Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

The applicant is deaf and mute . He uses sign language to communicate with other people .

The applicant and ORG married on DATE . ORG suffers from a hearing impairment and has had a hearing implant fitted . She communicates both orally and through sign language .

The son ( ORG ) of the applicant and ORG was born on DATE . He also suffers from a hearing impairment . In DATE the applicant and his wife separated . On DATE ORG filed a petition for divorce .

In the course of the divorce proceedings , on DATE ORG issued an interim decision on the applicant ’s contact with his son . Under that decision , the applicant could visit his son DATE TIME and every DATE TIME at the child ’s place of residence and without the presence of any third parties .

The court ordered experts from the Białystok office of ORG ( Rodzinny ORG Diagnostyczno - PERSON “ the RODK ” ) to prepare an opinion on the suitable form and frequency of the applicant ’s contact with his son . In the course of his interview with the experts , the applicant underlined his commitment to maintaining contact with the child , without giving any details . The experts established that the applicant had not been visiting his son as frequently as he was allowed under the interim decision of DATE . The last contact had occurred on CARDINAL DATE .

In their opinion , dated DATE , the experts underlined that the emotional ties between the mother and the child were strong and natural . However , the ties between the applicant and his son were weak and superficial . In the view of the experts , taking into account the necessity to ensure the proper development of the child , contact between the applicant and the child should take place CARDINAL times a month and TIME on each occasion .

On DATE ORG granted a decree of divorce without ascribing blame for the breakdown of the marriage . In its judgment the court also ruled that parental authority should be exercised by both parents and that the child should reside with the mother . It further ruled that the applicant had a right to see his son on DATE from TIME and on DATE from TIME until TIME Contact should take place at the mother ’s home in her discreet presence but in the absence of third parties . The applicant was further ordered to pay child maintenance .

It appears that neither of the parties appealed against the judgment , which consequently became final on DATE .

NORP In DATE the applicant filed an application with ORG for a change to his contact arrangements . He asked the court to be allowed to have contact with his son on every second and DATE of DATE from TIME on DATE until TIME on DATE , away from the mother ’s home . He also asked to be allowed to see his son for some time over the DATE and GPE periods and to spend with him DATE and CARDINAL of the DATE . The applicant argued that the child had already reached the age of DATE and needed increased contact with his father in order to strengthen their ties .

The applicant admitted that after the divorce he had not seen his son for DATE on account of his health problems . He submitted that his son was happy to spend time with him and to play with him . The applicant asserted that he had been able to provide appropriate care to his son and that in the event of need he could count on the support of his family . It was the mother of the child who had obstructed his contact with the child and made the atmosphere unfriendly . For example , she refused to pass on oral messages from their son to the applicant . The mother did not inform him about important decisions concerning the child and tried to marginalise him .

The mother submitted that the applicant had remained passive during his meeting with ORG and that she had not obstructed those meetings . In her view , ORG did not have any emotional ties with his father and did not need contact with him . Further , the applicant would be unable to properly care for ORG The mother lived together with her parents and her son .

On DATE a court guardian submitted a report to the court . According to that report , the applicant had not been visiting his son regularly on account of his being treated for depression and other illnesses . He had not seen his son since DATE . However , the mother of the applicant had been visiting her grandson regularly .

On DATE the applicant applied for an interim decision and asked for the right to have contact with his son during DATE of the LOC holidays , from TIME , and to take him away from his place of residence . On DATE ORG issued an interim decision allowing the applicant to visit his son during DATE of the LOC holidays from TIME at the child ’s place of residence .

On DATE the RODK issued an opinion commissioned by ORG . It had been prepared by a psychologist , an education specialist and a psychiatrist who had met the parents and the child and had been assisted by an interpreter of sign language . The experts stated that emotional ties between the mother and the child were strong – indeed , the mother had a tendency to be overprotective . The child ’s ties with the father were superficial and weak . The child recognised the applicant as his father but did not consider him a part of his family . The father ’s ties with the child were positive , but founded on limited experience and high expectations . These ties were also affected by the communication difficulties between them . The experts further noted that the conflict between the parents impeded their cooperation with regard to the child . They suggested that the parents be counselled by a specialist with a view to their being taught how to accept each other as a parent .

The experts opined that an increase in contact , as requested by the applicant , was not advisable , on account of the limited level of communication between him and the child , the child ’s age and history , and the strength of the child ’s ties with the mother and maternal grandparents . They recommended , however , that contact should also take place outside the mother ’s home ( at playgrounds , during walks ) but in her presence . The mother should cooperate with the father and support him in making his contact with the child more diverse . The experts noted that the ability of the applicant to care independently for his son was considerably limited . In their view , the interests of the child required that the parents cooperate with each other , despite the communication problems . The experts added that the mother should be more proactive in this regard but that the father should not contest the mother ’s decisions concerning the child .

NORP The applicant contested the experts’ findings and alleged that the opinion should have been prepared with the assistance of a specialist in deaf education and a psychologist specialising in the needs of deaf people . He claimed that their finding that contact could not take place without the presence of the mother on account of his ( that is to say the applicant ’s ) disability amounted to discrimination . The experts had also disregarded the possibility of the paternal grandmother rendering assistance and of ordering the parents to undergo family therapy .

The District Court heard evidence from the RODK experts . The psychologist , PERSON , admitted that the RODK did not have specialised methods of examining deaf people but stated that such methods were not necessary in respect of determining the advisability of maintaining contact . She noted that the child was well - developed and rehabilitated ( zrehabilitowanym ) . The main obstacle in respect of contact was the conflict between the parents and the lack of cooperation between them . Such circumstances created a particular difficulty in the case of a child with a hearing impairment . The psychologist observed that the applicant ’s disability also constituted an objective obstacle . In her opinion , contact should take place CARDINAL times a month .

The court dismissed the applicant ’s request for a second expert opinion since the earlier opinion was complete and comprehensive .

NORP The court also heard the parties and witnesses ( family members ) . It further took into account information submitted by a court guardian after visiting the applicant ’s and the mother ’s respective homes , together with relevant documentary evidence .

On DATE ORG dismissed the applicant ’s application for a change to the contact arrangements .

The court established that the parents of ORG remained in conflict and could not reach an agreement regarding the child ’s contact with the father . Since DATE the child had attended a nursery school with an integration unit , where he had remained under the supervision of a specialist in deaf education , a speech therapist and a psychologist . He suffered from a hearing impairment and used a hearing aid . The child required specialised medical care and followed a rehabilitation programme . He was certified as having a second - degree disability .

Having regard to all the evidence , and in particular the expert opinion , the court found that the requested change to the contact arrangements would not be in the child ’s best interests . It was true that the first decision in respect of contact had been given DATE previously , when ORG had been a baby and when the presence of his mother during contact had been justified by the child ’s age . However , the age of the child was not the only element to consider . Other relevant elements were the specifics of the child ’s development , his state of health , his disability , the need for his permanent medical rehabilitation and his heavy dependence on his mother and maternal grandparents . The court found that these elements still justified the discreet presence of the mother and at her home during the applicant ’s contact visits . It noted that the requested change to the contact arrangements would be too far - reaching , since the applicant wanted to see his son more often , outside ORG ’s place of residence and without the mother being present . The court observed that except for DATE of the child ’s life the applicant had not lived with him or cared for him . The applicant admitted that he had not always kept to scheduled visits . Sometimes the reasons for this had been beyond his control ( health problems or TIME school commitments ) and sometimes contact had been obstructed by the mother . However , in consequence , his limited and irregular involvement in the child ’s life had adversely influenced the emotional ties between the father and the son .

The court underlined that the applicant had not been fully availing himself of his rights to contact his son , as granted by the divorce judgment . Nonetheless , once their ties were strengthened and the applicant made full use of the rights already granted to him , it would be possible to extend contact .

The court also found that it could not disregard the communication problems between the applicant and his son . It did not agree with the applicant that this constituted a discriminatory measure against him ; rather , it constituted an objective and independent factor that hampered his communication with the child . The applicant , irrespective of his own and his son ’s disability , had an incontestable right to contact with his son . However , the communication problem should be taken into account in regulating the contact arrangements so they would remain as favourable as possible to the child . The court noted that the applicant used mostly sign language ( and articulated a few single words ) , while the child communicated only orally , so communication difficulties naturally arose . For this reason , it was still justifiable that the mother , who was able both to use sign language and communicate orally , should be present during the applicant ’s visits . The mother ’s presence , which provided the child with a sense of security , could also help him to relax during his meetings with the father . The court disagreed with the applicant that the paternal grandmother could ensure proper communication between him and his son . The issue was not only about interpreting between sign language and speech but also about ensuring security and stability , which could only be provided by the mother . The applicant ’s son did not know his paternal grandmother well and so her presence would not compensate for the absence of his mother .

The court underlined that the applicant ’s contact with his son should first and foremost ensure the security and stability of the child . The stress to which he would be exposed in the event of a change to his current environment and in the absence of persons with whom he usually spent his time would certainly jeopardise the child ’s well - being and damage his sense of security . The court dismissed the applicant ’s argument that the child spent most of DATE in a nursery school ( that is to say outside his home and without his mother ) , so he could easily stay at the applicant ’s father ’s home . It noted that the mother had been preparing her son for nursery school over a long period of time and had at first attended the school with him for short periods of time so he could become familiar with the place .

The court observed that the child ’s paternal grandmother had not visited her grandson for some time and was therefore not a person with whom the child was familiar or who could assist as an interpreter between the applicant and his son .

The fact that the child had been paying short unsupervised visits to a neighbour of the mother ’s family did not support the applicant ’s argument either . The court noted that the neighbour was a familiar person to the child , since he had been regularly visiting the child ’s family . In addition , the unsupervised visits to the neighbour ’s flat did not last longer than TIME .

Lastly , the court did not consider it necessary to impose an obligation on the parents to undergo family therapy . It noted that the experts had opined that both parents required contact with a specialist who would assist them in mutually accepting each other as a parent . However , the only suitable place for such therapy for persons with impaired hearing was the LOC of a foundation ( PERSON ) attached to the nursery school attended by the child . The mother stated that she already attended a parent support group there and the applicant declared that he could do the same . In these circumstances , the court found that there was no need for its intervention .

The applicant lodged an appeal with ORG . He argued that ORG had failed to respect the principle of non - discrimination against deaf and mute persons by dismissing his application for unsupervised contact with his son . He invoked LAW . The applicant further argued that the lower court had erred in holding that the child ’s interests did not justify a change to contact arrangements . The expert opinion indicated that the presence of the mother during contact created tensions between the parents and that this was unfavourable to the child . In addition , according to some witnesses , the contact took place in the presence of third parties .

The applicant contested the lower court ’s finding that the child ’s paternal grandmother was a stranger to him ; he argued that the child would not be exposed to stress in the event of contact without the mother ’s presence and outside her home in view of the fact that the child attended nursery school and was cared by a neighbour a few times a week . Lastly , the applicant contested the refusal to order a supplementary expert opinion .

On DATE ORG dismissed the applicant ’s appeal . It found that the lower ’s court assessment of the evidence had been correct and that the refusal to order a supplementary expert opinion had been justified .

ORG noted that the contact arrangements could be amended if the interests of the child so required ( Article CARDINAL of LAW ) . It concurred with the lower court that there was no justification for a change to the existing arrangements since the applicant already had the possibility of regular contact with his son and if used this would enable the parties to strengthen their ties . The findings of the RODK experts clearly supported the conclusion that no change was necessary . ORG also agreed that the existing conflict between the parents would certainly prevent the applicant from benefitting from increased contact . It stressed that the priority of the court in such cases was to take into account the interests of the child , not the interests of either of his or her parents .

It further underlined that the presence of the mother during visits was necessary in order to ensure the child ’s sense of security since the mother was the primary carer , with strong ties to the child . The paternal grandmother could not provide the same sense of security . In addition , the mother ’s presence would solve the problem of communication between the applicant and the child . The ORG did not agree with the applicant that the lower court ’s taking into account the issue of communication barrier had amounted to discrimination against him . The communication barrier was a real obstacle to the forging of ties between the applicant and his son and it could not be disregarded , given that the interests of the child were of primary consideration , overriding the individual interests of the parents . ORG stressed that this constituted an objective obstacle , not a form of discrimination against the applicant .

In DATE ORG brought an action in ORG for an order limiting the scope of the applicant ’s parental authority over ORG to those issues that concerned their son ’s education . She submitted that the applicant had refused to give his consent to an identity document being issued for the child .

NORP In DATE the applicant brought a counteraction seeking an order to compel ORG to undergo family therapy . He argued that ORG was acting to the child ’s detriment by refusing to cooperate with the applicant in matters concerning the child . She also humiliated and insulted the applicant in the child ’s presence and undermined his authority .

On DATE ORG restricted the applicant ’s parental authority over ORG to issues concerning his education . It dismissed the applicant ’s counteraction .

The court relied on the opinion prepared by the experts of the RODK for the purposes of the proceedings . The experts concluded that the joint exercise of parental authority was practically impossible . The reason for this was the permanent conflict between the parents , as well as the communication difficulties . The experts recommended that both parents undergo therapy with a view to developing their parenting skills . They further pointed out that that the possibility of communication between the applicant and his son was significantly restricted because of the different method that each used to communicate . In the view of the experts , the mother of the child properly exercised her parental authority , in particular with respect to the child ’s needs , the necessity of treatment , and the development of the child ’s social skills .

Having regard to the evidence , the court found that it was justifiable to restrict the applicant ’s parental authority and limit it only to matters concerning the child ’s education . Its decision was motivated by the lack of agreement between the parents in respect of the exercise of parental authority . The applicant was not to be solely blamed for this situation . Furthermore , communication with the applicant was limited on account of his disability ; however , the mother had been aware of this fact since the beginning of their relationship . The court further took into account the fact that the child was being raised by the mother , the parents lived apart , and there was a communication barrier between the applicant and the child . This was of importance in respect of matters concerning the child ’s health .

The court underlined that the fact that communication between the applicant and his son was limited did not mean that the applicant was a bad father . The court found that it was not necessary to give the applicant the possibility to have a say in matters concerning the child ’s medical treatment since these were sometimes urgent – therefore , it was the mother , with whom the child lived , who should decide on them .

With regard to the applicant ’s request for the mother to be obliged to undergo family therapy , the court did not find this justified . It took into account the fact that the mother had already been attending a support group and found no reasons to formally oblige her to undergo therapy . It was established that the mother had independently taken important decisions concerning the child of which she had not informed the applicant and that she was overprotective . Nonetheless , the court found that she properly exercised her parental authority and that the child ’s welfare was not endangered .

The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal . It underlined that the court of first instance had comprehensively assessed the evidence in the case . In the view of ORG , the limitation of the applicant ’s parental authority was in the interests of the child . It ruled that the communication barrier constituted an objective obstacle to relations between the applicant and his son and that taking it into account could not be considered to constitute a form of discrimination against the applicant .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

NORP 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 and PERSON , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by their Agents , first PERSON , and then PERSON and Ms A. PERSON , of ORG .

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

The applicant ’s grandfather owned several plots of agricultural land in the area surrounding GPE measuring QUANTITY in total , which were expropriated DATE for urban development .

Following the enactment of restitution legislation in GPE in DATE , on DATE the applicant ’s father applied to have the expropriation revoked . The request , initially addressed to the local agricultural land commission , was forwarded to the mayor of GPE on DATE , as it was decided that the DATE LAW ( see paragraph CARDINAL below ) applied to the case . After the time - limit for assessing whether the land should be returned elapsed without any decision being made , on CARDINAL DATE the applicant ’s father sought judicial review of the mayor ’s tacit refusal .

In a judgment of DATE ORG overturned the mayor ’s refusal in part by revoking the expropriation in so far as it concerned QUANTITY of land and returning the land in question to the applicant ’s father . ORG judgment was subject to supervisory review ( преглед по реда на надзора ) . Following a request by the mayor of GPE , on DATE the judgment was quashed by ORG and the case remitted to the lower court .

On DATE , after re - examining the case , ORG once again revoked the expropriation of the land and returned it to the applicant ’s father on the grounds that no construction works had yet taken place and that it was sufficient in size to form an independent plot . It did not comment on any rights to that land by third parties such as ORG and ET PERSON ( see paragraphs CARDINAL below ) .

No appeal was lodged against the above - mentioned judgment and on DATE it became final . On CARDINAL DATE the mayor of ORG applied to ORG to have the judicial proceedings reopened , referring to newly discovered evidence , but on DATE the application was dismissed .

On an unspecified date prior to CARDINAL DATE the applicant ’s father paid back MONEY ( ORG ) to the municipality , representing the monetary compensation received at the time of expropriation . At that time , because of inflation and the depreciation of NORP currency , the sum repaid equalled MONEY ( ORG ) . At the same time the applicant ’s father requested to have the plot of land marked as his in the relevant cadastral plans , which was necessary in order to obtain possession , but this was refused as it was established that third parties asserted competing rights to the same property ( see below ) .

Following expropriation , the plot of land at issue formed part of ORG ’s industrial zone and a plant , storehouses and accompanying infrastructure were constructed on it . In DATE the land was allocated for use by a ORG enterprise , which in DATE was transformed into a limited liability company and then in DATE into a joint - stock company named ORG ( “ PERSON More ” ) , the shares of which were owned entirely by the ORG .

In DATE PERSON More put QUANTITY of the land it owned up for sale . On DATE the land was sold to ET PERSON ( “ PERSON ” ) , a sole trader . It appears that this land was situated entirely within the boundaries of the larger QUANTITY plot which had been the subject of the applicant ’s father ’s restitution claim .

On DATE the applicant ’s father brought a rei vindicatio action against ORG and PERSON . He based his claim on ORG judgment of DATE ( see paragraph CARDINAL above ) , arguing that he owned the QUANTITY plot of land which PERSON had bought from ORG in DATE .

On DATE , upon a request by PERSON , to which the applicant ’s father consented , the proceedings were stayed pending the outcome of related litigation between the CARDINAL defendants regarding ownership of the disputed land . The proceedings were resumed in DATE , but were again briefly stayed pending the outcome of the application by the mayor of GPE for restitution proceedings to be reopened ( see paragraph CARDINAL above ) .

After the rei vindicatio proceedings were resumed , in their respective judgments of CARDINAL May and CARDINAL DATE ORG and ORG disallowed the claim . While the proceedings were under way , the applicant ’s father died and the applicant and her mother joined the proceedings as his heirs . They subsequently lodged an appeal on points of law .

In a judgment of DATE ORG quashed ORG judgment and remitted the case on the grounds that the lower courts had failed to take into account ORG judgment of DATE .

Following a fresh examination of the case , on DATE ORG once again dismissed the rei vindicatio claim . It found that PERSON More and PERSON were not bound by the judgment of CARDINAL DATE as they had not participated in the earlier proceedings and had only in the present proceedings had an opportunity to make their own claims . It further noted that a decision given in restitution proceedings could not prejudice the interests of third parties ; third parties who had in the meantime acquired property from the ORG could always oppose their rights to the former owner claiming restitution .

ORG further found that the urban development projects for which the land had been expropriated had been completed , which was sufficient ground to refuse restitution . Furthermore , by the time the restitution legislation had entered into force , the land had already become the property of ORG , as a result of its transformation into a limited liability company , whereas the legislation had only applied to property owned by the ORG or municipalities when it entered into force . In addition , the land had been lawfully acquired by PERSON in DATE . Accordingly , the applicant ’s father , succeeded by the applicant and her mother , could not have acquired any rights of ownership as a result of ORG judgment of DATE .

Following an appeal by the applicant and her mother , on DATE the above - mentioned judgment was upheld by ORG , which reiterated that in DATE PERSON had validly acquired ownership of the disputed plot . It held further that the rei vindicatio action was in fact time - barred because the applicant ’s father had not complied with the DATE time - limit provided for in paragraph CARDINAL of the transitional and concluding provisions of LAW ( see paragraph CARDINAL below ) .

On DATE during the course of these proceedings the applicant ’s mother died , leaving the applicant as her sole heir .

The ORG has not been informed of what happened to the remainder of the plot of land measuring QUANTITY following ORG judgment of DATE ( see paragraph CARDINAL above ) .

The Restitution of Property Expropriated under Building Planning Legislation Act ( ORG за възстановяване на собствеността върху някои отчуждени имоти по ORG , ORG , ORG , ORG и ЗС , “ the LAW ” ) entered into force in DATE . Its most relevant provisions have been summarised in the ORG ’s judgment in the case of ORG and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) . It did not contain any provision prohibiting the sale to third parties after its entry into force of properties which were subject to restitution claims .

The provisions of domestic law concerning the res judicata effect of court judgments have been summarised in the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL and CARDINAL , § § DATE , DATE ) .

Although not expressly stipulated in LAW , according to settled judicial practice restitution was only possible where the property taken had remained ORG or municipally - owned . The same view was expressed by ORG in a decision of CARDINAL DATE ( ORG № CARDINAL от CARDINAL г. на КС на РБ по PERSON д. № CARDINAL г. ) . According to settled judicial practice under LAW , third parties claiming property rights could not intervene in the ex parte proceedings under that LAW or challenge any decision restoring the former ORG rights , but could have their claims examined in separate judicial proceedings , in which the courts exercised “ indirect judicial review ” ( косвен контрол ) of the restitution decision . The scope of that review was discussed in an ORG of DATE of ORG , which noted that a third party claiming rights to a restituted property was not bound by a decision given under LAW and could dispute all preconditions for restitution as provided for under LAW , as this was its sole means by which to defend its rights ( ORG CARDINAL от CARDINAL г. на ORG по т. гр. д. № CARDINAL/CARDINAL г. ) .

The Transformation and Privatisation of State and Municipally - Owned Enterprises Act ( “ the LAW ” ) , enacted in DATE and superseded by other legislation in DATE , provided for the privatisation of ORG and municipally - owned enterprises and companies and publicly owned property . A summary of the legislation ’s provisions relating to the transformation of companies from public enterprises into companies is set out in the ORG ’s judgment in the case of GPE and GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . Transformation is also regulated by other legislation , summarised in the ORG ’s decision in the case of ORG and Others v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . Most notably , the transformation procedure involved transferring ownership of all the assets to the newly created company .

Pursuant to paragraph CARDINAL of the transitional and concluding provisions of LAW ( “ paragraph CARDINAL ” ) , which was added in DATE , creditors of ORG and municipally - owned enterprises and companies were obliged to notify their claims to the body competent to make a decision for privatisation . Notifications had to be made within DATE of the publication in ORG of a notice that the privatisation procedure had started . Creditors failing to give such notice forfeited their right to bring subsequent proceedings regarding the same claim .


Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Ledi Bianku;Mark Villiger;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano;Ksenija Turković

The applicants were born , respectively , in DATE in GPE and in DATE in GPE . They live in GPE , GPE .

The first applicant lived in GPE until DATE and again briefly from DATE . From DATE he lived in GPE with his uncle . He attended school there for DATE and speaks the local language . On DATE , when he was DATE , he entered GPE and requested asylum , which was refused by a final decision of CARDINAL DATE .

NORP In the meantime , on DATE , he had married a NORP national . Having regard to his marriage , on DATE , by virtue of the former section CARDINAL , subsection CARDINAL(ii ) , of LAW ( PERSON ) he was granted a residence permit , which became permanent on DATE .

On DATE the first applicant and his NORP wife got divorced .

On DATE the first applicant acquired NORP citizenship . At the relevant time he met the requirements set out in the relevant circular relating to the length of his period of residence ( DATE ) , age , general conduct , arrears owed to public funds and language proficiency .

On DATE the first applicant married the second applicant in GPE . He had met her during CARDINAL of CARDINAL visits to GPE made in DATE prior to their marriage .

On DATE , at ORG in GPE , GPE , the second applicant requested a residence permit for GPE with reference to her marriage to the first applicant . At that time she was DATE . She stated that she had never visited GPE . Her parents lived in GPE . On the application form , the first applicant submitted that he had not received any education in GPE , but had participated in various language courses and short - term courses concerning service , customer care , industrial cleaning , hygiene and working methods . He had been working in a slaughterhouse since DATE . He had no close family in GPE . He spoke and wrote LANGUAGE . The spouses had come to know each other in GPE and they communicated between themselves in the NORP and NORP languages .

At the relevant time , under section CARDINAL , subsection CARDINAL , of LAW family reunion could be granted only if both spouses were over DATE and their aggregate ties to GPE were stronger than the spouses’ attachment to any other country ( the so - called attachment requirement ) .

On DATE ORG ) refused the residence permit request because it found that it could not be established that the spouses’ aggregate ties to GPE were stronger than their aggregate ties to GPE .

In DATE or DATE the second applicant entered GPE on a tourist visa .

On DATE she appealed against ORG decision of DATE , to the then ORG ( Ministeriet for PERSON , ORG ) . The appeal did not have suspensive effect .

On DATE the applicants moved to GPE , GPE , which since DATE has been connected to GPE in GPE by a QUANTITY bridge ( GPE ) .

By Act no . CARDINAL of DATE , section CARDINAL , subsection CARDINAL , of LAW was amended so that the attachment requirement was lifted for persons who had held NORP citizenship for DATE ( the socalled DATE rule DATE CARDINAL-års reglen ) . Persons born or having arrived in GPE as small children could also be exempted from the attachment requirement , provided they had resided lawfully there for DATE .

On CARDINAL DATE the applicants had a son . He was born in GPE but is a NORP national by virtue of his father ’s nationality .

On DATE ORG upheld the decision by ORG of DATE to refuse to grant the second applicant a residence permit . It pointed out that in practice , the residing person was required to have stayed in GPE for DATE , provided that an effort had been made to integrate . In the case before it , it found that the ORG aggregate ties to GPE were not stronger than their ties to GPE and that the family could settle in GPE , as that would only require that the first applicant obtain employment there . In its assessment , it noted that the first applicant had entered GPE in DATE and had been a NORP national since DATE . He had ties with GPE , where he had been raised and had attended school . He had visited the country CARDINAL times in DATE . The second applicant had always lived in GPE and had family there .

On DATE , before ORG of Eastern GPE ( PERSON ) , the applicants instituted proceedings against ORG and relied on LAW , alone and in conjunction with LAW , together with LAW . They submitted , among other things , that it amounted to indirect discrimination against them when applying for family reunion , that persons who were born NORP citizens were exempt from the attachment requirement altogether , whereas persons who had acquired NORP citizenship at a later point in life had to comply with the CARDINAL-year rule before being exempted from the attachment requirement . In the present case that would entail that the first applicant could not be exempted from the attachment requirement until DATE , thus after DATE of NORP citizenship , and after reaching DATE .

In a judgment of CARDINAL DATE ORG of Eastern GPE unanimously found that the refusal to grant the applicants family reunion with reference to the DATE rule and the attachment requirement did not contravene the Articles of the Convention or of LAW relied upon . It stated as follows :

“ ... the facts given in the decisions of the immigration authorities in the case are found not to be in dispute .

Accordingly , [ the second applicant ] who is a NORP national , was thus DATE when she applied for a residence permit on DATE , and she had no ties with GPE other than her recent marriage to [ the first applicant ] . [ The second applicant ] had always lived in GPE and had family there . [ The first applicant ] had some ties with GPE , where he had lived with his uncle while attending school in GPE for DATE . He entered GPE in DATE at DATE and became a NORP national on DATE . [ The applicants ] married in GPE on DATE and have lived in GPE since DATE with their child , born on DATE . [ The first applicant ] has told ORG that the family can settle lawfully in GPE if he obtains paid employment in that country .

It appears from a ORG judgment of DATE , reproduced on page CARDINAL in the NORP Weekly Law Reports ( ORG for DATE , that LAW does not impose on ORG any general obligation to respect immigrants’ choices as to the country of their residence in connection with marriage , or otherwise to authorise family reunion .

In view of the information on [ the applicants’ ] situation and their ties with GPE , ORG accordingly finds no basis for setting aside the Respondent ’s decision establishing that [ the applicants’ ] aggregate ties with GPE were stronger than their aggregate ties with GPE and that [ the applicants ] therefore did not meet the attachment requirement set out in section CARDINAL , subsection CARDINAL , of LAW . In this connection , the High Court finds that the refusal did not bar [ the applicants ] from exercising their right to family life in GPE or in a country other than GPE . The fact that [ the first applicant ] is able to reside in GPE only if he obtains paid employment there is found not to lead to any other assessment . Accordingly , ORG holds that the decision of ORG did not constitute a breach of LAW .

Although ORG has held that LAW has not been breached in this case , ORG has to consider [ the applicants’ ] claim that , within the substantive area otherwise protected by DATE , the decision of ORG constituted a breach of Article CARDINAL read in conjunction with Article CARDINAL of the Convention .

ORG initially observes that [ the first applicant ] had been residing in GPE for DATE when the ORG issued its decision . Although he acquired NORP nationality in DATE , DATE after entering GPE , he did not meet the CARDINALyear nationality requirement applicable to all NORP nationals pursuant to section CARDINAL , subsection CARDINAL of LAW , irrespective of whether they are of foreign or NORP extraction . Nor did he have the comparable attachment to GPE throughout DATE which will generally lead to an exemption from the attachment requirement according to the preparatory work of the DATE statutory amendment .

The CARDINAL-year rule is a generally - worded relaxation of the attachment requirement based on an objective criterion . In practice , however , the rule may imply that a NORP national of foreign extraction will only meet the CARDINAL-year rule later in life than would be the case for a NORP national of NORP extraction . When applied , the rule may therefore imply an indirect discrimination .

According to the relevant explanatory report , LAW must be taken to mean that LAW concerns the conditions for acquiring nationality while LAW concerns the principle of non - discrimination . According to the report , it is not a mandatory rule that GPE are obliged to observe in all situations . Against that background , LAW is considered to offer protection against discrimination to an extent that goes no further than the protection against discrimination offered by LAW .

The assessment of whether the refusal of the ORG implied discrimination amounting to a breach of LAW read in conjunction with LAW is accordingly considered to depend on whether the difference in treatment which occurred as a consequence of the attachment requirement in spite of nationality can be considered objectively justified and proportionate .

According to the preparatory work of the LAW , the overall aim of the attachment requirement , which is a requirement of lasting and strong links to GPE , is to regulate spousal reunion in GPE in such a manner as to ensure the best possible integration of immigrants in GPE , an aim which must in itself be considered objective . In the view of ORG , any difference in treatment between NORP nationals of NORP extraction and NORP nationals of foreign extraction can therefore be justified by this aim as regards the right to spousal reunion if a NORP national of foreign extraction has no such lasting and strong attachment to GPE .

The balancing of this overall consideration relating to the specific circumstances in the case requires a detailed assessment . The High Court finds that the assessment and decision of the Ministry were made in accordance with section CARDINAL(CARDINAL ) of LAW and the preparatory work describing the application of the provision . Accordingly , and in view of the specific information on [ the first applicant ’s ] situation , the High Court finds no sufficient basis for holding that the refusal by the Ministry to grant a residence permit to [ the second applicant ] with reference to the attachment requirement of LAW implies a disproportionate infringement of [ the first applicant ’s ] rights as a NORP national and his right to family life . ORG therefore finds that the decision of ORG was not invalid , and that it was not contrary to LAW . ”

The applicants appealed against the judgment to ORG ( Højesteret ) , which delivered its judgment on DATE upholding the ORG judgment .

ORG , composed of CARDINAL judges , found , unanimously , that it was not in breach of LAW to refuse the second applicant a residence permit in GPE . It stated as follows :

“ In its decision of DATE , ORG refused the application from [ the second applicant ] for a residence permit on the grounds that the aggregate ties of herself and her spouse [ the first applicant ] with GPE were not stronger than their aggregate ties with GPE ( see section CARDINAL , subsection DATE , of LAW ) .

[ The applicants ] first submitted that the refusal was unlawful because it was contrary to LAW . If the refusal was not contrary to LAW , they submitted as their alternative claim that it was contrary to the prohibition against discrimination enshrined in LAW read in conjunction with LAW , for which reason they were eligible for family reunion in GPE without satisfying the attachment requirement set out in section CARDINAL(CARDINAL ) of the Act .

For the reasons given by ORG , ORG upholds the decision made by ORG that it is not contrary to Article CARDINAL to refuse [ the second applicant ’s ] application for a residence permit . ”

NORP Moreover , the majority in ORG ( CARDINAL judges ) found that the DATE rule was in compliance with LAW in conjunction with LAW . They stated as follows :

“ Pursuant to section CARDINAL , subsection DATE , as worded by LAW . CARDINAL of DATE , the requirement that the spouses’ or ORG aggregate ties with GPE must be stronger than their aggregate ties with another country ( the attachment requirement ) does not apply when the resident has been a NORP national for DATE ( the CARDINAL-year rule ) .

Until DATE , NORP nationals had had a general exemption from the attachment requirement . Act No . CARDINAL of DATE tightened the conditions of family reunion , CARDINAL of the consequences being that the attachment requirement would subsequently also apply to family reunion where CARDINAL of the partners was a NORP national . CARDINAL of the reasons for extending the attachment requirement to include NORP nationals also given in the preparatory work ( on page CARDINAL of Schedule A to ORG for DATE ( CARDINALnd session ) ) is that there are NORP nationals who are not particularly well integrated in NORP society and for this reason the integration of a spouse newly arrived in GPE may entail major problems .

It quickly turned out that this tightening had some unintended consequences for persons such as NORP nationals who had opted to live abroad for a lengthy period and who had started a family while away from GPE . For that reason , the rules were relaxed with effect from DATE so that family reunion in cases where CARDINAL of the partners had been a NORP national for DATE was no longer subject to satisfaction of the requirement of stronger aggregate ties with GPE .

According to the preparatory work in respect of the relaxation , the ORG found that the fundamental aim of tightening the attachment requirement in DATE was not forfeited by refraining from demanding that the attachment requirement be met in cases where the resident had been a NORP national for DATE ( see page CARDINAL of Schedule A to ORG for DATE ) . It is mentioned in this connection that NORP expatriates planning to return to GPE DATE with their families will often have maintained strong ties with GPE , which have also been communicated to their spouse or cohabitant and any children . This is so when they speak LANGUAGE at home , take holidays in GPE , read NORP newspapers regularly , and so on . Thus , there will normally be a basis for successful integration of NORP expatriates’ family members into NORP society .

Persons who have not been NORP nationals for DATE , but were born and raised in GPE , or came to GPE as small children and were raised here , are normally also exempt from the attachment requirement when they have stayed lawfully in GPE for DATE .

A consequence of this current state of the law is that different groups of NORP nationals are subject to differences in treatment in relation to their possibility of being reunited with family members in GPE , as persons who have been NORP nationals for DATE are in a better position than persons who have been NORP nationals for DATE .

According to the case - law of ORG , nationals of a country do not have an unconditional right to family reunion with a foreigner in their home country , as factors of attachment may also be taken into account in the case of nationals of that country . It is not in itself contrary to the LAW if different groups of nationals are subject to statutory differences in treatment as regards the possibility of obtaining family reunion with a foreigner in the country of their nationality .

In this respect , reference is made to paragraph CARDINAL of the judgment delivered by ORG DATE in the case of ORG and NORP v. GPE . In this case the ORG found that it was not contrary to the LAW that a person born in GPE who had later moved to GPE and become a national of GPE was treated less favourably as regards the right to family reunion with a foreigner than a national born in GPE or whose parent(s ) were born in GPE . The ORG said in that respect : ‘ It is true that a person who , like PERSON , has been settled in a country for DATE may also have formed close ties with it , even if he or she was not born there . Nevertheless , there are in general persuasive social reasons for giving special treatment to those whose links with a country stem from birth within it . The difference of treatment must therefore be regarded as having had an objective and reasonable justification and , in particular , its results have not been shown to transgress the principle of proportionality.’ The ORG then held that PERSON was not a victim of discrimination on the ground of birth .

As regards PERSON , who was a national of GPE , it was not contrary to the Convention to make it an additional requirement for family reunion that she must have been born in GPE . A different additional requirement is made under NORP law : a requirement of NORP nationality for DATE . The question is whether [ the first applicant ] is subjected to discrimination contrary to the Convention owing to this criterion .

We find that the criterion of DATE of NORP nationality has the same aim as the requirement of birth in GPE , which was accepted by ORG in the DATE judgment as not being contrary to the Convention : to distinguish a group of nationals who , seen from a general perspective , had lasting and strong ties with the country .

In general , a person of DATE who has held NORP nationality since birth will have stronger real ties with GPE and greater insight into NORP society than a DATE person who DATE like [ the first applicant ] – only established links with NORP society as a young person or an adult . This also applies to NORP nationals who have stayed abroad for a shorter or longer period , for example in connection with education or work . We find that the CARDINAL-year - rule is based on an objective criterion , as it must be considered objectively justified to select a group of nationals with such strong ties with GPE when assessed from a general perspective that it will be unproblematic to grant family reunion with a foreign spouse or cohabitant in GPE as it will normally be possible for such spouse or cohabitant to be successfully integrated into NORP society .

Even though it is conceivable that a national who has had NORP nationality for DATE may in fact have weaker ties with GPE than a national who has had NORP nationality for a shorter period , this does not imply that the CARDINAL-year rule should be set aside pursuant to ORG Reference is made to the case , relative to the then applicable additional NORP requirement of place of birth considered by ORG , of a national who was not born in GPE , but who had in reality stronger ties with GPE than other nationals who satisfied the requirement of place of birth , but had moved abroad with their parents at a tender age or maybe had even been born abroad . It is noted in this respect that it was sufficient to satisfy the then NORP requirement of place of birth for CARDINAL of the relevant person ’s parents to have been born in GPE .

We also find that the consequences of the DATE rule can not be considered disproportionate relative to [ the first applicant ] . [ He ] was born in GPE in DATE and came to GPE in DATE . After DATE residence , he became a NORP national in DATE . In DATE he married [ the second applicant ] and applied for reunion with his spouse in GPE . The application was finally refused in DATE . The factual circumstances of this case are thus in most material aspects identical to PERSON situation assessed by ORG in its judgment in DATE , when the ORG found that the principle of proportionality had not been violated . She was born in GPE in DATE or DATE . She first went to GPE in DATE and obtained nationality of GPE in DATE . She married a NORP national NORP in DATE , and their application for spousal reunion in GPE for the husband of a NORP national was refused DATE . A comparison of the CARDINAL cases reveals that both [ the first applicant ] and PERSON only came to GPE and GPE , respectively , as adults . In [ the first applicant ’s ] case , the application was refused when he had resided in GPE for DATE , CARDINAL of which as a NORP national . In PERSON case , the application was refused after she had resided in GPE for DATE , CARDINAL of which as a NORP national .

On these grounds we find no basis in case - law to find that the DATE rule implied discrimination against [ the first applicant ] contrary to the LAW .

As regards the significance of LAW DATE , we find for the reasons stated by ORG that it can not be a consequence of LAW that the scope of the prohibition against discrimination based on LAW read in conjunction with LAW should be extended further than justified by the DATE judgment .

We hold on this basis that the refusal of residence for [ the second applicant ] given by ORG can not be set aside as being invalid because it is contrary to LAW .

For this reason we vote in favour of upholding the High Court judgment . ”

A minority of CARDINAL judges were of the view that the DATE rule implied indirect discrimination between persons who were born NORP citizens and persons who had acquired NORP citizenship later in life . Since persons who were born NORP citizens would usually be of NORP ethnic origin , whereas persons who acquired NORP citizenship at a later point in their life would generally be of foreign ethnic origin , the CARDINAL-year rule also entailed indirect discrimination between ethnic NORP citizens and NORP citizens with a foreign ethnic background . More specifically , they stated as follows :

“ As stated by the majority , the requirement of section CARDINAL , subsection DATE , of LAW that the spouses’ or ORG aggregate ties with GPE must be stronger than their aggregate ties with another country ( the attachment requirement ) does not apply when the resident person has been a NORP national for DATE ( the CARDINALyear rule ) .

The CARDINAL-year rule applies both to persons born NORP nationals and to persons acquiring NORP nationality later in life , but in reality the significance of the rule differs greatly for the CARDINAL groups of NORP nationals . For persons born NORP nationals , the rule only implies that the attachment requirement applies until they are DATE . For persons not raised in GPE who acquire NORP nationality later in life , the rule implies that the attachment requirement applies until DATE have passed after the date when any such person became a NORP national . As an example , [ the first applicant ] who became a NORP national at DATE , will be subject to the attachment requirement until he is DATE . The CARDINAL-year rule therefore implies that the major restriction of the right to spousal reunion resulting from the attachment requirement will affect persons who only acquire NORP nationality later in life far more often and with a far greater impact than persons born with NORP nationality . Hence , the CARDINAL-year rule results in obvious indirect difference in treatment between the CARDINAL groups of NORP nationals .

The vast majority of persons born NORP nationals will be of NORP ethnic origin , while persons acquiring NORP nationality later in life will generally be of other ethnic origin . At the same time , the CARDINAL-year rule therefore implies obvious indirect difference in treatment between NORP nationals of NORP ethnic origin and NORP nationals of other ethnic origin regarding the right to spousal reunion .

Pursuant to section CARDINAL , subsection CARDINAL , of LAW , the attachment requirement may be disregarded if exceptional reasons make this appropriate . According to the preparatory work of LAW , this possibility of exemption is to be administered in such a manner that aliens who were born and raised in GPE or who came to GPE as small children and were raised here must be treated comparably to NORP nationals , which means that they will be exempt from the attachment requirement when they have lawfully resided in GPE for DATE . However , relative to persons who were not raised in GPE , but acquire NORP nationality later in life , this does not alter the situation described above concerning the indirect difference in treatment implied by the CARDINAL-year rule .

When the attachment requirement was introduced by Act No . CARDINAL of CARDINAL DATE , all NORP nationals were exempt from the requirement . Act No . CARDINAL of DATE made the attachment requirement generally applicable also to NORP nationals . Concerning the reason for this , the preparatory work in respect of the LAW states , inter alia : ‘ With resident aliens and NORP nationals of foreign extraction it is a widespread marriage pattern to marry a person from their country of origin , among other reasons due to parental pressure ... The Government find that the attachment requirement , as it is worded DATE , does not take sufficient account of the existence of this marriage pattern among both resident foreigners and resident NORP nationals of foreign extraction . There are thus also NORP nationals who are not well integrated into NORP society and where integration of a spouse newly arrived in GPE may therefore entail major problems.’ By Act No . CARDINAL of DATE , the application of the attachment requirement to NORP nationals was restricted through the CARDINAL-year rule , and the preparatory work in respect of the LAW stated that the purpose was , inter alia , ‘ to ensure that NORP expatriates with strong and lasting ties to GPE in the form of DATE of NORP nationality will be able to obtain spousal reunion in ORG . In the light of these notes , it is considered a fact that the indirect difference in treatment between NORP nationals of NORP ethnic extraction and NORP nationals of other ethnic extraction following from the CARDINAL-year rule is an intended consequence .

Under LAW , the enjoyment of the rights and freedoms recognised by the LAW , including the individual ’s right under LAW for his or her family life , must be ‘ secured without discrimination on any ground such as sex , race , colour , language , religion , political or other opinion , national or social origin , association with a national minority , property , birth or other status’ . As mentioned above , the CARDINAL-year rule implies both indirect difference in treatment between persons born NORP nationals and persons only acquiring NORP nationality later in life and , in the same connection , indirect difference in treatment between NORP nationals of NORP ethnic extraction and NORP nationals of other ethnic extraction . Both these types of indirect difference in treatment must be considered to fall within Article CARDINAL read in conjunction with Article CARDINAL of the Convention . The QUANTITY types of indirect difference in treatment implied by the CARDINALyear rule are therefore contrary to LAW unless the difference in treatment can be considered objectively justified and proportionate .

LAW of DATE , which has been ratified by GPE , provides in LAW : ‘ ORG shall be guided by the principle of non - discrimination between its nationals , whether they are nationals by birth or have acquired its nationality PERSON . The memorandum of DATE made by ORG and the memorandum of DATE made by the working group composed of representatives of ORG , ORG and ORG state that the provision solely concerns issues on the revocation and loss of nationality . In our opinion it is dubious whether there is any basis for such a restrictive interpretation as the provision , according to its wording , comprises any difference in treatment exercised as a consequence of how and when nationality was acquired . As is apparent from the explanatory report , the provision is not a prohibition from which no derogation may be made , and the provision must be taken to mean that it may be derogated from if the difference in treatment is objectively justified and proportionate . However , when assessing the CARDINAL-year rule relative to LAW read in conjunction with LAW , we consider it necessary to include the fact that , at least according to its wording , LAW comprises a general provision stating that any difference in treatment between different groups of ORG own nationals is basically prohibited .

In an assessment made under LAW read in conjunction with LAW , another factor to be taken into consideration is the crucial importance of being entitled to settle with one ’s spouse in the country of one ’s nationality .

As mentioned , NORP nationals were originally generally exempt from the attachment requirement . ORG established in a judgment reproduced on p. CARDINAL in the NORP Weekly Law Reports for DATE that discrimination relative to the right to spousal reunion based on whether the resident spouse is a NORP or foreign national is not contrary to the prohibition of discrimination laid down in LAW read in conjunction with LAW . In this respect , ORG referred to paragraphs CARDINAL of the judgment delivered by ORG DATE in ORG and NORP v. the GPE . Difference in treatment based on nationality must be seen , inter alia , in the light of the right of NORP nationals to settle in GPE , and no significance can be attributed to the fact that such discrimination is not considered contrary to LAW CARDINAL when assessing whether it is permissible to implement a scheme implying a difference in treatment between different groups of NORP nationals . In our opinion , no crucial significance can be attributed to paragraphs CARDINAL to CARDINAL of the Abdulaziz , Cabales and NORP judgment either in this assessment , among other reasons because difference in treatment based on the length of a person ’s period of nationality is not comparable to a difference in treatment based on place of birth .

In the cases in which the attachment requirement applies , some of the factors emphasised are whether the resident spouse has strong links to GPE by virtue of his or her childhood and schooling in GPE . Such strong attachment to GPE will exist in most cases where a person has held NORP nationality for DATE . However , when assessing whether the difference in treatment implied by the CARDINALyear rule can be considered objectively justified , it is not sufficient to compare persons not raised in GPE who acquire NORP nationality later in life with the large group of persons who were born NORP nationals and were also raised in GPE . If exemption from the attachment requirement was justified only by regard for the latter group of NORP nationals , the exemption should have been delimited differently . The crucial element must therefore be a comparison with persons who were born NORP nationals and have been NORP nationals for DATE , but who were not raised in GPE and may perhaps not at any time have had their residence in GPE . In our opinion , it can not be considered a fact that , from a general perspective , this group of NORP nationals has stronger ties with GPE than persons who have acquired NORP nationality after entering and residing in GPE for DATE . It should be taken into consideration in that connection that one of the general conditions for acquiring NORP nationality by naturalisation is that the relevant person has resided in GPE for DATE , has proved his or her proficiency in the NORP language and knowledge of NORP society and meets the requirement of self - support .

Against that background , it is our opinion that the indirect difference in treatment implied by the DATE rule can not be considered objectively justified , and that it is therefore contrary to LAW .

The consequence of this must be that , when applying section CARDINAL , subsection CARDINAL , of LAW to NORP nationals , the authorities must limit the CARDINAL-year rule to being solely an age requirement , meaning that the attachment requirement does not apply in cases where the resident spouse is a NORP national and is DATE .

Accordingly , we vote for ruling in favour of the [ applicants’ ] claim to the effect that ORG must declare invalid the decision of CARDINAL DATE , thereby remitting the case for renewed consideration .

In view of the outcome of the voting on this claim we see no reason to consider the claim for compensation . ”

The applicants remained in GPE and did not subsequently apply for family reunion in GPE , which they could have done under section CARDINAL , subsection CARDINAL of LAW , had the first applicant decided to reside in GPE anew . He maintained a job in GPE and therefore commuted DATE from GPE in GPE to GPE in GPE .


András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants , Mr PERSON and Mr GPE , are NORP nationals , who were born in DATE and DATE respectively and live in GPE .


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

The applicant entered GPE for the first time on DATE when he was DATE .

NORP In DATE the applicant was arrested for working illegally , and on DATE ORG ( Bezirkshauptmannschaft ) issued a decision imposing a DATE residence ban ( Aufenthaltsverbot ) on him .

On DATE the applicant lodged an asylum claim , which on CARDINAL DATE was dismissed by ORG ( Bundesasylamt ) as unfounded . His appeal against that decision was dismissed , and he voluntarily returned to GPE in DATE .

On DATE the applicant returned to GPE and lodged a fresh asylum claim on DATE , this time together with his wife and their daughter . The asylum claim was dismissed by ORG on DATE , but the applicant and his family were granted subsidiary protection . They received a temporary residence permit , which was extended several times .

The applicant ’s temporary residence permit , which was based on his right to subsidiary protection , expired in DATE , as he had not applied for its renewal .

On DATE ORG ( Bezirksgericht – hereinafter “ the GPE ” ) convicted the applicant of bodily harm and sentenced him to a fine of QUANTITY ( ORG ) , suspended in part on the basis of a probationary period .

NORP On DATE ORG ( PERSON – hereinafter “ the ORG ” ) convicted the applicant of bodily harm . He was sentenced to a fine of LAW , which was suspended on the basis of a probationary period .

On DATE ORG convicted the applicant of aggravated burglary and sentenced him to CARDINAL months’ imprisonment , DATE of which were suspended on the basis of a probationary period . He was in pre - trial detention and then prison from CARDINAL July to CARDINAL DATE .

On DATE ORG convicted the applicant of participating in a brawl , for which he was sentenced to a fine of ORG CARDINAL .

On DATE ORG convicted the applicant of bodily harm and sentenced him to a fine of LAW .

On DATE ORG convicted the applicant of several offences under LAW ( NORP ) and aggravated threat , and he was sentenced to CARDINAL months’ imprisonment . The suspension of DATE months’ imprisonment in the sentence of DATE ( see paragraph CARDINAL above ) was revoked . The applicant was in prison from CARDINAL May until DATE . A part of the prison sentence was postponed until DATE , when the applicant started serving the remainder of the sentence .

On DATE , hence while he was in prison , ORG convicted the applicant of an offence under LAW and sentenced him to a fine of CARDINAL ORG .

On CARDINAL DATE ORG convicted the applicant , who was still in prison at that time , of attempted bodily harm , bodily injury caused by negligence , and endangering the physical integrity of others , and sentenced him to a fine .

On DATE ORG convicted the applicant of aggravated threat and sentenced him to CARDINAL months’ imprisonment . It was his ninth criminal conviction in GPE .

On DATE , as a consequence of his criminal convictions , ORG issued the applicant with a ban prohibiting his return to GPE ( Rückkehrverbot , see paragraph CARDINAL below ) , which was valid for DATE . It however remained without effect as long as his subsidiary protection status was still valid ( see paragraph CARDINAL below ) . ORG Sicherheitspolizeidirektion ) confirmed the ban in a decision of CARDINAL DATE . The applicant did not appeal against that decision .

On DATE the Innsbruck ORG instituted proceedings to withdraw the applicant ’s subsidiary protection . On DATE it conducted an interview with him , during which he stated the following concerning his living situation in GPE . He had CARDINAL children , born in DATE , CARDINAL , DATE and DATE respectively . His parents , his CARDINAL siblings and their spouses and children all lived in the same city as him . His parents and his older brother were recognised refugees . He and his parents lived in the same house . He was working as a maintenance man and translator for NORP and NORP , and his wife was also working . Both had a regular income . His father still owned some land and CARDINAL shops in GPE , which were run by relatives at that time . The applicant stated that if he had to return to GPE he would not know what to do there or where to go . He had a “ bad feeling ” about returning , but did not fear any repression . The security situation was bad , and the views of society were primitive . His wife and children would not have to fear any problems upon returning to GPE , and would probably join him if he were expelled . He would , however , prefer to stay in GPE , where his children went to school .

On DATE ORG withdrew the applicant ’s subsidiary protection status under section CARDINAL ( CARDINAL ) of LAW ( Asylgesetz ) . It found that there was no longer a risk of a violation of the applicant ’s rights under LAW if he was returned to GPE , and declared his expulsion admissible . Quoting international sources , it explained that the security situation in GPE had significantly improved in DATE and was now considered to be stable . There was no threat from ORG ( ORG GPE ) anymore , which the applicant had initially alleged when applying for asylum .

Turning to the applicant ’s rights under LAW , ORG acknowledged how established his private and family life was in GPE , where his family members were living . However , it referred to his numerous convictions for crimes against life and limb as well as property , and concluded that the public interest in his expulsion outweighed his personal interest in remaining in the country . ORG specifically mentioned the CARDINAL convictions for drug offences in DATE and DATE , which it considered particularly serious . Further , it held that the applicant still had ties with GPE , because he had grown up there , spoke NORP , and was physically capable of working in order to earn a living . According to the applicant ’s own statements , his father still owned some land and CARDINAL shops in GPE , so it could be assumed that he could find work . Given that the applicant ’s wife had her own income , ORG further assumed that she would be able to take care of the needs of the family , and that the applicant could send her financial maintenance from GPE .

On DATE ORG ( Asylgerichtshof ) confirmed the relevant parts of ORG decision . It held that , according to LAW in conjunction with LAW ) , the fines the applicant had received for his criminal convictions ( CARDINAL DATE rates in total ) , amounted to almost twentyfour months’ imprisonment ( see paragraphs CARDINAL below ) . The actual prison sentences he had received amounted to DATE in total , which was considerable . ORG concluded that , even though the applicant had strong private and family ties in GPE , the public interest in his expulsion in order to prevent crime outweighed his personal interest in continuing his family life in GPE . He had reoffended even after he had been issued with the ban prohibiting his return to GPE , a fact which did not speak in his favour . Also , he could reapply for a residence permit in DATE when the ban expired .

The applicant lodged a complaint against that decision with ORG . Among other things , he stated that CARDINAL of his daughters had in fact been born as a result of an extra - marital relationship with an NORP citizen , and was living with her NORP mother and not with him . The applicant claimed that it would be difficult to maintain contact with her if he were expelled to GPE .

ORG then asked ORG to submit a statement regarding this new fact . ORG replied on CARDINAL DATE that the applicant had spoken of CARDINAL children throughout the proceedings , but had never mentioned that CARDINAL of them had in fact been born as a result of an extra - marital relationship and had never lived with him in the same household . He could continue to pay financial maintenance from GPE for his daughter . ORG expressed the view that the decision to declare the applicant ’s expulsion admissible was nonetheless proportionate to the aims pursued , as his family life with his illegitimate daughter was in any event much less established than that with his other family members .

On DATE ORG refused to deal with the applicant ’s complaint . That decision was served on the applicant ’s counsel on DATE .

The applicant was in pre - trial detention and prison from DATE ( in relation to the criminal conviction of CARDINAL DATE , see paragraph CARDINAL above ) until he was placed in detention pending his expulsion on DATE .

On DATE the applicant was expelled to GPE . His family decided to remain in GPE .

The ban on the applicant ’s returning to GPE is in force until DATE .


NATIONALDEMOKRATISCHE PARTEI DEUTSCHLANDS (NPD) v. GERMANY

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

NORP The applicant , ORG of GPE ( ORG , ORG ) , is a NORP political party . It was represented before the ORG by PERSON , a lawyer practising in GPE .

NORP The applicant was founded on DATE . It regularly participates in elections to ORG , ORG ( GPE ) , parliaments of the LOC and municipal elections . At the time the present application was lodged , the applicant was represented in the parliaments of ORG and GPE , as well as numerous city councils and county councils .

In DATE , ORG , ORG ( NORP ) and ORG ( Bundesregierung ) lodged an application for the ban of the applicant ( Verbotsantrag ) with ORG ( ORG . CARDINAL ORG CARDINAL/CARDINAL , QUANTITY BvB CARDINAL/CARDINAL , QUANTITY BvB CARDINAL/CARDINAL ) pursuant to LAW ( see relevant domestic law and practice , paragraph CARDINAL ) . The plaintiffs alleged that the applicant was unconstitutional and sought to damage the free democratic basic order ( freiheitlich - demokratische LOC ) . They claimed that the applicant propagated views that were ORG , anti - NORP , racist and anti - democratic and sought to abolish what it called the “ system ” imposed by the ORG powers at DATE . They further stated that the applicant worked towards restoring the “ community of the people ” ( ORG ) and towards replacing the multi - party parliamentary democracy by a “ rule of the people ” ( ORG ) of the “ national elites ” ( nationale ORG ) . Finally , they alleged that the members and supporters of the applicant did not hesitate to use violence and threatened their opponents with “ reckoning ” ( GPE ) upon taking power .

On DATE ORG decided to discontinue the proceedings because the statements cited in support of the unconstitutionality of the party could not be clearly distinguished from those of undercover agents of the intelligence services . It found that the principle of separation between party and ORG ( PERSON ) , which was an essential requirement for proceedings aimed at banning the applicant , was not respected due to the influence of those agents , who were even present in the party ’s leadership , on the applicant ’s decision - making process .

On DATE the applicant lodged an application against ORG , ORG and ORG with ORG ( no . DATE ) , seeking a declaration that it was not unconstitutional within the meaning of LAW of LAW . In the alternative ( hilfsweise ) , it requested to find that the defendants violated its rights under LAW first sentence of LAW by constantly stating that the applicant was unconstitutional , thereby causing the effects of de facto ban , without initiating party ban proceedings . In the further alternative ( höchst hilfsweise ) it requested to find that its rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before ORG .

NORP In support of its application , the applicant cited leading politicians –Prime Ministers and Ministers of the Interior of different NORP and members of ORG who had stated that the ORG was unconstitutional . The applicant alleged that its members who were working in the public sector had been subject to disciplinary measures or even been excluded from public service because of their affiliation with the party . It submitted that its candidates were not allowed to stand at municipal elections in ORG and in the Land of Thuringia . The applicant submitted that it had made CARDINAL unsuccessful requests to open accounts at public and private banks and that it had to pursue legal action against public banks in CARDINAL cases . It further submitted that it was required to engage in proceedings before the administrative courts almost every time it intended to rent communal space for its events , because the towns had refused to let it use their premises due to a fear of acts by “ the extreme left ” . The applicant added that it did no longer find companies willing to provide liability insurance for its events , which was a prerequisite for renting communal space . It complained that its authorised demonstrations were regularly disturbed by opponents and that the police did not sufficiently protect these demonstrations . It pointed out that its members were regularly victims of criminal offences committed by “ the extreme left ” . The applicant moreover complained that public funds allocated to projects against “ the extreme right ” referred to it as a party of the extreme right and concluded that these funds were used to combat it . Finally , it claimed that the media did not sufficiently give it the floor .

The applicant maintained that the remedies available before domestic courts were not sufficient to protect its interests , given the extent of discrimination and restrictive measures it was confronted with on the one hand and its limited resources on the other hand . It considered that the constant “ stigmatisation ” and perpetual debate about its potential ban amounted to a “ de facto ban ” . It submitted that the defendants were , by stigmatising the applicant and by calling on the public to “ combat against the far right ” ( PERSON gegen PERSON ) , also at the origin of and hence responsible for the discriminatory acts and criminal offences which private actors committed against the applicant and its members .

On DATE ORG dismissed the application . The decision was served on the applicant on DATE .

ORG held that the application for a declaration that the applicant was not unconstitutional was inadmissible . It stated that LAW of ORG ( Bundesverfassungsgerichtsgesetz , see relevant domestic law and practice , paragraph CARDINAL ) provided that only ORG , ORG and ORG could apply for decision on whether a political party was unconstitutional . Domestic law did not provide that a political party could have recourse to ORG to have its constitutionality ascertained . It observed that this did not amount to a gap in legal protection , since the applicant and its members could pursue legal action before administrative , civil and criminal courts whenever its or their rights were infringed .

NORP In response to the applicant ’s argument that it did not have the resources to pursue legal action in each and every case , ORG stated that this posed a practical challenge that could be overcome with reasonable efforts . It emphasised that a political party which participated in forming public opinion had to accept being criticised as “ hostile to the constitution ” ( verfassungsfeindlich ) within the limits of freedom of expression . Where public authorities engaged in political debate , they had to respect the limits set by LAW , which were subject to judicial review . ORG considered that a discussion whether or not to initiate party ban proceedings was lawful as long as it contributed to the decision - making process and was not aimed at discriminating against the party concerned . It noted that there were remedies which allowed the applicant to challenge the allegation that it was unconstitutional , such as remedies against the surveillance by intelligence services . It observed that the same held true for the applicant ’s members with regard to their employment in public service and added that a lack of success in the respective court proceedings did not mean that there was a gap in legal protection .

The Federal Constitutional Court further found that the application , lodged in the alternative , to find that the defendants violated the applicant ’s rights under LAW first sentence of LAW by constantly stating that the applicant was unconstitutional , thereby causing the effects of de facto ban , without initiating party ban proceedings , was also inadmissible . It found that , even though this application could in principle be the subject of a “ dispute between constitutional organs ” ( PERSON , see relevant domestic law and practice , paragraphs CARDINAL , DATE and DATE ) , it was not sufficiently substantiated . It noted that the statements and measures cited by the applicant were not made on behalf of ORG , ORG or ORG , but rather by some of their members only . Therefore , they could not be attributed to these organs . Nor did the applicant substantiate that they infringed , or were about to infringe , its status as a political party .

Finally , ORG observed that the application , lodged in the further alternative , to find that the applicant ’s rights were violated because there was no remedy allowing political parties to ascertain their constitutionality before ORG was manifestly ill - founded . It argued that there was no gap in legal protection for the reasons set out in relation to the main application ( see paragraphs CARDINAL ) , which precluded a violation of the applicant ’s rights .

On DATE ORG lodged a new application for the ban of the applicant pursuant to LAW with ORG ( no . CARDINAL BvB CARDINAL ) . The proceedings are pending .

The relevant provisions of LAW are worded as follows :

“ ( CARDINAL ) ORG parties shall participate in the formation of the political will of the people . They may be freely established . Their internal organisation must conform to democratic principles . They must publicly account for their assets and for the sources and use of their funds .

( CARDINAL ) NORP Parties which , through their aims or the conduct of their members , seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of GPE shall be held to be unconstitutional . ORG shall determine the question of unconstitutionality . ( ... ) ”

“ ( CARDINAL ) The ORG shall rule :

on the interpretation of LAW in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by LAW or by the rules of procedure of a supreme federal body ; ( ... ) ”

The relevant regulations governing the declaration of unconstitutionality of a political party are contained in LAW and are worded as follows :

“ ( CARDINAL ) The GPE , the NORP , or ORG may apply for a decision on whether a political party is unconstitutional ( LAW ) .

( CARDINAL ) The government of a Land may make an application only against such political parties whose organisational extent is limited to that ORG ’s territory . ”

“ ( CARDINAL ) If the application proves to be well - founded , ORG shall declare that the political party is unconstitutional .

( CARDINAL ) The declaration may be limited to a legally or organisationally independent section of a political party .

( CARDINAL ) The declaration shall be accompanied by the dissolution of the political party or of its independent section , as well as by the prohibition of establishing substitute organisations . In this case , ORG may also declare that the property of the political party or its independent section be confiscated in favour of the Federation or the Land to be used for public benefit . ”

In relation to “ disputes between constitutional organs ” , the relevant provisions are worded as follows :

“ The ORG shall decide ( ... )

on the interpretation of LAW in the event of disputes concerning the extent of the rights and obligations of CARDINAL of the highest federal organs or of other parties who have been vested with own rights by LAW or by the rules of procedure of CARDINAL of the highest federal organs ( Art . CARDINAL § CARDINAL no . CARDINAL of LAW ) ( ... ) . ”

“ Applicants and respondents may only be : the Federal President , the GPE , the GPE , ORG , and such parts of these organs that are vested with own rights pursuant to LAW or the rules of procedure of the GPE and GPE . ”

“ ( CARDINAL ) The application shall only be admissible if the applicant asserts that an act or omission of the respondent violated or directly threatened the rights and obligations awarded to the applicant or to the applicant ’s organ by LAW .

( CARDINAL ) The application shall state the provision of LAW which was violated by the respondent ’s contested act or omission .

( CARDINAL ) The application must be filed within DATE after the applicant gained knowledge of the contested act or omission . ”

It is established case - law of ORG that political parties are organs vested with own rights pursuant to LAW in the meaning of LAW no . CARDINAL of LAW and can assert their rights by way of a dispute between constitutional organs ( decision of DATE , no . CARDINAL PBvU CARDINAL/CARDINAL , which has been consistently confirmed since , see , among many others , judgment of CARDINAL DATE , nos . CARDINAL ORG , CARDINAL , CARDINAL , CARDINAL BvR CARDINAL/CARDINAL ) .


Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The applicant , A , is a NORP national who was born in DATE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The ORG decided of its own motion to grant the applicant anonymity pursuant to Rule CARDINAL § CARDINAL of ORG .


CASE OF GRAFESCOLO S.R.L. v. THE REPUBLIC OF MOLDOVA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant is a company incorporated in GPE .

On DATE the PERSON local council adopted a decision concerning the sale of a plot of land with a greenhouse on it to the applicant company . Subsequently , in DATE , a contract was entered into for that purpose between the local council and the applicant company .

On DATE the local council adopted a decision revoking its previous decision . The applicant initiated proceedings against the local council .

On DATE the PERSON local council introduced a counter action seeking the termination of the contract of sale between it and the applicant company on the grounds that the price asked for the property had been too low and that the land had been sold unlawfully owing to its proximity to a river . The applicant company opposed this action and argued , inter alia , that it was time - barred under the provisions of ORG in force at the time the contract was entered into .

On DATE ORG rejected the applicant ’s action but accepted that of the local council and declared the contract of sale null and void . The court held that the rules governing time limitation contained in the new LAW should apply . The court expressed of its own motion the opinion that the local council ’s action had concerned the declaration of the absolute nullity of the contract of sale and that therefore , in accordance with the provisions of LAW , it could not be time - barred . The applicant appealed .

On DATE ORG upheld the appeal lodged by the applicant company and quashed the judgment of the first - instance court . It upheld the applicant company ’s action and dismissed the counter action lodged by the local council . The local council lodged an appeal on points of law .

On DATE ORG upheld the appeal on points of law lodged by the local council . It quashed the judgment of ORG and upheld the judgment of ORG of DATE . ORG did not state any position in respect of the applicant company ’s initial defence concerning the statute of limitations . Only the representative of the local council was present at ORG hearing . The judgment of ORG was final .