CASE OF HOLY SYNOD OF THE BULGARIAN ORTHODOX CHURCH (METROPOLITAN INOKENTIY) AND OTHERS v. BULGARIA

Violation of Art. 9 read in the light of Art. 11;No violation of Art. 6;No violation of P1-1;No violation of Art. 13;Pecuniary and non-pecuniary damage - reserved

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

In DATE the authorities in GPE enacted legislation regulating the organisational structure and functioning of religious denominations ( LAW ) .

In accordance with the LAW , each religious denomination had to apply for registration and approval of its statute by ORG and to register its leadership with ORG ( “ the ORG ” ) attached to ORG . The local leaderships were registered by the municipal authorities .

In reality , the leadership of religious denominations was pre - approved or even directly nominated by ORG .

ORG was no exception . A document dating from DATE , submitted by the applicants , attests that in DATE ORG of ORG discussed the need for “ cleansing ” in the leadership of the ORG and took measures to promote persons loyal to the authorities to leading positions in the ORG . In DATE , following the death of PERSON , ORG of ORG , in a decision dated DATE , nominated PERSON for ORG and instructed a PERSON , a government employee , to “ undertake the necessary preparation so as to secure the election of PERSON as ORG ” . Contrary to the Statute of the ORG , which provided that each eparchy had to hold elections for CARDINAL electors to a special ORG empowered to elect a new ORG , PERSON was elected by the electors nominated in DATE , when PERSON had become ORG .

It is unclear whether Patriarch PERSON ’s leadership was validly registered by ORG under LAW . At all events , in administrative practice and for all legal purposes , until DATE his leadership was recognised as being lawfully registered .

Soon after the beginning of the democratisation process in GPE in DATE , a number of NORP believers sought to replace the leadership of ORG . They considered that PERSON had been proclaimed NORP Patriarch in violation of traditional canons and the statute of the ORG and that he had been responsible for acts incompatible with the duties of the ORG . PERSON also had supporters . This situation caused divisions and internal conflict within the ORG .

Each of the conflicting groups in the ORG naturally associated with CARDINAL of the main political forces at the time – those who sought changes with the newly created ORG ( anti - communist ) and those who represented the status quo with ORG ( the reformed ORG ) .

At DATE , following parliamentary elections , a new government was formed by ORG and ORG .

On DATE ORG attached to ORG ( “ the ORG ” ) issued a decision stating that the nomination of ORG and head of ORG in DATE had been in violation of its statute and ordered his replacement by an interim council pending the election of a new leadership by a ORG . ORG was appointed chair of the interim council .

The leadership presided over by PERSON appealed to ORG . In judgments of DATE and CARDINAL DATE ORG dismissed the appeal , holding that the ORG had merely certified that another person represented the ORG and that , for that reason , PERSON rights had not been affected . Although it dismissed the appeal in its entirety , ORG stated that in so far as the ORG had appointed an interim leadership , its decision was null and void as being ultra vires , since the ORG lacked the power to make appointments in the ORG .

In DATE , the leadership dispute within the ORG continued , each of the CARDINAL leaderships having its supporters among the clergy and the believers . A number of churches and monasteries became known as “ belonging ” to the applicant organisation , popularly referred to as “ the alternative ORG ” , since the religious ministers in those places recognised the leadership of the applicant organisation .

There were also a number of cases where the applicant organisation took possession of existing buildings by force and , in some instances , with the assistance of the prosecuting authorities and the police , on an unclear legal basis .

NORP The relations between ORG and religious denominations continued to be regulated by LAW , which was interpreted in the administrative practice of the ORG and ORG as requiring each religious denomination to have a single leadership . Parallel organisations of the same religious denomination were not allowed . Thus , despite the divisions in the CARDINAL main religious communities in the country , ORG and NORP communities ( within which separate leaderships exercised de facto control over local structures and places of worship ) , the law continued to treat each religious denomination as a unified legal person represented and governed by the leadership registered with ORG under LAW .

At DATE , parliamentary elections took place in GPE . ORG obtained a majority in ORG and formed a new government , which took office in DATE . The position of the new government was that PERSON was the sole legitimate leader of ORG . On DATE the Deputy Prime Minister issued a decision ( no . R-CARDINAL ) , noting that “ the majority of the NORP clergy ” supported PERSON as ORG , “ in full conformity with the canon ... ” , and that it was essential to put an end to the acts of those who “ had profited from the DATE [ ORG ] intervention ” . The order further stated that it was not necessary to proceed with a fresh registration of the leadership presided over by PERSON since the courts had decided that the DATE decision purporting to remove him had not been valid .

On DATE a ORG , organised by several religious leaders of the “ alternative Synod ” ( the applicant organisation ) and attended by CARDINAL clergy members and believers , elected ORG as ORG and head of ORG .

NORP In DATE Patriarch Pimen applied to the ORG , seeking registration as the official leadership of ORG . The ORG did not reply . PERSON appealed to ORG against the tacit refusal .

In a judgment of CARDINAL DATE ORG , noting that the ORG was a registered religious denomination and that the ORG was under a duty to examine requests for changes in the leadership of religious denominations , found that the ORG ’s tacit refusal to examine the applicant organisation ’s request was unlawful .

On DATE , DATE of ORG judgment , the ORG examined and granted a request submitted by PERSON for the registration of amendments in the structure of the ORG .

That decision was appealed against by the applicant organisation to ORG .

In a judgment of CARDINAL DATE ORG declared the ORG ’s decision of CARDINAL DATE null and void . The court noted , inter alia , that it was unclear whether ORG presided over by PERSON had been validly registered in accordance with LAW of DATE . Furthermore , the ORG ’s decision of CARDINAL DATE had been issued at a time when another request for registration of ORG leadership , the request by PERSON , had been pending before the ORG . In these circumstances , the ORG was not entitled to proceed with the registration of the amendments requested by PERSON without informing all interested parties , such as the applicant organisation , and without considering those parties’ arguments .

As a result of the judgment of DATE , the DATE registration of the ORG as presided over by PERSON ( see paragraph CARDINAL above ) was null and void .

In DATE the government of ORG stepped down and an interim cabinet was appointed . Following parliamentary elections , a new government of ORG was formed . A number of politicians from that political party , including the President of GPE , elected at DATE by universal suffrage , supported the applicant organisation .

In DATE the newly elected President of GPE took oath in the presence of Patriarch Pimen , thus recognising the applicant organisation as the legitimate leadership of ORG .

In DATE the mayor of GPE granted the request for registration of the applicant organisation ’s local leadership . In the ensuing judicial proceedings instituted by the other leadership , in a judgment of DATE ORG noted the developments in the ORG in DATE and concluded that CARDINAL religious organisations bearing the name ORG existed in GPE . Therefore , the church presided over by PERSON had no standing to appeal against decisions concerning the ORG presided over by PERSON . ORG thus dismissed the appeal as inadmissible .

In DATE and DATE the ORG authorities urged the CARDINAL opposing leaderships to unite and adopted the view that pending such unification none of them could claim to unite all clergy and believers and represent the ORG . On several official festive occasions , breaking with tradition , the President of GPE refused to invite any representative of the ORG , as that would have required choosing between the CARDINAL opposing groups .

On DATE the applicant organisation decided to convene in DATE or DATE a national congregation of clergy and believers with the ambition to unite the ORG .

On DATE and DATE ORG presided over by PERSON held a national convention with the same ambition . The convention , which was proclaimed as a Holy Expanded and ORG - jurisdictional ORG , was attended by patriarchs and other senior clergy from ORG from GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . According to the minutes , submitted by the third party , a number of adherents of the applicant organisation , including ORG and FAC , made statements of repentance and were accepted under the leadership of Maxim but were demoted to lower ranks in the clergy . The minutes contained language strongly condemning the applicant organisation for having caused a schism .

LAW DATE and DATE did not bring about reconciliation . The applicant organisation continued its efforts to unite the believers under a new leadership and refused to accept the leadership of PERSON . It appears that ORG and FAC either did not make statements of repentance at FAC or retracted them .

On DATE and DATE the applicant organisation held a national congregation organised by it . It was attended by CARDINAL participants , including CARDINAL members of the clergy . The participants voted for the removal of PERSON and adopted a new statute of the ORG .

Patriarch Pimen passed away in DATE . The applicant organisation appointed PERSON to act as Chair of ORG and its representative , pending the nomination of a new ORG .

On DATE the applicant organisation asked the ORG to register the new leadership . As no reply was received , the applicant organisation submitted an appeal to ORG . On DATE the court dismissed the appeal , finding that the issue had already been decided by the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) .

The Directorate and ORG never registered the applicant organisation .

At all relevant times , Patriarch PERSON ’s leadership enjoyed international support from ORG and other religious organisations worldwide . It appears that the applicant organisation has never had significant international support from ORG outside GPE .

In DATE , following parliamentary elections , the government of ORG was replaced by a government formed by ORG .

Representatives of the new ruling political party , including its leader , publicly expressed their opinion that Patriarch PERSON was the legitimate leader of the ORG and stated their intention to introduce legislation with the aim of putting an end to the divisions in the ORG .

That was done with effect from DATE , when the new Religious Denominations Act DATE came into force .

The official record of the parliamentary debates during the passage of the LAW reveal an almost unanimous opinion that the unity of ORG was of crucial national importance because of its historical role in shaping and preserving the NORP national identity over DATE .

The records also reveal that a number of deputies from the political groups which introduced the bill and voted for it were of the view that the correct reading of the ORG canons demonstrated that PERSON was the canonical head of the ORG and that for that reason it was justified to adopt provisions enshrining in law the legitimacy of the canonical leadership of the ORG and excluding the other leadership . Some deputies emphasised , in addition , the need to remedy the DATE unlawful ORG interference in the organisation of the ORG . The opposition deputies considered that the bill was unconstitutional as it interfered in the internal affairs of the religious community . Some of them also relied on the fact that PERSON had been nominated by ORG and had ruled the ORG according to its policy and contrary to canon .

The new Act provided , inter alia , for the ex lege recognition of ORG . It also introduced a provision which stated that the ORG “ is headed by ORG and is represented by ORG ... ” The LAW prohibited CARDINAL denomination carrying the same name and stated , in its transitional provisions , that persons who had seceded from a registered religious institution were not entitled to use its name or assets ( see for more details paragraphs CARDINAL below ) .

It is unclear whether the representation of the ORG has been recorded ( вписанo ) in the public register at ORG . The Government ’s position , supported by a statement issued by ORG of ORG on DATE , appears to be that no such recording was necessary and that it has not been done . No reference was made in this statement to section DATE CARDINAL Act and the fact that ORG had stated that the recording requirement contained in that provision applied to ORG ( see paragraph CARDINAL below ) . Contradictory information as regards the recording of the ORG is contained in a publication submitted by the applicants . According to CARDINAL statement contained in that publication , such recording has been made , apparently indicating PERSON as the ORG ’s representative , on the basis of an “ expert opinion by ORG attached to ORG ” . According to a report by the President of ORG of ORG contained in the same publication , ORG has not been entered in the register .

DATE . On an unspecified date in DATE the applicant organisation applied to ORG for the registration of its local organisation in GPE . The request was made by FAC , who stated that he headed and represented ORG and ORG .

On DATE ORG rejected the request . The court noted that registration could only be granted if requested by the person representing ORG . In accordance with section DATE Act , the ORG was presided over by its ORG . The court further stated that the fact that the NORP Patriarch was PERSON was “ publicly known and internationally recognised ” . The opinion of CARDINAL judges of ORG in a judgment of DATE allegedly supported that view ( see paragraphs QUANTITY below ) . On that basis the court declared the request inadmissible as it had not been submitted by PERSON .

On appeal , ORG judgment was upheld by ORG on DATE . In these proceedings , ORG sought the opinion of ORG attached to ORG on the situation in the ORG but noted in its judgment that it was not bound to follow the opinion of the executive branch . In its judgment , ORG noted that the applicant organisation had not submitted a copy of the statute of ORG and had not proved that FAC represented it . In particular , the judgments of ORG of DATE ( see paragraph CARDINAL above ) , relied upon by the applicant organisation , did not prove the relevant facts .

The final decision was that of ORG . ORG upheld the lower courts’ reasoning and stated that the request was inadmissible in the absence of proof about the leadership of the ORG and its representatives .

The attempts of the applicant organisation to achieve recognition of its local church councils under LAW were refused in most cases for the same reason . In its judgment of DATE judgment ( in case no . CARDINAL ) refusing such a request , ORG stated that FAC had not submitted proof about the identity of the head of the ORG , as recorded at ORG under section CARDINAL of the LAW , and could not , therefore , act on behalf of the ORG . Also , “ it was publicly known that ORG had a ORG ” and the court could not deal with the question whether the ORG ’s nomination in DATE had been lawful .

In CARDINAL regional courts , however , the applicant organisation obtained decisions registering its local church councils – in ORG by CARDINAL decisions of CARDINAL DATE and in ORG by several decisions of DATE . The courts apparently accepted that the applicant organisation represented the ORG .

During the relevant period some religious ministers who associated with the applicant organisation decided to return under the leadership of Patriarch ORG . In respect of those who did not do so , in DATE and on subsequent occasions the leadership of ORG presided over by Patriarch Maxim issued decisions terminating their functions as religious ministers . Some of the ousted ministers unsuccessfully challenged their dismissal before the civil courts .

On an unspecified date the ORG , as represented by PERSON , invited the applicant organisation to vacate all churches and religious buildings it controlled . On DATE a complaint to the prosecution authorities was filed , in which Patriarch PERSON requested them to carry out an inquiry and , where appropriate , institute criminal proceedings against FAC and his supporters . He also requested , accordingly , the search and seizure of seals and other belongings , as well as the institution of civil proceedings on behalf of ORG .

On an unspecified date in DATE ORG instructed local prosecutors to assist ORG in recovering its property . On DATE local prosecutors throughout the country issued orders for the eviction of persons “ unlawfully occupying ” churches and religious institutions .

The text of all those decisions was almost identical as , apparently , it had been copied from the instructions given by ORG . The prosecutors noted that LAW did not allow the existence of CARDINAL religious denomination bearing the same name and prohibited the use of the name and property of a religious denomination by persons who had seceded from it . The prosecutors further observed that the courts had rejected the applicant organisation ’s request for registration in GPE and that its representatives in local parishes had been invited to leave voluntarily the premises they occupied . The prosecutors concluded that the persons associated with the applicant organisation unlawfully prevented the legitimate religious ministers appointed by the ORG from performing their duties . For these reasons police evictions were ordered .

On DATE in the morning the police blocked CARDINAL churches and monasteries in the country , evicted the religious ministers and staff who identified themselves with the applicant organisation and transferred the possession of the buildings to representatives of the other leadership . The applicant organisation submits that among those buildings there were several new churches , built entirely under its leadership .

Some of the ousted religious ministers sought the assistance of the prosecuting authorities against the forceful evictions . Their requests were refused in decisions stating that the persons who had entered into possession of the disputed buildings were legitimate representatives of ORG , to which the buildings belonged .

The CARDINAL individual applicants were evicted on DATE from the church of PERSON in GPE .

In DATE criminal proceedings were opened against FAC and ORG , who belonged to the applicant organisation , for usurping the functions of religious ministers , contrary to LAW .

On DATE the GPE ORG acquitted Metropolitan Inokentiy . The prosecutor appealed . In a final judgment of CARDINAL DATE ORG upheld the acquittal . ORG was also acquitted , by a judgment of DATE of ORG .

The reasoning of the courts in the above CARDINAL cases was essentially identical . They noted that since DATE ORG had been divided and that after DATE neither PERSON nor PERSON or his successor had been lawfully registered as the head of ORG . Furthermore , Metropolitan Inokentiy and ORG had been registered , prior to the entry into force of LAW , as leaders of the respective local divisions of the ORG , the PERSON and the PERSON . In these circumstances the accused persons had been entitled to act as religious ministers and had done so in the belief that they were lawfully exercising their function . It followed that they had not committed the offence under LAW .

The relevant constitutional provisions read as follows .

“ ( CARDINAL ) ORG shall be free .

( CARDINAL ) NORP institutions shall be separate from the State ...

( CARDINAL ) Religious institutions and communities and religious beliefs shall not be used for political ends . ”

“ ( CARDINAL ) NORP The freedom of conscience , the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable . The ORG shall assist in the maintenance of tolerance and respect between the adherents of different denominations , and between believers and non - believers .

( CARDINAL ) The freedom of conscience and religion shall not be exercised to the detriment of national security , public order , public health and morals , or of the rights and freedoms of others . ”

In a judgment of CARDINAL DATE ORG , interpreting LAW , stated , inter alia , that the ORG should not interfere with the internal organisation of religious communities and institutions except in accordance with LAW and LAW .

The LAW governed the organisational structure and functioning of religious denominations DATE and DATE . It provided that each religious denomination had to apply for registration and approval of its statute by ORG and to register its leadership with the ORG . The local leaderships were registered by the municipal authorities .

DATE . The CARDINAL Act was interpreted in administrative practice as prohibiting parallel organisations of the same religious denomination and requiring that each religious denomination must have a single leadership .

During the relevant period , the judicial practice in appeals against the ORG of ORG decisions on the registration of religious denominations and their leaderships was contradictory . In some cases the courts took the view that ORG and the ORG enjoyed unfettered discretion in such registrations . In other cases the courts reviewed the change - of - leadership decisions for compliance with the statute of the religious denomination , as registered by the ORG . In CARDINAL case ORG recognised the existence of CARDINAL parallel organisations of CARDINAL and the same religious denomination ( see the following judgments of ORG : judgment no . DATE in case no . CARDINAL , judgment no . CARDINAL of DATE in case no . CARDINAL/CARDINAL and judgment no . CARDINAL of DATE in case no . CARDINAL ) .

The LAW provides for judicial registration of all religious denominations except ORG , which is recognised as a legal person ex lege . In accordance with paragraph CARDINAL of the transitional provisions , ORG need not be re - registered under LAW , unlike all other religious denominations .

Section CARDINAL of the new LAW provides , inter alia , that ORG is a legal person whose structure is determined by its internal statute . In accordance with the same provision , the ORG “ is headed by ORG and is represented by ORG ... ”

Section CARDINAL(CARDINAL ) provides that there can be CARDINAL religious denomination with the same name . Under section CARDINAL , persons acting on behalf of a religious denomination without authorisation are to be fined by ORG .

Paragraph CARDINAL of the transitional provisions of the LAW provides that persons who had seceded from a registered religious institution before the LAW ’s entry into force in breach of the institution ’s internal rules are not entitled to use the name of the religious institution or its assets .

Section CARDINAL provides that information about religious denominations , including the names of the persons representing them for all legal purposes , is recorded ( вписване ) in a public register at ORG . ORG has stated that this requirement applies to ORG ( judgment no . CARDINAL of DATE in case no . CARDINAL ; see also the same interpretation in other judgments : ORG , judgment of DATE in case no . CARDINAL , and ORG , judgment no . CARDINAL of DATE in case no . CARDINAL ) ( see also paragraph CARDINAL above ) .

NORP In DATE CARDINAL members of ORG asked ORG to repeal certain provisions of the new Religious Denominations Act DATE as being unconstitutional and contrary to the Convention .

DATE . Paragraph CARDINAL of the transitional provisions of the new Act was among the provisions challenged . Some of the other provisions that are relevant to the ORG complaints , such as sections CARDINAL(CARDINAL ) and CARDINAL of LAW , were not challenged .

The Constitutional Court gave judgment on DATE . It could not reach a majority verdict , an equal number of justices having voted in favour of and against the request to declare paragraph CARDINAL of the transitional provisions unconstitutional . According to ORG practice , in such circumstances the request for a legal provision to be struck down is considered to be dismissed by default .

The justices who voted against the request considered , inter alia , that the principle of legal certainty required that persons who had seceded from a religious denomination should not be allowed to use its name . Further , it was obvious that they could not claim part of its assets , as the assets belonged to the religious denomination as a legal person .

The justices who considered that the provision was unconstitutional stated that it purported to regulate issues that concerned the internal organisation of religious communities and thus violated their autonomy . Those justices further stated that the provision , applied in the context of existing disputes , favoured CARDINAL of the groups in a divided religious community and therefore did not contribute to maintaining tolerance but rather frustrated that aim . It thus violated LAW .

This provision makes it punishable to usurp the functions of a public figure or to wear attire or symbols to which one is not entitled . The punishment is imprisonment of DATE or community labour ( пробация ) .

In Resolution CARDINAL ( DATE ) , adopted on DATE , ORG of ORG criticised the new Religious Denominations Act DATE and stated , among other things :

“ The strongest doubts concern the state interference allowed for , or even operated directly by the [ Religious Denominations Act DATE ] , in the internal affairs of religious communities . This concerns in particular the leadership quarrel between the CARDINAL NORP synods led , respectively , by PERSON and by FAC , who disputes the legitimacy of PERSON as ORG . The ex lege recognition of ORG , as defined meticulously in [ section CARDINAL(CARDINAL ) ] , exempting this institution from the usual registration procedure , which also includes a check on the legitimacy of the leadership , is generally seen as intended to settle the dispute between PERSON and Inokentiy in favour of the former . The alternative synod is effectively barred from registering as a new religious institution by the prohibition against the registration of another institution using the same name and headquarters and the punitive provisions empowering ORG to sanction ‘ unauthorised representatives’ ...

The ORG therefore recommends to the NORP authorities : ... as regards [ section ORG ) of the Act ] ( ex lege recognition of ORG ) : either to delete this provision outright , thereby subjecting ORG to the same registration requirements as other religious communities ; or to ensure in other ways without interference by the executive that the leadership of ORG is legitimate according to NORP canonical law ; ... as regards [ section CARDINAL(CARDINAL ) ] ( no registration of an identical religious community ) : either to delete this provision , or to ensure its interpretation in such a way that only the strict and literal identity of names and headquarters precludes the registration of a breakaway group ; ... ”


NICOL and SELVANAYAGAM v. THE UNITED KINGDOM

The applicants are NORP citizens , born on DATE and CARDINAL DATE respectively and living in GPE and GPE - upon - GPE respectively . They are represented before the ORG by Mr PERSON , a solicitor from ORG .

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

The applicants were both participants in an anti - fishing protest that took place on TIME DATE . The applicants , along with CARDINAL other protestors , attended a fishing competition taking place in GPE , a public park in GPE . There were CARDINAL anglers fishing around a lake . The intention of the applicants was to effect a " sabotage " of the angling match by preventing fish from being caught , or reducing the number of fish caught , and raising public awareness of cruelty to fish . The applicants approached some of the anglers and explained that they were not there to cause any damage or violence but that they intended to frighten fish away from the hooks to prevent the fish being caught . The applicants threw twigs in the water close to the hooks to disturb the surface of the water , whilst other protestors sounded horns to create noise in order to frighten the fish . The applicants contend that no violence or threats of violence against the persons or property of the anglers took place . The Government contend that the applicants threw sticks at the NORP lines , creating the risk of damage to property .

Police officers arrived at the scene and told the applicants to cease their behaviour . When the applicants refused they were arrested , along with CARDINAL other protestors , for " breach of the peace " . The arrests took place at TIME and the applicants were taken to GPE police station arriving at TIME .. Detention was authorised , the reason stated on the custody record being to , " allow a period of calming , and to determine method of processing " . The applicants were charged TIME of the same day with " Breach of the Peace".The charge read as follows :

" That you on DATE at GPE in GPE in a certain place namely PERSON , were guilty of conduct whereby a breach of the peace was likely to be occasioned .

Contrary to Common Law . "

The applicants were then detained at the police station . This detention was justified on the following grounds :

" Bail denied to prevent the prisoner from disrupting the fishing event DATE , also CARDINAL scheduled for DATE . To appear at the next available court , ORG [ ORG ] AM CARDINAL .. "

The applicants appeared before ORG at TIME on DATE . The magistrates adjourned the case and the applicants were released .

The applicants appeared before the court on DATE for a full hearing . The court found the charge of " breach of the peace " proved against the applicants and proposed to bind them over . The first applicant was invited to agree to be bound over in the sum of £ MONEY to keep the peace and be of good behaviour for a period of DATE . The second applicant was invited to agree to be bound over in the sum of £ DATE to keep the peace and be of good behaviour for a period of DATE .

Both applicants refused to be bound over , stating they were not guilty of a breach of the peace . After CARDINAL brief adjournments the magistrates committed the first applicant ( then aged DATE ) to a LAW for DATE , under the provisions of section CARDINAL of LAW DATE . The second applicant was committed to prison for DATE , under section CARDINAL of ORG .

The applicants appealed against the decision of the court by way of case stated . In the stated case , the justices found that the conduct of the applicants would clearly have disrupted and interfered with the lawful activities of the anglers involved in the competition , that their conduct was intended to prevent that lawful conduct , and that the consequences of the applicants’ conduct would almost certainly have been a breach of the peace , as it was likely that some or all of the anglers would resort to forceful means of restraining the applicants , which in turn would have resulted in acts of violence . In ORG , on DATE , Lord Justice PERSON stated :

“ … Before the court can properly find that the natural consequence of lawful conduct by a defendant would , if persisted in , be to provoke another to violence , it should , it seems to me , be satisfied that in all the circumstances it is the defendant who is acting unreasonably rather than the other person . ... Putting it another way , the court would surely not find a [ breach of the peace ] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course , it would be if the defendant ’s conduct was not merely lawful but such as in no material way interfered with the other ’s rights . A fortiori , if the defendant was properly exercising his own basic rights , whether of assembly , demonstration or free speech . ” .

The appeal failed and leave to appeal to ORG was refused .

Breach of the peace – which does not constitute a criminal offence ( NORP v. GPE ORG , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) DATE is a common - law concept of great antiquity . However , as Lord PERSON , giving judgment in ORG in the case of NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL ) , remarked in DATE :

“ A comprehensive definition of the term ‘ breach of the peace’ has very rarely been formulated … ” ( p. CARDINAL )

He continued :

“ We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault , an affray , a riot , unlawful assembly or other disturbance . ” ( p. CARDINAL )

In a subsequent case before ORG ( PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , Mr Justice PERSON followed ORG in holding that there must be a risk of violence before there could be a breach of the peace . However , it was not essential that the violence be perpetrated by the defendant , as long as it was established that the natural consequence of his behaviour would be to provoke violence in others :

“ The conduct in question does not itself have to be disorderly or a breach of the criminal law . It is sufficient if its natural consequence would , if persisted in , be to provoke others to violence , and so some actual danger to the peace is established . ” ( p. DATE )

A person may be arrested without warrant by exercise of the common law power of arrest , for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace ( PERSON v Lavin [ DATE ] Appeal Cases CARDINAL at p. CARDINAL ) . This power was preserved by ORG sections CARDINAL(CARDINAL ) and CARDINAL ) ) .

Magistrates have powers to “ bind over ” under LAW DATE ( “ the DATE LAW ) , under common law and under LAW ( “ the GPE ” ) .

A binding - over order requires the person bound over to enter into a “ recognizance ” , or undertaking secured by a sum of money fixed by the court , to keep the peace or be of good behaviour for a specified period of time . If he or she refuses to consent to the order , the court may commit him or her to prison , for DATE in the case of an order made under LAW or for an unlimited period in respect of orders made under LAW or common law . If an order is made but breached within the specified time period , the person bound over forfeits the sum of the recognizance . A binding - over order is not a criminal conviction ( NORP v. GPE ORG , ex parte ORG Commissioner [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) .

In addition to the statutory procedure under LAW described in the case of Steel and Others , magistrates have powers to bind over at common law and LAW . These powers allow magistrates , at any stage in proceedings before them , to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra ORG mores . It is not open to the justices to attach specific conditions to a binding - over order ( PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ; PERSON v. Chief Constable of GPE [ DATE ] Criminal Law Review DATE ) .

An order of the magistrates to require a person to enter into a recognizance to keep the peace or to be of good behaviour can be appealed either to ORG or ORG . An appeal to ORG is limited to questions of law , and proceeds by way of “ case stated ” . An appeal to ORG , under ORG from Binding - Over Orders ) Act DATE , section CARDINAL , proceeds as a rehearing of all issues of fact and law .

In response to a request by the Lord Chancellor to examine binding - over powers , ORG ( the statutory law reform body for GPE and GPE ) published in DATE its report entitled “ Binding Over ” , in which it found that :

“ We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour . These objections are , in summary , that the conduct which can be the ground for a binding - over order is too vaguely defined ; that binding - over orders when made are in terms which are too vague and are therefore potentially oppressive ; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous ; that orders which restrain a subject ’s freedom can be made without the discharge of the criminal , or indeed any clearly defined , burden of proof ; and that witnesses , complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them . ” ( ORG no . CARDINAL )

ORG recommended abolition of the power to bind over .

Section CARDINAL of the Criminal Justice Act CARDINAL concerns the detention of persons aged CARDINAL for default or contempt . A refusal to enter into a recognizance to keep the peace by a person ordered to do so by a ORG acting under LAW CARDINAL is a “ kindred offence ” for the purposes of this section , and accordingly a person aged CARDINAL who refuses to enter a recognizance may properly be committed to custody under this section : PERSON , CARDINAL Cr . App . PERSON , GPE .

Section CARDINAL provides as follows :

“ CARDINAL.(CARDINAL ) In any case where , but for section DATE , a court would have power-

( a ) to commit a person DATE but not DATE to prison for default in payment of a fine or any other sum of money ; or

( b ) to make an order fixing a term of imprisonment in the event of such a default by such a person to prison for contempt of court or any kindred offence ,

the court shall have power , subject to section CARDINAL(CARDINAL ) above , to commit him to be detained under this section or , as the case may be , to make an order fixing a term of detention under this section in the event of default , for a term not exceeding the term of imprisonment . ”

The normal position under domestic law for persons charged with criminal offences is set out in section CARDINAL(CARDINAL ) of PACE . At the time of the applicants’ detention it provided as follows :

“ Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence , the custody officer shall order his release from police detention , either on bail or without bail , unless

( a ) if the person arrested is not an arrested juvenile-

( i ) his name or address can not be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address ;

( ii ) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection or to prevent him from causing physical injury to any other person or from causing loss of or damage to property ; or

( iii ) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail or that his detention is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence ;

( b ) if he is an arrested juvenile-

( i ) any of the requirements of paragraph ( a ) above is satisfied ; or

( ii ) the custody officer has reasonable grounds for believing that he ought to be detained for his own interests . ”


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant owns PERCENT of shares in a limited liability company “ GPE ” ( “ the PERSON company ” ) and is the sole owner of a private company “ GPE ” ( “ the GPE company ” ) .

In DATE the “ ORG ” bank ( “ the NORP bank ” ) granted the GPE company a sum in credit that had to be paid back within DATE . The credit was secured by the company ’s real estate .

In DATE the “ GPE ” ( “ the P. bank ” ) , granted credit to the PERSON company , also with the latter ’s property as security . The criminal proceedings against the applicant would later establish that this contract was provided on the basis of fictitious transactions and in fact was aimed at raising funds for repayment of the GPE company ’s debt vis - à - vis the NORP bank ( see paragraph QUANTITY below ) .

NORP In DATE , according to the applicant , ORG and the police seized certain financial documents of both the GPE and GPE - MB companies .

The GPE company failed to pay back the debt owed to the NORP bank in a timely manner . Therefore , in DATE the notary who had certified the pledge contract securing the credit issued a writ of execution for the sale of the pledged property . In DATE the ORG ( “ the PERSON court ” ) ordered the seizure of that property , which in DATE was sold at a public auction .

On DATE ORG of ORG in GPE opened a criminal investigation against the applicant on suspicion of embezzlement of ORG ( or collective ) property . On CARDINAL May DATE the proceedings were discontinued as the action in question had ceased to be a criminal offence .

On DATE ORG opened a new criminal investigation against the applicant on a charge of financial fraud . He was suspected of having provided a bank with false information regarding his company ’s financial situation in order to obtain credit , which had allegedly caused considerable damage to the bank .

NORP The parties’ versions of events during this period varied .

According to the applicant , he was not aware of the investigation opened against him on DATE until DATE . He alleged , however , that in DATE he had discovered from a letter of ORG that a criminal investigation against him on a financial fraud charge had been opened on DATE and subsequently discontinued on DATE . This was not disputed by the Government .

In DATE the applicant complained to ORG that the criminal investigation against him had been improper , and that he had not been informed of the grounds for its opening and closure , nor had been involved in any investigative activities . The outcome of the applicant ’s complaints is unknown .

According to the Government ( see also paragraph CARDINAL above ) , following the opening of the criminal investigation on DATE , he was summoned several times by the investigating officer for questioning , but failed to appear .

According to the documents submitted by the Government , on CARDINAL DATE the “ criminal case against the applicant on a charge of fraud ... [ was ] ... stayed pending identification of the persons who had committed the crime ” ; in DATE the investigator issued CARDINAL warrants to the police to ensure the applicant ’s appearance for questioning as a witness ; and on DATE the investigator issued another warrant for the applicant ’s obligatory appearance , but that time as an accused .

On DATE the investigator found the applicant to be absconding and put him on a wanted list .

The Government submitted that the preliminary investigation was stayed CARDINAL times pending establishment of the applicant ’s whereabouts . The applicant maintained that he had been permanently staying at his ordinary residential address at which he had not received any summons . In support of that argument he referred to the fact that in DATE he had filed a number of complaints with the prosecution authorities , some of those in the course of his personal meetings with their officials .

On DATE the PERSON court authorised a search of the applicant ’s dwelling .

On DATE the police apprehended the applicant and conducted a search in his flat . As a preventive measure pending trial , he was placed under an undertaking not to abscond .

On DATE the applicant was notified about completion of the pre - trial investigation and was provided with access to the case file .

On DATE he was officially indicted and his case file was sent to the court .

On DATE the PERSON court held a preliminary hearing . On DATE the next hearing was adjourned owing to the applicant ’s and the witnesses’ failure to appear .

On DATE the applicant sought the withdrawal of the bench dealing with his case .

On DATE the hearing was adjourned pending a decision on that matter . The case was referred to the Sykhivskyy District Court of Lviv ( “ the ORG court ” ) , which held a preliminary hearing on DATE . Another CARDINAL hearings then followed . There were some CARDINAL adjournments , including CARDINAL because of failures on the part of the witnesses and the prosecutor to appear and one because the judge was ill . Another adjournment was caused by a motion of the applicant on the summoning of witnesses .

On DATE the ORG court ruled that the case be returned for additional investigation , having found that the one already conducted had been flawed and superficial . Both the prosecutor and the applicant appealed : the former held that the case file already contained conclusive evidence of the applicant ’s guilt , while the applicant maintained that he was clearly innocent and that no further investigation was required . On DATE ORG upheld the above ruling in the main . On DATE ORG rejected as unsubstantiated the applicant ’s request for leave to appeal in cassation .

According to the Government , in DATE and later on in DATE , the investigation was stayed CARDINAL times on account of the applicant ’s illness . The applicant denied this .

In DATE the applicant complained to ORG about a lack of any visible progress in the additional investigation ordered by the court . In response , he was informed that the investigating officer in charge had been disciplined for some procedural violations .

On DATE a warrant was issued for seizure from the bank of certain classified financial documents relevant for the investigation , and in DATE the seizure took place .

On DATE the investigator issued a ruling on finding the whereabouts of some witnesses .

On DATE the applicant was notified about the completion of the pre - trial investigation and was provided with access to the case file .

On DATE the case was referred to the PERSON court .

On DATE the court held a preliminary hearing , for which the applicant and the plaintiff failed to appear .

The case was subsequently referred to the ORG court , which held CARDINAL hearings . According to the information provided by the Government , there were CARDINAL adjournments : CARDINAL owing to the prosecutor ’s failure to appear , CARDINAL caused by the applicant ’s motions , and CARDINAL for other reasons . The applicant submitted that the prosecutor had failed to appear for hearings CARDINAL times .

On DATE the applicant unsuccessfully sought the withdrawal of the bench of the ORG court .

On DATE he also unsuccessfully complained about the bench of ORG before ORG , alleging that it had been involved in a “ robbery ” against him .

On DATE the ORG court found the applicant guilty of financial fraud and sentenced him to CARDINAL years’ imprisonment and to a DATE disqualification from holding certain administrative and commercial positions . He was , however , released from serving the sentence under the statute of limitations . The court also found unsubstantiated the prosecution ’s statement about the applicant ’s absconding during the pre - trial investigation , having noted that he had been addressing various authorities with complaints during that time and that there were thus no reasons to consider him to have been avoiding the investigation .

On DATE the applicant challenged the verdict by a complaint , which he considered to be a cassation appeal , while ORG regarded it as an ordinary appeal . As the applicant insisted that it was a cassation appeal to be considered by ORG , on DATE ORG ruled to leave it without consideration .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation as unsubstantiated .

In DATE the GPE company lodged a claim with ORG against the NORP bank , seeking the return of part of its property allegedly in excess of the collected debt ( see paragraph QUANTITY above ) .

In DATE the company made some modifications to its claims .

On DATE ORG ruled to discontinue the proceedings , having found the modified claims to be beyond the scope of the commercial procedure .

On DATE ORG rejected the company ’s request for leave to appeal on account of procedural flaws which had not been rectified .

On DATE the Higher Commercial Court ruled that the company ’s cassation appeal be left without consideration for having been lodged out of time .

On DATE ORG rejected the company ’s request for leave to appeal in cassation as unsubstantiated .

The GPE company complained to the PERSON court about the bailiff in charge of the auction at which its property had been sold .

On DATE the court ruled to leave that complaint without consideration , having found that it had to be considered within a contentious civil procedure , which the company could initiate by lodging an appropriate claim . On DATE ORG upheld the above ruling . Apparently , the GPE company did not lodge such a claim .

On DATE the applicant ’s father died . In a judgment of CARDINAL DATE the ORG recognised the entitlement of the applicant ’s brother NORP to a house bequeathed to him by DATE and the applicant ’s – deceased father .

DATE . On DATE the applicant requested the court to review the above judgment under newly discovered circumstances .

On DATE the court found against the applicant .

On DATE the GPE - Frankivsk Regional Court of Appeal upheld the judgment .

The applicant lodged an appeal in cassation which apparently remains undecided .

The applicant complained several times to the police and prosecution authorities about arson attempts on his flat , threats to his and his family ’s life by “ state officials ” , alleged misconduct of the police during his apprehension in DATE , and the fact that he had been “ robbed ” by the court which had passed the judgment against him .


The applicant is a NORP national who was born in DATE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by Ms I. GPE , ORG .

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

The applicant arrived in GPE on DATE and applied for asylum on DATE .

An initial interview with the applicant was conducted by ORG ( Migrationsverket ) on DATE . At that interview the applicant stated , inter alia , that he had travelled to GPE with a false passport which he had obtained through a friend of his father 's who worked at the NORP passport authority . As agreed with that person , he had sent back the false passport after having entered GPE . His own genuine passport remained in GPE with his parents . Asked about his professional background , the applicant responded that he was an architect by profession and had been employed by the state for DATE at “ ORG for the educational sector in the district of LOC . However , he had stopped working in DATE . The applicant stated that disturbances had erupted in LOC at DATE . He had openly participated in the protests against the presence of ( sub - Saharan ) NORP in the country , mainly by distributing leaflets . In DATE he had been arrested by the security office in GPE and accused of participating in the uprising against the NORP . On this occasion he had been questioned and held in detention for DATE . Following the interview , the record of it was read out to the applicant who declared that it was correct and that he had understood the interpreter well .

A second interview was held by ORG on DATE . On this occasion the applicant was heard , inter alia , about the contents of CARDINAL documents which he had received from GPE after his arrival in GPE and submitted to ORG on DATE : ( CARDINAL ) a birth certificate , ( CARDINAL ) an international driver 's licence issued in GPE on CARDINAL DATE after he had left for GPE , and ( CARDINAL ) a document showing that he had completed his national military service . Asked about his passport , the applicant stated that it was impossible for him to obtain it as it was held by the security service which had taken it at DATE “ for reasons identical to his grounds for seeking asylum ” .

Describing his activities during the disturbances in his hometown , the applicant stated that he had participated by writing and distributing leaflets , encouraging people to force the Government to resign . In the leaflets , he had mentioned that , since coming to power in DATE , PERSON had treated the applicant 's clan harshly . The clan had been politically influential before DATE . The uprising had lasted for DATE in DATE and most of those living in PERSON had taken part . The security services had been sent to PERSON to deal with the problem . They had first targeted the applicant 's clan . They had had no information regarding the names of the persons who had participated but had acted arbitrarily and arrested a large number of young men . In DATE the applicant had been arrested by the security service at his work place and held in detention for DATE awaiting a hearing concerning his detention . On DATE the persons in charge of his interrogation had released him pending further questioning . Upon his release , the applicant had gone to PERSON , a small town west of LOC , where he had stayed in hiding with a friend for DATE before leaving for GPE . Throughout this period he had been searched for by the security service .

Asked about what would happen to him if returned to GPE , the applicant first stated that it was difficult to say exactly but that he would consider himself fortunate if he were given life imprisonment . Slightly later during the interview , however , he stated that the media had reported that death sentences had been handed down against the leaders of the revolt and that his own name had been among those that had been mentioned . He also asserted that a friend in GPE had informed him that he had been sentenced to death in absentia . According to the applicant , this type of judgment was not issued by a court but by a kind of popular conference entitled LOC . No appeal lay against it . The applicant further stated that it was possible that news about his sentence could have been published in either of CARDINAL named government - controlled NORP newspapers .

The applicant declared that he had understood the interpreter well . The record of the second interview further stated that it had been read out to the applicant who had approved it .

In written observations submitted to ORG on DATE , the applicant 's counsel , who had not been present at the interviews , stated that the record of the second interview had not been read out to the applicant or approved by him . Counsel further mentioned that , while in hiding in PERSON , the applicant had been unable to communicate with his parents by telephone . Instead , the friend who had been hiding him had visited the parents a couple of times and had then received information and the applicant 's allegedly false passport .

ORG noted that in DATE the NORP ORG in GPE had received an application for an entry visa in the applicant 's name , which contained a copy of a passport in the same name . The application had been rejected .

On DATE , in reply to this information , the applicant 's counsel noted that the copy of the passport was a copy of the same , allegedly false , passport the applicant had used to enter GPE . The name , address and place of birth were correct in the application . The applicant had not made the visa application himself and therefore assumed that it must have been made by the head of the passport authority , who was the person who had issued the false passport and had made the arrangements for the applicant 's journey to GPE . The applicant was now in a position to name this person , as he had , for unknown reasons , left his position at the passport authority . Counsel further stated that the applicant 's brother had sought to obtain a copy of the newspaper in which the applicant 's death sentence had been reported but the brother 's motives had been questioned and he had failed to obtained the copy due to fear .

On DATE ORG rejected the applicant 's request for asylum and ordered that he should be expelled from GPE . It considered it remarkable that the applicant had been able to leave detention unconditionally , without for example any obligation to report or to put up bail . Moreover , it found that the fact that the applicant had remained in the country for DATE after his release indicated that he did not perceive his need for protection as pressing . It also found it remarkable that he had been able to leave the country with a passport that he had acknowledged contained correct personal data , especially since he alleged that the NORP authorities were searching for him . Against this background , ORG found that the applicant 's involvement in the riots as well as the possible consequences thereof were exaggerated .

On DATE the applicant appealed to ORG ( Utlänningsnämnden ) . On DATE he submitted what he stated was a copy of a document which his brother had been able to obtain “ via an acquaintance with contacts in the congress ” . The document had been sent to an acquaintance in GPE who , in turn , had sent it to the applicant by fax . Issued by ORG in PERSON on DATE , it called for the search and arrest by the security service of CARDINAL named persons , including the applicant . It stated that a decision had been taken that the QUANTITY persons should be executed on account of acts committed against the security of the state . While the applicant did not at this stage specifically claim that this document was a “ judgment ” issued by ORG , he asserted that it unambiguously demonstrated that he had been sentenced to death in GPE and was being sought for execution of the judgment .

On DATE ORG rejected the applicant 's appeal . It noted that there had been violent riots in DATE resulting in the death of many of its participants . Most of the people accused of involvement in the riots had been sentenced to death . It considered that the applicant had not shown that he would risk the death penalty upon return to GPE . If he had been of interest to the NORP authorities he would not have been able to leave the country the way he claimed . Even having regard to the alleged copy of the judgment , ORG found reasons to question that he was of any particular interest to NORP authorities . He had , thus , not shown that he was in need of protection .

In DATE the applicant filed a new application for a residence permit with ORG , arguing that the previous decisions had been based on misunderstandings , misinterpretations and mistrust . He provided further details regarding the circumstances surrounding his arrest and subsequent escape from GPE . He thus stated , inter alia , that he had been one in a group of CARDINAL persons who had cooperated in writing and distributing leaflets in order to demonstrate their discontent with the regime . However , the security services had begun a campaign of arrests , torture and detentions without trial . CARDINAL in their group had been arrested and , before being executed , had been forced under torture to reveal the identity of the others . When learning of the arrest the other members of the group had tried to hide or escape , but the applicant and CARDINAL others had been arrested . He had been held in detention for DATE at a local police station but had eventually been able to bribe a police officer to let him escape . He had paid the officer the equivalent of MONEY and had handed over his genuine passport . He had thereafter hid in another town for DATE . By bribing the head of the passport authority his family had been able to obtain a false passport for him . This passport was in fact a “ real ” and new passport but it was not “ registered with the passport authority ” and did not contain a bar code used for computer control or his “ real name ” . The passport also erroneously stated that he was married . The same person had arranged all other details regarding his journey , including his application for a visa and his ticket .

The applicant further stated that during the time when he was in hiding in GPE the authorities had sent summonses for his appearance to his home , to the office where he worked and to the engineers ' labour union of which he was a member . When this had not succeeded the authorities had tried to put pressure on his family . His father had been arrested and detained for DATE , like his brothers who had been tortured to disclose his whereabouts . To avoid exposing his relatives to further torture , he had decided to escape abroad . However , after his arrival in GPE his youngest brother had been imprisoned and had informed the authorities that the applicant was living in GPE . The applicant also stated that he had stayed in GPE for DATE before leaving as the journey had required careful preparation . After a period of time in GPE the applicant had learned that he and CARDINAL others in his group had been sentenced to death and that orders had been issued to all police units to arrest and execute them . Several attempts had been made to obtain this judgment . His brothers had finally managed to get in touch with “ someone who has the key to the cupboard where the judgments are kept ” . By bribing this person with QUANTITY they had managed to obtain a copy of the judgment . The applicant claimed that CARDINAL of the persons in his group had been granted asylum in GPE and in GPE .

In support of his new application the applicant submitted what he claimed were copies of CARDINAL summonses for him to appear for questioning issued by the NORP authorities in DATE and DATE and DATE , respectively .

On DATE ORG rejected the new application stating that it contained no new circumstances which would give reasons to change its previous assessment . The new documents , which were copies , were not of such a character as to influence the assessment of the applicant 's need for protection .

The immigration authorities have contacted ORG in GPE in order to obtain travel documents for the purpose of enforcing the expulsion order against the applicant .

By a decision of DATE , following the ORG 's indication under LAW , ORG stayed the enforcement of the applicant 's expulsion until further notice .

On DATE the applicant submitted to the ORG copies of documents purportedly issued by NORP authorities . CARDINAL document , dated DATE , is a communication from “ the Secretary to ORG of the ORG ” in old PERSON to “ the Secretary to ORG for ORG and General Security ” , in which the latter is requested to agree to the notification of all airports , seaports and border - controls to prevent CARDINAL named individuals , among them the applicant and a Mr PERSON , from leaving GPE . Another document , dated DATE , is a communication from the first - mentioned official to “ the Secretary to ORG ” , informing the recipient that CARDINAL individuals mentioned in the first document , including the applicant but not Mr ORG , had fled the country and calling for their capture and return to GPE by the external security organs . A third document records a decision of CARDINAL DATE to detain the applicant 's younger brother for failure to disclose the applicant 's whereabouts . Another document contains a summons for the applicant 's father to appear on DATE for questioning in relation to the applicant 's escape from GPE .


The applicant , PERSON , is an NORP national who was born in DATE . Currently she lives illegally in GPE . She is represented by Mr GPE Heckscher , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , PERSON PERSON , of ORG , and their Co - agent , PERSON PERSON , of ORG .

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

In DATE the applicant applied for a visa for GPE at ORG in GPE . She maintained that the purpose of her stay was business . A visa valid for DATE was granted her . She entered GPE on DATE , at DATE .

DATE , on DATE , in GPE she married an NORP national , henceforth called ORG . The latter was born in DATE and had entered GPE illegally on DATE , when he was DATE . Having married a NORP national on DATE he was granted a temporary residence permit , which became permanent on DATE . ORG divorced his NORP wife on DATE .

On DATE the applicant and ORG contacted ORG ) , which advised them that at the relevant time they did not fulfil the requirements set out in section CARDINAL , subsection ( ii ) d of LAW ( GPE , No . CARDINAL of DATE ) for obtaining a family reunification , as according to that provision an alien residing in GPE , who was neither a NORP national nor a refugee had to have held a permanent residence permit in GPE for more than DATE . The applicant left GPE on DATE .

DATE after her marriage with ORG , on CARDINAL DATE , in GPE the applicant gave birth to ORG .

On DATE , on a visa valid for DATE , the applicant reentered GPE together with ORG and applied for a residence permit .

By decision of DATE , pursuant to section CARDINAL , subsection CARDINAL ( ii ) d of LAW ( No . CARDINAL of DATE ) , taken together with section CARDINAL , subsection CARDINAL of the LAW , ORG refused to grant the applicant a residence permit because it could not be established that the spouses’ aggregate ties with GPE were at least as strong as the spouses’ ties with another country . The applicant was ordered to leave the country within DATE from DATE on which she was notified of the decision .

GK on the other hand was granted a temporary residence permit until DATE ( when the child turns DATE and comes of age ) .

On DATE , in GPE , the applicant gave birth to the couple ’s second child , ORG , who was granted a temporary residence permit until DATE .

On DATE , at the Aliens Authorities’ request , the police confirmed that the applicant was still living with her husband and thus remained illegally in GPE .

The applicant ’s request of DATE that ORG re - open her case was refused on DATE , and the applicant was ordered to leave the country immediately .

By letter of DATE to ORG , the applicant requested anew that she be granted a residence permit . In support thereof she maintained that ORG would not allow her to take any of the children with her back to GPE ; that in her view ORG was not capable of taking proper care of the youngest child ; and that she had initiated proceedings against ORG in order to revoke their shared custody of ORG ( in order to bring this child with her to GPE ) . Also , she applied for a residence permit by invoking humanitarian grounds as set out in section QUANTITY , subsection CARDINAL ( ii ) of LAW ( No . CARDINAL of DATE ) .

The applicant ’s letter was forwarded to ORG ( NORP for flygtninge , ORG ) , which on DATE refused the applicant ’s request since a residence permit pursuant to section CARDINAL , subsection CARDINAL ( ii ) of LAW could only be granted if the residence permit seeker was also an asylum seeker .

The police contacted the applicant at the spouses address on DATE and summoned her to come for an interview at the police station on DATE . On DATE , the applicant and ORG informed the police that they agreed to the applicant leaving voluntarily with their CARDINAL children . It was planned that she left for GPE on DATE .

On DATE , however , the applicant appealed against the Aliens authorities’ decisions of DATE and DATE to ORG .

On DATE the applicant and ORG were legally separated . On DATE they signed an agreement before GPE ( PERSON ) maintaining shared custody of the children who due to an agreement between the separated spouses were to live with ORG . According to the agreement , the applicant was entitled to access to her children DATE from DATE , and TIME on DATE . DATE , the applicant ’s counsel wrote to ORG that the applicant withdrew her consent to leave voluntarily . Moreover , a request was submitted that ORG reopen the proceedings , which led them to refuse family reunification on DATE .

The request was refused by the Alien Authorities’ decision of DATE , which the applicant appealed against on DATE .

On DATE , ORG upheld the Alien Authorities’ decisions of DATE , DATE and DATE . In reaching its decision ORG maintained that it could not be established that the spouses’ aggregate ties with GPE were stronger than the spouses’ ties with another country as required by section CARDINAL , subsection CARDINAL , cf . section CARDINAL , subsection CARDINAL ( ii ) b - d and sections CARDINAL , subsection CARDINAL ( vii ) . In this respect , it noted inter alia that both spouses were born and raised in GPE ; that ORG only entered GPE at DATE ; that the parents of both spouses lived in GPE ; and that the spouses communicated in NORP and ORG .

Furthermore , the ORG found that no exceptional personal circumstances existed which would make the issuing of a residence permit appropriate . Finally , noting that the applicant had resided illegally in GPE since DATE , ORG did not find that particular reasons made it appropriate to exempt the applicant from complying with the rule of procedure set out in section QUANTITY c , subsection CARDINAL in LAW , according to which an application for a residence permit under section CARDINAL c , subsection CARDINAL of LAW has to be submitted or examined before entry into the country .

Finally , the ORG dismissed the applicant ’s claim that a refusal to grant her a residence permit would be in violation of ORG CARDINAL and CARDINAL of the Convention . It noted that the fact that the spouses had been legally separated and made an agreement regarding the applicant ’s access to the children could not alter the outcome , since according to the applicant ’s counsel the reason for the legal separation had merely been an attempt to improve the applicant ’s chances to stay in GPE .

In the meantime , in a letter of DATE , in which the applicant stated her address to be that of her husband , in vain she requested help from the Queen of GPE .

On DATE , on request , the applicant ’s counsel informed the police that he was unaware of the applicant ’s address ; that he only spoke to her on the telephone ; and that she wished to obtain a divorce from ORG since allegedly such would be the only possible way of staying in GPE .

The applicant did not bring her case before the ordinary courts .

According to ORG , the applicant is still married to ORG and she continues to live illegally in GPE .

LAW ( No . CARDINAL of DATE ) applicable at the relevant time .

Upon application , a residence permit could be issued inter alia to an alien over DATE who cohabited at a shared residence , either in a marriage or in a regular cohabitation of prolonged duration , with a person permanently resident in GPE over DATE who had held a permanent residence permit for GPE for more than DATE ( section CARDINAL , subsection CARDINAL ( ii ) d ) . However , if the person permanently residing in GPE did not possess NORP citizenship , it was a condition for issuing a residence permit to the alien ( spouse or cohabitant ) that the spouses’ or the ORG aggregate ties with GPE correspond at least to the spouses’ or GPE ties with another country , or that exceptional personal circumstances otherwise made it appropriate ( section CARDINAL , subsection CARDINAL , taken together with section CARDINAL , subsection CARDINAL ( ii ) b - d and section CARDINAL , subsection CARDINAL ( vii ) ) .

Furthermore , a residence permit could be issued inter alia to an alien upon application , if exceptional reasons made it appropriate ( section CARDINAL c , subsection CARDINAL ) . Such a residence permit had to be obtained before entry into GPE . After entry , such an application could not be submitted or examined or be allowed to suspend enforcement in GPE , unless particular reasons made it appropriate ( section CARDINAL c , subsection CARDINAL ) . In certain specified cases an alien who has been notified of a final administrative decision ( made under section CARDINAL ) may request within DATE after the decision is made known to him that ORG bring the case before the competent courts for a review ( LAW ) . The later provision is , however , a supplement to the general rule in CARDINAL of the LAW ( see below ) .

LAW of DATE ( PERSON ) .

Section CARDINAL of the LAW read as follows :

“ CARDINAL . The courts of justice shall be empowered to decide any question relating to the scope of the executives’ authority ; though any person wishing to question such authority shall not , by taking the case to the courts of justice , avoid temporary compliance with orders given by the executive authority . ”

Review by the courts of the ORG ’s general and specific decisions pursuant to section CARDINAL of the LAW is a common legal remedy . Consequently , in cases where an alien claims that a refusal to grant a residence permit or a deportation order would be in violation of the LAW , the courts examine intensively whether the ORG ’s decision is in accordance with GPE ’s obligations under the Convention , including LAW . The Government have submitted various recent judgments ( including one printed in ORG ( ORG p. CARDINAL ) , in which pursuant to section CARDINAL of the LAW the domestic courts thoroughly examined an alien ’s allegation that the ORG ’s refusal to grant a residence permit was in breach of LAW . The courts can not grant an alien a residence permit but they can annul the decision of the ORG and thus send the case back to the ORG for a renewed examination , for instance if the courts find that the refusal to grant a residence permit constitutes a violation of the GPE right to respect for family life according to LAW .

An application pursuant to section CARDINAL of the LAW has no automatic suspensive effect . However , the Government have submitted CARDINAL ORG decisions printed in ORG DATE p. CARDINAL and p. CARDINAL , in which an alien , having been refused a residence permit by the ORG , brought the case before the courts and requested that it be granted suspensive effect . In both cases ORG ruled that even in the absence of a specific legal authority , an application pursuant to section CARDINAL of the LAW may be granted suspensive effect if very particular circumstances ( ganske særlige omstændigheder ) exist .


Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a claim with ORG against the local land department . He sought the acknowledgement of his ownership title over a land plot which according to him was within his family estate .

On DATE the applicant lodged a claim with ORG of GPE against the municipal council seeking the ownership certificates in respect of the disputed land to be declared invalid . The CARDINAL claims were subsequently joined into CARDINAL case .

K. , a private person and the owner of the disputed land plot , participated in the proceedings as a third party .

On DATE ORG left the applicant ’s claims without examination in view of his repeated failure to appear before the court . On DATE the ORG of Appeal quashed the ruling of DATE and sent the case for further examination .

On DATE ORG of Odessa found that the applicant had no legal basis to claim a title to the land plot and rejected his claims as unsubstantiated .

On DATE the NORP ORG dismissed the applicant ’s appeal which he had to re - submit on several occasions in order to comply with procedural requirements and upheld the judgment of CARDINAL DATE .

On DATE the applicant appealed in cassation .

On DATE ORG , acting as a court of cassation , dismissed the applicant ’s appeal in cassation and upheld the decisions of the lower courts .

The applicant received a copy of the ruling of DATE in DATE after he had lodged a number of enquiries with the courts .

In the course of the proceedings the applicant lodged a number of procedural requests , some of which were allowed , including those concerning the application of provisional measures , withdrawal of the judges from his case , suspension of the proceedings in view of his health problems and pending the outcome of a criminal case against a private person concerning the matter . He also lodged appeals against some of the procedural rulings and requested copies of documents from the case - file . On CARDINAL occasions the applicant failed to appear before the courts or requested adjournment of the hearings because of his health problems which caused a delay of DATE . Another DATE delay was caused by respondents’ non - appearance before the courts .


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

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

DATE the GPE district authority ( ORG ) issued a " sentence order " ( PERSON ) imposing on the applicant , as manager of the F company , fines for CARDINAL administrative offences ( PERSON ) under section CARDINAL ) and ( p ) of LAW ( Arbeitnehmerschutzgesetz ) , in conjunction with further provisions of LAW , as well as other industrial safety regulations ( PERSON ; PERSON ) and LAW ( GPE ) . Having regard to the results of an inspection by ORG ( NORP ) , it found that

( CARDINAL ) no appointment had been made of a person responsible for security matters ( Sicherheitsvertrauensperson ) or a deputy , although the F. company had CARDINAL employees ;

( CARDINAL ) there was not the requisite number of employees who could prove that they had been sufficiently trained in first aid ;

( CARDINAL ) CARDINAL emergency exits were defective and could not be used ;

( CARDINAL ) a gate was defective and did not close safely ; and

( CARDINAL ) CARDINAL cranes had not been regularly checked by ORG .

The authority imposed fines amounting to ( CARDINAL ) ORG CARDINAL with CARDINAL days’ imprisonment in default ; ( CARDINAL ) ORG CARDINAL with CARDINAL ORG imprisonment in default ; ( CARDINAL ) and ( CARDINAL ) ATS CARDINAL with CARDINAL days’ imprisonment in default for each offence ; and ( CARDINAL ) ORG CARDINAL with CARDINAL ORG imprisonment in default . In these and the following proceedings the applicant was assisted by counsel .

On DATE ORG ( Unabhängiger Verwaltungssenat ) , following DATE of hearings , dismissed the applicant ’s appeal .

In its decision , the ORG mentioned that it had consulted the administrative files which sufficiently indicated the relevant facts . However , upon the applicant ’s express request , it had ordered an oral hearing and the taking of evidence from CARDINAL witnesses named by him . Neither the applicant , nor the witnesses ORG , who had been summoned at ORG address , had appeared at DATE court hearing . The applicant ’s counsel had explained the applicant ’s absence with his workload , and the absence of the witness K with his illness although no medical certificates were presented . Counsel had further stated that the witness N could no longer be reached at FAC address without indicating any new address , contrary to his undertaking in court .

As regards the legal assessment , the ORG considered that the objective facts could be established from the ORG report , and were not challenged in the applicant ’s appeal except for the offence of failing to appoint a person responsible for security matters or a deputy . In the latter respect , the ORG , having regard to the material before it , considered that the applicant ’s statements were untrue . As regards the applicant ’s guilt , the ORG , referring to section CARDINAL ) of LAW , found that , in his appeal submissions , the applicant had failed to show that no fault lay with him for the contravention of the provisions of administrative law . If he had shown the necessary care in complying with industrial safety rules and an earlier report of ORG on various shortcomings , the facts constituting the offences would not have occurred .

On DATE the applicant lodged a complaint with ORG ( Verwaltungsgerichtshof ) .

On DATE ORG quashed the decision of DATE regarding the conviction on the first offence as being unlawful due to a violation of procedural rules . In this respect , ORG found that ORG had failed to hear the witness K , as requested by the applicant , on the question whether or not the applicant had appointed persons responsible for security matters . This witness had been cited to give evidence on a relevant issue . The ORG absence due to health reasons , albeit without medical certificates , had not been sufficient to discharge the ORG of its duty to ensure and , if necessary , enforce the ORG presence and testimony . Referring to section DATE of LAW ( PERSON ) , the court declined to deal with the remainder of the applicant 's complaints . The decision was served on DATE .

In the resumed proceedings , on DATE , ORG again dismissed the applicant ’s appeal and confirmed the administrative fine on the first offence . As to the taking of evidence , the ORG noted that it had scheduled CARDINAL hearings and summoned the witness K , who had not been able to attend the hearings for health reasons and who had subsequently died . Thereupon , a further hearing had been fixed and the witness N had been heard . Having regard to the statements made by N , the ORG found that CARDINAL had been appointed to handle security matters at the company .

B. Relevant domestic law

Pursuant to Article CARDINAL of LAW , administrative courts called " independent administrative tribunals " ( ORG ) were set up in the Länder with effect from DATE . The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences . According to ORG and PERSON , their members are lawyers , appointed by ORG for a term of office of DATE . They are independent and must not receive instructions . They can only be dismissed from office upon a decision of ORG itself . GPE on ORG ( PERSON über den ORG PERSON ) repeats to a large extent the provisions of LAW .

By LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .

Section CARDINALa of LAW ( PERSON ) , as in force from DATE , reads as follows :

" ORG may decline to deal with a complaint against a decision of an ORG in an administrative criminal case , if no prison sentence or a fine exceeding AS CARDINAL has been imposed and ORG decision would not involve the determination of a legal question of fundamental importance . A legal question of fundamental importance is involved in particular if the challenged decision of ORG is at variance with ORG case - law , if no such case - law exists or if the legal questions at issue have not been answered uniformly in ORG case - law . "

By section ORG ) of that Act ,

" The Administrative Court shall quash the impugned decision if it is unlawful

by reason of its content , [ or ]

because the respondent authority lacked jurisdiction , [ or ]

on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

If ORG quashes the impugned decision , " the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) " ( section CARDINAL(CARDINAL ) ) .


Preliminary objection partially allowed (six month period);Preliminary objections partially dismissed (six month period, non-exhaustion of domestic remedies);Violation of P1-1;Not necessary to examine Art. 6-1;Just satisfaction reserved

The applicant ’s mother , Ioulia PERSON , was the adopted daughter of PERSON , who died in DATE . He had owned a CARDINAL undivided share of an area of CARDINAL sq . m. of land in the suburbs of GPE . The land included QUANTITY of pine forest ( which had been exploited for DATE ) , CARDINAL quarries and CARDINAL sand extraction sites .

On DATE , by a decree of ORG , the NORP State expropriated the land in question for use by ORG ( ORG ) , a public - law corporation established in order to meet the needs of refugees from LOC Minor following the mandatory exchange of populations under LAW .

DATE after the ministerial decree was issued , the relevant authorities began to occupy the expropriated land , without any compensation being paid to PERSON . The basis for the expropriation was an ordinance issued by ORG ( “ the Government ” ) on DATE , authorising the expropriation and occupation of land before any compensation was paid to its owners . The ordinance was subsequently ratified by means of a constitutional resolution of CARDINAL DATE ; its content was also incorporated in LAW .

On CARDINAL DATE PERSON applied to the relevant courts for payment of the compensation he was owed by the ORG , which had in the meantime taken over from ORG , the fund having been wound up in DATE . In a judgment of CARDINAL DATE ( no . CARDINAL/CARDINAL ) the President of ORG determined the provisional unit amount of compensation due . On DATE the NORP State applied to ORG for an assessment of the final unit amount of compensation due . In a series of judgments ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE ) the court adjourned its examination of the case and directed that evidence should be obtained and that an expert assessment should be carried out by the ORG . The proceedings lasted DATE without ever resulting in a final judgment . PERSON died in DATE .

On CARDINAL DATE PERSON and her sister DATE the applicant ’s mother and aunt respectively and the sole heirs of PERSON – applied to ORG for a fresh assessment of the provisional unit amount of compensation due , on the basis of the real value of the land in DATE .

In a judgment of CARDINAL DATE ( no . DATE ) the court determined the provisional unit amount of compensation due .

On DATE PERSON and her sister applied to ORG for an assessment of the final unit amount of compensation due .

In a judgment of DATE ( no . DATE ) the court again directed that evidence should be obtained and that an expert assessment of the value of the land should be carried out .

In a judgment of DATE ( no . DATE ) the court noted that no expert assessment had been carried out , and consequently adjourned its examination of the case .

In a judgment of CARDINAL DATE ( no . DATE ) the court , on an application by the parties , ordered a further expert assessment .

In a judgment of CARDINAL DATE ( no . CARDINAL/CARDINAL ) the court determined the final unit amount of compensation due .

On DATE PERSON and the heirs of her sister , who had died in the meantime , appealed against the judgment of ORG . On DATE the ORG likewise appealed against the judgment . The case was adjourned several times . Both appeals were finally heard on DATE , and then on DATE .

In a judgment of DATE ( no . CARDINAL/CARDINAL ) ORG dismissed the appeal lodged by the ORG and assessed the amount of compensation due at DATE ) paper drachmas per square metre , a sum corresponding to the supposed value of the expropriated land in DATE . ORG added that in DATE , CARDINAL paper drachmas had been equivalent to CARDINAL metal drachma – that is to say , “ one GPE gold drachma ” .

On DATE the ORG appealed on points of law .

In a judgment of DATE ( no . CARDINAL/CARDINAL ) ORG dismissed the ORG ’s appeal and upheld ORG judgment , which accordingly became final and irrevocable .

On DATE the applicant , who had in the meantime acquired title to her mother ’s claims by virtue of notarial deeds nos . CARDINAL/CARDINAL and DATE , applied to ORG for recognition of her entitlement to CARDINAL of the amount of compensation determined by ORG , and for payment of the compensation .

Meanwhile , in a separate expropriation case concerning a plot of land situated QUANTITY away from the land in issue , ORG had assessed the provisional unit amount of compensation at MONEY ( GRD ) per square metre ( judgment no . CARDINAL ) . The ORG had subsequently accepted that amount and paid it to the entitled persons .

In a final and irrevocable judgment of DATE ( no . CARDINAL/CARDINAL ) ORG declared that the applicant was entitled to CARDINAL of the amount of compensation determined in judgment no . CARDINAL/CARDINAL of ORG .

On DATE the applicant served the judgment of CARDINAL DATE on ORG . On DATE she asked ORG to pay her , as speedily as possible , the compensation she was owed . Having received no reply , she made CARDINAL further applications , on DATE and CARDINAL DATE .

On DATE ORG considered an enquiry it had received from ORG as to whether the ORG was under an obligation to pay the applicant the amount of compensation determined by the domestic courts and , if so , what method should be used to calculate the compensation . ORG replied to the first question in the affirmative . Furthermore , after a very thorough examination of the criteria applied in the matter , it held that the value of CARDINAL metal drachma was equivalent to PERCENT of the price quoted for QUANTITY of gold on ORG .

On DATE the applicant applied to the Commission . She complained that ORG refusal to pay her the compensation she was owed had infringed her right to effective judicial protection in the determination of her civil rights and her right to peaceful enjoyment of her possessions . She also complained of the length of the proceedings .

In a decision of CARDINAL DATE ORG , having calculated , in new drachmas , the compensation to be awarded for the expropriation , ordered a payment of GRD CARDINAL,CARDINAL,CARDINAL to be made to the applicant .

In a letter dated DATE the applicant stated that she was prepared to accept the sum but reserved the right to “ claim ... in ORG ... any additional sums in respect of the pecuniary damage ... sustained on account of the failure to pay full compensation for the expropriation ” .

On DATE the money was paid into the applicant ’s bank account .


UNION NATIONALE (TOURISM AND SEA RESORTS) LTD and OTHERS v. CYPRUS

The applicants are CARDINAL enterprises and individuals who are the owners and operators of hotel units and hotel apartments in GPE . Their names are as follows : ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG , PERSON , ORG , PERSON , ORG , ORG , PERSON and ORG , ORG , PERSON , ORG , ORG , ORG , PERSON and ORG , PERSON and ORG , PERSON , GPE and PERSON , ORG , ORG , ORG , PERSON ( GPE ) , PERSON , ORG , ORG and ORG

They are represented before the ORG by Mr PERSON , PERSON and PERSON , lawyers practising in GPE .

s , may be summarised as follows .

Under LOC of DATE and Appendix I thereto , based on LAW of DATE , ORG and hotel apartments were charged with sewerage fees at the rate of CARDINAL of a cent for every pound of the assessed value of each building , whereas all other buildings in the same area were charged with fees at the rate of CARDINAL of a cent for every pound of the assessed value .

CARDINAL owners of hotels in GPE , including the applicants , lodged an application with ORG , sitting at first instance , seeking a ruling that ORG , and in particular Rule CARDINAL , as well as the decision of ORG ) rendering the applicants liable to pay their contribution for DATE , were unconstitutional , illegal and invalid . The applicants argued that ORG acted ultra vires because Rules CARDINAL and CARDINAL and Appendix I fell outside the scope of Law CARDINAL/CARDINAL .

By a judgment of DATE , ORG rejected the application considering that the above matter was a regulation and not an administrative decision concerning specific individuals , and thus could not be subject to judicial review according to LAW .

The applicants appealed to ORG , sitting as an appeal court , which on DATE quashed the judgment of CARDINAL DATE . ORG considered that LAW constituted an executory administrative act which could be challenged under LAW .

On DATE ORG , ruling on the merits of the case , considered that the applicants’ submission that LAW CARDINAL/CARDINAL was limited to contributions of a repayment character was unfounded . The court referred to a previous judgment ( PERSON ORG of GPE ) in which it had held that “ the rates in this case were plainly a tax . They constituted a compulsory exaction of money by a public authority for public purposes , enforceable by PERSON and were not a payment for services rendered ” . LAW did not link the power to levy a charge with the immediate availability of sewage services but expressly extended this levy to owners or occupants of immovable property which would benefit in the future from such services . Thus by levying a charge , after the initiation of works for a sewage system but before its completion , ORG had not acted ultra vires . The distinction made by the Rules between owners of hotels and hotel apartments , on the one hand , and owners of apartments in ordinary blocks of flats on the other was triggered by LAW , which permitted the imposition of different fees according to the nature of the property . This difference had been acknowledged in the case of ORG and Others v. ORG . ORG had then held that such a distinction was not only legally justified but also fair , having regard to the use and the benefits derived from the sewage system . Moreover , the number of tenants per square meter in hotel accommodation was , in comparison with other immovable property , much higher and , in proportion , the use of the sewage system was more extensive .

The case of ORG and Others had been brought by certain hotel owners ( including some of the applicants ) who claimed that the decision on their liability to pay sewage charges for DATE was unconstitutional . ORG had sent them notification of the charge and the hotel owners had refused to pay . They claimed that as ORG had not determined the fee due for DATE , it could not expect payment . Further , some parts of Law CARDINAL/CARDINAL were unconstitutional because they conflicted with LAW which provides for non - discrimination .


The case was referred to the ORG by ORG ( " the Commission " ) on DATE . It originated in an application ( no . CARDINAL ) against GPE lodged with the Commission by an NORP national , Mr PERSON , on DATE .

For the facts of the case , reference should be made to paragraphs CARDINAL - CARDINAL of the judgment delivered on DATE ( Series A no . CARDINAL-C , p. CARDINAL ) . In that judgment the ORG found a violation of LAW para . CARDINAL ( article CARDINAL ) of the LAW because civil proceedings brought on DATE , though not complex , remained pending ( ibid . , pp . CARDINAL - CARDINAL , paras . CARDINAL of the judgment , and point CARDINAL of the operative provisions ) . The ORG did not deem it necessary to consider also the complaint based on LAW No . CARDINAL ( PCARDINAL - CARDINAL ) ( ibid . , p. CARDINAL , paras . CARDINAL of the judgment , and point CARDINAL of the operative provisions ) .

Mr NORP did not make any pecuniary claim in respect of the violation of LAW para . CARDINAL ( article CARDINAL ) , nor did he seek reimbursement of the costs and fees incurred in the proceedings before the ORG and the ORG . He did , on the other hand , seek compensation in the amount of MONEY for pecuniary damage sustained as a result of the alleged breach of LAW No . CARDINAL ( PCARDINAL - CARDINAL ) .

The ORG dismissed this claim as matters stood , as it was still possible that the national courts would make reparation for the financial consequences of failing to try the case within a reasonable time ( ibid . , pp . CARDINAL - CARDINAL , paras . CARDINAL - CARDINAL of the judgment and point CARDINAL of the operative provisions ) .

In a judgment of CARDINAL DATE , which was filed in its registry on DATE and became final on DATE , ORG found against PERSON and awarded the respondent , Mr NORP , compensation in the amount of MONEY , representing the value of a parcel of land that had been unlawfully occupied by PERSON

The applicant informed ORG registry of this decision on CARDINAL DATE and supplied the text on DATE .

On DATE , as authorised by the President , Mr Zanghì filed his claim for just satisfaction .

On DATE observations were received from the Government and the ORG respectively ; the applicant replied to them on DATE .

On DATE the ORG re - entered the case in its list and decided not to hold a hearing .

As PERSON was unable to attend the deliberations on DATE , his place as President of the ORG was taken by PERSON ( Rule CARDINAL para . CARDINAL , second sub - paragraph ) ; Sir PERSON , substitute judge , replaced Mr Ryssdal as a member of ORG CARDINAL para . CARDINAL and CARDINAL para . CARDINAL ) .