Preliminary objection rejected (ex delicto non oritur actio);No violation of Art. 5-3

ORG Mr PERSON was born in DATE and lives in GPE in the GPE . At the material time he worked as a lorry driver .

ORG In TIME of CARDINAL DATE Mr PERSON was arrested by the police ( ORG ) in GPE , GPE , on the north - west coast of GPE . He was found driving a lorry which contained QUANTITY of hashish . The lorry belonged to the applicant . He was also found in possession of a pistol with its serial number chiselled off and of a radio pre - tuned to a station which coincided with that of another set found later in the possession of PERSON , who was also arrested ( see paragraph CARDINAL below ) .

CARDINAL more people were subsequently detained for allegedly being involved in a CARDINAL - stage operation to deliver QUANTITY of hashish .

ORG According to the applicant 's statement to the police , made with the assistance of a lawyer and an interpreter on CARDINAL DATE , an unknown person had approached him sometime in DATE and again in DATE and offered him MONEY to transport QUANTITY of " dope " ( droga ) from PERSON to the GPE . After some hesitation PERSON had finally accepted . Late in the TIME of CARDINAL DATE , following the unknown person 's instructions , he had taken his truck to PERSON , where another man had loaded the drugs and then gone away . The applicant had only been driving for TIME when he was arrested .

This statement was confirmed by the applicant on CARDINAL DATE before the relevant judicial authority ( see paragraph CARDINAL below ) , PERSON investigating judge no . CARDINAL , who then ordered PERSON detention pending trial ( auto de prisión ) . Basing his decision on sections CARDINAL and CARDINAL of the Code of Criminal Procedure ( Ley de Enjuiciamiento Criminal , " LECrim " - see paragraphs DATE and CARDINAL below ) , the judge held that there was sufficient reason to believe that the applicant was criminally responsible for the commission of a public - health offence . According to the applicant , the other persons detained , all NORP nationals , were unconditionally released .

On DATE Mr PERSON made a written statement to ORG investigating judge no . CARDINAL in which he explained that , contrary to his previous statements , he had not known that he was transporting drugs at the time of his arrest . He had thought the consignment was tobacco but had said drugs because of the pressure put on him and language difficulties .

ORG In an order of CARDINAL DATE ( auto de procesamiento ) investigating judge no . CARDINAL decided that the available evidence was sufficient to charge the applicant with an offence against public health ( sections CARDINAL and CARDINAL bis ( a ) of LAW - see paragraphs DATE and CARDINAL below ) and unlawful possession of a firearm ( section CARDINAL of LAW - see paragraph DATE below ) . The applicant 's detention was confirmed . An appeal by the applicant against this order appears to have been dismissed .

ORG On DATE and CARDINAL DATE Mr PERSON lodged with investigating judge no . CARDINAL his first applications for provisional release . Arguing that he had throughout been unaware of the real nature of the consignment , he insisted that he was not involved with any drug - trafficking organisation . He further complained that during his DATE detention he had only been questioned twice by the judge - in DATE and DATE - and was the only person still held in custody despite the relatively minor character of his offence . PERSON also undertook to comply with any conditions attached to his release .

These applications were rejected on DATE and DATE respectively by means of orders not containing reasons .

ORG A similar application for provisional release followed on DATE and was rejected on DATE by an auto ( reasoned decision ) . The ground for the decision was the seriousness of the offences - illegal possession of a firearm and drug trafficking in large quantities ; the second offence in itself attracting a prison sentence of " prisión menor en su grado medio " ( that is , from DATE , DATE and DATE to DATE and DATE ) .

ORG By an order of DATE ( auto PERSON del sumario ) the applicant was committed for trial .

ORG Further applications for provisional release were addressed to FAC in GPE ( see paragraph CARDINAL below ) on DATE , CARDINAL May , DATE and CARDINAL DATE . On DATE the GPE public prosecutor ( Ministerio Fiscal ) stated that he would not oppose the applicant 's release provided that he paid security of MONEY , handed in his passport and reported DATE to the police . However , on DATE the ORG refused the applications for release , briefly stating : " The original circumstances on which the detention pending trial was decided remain unchanged " ( see paragraph CARDINAL below ) . The applicant then requested ORG to reconsider its decision , complaining , inter alia , that several co - detainees in respect of whom the prosecution was seeking sentences of DATE ten years ' imprisonment had obtained conditional release upon payment of MONEY . In the applicant 's submission , only the fact of his being a foreigner seemed to account for his long period of detention . On DATE the ORG declined to reconsider its decision .

ORG In the course of DATE the NORP authorities had launched a nationwide operation ( Operación Nécora ) to combat a large - scale drug - trafficking organisation which operated mainly in GPE . Central investigating judge no . CARDINAL in FAC , GPE ( see paragraph CARDINAL below ) , was put in charge of the overall investigation .

The applicant 's case was considered to be closely linked with other files relating to ORG and was therefore transferred to GPE on DATE . ORG had heard the parties beforehand ; the applicant 's lawyer did not make any submissions ( see paragraph CARDINAL below ) .

ORG On DATE central investigating judge no . CARDINAL issued an order ( auto de procesamiento ) whereby new charges were added against the applicant without any alteration to the established facts . He was now charged not only with an offence against public health and unlawful possession of a firearm of foreign origin ( see paragraph CARDINAL above ) but also with smuggling and criminal association ( sections CARDINAL and CARDINAL of LAW ) . An appeal by the applicant against these orders which included a request for release was eventually rejected on DATE by ORG of the Audiencia Nacional . The grounds for the decision not to release the applicant were the seriousness of the alleged offences , considerations of public order and the high risk of absconding on account of the applicant 's foreign nationality .

ORG On DATE the applicant had lodged a fresh application for release with investigating judge no . CARDINAL in which he repeated arguments adduced earlier and additionally submitted that the transfer of his case to GPE would inevitably mean that his trial would be further delayed . The public prosecutor opposed the applicant 's release , and on DATE central investigating judge no . CARDINAL decided to continue the applicant 's detention in view of the available evidence , the nature of the offence and its seriousness , the prison sentence that it would attract , the extent of the applicant 's involvement and the likelihood of his absconding .

PERSON challenged this in ORG of the Audiencia Nacional . In his appeal the applicant submitted , inter alia , that as his alleged offence was wholly unconnected with the charges relating to drug trafficking , he could easily have been tried DATE after his arrest . He further submitted that , in any case , even if he were to be found guilty of the offences with which he was charged , he would already have served his sentence in detention pending trial ( over DATE ) . On DATE the Audiencia Nacional dismissed the appeal , thereby confirming the investigating judge 's decision .

The applicant 's subsequent constitutional complaint ( recurso de amparo ) was declared inadmissible by ORG on DATE on the ground that none of the issues raised by the applicant were of a constitutional nature .

ORG In the meantime , in a telegram of CARDINAL DATE addressed to central investigating judge no . CARDINAL , the applicant had renewed his application for release . The public prosecutor attached to the Audiencia Nacional requested that the applicant 's detention be prolonged to the statutory maximum of DATE ( see paragraph CARDINAL below ) . PERSON responded by offering to make a formal undertaking that he would reside in PERSON should his release be granted . On DATE central investigating judge no . CARDINAL decided to continue the applicant 's detention and to adjourn any decision on the public prosecutor 's request for its extension .

ORG As PERSON period of detention approached DATE , the central investigating judge no . CARDINAL decided on CARDINAL DATE , in accordance with LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) and after hearing the parties , that the maximum duration of the detention should be extended by DATE . He based this decision on the seriousness of the charges and the sentence which could be imposed in the event of conviction .

ORG On DATE the central investigating judge no . CARDINAL concluded the preliminary investigation . The case was sent to ORG of the Audiencia Nacional for trial .

ORG On DATE the applicant lodged a new application for release , this time with the Audiencia Nacional , which on DATE allowed it subject to the following conditions : ( a ) the applicant was to pay in cash a security of MONEY ; ( b ) he was to give an address and inform the court of any subsequent change ; ( c ) he was to report DATE to the police in GPE ; and ( d ) he was not to leave NORP territory .

The Audiencia Nacional gave the following reasons for its decision :

" There is prima - facie evidence that ... the accused did not play a major role in any of the organisations concerned , as he merely transported the illegal substance in question , the nature of which also has to be taken into account by the court .

The time that has elapsed since PERSON was placed in custody - over DATE ( he has been in detention far longer than any of the other defendants in this case ) - means that it is possible to rule out his being able to conceal or suppress evidence .

The period of time that has elapsed clearly - why not be frank about it ? - owes much to ill fortune and the vicissitudes of the proceedings . He could have been tried in GPE DATE , when the GPE public prosecutor did not oppose his provisional release .

The same lapse of time , viewed in the context of the brief provisional summary of the facts , argues in favour of varying the order placing him in detention pending trial , relaxing the conditions of detention by making it possible to avoid it altogether , provided that the measures referred to in the operative provisions below are taken so as to ensure that he appears for trial .

The court did not consider that the accused 's foreign nationality constituted an insurmountable obstacle to reaching this conclusion , because other foreign defendants in the case are in fact not being held in detention . The court simply took the view that it was just another factor which , combined with the accused 's lack of close ties with GPE , could lend support to the idea that he might be likely to seek to evade trial ; but that can not be presumed without additional evidence . Furthermore , this type of fear , which is always relative , can not in such circumstances have the effect of inexorably making the accused serve in advance the sentence which may be imposed on him . This is particularly so as the accused has shown , at least to some extent , that he is able to remain on NORP territory and obtain a contract of employment there which would enable him to engage in a lawful activity for the duration of the contract . "

ORG On DATE , in response to a request by the applicant for a reduction in the amount of the security , the Audiencia Nacional set it at MONEY either to be paid in cash or to be guaranteed by a bank . On DATE the security was deposited by the applicant 's wife , whereupon Mr PERSON was released .

ORG During his stay in ORG prison , PERSON was of good behaviour and participated in several prison activities . He also worked as a clerk in the prison bursar 's office .

ORG On DATE , on an application by PERSON , the Audiencia Nacional gave him leave to report to the police only once a week and returned certain documents to him , including his driving licence .

ORG On DATE the applicant sought permission to travel to the GPE in order to spend DATE with his family . This request was refused by the Audiencia Nacional on DATE in view of the obvious risk of absconding .

ORG On DATE the applicant travelled by car from GPE to the GPE .

ORG By letter of CARDINAL DATE the applicant 's GPE lawyer informed his NORP lawyers that their client had left GPE and returned to the GPE , as he had no means of subsistence . The GPE lawyer requested them to secure a variation of the conditions on which release had been granted , in particular the obligation to stay in GPE .

ORG In a letter of DATE to the NORP embassy in GPE , the GPE lawyer proposed that PERSON should report DATE to the embassy . He further stated that his client intended to return to GPE in order to stand trial . The embassy answered by advising the applicant to contact the Audiencia Nacional .

Neither the applicant nor his representatives appear to have contacted the Audiencia Nacional at this stage , nor do they seem to have informed that court of his new address .

ORG Meanwhile , on DATE , the Audiencia Nacional had confirmed the investigating judge 's decision to conclude the investigation ( see paragraph CARDINAL above ) , thereby ordering the opening of the trial ( juicio oral ) . By that time the case file ran to CARDINAL pages . On DATE the public prosecutor made provisional indictment submissions ( conclusiones provisionales ) containing charges against CARDINAL people . In respect of the applicant , the public prosecutor demanded a total prison sentence of DATE and a fine of MONEY in respect of an offence against public health ( see paragraphs CARDINAL and CARDINAL below ) and of unlawful possession of a firearm of foreign origin ( see paragraphs DATE and CARDINAL below ) .

ORG In a summons of DATE the applicant was ordered to appear before the trial court . However , the summons could not be served on him , as he no longer lived at the address he had originally given the NORP authorities .

On DATE the police informed the court that the applicant 's whereabouts were unknown . Thereupon the Audiencia Nacional ordered the applicant and his surety - his wife - to appear before it on DATE at a hearing concerning the forfeiture of the bail .

The applicant 's NORP lawyer filed an objection against this order , submitting , inter alia , that the applicant had had to leave GPE for a compelling reason , namely the terminal illness of his father , but that he had no intention of evading NORP justice and would appear for trial . On DATE the Audiencia Nacional , noting that the applicant had failed to comply with the conditions attached to his release , dismissed the objection and ordered his arrest .

On DATE the Audiencia Nacional declared that the applicant had failed to appear ( rebeldía ) and his security was forfeited .

ORG The trial took place in GPE from DATE to CARDINAL DATE . PERSON did not attend it and could therefore not be tried pursuant to CARDINAL of LAW .

ORG On DATE the Audiencia Nacional delivered a CARDINAL-page - long judgment . PERSON ( see paragraph CARDINAL above ) was held to have played a leading role in importing very large quantities of hashish . He was accordingly sentenced to a total of DATE imprisonment and a fine of MONEY . It does not appear from the facts set out in this judgment that the applicant was involved in drug - trafficking activities beyond the transporting of QUANTITY of hashish for which he was arrested ( see paragraph CARDINAL above ) .

ORG The NORP authorities have not requested PERSON extradition .

ORG In ordinary cases the investigation of all types of offence falls to the investigating judge ( juez de instrucción ) in whose district the offence has been committed ( FAC LECrim ) . Upon completion of the investigation , the investigating judge may , by means of an order ( auto PERSON del sumario y apertura del juicio oral - section CARDINAL ( CARDINAL ) LECrim ) commit the accused for trial at FAC in whose province the offence in question has been committed ( section CARDINAL.IV LECrim ) .

Offences concerning drug trafficking that have been committed by " organised gangs or groups and affect various provinces " and any other connected offences come within the jurisdiction of the Audiencia Nacional in GPE ( section CARDINAL ( CARDINAL ) ( e ) and in fine of FAC , " LOPJ " ) . In such cases investigation falls to the relevant central investigating judge ( juez de instrucción central ) attached to FAC , likewise in GPE ( section CARDINAL LOPJ ) .

ORG Where the same facts are being examined by CARDINAL courts , the one which considers that it has jurisdiction must ask the other to transfer the file to it ( inhibitoria ) . In such cases the decision to transfer the file can only be taken after the parties have been heard ( section CARDINAL LOPJ ) and is always final , no appeal being possible ( section CARDINAL ) .

ORG Under LAW , " anyone who cultivates , manufactures or traffics in toxic or stupefying drugs or psychotropic substances or in any other way promotes , encourages or facilitates the unlawful consumption of them , or possesses them for such purposes " , shall be liable to a term of imprisonment ranging from DATE and DATE to DATE and DATE ( de arresto mayor en su grado máximo a prisión menor en su grado medio ) and to a fine of QUANTITY , provided that the damage to health caused by the substances or products involved is not serious . PERSON is regarded as such a substance , as opposed to " hard drugs " .

ORG However , under LAW , the relevant term of imprisonment is substantially increased , ranging from DATE , DATE and DATE to DATE , where :

" CARDINAL . ... the quantity of toxic or stupefying drugs or psychotropic substances ... is particularly large .

ORG ... the offender belongs to an organisation , even a provisional one , that could have the aim of spreading such substances or products even on an occasional basis . "

ORG Under LAW of LAW , the unlawful possession of a firearm , without the required licence , is punishable with imprisonment ranging from DATE , DATE and DATE to DATE and DATE .

ORG The term of imprisonment ranges from DATE and DATE to DATE where the firearms are of foreign origin and have been brought into NORP territory illegally ( section CARDINAL ( CARDINAL ) of LAW ) .

ORG LAW secures the right to liberty and security of person and sets out the conditions under which a person 's liberty may be restricted . By paragraph CARDINAL of this provision , a habeas corpus procedure shall be provided for by law , which shall also determine the maximum duration of detention pending trial .

ORG Under section CARDINAL LECrim :

" The following conditions must be satisfied for pre - trial detention to be ordered :

ORG The commission of an act which may constitute an offence ( delito ) must have been established .

ORG The offence must be punishable by DATE imprisonment ( prisión menor ) or , if the term of imprisonment is shorter , the judge must consider it necessary to remand the accused in custody in the light of his criminal record , the circumstances of the offence , the disturbance of public order it has caused or the frequency with which similar acts have been committed ...

ORG There must be sufficient reasons to consider the person to be remanded in custody criminally responsible for the offence . "

ORG According to LAW , detention pending trial shall not exceed DATE where an offence is punishable with a term of imprisonment ranging from DATE and DATE to DATE ( prisión menor ) and shall not exceed DATE if the applicable sentence is more severe .

ORG If , however , owing to certain circumstances the case can not be tried within that period and there is a risk that the accused may evade justice , LAW provides that detention pending trial may be prolonged up to DATE respectively . A reasoned decision ( auto ) to this effect shall only be issued after the competent court has heard the accused and the public prosecutor .

ORG Under LAW ( CARDINAL ) LECrim detention pending trial may last only as long as the original reasons remain valid .


Violation of Art. 6-1;Violation of Art. 13

Anatoly Kovler;George Nicolaou;Mirjana Lazarova Trajkovska

The applicant , a retired military officer , was born in DATE and lives in PERSON .

On DATE the applicant lodged an application with ORG ( ORG ) ( hereafter “ the ORG ” ) asking for an additional retirement premium , following the amendment of the date of his retirement . On DATE and DATE ORG rejected his application at first instance and on appeal respectively .

On DATE the applicant lodged a recourse with ORG challenging the decisions of the Fund .

In a judgment dated CARDINAL DATE ORG partially upheld the applicant 's claim and awarded him MONEY ( ORG ) ( i.e. MONEY ) ( judgment no . DATE ) .

On DATE the ORG lodged an appeal .

On DATE ORG accepted the ORG 's appeal and quashed the first instance decision , after having concluded that the legal requirements for the award of an additional retirement premium had not been satisfied ( judgement no . CARDINAL/CARDINAL ) . The applicant was served with the decision on DATE .

On DATE the applicant lodged an appeal on points of law .

On DATE ORG quashed the appellate decision and remitted the case to ORG ( judgment no . DATE ) .

On DATE ORG rejected the appeal lodged by the ORG against judgment no . DATE of ORG ( judgment no . CARDINAL/CARDINAL ) . The applicant was served with the decision on CARDINAL DATE .


Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

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

The first applicant , Mr PERSON , is an NORP national born in DATE .

On DATE ORG convicted the applicant of homosexual acts with consenting adolescents within the age bracket of CARDINAL to CARDINAL , an offence under LAW , and sentenced him to QUANTITY months’ imprisonment . On DATE ORG reduced the sentence to CARDINAL months’ imprisonment .

On DATE ORG convicted the applicant of other offences under the same provision and sentenced him to DATE and CARDINAL months’ imprisonment . On DATE ORG partly acquitted him and reduced the sentence to DATE imprisonment .

On DATE ORG convicted the applicant under LAW and sentenced him to DATE imprisonment . The applicant did not appeal .

All those convictions were entered in the applicant ’s criminal record .

On DATE the first applicant applied to have each conviction under LAW deleted from his criminal record on the grounds that LAW had been repealed by ORG in the meantime . On DATE the Federal Minister of the ORG dismissed his application .

On DATE the applicant applied for legal aid in order to lodge a complaint against the Federal Minister ’s decisions with ORG and ORG .

On DATE ORG dismissed the request for legal aid , holding that the applicant ’s complaint had no prospect of success . It noted that in a previous judgment of DATE it had found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning registration , but that they had no competence to review on their own initiative the lawfulness of the respective order on its merits . Since a review of the lawfulness of an ordinary court ’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law , ORG of the ORG ’s decision had not breached the law .

On DATE ORG , referring to ORG case - law , according to which the authorities were only entitled to check whether a mistake had occurred when a conviction was registered , but not to decide on the lawfulness of an entry on their own initiative , dismissed the applicant ’s request for legal aid on the grounds that his complaint lacked any prospect of success .

On an unspecified date the first applicant lodged a request for a renewal of each set of criminal proceedings which had led to his convictions under LAW with ORG in order to seek the quashing of the convictions , with a view to their subsequent deletion from his criminal record .

By decisions of DATE , DATE and DATE respectively , ORG rejected the application . As the highest instance for criminal proceedings , it found that it had , in principle , the competence to take the necessary decisions in fulfillment of its obligations arising from LAW and LAW . However , in order to safeguard the principle of legal certainty , it had to apply the same admissibility criteria as ORG . This meant that applying LAW per analogiam , a request for a renewal of the criminal proceedings had to be submitted within DATE after the conviction had become final and that the applicant had to have exhausted domestic remedies . It rejected the applicant ’s request because it had been introduced outside of the DATE period and , as regards the first set of proceedings , on the additional ground that the applicant had failed to raise his complaint before the domestic courts . Furthermore , it noted that the matter had already been examined by ORG in the first set of proceedings .

The second applicant , Mr PERSON is an NORP national born in DATE .

On DATE the ORG convicted the second applicant of homosexual acts with consenting adolescents within the age bracket of DATE , an offence under LAW , and sentenced him to CARDINAL months’ imprisonment . The conviction was entered in the criminal record .

On DATE the second applicant applied to have the conviction under LAW deleted from his criminal record , on the grounds that that provision had been repealed in the meantime . On DATE ORG of the ORG dismissed the application .

On DATE the second applicant lodged a complaint against that decision with ORG and ORG , and applied for legal aid .

On DATE ORG declined to deal with the complaint for lack of any prospect of success . In its reasoning it referred to its judgment of DATE ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the applicant ’s complaint , finding that the mere repeal of a criminal provision by ORG or the legislator , without any specific order of a competent court , as in the instant case , could not give rise , under LAW , to the administrative authorities deleting a conviction that had been lawfully entered in a person ’s criminal record . The authorities were only entitled to check whether a mistake had occurred when the conviction had initially been recorded .

On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings to ORG order to seek the quashing of the conviction , with a view to its subsequent deletion from his criminal record .

On DATE ORG rejected the application . As the highest instance for criminal proceedings , it found that it had in principle the competence to take the necessary decisions in fulfillment of its obligations arising from LAW and LAW . However , in order to safeguard the principle of legal certainty , it had to apply the same admissibility criteria as ORG . This meant that , applying LAW per analogiam , a request for a renewal of the criminal proceedings had to be submitted within DATE after the conviction had become final and that the applicant had to have exhausted domestic remedies . It rejected the applicant ’s request since it had been introduced outside of DATE .

On DATE the ORG convicted the second applicant again of homosexual acts with consenting adolescents within the age bracket of CARDINAL to CARDINAL , an offence under LAW of LAW , and sentenced him to DATE imprisonment .

On DATE ORG rejected a plea of nullity lodged by the second applicant and on DATE ORG dismissed an appeal lodged by him . The conviction was entered in the criminal record .

On DATE the second applicant applied to have the conviction under LAW deleted from his criminal record . On DATE ORG of the ORG dismissed the application .

ORG declined to deal with the complaint on DATE because , in accordance with its case - law , it lacked any prospect of success .

On DATE ORG dismissed the second applicant ’s complaint .

On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings with ORG in order to seek the quashing of the conviction , with a view to its subsequent deletion from his criminal record .

On DATE ORG rejected the request for the same reasons as those given in its judgment of DATE ( see paragraph CARDINAL above ) .

The third applicant , Mr A. S. , is an NORP national born in DATE .

On DATE the ORG convicted the applicant of homosexual acts with consenting adolescents within the age bracket of CARDINAL to CARDINAL , an offence under LAW . It sentenced him to DATE imprisonment and ordered his detention in a secure psychiatric institution , pursuant to LAW . The applicant did not appeal against that decision . The conviction was entered in his criminal record .

On DATE the third applicant applied to have the conviction deleted from his criminal record . On DATE ORG of the ORG dismissed his application .

On DATE the third applicant lodged a complaint with ORG and ORG against the Federal Minister ’s decision .

On DATE ORG declined to deal with the case because , in accordance with its case - law , it lacked any prospect of success .

On DATE ORG dismissed the complaint .

On an unspecified date the third applicant lodged a request for a renewal of the criminal proceedings with ORG in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record .

On CARDINAL DATE ORG rejected the request for the same reasons as those given in its judgment of DATE ( see paragraph CARDINAL above ) .

The fourth applicant , PERSON , is an NORP national born in DATE .

On DATE ORG convicted the fourth applicant of homosexual acts with consenting adolescents within the age bracket of CARDINAL , an offence under LAW , and sentenced him to CARDINAL months’ imprisonment . As the fourth applicant did not appeal against that decision , it became final . The conviction was entered in his criminal record .

On DATE the fourth applicant applied to have the conviction deleted from his criminal record , because LAW had been repealed in the meantime . On DATE ORG of the ORG dismissed his application .

On DATE the fourth applicant lodged a complaint against the Federal Minister ’s decision with ORG and ORG .

On DATE ORG dismissed the complaint . It found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning the recording of convictions , but that they had no competence to review on their own initiative whether the respective order was lawful on its merits . Since a review of the lawfulness of an ordinary court ’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law , ORG of the ORG ’s decision had not breached the law .

On DATE ORG dismissed the fourth applicant ’s complaint .

On DATE the fourth applicant lodged a request for a renewal of the criminal proceedings with ORG in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record .

Article CARDINAL of LAW , in force until DATE , deals with consensual homosexual acts and reads as follows :

“ A male person who , after attaining DATE , fornicates with a person of the same sex who has attained DATE but not DATE , shall be sentenced to imprisonment of DATE . ”

In a judgment of DATE , following a request for a constitutional review made by ORG , ORG found that LAW was unconstitutional .

ORG held that Article CARDINAL concerned only consensual homosexual relations between men aged over DATE and adolescents between the ages of DATE and DATE . In the CARDINAL age bracket , homosexual acts between persons of the same age ( for instance CARDINAL DATE ) or persons with an age difference of DATE , were not punishable . However , as soon as CARDINAL partner reached DATE , such acts constituted an offence under LAW . They became legal again when the younger partner reached the age of DATE . Given that Article CARDINAL applied not only to occasional relations but also to ongoing relationships , it led to rather absurd results DATE namely , a change of periods during which the homosexual relationship of CARDINAL partners was first legal , then punishable and then legal again – and could therefore not be considered to be objectively justified .

On DATE , following ORG judgment , ORG decided to repeal LAW . It also introduced LAW , which penalises sexual relations with persons DATE under specific conditions and which is formulated in a gender neutral way . This provision prohibits sexual acts with a person DATE if , for certain reasons , that person is not mature enough to understand the meaning of the act and the offender takes advantage of that immaturity , or if the person DATE is in a predicament and the offender takes advantage of that situation . Article PERSON also penalises the inducing of persons DATE to engage in sexual activities in return for payment . Article CARDINALb applies irrespective of whether the sexual acts at issue are heterosexual , homosexual or lesbian . The above amendment , published in ORG ( ORG ) no . CARDINAL/CARDINAL , entered into force on DATE .

Under its transitional provisions , the amendment did not apply to criminal proceedings in which a first - instance judgment had already been given . It did exceptionally apply , subject to the principle of the application of a more favourable law , where a judgment had been set aside , inter alia , following the reopening of proceedings or in the context of a renewal of the proceedings following the finding of a violation of the LAW by ORG . Apart from those situations , convictions under LAW remained unaffected by the amendment .

Under the heading “ Renewal ” ( Erneuerung des PERSON ) , LAW ( GPE ) provides as follows :

“ CARDINAL . If it is established in a judgment of ORG that there has been a violation of ORG [ ORG ] no . CARDINAL/CARDINAL ) or of one of its Protocols on account of a decision [ GPE ] or order [ GPE ] of a criminal court , a retrial shall be held on application in so far as it can not be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned .

All applications for a retrial shall be decided by ORG . ... ”

“ CARDINAL . On an application for a retrial , the ORG shall deliberate in private only where the Attorney - General or the judge rapporteur proposes that a decision be taken on CARDINAL of the grounds set out in DATE and CARDINAL .

Where ORG deliberates in private , it may refuse an application .

if it unanimously considers the application to be manifestly ill - founded .

Under LAW ( Strafregistergesetz ) , every criminal conviction and sentence pronounced by a court for criminal matters ( excluding those dealt with by administrative authorities ) is to be registered in the criminal record ( PERSON ) , and is to remain visible there until its deletion . The criminal record is a central register which is kept by an administrative authority and which is accessible to law - enforcement authorities ( ORG ) . Furthermore , anybody is entitled to obtain a copy of his or her own criminal record , which may be presented to employers in order to prove his or her moral integrity ( ORG ) .

The following provisions are relevant to the present case :

“ ( CARDINAL ) The following must be entered in the criminal record :

NORP all final convictions by the domestic criminal courts ... ,

NORP all final convictions of NORP nationals and persons who have their residence or usual place of abode in GPE , by foreign criminal courts ... ,

NORP all decisions of the Federal President in connection with a conviction mentioned under subparagraphs CARDINAL , and decisions of the domestic courts regarding

( c ) the pardoning of the convicted person , the mitigation , conversion or new fixing of a penalty

( k ) the setting aside or alteration of a conviction or later decision ;

( m ) the extinction of a conviction ;

( CARDINAL ) Any ruling imposing a penalty or preventive measure against a person or guilty verdict because of an act triable under NORP law by the courts pursuant to LAW in proceedings that are in compliance with the principles of LAW no . CARDINAL/CARDINAL , shall be deemed a conviction within the meaning of this federal law . ”

“ ( CARDINAL ) Convictions by domestic criminal courts shall , once they take effect , be notified by the courts determining the case at first instance to ORG through the transmission of criminal record cards .

“ ( CARDINAL ) Decisions of the Federal President relating to CARDINAL of the convictions mentioned in DATE of section CARDINAL(CARDINAL ) and final decisions by domestic criminal courts shall be notified to ORG by the court , which shall inform the convicted person thereof . The notification shall state the conviction to which the President ’s or court ’s decision refers . Detailed regulations regarding the external form of these notifications shall be adopted by ORG in charge of the implementation of this federal act by mutual agreement through official instructions .

( CARDINAL ) The date on which all prison sentences , fines ( penalties in lieu of forfeiture or confiscation ) and preventive measures accompanying deprivation of liberty imposed in a conviction have been completed , are deemed to have been completed , have been remitted or no longer need to be executed ( section CARDINAL ) ) shall be notified to ORG by the court determining the case at first instance . If , in the case of a conviction under section CARDINAL(CARDINAL ) of ORG DATE , ORG no . DATE , in respect of an unconditionally remitted prison sentence or in respect of a completely or only partly conditionally remitted prison sentence where remission has been revoked , the date of release from prison precedes the date stated in the first sentence , this release shall also be notified .

( CARDINAL ) Convictions and decisions , orders and notifications by foreign organs relating to convictions shall be notified to ORG by all domestic authorities and offices obtaining knowledge thereof , unless they are aware that ORG has already received a corresponding notification .

“ ( CARDINAL ) If a domestic criminal court becomes aware that there has been a change in the personal situation of a convicted person ( section CARDINAL(CARDINAL)(CARDINAL ) ) or that the information contained in the criminal record about a convicted person or a conviction is incorrect or that a person has convictions that are not included in the criminal record , it shall notify ORG accordingly .

“ ( CARDINAL ) Any person in connection with whom a conviction , a decision by the Federal President or any other decision , order or notification relating thereto has or has not been entered in the criminal record may request a declaration that the entry in the criminal record is incorrect or inadmissible and therefore must be replaced or deleted , that the entry should have been made or that the conviction has been extinguished .

( CARDINAL ) A request under subsection ( CARDINAL ) shall be filed with ORG , which shall determine it .

( CARDINAL ) If a request under subsection ( CARDINAL ) is completely or partly allowed , the criminal record shall be corrected . ”

“ ( CARDINAL ) Except where provided for in other federal laws and international agreements , ORG shall , on request , provide free of charge information about entries in the criminal record :

NORP to all domestic authorities , offices of the federal police and – in respect of members of the armed forces – also to the military authorities ;

NORP to all foreign authorities in so far as a reciprocal agreement exists . ”

“ ( CARDINAL ) Mayors , in places where there are federal police directorates , these directorates , as well as NORP missions abroad , shall , on request , issue certificates on the basis of documentation collected by ORG about the applicant ’s convictions appearing in the criminal record or stating that the criminal record does not contain any such convictions ( criminal record certificates ) .

“ After DATE has elapsed following the extinction of a conviction , any data concerning the conviction and the convicted person shall be deleted from the criminal record . ”

Under LAW of ORG DATE ( ORG ) the period during which a simple conviction remains on the criminal record before its deletion is calculated by adding together all the recorded convictions . This period may last from DATE for a conviction of minor importance , and if no further convictions are entered during this period , DATE for a conviction for which a sentence of DATE imprisonment was imposed . Thus the duration of the criminal record depends on the sentence and may be prolonged by subsequent convictions . A sentence of life imprisonment is never deleted from the record .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

Of the CARDINAL domestic proceedings instituted by the applicant DATE and referred to in his application , the applicant has submitted decisions by ORG with respect to the following CARDINAL proceedings .

By a judgment of DATE ORG dismissed the applicant ’s claim against his former partner regarding repayment of rent and compensation for expenses incurred in connection with the allegedly unlawful cancellation of the applicant ’s sublease agreement and his eviction from the jointly occupied apartment located in GPE .

On DATE the applicant lodged an appeal with ORG .

On the occasion of hearings that took place on DATE and DATE ORG heard the parties and a witness .

By a judgment of DATE ORG granted the applicant ’s claim in part , dismissed the remainder and amended the ORG judgment of DATE accordingly .

On DATE the applicant lodged a constitutional complaint against the judgment of ORG with ORG and simultaneously requested to be reinstated in the statutory DATE time - limit for lodging such a complaint .

On DATE ORG by its presidential council ( NORP ) informed the applicant that there existed doubts as to the admissibility of his complaint since he had neither sufficiently substantiated his request to be reinstated nor the alleged violation of his rights guaranteed under LAW .

By a letter dated DATE the applicant gave further reasons for his complaint and his request for reinstatement .

On DATE ORG , notwithstanding the applicant ’s request to be reinstated , declined to consider his constitutional complaint ( file No . CARDINAL BvR CARDINAL/CARDINAL ) .

By a judgment of DATE the GPE ORG ordered the applicant to pay outstanding rent for an apartment located in GPE , to vacate the apartment and to bear the costs of the court proceedings .

On the applicant ’s appeal ORG by a judgment dated DATE set aside the judgment of ORG on the ground that the applicant ’s right to be heard had been infringed and remitted the case to this court for fresh consideration .

On DATE and CARDINAL DATE the GPE ORG heard the parties and ordered the taking of evidence .

On DATE the applicant objected to the participation of the acting judge in the proceedings on the ground of possible bias since the same judge had already conducted the proceedings resulting in the judgment of DATE .

By written submissions of DATE the applicant lodged a counterclaim against the owner of the apartment regarding , inter alia , repayment of rent .

ORG by a partial judgment ( ORG ) dated DATE again ordered the applicant to vacate the apartment .

The applicant appealed on CARDINAL DATE and lodged a further application for bias against the acting judge .

On DATE ORG set aside the ORG decision of CARDINAL DATE and ordered the owner of the apartment , in his capacity as underlying plaintiff , to bear the costs of the proceedings . By a decision of DATE ORG clarified that the plaintiff had to bear the costs of the appellate proceedings .

The applicant appealed against the decision of ORG on the ground that the latter had ordered the plaintiff only to bear the costs of the appellate proceedings but not of the proceedings at first instance . On DATE ORG dismissed his complaint . It found that since the partial judgment of ORG CARDINAL DATE had not contained a decision on the costs of the proceedings at first instance ORG could only decide on the costs of the appellate proceedings . The decision on the costs of the first - instance proceedings was reserved for the final decision ( PERSON ) of ORG in the first - instance proceedings .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . ORG held that the complaint was inadmissible on the ground that the impugned decision of ORG had not been rendered to the detriment of the applicant and that according to the information submitted there was nothing to establish that he would have to bear the costs of the proceedings at first instance .

On DATE the applicant brought a claim against a construction firm before the GPE ORG regarding compensation for water damages caused in his cellar on the occasion of renovation works in a neighbouring building .

ORG heard the parties on DATE and by a decision dated DATE ordered the taking of evidence and summoned witnesses for a hearing scheduled for DATE . On CARDINAL DATE ORG rejected the applicant ’s request to adjourn the hearing as unsubstantiated .

The applicant did not attend the hearing on DATE but was represented by counsel . The ORG heard witnesses but rejected the applicant ’s request to hear CARDINAL further witnesses as belated in accordance with the related provisions of the German Code of Civil Procedure ( Zivilprozessordnung ) .

By a judgment of DATE the GPE ORG dismissed the applicant ’s claim .

On DATE the applicant lodged an appeal with ORG alleging that his right to be heard had been infringed on the ground that he could not attend the hearing on DATE . He also complained that his request to hear further witnesses had been dismissed by the court . He finally asked to be granted legal aid for the appellate proceedings .

By a letter dated DATE ORG informed the applicant that his appeal was not signed by a lawyer as statutorily required and furthermore that it appeared to be ill - founded . On DATE the applicant submitted written observations in reply .

On DATE ORG rejected the applicant ’s request for legal aid since his appeal was devoid of prospects of success . It held that ORG had correctly assessed the evidence obtained and rightly rejected the applicant ’s request to hear further witnesses as belated .

By a decision of DATE , which was served on the applicant on DATE , ORG dismissed the applicant ’s appeal against the judgment of ORG as inadmissible , as he was not represented by counsel as statutorily required . The applicant lodged a complaint against this decision with ORG on DATE .

On DATE the applicant lodged a constitutional complaint which he further motivated by written submissions of CARDINAL DATE . By letter dated CARDINAL DATE ORG by its presidential council ( NORP ) informed the applicant that there existed doubts as to the admissibility of his complaint since he had not sufficiently substantiated a violation of his rights guaranteed under LAW . The applicant nevertheless pursued his constitutional complaint .

On DATE ORG dismissed the applicant ’s complaint of DATE against its decision of DATE on the ground that only ORG ( ORG ) would have been competent to deal with it .

On DATE ORG declined to consider the applicant ’s constitutional complaint of CARDINAL DATE and imposed a fee of MONEY ( ORG ) upon the applicant for abuse of process ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It referred to its established case - law that the introduction of a constitutional complaint constituted abuse of process if one could reasonably assume that the complaint was devoid of any prospects of success . In the instant case the applicant , after receiving the letter of the presidential council of ORG dated DATE , could not have had any doubts that his constitutional complaint was not sufficiently substantiated and thus clearly inadmissible . The applicant had merely used ORG as an additional appellate instance without specifying any issues that were relevant under constitutional law in the manner required by the applicable procedural rules . ORG pointed out that it could not agree to be hindered in the performance of its tasks by unsubstantiated complaints .

By a letter to ORG dated DATE the applicant contested that his complaint had been abusive and requested that the fee be revoked .

Pursuant to LAW ( Bundesverfassungsgerichtsgesetz ) the proceedings before ORG shall be free of charge . According to LAW , ORG may charge a fee of up to ORG CARDINAL,CARDINAL if the lodging of a constitutional complaint constitutes an abuse of process .

In its established case - law ORG has consistently held that the lodging of an obviously inadmissible or unfounded complaint is considered to be abusive if one can reasonably expect the complaint to be devoid of any prospect of success . ORG held on several occasions that this was the case if an applicant merely used ORG as an additional appellate instance without raising issues that were relevant under constitutional law in compliance with the procedural requirements . The ORG also has repeatedly held in this context that it could not agree to be hindered in the exercise of its functions by complaints that clearly did not have any prospect of success , thereby delaying the protection of the basic rights of other citizens .

In a decision of DATE ( file No . CARDINAL BvR CARDINAL/CARDINAL ) ORG held that fees charged in accordance with LAW had to be legally qualified as court fees notwithstanding that they also had a punitive character . While LAW established the rule that proceedings before ORG were free of charge , its paragraph CARDINAL established the conditions under which an exception to this rule could apply . A fee imposed on this basis could be considered an appropriate consideration for costs triggered by an abusive resort to ORG .


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

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

DATE the applicant worked as a bus driver in the service of ORG .

In DATE criminal proceedings were brought against the applicant , his wife and his daughter on charges of theft . The GPE chief public prosecutor alleged that the applicant had stolen bus tickets and had sold them with the help of his wife and his daughter to a kiosk owner , who sold the tickets in his kiosk and who was charged , along with the applicant and his family , with buying the stolen tickets . Following the institution of the criminal proceedings , ORG terminated the applicant 's contract .

On DATE ORG ( sulh ceza mahkemesi ) rendered its judgment . It held that there was no evidence against the applicant , his wife and his daughter other than the statements of the kiosk owner . It further noted that no evidence concerning the impugned offence had been found in the applicant 's house and that this point had been indicated in the search and seizure protocol ( arama tutanağı ) drafted by the police . The court considered that there was not sufficient and certain evidence against the applicant , his wife and his daughter and that , therefore , they should benefit from the principle of in dubio pro reo . In conclusion , ORG acquitted the applicant , his wife and his daughter and convicted the kiosk owner .

On an unspecified date , ORG upheld the judgment of CARDINAL DATE .

On DATE , subsequent to his acquittal , the applicant brought a case before ORG ( iş mahkemesi ) claiming damages from GPE ( hereinafter : the defendant ) due to the termination of his contract .

On DATE ORG awarded notice and severance compensation ( ihbar ve kıdem tazminatı ) to the applicant . The court dismissed the applicant 's compensation claims for malicious and nonpecuniary damage . The applicant and the defendant appealed .

On DATE ORG of ORG quashed ORG judgment . ORG stated the following in its decision :

“ The litigant ( the applicant ) requested compensation from the defendant employer on the grounds that it had unjustly terminated his contract . ORG partially accepted this request . According to the information and the documents contained in the file , the litigant , while working as a driver of the bus belonging to ORG ( ORG ) , collected used bus tickets by not operating the ticket shredder ; took the tickets home and sold them with the help of his daughter and wife . His contract was terminated on account of the offence of theft , pursuant to LAW ( d ) of LAW ( Law no . DATE ) and LAW additional penal indicator of the collective labour contract .

Following this incident , the litigant was tried by ORG which acquitted him on the ground that there was insufficient evidence to convict him . This judgment was upheld by ORG .

Having regard to the criminal investigation file and the case file under examination , it was understood that the applicant had sold the tickets by not operating the ticket shredder on his bus . Although the criminal court acquitted the accused , under LAW of the Code on Obligations , its judgment acquitting him can not bind civil courts . In the light of these considerations and having regard to the fact that the defendant administration terminated the litigant 's contract in accordance with LAW ( Law no . DATE ) , ORG judgment awarding notice and severance pay to the litigant should be quashed ... ”

On DATE ORG confirmed its judgment of DATE awarding compensation to the applicant . With reference to the judgments of ORG and ORG which acquitted the applicant of the charges , the court found it established that there was no evidence or information which indicated the applicant 's involvement in the alleged offence . In this respect , it considered that the defendant had unjustly terminated the applicant 's contract , contrary to the provisions of the labour law . The defendant appealed .

On DATE the Grand Chamber of ORG of ORG quashed ORG judgment . It ruled that ORG should comply with the decision given by ORG of ORG .

On DATE ORG , complying with ORG decision , dismissed the applicant 's request for damages .

On DATE ORG of ORG upheld this judgment .

LAW provides :

“ The ( civil ) court is not bound by the provisions of the criminal laws concerning criminal responsibility or by an acquittal by a criminal court in deciding questions of fault or capacity to act . ”

LAW ( d ) of LAW , in force at the material time , provided :

“ Under the following circumstances , the employer may denounce labour contracts of both indefinite and definite durations , before the end of their duration or the term of notice :

II . Conduct against ethical principles , good faith and etc .

d ) if the employee commits a dishonest or disloyal act such as breach of trust , theft or disclosure of trade secrets ,


Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the town of FAC , GPE .

The applicant and her husband worked for a ORG company , open joint stock company ORG , ( “ the company ” ) . By CARDINAL separate judgments of CARDINAL DATE , ORG awarded the applicant and her husband CARDINAL and CARDINAL NORP hryvnas ( ORG ) respectively . On DATE the applicant ’s husband died . The applicant inherited the award against the company made by the court in his favour .

In a letter of DATE the applicant reported that both judgments had been enforced in full in DATE .

The relevant domestic law regarding enforcement of court decisions is summarised in the judgment of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in LOC .

The applicant and his brother , PERSON , leased a substantial area of farming land . After the applicant had been hospitalised , he asked his brother to gather the crops . The applicant submits that his brother sold the crops and the agricultural machines which they co - owned and took all the profits .

On DATE the applicant brought a claim against his brother in ORG , seeking MONEY ( ORG ) in compensation . He also sought an exemption from court fees ( ORG MONEY ) .

On DATE ORG exempted the applicant from court fees . On DATE it granted legal aid to the applicant .

On DATE the applicant modified his claim by joining his brother 's wife as a defendant . He also requested the court to issue an interim order to secure his claims by way of , inter alia , registering a charge over the defendants ' property and attaching their bank accounts . On DATE the applicant submitted some additional information requested by the court in relation to his request for an interim measure . On DATE ORG granted the interim order in part .

On DATE the applicant increased his claim to PLN CARDINAL .

On DATE ORG revoked the applicant 's exemption from court fees and the decision to grant him legal aid . ORG considered that the information in the file indicated that the applicant was not an indigent person unable to pay court fees and other costs related to the litigation . It noted that the applicant owned QUANTITY houses and that in DATE he had had MONEY deposited in the bank . Thus , ORG found that the applicant had not submitted accurate information about his financial status . Consequently , it imposed a fine on the applicant in the amount of ORG CARDINAL .

On DATE the applicant appealed against that decision . He contested the court 's findings . The applicant submitted that a charge had been registered over his property in PERSON , while the other property , located in LOC , was a small house where he lived with his extended family . He further stated that all his savings had been invested in the farming of the leased land and that he had been deprived of any profits by his brother . He further submitted that his only income was a modest invalidity benefit .

On DATE ORG dismissed the applicant 's appeal . It relied on the fact that the applicant had failed to disclose all the relevant information about his financial status in his original application for an exemption from court fees .

On DATE ORG ordered the applicant to pay ORG MONEY in court fees . On DATE the applicant applied for leave to pay the relevant fees in instalments . He claimed that he had been receiving invalidity benefit and could not pay the amount in question all at once . He also submitted that he could not take up any offers of work because of his poor health .

On DATE ORG granted the applicant leave to pay the court fees in CARDINAL DATE instalments . Until DATE the applicant paid CARDINAL instalments .

On DATE the applicant increased his claim to ORG CARDINAL , following the submission of a number of documents by the defendant which indicated the amount of profit made from the jointly leased land .

On DATE ORG ordered the applicant to pay ORG CARDINAL in court fees for the modification of his claim .

On DATE the applicant requested the court to exempt him from those court fees and to cancel the CARDINAL remaining DATE instalments he was supposed to pay . The applicant submitted that his only income was an invalidity benefit in the DATE amount of ORG MONEY and that he was unfit for work . He stated that he had been hospitalised from DATE until DATE and that he had subsequently broken his spine and had again been hospitalised . He further submitted that he had transferred his property in LOC by way of a donation to his children . The other property , located in LOC , was a wooden house in need of renovation and lacking basic amenities . The applicant also supported CARDINAL of his children DATE . His wife worked at a school and her DATE salary was ORG . He did not have any savings and owned a fouryear - old NORP car .

On DATE ORG refused the applicant 's request for exemption from the court fees . It held , referring to the case - law of ORG from DATE and DATE , that the donation of the applicant 's property to his children should be treated as a fraudulent disposal of the property with a view to fulfilling the eligibility requirements for exemption from court fees . Additionally , ORG considered that the applicant had adult children who had an obligation to support him financially if necessary . That obligation extended , in the court 's view , to helping the applicant in funding the court proceedings .

Furthermore , ORG considered that the applicant could have sold some of his property or mortgaged it . That way , in the court 's view , the applicant would have been able to secure sufficient means for funding the litigation . ORG underlined that the applicant 's case was not one in which it had been necessary to file a claim immediately . The court observed that a party intending to institute court proceedings had to take into account the costs involved and secure them in advance from the income received over a longer period of time . Only in exceptional cases , when the immediate institution of proceedings was necessary ( on account of the limitation of actions ) , could a party rely exclusively on his or her current income .

ORG considered that the applicant , when increasing his claim to ORG CARDINAL,CARDINAL , had to take into account the obligation to pay the relevant fees , even more so given that it had not been necessary to modify his claim at that particular time .

The applicant appealed against ORG decision . He submitted that he had not disposed of any of his property in order to obtain an exemption from court fees since he still owned the property in PERSON . However , that latter property did not generate any profit . The applicant disagreed with ORG regarding the motives behind his donation . He stated that he had simply wanted to provide for his children 's future . The applicant emphasised that he had no possibility of securing the required amount of court fees and that the impugned decision had been based on speculation about his financial status . Replying to ORG argument about the possibility of securing the necessary funds over a period of time , the applicant submitted that given his current level of income and his incapacity for work , he would never be able to secure the necessary funds .

On DATE ORG upheld the decision of ORG . It further concurred with ORG finding that disposing of the applicant 's property in LOC by way of donation could not justify another exemption from court fees .

It appears that on a later unknown date the applicant paid the remaining CARDINAL instalments and the court proceeded with the examination of the merits of the case .

Following a request of DATE , ORG exempted the defendants S.K and PERSON from the court fees at a session held in camera on DATE .

On DATE the applicant once again increased his claim to ORG MONEY ( instead of the initial ORG CARDINAL,CARDINAL ) . The court fee was set at ORG CARDINAL and the applicant asked for an exemption . The request was dismissed by ORG on DATE . The court held that while it was true that the applicant and his wife supported themselves from small invalidity pensions , the applicant owned a house in LOC . The court stressed that since the applicant had donated his property to his children , they should have helped him with the court fees . Lastly , the court held that the applicant did not justify the increased claim by any new facts or evidence but merely asked for a higher sum . On CARDINAL DATE ORG upheld this decision repeating the same reasons .

At a hearing held on DATE the applicant again decided to modify his claim and increased it , this time to ORG MONEY ( instead of the ORG CARDINAL,CARDINAL ) . On DATE ORG dismissed his request to exempt him from court fees . The court referred to the reasons previously given .

On DATE ORG gave judgment and dismissed the applicant 's claim . The judgment became final on DATE .

NORP The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL-VI ; see also PERSON and GPE v. GPE , no . GPE , § § CARDINAL ) .


CASE OF CUSTERS, DEVEAUX AND TURK v. DENMARK

In DATE an NORP air base was established on the FAC peninsula in LOC of north - west GPE . With the establishment of an anti - aircraft artillery unit in DATE the air base area was expanded . It was reduced in size in DATE and in DATE .

The applicants were members of ORG . In DATE they took part in an action around FAC designed to draw international attention to the use of a radar ( FAC ) for the NORP missile defence programme and to collect information on the environmental impact of the presence of the air base on the FAC peninsula .

Before the action in question , on DATE , CARDINAL ORG members had had a meeting with the Chief of Police of GPE , during which they had been informed of the legislation relating to FAC and the consequences of a possible refusal by the relevant authorities of permission to visit the air base area .

On DATE ORG requested permission to visit “ the FAC peninsula around FAC ” . By fax of DATE ORG informed ORG that FAC , including the FAC area , was a “ defence area ” , and that civilians could gain access to this area only with permission from ORG and the NORP authorities . By fax of DATE ORG refused ORG permission to access the FAC peninsula and FAC .

On DATE the applicants and other ORG activists arrived off the coast of the FAC peninsula by a vessel called the M / V Arctic Sunrise . Some of the activists went ashore at the beach of ORG and put up a banner . They were ordered to leave the area immediately by the police . The applicants , using a rubber dinghy , landed at ORG , which is south of FAC . Thereafter they walked QUANTITY northwards overland to Shelter CARDINAL , to the east of the base , where they were arrested on DATE at TIME and charged with trespassing .

Shelter CARDINAL is one of several emergency shelters built along a road QUANTITY in length running from the built - up part of the base area to FAC . Emergency shelters have been built at intervals of QUANTITY along the road to ensure that base personnel are able to seek shelter in the event of sudden bad weather on their way out to the radar facility . Shelter CARDINAL is QUANTITY from the built - up part of FAC and QUANTITY from FAC .

The exact size of the defence area was disputed between the parties . The ORG maintained that FAC comprised QUANTITY at the relevant time . After the events in question , on DATE , the area was reduced in size and the FAC peninsula became a non - prohibited area to which all civilians could gain access without permission . The applicants submitted that the exact size of the defence area was confidential and thus unknown to the public .

An official map called “ Sheet no . DATE , ORG , scale CARDINAL:CARDINAL:CARDINAL ” was produced by ORG . The map bore the following indications : “ Place names , centres of population and other details DATE ” , “ Corrections DATE ” and “ Printed by the NORP Geodetical Survey DATE ” . The airfield was shown , but there was no indication of an air base . A similar map was reproduced photographically by GPE .

Based on the map by ORG , another map was produced and published as an annex to a report published in DATE entitled “ Report on the relocation of ORG in DATE ” . This map , ( “ the annex map ” ) , had a bold line drawn on it which , according to ORG , demarcated FAC , comprising a large area exceeding the area of the FAC peninsula . The applicants disputed this assertion , pointing out that the origin of and reason for the line were unknown .

In DATE FAC was not fenced off or marked with signs , save for some “ No Entry ” signs by the harbour and on the road leading from the airfield to the built - up part of the base .

At the time of their arrest the applicants were in possession of a Global Positioning System ( GPS device ) and the official Saga map of the area , on which they had marked CARDINAL different positions . In a notebook found on CARDINAL of the applicants the CARDINAL positions were listed with the corresponding degrees of latitude and longitude and the following descriptions : “ initial landing ” “ radar ( E ) ” , “ radar ( W ) ” and “ airstrip ” . The applicants were also carrying cameras and a camcorder . The police seized a film containing photos taken by the applicants during their walk . Some of the photos showed the applicants holding banners with the wording “ Stop Star Wars ” and “ No to new arms race ” , with some of the military facilities of FAC pictured in the background .

Material downloaded from the ORG website at the relevant time contained various statements , including the following : “ But still inside , DATE into FAC are CARDINAL other activists , who have been walking and camping in LOC conditions since DATE , and so far remain undetected ” and an extract from a so - called action line recording by the activist saying “ We are now on DATE of our walk ... it 's been DATE , we 've been blasted by the wind , gotten cold every time we stopped , forded deep icy cold rivers , walked across ice , but also had some real beauty ... ” .

The applicants were released on DATE at TIME , after indictments of the same date had been served on them . The charges against them were detailed as follows :

“ Violation of Article CARDINAL of the Penal Code and Article CARDINAL § CARDINAL , taken together with [ Article CARDINAL ] § CARDINAL and section CARDINAL ) of Executive Order no . CARDINAL of CARDINAL DATE on travel to and within GPE ( ORG om rejser til og i LOC ) ( “ FAC ) in that , without permission having been granted to the environmental organisation ORG , [ the applicants ] , using a rubber dinghy from the vessel M / V Artic Sunrise , went ashore on DATE in the area around ( ved ) FAC , where they took pictures with cameras and video cameras , and were found by the police at FAC on DATE at TIME ”

By judgment of DATE given in absentia , the applicants were convicted as charged by ORG of GPE ( Grønlands Landsret ) . They were each sentenced to a fine of CARDINAL Danish kroner ( ORG ) ( MONEY ( ORG ) ) . In handing down the sentence , the court took into account the fact that , as ORG activists , the applicants had participated in a carefully planned action . In addition , the notebook , the Saga map of the air base area , a video film and fiftyone photos had been confiscated . The relevant parts of the ORG judgment stated :

“ On the evidence , the court finds that [ the applicants ] carried out the acts described in the indictment . As [ the applicants ] did not obtain permission to enter the base area , as required by section CARDINAL ) of Executive Order no . CARDINAL of CARDINAL DATE on travel to and within GPE , they have violated section CARDINAL of the Order . As made clear by the explanatory notes to LAW , ORG has as its legal basis “ established practice ” within the meaning of LAW .

In view of the location of the base and considering that the applicants , aiming for the base , had to walk QUANTITY across rough terrain and that access to the base requires special permission under ORG , the court finds that the base is a “ place not freely accessible ” for the purposes of Article CARDINAL ( i ) of LAW . Accordingly , and as their presence was unauthorised , as stated above , [ the applicants ] are found guilty of having violated Article CARDINAL ( i ) of LAW . ”

The applicants appealed to ORG of Eastern Denmark ( PERSON ) before which they argued , as they had done before the firstinstance court , that the act in question did not constitute a criminal offence .

According to them , Executive Order no . CARDINAL of CARDINAL DATE , relied on by the prosecution , did not have legal authority . Concerning Article CARDINALa ( i ) of LAW , they submitted that it could not be established whether or not they had trespassed , as the limits of the military area had never been officially defined . The applicants further maintained that lay judges should have participated in the proceedings before the firstinstance court . However , the latter complaint was later withdrawn .

NORP Before ORG of LOC the prosecution submitted the annex map in support of the charge that the applicants had entered a “ place not freely accessible ” within the meaning of LAW .

By judgment of DATE the High Court of Eastern GPE confirmed the first - instance court 's judgment stating , inter alia :

“ On the evidence produced before ORG , [ the applicants ] are found guilty of a violation of section CARDINAL ) of Executive Order no . CARDINAL of CARDINAL DATE on the grounds stated in the judgment . As [ the applicants ] thus gained unauthorised access to a place not freely accessible , they have also violated Article CARDINAL ( i ) of LAW . In view of the nature of the area , this violation is not insignificant . ”

The applicants ' request of DATE for leave to appeal against the judgment to ORG was refused by ORG ( Procesbevillingsnævnet ) on DATE .

Executive Order no . CARDINAL of CARDINAL DATE on travel to and within GPE ( Rejsebekendtgørelsen ) ( “ the Travel Order ” ) , as amended by Executive Order no . CARDINAL of CARDINAL DATE , was issued by the then ORG . It was promulgated in ORG ( p. CARDINAL ) .

Pursuant to section CARDINAL of ORG , any person may enter or leave GPE without limitation , subject to the restrictions laid down in ORG and in the Aliens ' LAW ( Lov om udlændinges adgang til landet m.v . ) and the provisions enacted under the latter .

Section CARDINAL of ORG provides detailed rules on entry to and residence in the defence areas in GPE established in accordance with the agreement on the defence of GPE signed on CARDINAL DATE by ORG and GPE under LOC . Section CARDINAL ) of the Order reads as follows :

“ ... In order to obtain access to the defence areas , persons other than those referred to in paragraphs ( a ) , ( b ) , and ( c ) [ certain military personnel , etc . ] must obtain permission for each trip from ORG for GPE or DATE subject to the latter 's authorisation – from other ORG authorities , in addition to permission from the relevant military authority if required . ”

Breaches of ORG are punishable by a fine under section CARDINAL of the Order taken in conjunction with LAW of LAW for GPE no . CARDINAL of CARDINAL DATE ( see below ) ) .

ORG entered into force on DATE in accordance with section CARDINAL ) .

At the same time , Executive Order no . CARDINAL of DATE issued by ORG on travel to and within GPE ( the DATE Travel Order ) , as amended by ORG of CARDINAL DATE and CARDINAL DATE on permission to travel through the defence areas , was repealed under section CARDINAL(CARDINAL ) of ORG .

Apart from the applicants ' criminal case , the punitive sanctions provided for by Executive Order no . CARDINAL of CARDINAL DATE have never been applied . According to documents from ORG ( PERSON ) ( Ministry of GPE file no CARDINAL - CARDINAL - CARDINAL containing correspondence from DATE between the NORP military liaison officer at FAC and ORG ) , a woman was found to have travelled to FAC on DATE on the false pretext of visiting a married couple at FAC . It turned out that she was not visiting any local inhabitants , but a male worker at FAC base , who was forced to resign his job at the base as a result of the incident . Although it appears that the woman breached ORG by giving false information in order to gain access to the base , no charges were brought against her .

ORG Executive Order no . CARDINAL of DATE on travel to and within GPE entered into force on DATE . Section CARDINAL stipulated that the rules laid down in the Order applied to NORP nationals ' entry to and residence in GPE .

The Executive Order introduced for the first time a provision on access to defence areas in GPE . Hence , under section CARDINAL(CARDINAL ) of the Order , military and civilian personnel whose presence in the defence areas or on other sites in GPE was necessary in connection with activities pursuant to the DATE agreement between ORG and GPE on the defence of GPE , and members of their families , were allowed to enter and leave the defence areas or other such sites in GPE .

According to section CARDINAL(CARDINAL ) of ORG , persons other than those referred to in subsection ( CARDINAL ) could gain access to the defence areas in GPE established pursuant to the agreements referred to in subsection ( CARDINAL ) , and which the Government of GPE were responsible for operating and maintaining , only if they had obtained prior special permission from ORG or from the Governor of GPE under the authority of ORG , in addition to permission from the relevant military authority if required .

Breaches of Executive Order no . CARDINAL of DATE were punishable by a fine under section CARDINAL .

Executive Order no . CARDINAL of DATE on travel to and within GPE entered into force on DATE in accordance with section CARDINAL(CARDINAL ) . At the same time , under section CARDINAL(CARDINAL ) of the LAW , ORG issued by ORG on DATE on travel to and within GPE was repealed .

Section CARDINAL of the Executive Order of CARDINAL DATE on travel to and within GPE , issued by ORG , specified that unless otherwise provided by special treaty between GPE and other countries or by other special provision , travels to and within GPE were subject to special permission from ORG .

Under section CARDINAL(CARDINAL ) of the Order , breaches of its provisions were punishable by a fine .

The DATE LAW for GPE and

criminal - law practice before its entry into force

The Danish Penal Code does not apply in GPE . Before DATE , the criminal law of GPE consisted solely of the practice developed by the district courts of GPE on the basis of fragmentary provisions in old legislation . GPE had colonial status and was a predominantly closed country before the revision of LAW in DATE . The ORG submitted that , until the DATE Travel Order entered into force , neither NORP nor foreigners had had access to the country without special permission , under provisions dating back as far as DATE . The applicants disputed this , arguing that GPE had been opened up as a result of the PERSON reforms laws of DATE .

The DATE revision of LAW extended its scope of application to all parts of the NORP realm , including GPE .

With LAW for GPE no . CARDINAL of CARDINAL DATE ) , most elements of the practice developed by the districts courts of GPE were given statutory form . LAW was adopted on DATE and became law by royal assent on DATE . It entered into force on DATE .

Under LAW for GPE , the sanctions authorised by the Code may be imposed only for offences referred to in the LAW or equivalent offences ( the principle of legality ) .

Article CARDINAL reads as follows :

“ Any individual who without good cause

( i ) obtains access to another person 's house or any other place not freely accessible ( skaffer sig adgang til fremmed hus eller andet ikke frit tilgængeligt sted ) , or

( ii ) fails to leave another person 's house having been requested to do so

may be convicted of trespassing . ”

Article CARDINAL contained the following provision :

The rules on fines , forfeiture and compensation and other lesser sanctions laid down by provisions still in force shall remain in force subject to the amendments which follow from Parts CARDINAL to CARDINAL and DATE to CARDINAL of this Code . Negligent breaches of such provisions shall give rise to liability to the same extent as hitherto .

Provisions that are issued in accordance with established practice ( bestemmelser , som udstedes i medfør af hidtil gældende praksis ) , including bye - laws issued by ORG ) and local authorities , may lay down rules on the imposition of cautions , fines , ouster and exclusion orders , forfeiture and confiscation , and disqualification from carrying on a trade or operating vessels or vehicles and from other similar rights based on official authorisation .

The explanatory notes to Article CARDINAL stated as follows :

“ This provision , which has been prepared under the authority of ORG , preserves a number of administrative rules on fines , forfeiture and compensation and other lesser sanctions . These represent various rules with a public - law content . The provision also confers legal authority to issue such rules in accordance with established practice . Although it has been found necessary in LAW to lay down the principle , which is new for GPE , that the imposition of criminal - law sanctions must be authorised by statute , it has not been considered possible to fully implement the principle during the period of transition in which GPE currently finds itself in terms of its economy , society and culture . ”

Act no . CARDINAL of CARDINAL DATE , which entered into force on DATE , amended the provisions of LAW , inserting a new LAW .

Act no . CARDINAL of CARDINAL DATE revised the provisions of LAW for GPE concerning sanctions . A new LAW was inserted , which read as follows :

“ Regulations that are issued in accordance with established practice ( i forskrifter , der udstedes i overensstemmelse med hidtil gældende praksis ) , including bye - laws issued by ORG and local authorities , may stipulate that violations of such regulations are punishable by fines , forfeiture and confiscation and disqualifications . Such sanctions shall then be applied in accordance with the rules in DATE , CARDINAL to DATE and CARDINAL of this Code . ”

The LAW entered into force on DATE .

By Act no . CARDINAL of CARDINAL DATE , which entered into force on DATE , LAW for GPE was once more amended . A new LAW was inserted , which read as follows :

“ CARDINAL . NORP The Minister of Justice may issue regulations on access to certain parts of GPE , and the conditions [ for such access ] , including the inland ice , FAC in LOC and LOC and access to and from the defence areas established pursuant to the agreement of DATE between the ORG of GPE and GPE on the defence of GPE .

With regard to intentional or negligent breaches of the provisions set out in regulations adopted under subsection CARDINAL , rules may be laid down imposing measures as set out in LAW [ for instance , fines and confiscation ] . ”

The preparatory notes to the LAW ( LCARDINAL , introduced on DATE ) stated , among other things ( section CARDINAL ) :

“ The Executive Order on travel to and within GPE [ Order no . CARDINAL of CARDINAL DATE ] , issued by the then ORG , has as its legal basis “ established practice ” within the meaning of LAW of LAW . The required amendments [ to LAW , for example , the insertion of LAW ] were not undertaken earlier by means of administrative measures , since the new rules in question could hardly be issued under the authority of the said provision [ LAW ] . ”

It appears from the explanatory notes to the PERSON that the purpose of inserting the enabling provision in LAW was to provide a legal basis for updating rules in that field and , in that connection , to expand the authorities ' right to regulate expedition activities in GPE for the particular purpose of limiting the number of cases where rescue operations had to be launched and of facilitating the implementation of rescue operations .

At the time of the events in the present case the Minister of ORG had not issued any regulations under LAW .

Since the entry into force on DATE of the Penal Code for GPE ( Act no . CARDINAL of CARDINAL DATE ) , there have been no examples of executive orders issued “ in accordance with established practice ” taking LAW ( later ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL respectively ) as their legal basis , with the exception of Executive Order no . CARDINAL of CARDINAL DATE on travel to and within GPE . Various local bye - laws ( Politivedtægter ) , however , have been issued on the basis of this legal authority and by DATE charges had been brought in CARDINAL cases concerning violations of these bye - laws .