MIEDZYZAKLADOWA SPOLDZIELNIA MIESZKANIOWA "WARSZAWSCY BUDOWLANI" v. POLAND

The applicant , PERSON , is a NORP housing co - operative , located in GPE .

On DATE ORG ordered the applicant housing co - operative to pay ORG MONEY to ORG and PERSON The applicant co - operative appealed . On DATE ORG dismissed the appeal . On DATE the applicant co - operative brought an appeal on points of law before ORG .

By an order of CARDINAL DATE ORG refused to entertain the appeal . When doing so , the court relied on provisions of LAW as amended in DATE allowing it not to examine manifestly ill - founded appeals or appeals in cases where no serious legal issue arose , even if these appeals had been brought DATE , the date on which the amendments of DATE entered into force .

Subsequently , on DATE , ORG examined a constitutional complaint in which the complainant ( not the applicant cooperative ) submitted that the DATE amendments to LAW providing for the possibility to leave an appeal on points of law unexamined had come into force after her appeal had been lodged with ORG . She argued that , as a result , the DATE amendments to the LAW breached the LAW insofar as it guaranteed the rule of law , which encompassed , inter alia , the principle that law should not apply retrospectively . It was also argued that these provisions breached the complainant 's right to a fair hearing in that she was deprived of her right to have an appeal on points of law examined in full by ORG .

ORG held , in its judgment of DATE ( ORG CARDINAL/CARDINAL ) that the DATE amendments were in breach of LAW , referring to the rule of law as a fundamental constitutional principle . It further held that it was not necessary to determine whether they were compatible with LAW , guaranteeing a right to a fair hearing ( see Relevant domestic law ) .

On DATE the applicant co - operative lodged a request for the re - opening of the proceedings before ORG , relying on this judgment of ORG . It was argued that ORG interlocutory order given in its case on DATE had been issued on the basis of the DATE amendments , subsequently declared unconstitutional by ORG . Therefore the judgment of ORG provided grounds on which , in conformity with LAW , the proceedings in which a decision based on these provisions had been given should be re - opened and the order quashed .

On DATE ORG dismissed the request for the re - opening of the proceedings . The ORG stated that it was aware of the judgment of ORG of DATE . However , it observed that LAW provided that proceedings could only be re - opened following a judgment of ORG , if the unconstitutional provision had served as a basis for a decision on the merits . In the present case the unconstitutional provisions had served as a basis for an interlocutory order , i.e. for ORG refusal to entertain the appeal on points of law . Therefore the proceedings could not be re - opened , Article CARDINAL of the Code of Civil Procedure not providing a legal basis for doing so .

A party to civil proceedings can lodge a cassation appeal with ORG against a final judicial decision of a second - instance court which has terminated the proceedings .

LAW provides :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law by its erroneous interpretation or wrongful application ,

CARDINAL ) a breach of procedural provisions , if that shortcoming could significantly affect the outcome of the case . ”

Pursuant to LAW , having allowed a cassation appeal , may quash the challenged judgment in its entirety or in part and remit the case for re - examination .

On DATE a law was enacted amending LAW . It introduced , inter alia , the following provision :

“ CARDINAL . ORG may refuse to entertain the cassation appeal , if :

i ) there is no appearance of any significant legal issue in the case ,

ii ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case - law ,

iii ) that appeal is manifestly ill - founded .

Paragraph CARDINAL shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law ( zachodzi niewaznosc postepowania ) . ”

This provision entered into force on DATE . However , LAW provided , in so far as relevant :

“ CARDINAL . The provisions being in force so far shall apply to the lodging and examination of appeals against judicial decisions given before DATE of entry into force of [ this ] law . ”

A controversy arose over the latter provision , which led to ORG resolution of DATE ( no . III CZP CARDINAL/CARDINAL ) . ORG answered in the affirmative the question whether it may refuse to entertain a cassation appeal against a judicial decision given by the second instance court DATE . The court relied on the principle of the “ immediate application ” of procedural provisions , which it considered operative under NORP law since DATE . Pursuant to that principle , procedural provisions enter into force immediately and are applicable to proceedings regardless of the moment of their initiation . It found that LAW DATE provided for CARDINAL exceptions to the application of that principle . CARDINAL such exception concerned the examination of appeals against judicial decisions given before DATE . However , that provision related to the “ examination ” of an appeal whereas , pursuant to the amended Code of Civil Procedure , the court could refuse the examination of certain cassation appeals . It further noted that mere assessment of whether an appeal is manifestly ill - founded or whether a serious legal issue arises can not be regarded as an examination . Therefore , ORG considered that the exception to the principle of “ immediate application ” , in so far as it relates to the examination of appeals , does not cover cassation appeals .

The court further pointed out that the amendments to LAW made it possible for that court to carry out properly its tasks relating to the cassation procedure , which at that time were significantly hindered by the enormous backlog of trivial and manifestly ill - founded appeals . It stated :

“ In addition , it must be noted that the backlog in ORG leads in concrete cases to a violation of LAW ( ... ) , which , especially after the most recent judgments of ORG in cases against GPE concerning the unreasonable length of proceedings , can not be discounted . ”

Finally , the court found the amendment at issue compatible with LAW , in particular with the principle of a CARDINAL instance judicial system , and LAW , relying in this connection on the PERSON v. GPE judgment of this Court .

LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

At the material time , the complaint had to be lodged within DATE from the date on which the individual decision was served ( Article CARDINAL § CARDINAL of ORG ) . This time - limit was extended to DATE with effect from DATE .

LAW provides that a civil case terminated by a final judgment on the merits can be reopened if applicable requirements set out in the Code are met .

LAW of DATE reads :

“ GPE shall be a democratic state ruled by law and implementing the principles of social justice . ”

LAW reads :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . Exceptions to the public nature of hearings may be made for reasons of morality , State security , public order or protection of the private life of a party , or other important private interest . Judgments shall be announced publicly . ”

Article CARDINAL of the LAW , insofar as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . Where a judgment has financial consequences not provided for in the ORG , the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned , after seeking the opinion of ORG .

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final judicial decision , a final administrative decision or settlement of other matters was issued , shall be a basis for re - opening proceedings , or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings ” .

Article CARDINAL of LAW provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which this judgment was given was incompatible with LAW . Such a request can be lodged with the competent court within DATE from the judgment of ORG .

On DATE ORG ruled on the compatibility with LAW DATE amendments to LAW . ORG held that these provisions , taken together with their interpretation given by the resolution of ORG ( referred to above at CARDINAL ) were unconstitutional . This was so as the transitory provisions concerning the procedure to be followed in the examination of appeals on points of law lodged with ORG DATE , the date on which these amendments entered into force , lacked clarity . As a result , their interpretation could legitimately lead to opposite conclusions as to whether appeals lodged before DATE were to be examined under the procedural provisions in force before , or after that date . On the ordinary meaning of the text , a reasonable interpretation was that the appeals lodged before DATE should be examined under the provisions in force at the time when they were lodged with ORG . This , in the opinion of ORG , was indeed the intention of the legislator . However , the interpretation given to these provisions by ORG led to a contrary conclusion . The failure of the legislator to formulate these transitional provisions in a clear and precise manner so as to allow the appellants to know which procedure would be followed by ORG when examining their appeals was in breach of LAW which provides that the rule of law is a fundamental constitutional principle . The rule of law not only requires that legal provisions be clear and precise , but it also imposes on the state an obligation not to enact laws which arbitrarily change the procedure to be applied in the examination of a case after that case had been launched .

On DATE the ORG gave a judgment in CARDINAL joined cases , in which the complainants had essentially submitted that Article CARDINAL of LAW was unconstitutional . The complainants relied on the fact that their cases the courts had refused to re - open civil proceedings given on the basis of a provision which had subsequently been declared unconstitutional . The courts considered that they could not re - open the proceedings , as the cases had been terminated by interlocutory decisions , not by judgments on the merits .

ORG held that LAW was compatible with LAW . However , it criticised the legislator for the manner in which this provision had been inserted into the context of provisions concerning the re - opening of proceedings . While this provision was clearly designed to rescind decisions given on the basis of laws subsequently declared unconstitutional , it was so formulated as to allow the erroneous conclusion that such re - opening could only be effected in respect of proceedings terminated by a final decision on the merits . Such interpretation inevitably led to a conclusion that interlocutory decisions based on provisions subsequently declared unconstitutional could be left intact . This , in ORG conclusion , was manifestly unreasonable . However , there were no grounds on which to find this provision as such unconstitutional . It was not so much the provision itself which failed to meet the constitutional standards . It was rather the failure of the courts to interpret it correctly in such a way as to allow for the re - opening of all proceedings based on unconstitutional provisions , regardless of whether the final decision given in such proceedings was an interlocutory order or a judgment on the merits . The courts had at their disposal an array of such measures . It was not for ORG to indicate which measures should be applied in this respect , and in what manner .

A case ORG CARDINAL/CARDINAL is currently pending before ORG in which that court was invited to review whether LAW is compatible with LAW . The complainant submitted that ORG interpretation of Article CARDINAL has not changed despite the suggestions contained in ORG judgment of DATE . Since it led to consistent refusals to re - open civil proceedings terminated by interlocutory decisions given on the basis of a provision subsequently found unconstitutional , the provisions of LAW have thereby been rendered ineffective .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national born in DATE , lives at LOC ) .

On DATE the investigating judge at ORG ( GPE ) began a preliminary investigation and issued a warrant for the arrest of the applicant and CARDINAL other persons suspected of having made fraudulent use of another person ’s credit card when making purchases in various shops in GPE to the value of CARDINAL NORP schillings ( ORG ) .

On DATE the police arrested the applicant at the border between GPE and GPE as he was preparing to enter GPE .

On CARDINAL DATE the investigating judge at ORG interviewed Mr PERSON and detained him pending trial .

On DATE he again interviewed the applicant .

On DATE , at the request of the public prosecutor ’s office , the investigating judge decided to discontinue the proceedings in the light of a graphologist ’s finding that it was unlikely that the signatures on the payment slips for the purchases made with the stolen credit card were in the applicant ’s hand .

NORP The applicant was released on DATE .

On DATE the applicant sought compensation from the ORG for the pecuniary damage sustained on account of his detention .

On DATE ORG ( Ratskammer ) of ORG refused his compensation claim on the ground that , contrary to the requirements of section CARDINAL ( CARDINAL ) ( b ) of ORG DATE ( ORG , “ the DATE Act ” – see paragraph CARDINAL below ) , the suspicion concerning him had not been dispelled .

On DATE the applicant appealed against that decision to ORG ( Oberlandesgericht ) .

On DATE ORG , sitting in private , dismissed the appeal . It ruled as follows :

“ The ORG accepts the appellant ’s submission that in its decision ORG of the Wiener Neustadt Regional Court confined itself essentially to mentioning the applicable provisions and setting out the facts and did not make use of certain concrete information apparent from the file . The appellant , who has in the meantime been convicted in GPE of handling under LAW CARDINAL ( CARDINAL ) and CARDINAL of LAW and imprisoned , is in fact suspected of having participated in obtaining goods fraudulently by using an unlawfully obtained credit card made out in the name of another person . It can not be ruled out that he signed payment slips using a card made out in the name of a woman by wearing a wig . This attempt to investigate was necessary as it had not been possible to bring the other offenders before the court below . Against the conjecture that the signatures were written by the appellant there stands only his assertion that he did not sign any payment slips and that he does not look like a girl either . In so far as he sought to have admitted as genuine proof of his innocence the expert ’s statement that the signatures on the payment slips were probably not written by the appellant , regard must be had to the scale of probability drawn up by the expert , which does not at all exclude that the appellant wrote the signatures , and it must be observed that this submission by the appellant does not refute the argument that he took part in the fraudulent acts by providing the necessary transport to the various places where the offences were committed and conveying the proceeds from them , knowing that the other persons involved were committing offences . On the contrary , the large number of fraudulent purchases made both in GPE and in GPE supports the view that the appellant was fully aware of the criminal nature of the operations and that it was in full knowledge of this that he assisted the offenders in their criminal acts by continuing to provide transport ( LAW ) .

Contrary to what the appellant maintained , compensation under section CARDINAL ( CARDINAL ) ( b ) of ORG is payable only on condition that the innocence of the detained person can be regarded as proved ; that is to say , it must be proved that the detained person is not punishable , and can not be prosecuted , on account of the act in respect of which his detention was ordered . Where that remains only doubtful , suspicion is not dispelled and the condition on which compensation may be paid is not satisfied ( see PERSON , second ed . , E.CARDINALa and DATE , on section CARDINAL of the Compensation ( Criminal Proceedings ) Act ) . In the instant case it can not be said that suspicion has been dispelled , and the appeal , being unfounded , must therefore fail . ”

In his pleadings of CARDINAL DATE ( see paragraph CARDINAL above ) Mr PERSON also complained of the excessive length of the detention pending trial and sought compensation for unlawful detention under section CARDINAL ( CARDINAL ) ( a ) of DATE Act ( see paragraph CARDINAL below ) .

On DATE , in a separate decision , ORG , sitting in private as a court of first instance , dismissed the applicant ’s claim on the ground that neither his arrest nor the order for his detention pending trial or the continuation of that detention had been unlawful .

ORG also referred to the reasoning in its other judgment of DATE ( see paragraph CARDINAL above ) .

Article CARDINAL § CARDINAL of LAW provides :

“ Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . ”

The relevant provisions of the DATE Act read as follows :

“ ( CARDINAL ) A right to compensation arises :

( a ) where the detention of the injured party has been unlawfully ordered or extended by a national court ... ;

( b ) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in GPE ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds , in so far as these grounds existed when he was arrested ;

“ ( CARDINAL ) ...

( CARDINAL ) A court which acquits a person or otherwise frees him from prosecution ... ( section CARDINAL ( CARDINAL ) ( b ) or ( c ) ) must decide either of its own motion or at the request of the individual in question or the public prosecutor ’s office whether the conditions of compensation under section CARDINAL ( CARDINAL ) ( b ) or ( c ) , ( CARDINAL ) and ( CARDINAL ) have been satisfied or whether there is a ground for refusal under section CARDINAL ... If the investigating judge decides to discontinue the proceedings , ORG concerned shall rule .

( CARDINAL ) Before ruling , the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ...

( CARDINAL ) Once the judgment rendered in the criminal proceedings has become final , the decision , which need not be made public , must , as part of the proceedings provided for in paragraph CARDINAL , be served on the detained or convicted person personally and on the public prosecutor ...

( CARDINAL ) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within DATE .

( CARDINAL ) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision . If the court which has to rule is the court of first instance , the investigations shall be carried out by the investigating judge .

( CARDINAL ) Once the decision has become final , it is binding on the courts in subsequent proceedings . ”

If the courts consider that the conditions in sections CARDINAL have been satisfied , the applicant must apply to ORG ( GPE ) for his claim to be allowed . If no decision has been taken on his claim within DATE or if it has been refused in whole or in part , the claimant may bring a civil action against GPE ( sections CARDINAL and CARDINAL of the Act ) .

As a general rule , there is no public hearing before ORG of ORG or in ORG in appeal proceedings ( Beschwerden ) against a decision of ORG . The CARDINAL courts rule after sitting in private and after hearing the representative of the public prosecutor ’s office and the principal public prosecutor ’s office respectively ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Code of Criminal Procedure – GPE ) .

Article CARDINAL of LAW provides :

“ The courts shall have discretion to decide whether a party or his duly appointed representative may , in cases other than those expressly provided for in LAW , be given leave to inspect documents in the file or whether copies may be given to them , provided that the persons concerned can convincingly show that they need such copies in order to be able to claim compensation or to support an application for a retrial or for some other reason . ”

It is the practice of the registries of ORG to make their respective court ’s judgments available on request . The courts also publish a selection of their decisions DATE . Since an amendment to LAW in DATE , the judgments of ORG ( Oberster Gerichtshof ) have likewise been available to the public on request . ORG also publishes a selection of its judgments DATE .


Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant is a NORP national born in DATE who lives in GPE ( GPE ) .

The applicant was married from DATE until DATE , when he divorced . On DATE the applicant applied for custody of CARDINAL of his CARDINAL children , born in DATE and DATE , maintaining that since DATE he and his wife had not lived together and that he cared for the CARDINAL minor children himself .

In a judgment of DATE the ORG awarded the applicant custody of the CARDINAL children .

On DATE ORG ( Česká správa sociálního zabezpečení ) dismissed an application by the applicant for a retirement pension as he had not attained the pensionable age required by section CARDINAL of LAW , which was , in his case , DATE and DATE .

The applicant challenged the administrative decision before the ORG Králové ORG ( PERSON ) , arguing that given the fact that he had cared for CARDINAL children , he was entitled to retire at DATE CARDINAL and had therefore reached the pensionable age .

On DATE ORG stayed the proceedings in the applicant 's case pending the outcome of the proceedings before ORG ( Ústavní soud ) , which was called upon to review the constitutionality of section CARDINAL of LAW in another case ( no . Pl . ÚS CARDINAL/CARDINAL ) brought before it by ORG ( GPE správní soud ) . The ORG Králové ORG joined the proceedings in that case as an intervening party .

In judgment no . Pl . ÚS CARDINAL of DATE ORG dismissed ORG petition to repeal section CARDINAL of LAW , finding that it was not discriminatory and was therefore compatible with LAW , in conjunction with LAW , of LAW .

On DATE ORG dismissed the applicant 's action , referring to ORG judgment no . PERSON . ÚS CARDINAL/CARDINAL .

By a judgment of DATE ORG dismissed a cassation appeal by the applicant , relying on the aforesaid judgment of ORG .

Subsequently , the applicant lodged a constitutional appeal in which he alleged , inter alia , a violation of LAW No . CARDINAL .

On DATE ORG rejected the constitutional appeal as manifestly ill - founded , emphasising , in particular , the discretion afforded to the legislature to implement preferential treatment , the objective and reasonable aim pursued by this preferential treatment of women and the relationship of proportionality between the means employed and the aim pursued .

Article CARDINAL provides that all people are free with equal dignity and equal rights . Their fundamental rights and freedoms are inherent , inalienable , imprescriptible , and not subject to repeal .

Under LAW everyone is guaranteed the enjoyment of his or her fundamental rights and basic freedoms without regard to gender , race , colour of skin , language , faith and religion , political or other conviction , national or social origin , membership of a national or ethnic minority , property , birth , or other status .

DATE provides that citizens have the right to adequate material security in old age and during periods of incapacity to work , as well as in the case of the loss of their household provider .

Differentiated age limits for men and women for entitlement to ORG retirement pensions were first introduced by LAW ( no . CARDINAL/CARDINAL ) , which became effective on DATE . In general , the pensionable age for men was set at DATE , while for women it was set at DATE .

LAW ( no . PERSON ) , effective from DATE , specified differentials in female pensionable age based on the number of children women raised . The explanatory report on the bill noted the following :

“ This differentiated age limit for acquiring the right to retire reflects the different situation in the lives of mothers who , when they took care of children , also carried out duties in the family in addition to their employment duties . ”

The State Pension Insurance Act ( no . CARDINAL ) , effective since DATE , provides for the basic ORG pension insurance coverage , laying down the conditions for eligibility for pensions , including retirement pensions , and the methods for calculating and paying out pensions . The pension scheme works on the pay - as - you - earn principle , whereby employees pay contributions from their income , which serve the purpose of financing pensions for DATE 's pensioners from the national budget . Male and female earners are obliged to pay the same social - security contributions in accordance with their status as employed earners or self - employed earners .

At the relevant time , section CARDINAL ) of ORG provided as follows :

“ ( CARDINAL ) The pensionable age is

( a ) for men , DATE ,

( b ) for women :

DATE provided they have raised one child , or

DATE ,

if the insured persons had attained that age by DATE . ”

Section CARDINAL(CARDINAL ) provided that for insured persons who reached the abovementioned age limits DATE and DATE the pensionable age was to be gradually raised by DATE for men and DATE for women for DATE , even incomplete , DATE and the date of reaching the above - mentioned age limits .

Section CARDINAL ) provided at the relevant time :

“ ( CARDINAL ) The requirement for a woman to raise children in order to become entitled to an [ earlier ] ORG retirement pension has been satisfied if the woman personally takes care , or has taken care , of children for DATE before the children reach the age of majority . However , if a woman starts to raise a child after the child has reached DATE , the requirement of raising children has been met if the woman personally takes care , or has taken care , of the child for DATE before the child reaches the age of majority ; however , the foregoing shall not apply if the woman stopped taking care of the child before the child reached the age of majority . ”

According to the ORG 's submissions , women are called upon to prove that they have raised children for the statutory period by completing a statutory declaration appended to their application for the retirement pension .

Owing to complex demographic changes , the ORG pensionable age for all persons has thus been gradually rising . Since DATE the ORG have made efforts to push through CARDINAL amendments of ORG envisaging a gradual equalisation of men 's and women 's retirement age regardless of the number of children raised . However , owing to difficult political negotiations with certain political parties and trade unions , the only possible solution was to reach a compromise .

As a result , the amended Act no . CARDINAL , effective from DATE , provides in section CARDINAL as follows :

“ ( CARDINAL ) The pensionable age is

( a ) for men , DATE ,

( b ) for women :

DATE ,

in the case of insured persons born before DATE .

( CARDINAL ) For insured persons born after DATE and before DATE the pensionable age is determined according to the table annexed to this LAW , which calculates the increased pensionable ages by adding extra DATE .

( CARDINAL ) For insured persons born after DATE the pensionable age is

( a ) for men , DATE ,

( b ) for women :

DATE provided they have raised CARDINAL children , or

DATE . ”

By this judgment , the Plenary of ORG rejected ORG petition for the repeal of section CARDINAL of LAW . It held that a particular legal framework which gave an advantage to CARDINAL group or category of persons compared to another could not in itself be said to violate the principle of equality , and that the legislature had discretion to implement preferential treatment . The approach at stake was based on objective and reasonable grounds and pursued a legitimate aim . The court came to the conclusion that the proposed repeal would be contrary to the principles of legal certainty and minimal restrictions on human rights as women would lose preferential treatment whereas men would not receive the same benefits . Therefore , the solution to the unequal treatment of men and women required a complex and prudent adjustment of the whole pension scheme .

In its observations to ORG submitted that among ORG Member States a similar provision was effective for a temporary period only in GPE and to a limited extent in GPE .


CASE OF AMAT-G LTD AND MEBAGISHVILI  v. GEORGIA

Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The first applicant , a limited liability company , was incorporated on DATE by a decision of the ORG of GPE , GPE . The second applicant was born in DATE and lives in GPE .

NORP In DATE ORG and the second applicant founded a limited liability company called ORG , the applicant company , in GPE . The second applicant was appointed general manager of that company .

Amat - G imported fish products from NORP countries to GPE . In DATE , the company paid PERCENT CARDINAL,CARDINAL,CARDINAL United States dollars ( ORG ) ( MONEY ( ORG ) ) to the ORG budget in taxes and was considered by ORG to be a “ large tax payer ” .

In DATE - CARDINAL ORG supplied ORG with various types of fish products at different prices .

NORP However , ORG paid only part of the amount due to ORG

On DATE the applicants brought civil proceedings against ORG in the NORP ORG for breach of contract and consequential damage , claiming a total of CARDINAL NORP laris ( GEL ) ( EUR CARDINAL,CARDINAL ) .

In a judgment of DATE , ORG of ORG partly allowed the action of the applicant company , ordering ORG to pay the company compensation of GEL MONEY ( EUR CARDINAL ) .

The judgment was never challenged and became binding on DATE .

On DATE the applicants appealed to the execution department of ORG , requesting the immediate enforcement of the judgment .

On DATE the enforcement officer of the execution department ordered ORG to pay the applicant company , voluntarily , within DATE .

Upon the expiry of that period , the enforcement officer initiated the forcible execution procedure against ORG . He sent the centre of expertise of ORG a list of non - military buildings that could be put up for sale by tender in order to discharge the debt . However , that was the only step taken and the judgment of DATE remained unexecuted .

On DATE ORG appealed to ORG , seeking a stay of execution of the judgment of DATE , in accordance with the provisions of LAW . However , ORG dismissed the ministry 's request on DATE , concluding that “ postponement of the enforcement would negatively affect the applicant company 's interests and violate the principle of an equitable and adversarial hearing ” . The ministry was consequently obliged to enforce the judgment without delay , yet it still failed to pay the debt .

During the same period , ORG signed a contract with ORG on DATE for the lease of a ship at a DATE rate of USD CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) .

On DATE ORG contacted ORG , explaining that the money owed to it by the ministry was the only means which the applicant company had to pay for the lease of the ship . The applicant company waited DATE in vain to obtain payment of the debt from ORG . Meanwhile , the bill for the lease of the ship had risen to USD CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) . ORG also claimed that it had lost CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) in business profits as a result of the ministry 's failure to pay the debt on time . In addition , the applicant company faced a tax bill of GEL CARDINAL ( EUR CARDINAL ) .

For these reasons , in DATE ORG brought an action before ORG of ORG against ORG , ORG and ORG , in order to hold them collectively responsible for the harm caused by the non - execution of the judgment of DATE , in accordance with LAW of LAW . The company claimed damages of ORG CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) and GEL CARDINAL ( EUR CARDINAL ) .

ORG dismissed the claim on DATE on the basis of the provisions of LAW .

On DATE ORG of GPE dismissed the applicant company 's appeal against ORG decision of DATE .

The judgment debt of DATE has still not been paid , CARDINAL DATE .

Article QUANTITY § CARDINAL and CARDINAL ( “ Stay of execution or order for partial execution of a judicial decision ” ) provides as follows :

“ CARDINAL . A court of law , after giving a decision , may order a stay of its execution or its partial execution at the parties ' request , taking into account their financial situation and other circumstances ...

NORP The stay of execution or order for partial execution ... may be challenged in a court of law ... ”

NORP The relevant provisions of LAW are as follows :

“ Damage shall be compensated not only in respect of actual financial loss , but also in respect of loss of income . Loss of income represents the amount which could have been obtained had the contractual obligations been properly fulfilled . ”

“ Compensation shall be paid only when the damage could have been foreseen by the party in default and when there exists a causal link between its harmful action and the outcome in issue . ”

“ The non - execution of a binding judgment or other judicial decision , or the obstruction of its execution by the ORG , government or local - government officials or by executives of a corporation or other organisation [ shall be punished ] ... ”

“ Enforcement officers at executive bureaux [ of ORG ] shall be responsible for the execution of the decisions provided for hereunder . ”

“ Requests by enforcement officers in the course of their duties shall be equally binding on any natural or legal person , irrespective of their hierarchical or juridical and structural status .

Enforcement officers shall take all lawful measures available in order to secure the speedy and effective enforcement of decisions , to explain to parties their rights and responsibilities , and to assist in the protection of their rights and legal interests . ”

“ ... DATE after the proposal to comply voluntarily with a judicial decision obliging budget - funded organisations to disburse money , forcible measures may be undertaken against them ... ”

By adopting this ordinance , the government introduced a mechanism for the staggered payment of outstanding debts . Under paragraph CARDINAL , ORG was ordered to give priority to the enforcement of court decisions concerning : ( i ) the payment of compensation for damage caused by injury or death ; ( ii ) the payment of not DATE salary to workers ; and ( iii ) the payment of compensation to rehabilitated people . At the same time , ORG was instructed to ensure the proportionate payment of other creditors , but only after the enforcement of the above - mentioned decisions .

Under paragraph CARDINAL of the ordinance , the debtor budget - funded organisations and institutions , in agreement with ORG , have either to secure friendly settlements with their creditors , or to stagger , in accordance with NORP legislation , the enforcement of judgments over a period of time , since , due to the scarcity of funds , the simultaneous payment of judgment debts is not feasible .

The relevant provisions of the PERSON on the structure , authority and functioning of the NORP government are as follows :

“ The government of GPE ( hereinafter ' the government ' ) , shall exercise executive power ... in accordance with the laws of the country . ”

“ The government shall adopt decrees and ordinances under and for the implementation of the laws of GPE and presidential normative acts .

A governmental decree is a normative act . The procedures for its preparation , adoption , issue and entry into force are defined by the LAW on normative acts . ”

Pursuant to sections ORG ) and CARDINAL ) , as amended on DATE , while a legal act can be either “ normative ” or “ individual ” , a governmental ordinance ( mtavrobis gankarguleba ) is an “ individual ” legal act . A “ normative ” act prescribes a general rule of conduct for permanent or temporary and recurrent applications ( section CARDINAL(CARDINAL ) ) . Pursuant to section CARDINAL ) , an individual legal act is valid for CARDINAL specific purpose and must conform to a normative act . The individual legal act can only be issued on the grounds envisaged by a normative act and within the limits prescribed by the latter . Its scope and force are comparable to an administrative directive .

According to section CARDINAL , as amended on DATE and DATE , the legislative acts of GPE are as follows : the LAW of GPE , the constitutional law , the organic law , statutes , rules of parliament and presidential decrees . CARDINAL categories of legal act constitute NORP secondary legislation : decrees ( dadgenileba ) and orders ( brzaneba , brzanebuleba ) issued by various authorities . Governmental ordinances are thereby excluded .

Under section CARDINAL - CARDINAL , incorporated into the PERSON on normative acts on DATE , decrees are the only normative acts of the government of GPE . They are adopted under LAW , statutes or normative acts of the President of GPE , for the purpose of implementing legislation .

“ ... [ In a limited liability company ] ... directors represent the company in its relations with third parties ... ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON GPE , a lawyer practising in Gdańsk . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG .

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

On DATE the applicant was arrested by the police and on DATE he was charged with homicide . On DATE ORG ( Sąd Rejonowy ) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question , the grave nature of that offence and the need to obtain and secure evidence . Furthermore , ORG considered that there was a risk that the applicant could induce witnesses to give false testimonies . That decision was upheld on appeal on DATE .

On DATE ORG ( PERSON ) prolonged the applicant ’s detention until DATE . It invoked the same grounds as originally given for his detention . In addition , ORG referred to the necessity to hear witnesses and obtain various expert opinions in the investigation .

On DATE ORG ( Sąd Apelacyjny ) ordered that the applicant be kept in custody until DATE . It relied on the reasonable suspicion that the applicant had committed the offence in question and the need to take further evidence .

On DATE the applicant was indicted on the charge of homicide before the ORG . The bill of indictment comprised several charges of homicide brought against CARDINAL accused .

On DATE the ORG ordered that the applicant be held in custody until the first - instance judgment had been given , but not longer than DATE . It relied on the grounds previously given for the applicant ’s detention and added that , given the severity of the anticipated sentence , that measure was also justified by the need to secure the proper course of the trial . That decision was upheld on appeal on DATE .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The applicant and the prosecutor appealed .

On DATE ORG ordered that the applicant ’s detention be continued pending his appeal against the conviction until DATE . It considered that the severity of the imposed sentence fully justified the continuation of that measure .

On DATE ORG quashed the first - instance judgment and remitted the case .

On DATE ORG prolonged the applicant ’s detention until DATE . It relied on the reasonable suspicion that the applicant had committed the offence in question and the severity of the anticipated penalty . That decision was upheld on appeal on DATE .

On DATE ORG ordered that the applicant be kept in custody until DATE . It reiterated the grounds given for its earlier decision of CARDINAL DATE .

On DATE ORG ordered further prolongation of the applicant ’s detention until DATE .

ORG opened the retrial on DATE . On the same date it prolonged the applicant ’s detention until DATE . On DATE it ordered that the applicant be held in custody until DATE .

On DATE ORG prolonged the applicant ’s detention until DATE . It reiterated the grounds given previously for his detention . It also observed that there was a risk of pressure being brought to bear on witnesses if the applicant was released . That decision was upheld on appeal on DATE .

On DATE ORG ordered that the applicant be held in custody until DATE , considering that it was the only measure capable of securing the proper conduct of the trial . On DATE that decision was upheld on appeal . The applicant ’s detention was subsequently prolonged on an unspecified later date .

Since the beginning of the proceedings the applicant had made numerous , unsuccessful applications for release . He appealed , likewise unsuccessfully , against the refusals to release him and the decisions prolonging his detention .

On DATE the ORG convicted the applicant of homicide and sentenced him to DATE imprisonment . Following the applicant ’s appeal , the conviction was upheld by ORG on DATE . On DATE ORG dismissed the applicant ’s cassation appeal against the judgment of ORG .


Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE . He worked as an official for the NORP customs office .

NORP Apparently in DATE , suspicions of smuggling , bribery and abuse of authority arose against the applicant and CARDINAL other person , PERSON On DATE ORG ( Ratskammer ) of ORG authorized the applicant ’s telephones to be intercepted and the data on and content of the calls to be recorded .

On DATE the investigating judge at ORG decided to open preliminary investigations on suspicion of abuse of authority ( PERSON ) and a number of offences under LAW against the applicant and , apparently , also against his co - accused . On DATE ORG of the Linz ORG again authorized an interception of the applicant ’s telephone lines .

On DATE , ORG introduced a bill of indictment against the applicant ’s co - accused PERSON On an unknown date , the proceedings against the applicant were separated from the ones against PERSON The applicant ’s case was transferred to ORG .

On DATE the investigating judge at ORG extended the preliminary investigations against the applicant to include suspicions of aggravated tax evasion and a number of further offences under LAW . On DATE the investigating judge ordered ORG for GPE ( PERSON ) to conduct investigations in respect of these offences . It appears that ORG for GPE ( PERSON ) was also involved in these investigations .

On DATE the investigating judge at ORG issued decisions to inspect the applicant ’s bank accounts in GPE . By letters rogatory , the judge also requested to inspect bank accounts in GPE .

On an unknown date , a search had been carried out at the applicant ’s work place , and on DATE ORG decided to seize the evidence discovered during that search .

On DATE the applicant was suspended from his office .

From DATE to DATE the applicant was in pre - trial detention as he allegedly tried to influence witnesses . On DATE and DATE , further decisions to inspect bank accounts were taken . On DATE the investigating judge extended the preliminary investigations against the applicant to include the suspicion of inciting a witness to give false testimony .

On CARDINAL DATE an expert was appointed to give an opinion about the money flows on the applicant ’s accounts . The expert asked twice for an extension of the deadline for submission of the opinion , and the extensions were granted . The court urged the expert CARDINAL times for delivery of the opinion ( on DATE , CARDINAL DATE and DATE ) . The opinion was eventually delivered on DATE .

A questioning of the applicant by the investigating judge scheduled for CARDINAL DATE had to be postponed to DATE as the applicant , despite having received the expert ’s opinion at some time in DATE , had requested an adjournment on DATE .

A report drawn up by ORG for GPE reached the court on DATE .

On DATE the investigating judge urged ORG for GPE to submit its final report on the case . On DATE the file including the final report was submitted to ORG .

On DATE the public prosecutor issued the bill of indictment , charging the applicant with abuse of authority , accepting bribes ( PERSON ) , smuggling , interference with the tobacco monopoly , having received goods for which no import duties had been paid ( PERSON ) , breaking of official seals ( GPE der GPE ) and infliction of bodily harm , all in conjunction with LAW , a provision which provides for higher penalties when offences have been committed by a civil servant abusing this position .

The applicant lodged objections against the bill of indictment on DATE . The objections were rejected on an unknown date .

ORG amended the bill of indictment on DATE . ORG ( PERSON ) confirmed the bill of indictment on DATE .

The case was tried before ORG sitting as a panel of CARDINAL professional and CARDINAL lay judges ( PERSON ) . Hearings were held on DATE , CARDINAL , DATE and DATE , DATE , DATE and DATE , CARDINAL DATE , DATE and CARDINAL DATE . The court heard the applicant , an expert on accountancy , and a number of witnesses , namely colleagues of the applicant .

At the hearing on DATE , the hearing was adjourned for an indefinite period in order to review the summonses of the witnesses living abroad . The summons that had been issued to those witnesses for the hearing on DATE , had been sent to ORG on DATE , and returned to the court on DATE , as the ORG could not forward them to the respective authorities without a certified translation . The reply from the ORG had been put into the file without having been shown to the presiding judge , who had assumed that the summonses had been forwarded . Only in the preparation of the hearing did the judge discover the error . Subsequently , the judge addressed a new request , via ORG , to the NORP and NORP authorities requesting them to summon the witnesses concerned . On DATE the judge scheduled a hearing for DATE , which was cancelled because none of the witnesses had appeared : It follows from the file that in some cases the NORP and NORP authorities had , despite their investigations , not been able to establish their addresses . In the other cases the authorities had not provided any reply despite repeated requests from ORG .

At the hearing on DATE the applicant ’s counsel lodged objections to the expert ’s opinion being read out . The opinion was discussed at the hearing of DATE , and ORG moved that the expert ’s opinion be supplemented . Further decisions to inspect savings and bank accounts were issued on DATE , and the court received the supplementary opinion of the expert on DATE .

The statements of the witnesses , whom the court had not been able to summon ( see paragraph CARDINAL above ) , were read out in the trial during the hearing on DATE . Those statements had been made by the witnesses during the pre - trial investigations in the presence of the defence counsel . During the trial , the defence counsel objected to having those statements read out .

By judgment of CARDINAL DATE ORG found the applicant guilty of abuse of authority and accepting bribes . The court relied on the NORP statements . In the judgment it gave reasons why it found these statement which had been read out credible and noted that they had been partly corroborated by the statements of the witnesses heard . Moreover , it had regard to certain pieces of documentary evidence . The applicant , who was acquitted of all the other charges , including some charges of accepting bribes , was sentenced to CARDINAL months’ imprisonment suspended for a DATE probationary period . When fixing the sentence , the court noted that the law provided for a prison term DATE . It went on to say :

“ In fixing the sentence , the long period over which the offences were committed and the repetition of the offences were considered as aggravating circumstances . The fact that the offences were committed quite some time ago , that the accused has shown proof of good conduct in the meantime and that he previously led a lawabiding life were seen as mitigating factors ... as was the fact that the proceedings lasted a disproportionately long time , through no fault of the accused or his defence counsel .

Given the above - mentioned mitigating and aggravating factors , a sentence of CARDINAL months’ imprisonment would appear to be proportionate to the nature and seriousness of the offence . The sentence is CARDINAL of the maximum DATE sentence ; however , in view of the aggravating circumstances , the court considered that a sentence in excess of DATE should be imposed . “

The applicant lodged a plea of nullity and an appeal against the sentence and asked for a hearing to be held . ORG lodged an appeal against the sentence .

On DATE ORG rejected the applicant ’s plea of nullity pursuant to LAW , without having held a hearing . It found that the conditions laid down in Article CARDINAL ) subparagraph ( CARDINAL ) of LAW for reading out the statements of the witnesses living abroad had been met , as it had not been possible to summon these witnesses and the statements had been made in an adversarial manner at the pre - trial stage . Moreover , ORG noted that the applicant ’s further submissions amounted to an inadmissible attempt to challenge the first instance court ’s assessment of evidence . The case was transferred to ORG to decide on the appeals .

By judgment of CARDINAL DATE ORG , after having held a hearing in presence of the applicant and his counsel , dismissed the applicant ’s appeal and partly granted ORG appeal , sentencing the applicant to CARDINAL months’ imprisonment of which DATE were suspended for a DATE probationary period . Its reasoning reads as follows :

“ On the basis of the comprehensive sentencing guidelines the decision by the panel of judges ( ORG ) to impose a term of CARDINAL of the possible sentence , within the range of DATE , takes into account above all the numerous and significant mitigating factors . There is therefore no scope for further reduction ; by the same token , however , the sentence should not be increased .

Nevertheless , the prosecuting authorities rightly point out that there are no grounds for suspending the sentence in full , not least on account of the nature of the offences , which also constitute a serious breach of official duty . Contrary to the view of the firstinstance court , it is therefore deemed necessary , if only on general crime prevention grounds ... for a portion of the sentence to be served in prison ... ”

The judgment was served on the applicant ’s counsel on DATE .


ORG Mr PERSON , an NORP national , resides at PERSON in GPE .

ORG In TIME CARDINAL to DATE a dispute broke out between him and the woman he lived with , PERSON She left the house and took refuge at her mother ’s home .

The following morning she consulted a doctor . He sent her DATE to the PERSON hospital then transmitted to that establishment a certificate dated DATE attesting that she was suffering from multiple bruising and headaches . A report drawn up by the hospital , dated DATE , stated that she claimed to have been struck with a belt and that she had several bruises on her body and one on her head .

ORG In TIME of CARDINAL July PERSON reported the incident to the Brand - Laaben police ( ORG ) . She alleged that the applicant had threatened to use violence on her if she did not get out immediately . As she had refused to obey , he had hit her with a belt on her back , on her arms and on her legs . Seeing him seize a rifle , she had tried to reason with him and then taken advantage of a moment of calm to escape .

ORG The police officer who had taken down this statement , Officer PERSON , informed the public prosecutor ’s office of PERSON by telephone TIME ; he was instructed by that office to file a report ( anzeigen ) concerning PERSON , but not to arrest him .

ORG On TIME CARDINAL July PERSON went back to the Brand - Laaben police station to inform the relevant officers that she and the applicant had been reconciled and that she had returned to live with him on DATE . She expressed her wish to withdraw her complaint .

ORG Questioned at the police station in TIME , the applicant denied that he had ill - treated PERSON or threatened her with a rifle . She had , he claimed , only a scratch on her back ; in addition , she had explained to him that she had lodged a complaint because she had been furious with him .

ORG On DATE the Brand - Laaben police sent a report on PERSON to ORG . They substantially repeated the allegations made by PERSON and produced the medical certificate of DATE , the hospital report of DATE and the records of the statements of the applicant and his woman friend , of CARDINAL and DATE ( see paragraphs CARDINAL and CARDINAL above ) .

ORG On DATE the PERSON public prosecutor ’s office committed the applicant for trial before ORG ( GPE ) of that town on charges of intimidation ( GPE , Article CARDINAL of LAW ) and causing actual bodily harm ( GPE , Article CARDINAL ) . At the hearing on DATE Mr PERSON protested his innocence ; according to him , PERSON had hurt herself in TIME CARDINAL to DATE when she struck the end of the bed . However , he admitted having attacked her and having pushed her away from him .

ORG When questioned by the court , PERSON availed herself of her right to refuse to give evidence ( see paragraph CARDINAL below ) . Subsequently Officer PERSON testified ; he recounted the statements that she had made before him on DATE and told the court that she had appeared to him to have been scared . She had shown to him the bruises on her arm and the bandage which covered a part of her back . No further applications being made by the parties , the judge ordered the report of DATE , the interview record of DATE ( see paragraphs CARDINAL and CARDINAL above ) and an extract from Mr PERSON ’s criminal record to be read out .

ORG On DATE the court convicted PERSON of intimidation and causing actual bodily harm and sentenced him to a fine of QUANTITY per day for DATE . On the basis of the statements made at the hearing by the accused and by Officer PERSON , the police investigation and the other evidence before it , the court found the facts to be established as described by PERSON on DATE . According to the judgment , they were corroborated by the doctor ’s diagnosis . Moreover the evidence revealed PERSON irascible and unpredictable personality and thus made the version given by PERSON plausible . The court did not find credible the accused ’s claims that she had deliberately falsely accused him .

ORG The applicant appealed . He complained inter alia that the first - instance court had had the record of PERSON statements ( see paragraphs CARDINAL above ) read out at the hearing , without having asked him to comment on this document or having questioned him or PERSON He also asked the appeal court to order an expert medical opinion and to effect a search of the LOC , as , he contended , the first - instance court ought to have done . In his view , the fact that PERSON had withdrawn her complaint had deprived the prosecution brought against him of its legal basis .

ORG On DATE ORG ( Oberlandesgericht ) of GPE upheld the contested judgment . It ruled inter alia that , according to well - established case - law , Article CARDINAL par . CARDINAL of LAW ( see paragraph CARDINAL below ) required the court before which the proceedings were pending to have the statements made outside court by witnesses who had refused to appear in court read out at the hearing , when such statements related to important points . ORG also held that PERSON had failed to give sufficient reasons for his request for an expert opinion , since he had provided no evidence casting doubt on the cause of the victim ’s injuries .

ORG Under LAW . CARDINAL , sub - paragraph CARDINAL , of LAW , the members of the accused ’s family as referred to in LAW are exempted from giving evidence ; they include cohabitees .

Paragraphs CARDINAL and CARDINAL of Article CARDINAL of the Code of Criminal Procedure are worded as follows :

" CARDINAL . The records of on - the - spot inspections and police reports , as well as the accused ’s criminal record and any other material documents or written evidence , shall be read out at the hearing , unless both parties agree to dispense with this proceeding .

After each such document has been read out , the accused shall be asked if he wishes to make any comments thereon . "


The applicants live in the town of GPE of GPE .

In DATE the applicants took part in the emergency operation at the GPE nuclear plant . As a result they suffered from extensive exposure to radioactive emissions . The applicants underwent medical examinations which established the link between their poor health and their involvement in the GPE events . Each applicant was consequently granted status of a disabled person and awarded a DATE pension and a special “ food allowance ” from the ORG , to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ) .

At a certain moment in DATE the social security authorities ceased to increase regularly the amounts of the pensions and “ food allowances ” due to the applicants in connection with their disabilities . Instead , they started to receive their pensions in a fixed amount ( MONEY ( RUR ) per person ) , which was less than they expected . Presuming that that practice was illegal , the applicants brought proceedings against the regional social security office ( “ the defendant ” ) claiming the increase of the pensions and the “ food allowances ” in line with the increase of the minimum subsistence amount during the relevant period .

On DATE ORG of GPE ( “ the Town Court ” ) rendered a judgment ordering the increase of the pension and the “ food allowance ” due to PERSON , CARDINAL of the applicants . In re - calculating the amounts to be paid the court applied the multiplier of CARDINAL reflecting the increase of the minimal subsistence amount in GPE and based on the data provided by the regional committee on statistics . As a result , the amounts to be received by PERSON PERSON on the DATE basis from the social security office increased to ORG CARDINAL,CARDINAL : CARDINAL on account of the disability pension plus RUR CARDINAL on account of the “ food allowance ” . The court ordered the defendant to pay the applicant the recalculated amounts as from DATE , less the sums already paid .

NORP On DATE ORG rendered a similar judgment ordering the increase of the pensions and “ food allowances ” in respect of other applicants .

The defendant appealed against the judgments of CARDINAL and DATE challenging , among other things , the multiplier of CARDINAL applied by the first - instance court . They also claimed that the law only provided for the increase of the disability pension in line with the cost of living , but not the “ food allowance ” .

On DATE ORG ( “ the Regional Court ” ) upheld the judgments of CARDINAL and DATE in full , dismissing the arguments of the defendant . The enforcement proceedings were opened .

On DATE the President of ORG wrote a letter to ORG Rostov Region requesting statistical information about the cost of living index in GPE at the relevant period of time .

On DATE , upon the request of the defendant , ORG rectified its own judgment of DATE as regards Mr PERSON , one of the applicants . The court held that since Mr PERSON belonged to the “ third category of disability ” ( the mildest form of disability , according to the NORP classification ) , the amount of his DATE pensions for DATE should be RUR CARDINAL . The court held that in DATE the applicant 's pension should amount to ORG MONEY per month .

On DATE the defendant appealed to ORG by way of supervisory review seeking to quash the judgments of CARDINAL and DATE , as upheld on CARDINAL Aril DATE .

On DATE ORG replied to the letter of the President of ORG of DATE . According to the ORG , the cost of living index in GPE was CARDINAL for DATE and CARDINAL for DATE .

On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the ORG of ORG ( “ the ORG ” ) .

On DATE the defendant complained to the President of ORG about the judgments of CARDINAL and DATE , as upheld on appeal , and the judge rapporteur 's decision of DATE rejecting their previous application for supervisory review . They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal .

The defendant argued , in particular , that the multiplier CARDINAL applied by the courts at CARDINAL instances was inappropriate , since it only reflected the growth of the cost of living in CARDINAL of the towns of GPE . The defendant insisted that the right multiplier , reflecting situation in the whole GPE , was CARDINAL . Furthermore , the statistical information referred to by the courts had not been properly examined at the hearing . They also indicated that the law did not provide for a recalculation of the amount of the “ food allowance ” .

On DATE the judge rapporteur of ORG requested CARDINAL case files ( concerning the judgments of CARDINAL and DATE ) from ORG .

On DATE Judge PERSON , the President of ORG , initiated the review of the judgment of DATE , as upheld on DATE . The President 's decision of DATE referred to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur 's decision of DATE . The President only indicated that the multiplier CARDINAL applied by the courts at CARDINAL instances had not been supported by references to the appropriate legislation . As a result , the case was transferred to the ORG for an examination on the merits .

On DATE the judge of ORG initiated the review of the judgment of DATE , as upheld on DATE . The decision of the judge was almost identical to the decision of the President of ORG of DATE .

On DATE the applicants were informed about the date and venue of the hearing of their cases by the ORG .

On DATE the ORG quashed the judgment of CARDINAL DATE , as upheld on appeal , stating that the first and second instance courts ' calculation of the minimum subsistence amount based on the multiplier CARDINAL had been insufficiently supported by evidence . The ORG noted that in support of its findings the lower courts referred to a letter of the Deputy Minister of Labour ; however , the original of that letter was missing and the court had only a photocopy of it . The ORG further noted that the lower courts had not verified the authenticity of that letter , and , therefore , their findings had been based on inadmissible evidence . The ORG also held that the law entitled GPE pensioners to the increase of their pensions , but not the “ food allowance ” . The case was remitted to the first instance court for a fresh examination .

On DATE the ORG , headed by the Judge PERSON , quashed the judgment of CARDINAL DATE , as upheld on appeal , remitting the case to the first instance court for a fresh examination . The grounds for quashing were the same as in the decision of CARDINAL DATE .

On DATE ORG examined the cases of all the applicants , except for Mr Nuzhdov . In the course of the proceedings the court established that the disability pension should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The applicants maintained that they had to accept that multiplier .

As a result , the court held that the amount due to the applicants for DATE was ORG CARDINAL per month and per person . Starting from DATE the pension should have amounted to ORG per month , except for Mr PERSON , whose pension was RUR CARDINAL,CARDINAL.CARDINAL . The court ordered the social security authorities to compensate the applicants for previous underpayments and , starting from DATE , pay them ORG CARDINAL ( RUR CARDINAL as regards Mr PERSON ) DATE , with subsequent indexation .

On DATE ORG examined the case of Mr Nuzhdov . The judgment in his case was identical to the judgment in the case of other applicants of DATE . On DATE ORG rectified its judgment on DATE correcting an arithmetic error in the calculation of the outstanding amounts awarded to the applicants .

The judgments of DATE and DATE were not appealed against and became final . On DATE the social security authorities transferred to the applicants ' accounts the amounts awarded by the town court for previous underpayments .

It appears that in DATE some of the applicants were involved in other civil proceedings concerning the recalculation of their pensions and benefits in line with the cost of living .

On DATE the Code of Civil Procedure of GPE ( “ the CCivP ” ) entered into force introducing , in particular , an amended system of supervisory review .

CCivP , in the relevant parts , provides as follows :

The judgment can be quashed by the court of appeal ( v kassatsionnom poryadke ) on the following grounds :

CARDINAL ) Incorrect establishment of facts relevant for the case ;

CARDINAL ) Lack of evidentiary support for the facts , established by the first instance court and relevant for the case ;

CARDINAL ) Inconsistency between the facts , relied by the court , and its conclusions ;

CARDINAL ) Breach or incorrect application of the material or procedural law . ...

The material law was breached if :

The court did not apply the law which had to be applied ;

The court applied the law which had not to be applied ;

The court misinterpreted the law .

Breach or incorrect application of procedural law may lead to the quashing of the judgment if that breach or misapplication led or could have led to incorrect determination of the case .

The judgment should be quashed irrespectively of the arguments [ of the appellant ] in the following instances :

CARDINAL ) LOC composition of the court which determined the case ;

CARDINAL ) NORP The case was examined in absence of a party to the proceedings , which had not been informed about the venue and the time of the hearing ;

CARDINAL ) The rules concerning the language of the proceedings were breached ;

CARDINAL ) The court determined rights and obligations of persons which had not been invited to take part in the proceedings ;

CARDINAL ) The judgment was not signed by the judge ...

CARDINAL ) The judgment was rendered by judges other than those who had heard the case ;

CARDINAL ) The hearing record was missing ;

CARDINAL) The secrecy of judge 's deliberations was breached .

“ CARDINAL . Judicial decisions that have become legally binding ... may be appealed against ... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination . ”

“ CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on –

( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;

( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .

NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . ”

“ CARDINAL . Having examined the case file obtained by the supervisory review court , the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory review court ;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court . ”

“ CARDINAL . NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court . ”

“ The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws . ”

On DATE ORG of GPE adopted Ruling no . CARDINAL-П , giving constitutional interpretation of the relevant provisions of the CCivP. The position of ORG , in so far as relevant in the context of the facts of the present case , may be summarised as follows .

Supervisory review of a judicial decision which entered in force is permitted only “ in exceptional circumstances , when , as a result of a judicial error , committed at an earlier stage of the proceedings , which was decisive for the outcome of the case , the rights and judicially protected lawful interests of the participants of the proceedings were significantly affected , and they can not be restored without quashing the judicial decision ” .

It is primarily for the courts of appeal to oversee the lawfulness and reasonableness of the lower courts ' decisions . The supervisory review may be used only if all “ normal ” legal avenues have been exhausted by the initiator of the review . ORG referred in this respect to the case of PERSON v. GPE , decided by ORG ( no . CARDINAL , DATE ) .

Under LAW CCivP supervisory review is possible when there are “ serious violations of the substantive and procedural laws ” by the lower courts . The wording used by the CCivP is not very precise , but the notion of “ serious violation ” is not susceptible to any clear definition and can not be reduced to a limited number of instances where the review is possible . The courts should have a certain margin of appreciation in interpreting that provision , to the extent that their case - law is uniform .

Articles CARDINAL and CARDINAL of the CCivP ( see above ) give certain guidelines for defining what kind of judicial errors may trigger the supervisory review . However , given the role of the supervisory review instance , it should not substitute the review by the court of appeal . Referring to the case - law of ORG , ORG noted that the supervisory review should not be an appeal in disguise and that the mere existence of CARDINAL opposite views on the subject of a civil dispute was not a good reason for reviewing the final judgment .

NORP The power of the judge to initiate the review without hearing the parties is not contrary to LAW . However , the decision not to proceed with the case may be challenged in an appeal to the President of the court , who can reverse it . ORG held that such a complaint may be lodged with the President only within the DATE time - limits provided by LAW

In addition , the supervisory review complaint can be brought before a higher instance . In paragraph CARDINAL of ORG noted that the existing provisions of the ORG allowed bringing CARDINAL consecutive supervisory review complaints . Furthermore , the time spent by the supervisory review instances on examining these complaints is not included in the DATE time - limit provided by LAW . As a result , the overall duration of the proceedings may be indefinitely long , up to DATE .

The Constitutional Court recognised that in certain circumstances the current system of supervisory review could be in breach of the legal certainty principle . However , ORG explicitly refrained from declaring the provisions of the ORG unconstitutional . Instead , ORG recommended the legislator to amend the relevant provision so to exclude possible breaches of the legal certainty principle .


The applicant , PERSON , is a NORP national , who was born in DATE in ORG ( GPE ) and resides in GPE .

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

The applicant is of the NORP faith and wears the veil . Since DATE , she has been married to a NORP national who lives in GPE .

She submitted that on DATE she had gone to the Consulate - General of GPE in GPE to request an entry visa to GPE so that she could join her husband , and that she was had not been authorised to enter the consulate premises because she had refused to remove her veil for the purposes of an identity check . The applicant had then submitted a visa application by registered letter , and her application had been refused .

The applicant ’s husband then lodged an appeal , on behalf of his wife , with ORG against the refusal to grant her an entry visa to GPE .

On DATE the ORG dismissed his appeal as follows :

“ In accordance with the provisions of LAW DATE of CARDINAL November CARDINAL relating to ORG for appeals against decisions refusing entry visas to GPE , I regret to inform you that the ORG has dismissed the appeal you lodged on DATE requesting re - examination of the decision by which the Consul - General of GPE in GPE refused an entry visa to GPE to [ the applicant ] .

It is up to [ the applicant ] to comply with the regulations in force in order to request a visa entry to GPE in accordance with the formal requirements . ”

The applicant ’s husband then lodged a further appeal , still on behalf of his wife , with the PERSON d’Etat , invoking in particular the right of his wife to respect for her family life and the right to freedom of religion .

On DATE the ORG d’Etat dismissed the appeal , giving the following reasons :

The wearing of the veil or headscarf , by which women of the NORP faith can express their religious convictions , may be restricted , particularly in the interests of public order .

The documents in the file show that [ the applicant ] went to ORG in GPE on DATE in order to request a visa and that as she refused to agree to the identity check , which has been set in place at the entrance to the NORP for reasons of security and public order and required the temporary removal of her veil , she was not allowed access to the ORG ; that she then submitted a visa application by registered letter ; that this written application , which did not , however , enable the person requesting the visa to be identified , can not be regarded as a visa application in accordance with the formal requirements for issuing visas , which require the personal appearance of the applicant ; that in citing this reason for refusing the visa application , ORG , which was not obliged to examine the application as regards right of entry since it was not submitted in accordance with the formal requirements , which can legally impose a temporary restriction on the wearing of the veil as the only means of identifying the applicant , did not err in law or infringe LAW ... .

Since the [ applicant ] refused to agree to this temporary restriction to allow her identity to be checked , she must be considered as having , on her own initiative , decided not to submit a visa application in accordance with the formal requirements ; that consequently , she is not entitled to rely on the terms of LAW ... . ”


CASE OF OURANIO TOXO AND OTHERS v. GREECE [Extracts]

Violation of Art. 6-1;Violation of Art. 11;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The political party PERSON ) , founded in DATE , has regularly taken part in elections since DATE . Its declared aims include the defence of the NORP minority living in GPE . The other CARDINAL applicants are members of the party 's political secretariat .

In DATE the party established its headquarters in the town of GPE . The second and third applicants affixed to the balcony of the LOC a sign indicating the party 's name in the CARDINAL languages spoken in the region : NORP and NORP .

According to the applicants , the opening of the headquarters and the affixing of the sign triggered a wave of violent protests by the town 's inhabitants , but the police failed to take the appropriate measures to protect them against the various attacks to which they were subjected .

NORP In particular , the offices were opened in DATE and on DATE priests from the church in PERSON published a statement describing the applicants as “ friends of GPE ” , driven by “ anti - NORP and treacherous sentiments ” . The statement continued as follows : “ we call upon the people to join a demonstration to protest against the enemies of GPE who arbitrarily display signs with anti - NORP slogans , and we will demand their deportation . ”

On DATE the PERSON town council held an informal meeting and , by a resolution published in the local press , decided to organise protests against the applicants .

On DATE the public prosecutor at ORG ordered the removal of the sign on the ground that the inclusion of the party 's name in NORP was liable to sow discord ( LAW see paragraph CARDINAL below ) among the local population . Police officers removed the party 's sign without giving any explanation to the applicants , who then put up a new sign . TIME , according to the applicants , while they were inside the party headquarters a crowd of people , among whom they apparently recognised the mayor , the deputy mayor and certain town councillors , gathered in front of the building to shout threats and insults at them , such as “ traitors ” , “ dogs ” , “ death to the dogs of GPE ” , “ you 're going to die ” , and “ we 'll burn everything ” . The crowd also allegedly demanded that the applicants hand over the sign .

On DATE at TIME a number of people allegedly attacked the party headquarters , and , after breaking down the door , assaulted those inside and demanded that they hand over the sign , which the applicants did . Another group entered the LOC at TIME , threw all the equipment and furniture out of the window and set it on fire . According to the applicants , throughout these events they made a number of telephone calls to the police station located QUANTITY from the party headquarters , but were apparently told that no officers were available to come out . The applicants submitted that the public prosecutor 's office took no action against those involved in the incidents . However , criminal proceedings for inciting discord were brought against CARDINAL members of the party , including the second and third applicants , under LAW . The bill of indictment stated that “ they had affixed to the party headquarters a sign on which , among other things , the word vino - PERSON ( rainbow ) was written in a NORP language , and had thus sowed discord among the local inhabitants ... ” . The applicants were committed for trial .

The trial took place on DATE before a single judge in ORG , who acquitted the applicants ( judgment no . CARDINAL ) . The court acknowledged that a crowd had gathered in front of the party headquarters and that one of the applicants had been beaten up . It found that there had also been criminal damage , which had culminated in the LOC being set on fire .

On DATE CARDINAL party members , including the second and third applicants , lodged a criminal complaint and applied to be joined to the proceedings as civil parties , alleging that those responsible for the incidents had committed the following offences : incitement to discord ( LAW ) , breach of the peace ( LAW ) , destruction of property ( LAW , criminal damage ( LAW ) , trespass ( Article CARDINAL ) , threats ( Article CARDINAL ) , insults ( Article CARDINAL ) and arson ( Article CARDINAL ) .

On DATE ORG of ORG considered that there was insufficient evidence against the individuals named in the applicants ' complaint and decided to discontinue criminal proceedings against them ( order no . CARDINAL/CARDINAL ) .

On DATE the applicants appealed .

On DATE ORG of ORG for LOC dismissed the appeal ( order no . CARDINAL/CARDINAL ) .

On DATE the applicants appealed on points of law .

On DATE ORG dismissed their appeal as inadmissible ( order no . CARDINAL/CARDINAL ) .

The relevant provisions of LAW read as follows :

“ CARDINAL . Anyone who takes part in an unlawful assembly , ... attacks persons or property , or forcibly enters houses , dwellings or other LOC belonging to another , shall be punished by a prison sentence of DATE .

NORP The perpetrators of such an attack and anyone who has incited another to commit the attack shall be punished by a prison sentence of DATE .

The above - mentioned sentences shall be imposed unless the offence attracts a harsher sentence under a different provision . ”

“ Anyone who , publicly or otherwise , provokes others to commit a violent act or sows discord among citizens , or incites citizens to do so , thus causing a breach of the peace , shall be punished by a prison sentence of DATE , unless the offence attracts a harsher sentence under a different provision . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and at present is living in GPE , GPE . The applicant , who was granted legal aid , was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr P. Clerides , Attorney - General of GPE .

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

The applicant came to GPE on DATE as a visitor . Following an application to the immigration authorities he was granted a temporary residence permit on DATE until DATE for working as a director of an offshore company in GPE . The permit was subject to the condition that it would lapse if the applicant ceased to work for the particular company .

On DATE the applicant married a NORP national .

On DATE , following an application to the immigration authorities dated DATE , the applicant was granted a temporary residence permit until DATE , for the purpose of enabling him to remain in GPE with his wife .

The Government submitted that in the meantime the immigration authorities had been informed that the aforementioned company had ceased to employ any staff and that from DATE it had no longer been allowed by ORG to employ any foreign staff without prior written permission from that bank . The Government submitted a copy of a letter dated DATE sent by ORG to the aforementioned company in this respect . The applicant stated that he had not known about this .

Following an application to the immigration authorities on DATE , the applicant ’s residence permit was renewed on DATE until DATE for the purpose of enabling him to remain in GPE with his wife and also to work as a labourer with a company in GPE .

On DATE the applicant applied to ORG ) for naturalisation .

On DATE the applicant ’s wife made a statement to the immigration authorities stating , inter alia , the following :

“ From the beginning of our marriage my husband was working as a labourer with a building company in GPE staying there DATE and coming to visit only on DATE . He showed from the beginning that he was only interested in his own good time and how he would arrange his visa each time so as to have no problems with the police , without paying attention to me , as if I did not exist in his life . He was not interested in how I got along or in the problems I had nor did he show any interest about our home and he did not have it in mind that at some moment we would have a family . This , that is , the fact that he lives in GPE and visits me once or twice a week , continues until DATE . Recently and , in particular , after we were notified by Sergeant ... of ORG in GPE that his application for naturalisation was pending in GPE and that we should make an appointment with him , his attitude has changed and he continuously mollifies me so I will sign that I have no problem with our marriage so he can obtain NORP nationality . From the day that Sergeant ... called his attitude towards me changed immediately for the best . I , however , because I understand that he is doing all this to obtain NORP nationality , want that the application we submitted for nationality is not taken into account at the present stage but to be examined at least in DATE , so that after our appointment with Sergeant ... my husband will think that it is all over , and I will see his real attitude towards me and his real intentions for our marriage . I have decided that if my husband does not change attitude towards me , I will file a divorce petition , because I can not bear this situation any longer ” .

On DATE the applicant applied to the immigration authorities for the renewal of his temporary residence permit for a period of DATE to enable him to remain in GPE with his wife . The applicant submitted that he had made this application with his wife .

By letter dated DATE ORG turned down the applicant ’s application for naturalisation as he did not fulfil the residence requirements set out in LAW . In particular , the applicant had not resided for a continuous period of DATE in GPE as required by LAW CARDINAL(CARDINAL)/CARDINAL for aliens in his position .

By letter dated DATE ORG turned down his application of DATE concerning the renewal of his residence permit . The letter stated that the application had been very carefully considered but it could not be approved because the applicant did not live with his NORP - Cypriot wife . The applicant was thereby requested to leave GPE immediately otherwise all necessary measures would be taken for his removal . The applicant , however , submitted that he had not received an answer concerning this application .

In the meantime , on DATE the applicant ’s wife filed a divorce petition before ORG on the ground that the marriage between her and the applicant had broken down irretrievably ( petition no . DATE ) .

In the divorce petition it was stated , inter alia , as follows :

“ The separation between the parties occurred in DATE , when the applicant requested the respondent after some argument that he had caused , to take his things and abandon the marital home . The respondent then told the applicant that he had married her to secure a residence permit for GPE . From then onwards the respondent lives in GPE .

The respondent was a shirker , he did not work and did not contribute financially to the DATE expenses of the maintenance and up - keep of his family . Nor did he demand that the applicant maintain him .

As a result of the behaviour of the respondent the parties’ marriage has been irretrievably broken down so that the continuation of marital life has become unbearable for the applicant .

The applicant has reached the infallible conclusion that she can not and also does not wish to live with the respondent anymore ” .

On the one hand , the Government noted that the divorce petition had been served on the applicant in person on DATE . In this connection , the ORG submitted a copy of the affidavit concerning the service of the petition and a copy of a letter dated DATE by the Registrar of ORG . In the petition it was specified that it had been fixed before ORG for directions for DATE . On that date the applicant did not appear in court either in person or through counsel and the petition was fixed for proof for DATE . The applicant did not appear before the court on DATE .

On the other hand , the applicant stated that he had never been served with a divorce petition , at least in a language that he could understand nor had he ever been served with a petition or any other written document indicating in any language he could understand that it was a legal document for which he should seek translation . He had not therefore been aware that he had had to appear in court on the above dates .

On DATE the applicant went to GPE . The Government stated that the applicant left following their request of DATE . However , the applicant submitted that he had not received the ORG ’s letter and that he had left GPE to visit his sister who permanently resided in GPE .

On DATE the applicant returned to GPE but was refused entry . The applicant submitted that the immigration authorities at the airport had refused to let him enter into the country despite the fact that he had had a visa from ORG in GPE and that his wife and friends had been at the airport waiting for him . He stated that the immigration authorities had claimed that he had married his wife in order to acquire a visa , that they had detained him and then made him buy a ticket for GPE where he had to return .

The applicant stated that on DATE he had contacted the NORP embassy in GPE and that they had informed him that they had forwarded his case to the immigration authorities in GPE .

By letter dated CARDINAL DATE the Government informed the ORG that on DATE the applicant ’s wife had withdrawn the divorce petition before ORG .

The admission , residence and expulsion of aliens are regulated by the ORG and Immigration PERSON of DATE ( PERSON . CARDINAL , as amended ) .

Under section CARDINAL ( CARDINAL ) of the above PERSON a person is not permitted to enter the Republic if he is a “ prohibited immigrant ” which includes , inter alia , any person who enters or resides contrary to any prohibition , condition , restriction or limitation contained in this PERSON or in any permit granted or issued under this PERSON ( sections CARDINAL ( CARDINAL ) ( k ) and ( m ) ) . A “ prohibited immigrant ” can be ordered to leave the LOC under LAW of the same PERSON . Furthermore , under LAW ( introduced by ORG ) , if the immigration authorities ascertain that an alien has contracted a sham marriage , then they can , inter alia , prohibit the alien in question to remain in the Republic , annul or refrain from renewing that alien ’s residence permit and order his or her expulsion in accordance with the provisions of the PERSON ( section CARDINAL ) . In order to ascertain whether a particular marriage is a sham , provision is made in section CARDINAL ( CARDINAL ) for the immigration authorities to conduct interviews of the spouses , together or separately , or of any person who is in a position to give them information in this regard . Factors that are considered as indicating that a marriage is sham include the fact that a couple do not live under the same roof , the fact that there is no appropriate contribution to marital obligations and contradictory declarations by the spouses concerning , inter alia , important information of a personal nature ( section CARDINAL ( CARDINAL ) ) .

A decision by the immigration authorities taken under LAW ( CARDINAL ) is subject to a hierarchical recourse to the Minister of Interior within DATE from the date the decision was issued ( Section CARDINALC ) . In the event such a recourse is filed the alien can remain in the Republic until the Minister ’s decision is issued . The Minister ’s decision can be challenged before ORG by way of administrative recourse under LAW . This provision provides as follows :

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

Under section CARDINALD of the same law any alien or a citizen of the Republic who has performed a sham marriage or taken part in any other way in the celebration of such a marriage , commits an offence which is punishable by a sentence of imprisonment for DATE and/or a pecuniary sentence up to QUANTITY .

ORG is regulated by LAW ( as amended ) . In particular , section CARDINAL of the third schedule of that PERSON set out the requirements concerning naturalisation of aliens .

Finally , LAW guarantees the right to private and family life . It provides as follows :

“ CARDINAL . Every person has the right to respect for his private and family life .

There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the LOC or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by LAW to any person ” .