . Paragraph CARDINAL provides that any expenses of the liquidation , the liquidator ’s fees and the expenses of the debtor company ’s ongoing operations must take priority over the claims of first - level creditors .

Section CARDINAL provides that a creditor may challenge before the commercial courts any decision of the liquidator which , in his view , breaches his rights and legitimate interests .

Under section CARDINAL § CARDINAL , any claims that can not be satisfied because the proceeds of the liquidation are insufficient will be regarded as extinguished .

Section CARDINAL provides that the bankrupt will be regarded as wound up from the time of its exclusion from the corresponding national register , pursuant to the decision of the commercial court closing the insolvency procedure .

Section CARDINAL § CARDINAL of the DATE Act provides that creditors are entitled to seek compensation from the liquidator in respect of any damage that the latter may have caused to them by an action or omission in breach of the law .

In accordance with section QUANTITY , sub - paragraph CARDINAL , of this LAW , claims against the bankrupt may be submitted only in the context of the insolvency procedure ( see also section CARDINAL LAW ) .

Section CARDINAL provides for the same principles of distribution and pari passu repayment as section CARDINAL of the CARDINAL Act .

Under LAW , where a commercial court orders the defendant to carry out a specific act other than a transfer of property or payment of a pecuniary award , the court will indicate by whom , where and within what time - limit the act must be carried out .

Article CARDINAL provides that insolvency cases are to be examined by commercial courts in accordance with the PERSON and with the specific provisions of the insolvency legislation .

Paragraph CARDINAL , concerning the constitutionality of section CARDINAL LAW ( section CARDINAL § CARDINAL in conjunction with sections CARDINAL § CARDINAL and QUANTITY Act ) reads as follows :

“ ... when examining the claims of creditors who are private persons ... , the commercial courts do not have jurisdiction to issue binding directions of a pecuniary nature to the liquidator , acknowledging the existence of a claim or right in favour of creditors .... This limitation ... must not be interpreted as preventing the courts of general jurisdiction from examining on the merits the pecuniary claims ... of those creditors ... , in accordance with the legislation on insolvency .

Nor do the provisions at issue contain any clauses that would prevent the commercial courts from giving decisions that enable the persons concerned to secure in full their right to judicial protection in the context of insolvency procedures , especially as other provisions of LAW on insolvency ( bankruptcy ) precisely provide for the settlement of disputes through the courts ( sections CARDINAL , DATE , DATE , CARDINAL , CARDINAL et al . ) .

The refusal by a commercial court to examine a complaint on the grounds that it does not have jurisdiction ... does not prevent the creditor from applying to the courts of general jurisdiction in order to secure the protection of his rights ... The right to judicial protection , as enshrined in the LAW , must be upheld even in the absence of legislative norms establishing a division of jurisdiction between the commercial courts and the courts of general jurisdiction .

It follows from this interpretation that [ the provisions at issue ] do not prevent the courts of general jurisdiction from examining claims filed by non - corporate creditors against the liquidator and seeking ... compensation for damage , nor do they prevent the commercial courts from securing the enforcement , in accordance with the above - mentioned LAW , of the decisions taken by the courts of general jurisdiction . ... ”


Violation of P1-3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant has been a member of ORG since DATE . He stood in the parliamentary elections of DATE in the first constituency of GPE as a candidate on ORG party ’s list . He obtained CARDINAL votes and was elected as a member of parliament for a DATE term by decision no . CARDINAL/CARDINAL of ORG .

On DATE PERSON , a voter in that constituency , lodged a complaint against the applicant with ORG , the judicial body which , under LAW and CARDINAL of the LAW , had jurisdiction , inter alia , to remove a member of parliament from office in the event of disqualification . PERSON referred , in particular , to the incompatibility between the office of a member of parliament and the fact that the applicant was practising as a lawyer . This incompatibility had been enshrined in LAW for the first time on the occasion of a constitutional revision in DATE . The new LAW now states that the duties of a member of parliament are incompatible with all professional activity , although it does provide for the introduction of exceptions through legislation . However , the implementing legislation was never enacted , since , according to information submitted by the applicant , ORG voted against the draft law in DATE . Article CARDINAL § CARDINAL of the revised LAW indicated that the rule on disqualification in question would come into force once the implementing legislation provided for in LAW had been enacted and , at the latest , on DATE ( see paragraph CARDINAL below ) .

The hearing before ORG was held on DATE . Before that court , the applicant alleged , inter alia , that there had been a violation of LAW No . CARDINAL and argued that , until such time as the implementing legislation provided for in LAW had been enacted , the disqualification could not be applied . He also claimed that the disqualification could not be applied to members of parliament who had been elected prior to the revision of LAW . Submitting several documents in evidence , he added that he had ceased receiving fees as of DATE and that he was carrying out his activities free of charge , with the result that he could not be deemed to be practising a profession within the meaning of LAW .

On DATE , by judgment no . CARDINAL , ORG allowed PERSON complaint and ruled that the applicant had forfeited his seat . In particular , the court dismissed the applicant ’s argument that he could not be deemed to be practising his profession because he had not received fees for his services since the rule on disqualification had come into force . However , CARDINAL members of the court considered that “ the concept of practising a profession is very closely linked to receipt of an income , particularly through a systematic and long - term activity carried out for the purpose of ensuring [ the individual ’s ] livelihood ” . With regard to the other arguments raised by the applicant , ORG found as follows :

“ ... [ ORG is clear from ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL , paragraph CARDINAL , of the LAW , the constituent body , in adopting the rule whereby the duties of a member of parliament are incompatible with the exercise of any profession , did so not only with a view to ensuring the independence of members of parliament , but also to ensure that the latter are able to carry out their duties in the best possible conditions and without distraction ... At the same time , LAW delegated to ORG the power to introduce exceptions to the [ general ] rule of professional disqualification , in other words , the power to list those professional activities which would be compatible with the duties of a member of parliament ... In addition , [ the same provisions state that ] the rule establishing the incompatibility between the duties of a member of parliament and the practising of any profession was to come into force , at the latest , on DATE ... , even if the law indicating the professional activities that are compatible with the duties of a member of parliament had not been enacted by that date ... The only consequence of the failure to enact this legislation ... is that the rule on disqualification for members of parliament is applicable , without exception , from DATE ... Further , the argument put forward by the applicant in his submissions to the effect that the disqualification is not applicable to members of the current ORG , since this would be contrary to the constitutional principle of legitimate expectation , must be dismissed as unfounded , especially since a constitutional provision can not be set aside on the ground that it is contrary to another provision or principle of LAW . This follows from the formal equality of all provisions of the LAW and the principles arising from them , which requires that each constitutional provision be applied in a binding manner with regard to the specific area which it governs ... ”

In DATE the applicant was replaced as a member of ORG by the first substitute on his party ’s list for the first constituency of GPE .

At the time of the parliamentary elections of DATE in which the applicant was a candidate , LAW was worded as follows :

“ The duties of a member of parliament are incompatible with the functions or position of a member of a board of directors , chairperson or director general or their deputies , or of an employee of a commercial firm or enterprise enjoying special privileges or public service concessions or receiving a regular ORG subsidy . ”

The new LAW provides :

“ CARDINAL . ... [ paragraph CARDINAL ] The duties of a member of parliament are also incompatible with the exercise of any profession . Activities compatible with parliamentary office , as well as matters relating to insurance and pension issues and to the manner in which members of parliament return to their profession at the end of their parliamentary term , shall be specified by law . ...

[ paragraph CARDINAL ] Violation of the provisions of the present paragraph shall result in forfeiture of parliamentary office and shall render related contracts or other acts null and void , as specified by law .

The transitional provision of LAW provides :

“ The incompatibility of parliamentary office with the exercise of any profession , provided for by the penultimate paragraph of LAW , shall come into force upon promulgation of the law provided for in the same provision and on DATE at the latest . ”

In DATE the present government announced its intention to carry out a further revision of the LAW . On DATE Mr ORG , the current Prime Minister , presented the broad outlines of the proposed revision to his party ’s parliamentary group . He stated , inter alia : “ recent experience shows that it is necessary to amend the constitutional provision on the professional disqualification of members of parliament ; we propose lifting the absolute prohibition and replacing it with a partial prohibition . ”

During the sittings of CARDINAL and DATE of the parliamentary committee responsible for preparing the revision of the LAW , members of the opposition expressed their views as follows ( extracts ) :

PERSON :

“ I suggest adding a provision to LAW which would read as follows : the duties of a member of parliament are incompatible with the exercise of any professional activity . ”

Mr PERSON :

“ Constitutional provision : a member of parliament may not exercise any other profession . ”

Mr Varvitsiotis :

“ I believe that a member of parliament should not exercise any other professional activity during his or her term of office . ”

In its final report of CARDINAL DATE , the above - mentioned parliamentary committee proposed that LAW be amended , and expressed its opinion as follows :

“ It is proposed , by a large majority , to revise LAW in order to redefine the work , powers and activities which are incompatible with the duties of a member of parliament in order to take account of current information about the ORG ’s role in the economy . Forfeiture of CARDINAL ’s parliamentary seat is also foreseen as a sanction for exceeding the limit set on election expenditure . ”

In its report of DATE , the parliamentary committee responsible for preparing the revision of the LAW after the elections of DATE made no mention of the introduction of an absolute professional disqualification .

At the sitting of DATE , PERSON , a member of the majority parliamentary party and a former Minister of ORG , spoke as follows ( extract ) :

“ What type of ORG do you want ? Do you want to exclude scientists and well - known figures ? ... This prohibition exists in no other country ... You will find yourselves in the dock at ORG , since a legislative prohibition on being elected to ORG on the ground of one ’s profession amounts to a breach of every citizen ’s personality rights ... ”

At the sitting of DATE , Mr PERSON , a member of parliament , then spokesperson for the opposition and currently Minister of the Interior , stated ( extract ) :

“ ... The initial philosophy underlying the revision of this Article was that members of parliament could exercise professional activities with the exception of those prohibited by LAW ; this is the logic of the decision [ that we adopted within the revision committee ] . Yet now , before a plenary sitting of the ORG , you are putting forward a position that is the exact opposite of that ... All of a sudden , in the middle of the procedure , you are introducing an amendment which , in reality , completely overturns the content of the revision of LAW ... This is not a simple amendment , but a total reversal of the logic underlying the revision of LAW . ”

NORP Several legislative systems make it incompatible to hold a seat in ORG and simultaneously to hold senior office in the executive branch ( Head of ORG , Prime Minister , Minister or Minister of ORG ) or high office within the judiciary ( president or member of a constitutional or supreme court , of an administrative court , of the ORG d’Etat or of another specialised senior court , such as ORG ) . This is the case , for example , in GPE ( Articles CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL of LAW ) , GPE ( LAW ) , GPE ( LAW and section CARDINAL of the DATE implementing PERSON on the general electoral system ) , GPE ( section CARDINAL of LAW ) , GPE ( LAW ) , GPE ( LAW of LAW ) , GPE ( LAW ) , “ the former GPE ” ( section CARDINAL of the Status of Members of Parliament Act DATE ) , the GPE ( LAW ) and GPE ( section CARDINAL of ORG and section CARDINAL(CARDINAL ) of the Status of Members of Parliament Act ) . In some countries , however , government ministers take part in parliamentary work ( GPE , GPE , GPE ) .

Certain disqualifications from holding a parliamentary seat concern positions which could jeopardise ORG independence as a result of hierarchical relations within the government .

In the majority of countries , disqualifications of this type concern judges and prosecutors , police officers and members of the armed forces , and all diplomatic and consular staff . This is the case , for instance , in GPE ( section CARDINAL(CARDINAL ) of LAW ) , GPE ( LAW ) , GPE ( LAW of LAW ) , GPE ( section CARDINAL of the DATE LAW ) , GPE ( sections CARDINAL , DATE and CARDINAL of LAW ) , GPE ( LAW ) , GPE ( section CARDINAL(CARDINAL ) of ORG House of Commons Disqualifications Act ) and GPE ( LAW ) .

NORP In general , such disqualifications concern civil servants or contract workers employed in the ORG administration or in regional bodies , autonomous ORG entities or institutions such as the social security service , or in public companies . This is the case , for example , in GPE ( section CARDINAL of the Members of GPE ) , GPE ( section CARDINAL of the DATE Electoral LAW ) , GPE ( Disqualifications Act of DATE ) , GPE ( Article CARDINAL of the LAW ) , GPE ( section CARDINAL of the DATE implementing PERSON ) , GPE ( LAW ) , GPE ( LAW DATE ) , GPE ( LAW ) , GPE ( section CARDINAL(a ) of ORG ) and GPE ( LAW ) .

In the majority of countries , individuals affected by those disqualifications must resign if they wish to stand for election ( as in GPE and herzegovina ) . In other countries ( such as GPE or GPE ) they may merely request to be suspended from their professional duties during their term of office .

As a general rule , the disqualifications in this category concern managers or heads of companies , corporations or public or private institutions which have interests in ORG activities or which receive ORG aid or grants . They may also concern the chairpersons , general managers or members of the boards of directors of private companies involved in public construction or in property or credit operations ( among many other countries , GPE , GPE , GPE and GPE have such rules ) .

In some countries , members of parliament may not practise any professional or commercial activity or paid employment during their terms of office , except in the educational sphere , and then only in very exceptional circumstances ( GPE , GPE , GPE ) .

The majority of countries do not lay down , in their constitutional or ordinary legislation , an incompatibility with freely practising the profession of lawyer ( for example , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE , GPE , GPE , GPE ) .

NORP However , restrictions or conditions may be imposed on a member of parliament who practises as a lawyer , based on the requirements of independence , professional ethics and availability . Thus , despite the absence of a legislative prohibition in this regard , the NORP ORG stated in a judgment of DATE that the timetable of GPE sittings enabled a member of parliament to practise as a lawyer , subject to the prohibitions concerning conflicts of interest set out in LAW and the legal profession ’s ORG .

This specific concept of conflict of interest exists in several NORP legislative provisions . Thus , in GPE , LAW prohibits any lawyer registered with the Bar who is a member of parliament from carrying out , directly or indirectly through an associate or colleague ( except before the ORG justice or ORG ) , any professional act in criminal cases concerning certain crimes or offences against the ORG or the areas of finance or the press , or to plead in civil proceedings for companies which receive ORG grants , financial companies or companies which use savings , companies engaged in civil engineering , construction or property development , or against the ORG , ORG - owned companies , local authorities or public establishments .

Similar provisions exist in the legislation of other civil - law countries , such as GPE ( section CARDINAL of LAW ) , GPE ( section CARDINAL of the Statute of Members of ORG ) , GPE ( section CARDINAL of ORG Act ( Law no . CARDINAL ) , Title PERSON on members of parliament , as amended by ORG ) and GPE ( section QUANTITY of the Disqualifications of members of ORG CARDINAL ( Law no . CARDINAL ) ) .

In the common - law countries , the codes of ethics of members of parliament guarantee ORG independence vis - à - vis possible conflicts of interest by means of administrative and procedural measures . In GPE , members of parliament must declare any work or paid employment and have this declaration entered in the register of PERSON interests . Failure to register an interest may result in sanctions ( Code of Conduct for Members of ORG to the Rules relating to the ORG of Members of ORG ) . Similar provisions exist in GPE ( sections CARDINAL , DATE and CARDINAL of ORG and in GPE ( LAW of Members of ORG ) .

Those procedures for declaring and registering the assets and financial interests of members of parliament have also been adopted in some countries of continental LOC . Thus , the Rules of ORG provide for a similar system to determine cases of incompatibility : within DATE of the ORG ’s first sitting , each member must submit a declaration to the speaker concerning the functions occupied by him or her at the time of standing for election , and those commercial or professional activities which he or she continues to carry out . In GPE , members of parliament are also obliged to notify their financial interests and any other professional activity carried out by them when they take up their duties ( section QUANTITY of the DATE LAW ) .

Other more practical limitations and restrictions have been added to those cited above , which are based on the concept of independence and conflict of interest . Various regulations on the status of members of parliament require that they give their parliamentary activities priority over any other private work , whether remunerated or not . In GPE , ORG may , by CARDINAL majority , require that a member of parliament forfeit his or her seat , permanently or for a specific period , if the individual concerned neglects his or her duties in a significant and repeated manner . In practice , this obligation is reflected in a significant reduction in the time spent working in other professions , or withdrawal from them ( as in GPE ) .

In GPE , the requirement to carry out parliamentary duties on a full - time basis results in very restrictive rules on disqualification ( section CARDINAL of the DATE implementing PERSON on the general electoral system ) ; holding a parliamentary seat is incompatible with the direct or indirect exercise of any private or public profession or activity , remunerated by way of wages , salaries , dues , fees or other means ( an exception is made for university lecturers ) . However , section CARDINAL(CARDINAL ) of the DATE implementing PERSON permits interested parties to apply to the relevant chamber ’s disqualification committee for leave to conduct private activities which do not concern public bodies or services , public companies , companies which are financed from public funds or credit or insurance companies .

Parliamentary committees exist in several countries . They may authorise professional activity , including in the public sector , which would otherwise be considered incompatible with the holding of a parliamentary seat ( see section CARDINALa(CARDINAL ) and ( CARDINAL ) of LAW ) . In certain cases , those activities must be carried out without remuneration .

A blanket prohibition on exercising any profession , trade or remunerated form of employment , similar to that laid down in the NORP or NORP legislation , also exists in a more or less rigid form in other countries , especially those of central and eastern LOC , such as GPE ( Article CARDINAL of the LAW ) , “ the former GPE ” ( section CARDINAL of the Status of Members of Parliament Act ) , GPE ( LAW ) and GPE ( LAW ) . As in GPE , however , exceptions exist for teaching , scientific research and creative activities .


Preliminary objection joined to merits and dismissed (victim);Violation of Art. 10

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in Irpin .

On DATE the applicant sent to ORG a letter in which she complained that the management of ORG , which was under the authority of ORG and at which her son had studied before being expelled in DATE , were engaging in unlawful and corrupt activities .

The relevant parts of the letter read as follows :

“ I address you concerning the real situation at the ORG ... [ This letter ] will concern the flagrantly unfair attitude towards students of ORG , headed by [ S. ] , to students ' parents , with the complete ... support ... of the President of the ORG [ M. ] ...

The reason for [ addressing you ] is a television report , broadcasted on DATE , concerning the student protest organised by [ M. ] against [ his ] dismissal from the post of President of the ORG . I really hope that my letter can influence the course of events .

My son , Mr PERSON , [ who ] had successfully and independently entered ORG of [ the ORG ] , was expelled from it ... I could not even imagine that the methods described below were applied in a ORG educational institution ...

... My son missed the beginning of studies because of a severe infectious disease ... Subsequently , I was called [ to LAW ] and during a private conversation [ S. ] told me that [ students ] like my son could not study at her faculty under the normal conditions , and that if I did not want to have problems with [ graduation ] I had to agree to additional financial conditions , in particular , to pay her CARDINAL [ United States dollars ] for every exam , and CARDINAL [ United States dollars ] for every test ... After my unconditional refusal , my road of sorrows began ...

CARDINAL or CARDINAL times a week I was called to the office of the PERSON [ of ORG ] for numerous [ discussions of problems ] , CARDINAL of the first of which concerned the checking of [ my son 's ] medical documents ... the [ professors ] shouted at me , called me a swindler and so on ...

Because he had been on sick leave ... and because of the enduring tense discussions with the PERSON and the Deputy PERSON ... my son did not have normal conditions in which to study ... When I tried to enter the office of the PERSON in order to discuss that matter , she ... simply ... pushed me out of the office ...

And I wrote a detailed complaint to the President [ of the ORG ] ... ( a copy is enclosed ) ... [ T]he President ordered that my son be allowed additional time to take DATE exams ... [ H]owever , afterwards arbitrariness on a larger scale began : professors were simply receiving from [ S. ] and [ the Deputy PERSON ... categorical instructions not to allow my son to take exams ... Those instructions were rigorously complied with , as the staff of the ORG was hired on the basis of personal loyalty towards the management or dependency on the management [ of the ORG ] : numerous relatives ... close friends ... former students [ of the ORG ] ... about whose knowledge , competence and work experience it is not possible to speak . It is difficult for them to find another job , therefore they are ready to fulfil any assignments , obey any wishes of the management ...

... [ S. ] and [ B. ] became so impudent that together they conducted negotiations with me concerning extra - contractual payments [ for my son 's studies ] at the office of [ S. ] . In a normal civilised country [ people ] would have already compared the earnings of the ORG servants and their standard of living . What [ amount of ] salary enables the PERSON of the faculty [ S. ] to wear different exclusive imported clothes and diamonds DATE ? !

... This was the rudeness , extortion and derision which I endured during DATE at the ORG institution , having paid a substantial amount of money [ for the education ] . The most alarming thing in this story is that our case is not the only one ...

At the same time [ as this was happening to us ] ... CARDINAL persons were simply kicked out of the ORG in the same way ... the teachers received from the PERSON or the Deputy PERSON categorical instructions not to allow a particular student to take an exam ...

The whole process of the intentional expulsion of certain [ students ] and the admission of others on a contractual basis is ... a system of extorting of money from the parents devised by the management of the faculty and the ORG ...

All the actions of [ S. ] , approved by [ M. ] , demonstrate [ their ] legal incompetence and ruthless abuse of power , though the old [ ORG ] regime generously appraised her ' achievements ' ; during its DATE [ the old regime ] awarded [ S. ] the title of ORG , and the President of the ORG promoted her to First VicePresident [ of the ORG ]

I hoped the new authorities would sort everything out , but [ people like PERSON feel perfectly at home under any regime .

In addition to the violations described [ above ] , I ask you to look at the following :

NORP On what does [ the ORG ] spend the budgetary funds and the money from [ students ' ] parents ?

- why does the President of ... [ the ORG , in whose possession ] there is an expensive ' Mercedes ' , additionally buy an ' Audi A-CARDINAL ' for [ the price of ] CARDINAL [ NORP ] hryvnias ? !

- what is the source of the money and what is the need for the business trips on which [ M. ] and [ S. ] constantly go ?

- what are the earnings [ allowing ] the ORG servant [ S. ] to wear different expensive ... clothes and diamonds DATE ?

- how did [ S. ] manage to gain her doctor 's degree so soon [ after ] having completed her higher education at the ORG ...

- what benefits does [ the ORG ] receive from the companies of [ M 's ] brother and sister ?

- on what grounds did the staff of the ORG obtain double salary payments at DATE ...

As regards the activities of those persons during the [ Presidential ] election [ of DATE ] ... [ M. ] and [ S. ] ... did not let students take part in meetings in support of PERSON ... Students were forced ... to vote in the ORG under the supervision of the professors ... According to the parents of students [ wishing to enter the ORG ] , during the [ DATE ] summer admission campaign [ M. ] ... openly stated that he was collecting money for the [ Presidential ] election [ of DATE ] ...

The only thing which I wish to try to achieve [ is ] that my letter helps to restore justice in our small Irpin region ... ”

NORP In DATE PERSON , who was at the time the First Vice - President of the ORG , instituted defamation proceedings against the applicant in the ORG of GPE .

Ms S. alleged that by a letter of DATE the applicant had disseminated untrue and defamatory statements about her , and asked the court to order the retraction of the statements . PERSON also claimed compensation for non - pecuniary damage .

The applicant , in her turn , contended that the information contained in the impugned letter was based on facts , some of which could be confirmed by witnesses . She also argued that her statements were , for the most part , value judgments , for which she should not be held responsible pursuant to section CARDINAL of LAW . The applicant , relying on the decisions of courts in similar , according to her , defamation cases , also submitted that by her letter of DATE she had simply informed the higher authorities about irregularities at the ORG and had not disseminated the statements about PERSON within the meaning of LAW of DATE .

By a letter of DATE the applicant requested the President of ORG to transfer the case to a district court in GPE , stating that ORG husband worked as a judge in LOC of GPE and could influence the outcome of the proceedings before ORG . By a letter of DATE the Deputy President of ORG informed the applicant that her request had been rejected as unfounded .

On DATE the FAC , relying on Articles CARDINAL and CARDINAL of LAW of DATE , ruled in part in favour of PERSON It found that the applicant had failed to prove her statements that the latter had treated the students and their parents unfairly ; that she had demanded from the applicant a payment for every exam and test which the applicant 's son had had to sit ; that she had been rude or shouted at the applicant ; that she had called the applicant a swindler ; that she had pushed the applicant out of the office ; that she had given instructions to the professors not to allow the applicant 's son to take exams ; that she had not allowed students to attend the meetings in support of PERSON during the Presidential election ; that the actions of PERSON had demonstrated that she was legally incompetent ; and that she had exceeded her powers .

NORP The court further held that the above statements had been publicly disseminated , as the letter had been addressed to a legal entity and the applicant could have foreseen that it would be read by CARDINAL person . It also noted that PERSON had acquainted herself with the text of the letter in the presence of the President of the ORG and representatives of ORG .

The court declared the above statements to be untrue and defamatory and ordered the applicant to retract them by rescinding the impugned letter . The court also ordered her to pay Ms S. CARDINAL,CARDINAL NORP hryvnias ( ORG ) in compensation for non - pecuniary damage .

On DATE ORG upheld the judgment of the first - instance court in full .

On DATE ORG dismissed the applicant 's request for leave to appeal in cassation as unsubstantiated .

The relevant extracts from the LAW read as follows :

“ ... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family , and of the right to demand that any type of information be rectified , and also the right to compensation for pecuniary and non - pecuniary damage inflicted by the collection , storage , use and dissemination of such incorrect information . ”

“ Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .

Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .

The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . ”

“ Everyone has the right to file individual or collective petitions or to personally appeal to bodies of ORG power , bodies of local self - government , and to officials ... of those bodies , who are obliged to consider the petitions and to give a substantiated reply within the term established by law . ”

The relevant extracts from LAW of DATE read as follows :

“ A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully , degrades their honour and dignity or reputation , or causes damage to their interests , unless the person who disseminated the information proves that it is truthful ...

A citizen or an organisation concerning whom material that does not conform to the truth and damages their interests , honour , dignity or reputation has been disseminated shall be entitled to demand compensation for pecuniary and non - pecuniary damage as well as a retraction of such information ... ”

“ CARDINAL . A physical person whose non - pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and ( or ) members of his or her family , shall have the right to reply , and [ the right to ] the retraction of that information ...

Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary .

NORP Untrue information shall be retracted by the person who disseminated the information ...

If the untrue information is contained in a document which has been accepted ( issued ) by a legal entity , that document shall be recalled .

A physical person whose non - pecuniary rights have been infringed in printed or other mass media shall have the right to reply , and also [ the right to ] the retraction of the untrue information in the same mass media , in the manner envisaged by law ...

Untrue information shall be retracted irrespective of the guilt of the person who disseminated it .

NORP Untrue information shall be retracted in the same manner as it was disseminated . ”

“ CARDINAL . If there has been pecuniary and/or non - pecuniary damage caused to a physical person as a result of a violation of his personal non - pecuniary rights , the damage shall be compensated .

The relevant extracts from LAW provide as follows :

Liability for the infringement of the legislation on information shall be borne by persons responsible for the following infringements :

dissemination of information that does not correspond to reality , [ or ] defames the honour and dignity of a person ... ”

“ No one may be held liable for making value judgments .

Value judgments , excluding insults and libel , are statements which do not contain factual data , in particular , criticism , the evaluation of actions , and also statements which can not be said to contain factual data because of the way they are worded , in particular , [ with ] the use of hyperbole , allegory , or satire . Value judgments are not subject to retraction and their truthfulness need not be proved ... ”

Relevant extracts from the judgment read as follows :

“ ... ORG of GPE found that :

A citizen , [ ORG ] , has lodged with ORG a request for an official interpretation of the provision of LAW [ of DATE ] containing the phrase “ disseminated such information ” . ... According to the applicant , the practical need for an official interpretation is justified by the lack of coherence in the application of that provision by the courts of GPE ...

[ The applicant ] maintains that ORG of GPE found that his petition to ORG against a tax inspector for unlawful actions ... disseminated information which did not correspond to reality , and degraded the honour , dignity and reputation of the tax inspection employee . By its judgment , the court obliged [ ORG ] to retract the information by sending a petition to the relevant department of the [ Tax ] administration , and to compensate that official for the damage caused .

A judicial panel of ORG and a panel of judges of ORG of ORG dismissed the appeal in cassation of [ ORG ] against the judgment of the district court .

... ORG of GPE considers that petitions by citizens to a lawenforcement body which contain certain information concerning the failure of officials to comply with the laws , are submitted ... not for the purpose of notifying the community or citizens of such matters , but seeking to have it verified by competent officials . Therefore , such petitions can not be considered to constitute dissemination of information degrading the honour , dignity or reputation of , or causing damage to , the interests of an official of a law - enforcement body , within the meaning of LAW ...

At the same time , [ if ] petitions to a law - enforcement body contain knowingly untrue information , this will lead to disciplinary , civil - law , administrative , or criminal liability ...

In particular , Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW of GPE provide for administrative liability for dissemination of untrue rumors which can provoke panic among the population or a violation of public order , and for notification to registration bodies of acts of civic status of knowingly untrue information .

LAW of GPE provides for criminal liability for knowingly untrue reports concerning a planned explosion , fire , or other action which may cause deaths or have other grave consequences ( LAW , knowingly untrue reports of crimes to a court , prosecutor , investigator , or body of inquiry ( Article CARDINAL ) etc ...

The dissemination of untrue information concerning the private ( family ) life of an official of a law - enforcement body in his personal or citizen 's capacity may constitute a ground for the applicant 's civil - law liability under LAW .

In the light of the foregoing ... ORG of GPE decides that :

Under LAW ... ' disseminated such information ' shall be understood , within the context of the constitutional appeal , as meaning that statements made in letters , petitions or complaints to a law - enforcement body by a person who is of the view that officials of that body have infringed his rights in the exercise of their functions can not be considered to be dissemination of information degrading the honour , dignity or reputation of , or causing damage to , the interests of those persons .

[ The inclusion of ] knowingly untrue information in letters , petitions , or complaints to a law - enforcement body shall lead to the liability provided for by the current legislation of GPE .

The judgment of ORG is binding on the territory of GPE , is final and may not be appealed against ... ”

The relevant extracts from the ORG provide as follows :

“ ... CARDINAL . According to LAW everyone has the right to file individual or collective petitions or to personally appeal to bodies of ORG power ...

The courts shall take into account that , if a person files a petition with the bodies mentioned [ above ] which contains certain information , and if that body is competent to verify such information and to give a reply , [ the fact that ] ... the information has not been confirmed as true ... may not as such constitute a ground for allowing a [ defamation ] claim , as in such a case the person has exercised his constitutional right under LAW , and [ has not ] disseminated untrue information .

If a person files a petition with the law - enforcement bodies , the courts should take into account the conclusions of the judgment of ORG of DATE ... ( the case concerning dissemination of information ) ... ”


Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

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

From DATE to DATE the applicant ’s late husband PERSON exercised the profession of a painter . In DATE he was diagnosed as suffering from leukaemia . He died of the disease on DATE .

On DATE the medical clinic where the applicant was treated gave notice of the disease to ORG ( Bau - Berufsgenossenschaft ) on the ground that PERSON ’s disease might have been work - related , which would entail pension benefits .

On DATE ORG refused to establish that Z. ’s leukaemia was work - related for having been caused by his exposure to benzene during his work as a painter . Following enquiries on ORG former working conditions and relying on expert opinion , the Insurance considered that the dosage of benzene PERSON had been exposed to during his work had not been sufficiently high to cause a work - related disease .

On DATE the applicant lodged an administrative appeal . She notably relied on CARDINAL expert opinions commissioned by PERSON ’s health insurance . On DATE ORG , having heard further expert opinion , rejected the applicant ’s administrative appeal .

On DATE the applicant lodged a motion with ORG ( ORG ) , alleging that ORG ’s disease had been caused by over - exposure to benzene , notably during DATE of his professional life .

On DATE and CARDINAL DATE a court appointed expert submitted his expert opinion . He considered that there was no conclusive evidence that the applicant ’s illness had been caused by exposure to benzene at his work - place .

On DATE the ORG summoned PERSON ’s health insurance to join the proceedings as a third party .

By judgment of DATE ORG granted the applicant ’s claim . Relying mainly on the expert opinions commissioned by ORG , ORG considered that it had been established with a sufficient amount of probability that PERSON ’s disease had been caused by his exposure to benzene at his workplace .

This judgment was served on the applicant ’s counsel on CARDINAL DATE .

On DATE the defendant ORG lodged an appeal with the ORG ( ORG ) . In support of her allegation that PERSON ’s disease had not been caused by exposure to benzene the defendant submitted a further expert opinion .

On request by ORG CARDINAL further expert submitted his expert opinion on DATE .

Subsequently , the applicant asked for a fresh expert opinion to be prepared pursuant to section CARDINAL of FAC ( see relevant domestic law , below ) , and named Prof PERSON as an expert .

On DATE Prof PERSON declined the request as he did not consider it possible to establish whether the disease had been caused by exposure to benzene .

Following this , the applicant named another medical expert who submitted his expert opinion on DATE .

In reply , the defendant party submitted a further opinion submitted by another expert on DATE .

During the hearing held before ORG on CARDINAL DATE the applicant submitted a presentation held by the expert PERSON on a conference relating to the assessment of exposure to benzene at painter ’s workplaces . According to the applicant , this presentation established that PERSON had been exposed to dosages of benzene which exceeded the limits set down in the relevant safety guidelines . She requested ORG once again to hear the experts with regard to these submissions .

On DATE ORG quashed ORG judgment , rejected the applicant ’s claim and refused to grant the applicant leave to appeal . Having regard to the expert opinions and statements submitted during the administrative and court proceedings , ORG considered that it could not be established with sufficient probability that PERSON ’s disease had been caused by overexposure to toxic substances at his workplace .

By way of conclusion , ORG found as follows :

“ Summing up , the ORG considers that the facts of the case have been sufficiently established by the medical expertises and opinions by PERSON , Prof GPE . , Prof T , and , in particular , by the expert Prof PERSON The differing assessment of the causation issue submitted by Prof PERSON , Prof We . and the expert Prof No . - who had been heard according to section CARDINAL of ORG Acts - has been reliably rebutted . The plaintiff ’s submissions do not induce the court to undertake further examinations . It was , in particular , not necessary to comply with the plaintiff ’s request to hear the experts with regard to the presentation submitted during the oral hearing . Even assuming that the dosage of benzene PERSON had been exposed to had exceeded the limits of the relevant safety guidelines , this does not prove that the disease had been work - related , as the safety guidelines are based on what is technically feasible and do not prove that an excess of the safety limits causes health damages . ”

This judgment was served on the applicant ’s counsel on DATE .

On DATE ORG ( Bundessozialgericht ) rejected the applicant ’s complaint against the refusal to grant her leave to appeal . That court considered that the applicant had failed sufficiently to establish which considerations should have induced ORG to raise further evidence , as requested by the applicant .

On DATE the applicant lodged a constitutional complaint .

On DATE ORG ( file - no . CARDINAL BvR CARDINAL/CARDINAL ) , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint as being inadmissible . This decision was served on the applicant ’s counsel on DATE .

Section CARDINAL of the Social Court Act reads as follows :

“ ( CARDINAL ) On application by the insured person , the disabled person , the person entitled to benefits or his surviving dependants , a physician to be determined shall be heard as an expert . The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and , unless the court decides otherwise , the applicant in the end bears the costs .

( CARDINAL ) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence . ”


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

A.

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

The applicant 's wife retired in DATE and received a single old age pension ( einfache GPE ) . Since DATE , the DATE allocation amounted to MONEY ( ORG ) . The applicant retired in DATE .

On DATE ORG ( Alters und Hinterlassenenversicherung ) fixed a common married couple 's pension ( Ehepaar - Altersrente ) for the applicant and his wife in the amount of ORG DATE . In accordance with the relevant legislation , the husband is entitled to receive the married couple 's pension , while the wife 's former claim to a single old age pension ceases and is replaced by a derived right to payment of CARDINAL of the common pension . Further , the married couple 's pension is calculated on the basis of the husband 's contribution years . It is PERCENT of the husband 's single pension . As the applicant 's insurance period was shorter than his wife 's , the resulting amount was lower than his wife 's single pension . According to the relevant provisions a compensation was added to arrive at the amount of his wife 's former pension .

On DATE the applicant filed an objection ( PERSON ) against the above decision . He argued that the method of calculation applied rendered his own contributions null and void as the married couple 's pension was no higher than his wife 's single pension . Further , he held that he and his wife were discriminated against in relation to other married couples . He requested CARDINAL separate pensions to be paid instead of the common pension .

On DATE ORG dismissed the applicant 's objection . As to the applicant 's first argument it observed that the GPE pension scheme was based on the principle of social solidarity . Thus , it did not grant pension claims in direct relation to the contributions paid . As to the applicant 's second argument , ORG agreed that there was unequal treatment of men and women as only the husband was entitled to the married couple 's pension , which was calculated solely on the basis of the husband 's contribution years . Moreover , in a case like the applicant 's where the husband had an incomplete insurance career while his wife 's was complete , a lower married couple 's pension was paid than in the opposite case . However , the legal provisions were clear and precise and did not permit any other interpretation . The question could , thus , only be resolved by an amendment of the law . Such an amendment was envisaged for DATE .

On DATE ORG ( Obergericht ) , upon the applicant 's appeal , confirmed ORG decision as being in conformity with existing legislation even if it was contrary to the principle of non - discrimination . It also refused the applicant 's motion to interrupt the proceedings and to request ORG ( PERSON ) to examine the constitutionality of the contested provisions of ORG . It found that in the event of an abrogation of these provisions the applicant 's claims would not find any other legal basis without further initiative of the legislator .

On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant 's appeal on points of law . It stated that the unequal treatment of husband and wife in the current pension scheme could not be remedied by the courts , but required an amendment of the relevant law by the legislator .

On DATE the applicant , after having lodged a complaint with ORG , challenged ORG judge PERSON for bias on the ground that the latter had written a dissertation on social security law , which had been partly financed and distributed by ORG .

On DATE ORG , sitting as a Constitutional Court ( Verfassungsgerichtshof ) , rejected the applicant 's challenge for bias and partly granted his constitutional complaint .

As to the applicant 's challenge for bias , ORG found that the past financial support and distribution of a dissertation by a public law institution did not create such a personal link as to affect a judge 's impartiality .

As to the applicant 's complaint , ORG found that the applicant 's constitutional rights were violated by ORG decision . The married couples ' pension system , based on a traditional view of marriage , was unconstitutional as being contrary to the principle of non - discrimination on the basis of gender , in particular as only the husband 's contribution years were decisive for the calculation of the married couple 's pension . Moreover , it was unconstitutional as being contrary to the general principle of equal treatment , in that married and unmarried couples were treated differently with regard to their pension benefits .

However , ORG rejected the applicant 's request to quash the contested judgment and to set aside the relevant provisions in the Old Age Pension Act . It noted that it would , technically speaking , be possible to set aside a number of provisions with the result that the applicant and his wife would each be entitled to a single old age pension . However , this would cause massive disadvantages to others , in particular to married couples where the wife did not have an own insurance career . The situation was even more complex in view of ORG between GPE and GPE which could only operate if the requirements for pension claims were more or less identical in both GPE . In conclusion , ORG did not see itself in a position to set aside the contested provisions , given the complexity of social security law and the statutory time - limit of a maximum of DATE for suspending an abrogation . ORG went on to say that despite these considerations the continuing application of unconstitutional legislation for a protracted period would be unacceptable . However , a comprehensive legal reform with the explicit aim of guaranteeing gender equality in social security law was already being prepared and ORG had requested the ORG to submit all necessary amendments of social security law before DATE . Moreover , the draft amendment of the Old Age Pension Act included provisions according to which couples in the position of the applicant and his wife would be entitled to CARDINAL single pensions . Having regard to the time - table for the pending reform , the above - mentioned maximum time - limit of DATE for enacting new legislation could possibly be complied with . Nevertheless , it was not justified to annul the unconstitutional provisions with a DATE suspension as the envisaged date of entry into force , namely DATE , would become illusory if for instance a referendum was requested . In this case , the annulment would become effective and would entail all the negative consequences described above .

In fact , the amendment to ORG was adopted in DATE ( see below ) . According to its provisions the applicant and his wife each receive a single pension of ORG CARDINAL and CARDINAL , respectively , as of DATE .

B. Relevant Domestic Law

ORG ( Gesetz über die Alters- und GPE ) of DATE , PERSON ( LGBl ) CARDINAL , before its amendment , provided for common married couple 's pensions which were to be paid as soon as both spouses reached the retirement age . When a common pension was paid the wife 's claim for pension payments expired . Only the husband 's contribution DATE were decisive for the calculation of the married couple 's pension .

By amendment of DATE , PERSON , to ORG , the married couple 's pension system was replaced by a scheme providing single pensions for both spouses . Married couple 's pensions existing at the time of the amendment were transformed into CARDINAL single pensions as of DATE , subject to the clause that the total amount of both pensions was not to be lower that the previous married couple 's pension .


The applicant , ORG , is a NORP national who was born in DATE and lives in Allerum . He was represented before the ORG by Dr. jur . A. GPE , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr B. GPE , of ORG . ORG did not make use of their right to intervene under LAW .

On DATE the father of A. , a CARDINAL year - old girl , reported to the police that his daughter had told her mother DATE before that she had been sexually abused by the applicant . The incident was supposed to have taken place some time during the DATE break .

On DATE , TIME and TIME , A. was interviewed by a police inspector . The interview was recorded on videotape . At that time , the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him .

On DATE the applicant was questioned by the police , in the presence of his newly - appointed defence counsel . Before the questioning he was notified , in accordance with LAW , section DATE , of LAW ( PERSON ) , that he was suspected of rape of a child ( våldtäkt mot barn ) .

On DATE , between TIME and CARDINAL a.m , PERSON was interviewed a second time by the police inspector who had conducted the first interview . This interview was also videotaped . The applicant ’s counsel was shown the recording of the first interview before DATE second interview . He followed the second interview on a monitor , from an adjoining room and used the opportunity to put supplementary questions to A. through the interviewing police inspector . The applicant himself was not present , however .

On DATE the applicant was questioned by the police a second time , in the presence of his counsel .

The police also interviewed ORG ’s father and mother , PERSON ’s father ’s partner , the cohabitee of the grandmother of the partner , ORG ’s grandmother and the DATE friend of A. The last interview was videotaped .

The preliminary investigation was concluded on DATE . The applicant and his counsel were notified of the investigation report on DATE , at which time they were shown the videotaped interviews with A. and with her friend . The applicant ’s counsel requested that a supplementary interview be held with the friend ’s father . This interview was held on DATE . No further requests or comments were made concerning the report of the preliminary investigation .

The applicant was subsequently indicted for rape of a child .

ORG ( tingsrätten ) of GPE held a hearing in the case on DATE . Heard by the court , the applicant denied the charges . The videotaped police interviews with A. were shown during the hearing . The court also heard evidence from ORG ’s mother and PERSON ’s father ’s partner , on the proposal of the prosecution , as well as the father of A. ’s friend , at the request of the defence . No request was made for A. to be heard in person .

In a judgment of DATE ORG , by a majority of CARDINAL lay assessors against the presiding judge , convicted the applicant of the lesser offence of sexual assault of a child ( sexuellt övergrepp mot barn ) and sentenced him to TIME of community service . It also ordered him to pay MONEY in damages to A. The court gave the following reasons :

“ [ The applicant ] has completely denied the charges brought against him by the prosecutor . The evidence consists mainly of the information given by the plaintiff at CARDINAL videotaped interviews which have been played back at the main hearing . Defence counsel had the opportunity to put supplementary questions to A. through the interviewer during the second interview . Nevertheless , interviews of this kind should always be evaluated with caution ( ... ) . The court can not base its evaluation of the credibility of the plaintiff and the reliability of the information submitted on impressions of the kind conveyed by an examination in court . [ The applicant ] has been prevented from putting questions to the plaintiff through his counsel before the court and the court has not been able to put questions to the plaintiff either .

The interviews in issue are of good quality . There have been good opportunities to observe the plaintiff ’s facial expressions and body language during the interview . Without any leading questions having been put to her , the plaintiff has given an account which in itself is consistent and which does not contain direct contradictions or statements that evidently can not be true .

The suspicion that A. has been subjected to an assault arose when , in DATE , she told her mother about the incident . Nothing that has emerged in the case indicates that ORG has been put under pressure by , for instance , her parents before she , at the police interview , gave an account of what she had been subjected to . The information that A. , according to witness statements , had revealed before the police interview is concordant with the information she gave at the police interview . Moreover , there are no noticeable divergences between the accounts in the police interviews which took place with DATE interval . During the interviews she has given a detailed account of what [ the applicant ] did and stated that she told [ him ] that it hurt . She has shown in which position she was lying and how [ the applicant ] was placed in relation to her when the assault occurred .

The fact that A. revealed what had happened only in DATE , whereas the incident is supposed to have occurred during DATE break of DATE , could be held against the credibility of her statements . Furthermore , it has emerged that A. , immediately prior to telling about the assault in issue , made intercourse - style movements against the arm of her mother ’s partner and explained that she “ made babies ” with him . There is no indication that any such movements occurred in connection with the incident now being examined . It has also emerged that DATE was subjected to a sexual act , during which the perpetrator stated that he was showing “ how one makes babies ” .

The account given by [ the applicant ] is not in itself contradictory . However , his statement that the plaintiff made advances to him appears , in the view of ORG , to be less probable given her age and level of development . It also appears less probable that he would have occupied himself for such a long period of time with a younger girl who , according to his own opinion , was rather demanding , although it has emerged that he is helpful and sometimes baby - sits for others .

The ORG places reliance in DATE ’s statements and finds beyond reasonable doubt that [ the applicant ] committed the sexual acts indicated by the prosecutor in the indictment . ”

ORG then considered that the sexual acts in question – which consisted of touching A. ’s genitals and trying to insert a finger into her vagina – were not comparable to intercourse . Consequently , the applicant could not be held liable for rape of a child .

In her dissenting opinion , the presiding judge stated that , while the applicant ’s account of events , for the reasons indicated in the judgment , appeared somewhat less plausible than that given by A. , it did not contain any direct contradictions or demonstrable errors . She was of the opinion that a verdict of guilty required supporting evidence of some strength . However , the evidence given by various witnesses could not be regarded as independent of the police interviews and it did not in any important aspect strengthen the prosecutor ’s claims . Consequently , in the absence of further information , the judge did not find that the applicant ’s guilt had been proven beyond reasonable doubt .

The applicant appealed to ORG ( hovrätten ) of GPE and PERSON . Asserting that , when it is CARDINAL person ’s word against another ’s , certain supporting evidence is required for a conviction , he maintained that the evidence invoked by the prosecutor did not lend such support to the statements made by A.

In DATE the appellate court held a hearing , during which the videotaped police interviews with A. were played back . Audiotapes of the testimony given by witnesses before ORG were also played back . Moreover , it took evidence from a new witness proposed by the defence , a neighbour and former partner of ORG ’s friend ’s father . Again , the applicant did not request that PERSON give evidence during the hearing .

In a judgment of DATE ORG upheld the applicant ’s conviction and sentence . It restated some precedents of ORG ( ORG domstolen ) , according to which the outcome in cases concerning sexual offences mainly hinged on the evidence given by the plaintiff . The absence of observations by witnesses or technical evidence did not prevent the evidence from being considered sufficient for a conviction . However , to an increasing extent , a verdict of guilty required that the plaintiff’

“ When it comes to the videotaped interviews that have been held with ORG , as indicated by ORG , such interviews must be evaluated with caution , although there is no reason to direct any particular criticism against the interviews that have been held in the instant case .

As ORG has set out , there are no noticeable divergences between the statements given by A. on different occasions . Her account of what [ the applicant ] did and how she felt has been relatively exhaustive . It contains certain details which strengthen the impression that she is describing something that she has experienced . Such a detail is her description in the videotaped interviews that they are playing , that [ the applicant ] then fetches the mobile phone and that he , after having introduced the idea of nude photographing , takes photos of A. who , by then , has pulled down her knickers and shorts but is still dressed on the upper part of the body . Another detail is her description of the condom which the applicant is supposed to have put on CARDINAL of his fingers . She makes a drawing of it and describes it as being sticky , transparent and soft . It is true that her mother has testified that it is not ruled out that , on some occasion , she might have told PERSON what a condom is , but there is no indication that A. earlier had a particular familiarity with the subject .

The information given by A. at the interviews is supported by her mother ’s statement . Her account has been very nuanced , and she has given her statement with rather unusual openness , thoughtfulness and moderation . She has reported that , in connection with a story - time , A. made movements against her mother ’s partner ’s arm and said that she “ made babies ” and that , when asked from whom she got that idea , she answered [ the applicant ] . Asked when they had talked about that , PERSON replied that it had happened when he had asked if she had seen nude photos of her vagina . When she had answered in the negative , he had , according to ORG , suggested that they take some photos , which she first refused but later agreed to . According to the mother , PERSON seemed to be ashamed that she had agreed to this . When asked by the mother if anything else had happened , PERSON had told the rest . A. ’s account is also to some extent supported by the testimony given by PERSON ’s father ’s partner . A. has given information about the assault also to her , in particular on the introductory part .

Are there then any circumstances which may undermine A. ’s credibility ? A. did not tell her mother about the incident until DATE . It is obvious , however , that her interpretation of the incident is that of a child , into which she has not read everything that a grown - up would . Accordingly , there is nothing striking about the fact that she told about the incident only on an occasion which can be said to have had a certain connection to the incident .

She is supposed to have made intercourse - style movements against a relative on CARDINAL occasion in addition to the above - mentioned . Moreover , on an occasion further back in time , PERSON told her parents that she , together with a friend and her elder brother , experienced something with certain rather innocent sexual connotations . However , neither this nor the other information that has emerged indicates that ORG has any sexual interest or knowledge in the matter which goes beyond the ordinary .

Furthermore , it has not been shown that A. has any motive to give incorrect information about the applicant .

Against this background , ORG finds , in agreement with ORG , that the examination [ of the case ] should be based on the statements given by ORG Through her statements it has been proven that [ the applicant ] made a caressing movement on the outside of A. ’s genitals . However , her statements differ to some extent on the question of whether he twice tried to insert a finger or actually did insert it . Consequently , it has been proven only that he tried to do it . ”

The applicant appealed to ORG . He claimed that he had been convicted solely on the basis of the statements given by PERSON , which were not supported by any other independent evidence .

On DATE ORG refused the applicant leave to appeal .

Domestic provisions of relevance in the present case are found in LAW ( PERSON ; hereafter “ the Code ” ) and in the Ordinance on Preliminary Investigations ( PERSON - kungörelsen , DATE “ the Ordinance ” ) . There is also some national case - law of interest .

A preliminary investigation takes place whenever there is reason to believe that a crime has been committed . LAW , LAW , of the LAW includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation . The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself . This right , however , does not manifest itself until a person has been informed of the suspicions against him in accordance with LAW , section DATE , of the Code . As far as other interviews are concerned , counsel for the defence may attend if his attendance will not harm the investigation . It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation . In cases where the suspect or his defence counsel are present during an interview , questions may only be asked in the order determined by the person in charge of the preliminary investigation ( LAW , section CARDINAL , of the Code ) .

When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime , the person in question must be notified of the suspicions against him , pursuant to LAW , section CARDINAL , of the Code . Under the second paragraph of that provision , an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such . If a request for such an investigative measure is not granted , the reasons for the decision must be given . If the suspect makes a complaint , the issue is settled by the court ( LAW , section DATE , of the Code ) .

Interviews with children conducted in the course of a preliminary investigation are subject to special regulations . Thus , according to LAW , section CARDINAL , of the Code , a child ’s custodian should be present whenever a child under DATE is questioned if this can be done without any harmful effects on the investigation .

Further and more detailed provisions concerning the questioning of children are found in the GPE , section CARDINAL of which provides that interviews with , inter alia , an injured party under the age of CARDINAL must be conducted in such a manner that there is no danger that the interviewed person might be harmed . It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters . Furthermore , particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require . Questioning is , moreover , according to section CARDINAL of the Ordinance , not allowed to take place on more occasions than is necessary with regard to the nature of the investigation and the best interest of the child .

Section CARDINAL of the LAW provides that interviews with children must be conducted by persons who are particularly apt to perform the task . In addition , section DATE provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child ’s testimony .

Whenever the evidence of a witness below DATE is used in a criminal case , the court must determine , taking account of all relevant circumstances , whether the child should testify ( LAW , section CARDINAL , of the Code ) . There is no corresponding provision applicable to children who are in the position of being the injured party . In practice , however , such evidence is normally presented to the court in the form of a video - recording of the police interview , which is played back during the court ’s main hearing . In allowing this to take place , the court applies LAW , section CARDINAL , of the Code , by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed , if the person who has submitted the statement can not be heard before the court or if there are particular reasons for the statement to be relied on , regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court , the importance of the statement and all other relevant circumstances on the other hand .

On a few occasions ORG has examined the question of evaluation of evidence in cases where the prosecutor ’s indictment has been based to a large extent on videotaped police interviews with the injured party . In such situations , ORG has stated that the fact that the courts have not had the opportunity to assess the credibility and reliability of a witness or an injured party , and that the accused has not been able to question that person , ought to entail that the statements are examined and evaluated with particular caution . In the published cases ORG DATE p. CARDINAL and ORG DATE p. CARDINAL ORG came to the conclusion that the videotaped interviews , combined with other supporting evidence , were sufficient for a conviction .

In the case ORG DATE p. CARDINAL , the injured party had not attended the main hearing but ORG had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery . ORG , on the other hand , emphasised that LAW and its application and interpretation was of major importance in respect of the application of LAW , section DATE , of the Code . Thus , in the light of the ORG ’s case - law , ORG found that that provision of the LAW should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision . According to ORG , the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the LAW and therefore referred the case back to ORG for re - examination .

ORG has in a number of cases examined the question concerning the assessment of evidence in cases regarding sexual offences mainly hingeing on the evidence given by the plaintiff . In such situations , ORG has stated that in order for the courts to find the guilt of the accused beyond reasonable doubt , it is not sufficient that the statements of the injured party are found to be more credible than the applicant ’s story . ORG has , however , stressed that even if direct witnesses and technical evidence are generally missing in such cases , this does not prevent a conviction if the injured party ’s statements are found throughout to be credible and compatible with other circumstances , for example testimonies regarding the injured party ’s behaviour after the incident ( see , for example , ORG DATE p. CARDINAL and ORG DATE p. CARDINAL ) .