Preliminary objection joined to merits and dismissed (ratione materiae);Violations of Art. 11;Damage - award;Non-pecuniary damage - award

Alvina Gyulumyan;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi;Vladimiro Zagrebelsky

The applicants , Mr PERSON and PERSON , were born in DATE and DATE and live in LOC and GPE respectively . The first applicant was a member of the trade union PERSON and the second applicant was its President .

NORP The trade union PERSON was founded in DATE by civil servants from various municipalities whose employment was governed by LAW ( Law no . CARDINAL ) . Under LAW of its constitution , the trade union ’s objective is to promote democratic trade unionism and thereby assist its members in their aspirations and claims . Its head office is located in GPE .

On DATE Tüm Bel Sen entered into a collective agreement with ORG for DATE , effective from DATE . The agreement concerned all aspects of the working conditions of ORG employees , such as salaries , allowances and welfare services .

As ORG had failed to fulfil certain of its obligations under the agreement , in particular its financial obligations , the second applicant , as President of the trade union , brought civil proceedings against it in ORG ( “ the ORG ” ) on DATE .

In a judgment of CARDINAL DATE , ORG found in favour of PERSON ORG appealed on points of law .

On DATE ORG ) quashed ORG judgment . It found that , even though there was no legal bar preventing civil servants from forming a trade union , any union so formed had no authority to enter into collective agreements as the law stood .

In arriving at this conclusion , ORG took into account the special relationship between civil servants and the public administration as regards recruitment , the nature and scope of the work concerned , and the privileges and guarantees afforded to officials by virtue of their status . It considered that this relationship was different from that which existed between employers and ordinary contractual staff ( that is to say , employees in the private sector together with manual workers employed by a public administration ) . As a result , PERSON no . CARDINAL , governing collective agreements and the right to take strike or lock - out action , could not apply to relations between civil servants and a public administration . Any agreement of a “ collective ” nature between civil ORG unions and a public administration had to be grounded in specific legislation .

In a judgment of CARDINAL DATE , ORG stood by its original judgment on the ground that , despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements , this lacuna had to be filled by reference to international treaties such as the conventions of ORG ( ORG ) which had already been ratified by GPE and which , by virtue of LAW , were directly applicable in domestic law .

Among other things , ORG indicated , firstly , that the trade union PERSON was a legally established entity which had filed its constitution with the provincial governor ’s office a long time ago and which , since then , had carried on its activities without the slightest intervention by the competent authorities . The court added that , on this matter , there was no discrepancy between its judgment and that of ORG of ORG .

As regards the right of civil servants to enter into collective agreements , the court considered that , even if there was an omission in NORP law on this point , the court to which a dispute was referred had an obligation , under LAW , to make good the omission itself and to adjudicate the case . In the court ’s view , the same obligation also arose from LAW , under which everyone was afforded the right of access to a court . In this context the relevant provisions of LAW ratified by GPE had to be applied in the case , even though the specific national laws had not yet been enacted by the legislature . Directly applying the relevant provisions of these international instruments ratified by GPE , the court considered that the applicant trade union did have the right to enter into collective agreements .

As to the question whether the validity of the collective agreement in question was affected by the fact that it had not been provided for by any legislation at the time it was entered into , the court considered that , since it concerned employer - employee relations , the agreement was of a private - law nature . In the context of the limits imposed by Articles DATE and CARDINAL of the Code of Obligations , namely compliance with statutory provisions , customary law , morals and public order , the parties had been freely entitled to determine the content of this collective agreement . An examination of the text of the collective agreement in question did not reveal any contradiction with those requirements . Consequently , the court found that the collective agreement between the applicant trade union and ORG had been a valid legal instrument with binding effect for the parties .

The court awarded Mr PERSON a sum equivalent to the increases in pay and allowances provided for by the collective agreement in question .

In a judgment of DATE , ORG ( combined civil divisions ) quashed ORG judgment of DATE . It found that certain rights and freedoms mentioned in LAW were directly applicable to litigants , whereas others were not . In fact , LAW , by the indication “ the exercise of this right shall be governed by legislation ” clearly earmarked the rights and freedoms which , to be used and applied , required the enactment of specific legislation . Absent such legislation , these rights and freedoms , which included the freedom to join a trade union and to bargain collectively , could not be exercised .

ORG further considered that the principle of the individual ’s free will was not absolute in respect of the establishment of legal entities . They could acquire legal personality , distinct from their constituent persons , only by complying with the formal conditions and procedures laid down by law for that purpose . The creation of a legal entity was no more than a legal consequence conferred by the law on an expression of free will by the founders .

ORG pointed out that the freedom to form associations , trade unions and political parties , even if provided for in LAW , could not be exercised simply by a declaration of the free will of individuals . As there was no specific law on the subject , the existence of such a legal entity could not be recognised . According to ORG , this finding was not at odds with the principles of “ the rule of law ” and “ democracy ” mentioned in the LAW , since supervision of legal entities by the ORG , in order to ensure public usefulness , was necessary in any democratic legal system .

ORG further pointed out that the legislation in force at the time when the trade union was founded did not permit civil servants to form trade unions . It added that the amendments subsequently made to LAW , recognising the right of civil servants to form trade unions and bargain collectively , were not such as to invalidate the finding that PERSON had not acquired legal personality and , as a result , did not have the capacity to take or defend court proceedings .

An application by representatives of the trade union for rectification of that decision was rejected by ORG on DATE .

Following an audit of ORG accounts by ORG , the members of the trade union ORG had to reimburse the additional income they had received as a result of the defunct collective agreement . ORG , in a number of decisions that it gave as the court of last resort in respect of the collective agreements entered into by the trade union , pointed out that the rules applicable to civil servants , including the salaries and allowances to which they were entitled , were laid down by law . It further considered that , since the amendment on DATE of LAW and the enactment on DATE of Law no . CARDINAL on civil ORG trade unions , such unions were admittedly entitled to engage in collective bargaining under certain conditions of representation , but were not entitled to enter into valid collective agreements directly with the authorities concerned , unlike trade unions of ordinary contractual employees who could enter into such agreements with their employers . If an agreement was entered into between the employing authority and the trade union concerned , it could only become binding following its approval by ORG . ORG , after finding that the collective agreement entered into by the applicant trade union had not fulfilled these conditions , decided that the accountants who had authorised higher payments than those provided for by law should reimburse the surplus amounts to the ORG ’s budget .

ORG refused to apply section CARDINAL of Law no . CARDINAL , which required the discontinuance of any administrative , financial or judicial proceedings brought against accountants who were responsible for such payments . It considered that this provision did not render the collective agreements valid and did not release the accountants in question from the obligation to reimburse the ORG for any losses sustained by it as a result of payments made in accordance with those agreements .

The accountants concerned in turn brought proceedings against the civil servants who were members of the trade unions and had benefited from the additional payments granted under the defunct collective agreements .

The relevant provisions of LAW read as follows :

“ Ordinary contractual employees ( işçi ) and employers shall have the right to form trade unions and federations of unions , without prior permission , in order to safeguard and develop their economic and social rights and interests in the context of their labour relations .

In order to form a union or a federation of unions , it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law . If it finds that this information and documentation are not in conformity with the law , the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions .

Everyone shall be entitled to join or resign from a trade union .

No one shall be compelled to become a member , remain a member , or resign from a trade union .

Ordinary contractual employees and employers shall not be entitled to join CARDINAL trade union at a time .

Employment in a particular workplace shall not be made conditional on membership or lack of membership of a trade union of ordinary contractual employees .

In order to hold an executive post in a trade union or federation of trade unions of ordinary contractual employees , it is necessary to have effectively been employed as such an employee for DATE .

The constitution , administration , and functioning of trade unions and federations of trade unions shall not be inconsistent with the characteristics of the LOC or with democratic principles as defined in the LAW . ”

“ Employees and employers shall have the right to form trade unions and federations of unions , without prior permission , in order to safeguard and develop the economic and social rights and interests of their members in the context of their labour relations , and to join or withdraw from such entities of their own free will . No one shall be compelled to join or resign from a trade union .

The right to form a union may only be limited as prescribed by law in the interests of national security or public order , for the prevention of crime , for the protection of public health or morals or for the protection of the rights and freedoms of others .

The formalities , conditions and procedures applicable to the right to form a trade union shall be prescribed by law .

Membership of CARDINAL trade union within the same sector of activity shall be prohibited .

The scope of the rights in this sphere of public officials other than those who have the status of ordinary contractual employee , and the exceptions and limitations applicable to them , shall be prescribed by law in a manner appropriate to the nature of the services they provide .

The constitution , administration and functioning of trade unions and federations of unions shall not be inconsistent with the fundamental characteristics of the LOC or with democratic principles . ”

“ Ordinary contractual employees and employers shall be entitled ... to enter into collective agreements in order to regulate their economic and social position and conditions of work .

Collective agreements shall be entered into in accordance with the statutory procedure .

It shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time . ”

The trade unions and federations of unions which the public officials referred to in the first paragraph of Article CARDINAL shall be entitled to form , and which do not fall within the scope of the first and second paragraphs of the present Article , nor that of LAW , shall be entitled to take or defend court proceedings and to bargain collectively with the public administration in accordance with their objectives and on behalf of their members . If an agreement is reached as a result of collective bargaining , the text of the agreement shall be signed by the parties . This text shall be submitted to ORG so that legal or administrative arrangements can be made for its implementation . If no such agreement is reached through collective bargaining , a record of the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted for consideration by ORG . The procedure for the implementation of this paragraph shall be laid down by law .

“ ... International treaties that are duly in force are directly applicable in domestic law . Their constitutionality can not be challenged in ORG .

In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute , the provisions of the international agreement shall prevail . ” ( Second sub - paragraph added by Law no . ORG DATE )

“ The essential and permanent duties necessitated by the public services that the ORG , public economic undertakings and other public - law entities are required to provide , in accordance with general principles of public administration , shall be performed by civil servants and other public officials .

The qualifications , appointment , duties and powers , rights and responsibilities , and salaries and allowances of civil servants and other public officials , and other matters related to their status , shall be provided for by law .

The procedure and principles governing the training of senior civil servants shall be specially provided for by law . ”

Section CARDINAL of LAW ( Law no . CARDINAL of DATE ) stated that civil servants were authorised to form and join trade unions and professional organisations , in accordance with the conditions set out in special legislation . The second subsection of that provision stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities .

Section CARDINAL was repealed by LAW no . CARDINAL of DATE . It was reinstated by LAW no . CARDINAL of DATE . The text now reads :

“ In accordance with the provisions of the LAW and of the special legislation , civil servants shall be permitted to form and to become members of trade unions and federations of trade unions . ”

ORG ( Law no . DATE which was enacted on DATE and entered into force on DATE ) applies , according to section CARDINAL , to public officials , other than those who have the status of ordinary contractual employees ( işçi ) , working for government agencies and other public - law entities providing a public service , organisations operating on a general , supplementary or special budget , public administrations and municipal authorities in provinces and services attached thereto , publicly owned enterprises , banks and other private - law undertakings and establishments attached thereto , and for all other public organisations and establishments .

Section CARDINAL of the LAW provides as follows :

“ The trade union with the greatest number of members in each branch of public administration and the federations to which those unions are affiliated shall have the capacity to bargain collectively . The delegate from the most representative trade union shall chair the delegation taking part in the negotiations . ”

The determination of which civil ORG trade unions and federations are competent to bargain collectively is made by the Minister for ORG on the basis of lists that are co - signed and presented by the public administrations and the trade unions ( section CARDINAL of Law no . CARDINAL ) .

During the collective bargaining , the employer is represented by ORG . Civil servants and other public officials are represented by the trade union that is recognised as competent and the federation to which it is affiliated .

ORG and the trade unions and federations concerned are required to meet on DATE . The parties then submit their proposals , which will form the starting - point and agenda of the collective bargaining . The principles governing the negotiations are determined by the parties ( section CARDINAL of Law no . CARDINAL ) .

The collective negotiations must be concluded within DATE . If agreement is reached within that time , the parties concerned sign a collective agreement which is sent to ORG to enable the legal and administrative steps required for its implementation to be taken . ORG takes the appropriate measures within DATE and presents its draft law to ORG of GPE ( section CARDINAL of PERSON no . ORG ) .

If the parties concerned are unable to reach an agreement within the time - limit thus fixed , each one may refer the matter to ORG , which is made up of academics who are not members of political parties . If the parties approve the decision of ORG , an agreement is signed and sent to ORG . If there is still no agreement , the parties sign a record indicating the points on which they have agreed and disagreed . This record is also sent to ORG ( section CARDINAL of Law no . CARDINAL ) .

Article CARDINAL of ILO Convention No . CARDINAL on ORG ( adopted in DATE and ratified by GPE on DATE ) provides as follows :

“ Workers and employers , without distinction whatsoever , shall have the right to establish and , subject only to the rules of the organisation concerned , to join organisations of their own choosing without previous authorisation . ”

In its ORG to the NORP government concerning ORG , adopted in DATE , ORG on ORG stated as follows :

“ The ORG underlines that LAW [ No . DATE ] provides that workers without distinction whatsoever should have the right to form and join organisations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police . ... ”

ORG declared as follows concerning municipal civil servants ( see ORG DATE , paragraph CARDINAL ) :

“ Local public service employees should be able effectively to establish organisations of their own choosing , and these organisations should enjoy the full right to further and defend the interests of the workers whom they represent . ”

Article CARDINAL of LAW provides as follows :

“ CARDINAL . Everyone shall have the right to freedom of association with others , including the right to form and join trade unions for the protection of his interests .

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a NORP society in the interests of national security or public safety , public order ( ordre public ) , the protection of public health or morals or the protection of the rights and freedoms of others . This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right .

“ CARDINAL . GPE Parties to the present Covenant undertake to ensure :

( a ) the right of everyone to form trade unions and join the trade union of his choice , subject only to the rules of the organisation concerned , for the promotion and protection of his economic and social interests . No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a NORP society in the interests of national security or public order or for the protection of the rights and freedoms of others ;

( c ) the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a NORP society in the interests of national security or public order or for the protection of the rights and freedoms of others ;

This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the ORG .

The relevant Articles of ORG . CARDINAL concerning the Application of the Principles of the Right to Organise and to Bargain Collectively ( adopted in DATE and ratified by GPE on DATE ) read as follows :

“ Measures appropriate to national conditions shall be taken , where necessary , to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or ORG organisations and workers’ organisations , with a view to the regulation of terms and conditions of employment by means of collective agreements . ”

“ CARDINAL . The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations .

NORP In accordance with the principle set forth in paragraph CARDINAL of LAW of the International Labour Organisation the ratification of this Convention by any member shall not be deemed to affect any existing law , award , custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by LAW . ”

“ This Convention does not deal with the position of public servants engaged in the administration of the ORG , nor shall it be construed as prejudicing their rights or status in any way . ”

ORG interpreted this provision as excluding from the scope of Convention No . CARDINAL only those officials who are directly employed in the administration of the ORG . With that exception , all other persons employed by the government , by public enterprises or by autonomous public institutions should benefit , according to ORG , from the guarantees provided for in Convention No . CARDINAL in the same manner as other employees , and consequently should be able to engage in collective bargaining in respect of their conditions of employment , including wages ( General Survey DATE , ORG , on ORG . CARDINAL and CARDINAL [ ORG , CARDINAL ] , paragraph CARDINAL ) .

The relevant provisions of ORG . CARDINAL ( adopted in DATE and ratified by GPE on DATE ) concerning Protection of the Right to Organise and Procedures for ORG in ORG read as follows :

“ CARDINAL . This Convention applies to all persons employed by public authorities , to the extent that more favourable provisions in other international labour conventions are not applicable to them .

NORP The extent to which the guarantees provided for in this Convention shall apply to high - level employees whose functions are normally considered as policy - making or managerial , or to employees whose duties are of a highly confidential nature , shall be determined by national laws or regulations .

NORP The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations . ”

“ Measures appropriate to national conditions shall be taken , where necessary , to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations , or of such other methods as will allow representatives of public employees to participate in the determination of these matters . ”

ORG , in the LAW No . CARDINAL , noted “ the terms of ORG , DATE , [ and ] the Right to Organise and Collective Bargaining Convention , DATE ” and took into account :

“ ... the particular problems arising as to the scope of , and definitions for the purpose of , any international instrument , owing to the differences in many countries between private and public employment , as well as the difficulties of interpretation which have arisen in respect of the application of relevant provisions of the Right to Organise and Collective Bargaining Convention , DATE , to public servants , and the observations of the supervisory bodies of the ORG on a number of occasions that some governments have applied these provisions in a manner which excludes large groups of public employees from coverage by that ORG . ”

DATE of LAW ( revised ) , not yet ratified by GPE , provides as follows :

“ With a view to ensuring or promoting the freedom of workers and employers to form local , national or international organisations for the protection of their economic and social interests and to join those organisations , the Contracting Parties undertake that national law shall not be such as to impair , nor shall it be so applied as to impair , this freedom . The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations . The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations . ”

Principle CARDINAL of Recommendation No . R ( DATE ) CARDINAL of ORG on the status of public officials in LOC reads as follows :

“ Public officials should , in principle , enjoy the same rights as all citizens . However , the exercise of these rights may be regulated by law or through collective agreement in order to make it compatible with their public duties . Their rights , particularly political and trade union rights , should only be lawfully restricted in so far as it is necessary for the proper exercise of their public functions . ”

Article CARDINAL § CARDINAL of ORG Charter of Fundamental Rights provides as follows :

“ Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels , in particular in political , trade union and civic matters , which implies the right of everyone to form and to join trade unions for the protection of his or her interests . ”

As to NORP practice , it can be observed that the right of public servants to join trade unions is now recognised by all Contracting States . This right applies to public servants under a career or contractual system and to employees of publicly owned industrial or commercial enterprises , whether national or municipal . Civil servants , whether they work for central government or a local authority , are generally entitled to join the trade union of their choosing . The density of trade - union membership is generally higher in the public sector than in the private sector . In the majority of member GPE , the few restrictions that can be found are limited to judicial offices , to the police and to the fire services , with the most stringent restrictions , culminating in the prohibition of union membership , being reserved for members of the armed forces .

Article CARDINAL of LAW ( revised ) , not yet ratified by GPE , contains the following provision concerning the right to bargain collectively :

“ With a view to ensuring the effective exercise of the right to bargain collectively , the Parties undertake :

NORP to promote joint consultation between workers and employers ;

NORP to promote , where necessary and appropriate , machinery for voluntary negotiations between employers or ORG organisations and workers’ organisations , with a view to the regulation of terms and conditions of employment by means of collective agreements ;

NORP to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes ;

and recognise :

the right of workers and employers to collective action in cases of conflicts of interest , including the right to strike , subject to obligations that might arise out of collective agreements previously entered into . ”

According to the meaning attributed by ORG ( now ORG to LAW , which in fact fully applies to public officials , GPE which impose restrictions on collective bargaining in the public sector have an obligation , in order to comply with this provision , to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations ( see , for example , in respect of GPE , Conclusions III , pp . DATE ) .

Article CARDINAL of ORG LAW provides as follows :

“ Workers and employers , or their respective organisations , have , in accordance with Community law and national laws and practices , the right to negotiate and conclude collective agreements at the appropriate levels and , in cases of conflicts of interest , to take collective action to defend their interests , including strike action . ”

As to the practice of ORG , it can be observed that , in the vast majority of them , the right for public servants to bargain collectively with the authorities has been recognised , subject to various exceptions so as to exclude certain areas ( disciplinary procedures , pensions , medical insurance , wages of senior civil servants ) or certain categories of civil servants who hold exclusive powers of the ORG ( members of the armed forces and of the police , judges , diplomats , career civil servants at federal level ) . The right of public servants working for local authorities and not holding ORG powers to engage in collective bargaining in order to determine their wages and working conditions has been recognised in the vast majority of ORG . The remaining exceptions can be justified by particular circumstances .


No violation of Art. 6-1;Remainder inadmissible

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and lives in PERSON . He is a selfemployed entrepreneur .

In his capacity as an entrepreneur , the applicant received a subsidy for the creation of a number of positions of employment deemed “ socially desirable ” . The subsidy was paid to him on terms specified in a contract with ORG úrad práce ) .

NORP In a decision of CARDINAL DATE the ORG ( Daňový úrad ) found that the applicant had breached the abovementioned contract by failing to fill all the positions . The applicant was therefore ordered to return CARDINAL GPE korunas ( SKK ) of the subsidy and to pay SKK CARDINAL,CARDINAL by way of a financial penalty .

NORP The period for appealing against the decision was DATE from the date of service .

The written version of the decision was sent to the applicant through the postal service , to be served on him in person ( do vlastných rúk ) .

However , after repeated attempts to do so had proved unsuccessful the decision was deposited with the local post office and a notice was left in the applicant ’s mailbox to the effect that he could collect the decision there within DATE .

Should the applicant not collect the decision within that period , as proved to be the case , it was to be deemed to have been served on him by force of a legal presumption on DATE .

The question of when the decision of CARDINAL DATE became final and binding ( právoplatnosť ) was not subject to full administrative or judicial examination . However , the authorities took the view that it had become final and binding on DATE , by operation of the presumption mentioned in the preceding paragraph . At that time the applicant had no legal representation .

Under a legal - assistance contract of DATE , the applicant retained the services of a lawyer to provide him with general legal assistance , including representation in litigation .

Being a member of ORG , the lawyer was under a duty conscientiously to defend her clients’ rights and diligently to apply all legal means available for the assertion of their interests and to have taken out and to maintain professional liability insurance ( see paragraphs CARDINAL below ) .

On DATE the applicant paid a visit to ORG , accompanied by his lawyer . It was on this occasion that the applicant obtained the decision of DATE ( see paragraph CARDINAL above ) by collecting it from ORG in person .

On DATE , through his lawyer , the applicant challenged the decision of CARDINAL DATE by way of an administrativelaw action ( see paragraph CARDINAL below ) .

Simultaneously , also through the lawyer , the applicant requested an extraordinary review of the impugned decision by ORG ( PERSON daňové riaditeľstvo ) outside the framework of appellate proceedings ( see paragraph CARDINAL below ) . In his request , the applicant argued , inter alia , that he had in fact complied with the terms on which he had been provided with the subsidy .

On DATE ORG modified the decision of DATE in that it reduced the amount of the subsidy to be repaid to SKK CARDINAL,CARDINAL and the penalty payment to SKK CARDINAL . In the proceedings leading up to that decision the applicant ’s lawyer officially acted as his legal representative . Although it was open to her , the lawyer filed no administrative appeal against it on the applicant ’s behalf .

ORG subsequently relieved the applicant of the duty to pay any more than SKK CARDINAL,CARDINAL in penalties .

On DATE ORG ( PERSON súd ) declared the applicant ’s administrative - law action ( see paragraph CARDINAL above ) inadmissible and discontinued the proceedings . In the proceedings leading up to that decision the applicant ’s lawyer officially acted as his legal representative .

ORG found that the applicant had failed to fulfil the statutory admissibility requirement of exhausting ordinary remedies by lodging an administrative appeal ( see paragraphs CARDINAL below ) and , as appropriate , by challenging the decision on the administrative appeal by way of a fresh administrativelaw action ( see paragraph CARDINAL below ) .

In so far as there might have been any misgivings as to the way in which the impugned decision had been served on the applicant and , consequently , as to when the period for lodging an administrative appeal had expired , ORG held :

“ The court dealing with the action of CARDINAL DATE can not examine whether the defendant served the impugned decision [ on the applicant ] in accordance with LAW . This question may be examined only by the appellate administrative agency , in the context of an [ administrative ] appeal against the decision of the defendant .

Should the [ applicant ] have been of the opinion that the decision by the defendant was not served on him through the postal service in accordance with LAW , it was open to him to challenge that decision by means of an [ administrative ] appeal within the period for appealing , namely DATE from the collection of that decision in person from the defendant on DATE . The question whether the decision by the defendant was served on the applicant in accordance with LAW and , as the case may be , whether the [ applicant ] lodged his [ administrative ] appeal against the decision by the defendant within the statutory time - limit would have to be resolved by the administrative agency dealing with the appellate proceedings . Upon receipt of the decision of the appellate administrative agency on his appeal , it was open to the [ applicant ] to proceed as indicated above . ”

On DATE the applicant lodged a civil action against the lawyer with the ORG ( ORG súd ) . He alleged that the lawyer had breached her duty of care by failing to use all remedies , in particular administrative appeals against the decisions of DATE and DATE , followed – as the case may be - by administrativelaw actions .

The applicant argued , inter alia , that , in a judgment of DATE in an unrelated but similar case ORG ( Najvyšší súd ) had found for the plaintiff and had quashed the impugned decisions of the tax authorities .

The applicant sought an order for payment of SKK CARDINAL,CARDINAL in damages . This sum represented the total amount that he had to pay back to the tax authorities . In the course of the proceedings the applicant reduced his claim by SKK CARDINAL .

On DATE ORG dismissed the action and ordered the applicant to pay the defendant ’s costs .

Referring to ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) , ORG observed that the applicant ’s lawyer had not lodged an administrative appeal against the decision of DATE ( see paragraph CARDINAL above ) and that , consequently , ORG had no jurisdiction to deal with the applicant ’s administrative - law action .

ORG also noted that the applicant ’s lawyer could have challenged the decision of DATE by means of an administrative appeal , but had not done so .

ORG concluded that the lawyer had indeed breached her professional duties in that she had failed to use all available legal means for the protection of the applicant ’s interests .

NORP However , no causal link could be established between that breach and the applicant ’s loss since it was unknown how the case would have proceeded on the merits had all the ordinary remedies been applied .

An administrative appeal against the decision of DATE fell to be determined by ORG . An administrative - law action against the decision of CARDINAL DATE fell to be determined by ORG sitting as an administrative tribunal . Relying on LAW , ORG concluded that the ordinary courts had no jurisdiction to take the place of these bodies and to pre - empt the outcome of the proceedings before them .

On DATE ORG upheld the judgment following the hearing of an appeal by the applicant . ORG observed that the ordinary courts held no power of review as regards the substantive aspect of administrative decisions . It held that , similarly , the ordinary courts could not be a substitute for administrative agencies and tribunals by determining matters of substance within the latter ’s jurisdiction .

ORG denied leave to appeal on points of law on the grounds that no issue of particular legal significance was involved and that the matter was the subject of well - established case - law , although this was not referred to in any detail .

On DATE the applicant lodged a complaint under LAW ( see paragraph CARDINAL below ) with ORG ( Ústavný súd ) . He argued that the dismissal of his action for damages had violated his rights of access to a court under LAW and to judicial or other legal protection under LAW ( see paragraph CARDINAL below ) .

On DATE ORG declared the complaint inadmissible . The decision was served on the applicant on DATE .

The Constitutional Court was of the view that the outcome of the applicant ’s action for damages hinged on a point of law that fell under the jurisdiction of the ordinary courts and had already been decided there . The ordinary courts , in particular ORG , had supported the decision with exhaustive , relevant and sufficient reasoning . There was no appearance of any constitutionally relevant arbitrariness or irregularity and the applicant ’s complaint was accordingly manifestly ill - founded .

The applicant requested ORG to exercise his discretionary powers to challenge the judgment of DATE on the applicant ’s behalf by way of an extraordinary appeal on points of law on similar grounds to those raised in the applicant ’s constitutional complaint .

In a letter of DATE the public prosecution service informed the applicant that it fully endorsed the ordinary court ’s reasoning and consequently , his request was dismissed .

The “ right to judicial and other legal protection ” is laid down in Section ( Oddiel ) Seven of Part ( PERSON ) CARDINAL , dealing with “ basic rights and freedoms ” . The relevant part of DATE provides as follows :

“ CARDINAL . Everyone shall be able to assert his or her rights in a procedure provided for by a statute before an independent and impartial court of law and , in cases defined by a statute , before another organ of GPE .

Conditions and details of judicial and other legal protection shall be provided for by a statute . ”

Article CARDINAL provides :

“ CARDINAL . The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”

Article CARDINAL § CARDINAL provides :

“ The interpretation and application of constitutional laws , acts of parliament and other generally binding statutes must be in accordance with LAW . ”

The general rule on liability for damage is laid down in Article CARDINAL , paragraph CARDINAL of which provides :

“ Everyone shall be liable for any damage he or she causes by breach of statutory duty . ”

Section CARDINAL reads as follows :

“ CARDINAL . In the exercise of his or her profession , an advocate is bound to uphold the LAW , acts of parliament and regulations issued for their implementation and , within their boundaries , to follow the client ’s instructions .

An advocate is bound to protect the rights and lawful interests of the person he or she represents , to act conscientiously in doing so , diligently to use all legal means and to apply what he or she considers useful according to his or her conscience and the client ’s instructions .

An advocate is bound to see to it that the legal assistance rendered is purposeful and economical . ”

The relevant part of section DATE provides :

“ CARDINAL . An advocate is liable to his or her client for damage that he or she has caused in connection with the exercise of his or her profession ; this liability extends to damage caused by his or her trainee advocate ( koncipient ) or employee .

An advocate shall be released from liability under subsection CARDINAL if he or she shows that the damage could not have been prevented with all efforts that may be expected of him or her . ”

Under section CARDINAL :

“ Before the commencement of the exercise of his or her profession , the advocate is bound to furnish to the Bar a professional liability insurance policy . This insurance must be valid throughout the period of the exercise of the advocate ’s profession . ”

Article CARDINAL defines the jurisdiction of the ordinary courts . It provides :

“ CARDINAL . Courts in civil proceedings shall examine and decide upon disputes and other legal matters which stem from relations under civil law , labour law , family law , commercial law and economic law , provided that an act of parliament does not confer jurisdiction on other authorities .

Courts in civil proceedings shall also review the lawfulness of decisions of public administrative authorities and the lawfulness of decisions , measures and other actions by public - power authorities , provided that an act of parliament does not confer jurisdiction on other authorities .

Other matters may be examined and decided upon by courts in civil proceedings if an act of parliament so provides . ”

Article CARDINAL defines which decisions are binding upon courts in civil proceedings . It provides :

“ CARDINAL . A court shall be bound by a decision by ORG as to the compatibility of a statute with LAW , an act of parliament or an international treaty binding upon GPE ... A court shall also be bound by a decision of ORG or ORG which concerns a question of fundamental human rights or freedoms . Moreover , a court shall be bound by a decision of the competent authorities that a criminal offence , a minor offence or another administrative offence punishable under special statute has been committed and by whom , as well as by a decision concerning personal status , the inception and winding up of a company and the entry of [ information on ] registered capital [ in ORG ] ; a court shall , however , not be bound by a decision taken in summary minor - offence proceedings ( blokové konanie ) .

Other than that , questions falling to be decided by other authorities may be decided upon by a court directly . However , should such a question have been decided upon by the competent authority , the civil court shall adopt its decision ( vychádza z neho ) . ”

Under LAW ( d ) , civil proceedings can be reopened where the ORG has found a violation of the requesting party ’s Convention rights and where serious consequences of the violation have not been adequately redressed by the award of just satisfaction .

In the new decision in a reopened matter , the court determines issues relating to the reimbursement of the costs that the parties incurred both in the original and in the reopened proceedings ( Article CARDINAL § CARDINAL ) .

Chapter ( Časť ) CARDINAL governs the administrative judiciary . In accordance with its provisions , administrative tribunals review the lawfulness of decisions taken by public administrative authorities on the basis of administrative - law actions under LAW ) CARDINAL of that LAW and administrative - law appeals under LAW of that LAW .

Judicial review of administrative decisions and procedures by way of administrative - law actions under LAW CARDINAL necessitates that the matter be resolved by a decision that has become final and binding ( právoplatnosť ) upon the exhaustion of all ordinary remedies ( LAW ) .

The possibility of disregarding failure to comply with a time - limit is laid down in LAW , the relevant part of which provides :

“ CARDINAL . NORP The administrative authority may disregard a failure to comply with a time - limit ( lehota ) for serious reasons , provided that the party to the proceedings makes a request to that effect within DATE of DATE when the reasons for the failure [ to comply with the time - limit ] cease to exist , and that [ the party ] rectifies the omission within the same time - limit . The administrative authority may confer suspensive effect on such a request .

Failure to comply with a time - limit can not be disregarded after DATE has elapsed from DATE when the action should have been taken . ”

An administrative appeal is normally to be lodged within DATE of DATE when the decision challenged is served ( LAW ) .

In DATE after an administrative decision becomes final and binding , it may be quashed or amended ( Article CARDINAL § CARDINAL ) upon a review by an administrative agency at the nearest level above the agency that issued the decision , of the higher agency ’s own motion or on an application by a third party ( LAW ) .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently detained in FAC . He is represented before the ORG by PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the applicant and as revealed by the supporting documents , may be summarised as follows .

In DATE the applicant came to the attention of the public when he was implicated in a notorious gold bullion robbery ( ‘ the Brinks - Mat robbery’ ) . As part of their enquiries , police kept observations on the applicant and his property . A police officer dressed in black and wearing a balaclava with only slits for eyes , hid in the grounds of the applicant ’s home . The applicant ’s dogs alerted him to the presence of someone and he went to confront the intruder . A violent struggle ensued during which the officer was stabbed and died . The applicant was tried and acquitted of murder , his defence being that he had acted in self - defence .

The applicant was subsequently convicted of handling proceeds from the Brinks - Mat robbery and was sentenced to DATE imprisonment . Both trials received extensive media coverage .

At TIME on TIME DATE , PERSON became involved in an altercation with the applicant on a slip road of the MCARDINAL motorway . The applicant had overtaken the van in which PERSON was a passenger and which was driven by his girlfriend , ORG . The applicant and PERSON left their respective vehicles and fought , during the course of which the applicant stabbed PERSON twice , fatally wounding him . Fearing that he would not be treated fairly by the police the applicant fled abroad . In DATE he was arrested in GPE for the murder of PERSON and extradited to the GPE to face trial .

In DATE at a pre - trial hearing the applicant submitted that it would be impossible for him to have a fair trial in light of the lurid and extensive press coverage since the DATE death of PERSON . The judge acknowledged that the coverage was “ tendentious in the extreme ” and went on to say :

“ There were allegations made about his criminal activities which went beyond any of his previous convictions , to the extent that he was being presented ... as ‘ public enemy number one’ . The undoubted effect of those articles , and the media coverage generally , will have been to bring back into the public mind all the controversy which surrounded his trial in DATE . Indeed , it is clear that a lot of the material was intended to stimulate precisely that controversy , to the extent that a significant proportion of the press coverage was so slanted as to suggest that the jury ’s verdict in the defendant ’s previous trial was perverse . ”

The judge noted that the coverage had been extreme in DATE ( when the applicant was out of the country ) and DATE , but had then decreased and there was no significant adverse publicity after DATE ( when he was arrested ) .

The applicant submitted that the test to be applied was whether on the balance of probabilities there was a real danger of even CARDINAL juror being prejudiced by the publicity . The tribunal could not then properly be said to be impartial . It was submitted that there clearly was such a danger and that therefore it was not possible for the applicant to have a fair trial . The judge considered that there were CARDINAL aspects of the adverse publicity ; the ‘ general miasma of notoriety’ , which could be addressed by careful directions to the jury , who could be trusted to approach the facts as established , and also the fact that the applicant was charged with the same offence as in DATE and was running the same defence . Given the cynicism in the press about the earlier verdict , the latter aspect was a cause for concern . However , even if , as the prosecution had conceded , there was a risk that ,

“ one or more members of the jury may have retained sufficient prejudice from the publicity as to let it affect his or her judgement ”

that was not the test to apply . The fact that one or more jurors had already formed an adverse view of the applicant was not bias in the relevant sense . The applicant had confused bias and prejudice in the way the application had been argued .

The judge concluded that the test to be applied was whether it was possible for the applicant to have a fair trial and he found that the jury could be trusted to deal with the matter fairly and properly in the context of the directions they would be given . The passage of time , coupled with the process of trial , would sufficiently concentrate the jury ’s minds on the events in issue so as to enable a fair trial to take place .

On DATE , the applicant was convicted of PERSON ’s murder , by a majority of CARDINAL to one . At the trial he gave evidence that the deceased had been the aggressor throughout the fight and he had only taken out the knife as a last resort to try and dissuade the deceased from attacking him . He only stabbed the deceased when the attack continued and he believed it was necessary to protect himself . The issue for the jury therefore centred on the credibility of the applicant and by extension , the prosecution witnesses . There were CARDINAL prosecution witnesses who claimed to have seen the stabbing ( although many others who saw part of the fight ) ; PERSON and an apparently independent witness called PERSON , who presented himself as a respectable and successful businessman . ORG gave evidence that the deceased had behaved aggressively and that he had pursued the applicant when he had broken away from the fight , thus providing some support for the applicant ’s case . A number of the other witnesses also suggested that the deceased was the more aggressive of the CARDINAL men .

ORG said that the applicant had initially approached the van and there had been a tussle between the CARDINAL men , PERSON apparently trying to get back in the van . He was not sure who threw the first punch , but PERSON appeared to be in a stronger position . He gave evidence that he saw the applicant take the knife from his front right hand pocket of his trousers and conceal it behind his back . The applicant then ran at the deceased , who punched and kicked at him . The applicant lunged at him , stabbing him in the sternum . The applicant then turned to face ORG and shut the knife . As he walked past ORG car he nodded at him as if to say , ‘ that sorted him out’ . Neither the applicant or deceased were known to him . Soon after the incident ORG made a CARDINAL emergency call to report a stabbing , the transcript of which was made available to the jury .

Before the trial the prosecution had disclosed to the defence the fact that in DATE ORG had been arrested , suspected of involvement in a large scale drug dealing operation . Over MONEY GBP in cash had been seized from him , but subsequently returned , the police being satisfied that he had an adequate explanation for it . He pleaded guilty to minor drugs possession offences and was conditionally discharged . Some time after the trial , ORG wife approached the applicant ’s solicitors and gave a statement claiming that her husband had been involved in substantial cocaine dealing and that he was dishonest . It also transpired that a Mercedes car had been seized from ORG at the time of his arrest , which had been adapted to include a secret compartment to enable drugs to be concealed in the petrol tank . The modification had been noted by a customs officer DATE before the witness attended an Identification Parade at which he picked out the applicant . The vehicle was returned to ORG after the trial . No application was made to the trial judge for an order relating to disclosure of the information about the vehicle and the judge was not aware of the information .

Leading counsel for the applicant at trial did not consider that on the basis of the information provided to the defence he could justify suggesting to ORG that he had a motive to give untrue or embroidered evidence . Information disclosed which tended to show that ORG was suspected of involvement in the supply of Class A drugs was evidentially insufficient to form the basis of cross examination . A query raised with the prosecution about whether ORG had received unusual or lenient treatment was never answered .

The applicant appealed against the conviction , initially on the grounds that the judge had been wrong to refuse the application to stay the proceedings on the basis of the adverse publicity and also that there had been excessive security , including jury protection , which would have reinforced any prejudices the jury did have . Later , the applicant submitted additional grounds relating to the fresh evidence from PERSON ( who gave evidence on the appeal ) and the lack of disclosure by the prosecution about the ORG vehicle . By the time of the appeal ORG himself had been killed . The applicant was represented by new counsel on the appeal and leading trial counsel gave evidence as to how his approach to the case would have differed had he been aware of the additional information about ORG .

On DATE ORG dismissed the appeal . It was noted that the trial judge ’s summing up had not been criticised . The court found that the judge had been correct to refuse the application to stay the proceedings . The submissions made by both parties to the judge had amounted to the same in essence , namely was the court satisfied that the applicant could have a fair trial . A question of that nature was very much within the judge ’s discretion . Whilst it was regrettable that the press had not exercised more self - restraint , it was noted that the applicant had fled the country following some of the publicity and it was not clear that there ever would be a prosecution . The court agreed that juries were well able to put media comment out of their minds and do proper justice to a case in the great majority of cases . The court said :

“ We must be cautious about reaching a situation as a consequence of our decisions that if the conduct of a defendant has been sufficiently sensational he can not be tried but can say , ‘ Because of the media attention which I have received I can not be tried’ . As in so many situations it is for the judge to hold the scales evenly between the public and the defendant . ”

The court proceeded on the basis that the evidence about the ORG car ought to have been disclosed , but nevertheless found that even had ORG credibility been duly impugned , the jury would not have come to a different conclusion , as the real issue was whether the applicant ’s account of events was fanciful . ORG did not in any event appear to have been motivated in the way it was claimed for the applicant . He had in fact made favourable concessions to the applicant . There had been absolutely no justification for the applicant to take out and use a knife and it could not have been reasonable and proportional having regard to the nature of the fracas .

The procedure to be applied when determining questions of disclosure was governed at the time by common law . The prosecution were under a duty to disclose any information which was ‘ material’ and ( i ) raised a relevant or possibly relevant issue in the case , ( ii ) raised or possibly raised a new issue , or ( iii ) which held out a real , as opposed to fanciful , lead on ( i ) or ( ii ) ( NORP v. PERSON [ DATE ] CARDINAL WLR CARDINAL ) . It was for the court to determine what it was proper to disclose if the prosecution sought to withhold material information . Previous convictions of a prosecution witness or other matters adverse to the character of the witness were matters which would prima facie fall to be disclosed ( NORP v. Ward [ DATE ] CARDINAL Cr . App . PERSON , and NORP v. PERSON [ DATE ] CARDINAL Cr . App . R. CARDINAL ) .

Jurors are required to swear an oath or affirmation that they will :

“ faithfully try the defendant and give a true verdict according to the evidence . ” ( Practice Direction ( New Jury Oath ) CARDINAL Cr . App . DATE )

In a case of alleged bias , the test for the court to consider was set out in NORP v. PERSON ( [ DATE ] A.C. CARDINAL ) . Having ascertained the relevant circumstances , the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal , in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration , a test confirmed in the case of GPE ( GPE ) Ltd. v. ORG ( [ DATE ] CARDINAL WLR CARDINAL ) .

Where it is alleged that the particular circumstances mean that a defendant can not have a fair trial , for example where there has been significant delay , the defendant must show on the balance of probabilities that he would suffer serious prejudice to the extent that no fair trial could be held ( Attorney General ’s Reference number DATE [ DATE ] CARDINAL Cr . App . PERSON ) .

In the case of NORP v. West , ( DATE CARDINAL Cr . App . R CARDINAL ) the appellant claimed that she could not have a fair trial because of the publicity surrounding the case . The Lord Chief Justice said :

“ The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused . In our view it could . To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation , the accused can not be tried . That would be absurd . Moreover , providing the judge effectively warns the jury to act only on the evidence given in court , there is no reason to suppose that they would do otherwise . ”


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

George Nicolaou;Ledi Bianku;Vincent A. De Gaetano

The applicant was born in DATE and lives in ORG .

The applicant requested that a certificate be issued that he had been carrying out forced labour during his military service . Such a service would have had incidence on the amount of his retirement pension . His claim was dismissed by a decision given by the first - instance administrative authority on DATE . The applicant appealed . The second - instance authority dismissed his appeal on DATE .

The applicant appealed to ORG .

By a judgment of CARDINAL DATE that court dismissed his appeal . This judgment was served on an unspecified date shortly after DATE .

Shortly afterwards and , in any event , prior to CARDINAL DATE the applicant requested that legal aid be granted to him for the purposes of the cassation proceedings .

By a decision of CARDINAL DATE the applicant ’s request was granted . On DATE the court requested ORG to assign a lawyer to the case . By a letter of DATE ORG informed the applicant that lawyer PERSON was assigned to represent him for the purposes of the cassation proceedings .

On DATE the lawyer requested the applicant to give her a power of attorney . The applicant did so by a letter of DATE .

By a letter of CARDINAL DATE the lawyer informed the applicant that substantive law grounds for cassation appeal did not obtain in his case . Hence , it would have served no purpose to prepare such an appeal . She accordingly refused to do so .

On DATE ORG refused to examine a request for retrospective leave to appeal out of time submitted by the legal - aid lawyer on an unspecified date before DATE . The court noted that she had submitted such a request , but it could not be allowed because she had failed to submit it together with the cassation appeal as required by the applicable procedural provisions ( see paragraph CARDINAL below ) .

On DATE the applicant submitted his own request for retrospective leave to appeal out of time .

On DATE ORG summoned the applicant to supplement that request by submitting a cassation appeal prepared and signed by a lawyer .

On DATE the applicant submitted a cassation appeal which he had prepared himself .

On DATE the court summoned the applicant to submit within DATE a cassation appeal prepared by a lawyer .

The applicant failed to do so . By a decision of DATE ORG declined to examine the appeal submitted by the applicant . The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal against this decision .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of ORG are stated in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .

NORP In particular , in its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time - limit by a legallyaided applicant could be admitted for examination .

When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legally - aided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , II ORG CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .

In a number of its recent decisions ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant case - law of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legal - aid lawyer ( I FZ CARDINAL/CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of CARDINAL DATE ; I FZ CARDINAL of DATE ; ORG of DATE ; I FZ CARDINAL of DATE ) .


The applicant is a NORP national , born in DATE and living in the GPE area .

A.

In DATE a daughter , J. , was born to the applicant and PERSON In DATE the parents divorced . In DATE the applicant was awarded sole custody of J. During the court proceedings PERSON was occasionally placed in a children ’s home and with substitute parents , following the applicant ’s consent .

In DATE a second daughter , PERSON , was born to the applicant , the father being P. In DATE brought proceedings before ORG , seeking to obtain sole custody of A. The applicant also requested sole custody .

On DATE an official acting on behalf of ORG ( sosiaalilautakunta , socialnämnden ) placed both children in immediate public care in a children ’s home in pursuance of LAW of LAW ( lastensuojelulaki , barnskyddslag CARDINAL/CARDINAL as amended by Act CARDINAL/CARDINAL ) . The applicant had left the children on the premises of ORG , objecting to its processing of P. ’s action for sole custody of A. The applicant had told PERSON she no longer had the strength to care for the children and that they “ no longer had a mother ” . After the incident the applicant could not be reached . DATE she had telephoned a social welfare official to say she had “ bid farewell to her children ” and “ had stopped being a mother ” .

By decisions of DATE ORG , in pursuance of LAW of LAW , maintained the public care of the children after having heard the applicant and the respective fathers . The applicant had opposed the public care . On DATE the GPE and ORG ( lääninoikeus , länsrätten ) heard the applicant , a social welfare official , the applicant ’s psychologist and a nurse of the children ’s home . In its decisions of CARDINAL DATE ORG upheld the care orders , essentially considering that the applicant ’s uncontrolled and unforeseeable behaviour had seriously jeopardised the children ’s health and development . Although the applicant had previously availed herself of support measures for herself and the children , she was no longer willing to co - operate with the social welfare officials , being of the opinion that there was no need for such measures . The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) . On DATE , however , she withdrew her appeals , considering that the she could not expect an impartial examination thereof . On DATE the cases were struck out .

For the follow - up of its care orders ORG , on DATE , requested ORG to disclose information of significance to the applicant ’s children ’s growth and development . The request was made pursuant to LAW of LAW ( sosiaalihuoltolaki , socialvårdslag CARDINAL/CARDINAL ) .

On DATE ORG refused the applicant ’s request for the appointment of a guardian ad litem for herself and her children . The applicant had argued that a guardian was needed to protect them “ against the arbitrary acts of ORG ” until the custody proceedings had come to an end . The applicant ’s extraordinary appeal was rejected by ORG ( hovioikeus , hovrätten ; “ the ORG ” ) on DATE . Her extraordinary appeal to ORG ( korkein oikeus , högsta domstolen ) was rejected on DATE .

On DATE ORG , at ORG request , appointed a guardian ad litem for PERSON for the purposes of the custody proceedings . The applicant ’s appeal was rejected by ORG on DATE . Leave to appeal was refused by ORG on DATE .

On DATE ORG granted P. sole custody of PERSON applicant had not requested access to A. in the event of her not being awarded sole custody . Her request for an order regarding access arrangements solely between her CARDINAL daughters was refused as not being based on law . The applicant ’s appeal was refused by ORG on DATE after a re - hearing . On DATE she was refused leave to appeal to ORG .

On DATE P. requested that the public care of A. be revoked . On CARDINAL DATE ORG considered that although the original grounds for the public care of A. were no longer at hand , its termination at that moment would run counter to the child ’s best interest . ORG decided to revert to the matter within DATE but allowed the public care to be implemented in P. ’s home . On DATE ORG declined to examine the applicant ’s various petitions in which she objected , inter alia , to the implementation of the public care in P. ’s home . The applicant ’s respective appeals were rejected by ORG on DATE . Her extraordinary appeals were rejected on DATE .

On DATE an official of ORG refused to disclose to the applicant an assessment of ORG ’s parental abilities which she had requested for the purpose of the pending custody and public care proceedings concerning NORP The refusal was upheld by ORG on DATE . On DATE ORG quashed the ORG ’s decision , referred the matter back to ORG and directed it to disclose the assessment to the applicant . On DATE P. ’s appeal was rejected by ORG .

On DATE ORG terminated the public care of A. pursuant to LAW . ORG noted that P. had now been awarded sole custody of ORG and had assumed and organised her care in an adequate manner . The applicant appealed , requesting that she and PERSON immediately be reunited or , in the alternative , that the public care be continued but implemented in her home until she had again been awarded custody of her children . The applicant ’s appeal was rejected by ORG on DATE and her further appeal was rejected by ORG on DATE .

On DATE an official of ORG authorised the implementation of J. ’s public care in PERSON ’s home in GPE , where he had founded a new family . On DATE ORG decided to maintain the public care of J. but directed that she should continue to live with the father PERSON The applicant had requested that the public care be terminated and that J. be returned to her . Her appeal was rejected by ORG on DATE .

On DATE the ORG rejected the applicant ’s application to have PERSON returned to GPE in accordance with LAW on the Civil Aspects of International Child Abduction . ORG noted , inter alia , that J. had not been removed from GPE in contravention of LAW , given ORG competence to order the implementation of her public care in GPE . On DATE ORG rejected the applicant ’s appeal . ORG and the administrative courts declined to examine the applicant ’s requests and appeals related to ORG ’s placement in PERSON ’s home in GPE .

On DATE filed a civil action seeking sole custody of J. The applicant opposed the action but stated , on DATE , that she would not participate in the further proceedings , considering that ORG would not be independent and impartial in the case . On DATE ORG , without holding an oral hearing , awarded PERSON custody of J. , as the applicant could no longer be considered opposed to the action . On the applicant ’s appeal ORG on DATE returned the case to ORG , directing it to hold an oral hearing and to ascertain the child ’s best interest in the matter . The applicant was refused leave to appeal to ORG on DATE . In the ensuing proceedings before ORG stated that the applicant had consistently declined to attend meetings whereby her current conditions for assuming custody of J. could be assessed . In its fresh decision of DATE ORG again awarded PERSON sole custody of J. , considering , inter alia , the opinions of ORG and the social welfare authorities in GPE .

On DATE ORG refused various requests made by the applicant , inter alia to the effect that J. be returned to GPE , where the applicant should be entitled to see her every night and weekend . The applicant appealed , requesting , inter alia , that the results of a lie detector test of the judges and referendary of ORG be attached to its decision . On DATE the applicant ’s appeals were rejected except in so far as her access request had been refused . As this refusal had amounted to an access restriction , ORG was directed to issue a formal decision to this end . The applicant ’s further appeals were rejected by ORG on DATE .

On DATE ORG refused the applicant ’s request for access to J. but granted the applicant the right to visit J. in the children ’s home in GPE CARDINAL times a year when PERSON would visit GPE at the ORG ’s expense . No restriction was issued in respect of correspondence and telephone calls . The applicant ’s appeal was rejected by ORG on DATE . The said court noted that since J. was living in GPE the access as requested by the applicant could not be implemented already for practical reasons and would in any case manifestly jeopardise the child ’s development and safety . On DATE ORG declined to examine the applicant ’s further appeal as no such appeal was allowed . The applicant was invited to meet PERSON in DATE but did not show up .

On DATE ORG revoked the public care of PERSON applicant ’s appeal was rejected by ORG on DATE . Her further appeal was rejected by ORG on DATE .

In decisions of CARDINAL , DATE and DATE ORG of GPE declined to bring charges against ORG or any official of ORG or ORG . In contrast with the applicant ’s accusations the Prosecutor found no evidence showing that PERSON or any of the officials had committed a criminal offence during their involvement in the applicant ’s matters . Moreover , ORG had certified not having received any written request for disclosure of the applicant ’s medical records . Moreover , any such request would have had to include the applicant ’s consent .

On DATE ORG ( lääninhallitus , länsstyrelsen ) found that the Deputy Chief Physician of ORG had failed to ensure , in response to ORG request of DATE , that only relevant parts of the applicant ’s care records were disclosed to ORG .

In decisions of CARDINAL and DATE ORG , for want of evidence , declined to bring charges against the lawyer of ORG or A. ’s guardian ad litem , whom the applicant had accused of offences in office .

On DATE the Deputy Chancellor of ORG ( apulaisoikeuskansleri , justitiekanslersadjointen ) found no grounds for taking action against any of the judges whom the applicant had accused of offences in office .

On DATE the applicant gave birth to a third child , whose father has apparently not been identified . It appears that the applicant and this child continue to live together .

B. Relevant domestic law

Access to documents

Section CARDINAL of LAW provides for the right of a social welfare client and the client ’s guardian to obtain information concerning the client . According to LAW ) , a social welfare client shall have access to documented information and other data which relate to the matter concerned and are in the possession of social welfare personnel or ORG .

The Act on Publicity of Official Documents ( laki yleisten asiakirjain julkisuudesta , lag om allmänna handlingars offentlighet CARDINAL ) stipulates that even information in a non - public document shall be disclosed to an applicant , appellant or other person whose interest , right or obligation the matter concerns , if the information may influence or may have influenced the consideration of the case ( Section CARDINAL ( CARDINAL ) ) .

In accordance with LAW of LAW social welfare authorities are entitled to obtain the necessary information from other authorities in the performance of their work , without prejudice to the obligation of confidentiality .

Remedies against public officials

According to LAW ( rikoslaki , strafflag DATE ) , a civil servant who , by intent or neglect or carelessness , acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment , if the act or omission is not insignificant , having regard to the damage caused and other circumstances ( chapter CARDINAL , sections CARDINAL ) . In accordance with LAW of the Social Welfare Act public officials and members of , for instance , a municipal board must maintain secrecy in respect of information of a confidential nature which has been disclosed to them for the performance of their duties . Various provisions in LAW may become applicable if this obligation of secrecy is not respected ( LAW of LAW ) .

Under LAW ( Suomen Hallitusmuoto , ORG ) anyone whose rights have been infringed and who has suffered damage as a result of an illegal act , or by the negligence of a civil servant , is entitled to prosecute the civil servant , or demand that he or she be prosecuted , and to claim damages ( Article CARDINAL ) . Under LAW ( vahingonkorvauslaki , skadeståndslag CARDINAL ) proceedings may also be brought against the ORG in respect of damage resulting from fault or neglect by its employees in the performance of their duties ( chapters CARDINAL and DATE ) .