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

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

The applicant is a former councillor of ORG . In DATE he lodged with ORG an application contesting ORG decision of DATE concerning the levying of local taxes and duties and the decision of CARDINAL DATE regarding the placement of outside advertisements in GPE , the presidential decree of CARDINAL DATE appointing the mayor and certain provisions of i ) the law of DATE concerning the date of local elections and the extension of the mandate of the councillors of local councils , ii ) the law of DATE concerning the local elections , iii ) the law of CARDINAL DATE concerning the local public administration , iv ) the law of DATE concerning the status of GPE and v ) the law of DATE concerning the status of a councillor in a local council . He alleged that the contested legal provisions contravened the LAW and ratified international instruments and that the unlawfully conducted municipal elections of DATE precluded him from freely exercising his right to participate in the administration of local public affairs . On DATE ORG dismissed as unfounded the application on the ground that his right to participate in the administration of local public affairs as a former councillor had not been interfered with as a result of the municipal elections and of the impugned acts . The applicant appealed against this decision , submitting that ORG had erroneously applied the material law and incorrectly dismissed his application . On DATE ORG dismissed the appeal as unfounded referring to the reasoning of ORG . The applicant appealed against this decision , arguing that the inferior courts had disregarded the relevant provisions of the LAW and ratified international instruments on human rights . On DATE ORG allowed the appeal , set aside ORG decision of DATE and sent the case back for re - examination to the same court . On DATE ORG dismissed as unfounded the applicant ’s appeal against the decision of ORG of DATE and upheld the latter decision .

The applicant lodged an appeal against this decision , arguing that ORG had erroneously applied procedural law and disregarded the relevant provisions of the LAW and ratified international instruments on human rights . On DATE ORG dismissed the appeal after having found that ORG had conducted the proceedings in accordance with applicable procedural rules having due regard to the relevant provisions of the LAW and ratified international instruments on human rights . On DATE ORG dismissed as unfounded the applicant ’s petition for annulment against of decision .

In DATE the applicant contested before ORG an official letter signed and addressed to him by a judge of ORG , explaining that the court lacked jurisdiction insofar as it concerned individual and collective petitions lodged by citizens directly with ORG . He argued that the said letter and the refusal of a judge of ORG to examine his application had infringed his constitutional right to have direct access to ORG . On DATE ORG dismissed the applicant ’s complaint on the ground of its lack of jurisdiction , observing that jurisdiction in the matter lay with the competent district court . The applicant appealed against this decision , submitting that ORG had erroneously applied procedural law and incorrectly dismissed the application . On DATE ORG dismissed the applicant ’s initial application relying on the fact that the contested letter could not be classified as an administrative act and that therefore the courts lacked jurisdiction as regards the infringement of the applicant ’s rights he had complained of .

In DATE the applicant contested before ORG the actions and omissions of judges of ORG who had rejected his numerous complaints and letters in which he had challenged the constitutionality of certain legislative provisions and administrative decisions . He complained that the contested acts and omissions contravened the LAW and ratified international instruments on human rights . On DATE ORG dismissed the application on the ground that the court lacked jurisdiction as regards the infringements of the applicant ’s rights he had complained of . The applicant lodged an appeal against this decision . On DATE ORG , relying on the same grounds as those stated in ORG decision , dismissed the applicant ’s appeal . On DATE ORG dismissed as unfounded the applicant ’s petition for annulment of this decision .

In DATE the applicant contested before ORG the presidential decree of CARDINAL DATE appointing the mayor of PERSON and the presidential decree of CARDINAL DATE appointing ORG , alleging that the contested decrees contravened the LAW and ratified international instruments on human rights and precluded him from freely exercising his right to vote and to be elected to ORG and to participate in the administration of local public affairs . On DATE ORG dismissed the applicant ’s complaint on the ground of its lack of jurisdiction as regarded the alleged unconstitutionality of the above acts , observing that jurisdiction in the matter lay with ORG . The applicant appealed against this decision , arguing that ORG had failed to examine all the complaints contained in his application . On DATE ORG , referring to ORG reasoning , dismissed the appeal as unfounded .

Also in DATE the applicant contested before ORG the provisions of i ) LAW , ii ) the law of CARDINAL DATE concerning ORG , iii ) the LAW of constitutional jurisdiction of DATE and iv ) CARDINAL administrative acts of the ORG and its divisions . He alleged that the contested legal norms contravened the LAW and ratified international instruments on human rights and precluded him from freely exercising his right to vote and to be elected to ORG and to participate in the administration of local public affairs . On DATE ORG dismissed the applicant ’s complaint on the ground of its lack of jurisdiction as regarded the alleged unconstitutionality of the above acts , observing that jurisdiction in the matter lay with ORG . The applicant appealed against this decision , arguing that ORG had failed to examine all the complaints contained in his application . On DATE ORG quashed the decision of ORG of DATE and sent the case back for re - examination to the same court . On DATE ORG dismissed the initial application on the ground of its lack of jurisdiction , observing that the jurisdiction in the matter concerning the constitutionality of the challenged acts lay with ORG , while the competence concerning the electoral disputes lay with competent district court . On DATE ORG , relying on the same grounds as those stated in ORG decision of DATE , dismissed the applicant ’s appeal against the above decision .

In DATE the applicant contested before ORG TIME decisions of ORG concerning the preparation and carrying out of the electoral campaign for the parliamentary elections of DATE and the manner in which ORG had applied certain provisions of LAW . He argued that the contested acts and the manner in which they were applied contravened the relevant provisions of the LAW and ratified international instruments on human rights and infringed his right to vote and to stand for the parliamentary elections . In particular , he complained that the threshold of PERCENT of the votes cast established for all candidates placed the independent candidates in a disadvantageous position as against other candidates ( e.g. political parties , blocks etc . ) . On DATE ORG dismissed the application on the ground that all the contested decisions had been adopted in accordance with the applicable provisions of LAW . In the same decision , the court ruled that it had had due regard to the relevant provisions of the ratified international instruments on human rights and that the applicant had failed to adduce prima facie evidence to prove that the contested acts had interfered with his right to vote and to stand for the parliamentary elections of DATE and dismissed as unfounded his complaint concerning the difference in treatment of the candidates . The applicant appealed against this decision , arguing that ORG had erroneously applied LAW and the rules of civil procedure , and had disregarded relevant provisions of the international instruments on human rights incorporated in the domestic legal order . On DATE the enlarged panel of ORG , relying on the same grounds as those stated in its decision of DATE , dismissed the applicant ’s appeal .

In DATE the applicant lodged with ORG an application against the Government , ORG and CARDINAL ministries requesting the annulment of a joint decision of CARDINAL DATE of ORG imposing the levying of compulsory fees as a condition for exercising certain entrepreneurial activities . In the same application , he argued that the decision contravened the LAW and ratified international instruments on human rights and sought compensation for pecuniary and non - pecuniary damage caused to him as a result of the decision . On DATE ORG discontinued the proceedings on the ground of lack of jurisdiction in respect of the alleged unconstitutionality of the above decision , observing that jurisdiction lay with ORG .

The applicant appealed against this decision , submitting that the court had erroneously applied procedural law and incorrectly discontinued the proceedings . On DATE ORG quashed the judgment and sent the case back for re - examination to ORG on the ground that the applicant had failed to exhaust extra - judicial proceedings by contesting the decision before the administrative authority which had adopted the decision . On DATE ORG dismissed the initial application as inadmissible on the ground that , in the meantime , the above administrative decision had been declared unconstitutional by ORG and had been subsequently repealed by another administrative decision . The applicant lodged an appeal against this decision , arguing that his appeal had been dismissed as a result of the erroneous interpretation and application of the applicable provisions of civil procedure . On DATE ORG dismissed the appeal , relying on the same grounds as those stated in the judgment of ORG of DATE . On DATE ORG dismissed as unfounded the applicant ’s petition for annulment of this decision .

Article CARDINAL provides that GPE is governed by the rule of law , where the dignity of people , their rights and freedoms , the open development of human personality , justice and political pluralism represent supreme values , which shall be guaranteed .

Under LAW , national sovereignty resides with the people of GPE , who shall exercise it directly and through its representative bodies in the ways provided for by LAW .

With regard to the human rights and freedoms , LAW states that the constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with LAW , and with other conventions and treaties endorsed by GPE . Wherever disagreements appear between conventions and treaties signed by GPE and her own national laws , priority shall be given to international regulations .

Pursuant to LAW is the supreme law of the country , where no laws or other legal acts and regulations in contradiction with the provisions of the LAW may have any legal power .

As for the observance of international law and international treaties , in accordance with LAW pledges to respect LAW and the treaties to which it is a party , to observe with its relations with other GPE the unanimously recognised principles and norms of international law . The coming into force of an international treaty containing provisions contrary to the LAW shall be preceded by a revision of the latter .

Article PERSON provides that the exercise of certain rights or freedoms may be restricted only under the law and only as required in cases such as : the defence of national security , public order , health or morals , or ORG rights and freedoms , the carrying out of investigations in criminal cases , preventing the consequences of a natural calamity or of a technological disaster .

LAW final and transitional provisions provides that all ORG institutions in existence as of the date marking the coming into force of this LAW ( DATE ) retain their functionality until new institutions are established .

Pursuant to LAW NORP citizens shall have the right to participate in the administration of public affairs , either directly or through their representatives . Article CARDINAL further provides that the public administration governing in the administrative / territorial units is based on the principles of local autonomy , decentralisation of public services , eligibility of local public administration authorities and consultation of the citizens on local problems of special interest . With regard to village and town authorities , Article CARDINAL states that at village and town level , the public administration authorities through which local autonomy is exercised are represented by the elected local councils and mayors .

Article CARDINAL sets out the rights of persons aggrieved by public authority and provides , inter alia , that any person , whose rights have been interfered with in any way by public authority through an administrative ruling or a lack of timely legal reply to an application , is entitled to obtain acknowledgement of those rights , cancellation of the ruling and compensation of damages .

As to the fiscal system , pursuant to LAW , all taxes , duties , and other revenue of the national budget , including the national social security budget and the district , town and village budgets shall be established under the law by the representative agencies , as required .

Under LAW , the courts , in examining cases , shall apply the LAW , laws and the international treaties endorsed by GPE . The provisions concerning human rights and freedoms shall be applied in accordance with LAW . The same LAW states that a court shall not apply a law or any other normative act which contravene LAW .

As for the procedural aspects , pursuant to LAW , a judge may refuse to take for examination an action or application if the case is not liable to be examined by the courts or the court lacks jurisdiction in respect of that case .

Article CARDINAL provides , inter alia , that the collegiate acts of the public administration and the individual acts of officials can be contested before the courts .

LAW states that every citizen has the right to obtain effective protection from competent courts against actions infringing his or her legitimate rights , freedoms and interests . LAW further provides that ORG is the sole authority of constitutional judicature in GPE and that it is independent of any other public authority and obeys only the LAW .

However , LAW DATE on ORG and LAW of DATE provide that the ORG shall exercise its constitutional jurisdiction only upon an appeal of the following subjects : a ) President ; b ) Government ; c ) Minister of ORG ; d ) ORG ; e ) ORG ; f ) Prosecutor General ; g ) Member of the ORG and h ) ORG faction .

Under LAW , laws and other regulations or parts thereof become null and void from the moment that FAC passes the appropriate decisions to that effect .

Article CARDINAL of LAW regulates the determination of the threshold of representation and states that upon receiving records of the voting results in all districts from all district electoral councils , ORG shall count the number of valid votes cast for each candidate in order to establish whether or not they have passed the PERCENT threshold of representation . Accordingly , candidates having obtained votes than PERCENT of the votes cast shall be excluded from assuming their Parliamentary mandates by a decision of ORG .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants , Ms Lidiya Aleksandrovna Podrugina and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in the town of Petrozavodsk in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON PERSON , the former Representative of GPE at ORG .

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

The applicants sought judicial recognition of the fact that they had been prisoners of war during World War II . Such a declaration was a precondition for claiming a statutory DATE allowance from the ORG . The ORG was represented by a local ORG in those proceedings .

By judgment of DATE , the ORG of GPE granted the applicants’ claim . The court found that at the time the applicants had been forced to work and had not been allowed to leave the territory of the village .

On an unspecified date , the President of ORG lodged a request for supervisory review of the above judgment . On DATE the Presidium of ORG granted his request , quashed the judgment and rejected the ORG claims . The ORG court found that in the absence of documentary evidence , including archive sources , or other evidence the above circumstances were insufficient for concluding that the village had served as a concentration camp . The court concluded that the applicants could not be considered as prisoners of war . The applicants were not present at the supervisory review hearing .

From DATE to DATE the applicants received the allowance , varying from CARDINAL to MONEY per month . After the annulment of the judgment in their favour , they were not required to reimburse the monies received during that period .

On DATE ORG ( the “ Authority ” ) , a specialised ORG agency , took over responsibility for making allowance payments .

In DATE the applicants brought new proceedings before ORG asking for a judicial confirmation of the fact that DATE they had been living in a village occupied by ORG and thus indeed been prisoners of war . The ORG was represented by ORG in those proceedings .

By judgments of DATE and DATE , ORG granted the second and first ORG claims respectively . In PERSON PERSON ’s case , the court heard CARDINAL persons who had resided at the time in the same village , and had regard to an expert opinion .

No appeal was lodged and the above judgments became final . On the basis of those judgments , on unspecified dates the applicants applied to ORG for a statutory allowance , which they subsequently received until DATE and DATE respectively .

In DATE ORG applied for supervisory review of the judgments of CARDINAL DATE and DATE , contending that it had not been aware of them in good time and thus could not request their supervisory review within the statutory period of DATE . The ORG contended that the above judgments concerned the same matter that had already been determined in DATE proceedings .

By a decision of DATE , ORG extended the timelimit for lodging of the ORG ’s request for supervisory review . The court accepted the ORG ’s argument that it had learnt about the DATE proceedings on DATE , when ORG had provided it with the lists of persons no longer entitled to an allowance . ORG and not the ORG had been involved in the DATE proceedings .

On DATE the Presidium of ORG of GPE quashed the judgment of DATE and discontinued the proceedings . The court found that the matter had already been examined in DATE and had been finally determined by the judgment of CARDINAL DATE . Apparently , the first applicant was not present at the supervisory - instance hearing and obtained a copy of its ruling on an unspecified date . According to the Government , a copy of the supervisory review ruling was dispatched to her on DATE .

The applicant was not required to reimburse the monies received in DATE and DATE .

By a decision of DATE , ORG refused to extend the time - limit for bringing supervisory review proceedings . The court found that the ORG should have been aware of the judgment of DATE since it had been making regular payments to the applicant on that basis ; a copy of that judgment had been in the applicant ’s pension file since DATE . Hence , the ORG could have challenged the judgment by way of supervisory review within the DATE time - limit .

On DATE ORG of GPE quashed the decision of DATE and remitted the matter to ORG . It held that the ORG had learnt about the relevant fact , namely the existence of CARDINAL contradictory judgments ( dated DATE and DATE ) , only in DATE .

On DATE ORG extended the time - limit for lodging of the NORP request for supervisory review . The applicant did not appeal .

On DATE the Presidium of ORG quashed the judgment of DATE and discontinued the proceedings . The court found that the matter had already been examined in DATE and had been finally determined by the judgment of CARDINAL DATE .

Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that a judge should refuse to deal with a claim if there is a final judgment between the same parties on the same subject - matter and on the same legal grounds ( по тем же основаниям ) . In such a situation , a claimant can not bring new proceedings against the same respondent in relation to the same subject - matter and on the same legal grounds .

Under LAW , judicial decisions that have become legally binding , with the exception of judicial decisions by the Presidium of ORG of GPE , may be appealed against to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned ( § CARDINAL ) . ORG decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ( § CARDINAL ) . By its ruling of CARDINAL DATE , ORG interpreted LAW as allowing the above - mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals .


Violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of homicide .

On DATE ORG ( Sąd Rejonowy ) remanded him in custody , relying on the reasonable suspicion that he had committed the offence in question . The court considered that the need to secure the proper conduct of the investigation justified holding him in custody . The court also stressed the severity of the anticipated sentence .

On DATE the ORG ( PERSON ) extended his detention until DATE . On DATE the court ordered that the term should be extended until DATE . On DATE it ordered that the applicant be kept in custody until DATE . In all its detention decisions the court relied on a strong suspicion that the applicant had committed the offences in question . The court repeatedly stressed that his detention was justified by the need to obtain further evidence .

On DATE ORG ) indicted the applicant on charges of homicide , committed with an accomplice .

On DATE the ORG ( PERSON ) extended the applicant ’s detention . It relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged . It also referred to the need to secure the proper conduct of the proceedings as a justification for holding him in custody . On DATE the applicant lodged an appeal . In his appeal he maintained that , given his poor health , detention was putting a severe strain on him . He particularly relied on the atheromatosis which affected his legs .

On DATE his appeal was dismissed by ORG ( Sąd Apelacyjny ) . It found that there was a risk that the applicant might tamper with evidence , having regard to the fact that the co - accused suffered from a mental disability .

DATE and DATE the court held CARDINAL hearings .

On DATE and DATE the applicant lodged applications with the ORG to have his detention lifted or replaced by another preventive measure . He referred to his health problems . The court dismissed the applications . It relied on the likelihood of a severe prison sentence of imprisonment being imposed on the applicant and the need to secure the proper conduct of the proceedings . It further observed that the applicant had received adequate medical care in prison .

On DATE the ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment . The applicant and his co - defendant appealed .

On DATE the ORG dismissed the applicant ’s appeal . The applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG quashed the judgment and remitted the case to the ORG . ORG extended the applicant ’s detention until DATE . The court referred to the seriousness of the offence with which he had been charged and to the need to secure the proper conduct of the proceedings .

In the meantime , on DATE , as a result of the atheromatosis , the applicant ’s right leg was amputated .

The applicant ’s detention was extended by decisions of the Poznań Regional Court of DATE , DATE ( upheld by ORG on DATE ) and DATE .

On DATE the ORG gave judgment and sentenced him to CARDINAL years’ imprisonment . The applicant appealed .

On DATE the ORG of Appeal quashed the judgment and remitted the case to ORG .

In the course of the court proceedings the applicant ’s pre - trial detention was regularly extended . The courts repeated the grounds given in the previous decisions .

On DATE the applicant lodged an application with the ORG to have his detention lifted or replaced by another preventive measure . He referred to his health problems and the need for specialist medical treatment . On DATE at the request of the applicant , the court ordered a medical examination . The results of the medical examination did not reveal grounds for release . However , in the experts’ opinion the applicant ’s state of health had deteriorated since the examination on DATE . The experts concluded that it had been the result of the natural progress of the illnesses ( atheromatosis and diabetes ) . Finally , they noticed that the atheromatosis had led to a serious ischemia of his left leg .

On DATE the ORG acquitted and released the applicant . ORG appealed . The appeal was dismissed by ORG on DATE .

On DATE the ORG ( Prokurator Apelacyjny ) lodged a cassation appeal with ORG .

On DATE the cassation appeal was dismissed .

During the entire proceedings , the applicant lodged numerous requests for his case to be examined speedily . However , he failed to lodge a complaint under LAW on DATE on complaints about a breach of the right to a trial within a reasonable time ( PERSON o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

On DATE the applicant filed a request for compensation for manifestly unjustified detention on remand under LAW with the ORG . The proceedings are pending .

On DATE the ORG received a letter from the applicant dated DATE . The letter was sent while the applicant was detained in FAC ( PERSON ) . The envelope bears the following stamps : “ Censored , PERSON , on CARDINAL , Criminal Department III ” ( ORG , ORG , dnia CARDINAL , PERSON ) and an illegible signature . It appears that the envelope had been cut open and subsequently resealed with adhesive tape .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V , and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and in its the judgment in the case of GPE v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINAL-V.

NORP The legal provisions concerning monitoring of GPE correspondence applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG in GPE , no . CARDINAL/CARDINAL .

Chapter CARDINAL of LAW , entitled “ Compensation for unjustified conviction , detention on remand or arrest ” , stipulates that the ORG is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him .

Article CARDINAL provides , in so far as relevant :

“ CARDINAL . An accused who , as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal , has been acquitted or resentenced under a more lenient substantive provision , shall be entitled to compensation from ORG for the pecuniary and non - pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him .

Entitlement to compensation for pecuniary and non - pecuniary damage shall also arise in the event of manifestly unjustified arrest or detention on remand . ”

Proceedings relating to an application under LAW are subsequent to and independent of the original criminal proceedings in which the detention has been ordered . The claimant can retrospectively seek a ruling as to whether his detention has been justified . He can not , however , test the lawfulness of his continuing detention on remand or obtain release .

The relevant statistical data , recent amendments to LAW designed to streamline criminal proceedings and references to relevant ORG materials can be found in the ORG ’s judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL , § § DATE and CARDINAL , DATE ) .


Anatoly Kovler;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

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

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

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

On DATE ORG ( PERSON ) found the applicant guilty of causing the death of her son through negligence , but it did not impose a sentence on the grounds that the applicant had suffered enough as a result of the events in question .

In the same decision it was ordered that the costs of the proceedings were to be borne by ORG under LAW .

The applicant lodged an appeal against the judgment before ORG ( PERSON u ORG ) on DATE .

NORP However , on DATE ORG dismissed the applicant ’s appeal and upheld the judgment of ORG .

On DATE the applicant submitted a claim for costs and expenses incurred in the criminal proceedings against her to ORG . These costs and expenses concerned the costs of her legal representation by a privately hired lawyer .

On DATE ORG declared the applicant ’s claim for costs and expenses inadmissible as being lodged out of time . The relevant part of the decision reads :

“ This court holds that the defence lawyer was not entitled to submit his claim for costs and expenses after he had received the appellate judgment , but rather had to do so before the adoption of the first - instance judgment because LAW only allows the authorised person to submit an itemised list of costs DATE after the final judgment has been served on him or her , but not a claim for costs and expenses . ”

In her appeal of CARDINAL DATE the applicant argued that the decision of ORG was contrary to the relevant provisions of LAW and the wellestablished practice of the domestic courts by which a claim for costs and expenses could be lodged within DATE after the final judgment .

On CARDINAL DATE a CARDINAL - judge panel of ORG dismissed the applicant ’s appeal , holding that the costs and expenses arising from the applicant ’s representation by a privately hired lawyer had to be borne by the applicant herself as she had been found guilty on the charges against her . The relevant part of the decision reads :

“ ... it is to be noted that by the [ first - instance ] judgment ... LAW was wrongly applied when it was decided that the costs of the proceedings were to be borne by the court . This is because the accused was found guilty , so the costs [ of the proceedings ] are to be considered under LAW and not LAW of [ that Code ] . In case of the application of LAW of LAW , the accused can be excused from the obligation to pay , in total or partially , the costs and expenses of the criminal proceedings ... as well as costs of the officially assigned lawyer . [ The applicant ’s lawyer ] PERSON was not her officially assigned lawyer but a lawyer of her own choosing . Therefore his costs and expenses , as the accused was found guilty , can not be borne by the court . ”

NORP The relevant part of LAW ( Zakon o kaznenom postupku – Official Gazette nos . PERCENT , CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL , ORG and DATE ) reads :

“ ( CARDINAL ) The costs of criminal proceedings are expenses incurred by reason of criminal proceedings from their institution to their termination , including the costs of undertaking investigatory actions before an investigation .

( CARDINAL ) The costs of criminal proceedings shall consist of :

( CARDINAL ) expenses of witnesses , expert witnesses , interpreters and experts , the expense [ of obtaining ] stenographic notes or a technical recording , and expenses of judicial review ;

( CARDINAL ) expenses of transportation of the defendant ;

( CARDINAL ) expenses of bringing the defendant or arrested person before the court ;

( CARDINAL ) expenses of the transportation of officials and their travelling expenses ;

( CARDINAL ) expenses of medical treatment of a defendant who is not entitled to health insurance while he is in detention or in a medical institution by virtue of a judicial decision , and expenses of child delivery ;

( CARDINAL ) a lump sum ;

( CARDINAL ) fees and necessary expenses of the defence counsel , necessary expenses of a private prosecutor or subsidiary prosecutor and their legal guardians , and fees and necessary expenses of their legal representatives ; and

( CARDINAL) necessary expenses of the injured party and his legal guardian and fees and necessary expenses of his legal representative . ”

“ ( CARDINAL ) Each judgment shall contain , in addition to a decision terminating the criminal proceedings , a decision on the costs and expenses of the proceedings and their amount .

( CARDINAL ) Where the information concerning the amount of expenses is missing , a separate decision concerning costs and expenses shall be adopted by an investigating judge , a single judge or the president of a panel when such information has been submitted . A claim containing information on the amount of costs and expenses may be lodged DATE after a final judgment or decision has been served on a person who has the right to lodge such a claim . ”

“ ( CARDINAL ) When the court finds the defendant guilty , it shall state in the judgment that he must pay the costs of the criminal proceedings .

( CARDINAL ) The court may , in a decision on costs , decide that the defendant shall not pay the entire or partial sum of the costs of the criminal proceedings referred to in LAW paragraph CARDINAL subparagraphs CARDINAL to CARDINAL of this LAW and the fee and necessary expenses of any officially appointed defence counsel if payment of these costs could imperil the maintenance of the defendant or persons he is bound to maintain . If these circumstances are determined after the decision on costs was adopted , the president of the panel may , by a separate decision , dispense the defendant from the duty to bear the costs of the criminal proceedings . ”

“ ( CARDINAL ) When criminal proceedings are discontinued or when a judgment of acquittal or a judgment dismissing the charge(s ) is adopted , the court shall order that the costs of the criminal proceedings referred to in LAW paragraph CARDINAL subparagraphs DATE , as well as the necessary expenses of the defendant and the necessary expenses and fees of the defence counsel , shall be paid from budget funds ... ”

In decisions ORG . CARDINAL of DATE , concerning costs and expenses of representation by a legal aid lawyer , and I Kž CARDINAL/CARDINAL−CARDINAL of DATE , concerning costs and expenses of representation by a privately hired lawyer , where the criminal proceedings had been discontinued because of the death of the accused , ORG held that a defence lawyer was not required to submit a claim for costs and expenses before the first - instance judgment was adopted , but was required to do so within DATE of a final judgment being served on him or her .


CASE OF GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS

The applicant company , PERSON und PERSON ( hereinafter " Gasus " ) , are a limited liability company under NORP law with their registered office in GPE , GPE .

On DATE PERSON ’s agent in the GPE received an order from a GPE company , ORG ( hereinafter " Atlas " ) of GPE , for a concrete - mixer and ancillary equipment . The order was confirmed in writing by PERSON themselves on DATE . PERSON appended to their letter their general conditions of sale , which contained the following passages :

" We retain ownership of the goods delivered until all amounts due , both present and future , including ancillary claims arising from business with the customer , have been settled in full . "

and

" In the case of foreign business ( Auslandsgeschäfte ) , only the law of the NORP GPE shall apply . "

PERSON subsequently received an order for additional ancillary equipment and confirmed it in writing on DATE , again appending their general conditions of sale .

It was understood , inter alia , that PERSON would provide lifting equipment and some of the manpower needed for assembling the machine , the main part of which weighed QUANTITY .

DATE and CARDINAL DATE PERSON sent PERSON invoices totalling MONEY ( ORG ) , to which PERSON did not object . PERSON received only DEM CARDINAL,CARDINAL in payment before the events complained of .

The machine was installed on PERSON ’s premises by PERSON ; the work took from DATE until DATE .

On DATE ORG ( belastingdeurwaarder ) seized all the movable assets on Atlas ’s premises for forced sale in pursuance of CARDINAL writs of execution ( dwangbevelen ) issued by ORG Taxes ( PERSON der directe belastingen - LAW ) totalling MONEY ( NLG ) . The official record ( proces - verbaal ) contains a mention of the concrete - mixer . Notice of the seizure was served on PERSON but not on PERSON .

Being unable to meet their financial obligations , PERSON sought a moratorium ( surséance PERSON ) which was granted by ORG ( arrondissementsrechtbank ) on DATE .

The receiver ( bewindvoerder ) , a lawyer appointed by ORG , saw that it was not possible for PERSON to continue their activities independently and managed to interest another company , ORG ( " PERSON " ) , in taking them over .

Under pressure from ORG clients , who insisted that a satisfactory arrangement for continuing production should be reached by DATE , PERSON , the receiver and PERSON reached an agreement on that date for a takeover by PERSON . This agreement was only able to come about with the co - operation of PERSON ’s mortgagees - CARDINAL banks who had financed PERSON and had stipulated that the ownership of certain of its movable assets should be fiduciarily transferred as a security - and LAW , who had seized all the movable assets present on Atlas ’s premises . The agreement was subject to the condition that no third parties could assert a better right to the goods covered by it .

PERSON would pay a lump sum of NLG CARDINAL,CARDINAL for taking over PERSON ’s machines and inventory goods . CARDINAL that sum would be paid to the tax authorities and the other CARDINAL to a bank , NIB , which was the fiduciary owner of certain goods not subject to seizure by the tax authorities .

PERSON continued PERSON ’s activities on the latter ’s premises from DATE , using what had been ORG workforce and machines .

On DATE PERSON sent a letter to PERSON ’s receiver , which reached him on DATE . In it they stated that of the moneys due to them from PERSON they had received only DEM CARDINAL,CARDINAL and they requested payment of the remainder . They also gave notice that the concrete - mixer would be taken back on DATE if sufficient guarantees for payment were not provided by DATE .

No payment was made but it does not appear that PERSON took any action .

PERSON were declared bankrupt on DATE , at the request of their receiver and with the agreement of their management , and the receiver was reappointed as trustee in bankruptcy ( curator ) .

The bankruptcy proceedings were terminated on DATE for lack of any further assets to distribute . None of PERSON ’s unsecured creditors recovered any part of their claims .

On DATE the Commissioner of Direct Taxes ( directeur der directe belastingen ) received a letter from PERSON in which they , being by then aware of the fact that the machine had been seized , filed an administrative objection ( bezwaarschrift ) to the seizure . By a letter of CARDINAL DATE the Commissioner declared the administrative objection inadmissible because it had not been filed within DATE of the seizure as required by LAW ( CARDINAL ) of the DATE LAW ( Invorderingswet DATE , " the DATE Act " - see paragraph CARDINAL below ) , adding that in any case he saw no reason to rescind the seizure order and that in deciding not to do so , he had not been influenced by the fact that the administrative objection was out of time .

On CARDINAL May CARDINAL PERSON brought proceedings against PERSON ’s trustee in bankruptcy and PERSON before ORG to obtain an order for the concrete - mixer to be returned . In the proceedings before the Commission PERSON stated that both the trustee and PERSON had acknowledged PERSON ’s ownership but had refused to give up the machine as it was still being held by the tax authorities . These proceedings appear not to have been pursued to a conclusion .

On DATE CARDINAL PERSON sued LAW , the trustee in bankruptcy and PERSON in ORG , objecting to the seizure and seeking an order to LAW to release the concrete - mixer from seizure and another order to the trustee and PERSON not to hinder the exercise of PERSON ’s rights .

PERSON ’s position may be summarised as follows . Their objection to the seizure ( verzet ) was based on the argument that the concrete - mixer had not been operational on DATE , so that it could not have been part of the " furnishings of a house or farmstead " within the meaning of section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . In the alternative , the seizure was , on various grounds , wrongful in civil law ( onrechtmatig ) . Finally , the fact that section CARDINAL ( CARDINAL ) prevented third parties from challenging a seizure affecting their own goods amounted to a denial of " access to court " as guaranteed by LAW CARDINAL ( article CARDINAL ) of the Convention .

ORG filed lengthy pleadings in reply . The trustee and PERSON did not themselves make any submissions on the merits but requested that ORG statements in defence ( conclusie van antwoord ) and subsequent rejoinder ( conclusie van dupliek ) be treated as their own .

ORG delivered its judgment on DATE . Taking the same view as LAW , it held that the fact that the concrete - mixer had not been operational at the time of the seizure did not invalidate the seizure itself . Since the proceedings concerned an objection to seizure under LAW ( CARDINAL ) of LAW , the court could not entertain PERSON ’s complaint that the seizure was unlawful ; the only permissible purpose of such proceedings was to examine whether the requirements of LAW ( CARDINAL ) were met . Furthermore , Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention did not apply - and had therefore not been violated - because section CARDINAL related to the imposition and collection of taxes , empowering ORG authorities to make decisions in the normal discharge of their duties under public law , and thus did not concern " civil rights and obligations " .

PERSON appealed to ORG , summoning PERSON ’s trustee in bankruptcy on DATE and LAW and PERSON on DATE .

PERSON ’s first ground of appeal ( grief ) was that ORG had erred in holding that the seizure was valid even though the concrete - mixer had not been operational at the time . The second and third grounds of appeal were founded on ORG refusal to deal with PERSON ’s allegations of unlawfulness and to accept their arguments based on Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .

ORG replied that PERSON ’s complaints concerning LAW ( CARDINAL ) of the LAW amounted to an allegation of deprivation of their possessions in violation of LAW No . CARDINAL ( PCARDINAL - CARDINAL ) . He denied , however , that there had in fact been such violation .

Following the exchange of pleadings by the parties to the proceedings , a hearing was held on DATE .

At this hearing counsel for PERSON continued to rely on Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW . In his view , what was decisive for that provision ( article DATE ) to be applicable was whether the plaintiff sought protection of a right that was to be classed as " civil " within the meaning of the provision ( article DATE ) . Since PERSON sought to be protected against infringement by LAW of their ownership of the concrete - mixer , undoubtedly a " civil " right within the meaning of the provision ( article DATE ) , Article CARDINAL para . CARDINAL ( article CARDINAL ) applied ; it had , moreover , been violated since section CARDINAL ( CARDINAL ) of the LAW amounted to a limitation of access to court with respect to assets of the kind mentioned in it .

While agreeing that PERSON had been deprived of CARDINAL of their possessions and had suffered damage as a result , PERSON ’s counsel expressly declined to rely on LAW No . CARDINAL ( PCARDINAL - CARDINAL ) . Contrary to what LAW had suggested both at first instance and on appeal , section CARDINAL ( CARDINAL ) had nothing to do with deprivation of property but barred access to court for those who sought to be protected from the seizure and sale of their property . That was clear from its wording . That also followed , incidentally , from LAW , which prohibited expropriation without compensation : if section CARDINAL ( CARDINAL ) were a provision concerning deprivation of property , it would contravene LAW . On the principle that a provision of GPE legislation could not be construed so as to be incompatible with the LAW , section CARDINAL ( CARDINAL ) therefore had to be construed as merely barring access to court . The questions raised by LAW ( CARDINAL ) were thus of a " procedural " , not a " substantive " nature , and therefore the more appropriate LAW provision was Article CARDINAL para . CARDINAL ( article CARDINAL ) and not LAW No . CARDINAL ( PCARDINAL - CARDINAL ) .

Since section CARDINAL ( CARDINAL ) obviously violated Article CARDINAL para . CARDINAL ( article CARDINAL ) , it should - pursuant to LAW be applied . This meant that section CARDINAL and the following sections of LAW applied without restriction , and this in turn meant that PERSON could rely on their right of ownership of the concrete - mixer , which was therefore not subject to seizure .

ORG gave judgment on DATE .

Like ORG , it held that the seizure was not vitiated by the fact that the concrete - mixer had not been fully operational at the time ; the concrete - mixer ’s intended use had already been established and all efforts had been directed towards making it operational and ensuring that it would serve PERSON on a lasting basis . The concrete - mixer thus qualified as " furnishings " of PERSON ’s factory building . The first ground of appeal therefore failed .

The second and third grounds of appeal were also dismissed .

After establishing that the right claimed by PERSON was a " civil right " for the purposes of Article CARDINAL para . CARDINAL ( article CARDINAL ) , ORG went on to hold :

" The question is therefore whether in the present case access to a tribunal and due process were sufficiently secured to PERSON . To answer this , it is necessary to ascertain what provisions , in so far as relevant to the present case , govern ownership and the procedure connected with it .

In the ORG of ... section I [ of the LAW ] apart from the aforementioned LAW ) , a number of fundamental rights are laid down and - where necessary - defined . The right of ownership is not one of them . This is provided for in LAW No . CARDINAL ( PCARDINAL ) to the Convention ...

[ LAW ( PCARDINAL - CARDINAL ) ] does therefore authorise national legislatures to pass laws restricting the enjoyment of possessions or even entirely depriving the individual of that enjoyment for specific purposes relating to the general interest ; however , when it comes to the question of whether such a law has been properly applied in a specific case , the owner concerned remains entitled , as provided in LAW , to access to a tribunal and to due process in order to have the application of the law assessed .

CARDINAL such provision of domestic law which is authorised by LAW ( PCARDINAL - CARDINAL ) is LAW ( CARDINAL ) of LAW . The rule laid down therein implies that seizure levied by the tax authorities in order to collect a tax debt in fact deprives a third party of his ownership of an item of movable property provided that when the seizure was effected the item of property was on the tax debtor ’s premises and served as ‘ FAC of them . Whether , when judged by this condition , the seizure of his property was rightly effected is a matter which any affected third party can have reviewed by the ordinary civil courts in proper legal proceedings . In assessing the lawfulness of the seizure , the court may not take into account whether or not the relevant property is owned by the tax debtor , because precisely this point is not relevant - save for certain exceptions which are of no consequence here - in view of the scope of the subsection . This also reveals the meaning of the provision that third parties may ‘ never bring an action to challenge seizures for tax purposes’ . It means not that they may not bring an action before the courts but rather that , having brought an action in the courts , they may not successfully submit , as a basis for their action , that the seizure is unlawful because the goods seized belong to them and not to the tax debtor . Consequently , the provisions of section CARDINAL ( CARDINAL ) of LAW are of no avail to them in this respect because LAW ( CARDINAL ) of the LAW derogates from them as a lex specialis .

It follows from the above that there has been no violation of LAW ) of the LAW and that ORG was correct in not dealing with the allegation that the LAW acted unlawfully by seizing the concrete - mixer belonging to PERSON ... "

PERSON entered an appeal on points of law ( beroep in cassatie ) with ORG ( PERSON ) on DATE . They filed grounds ( middelen van cassatie ) that were each subdivided into a large number of parts . ORG ( advocaat - generaal ) noted that several grounds and many of their component parts were merely variations on a single theme .

ORG had erred in considering the matter under LAW No . CARDINAL ( PCARDINAL - CARDINAL ) . LAW ( CARDINAL ) of LAW was a " procedural " provision , not a " substantive " one , and should therefore have been examined only in the light of LAW ) ; the fact that lack of access to a tribunal could lead to loss of property indicated only that the interests protected by LAW ) were very real .

PERSON went on to submit that LAW ( CARDINAL ) violated LAW ) as it only allowed third parties to challenge seizure of their goods on the LOC of another by the tax authorities on the ground that those goods were not " fruit " , or " furnishings " , or intended for the " cultivation or use of land " . If the goods concerned fell into CARDINAL of those categories , there was no other ground on which to base an action . LAW ( CARDINAL ) had been inspired by the need to prevent tax evasion , but had been rendered obsolete by developments in business practice and commercial law , retention of title now being a generally accepted and quite legal form of security . ORG had acted unlawfully in seizing the concrete - mixer since PERSON had not actually been conniving at tax evasion .

In any event , even if LAW No . CARDINAL ( PCARDINAL - CARDINAL ) applied ( which PERSON submitted it did not ) , it only allowed GPE to interfere with the tax debtor ’s peaceful enjoyment of his possessions to secure payment of the taxes he owed . It did not allow them to deprive third parties of their possessions .

It was not to be assumed that LAW No . CARDINAL ( PCARDINAL - CARDINAL ) legitimised greater interferences with ORG rights than did LAW , which forbade expropriation without compensation . If LAW ( CARDINAL ) of LAW were seen as a " substantive " provision , it clearly amounted to a provision making deprivation of property by the ORG possible in the public interest .

Finally , ORG had not at any time informed PERSON of the seizure as he should have done .

Following the advisory opinion ( conclusie ) of its Procurator - General ( procureur - generaal ) , ORG rejected the appeal on DATE . Its reasoning was as follows :

" CARDINAL . The purport of grounds of appeal PERSON is to argue that the provisions of LAW ( CARDINAL ) of LAW of CARDINAL DATE ... are incompatible with LAW ( PCARDINAL - CARDINAL ) . In the assessment of this argument , the following is of importance :

( a ) LAW of LAW , in particular the third paragraph thereof , implies that LAW has a right of recovery against third parties’ goods listed in that paragraph and ` situated on the premises of the tax debtor at the time of the seizure’ .

( b ) The objection which third parties may make before the civil courts to the seizure of their goods is in principle limited to the question whether the conditions for its applicability described in section CARDINAL ( CARDINAL ) have been satisfied ; in other respects , third parties may file an administrative objection to the Commissioner of Direct Taxes by means of the complaint procedure referred to in subsection CARDINAL of that section ...

( c ) It follows from the provisions of chapter V of ORG ( Algemene wet inzake rijksbelastingen ) and LAW , opening words and subsection ( m ) , of ORG ( GPE administratieve rechtspraak overheidsbeschikkingen ) that no appeal lies to an administrative tribunal against the Commissioner ’s decision on the administrative objection . Consequently , the third party may bring an action against such a decision in the civil courts , possibly in summary proceedings ( kort geding ) , on the basis that there has been an unlawful act . In so doing , the third party may also base his claim of unlawfulness on the allegation that the Commissioner has acted in breach of a general principle of good governance ( algemeen beginsel van behoorlijk bestuur ) .

( d ) The provisions of the DATE LAW ( PERSON invordering - Resolution of DATE , no . B CARDINAL/CARDINAL ) , in particular paragraph CARDINAL , are also of importance in this connection . Although the DATE Guidelines do not contain rules of law , principles of good governance imply that the Commissioner may not deviate to the disadvantage of a third party from the rules laid down in the LAW , as the court considers they should be interpreted . If he does depart from them , he is in principle acting unlawfully vis - à - vis the third party .

( e ) As regards the content of paragraph CARDINAL of the Guidelines , the following features of the provisions contained in sub - paragraph CARDINAL should be mentioned briefly . It is in keeping with the Commissioner ’s policy that the third party ’s title will in principle be respected in cases of ` real ownership’ . But recovery against the goods of a third party is generally justified if ` the circumstance that the goods legally belong to another person has mainly been brought about to exclude the possibility of recovery against such goods for debts of the taxpayer or to ensure that the third party has a priority right to recover against such ORG . CARDINAL of the examples quoted here is where a supplier of goods reserves the ownership of them . It has been established that PERSON did this as supplier of the goods which are the subject of the litigation .

( f ) It is also provided in paragraph CARDINAL , sub - paragraph CARDINAL , of the DATE Guidelines that an administrative objection made by a third party shall be dealt with even if it is not filed in time , i.e. within the said period of DATE from the date of seizure as referred to in section CARDINAL ( CARDINAL ) of LAW . It follows that a third party who files an administrative objection out of time is entitled to have it dealt with . As the third party need not be aware that the seizure has occurred and thus that time has started to run - neither the law nor the LAW require service on , or any other form of warning to , a third party - it must be assumed - partly in the light of DATE ( article CARDINAL ) of LAW - that the third party may have recourse to the civil courts in this case in the manner described above under ( c ) and ( d ) .

Against this background , the arguments advanced in grounds of appeal I - III can not be accepted as correct .

A third party whose goods have been seized has opportunities for redress against the acts of LAW or the Commissioner as the case may be , before an independent and impartial tribunal established by law such that the requirements of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention are met .

Nor can it be said that the recovery , on the basis of LAW ( CARDINAL ) of LAW , of goods belonging to a third party such as PERSON - who as supplier of the goods has reserved title to them - is not compatible with LAW No . CARDINAL ( PCARDINAL - CARDINAL ) . That is because LAW ( CARDINAL ) is to be regarded as a statutory provision which the ORG regards as necessary in order to secure the payment of taxes in such a manner as to ensure that this payment is not frustrated by reservation of title by a third - party supplier .

Grounds of appeal I - III fail in view of the above , irrespective of the validity of the arguments set out by ORG , which these grounds attack .

As , according to the explanation given of it , ground of appeal PERSON builds on the previous grounds , it must fail likewise . In so far as it is suggested that section CARDINAL ( CARDINAL ) should not be applied as it has been ` rendered obsolete by developments in business practice and commercial law’ , the ground is unfounded .

Ground of appeal V takes issue with ORG opinion that LAW does not have a duty to give notice , in the sense that he should have given notice to PERSON after the seizure of the goods that they had been seized . The ground fails .

As already indicated at CARDINAL . ( f ) above , neither the DATE Act nor LAW contain any such obligation to provide a warning . Although such an obligation may in special circumstances be inferred from unwritten law , no such special circumstances have been alleged by PERSON in this connection .

Since none of the grounds of appeal justifies overturning the judgment appealed against , the appeal must be dismissed . "

The above judgment of ORG was published in LOC , ( Weekly Law Reports - RvdW ) DATE , CARDINAL ; in the PERSON ( Professional Studies News ) DATE , p. CARDINAL ; in ORG ( GPE Law Reports - NJ ) DATE , CARDINAL , and in the FAC in FAC ( Reports of Decisions in Taxation Cases - BNB ) CARDINAL . It was welcomed by commentators as providing clarity as to the scope of judicial protection available against use by the tax authorities of LAW ( CARDINAL ) ( commentaries on ORG judgment in the present case , by PERSON in GPE DATE , CARDINAL , and by PERSON in FAC ; commentary by PERSON of ORG judgment of CARDINAL DATE , GPE DATE , CARDINAL ) .

LAW does not , in terms , guarantee a right to property . Article CARDINAL reads :

" CARDINAL . Expropriation may only be ordered in the general interest and against compensation determined in advance , in accordance to rules laid down by statute or delegated legislation .

In the cases indicated by statute or delegated legislation there is a right to compensation or partial compensation for damage if property is destroyed or rendered unusable in the general interest by the competent authorities or if the exercise of the right of ownership is curtailed . "

" The GPE ’s taxes shall be levied pursuant to statute . Other charges levied by the GPE shall be governed by statute . "

Under GPE constitutional law , courts may not examine statutes for compliance with LAW . Article CARDINAL reads :

" The courts shall not judge the constitutionality ( grondwettigheid ) of statutes and treaties . "

At the material time the DATE LAW was still in force . In so far as it concerned property law it was succeeded in DATE by a new LAW ; a number of provisions of LAW and LAW were changed or repealed at the same time . The following relates to the law as it stood at the time of the events complained of .

According to section DATE of LAW , debts could in principle be recovered against all goods belonging to the debtor , whether movable or immovable . Statutory provisions elsewhere allowed of certain limited exceptions not relevant to the present case .

Section CARDINAL added the principle of paritas creditorum : all creditors were entitled to recover debts against the property of the debtor in proportion to the size of their claims , unless any CARDINAL of them could claim a right to preferential payment . Such a right derived , inter alia , from specific legal provisions granting a priority right ( privilege ) . These priority rights were based on the nature of the debt ( section CARDINAL ) and their order of precedence was laid down by law . Most priority rights were to be found in LAW , but not those of the tax authorities , for which LAW referred to specialist legislation ( section CARDINAL ( CARDINAL ) ) .

A priority right might concern a particular asset or all goods belonging to the debtor ; in general , priority rights of the former type took precedence over priority rights of the latter ( section CARDINAL ) .

Section CARDINAL enumerated debts covered by a priority right to certain assets belonging to the debtor . These included , inter alia , rent owed under a tenancy agreement and the price owed to a vendor of movable property .

Section CARDINAL read as follows :

" CARDINAL . The landlord may exercise his priority right [ by recovery against ] fruit still attached to the trees by branches , or to the ground by roots , as well as fruit , whether harvested or not , present on the LOC ( die zich op den bodem bevinden ) , and all things present on the LOC serving either as furnishings of the rented property or farm or for cultivation of the land , such as cattle , agricultural implements and the like , regardless of whether or not the above - mentioned objects belong to the tenant .

However , if the tenant has goods in his possession under a hire - purchase agreement , the landlord shall not be entitled to exercise his priority right against the vendor if the hire - purchase agreement relates to seeds or implements or if it is proved that the landlord knew of the hire - purchase agreement .

Section CARDINAL read as follows :

" The vendor of movable goods which have not yet been paid for may exercise his priority right against the sale price of those goods if they are still in the debtor ’s possession , irrespective of whether a time has been specified for the sale . "

Section CARDINAL read as follows :

" CARDINAL . If no time has been specified for the sale , the vendor shall even be entitled to reclaim the goods as long as these are in the possession of the purchaser , and to prevent the resale thereof , provided that they are reclaimed within DATE of delivery .

Sections CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Commercial Code shall apply by analogy . "

It should be noted that section CARDINAL did not concern a priority right but granted the vendor the right to rescind the sale by means of a statement made to the purchaser and to recover the ownership of the goods previously sold and delivered . The vendor might then reclaim his goods , even - within certain limits - from third parties . Sections CARDINAL et seq . of the Commercial Code regulated the use of a similar right in case of bankruptcy of the debtor ( see paragraph CARDINAL below ) .

Sections CARDINAL and following of the Code of Civil Procedure laid down rules for recovery against a debtor ’s movable property . As a rule , such recovery started with seizure , which usually required a court judgment ( although the law provided for exceptions , for example in tax cases , see paragraph CARDINAL below ) . Section CARDINAL , which was referred to in section CARDINAL of LAW , is of relevance :

" CARDINAL . He who claims to be the owner , in whole or in part , of the seized goods , may file an objection to the sale thereof by means of a summons containing the grounds of the objection addressed to the party for whom the seizure has been effected ( arrestant ) and the person against whom it is directed , and served on the custodian : all on pain of nullity .

At the material time , pursuant to section CARDINAL of the CARDINAL Act , tax debts took priority over all other debts with the exception of the court costs and other costs involved in forced sale of goods and debts secured by a mortgage . Goods belonging to third parties seized pursuant to section CARDINAL ( CARDINAL ) ( see paragraph CARDINAL below ) were also subject to this priority ( judgment of ORG of DATE , GPE DATE , CARDINAL ) .

Section CARDINAL of the CARDINAL Act entitled the tax authorities to seize a tax debtor ’s movable and immovable assets and sell them to recover the debt . A prior judgment establishing the debt and ordering the debtor to pay was not required . Seizure pursuant to this provision was based on a writ of execution made out by LAW . Such a writ was served on the debtor and seizure and forced sale of his goods followed in the event of failure to pay . LAW explicitly stipulated that such a writ had the same legal effects as a judgment . Accordingly , section CARDINAL ( CARDINAL ) laid down that LAW writ of execution would be executed under the provisions of LAW governing the execution of judgments ( see paragraph CARDINAL above ) .

Section CARDINAL gave the tax debtor the right to file an objection in the civil courts against a writ of execution , although the grounds on which such an objection might be based were limited . It also specified that such an objection had no suspensive effect , although it was possible to seek an order for the suspension of execution in summary proceedings ( kort geding ) .

Complementing the right to oppose the writ of execution granted the debtor by section CARDINAL , section CARDINAL granted a similar right to third parties claiming ownership of movables seized on the debtor ’s premises . Section CARDINAL should be read in light of section DATE , which stated that the relevant provisions of LAW are applicable . Its purpose was to limit the rights of third parties under section CARDINAL ( see paragraph CARDINAL above ) . Section CARDINAL read :

" CARDINAL . Third parties claiming to be fully or partially entitled to movable goods which have been seized in connection with a tax debt can address an administrative objection to the Commissioner of Direct Taxes , provided that the administrative objection be submitted before the sale and DATE from DATE of the seizure . The administrative objection shall be submitted to ORG , who shall acknowledge receipt . The Commissioner shall decide as soon as possible . The sale shall not take place within DATE of the service of this decision to the objector and to the person against whom the seizure is directed , [ the service ] again indicating DATE for the sale .

The interested party shall not forfeit his right to submit his objection to the ordinary courts by filing an administrative objection in accordance with the preceding paragraph .

However , apart from the right to reclaim their property granted them by ... section CARDINAL and following of LAW , third parties may never bring an action to challenge seizure in connection with taxes , with the exception of land tax , if the fruit , whether harvested or not , or movable goods serving either as furnishings of a house or farmstead or for the cultivation or use of land are located on the premises of the tax debtor concerned at the time of the seizure . "

" Premises " was interpreted as meaning a plot of land or part of a plot of land which is in actual use by the tax debtor and which he has at his disposal independently of others ( see , inter alia , judgment of ORG of DATE , GPE DATE , CARDINAL ; see also paragraph CARDINAL , sub - paragraph CARDINAL , of the DATE Guidelines ) .

" Furnishings " were all objects destined to make possible such use of the premises as was in conformity with the purpose for which the tax debtor actually intended to use them . They were held to include movable machines ( see , inter alia , the judgment of ORG of DATE , GPE DATE , CARDINAL , and the judgment of ORG of DATE , quoted in the judgment of ORG of DATE , GPE DATE , CARDINAL ; see also paragraph CARDINAL , sub - paragraph CARDINAL , of the DATE Guidelines ) but not stocks of raw materials , finished products or vehicles ( judgment of ORG of DATE , GPE DATE , p. CARDINAL ; DATE Guidelines , ibid . ) .

The right of the tax authorities to seize all movables found on the premises of the tax debtor , including goods belonging to third parties , implied the right of recovery on the latter goods ( paragraph CARDINAL , sub - paragraph CARDINAL , of the DATE Guidelines and ORG judgment in the present case - see paragraph CARDINAL above ) .

Recovery was normally by public auction of the goods ( section CARDINAL ( CARDINAL ) of LAW read in conjunction with section CARDINAL of the Code of Civil Procedure ) . It was nonetheless considered permissible , if the tax debtor was bankrupt , for LAW to agree to allow the trustee to sell them privately ( judgment of ORG of CARDINAL DATE , GPE DATE , CARDINAL ) .

To promote the uniform application of the law , the Minister of Finance established , by decision of DATE , the DATE Guidelines . These were official instructions to the tax authorities , who were subordinate to him , indicating the way in which the law should be interpreted and applied . LAW were published ; individuals were entitled to rely on them in legal proceedings against the tax authorities because they were binding on the latter pursuant to general principles of good governance . ORG , in its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) , later confirmed this by ruling that guidelines such as these were to be applied in relation to interested parties as rules of law .

Paragraph CARDINAL of the DATE Guidelines concerned the interpretation and application of section CARDINAL . ORG - paragraph CARDINAL gave further instructions relating to the way in which administrative objections under LAW ( CARDINAL ) and ( CARDINAL ) ( see paragraph CARDINAL above ) were to be dealt with . Sub - paragraph CARDINAL read :

" The decision of the Commissioner should not only be governed by legal considerations . Once sufficient clarity has been obtained in respect of the legal relations at issue , considerations of fairness ( billijkheid ) and the requirements of proper policy should be given great importance . It is in accordance with such a policy that the property rights of a third party are spared where a personal tax or social - security contribution debt is to be collected and also where genuine property ( reële eigendom ) of a third party is involved , provided , however , that the following is taken into account .

The above does not alter the fact that there can be no grounds for any reticent policy in clear cases of connivance between the tax debtor and the third party to create a sham property situation in an attempt to prevent recovery on goods .

From the point of view of fairness and good policy recovery on goods of a third party is generally justified in cases of recovery of commercial tax and social - security contribution debts and when the economic relationship between the tax debtor and the goods provides reason to consider these goods as his and the circumstance that legally the goods belong to someone else has been created mainly to exclude recovery at the expense of the tax debtor or to enable the third party to obtain a preferential right of recovery on these goods .

Examples of this are cases of goods delivered under a hire - purchase agreement or under various forms of leasing or other forms in which the supplier of the goods retains the ownership thereof .

In addition , one might consider in this connection those cases in which ownership of the goods has been transferred to a third party as a security .

In its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) , ORG rejected the proposition that section CARDINAL ( CARDINAL ) applied only to goods on the tax debtor ’s premises the ownership of which had been transferred to a third party in order to prevent the tax authorities from recovering tax debts by the forced sale of those goods . Although it did appear from the drafting history of that provision that it had been prompted at the time ( DATE ) by the desire to counter certain abuses , this did not mean that the occurrence of an abuse had been made a requirement for the provision ’s applicability , section CARDINAL being derived from the landlord ’s priority right as defined in section CARDINAL of LAW ( see paragraph CARDINAL above ) . Section CARDINAL had afterwards several times been the subject of debate between the ORG and ORG and this debate supported the idea that the purport of LAW was , in the words of ORG , " to afford the tax authorities the possibility of recovery against the goods seized , notwithstanding any third - party rights , as if they belonged to the tax debtor " .

It was not possible for suppliers of goods to obtain information from the tax authorities as to whether their clients had any outstanding tax debts and whether there was accordingly any risk of seizure . According to section CARDINAL ( CARDINAL ) of LAW ( Algemene wet inzake rijksbelastingen ) tax officials were , and are , under an obligation to keep such information secret .

A right similar to that of LAW under LAW of LAW was enjoyed by the customs authorities . They were empowered by section CARDINAL of ORG ( Algemene wet inzake de douane en de accijnzen ) to recover import duties and excise against the goods for which these were due , along with any administrative fines or interest , irrespective of who could claim rights to the goods concerned .

When a natural or legal person was declared bankrupt , all seizures affecting his property lapsed ( section CARDINAL ( CARDINAL ) of LAW ( PERSON ) ) . This included the seizure of his property by the tax authorities , but not the seizure pursuant to section CARDINAL ( CARDINAL ) of LAW of the goods of third parties .

In cases in which movable goods had been sold and delivered but not paid for in full , LAW allowed the vendor to reclaim the goods if the purchaser went bankrupt , provided that the goods could still be identified ( section CARDINAL ) and that the vendor exercised his right within DATE of delivery to the purchaser ( section CARDINAL ) . The vendor had then to refund any payment he might already have received as well as certain expenses that might in the meantime have been incurred ( sections CARDINAL and CARDINAL ) . The purchase agreement was then considered rescinded and ownership of the goods was deemed always to have remained with the vendor ( judgment of ORG of DATE , GPE DATE , CARDINAL ) .

The vendor ’s rights under sections CARDINAL and following of LAW had to be respected by the tax authorities ( section CARDINAL ( CARDINAL ) of the CARDINAL Act - see paragraph CARDINAL above ) .

As followed from section CARDINAL ( CARDINAL ) of LAW , third parties claiming a title to goods seized on the premises of the tax debtor could submit an administrative objection to LAW , who forwarded it to the Commissioner of Direct Taxes . Although section CARDINAL ( CARDINAL ) contained a DATE time - limit , administrative objections submitted after its expiry nevertheless were dealt with and LAW was required to suspend the forced sale of the seized goods if that was still possible ( paragraph CARDINAL , sub - paragraph CARDINAL , of the DATE Guidelines ) .

There were no restrictions as to the grounds on which an administrative objection to the tax authorities might be based .

After obtaining a decision from the Commissioner or - if preferred - without first obtaining such a decision , a third party could bring an action before ORG under section CARDINAL of the Code of Civil Procedure ( see paragraph CARDINAL above ) .

However , section CARDINAL ( CARDINAL ) of the LAW limited the grounds for such an action to the question whether the seized goods were in fact " fruit , whether harvested or not , or movable goods serving either as furnishings of a house or farmstead or for the cultivation or use of land " ( judgment of ORG of DATE , GPE DATE , CARDINAL , and the judgment of ORG in the present case - see paragraph CARDINAL above ) .

The possibilities of redress by the civil courts were clarified by ORG judgment in the present case ( see paragraph CARDINAL above ) . That judgment made it clear that in bringing a case before the civil courts a third party did not have to confine himself to the questions outlined in paragraph CARDINAL above but could also base his action on a wrongful act in civil law ( section CARDINAL of LAW ) committed by LAW , thus enabling the courts to review compliance with LAW by LAW in authorising the seizure and by the Commissioner of Direct Taxes in rejecting the third party ’s objections .

Section CARDINAL of the German Civil Code ( Bürgerliches Gesetzbuch ) reads as follows :

" If the vendor of a movable good has retained ownership until the price has been paid , it should be assumed in case of doubt that the transfer of ownership takes place subject to a suspensive clause of full payment of the price and that the vendor is entitled to rescind the contract if the purchaser comes to be in default of payment . "

According to section CARDINAL of the German Civil Code , in the event of rescission each party had to return to the other everything already received under the contract .

At the time of the events complained of , there was no statutory provision in GPE law similar to section CARDINAL of the German Civil Code but retention of title was frequently resorted to and upheld by the courts in disputes between private parties .

In DATE a report was published by a government committee ( ORG " ) set up to review the law on priority rights ( see paragraph CARDINAL above ) . With regard to the right granted the tax authorities by LAW ( CARDINAL ) of the LAW the report expressed the opinion that this right should be limited to cases in which other creditors besides the tax authorities had stipulated rights wholly or essentially amounting to security for debts ; this would broadly correspond to the policy followed by the tax authorities themselves as laid down in LAW ( see paragraph CARDINAL above ) . It also suggested extending the right of seizure to all movable goods intended for permanent professional use by the enterprise concerned .

The right of the tax authorities pursuant to LAW ( CARDINAL ) came under increasing criticism . For this reason , the ORG , when introducing legislation aimed at modernising the law on the collection of tax debts , did not - for the time being - propose any significant changes to the priority right of the tax authorities or the right of seizure . They stated , when introducing the relevant PERSON , that that required further study , for which an ORG was to be set up . This position was criticised in ORG , particularly by those parties which considered the wide powers of seizure enjoyed by the tax authorities unjustified , but the ORG maintained their position . Nevertheless , the submission to ORG of the new PERSON led once more to critical debate both within ORG and outside it .

The PERSON referred to in the previous paragraph became the new LAW , which entered into force on DATE ( ORG DATE - " the DATE LAW ) .

For all practical purposes , it retains intact the arrangement of LAW as regards the priority of tax debts , even extending the time - limit involved . It also contains a provision ( section CARDINAL ) which is in practice almost identical to section CARDINAL of LAW ( see paragraph CARDINAL above ) , the only real difference being that in the third paragraph an exhaustive list is given of the taxes concerned .

According to section CARDINAL of the DATE LAW would cease to operate on DATE , unless by that date a PERSON had been introduced for its replacement or for prolonging its validity for DATE ; in fact , a PERSON ( no . CARDINAL ) meeting these requirements was submitted to ORG of ORG on DATE .

ORG ( see paragraph CARDINAL above ) published its report in DATE . PERSON . CARDINAL - which is based on , and closely follows , the report of the above - mentioned ORG - proposes to amend LAW and LAW in such a way as to grant the tax authorities a right of recovery against all goods not belonging to the tax debtor but intended for his permanent use in the exercise of his profession . Third parties would not be able to oppose to LAW any negotiated right which served essentially as a security . LAW would , however , be required to enquire of the tax debtor whether any of the seized goods belonged to third parties .


CASE OF VITTORIO AND LUIGI MANCINI v. ITALY

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

On DATE CARDINAL armed robberies were committed in the GPE area . It emerges from a report prepared by the GPE police on DATE that there was evidence that the stolen goods had been hidden in a warehouse belonging to the company owned by the applicants . The latter were also said to have been in telephone contact with persons suspected of the offences .

On DATE the GPE public prosecutor applied for the applicants to be placed in pre - trial detention . In an order of DATE , the GPE investigating judge allowed that application .

On DATE the applicants were arrested and taken to FAC . On DATE they appealed against the order of CARDINAL DATE to the division of ORG responsible for reconsidering security measures ( tribunale del riesame ) .

The hearing before ORG was held on DATE . In an order delivered the same day , filed with the registry on DATE , the court replaced the applicants’ pre - trial detention with the security measure of house arrest ( arresti domiciliari ) . It considered , in particular , that it was reasonable to suspect that the applicants had committed the offences in issue and that it was to be feared that they might commit others of the same type . Taking the view , however , that there was no “ tangible risk for the gathering of evidence ” and having regard to the GPE clean police record , it concluded that a less restrictive measure , such as house arrest , was preferable . That measure required the applicants to stay in their home and leave only with the authorities’ prior authorisation .

NORP The order of DATE was served on the applicants on DATE . They should therefore have been immediately escorted from FAC , where they were being held , to their home . However , no police officers were available to escort them and so their transfer was delayed until DATE .


CASE OF PAULSEN-MEDALEN AND SVENSSON v. SWEDEN

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The first applicant , PERSON , born in DATE and unmarried , lives at FAC , a suburb of GPE . The second applicant , Mr PERSON - PERSON , born in DATE , lives at GPE , another suburb of GPE . The first applicant is the mother of CARDINAL children , P. and PERSON ; the second applicant is PERSON ’s father .

The first applicant came into contact with the social authorities in DATE while expecting her first child P. Following his birth , he and his mother stayed with her parents , then with the second applicant and , as from DATE , with ORG father . After the birth of her second son PERSON in DATE the first applicant and her sons returned to her parents . In DATE she moved to ORG . Since DATE she has been living at FAC in order to be closer to her parents . During this period the social authorities provided on a regular basis the first applicant with financial support and assistance in the upbringing of her children .

On DATE , in the light of an investigation by the social authorities , the Chairperson of ORG ( sociala distriktsnämnden ) in PERSON decided to take the children immediately into care on a provisional basis . The children were placed at ORG in GPE .

The first applicant appealed against the decision to take the children provisionally into care . However , ORG ( länsrätten ) and ORG ( kammarrätten ) of GPE upheld the decision and ORG ( regeringsrätten ) refused the applicant leave to appeal .

By judgment of CARDINAL DATE ORG ordered that the children P. and J. be taken into care pursuant to section CARDINAL of the Act containing Special Provisions on the Care of Young Persons DATE ( lag CARDINAL:CARDINAL med särskilda bestämmelser om vård av unga – hereinafter “ the DATE LAW ) on the ground that there were such deficiencies in the children ’s care as to endanger their health and development .

The first applicant appealed against the judgment , initially in respect of both PERSON and J. She later withdrew the appeal in so far as it concerned P.

By judgment of CARDINAL DATE ORG upheld the care order with respect to J.

The first applicant sought to appeal against the above judgment but , on DATE , ORG refused the appeal as being lodged out of time , which decision was upheld by ORG on DATE .

J. and P. were placed with foster parents on DATE and DATE in separate homes . Initially no decision regarding the first applicant ’s access to her children was taken but it appears that from DATE until DATE she was in fact able to visit her children in the foster homes once DATE for TIME . Furthermore , she could see them in her own home DATE for TIME . The second applicant normally accompanied the first applicant during her visits in the foster homes .

On DATE , after the first applicant had contacted her present representative , PERSON , she requested the social authorities to confirm that no decision had been taken to restrict her right of access to her children .

On DATE the Chairperson of ORG ( stadsdelsnämnden ) of GPE decided , pursuant to section CARDINAL of the DATE Act ( see paragraph CARDINAL below ) , to restrict the first applicant ’s access to her children to a CARDINAL hours’ visit in the foster homes DATE .

On DATE , acting in her own capacity and on behalf of her children , the first applicant appealed against the above decision to ORG . She maintained primarily that the decision had been unlawful in that the Chairperson of ORG had not been empowered to restrict access .

ORG quashed the Chairperson ’s decision in a judgment of DATE . On appeal by ORG that judgment was overturned on DATE by ORG . It considered that the Chairperson had been empowered to restrict access and referred the case back to ORG for determination of the merits of the access restrictions .

The first applicant appealed against ORG judgment to ORG which , on DATE , refused leave to appeal .

In the meantime , on DATE , the social authorities had decided to restrict the first applicant ’s right to speak to J. on the telephone to CARDINAL phone calls DATE . Furthermore , on DATE , it had decided to maintain the restrictions on the first applicant ’s access to her CARDINAL sons to a CARDINAL hours’ visit DATE in the foster homes .

The above decisions were challenged before ORG which , after holding a hearing on DATE , upheld them in a judgment of DATE .

On DATE the first applicant appealed on her own and her sons’ behalf to ORG which , following an oral hearing , rejected the appeal on DATE .

On DATE the first applicant and the children , represented by their mother , applied for leave to appeal to ORG , which was granted on DATE .

On DATE ORG upheld the lower courts’ judgments as regards the restrictions on access .

According to the ORG , ORG delay in giving judgment appeared to have been due to the fact that it was awaiting ORG ruling in the case of ORG and PERSON v. GPE ( judgment of DATE , Series A no . CARDINALA ) which raised similar issues in relation to restrictions on telephone communications between mother and child .

On DATE PERSON submitted the following request to the relevant authority on behalf of the second applicant :

“ [ The second applicant ] requests access [ to J. ] DATE from DATE until DATE as from DATE . Access shall take place at [ the second applicant ’s ] home at GPE without the presence of any other persons being required . [ The second applicant ] will bring and fetch [ J. ] in the foster home .

You are requested to notify me immediately , not later than within DATE , of your acceptance of this access arrangement and to inform the foster parents thereof . If you consider that you can not decide in this matter in your capacity as a civil servant I request that you refer it to ORG , to confirm that such a referral has taken place and to inform me when I may expect a decision from ORG . ”

On DATE the Chief of ORG , GPE , GPE ( stadsdelsförvaltningen CARDINAL , GPE , GPE ) informed the second applicant as follows :

“ ... I must point out that LAW containing Special Provisions on ORG applies in respect of children taken into public care . As you are aware , its provisions regarding access apply only in respect of the custody holder or in respect of those who have taken care of the child . Accordingly , it is only the mother [ the first applicant ] who is covered by these provisions . Of course , a natural father is important for the child who , having regard to what is in his or her best interests , has a right of access to his or her parent . According to section CARDINAL of [ the DATE Act ] , it is the social authorities , in this case the foster home department at Tynnered District [ familjehemsverksamheten i stadsdels - förvaltningen Tynnered ] , which must decide on [ J. ’s ] personal circumstances in the foster home . [ The second applicant ] is welcome to discuss the question of access with [ the secretary responsible for foster home care ] .

... I should like to recall that it concerns a child who , because of his need of care , has been placed in a foster home by court order . It can not be considered to be in the interest of a child to be removed from his or her home DATE , especially not in a situation such as that of [ J. ] . Not even in divorce cases is it normal that access be granted with such short intervals ; such cases often do not even concern children with any special need for care being provided in their home .

In effect , what you suggest is that a non - custody holder should be granted access going beyond what the custody holder has been granted . ”

The second applicant did not pursue the matter but appears to have contacted the social authorities at Frölunda to enquire about his access to J. On DATE the authorities replied :

“ A right of access to a child for a person other than the custody holder does not exist under domestic law . It is however appropriate that a child also meets his or her relatives .

ORG has decided that [ J. ’s ] access to his mother should be limited to CARDINAL visits a year , which may be increased to the extent agreed by [ J. ] . His access to other relatives should be considered in light of this . As regards [ the second applicant ’s ] request to meet [ J. ] it could be said that [ the second applicant ] participates in the regular access arranged DATE . Admittedly , [ J. ] has not appeared more than a few times during DATE but the aim is that [ J. ] attend more frequently in the future . This means that [ the second applicant ] will meet [ J. ] on the same conditions as the mother [ the first applicant ] . ”

It does not appear that the second applicant has taken any further initiative to establish access to his son J.

On CARDINAL DATE PERSON had submitted a request by the maternal grandparents to ORG for the children P. and PERSON to stay with them DATE .

On DATE the ORG informed PERSON that the question regarding the PERSON access to their grandchildren was not regulated in the law . The request could , nevertheless , be examined in the context of the social authorities’ general powers to decide on the personal conditions of the children . Decisions made under these general powers were not subject to any review . The grandparents were advised to contact the social authority responsible for the foster home to discuss the possibilities of access although the access requested did not appear to be consistent with the children ’s needs .

By letter of CARDINAL DATE the grandparents insisted on having a formal decision on the subject . On DATE ORG decided that the request did not call for any further action .

During the proceedings in the present case the LAW on the Care of Young Persons DATE ( LAW ) was replaced by a new LAW on the Care of Young Persons DATE ( lagen CARDINAL:CARDINAL med särskilda bestämmelser om vård av unga – “ the DATE LAW ) which entailed certain amendments and additions to LAW . LAW entered into force on DATE . According to the transitional provisions a care order issued under LAW should be regarded as a care order under the corresponding provision in LAW . The same applied with respect to decisions on access .

Section CARDINAL of the DATE Act provided :

“ If it is necessary in order to achieve the purposes of care measures taken under LAW , ORG may

decide how the right of access to the young person shall be exercised by a parent or other person who has custody of him , or

decide that the young person ’s place of residence may not be disclosed to the parent or custodian . ”

Section CARDINAL of the DATE Act , which replaced section CARDINAL of LAW , is worded as follows :

“ ORG is responsible for accommodating as far as possible the young person ’s needs of contact with his parents or other person who has custody of him .

The ORG shall reconsider at least once DATE whether such decision as referred to in the second paragraph continues to be needed . ”

As at present there is no authoritative ruling by ORG as to whether a parent who is not custodian or does not enjoy access rights by a court order or agreement can request a decision of ORG in respect of access .

According to section CARDINAL of the DATE Act an appeal may be lodged with ORG against a decision of ORG with respect to access . ORG may review a decision by ORG in so far as its subject matter is covered by section DATE CARDINAL Act ( or section CARDINAL of the DATE Act ; see Yearbook of the Supreme Administrative Court , PERSON DATE , DATE ) .