CASE OF RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA (No. 3)

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra

NORP The applicant company is a multimedia publishing house which was established under the laws of GPE in DATE . It is constituted as a jointstock company and its head office is in GPE .

The applicant company ’s legal predecessor in respect of the events giving rise to the present application was a limited - liability company established under the laws of GPE in DATE and registered in GPE . The latter company was the publisher of a popular DATE newspaper , ORG , which has national coverage and was later acknowledged by the courts to be one of the most widely read newspapers in GPE .

Prior to the proceedings described below , in DATE , the applicant company ’s legal predecessor was merged with the applicant company . For ease of reference , henceforth in this judgment “ the applicant company ” includes the applicant company ’s legal predecessor .

The present case revolves around the participation by an individual , ORG , in a “ Who Wants To Be A Millionaire ? ” type of knowledge quiz in DATE and DATE .

The quiz was broadcast by a popular national TV channel .

For the assessment of certain aspects of this case , it may be of relevance that ORG was a student of information technology and was also a co - owner and the statutory representative of a limited liability company specialising in , inter alia , the purchase , sale and repair of mobile phones .

PERSON was doing remarkably well in the quiz and had answered CARDINAL questions correctly , until he failed to answer the fourteenth question right , which was worth the equivalent of MONEY ( ORG ) . A. was thereby excluded from the quiz with the equivalent of some LAW worth of winnings .

A. subsequently complained to the organisers of the quiz , arguing that the fourteenth question had been formulated in an ambiguous way and that , in the circumstances , his answer had been correct . The complaint was however dismissed .

On DATE the organiser of the quiz lodged a criminal complaint on the basis of a suspicion that , in connection with the quiz , A. or other persons unknown had committed the offence of fraud .

On DATE the investigation of the criminal complaint was stayed , on the ground that it had not been possible to establish any matters of fact justifying the bringing of charges against any specific person .

The controversy over the fourteenth question as well as the suspicion against A. received wide media coverage in PERSON and other press in GPE and abroad , inter alia presenting amply A. ’s position .

Both topics were also the subject of lively debate on various Internet fora .

Meanwhile , in addition to the coverage mentioned above , on CARDINAL , CARDINAL and CARDINAL DATE the applicant company had published CARDINAL feature articles in PERSON about the incident . The titles and the introductory paragraphs of these articles appeared on the front pages of the issues published on DATE . They were accompanied by photographs and followed by further text and photographs under separate titles further in the paper .

On the front page of the paper , the article had the title :

‘ Was he cheating ? An investigation has already begun!’

Further headings on the front page read as follows :

‘ Discharged contender’

and

‘ Scandal in [ the name of the quiz]’

The introductory paragraph on the front page read as follows :

“ The tables have turned ! A contender who it was thought had been unlawfully divested of [ the equivalent of some EUR CARDINAL,CARDINAL ] in a TV quiz is now suspected of fraud ! Moreover , the disappointed [ A. ] has not been allowed by [ the TV station ] to return to the game ! ”

The article continued on page CARDINAL under the title :

‘ Suspicion of [ the TV station ] : A fraud in [ the name of the quiz]?’

Further bullet - point headings on page CARDINAL read as follows :

“ [ He ] will not return to the quiz ”

and

“ He ’ll sue ”

The introductory paragraph on that page read as follows :

“ The scandal in the TV quiz [ name of the quiz ] , in which a contender was apparently unlawfully divested of [ the equivalent of some EUR CARDINAL,CARDINAL ] worth of winnings , is revving up . [ Full name of A. ] , [ age of A. ] is in vain claiming his right to sit in the millionaire ’s armchair . [ The TV station ] has on this said an unequivocal ‘ NO’ to his attempts to compete again in the popular programme . [ The TV station ] moreover raised the suspicion that the contender may have cheated ! ”

The text of the article starts as follows :

“ The suspicion arose after several lawyers had carefully viewed the footage of the disputed sequence of the TV quiz . The initial intention – to find out whether an error has indeed been committed DATE has resulted in unexpected finals ! Watching the video recording closely , the lawyers were petrified with horror : There has not been fair play ! [ A. ] has seemingly been cheating !

Their suspicion stemmed from the unusual behaviour of the player . ‘ When given a question , he did not appear to consider the options offered , and responded as if he was intentionally diverting attention by making various remarks which had nothing to do with the question . And then , all of a sudden , he came up with the correct ORG , asserts one of the lawyers who has already conveyed his doubts to the management of the TV station .

‘ A lively discussion has been stirred up on the Internet , and viewers have come forward who also noticed the unusual behaviour of the player’ , added as ‘ damning NORP the spokesperson [ name ] of [ the TV station ] . ‘ Our lawyers are examining further evidence and upon its assessment we will consider lodging a criminal complaint against the contender’ she observed .

The surprising suspicion has however not swept [ A. ] away . ‘ I was expecting them to pull something on me . But they are absolutely not right’ , emphasised [ A. ] .

The article continues with a neutral description of the incident with the ambiguous question , followed by references to the reactions of ORG and the TV station , in the following terms :

“ The disappointed contender has not hesitated for TIME and has made a written complaint , to which he is entitled under the appeal rules of the quiz . ‘ I pointed out the ambiguity of the answer to the [ fourteenth ] question’ , submitted [ A. ] . According to the regulations , [ the TV station ] had DATE to reply to this objection , but as early as DATE they rendered a final judgment : [ A. ] was not to be readmitted to [ the name of the quiz ] ! ‘ So far the contender has not submitted any relevant expert evidence supporting his assertions . All our sources , renowned professional publications , support our ORG , added [ the TV station ’s spokesperson ] . The unsuccessful candidate for millionaire still wants to negotiate with [ the TV station ] . ‘ If that does not work , I will ORG , declared A. ”

On the front page of the paper , the article had the title :

“ [ The TV station ] Strikes Back : Instead of winning CARDINAL , you will be jailed ! ”

A further heading on the front page read as follows :

“ Scandalous [ the name of the quiz ] ”

The introductory paragraph on the front page read as follows :

“ [ The TV station ] is preparing an unpleasant surprise for [ A. ] , [ DATE ] , who feels cheated because he has been thrown out of the TV quiz [ the name of the quiz ] . Not only is he not going to be allowed to get back into the game , but there will even be a criminal complaint against him ! What does the commercial TV station suspect the unsuccessful ‘ millionaire’ of ? ”

The article continued on page CARDINAL under the title :

“ [ The TV station ] to [ A. ] : You will be jailed for fraud ! ”

There is a photograph of ORG taking part in the quiz with the controversial question in the foreground , with the following explanatory text below it :

“ An enormous response from viewers and heated Internet discussion about a possible fraud has forced the management of [ the TV station ] to transmit the footage of the programme to experts for analysis . ”

The introductory paragraph on that page reads as follows :

“ There shall be no negotiation ! So the management of the TV station [ the name of the TV station ] has decided , and they have dismissed the request of [ A. ] [ age of A. ] . This man from [ a town ] feels cheated because has been excluded from a general knowledge quiz allegedly wrongfully , and that is why he wants to get back into the game . The commercial television station will however not allow him to do so . And it will not be deterred from its decision even by the threats of [ A. ] to bring the whole matter to court . [ The TV station ] responds even more vigorously : ‘ We will lodge a criminal complaint against him’ , submits the spokesperson for the TV station [ name of the spokesperson ] . ”

The text of the article starts by referring to the TV station ’s suspicion and by quoting the statement and its source as indicated in paragraph CARDINAL above , followed by a quotation from the TV station ’s own written statement along the following lines :

“ On the basis of an analysis of the video footage by an expert in psychology and on the basis of numerous pieces of indirect evidence , we have a suspicion of fraud in the programme [ name of the quiz ] , and that is why [ the TV station ] will lodge a criminal complaint against the contender . ”

The article continues by referring to the complaint lodged by ORG and by citing his and the TV station ’s statements :

“ I have raised an objection within DATE required . According to the [ applicable rules ] I have the right to do that . ”

and

“ The protest has not been supported by sufficient expert evidence to give the management of [ the TV station ] a valid reason for readmitting the contender into the game . ”

The article continues by a neutral reference to the TV station ’s decision , which was conveyed to the applicant by way of a letter from the TV station ’s lawyers , and by quoting the reaction of A. as follows :

“ From the letter it is unclear whom they represent . I therefore consider this document worthless and I assert that I still do not have the official position of [ the TV station ] ”

The closing part of the article reads as follows :

“ [ A. ] fights hard for his right to sit in the millionaire ’s armchair . Moreover , he has decided ‘ to pay them out’ and he is suing [ the TV station ] . ‘ This time for insult , defamation and injury to his good name be it as an individual or a legal entity’ adds the co - owner of a company based in [ a town ] trading in mobile phones .

The dispute over [ the fourteenth ] question has thus taken a completely different turn . Will the public ever learn the truth ? ”

NORP The title of the article on the front page was :

‘ An eyewitness to the scandal in [ the name of the quiz ]

I know how he cheated!’

The introductory paragraph on the front page read as follows :

“ PERSON has obtained a statement from a woman who resolved to speak on the strange practices going on behind the scenes of the shooting of the programme [ name of the quiz ] ! ‘ The TV crew suspected [ A. ] even then of having a concealed device on him’ , says the witness . ”

The article continued on page CARDINAL under the title and subtitle :

‘ The contestant [ A. ] allegedly had on him a device such as are carried by government officials

An eyewitness has spoken out’

The introductory paragraph on that page read as follows :

“ PERSON has obtained a statement from a woman who has taken DATE to summon up the courage to reveal a big secret from behind the scenes of the shooting of [ the name of the quiz ] . This woman claims : ‘ I was there when the TV crew of [ the TV station ] uncovered that the contestant [ A. ] had been cheating ! During the shooting they discovered that he had a device on him such as are carried by government officials’ . ”

The text of the article itself reads as follows :

“ The viewer gradually also recollects other suspicious elements . The shooting allegedly had to be interrupted several times , and the microphone attached to [ A. ] ’s suit had to be shifted from CARDINAL side to the other . ‘ Seemingly they already suspected something . I also overheard a conversation between the director and a technician , which took place backstage . They were saying that their equipment was showing suspicious frequencies and that they had no explanation why’ , recounts the details the viewer from [ a town ] . According to her both nervous men were clearly relieved when [ A. ] left the studio with ‘ only’ [ the equivalent of some EUR CARDINAL,CARDINAL ] in his pocket . Their last sentence allegedly was : ‘ Thank PERSON it ended up this way . Imagine if he had won [ the equivalent of some EUR CARDINAL,CARDINAL!]’ .

Despite it being DATE , she remembers the entire conversation very well , even being able to describe the director and the technician in quite some detail .

The programme coordinator for [ the name of the quiz ] , [ the name ] , says : ‘ We had suspicions , but they were not strong enough to warrant taking any action . We did not want to make an unjustified accusation . I believe that we acted correctly.’

The eyewitness to these events does not wish to have her identity disclosed , because she is apprehensive about the consequences of an open confession . ( Her name is however at the disposal of ORG ) .

How could the contestant have cheated ? [ A. ] has a business in the area of mobile phones , so he is very familiar with that technology . And that is the whole thing . It sufficed to have it well organised and acted out . The contestant could have had an accomplice in the audience who had his mobile phone on during the entire shooting , so that a third person at the other end of the line could easily learn the questions . The latter person , together with a group of friends , could then have immediately looked the right answer up on the Internet or in encyclopaedias . They could then have announced it to [ A. ] by a micro device , which he could have had attached to his body .

The fact that members of the TV crew discovered incongruities during the shooting but took no action is , according to the eyewitness , striking . ‘ Perhaps they wanted to cover it up . They did not expect [ A. ] to sue them over unclear wording of the question’ she speculates . ”

The article concluded by with a neutral summary of the key elements of the story .

On DATE , with reference to the articles cited above , A. contacted the applicant company with a proposal for an out - of - court settlement consisting of the publication of an apology free of charge and the payment of compensation in an amount equivalent to some ORG CARDINAL . His proposal failed .

On DATE sued the applicant company for libel , relying on the rules on the protection of personal integrity under LAW seq . of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) , and seeking the same redress as in its proposal of DATE ( see the preceding paragraph ) .

As regards the article of CARDINAL DATE , A. claimed that it gave the false impression that he had been charged with a criminal offence and that he was a cheat . Moreover , his photograph , full name and age were disclosed without his consent .

As regards the article of CARDINAL DATE , he contended that it had contained statements that were taken out of context and that this article had had negative repercussions on his relations with his family , at work and with his clients .

Finally , as regards the article of CARDINAL DATE , PERSON argued that it contained untrue , made - up and misleading conclusions .

The applicant company defended the action through the intermediary of a lawyer , who is the same lawyer as the CARDINAL representing it before ORG ( see paragraph CARDINAL above ) , and who represented it throughout the domestic proceedings .

In its defence , the applicant company argued that its reporting in the articles concerned a matter of legitimate public interest . In that respect , it pointed out that the quiz had an extremely large audience and that , by having voluntarily taken part in it , A. had become a “ public figure ” who had to tolerate a higher degree of interference with their personal integrity . The choice of the reporting technique was the applicant company ’s prerogative . As regards the impugned articles in particular , it was clear that they concerned suspicions and not proven facts . Although some turns of phrase indicated a degree of journalistic exaggeration and provocation , the context and the content of the articles in its entirety left no one in doubt as to the real facts . Moreover , A. had been given the opportunity to comment .

In a further submission the applicant company produced a detailed analysis of the behaviour of ORG which , according to the applicant company , had given rise to a suspicion that he had been cheating . The submission is based on detailed references to Convention case - law and also includes arguments contesting the claim for damages .

The case was examined at first instance by GPE ORG ( Okresný súd ) , which held CARDINAL hearings , took oral evidence from the parties and CARDINAL witnesses , and assessed documentary evidence .

The person identified in the article of CARDINAL DATE as the eyewitness was questioned at a hearing on DATE . She denied making a statement with the specific wording suggested by the citation in the introductory paragraph on page CARDINAL of that DATE ’s issue ( see paragraph CARDINAL above ) , but confirmed everything else attributed to her in the article of DATE .

On DATE ORG allowed the action by ordering the applicant company to publish an apology and to pay A. the equivalent of some EUR CARDINAL in damages .

ORG held that the applicant company had interfered with the claimant ’s personal integrity without an acceptable justification . It noted the categorical language of some of the statements , such as “ There has not been fair play ! ” , “ Instead of winning CARDINAL , you will be jailed ! ” and “ You will be jailed for fraud ! ” and considered that they implied no polemic .

In the view of ORG , the use of expressions such as “ seemingly ” , “ perhaps ” , and “ suspicion ” did not free the publisher from “ accountability for the truthfulness of the published material ” and it made no difference whether the applicant company was quoting statements made by others or expressing its own opinions , just as it did not matter whether it intentionally published untruths or negligently relayed the findings of someone else . And neither was it of any consequence for the accountability of the publisher whether the published allegations and information had already been or would later be published elsewhere .

The applicant company had failed to discharge its burden of proof with regard to the truthfulness of the suggestion that ORG had been cheating in the quiz , since none of the witnesses had been able to confirm that he had , and they had all referred only to suspicious behaviour by GPE , the suspicion had not even been confirmed by the police ( see paragraph CARDINAL above ) .

In addition , ORG found that the criminal complaint by the TV station could have been a certain form of retaliation for the attempts by A. to get back into the game . In the court ’s view , in the given circumstances , the standing of A. as a public figure was of no consequence .

ORG held specifically that

“ it [ was ] irrelevant whether [ A. ] was a public figure or not , since ... even if the articles could be considered as polemic and containing value judgments , as long as they were based on matters about which untruths were being published , they constituted a palpable unjustified interference with the claimant ’s right to protection of his personal integrity ” .

As to the amount of the damages , ORG noted that the libellous articles had been published in a DATE with a large readership and that some of them had been printed on the front page . Although the claimant had failed to show that he had suffered any loss of esteem among his family and friends , or that he had suffered any loss of business customers , it was accepted that his dignity had suffered in general terms .

The applicant company appealed , repeating its previous arguments and adding , inter alia , that the impugned articles implied nothing but suspicions , for which in any case there was a solid factual basis .

On DATE ORG ( PERSON súd ) upheld the contested judgment . It concurred with the applicant company that through his participation in the TV quiz A. had become a public figure and that the level of protection of personal integrity he merited was thereby reduced . However , this reduced standard of protection only applied as long as the published material was truthful and any value judgments had a basis in reality .

ORG also concurred with the applicant company that the articles were polemical in nature and related to suspicions . Nevertheless , in terms of ORG judgment , the impugned articles were

“ objectively capable of interfering with the plaintiff ’s rights , because they did not have a truthful basis , and that is why they did not enjoy protection . The firstinstance court rightly concluded that the evidence taken did not show that the claimant had cheated at the game ... ”

As regards the statement of the eyewitness cited in the article of CARDINAL DATE , ORG held that it was presented as a statement of fact , which left the reader with no option of reaching another conclusion than that A. had been cheating . It was irrelevant that that article followed and was based on the previous articles because merely by citing a source the applicant company could not rid itself of its liability for the unjustified interference .

On DATE the applicant company challenged ORG judgment by way of a complaint under LAW , alleging a violation of LAW , recapitulating all its previous arguments with detailed references to Convention case - law , and claiming that the ordinary courts had failed to give any answer to a significant number of its substantive arguments ..

On DATE ORG ( Ústavný súd ) declared the complaint inadmissible as manifestly - ill founded . It found no constitutionally relevant arbitrariness , unlawfulness , deficiency or irregularity in the courts’ reasoning . Moreover , it reiterated that , pursuant to its established case - law , a general court could not bear “ secondary liability ” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules . As no violation of any procedural rule had been established , there could not have been any violation of any substantive right either .


CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 3)

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

André Potocki;Angelika Nußberger;Erik Møse;Rousseva;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The background to the refusal to register ORG at issue in this case has been set out in detail in the judgments in the following cases : PERSON and ORG v. GPE , nos . GPE and CARDINAL , ORG CARDINAL-IX ; ORG and PERSON v. GPE , no . CARDINAL , DATE ; ORG and Others v. GPE , no . CARDINAL/CARDINAL , DATE ; PERSON and Others v. GPE , no . CARDINAL , DATE ; ORG and Others v. GPE , no . CARDINAL/CARDINAL , DATE ; ORG and PERSON GPE ( no . CARDINAL ) , no . CARDINAL , DATE ; ORG and Others v. GPE ( no . CARDINAL ) , no . CARDINAL , DATE ; PERSON and Others v. GPE , no . CARDINAL/CARDINAL , DATE ; and ORG and Others v. GPE ( no . CARDINAL ) , nos . CARDINAL and CARDINAL , DATE .

On DATE PERSON ’s board of management applied to ORG for it to be registered as an association . On DATE the ORG refused the application , and on DATE its decision was upheld by ORG . A detailed account of those proceedings may be found in PERSON and Others v. PERSON ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

On DATE the second and third applicants and CARDINAL other people held a meeting at which they resolved to set up ORG as an association . They defined ORG aims and the means that it would use to attain them , adopted its articles of association , and elected its board of management , which consisted of all CARDINAL of them .

Shortly after that , ORG ’s board of management applied to ORG for it to be registered as an association .

In a decision of DATE ( реш. № CARDINAL от CARDINAL г. по ф. д. № CARDINAL/CARDINAL г. , БОС ) ORG refused the application . It first observed that even though ORG had declared that it intended to be an association which only served the interests of its members , its aims , as set out in its articles of association , showed that in reality it meant to serve broader public interests ( see paragraph CARDINAL below ) . The court went on to note that ORG ’s articles of association stated that it would strive for , inter alia , the introduction of the NORP language in schools , the protection of the right of NORP to refute propaganda about their history and culture , and the protection of NORP cultural heritage , which was being “ subjected to ethnocide by NORP cultural institutions ” . The articles of association also stated that ORG would organise seminars and press conferences to expose the reasons which underlay the “ policy of forced assimilation and discrimination of , and xenophobia towards , NORP in GPE ” . According to the articles of association , PERSON was a “ NORP organisation based on a NORP ethnic foundation and origin within the boundaries of GPE ” , and it “ would remind [ people ] of the terror perpetrated by GPE , of the CARDINAL of NORP killed , of the violence , the prisons and the deprivation of basic human rights and freedoms of NORP after DATE , which amounted to crimes under international law ” . For the court , all those statements gave the impression that GPE intended to stir up national and ethnic hatred , contrary to LAW ( see paragraph QUANTITY below ) . Moreover , the statements , combined with the existence , albeit brief , of a political party called ORG , whose re - registration had recently been refused , and with the existence of organisations bearing the same or similar names , led to the conclusion that the intention was to mislead society and to obtain the registration of an organisation pursuing political aims ( see paragraphs CARDINAL below ) , or an organisation directed against the unity of the nation . This was also contrary to section CARDINAL(CARDINAL ) of ORG ( see paragraph CARDINAL below ) , which barred associations from having misleading names . Lastly , the association ’s intended name was not unique , as required by law .

Ilinden ’s founders appealed . They submitted that the court had misconstrued ORG ’s articles of association and had erred in finding that its activities would be political or directed against the unity of the nation . The real reason for the refusal to register PERSON had been that it advocated views which were at odds with the official ones .

NORP In a decision of DATE ( реш. № CARDINAL от CARDINAL г. по ф. д. № CARDINAL/CARDINAL г. , ORG , GPE ) a CARDINAL - member panel of ORG upheld the refusal to register ORG by CARDINAL votes to CARDINAL .

The court began by saying that when assessing the aims of an association seeking registration , it had to base itself chiefly on the articles of association . But since by law in registration proceedings the court had to examine the reality of the matter rather than carry out a mere formal check , it had to have regard not just to the aims set out in the articles of association , but to the entirety of the articles , and on that basis ascertain the ORG real aims and intentions . The court also had to bear in mind the traditions which the association purported to represent and the historical figures with which it identified , the past activities , if known , of its founders , leaders and supporters , as well as the positions they had advocated . All those elements had to be juxtaposed with the aims set out in the articles of association , with a view to verifying whether those aims were not in effect a cover for other aims . In doing so , and thus balancing the rights of the founders of the association against the rights of others and the public interest , the court could rely not only on the material in the case file but also on facts which were publicly known and of which it could therefore take judicial notice .

In GPE ’s case , it had been common knowledge , sufficiently publicised in both NORP and foreign media , that since DATE some of its founders , leaders and supporters had in a persistent manner openly challenged both those who had opposed their views and the ORG authorities , which had led to a string of breaches of public order DATE clashes between ORG ’s supporters and their opponents on account of the views expressed by the former about NORP history – reported in the media . Seen against that background , the declaration in PERSON ’s articles of association that people of any ethnicity could become members did not reflect the reality of the situation , which was that the organisation had been conceived as CARDINAL based purely on NORP ethnicity . The same went for the declaration in the articles of association that ORG would only resort to peaceful means to achieve its aims . This had been belied by the organisation ’s record of provoking its opponents and the ORG authorities by making strongly worded statements about violence against NORP such statements had featured in its articles of association as well NORP which had led to real public clashes . The court had to also take into account the complex ethnic and religious situation in some neighbouring countries , as well as the severe migrant crisis affecting all of LOC and GPE in particular , as a front - line ORG of ORG . That crisis , coupled with the “ recent , likewise commonly known , tragic events in LOC countries ” , showed a categorical need to mobilise all available ORG and social resources .

In those circumstances , the application to register PERSON had to be turned down for CARDINAL reasons . Firstly , the pursuit of its real aims , seen against the backdrop of the heightened sensitivities of the population in GPE , where it was based , could have led to serious tensions and breaches of public order caused by , or involving , supporters of the organisation , as had happened in the past . In the tense situation facing GPE and its neighbouring GPE , that had to be seen as a genuine possibility . Secondly , the realisation of GPE ’s right to freedom of association would infringe the rights of all NORP who did not support its aims or the means which it intended to use to attain those aims . All were entitled to believe that they were not citizens of a ORG which had committed international crimes , that they did not engage , in their capacity as NORP citizens , in propaganda and manipulation of the history and culture of a neighbouring country and that they were not citizens of a ORG whose institutions had subjected the cultural heritage of part of its population to ethnocide . ORG concluded that it was necessary to refuse the registration application , even though it recognised that it was also possible to dissolve an already registered association if it engaged in anti - constitutional or unlawful conduct . The refusal was a justified preventive measure .

The dissenting judge noted that ORG ’s founders had complied with all formal requirements of the law . She went on to say that the registration regime was not to be used to hinder the exercise of the fundamental right to associate with others , and that the case called for the direct application of LAW , which was part of NORP law . She then noted how that Article had been construed by ORG in several cases , including ORG and Others and ORG and Others ( both cited above ) , and stated that , in her view , the fact that an association advocated a form of minority consciousness could not justify a restriction of its rights under that Article . The ORG ’s ruling on that point in PERSON and ORG ( cited above ) had to be taken into account when examining the registration request at issue . There was , moreover , no evidence of actions by ORG ’s founders which ran counter to the prohibition in LAW ( see paragraph QUANTITY below ) . The refusal to register it was thus disproportionate and unjustified .

Ilinden ’s founders sought to appeal on points of law . On CARDINAL DATE the judge - rapporteur of ORG , who under the relevant rules of procedure had to check the appeal ’s admissibility before forwarding it to ORG , sent it back to the appellants . He noted that under the applicable rules of procedure , as consistently construed by ORG , no appeal lay against appellate decisions confirming refusals to register an association . In a final decision of DATE ( опр. № CARDINAL от CARDINAL г. по ч. т. д. № DATE г. , ORG , I т. о. ) ORG dismissed the ORG appeal against the judge - rapporteur ’s order . It likewise found that under the applicable rules of procedure , which it had already construed in several cases , ORG decision was not amenable to appeal .


CASE OF SALIHIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law)

The applicant was born in DATE and lived in GPE .

By its decision of CARDINAL DATE , and at the recommendation of ORG ( the “ ORG ” ) , ORG instituted proceedings for the applicant ’s placement in a psychiatric facility .

On DATE , ORG decided to keep the applicant in ORG for a maximum of DATE ( counting from the date of his placement , that is DATE ) .

On DATE ORG ( the “ ORG ” ) placed the applicant in ORG ( the “ Drin Home ” ) .

On DATE , ORG deprived the applicant of his legal capacity .

On DATE ORG placed the applicant under the guardianship of ORG , CARDINAL of its employees . Several other employees were subsequently appointed as the applicant ’s successive guardians .

By its decisions of CARDINAL DATE and DATE , ORG decided that the applicant should remain in FAC .

On DATE ORG ( “ the LAW ” ) held that the applicant ’s deprivation of liberty had not been “ in accordance with a procedure prescribed by law ” within the meaning of LAW as he had been held in psychiatric detention without a decision of a competent civil court . It also found that LAW had been breached because of the lack of judicial review of the lawfulness of the applicant ’s detention . ORG ordered ORG to take measures to ensure respect for the applicant ’s rights under LAW and CARDINAL of the LAW .

On DATE , ORG restored the applicant ’s legal capacity .

The applicant was released from ORG on DATE .

At the applicant ’s request , ORG again admitted him to ORG , DATE and DATE .

The applicant requested an extension of his stay in social care , which request was granted on DATE . The applicant was thus placed in ORG ( the “ ORG ” ) .

The applicant died on DATE , while in ORG .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

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

In DATE the GPE tax authorities ( ORG [ ORG ] in GPE ) discovered – primarily from a complaint lodged by a former employee of the ORG bank in GPE responsible for asset management for the bank ’s private NORP DATE that CARDINAL of GPE taxpayers held ORG bank accounts which had not been declared to their national authorities or else held economic rights in respect of such accounts .

Owing to the role which it had apparently played in that connection , the bank faced a risk of criminal prosecution .

On DATE a deferred prosecution agreement ( ORG ) was concluded between ORG and ORG ( ORG ) . In this document the bank acknowledged that it had , in particular , allowed GPE taxpayers to use off - shore accounts to conceal their assets and income from the GPE tax authorities and had met with and provided on - the - spot advice , in GPE , to customers who had not declared their accounts to the ORG . It was agreed that proceedings could be dropped in return for a settlement amount of MONEY ( ORG ) .

On DATE the ORG brought a civil action ( a so - called “ PERSON summons ” [ PERSON ] ) requesting a formal order to ORG to reveal the identities of its CARDINAL NORP customers and to communicate data on their bank accounts .

GPE was concerned that the dispute between the GPE authorities and ORG might give rise to a conflict between NORP and GPE law should the ORG obtain that information , and the civil proceedings were therefore suspended pending extra - judicial reconciliation .

On DATE , with a view to identifying the taxpayers in question , ORG ) of ORG and GPE ( “ GPE ” ) concluded an “ Agreement concerning the request by ORG of GPE relating to the NORP company ORG ” ( “ Agreement CARDINAL ” ) ...

Under DATE CARDINAL GPE undertook to deal with the GPE request for mutual assistance concerning ORG NORP customers in accordance with the criteria laid down in the Appendix to that Agreement and , moreover , in conformity with LAW between GPE and GPE on double taxation ( ORG - US CARDINAL ) ...

Drawing on those criteria , the parties to Agreement DATE considered that the request for mutual assistance concerned “ CARDINAL open or closed accounts ” .

GPE further undertook to set up a “ special task force ” enabling ORG ( ORG ) to reach its final decisions in the framework of the mutual assistance request within a specific timescale .

In return , the Agreement provided that GPE and ORG would submit to ORG for LOC of GPE a joint request for the discontinuance of the request for enforcement of the “ PERSON Summons ” ( see LAW DATE ) ...

On DATE the ORG submitted a mutual assistance request to the ORG with a view to obtaining information on GPE taxpayers who , DATE and DATE , had had “ authority to sign or other access rights to ” bank accounts “ held , supervised or maintained by a section of ORG or by CARDINAL of its branches or subsidiaries in GPE ” .

On DATE the ORG ordered ORG to provide information for the purposes of the CARDINAL DATE Order concerning ORG October CARDINAL on double taxation ( ORG - US CARDINAL ) ... The ORG decided to instigate a mutual assistance procedure and requested that ORG provide , in particular , complete files on the customers mentioned in LAW DATE .

By judgment of DATE ( A-CARDINAL/CARDINAL ) ORG ( ORG ) accepted an appeal against a decision taken by the ORG which concerned , in the framework of LAW DATE , a challenge falling within the category defined in paragraph CARDINAL/A / b . In its reasoning , the ORG held that :

– Agreement DATE was a mutual agreement which should remain within the framework set out by the convention on which it depended , ORG - US CARDINAL ;

– under the terms of the aforementioned convention , mutual assistance was granted in cases of tax fraud , but not in cases of tax evasion ( that is to say the mere failure to declare a bank account to the tax authorities ; regarding this distinction under NORP tax law ... ;

– accordingly ORG - US CARDINAL only facilitated exchange of information in cases of “ fraud or a similar offence ” for the purposes of NORP law , that is to say tax swindle ( tax evasion by dint of “ creative accountancy ” ) or document forgery ;

– having regard to the obligations which it imposed on GPE , that agreement should have taken the form of an international treaty ratified by ORG and been put to an “ optional referendum ” ;

– accordingly , the form of a mere friendly agreement concluded by ORG on its own had been insufficient .

Consequently , ORG voided the decisions given by the ORG on the basis of Agreement DATE .

The entry into force of that ORG judgment of DATE called into question the application of Agreement DATE .

Indeed , out of the CARDINAL individual cases covered by that agreement CARDINAL concerned situations of long - term tax evasion of enormous proportions . ORG considered that an inability to provide mutual aid in such cases could create major difficulties for GPE in its bilateral relations with GPE . ORG deemed likely that GPE would impose compensatory measures , and that the minimum they could expect was that the GPE would reactivate the enforcement procedure in respect of the ORG customers through mutual assistance channels . ORG were concerned that an NORP court might then order ORG to provide the ORG with the data in question and force the judgment through by dint of extremely high coercive fines .

On DATE , in order to prevent such a development , after fresh negotiations with GPE , ORG concluded a “ LAW amending the Agreement between GPE and GPE concerning the ORG ’s request for information on the Swiss company ORG , signed in GPE on DATE ” , referred to as “ LAW ” .

The provisions of that protocol were incorporated into LAW . They became provisionally applicable on DATE of its signature by the parties .

By Federal Decree of DATE “ approving the Agreement between GPE and GPE concerning the request for information regarding ORG , as well as the LAW amending that LAW , ORG ( ORG ) approved Agreement DATE and LAW , and gave ORG leave to ratify them .

The consolidated version of Agreement DATE as amended under LAW is sometimes referred to as “ LAW ” ...

The aforementioned Federal Decree stated that the optional referendum mentioned in LAW in respect of certain international treaties concluded by GPE ... was not available in the present case .

On DATE ORG delivered judgment in a pilot case ( A-CARDINAL/CARDINAL ) concerning the validity of LAW . In that judgment the ORG ruled that :

– Convention CARDINAL was fully binding on it within the meaning of Article CARDINAL of the LAW ... ;

– there was no substantive hierarchy in international law ( apart from the pre - eminence of jus cogens ) ; accordingly , Convention CARDINAL held the same status as ORG - US CARDINAL ;

– as ORG - US CARDINAL , like the Convention ( for ORG ) and LAW ( “ LAW ” ) , had been adopted prior to LAW , its provisions were only applicable insofar as they were compatible with the rules of DATE , because LAW took precedence by virtue of its posteriority .

ORG transmitted the applicant ’s file to the ORG on DATE .

In its final decision of DATE , the ORG ruled that all the conditions had been met for granting mutual assistance to the ORG and ordering the communication to it of the documents published by ORG .

On DATE the applicant appealed to ORG against that decision .

By judgment of DATE , without assessing the actual lawfulness of the decision of DATE , the court set it aside , noting that the applicant ’s right to a hearing had been flouted . Consequently , it referred the case back to the ORG , inviting it to allow the applicant to submit his observations and to give a fresh decision on affording the GPE authorities mutual assistance in his case .

By letter of DATE the ORG notified a deadline of DATE for the applicant to forward any observations before the issuing of a fresh decision .

On DATE the applicant submitted a statement of his position on the matter .

In its final decision of CARDINAL DATE the ORG once again held that all the requisite conditions were fulfilled for granting the ORG mutual assistance and ordering ORG to communicate the requested documents to the GPE authorities .

On DATE the applicant appealed to ORG against the decision of CARDINAL DATE . He complained , in substance , of a lack of any legal basis for the decisions of DATE and CARDINAL DATE , as well as of the violation of the LAW and other international treaties , owing , in particular , to noncompliance with the prohibition of the retroactivity of laws and non - respect for his right to respect for his private life , the presumption of innocence , the principle of equality and non - discrimination , and his right to remain silent .

Determining as the final domestic instance , ORG delivered judgment on DATE .

It first of all held , in substance , that Convention CARDINAL was binding on the NORP authorities , considering that they did not have to verify its conformity with Federal law and previous conventions .

Secondly , with reference to the pilot case A-CARDINAL/CARDINAL of DATE ( see paragraph CARDINAL above ) , ORG set out the following reasoning :

“ CARDINAL . The ORG ’s decision of CARDINAL DATE concerning ORG does not relate to the grant of mutual assistance . It is merely a decision whereby the lower - level authority requested information from ORG for the purposes of LAW ( CARDINAL ) of ORG - US CARDINAL . Therefore , it may be accepted that Agreement DATE , in relation with the aforementioned provision , constituted a sufficient legal basis for the ORG to take a decision against ORG , requiring , in particular , the handover of the complete files of customers covered by LAW DATE . That being the case , the appellant ’s complaint is ill - founded .

CARDINAL.CARDINAL.CARDINAL . In the pilot case A-CARDINAL/CARDINAL of DATE this court found that LAW was binding on the NORP authorities . No derogation to it was possible under domestic law or in the authorities’ domestic practice . It was stated that Article CARDINAL [ of the LAW ] required the authorities to apply international law , which includes LAW , and that – in any event – the conformity of international law with LAW legislation could not be assessed where the international law in question was more recent . ORG thus accepted that LAW should be applied , even if it was contrary to LAW see ORG judgment ACARDINAL/CARDINAL of DATE , point CARDINAL and the references therein ; see also ORG judgments A-CARDINAL/CARDINAL of DATE , point CARDINAL.CARDINAL.CARDINAL and the references therein , A-CARDINAL/CARDINAL of CARDINAL DATE , point CARDINAL.CARDINAL.CARDINAL , and ORG DATE , point CARDINAL ) .

CARDINAL.CARDINAL.CARDINAL With particular regard to the relationship between the different conventions ( Convention CARDINAL , ORG - US CARDINAL [ in particular LAW thereof ] , the ORG [ in particular LAW thereof ] and LAW [ in particular LAW thereof ] ) , the court pointed out that that relationship was established pursuant solely to the rules set out in LAW on GPE of DATE ( ORG ) and that there was no substantive hierarchy in international law ( apart from the pre - eminence of jus cogens ) . This court therefore considered that the rules of LAW took precedence over the other provisions of international law , including LAW and LAW , as the latter CARDINAL provisions did not comprise jus cogens . It did , however , find that even if LAW were applicable , the conditions set out in LAW , which permits restrictions on the right to respect for private and family life , were fulfilled . Convention CARDINAL was indeed a sufficient legal basis under the case - law of ORG . Furthermore , GPE ’s major interests and the interest of being able to honour the country ’s international commitments took precedence over the individual interests of the persons concerned by the mutual assistance agreement to keep their pecuniary situation secret ...

CARDINAL This court also stated , in judgment A-CARDINAL/CARDINAL cited above , that LAW ( no punishment without law ) was not relevant to mutual assistance procedures . That provision was , exceptionally , applicable in the framework of NORP mutual assistance procedure if the person concerned by the assistance was threatened , in the requesting ORG , with proceedings in breach of LAW ... That was not the situation in the present case ...

CARDINAL.CARDINAL.CARDINAL This court has also held that the parties to an international agreement are free to provide expressly or implicitly for the retroactive application of such agreement ... Moreover , procedural rules could be applied retroactively to previous events , because the prohibition of non - retroactivity only applied to substantive criminal law , not to procedural law , which included provisions on mutual assistance ... Furthermore , the parties to LAW had wished to characterise differently the facts which had occurred prior to the signature of Agreement DATE , which was commonly referred to as ‘ retroactive effect’ . That wish to apply Agreement DATE which had become Convention DATE with retroactive effect transpired clearly from the criteria for granting mutual assistance as set out in LAW . Even though the parties had specified , in LAW , that that instrument would come into force on the date of its signature , they had wished that retroactive effect to prevail ...

In the present case it should be noted , in the light of the aforementioned judgments , that the following objections as to the validity and applicability of LAW can be discarded without further ado : incompatibility with the ORG and other international treaties , violation of the principle of the prohibition of the retroactivity of laws ( see LAW and LAW ) , and violation of the right to respect for private life ( see LAW ) . Furthermore , contrary to the appellant ’s opinion , LAW is in fact a sufficient legal basis for granting mutual assistance , notwithstanding the failure to put it to a referendum ( which is optional ) . Finally , even though GPE was unable – in this specific case DATE to obtain the same information under its own legislation , it is still bound by its international commitments and must grant mutual assistance where the requisite conditions have been met .

The appellant further submitted that LAW breached the principles of equality and non - discrimination by solely penalising CARDINAL specific category of persons , that is to say ORG customers . He claimed that LAW only applied to ORG customers and not to those of other banks . The appellant relied on LAW , LAW , LAW paragraph CARDINAL of LAW of DATE on ORG I ; ORG CARDINAL.CARDINAL.CARDINAL ) and LAW and CARDINAL of UN Covenant II .

As stated above , this court can not verify the conformity of LAW with LAW and Federal legislation . That legislation , moreover , overrides any previous international agreements to the contrary ( see point CARDINAL.CARDINAL.CARDINAL above ) . Therefore , LAW must be applied even if it establishes different legal regulations for ORG customers as compared with the customers of other banks ( see ORG judgment A-CARDINAL/CARDINAL of CARDINAL DATE , paragraph CARDINAL.CARDINAL.CARDINAL ) .

On those grounds , ORG dismissed the applicant ’s appeal .

On DATE the applicant lodged a public - law appeal with ORG , submitting that the considerations set out in the judgment challenged solely concerned mutual assistance in criminal matters and were not relevant to administrative mutual assistance .

By judgment of DATE that court declared the appeal inadmissible , mainly with reference to a judgment of DATE ( ATF CARDINAL II CARDINAL ) , which had found that appeals against ORG decisions given pursuant to ORG and subsequent agreements concluded with GPE fell within the scope of administrative mutual assistance .

On DATE the banking data concerning the applicant were transmitted to the GPE tax authorities .

NORP By letter of DATE , the ORG invited the applicant to inform it of the subsequent developments in the case , and , in particular , to give a brief summary of any consequences or any criminal penalties imposed personally and effectively on him in GPE following the disclosure of his banking data as ordered by ORG ( ORG ) .

By letter of CARDINAL DATE the applicant stated that he was not currently in a position to respond to the ORG ’s request .

By letter of DATE the applicant pointed out that the GPE authorities were still conducting their tax inspection and that he had not yet been charged with any criminal offence .


CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s husband was admitted to the ear , nose and throat ( ENT ) department of ORG ( “ the CHVNG ” ) for a nasal polypectomy ( removal of nasal polyps ) .

The operation took place DATE without particular incident .

On DATE at TIME the applicant ’s husband left hospital and returned home . He returned to the emergency department of the CVHNG at TIME DATE suffering from violent headaches . He was examined by the doctors on duty , in particular by a neurologist . The doctors diagnosed psychological problems and prescribed tranquilisers . They recommended that he leave hospital but the applicant objected .

At TIME DATE the applicant ’s husband was examined by the new medical team on duty . At TIME he underwent a lumbar puncture , which revealed that he had bacterial meningitis ( Pseudomonas ) .

At TIME he was transferred to the hospital ’s intensive care unit .

On DATE a scan revealed a cerebral oedema .

NORP The applicant ’s husband left intensive care on DATE following an improvement in his clinical condition . He was transferred to the hospital ’s general medical NORP ward , where he was under the care of Dr J.V.

On DATE he was diagnosed with CARDINAL duodenal ulcers .

On DATE the applicant ’s husband was discharged from hospital as his condition was considered to be stable .

DATE he returned to the GPE emergency department suffering from vertigo and headaches . He was examined by PERSON , who kept him under observation since he had acute diarrhoea , abdominal pain and severe anaemia .

On DATE an endoscopy was performed which showed that the applicant ’s husband had a gastroduodenal ulcer .

He left hospital on DATE and medication was prescribed .

The applicant ’s husband continued to suffer from severe abdominal pain and diarrhoea . On DATE he returned to the hospital ’s emergency department . He was examined by PERSON , who did not consider it necessary to admit him . He therefore returned home DATE .

On DATE the applicant ’s husband was readmitted to the CHVNG . A colonoscopy revealed infectious ulcerative colitis . Bacteriological tests also showed up the presence of the Clostridium difficile bacterium .

The applicant ’s husband was placed on a drip and treated with antibiotics .

At the request of the applicant and her husband , PERSON discharged the latter on DATE . He prescribed oral treatment and referred the applicant ’s husband for further treatment in the hospital ’s outpatient department .

On DATE the applicant ’s husband went to ORG in GPE . He was admitted DATE after he was found to be suffering from chronic diarrhoea and microcytic anaemia . He underwent various examinations including a colonoscopy , an endoscopy and blood tests . The medical team considered several possible causes , including pseudomembranous colitis , an infection with the Clostridium difficile bacterium , and PERSON ’s disease . All these possibilities were subsequently ruled out .

The condition of the applicant ’s husband worsened .

On DATE he was examined by a doctor who judged the situation to be under control . His condition deteriorated the following day . He was examined by a doctor who diagnosed a possible perforated viscus . An X - ray and an abdominal ultrasound were carried out , which showed ascites in the abdomen . At TIME the applicant ’s husband was again examined by a doctor . A sigmoidoscopy was performed which showed that he had rectocolitis . As his abdominal pain was worsening , it was decided that he should undergo surgery .

On DATE at TIME the applicant ’s husband was placed on oxygen .

At TIME he was examined by a general physician and TIME later by a surgeon . The latter , noting the existence of widespread peritonitis , decided that an immediate operation was needed . The applicant ’s husband entered the operating theatre at TIME and was brought out again TIME in order to be prepared for surgery , in particular by being given a blood transfusion . He re - entered the operating theatre at TIME and left it TIME , unconscious . He died DATE at TIME

According to the death certificate issued by ORG , the applicant ’s husband died from septicaemia caused by peritonitis and a perforated viscus .

On DATE the applicant wrote a joint letter to ORG , the regional health authority for the LOC region and ORG . She stated that she had received no response from the hospitals by way of explanation for the sudden deterioration in her husband ’s health and his death .

On DATE and DATE the regional health authority for the LOC region sent the applicant copies of the reports drawn up by the GPE and ORG on the basis of her husband ’s medical records .

On DATE the applicant requested an update on progress in the proceedings from the regional health authority , stating that she had still received no clear explanations concerning the events preceding her husband ’s death . In a letter of CARDINAL DATE the authority informed her that the file had been sent to ORG ( IGS ) with a view to the opening of an investigation .

In an order of DATE the Inspector General for Health ordered an investigation ( processo de averiguações ) .

On DATE an inspector was appointed to head the investigation .

On DATE the ORG informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared .

The applicant gave evidence on DATE .

On DATE medical expert reports were requested . Reports prepared by experts in the fields of general medicine , gastroenterology and general surgery were submitted in DATE . According to the reports , it would not have been possible to save the applicant ’s husband ’s life in view of the deterioration of his state of health after the nasal polypectomy .

The report of the investigation was submitted on DATE . It found , on the basis of the expert medical reports received , that the treatment administered to the applicant ’s husband had been appropriate .

In an order of CARDINAL DATE the Inspector General for Health declared the investigation closed , finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant ’s husband .

In a letter of CARDINAL DATE the applicant appealed against the order . She argued that the final report had not answered her questions , complaining about areas of uncertainty and about the duration of the investigation and its findings .

On DATE the Inspector General for Health informed the applicant that he had set aside the order of CARDINAL DATE and ordered the reopening of the investigation .

On DATE , in view of the questions raised by the applicant , the medical experts were requested to provide additional information .

A fresh investigation report was submitted on DATE , clarifying the facts and taking account of the answers provided by the CARDINAL medical experts . The report stated that there were no grounds for criticising the health - care personnel who had been involved in the care of the applicant ’s husband in the GPE and ORG , as the patient had received proper and appropriate medical assistance in terms of his diagnosis , supervision and treatment . The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health . The report concluded as follows :

“ The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice . There is therefore no need to take legal or disciplinary action against any persons involved in the [ patient ’s ] care ... ”

Taking this report into account , the Inspector General for ORG made a fresh order discontinuing the proceedings on DATE .

In a letter of CARDINAL DATE the applicant appealed against that order , complaining of unclear points and omissions . She also raised the possibility that the sudden deterioration in her husband ’s health and his eventual death might have been caused by bacteria present in the operating theatre on DATE of the nasal polypectomy , that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband . She therefore requested the reopening of the investigation and the preparation of a fresh expert medical report .

The Inspector General for ORG wrote to the applicant on DATE informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology .

The applicant gave evidence again on DATE .

The medical experts submitted their reports on DATE and DATE . The expert in gastroenterology stated that it was possible , albeit rare , for a nasal polypectomy to cause meningitis . He further considered that the applicant ’s husband had received appropriate treatment but that his discharge on DATE may not have been wise in view of his clinical condition . The expert concluded that the applicant ’s husband had suffered a series of complications which were uncommon but could occur , and that he had received proper medical care at the ORG . As to his care in ORG , the expert considered that the applicant ’s husband ’s condition had been extremely complicated and had given rise to doubts as to the best way to proceed . In his report , the expert in internal medicine rejected the idea of a hospital - acquired infection on the grounds that , had that been the case , the antibiotics administered to the patient would have had no effect . In his view , the meningitis had developed unexpectedly . He further took the view that the applicant ’s husband ’s discharge on DATE had been appropriate but that he should have continued to be monitored as an outpatient .

On DATE a report was drawn up on completion of the investigation , which concluded as follows :

The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the healthcare professionals involved in DATE ’s medical treatment ...

... the decision by the assistant doctor [ J.V. ] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as , in order to prevent a recurrence of the colitis caused by Clostridium difficile ... , the patient should have remained in hospital under close medical supervision ...

Hence , the doctor in question did not act with the necessary care and diligence , thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in NORP ward of the GPE ’s medical department DATE and DATE .

The medical opinions make no criticisms of the assistance provided in the gastroenterology department of ORG in GPE ... ”

In the light of this report the Inspector General made an order on DATE for the opening of disciplinary proceedings against Dr PERSON The outcome of the proceedings was not specified .

DATE . On DATE ORG acknowledged receipt of the applicant ’s letter of CARDINAL DATE , informing her that steps would be taken in response to it .

The case was referred to ORG regional disciplinary council for the NORP region , which , after obtaining the patient ’s medical records , sought the opinions of the following specialist panels ( Colégios de especialidades ) of ORG :

- ear , nose and throat ( ENT ) ,

- infectious diseases ,

- general surgery , and

- gastroenterology .

In a report of DATE the gastroenterology panel issued the following conclusions :

A simple X - ray of the abdomen performed DATE before the patient ’s death did not detect any dilatation or perforation of the colon .

The patient ’s death was caused by peritonitis as a result of the perforation of the duodenal ulcer . The difficulties in diagnosing the condition were understandable in view of the patient ’s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon .

The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However , given that the patient had already experienced CARDINAL episode of intestinal bleeding , there would have been grounds for weighing up the use of these drugs .

The decisions to discharge the patient [ from hospital ] may have delayed the diagnosis or the commencement of treatment . Nevertheless , after examining the documents submitted to me , I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment .

The conclusions of the report of CARDINAL DATE by the infectious diseases panel read as follows :

“ CARDINAL . In our opinion the diagnosis of meningitis , most likely resulting from the nasal polypectomy , was inexplicably delayed . The fact that there was no one on the medical team trained in this type of diagnosis ( for example , a specialist in infectious diseases ) may be regarded as the only explanation for such an incident . However , this was not the immediate cause of the patient ’s death .

In our view , too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery .

The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed , although an autopsy is mandatory ( mandatória ) in cases of this type in order to shed light on the chain of events . ”

In a report of DATE the general surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned . The report read as follows :

“ CARDINAL . A perforated duodenal ulcer requires immediate surgery . In the present situation the perforated ulcer ... was difficult , if not impossible , to diagnose given the clinical context in which it occurred . Furthermore , in view of the seriousness of the patient ’s clinical condition , the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures .

In a report dated DATE the ENT panel concluded as follows :

“ CARDINAL . Meningitis following microendoscopic surgery for nasal polyps is described as CARDINAL of the ( major ) complications of this type of surgery , estimated in the literature to occur in PERCENT of cases . These figures will be higher in the event of a repeat operation , as in the present case ( surgery was performed in DATE as stated on page CARDINAL of the file concerning the operation ) .

The post - operative GPE scan of the brain carried out on DATE does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out .

The description of the surgery performed on the patient on DATE ( page CARDINAL of the file ) does not give any indication of clinical malpractice or negligence .

No ENT procedures were performed during any of the patient ’s subsequent stays in ORG or in ORG . ”

In an order of DATE the regional disciplinary council for the LOC region decided to take no further action on the applicant ’s complaint , on the ground that there was no evidence of misconduct or medical negligence . The disciplinary council observed the following :

( i ) meningitis was a complication that could arise in PERCENT of cases following a nasal polypectomy ; the figures were liable to be higher for a repeat operation , as in the case in question ;

( ii ) the applicant ’s husband had received appropriate treatment during his various hospital stays ;

( iii ) the patient ’s bacterial meningitis ( Pseudomonas ) had been treated properly ;

( iv ) although the infectious diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner , this had not been a decisive factor in the development of the clinical situation ;

( v ) the perforation of the duodenal ulcer had been the cause of the peritonitis . This had been difficult to diagnose in view of the patient ’s serious clinical condition , a fact acknowledged by the gastroenterology and general surgery panels ;

( vi ) although the infectious diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery , the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia , sepsis and a fluid and electrolyte imbalance , as noted by the general surgery panel .

On DATE the applicant lodged an appeal against the order with ORG . On DATE the appeal was declared inadmissible as being out of time .

On DATE the applicant lodged a complaint for negligent homicide with the GPE criminal investigation and prosecution department .

She gave evidence on DATE .

By order of ORG of DATE the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor ( assistente ) .

On DATE the public prosecutor ’s office made its submissions , charging PERSON with homicide by gross ( grosseira ) negligence . In support of their decision the prosecuting authorities referred to the report appended to the ORG order of DATE . They considered that PERSON should not have discharged the applicant ’s husband on DATE in so far as the patient ’s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium .

The case was referred to ORG . During the trial the court heard evidence from the applicant , the accused , CARDINAL doctors who had been involved in treating the applicant ’s husband in the CHVNG and in ORG , and the CARDINAL medical experts appointed in the context of the proceedings before the ORG . The court also sought the opinion of ORG .

On DATE ORG discontinued the proceedings , taking the view that the findings made by the ORG in its order of DATE could not be taken into consideration as they had not been upheld by the CARDINAL medical experts who had given evidence during the trial .

As to the facts , ORG considered the following to be established :

“ The patient ’s hospitalisation on DATE ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis . In fact , it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer ; ...

The decisions to discharge the patient on CARDINAL and DATE were appropriate , given that , in the former case , the problem of bacterial meningitis had been resolved , [ the patient ] had completed the course of antibiotics , he no longer had any symptoms or fever , had a slightly increased white - blood cell count , a falling neutrophil count and normal sedimentation rate , and was not complaining ... and , in the latter case , that is to say , the patient ’s hospitalisation from DATE , the patient was not complaining of abdominal pain , diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...

When the patient was admitted to ORG , laboratory tests were carried out for Clostridium difficile . The results were negative on CARDINAL occasions . ”

On the subject of the surgery preceding the death of the applicant ’s husband , ORG observed as follows :

“ ... the patient presented in a very serious clinical state , with septic shock and multiple organ dysfunction . For that reason , he was placed on artificial ventilation and vasoactive drugs and fluids were administered ... , together with hydrocortisone to deal with possible acute adrenal insufficiency ( falência supra - renal aguda ) , and broad - spectrum antibiotics ;

... in this medical context the patient ’s prospects of survival were very uncertain , in view of the septic shock and multiple organ dysfunction ;

... a simple abdominal X - ray and an abdominal and pelvic ultrasound scan were therefore requested , which did not reveal a perforation of the intestine . ”

In ORG view , it had not been demonstrated that the care provided to the applicant ’s husband during his stay in hospital from CARDINAL January to CARDINAL DATE had not been in accordance with good medical practice , or that he should have been kept in hospital for longer .

The court therefore concluded that there was no causal link between the treatment administered by PERSON to the applicant ’s husband in the GPE and his death , which

“ ... was caused by a perforated viscus that was unconnected to the colonic disease treated by the accused , the Clostridium difficile ... ” .

It inferred from this that

“ ... there was no evidence to show that the treatment administered by the accused for the Clostridium difficile was incomplete , that the patient was discharged prematurely on DATE or , in sum , that the accused was responsible for the death of the patient on DATE . ”

The applicant did not appeal against that judgment .

On DATE the applicant brought a civil action in the ORG against the GPE , ORG and the CARDINAL doctors who had been involved in treating her husband while he was in hospital , claiming compensation for the damage she had suffered on account of her husband ’s death . She alleged , inter alia ,

( i ) that her husband ’s meningitis had been caused by the Pseudomonas cepacia bacterium which , she alleged , had been present in the operating theatre during the nasal polypectomy ;

( ii ) that the meningitis had been diagnosed too late , allowing the illness to become serious ;

( iii ) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband ’s death .

In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing .

DATE the eight doctors contested their standing to be sued ( ilegitimidade passiva ) , relying on LAW no . DATE of DATE .

DATE . On DATE the court gave a preparatory decision ( despacho saneador ) specifying which facts were considered to be established and which remained to be established . In accordance with LAW no . DATE of DATE it further held that the doctors among the defendants did not have standing ( ilegitimidade passiva ) in so far as they had been sued only for negligent conduct . Accordingly , it declared the claim admissible only in respect of the hospitals .

On DATE the applicant gave evidence .

During the CARDINAL hearings the court heard evidence from the following witnesses :

( i ) CARDINAL doctors who had been involved in treating the applicant ’s husband during his various stays in the GPE and ORG ;

( ii ) the applicant ’s husband ’s general practitioner ;

( iii ) CARDINAL doctors who were friends of the family ;

( iv ) the inspector who had written the final report on completion of the investigation within the ORG ; and

( v ) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last ORG decision .

On DATE the court made an order concerning the facts . Taking into account the applicant ’s husband ’s medical records and the various statements made by the witnesses who had given evidence , the court considered it established , inter alia ,

( i ) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly ;

( ii ) that the operating theatre had been aseptic and sterilised at the time of the polypectomy ;

( iii ) that the origin of the bacterium linked to the patient ’s meningitis had not been proven . The court dismissed the possibility of a hospital - acquired infection , pointing out that in that case the prescribed treatment would have had no effect ;

( iv ) that the medication prescribed in the GPE and ORG could cause intestinal problems and hence could give rise to colitis ;

( v ) that the applicant ’s husband had been treated with drugs to protect his stomach in the GPE ;

( vi ) that the gastroduodenal perforation had not been detected until the operation was being performed ; and

( vii ) that the applicant ’s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus .

On DATE the Oporto Administrative and Tax Court delivered a judgment in which it dismissed the applicant ’s claims . On the facts , the judgment stated as follows :

“ The Pseudomonas bacterium was resistant to the various antibiotics that were tried ...

When the patient attended PERSON Hospital on DATE he had completely recovered from his bacterial meningitis .

On DATE the patient again attended PERSON , where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ... ;

Throughout his stay in ORG he was given treatment to protect his stomach .

When he was admitted ( to ORG on DATE ) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease . Medication was prescribed in keeping with that diagnosis .

While in ORG he was kept under observation , received DATE medication and underwent various tests .

On DATE ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review ;

It was not until DATE that the patient ’s acute abdominal syndrome was diagnosed , calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation ;

The perforation had occurred TIME before surgery . ”

The judgment concluded as follows :

“ ... in view of the facts that have been established , it is not possible to determine at what point the defendants , by their actions or omissions , breached the rules of good medical practice ...

It is considered established that ORG ’s death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer ...

No doubts persisted regarding the diagnosis of meningitis , the procedure adopted , the sequence of treatment and the resolution of the problem , as all the various aftereffects were duly explained .

Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of PERSON ’s meningitis and other conditions , although it was explained that colitis is a bacterial imbalance caused by antibiotics ( the very ones which have undesirable effects on intestinal flora ) .

Nevertheless , it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply CARDINAL factor causing the infection . The other factors and circumstances preceding the operation ... thus cease to be relevant .

It is none the less surprising that the death of the claimant ’s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation . However , it has not been demonstrated that the therapy or medication administered to A. at any point was unsuited to his clinical condition . There was therefore no breach of the rules of good medical practice ( either by action or omission ) . Accordingly , one of the cumulative conditions for establishing civil liability , namely an unlawful act , is absent . ”

The applicant appealed against the judgment to ORG . She contested the facts deemed to be established , arguing that only by studying the circumstances before , during and after the operation would it be possible to understand what type of bacterium her husband had contracted . She further reiterated that her husband had contracted a hospital - acquired infection and had not received adequate treatment either in the GPE or in ORG .

On DATE ORG dismissed the applicant ’s claims , upholding the judgment of ORG . It first of all declined to review the facts considered by the court below to have been established , on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court ’s decision . ORG summed up its judgment as follows :

“ The court below considered , in sum , that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to the applicant ’s treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment .

For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient ’s death .

The claimant takes a different view of the matter . However , she bases her arguments mainly on allegations that have not been proven , and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium , allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics .

Accordingly , these claims can be summed up as allegations of medical negligence which are unsupported by the established facts . ”


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON .

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

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

On DATE the applicant filed an application with ORG ( Zakład Ubezpieczeń Społecznych – “ the SSB ” ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

Along with her application for a pension , she submitted , among other documents concerning her son ’s health , a medical certificate issued by a specialist doctor on DATE . The certificate stated that the child ( born in DATE ) suffered from hypothyroidism ( niedoczynność tarczycy ) and was in need of the parent ’s constant care .

On DATE the ORG issued a decision granting the applicant the right to an earlyretirement pension in the net amount of MONEY ( ORG ) per month , starting from DATE .

The applicant was issued with a pensioner ’s identity card marked “ valid indefinitely ” and she continued to receive her pension without interruption until DATE of the revocation of the right .

On DATE the ORG reviewed the applicant ’s pension application under LAW ( CARDINAL ) of the LAW DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń DATE “ the DATE LAW ) .

The ORG requested ORG doctor ( PERSON PERSON ) to inform it whether the applicant ’s son required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child in question could not be considered as ever having required such care .

On DATE the ORG simultaneously issued CARDINAL decisions in respect of the applicant . By virtue of the first decision , the payment of the applicant ’s pension was discontinued starting from DATE . By virtue of the second decision , the ORG revoked the initial decision of DATE and eventually refused to award the applicant the right to an early - retirement pension under the scheme provided for by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON . DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki DATE “ the DATE LAW ) .

The applicant appealed against the above - mentioned decision divesting her of the right to an early - retirement pension . She submitted that she should receive the benefit because her child required constant care , as confirmed by the medical certificate attached to her original application for a pension .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal . On the basis of a report on the state of health of the applicant ’s child prepared by an expert in endocrinology the court found that the applicant ’s son had not required , as of DATE , a constant care of his mother . It held that the proceedings had been reopened by the ORG in accordance with CARDINAL of the DATE PERSON and the applicant had been rightfully divested of her right to an EWK pension .

On DATE ORG ( ORG ) dismissed the applicant ’s appeal against the first - instance judgment . It agreed with the first - instance ORG findings of fact . As regards the reopening of the proceedings , it observed that the ORG had acted in accordance with LAW . In that context , it referred , in particular , to paragraph CARDINAL of this provision which explicitly allowed the ORG to reopen the proceedings if it came to light that the submitted evidence had not constituted sufficient grounds for the right to the pension to be established . It also noted that , in the applicant ’s case , the proceedings had been reopened because new evidence had been obtained by the authority , namely the documents relating to the course of the child ’s medical treatment .

The applicant did not lodge a cassation appeal with ORG ( Sąd Najwyższy ) .

Nor did she lodge a request for the reopening of judicial proceedings in her case on the basis of the judgment of ORG ( PERSON ) of DATE declaring section CARDINAL(CARDINALa ) of the DATE Law unconstitutional ( see paragraphs DATE below ) .

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of GPE GPE , no . CARDINAL , § § ORG , DATE and PERSON v. GPE , no . CARDINAL , § § ORG , DATE .

By virtue of the law of DATE on amendments to the law of DATE on retirement and disability pensions paid from ORG and to certain other acts ( LOC o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń LOC oraz niektórych innych ustaw – “ the DATE Act ” ) , which entered into force on DATE , a new paragraph CARDINAL was added to CARDINAL of the law . The amended CARDINAL of the DATE PERSON provided as follows :

“ CARDINAL . The right to benefits or the amount of benefits will be re - assessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances , which had existed before issuing the decision and which have an impact on the right to benefits or on their amount , are discovered .

Paragraph CARDINAL applies if after the validation of the decision it comes to light that the submitted evidence did not constitute sufficient grounds for the right to the retirement pension or disability pension or for their amount to be established . ”

On DATE , before paragraph CARDINAL was added to section CARDINAL of the DATE Law , ORG adopted a resolution in which it held :

“ A different assessment of the [ same ] evidence as attached to the application for a retirement or disability pension , carried out by a social security authority after validation of the decision awarding the right to a pension , is not one of the circumstances justifying the ex officio re - opening of the proceedings for a review of the right to a pension in accordance with section CARDINAL of the Law of DATE on retirement and disability pensions paid from ORG . ”

In a judgment given on DATE ( case no . III GPE CARDINAL ) ORG held that , when applying section CARDINAL(CARDINAL ) of the DATE Law , the domestic courts should take into account the criteria set out in the ORG ’s judgment in the PERSON case . They should first establish whether the mistake in granting a social security benefit had been caused by the authorities themselves without any fault of the person concerned . In examining whether the social security authority was allowed to reopen the proceedings , they should also take into account the period of time that had elapsed from the date when the social benefit in question had been granted . When applying the provision of domestic law they should assess the proportionality of the consequences of the interference with an individual ’s right to a social benefit . Accordingly , where the mistake had been caused by the authorities themselves and the revocation of the benefit would entail substantial negative consequences for an individual , the relevant decision should not be revoked .

In a judgment of CARDINAL DATE ( case no . I GPE CARDINAL/CARDINAL ) ORG reiterated that the revocation of the right to a social security benefit following the reopening of the proceedings under LAW of the DATE PERSON should be assessed in the light of the criteria set out in the ORG ’s judgment in the PERSON case . In this connection ORG underlined that ORG constituted an integral part of the NORP legal system and that the domestic courts should therefore interpret the provisions of the domestic law in the light of the jurisprudence of the ORG .

In a judgment of DATE ( case no . III GPE CARDINAL ) ORG held that section CARDINAL(CARDINALa ) of the DATE PERSON should not be interpreted as providing a separate legal basis for reopening of the proceedings concerning the grant of a social security benefit and should be read in conjunction with LAW CARDINAL ) . If this provision was to be understood as allowing the social security authority to reopen the relevant proceedings of its own motion merely on the basis of a new assessment of previously submitted evidence , it would have to be considered incompatible with the principle of the rule of law set forth in LAW . ORG considered that its interpretation of the provisions of the DATE PERSON was further supported by the principles set out in the FAC judgment of the ORG .

On DATE the ORG made an application to ORG , asking for section CARDINAL(CARDINALa ) of the DATE Law to be declared unconstitutional . The ORG argued that the impugned provision was unconstitutional in so far as it expressly allowed for an ex officio reopening of proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of the evidence which had already been submitted before the relevant authority .

On DATE ORG held that section CARDINAL(CARDINALa ) of the DATE PERSON was in breach of LAW ( the principle of the rule of law ) and LAW ( the right to social security ) of LAW . It found that , as the provision in question allowed for an unlimited re - assessment of evidence which constituted grounds for the initial decision concerning the entitlement to a social security benefit , it was in breach of the principle of the rule of law as set forth in LAW .

Furthermore , ORG found that the provision in question did not strike a fair balance between the general interest and an individual ’s right to social security under LAW . The court considered that an interference with individual rights guaranteed by LAW , which pursued the aim of correcting the authority ’s own mistake , could only be justified under exceptional circumstances . However , on the basis of the impugned provision the social security authority could , at any time and without any limitations , review the decision concerning a social security benefit by means of re - assessment of the evidence before it .

In the grounds for the ruling ORG also referred to the ORG ’s PERSON judgment . It noted that this case had likewise concerned a revocation of the right to a social security benefit following the reopening of the social security proceedings , which had been , however , based on section CARDINAL ) of the Law CARDINAL as section CARDINAL(CARDINALa ) had not been in force at the material time . It further observed that the ORG ’s judgment had influenced the interpretation of section CARDINAL ) of the DATE Law by ORG ( see paragraphs DATE above ) .

Lastly , with regard to the consequences of its ruling , ORG noted that the breach of LAW should be remedied by restoring the state of conformity with the law ( wymaga przywrócenia stanu zgodnego z prawem ) . In that context , ORG explicitly stated that the finding of unconstitutionality of section CARDINAL(CARDINALa ) of the DATE PERSON should be a ground for the reopening of proceedings in which final rulings had been based on this provision .

On DATE the judgment was published in ORG ( PERSON ) and entered into force on that date .

Article CARDINAL of the LAW , in so far as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published immediately .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final judicial decision , final administrative decision or ruling on other matters was given , shall be a basis for reopening proceedings , or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings . ”

In accordance with LAW in conjunction with LAW ( Kodeks Postępowania Cywilnego ) a party to civil proceedings terminated by a final judgment may request that these proceedings be reopened , if ORG has found that the normative act on the basis of which this judgment was given was incompatible with LAW .

Pursuant to LAW , a request to that effect shall be lodged within DATE from the date on which the judgment of ORG has entered into force . Pursuant to LAW a request for the reopening of the proceedings must be lodged within DATE from the date on which the final judgment has been given , unless the party could not act in the proceedings or was not properly represented .

Under LAW , a reopened case is to be examined within the limits determined by the grounds for the reopening . According to LAW of this provision , after a fresh examination of the case , the court may either dismiss the request for reopening , or allow it and alter or quash the impugned judgment . If need be , it may reject the claim on formal grounds or discontinue the proceedings .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

The applicant was born in DATE and lives in GPE .

On DATE , while the applicant was serving as a conscript in the army , he fell from the roof where he was on guard . Subsequently , he was treated in various civilian and military hospitals . According to a medical report dated DATE , the applicant was diagnosed as suffering from a left parietal craniotomy and was declared unfit for military service .

On DATE the applicant applied to ORG for compensation for his injury .

Following a tacit dismissal of the claim by the administrative authorities , the applicant initiated compensation proceedings in respect of the injuries he had sustained during his military service before ORG on DATE . He sought MONEY ( TRY ) ( MONEY ( ORG ) ) in respect of pecuniary damage and the same sum in respect of non - pecuniary damage .

An expert report dated DATE assessed the applicant ’s pecuniary damage at TRY CARDINAL ( approximately ORG CARDINAL,CARDINAL ) .

On DATE the applicant asked the court to increase his initial claim via an amendment ( ıslah ) , stating that he had only become aware of the true extent of his pecuniary damage when he had received the expert ’s report .

On DATE ORG ruled in favour of the applicant and awarded him the full amount of his initial claim in respect of pecuniary damage , namely TRY CARDINAL . It awarded him a further TRY CARDINAL in respect of non - pecuniary damage . However , the court dismissed the applicant ’s application for an amendment , considering itself bound by the initial claim . The court stated in particular :

“ The purpose of an amendment is to rectify a procedural act . Having regard to the judgment of ORG published in ORG , we must conclude that , in civil law , injured persons are entitled to seek additional compensation once an expert report has been issued . However , in the proceedings before ORG , the time - limits of DATE [ from the date when a claimant becomes aware of the impugned act ] and DATE from the date of referral of the administrative authorities apply . Under section CARDINAL ) of ORG , the amount claimed can not be rectified once those deadlines have passed . Consequently , the applicant ’s amendment claim must be rejected for being out of time ... ”

By a judgment of DATE ORG dismissed the applicant ’s application for rectification of its previous decision .