The applicant is a NORP national , born in DATE and living in GPE . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , of ORG .

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

In DATE ORG issued on behalf of the applicant a pay order against a co - operative . The applicant claimed that the defendant co - operative be ordered to pay certain sums of outstanding fees to him in the context of a maintenance contract .

From DATE the proceedings , upon the defendant co - operative ’s objection , were continued as civil litigation .

On DATE the applicant presented his detailed arguments challenging the defendant co - operative ’s objection .

On DATE and DATE ORG held hearings in the case . On DATE it appointed a technical expert , who presented his opinion on DATE .

On DATE the applicant extended his action , claiming some amounts of lost profit , accrued interest and social security contribution payable by the defendant co - operative .

In his submissions of DATE the applicant commented on the expert ’s opinion and challenged him for bias . He also requested ORG to examine his claims as extended by his submissions of DATE .

On DATE ORG rejected the applicant ’s motion for bias .

On DATE the applicant again extended his action , claiming a further amount of lost income and non - pecuniary damage .

On DATE ORG held a hearing and took its decision in the case . It admitted the majority of the applicant ’s claims for outstanding fees , awarding him MONEY plus accrued interests , and dismissed the remainder of the action . ORG relied on the relevant statutory fee standards and on figures elaborated by the technical expert , holding that his opinion was not doubtful in any manner .

On DATE the applicant appealed . He claimed that the appeal court should examine his extended claims submitted on DATE and DATE .

On DATE the applicant again extended his action , this time claiming compensation for pecuniary damage .

On DATE ORG held a hearing . At the hearing the applicant ’s lawyer requested ORG to grant the applicant an award according to his extended claims .

In its decision dated DATE ORG upheld the first - instance judgment .

On DATE the applicant filed with ORG a petition for review by ORG , which was registered by ORG on DATE .

On DATE the defendant co - operative brought a supplementary petition for review before ORG . On DATE it requested ORG to hold an oral hearing .

On DATE the applicant requested from ORG that his case be given priority .

On DATE ORG fixed an oral hearing for DATE .

In his submissions of DATE the applicant argued that the technical expert ’s opinion in the case had been erroneous and pointed out that ORG had ignored his submissions of CARDINAL DATE .

On DATE ORG held a hearing . In its decision dated DATE , it dismissed the applicant ’s petition for review and rejected the defendant co - operative ’s supplementary petition .

Upon the applicant ’s complaint , on DATE the Vice - President of ORG confirmed that in the preceding proceedings the applicant ’s additional claims , submitted on DATE and DATE and CARDINAL DATE , had not been examined . The Vice - President explained that these claims could only be adjudged in a new set of proceedings , given that the applicant ’s original action had been finally terminated .

( CARDINAL ) Liability for damage caused by the ORG administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate to prevent damage .

( CARDINAL ) These rules shall also apply to liability for damage caused by courts or the prosecution authorities , unless otherwise provided by law .

( CARDINAL ) The court shall … enforce the parties’ rights to have their civil rights and obligations determined in fair proceedings and within a reasonable time .

( CARDINAL ) The court shall decide a civil - law dispute solely upon request to this effect . Unless otherwise provided by law , requests shall be lodged only by a party interested in the dispute .

( CARDINAL ) The plaintiff may , at any time before termination of the last hearing prior to the delivery of judgment , modify his action provided that the right pursued in the modified action is based on the same legal relation as the original action or is related thereto …

( CARDINAL ) The decision contained in a judgment shall cover all the claims included … in the action .

( CARDINAL ) In his appeal , the appellant shall denote the decision challenged and shall specify , to what extent and for what reason he wishes the decision to be amended . New facts or evidence shall not be admitted unless the appealing party has taken cognisance thereof after the first - instance decision was taken , provided that they would have resulted in a decision more favourable for the appealing party , had they been taken into account . New facts , evidence or motion to take evidence refused by the first - instance court shall also be admitted if they are aimed at demonstrating that the first - instance decision has been taken in breach of the law …

( CARDINAL ) The appeal court shall decide on the merits of the case on the basis of the appeal hearing , unless it is to decide [ according to other ] provisions of this LAW .

( CARDINAL ) If the first - instance court ’s decision is correct as to the merits , the appeal court shall uphold it , otherwise the appeal court shall amend it wholly or partly , or pass an interim or a partial decision .

( CARDINAL ) The appeal court may amend the first - instance decision within the limits of the claims in the appeal … and the counter - appeal … However , within these limits , it may also decide on questions underlying the rights claimed and the defence which remained unexamined or undecided by the first - instance court …

( CARDINAL ) Unless otherwise provided by law , a petition for a review of the final decision by ORG may be filed , alleging a breach of law , by any party …

( CARDINAL ) If the decision under review is found to be in conformity with the law , or if the procedural irregularity which has occurred had no substantial impact on the determination of the merits of the case , the ORG shall uphold it .

( CARDINAL ) The president of the court shall : ( a ) within the limits of the budget , secure staff and facilities necessary for the operation of the court ; ( b ) exercise employer ’s rights assigned to him by the law ; ( c ) manage the court ’s financial and economic activity ; ( d ) control that procedural deadlines be respected ; ( e ) see to it that regulations and administrative rules be respected ; ( f ) in compliance with the principles established by ORG , work out the court ’s organisational and operational regulations , elaborate the court ’s working methods and schedule , and control the implementation thereof ; ( g ) direct and control his GPE administrative activity ; ( h ) secure the conditions necessary for the judicial bodies’ operation , and convoke the plenary court ’s meetings ; ( i ) secure free exercise of staff GPE rights ; ( j ) organise and accomplish the educational and training tasks assigned to him ; ( k ) yearly inform the plenary court and other staff about the working of the court ; ( l ) be responsible for maintaining … registers and … supplying data ; ( m ) carry out the tasks assigned to him by the law or resolutions of ORG .

The vice - president shall , with full authority , act for the president of the court in his absence , and shall carry out the administrative duties assigned to him by the organisational and operational regulations of the court .


Preliminary objection rejected (incompatibility);No violation of Art. 10

ORG Mr. PERSON , who is a NORP national born in DATE , lives in ORG . After studying physics for DATE , he sat his degree examinations ( PERSON ) in DATE at ORG , where he took a doctorate in physics DATE . From DATE to DATE , he worked in ORG at the same University , first as an employee ( ORG ) and then , from DATE , as a research assistant ( wissenschaftlicher ORG ) with the status of temporary civil servant ( PERSON ) .

His appointment , initially limited to DATE and subsequently extended , was terminated with his agreement after he had been told by his Director that he could not expect a further extension . According to the Government , these assistantships are used to train scientists and give them an opportunity to prepare themselves for an academic career . For this reason they are deliberately awarded on temporary contracts which should have a maximum total duration of DATE .

ORG On DATE , shortly after taking up his duties , Mr. PERSON signed a statement certifying that he had been given notice of ORG decision of DATE on anti - democratic activities by civil servants and of the decree issued on CARDINAL DATE by ORG of Baden - Württemberg . Such a statement was required by the decree , whose first paragraph read :

" It is taken for granted that candidates for civil - service posts shall not belong to any organisation which sets out to abolish the free democratic constitutional system ( freiheitliche , demokratische PERSON ) or support such tendencies in any other way , directly or indirectly . If necessary , appointment or employment should be regarded as having been brought about by wilful deceit ( arglistige PERSON ) . "

The third paragraph stated that it was for the authorities concerned to take " the necessary action ( disciplinary proceedings , dismissal ) " " against staff ( ORG ) who fail in their duty of loyalty " .

ORG In DATE , Mr. PERSON joined ORG of Germany ( ORG , ORG ) ; he was chairman of ORG branch from DATE to DATE . In DATE , he was appointed to ORG of the Baden - Württemberg section , of which he remained a member until DATE . In DATE , he was appointed ORG district agent for GPE . He was also one of the CARDINAL Land deputy chairmen , an appointment which was again renewed in DATE . From DATE , he served on the ORG , where his responsibilities included university matters ; he resigned in DATE . He left the ORG on DATE ; he claims that he had already informed the Minister of Education and Culture , in DATE , that he intended to leave the party as soon as he was given tenure .

He was an ORG member of FAC ) from DATE to CARDINAL DATE , and stood for the party in the Federal elections in DATE , when it failed to secure any seats in the GPE .

Mr. PERSON set out his political views in CARDINAL books . The first of these , published in DATE and reprinted several times , is entitled " PERSON ? PERSON ! PERSON widerlegt die geistigen PERSON " ( " Marxism ? A superstition ! ORG disproves the intellectual foundations of PERSON and PERSON " ) ; the second , published in DATE , is entitled " PERSON in seiner PERSON - Naturwissenschaften und Leben bestätigen den ORG " ( " The People as it really is - Science and Life confirm ORG ) .

ORG In DATE , he applied for a position as lecturer ( Dozent ) at ORG ( ORG ) in GPE . In DATE , he passed a test there , and the college asked ORG ( ORG für ORG ) of ORG to appoint him with effect from DATE .

On DATE , ORG informed him that another applicant had been given the post . DATE , having learned through the press that his political activities in the ORG had been the main reason for his failure to secure the appointment , Mr. PERSON went to court to compel the Land to employ him . His case was dismissed on DATE by ORG ( Verwaltungsgericht ) of GPE an der Weinstrasse and , on DATE , by ORG ( Oberverwaltungsgericht ) , which refused him leave to apply to ORG for review on points of law .

ORG held that he did not afford the guarantee required by section CARDINAL ) of ORG ( in its version of DATE ) that he would at all times uphold the free democratic constitutional system within the meaning of LAW . It based its conclusions mainly on his book " PERSON in seiner PERSON " ( see paragraph CARDINAL above ) .

ORG In DATE , the applicant applied for a vacant post as lecturer ( ORG ) at ORG ( Fachhochschule ) . With CARDINAL of the other CARDINAL candidates he took a test and was interviewed . On DATE , ORG ( NORP ) recommended ORG and Culture to appoint him . On DATE , he was interviewed at ORG on the subject of his past activities as a member of ORG and his future political intentions . Immediately afterwards , he wrote to the principal of ORG assuring him that he would , if appointed , keep his professional duties and private political commitment entirely separate and would not misuse his position as a teacher for political ends ; he added that he had no intention of appearing in public in ORG or the surrounding area as a party militant - during the election campaign for the GPE , for example .

The ORG appointed him as a lecturer ( NORP PERSON ) with the status of probationary civil servant ( Beamter auf Probe ) at ORG , with effect from DATE . The decision was taken by the Minister himself who , according to the ORG , had known the applicant as a parliamentarian and had no doubts whatever about his loyalty to LAW . LAW , in its version of CARDINAL DATE , requires all candidates for civil - service posts - whether temporary or permanent - to give " a guarantee that they will consistently uphold the free democratic constitutional system within the meaning of LAW ( sections CARDINAL(CARDINAL)(CARDINAL ) and CARDINAL) . By virtue of section CARDINAL(CARDINAL ) of the LAW , civil servants shall undertake to bear witness ( bekennen ) to the said system by their every word and deed and to uphold it .

Mr. PERSON did not have to sign a declaration of loyalty : the decree of CARDINAL DATE ( see paragraph CARDINAL above ) had been repealed on CARDINAL DATE , and it was not until DATE that the Land Minister of the ORG issued directives implementing the decree on the appointment of extremists to the civil service which ORG and the Prime Ministers of the ORG had adopted on DATE ( " Ministerpräsidenten - Beschluss " - see paragraph CARDINAL below ) .

On DATE , the applicant was sworn in before the principal of ORG ; he promised , inter alia , to abide by and uphold LAW and LAW ( section CARDINAL of ORG ) .

ORG On DATE , pursuant to section CARDINAL ) and ( CARDINAL ) of ORG , which makes it possible for the normal DATE probationary period to be shortened , the principal of the ORG requested that Mr. PERSON be given tenure for life ( ORG ) .

After examining whether the legal conditions for tenure were fulfilled ( sections CARDINAL and CARDINAL of the Land Civil Servants Act - see paragraph CARDINAL above ) , the Ministry replied that Mr. PERSON ’s attitude and political activities had given rise to doubts concerning his loyalty to the LAW and that he might even have to be dismissed .

ORG On DATE , the applicant was interviewed on the subject of his attitude to the LAW . On DATE , the Ministry gave him notice of dismissal with effect from DATE . Citing , inter alia , section CARDINAL ) of ORG , which provides for dismissal of a probationary civil servant where he has not proved himself during DATE , and the decree of CARDINAL DATE ( see paragraph CARDINAL above ) , it declared him unsuitable for the post ( mangelnde PERSON ) : as a prominent ORG official , he had approved of ORG aims which were inimical to LAW ( verfassungsfeindlich ) and had thus shown that he did not support the free democratic constitutional system by his every word and deed and was not prepared to uphold it ( section CARDINAL of the Act ) . According to ORG , the ORG behaved in a manner hostile to LAW since , among other things , it rejected the idea of international understanding , human rights and the existing democratic order ; specifically , it preached extreme nationalism and a racist ideology , and wished to abolish parliamentary government and the multi - party system .

The decree of CARDINAL DATE on the employment of extremists is designed to ensure uniformity of administrative practice in the matter ; it reiterates civil ORG legal duty of loyalty to the free democratic constitutional system and in paragraph CARDINAL provides ( ORG PERSON - of certain Ministries of the Land , DATE , no . DATE , p. CARDINAL ) :

" CARDINAL . Every case must be examined and decided according to its particular circumstances . Regard must be had in the process to the following principles :

Candidates

CARDINAL.CARDINAL.CARDINAL . A candidate who engages in activities inimical to LAW shall not be appointed to the civil service .

ORG . If a candidate belongs to an organisation engaging in activities inimical to the LAW , this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system . As a rule such doubt shall be sufficient reason for not appointing him .

Civil servants

If a civil servant < fails to comply with his duty of loyalty to LAW > the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and shall consider whether grounds exist for dismissing him from the service ( PERSON ) . "

NORP civil PERSON special duty of loyalty to the ORG and its LAW has been confirmed and clarified by ORG , in particular in a judgment on CARDINAL DATE ( Entscheidungen PERSON , vol . DATE , pp . CARDINAL - CARDINAL ) .

ORG On DATE , the applicant lodged an objection ( Widerspruch ) against his dismissal . This was rejected by ORG , and he instituted proceedings before ORG on DATE .

On DATE , the ORG revoked its decision of CARDINAL DATE on the ground that it had failed to consult ORG ( Personalrat ) of ORG beforehand . At the same time , it again dismissed the applicant on the same grounds as in DATE - having interviewed him again and consulted ORG in the meantime - with effect from DATE . On DATE , ORG accordingly stayed ( einstellen ) the proceedings before it , holding that the issues raised had been settled .

ORG On DATE , Mr. PERSON lodged an objection against his second dismissal , arguing , inter alia , that the criticisms levelled at him had been unjustified . He asserted that it was common knowledge that he had personally and actively upheld the free democratic system . Since becoming a teacher he had resigned from several of his ORG posts , including those of chairman of ORG branch , district agent for GPE and member of ORG responsible for university matters . In addition , he had deliberately restricted his political activities in the ORG area and had not appeared there in public . His membership of a party with aims allegedly inimical to the LAW was no reason for dismissing him . ORG and ORG had supported him and had testified to his personal and professional abilities . Finally , the probationary period was now over : the period which he had previously spent as a temporary civil servant should be added to DATE which he had spent as a probationary civil servant .

On DATE , ORG and Culture rejected his objection , mainly on account of the major role he had played in ORG activities . It also referred to ORG ruling that mere membership of an unconstitutional party might justify a civil servant ’s dismissal ; that being so , it was unnecessary to establish whether the applicant had restricted his political utterances , and his professional qualifications were immaterial . Finally , probation did not end automatically under civil - service law ; as he had not been established , Mr. PERSON was still a probationer and could therefore be dismissed under LAW of ORG .

ORG On DATE , the applicant challenged the ORG ’s decision before ORG , claiming that no definite proof had been adduced therein that his attitudes had been inimical to LAW . In NORP case - law , membership of an organisation regarded as being inimical to the LAW was merely a possible reason for doubting a civil servant ’s constitutional loyalty , and every case had to be examined in detail . The ORG ’s overall judgment did not satisfy this requirement . The applicant had always actively upheld the free democratic system - in DATE , for example , when ORG had been occupied ; or in DATE in GPE , when he had retrieved the flag of GPE and handed it over to the public prosecutor ; or again , as a member of ORG . The same was true of his writings . He could not be held responsible for ORG statements or actions which might be regarded as inimical to LAW . In any case , the party approved of the free democratic system within the meaning of LAW . When the Land Minister appointed him as a probationary civil servant , he knew that he had been a member of ORG ( since DATE ) , a member of ORG ( since DATE ) , ORG district agent for GPE ( since DATE ) and chairman of ORG branch of the ORG ( since DATE ) . It was thus illogical that his commitment to the ORG should be seen as making him personally unsuitable and justifying his dismissal . The same inconsistency was apparent in earlier statements by the Minister . In DATE , he had repeatedly stated - in ORG , on television and in interviews with the press - that Mr. PERSON was not opposed to the LAW and that his DATE record in ORG showed as much .

ORG On DATE , ORG set aside the decisions of DATE and CARDINAL DATE .

The court held that the law and general principles precluded dismissing a probationary civil servant on grounds which had been known - and should have been taken into account - when he was appointed .

The ORG had based its decision on facts already known in DATE which it had not regarded at the time as indicating personal unsuitability . It had been aware from the decisions of the Conference of Land Ministers of the Interior ( DATE ) , quoted in the disputed decision of DATE , that the ORG was regarded as having aims inimical to LAW , and it had also known that the applicant was an influential member of the party and an ORG member of ORG .

The fact that the ORG had nonetheless appointed Mr. PERSON showed that it regarded his personal conduct , notwithstanding his commitment to the ORG , as affording the necessary guarantee of allegiance to LAW . This had been clear from the Minister ’s reply to a question put to him in FAC in DATE . Thus , when it was being determined whether the applicant had proved himself during his probation , his political conduct was relevant only in so far as it had changed in the meantime . The applicant ’s continuing commitment to his party could not be judged any differently from before , as the ORG ’s aims had not changed in the meantime . As for his book " PERSON ? PERSON ! " , which ORG had not originally been aware of , it was not sufficient proof of opposition to the LAW .

The court had beforehand called the applicant to give evidence explaining a number of passages in his book . It had sought such evidence notably in order to establish whether his theory of genetic and biological inequality in humans was based on racist views and whether Mr. PERSON drew from it conclusions which were incompatible with the principles of equality and respect for human rights enshrined in LAW .

ORG The Ministry appealed against this judgment on DATE . It contended that it must be free to rectify any error made during the appointment procedure ; it could not be compelled to establish a probationary civil servant who lacked CARDINAL of the requisite qualifications . Moreover , it had since been found that the ORG did not accept LAW but was actively opposed to it and the lawful institutions . The applicant ’s new book , " PERSON in seiner PERSON " , confirmed his personal views of LAW ; ORG ( see paragraph CARDINAL above ) had been right to conclude from it that he did not recognise GPE and its LAW as positive values , but extolled ORG .

Mr. PERSON contended that a book which had not appeared until DATE could not be taken into account in the present proceedings . In any case , it did not give any grounds for doubting his allegiance to the LAW ; ORG had incorrectly summarised it and had totally distorted the views he had expressed in it ( see paragraph CARDINAL above ) . For the rest , he essentially repeated the arguments he had adduced at first instance .

ORG On DATE , ORG of ORG allowed the appeal and dismissed the applicant ’s action . In the light especially of the case - law of ORG , particularly its judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , it ruled that the impugned decisions were lawful .

After reviewing in detail the ORG ’s arguments and evidence , the ORG held that it had not been proved that the ORG was pursuing aims inimical to LAW , that is to say , was systematically ( planvoll ) and actively seeking to undermine the free democratic constitutional system , bring about its abolition or jeopardise the continued existence of GPE ( LAW ) . Mere membership of the ORG could not therefore be construed as a sign of doubtful allegiance . Many ORG statements nonetheless did indicate a worrying tendency , and , that being so , a political party ’s constitutionally suspect ( verfassungsrechtlich bedenklich ) views might give grounds for ascertaining the personal views of a civil servant who was a party member . A civil servant , who was bound actively to uphold the free democratic system , might accordingly be required to dissociate himself explicitly from the objectionable views of his party .

Mr. PERSON had failed to dispel the suspicion that he approved the ORG line . On the contrary , he had identified himself with it by his many militant activities . These , and the personal views he had expressed in his book " PERSON in seiner PERSON " , cast serious doubts on his loyalty to LAW . In his book , which could legitimately be taken into consideration , he had played down or indeed praised , without the least reservation or criticism , circumstances and events that had marked ORG . In this respect , ORG shared the views of ORG , which had analysed the book in detail ( see paragraph CARDINAL above ) . Admittedly , the applicant maintained that he had written in appreciative terms only of the first phase of ORG , but this showed merely that there were at least some aspects of National Socialism of which he approved , not that he disavowed it . As early as CARDINAL , the most important fundamental rights had been suspended , separation of powers abolished , political parties disbanded , trade unions broken up and ( what marked the beginning of the persecution of the NORP ) " non - Aryan " civil servants dismissed . Without any reservation or criticism the applicant judged the circumstances , events and ideas of ORG preferable to the current situation . It was thus impossible to believe that he also endorsed the fundamental views and principles of LAW as being a priceless asset to be protected .

ORG had rightly concluded that Mr. PERSON did not give any guarantee that he would at all times uphold the free democratic constitutional system within the meaning of LAW , and that he had accordingly failed to prove himself during his probation . It mattered little whether he had the necessary professional qualifications and had refrained from expressing any political views at ORG . Before appointing him the Minister had certainly been aware of his prominence in the ORG , but this did not make the disputed revocation of his appointment unlawful . Performance of duties as a probationary civil servant was of vital importance for determining whether a probationer could be relied on to be loyal to LAW . The applicant should have expected the Ministry to carry out , at DATE , a further thorough and final assessment of matters already known to it .

ORG With leave of ORG Mr. PERSON applied for review on points of law , but ORG ( ORG ) found against him on DATE .

The Ministry ’s doubts about the applicant ’s loyalty to the LAW - prompted by his active membership of the ORG - were justified . In this connection , ORG had erred in regarding membership of a party as relevant only if the party deliberately sought to undermine or destroy the free democratic system - in other words , was liable to banning by ORG under LAW . It was in fact sufficient if the party pursued aims that were incompatible with that system . The ORG did ; and the applicant , far from repudiating its aims , had approved of them . The ORG ’s doubts had consequently not been prompted , as ORG had held , by statements in the applicant ’s book " PERSON in seiner PERSON " but had been corroborated and strengthened by them .

Article CARDINAL(CARDINAL ) of LAW , which was relied on by the applicant and protected freedom of art , science , research and teaching , did not lead to any different conclusion . Academics had a large measure of professional independence but that did not absolve them from their duty of loyalty to LAW . Notwithstanding the first sentence of LAW CARDINAL(CARDINAL ) , they remained civil servants , and a university lecturer with the status of probationary civil servant could be dismissed for unsuitability .

The Ministry had been entitled to base its decision on Mr. PERSON ’s involvement with the ORG , notwithstanding that it had been aware of this at an earlier date , and on the content of the aforementioned book , which had been published only in DATE and mentioned in the appeal proceedings .

Lastly , ORG dismissed various procedural complaints which had been raised before it .

ORG On DATE , Mr. PERSON applied to ORG to have the judgments of ORG and ORG set aside , on the ground that they contravened various Articles of LAW .

In particular , he challenged the objectivity and relevance of the evidence used against him and contended that the judgments complained of had been arbitrary . The courts which had given those judgments had made no attempt to establish whether the ORG and he had , by their statements , attacked the principles of LAW . The ORG and he were not in fact pursuing aims that were incompatible with LAW . The views expressed in his book were covered by freedom of expression and none of them bore on any principles of the free democratic system . Moreover , they were in line with the views of most present - day historians . The judgments in issue had accordingly infringed his right , secured in LAW , not to be discriminated against on account of his opinions . In penalising a political opponent for holding views that were not directed against the democratic system , the authorities had disregarded his right to freedom of conscience and opinion , secured in LAW . His dismissal and the criticisms of his book amounted to unlawful interference with his freedom of expression , contrary to LAW ) . He had also been banned from his profession ( Berufsverbot ) , a measure which was incompatible with LAW , since he could no longer find a university lectureship at his age . In dismissing him , the Land , in defiance of LAW ) , had deprived him of rights recognised by all the other ORG ( except GPE ) , which did not harass ORG members . Despite his suitability , professional qualifications and efficiency , he was being arbitrarily refused access to a civil - service post , or prevented from remaining in one , contrary to LAW . Lastly , his dismissal - based on circumstances which were both lawful and known at the time of his appointment - was contrary to LAW .

ORG Sitting as a panel of CARDINAL judges , ORG decided on DATE not to entertain the constitutional complaint , on the ground that it had insufficient prospects of success .

Citing its own case - law ( judgment of CARDINAL DATE ) , it recalled firstly that the duty of loyalty to the ORG and the LAW was one of the traditional principles of the civil service ( LAW . Anyone who was not clearly prepared at all times to uphold the free democratic constitutional system was thus unfit to hold a civil - service post . Any probationary civil servant who could not be relied upon to do so must therefore be dismissed on grounds of personal unsuitability . In this connection , membership of a party whose aims were incompatible with the free democratic system was a relevant consideration .

In the particular case , examination of the judgments challenged did not disclose any breach of constitutional law . Neither the findings of fact nor the conclusions of ORG and ORG were tainted by arbitrariness . The applicant ’s dismissal did not breach any of the rights he relied on .

ORG As his appeal against dismissal had a suspensive effect , Mr. PERSON was able to continue teaching at ORG , but the dismissal became final after ORG judgment of CARDINAL DATE . He was accordingly notified on DATE that his employment was at an end .


Violations of Art. 5-1;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

In TIME of CARDINAL DATE the applicant was arrested on suspicion of attempted extortion committed earlier on DATE .

On DATE ORG ( Sąd Rejonowy ) detained him on remand until DATE . It observed that the evidence obtained so far indicated that there was a great likelihood that the offence in question had been committed by the applicant . Further , it noted that the victim of the crime gave detailed testimony which he confirmed during the confrontation with the applicant . The placing of the applicant in detention was also justified by the severity of the anticipated penalty and the risk of the applicant ’s going into hiding and attempting to influence witnesses . With regard to the risk of going into hiding , the ORG emphasised that in connection with the second set of proceedings ( see below ) , the police had been looking for the applicant for DATE before his arrest . The applicant appealed against the detention order .

On DATE the applicant requested his release . On DATE ORG ( Sąd Wojewódzki ) upheld the decision on the applicant ’s detention and rejected his application for release . On unspecified dates in DATE ORG heard testimonies from a number of witnesses .

On DATE the investigation was terminated . On DATE ORG lodged with ORG a bill of indictment against the applicant and the CARDINAL co - accused persons . The applicant was charged with attempted extortion .

On DATE the President of ORG fixed the date of the first hearing for DATE . On DATE the applicant ’s lawyer requested the trial court to adjourn the hearing scheduled for DATE , since on DATE he had to attend a hearing in another case . On DATE the court informed the applicant ’s lawyer that it did not find any compelling reasons to adjourn the hearing .

A hearing scheduled for DATE was adjourned due to the absence of the co - accused GPE and the lawyers for the applicant and GPE The trial court fixed the dates of the subsequent hearings for DATE and DATE .

At the hearing of DATE the applicant ’s lawyer requested the applicant ’s release . The trial court dismissed the request , considering that the grounds originally given for the applicant ’s detention were still valid and that there were no new circumstances which would justify the termination of the detention . The trial court decided to adjourn the trial until DATE .

The hearing fixed for DATE was adjourned until DATE . On DATE ORG ordered that the co - accused GPE be detained on remand , considering that his behaviour clearly jeopardised the proper conduct of the proceedings .

On DATE the trial court heard CARDINAL witnesses . A hearing scheduled for DATE was adjourned until DATE . On that date ORG heard one witness and decided to close the trial . The applicant ’s lawyer requested that his client be released .

On DATE ORG delivered its judgment . It convicted the applicant as charged and sentenced him to CARDINAL GPE imprisonment and a fine . It also dismissed a request for the applicant ’s release . The applicant appealed .

On DATE ORG amended the first - instance judgment in favour of the applicant by reducing the sentence of imprisonment to DATE .

On DATE the applicant was arrested on suspicion of acts of extortion committed at DATE .

On DATE ORG ordered that the applicant be detained on remand until DATE . The court considered that the evidence obtained so far in the investigation , in particular through the testimony of witnesses , revealed a great likelihood that the applicant had committed the offence with which he had been charged . It also pointed to the severity of the anticipated penalty and the risk that the applicant would go into hiding and attempt to induce witnesses and the victim to change their testimonies .

On DATE the applicant requested to be released or to have his detention replaced by a more lenient preventive measure . On CARDINAL DATE ORG ( Sąd Wojewódzki ) upheld the decision of DATE .

On DATE ORG prolonged the applicant ’s detention until DATE , referring to the necessity to carry out certain investigative measures .

On DATE ORG lodged with ORG a bill of indictment against the applicant and CARDINAL co - accused persons . The prosecutor asked the trial court to hear CARDINAL witnesses .

On DATE the President of ORG fixed the dates of the hearings for DATE . On DATE the applicant ’s lawyer requested the trial court to postpone the hearing scheduled for DATE , since on that date he had to attend another hearing .

At the hearing held on DATE the court heard the co - accused PERSON .- D. Subsequently , the latter ’s lawyer resigned , obliging the court to adjourn the hearing until DATE .

At the hearing of DATE the trial court heard CARDINAL of the co - accused and some witnesses . Subsequently , ORG decided that the charges brought in the case should be characterised as armed robbery and that it did not have jurisdiction to hear the case due to the gravity of the charges . Accordingly , the case was transmitted to ORG , sitting as a court of first - instance , and registered under no . II K CARDINAL on DATE .

On DATE the applicant filed an application for release . On DATE ORG dismissed the application . It relied on the great likelihood that the applicant had committed the offence at issue . ORG emphasised the severity of the penalty likely to be imposed on the applicant . It further referred to the need to ensure the proper conduct of the proceedings , which concerned CARDINAL co - accused persons . The court rejected as irrelevant the applicant ’s argument that his detention in the present case “ duplicated ” the detention order made in the first set of proceedings . Lastly , the court considered that there were no circumstances which would justify the termination of the applicant ’s detention pursuant to LAW .

On DATE ORG refused to join case no . II K CARDINAL/CARDINAL ( the first set of proceedings ) to the present one . It considered that the CARDINAL co - accused persons were different in each case and that the applicant was the only accused person to face charges in both sets of proceedings .

The court held hearings on CARDINAL and DATE . On DATE the applicant again requested his release . On the following day the applicant was released but continued to be detained in the framework of the first set of proceedings .

On DATE the trial court held a hearing and delivered a judgment . It sentenced the applicant to one DATE ’s imprisonment . The judgment became final on DATE .

On DATE , upon the applicant ’s request , ORG issued a cumulative judgment ( wyrok łączny ) sentencing the applicant to a cumulative penalty of DATE and CARDINAL months’ imprisonment ( PERSON łączna ) for the convictions contained in the judgments of CARDINAL DATE ( delivered in the course of the first set of proceedings ) and of DATE ( delivered in the course of the second set of proceedings ) . The applicant appealed . On DATE the ORG ( Sąd Apelacyjny ) upheld the judgment .

At the material time the domestic provisions governing detention on remand were contained in LAW of DATE , which is no longer in force as it was repealed and replaced by LAW DATE , which entered into force on DATE .

The DATE Code of Criminal Procedure listed detention among the so - called “ preventive measures ” imposed by a prosecutor ( which also included , inter alia , bail and police supervision ) . After DATE ( that is , the date on which the PERSON of DATE on LAW to LAW and Other Criminal Statutes came into force ) detention on remand could be imposed , pursuant to LAW , only by a court .

Article CARDINAL of the Code of Criminal Procedure set out the general grounds for the imposition of preventive measures . That provision , as it stood at the relevant time , provided :

“ Preventive measures may be imposed in order to ensure the proper conduct of the proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL of the Code defined grounds for detention on remand . At the relevant time , that provision read :

“ Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused person will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or

( CARDINAL ) there is a reasonable risk that an accused person will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of the proceedings by any other unlawful means . ”

The DATE Code set out a margin of discretion for deciding whether to maintain a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the idea that detention on remand , the most severe among the preventive measures , should not be imposed if more lenient means were adequate .

Article CARDINAL § CARDINAL provided :

“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied if the basis therefor has ceased to exist or if new circumstances have arisen which justify ending a given measure or replacing it by a more or less severe one . ”

Article CARDINAL stated :

“ Detention on remand shall be imposed only when it is mandatory ; it shall not be imposed if bail or police supervision , or both , are considered adequate . ”

Finally , Article CARDINAL provided :

“ If there are no special reasons to the contrary , detention on remand shall be ended , in particular , if :

( CARDINAL ) it may seriously jeopardise the life or health of the accused , or

( CARDINAL ) it would entail excessively burdensome effects for the accused or his family . ”

Article CARDINAL of the DATE Code , in the version applicable at the material time , stated , in so far as relevant :

“ An accused may at any time apply to have a preventive measure quashed or altered . ... ”

Until DATE , i.e. the date on which the relevant provisions of the Law of DATE on LAW to LAW and Other Criminal Statutes entered into force , the law did not set any time - limits for detention on remand in court proceedings ; it did so only for the investigation stage .

Article CARDINAL(CARDINAL ) of DATE , in the version applicable after DATE , provided , in so far as relevant :

“ The whole period of detention on remand until DATE on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences [ offences for the commission of which a person was liable to a sentence of a statutory minimum of PERCENT imprisonment ] this period may not exceed DATE . ”

At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court . Since DATE the courts have been and are bound by the maximum statutory time - limits for which detention on remand can be imposed during the entire course of the proceedings . However , at the material time , there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order , or that this event itself resulted in detention DATE which had originally been prolonged by a court for a fixed period at the investigation stage – being continued either for an unlimited period or until a first - instance judgment was given . Nor was there any case - law to that effect . Nevertheless , according to domestic practice , once a bill of indictment had been lodged with the court competent to deal with the case , detention was assumed to be prolonged pending trial even in the absence of any further judicial decision .

It was only on DATE that ORG , referring to the historical background of the amended criminal legislation , mentioned the practice of keeping an accused person in detention under the bill of indictment . It did so in a ruling on the interpretation of LAW . That ruling related to the LAW as amended with effect from DATE , where LAW as amended ) set out maximum time - limits for detention on remand not only at the investigation stage but at the whole pre - trial stage . In its ORG no . I ORG CARDINAL/CARDINAL ORG replied DATE in the affirmative – to the question of whether , after the lodging of a bill of indictment with the competent court , that court was obliged to issue a decision prolonging the detention on remand which had , meanwhile , exceeded the period fixed ( or prolonged ) at the investigation stage . The relevant parts of the resolution read as follows :

“ Under the provisions of LAW which applied before [ CARDINAL DATE , when ] the amendment of DATE took effect , an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in LAW . However , it did not emerge explicitly from Article QUANTITY ( CARDINAL ) of the LAW that , at the investigation stage , a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last . It was deemed to be obvious that , when prolonging detention at the investigation stage , both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision . It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings .

Comparing the old legislation with the present one leads [ this ORG ] to the conclusion that the legislator , when amending the LAW in DATE , simply extended [ the scope of ] the rules applicable to continuing and prolonging detention on remand DATE which had previously applied only at the investigation stage DATE to the phase of court proceedings .

Before the amendment , the legislation was based on the idea that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court . Now the starting - point is that a suspect ( and an accused person ) should not be detained indefinitely , as long as a first - instance judgment is not rendered .

Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time - limit [ on this measure ] . For this reason , the court concerned had no interest in [ knowing ] until when detention had been prolonged under the last decision [ ; ] detention could continue because ‘ detention of limited ORG had become ‘ detention of unlimited ORG . There was therefore only a need to ascertain whether there were grounds for continuing detention under LAW . ”

In its further ORG no . I ORG CARDINAL of DATE , ORG confirmed that :

“ If the case in which detention on remand was ordered has been referred to a court with a bill of indictment and the period of detention previously fixed has expired , the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter . ”

Referring to its ruling of DATE , it also stressed that :

“ ... the ratio legis of the amendments to the criminal legislation is based on the concept that a suspect ( accused person ) should in no case be detained indefinitely until the first - instance judgment is rendered in his case ...

It should be noted that , from the point of view of procedural safeguards for an accused person , what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings , but the total period of his detention and whether his detention and its length are subject to review . If there is such a review at the investigation stage ( LAW and CARDINAL ) , there is no reason why there should not be one at the stage of the court proceedings ... ”


Violation of Art. 6-1;Struck out as regards Art. 13;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in ORG .

On DATE the applicant sued a medical institution for damages before ORG .

On DATE ORG sent the action to the defendant for comments .

DATE and DATE ORG held several hearings . On DATE the applicant challenged the judge and requested that the case be transferred to a different court .

On DATE the ORG found that the ORG judges were not disqualified .

On DATE ORG heard the parties and decided to obtain an expert opinion .

An expert was appointed on DATE . On DATE a different expert was asked to submit the opinion as the first expert was abroad . As the second expert did not proceed with the expert ’s report , ORG appointed a third one on DATE . The latter informed the court that he was not specialised in the relevant field . A different expert was therefore appointed on DATE . He submitted an opinion on DATE .

On DATE the applicant sought to extend her claim . ORG did not grant her request . It further decided to hear several witnesses .

NORP On DATE the applicant challenged the ORG judges . ORG judges made a statement concerning this request in DATE . The applicant ’s request for their exclusion was submitted to ORG on DATE . ORG dismissed the request on DATE .

Subsequently the ORG sought to obtain evidence as suggested by the applicant . In this context CARDINAL witnesses living in GPE were to be heard .

On DATE ORG granted the applicant ’s claim in part . The applicant appealed .

On DATE the vice - president of the ORG informed the applicant that her appeal had not yet been decided upon due to the heavy workload of the court .

On DATE the ORG quashed the first instance judgment .

On DATE ORG allowed the applicant to extend her claim . It adjourned the case with a view to taking further evidence .

On DATE ORG asked a court in GPE ( GPE ) to hear a witness .

On DATE the applicant challenged the judge of ORG . On DATE ORG in Prešov refused to exclude ORG judge .

On DATE ORG in GPE submitted the requested evidence to ORG in GPE .

At a hearing held on DATE the applicant was acquainted with the evidence which ORG had obtained . The applicant requested that a new expert opinion should be obtained . The case was adjourned .

On DATE the applicant informed the ORG that the proceedings were still pending before ORG in GPE .

On DATE the applicant complained to ORG about the length of the proceedings .

On DATE ORG found that the applicant ’s right to a hearing without unjustified delay had been violated . The decision stated that the case was not particularly complex and that the applicant had not contributed to the length of the proceedings in a significant manner . Undue delays in the proceedings before ORG had occurred DATE and DATE , between CARDINAL DATE and CARDINAL DATE as well as DATE and DATE . Furthermore , ORG had not acted in an appropriate manner when the defendant had failed to submit required information in time and when the expert appointed on DATE had remained inactive for DATE .

At that time the Constitutional Court lacked power to provide redress to the applicant ( see , for example , PERSON v. GPE , no . CARDINAL , § § DATE , DATE ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE .

In DATE ORG ( Rat der PERSON ) granted the applicants permission to build a house on QUANTITY of public land . On DATE the house - owners’ right of use ( dingliches Nutzungsrecht ) was registered in the land register .

On DATE the applicants requested the sale of the property by GPE ( “ GPE ) in accordance with LAW ( Volkskammer ) on ORG .

On DATE the City was registered as the owner of the land in the land register .

On DATE the City and the applicants agreed on the terms of the sale of the property before a notary public . The parties agreed on the purchase price of MONEY ( DEM DATE ( ORG ) ) , corresponding to the value of the land ( Bodenwert ) in DATE , in accordance with the GPE ’s practice regarding requests for sale made prior to CARDINAL DATE by those who had legally built their houses on public land . The value of the land was estimated at ORG ( ORG ) in DATE .

The sale could only take effect once approved by the supervisory administrative body , as required by LAW ( see “ Relevant domestic law and practice ” below ) , and on DATE the ORG requested that the sale be approved by ORG , represented by ORG ( Regierungspräsidium GPE – “ the ORG ” ) . On DATE the City informed ORG that the difference between the purchase price and the value of the land would not be accounted for in the GPE ’s budget . On DATE ORG refused to approve the sale . ORG noted that a municipality was entitled to sell land below the market price in order to further the acquisition of private property in accordance with LAW ) , point ( CARDINAL ) , of LAW ( Sächsische Gemeindeordnung – see “ Relevant domestic law and practice ” below ) , but , referring to a decree of ORG of DATE , found that a sale in the present case would have an adverse effect on the municipal budget .

On DATE ORG dismissed an objection by the applicants .

On DATE ORG ( Verwaltungsgericht ) ordered that the sale of the property be approved , noting that in accordance with LAW ) , point ( CARDINAL ) , of FAC taken in conjunction with section CARDINAL(CARDINAL ) and section CARDINAL ) of LAW ( Sachenrechtsbereinigungsgesetz – see “ Relevant domestic law and practice ” below ) , the sale price should be set at CARDINAL the value of the land but reasonable reductions might be granted in appropriate circumstances .

On DATE the ORG ( Oberverwaltungsgericht ) reversed that decision and dismissed the ORG claim , holding that the refusal to approve the sale had been lawful as the conditions of section CARDINAL(CARDINAL ) , point ( CARDINAL ) , of FAC had not been met . The applicants had no right to have the sale approved in view of ORG approval of similar sales prior to the decree of CARDINAL DATE ; only prior lawful administrative actions could give rise to a right to be treated alike , not approvals of contracts in violation of section CARDINAL of GPE . The court noted that the applicants could either buy the property for CARDINAL of the value of the land or reach an agreement with the City on another reasonable reduction of the purchase price ; therefore the core of their property rights had not been impaired .

On DATE ORG refused leave to appeal on points of law because the matter was not of fundamental importance and the lower courts had not committed procedural errors .

On DATE ORG refused to accept the ORG constitutional complaint for examination ORG ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

Section CARDINAL of GPE provides , inter alia :

“ ( CARDINAL ) A municipality may sell assets if it does not need the assets to fulfil its obligations and if the sale does not conflict with the interests of general welfare . Assets shall be sold for their full value . The municipality may grant reasonable reductions on the purchase price of freehold apartments and real property on the basis of social considerations to further the acquisition of private property .

( CARDINAL ) Legal transactions by which the municipality undertakes

NORP to sell real property or similar rights ... require the approval of the supervisory administrative body . ”

Section CARDINAL of GPE provides that legal transactions that require approval have no legal effect until approved ; if the approval is refused , the legal transactions are void ab initio .

Section CARDINAL of LAW provides , inter alia , that the owner of a house that has been legally built on public property may sue the owner of the land with a view to obtaining acceptance of an offer to purchase it . Section CARDINAL ) of LAW provides that the purchase price must be CARDINAL of the value of the land .

Sections CARDINAL(CARDINAL ) and ( CARDINAL)(a ) of the LAW on the Identification of the Allocation of Former Public Property provide that municipalities may sell real property that is still listed as public property in the land register without it being subject to restrictions on the sale of municipal real property .


Violation of Art. 10;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

Radio ORG is a non - profit - making association whose registered address is in GPE . On CARDINAL DATE it applied to the ORG and ORG ( Post- und Telegraphendirektion ) for GPE , GPE and ORG for a licence to set up and operate a radio station and for allocation of a frequency on which it could broadcast programmes to the GPE region .

On DATE ORG refused the above application . Relying on LAW guaranteeing the independence of broadcasting ( “ LAW ” , see paragraph CARDINAL below ) , which provided that activities of this type had to be authorised by federal legislation , it noted that such legislation had been enacted only in respect of ORG ( Österreichischer Rundfunk , “ the ORG ” ) . Consequently , only the latter could operate in the field concerned .

On DATE the ORG and ORG ( Generaldirektion für die Post- PERSON ) dismissed an appeal by the applicant . It observed in particular that in its judgment of DATE ORG Verfassungsgerichtshof ) had held that the ORG ’s monopoly was compatible with LAW ( see paragraph CARDINAL below ) .

Radio ORG then applied to ORG , arguing in particular that ORG decision was in breach of LAW . It accepted that LAW to require the licensing of broadcasting enterprises , but submitted that since no such procedure had been laid down in NORP law everyone had the right to broadcast freely .

On DATE ORG refused to consider the application , holding that , regard being had to its judgment of DATE , this did not have sufficient prospects of success .

After the entry into force , on DATE , of ORG ( see paragraph CARDINAL below ) , the applicant association lodged CARDINAL applications on CARDINAL DATE in each of which it asked to be allocated one of the CARDINAL frequencies reserved for private broadcasters in the GPE region . On DATE ORG ( Regionalradiobehörde ) gave CARDINAL separate decisions refusing these applications on the ground that , regard being had to the requirements of section CARDINAL ( CARDINAL ) of LAW , ORG programmes were too specialised for it to be able to give them priority over those of other applicants . ORG then appealed against these decisions to ORG .

As several other appeals of the same type had been lodged with it , ORG began proceedings of its own motion , on DATE , to review the constitutionality of section CARDINAL ( CARDINAL ) to ( CARDINAL ) and ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . On DATE it annulled , with immediate effect , these provisions and the frequency allocation plan based on them ( see paragraph CARDINAL below ) , thereby invalidating the decisions concerning the appellants taken by ORG . ORG held that the annulled provisions contravened the principle of legality ( PERSON ) , since the conditions for their application were not indicated with sufficient precision . As a result , it continued , there was no longer any legal basis on which operating licences could be granted to radio stations , so that a situation incompatible with the LAW had been brought into being .

According to ORG ) of CARDINAL DATE , “ the right to set up and operate telecommunications installations ( Fernmeldeanlagen ) is vested exclusively in the federal authorities ( GPE ) ” ( section CARDINAL ( CARDINAL ) ) . The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations ( section CARDINAL ( CARDINAL ) ) . No licence is required in certain circumstances , including the setting up of an installation within the confines of a private property ( section CARDINAL ) .

The Ministerial Ordinance of CARDINAL DATE concerning private telecommunications installations ( PERSON für PERSON über PERSON ) lays down , inter alia , the conditions for setting up and operating private telecommunications installations subject to federal supervision . According to the case - law , it can not however constitute the legal basis for the grant of licences .

According to section CARDINAL of LAW of DATE guaranteeing the independence of broadcasting ( GPE über die GPE der ORG ) ,

Broadcasting shall be governed by more detailed rules to be set out in a federal law . Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting , the diversity of opinions , balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph CARDINAL .

Broadcasting within the meaning of paragraph CARDINAL shall be a public service . ”

The Law of DATE on ORG ( Bundesgesetz über die PERSON ORG ) established ORG with the status of an autonomous public - law corporation .

It is under a duty to provide comprehensive news coverage of major political , economic , cultural and sporting events ; to this end , it has to broadcast , in compliance with the requirements of objectivity and diversity of views , in particular current affairs , news reports , commentaries and critical opinions ( section CARDINAL ( CARDINAL ) ( CARDINAL ) ) , and to do so via CARDINAL television channels and CARDINAL radio stations , CARDINAL of which must be a regional station ( section CARDINAL ) . Broadcasting time must be allocated to the political parties represented in the national parliament and to representative associations ( section CARDINAL ( CARDINAL ) ) .

A supervisory board ( ORG ) rules on all disputes concerning the application of the above - mentioned law which fall outside the jurisdiction of an administrative authority or court ( sections CARDINAL and DATE ) . It is composed of CARDINAL independent members , including CARDINAL judges , appointed for terms of DATE by the President of the Republic on the proposal of the federal government .

In a judgment of CARDINAL DATE ORG held that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph CARDINAL in fine and paragraph CARDINAL of Article CARDINAL of the Convention ( Gesetzesvorbehalt ) . LAW had instituted a system which made all activity of this type subject to the grant of a licence by the federal legislature . This system was intended to ensure objectivity and diversity of opinions ( ORG ) , and would be ineffective if it were possible for everybody to obtain the requisite authorisation . As matters stood , the right to broadcast was restricted to the ORG , as no implementing legislation had been enacted in addition to the law governing that organisation ( see ORG and Others v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL–CARDINAL , § CARDINAL ) .

The Regional Broadcasting Law of DATE ( NORP ) , which came into force on DATE , governs the licensing of local and regional radio stations . Before the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) section CARDINAL provided :

“ CARDINAL . In agreement with ORG ( Hauptausschuß des Nationalrates ) , the Federal Minister for ORG and Transport shall , by means of an ordinance ( the frequency allocation plan PERSON ) , allocate terrestrial sound radio broadcasting capacities ( drahtlose terrestrische GPE für GPE ) , defined in terms of frequency and broadcasting location , to ORG and radio stations ( Programmveranstalter ) .

NORP In making the above allocation , the Federal Minister for Economic Affairs and Transport shall ensure :

( CARDINAL ) that there is no impediment to performance by ORG of the tasks imposed on it by law in the field of sound radio broadcasts ;

( CARDINAL ) that radio stations are able to reach the widest possible audience within any CARDINAL Land ; and

( CARDINAL ) that attention is paid to the needs of local sound radio .

In the above - mentioned frequency allocation plan the Federal Minister for ORG and Transport shall , after consulting the ORG concerned and in agreement with ORG , assign in accordance with paragraph CARDINAL , sub - paragraphs CARDINAL and CARDINAL , each of the frequencies and broadcasting locations available for use by radio stations to an individual licence to broadcast within the Länder . In so doing he shall have particular regard to local topography , population density , technical parameters and GPE ’s international obligations in the field of telecommunications .

NORP In urgent individual cases the telecommunications authorities ( PERSON ) may take decisions at variance with the frequency allocation plan , provided that within DATE the plan is modified accordingly in conformity with paragraph CARDINAL . ”

Section CARDINAL requires the programmes of private radio stations to respect the principles of objectivity and diversity of opinion and to reflect the public , cultural and economic life of the region in which they are broadcast . Section CARDINAL instituted regional broadcasting authorities ( Regional - radiobehörde ) . Under section QUANTITY ( CARDINAL ) , where a number of private broadcasters satisfying the statutory conditions apply for a licence , the regional broadcasting authority must give priority to the CARDINAL which comes closest to achieving the objectives laid down in the PERSON , for example by reflecting a greater diversity of opinion .

On DATE ORG declared paragraphs CARDINAL and CARDINAL of section CARDINAL null and void ; accordingly , the frequency allocation plan based on them was likewise void .

On CARDINAL DATE the amendments replacing the annulled provisions came into force .


Preliminary objections rejected (incompatibility ratione personae;non-exhaustion of domestic remedies);Preliminary objection joined to merits (incompatibility ratione materiae);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE , GPE .

The realities of the international situation following the end of the Second World War prevented GPE from asserting any claims arising out of persecution of its citizens , including as forced labourers , by NORP GPE .

In the period immediately following the Second World War , GPE did not conclude a specific agreement with GPE regarding the issue of reparations . It relied on LAW of DATE , concluded by the governments of GPE , GPE and GPE and ORG .

On DATE ORG on LOC ( LAW ) was concluded by GPE , GPE , GPE and GPE . Under LAW , consideration of claims arising out of the Second World War by countries that had been at war with , or were occupied by , GPE , and by nationals of such countries , against the PERSON or agencies of the PERSON was deferred until the final settlement of the issue of reparations .

On DATE , DATE after a similar declaration by the government of GPE , the government of GPE declared that it renounced any claims against GPE in respect of war reparations as of DATE . In a declaration of CARDINAL DATE made at ORG , the government of GPE clarified that the renouncement of DATE did not affect individual claims arising out of unlawful acts .

It was only after the conclusion of LAW on the Final Settlement with respect to GPE of CARDINAL DATE ( the socalled TwoPlusFour LAW ) and the conclusion of CARDINAL treaties between GPE and GPE in DATE and DATE that the issue of persons persecuted by the NORP regime was addressed in the bilateral agreement of DATE ( see paragraph CARDINAL below ) .

The applicant was subjected to forced labour during the Second World War on the territory of occupied GPE . In DATE he worked on a NORP farm near GPE . Subsequently , from DATE to DATE , the applicant worked as a forest labourer in GPE . Finally , he was relocated to an area situated QUANTITY from his habitual place of residence , where he was required to reinforce NORP defences from DATE to DATE . In DATE the applicant reached DATE .

On DATE the applicant applied to the NORP - German Reconciliation Foundation ( PERSON ORG Pojednanie – “ the ORG ” ) for compensation on account of his forced labour from the funds contributed by the government of GPE under LAW of DATE ( see paragraphs QUANTITY below ) . On DATE ORG ( PERSON ) , having regard to a document issued by the social security authorities , established that the applicant had been subjected to forced labour from DATE to DATE and awarded him MONEY ( ORG ) in compensation . This payment was granted within the framework of the “ primary payments scheme ” ( wypłaty podstawowe ) . The issue of deportation was apparently not addressed in the decision . The applicant ’s subsequent appeal against this decision was dismissed by ORG ( GPE ) on an unspecified date . ORG found that the amount of payment granted to the applicant had been calculated correctly .

On an unspecified date in DATE the ORG ’s management board ( ORG ) adopted ORG no . CARDINAL , which introduced a deportation requirement for claimants who had been forced labourers . The resolution also provided that those claimants who had been subjected to forced labour as children DATE could be granted compensation regardless of whether the deportation condition was met ( see paragraph CARDINAL below ) .

On DATE , following the adoption of Resolution no . CARDINAL , ORG granted the applicant a supplementary payment of ORG . The decision on supplementary payment related to the applicant ’s forced labour as a child under the age of CARDINAL ( from DATE ) . Thus , the period of forced labour from DATE was not taken into account because the deportation condition as defined in ORG no . CARDINAL had not been met . The period of forced labour from DATE was not acknowledged in the absence of appropriate evidence .

On DATE the applicant appealed against that decision to ORG , challenging the amount of compensation granted . It appears that the applicant complained that the period of his forced labour DATE and DATE , carried out in particularly harsh conditions connected with his relocation , was not taken into account by ORG . Having received no reply to his appeal , the applicant made further enquiries with the ORG on DATE and DATE .

In the meantime , the applicant had lodged a complaint with the Ombudsman regarding the ORG ’s inactivity . On DATE the ORG informed the applicant that , regrettably , he was not in a position to question the lawfulness of resolutions adopted by ORG or any other foundation . ORG was established in accordance with LAW of DATE . In this particular case , the ORG operated under the supervision of the Minister of ORG . However , the ORG could not interfere with the ORG ’s actions as long as they complied with its statute and other legal regulations . The ORG also referred to ORG decision of DATE , which refused to recognise the NORP - German Reconciliation Foundation as a public administration body ( see paragraphs DATE below ) .

By a letter of DATE , the President of the ORG ’s ORG informed the applicant that , under the ORG ’s internal regulations in force at the material time ( ORG no . CARDINAL ) , only forced labourers deported to ORG or to an area occupied by ORG ( with the exception of the territory of occupied GPE ) were eligible for compensation . Finally , the applicant was informed that no further appeal lay against the decision of ORG .

Nevertheless , on an unspecified later date , the applicant lodged a complaint against the decision of ORG of DATE with ORG ( PERSON ) . It appears that in his complaint the applicant also challenged Resolution no . CARDINAL .

On DATE ORG dismissed the applicant ’s complaint , considering it inadmissible in law . It relied on Decision no . OPS CARDINAL/CARDINAL , adopted by ORG on DATE ( see paragraph CARDINAL below ) .

In a letter dated DATE , the Minister of ORG informed the applicant that , in order for a forced labourer to be granted compensation , it was necessary for him to comply with the deportation requirement as specified in Resolution no . CARDINAL of the ORG ’s management board .

On DATE the applicant applied to the ORG for compensation under the scheme for slave and forced labourers ( the second compensation scheme ) , established under LAW of DATE , the NORP Law of DATE on the creation of the PERSON , ORG ( “ the LAW ” ) and the subsequent Agreement of DATE between the PERSON , ORG and ORG ( see paragraph CARDINAL below ) . On DATE the ORG rejected his request on the ground that he did not satisfy the deportation requirement set out in section CARDINAL(CARDINAL)CARDINAL of ORG . It appears that the applicant did not appeal against the decision of ORG of DATE . The applicant ’s subsequent complaints to the Minister of ORG were to no avail .

In a letter dated DATE , the ORG ’s management board , referring to the ORG ’s admissibility decision in the present case , informed the applicant that its ORG no . CARDINAL of CARDINAL DATE concerning interpretation of the term “ deportation ” had never restricted or violated his rights to receive a benefit , for the following reasons :

( a ) the applicant did not comply with the deportation requirement specified in ORG no . CARDINAL of CARDINAL DATE , under which deportation was defined as “ deportation outside one ’s place of permanent residence into the territory of ORG combined with performing labour for the benefit of the Third Reich ” ;

( b ) the granting of compensation within the framework of the so - called primary payments for the period DATE had been in breach of the ORG ’s regulations , namely ORG no . CARDINAL ;

( c ) NORP thus , the applicant should have received compensation solely for the period up to DATE , namely , for the period until his CARDINALth birthday , since he had never complied with the deportation requirement as specified in ORG no . CARDINAL ;

( d ) the ORG ’s error committed in respect of the primary payment was rectified within the framework of the supplementary payments , and thus it could not be said that the applicant ’s rights were restricted or breached .

The applicant was further informed that , since he had resided and performed forced labour on the territory of GPE which , known as GPE at the time , was annexed by ORG in DATE , the obligation to perform forced labour in the area of the applicant ’s residence ( his first workplace was located QUANTITY from his place of residence and DATE was in his habitual place of residence ) could not be considered as deportation with a view to performing forced labour . Similarly , the obligation to reinforce NORP defences on NORP territories annexed by ORG was not considered “ deportation ” under ORG no . CARDINAL . Lastly , the applicant was informed that in cases such as his , when the ORG had made an error in favour of a claimant , the consequences of that error were borne by the ORG , which had never claimed reimbursement of the overpaid amounts .

DATE , which was adopted by ORG on DATE and came into force on DATE , states :

“ GPE shall respect international law binding upon it . ”

LAW reads :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ”

LAW of the LAW , entitled “ Sources of Law ” , refers to the relationship between domestic law and international treaties .

LAW provides :

“ The sources of the universally binding law of GPE shall be : the LAW , statutes , ratified international agreements , and regulations . ”

The relevant parts of LAW state :

“ CARDINAL . After promulgation thereof in LAW [ PERSON ] , a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .

An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement can not be reconciled with the provisions of such statutes . ”

LAW of the LAW contains provisions related to the judiciary .

Article CARDINAL § CARDINAL of the LAW provides :

“ The administration of justice in GPE shall be implemented by ORG , the ordinary courts , administrative courts and military courts . ”

Article CARDINAL of the LAW states :

“ The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts . ”

The relevant part of Article CARDINAL provides :

“ ORG and other administrative courts shall exercise , to the extent specified by statute , control over the performance of public administration . ”

On DATE the governments of GPE and GPE concluded an agreement on the basis of which the NORP government declared that , prompted by humanitarian considerations , it was prepared to contribute MONEY ( ORG ) for the benefit of the NORP - German Reconciliation Foundation . The ORG was to be established by the government of GPE with a view to providing financial assistance to victims of NORP persecution who had suffered serious damage . The ORG was to determine the necessary criteria for the granting of compensation , having regard to serious damage to the GPE health and to their current financial difficulties . The government of GPE declared that it would not pursue further individual claims by NORP citizens arising out of NORP persecution . Both governments indicated that their agreement should not amount to limitation of the rights of citizens of either country .

Subsequently , on DATE , the Minister PERSON ORG ( Minister PERSON Urzędu PERSON ) , acting as a founder , made a declaration before the ORG notary on the establishment of the ORG . He declared that , acting on the initiative of the government of GPE and on behalf of ORG , he was establishing the Polish - German Reconciliation Foundation . The ORG ’s aim was to provide assistance to the victims of NORP persecution and to undertake other activities for the benefit of those persons . The Minister also declared that the ORG ’s capital fund consisted of ORG CARDINAL , contributed by the NORP government to the NORP government .

The Polish - German Reconciliation Foundation was established in accordance with LAW of DATE , which regulates the activities of foundations in GPE . The Act stipulates that individuals and legal persons may establish foundations in order to carry out socially and economically beneficial goals which comply with the basic interests of GPE . In principle , supervision of a foundation ’s activities is exercised by the regional governor ( Wojewoda ) or the competent minister . These supervisory authorities may apply to a court to establish whether a foundation ’s actions have complied with its aim , its statute and the general legislation ( section CARDINAL ) . The competent minister or the regional governor may also apply to the courts to quash a resolution adopted by a foundation if it is evidently incompatible with its aim , its statute or the general legislation ( section CARDINAL ) .

The statute of the Polish - German Reconciliation Foundation was drafted and subsequently registered by ORG on DATE . On DATE the ORG began its activities . The founder could amend the statute and decide whether the ORG was to go into liquidation . According to paragraph CARDINAL of the statute , the ORG ’s primary aim was to render direct financial assistance to those victims of NORP persecution whose health had been seriously damaged and who were in financial difficulties as a result of that persecution . The function of supervisory authority was exercised in respect of the ORG by ORG ( Minister Pracy i Polityki Socjalnej ) .

The ORG ’s main bodies were the supervisory board ( Rada Nadzorcza ) , composed of CARDINAL members , and the management board ( PERSON ) , composed of CARDINAL members . The members of those bodies were appointed and dismissed by the founder , namely , the Minister PERSON ORG , who exercised full control in this respect . The CARDINAL other bodies of the ORG were ORG ( PERSON ) , whose members were appointed by the ORG ’s management board , and ORG GPE ) , whose members were appointed by the ORG ’s supervisory board .

The ORG assessed the substantive and procedural aspects of requests for financial assistance on the basis of its statute and the regulations drawn up by the management board and adopted by the supervisory board . ORG was responsible for reaching decisions on whether to grant financial assistance to victims . Appeals against ORG decisions could be lodged with ORG . The latter ’s decisions were to be final .

The financial assistance granted by the ORG from the funds contributed by the government of ORG in DATE was paid in CARDINAL parts : a primary payment and a supplementary payment , the latter deriving from the interest accrued on the original contribution from the NORP government . On DATE the disbursement of all those compensation payments was terminated on the basis of ORG no . CARDINAL of the ORG ’s supervisory board as the relevant funds were depleted .

On an unspecified date in DATE the ORG ’s management board adopted ORG no . CARDINAL which introduced a deportation requirement . The ORG specified that only those forced labourers who had been deported from their place of residence to the territory of ORG or to territories occupied by GPE were eligible for compensation . It stipulated that the deportation condition was not fulfilled by those persons who had been subjected to forced labour on the territory of GPE within that country ’s borders of DATE . In addition , ORG no . CARDINAL laid down a separate eligibility criterion to the effect that those who had been subjected to forced labour as children DATE could be granted compensation regardless of whether the deportation condition was met .

On DATE the Minister of ORG ( Minister PERSON ) assumed the function of founder and supervisory authority of the ORG .

The facts relating to the second compensation scheme and the applicable legal provisions , which are not directly relevant for the merits stage of the present case , are set out in paragraphs CARDINAL of the admissibility decision ( see PERSON GPE DATE . ) , no . CARDINAL , ORG CARDINAL-IV ) .

In a decision of CARDINAL DATE ( no . I SA DATE ) , ORG stated that :

“ A foundation is not a civic organisation and therefore , in accordance with LAW , it is not possible to delegate to a foundation power to determine individual cases by way of administrative decisions . ”

Consequently , a foundation ’s decisions can not be appealed against to ORG .

In a decision of CARDINAL DATE ( no . I ACr CARDINAL/CARDINAL ) , ORG ( Sąd Apelacyjny ) held that :

“ The ORG ’s aims in respect of its capital fund , which are determined in the ORG ’s statute , do not create rights for other persons vis - à - vis the capital fund . Lack of legal protection for the entitlements of particular persons to receive benefit from the ORG implies that a claim raised in this respect is not a civil one , and accordingly the jurisdiction of the [ civil ] courts is excluded . ”

In DATE the ORG referred to ORG a question of law ( pytanie prawne ) , as to whether decisions given by the bodies of the ORG could be appealed against to ORG and , if not , whether they could be subjected to judicial review in civil proceedings . The ORG relied , inter alia , on LAW . In particular , the ORG asked ORG to consider the following issues :

( a ) whether there was any legal provision excluding judicial review if a dispute arose between an individual and the ORG ;

( b ) whether the ORG could be regarded as a body performing functions in the area of public administration , given that it served public aims with the use of public resources ;

( c ) whether LAW and LAW ( CARDINAL ) of LAW constituted sufficient grounds to conclude that it could not perform any functions in the area of public administration ;

( d ) whether the assessment of facts and law established by the ORG also had a bearing on the claimant ’s relationship with the Director of the Veterans and ORG ;

( e ) NORP whether the decision to award or refuse to award compensation was not a purely technical act , since it was always preceded by a legal assessment of an individual case .

On DATE ORG ( Sąd Najwyższy ) adopted Decision no . III ZP CARDINAL/CARDINAL , holding that , since administrative functions could only be delegated by a statute , which was not the case with regard to the Polish - German Reconciliation Foundation , its decisions did not meet the requirements of an administrative decision and thus could not be challenged before ORG . However , ORG refused to give a definite answer to the question whether the ORG ’s decisions were subject to judicial review in civil proceedings . It nevertheless observed that entitlement to receive a benefit from the ORG did not fall within the scope of civil law , and thus could not be raised before a civil court . In exceptional cases , such as where the claimant ’s eligibility was established but the benefit had not been paid , a claim could arise under civil law .

ORG considered that the fact that the ORG ’s aims were the same as the aims which were to be achieved by the public authorities would not justify the conclusion that ORG performed functions in the area of public administration . Similarly , the manner in which the ORG had been established and the nature of its tasks , common DATE in ORG view – to all foundations , could not support the above conclusion .

In a decision of DATE ( no . V SAB MONEY ) , ORG ruled :

“ The Polish - German Reconciliation Foundation does not perform any functions in the area of public administration , in that there is no legal provision giving it the competence to do so . It follows that , in view of the lack of statutory authority , decisions granting or refusing to grant compensation to a victim of the NORP regime are not administrative decisions and can not be challenged before ORG . ”

In a decision of DATE ( no . III CZP CARDINAL/CARDINAL ) , ORG ruled that a plaintiff ’s claim seeking recognition of the fact that he had been subjected to forced labour during the Second World War could not be examined by a ( civil ) court . ORG considered that the awarding of compensation by the ORG under the second compensation scheme did not create an individual right of a contractual nature . The ORG decided whether the eligibility conditions for the granting of payment were established . Thus , according to ORG , the ORG was not a debtor vis - à - vis the claimants , but acted as a decision - making body . The ORG ’s decisions merely created a legal basis for the awarding of compensation . The above situation did not , therefore , resemble civil - law relations .

In a decision of DATE ( no . OPS MONEY ) , ORG confirmed the earlier case - law to the effect that it did not have jurisdiction to review the decisions of the ORG and observed :

“ The Polish - German Reconciliation Foundation , which awards benefits to the victims of NORP persecution using the financial resources allocated to it by foreign entities , does not perform functions in the area of public administration . Thus , the source of the entitlement to receive an award from the ORG does not stem from acts of the public administration . ”

It further observed :

“ There is no doubt that the Agreement of DATE concluded between the NORP and NORP governments , which was not ratified , as well as subsequent acts [ starting with ORG and LAW ] concerning grants of financial assistance by the ORG on account of NORP persecution do not fulfil the criteria which would make it possible to classify them as sources of binding NORP law . No administrative - law relation arises between a claimant and the ORG on the basis of the aforementioned acts , and consequently the ORG is not an organ of public administration established by law to determine cases in the sphere of public administration . ”