CASE OF PRAGER AND OBERSCHLICK v. AUSTRIA

Preliminary objection rejected (victim);No violation of Art. 10;Not necessary to examine Art. 14+10

Mr PERSON and Mr PERSON are journalists and live in GPE . The latter is the publisher ( ORG ) of the periodical Forum .

ORG On DATE Forum no . CARDINAL/CARDINAL published an article by Mr PERSON entitled " Danger ! Harsh judges ! " ( ORG ! ORG ! ) . The article , which was CARDINAL pages long , contained criticism of the judges sitting in the NORP criminal courts . He gave as sources for his article , in addition to his own experience of attending a number of trials , statements of lawyers and legal correspondents and surveys carried out by university researchers .

After a short summary of his main contention , followed by a general introduction , he described in detail the attitude of CARDINAL members of ORG ( PERSON für PERSON ) , including that of Judge PERSON

ORG The summary was worded as follows :

" They treat each accused at the outset as if he had already been convicted . They have persons who have travelled from abroad arrested in court on the ground that there is a danger that they will abscond . They ask people who are unconscious after fainting whether they accept their sentence . Protestations of innocence are greeted on their part with a mere shrug of the shoulders and attract for their authors the heaviest sentence because they have not confessed . - Some NORP criminal court judges are capable of anything ; all of them are capable of a lot : there is a pattern to all this . "

ORG In the general introduction the journalist attacked in the first place the judges who , according to him , for DATE exercised absolute power " in the domain of their court " , exploiting the smallest weaknesses or peculiarities in the accused . The susceptibility of judges was capable of turning the courtroom into a " battlefield " ; a convicted person who caused even the slightest offence to the self - esteem of a judge risked , through the effect of the latter ’s so - called unfettered discretion to assess the evidence , DATE of imprisonment or losing the possibility of having his sentence suspended .

Mr PERSON then criticised judges who acquitted only as a last resort , who handed down much heavier sentences than most of their colleagues , who treated lawyers like miscreants , who harassed and humiliated the accused to an excessive degree , who extended remand detention beyond the maximum duration of the sentence risked and who disregarded the jury ’s verdict when they did not agree with it . He maintained that their independence served only to inflate inordinately their self - importance and enabled them to apply the law in all its cruelty and irrationality , without any scruples and without anyone being able to oppose them .

Mr PERSON continued by recounting his personal experiences from meeting judges and visiting courtrooms , referring in this connection to the " arrogant bullying " ( menschenverachtende PERSON ) of Judge PERSON

ORG The article also gave a description of a number of individual judges . That of Judge PERSON read as follows :

" Type : rabid ... [ J. ] .

[ J. ] , addressing the GPE lawyer [ PERSON ] , counsel for the defence , DATE : ` Keep it short . I ’ve already reached my decision.’

[ J. ] : a judge who does not allow probation officers to sit down in his office . In fact he refuses to speak to them .

[ J. ] : a judge who once laid a complaint against a prostitute because he had already paid her when she and her pimp vanished without anything having happened . She probably thought that her client was too drunk to notice the difference . [ J. ] however lay in wait and took down the car ’s registration number .

[ J. ] ’s complaint resulted in the prostitute ’s conviction - and disciplinary proceedings for himself , which proved really effective because the smutty story , which at least says a lot for [ J. ] ’s pigheadedness , got into the newspapers .

Despite all this he almost became a public prosecutor . But the press revealed a story in which his name cropped up again , this time in connection with criminal proceedings and the suspicion of having given legal advice without due authorisation ( PERSON ) . CARDINAL men , PERSON and his son , were accused of having obtained money from people wishing to buy flats in old buildings , by means of fraudulent contracts . When it became clear that the contracts had been drawn up by [ J. ] , the prosecution changed tactics : suddenly it was no longer the contracts that were fraudulent , but the intention which lay behind their use .

[ J. ] remained a judge instead of becoming a public prosecutor . The editors of PERSON [ an NORP DATE newspaper ] now regret this because a public prosecutor is less dangerous .

In DATE Profil [ an NORP magazine ] showed why . In his capacity as an investigating judge , [ J. ] had left a drug addict in detention on remand for DATE , although the remand prisoner ’s officially appointed defence counsel repeatedly told him that he was mistaken about the quantity of drugs involved and that the relevant sentence would be from CARDINAL to CARDINAL months’ imprisonment .

Notwithstanding this , rather than forwarding the final plea of nullity to ORG , as he was required to do by the regulations , he transmitted it to ORG and to the President of ORG , who took a further DATE to consider whether the man should be released from prison and whether any mistakes had been made by the investigating judge .

A photocopier would have spared the prisoner at least those DATE . Released at DATE by the new judge to whom the case - file had been forwarded by ORG judges , the case having at last been brought before them , the prisoner , who had spent DATE in prison , was finally sentenced to CARDINAL months’ imprisonment at DATE .

The CARDINAL defence lawyers appointed by the authorities to act for [ J. ] ’s victim calculate that the ORG fees alone up to that date amounted to MONEY .

All this does not seem to have left Judge [ J. ] unscathed . The tall , bearded judge has a deep , resonant voice . Yet throughout the trial of PERSON , the ` holiday - thief’ , a persistent tick was to be seen on the face of Judge [ S. ] ’s colleague on the PERSON .

Then the jury ’s verdict was suspended and defence counsel [ PERSON ] found himself facing disciplinary proceedings . "

ORG On DATE Judge PERSON brought an action against Mr PERSON for defamation ( üble GPE , LAW paragraph CARDINAL below ) . In addition to the seizure of the relevant Forum issue and the publication of extracts of the judgment , he sought , inter alia , damages from the publisher and an order imposing a fine on the latter jointly and severally with the author and requiring them to pay the legal costs ( sections CARDINAL to CARDINAL of LAW , see paragraph CARDINAL below ) .

ORG On CARDINAL DATE the applicants challenged ORG and ORG ( Oberlandesgericht ) . On DATE ORG ( Oberster Gerichtshof ) dismissed the challenge concerning ORG . On DATE it allowed that directed against ORG and transferred the case to ORG .

ORG On DATE ORG found Mr PERSON guilty of having defamed Judge PERSON by passages in the impugned article , which were cited as follows :

( CARDINAL ) " They treat each accused at the outset as if he had already been convicted . "

( CARDINAL ) " Some NORP criminal court judges are capable of anything . "

( CARDINAL ) " Nothing was comparable to ... Judge [ J. ] ’s arrogant bullying . "

( CARDINAL ) " Type : rabid ... [ J. ] . "

( CARDINAL ) " Despite all this he almost became a public prosecutor . But the press revealed a story in which his name cropped up again , this time in connection with criminal proceedings and the suspicion of having given legal advice without due authorisation . CARDINAL men , PERSON and his son , were accused of having obtained money from people wishing to buy flats in old buildings , by means of fraudulent contracts . When it became clear that the contracts had been drawn up by [ J. ] , the prosecution changed tactics : suddenly it was no longer the contracts that were fraudulent , but the intention which lay behind their use .

[ J. ] remained a judge instead of becoming a public prosecutor . The editors of PERSON now regret this because a public prosecutor is less dangerous . "

Applying Article CARDINAL of LAW , ORG sentenced Mr PERSON to DATE fines at the rate of QUANTITY ( ORG ) per day and to CARDINAL days’ imprisonment in the event of non - payment . Mr PERSON was ordered to pay Judge J. damages of ORG CARDINAL,CARDINAL and was declared jointly and severally liable with the first applicant in respect of the fine and the legal costs ( sections CARDINAL ( CARDINAL ) and CARDINAL of LAW ) . Finally , the court ordered the confiscation of the remaining stocks of the relevant issue of Forum and the publication of extracts from its judgment .

ORG In the grounds of its judgment ORG noted in the first place that the objective elements of the offence of defamation were made out . Of the contested passages , nos . CARDINAL and CARDINAL openly attributed to the plaintiff a despicable character or attitude ( eine verächtliche Eigenschaft oder GPE ) , while nos . CARDINAL , CARDINAL and DATE accused him of conduct that was dishonourable and dishonest and that could objectively expose him to contempt or denigrate him in the public eye ( ein unehrenhaftes MONEY die PERSON , das objektiv geeignet ist , ihn in der öffentlichen Meinung verächtlich zu machen oder herabzusetzen ) . In short , confronted with such wholesale criticism , an impartial reader had little choice but to suspect that the plaintiff had behaved basely ( ehrloses ORG ) and that he was of despicable character ( verächtliche ORG ) , and the author had , moreover , been perfectly well aware of this .

ORG then examined Mr PERSON ’s applications for the production of documents and testimony intended to establish the truth of his statements and the journalistic care that he had exercised in writing the article . The court took the view that only passages CARDINAL . CARDINAL , CARDINAL and CARDINAL were susceptible to this type of proof , as the other statements were value - judgments . After considering the matter , it decided that none of the evidence offered could sufficiently substantiate the allegations in issue .

Thus statement no . CARDINAL , according to which Judge PERSON treated every accused at the outset as if he had already been convicted , was not proved merely by the fact that the judge in question had , in a given case , asked defence counsel to be brief , as he had already made up his mind . Similarly , the CARDINAL decisions of Judge PERSON reported by PERSON in support of statement no . CARDINAL were not sufficient to bear out the allegation that the judge had adopted bullying tactics . None of these decisions disclosed the slightest intention to cause unnecessary suffering . Lastly , the accusations made in passage no . CARDINAL had been definitively refuted by a disciplinary decision of ORG of DATE . The CARDINAL files whose production the applicant had requested could not alter the position , since the first contained no information on the personality of Judge PERSON and the second , relating to the judge ’s candidature for the office of public prosecutor , had to remain confidential .

In the court ’s view , PERSON had also failed to prove that he had written the article in issue with the care required of journalists by LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . Not content with having denied Judge PERSON an opportunity to answer the accusations levelled against him , his research had been conducted in a very superficial manner ; moreover , he had himself admitted that he had not attended any trials presided over by Judge PERSON , that he had reproduced the content of old newspaper articles without checking their accuracy and had represented as true allegations based on hearsay .

ORG On DATE ORG upheld this judgment , but reduced the damages to LAW ( see paragraph CARDINAL above ) . It held in particular that ORG had in no way infringed the rights of the defence by dismissing as immaterial the evidence that Mr PERSON had sought to adduce . This situation had arisen because of the way in which he had formulated his criticism . It had been so comprehensive and general that it had been impossible to specify evidence capable of establishing its accuracy . The case could , moreover , be distinguished from the case of PERSON v. GPE ( judgment of ORG DATE , Series A no . CARDINAL ) in that it concerned the affirmation of various facts rather than the expression of value - judgments . As regards the care that journalists are required to exercise in pursuing their profession , it must obey the rule " audiatur et altera pars " .

ORG The remaining copies of the issue in question were never in fact seized ( see paragraph CARDINAL above ) .

ORG Article CARDINAL of the Criminal Code provides :

" CARDINAL . Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . "

Article CARDINAL provides :

" Evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ... "

Under LAW para . CARDINAL " conduct of the kind mentioned in LAW ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right " . Under paragraph CARDINAL of the same provision " a person who is forced for special reasons to make an allegation within the meaning of LAW ... in the particular form and manner in which it was made , shall not be guilty of an offence , unless that allegation is untrue and he could have realised this if he had exercised due care ... " .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . Furthermore , the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings ( section CARDINAL ) .

The person defamed may request the forfeiture of the publication by which a media offence has been committed ( section CARDINAL ) . Under section CARDINAL he may also request the immediate seizure of such a publication if section CARDINAL is likely to be applied subsequently , unless the adverse consequences of seizure would be disproportionate to the legal interest to be protected by this measure . Seizure shall not be ordered if that interest can instead be protected by the publication of information that criminal proceedings have been instituted ( section CARDINAL ) . Finally , the victim may request the publication of the judgment in so far as this appears necessary for the information of the public ( section CARDINAL ) .

Section CARDINAL ( CARDINAL ) provides , inter alia , that publishers and journalists will avoid conviction of an offence in respect of information susceptible to proof as to its accuracy , not only if they provide such proof , but also if there was a major public interest in publishing the information and reasons which , in exercising proper journalistic care , justified giving credence to the statement in question .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

NORP , may be summarised as follows .

On DATE , at ORG , the applicant pleaded guilty to conspiracy fraudulently to evade excise duty on alcoholic liquor in contravention of section CARDINAL of ORG . On DATE PERSON made a restraint order prohibiting disposal by the claimant of his assets and on CARDINAL DATE he was sentenced to CARDINAL months’ imprisonment .

Pursuant to section CARDINALA of LAW DATE ( “ the ORG DATE ” ) , save in exceptional circumstances confiscation proceedings should be concluded DATE after conviction . At a directions hearing on DATE the judge was told that the DATE statutory time limit for making a confiscation order would expire on DATE . He noted that “ we may have to extend the period ” . A date was agreed for service of the applicant ’s responses to the ORG ’s statements and it was ordered that a further directions hearing should be listed within DATE . This further hearing took place on DATE . The judge noted the court ’s power to extend the DATE time limit and no objection was raised by counsel for the applicant . The confiscation proceedings took place on DATE . The judge made an order against the applicant in the sum of GBP CARDINAL to be paid by DATE , with CARDINAL months’ imprisonment in default .

The applicant sought leave to appeal against the confiscation order . He submitted that the court had no jurisdiction to make the order because it was imposed DATE after his conviction in breach of the statutory time limit under section CARDINALA of the ORG DATE . At the time there was judicial uncertainty about whether failure to comply with the DATE time limit would deprive the court of jurisdiction to make a confiscation order . Permission to appeal was granted on DATE and enforcement of the confiscation order was suspended pending the outcome of the appeal .

On DATE ORG considered a group of appeals lodged on the same ground as that of the applicant , namely that ORG did not have jurisdiction to make a confiscation order outside the DATE time limit . ORG held that a procedural irregularity did not necessarily deprive the court of jurisdiction to make a confiscation order . CARDINAL of the appellants ( PERSON ) obtained leave to appeal to ORG . His appeal was joined to that of another appellant ( ORG ) .

On DATE the applicant issued an out - of - time notice of appeal against conviction on the ground that his conviction had been tainted by non - disclosure .

On DATE ORG stayed the applicant ’s appeal against the confiscation order pending the ORG of Lords’ decisions in R v. ORG and R v. PERSON .

On DATE ORG refused the applicant leave to appeal out of time against his conviction .

The decisions in R v. ORG [ DATE ] ORG CARDINAL and R v. PERSON [ DATE ] UKHL CARDINAL were handed down by ORG on DATE . In those decisions ORG affirmed ORG conclusion that a procedural irregularity would not necessarily deprive the court of jurisdiction to make a confiscation order . Following publication of the decisions , counsel advised the applicant against continuing his appeal and withdrew from the case . However , with the assistance of his solicitors the applicant did continue the appeal . His solicitors sought leave to amend the grounds of appeal to include CARDINAL further grounds : first , that the confiscation order was unlawful because it had been made in respect of facts constituting a substantive offence when the applicant had only pleaded guilty to the prior and distinct offence of conspiracy ; and secondly , that the duration of the proceedings up to the date of the appeal had been unreasonably long , in breach of LAW .

On DATE the application to amend the grounds of appeal was considered together with the substantive merits of the appeal . Permission to amend the grounds was refused , the substantive appeal was dismissed , and the court declined to certify that points of law of general public importance were involved in the decision . PERSON found that the ORG judge ’s reasons for extending the DATE time limit “ were the proper administration of justice , based upon judicial availability . They explicitly were not for the purpose of allowing the ORG to secure more information ” . Applying R v. PERSON and R v. PERSON , she held that artificial adherence to statutory time limits was outwith the intentions of ORG and that the appeal should therefore be dismissed .

On DATE the applicant sought leave to appeal to ORG . On DATE leave was refused . On DATE , the applicant submitted his application to this ORG .

On DATE ORG ( “ RCPO ” ) wrote to the applicant seeking his proposals for payment of the outstanding confiscation order . On DATE the applicant ’s solicitor asked the RCPO to delay enforcement proceedings pending consideration of his application to the ORG . The RCPO declined and confiscation enforcement proceedings against the applicant took place on DATE . ORG rejected the applicant ’s submission that to continue the enforcement proceedings would be an abuse of process and a breach of LAW . The applicant applied for permission to judicially review this decision . In the meantime the enforcement proceedings were adjourned to DATE for a NORP enquiry to take place .

On DATE the District Judge refused to stay the enforcement proceedings pending determination of the application for permission to apply for judicial review . However , he adjourned the FAC enquiry to DATE .

On DATE the applicant made a further application to ORG for a stay of the enforcement proceedings . On DATE ORG refused the application for permission to apply for judicial review and the application for urgent interim relief . However , the application for interim relief was subsequently granted at an oral hearing on DATE and at a further oral hearing on DATE the applicant was granted permission to apply for judicial review .

On DATE the applicant was found to be in contempt of court in relation to numerous breaches of the restraint order and was ordered to pay GBP CARDINAL within DATE . The applicant satisfied this judgment on DATE .

On DATE the application for judicial review was heard by ORG . The applicant sought to argue that the delay between his arrest and conviction and the confiscation proceedings was unreasonable in its length of time and that the proceedings should be stayed as an abuse of process or a breach of LAW . On DATE a ORG Judge dismissed the applicant ’s judicial review application . In particular , he noted that the slow progress of the appeal against the confiscation order was interrupted by the supervening decision of the applicant to seek leave to appeal out of time against conviction . As the application for leave took place within a reasonable time , the only period of delay which was both material and unexplained was the period DATE ( the hearing of the application for leave to appeal against conviction out of time ) and DATE ( publication of opinions of ORG in NORP v. PERSON and R v. PERSON ) . However , the judge accepted that the decision to await the outcome of the proceedings before ORG was eminently sensible even if it did prolong the period before the applicant ’s appeal could be heard by ORG .

On DATE the judge refused to certify a point of law of public importance and refused permission to appeal to ORG .

On DATE the applicant was imprisoned until the outstanding confiscation figure was paid . Following large contributions from family and friends , the outstanding balance was paid in its entirety on DATE and the applicant was released from prison .

Section CARDINAL of LAW DATE , in force at the time the confiscation order was made , states :

“ ( CARDINAL ) Where an offender is convicted , in any proceedings before ORG or a GPE court , of an offence of a relevant description , it shall be the duty of the court—

( a ) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section , or

( b ) if the court considers , even though it has not been given such notice , that it would be appropriate for it so to proceed ,

to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct .

( CARDINALA ) The court shall first determine whether the offender has benefited from any relevant criminal conduct .

( CARDINALB ) Subject to subsection ( CARDINAL ) below , if the court determines that the offender has benefited from any relevant criminal conduct , it shall then—

( a ) determine in accordance with subsection ( CARDINAL ) below the amount to be recovered in his case by virtue of this section , and

( b ) make an order under this section ordering the offender to pay that amount . ”

Section CARDINALA of LAW DATE , in force at the time the confiscation order was made , states :

“ ( CARDINAL ) Where a court is acting under LAW above but considers that it requires further information before—

( a ) determining whether the defendant has benefited as mentioned in section CARDINAL(CARDINAL)(b)(i ) above ;

( b ) determining whether his benefit is at least the minimum amount ; or

( c ) determining the amount to be recovered in his case by virtue of section DATE above ,

it may , for the purpose of enabling that information to be obtained , postpone making that determination for such period as it may specify .

( CARDINAL ) CARDINAL postponement may be made under subsection ( CARDINAL ) above in relation to the same case .

( CARDINAL ) Unless it is satisfied that there are exceptional circumstances , the court shall not specify a period under subsection ( CARDINAL ) above which—

( a ) by itself ; or

( b ) where there have been one or more previous postponements under subsection ( CARDINAL ) above or ( CARDINAL ) below , when taken together with the earlier specified period or periods ,

exceeds DATE beginning with the date of conviction .

( CARDINAL ) Where the defendant appeals against his conviction , the court may , on that account -

( a ) postpone making any of the determinations mentioned in subsection ( CARDINAL ) above for such period as it may specify ; or

( b ) where it has already exercised its powers under this section to postpone , extend the specified period .

( CARDINAL ) A postponement or extension under subsection ( CARDINAL ) or ( CARDINAL ) above may be made -

( a ) on application by the defendant or the prosecutor ; or

( b ) by the court of its own motion .

( CARDINAL ) Unless the court is satisfied that there are exceptional circumstances , any postponement or extension under subsection ( CARDINAL ) above shall not exceed DATE after the date on which the appeal is determined or otherwise disposed of . ”

In NORP v. PERSON [ DATE ] ORG CARDINAL and R v. PERSON [ DATE ] UKHL CARDINAL , ORG considered the consequences of failure to comply with section CARDINALA , and in particular the time limits under section CARDINALA(CARDINAL ) . The court held that , although there existed no common law power to adjourn , ORG had not intended to disable the courts from making confiscation orders after sentence merely because the time - limits were not strictly adhered to . It further held that the requirement for “ exceptional circumstances ” under section CARDINALA(CARDINAL ) should not be strictly construed .

By virtue of section CARDINAL of LAW DATE and sections CARDINAL and CARDINAL of the Powers of ORG ) Act DATE ORG confiscation orders are enforceable in ORG as fines . LAW of LAW DATE confers on ORG several powers for enforcing fines , including the issue of a warrant for commitment for service of the default term of imprisonment for non - payment or the issue of a warrant of distress . By virtue of LAW of LAW , payment of the total sum due will result in a person ’s release from the default term of imprisonment and any partial payment will result in a pro rata reduction of the term of imprisonment .

In the case of ORG CARDINAL Cr App R CARDINAL ORG found that LAW applied to all stages of the confiscation order and enforcement process and that a defendant had a right to have enforcement proceedings brought against him within a reasonable time .


Preliminary objection rejected (victim, six-month period);Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

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

After her marriage on DATE the applicant , who was then a trainee lawyer , took her husband ’s name pursuant to LAW . As she was known by her maiden name in her professional life , she continued putting it in front of her legal surname . However , she could not use both names together on official documents .

On DATE the applicant brought proceedings in ORG ( “ ORG ” ) for permission to use only her maiden name , “ GPE . On DATE ORG Instance dismissed the applicant ’s request on the ground that , LAW , married women had to bear their husband ’s name throughout their married life .

An appeal by the applicant on points of law was dismissed by ORG on DATE . The decision was served on the applicant on DATE .

By CARDINAL of the amendments made to LAW on DATE , married women acquired the right to put their maiden name in front of their husband ’s surname . The applicant preferred not to make use of that possibility because , in her view , the amendment in question did not satisfy her demand , which was to use her maiden name alone as her surname .

On DATE the new Civil Code was enacted . Article CARDINAL was worded identically to the former LAW .

The Civil Code :

“ Married women shall bear their husband ’s name . ... . ”

“ Married women shall bear their husband ’s name . However , they can make a written declaration to ORG on signing the marriage deed , or at ORG after the marriage , if they wish to keep their maiden name in front of their surname ... . ”

The LAW :

“ All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds .

International treaties that are duly in force are legally binding . Their constitutionality can not be challenged in ORG . ”

“ Where a court considers that the applicable provisions of a law or legislative decree are contrary to the LAW or that one of the parties has raised a serious objection on grounds of unconstitutionality , it shall defer its decision until ORG rules on the question .

The Constitutional Court shall rule and deliver its judgment publicly within DATE on which the case was referred to it . If judgment has not been delivered within the aforesaid time - limit , the lower court shall rule on the case in accordance with the statutory provisions in force . However , if it receives the judgment of ORG before the judgment on the merits becomes final , the lower court is obliged to comply with it .

After LAW was amended ORG raised an objection with ORG , arguing that the provision was unconstitutional . In a decision of CARDINAL DATE ( E CARDINAL/CARDINAL , PERSON ) the ORG dismissed the objection for the following reasons :

“ The rule according to which married women bear their husband ’s name derives from certain social realities and is the result of the codification of certain customs that have formed DATE in NORP society . According to the thinking behind family law , the purpose of the rule is to protect women , who are of a more delicate nature than men , strengthen family bonds , nurture the prosperity of the marriage , and preclude bicephalous authority within the same family .

For the sake of protecting family unity the legislature has recognised the primacy of the husband ’s name over the wife ’s . Considerations of public interest and policy have been decisive . Moreover , under the new provision women are now allowed to keep their maiden name in front of their surname ... .

Furthermore , the contention that this provision infringes LAW , which prohibits any discrimination on the ground of sex , is not founded either . The principle of equality within the meaning of LAW does not mean that everyone is subject to the same rules of law . The special characteristics of each person or each group of persons may reasonably justify the application of different rules of law ... . ”

CARDINAL texts of ORG deal with the issue of family name or equality between the sexes in general contexts : Resolution ( CARDINAL ) CARDINAL of DATE on equality of spouses in civil law ( which precedes the said LAW ) and Recommendation R ( CARDINAL ) CARDINAL of CARDINAL DATE on legal protection against sex discrimination .

In the resolution ORG observes that certain forms of sex discrimination still exist in the legislation and practice of some member states and calls on these states to eliminate all such discrimination in the choice of family name and the transmission of GPE surnames to their children . Paragraph CARDINAL of the resolution proposes a number of solutions to this effect :

“ CARDINAL . ... regulate matters concerning the family name of the spouses to ensure that a spouse is not required by law to change his family name in order to adopt the family name of the other spouse and , in doing so , to be guided for instance by CARDINAL of the following systems :

i. choice of a common family name in agreement with the other spouse , in particular the family name of CARDINAL of the spouses , the family name formed by the addition of the family names of both spouses or a name other than the family name of either spouse ;

ii . retention by each spouse of the family name he possessed prior to marriage ;

iii . formation of a common family name by the operation of law by the addition of the family names of both spouses ; ”

In the recommendation ORG , aware that equality between men and women has not yet been fully achieved in this area in spite of the extensive work carried out by member states , recommends the member states to take or reinforce , as the case may be , all measures they consider appropriate with a view to achieving that equality in respect of , among other things , the family name . The measures may be implemented not only by legislative changes , but also by the creation of effective legal remedies against discrimination and sanctions in case of failure to comply with such provisions . It also recommends the adoption of suitable machinery to promote this equality ( mediation body for example ) .

In its LAW ( DATE ) of DATE on discrimination between men and women in the choice of a surname and in the passing on of GPE names to children the ORG recommends that ORG identify those member states which retain sexist discrimination and ask them to take the appropriate measures to , inter alia , “ ensure strict equality in the event of marriage with regard to the choice of a common surname for both marriage partners ” ( no . CARDINAL , ii ) .

In its reply of DATE ORG accepted that each country had its own legal system in this area , depending on “ customs and local traditions ” , but stressed that these legal systems should not include any discriminatory provisions . It was with this in mind that the recommendation was transmitted to ORG member states .

In its Recommendation CARDINAL ( DATE ) of DATE the ORG considered that it was not enough for ORG merely to transmit the DATE recommendation to member states . It recommended that ORG ask each member state to advise it of the period within which it undertook to comply with the principle of non - discrimination . As to the rest , it reiterated its previous recommendations .

NORP In reply ORG stated on DATE that it shared the views of ORG in that respect and informed it that it had transmitted both recommendations to ORG ( ORG ) and to ORG ( ORG ) for them to examine the situation in detail and suggest action to be taken within a reasonable time scale .

The ORG had already examined the issues raised by the choice of family name by married couples in DATE as a follow - up to Recommendation no . CARDINAL of the XIIIth Conference of NORP Ministers of Justice . In its final activity report of DATE concerning the acquisition of a family name the ORG concluded that the wide variety of solutions adopted by national laws made any attempt at harmonisation in this field difficult .

The ORG reconsidered the question in DATE and then in DATE after ORG had transmitted the CARDINAL recommendations by ORG . The examination of the issue was entrusted to ORG . Experts from different countries were asked to submit observations on the legal position and practice in their country . From the observations submitted by the various Governments it emerged that many countries had recently reformed their legislation or that a reform was then underway in respect of other countries ( see , for example , GPE , ORG ( CARDINAL ) CARDINAL , GPE , ORG ( CARDINAL ) CARDINAL , GPE , ORG ( CARDINAL ) CARDINAL ) . The reforms promoted greater clarity and complete equality between men and women before the law regarding their surname .

The ORG examined these observations in the light of ORG ( CARDINAL ) DATE and Recommendation R ( CARDINAL ) CARDINAL of ORG . While noting that the solutions provided by the resolution were still valid , it found that implementation of the resolution by some countries was still incomplete even if most had eliminated all discrimination concerning the surname of spouses . Although the existence of different customs and traditions precluded a unique solution , paragraph CARDINAL of ORG ( CARDINAL ) CARDINAL provided a large choice of non - discriminatory solutions . The committee proposed , lastly , that ORG fix a time - limit for undertaking legislative reforms .

ORG reconsidered the matter on the basis of that opinion . In DATE it noted that certain GPE did not meet the conditions contained in the resolution regarding , among other things , the joint name of married couples ( Extract from the report of the CARDINALth meeting of the ORG , ORG ( CARDINAL ) CARDINAL , Appendix III ) and asked them to re - examine their laws on this subject . It also encouraged them to implement the principle contained in paragraph CARDINAL of LAW on the elimination of all forms of discrimination against women ( adopted by ORG of ORG on DATE , Treaty Series , vol . CARDINAL , DATE , no . ORG , pp . CARDINAL et seq . ) and to withdraw the reservations made to this provision . In its conclusions the ORG considered that the diversity of customs and local traditions should be respected , but that the GPE concerned should be requested to take all necessary steps to avoid such discrimination between men and women ( nos . CARDINAL and DATE ) .

In its draft opinion sent to ORG in DATE the ORG found that several GPE had recently amended their domestic laws in this respect , but that others had not yet done so ( no . CARDINAL ) . It considered that the diversity of customs and local traditions should be respected and that there was no reason to impose a uniform system . LAW ( CARDINAL ) DATE already provided a large choice of solutions ( no . CARDINAL ) . States which still have provisions that discriminate against women in respect of surnames must take all necessary steps , in due course , to avoid such discrimination ( no . CARDINAL ) .

Article CARDINAL of LAW ( adopted by ORG of ORG on DATE ) provides that “ GPE Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant . ” This requirement of equality is confirmed in respect of marriage in DATE , paragraph CARDINAL , the text of which served as a basis for LAW No . CARDINAL to the LAW , which GPE has not yet ratified ( see above ) :

“ GPE Parties to the present LAW shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage , during marriage and at its dissolution . In the case of dissolution , provision shall be made for the necessary protection of any children . ”

The LAW has been ratified by many member states of ORG , but not by GPE ( which signed it on DATE ) .

The United Nations Human Rights Committee has interpreted LAW , paragraph CARDINAL , as obliging GPE Parties to ensure that there is no discrimination between men and women , including in respect of the right of each spouse to keep using their own surname or to have an equal say in the choice of new surname .

In addition , LAW , paragraph CARDINAL(g ) of the Convention on the elimination of all forms of discrimination against women provides :

“ GPE Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure , on a basis of equality of men and women :

( g ) The same personal rights as husband and wife , including the right to choose a family name , a profession and an occupation ; ”

Many member states of ORG have ratified this convention , including GPE . When it ratified it , on DATE , GPE made a reservation to the effect that certain provisions of the Civil Code concerning family relations might not be compatible with ORG CARDINAL and CARDINAL of the LAW , including LAW , paragraph CARDINAL(g ) . In a declaration of DATE ORG withdrew that reservation .

The committee with the task of applying this convention ( Part V , Articles CARDINAL et seq . ) has , in reports concerning different countries ( CEDAW Report of CARDINAL DATE , ORG part I ( DATE ) CARDINAL , § § CARDINAL and CEDAW Report of DATE , A/CARDINAL/CARDINAL part I ( DATE ) CARDINAL , § § CARDINAL - CARDINAL ) , affirmed women ’s rights regarding the choice of family name and the possibility of keeping their own name if they so desire .

THE LAW

The Government raised CARDINAL preliminary objections based , respectively , on the applicant ’s lack of victim status and the failure to comply with the DATE time - limit .

The Government disputed that the applicant was a victim within the meaning of LAW . They observed that at the time of her marriage the applicant , who was a trainee lawyer , was not qualified to practise as a lawyer . When she began practising she had already taken her husband ’s name . The Government therefore maintained that the applicant ’s change of name following her marriage could not have created problems in her professional life .

The applicant contended that it was during their legal training that trainees established their first professional links and that this period could not be dissociated from the rest of their career . She also submitted that , beyond the professional aspect , a person ’s name was particularly important in the construction of their identity . The obligation on the applicant to change her maiden name as a result of her marriage had thus given rise to an irreversible severance with her past .

The ORG is not required to determine whether the obligation on the applicant to change her surname as a result of marrying when she was a trainee lawyer may adversely affect her subsequent professional life . It reiterates that besides professional or business contexts , the surname concerns and identifies a person in their private and family life regarding the ability to establish and develop social , cultural or other relationships with other human beings ( see , mutatis mutandis , Niemietz v. GPE , judgment of DATE , Series A no . CARDINAL-B , § CARDINAL ) . The ORG considers that in the instant case the refusal to allow the applicant to use just her own surname , PERSON , by which she claimed to have been known in private circles and in her cultural or political activities may have considerably affected her non - professional activities .

The applicant is therefore a victim of the impugned decisions ( see , to the same effect , PERSON GPE , judgment of CARDINAL DATE , series A no . CARDINAL , § CARDINAL ) .

The Government pleaded failure to comply with the DATE rule . In their submission , given that the situation complained of flowed from the domestic law the national courts were not in a position to accede to the applicant ’s request . In these conditions the application should have been lodged within DATE of her marriage , that is , by DATE at the latest .

The ORG reiterates that where no domestic remedy is available in respect of an act alleged to be in violation of the LAW , the DATE time - limit in principle starts to run from the date on which the act complained of took place or the date on which an applicant was directly affected by such an act . However , special considerations might apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware of the circumstances which make that remedy ineffective . In such a situation , the DATE period might be calculated from the time when the applicant becomes aware of these circumstances ( see ORG v. GPE ( dec . ) , nos . CARDINAL , CARDINAL and CARDINAL , ORG CARDINALIII ( extracts ) ) .

In the instant case it is true that the position complained of before the ORG was actually in conformity with the provisions of LAW . However , the ORG notes that in the proceedings before them the domestic courts could have directly applied the provisions of the LAW , which forms an integral part of the domestic law by virtue of LAW , or raised an objection that LAW was unconstitutional ( under LAW ) and , lastly , they could have granted the applicant ’s request . Consequently , even if it is accepted that the remedy offered only a remote prospect of success , as alleged here , it was not a futile step . Accordingly , it had the effect at least of postponing the beginning of the DATE period ( see , mutatis mutandis , NORP v. GPE , judgment of DATE , Series A no . CARDINAL-B , LAW ) .

This preliminary objection of the Government must therefore be rejected .

II . ALLEGED BREACH OF LAW TAKEN IN CONJUNCTION WITH LAW

The applicant submitted that the national authorities’ refusal to allow her to bear only her maiden name after her marriage amounted to a breach of LAW , read alone and in conjunction with LAW .

LAW provides :

“ CARDINAL . Everyone has the right to respect for his private and family life , his home and his correspondence .

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a NORP society in the interests of national security , public safety or the economic well - being of the country , for the prevention of disorder or crime , for the protection of health or morals , or for the protection of the rights and freedoms of others . ”

Article CARDINAL provides :

“ The enjoyment of the rights and freedoms set forth in [ the ] Convention shall be secured without discrimination on any ground such as sex , race , colour , language , religion , political or other opinion , national or social origin , association with a national minority , property , birth or other status . ”

NORP In view of the nature of the allegations made , the Court considers it appropriate to examine the case directly under LAW taken together with LAW .

The Government disputed the applicability of LAW in the present case . They maintained that the choice of name was not entirely a matter of a person ’s individual choice and that the States had a wide margin of appreciation in the area . In their submission , the legislation on assigning names had to remain within the ORG ’s domain and did not come within the scope of the Convention .

The ORG reiterates that LAW does not contain any explicit provisions on names , but as a means of personal identification and of linking to a family , a person ’s name nonetheless concerns his or her private and family life . The fact that there may exist a public interest in regulating the use of names is not sufficient to remove the question of a person ’s name from the scope of private and family life , which has been construed as including , to a certain degree , the right to establish relationships with others ( see PERSON , cited above , § CARDINAL ) .

The subject - matter of the complaint thus falls within the scope of LAW .

The applicant complained that the authorities had refused to allow her to bear only her own surname after her marriage whereas NORP law allowed married men to bear their own surname . She submitted that this resulted in discrimination on grounds of sex and was incompatible with Article CARDINAL taken together with LAW .

The Government acknowledged that it amounted to a difference in treatment on grounds of sex but argued that this was based on objective and reasonable grounds which prevented it from being in any way discriminatory .

Referring to the PERSON judgment cited above , they submitted that there was a link between family unity and the family name and that by providing that families should take the husband ’s surname the NORP legislature had opted for a traditional arrangement whereby family unity was reflected in a joint name . In the Government ’s submission , family unity was a public policy consideration and private life ceased where the individual entered into contact with public life .

Referring to the Constitutional Court ’s decision of CARDINAL DATE ( E CARDINAL/CARDINAL , PERSON , see above ) , the ORG argued that the difference of treatment on grounds of sex was justified in view of the social reality in GPE . Pointing out that “ PERCENT of women had very limited economic freedom ” , the Government argued that a joint surname – reflected through the husband ’s surname – was designed to strengthen the wife ’s position in the family .

The Government reiterated that since LAW had been amended on DATE married women could now keep their maiden name in front of their family name .

The Government also pointed out that major difficulties would be occasioned by a change in the system of keeping registers of births , marriages and deaths .

The ORG reiterates that LAW affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the LAW . However , not every difference in treatment will amount to a violation of LAW . It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory ( see , for example , ORG , ORG and FAC v. GPE , judgment of DATE , Reports of Judgments and Decisions DATE , § CARDINAL ) .

According to the ORG ’s case - law a difference of treatment is discriminatory within the meaning of LAW if it has no objective and reasonable justification . The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies . A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim : Article CARDINAL is likewise violated when it is clearly established that there is no “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” ( see , for example , PERSON v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL , § CARDINAL , and PERSON and Others v. GPE , judgment of DATE , Series A no . CARDINAL , § CARDINAL ) .

In other words , the notion of discrimination includes in general cases where a person or group is treated , without proper justification , less favourably than another , even though the more favourable treatment is not called for by the Convention ( see ORG and NORP v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , § CARDINAL ) . Article CARDINAL does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which , being based on the public interest , strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention ( see , among other authorities , ORG and GPE v. GPE ( dec . ) , no . CARDINAL , DATE ) .

The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law . The scope of the margin of appreciation will vary according to the circumstances , the subject - matter and its background ( see PERSON v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , § CARDINAL , and Inze v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , § CARDINAL ) .

However , very weighty reasons have to be put forward before a difference of treatment based on the ground of sex alone can be regarded as compatible with the Convention ( see ORG v. GPE , judgment of DATE , Series A no . CARDINAL , § CARDINAL ) .

Since the ORG is first and foremost a system for the protection of human rights , the ORG must however have regard to the changing conditions in GPE and respond , for example , to any emerging consensus as to the standards to be achieved ( see , mutatis mutandis , GPE v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINALIV ) .

The applicant ’s complaint concerns the fact that , legally , married women can not bear their maiden name alone after they marry whereas married men keep the surname they had before they married . This is undoubtedly a “ difference in treatment ” on grounds of sex between persons in an analogous situation .

The factual differences between the CARDINAL categories ( married men and married women ) to which the Government refer , that is , those relating to their social situation and their economic independence respectively , do not lead the ORG to a different conclusion .

It is precisely this distinction which is at the heart of the issue whether the difference in treatment complained of is justifiable .

In the ORG ’s submission , the interference in question pursued the legitimate aim of reflecting family unity through the husband ’s surname and thereby ensuring public order . The applicant refuted that argument .

ORG reiterates that although GPE have a certain margin of appreciation under the Convention regarding the measures to be taken in reflecting family unity , LAW that any such measure , in principle , applies even - handedly to both men and women unless compelling reasons have been adduced to justify a difference in treatment .

In the present case the ORG is not persuaded that such reasons exist .

ORG reiterates in the first place that the advancement of the equality of the sexes is DATE a major goal in the member ORG . CARDINAL texts of ORG , namely , ORG ( CARDINAL ) CARDINAL of DATE on equality of spouses in civil law and Recommendation R ( CARDINAL ) CARDINAL of CARDINAL DATE on legal protection against sex discrimination , are the main examples of this . These texts call on the member states to eradicate all discrimination on grounds of sex in , among other things , choice of surname . This objective has also been stated in the work of ORG ( see paragraphs CARDINAL above ) and ORG ( see paragraphs DATE above ) .

On an international level , developments in ORG concerning the equality of the sexes are heading in this specific area towards recognition of the right of each married partner to keep his or her own surname or to have an equal say in the choice of new family name ( see paragraphs DATE above ) .

Moreover , the ORG notes the emergence of a consensus among GPE of ORG in favour of choosing the spouses’ family name on an equal footing .

Of the member states of ORG is the only country which legally imposes DATE even where the couple prefers an alternative arrangement – the husband ’s name as the couple ’s surname and thus the automatic loss of the woman ’s own surname on her marriage . Married women in GPE can not use their maiden name alone even if both spouses agree to such an arrangement . The possibility made available by the NORP legislature on DATE of putting the maiden name in front of the husband ’s surname does not alter that position . The interests of married women who do not want their marriage to affect their name have not been taken into consideration .

The ORG observes , moreover , that GPE does not position itself outside the general trend towards placing men and women on an equal footing in the family . Prior to the relevant legislative amendments , particularly those of DATE , the man ’s position in the family was the dominant CARDINAL . The reflection of family unity through the husband ’s surname corresponded to the traditional conception of the family maintained by the NORP legislature until then . The aim of the reforms of DATE was to place married women on an equal footing with their husband in representing the couple , in economic activities and in the decisions to be taken affecting the family and children . Among other things the husband ’s role as head of the family has been abolished . Both married partners have acquired the power to represent the family . Despite the enactment of LAW in DATE , however , the provisions concerning the family name after marriage , including those obliging married women to take their husband ’s name , have remained unchanged .

The first question for the ORG is whether the tradition of reflecting family unity through the husband ’s name can be regarded as a decisive factor in the present case . Admittedly , that tradition derives from the man ’s primordial role and the woman ’s secondary role in the family . Nowadays the advancement of the equality of the sexes in the member states of ORG , including GPE , and in particular the importance attached to the principle of non - discrimination , prevent GPE from imposing that tradition on married women .

In this context it should be recalled that while family unity can be reflected by choosing the husband ’s surname as the family name , it can be reflected just as well by choosing the wife ’s surname or a joint name chosen by the couple ( see PERSON , cited above , § CARDINAL ) .

The second question that the ORG is asked to address is whether family unity has to be reflected by a joint family name and whether , in the event of disagreement between the married partners , CARDINAL partner ’s surname can be imposed on the other .

The ORG observes in this regard that , according to the practice of GPE , it is perfectly conceivable that family unity will be preserved and consolidated where a married couple chooses not to bear a joint family name . Observation of the systems applicable in LOC supports this finding . The Government have not shown in the present case that concrete or substantial hardship for married partners and/or third parties or detriment to the public interest would be likely to flow from the lack of reflection of family unity through a joint family name . In these circumstances the ORG considers that the obligation on married women , in the name of family unity , to bear their husband ’s surname – even if they can put their maiden name in front of it – has no objective and reasonable justification .

The Court does not underestimate the important repercussions which a change in the system , involving a transition from the traditional system of family name based on the husband ’s surname to other systems allowing the married partners either to keep their own surname or freely choose a joint family name , will inevitably have for keeping registers of births , marriages and deaths . However , it considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the name they have chosen ( see , mutatis mutandis , PERSON v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINALVI ) .

DATE . Consequently , the objective of reflecting family unity through a joint family name can not provide a justification for the gender - based difference in treatment complained of in the instant case .

Accordingly , the difference in treatment in question contravenes Article CARDINAL taken in conjunction with Article CARDINAL .

Having regard to that conclusion , the ORG does not consider it necessary to determine whether there has also been a breach of LAW taken alone .

III . APPLICATION OF LAW

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicant alleged that she had sustained non - pecuniary damage which she assessed at CARDINAL ( ORG ) .

The Government disputed that claim .

ORG considers that it is for ORG to implement in due course such measures as it considers appropriate to fulfil its obligations to secure to each married partner , including the applicant , the right to keep their own surname or to have an equal say in the choice of their family name in compliance with this judgment .

While there is no doubt that the applicant has suffered distress and anxiety in the past , it is the inability of married women under NORP law to keep their maiden name which lies at the heart of the complaints in the instant case . The ORG does not therefore find it appropriate to make an award to the applicant , seeing that in the circumstances of the present case the finding of a violation , with the consequences which will ensue for the future , may be regarded as constituting just satisfaction .

The applicant also claimed ORG CARDINAL for the costs and expenses incurred before the domestic courts and the ORG . She referred to resolution no . CARDINAL of DATE of the executive committee of ORG ( rate applicable from DATE to DATE ) .

Having regard to the information before it and to its relevant case - law , the ORG awards the applicant ORG CARDINAL .

DATE . The ORG considers it appropriate that the default interest should be based on the marginal lending rate of ORG , to which should be added CARDINAL percentage points .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented Mr Y. Zaytsev , their Agent , and PERSON NORP , Head of ORG before ORG .

Prior to DATE the applicant had been certified as falling within the “ second category of invalidity ” ( друга група інвалідності ) on account of a haematological disease . He was receiving a disability pension and earning occasional additional income collecting and selling wild produce .

In DATE the applicant sustained an injury ( concussion and bone fractures ) in a car accident caused by Mr PERSON , an employee of the Auto - transport unit of ORG ( “ the ORG ” ; ORG міського управління охорони здоров’я ) , who was subsequently sentenced for dangerous driving .

In the aftermath of the accident , the applicant was certified as falling within the “ first category of invalidity ” on account of the injury . However , in DATE a medical commission restored him into the “ second category ” , having found that the remaining effects of the injury could not justify the attribution of the “ first category ” . The applicant , however , ceased collecting wild produce allegedly due to deterioration of his health condition .

In DATE the applicant instituted civil proceedings against the ORG seeking compensation for his medical expenses and the loss of earnings .

On DATE the ORG of GPE ( “ the ORG ” ; GPE районний суд м. ORG ) allowed the applicant ’s claims in part . On DATE ORG ( Кримський обласний суд ) upheld this judgment and it became final .

In DATE , pursuant the introduction of the new cassation procedure , the applicant lodged a cassation appeal against the above rulings , seeking higher payments . On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

In DATE the applicant instituted civil proceedings against the ORG seeking additional compensations . On DATE ORG rejected this claim as unsubstantiated . On DATE ORG upheld this judgment and it became final .

On DATE the applicant instituted civil proceedings seeking to obtain additional compensation for the loss of earnings , medical and rehabilitation expenses and other payments from the ORG . In the course of the proceedings , the applicant amended his claims on CARDINAL occasions .

On DATE ORG rejected the applicant ’s claims , finding that the applicant ’s health condition was not connected to the accident and his disability category was not affected by the injury sustained .

On DATE ORG PERSON ) upheld this judgment and it became final .

On DATE ORG of the LOC quashed the above rulings following a protest ( an extraordinary appeal ) introduced by its Acting President and remitted the case for a fresh consideration . In particular , the court found that additional investigation was necessary into the specific health damage caused by the accident .

In the course of subsequent proceedings , the courts ordered the total of CARDINAL independent medical expert opinions , some of which contradicted the others , and interviewed CARDINAL specialists involved in the applicant ’s treatment .

On DATE ORG rejected the applicant ’s claims , finding , based on a medical assessment , that the accident had certain lasting effects on the applicant ’s health , but they required no special treatment and were not linked to the damage claimed .

On DATE ORG of the GPE quashed this decision and remitted the case for fresh examination . Subsequently , the court assumed first instance jurisdiction over the case .

On DATE ORG rejected the applicant ’s claims . It found that part of them had been finally adjudicated in other proceedings brought in DATE and DATE ( see sections B and C above ) . As regards the other claims , the court found no causal link between the effects of the accident on the applicant ’s health and the expenses claimed . It further dismissed the claim for loss of earnings as unsubstantiated , since the applicant had subsisted on disability pension , while his produce collecting activities could not be regarded as “ earnings ” .

On DATE ORG of GPE quashed the judgment of DATE and remitted the case for a fresh consideration . It instructed the trial court to assess the degree of work fitness lost by the applicant as a result of the accident , without regard to his prior disability , and to make an additional investigation into the importance of the produce collection as a source of the applicant ’s income .

On DATE ORG , relying on a new medical expert opinion , decided that the injury resulting from the accident was sufficient to entitle the applicant to a “ third category invalidity ” ( третя группа інвалідності ) and that the applicant ’s produce collecting activities could qualify as “ lost earnings ” . Therefore , the court awarded the applicant CARDINAL hryvnyas in compensation . The applicant appealed , considering this sum insufficient .

On DATE ORG of GPE quashed this judgment and remitted the case for a fresh consideration , referring to several contradictions in the opinions of medical experts as to the applicant ’s loss of work fitness and challenging the method of calculating the award .

On DATE ORG ( formerly ORG ) rejected the applicant ’s claims as unsubstantiated . The applicant appealed in cassation .

On DATE the court suspended the applicant ’s cassation appeal and proposed that he rectify its formal shortcomings . On DATE the court returned the appeal as “ not lodged ” on account of the applicant ’s failure to rectify the above shortcomings . The applicant did not challenge this decision .

Subsequently the applicant unsuccessfully attempted to re - lodge his appeal in cassation after the expiry of the statutory time - limit .


The applicants , PERSON and PERSON , are NORP nationals and live in GPE , GPE . They are represented before the ORG by PERSON GPE and PERSON , lawyers practising in GPE .

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

PERSON , the first applicant ’s husband and the second applicant ’s father , was born in DATE in ORG and was working as a decorator in the district of PERSON within the province of GPE in south - east GPE . At TIME on DATE he returned to his house from work to have his lunch . As he entered the garden of his house CARDINAL persons , who had followed him , opened fire and shot him . He died instantly .

Security forces arrived at the scene within TIME but made no attempt to discover the direction in which the perpetrators had fled . Instead , they searched the house of the deceased , ransacking it in the process .

No photographs were taken at the scene of the crime and eye - witnesses were not questioned . Furthermore , no post - mortem examination was carried out on the body . Vital evidence , such as fingerprints or spent cartridges , was not collected .

The applicants unsuccessfully contacted the PERSON public prosecutor on many occasions following the incident and enquired whether the perpetrators had been identified or arrested .

On DATE the applicants , through the assistance of their lawyers , wrote to the PERSON public prosecutor and to the prosecutor at ORG and asked them whether the perpetrators had been arrested yet .

The prosecutor at ORG did not reply to the ORG letter .

The PERSON public prosecutor , who received the ORG letter on DATE , sent the applicants a copy of the decision of non - jurisdiction taken on DATE pursuant to which the investigation file had been sent to ORG . This decision had been taken in DATE on the basis of the public prosecutor ’s belief that PERSON , PERSON , PERSON and PERSON , all suspected members of ORG , were involved in the killing of PERSON . For this reason , the prosecutor declined jurisdiction in favour of ORG which had jurisdiction to investigate the matter .

According to LAW of LAW ( ORG ) any person who intentionally kills another shall be sentenced to a term of imprisonment of DATE . According to LAW , the death penalty may be imposed in cases of , inter alia , premeditated murder . Under LAW , where death results from an act of violence but it was not the intention of the offender to kill his victim , a sentence of CARDINAL years’ imprisonment shall be imposed on the offender . Where death results from an act of carelessness , negligence or inexperience on the part of the offender in breach of a law , orders or regulations , LAW stipulates that the guilty party shall be sentenced to a term of imprisonment of DATE and to a substantial fine .

For all such offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of LAW Muhakemeleri Usulü GPE ) , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings ( Article CARDINAL ) .

According to LAW , the statutory period during which a public prosecutor is obliged to investigate the crime of murder is DATE .


The applicant is a NORP national , born in DATE and living in PERSON . The respondent Government are represented by PERSON , ORG .

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

In DATE the tax authorities levied municipal and ORG tax on the applicant for DATE including , as part of the municipal income tax , a church tax to ORG . Not being a member of that ORG , the applicant was entitled to a reduction of the church tax in accordance with LAW Not Members of ORG om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan , CARDINAL:CARDINAL ; hereinafter “ LAW ” ) . Accordingly , he was charged MONEY ( SEK ) , or MONEY of his taxable income , in church tax , which was paid to the relevant parish in ORG . This amount corresponded to MONEY of the amount he would have had to pay had he been a member of ORG .

Upon review , the tax authorities upheld its decision on DATE .

The applicant appealed to ORG ( länsrätten ) of GPE , claiming that the levying of church tax on someone who is not a member of ORG contravened , inter alia , LAW and LAW . He requested the court to hold an oral hearing in the case .

By a judgment of CARDINAL DATE the court rejected the applicant 's appeal and his request for an oral hearing .

The applicant appealed to ORG ( kammarrätten ) in GPE which , on DATE , refused to hold an oral hearing and , on DATE , rejected the appeal against the tax decision , finding it to be in conformity with LAW and LAW .

On DATE ORG ( Regeringsrätten ) refused the applicant leave to appeal .

According to LAW , CARDINAL ) , the parishes within ORG are obliged to construct and maintain public burial - grounds , unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself ( chapter CARDINAL , section CARDINAL ) . The right to be buried in a public burial - ground is not dependent on the deceased being a member of a particular religious community ( chapter CARDINAL , section CARDINAL ) . However , the responsible organ , whether it be the local parish or the municipality , is obliged to provide for separate burial - grounds for those who are not members of any NORP community . The construction and maintenance of such burial - grounds are done in consultation with the religious communities concerned ( chapter CARDINAL , section CARDINAL ) . Decisions taken under the LAW by the parish or the municipality may be appealed against to ORG ( länsstyrelsen ) ( previously regulated in chapter LAW , now in LAW ) . In the municipality where the applicant was liable to pay tax – as in most parts of GPE – the burial administration remains with the local parish of ORG .

When the responsibility for the keeping of population records was transferred from ORG to the local tax authorities in DATE ( see further below ) , it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the ORG archives ( section CARDINAL of LAW ; GPE om införande av folkbokförings - lagen , CARDINAL:CARDINAL ) . It was estimated that it would take DATE before all old records had been so transferred .

LAW , DATE ) also specifically stipulated that a parish may , inter alia , use its financial means to acquire and maintain church buildings and other ecclesiastical property .

At the material time , a church tax was collected together with the ordinary municipal tax . LAW , LAW referred in this respect to the provisions of LAW ( ORG , MONEY ) . The rate was determined by the local parish council which , under the transitional provisions of LAW ( Regeringsformen ) , had a status similar to that of the municipalities , including the right of taxation . This system had a long tradition , based on the fact that ORG is the established church . In DATE the rates applied by the parishes varied between CARDINAL and MONEY of the taxpayer 's taxable income . The lowest rates were applied by the parishes of GPE where it is the municipality DATE and not the parishes – that has the responsibility for the burial administration ( cf . NORP kyrkans ekonomi , ORG CARDINAL:CARDINAL , p. CARDINAL , a report on the economy of ORG made by ORG ) .

LAW stipulated that a person who was not a member of ORG should pay a reduced church tax , the so - called dissenter tax . The reduction was motivated by the fact that non - members , referred to as dissenters , should pay the share of the tax that corresponded to the costs relating to the civil , i.e. non - religious , activities of the parish . The dissenter tax , like the church tax , was collected by the local tax authority and forwarded to the relevant parish .

Originally , the dissenter tax amounted to MONEY of the ordinary church tax . In DATE it was reduced to MONEY of what the members of ORG had to pay . The rationale behind this change was that the share of the costs for the civil tasks performed by ORG the keeping of population records and the maintenance of churchyards and public burial - grounds – amounted on average to MONEY of the ORG 's total costs ( cf . Government PERSON , pp . CARDINAL ) .

On DATE the responsibility for the keeping of population records was transferred to the local tax authorities . With effect as from DATE , the dissenter tax was consequently further decreased , this time to MONEY of the amount paid by the members of ORG . It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased ( cf . Government PERSON CARDINAL/CARDINAL:CARDINAL , appendix CARDINAL , p. CARDINAL ) . Reference was made to the above - mentioned report on the economy of ORG , according to which MONEY , or MONEY of the ORG 's total costs , related to the burial of the deceased .

Under LAW of LAW the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so - called ORG . Poor parishes received a general equalisation subsidy which was not ear - marked for any particular purpose . They could also be granted extra subsidies for specific purposes .

On DATE the relations between the NORP State and ORG were changed , involving in practice a separation between the ORG and the ORG . LAW and LAW were abolished .

The parishes ' right of taxation , previously regulated in LAW and LAW , was replaced with an obligation , laid down in section CARDINAL of LAW on ORG ( ORG om svenska kyrkan , GPE ) , on persons belonging to the ORG to pay a church fee .

According to the new chapter CARDINAL of LAW , every person who is registered as resident in GPE has to pay a burial fee to defray the costs of the burial of the deceased ( section CARDINAL ) . The fee is based on the taxpayer 's taxable income ( section CARDINAL ) and is paid to the organ CARDINAL parish or municipality DATE responsible for burials at the place where the individual is registered ( section QUANTITY § CARDINAL ) . In the municipalities where the local parishes are responsible for burials , the fee of the members of ORG is to be included in the church fee ( section CARDINAL § CARDINAL ) . According to LAW ( Förordningen om begravningsavgift , CARDINAL ) , the burial fee of non - members is fixed by ORG and Funds ( NORP ) following a proposal by ORG . ORG and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of ORG with the information needed to calculate and collect the fees . Under the new chapter CARDINAL of LAW , the relevant ORG supervises the parishes ' burial administration in respect of persons who are not members of ORG .

As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value , ORG is to receive certain financial compensation from the ORG for the performance of this task .


CASE OF CAMP AND BOURIMI v. THE NETHERLANDS

Violation of Art. 14+8;No violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE Ms Camp 's partner , Mr PERSON , died without having recognised ( erkenning ) the child she was carrying at that time and without leaving a will . ORG and ORG had been living together in a house owned by the latter . They had been intending to marry , but a wedding scheduled for DATE had been postponed due to the death of ORG mother .

The parents of ORG believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry PERSON . Consequently , they considered themselves and their other children to be their son 's heirs . On DATE , contrary to the wishes of ORG , Mr ORG parents , together with CARDINAL other relatives , moved into the house which had belonged to their son . Thereupon , Ms Camp moved out of the house .

On DATE Ms Camp requested the President of the Roermond Regional Court ( Arrondissementsrechtbank ) in summary proceedings ( kort geding ) to grant an injunction ordering the parents to vacate the house pending the winding up of ORG estate . Furthermore , on DATE , she requested the Queen to grant letters of legitimation ( brieven van wettiging DATE see paragraphs QUANTITY below ) in respect of the child she was carrying .

NORP The President of ORG refused to grant the injunction on DATE but this decision was quashed by the ' sHertogenbosch ORG ( Gerechtshof ) on DATE . ORG considered that ORG had adduced sufficient evidence to corroborate her claim that she had been living with PERSON in his house for a considerable time , that they had intended to get married and that Mr A. Bourimi was ORG 's father . In view of the fact that it therefore seemed likely that letters of legitimation would be granted and ORG would thus emerge as ORG sole heir , ORG found that it was Ms FAC 's right and in her interest in her capacity of mother and guardian to be given possession of the house . ORG accordingly ordered the parents of PERSON to vacate the house . The parents subsequently filed an appeal on points of law ( beroep in cassatie ) to ORG ( PERSON ) .

Meanwhile , on DATE , ORG was born . Since he was illegitimate and had not been recognised by his father , he was initially given the family name of his mother . On DATE ORG issued advice in favour of the granting of letters of legitimation . Such letters were granted on DATE and NORP took on the family name of his father .

On DATE ORG quashed the decision of ORG of DATE . It considered that the letters of legitimation did not have retroactive force from the time of ORG death and that therefore NORP could not inherit from him . As regards PERSON argument that this outcome was contrary to LAW taken in conjunction with LAW held that the establishment of the consequences of an incompatibility of GPE law with these provisions of the Convention went beyond the task of the judiciary .

ORG referred the case back to ORG , which was to examine whether other circumstances existed justifying a judicial order to the effect that PERSON parents vacate the house DATE such as the fact that ORG had been living in the house for a considerable time . On DATE ORG struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that ORG and NORP would vacate the house .

The estate of PERSON was distributed amongst the heirs ( that is , his parents and siblings ) on DATE by a notary ( notaris ) .

Legally recognised family ties ( familierechtelijke betrekkingen ) between a father , his relatives and a child exist where a child is born to married parents or if it is born within DATE following the dissolution of the marriage ( Article CARDINAL:CARDINAL of the Civil Code ( Burgerlijk DATE “ ORG ” ) ) . An illegitimate child will have a legally recognised family relationship with its father ( who does not have to be the biological father ) and the latter 's relatives if it has been recognised ( erkenning ) by the father , either before or after its birth ( Article PERSON ) . At the relevant time , moreover , a legally recognised family relationship would also be created by the granting of letters of legitimation ( LAW ) .

LAW CARDINAL:CARDINAL provided as follows :

“ The request for letters of legitimation may also be made if the man , who , aware of her pregnancy , and intending to marry the mother , died before the birth of the child without having recognised it . ”

It appears from the explanatory memorandum ( PERSON ) to this provision that the intention to marry the mother , which , if carried out , would have resulted in the birth of a legitimate child , replaced the recognition required by LAW for the establishment of a legally recognised family relationship .

A request for letters of legitimation could be made by the child 's mother or , after her death , by the child itself . No time - limit was attached to a request for such letters . According to LAW , legitimation pursuant to LAW took effect from DATE on which letters of legitimation were granted .

On DATE LAW was amended . The option of letters of legitimation was replaced by a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap , LAW ) . A declaration of paternity has retroactive force from the time of the child 's birth but it does not affect adversely any rights acquired in good faith by third parties .

According to LAW § CARDINAL CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person . Furthermore , the heir must have existed at the time of death . ( LAW ) . However , according to LAW , a child who has been conceived but has not yet been born is considered as having already been born when his or her interests so require .

According to the rules of intestacy , if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse , his parents and siblings will inherit from him ( LAW ) . If there are such children or a spouse , the parents and siblings are excluded from the inheritance ( ORG CARDINAL and ORG ) .

The applicants applied to the Commission on DATE . They complained that , contrary to LAW taken in conjunction with LAW , the letters of legitimation did not have retroactive force from the time of PERSON death .

On DATE the Commission declared the application admissible .

NORP In its report of DATE ( former LAW ) [ Note by ORG . The report is obtainable from ORG . ] , the Commission expressed the unanimous opinion that there had been no violation of Article CARDINAL either in respect of the family life between the CARDINAL applicants or in respect of ORG family life with the relatives of ORG , that it was not necessary to examine under LAW the complaint relating to NORP 's family life with the relatives of his father , and that there had been a violation of LAW taken in conjunction with LAW NORP .