CASE OF SERGHIDES AND CHRISTOFOROU v. CYPRUS

Violation of P1-1;Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 with regard to access to court;Just satisfaction reserved

In DATE , the applicant acquired freehold ownership of plot CARDINAL , GPE , with a frontage on FAC , which is now called FAC . She was also issued with ORG by ORG , Registration No . BCARDINAL , dated DATE . The surface area of plot CARDINAL was QUANTITY . On DATE the applicant leased plot CARDINAL to ORG On DATE ORG , in its capacity as the representative of the applicant , applied to the municipality of GPE and obtained a building permit for the construction of a petrol - station , a carwash and other ancillary structures . In DATE the lease was renewed until DATE , with the option to extend until DATE . In paragraph CARDINAL of the third page of the lease , the rented property was described as being “ situated at FAC on plot CARDINAL ” . Paragraph CARDINAL(e ) of the lease provided that the landlord authorised the tenant as her agent to sign all applications concerning the plants and works which ORG would construct , reconstruct , operate and continue to operate on the plot , and generally to do all things necessary on her behalf .

On DATE , Notice No . CARDINAL was published in ORG . CARDINAL , pursuant to the Streets and Buildings Regulation Law , PERSON . CARDINAL , by ORG of GPE , aimed at widening Grivas Digenis Avenue .

According to the text of paragraph CARDINAL of the Notice , the affected plots were the following : all plots with frontage on a certain specified part of FAC ( that is , the part of FAC between FAC and Th . FAC ) and certain plots with frontage on both the Avenue and other side roads . ( The numbers of these “ corner plots ” were expressly set out in the Notice . )

NORP However , the Notice did not mention that plot CARDINAL was part of the land taken for the widening of the street .

The Notice provided that any objection against the widening scheme should be raised within DATE of the publication of the LAW in ORG .

On DATE , ORG filed with the Municipality an application for a building permit to make minor alterations to a station built in DATE , the pumps’ shelter and an oil ditch . The distance of the new construction from the newly aligned Grivas Digenis Avenue was QUANTITY , the distance required by Regulation CARDINAL(CARDINAL ) of the Streets and Buildings Regulations .

Upon receipt of the application , the LOC addressed to the applicant , through her duly authorised agent , a letter dated DATE . It was expressly provided in that letter that the plans of the street - widening scheme relating to PERSON should be taken into account . A copy of the official plan which showed the effect of the street - widening scheme was attached to the letter .

According to the Government neither the applicant nor ORG protested .

On DATE the building permit was issued . By letter of CARDINAL DATE , GPE requested ORG to register as part of the public domain , by virtue of section CARDINAL ( CARDINAL ) of the Streets and Buildings Regulation Law , PERSON . DATE , the part of plot CARDINAL affected by the street - widening scheme . At some time DATE , ORG of GPE registered the disputed area of QUANTITY as part of FAC .

According to the applicant , ORG and the applicant ’s title were amended without anyone notifying her . In ORG , the ceding of the disputed area to the road was described as follows : “ By purchase from the Government after compulsory acquisition + By grant . A public road . Fees : gratis ” . The applicant alleges that she was never notified about this amendment of the ORG which contains a false declaration . Moreover , ORG was never notified , as no mention of the expropriation was made in the conditions attached to the building permit which had been granted . Even the letter sent to ORG on DATE only stated that the street - widening scheme would have to be taken into consideration , giving no specific indication that the disputed area would be compulsorily ceded to the road .

Although the street - widening plan was made in DATE , the actual widening was not effected until DATE . On DATE Notice of Acquisition No . CARDINAL was published in ORG . DATE . Again , however , the applicant ’s plot did not appear to be affected . According to the Government , this was due to the fact that the part of the plot affected by the street - widening scheme had already become part of the street through the earlier procedure , pursuant to sections CARDINAL and CARDINAL of the Streets and Buildings Regulation Law , PERSON . DATE .

The applicant claims that the first time she became aware of the situation was after receiving a Government Survey Plan on DATE which she had requested from ORG for the purpose of filing an objection to taxes imposed on some of her immovable property .

As the original DATE registration certificate for plot CARDINAL was lost , the applicant requested a further official copy , which she received on DATE . However , the certificate had been changed in relation to the surface area of the plot and contained the declaration – “ ORG : By virtue of purchase by ORG and by virtue of cession to the public road ” .

On DATE the applicant lodged an application with ORG , sitting at first instance , against both GPE and GPE . She asked the court to declare ORG Office decision to take away QUANTITY of her land , as well as the decision to declare that piece of land to be part of a public road , void and without any legal effect . The applicant invoked LAW ) and ( CARDINAL ) of LAW ( see Relevant Law below ) .

On DATE the application was fixed for directions before ORG on DATE . On DATE the Republic filed its opposition . On DATE the court directed the Municipality to file its opposition by DATE . On DATE as well as on DATE and CARDINAL DATE , the ORG applied for consecutive extensions . The applicant ’s lawyer stated on each occasion that he did not object . On DATE the ORG filed its opposition . On DATE the applicant filed her observations . On DATE and CARDINAL DATE GPE applied for an extension of the time - limit for filing their observations in reply . These observations were filed on DATE and CARDINAL DATE . On DATE and CARDINAL DATE the applicant ’s lawyer was granted CARDINAL further extensions for submitting additional observations .

On DATE the ORG reserved its decision , which was not rendered until DATE .

On DATE the applicant transferred the ownership of plot CARDINAL to her children by way of donation . According to the relevant Declaration of Transfer submitted by the Government , she transferred the totality of her legal title in plot CARDINAL without any reservation whatsoever . This fact was not brought to the knowledge of ORG by the applicant .

According to the applicant , as she was seriously ill , she transferred the ownership of QUANTITY of land out of the total QUANTITY which she had originally held in DATE , with a CARDINAL share to each to her CARDINAL children PERSON and PERSON . The remaining QUANTITY which she did not transfer is the disputed area . The entry of this transfer in ORG appears to have been made on DATE .

On DATE , ORG rejected the application as out of time , it having been filed CARDINAL seventy - five days after Notice No . CARDINAL had been published in ORG . It held that the letter of CARDINAL DATE to ORG from the GPE constituted sufficient notice . It further held that the acts and/or actions of GPE and GPE as regards the expropriation of QUANTITY of the applicant ’s land were not executory administrative acts , and thus could not be annulled by virtue of LAW . It concluded that the street - widening scheme did not amount to a deprivation of property but only to a restriction on property having regard to the total surface area of the property and the affected land .

On DATE , the applicant filed an appeal on points of law with ORG .

On DATE the parties were notified by the Registrar that the appeal was fixed for hearing on DATE . On that date the lawyer for the Municipality applied for an adjournment of the hearing , to which the applicant ’s lawyer did not object . On DATE ORG adjourned the hearing for want of time . On DATE the hearing commenced but was not completed . On CARDINAL DATE then on DATE the hearing was further adjourned upon applications made by the lawyers of the applicant and the ORG respectively . The hearing was completed on DATE and judgment was reserved .

On DATE ORG dismissed the appeal on a procedural point , without examining the merits of the case . It held that , as the applicant had transferred her property , she no longer had locus standi in respect of the land taken by the Municipality in DATE .

In neither of the procedures before ORG did the applicant ever contend that she had had no notice of the publication of the street - widening scheme that affected her property .

The relevant Articles of the LAW provide as follows :

“ ( CARDINAL ) Every person , alone or jointly with others , has the right to acquire , own , possess , enjoy or dispose of any movable or immovable property and has the right to respect for such a right . The right of the LOC to underground water , minerals and antiquities is reserved .

( CARDINAL ) No deprivation or restriction or limitation of any such right shall be made except as provided in this LAW .

( CARDINAL ) Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals , or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others , may be imposed by law on the exercise of such a right .

Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property ; in case of disagreement , such compensation is to be determined by a civil court .

( CARDINAL ) Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic , or by a municipal corporation or by a commune for educational , religious , charitable or sporting institutions , bodies or establishments within its competence and only from the persons belonging to its respective community , or by a public corporation or a public utility body on which such a right has been conferred by law and only

( a ) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within DATE from DATE coming into operation of this LAW ;

( b ) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition ;

( c ) upon payment in cash and in advance of just and equitable compensation , to be determined in case of disagreement by a civil court . ”

“ The legislative , executive and judicial authorities of the Republic shall be bound to secure , within the limits of their respective competence , the efficient application of the provisions of this part . ”

“ ( CARDINAL ) ORG shall have exclusive jurisdiction to adjudicate finally on a claim made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such an organ or authority or person .

( CARDINAL ) Such a claim may be made by a person whose existing legitimate interest , which he has either as a person or by virtue of being a member of a community , is adversely and directly affected by such a decision or act or omission .

( CARDINAL ) Such a claim shall be made within DATE of the date when the decision or act was published or not published and , in case of an omission , when it came to the knowledge of the claimant . ”

The relevant Sections of this law provide as follows :

“ In this Law

alteration , addition or repair , when used with reference to buildings , means any structural alteration , addition or repair whereby any dimension of such building is altered ...

building means any construction , whether of stone , concrete , mud , iron , wood or other material and includes any pit , foundation , wall , roof , chimney , veranda , balcony , cornice or projection or part of a building , or anything affixed thereto , or any wall , earth bank , fence , paling or other construction enclosing or delimiting or intended to enclose or delimit any land or space . ”

“ No person shall

( a ) lay out or construct a street ;

( b ) erect , or suffer or allow to be erected a building or demolish or reconstruct or make any alteration , addition or repair to any existing building , or suffer or allow any such demolition or construction or any such alteration , addition or repair to be made ;

( c ) lay out or divide any land ... into separate sites ,

( d ) divide any building ... into separate tenements ;

( e ) start to do any of works or matters herein - before set out

without a permit first obtained from the appropriate authority as provided in subsection ( CARDINAL ) . ”

“ ( CARDINAL ) Notwithstanding any provision contained in this PERSON , a competent authority may , with the object of widening or straightening any street , prepare or have prepared plans showing the width of such a street and the direction that it shall take .

( CARDINAL ) When any plans have been prepared under subsection ( CARDINAL ) , the competent authority shall deposit such plans in its office and shall also have a notice published in the ORG and in CARDINAL or more local newspapers and deposited in its office , open to inspection by the public at all reasonable times , for a period of DATE from the date of the publication of the notice in the LOC .

( CARDINAL ) At the expiry of the period set out in subsection ( CARDINAL ) , the plans shall , subject to any decision of ORG after a claim is filed as provided for in section CARDINAL of this law , become binding on the competent authority and on all persons affected thereby and no permit shall be issued by the authority save in accordance with such plans . ”

“ ( CARDINAL ) Where a permit is granted by a competent authority and such permit entails the new alignment of any street , in accordance with any plan which has become binding under LAW of this law , any space between such alignment and the old alignment , which is left over when a permit is granted , shall become part of that street without the payment by the authority of any compensation whatsoever :

( CARDINAL ) When a permit is granted under subsection ( CARDINAL ) , the ORG shall , upon application by any interested party , cause the necessary amendments to the relevant registrations to be effected and the amended registration shall be held final notwithstanding that any certificate relating thereto remains unaltered . ”

On DATE ORG held that section CARDINAL of the Streets and Buildings Regulation Law , PERSON . DATE , was not contrary to LAW , because it resulted only in the imposition of restrictions or limitations on the right of property and , particularly , on the use of such property for the purposes of building development , which were absolutely necessary in the interests of town and country planning within the meaning of LAW ( CARDINAL ) of LAW ( PERSON and Others v. the LOC of GPE and Others judgment of DATE ) .

By a judgment of DATE in the case of PERSON and Others v. GPE , ORG ruled that no claim for damages could be introduced when the disputed area was PERCENT of the original area . This judgment was subsequently confirmed in the case of the Attorney General v. PERSON ( Civil Appeal No . DATE , judgment of CARDINAL DATE ) .

As regards section CARDINAL(CARDINAL ) , the Government affirm that the publication of such a scheme does not result in the acquisition by the competent authority of the part of the property affected thereby . It merely imposes restrictions and limitations upon future plans for the development of such property . If an application is made for the issue of a building permit in relation to such property , the permit must be in accordance with the plans of the streetwidening scheme . The provisions of LAW come into play in the event of the issue of a building permit . Then the affected part of the property becomes part of the street .

The Government contend that it follows that in the present case the alleged expropriation of QUANTITY of the applicant ’s land was not brought about by any administrative act or decision of the competent authority but by operation of law . The relevant statutory provisions operated automatically as soon as the building permit was issued , that is on DATE . The procedure that followed for the registration of the area was not an executory administrative act but merely an act of implementation because the said area had already become part of the street on the date on which the permit was issued .

The relevant sections of this PERSON provide as follows :

“ In the present PERSON ‘ GPE means the person entitled to be registered as the owner of any immovable property whether he is actually registered or not . ”

“ No transfer or voluntary charge affecting any immovable property shall be made in LOC by any person unless he is the registered owner of such property ... ”

“ The area of land covered by a registration of title to immovable property shall be the area of the plot to which the registration relates in any Government Survey Plan or any plan made to scale by the Director :

Provided that where the registration can not be related to any such plan , the area of land concerned shall be that to which the holder of the title may be entitled by adverse possession , purchase or inheritance . ”

“ From and after DATE coming into operation of this PERSON , every registration made and every certificate issued in connection with any transfer of land or building , or any devolution thereof by inheritance , shall be deemed to include all immovable property connected therewith to which the transferor or deceased was entitled . ”

Section CARDINAL of this law provides as follows :

“ Where any property is required to be compulsorily acquired for the purpose of a public benefit , the acquiring authority shall cause a notice of the intended acquisition in the form set out in the Schedule hereto ... to be published in the official ORG , containing a description of the property intended to be acquired , stating clearly the purpose for which it is required and the reasons for the acquisition , and calling upon any person interested in such property to submit to such authority within a specified time , being not DATE from the date of the publication thereof , any objection which he may wish to raise to such acquisition ... ”

The relevant regulations provide as follows :

“ ( a ) Judgments are delivered as soon as possible after the end of the proceedings and can not be reserved for a period longer than DATE .

( b ) If the ORG fails to comply with the provisions of sub - paragraph ( a ) , any concerned party may apply to ORG according to LAW . ”

“ If a decision which has been reserved ... [ or ] continues to be reserved for a period which exceeds DATE , the case is ipso jure fixed before ORG for the delivery of the order which is necessary in the circumstances , pursuant to LAW . ”

“ In considering the application lodged according to LAW , ORG may ...

( b ) make an order for the issue of the reserved judgment by a specific date and , in case of non - compliance , order a re - hearing by another court . ”

Regulation CARDINAL(CARDINAL ) provides as follows :

“ The respondent may within DATE from the service of the application , file with the registry and serve at the applicant ’s address for service an opposition thereto ... ”


The applicant , Mr PERSON , is a NORP national who lives in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

The applicant was born on DATE in GPE where he spent his childhood and youth . He speaks NORP and NORP .

The applicant ’s parents , CARDINAL siblings , his paternal grandmother and CARDINAL uncles also all live in GPE . DATE , the applicant has been on holiday for a longer period in GPE , where his mother ’s family and CARDINAL paternal aunts live . The applicant ’s family in GPE owns a house in GPE with several apartments , which are used by the family upon their visits .

It appears that as a child , he went for DATE to a private school which was attended mainly by pupils with a NORP background . The applicant left school after DATE schooling . He does not have any training or higher education and has not had any significant affiliation to the labour market .

By a ORG judgment of DATE the applicant was convicted of assault , committed jointly with another perpetrator , and was sentenced to CARDINAL days’ imprisonment suspended on probation .

By a ORG judgment of DATE the applicant was convicted , inter alia , of assault , committed jointly with another perpetrator , and was sentenced to CARDINAL days’ imprisonment .

By a ORG judgment of DATE the applicant was convicted of robbery and , inter alia , assault , committed jointly with several other perpetrators . He was sentenced to CARDINAL months’ imprisonment , of which DATE were suspended .

On DATE the applicant and his cousin were arrested and charged , inter alia , with attempted robbery , aggravated assault and manslaughter . They were detained on remand the following day .

On DATE they were convicted by ORG of Eastern Denmark ( PERSON ) sitting with a jury . It found it established that on DATE , when the applicant was DATE and his cousin DATE , they had jointly threatened a young man , an NORP tourist , with a knife in order to steal his money . Although the young man was stabbed by the applicant , he first managed to flee . Shortly thereafter the applicant and his cousin ran him down , beat him , and the applicant stabbed him several times , the injuries inflicted resulting in the victim ’s death .

In the same judgment of ORG of GPE , the applicant was also convicted of attempted burglary and violation of LAW committed on CARDINAL DATE ; and of aggravated assault , robbery and attempted extortion committed on DATE , when the applicant was DATE and detained on remand . The court found it established , inter alia , that the applicant jointly with an inmate had threatened a third inmate with a screw - driver in order to steal his watch and make him provide them with an amount equal to LAW from outside the prison . Moreover , they had beaten and kicked him , inter alia , on the head with a stranglehold on him , resulting in the victim losing consciousness several times and being severely injured .

According to a psychiatric report of DATE , the applicant was not mentally ill but he did have character flaws such as limited empathy . Since puberty he had abused hashish .

In its judgment , ORG of ORG sentenced the applicant to ten DATE imprisonment . In addition he was expelled from GPE for an indefinite time to be implemented after the sentence had been served .

The applicant ’s cousin , who was also convicted of additional offences to attempted robbery , aggravated assault and manslaughter , was sentenced to CARDINAL years’ imprisonment and expulsion from GPE for an indefinite time .

Upon appeal , ORG ( Højesteret ) confirmed the sentences on DATE . With regard to the order to expel the applicant and his cousin , the majority of CARDINAL judges held as follows :

[ The applicant ] was born in GPE , whereas [ his cousin ] arrived as a threeyearold . They have spent their youth and had their schooling in this country where also their parents and siblings live . Thus , they have a strong connection with the NORP society and to people living here . At the same time , however , they have a [ significant ] connection with GPE and NORP culture . They speak NORP and DATE they have visited GPE where they have a big family . Both have been previously convicted , and have now been sentenced to longer prison terms , inter alia , for manslaughter , attempted robbery and aggravated assault . Having taken all considerations into account , in our view neither the elements mentioned in section CARDINAL , subsection CARDINAL of LAW ( PERSON ) nor LAW speak decisively against [ their ] expulsion . Accordingly , we vote [ for their expulsion ] .

The minority of CARDINAL judge held as follows :

In my view , when taking all the elements mentioned in section CARDINAL , subsection CARDINAL of LAW into account , the connection which the applicant and [ his cousin ] have with GPE and NORP culture , is not of such an extent and character that it has decisive weight when compared to their strong connection to the NORP society and people living here . In my opinion , the latter speaks significantly against expelling the applicant [ and his cousin ] from GPE . Accordingly , notwithstanding the serious crimes committed , I vote [ against their expulsion ] .

The relevant provision of LAW ( PERSON ) applicable at the time read as follows :

“ An alien who has lawfully stayed in GPE for more than DATE , and an alien issued with a residence permit under sections DATE may be expelled only if :

( i ) the alien is sentenced to minimum DATE imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration .

( vi ) the alien is sentenced , pursuant to ... Articles ... [ manslaughter , aggravated assault , robbery , etc ] of LAW to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature . ”

NORP In deciding on expulsion , regard must be had to the question whether expulsion must be assumed to be particularly burdensome , in particular because of :

( i ) the alien ’s ties with the NORP community , including whether the alien came to GPE in his childhood or DATE ;

( ii ) the duration of the alien ’s stay in GPE ;

( iii ) the alien ’s age , health , and other personal circumstances ;

( iv ) the alien ’s ties with persons living in GPE ;

( v ) the consequences of the expulsion for the alien ’s close relatives living in GPE ;

( vi ) the alien ’s slight or non - existent ties with his country of origin or any other country in which he may be expected to take up residence ; and

( vii ) the risk that , in cases other that those mentioned in section CARDINAL(CARDINAL ) and ( CARDINAL ) , the alien will be ill - treated in his country of origin or any other country in which he may be expected to take up residence .

An alien may be expelled pursuant to LAW to ( vi ) unless the circumstances mentioned in subsection CARDINAL above constitute a decisive argument against doing so .


Not necessary to rule on the preliminary objection (non-exhaustion);No violation of Art. 8

The first applicant was born in DATE and lived in GPE until DATE .

NORP In DATE he left GPE in order to complete his chemistry studies in GPE . In DATE he went to GPE in order to obtain a doctorate in chemistry . From DATE he worked as a university assistant at ORG . In DATE he moved to GPE , where CARDINAL of his brothers were living and where he worked in CARDINAL of his brother 's enterprises . Subsequently , he worked in his own kiosk . In DATE he started training with a view to becoming an expert in logistics .

NORP In DATE the competent authorities granted the first applicant a temporary residence permit , which was prolonged first until DATE and then until DATE .

On DATE the first applicant married the second applicant . His residence permit was thus prolonged until DATE .

In DATE a daughter was born to the applicants .

On DATE ORG ( ORG ) convicted the first applicant of aggravated theft and sentenced him to CARDINAL DATE fines of MONEY .

On DATE the applicant was arrested and subsequently detained on remand .

On DATE ORG ( Landgericht ) convicted the first applicant of rape . According to the facts established by ORG , on DATE he had forced a university student at knifepoint to engage in sexual contact with him . It sentenced him to DATE and DATE imprisonment . In its reasoning , ORG considered in particular the fact that the first applicant had for the most part confessed his crime , that he had used the knife only once at the beginning of the act and that he had lived an orderly life in spite of his difficulties in finding employment . ORG took further into account that the crime had to a large part been committed owing to the first applicant 's considerable intoxication and his growing frustration emanating from the lack of sexual contact with his wife . However , having regard to the fact that the first applicant had performed CARDINAL acts of sexual coercion , that the incident had lasted for an overall duration of TIME and that he had constantly used force against his victim by exerting pressure with his arm and his hand , respectively , these factors precluded further mitigation of sentence .

Following his conviction , the first applicant served his sentence in FAC .

On DATE the psychological expert P. submitted an expert opinion to the prison authorities . He considered that the first applicant had acknowledged his crime and was willing to change , in particular with regard to his alcohol consumption and his sexual conduct . There was no indication of sexual deviance . The expert further noted that the first applicant 's upbringing in a traditional NORP family had led to a very restricted concept of masculinity , which he had not been able to revise . His relationship with the second applicant had been very burdened by the fact that the second applicant had refused sexual contact with him following the birth of their daughter and that he had not been able to talk to her about this . The expert further noted that there had been other situations prior to the rape where the applicant had harassed women , although such situations had not led to the commission of a sexual offence . He concluded that the first applicant was open - minded and self - critical . He was able to comprehend the circumstances which had led to the commission of the crime and to search for ways of overcoming his problems . Provided the first applicant engaged in pertinent couple therapy and managed to give up his illusionary concept of masculinity , a positive legal prognosis could be attributed to him .

According to the records of the regular conferences on the planning of sentence execution ( Vollzugsplankonferenz ) , the first applicant attempted to instigate couple therapy . In DATE , however , it was noted that the applicant 's wife had expressed that she was experiencing great difficulties with her own situation , which she preferred to solve on her own before dealing with her husband 's problems . She was uncertain whether she wished to continue the relationship .

From DATE until DATE the applicant attended meetings of ORG .

In the record dated DATE the prison authorities noted that , in DATE , the second applicant had had a conversation with a prison social worker , who gained the impression that she was not interested in meeting her husband and that she could not cope with the situation . The second applicant had not made use of her visiting rights for DATE . In DATE the second applicant informed the social service by telephone that she agreed to meet her husband in spite of her doubts .

The participants in the conference of DATE noted that the first applicant had been undergoing psychotherapy . They had , however , not gained the impression that he had made sufficient progress , as he was continuing to exert pressure on his wife and was trying to control her . It was further noted that the applicant 's conduct during his detention was impeccable .

In the record dated DATE it was noted that the first applicant had been granted leave to visit his wife and daughter on CARDINAL occasions since DATE . The staff accompanying the visits considered that the state of the applicants ' marriage was still unclear . While there had been a certain rapprochement between the couple , the spouses still did not communicate much with each other , but rather via the child . The second applicant was not opposed to her husband 's continuing to visit their daughter . It still appeared , however , that she wanted a separation . The participants in the conference further consulted CARDINAL psychological experts , including PERSON , who considered that the applicant had not resolved his problems as regards his partnership and social contact with females . All CARDINAL considered , however , that the danger of recidivism was low .

On DATE ORG ( PERSON ) of GPE ordered the first applicant 's expulsion to GPE . PERSON to GPE was announced upon his release from prison . Although the applicant was in possession of a valid residence permit and married to a NORP national , they considered that his conviction for a serious crime made it necessary to expel him under sections CARDINAL § CARDINAL and QUANTITY § CARDINAL of LAW , see Relevant domestic law below ) . The circumstances of the present case left no room for any discretion on the part of the NORP authorities . The circumstances leading to his last conviction proved that he possessed a considerable amount of criminal energy . As a recidivist ( Wiederholungstäter ) , there was a risk that the first applicant would commit further criminal acts in the future . The first applicant 's assumption that his victim had willingly engaged in sexual contact with him gave rise to doubts as to whether he had fully comprehended and absorbed the extent of his crime .

According to the authorities , the long period spent in GPE could not preclude his expulsion , as his criminal offences had shown that he had so far not adapted to the living conditions in GPE . Neither his marriage to a NORP national , nor the fact that they had a child , could lead to a different conclusion in view of the seriousness of his crime .

On DATE ORG ( PERSON ) rejected an objection lodged by the applicant .

On DATE ORG ( Verwaltungsgericht ) confirmed the deportation order of DATE . Having regard to the reasons given for the first applicant 's criminal conviction , it found that given the seriousness of his crime , his expulsion was necessary in the interest of general deterrence ( ORG ) . It also considered the expulsion justified in this particular case . ORG did not view the first applicant as a recidivist , as his prior conviction for theft could not lead to the conclusion that he would continue to commit sexual offences . However , although the psychological expert PERSON had given the first applicant a positive social prognosis , a positive legal prognosis could only be given on condition that the first applicant engaged in successful therapy for couples and took leave of his “ illusory concept of masculinity ” . At the relevant time in DATE when ORG gave its decision on the applicant 's objection , these requirements had not been met .

Despite the first applicant 's high professional qualifications and the fact that he had otherwise lived an orderly life , the CARDINAL criminal offences committed in GPE attested to the fact that he had not succeeded in fully integrating himself into NORP society . This finding was also based on ORG 's statement that there had been other situations prior to the rape where the first applicant had harassed women , even if such situations had not led to the commission of a sexual offence . If the first applicant did not learn how to deal adequately with problems and conflicts through pertinent therapy , ORG could not rule out the possibility that he might again commit criminal acts .

ORG further pointed out that , according to the legal practice in GPE , the existence of family ties alone could not preclude the first applicant 's expulsion . In any event , at the time of the expulsion decision , there were severe doubts as to the stability of the applicants ' marriage . It was not certain to what extent the second applicant knew about the details of the crime committed by her husband . The relationship between the spouses was considered to be problematic . The second applicant had also not reacted to an invitation to state her views on her husband 's expulsion . The first applicant had not substantiated why it was necessary for his wife and child that he remain in GPE , in particular as his wife financially supported the family and had , already prior to the first applicant 's imprisonment , arranged for their daughter to be cared for by a third person while she was at work .

The daughter 's interest in her father 's remaining in GPE could also not be considered as more important than the public interest in his expulsion . The right to have contact with his daughter was only protected in so far as that right had been exercised in the past . Despite regular meetings between the applicant and his daughter , which were apparently being continued , there was no indication that the daughter depended on these contacts . Having regard to the long periods of time which had elapsed between the visits and the fact that the daughter had not lived with the applicant since his arrest DATE , it appeared that they had a relationship based merely on occasional encounters ( GPE ) . Under these circumstances , the applicant had failed to substantiate that his ties with his daughter amounted to a strong parent - child relationship that would warrant his remaining in GPE .

On CARDINAL DATE ORG ( Oberverwaltungsgericht ) upheld that decision and rejected the first applicant 's request for leave to appeal .

On DATE ORG refused to accept the applicant 's complaint for adjudication .

On DATE the first applicant lodged a request for an interim order with the aim of obtaining a temporary suspension of deportation ( PERSON ) . On DATE ORG dismissed this request , stating firstly that his expulsion was not imminent as the first applicant was still serving his prison sentence . In any event , the applicant 's request was unfounded . Referring to its own judgment of CARDINAL DATE , which had been upheld by ORG , ORG held that the deportation order was in accordance with the law and that there was no cause for a suspension of the deportation . On DATE the first applicant lodged an appeal . Following consultation of the case file , the applicant 's counsel withdrew this appeal on DATE .

On DATE ORG , sitting as a post - sentencing chamber ( PERSON ) , ordered the first applicant 's release on probation . Based on psychological expert reports and on the submissions of the prison authorities , ORG concluded that if the first applicant continued to abstain from abuse of alcohol , the risk that he might commit further crimes was comparatively low . It assumed that DATE spent in prison may have contributed to a complete cure from his former addiction and considered that he had comprehended the extent of his crime . While admitting that his relationship with the second applicant had probably deteriorated during the time spent in prison , ORG considered it noteworthy that the couple had so far not divorced , nor had either of the spouses petitioned for a divorce .

Following the first applicant 's release from prison on DATE the applicants lived together with their child . According to the applicants ' submissions , they started to follow couple therapy in DATE . On DATE GPE , on ORG request , issued a passport substitute document in order to allow the first applicant 's deportation . After that the first applicant left his family and went into hiding .

On DATE the applicant filed a request with ORG to set a time - limit on the exclusion from NORP territory , which was a legal consequence of his expulsion .

On DATE the applicant was arrested and on QUANTITY September CARDINAL he was deported to GPE .

On DATE ORG of Hanover limited the applicant 's exclusion from the NORP territory to DATE from the time of deportation , that is until DATE . The applicant 's request for an earlier time - limit was rejected . The applicant was further granted the option to apply for a fresh examination of his request in DATE .

In DATE the first applicant re - entered NORP territory . On DATE he was arrested on suspicion of theft accompanied by violence committed under the influence of alcohol . According to police investigations , he had reached into a cash register in a bar in order to procure the means to acquire more alcohol . The applicant remained in detention pending deportation to GPE .

By a letter of CARDINAL DATE the applicants ' counsel informed the ORG that the second applicant wished to withdraw her complaint .

The rights of entry and residence for foreigners were , at the relevant time , governed by LAW ) .

Under section CARDINAL § CARDINAL , no . CARDINAL , of LAW , a foreigner was to be deported when he had been sentenced to DATE imprisonment for having wilfully committed CARDINAL or more criminal offences . If he was married to a NORP citizen , a foreigner could only be deported if serious reasons of public safety and order justified his expulsion ( section CARDINAL § CARDINAL ) . This was generally the case where section CARDINAL § CARDINAL was applicable .

Under section CARDINAL § CARDINAL , a foreigner who had been deported was not permitted to re - enter NORP territory . A time - limit on the exclusion period was usually ( in der PERSON ) granted upon an application by the deportee .

Section CARDINAL § CARDINAL stipulated that a foreigner could not be deported if such deportation would not be authorised under LAW .

Under section CARDINAL § CARDINAL , a foreigner could be granted a temporary suspension of deportation ( PERSON ) for as long as there were legal or factual reasons making his deportation impossible .

The suspension of deportation did not affect the foreigner 's duty to leave the country . The time - limit for such a suspension could not exceed DATE , but it was renewable ( section QUANTITY ) .

Since DATE the entry and residence rights of foreigners have been governed by LAW ( Aufenthaltsgesetz ) .


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

A.

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

On DATE the applicant acquired a plot of land measuring QUANTITY . On DATE ORG decided to expropriate QUANTITY ( QUANTITY ) of the applicant 's land in order to construct FAC ( administrative act CARDINAL ) . On DATE QUANTITY ( QUANTITY ) were expropriated ( administrative act CARDINAL ) .

On DATE ORG of GPE offered the applicant QUANTITY by way of compensation . The applicant rejected this offer on DATE .

On DATE a second offer of QUANTITY was made to the applicant , which he rejected as well .

On DATE ORG referred the case of the applicant , together with other similar cases , to ORG ( FAC ) of GPE ( reference No . CARDINAL ) .

On DATE Mr. PERSON , a lawyer practising in GPE , declared before ORG that he would be representing the applicant in the proceedings . The applicant signed a power of attorney authorising PERSON to act on his behalf in the specific case .

On DATE Law CARDINAL/CARDINAL was enacted providing for the recalculation of compensation awarded in expropriation cases . On DATE an offer of QUANTITY was made to the applicant , which he accepted on DATE . The applicant was not , however , paid this sum , as the Republic lodged , on an unspecified date , an appeal with ORG ( PERSON ) challenging the applicability of the new law in cases of expropriation pending before the courts .

On DATE ORG considered that the provisions of CARDINAL did not apply in cases of expropriation pending before the courts . Following this decision , the applicant was informed on DATE that the offer made to him on DATE had no legal basis and was null and void . Consequently , ORG resumed its examination of case No . CARDINAL .

According to the Government , the proceedings before ORG followed the course which is described below .

On DATE PERSON was summoned to appear before ORG on behalf of the applicant at a hearing on DATE . On DATE Mr. PERSON appeared before ORG on behalf of the applicant , replacing PERSON ORG decided to adjourn the hearing until DATE .

On DATE PERSON entered a claim on behalf of the applicant . At the hearing of CARDINAL DATE the applicant was not represented . PERSON was , however , present in his capacity as representative of certain other persons claiming compensation . ORG decided to adjourn until DATE .

At the hearing of CARDINAL DATE the applicant was represented by Mr. PERSON , acting on behalf of GPE ORG decided to adjourn the examination of the case , insofar as it concerned the applicant and certain other persons , until DATE . At the hearing of DATE the applicant was again represented by PERSON , acting on behalf of PERSON ORG decided to adjourn the case until DATE . At the hearing of CARDINAL DATE the applicant was represented by MONEY ORG decided to adjourn the case until DATE .

On DATE ORG held another hearing at which the applicant was not represented . PERSON was , however , present in his capacity as representative of certain other persons claiming compensation . ORG decided to adjourn the examination of the case , insofar as it concerned the applicant , until DATE .

At the hearing of CARDINAL DATE the applicant was not represented . ORG heard the case in his absence and decided to award him QUANTITY by way of compensation . On DATE ORG issued an order for the payment of this sum in favour of the applicant .

On DATE the applicant lodged an application with ORG . He complained of a violation of his rights under LAW No . CARDINAL in that he had not been paid adequate compensation for the expropriation of his land , and also of a violation of LAW since he had not been heard in the determination of his civil rights and obligations .

In the proceedings before the ORG , the applicant claimed that he was unaware of these developments . In a letter addressed to the ORG dated DATE the applicant claimed that DATE after he had received the letter of CARDINAL DATE ( informing him of the outcome of the proceedings before ORG and of the resumption of the proceedings before ORG ) he went to ORG . There he met a former judge , whom he knew by sight and the name of whom he would disclose to the Commission later , showed him the letter of CARDINAL DATE and together they appeared before the PERSON who informed them that the case would be decided in GPE . The applicant also claimed that DATE after he had received the letter of CARDINAL DATE he visited ORG accompanied by a lawyer , Mr. PERSON , in order to be informed of the date of the determination of lawsuit No . CARDINAL . The reply he received was that the case was under investigation in GPE without explanation by which body .

The applicant stated that in DATE he assigned his case to a lawyer practising in GPE , Mr. PERSON DATE PERSON informed the applicant that he could not represent him in the particular case . Towards DATE the applicant allegedly received a cheque dated CARDINAL DATE for MONEY , with no covering letter , which he returned to ORG on DATE .

The applicant stated that in DATE he contacted the Attorney ORG , where he was informed that case No . CARDINAL had been heard and that he could no longer appeal against the decision of ORG .

On DATE the applicant wrote to ORG complaining that he had not been invited to participate in the proceedings before ORG . By letter of DATE ORG gave the applicant a detailed account of the history of the case . In the letter it is mentioned that the applicant was represented before ORG by a lawyer from GPE , Mr. GPE , who has the same surname as PERSON

Upon receipt of this letter , the applicant wrote on CARDINAL and CARDINAL DATE to ORG asking him to clarify his role in the proceedings . In his second letter the applicant refers to a telephone conversation during which an employee of ORG confirmed to the applicant that ORG did not know anything about the proceedings .

On DATE the Commission declared the application inadmissible for non exhaustion of domestic remedies . The Commission noted that although the applicant claimed that when he was informed of the court decision fixing the amount of compensation the time - limit for lodging an appeal had expired , he could have asked for an extension and that nothing had been submitted which could lead to the conclusion that such an application would have had no prospects of success .

On DATE the applicant invited ORG of GPE to grant him an extension of the time - limit to lodge an application under LAW of ORG in order to have the judgment of DATE of ORG set aside . He alleged that he was confused by all the correspondence exchanged with the competent authorities and thought that the proceedings before ORG were adjourned . As a result , he did not consider it appropriate to pursue the proceedings .

On DATE ORG dismissed the applicant ’s request on the ground that his submissions were unfounded . ORG noted that on DATE a lawyer , PERSON , had appeared before it on behalf of the applicant and that at the hearing of CARDINAL DATE the applicant had been represented by PERSON , acting on behalf of PERSON Furthermore , on CARDINAL DATE PERSON had entered a claim on behalf of the applicant . However , it transpired from TIME of the hearing of DATE that the applicant had not appeared before the court on that date but was represented by PERSON TIME did not specify whether this lawyer was from GPE or GPE . ORG concluded that the applicant had not shown any interest in the course of the proceedings until ORG delivered its judgment on DATE . Then for DATE he remained indifferent and lodged an application with ORG . DATE had elapsed between the judgment of CARDINAL DATE and the introduction of the application under examination by ORG .

The applicant appealed to ORG , but the appeal was dismissed on DATE . It found that ORG had exercised its unfettered discretion within the limits provided for by law .

B. Relevant domestic law and practice

Rule CARDINAL of the Compensation Assessment Tribunal Rules of DATE provides as follows :

" If ... any party to a reference does not appear at ( the ) time and place ( appointed for the hearing ) the President or the ORG may hear and determine the ... reference in his absence and may make such order as to costs as he or it thinks fit . "

Order CARDINAL Rule CARDINAL of the Civil Procedure Rules , which apply mutatis mutandis by virtue of section CARDINAL of ORG Law of DATE , provides as follows :

" Any judgment obtained where CARDINAL party does not appear at the trial may in a proper case be set aside by the ORG upon such terms as may seem fit , upon an application made within DATE after the trial . "

Order CARDINAL Rule CARDINAL of the Civil Procedure Rules further provides as follows :

" A Court ... shall have the power to extend ... the time - limits fixed by these rules , ... , upon such terms ( if any ) as the justice of the case may require . "

The courts enjoy unfettered discretion insofar as extensions of time - limits are concerned . This discretion is exercised in the light of the circumstances of each case and in the interests of justice . A case where the advocate has failed to appear at the trial , thus causing injustice to the case of his client , is a typical example of a case where the national court will find that the justice of the case requires an extension of the time - limit for filing an application under LAW CARDINAL . However , long delays in asking for an extension require satisfactory explanation .


The applicant was born in DATE and lives in GPE .

The applicant worked as an officer at a regional branch of ORG ( hereafter “ the old customs office ” of “ the GPE ” ) , an agency of ORG . Due to the structural reorganisation of ORG on DATE , he was released by an administrative order of CARDINAL DATE , together with some other people . This order noted that the discharged officers were to be transferred to another , newly established regional customs office ( “ the new customs office ” ) .

On DATE the applicant requested the ORG 's authorisation to take up his duties at the new customs office . No reply was forthcoming . For DATE , he complained on numerous occasions before various governmental agencies about the inability to continue his service .

In a letter of DATE , the ORG informed the applicant that , after its reorganisation on DATE , staff had been significantly reduced and , in so far as he had continuously been absent from the old customs office without authorisation , the administration had decided not to employ him any longer . The lawfulness of such a decision , the letter noted , was assured by the provisions of LAW ( “ the LC ” ) , the sole legislative act which regulated civil servants ' labour disputes at that time . The applicant was invited to visit the GPE 's human resources office , in order to obtain the order for his dismissal and the work log .

On DATE the applicant sued the ORG for unfair dismissal , requesting reinstatement to his position and compensation for loss of salary .

In a first instance judgment of DATE , LOC in GPE found in the applicant 's favour . However , in an appellate decision of DATE , ORG rejected his action as time - barred . The appellate court first noted that , in so far as LAW of DATE had not been enacted at the time of the applicant 's dismissal , only the provisions of the ORG had been applicable to the dispute . Given the fact that the applicant had continuously been complaining before various authorities , except for the courts , about his inability to pursue his duties as a customs officer , the appellate court found that he had been well aware of the alleged breach of his rights since his dismissal took effect in DATE . In such circumstances , it concluded that the applicant had failed to comply with the DATE time - limit for lodging an employment action , as required by LAW of the ORG .

NORP In DATE the applicant lodged a cassation claim , in which he called into question the appellate court 's assessment of the and certain evidence . It appears from the case file that the respondent ORG did not submit any reply to that claim .

On DATE ORG of ORG of GPE ( “ the Chamber ” ) at an oral hearing attended by the applicant , started the examination of the case but , due to the absence of the ORG 's representative , adjourned it . The ORG also decided to dispense with an oral hearing in the further proceedings .

On DATE the applicant , complaining about the absence of an oral hearing , requested the President of ORG to change the ORG 's composition . In a decision of DATE , the ORG dismissed this request as unsubstantiated .

In a decision of DATE , adopted under the written procedure , the ORG dismissed the applicant 's cassation claim . Having confirmed the appellate court 's interpretation of the ORG , it stated that it lacked jurisdiction to inquire into matters of fact , in so far as the applicant had not raised any “ additional and well - founded cassation argument ” ( Article CARDINAL § CARDINAL of the Code of Civil Procedure ) .

Pursuant to LAW , only the lawfulness of an appellate judgment could be challenged in a cassation claim . The disputed judgment could be found to be unlawful if the appellate court had wrongly applied or interpreted legislative provisions .

Article CARDINAL § CARDINAL ( f ) required the appellant to mention in his or her cassation claim those facts which supported the alleged breaches of procedural law if the cassation claim was calling into question not only substantive but also procedural legal provisions .

Article CARDINAL § CARDINAL

“ The cassation court shall review the [ disputed ] judgment only in so far as challenged in the cassation claim . The cassation court can not go beyond the facts referred to under LAW ( f ) and inquire of its own motion into other procedural breaches . ”

“ The cassation court shall take into account the party 's submissions only in so far as disclosed by the case file or the appellate judgment ; only the facts submitted under LAW ( f ) can be taken into account .

The establishment of the facts [ by the appellate court ] is binding on the [ cassation ] court , unless an additional and well - founded cassation argument has been raised . ”

“ In the event the cassation court finds it appropriate ... , it can decide the case without an oral hearing . The parties shall be notified of such a decision . ”

Article CARDINAL

“ The cassation court shall take a [ final ] decision itselfby the appellate court without procedural breaches and there is no need for additional fact finding . ”

Article CARDINAL § CARDINAL and CARDINAL

” If it is not possible for the cassation court to decide the case in accordance with LAW , it shall quash the appellate judgment and remit the case for a retrial .

If the cassation court quashes the disputed judgment because of the legal assessment , it shallhas to be collected further and what other procedural acts are to be conducted . ”

ORG dismissed the applicant 's complaint challenging LAW of the ORG , which provided for the possibility to dispense with an oral hearing in cassation proceedings .

ORG noted that , unlike an appellate court which established facts , the cassation court could only review the application of legal provisions . It could however examine , on the basis of ORG CARDINAL § CARDINAL ( f ) and CARDINAL § § CARDINAL of the ORG , the facts which have been explicitly raised by the appellant in relation to the alleged violations of procedural law .

Consequently , whilst the scope of the review was mostly limited to the assessment of the application of procedural and substantive law , ORG concluded that the right to an oral hearing in cassation proceedings was not absolute .

In its judgment of DATE in the case of “ NORP ” v. “ NORP ” ORG , ORG defined the notion of an “ additional and well - founded cassation argument ” ( LAW ORG ) , as follows :

“ ... ' An additional and well - founded cassation argument ' is ... a reference to those procedural breaches which , having been committed by the appellate court during the examination of the case , have resulted in an erroneous assessment of the matters of fact and/or the incorrect interpretation and application of substantive legal provisions . ”

The ORG regulated all types of private labour relations between employers , employees and labour unions . Pursuant to LAW , pending the adoption of LAW , the ORG was fully applicable to the civil service .

Pursuant to Article CARDINAL § CARDINAL of the ORG , the dismissed employee had the right to apply to a court with a reinstatement claim . Under LAW of the ORG , the limitation period for lodging such a claim was DATE and it started to run from the moment the employee concerned received the relevant order of dismissal .

LAW was enacted on DATE and became the lex specialis with regard to civil servants ' relations with the ORG , including labour disputes . The LAW did not have retroactive force .


Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicants , PERSON and her children , Ms PERSON Gorchilova and Mr PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON , of ORG .

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

In DATE the first applicant and her husband purchased from the GPE municipality a CARDINAL - room flat covering QUANTITY .

The property had belonged to a private person until the nationalisations carried out by the communist regime in GPE in DATE and the following DATE .

In DATE the heirs of the former pre - nationalisation owners brought proceedings against the first applicant and her husband under section CARDINAL of LAW .

In DATE the first applicant ’s husband passed away . The second and third applicants , being his heirs , became parties to the proceedings .

By judgment of DATE of ORG the applicants’ title was declared null and void with final effect on the ground that the DATE contract had not been signed by the mayor personally . It had been signed by another official of the municipality .

The proceedings continued as regards other alleged grounds for nullity but were eventually terminated on DATE as the plaintiffs did not maintain their claim in this respect .

The applicants vacated the flat in DATE . In DATE they were granted the tenancy of a CARDINAL - room municipal flat which needed renovation . In DATE the applicants purchased the flat at regulated prices below market value , as applicable for the sale of municipal flats to their tenants . They paid MONEY ( approximately EUR CARDINAL,CARDINAL ) .

On DATE the applicants filed a request for compensation bonds .

In DATE the applicants inquired about the examination of their request . On CARDINAL DATE the regional governor refused to grant it stating that it had been submitted outside the relevant DATE time - limit . The governor considered that the time - limit ran from DATE , the date of the final judgment of ORG .

Upon the applicant ’s appeal , on DATE ORG quashed the governor ’s refusal , accepting that the time - limit had run from DATE . In DATE a court - appointed expert submitted her report according to which the value of the applicants’ former flat , assessed in accordance with the applicable rules , was BGN CARDINAL ( the equivalent of approximately EUR CARDINAL ) . By a judgment of DATE ORG , noting , inter alia , that the parties had not contested the expert ’s assessment , ordered that the applicants should receive compensation bonds for this amount .

The relevant background facts and domestic law and practice have been summarised in the ORG ’s judgment in the case of ORG and Others v. GPE , nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG , and CARDINAL , DATE .

In DATE the Government published regulations implementing section CARDINAL ( CARDINAL ) of LAW ( ORG no . CARDINAL of DATE ) . The regulations enabled persons currently in possession of housing compensation bonds to obtain payment at face value from ORG .


No violation of Art. 10;No violation of Art. 11;No violation of Art. 14+10;No violation of Art. 14+11

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

At the material time , the applicant was a police officer and the Secretary General of ORG .

On DATE Law no . CARDINAL of DATE on certain amendments to LAW ( az Alkotmány módosításáról szóló DATE . évi ORG . törvény ) was published in the NORP Official Gazette . This PERSON amended , inter alia , LAW to the effect that , as from DATE , members of the armed forces , the police and security services were prohibited from joining any political party and from engaging in any political activity ( see paragraph CARDINAL below for the text of the Article ) .

In a circular letter dated DATE , the Head of ORG requested , in view of the forthcoming parliamentary elections , that police officers refrain from political activities . He referred to Article CARDINAL/B § CARDINAL of the LAW as amended by LAW . CARDINAL of DATE . He indicated that those who wished to pursue political activities would have to leave the police .

In a second circular letter dated DATE , the Head of ORG declared that no exemption could be given from the prohibition contained in LAW .

On DATE ORG filed a constitutional complaint with ORG claiming that Article CARDINAL/B § CARDINAL of the LAW , as amended by LAW no . CARDINAL of DATE , infringed constitutional rights of career members of the police , was contrary to the generally recognised rules of international law and had been adopted by ORG unconstitutionally .

On DATE ORG dismissed the constitutional complaint , holding that it had no competence to annul a provision of the LAW itself .

The relevant Articles of the LAW of GPE Law no . DATE , as amended on several occasions ) provide :

“ Career members of the armed forces , the police and the civil national security services shall not join any political party and shall not engage in any political activity . ”

“ A fegyveres erők , a rendőrség és a polgári nemzetbiztonsági szolgálatok hivatásos állományú tagjai nem lehetnek tagjai pártnak és politikai tevékenységet PERSON folytathatnak . ”

“ In GPE everyone shall have the right to freedom of expression and to receive and impart information of public interest . ”

“ A PERSON mindenkinek PERSON a szabad véleménynyilvánításra , továbbá arra , hogy a közérdekű adatokat megismerje , illetőleg terjessze . ”

“ … [ T]he Government shall ensure that the provisions of LAW are implemented . ”

“ A PERSON alkotmánya … végrehajtásáról a PERSON gondoskodik . ”

“ The Government shall submit to ORG such bills as are necessary to implement the LAW . ”

“ A ORG köteles az alkotmány végrehajtásához szükséges törvényjavaslatokat az Országgyűlés elé terjeszteni . ”

PERSON no . CARDINAL of DATE on referenda , as in force at the material time , provided :

“ No signatures may be collected … from persons serving in the armed forces or armed bodies on station or while such persons are discharging their duties … ”

“ PERSON gyűjthető aláírás … fegyveres erőknél és fegyveres testületeknél szolgálati viszonyban levő személyektől , a szolgálati helyen CARDINAL szolgálati feladat teljesítése közben … ”

“ ORG eligible to vote or stand in elections … shall have the right to participate in referenda … ”

“ A népszavazásban … való részvételre választójoggal rendelkező állampolgárok … jogosultak . ”

Law no . CARDINAL of DATE ( as amended on several occasions ) on parliamentary elections , as in force at the material time , provided :

“ In GPE every NORP citizen … who has attained his [ or her ] majority ( hereinafter : “ constituent ” ) shall have the right to vote in parliamentary elections . ”

“ A PERSON az országgyűlési képviselők választásán választójoga van … minden nagykorú magyar állampolgárnak ( a továbbiakban : választópolgár ) . ”

“ Everyone who is entitled to vote and has a permanent residence in GPE shall be entitled to stand for election . ”

“ PERSON választható , aki választójoggal rendelkezik CARDINAL állandó lakóhelye PERSON . ”

“ Constituents … of each individual constituency shall be entitled to nominate candidates [ in relation to that constituency ] … ”

“ GPE egyéni választókerületben a választópolgárok … jelölhetnek . … ”

“ Constituents shall be entitled to collect nomination coupons , expound election programmes , promote candidates and organise election campaign meetings … ”

“ Bármely választópolgár gyűjthet jelöltet ajánló szelvényeket , ismertethet választási programot , népszerűsíthet jelöltet , szervezhet DATE gyűlést … ”

“ Nomination coupons may not be collected … from persons serving in the armed forces or armed bodies … on station or while such persons are discharging their duties … ”

“ PERSON gyűjthető jelöltet ajánló szelvény … a fegyveres erőknél , a rendőrségnél … szolgálati viszonyban lévő személytől , a szolgálati helyen CARDINAL szolgálati feladat teljesítése közben … ”

Law no . DATE on the legal status of members of ORG , as in force at the material time , provided :

“ Employers of employees who are candidates in parliamentary elections … shall grant them unpaid leave on request from the moment of their registration as candidates until DATE the elections or , where they are elected , until they take up their seat . ”

“ GPE országgyűlési képviselő … jelöltet jelöltségének nyilvántartásba vételétől a választásának befejezéséig , illetve megválasztása esetén a mandátuma igazolásáig a munkáltató – kérésére – köteles fizetés nélküli szabadságban részesíteni . ”

“ Paragraph CARDINAL … [ of LAW ] shall apply as appropriate to candidates … serving … in the … police … ”

“ A … rendőrségnél … szolgálati viszonyban … álló képviselőjelöltre GPE [ CARDINAL ] ( CARDINAL ) … bekezdés rendelkezéseit kell megfelelően alkalmazni . ”

“ A member of ORG … shall put an end to any situation incompatible with his office within DATE from the moment he takes up his seat … ”

“ A képviselő a mandátuma érvényességének megállapításától … számított harminc napon belül köteles a vele szemben fennálló összeférhetetlenségi okot megszüntetni … ”

PERSON no . CARDINAL of DATE on the election of members of local authorities and mayors , as in force at the material time , provided :

“ Constituents shall be entitled to expound election programmes , canvass on behalf of candidates or organise election campaign meetings … from DATE prior to the date of the elections . ”

“ Bármely választópolgár – a szavazást megelőző CARDINAL . naptól – ismertethet választási programot , népszerűsíthet jelöltet , szervezhet DATE gyűlést … ”

“ A constituent who exercises his right to vote in an individual constituency shall be entitled to nominate candidates [ in relation to that constituency ] … ”

“ PERSON ajánlhat az a választópolgár , aki a választókerületben választójogát gyakorolhatja … ”

PERSON no . DATE on the police ( “ the DATE LAW ” ) , which entered into force on DATE , provides :

“ The police shall discharge their duties in a manner free from any party influence . ”

“ A Rendőrség a feladatának ellátása során pártbefolyástól mentesen jár el . ”

“ If a police officer wishes to stand as a candidate in elections to ORG , to a local authority or to the office of mayor , he shall in advance notify the head of the police department [ concerned ] of his intention to do so . In such cases his service shall be suspended from DATE preceding the elections until DATE on which the results of the elections are published . ”

“ Ha a rendőr országgyűlési vagy helyi önkormányzati képviselői , illetőleg polgármesteri választáson jelöltként indul , köteles e szándékát a rendőri szerv vezetőjének előzetesen bejelenteni . A választás napját megelőző CARDINAL . naptól kezdődően a választás eredményének közzétételéig a szolgálati jogviszonya szünetel . ”

“ Police officers shall have the right to join professional or other organisations which are aimed at protecting or representing their interests and are related to their professional duties , and to hold office therein ; they shall not suffer any disadvantage in their careers on account of their membership and activity . Police officers shall inform the head of the police department [ concerned ] of their existing or intended membership of organisations unrelated to their professional duties . The head of the police department [ concerned ] may prohibit the police officer in question from becoming or remaining a member of such organisation if it is incompatible with the profession or duties of a police officer , or if it interferes with or endangers the interests of the force . Such a prohibition shall take the form of a decision . An appeal against such a decision lies to the head of the superior police authority . The decision of the superior authority on the appeal may be challenged in the courts . ”

“ A rendőr a hivatásával összefüggő szakmai , érdekvédelmi , érdekképviseleti szervezetnek tagja PERSON , abban tisztséget vállalhat , e tagsági viszonya és tevékenysége miatt szolgálati jogviszonya körében hátrányt nem szenvedhet . A rendőr köteles a hivatásával össze nem függő társadalmi szervezettel fennálló , illetőleg GPE újonnan létesülő tagsági viszonyt előzetesen a rendőri szerv vezetőjéhez bejelenteni . A rendőri szerv vezetője a tagsági viszony fenntartását PERSON létesítését megtilthatja , ha az a rendőri hivatással PERSON szolgálati beosztással nem egyeztethető össze , illetőleg a szolgálat érdekeit sérti PERSON E döntést határozatba kell foglalni . A határozat ellen a felettes szerv vezetőjénél panasszal PERSON élni . A felettes szervnek a panasz kivizsgálása eredményeként hozott határozata a bíróság előtt megtámadható . ”

Decree no . DATE of the Minister of the ORG ( “ the DATE LAW ) , which laid down service regulations for the police , was in force until DATE and provided :

“ … No party political activity may be carried out on police premises ; no questions related to party politics shall be discussed during staff meetings . ”

“ … A rendőrségen pártpolitikai tevékenység nem folytatható , munkahelyi értekezleteken pártpolitikai kérdések nem tárgyalhatók . ”

“ With the exception of political parties , police officers shall … be entitled to form and maintain social organisations [ társadalmi szervezet ] ( trade unions , mass movements , organisations protecting their interests , associations , etc . ) provided that their aims are not contrary to the legal provisions and rules regulating police service . ”

“ Rendőrök önmagukból – párt kivételével – … a szolgálati viszonyra vonatkozó jogszabályokkal , rendelkezésekkel nem ellentétes célú társadalmi szervezetet létrehozhatnak és működtethetnek ( szakszervezet , tömegmozgalom , érdekképviseleti szervezet , egyesület stb . ) . ”

“ Police officers shall be entitled to join any social organisation [ társadalmi szervezet ] , including a political party , which has been lawfully founded and registered by a court . Police officers shall not enjoy any advantage or suffer any detriment in their career on account of their membership of an organisation or their party affiliation . ”

“ A rendőr bármely törvényesen megalakult , illetve bíróság által nyilvántartásba vett társadalmi szervezetnek DATE beleértve a politikai pártot is – tagja PERSON . PERSON hovatartozása , pártállása miatt szolgálati viszonya keretében semmiféle előnyben PERSON részesíthető . ”

“ Party badges and symbols shall not be displayed on police premises . While on duty , police officers shall refrain from wearing badges showing their political preference . ”

“ A rendőrség hivatali helyiségeiben , körleteiben pártok jelvényei , jelképei nem helyezhetők el . A rendőr szolgálatban politikai hovatartozására utaló jelvényt nem viselhet . ”

“ Police officers shall not engage in activities as experts or advisers in relation to questions of police service upon request from political parties unless authorised to do so by the Minister of the ORG . ”

“ A rendőr pártok részére a rendőri szolgálattal összefüggő kérdésekben szakértői , szaktanácsadó feladatokat csak a belügyminiszter engedélyével végezhet . ”

“ On police premises the exercise of the right to freedom of assembly is subject to the approval of the common superior of all the organisers [ of any assembly ] . ”

“ A rendőrség objektumaiban a gyülekezési jog csak a szervezők közös elöljáróinak engedélyével gyakorolható . ”

“ Police officers shall have the right to participate in lawfully organised … gatherings ( such as peaceful assemblies , processions and demonstrations ) in their leisure time . On such occasions they shall refrain from wearing uniform unless the aim of the gathering is the representation or protection of interests related to [ police ] service . They shall refrain from carrying their service gun or other firearms lawfully in their possession . Where the gathering is ordered to be dissolved , they shall immediately leave . ”

“ A rendőr szabad idejében részt vehet a … jogszerűen tartott rendezvényen ( békés összejövetelen , felvonuláson , tüntetésen ) . Ilyen esetben egyenruhát PERSON viselhet , ha a rendezvény célja a szolgálati viszonnyal összefüggő érdekek képviselete , védelme . PERSON tartott lőfegyverét nem tarthatja magánál . Ha a rendezvény feloszlatására kerül sor , köteles a helyszínt azonnal önként elhagyni . ”

“ Police officers shall … be entitled to make statements upon request from the press or radio or television stations on questions related to road safety , public safety or certain offences provided that , [ in so doing , ] they maintain the confidentiality of service secrets , observe the principle of the presumption of innocence , respect personality rights [ személyiséghez fűződő jogok ] and do not prejudice the examination and investigation of cases … ”

“ A rendőr , a sajtó , a rádió és a televízió megkeresése alapján a közlekedés- , a közbiztonság kérdéseiről , egyes bűncselekményekről , a szolgálati titok megőrzésével , az ügyek vizsgálatának és felderítésének veszélyeztetése nélkül , valamint az ártatlanság vélelmének figyelembe vételével és a személyiséghez fűződő jogok tiszteletben tartásával … nyilatkozhat … ”

“ … [ Police officers ] shall be entitled to give lectures on DATE or to participate in radio or television programmes concerning DATE politics , science , literature or sport without prior authorisation but on condition that no reference is made to their police service . ”

“ … [ A rendőr ] politikai , tudományos , szépirodalmi és sport témájú előadásokat , szereplést ( a rádióban és a televízióban is ) engedély nélkül vállalhat rendőri állására való utalás nélkül . ”

“ Police officers shall have the right to make statements and publish articles in ORG publications without permission , while observing the rules on service and official secrets . ”

“ A ORG lapjaiban a szolgálati- és az államtitokra vonatkozó szabályok betartásával a rendőr engedély nélkül nyilatkozhat és publikálhat . ”

“ Police officers shall not be entitled to publish textbooks and documentary literature related to police activities save with prior authorisation … ”

“ A rendőri vonatkozású kérdéseket tárgyaló szak- és tényirodalmi művet a rendőr csak előzetes engedéllyel jelentetheti meg … ”

“ Police officers shall be entitled to publish works of fiction … and works on science , politics or sport … that are unrelated to police activities without permission but on condition that no reference is made to their police service . ”

“ A rendőr – a rendőri állásra való utalás nélkül DATE szabadon közölheti , illetve kiadhatja a nem rendőri vonatkozású szépirodalmi … , tudományos , politikai kérdéseket tárgyaló , sporttal foglalkozó műveit … ”

Decree no . CARDINAL/CARDINAL of DATE of the Minister of the ORG ( “ the DATE LAW ) , which was adopted under LAW in order to implement its provisions and which laid down service regulations for the police , entered into force on DATE . It provides :

“ Police officers , in their capacity as representatives of the police or experts , shall not give statements to the press or participate in radio or television programmes or in films , unless permitted to do so by the Head of ORG of his deputies . No permission is needed for giving scientific or cultural lectures or for other public appearances of a similar nature ( including participation in radio or television programmes ) if no reference is made to police service . ”

“ A rendőr a rendőrség képviselőjeként , szakértőjeként a sajtóban , a rádió és televízió műsoraiban , filmekben csak az országos rendőrfőkapitány , illetve helyettesei előzetes hozzájárulásával szerepelhet . A rendőri állásra utalás nélkül tartott tudományos , kulturális előadások megtartásához , ilyen irányú egyéb közszerepléshez beleértve a rádióban és televízióban történő szereplést is ) engedély nem kell . ”

“ Police officers shall have the right to make statements and publish articles in police publications without permission , while observing the rules on service and official secrets . ”

“ A rendőrség lapjaiban a szolgálati és az államtitokra vonatkozó szabályok betartásával a rendőr engedély nélkül nyilatkozhat és publikálhat . ”

“ Members of the police force , in their capacity as police officers , shall not make public appearances unless authorised to do so by the head of the police department . On such occasions police officers shall refrain from making political statements and shall evince a neutral attitude towards any social organisation [ társadalmi szervezetek ] . ”

“ Nyilvános szerepléshez ( ha az rendőrként történik ) engedélyt kell kérni a rendőrfőkapitánytól . A rendőr ilyen közéleti szereplése során tartózkodjék a politikai nyilatkozatoktól , magatartása a társadalmi szervezeteket illetően semleges legyen . ”

“ Police officers shall have the right to participate in lawfully organised … gatherings in their leisure time . On such occasions they shall refrain from wearing uniform and carrying their service gun or other firearms lawfully in their possession . Where the gathering is ordered to be dissolved , they shall immediately leave . ”

“ A rendőr szabad idejében részt vehet a … jogszerűen tartott rendezvényen . Ilyen esetben egyenruhát nem viselhet . PERSON tartott lőfegyverét nem tarthatja magánál . Ha a rendezvény feloszlatására kerül sor , köteles a helyszínt azonnal önként elhagyni . ”