CASE OF SØRENSEN AND RASMUSSEN v. DENMARK

Violation of Art. 11;Pecuniary damage - financial award;Costs and expenses partial awards - Convention proceedings

Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Jean-Paul Costa;John Hedigan;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Snejana Botoucharova;Vladimiro Zagrebelsky;Volodymyr Butkevych

The first applicant was born in DATE and lives in GPE , GPE . In DATE he did his national service . Since DATE remained before he could commence studying mathematics and physics at ORG , on DATE he applied for a job as a holiday relief worker in a company , ORG ( “ FDB ” ) . For this purpose , he filled in an application form , which contained a pre - printed paragraph stating , among other things :

“ To obtain the job it is mandatory to be a member of CARDINAL of the trade unions affiliated to ORG ( ORG ) . You will be informed on request of the name of the union . ”

In a letter of DATE , the applicant was offered the job from DATE until DATE and informed that his terms of employment would be regulated by an agreement concluded between ORG and a trade union called ORG , which was affiliated to ORG , and of which the applicant was obliged to become a member .

From his first payslip on DATE the applicant became aware that he was paying a subscription to ORG , although he had not applied for membership . Instead , at the time of his appointment he had applied for membership of a trade union called GPE 's ORG ( PERSON ) . In a letter of DATE , the applicant informed his employer and the shop steward that he did not want to pay the subscription to ORG because he had been told that , as a holiday relief employee , he would not be given full membership of ORG .

Consequently , on DATE , the applicant was dismissed for not satisfying the requirements for obtaining the job as he was not a member of a trade union affiliated to ORG .

The applicant , represented by GPE 's ORG , instituted proceedings before ORG ( ORG ) against ORG , requesting that ORG be ordered to acknowledge that his dismissal was unlawful and to pay him compensation . He alleged that section CARDINAL(CARDINAL ) of ORG due to LAW of DATE ( Lov om beskyttelse mod afskedigelse på grund af foreningsforhold ) , as amended on DATE , violated LAW as it allowed an employer to require an employee to be a member of a specific association in order to obtain employment . The applicant stated , among other things , that he did not share ORG 's political views .

On DATE ORG found for ORG , stating as follows :

“ The High Court finds it established that the applicant was aware that membership of ORG was a condition for his employment in the company . Thus , since the applicant did not comply with this requirement the conditions for dismissing him are fulfilled in accordance with section CARDINAL , subsection ( CARDINAL ) , in conjunction with subsection ( CARDINAL ) , of ORG due to LAW .

Therefore , the pertinent question is whether the LAW in issue , and with it the applicant 's dismissal , is at variance with LAW , in the light of the interpretation this LAW has been given by ORG in its recent case - law .

ORG due to LAW was passed by ORG in DATE as a result , inter alia , of the British Rail judgment ( PERSON , PERSON and PERSON v. GPE no . DATE ) delivered by ORG in DATE . In this judgment it was established that in certain circumstances LAW also secured the negative right to freedom of association . In the assessment of whether , subsequent to the ORG 's recent case - law , the domestic courts should disregard section CARDINAL(CARDINAL ) of ORG due to LAW , the starting - point must be taken from the Act of DATE incorporating LAW . According to the preparatory notes , incorporation of the LAW was not intended to change the existing balance between the NORP parliament and the NORP courts . Thus , in the view of ORG , while taking into account the rights and obligations that may be inferred from LAW , ORG still has considerable discretion when laying down NORP law . In this connection , it is also of importance to note that a decision abolishing or limiting the existing possibility of entering into closed - shop agreements will have far - reaching consequences for the NORP labour market .

In support of the applicant 's understanding of the scope of LAW , reference has been made to PERSON v. GPE judgment of DATE and the PERSON v. GPE judgment of DATE . However , in the view of ORG , an interpretation of these judgments does not establish with the necessary certainty that section CARDINAL ) of ORG due to LAW is at variance with LAW . ”

On appeal , ORG ( Højesteret ) upheld ORG judgment on DATE . In its reasoning ORG stated as follows :

“ The Protection against Dismissal due to LAW ( Law no . CARDINAL of CARDINAL DATE ) was passed notably in order to comply with the negative right to freedom of association to the extent that such an obligation could be established according to the interpretation of LAW given by ORG , PERSON and PERSON v. the GPE judgment , Series A no . CARDINAL ( ORG ) .

As stated in ORG judgment of DATE [ see paragraph CARDINAL below ] , the latest judgments of ORG provide no grounds for a different assessment of the lawfulness of closed - shop agreements and their consequences from that appearing in the British Rail judgment . In addition , section CARDINAL ) , of the Protection against Dismissal due to LAW of DATE raises no doubts as to its compatibility with this judgment . ”

The second applicant was born in DATE and lives in GPE , GPE . He is a gardener by profession . He became a member of PERSON in DATE , but resigned his membership after DATE as he felt unable to support its political affiliations . Instead , he became a member of ORG ( PERSON ) .

Having been unemployed for a while , he was offered a job at a nursery ( Gartneriet i Regnmark I / S ) on condition that he became a member of ORG as the employer had entered into a closed - shop agreement with that trade union . The applicant commenced the job on CARDINAL DATE and rejoined ORG , although he still did not agree with its political views .

Article CARDINAL of LAW ( PERSON ) provides :

“ CARDINAL . Citizens shall , without prior permission , be free to form associations for any lawful purpose .

Associations employing violence , or aiming to attain their object by violence , by instigation to violence , or by similar punishable influence on persons holding other views , shall be dissolved by a court judgment .

No association shall be dissolved by any government measure ; however , an association may be temporarily prohibited , provided that proceedings are instituted immediately for its dissolution .

Cases relating to the dissolution of political associations may , without special permission , be brought before ORG [ NORP øverste domstol ] .

NORP The legal effects of such dissolution shall be determined by statute . ”

The relevant parts of ORG due to LAW of DATE ( which was passed as a direct result of the ORG 's ruling in PERSON , PERSON and PERSON v. the GPE , CARDINAL DATE , Series A no . CARDINAL ) , as amended by PERSON no . CARDINAL of CARDINAL DATE , read as follows :

“ An employer may not dismiss an employee on the ground that he or she is a member of an association or of a specific association . ”

“ ( CARDINAL ) An employer may not dismiss an employee on the ground that he or she is not a member of an association or of a specific association .

( CARDINAL ) Subsection ( CARDINAL ) shall not apply if the employee , prior to recruitment , knew that the employer made membership of an association or of a specific association a condition for being employed with the enterprise .

( CARDINAL ) Subsection ( CARDINAL ) shall furthermore not be applicable where an employee who is a member of an association is informed subsequent to recruitment that membership is a condition for continued employment with the enterprise . ”

“ Sections CARDINAL and CARDINAL of the Act shall not apply in respect of employers whose business is specifically aimed at furthering political , ideological , religious or cultural ends , where the membership of the person concerned must be considered of importance for the business . ”

“ Where an employee is dismissed contrary to the provisions of this LAW , the dismissal must be overruled and the employment continued or restored , if a claim to this end is made . However , this shall not apply to employees in the private sector if , in special cases and following the balancing of the interests of the parties , it is found manifestly unreasonable to claim continuation of the employment or reinstatement . ”

“ ( CARDINAL ) Where an employee is dismissed contrary to the provisions of this LAW without the dismissal being overruled , the employer shall pay compensation .

( CARDINAL ) The compensation , which may not be DATE salary or wages and may not exceed DATE salary or wages . ”

“ ( CARDINAL ) Cases under this LAW must be processed as quickly as possible .

( CARDINAL ) During the hearing of a case concerning dismissal , the court may order that the dismissal should not become effective until the case has been finally decided by means of a judgment . The judgment may specify that the dismissal will not be stayed in case of an appeal . ”

The question of the lawfulness of closed - shop agreements in relation to LAW and LAW was examined by ORG in a judgment of DATE ( concerning PERSON , applicant in the original case of PERSON and PERSON v. GPE ( dec . ) , no . PERSON , DATE ) . ORG found for the defendant and awarded him damages in the amount of MONEY ( DKK ) . As regards LAW , ORG stated :

“ According to the PERSON , PERSON and PERSON v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL ( the British Rail judgment ) it is in breach of LAW concerning freedom of association to dismiss an employee who refuses to join a trade union with whom the employer has entered into a closed - shop agreement at a time after the employment of the employee , in so far as membership was not a condition for the employment . The ORG emphasised that it did not decide on closed - shop agreements as such , but only on its effect on the CARDINAL applicants .

In PERSON v. GPE judgment of DATE , ORG found a violation of LAW in a situation where a holder of a taxi licence had his licence revoked because he resigned from a specific association of taxicab owners . The ORG found it of importance that obligatory membership of the association was imposed on him by law and that there was no duty to join the association when PERSON obtained his taxi licence as the original requirement to do so lacked a legal basis . As in the ORG judgment , the ORG emphasised that it did not decide on the scope of LAW in relation to the negative freedom of association .

Against this background , ORG finds no reasons in ORG judgment to assess the lawfulness of closed - shop agreements and their consequences any differently than what appears from the ORG judgment . The same goes for the remainder of the judgments that the parties have referred to ( ORG v. the GPE , judgment of DATE , Series A no . CARDINAL , and PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL ) . ”

Also , in another judgment of CARDINAL DATE , ORG found that closed - shop agreements as such were not contrary to LAW as that provision had been interpreted by ORG .

NORP The relevant parts of LAW Law no . CARDINAL of CARDINAL DATE – Lov om private bidrag DATE politiske partier og offentliggørelse af politiske partiers regnskaber ) , as amended by PERSON no . CARDINAL of DATE , provide :

“ Employers ' federations , trade unions and other trade associations whose main objectives are to attend to the economic interests of the trade group to which their members belong shall ensure that any financial contribution to political parties or for party - political purposes in general collected as part of membership fees are collected on a voluntary basis for each individual member . ”

“ ( CARDINAL ) A member who wishes to be exempt from payment of contributions to political parties or for political purposes in general as part of the membership fees shall submit a written declaration to this effect .

( CARDINAL ) Once a year the association shall forward to its members a form containing the wording of such a declaration . Publishing the form in a members ' journal or a similar publication may fulfil this obligation . The declaration must have the following wording : ' I wish to be exempt from payment of contributions to political parties or for party - political purposes in general as part of my membership fees . '

( CARDINAL ) The declaration must be forwarded to the auditor of the association . This must be apparent from the form referred to in subsection ( CARDINAL ) above . Declarations sent to association offices by members must be forwarded to the auditor immediately . The Minister of ORG may lay down further provisions on the layout of the form and on the auditors ' treatment of declarations received .

( CARDINAL ) ORG on persons who are exempt from payment of contributions or who have made a request to this effect may not be subject to any unauthorised disclosure . ”

A general description of the background of closed - shop agreements in the NORP labour market is given below .

The struggle at DATE between , on the CARDINAL side , employees and their unions ( notably what is DATE called ORG ( ORG ) ) and , on the other side , the employers and their federations ( mainly ORG ( Dansk Arbejdsgiverforening – DA ) ) resulted in the so - called DATE Agreement of DATE between ORG and ORG .

The Agreement laid down CARDINAL major principles :

( CARDINAL ) the right of employees to organise within trade unions ;

( CARDINAL ) the right of employers to manage and control work ;

( CARDINAL ) the right to industrial action ( strikes , boycotts and lockouts ) in order to obtain , for example , a collective agreement ;

( CARDINAL ) the embargo on industrial action , which means that no strikes are lawful during the term of a collective agreement ; and

( CARDINAL ) the establishment of a special arbitration tribunal to deal with all violations of the September Agreement .

The DATE Agreement is unique in that it has formed the basis of all subsequent general agreements between management and labour . Traditionally , the NORP legislature plays a minor role as regards the conditions governing wages , salaries and employment . Therefore , only to a certain extent does the NORP labour market have legislation which does not emanate from ORG directives , examples being the Salaried Employees ' Act ( GPE ) and LAW ( Ferieloven ) . Accordingly , rights imposed by statute in other countries have in GPE been obtained by means of agreements between the labour - market partners . It is thus a characteristic feature of NORP law that the relationship between employers and employees is basically governed by a combination of agreements ( collective and individual ) , labour - law principles , general statutes and rules laid down in pursuance of statutes . PERCENT of all employees in GPE are trade union members .

From figures provided by ORG ( PERSON ) and ORG ( Beskæftigelsesministeriet ) , in DATE the NORP workforce consisted of CARDINAL persons ( inclusive of the unemployed ) . Of these , CARDINAL were employed within the private sector and CARDINAL within the public sector .

The Government estimate that PERCENT of all employees are covered by collective agreements . It appears that the applicants disagree with this estimation .

The institution of closed - shop agreements is a long - standing practice in GPE . Typically , a closed - shop agreement states that an employer has undertaken to hire and employ only members of the trade union that is party to the collective agreement concluded by the employer . Closed - shop agreements are unlawful in the public - sector labour market as they would be in conflict with the principle of equality under NORP administrative law . Also , they are not concluded in the part of the private - sector labour market covered by the general agreement between DA and PERSON , because ORG considers the use of closed - shop provisions to be an interference with employers ' managerial rights . Thus , closed - shop agreements are mainly of importance in collective agreements concluded with employers not affiliated to an employers ' organisation .

The precise number of employees covered by closed - shop agreements is unknown . However , from figures provided by ORG and ORG , the Government estimate that CARDINAL wage earners are affected in some way by closed - shop agreements – that is , PERCENT of all NORP employees on the labour market . The applicants submit that this estimation is probably somewhat below the actual figure .

Closed - shop clauses are primarily found in certain sectors such as building and construction and horticulture .

After the general election in GPE on DATE , the new government decided to set up a committee to look into closed - shop agreements . The mandate of the committee was to examine the scope of such clauses and other circumstances which required membership of specific associations as a precondition for access to certain professions , and also to assess the compliance of such clauses with GPE 's international commitments . The committee was also asked to draw up recommendations and proposals for initiatives which afforded greater protection of the negative right to freedom of association . The committee submitted a report in DATE ( PERSON . DATE , GPE om eksklusivbestemmelser ) which proposed changes to the law concerning closed - shop agreements between employees ' organisations and employers . The committee pointed out that general developments in society and the labour market could no longer justify , to the same extent as before , the need for closed - shop agreements , since strong and representative trade unions and organisations had now been established on the labour market . The committee further stated that the advantages relating to membership of a trade union should in themselves be strong enough reasons to be a member of a trade union . The committee considered that as closed - shop agreements only existed for a small part of the labour market , a change in the law would have only a marginal impact upon union density rates . The committee further stated that closed - shop agreements could have the effect of reducing the supply of labour , that freedom of contract on the labour market was not an immutable concept , and that restrictions existed in several fields as to the agreements that management and labour could lawfully conclude .

Beforehand , the committee had consulted numerous institutions , organisations and associations , among those ORG , which classified closedshop agreements into the following categories :

I. Agreements concluded by an employers ' association which is a ( direct or indirect ) member of DA .

II . Agreements concluded by an employers ' association which is not affiliated to ORG .

III . Agreements concluded directly between an employer and a trade union .

The classification was explained in Report no . CARDINAL as follows :

“ DATE ORG ) made a conservative estimate that CARDINAL employees were covered by closedshop provisions . This figure was calculated as follows :

In businesses organised in member organisations of ORG , it was estimated that CARDINAL employees were covered by closedshop provisions . ( However , this figure has diminished since the original estimate was made , so the present estimate is that CARDINAL employees within the scope of DA are covered by closedshop provisions ) .

In organised businesses outside the scope of ORG , CARDINAL employees were estimated to be covered by closedshop provisions .

In non - organised businesses , it was estimated that CARDINAL employees were covered by closedshop provisions in agreements adhering to collectivebargaining agreements . ”

The distinction between I and II is related to the fact that ORG , as stated above , has a policy of not entering into ( or allowing its member organisations to enter into ) closed - shop agreements . Therefore , within the scope of ORG , closed - shop provisions only apply when a member organisation of ORG entered into a closed - shop agreement prior to becoming a member of ORG . This was explained in the report as follows :

“ In principle , closedshop provisions are not entered into by the part of the private labour market which is covered by the main agreement between ORG and ORG . Under ORG , the use of exclusivity clauses is not recognised , because such clauses are deemed to interfere with employers ' managerial rights . However , this does not mean that no business within the scope of ORG has any collectivebargaining agreement containing closedshop provisions . Thus , it is estimated by ORG that CARDINAL employees working in businesses organised in member organisations of DA are covered by closedshop provisions .

When a member organisation enters into a collectivebargaining agreement , this must be subject to the approval of ORG . The same principle applies when members of the member organisations enter into collectivebargaining agreements themselves . If a member organisation or the members of a member organisation intend to enter into negotiations for collectivebargaining agreements which include closedshop provisions , this requires the prior consent of the board of ORG . DA does not approve of collectivebargaining agreements which contain exclusivity clauses .

However , if , at the time of applying for admission to one of ORG 's member organisations , a business is party to a collectivebargaining agreement which includes closedshop provisions , this does not debar the business from membership of the organisation . In such cases the organisation will subsequently try to release the business from the exclusivity clause . The same applies if an organisation seeks admission to DA . ”

The committee 's consultation with ORG ( ORG ) was described as follows in Report no . CARDINAL :

“ ORG stated that , in general , it would like to see exclusivity agreements abolished , and that such agreements are felt to be constrictive even though it acknowledges the value of having large organisations to negotiate with . ORG said that , while the industrial part of the organisation is more or less exempt from exclusivity agreements , these agreements are a large problem for the areas of agriculture , forestry , market gardening and horticulture . ORG said that the whole market garden area is covered by closedshop provisions , and argued for changes in all negotiations for collective - bargaining agreements . PERSON consistently states that there is no price at which the clauses could be eliminated from collectivebargaining agreements , so the question is not open to negotiation . In the market garden area the exclusivity agreements result in a decrease in the number of applicants for apprenticeships , recruitment problems and problems in hiring seasonal workers . In other areas within agriculture and forestry it is also the case that exclusivity agreements are not ' for sale ' .

ORG said that it has CARDINAL collectivebargaining agreements which include exclusivity clauses ; however , the agreement covering golf courses only includes a preference clause . Despite the fact that the employers recognise the interest in having properly regulated labour relations , exclusivity agreements cause recruitment problems and have a side effect of leading to other forms of provision of services , for example , by sub - contractor arrangements and the like ...

In reply to a question of the committee , it was stated that the number of employees covered by exclusivity agreements in ORG 's area is CARDINAL . ”

Subsequently , on DATE , a bill ( no . DATE - CARDINAL-LCARDINAL ) to amend LAW due to LAW was tabled in ORG by ORG . The bill was aimed at ensuring , among other things , that in the future no agreements could be lawfully concluded which imposed a duty on an employer to employ exclusively or , preferably , persons who were members of an association or a specific association .

The explanatory memorandum on the bill stated , inter alia :

“ Closed - shop agreements are obsolete and out of step with the wishes of many employees . The government consider that there should be freedom for an employee to decide whether to become a member of an association – just as there should be freedom to choose not to become a member of an association – without this leading to a risk of not being recruited or of being dismissed . The government do not consider it reasonable that an employer may lay down requirements as to the candidate 's membership or non - membership of an association as a condition for obtaining or keeping a job . Furthermore , the government find it unreasonable that a clause in a collective agreement may prevent an employee who does not wish to be a member of an association or a specific association from obtaining or keeping employment with an employer or may prevent an employer from considering the candidate 's qualifications alone . ...

The bill does not entail any economic or administrative consequences for public authorities ... the bill does not lead to any financial and administrative consequences of any major significance for enterprises . The proposal could even lead to an easing of procedures for the recruitment of labour as employers will no longer have to take candidates ' union affiliation into account after the commencement of the LAW ... the bill has no consequences for gender equality on the labour market ... the bill does not contain any Community law aspects ... ”

In accordance with LAW , a bill is read CARDINAL times before it is adopted . At the first reading , the bill is discussed in general and thereafter , normally , the bill is referred to a committee , which examines the proposal and is free to put questions to the relevant minister . With regard to the bill in question , on DATE ORG ( ORG ) submitted various questions to the Minister for Employment . As regards CARDINAL questions ( nos . CARDINAL and CARDINAL) the latter replied as follows :

“ The Minister is requested to explain the impact of the proposed bill in relation to the scope for trade unions to enforce collectivebargaining agreements , especially in relation to non - organised employers . It appears from the DATE reports of ORG for DATE that during DATE in question , CARDINAL and CARDINAL cases respectively were conducted against non - organised employers , which correspond to PERCENT and PERCENT respectively of the cases in ORG instigated by employees in DATE . All these cases were instigated by PERSON ... It is the opinion of ORG that the removal of closed - shop provisions will to a large extent make the efficient enforcement of collectivebargaining agreements against such employers more difficult . ”

“ I find it difficult to see how the annulment of closed - shop provisions in collectivebargaining agreements with non - organised employers , which is estimated to cover CARDINAL employees , should make it more difficult for the organisations to secure the efficient enforcement of collectivebargaining agreements . First and foremost the annulment of a closed - shop provision in a collectivebargaining agreement with a non - organised employer would not change the fact that the collectivebargaining agreement is still valid and must be complied with . That means that the employees or their representatives would still have the possibility of bringing to the attention of the union in question any problems in getting the agreement complied with . The possibilities for the trade union to take action in such a case would therefore be unaffected . If there is a problem in having the terms in a collectivebargaining agreement complied with in a business , due to the fact that the trade union does not have any members in that business , that should be reason enough for the employees to join the trade union and get the trade union to complain of the lack of compliance .

I do not believe that a trade union will get much help in enforcing a collectivebargaining agreement from employees whose membership is not voluntary .

I do believe that if a trade union makes an effort and spreads the message to all the employees in a business covered by a collectivebargaining agreement that it is due to its efforts that there are orderly conditions in the business , some of those employees that are involuntary members DATE could become voluntary members , and all employees could then stand together to secure compliance with the collective - bargaining agreement . ”

“ Under NORP collective - labour law , an employer must comply with the terms of a collective agreement in respect of all employees doing work within the field of the collective - bargaining agreement . Does the Minister believe that it is fair that nonorganised employees should , in this way , enjoy benefits to which they have not contributed , and which have been obtained for them by the trade unions ? ”

“ The principle that a collectivebargaining agreement also applies in relation to the work performed by non - organised employees in a business covered by a collectivebargaining agreement , is a principle which also applies to areas without closedshop provisions . It is a principle which follows from collectivebargaining agreements themselves , and it is only the organisation which is a party to the collectivebargaining agreement which may raise a claim , not the individual ( non - organised ) employee .

Furthermore , there is nothing to prevent a collectivebargaining agreement only covering the members of the organisation which is a party to the agreement . I must therefore note that it is the trade unions themselves that have elected to follow this principle both in fields with and without closed - shop provisions . Whether this is fair or not , I will leave to the trade unions in question and to their members to consider . ”

Before ORG on DATE , ORG in Gardening ( that is to say , the employers ' association which has a closedshop agreement with ORG affecting the applicant PERSON ) and ORG made the following joint submission :

“ Both ORG in GPE and NORP Landscape Gardeners are parties to collective agreements with ORG , pursuant to which the employers agree only to employ members of ORG .

This provision was agreed DATE and it is not clear why this was done . Thus , it is not apparent whether it was a mutual deal or whether it was the result of a strong trade union imposing the provision on a group of small employers .

Briefly , the provision entails a number of drawbacks for NORP gardening of which the following may be mentioned :

● It is difficult to get an inflow of apprentices to the trade . We need around CARDINAL apprentices per year , but can only attract around CARDINAL . The closed - shop provision scares away young people . At the same time we have difficulty in securing qualified labour , since many capable employees do not want to work under an exclusivity agreement . Some of these may then try to circumvent the provision by establishing a relationship as a sub - contractor instead of as an actual employee .

● The business of market gardening is characterised by seasonal work . DATE we need DATE casual workers , workers to pick vegetables , workers for DATE production and the like . Typically , we are speaking of young students who would like to work for DATE until the closedshop provision is mentioned .

● NORP market gardens are in a very tough competitive situation in ORG . No other country in the ORG has closed - shop provisions similar to those for NORP gardeners . Therefore , there is unequal competition at ORG level .

● ORG provisions may be an instrument for securing wages and employment terms in small , non - organised businesses . NORP market gardens are very large businesses ( CARDINAL employees per business ) and PERCENT are organised . The closed - shop provision has therefore been overtaken by the structural development of the business . In relation to businesses DATE , the trade union movement accepts that the closedshop provisions are unnecessary ; see the article in ORG 's periodical .

● NORP market gardens are organised , from a business point of view , in the same way as NORP agriculture . The businesses in agriculture are not covered by closedshop provisions , and NORP market gardens should not be either .

● The closedshop agreement with ORG causes DATE problems with employees who are members of other trade unions or who wish to join other unions . For example , it frustrates the desire of employees to be transferred to ORG , to an organisation of artisans or to another unemployment fund .

● As a labour - intensive export and home market business we need to attract the most competent workforce to NORP market gardens to maintain and expand our markets . The maintenance of the closedshop provision will inhibit our development , and the most competent employees elect for other professions .

● The collectivebargaining agreements between ORG in GPE and NORP ORG respectively and PERSON will continue to apply for our employees ( and be complied with ) , even if the closedshop provision is removed by law . The removal of the closed - shop provision would therefore not cause wage - dumping .

● The introduction of closedshop provisions was not put in place as an equal deal , where both parties gained something . It does not appear anywhere that NORP market gardeners have received any compensation from PERSON for agreeing in the past to the closedshop provision . On the contrary , it is our opinion that the employers were forced to enter into the exclusivity agreement under strong pressure and the threat of industrial action .

● In the last many negotiations for collectivebargaining agreements we have tried to persuade PERSON to drop the exclusivity agreements . In these negotiations it has not been possible to buy ourselves out of the exclusivity agreement . ORG has not even wanted to discuss the problem seriously .

ORG agreements do not belong in a modern society . The individual citizen wants to make his own decisions about his relationship to the trade union movement , and must be expected to be able to do so rationally .

ORG provisions arose at DATE in a period when industrial action was the order of DATE .

Circumstances are now quite different , so closedshop provisions should be removed by law . This would not be State interference with the right of free negotiation on the labour market , but the necessary safeguarding of freedom of association .

We therefore strongly recommend that the closedshop provisions be removed by law . ”

At DATE it became clear that the bill had failed to secure the necessary majority in ORG and it was withdrawn . It was tabled anew ( no . DATE - CARDINAL-LCARDINAL ) in DATE and dealt with by ORG in DATE ( before the general election on DATE ) , again with the result that the majority was not in favour of changing the law .

During the proceedings before the ORG , the parties have submitted further information about the extension of closed - shop agreements in the gardening and horticultural sector .

The Government noted by way of introduction that no single source of statistical information was able to provide a complete picture and the various statistical sources were not immediately comparable . On the basis of the material available , however , the ORG estimated that the total number of employed in the gardening and horticultural sector amounted to CARDINAL persons . The relevant employers ' organisations in the private sector had reported that CARDINAL persons were covered by closed - shop agreements , whereas the relevant trade unions had reported that CARDINAL persons were covered . Thus , the Government estimated that PERCENT but PERCENT of persons were covered by closedshop agreements .

The applicant PERSON submitted that the ORG 's calculation was misleading and irrelevant to an assessment of the possibility of him finding a job which was not covered by a closedshop agreement . He stressed that there were CARDINAL different kinds of gardeners : landscape gardeners ; greenhouse gardeners ; and production gardeners . It was crucial to distinguish among the CARDINAL kinds of gardening because job opportunities in the public sector almost exclusively related to landscape gardeners . Moreover , although the applicant PERSON possessed the qualifications to obtain a job at a nursery , this did not imply that he would be qualified to work in landscape gardening DATE be it in the public or private sector . A calculation should be made in respect of each of the CARDINAL kinds of gardening . The percentages for greenhouse gardening and production gardening would then be seen to be higher , probably PERCENT ( CARDINAL employees covered by closed - shop provisions out of CARDINAL in the CARDINAL kinds of gardening in the private sector ) . Consequently , the percentage would be lower in respect of landscape gardeners . Accordingly , even if the Government were correct in stating that approximately every second job was not covered by closedshop agreements , it would be more pertinent to say that in the case of the applicant PERSON , CARDINAL out of CARDINAL relevant jobs was not covered by a closedshop agreement .

The preparatory notes on LAW DATE of the Conference of Senior Officials , Collected edition of the “ travaux préparatoires ” , vol . PERSON , p. CARDINAL ) state , inter alia :

“ On account of the difficulties raised by the ' closed shop system ' in certain countries , the Conference in this connection considered it undesirable to introduce into the Convention a rule under which ' no one may be compelled to belong to an association ' which features in [ LAW ] of LAW . ”

It appears that among the member ORG , only a very limited number of GPE , including GPE and GPE , permit by law pre - entry closed - shop agreements in general or in certain sectors . Such agreements refer to the obligation to join a trade union at the time of taking up a contract of employment as opposed to the situation in which a similar obligation is imposed after recruitment ( post - entry closed - shop agreements ) .

Article CARDINAL of the NORP Social Charter provides for the following “ right to organise ” :

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

In its Conclusions ORG and GPE , ORG found that ORG due to LAW infringed LAW in that an employee could be dismissed if , prior to recruitment , he or she knew that membership of a certain union was a condition for being employed with the enterprise ( section CARDINAL , subsections ( CARDINAL ) and ( CARDINAL ) , of the LAW ) . On this basis , ORG the Social Charter in DATE ) and CARDINALth ( DATE ) reports proposed that ORG adopt a recommendation to that end with regard to GPE . On DATE , at the CARDINALth meeting of ORG , the proposal for the recommendation was not adopted as the requisite majority was not obtained .

In its Conclusions PERSON , ORG stated , inter alia :

“ The situation in GPE is not in conformity with LAW for the following reasons :

Closed - shop clauses are permitted in national law as illustrated by the decisions of ORG summarised in the report . Clauses or practices of this kind violate the right to freedom of association ; ... ”

Subsequently , in DATE the NORP government informed ORG of the European Social Charter of their intention to introduce a bill prohibiting closedshop agreements ( see paragraph CARDINAL above ) . ORG therefore decided to await the next assessment by ORG .

In its Conclusions XVII-CARDINAL of DATE , ORG again maintained that the aforementioned LAW infringed LAW . In this connection , the following views were expressed within ORG , according to the report of its CARDINALth meeting ( CARDINAL DATE ) :

“ CARDINAL . The NORP delegate said that once the parliamentary situation was more favourable the Government would resubmit the draft legislation . A case was also pending before ORG .

The NORP delegate , supported by the NORP delegate , thought that under these circumstances GPE should be given time to remedy the violation .

NORP However , the NORP delegate thought that ORG should express its concern that nothing had been done to rectify the situation .

The ORG noted that it was firmly opposed to closed - shop clauses in any form and insisted that the violation of the LAW be remedied . ”

The Conclusions of the next assessment by ORG CARDINAL in respect of GPE are expected to be published in DATE .

Recently , in ORG against GPE ( Collective Complaint no . CARDINAL ) , ORG found that the situation in GPE as regards pre - entry closedshop clauses infringed LAW . On the basis of the report by ORG , ORG , at the ORG meeting of ORG on DATE , adopted a resolution ( ResChS(CARDINAL)CARDINAL ) taking note of the NORP government 's undertaking to bring the situation into conformity with LAW .

The Community Charter of LAW , adopted by the heads of ORG or government of CARDINAL member GPE of ORG on DATE , provides that every employer and every worker has the freedom to join or not to join professional organisations or trade unions without any personal or occupational damage being thereby suffered by them .

The relevant parts of LAW , proclaimed in GPE on DATE ( CARDINAL CARDINAL/CARDINAL ) , read :

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

Political parties at Union level contribute to expressing the political will of the citizens of the ORG . ”

“ Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised , in their respective fields of application , by Union law and international law and by international agreements to which the ORG , the ORG or all the Member GPE are party , including LAW , and by the Member GPE ' constitutions . ”

Conventions nos . CARDINAL and CARDINAL of ORG ( ORG ) protect , inter alia , the positive aspects of freedom of association . As regards the issue of closed - shop agreements , the ORG considers this to be a matter for regulation at national level .


Violation of P4-2;Violation of Art. 14+P4-2;Violation of P1-2;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in the town of GPE , in the Kabardino - Balkar Republic of GPE . He is a lawyer .

The applicant is an ethnic NORP ; he was born in GPE and lived there . On DATE his property in ORG was destroyed as a result of a military operation . Since DATE the applicant has been living in GPE as a forced migrant .

In DATE the applicant applied for registration of his permanent residence in GPE . His application was rejected pursuant to the local laws of NORP prohibiting former residents of GPE from obtaining permanent residence in FAC . The refusal of the local authorities was upheld by ORG on DATE and by ORG of the Kabardino - Balkar Republic on DATE .

On DATE the applicant and his driver travelled by car from GPE in GPE to Nalchik in the Kabardino - Balkar Republic . The parties submitted different versions of the subsequent events .

According to the applicant , at TIME their car was stopped at the GPE checkpoint on the administrative border between PERSON and Kabardino - Balkaria . Officers of the Kabardino - Balkar State Inspectorate for Road Safety ( PERSON ) refused him entry , referring to an oral instruction from ORG not to admit persons of NORP ethnic origin . He had had to turn back and make a detour of QUANTITY to reach GPE through a different checkpoint .

According to the Government , the applicant attempted to jump the queue of cars waiting for their turn at the checkpoint , but he was refused priority treatment and had to leave .

The applicant complained to a court about the allegedly unlawful actions of the police officers ; he also claimed compensation for non - pecuniary damage .

On DATE ORG dismissed the applicant 's claim , finding as follows :

“ By an order of the Head of ORG ( no . CARDINAL of DATE ) , because of the complicated operational situation at the [ administrative ] border with GPE ... with a view to preventing and putting an end to the entering into towns and villages of persons having terrorist or antisocial intentions ... the road safety police were ordered to reinforce security measures from TIME on DATE until further notice . The police were also instructed to perform stricter controls of vehicles and passengers at checkpoints .

[ Police officers PERSON . and Me . ] testified before the ORG that , on DATE , the Urukh checkpoint had a long queue of vehicles with freight and passengers waiting for passage and registration . The car in which Mr PERSON was travelling attempted to jump the queue , but was refused priority treatment and signalled to wait its turn . None of the officers refused anyone entry into LOC on account of their ethnicity , including Mr LANGUAGE . On DATE CARDINAL buses of NORP gained entry . However , Mr PERSON accused the officers of deliberately refusing him entry because he was a NORP . He showed his advocate 's card and said that he worked in GPE .

The ORG considers that the actions of the police officers complied with LAW . Although Mr LANGUAGE produced his advocate 's card , it indicated that he was a lawyer in PERSON and not in PERSON ; he did not show his passport or a mission order or migrant 's card to the police officer . Mr PERSON did not contest this fact . In the ORG 's opinion , even if Mr PERSON and his driver had had these documents , they should have waited their turn in accordance with the above - mentioned order .

In these circumstances , the ORG has no reason to find , and Mr Timishev did not produce evidence , that his right to liberty of movement within the NORP territory was violated . Moreover , on DATE he reached PERSON through the PERSON checkpoint . ”

On DATE ORG of the Kabardino - Balkar Republic , on an appeal by the applicant , upheld the judgment of DATE . The court pointed out that the burden of proof was on the applicant , who had failed to show that he had been denied entry because of his NORP origin .

The applicant also complained to ORG and to ORG .

On DATE a prosecutor from ORG for LOC of ORG ( прокурор отдела NORP прокуратуры PERSON ) informed the applicant that , following an inquiry into the facts , the prosecutor 's office had ordered ORG to remedy the violation of LAW ( представление об устранении нарушений статьи CARDINAL PERSON ) committed by officers of ORG , and to take measures to avoid similar violations in the future . The relevant part of the report on the violation , attached to the order and dated DATE , reads as follows :

“ ORG has inquired into [ the applicant 's ] complaint about unlawful actions by [ police officers ] ... It has been established that on DATE [ the applicant ] and his driver PERSON , travelling from the town of GPE in a FAC car , were stopped by police officer PERSON . at the Urukh checkpoint for an inspection of the car and an identity check ; following the identity check they were denied entry into PERSON - Balkaria .

Junior Sergeant Kh . , questioned during the inquiry , explained that at a staff meeting before taking up his duties he had received an oral instruction from the shift commander Warrant Officer PERSON not to allow persons of NORP ethnic origin travelling by private car from GPE to enter Kabardino - Balkaria . From the explanation given by Warrant Officer PERSON , it follows that he himself had received a similar oral instruction from the operations officer on duty at ORG On the basis of the foregoing , [ the applicant and his driver ] were refused entry into Kabardino - Balkaria , although they did not engage in any unlawful activity ...

Thus , the actions of [ police officers ] PERSON . ... have grossly violated the constitutional rights of NORP nationals of NORP ethnic origin , who may move freely within the territory of GPE ... These encroachments on the rule of law were caused as a result of the irresponsible approach of traffic police officers to their professional duties and poor supervision [ of their actions ] on the part of the management of the traffic police department of ORG ... ”

On DATE Lieutenant - General PERSON , the Minister of the Interior of the Kabardino - Balkar Republic , forwarded a summary of the findings of an internal inquiry to a human rights activist who had lodged complaints on behalf of the applicant . The summary bore no date and was signed by Colonel PERSON , Deputy Head of ORG of ORG , confirmed by Colonel PERSON , Head of ORG , and approved by the Minister of the ORG himself . The summary stated :

“ When questioned ... by employees of the prosecutor 's office of ORG . [ the officer who stopped the applicant ] explained that at a staff meeting , before taking up his duties , he had received an oral instruction from the shift commander PERSON not to allow persons of NORP ethnic origin travelling by private car from GPE to enter the territory of the Kabardino - Balkar Republic . PERSON justified giving such an instruction by reference to a similar oral instruction that he had received from the Deputy Head of ORG , Colonel GPE ...

On DATE ... ORG decided to dismiss [ the applicant 's ] complaint because the [ police ] officers , who had initially maintained that they had not let the said persons enter FAC , pursuant to an oral instruction by Colonel GPE , had insisted before the court that [ the applicant and his driver ] had wanted to pass through the checkpoint without waiting in the queue , had been refused and had left ... ”

The summary then went on to praise the achievements of local police officers on duty at checkpoints , who had seized large quantities of weapons , drugs , counterfeit currency , and so on , and had detained many fugitives from justice . Colonel PERSON concluded :

“ CARDINAL . Information on the prohibition by officers at the Urukh checkpoint on the entry into the Kabardino - Balkar Republic of [ the applicant and his driver ] on the ground of their ethnicity ... may be considered untrue on the basis of the legally binding court judgments in the matter .

NORP Because of their poor morale and professional qualities , which became apparent when they gave contradictory statements to the Ombudsman , the prosecutor 's office and GPE of the Kabardino - Balkar Republic concerning the circumstances surrounding the prohibition on the entry of [ the applicant and his driver ] , officers PERSON . of ORG should be subject to disciplinary proceedings . However , having regard to the fact that the [ applicant 's ] complaint was dismissed as unsubstantiated by ORG and ORG , PERSON and PERSON . are to be discussed at a meeting of the heads of ORG and the measures taken shall be reported to ORG . ”

The summary concluded with a recommendation to avoid similar situations impairing the constitutional rights of citizens in the future .

It appears that the summary was prepared in DATE because , on DATE , Mr PERSON reported to ORG that the order to remedy the violation could not be implemented . He referred to the conclusions of the summary and the court decisions , alleging that the applicant and his driver had attempted “ to pass through the checkpoint without waiting their turn in the queue ” , and that they had “ failed to produce passports , mission orders or migrants ' cards ” . The Minister concluded as follows :

“ Having regard to these court decisions and bearing in mind the specific conditions of service at checkpoints [ on the border ] adjacent to crime - generating regions that are often under fire , which leaves a certain impact on the regime and nature of the service of police officers ... it has been suggested that these events be discussed at an operational meeting in the division . ”

Finally , on DATE PERSON , head of a department in the office of GPE , responded thus to the applicant 's complaint :

“ As follows from the response of ORG , the restriction on the constitutional rights of citizens to freedom of movement on the border of the Kabardino - Balkar Republic was imposed in connection with the threat of entry by subversive groups of armed bandits into its territory and was only effective for a short period of time . Under the terms of LAW , the said restriction was legitimate . ”

DATE and DATE , the applicant 's DATE son and DATE daughter attended School no . CARDINAL in GPE .

On DATE the applicant received compensation for the property he had lost in GPE . In exchange for compensation , the applicant had to surrender his migrant 's card ( миграционная карта ) , a local document confirming his residence in GPE and his status as a forced migrant from GPE .

On DATE the applicant 's son and daughter went to school , but were refused admission because the applicant could not produce his migrant 's card . The headmaster agreed to admit the children informally , but advised the applicant that they would be immediately suspended if the education department discovered this arrangement .

On DATE the applicant complained to a court about the refusal of ORG ( Департамент образования и науки PERSON г. PERSON – “ the GPE ” ) to admit his children to school . The ORG replied that , after DATE , the applicant had had no lawful grounds for remaining in GPE and that his requests amounted to an encroachment on the lawful rights of other children because School no . CARDINAL had been severely overcrowded even without his children .

On DATE ORG dismissed the applicant 's complaint as unsubstantiated . It found as follows :

“ [ The applicant ] and his family members reside in the town of GPE without [ appropriate registration of their residence ] . In these circumstances his requests to have his children admitted to School no . CARDINAL are unsubstantiated ...

According to a certificate produced by the headmaster of School no . CARDINAL , on DATE the school had CARDINAL pupils , whereas it was designed to accommodate CARDINAL ... ”

On DATE , on an appeal by the applicant , ORG of the Kabardino - Balkar Republic upheld the judgment of DATE .

Article CARDINAL of the LAW provides for the equality of all before the law and courts of law , and equality of rights and liberties .

Article CARDINAL provides that everyone lawfully within the territory of GPE has the right to move freely and choose his or her place of stay or residence .

Article CARDINAL provides that everyone has the right to education . Elementary education in ORG and municipal educational institutions is accessible to all and free . Parents must ensure that their children receive education .

Article CARDINAL provides that , in a state of emergency , rights and freedoms may be restricted for the protection of national security and the constitutional foundations . A state of emergency may only be declared in accordance with a federal constitutional law .

Section CARDINAL(CARDINAL ) of LAW provides that the police may temporarily restrict or prohibit the circulation of vehicles or pedestrians on the streets or roads , or refuse access to specific areas or places , or require people to remain in or leave specific areas or places , for the protection of citizens ' health , life or property or for carrying out investigative or search operations .

On DATE ORG International Convention on the Elimination of All Forms of Racial Discrimination came into force . The relevant part of LAW provides :

“ In this Convention , the term ' racial discrimination ' shall mean any distinction , exclusion , restriction or preference based on race , colour , descent , or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition , enjoyment or exercise , on an equal footing , of human rights and fundamental freedoms in the political , economic , social , cultural or any other field of public life . ”

On DATE ORG against Racism and Intolerance ( ECRI ) adopted General Policy Recommendation no . CARDINAL on national legislation to combat racism and racial discrimination . It defines “ racial discrimination ” as follows :

“ CARDINAL . For the purposes of this Recommendation , the following definitions shall apply :

( b ) ' direct racial discrimination ' shall mean any differential treatment based on a ground such as race , colour , language , religion , nationality or national or ethnic origin , which has no objective and reasonable justification . ...

( c ) ' indirect racial discrimination ' shall mean cases where an apparently neutral factor such as a provision , criterion or practice can not be as easily complied with by , or disadvantages , persons belonging to a group designated by a ground such as race , colour , language , religion , nationality or national or ethnic origin , unless this factor has an objective and reasonable justification . ... ”


Remainder inadmissible;No violation of Art. 6-1

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicants were born in DATE and DATE respectively and live in Rīga .

On DATE the second applicant , who at the time was DATE , was hit by a car driven under the influence of alcohol by PERSON ( “ the driver ” ) , an employee of a limited liability company ( “ the company ” ) . As a result the second applicant sustained serious bodily injuries : abdominal bruising with abdominal haemorrhage , rupture of the small and large intestine and liver , lung contusion , bruising and fracture of both thighs , and serious shock . She underwent numerous operations . Another person died as a result of the incident .

On DATE criminal proceedings were opened in relation to the incident . On DATE the first applicant was joined as a civil party ( civilprasītājs ) and on DATE the company was joined as a civil respondent ( civilatbildētājs ) in those criminal proceedings . On DATE a final charge was brought against the driver in relation to the incident .

On DATE the first applicant , in her capacity as legal guardian of her minor daughter , the second applicant in the present case , submitted a civil claim in the amount of CARDINAL NORP lati ( ORG ) within the criminal proceedings to ORG ( PERSON rajona tiesa ) . Her civil claim consisted of the following items : ORG CARDINAL for services in hospital , ORG CARDINAL.CARDINAL for rehabilitation in a sanatorium , ORG CARDINAL for additional products , ORG for damaged clothing , ORG CARDINAL for damaged clothing during recovery , ORG for consultations and visits to doctor , ORG for transport and ORG for disfigurement ( sakropļojums ) .

On DATE the driver ’s trial began at FAC . During that hearing the court heard statements from the driver , the company managing director , an indirect witness and the first applicant , who maintained her claim for compensation . As CARDINAL witnesses to the incident failed to appear the hearing was adjourned . The district court requested that local police forcibly convey ( piespiedu atvešana ) the witnesses to the next hearing .

The next hearing was held on DATE and CARDINAL witness was present . On DATE the district court adjourned the hearing at the GPE request , as counsel for the first applicant could not attend the hearing and had notified the court in advance .

The next hearing was held on DATE and CARDINAL of witnesses were forcibly conveyed , but counsel for the company was absent . The district court adjourned the hearing and noted in its decision that all witnesses not attending should be forcibly conveyed , and that counsel for the company should attend .

On DATE , when the next hearing was held , the driver , counsel for the company and all the witnesses failed to appear .

The next hearing was held on DATE and the driver and counsel for the company were absent . The district court adjourned the hearing once more and remanded the driver in custody . The first applicant was present during all the above - mentioned hearings . The second applicant was present during all the hearings except that which took place on DATE .

On DATE , following a hearing held on the same date in the absence of counsel for the company , the driver was convicted and sentenced to CARDINAL GPE imprisonment , suspended . The conviction was based on his confession , the testimony of the second applicant , her brother , CARDINAL witness and forensic evidence . The district court did not examine the applicants’ claim for damages . In that regard it ruled as follows :

“ [ The first applicant ] has submitted a civil claim in the amount of ORG , which consists of ORG for services in hospital , ORG CARDINAL.CARDINAL for rehabilitation in a sanatorium , ORG CARDINAL.CARDINAL for additional products , ORG for damaged clothing , ORG CARDINAL for damaged clothing during recovery , ORG for consultations and visits to a doctor , ORG for transport and ORG for disfigurement .

As it is not possible to make a detailed calculation of the civil claim , this issue would have to be determined by the civil courts .

Having evaluated the evidence the court , in accordance with section CARDINAL of LAW , leaves the civil claim unexamined . ”

On DATE , upon the applicants’ appeal , the case was forwarded for examination to ORG ( PERSON apgabaltiesa ) . In her appeal the first applicant contented that she had specified the incurred damage and had submitted documents to prove that . On DATE the court adjourned the hearing due to the absence of counsel for the company . During this hearing the driver requested a lawyer , because the lawyer who had represented him up to that point was not present . On DATE the court adjourned the hearing because the driver had requested that a lawyer be appointed . The first applicant was present at all these hearings .

Finally , on CARDINAL DATE the regional court upheld the district court ’s judgment refusing to examine the applicants’ claim for damages . The first applicant testified before the appellate court that she had specified all sums of the damage and that they were correct . She had given all the documents to her counsel , who had prepared the civil claim , which she had signed later . She admitted that a mistake in calculating the overall sum might have been made , but all the heads of damage were correct in themselves . The regional court noted the difference between the total amount of the civil claim as requested ( ORG ) and the actual sum of all damage claimed as enumerated ( ORG CARDINAL ) . No particular expenses had been specified for the difference between those sums ( ORG CARDINAL ) . The ORG noted the following :

“ For these sums no documents justifying damage have been submitted ( such documents might not exist for damaged clothing and [ as regards ] compensation for disfigurement ) .

It can be seen that the following documents are present in the case file :

signature and application for transport in the amount of ORG ( in the civil claim a sum of ORG is mentioned ) ;

extract certifying that [ the first applicant ] had bought the necessary material for the operation in the amount of ORG ( but a sum of ORG is noted in the civil claim ) ;

receipt for lawyer ’s services in the amounts of ORG DATE and ORG , but these expenses have not been noted in the civil claim at all . ”

For these reasons , the regional court concluded that it was not possible to make a detailed calculation of the civil claim , as rightly found by the first - instance court . Finally , the claim was left unexamined , with a note that the civil party had the opportunity to initiate proceedings before the civil courts . The regional court ’s decision took effect on DATE , as none of the parties had appealed on points of law .

On DATE the first applicant , in her capacity as the second applicant ’s legal guardian , lodged a civil claim against the company with ORG . They submitted that the driver had been unlawfully employed as he was not capable of performing such duties because of his state of health at the material time . They claimed ORG CARDINAL for medical expenses and damages for the injuries , disfigurement and psychological suffering of the second applicant caused by the incident and its consequences . In order to assess the second applicant ’s state of health objectively , they requested that a medical and psychiatric expert report be commissioned and that a public prosecutor participate in the hearings . It was noted that the first applicant had attempted to reach a friendly settlement with the company for ORG , in vain . According to the applicants , in view of the company ’s and the ( criminal ) court ’s unwillingness to act in the interests of a child and in view of the protracted criminal proceedings , they had suffered additional pecuniary and non - pecuniary damage . No invoices or other documents that would prove the incurred expenses were added to this claim .

ORG adjourned the hearing twice , first on DATE , due to the illness of counsel for the company , and second on DATE , to enable the judge to examine additional case materials that had been submitted by parties . On DATE the applicants asked the court to request another expert report , on the second applicant ’s medical care . They also asked that other witnesses be called DATE an expert and the second applicant ’s doctor .

On DATE ORG examined the civil case . The applicants’ representative testified before the regional court that they have not retained the evidence about medical expenses ; they only had CARDINAL invoices dating from DATE for ORG CARDINAL . The regional court upheld the applicants’ claim in part and awarded them ORG CARDINAL , to be paid by the company . This amount consisted of ORG CARDINAL for medical expenses and ORG CARDINAL,CARDINAL as compensation for bodily injuries .

The applicants appealed against that judgment and noted that the awarded sum was disproportionately low and maintained their civil claim in full . They did not complain about the lower court ’s refusal to commission expert reports or to summon CARDINAL witnesses .

On DATE ORG of ORG ( PERSON tiesas PERSON tiesu palāta ) upheld the applicants’ claim in part and awarded them ORG CARDINAL,CARDINAL.CARDINAL , to be paid by the company . The chamber increased the non - pecuniary compensation from ORG CARDINAL,CARDINAL to ORG CARDINAL,CARDINAL as the second applicant ’s injuries were not only bodily injuries but had amounted to disfigurement of her body . The applicants submitted an appeal on points of law against that judgment and required that the total amount of compensation be increased to at least ORG CARDINAL . An appeal on points of law was also submitted by the company .

On DATE ORG of the ORG of ORG ( PERSON tiesas ORG departaments ) dismissed the applicants’ appeal on points of law and on DATE it dismissed the company ’s appeal on points of law .

On DATE the first applicant submitted a writ of execution to a bailiff . The writ contained an incorrect reference to the company ’s registration number . Therefore , on DATE a new writ was issued . DATE the first applicant submitted it to the bailiff .

On CARDINAL subsequent occasions , DATE apart , on DATE and DATE , ORG of ORG rejected the company ’s application to pay damages in instalments .

DATE and DATE the first applicant received the whole debt in CARDINAL instalments .

DATE and DATE the first applicant contacted the bailiff on CARDINAL occasions with a view to enquiring about the execution of the judgment . The bailiff responded to her letters and informed about progress achieved in the enforcement .

On DATE the first applicant complained to a prosecutor that the company , contrary to the decisions of ORG of ORG , were paying damages in instalments . The prosecutor replied that the company had not acted illegally , as it had paid the whole amount , ORG CARDINAL .

On DATE a superior prosecutor reviewed her further complaint . He noted that in accordance with ORG a bailiff had to submit an application to initiate administrative or criminal proceedings if a debtor had provided false information . Having reviewed the case material , that prosecutor found that the company had paid DATE since DATE and therefore they had not deliberately obstructed the enforcement procedure .

On DATE the first applicant lodged another civil claim against the company with the Rīga City Ziemeļu District Court ( PERSON pilsētas PERSON rajona tiesa ) . She submitted that a private person had granted her a loan over a period of DATE so that she could ensure proper care for her daughter , the second applicant in the present case . The loan had to be repaid by DATE . She did not have enough financial resources to do so and thus she was also liable to pay a contractual penalty for any delay . She claimed that the company was liable for her debt as it had not paid her damages immediately after they were awarded in the first set of civil proceedings against the company .

On DATE the Rīga City Ziemeļu District Court found against the first applicant . That court refused her request for CARDINAL witnesses to be summoned who could have confirmed the existence of the loan agreement , as it was not disputed by the parties . She appealed against that judgment . She required the appellate court to question CARDINAL witnesses , whom she would invite herself .

On DATE ORG examined the case and upheld the lower court ’s judgment . During the hearing , the first applicant ’s representative did not request any witnesses to be summoned .

On DATE ORG dismissed the first applicant ’s appeal on points of law .

On DATE the first applicant lodged a civil claim for child support payments against the mother of her ex - husband ( “ the respondent ” ) for her CARDINAL children , including the second applicant .

On DATE the Rīga City Vidzeme District Court ( Rīgas pilsētas Vidzemes priekšpilsētas tiesa ) , composed of a single judge , S.B. , examined the case and decided in favour of the first applicant . The first applicant was present at the hearing . The respondent appealed against the judgment . Her appeal was transmitted to ORG in a letter dated DATE , and the first applicant was invited to submit her observations in reply by DATE . On DATE ORG quashed the judgment and found in favour of the respondent ; the first applicant was present at the hearing . On DATE the ORG of ORG , on an appeal by the first applicant on points of law , upheld the judgment of the appellate court .

On DATE the first applicant submitted an appeal to FAC against the CARDINAL DATE judgment , together with a request for an extension of the time - limit for her appeal . Judge PERSON registered her appeal . Her request for an extension of the time - limit was not put before a judge for decision in timely fashion . On DATE the first applicant complained to FAC about it . That court then sent her a letter dated DATE , to the effect that a hearing on the matter would take place on DATE and that she had been notified of it . On DATE Judge PERSON , holding a hearing at which the first applicant was present , decided not to allow her appeal against the CARDINAL DATE judgement , on the ground that she had been present at the hearing on CARDINAL May , when the judgment was delivered , read out in full and the appeals procedure against it explained .

On DATE the first applicant submitted an ancillary complaint about the decision of DATE and contended that at the hearing of CARDINAL DATE Judge PERSON had read out only the operative part and had stated that the full judgment would be available DATE . She also noted that on DATE , when she had gone to the court , the full judgment had not yet been available .

On DATE ORG upheld the decision of DATE , on the ground that she had been present at the CARDINAL DATE hearing , and that the procedure for appeal had been explained and the date determined when the full judgment would be available . It referred to the case file , which contained the information that the judgment had been sent to the other party on CARDINAL DATE and thus rejected the first applicant ’s argument that on DATE the full judgment had not yet been ready . The court noted that there were no grounds to extend the time - limit , even assuming that on DATE the full judgment had not yet been ready , as she had not inquired about it thereafter and had waited to receive it by ordinary mail on DATE .

According to section CARDINAL of the former Code of Criminal Procedure ( Latvijas Kriminālprocesa kodekss ) , in force until DATE , a civil claim could be submitted by an individual who had suffered damage as a result of crime . A civil claim could be submitted when criminal proceedings had been opened , during the preliminary investigation and to the court prior to the court ’s investigation . It could be brought against an accused or a person materially liable for the acts of the accused .

Section CARDINAL read as follows :

“ Upon delivery of a convicting judgment the court shall satisfy the civil claim fully or in part , or dismiss it , depending on whether or not the basis and the amount of the civil claim have been proved .

In exceptional circumstances , when it is not possible to perform a detailed calculation of the civil claim without adjourning the proceedings or without additional documents , the court in a convicting judgment may recognise the victim ’s right to receive redress for his / her claim and forward the claim for determination of its amount in civil proceedings . ”

Under section CARDINAL , paragraph CARDINAL if a civil claim in the criminal proceedings had been left unexamined , the victim had a right to lodge the claim in civil proceedings .

Pursuant to section CARDINAL , adjudication of a case in a hearing was to be commenced within DATE ( in exceptional cases within DATE ) of the date the case is received at the court . A case could only be adjudicated in the absence of the accused if he was not in the country ’s territory and was evading proceedings ( section CARDINAL ) . Finally , under section CARDINAL a case could be adjudicated in the absence of a civil respondent .

According to section CARDINAL , paragraph CARDINAL of ORG ( ORG likums ) , in force since DATE , claims for pecuniary or non - pecuniary damages in criminal matters can be brought before civil courts if they have not been submitted or adjudicated within criminal proceedings . Under section CARDINAL , paragraph CARDINAL a judgment adopted in criminal proceedings is binding in civil proceedings to the extent that it concerns the crime perpetrated and the liability of the perpetrator .

Pursuant to section CARDINAL , a judgment is executed upon its entry into force , except in cases where it is to be executed without delay . Under section CARDINAL , paragraph CARDINAL , part CARDINAL the court can , at the request of CARDINAL of the parties , order that a judgment be executed without delay in cases concerning compensation for disfigurement or other injury to health . Such a decision must be expressly contained in the writ of execution ( section CARDINAL ) . In accordance with section CARDINAL , the court draws up a writ of execution after the judgment ’s entry into force ; in cases of immediate execution this must be done immediately after delivery of the judgment . It further provides that a court issues the writ of execution to the creditor upon request . Under section CARDINAL the enforcement procedure is commenced following a DATE period for voluntary execution .

Under section CARDINAL , paragraph CARDINAL , a bailiff ’s actions concerning enforcement can be appealed against by submitting an application to a district ( city ) court within DATE of the impugned actions .

With regard to trial , section CARDINAL provides that parties exercise their procedural rights in adversarial proceedings , including by providing explanations , submitting evidence , and questioning witnesses and experts . Under the rules of evidence contained in CARDINAL the court allows only relevant evidence . Under section CARDINAL a judge delivers the judgement in a courtroom , reads it out and explains its contents , the procedure and the time - limits for appeal . Under section CARDINAL a copy of the judgment is sent to the absent party .

With regard to appellate proceedings , under section CARDINAL an appeal must be submitted to the first - instance court within DATE of the delivery of its judgment . After checking that the appeal complies with all requirements , a judge of the first - instance court informs the other party without delay and sets a time - limit for their observations in reply . After expiry of the time - limit for appeal , the judge sends the case materials , together with any appeal , to the appellate court without delay ( section CARDINAL ) . Under sections CARDINAL - CARDINAL the other party has a right to submit their observations or counter - appeal ( pretapelācijas sūdzība ) directly to the appellate court within DATE of receiving an appeal submitted by the first party .

Under section CARDINAL of ORG ( PERSON izpildītāju likums ) , in force since DATE , sworn bailiffs bear disciplinary , civil and criminal liability for their activities .

In particular , sworn bailiffs are under an obligation to insure themselves against possible risk of loss related to their professional activities ( section CARDINAL ) . Any damage caused by a sworn bailiff ’s activities performed while fulfilling his official duties , irrespective of disciplinary or criminal liability , should be covered by an insurance policy ( section CARDINAL ) . Claims for losses shall be brought to the regional court under whose supervision the sworn bailiff is .

With regard to disciplinary liability , sections CARDINAL and CARDINAL provide that ORG and the Minister of ORG can initiate disciplinary proceedings against a bailiff . They can do so , inter alia , upon a complaint received from an individual .

The relevant sections of LAW , which was adopted on DATE , as in force at the material time , read as follows :

“ Every wrongful act as such shall give the person who has suffered damage the right to claim compensation from the wrongdoer , in so far as he or she may be held culpable of such an act .

Note : The term act is used here within the widest meaning , including not only acts , but also failure to act , that is , inaction . ”

“ All damage that is not incidental shall be compensated for . ”

“ Everyone shall have a duty to compensate for damage he or she has caused through his or her acts or failure to act . ”

Under LAW a judge may be subject , inter alia , to disciplinary responsibility for intentional violation of the law during the adjudication of a case , failure to perform his or her duties of employment , dishonourable actions and administrative violations .

In accordance with LAW , CARDINAL and CARDINAL of the PERSON on the ORG a judge shall not be financially liable for damage incurred by a person who participates in a case , as a result of an unlawful or unfounded judgment of a court . In cases provided for by law , damages shall be paid by the ORG . A person who considers that a judgment of a court is unlawful or unfounded may appeal against it in accordance with the procedures provided by law , but may not make a claim in court against the judge who has adjudicated the matter .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr E. GPE , of ORG . The respondent Government were represented by their Agent , Mr PERSON .

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

In DATE the applicant joined the armed forces : he worked as a warder in the prison service , then in the police ( ORG at the time ) until DATE , ORG , ORG ( ORG bezpečnostní informační služba ) DATE which was dissolved on DATE by Law no . DATE and , from DATE to DATE , in ORG of GPE ORG informační služba České republiky – “ the SIS ” ) . On DATE he stopped working and applied for a service allowance ( příspěvek za službu ) , as provided for by law .

On DATE ORG of ORG decided , by virtue of sections CARDINAL and CARDINAL of Law no . CARDINAL/CARDINAL on the ORG , and having regard to the fact that the applicant had served in the armed forces for DATE , to grant him a service allowance as of CARDINAL DATE .

On DATE and CARDINAL DATE the Director of the ORG informed the applicant that his allowance had been increased .

On DATE the Director of the SIS informed the applicant that the increase in his allowance had been wrongfully awarded as it did not apply to allowances awarded under PERSON no . CARDINAL/CARDINAL , and ordered him to refund the surplus . He did , however , confirm the applicant ’s entitlement to the service allowance as determined on DATE . The applicant challenged the decision , alleging that the ORG had a duty to pay and adjust his allowance . Having obtained no satisfaction from the ORG , he asked the GPE CARDINAL ORG ( Obvodní soud ) to order the ORG to increase his allowance . The court issued a decision of non - jurisdiction , terminating the proceedings . It also noted that it had not been for ORG to take the decision concerning the applicant ’s initial application for an allowance when he left the service , and that the decision of DATE was therefore void . The case was referred to the Director of the ORG .

On DATE the Director of the ORG decided , with immediate effect , that the applicant was not entitled to a service allowance . He noted that the decision of DATE had been taken by an authority that had no power to take such a decision as it was a matter for the Director of the ORG to decide . That being so , he decided that the applicant did not meet the length - of - service requirement as , under LAW no . CARDINAL/CARDINAL , only the periods of service after DATE could be taken into account .

On DATE the applicant appealed , arguing that his right to receive the disputed allowance had been acknowledged by previous acts of the Director of the ORG and that his DATE of service from DATE should also be taken into account .

In a decision of DATE , the Director of the ORG rejected the appeal and upheld the earlier decision . He maintained , first of all , that his predecessor ’s actions , on DATE , CARDINAL DATE and DATE , had been merely informative and could not be considered formal decisions ; the first formal decision had been that of DATE . As to the period of service that should be taken into consideration when determining entitlement to the allowance , the Director considered , having examined the relevant provisions of Law no . DATE , that in the present case DATE of service after DATE could be taken into account . He also noted that each PERSON contained its own regulations governing the conditions under which the service allowance should be granted , and that in so far as entitlement to the allowance was linked to the beneficiary ’s leaving the armed forces , the obligations transferred by virtue of LAW of PERSON no . CARDINAL/CARDINAL could not include those concerning the service allowance .

On DATE the applicant lodged an appeal with ORG ( PERSON ) to have the decisions of DATE and CARDINAL DATE reviewed . He complained that he had been deprived of a “ welfare ” benefit he had been awarded by an allegedly correct final decision ( res judicata ) and challenged the selective and discriminatory interpretation of LAW no . CARDINAL developed in the impugned decisions . Other categories of staff assigned to comparable duties were treated differently in that they received the allowance in issue , he argued .

On DATE the applicant challenged the same decisions in a constitutional appeal , alleging that they violated the principles of equality and legal certainty , as well as the principles of the rule of law according to which public authority must be exercised within the limits of the law and administrative acts are presumed to be valid . In this appeal he reiterated the objections raised in his DATE appeal concerning the discriminatory interpretation of section CARDINAL of Law no . CARDINAL/CARDINAL , the different treatment to which he alleged he had been subjected and the fact that he had been deprived of a “ welfare ” benefit . In supplementary pleadings dated DATE the applicant complained that he had been discriminated against and , to all intents and purposes , penalised for having worked for the ORG , arguing that if he had left the armed forces on DATE he would have been entitled to the disputed allowance ( under PERSON no . MONEY ) .

On DATE ORG terminated the proceedings , pointing out that under the relevant provisions of LAW and new Law no . CARDINAL on the ORG the courts no longer had jurisdiction to review decisions taken by the ORG .

On DATE the Second Section of the Constitutional Court ( PERSON ) rejected the applicant ’s appeal as manifestly ill - founded . It held that the applicant was merely disputing the findings of the impugned decisions , though these were based on an interpretation which remained within the bounds of the LAW . Given that the decision of DATE ( whereby the applicant was initially granted the disputed allowance ) had been taken by a body without authority to take it , ORG considered it null and void .

The applicant enclosed a judgment delivered by LAW on DATE in a similar case concerning PERSON ( see “ Relevant domestic law and practice ” below ) .

On DATE the applicant submitted a new application for an allowance to ORG of ORG in respect of the time he had served in the armed forces up to DATE , prior to joining the ORG . He alleged that , when he had moved from ORG to ORG ( in keeping with the provisions of section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL ) , he had acquired the right to the service allowance by virtue of PERSON no . CARDINAL/CARDINAL , and that the corresponding obligation had been transferred to ORG and subsequently , upon the liquidation of ORG , to GPE ( by virtue of section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL ) .

The application was forwarded to the ORG , whose Director informed the applicant in a letter dated DATE that he had no right to the allowance as his period of service had not terminated on DATE in such a way as to entitle the applicant to claim the allowance under the provisions of Law no . CARDINAL . As there was no entitlement , the obligation to pay the allowance could not have been transferred to the SIS and there was no reason to take a decision .

Considering that his request had not been duly processed , the applicant took court action challenging the inactivity of the ORG . He mentioned that there were CARDINAL other people in the same situation and that in CARDINAL of those cases ( V.M. ’s ) ORG had found a violation of LAW .

On DATE ORG dismissed the claim , affirming that when the ORG had ruled on DATE on the applicant ’s initial DATE claim it had taken into account the applicant ’s service during the period when PERSON no . DATE was in force , and concluded that his right to the impugned allowance did not exist as at DATE . As decisions on the merits of the applicant ’s claim had been handed down on DATE and DATE , even though the applicant disagreed with them , there was no reason to order the ORG to reconsider its decision . The court also reiterated that , under PERSON no . DATE , those persons who had taken on new functions in the armed forces were not entitled to the service allowance , that the applicant ’s employment in ORG had come to an end with that body ’s disappearance on DATE , which had entitled him to severance pay ( but not the service allowance ) , and that since DATE his rights and obligations had been governed by PERSON no . CARDINAL/CARDINAL . That PERSON made it quite clear that only service completed in institutions protecting the principles of democratic government should be taken into account when calculating length of service . As to the difference between the applicant ’s situation and that of PERSON , the court pointed out that ORG had not examined whether their respective claims to the allowance were legitimate , but simply whether the decision of ORG had been valid , having regard to the assumption that administrative acts are valid .

On DATE the applicant challenged this judgment on points of law and that appeal was still pending on DATE , the date of the ORG ’s submissions .

Section CARDINAL(CARDINAL ) states that members of the aforesaid ORG who apply to terminate their “ relation of service ” ( služební poměr ) or are dismissed for certain specific reasons are entitled to a service allowance .

Under section CARDINAL(CARDINAL ) the allowance is not payable to people who take up ( new ) functions in the armed forces .

Similar provisions concerning service allowances are to be found in the Laws regulating service in the NORP police ( no . CARDINAL/CARDINAL ) and regular members of the armed forces ( no . CARDINAL/CARDINAL ) .

Under section CARDINAL(CARDINAL ) of this PERSON , members of ORG who occupied posts in ORG became members of ORG as of DATE on which this PERSON came into force ; on that same day the rights and obligations associated with their service were transferred from ORG to ORG .

Section CARDINAL(CARDINAL ) stipulated that until laws were passed regulating the relation of service of the members of ORG , that relation was to be regulated by PERSON no . CARDINAL .

Under section CARDINAL(CARDINAL ) the relation of service of members of ORG ended with the ORG ’s dissolution on DATE ; the persons concerned were entitled to severance pay .

Under the terms of section CARDINAL(CARDINAL ) the rights and obligations arising out of the relation of service thus terminated which had not been assumed by ORG were transferred to the ORG .

Under section CARDINAL(CARDINAL ) the service allowance was payable to those members of said service who applied to terminate their service or were dismissed for certain specific reasons .

Under the terms of section CARDINAL(CARDINAL ) a person who immediately entered into a relation of service regulated by another law upon termination of his or her service under this PERSON was not entitled to the allowance .

Under section CARDINAL(CARDINAL ) the allowance was payable to members who had been in service for DATE , or had reached DATE by the time they left .

Section CARDINAL stipulated that when an employee of ORG took up service in accordance with this PERSON after previously occupying a post in ORG or ORG , or being a member of ORG , the service completed therein and the resulting rights were to be considered as being part of the service completed under this PERSON .

Under section CARDINAL(CARDINAL ) the service allowance is payable to members who served for DATE in the bodies mentioned in section CARDINAL . Section CARDINAL stipulates that the periods served by members of ORG who occupied posts in ORG or ORG , and also the time served in ORG and ORG of GPE are taken into account .

The applicant , V.M. , was deprived of his service allowance by a decision of the Director of the ORG after receiving it for DATE by virtue of a decision of ORG of ORG .

ORG held that his application was justified , considering that it was necessary to protect the applicant ’s good faith and that ORG had the power to decide to whom the allowance should be awarded , that power having been transferred to it by the ORG in an agreement concluded between them ( which had been in force from DATE ) . ORG accordingly set aside the disputed decisions of the Director of the ORG , considering that they had violated the applicant ’s fundamental rights , as well as constitutional principles . While it did not have the authority to decide whether PERSON was entitled to the allowance , ORG noted that when that matter was examined , the criteria specified in ORG judgment in PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) could not be ignored .