Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 34;Pecuniary and non-pecuniary damage - award

András Sajó;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Karel Jungwiert;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Peer Lorenzen;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON .

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

NORP The applicant was a deputy mayor of PERSON and was also a lecturer at ORG in GPE . DATE and DATE he was held in the remand centre of ORG ( “ the NORP ” ) . On DATE he was transferred to ORG no . CARDINAL in PERSON ( also known as “ Prison no . CARDINAL ” , subsequently renamed “ Prison no . CARDINAL ” ) . The applicant suffers from a number of illnesses ( see paragraphs CARDINAL and CARDINAL below ) .

The applicant was accused in CARDINAL separate sets of criminal proceedings under LAW ) of the old LAW and LAW ( “ the LOC ) of abuse of power and acting in excess of authority ( excesul de putere sau depăşirea atribuţiilor de serviciu ; abuzul de putere sau abuzul de serviciu ) .

On DATE the ORG opened a criminal investigation concerning the applicant and on DATE he was taken into custody .

On DATE ORG issued a warrant for his arrest and detention for DATE . The reasons given by the court for issuing the warrant were that :

“ [ The applicant ] is dangerous to society . If released he may reoffend , destroy evidence or abscond from the law - enforcement authorities , obstruct the normal course of the investigation or the taking of evidence and influence evidence and witnesses . ”

On DATE the ORG upheld that decision . Judge PERSON dissented , finding no reason to detain the applicant as the prosecution had not submitted any evidence of the alleged danger of his absconding or interfering with the investigation . The applicant had a family and a permanent residence in PERSON , was ill and had no criminal record .

The applicant made habeas corpus requests on CARDINAL , CARDINAL and DATE , CARDINAL DATE and DATE and CARDINAL DATE , DATE and DATE . He relied on the following elements : his poor state of health ; the fact that he had no criminal record ; his impeccable reputation as a doctor of economics and a university lecturer ; the fact that his identity documents had been seized by the prosecuting authorities so that he could not leave the country ; the fact that his family and permanent residence were in PERSON ; the fact that he was supporting his CARDINAL-year - old mother who was an invalid ; the fact that he had the personal guarantee of CARDINAL wellknown persons ( who had already deposited CARDINAL NORP lei ( ORG ) and each of whom was prepared to pay the further ORG CARDINAL initially requested by the court ) ; and the lack of reasons for his arrest . All these requests were rejected on grounds similar to those cited in the decision of DATE .

On DATE the case file was submitted to the trial court .

On an unspecified date in DATE the prosecution submitted to the trial court a second case file in which the applicant was also identified as CARDINAL of the accused . The investigation into that case had begun on DATE . The investigators had twice closed it for lack of evidence ( on DATE and DATE ) but on both occasions a prosecutor had ordered its reopening . On DATE both cases were joined .

On DATE Judge PERSON , President of ORG , rejected the applicant 's request for release against the personal guarantee of CARDINAL well - known persons , without giving any reasons .

The applicant appealed but Judge PERSON refused to forward his appeal to ORG , on the ground that the law did not provide for an appeal against such decisions . The applicant submitted the appeal to ORG directly , which also refused to examine it for the same reason . A similar response was given to appeals lodged on DATE and DATE .

On DATE a third criminal case file was submitted to the trial court , accusing the applicant of abuse of power in his own personal interest . This case was also joined to the CARDINAL cases against the applicant referred to above .

On DATE the applicant was detained in the ORG remand centre . On DATE a medical advisory board examined the applicant 's medical file at his wife 's request and made the following diagnosis : type II diabetes ( insulin - dependent ) , polyneuropathy , diabetic angiospasm , stage II autoimmune thyroiditis , after - effects of trauma to the head with intracranial hypertension , vagovagal spasms , chronic obstructive bronchitis , recurrent chronic pancreatitis with endocrine failure , chronic active hepatitis and asthenic syndrome . On DATE the applicant 's wife informed the trial court of the findings of the medical board .

According to the applicant , the ORG remand centre had no medical personnel until DATE , when a general practitioner was hired to work there . He claimed that he had requested medical assistance on a number of occasions but had received treatment only from doctors from other institutions who visited him when there was an emergency . On DATE an ambulance was called to treat the applicant for acute hypertension . The doctor prescribed a consultation with an endocrinology specialist , who saw the applicant on DATE . The applicant also informed the prosecutor and the court of his special dietary and medical needs but received no reply . He submitted copies of complaints from his wife , his mother and a parliamentary group to the ORG authorities , ORG , the trial court , the President of GPE , the Minister of ORG and other authorities . The applicant 's wife received several formal replies , essentially informing her that her husband had been seen on a number of occasions by various doctors and that he would be given medical assistance should the need arise .

On DATE the applicant was seen by Doctor PERSON , a psychoneurologist , who concluded that his state of health was “ unstable with a slight improvement ” and that he needed to continue treatment under supervision . On DATE the applicant was transferred to the remand centre of Prison no . CARDINAL in GPE .

On DATE , in accordance with a court order , the applicant was examined by a medical board of ORG . GPE , a neurologist and member of the board , diagnosed him with encephalopathy , polyneuropathy of endocrinal origin , hypertension , peripheral vascular disease and inferior paraplegia . He recommended that the applicant be treated on an in - patient basis . Z.A. , an endocrinologist and member of the board , diagnosed the applicant with diabetes , macro- and micro - angiopathy , cardiomyopathy , arterial hypertension , diabetic steatorrhoeic hepatosis , thyroiditis , hypothyroiditis and encephalopathy . He recommended a special diet and treatment on an in - patient basis in specialised clinics ( endocrinology - cardiology - neurology ) . PERSON , head of ORG of ORG and a member of the board , diagnosed the applicant with ischaemic cardiomyopathy and mixed cardiopathy , unstable pectoral angina , prolonged attacks during DATE , third - degree arterial hypertension , second - degree congestive heart failure , hypertension and endocrinal renal failure , diabetic vascular disease and thoracic dilatation . PERSON recommended that the applicant be treated on an inpatient basis in a cardiology unit in order to investigate and prevent the risk of myocardial infarction . She considered it necessary to undertake anticoagulant treatment but noted that , given the risk of gastric haemorrhage , such treatment could take place only under conditions of strict supervision and with surgeons at hand to intervene if necessary .

On the basis of these recommendations , the trial court ordered the applicant 's transfer to a prison hospital .

On the basis of an order by ORG , Doctor PERSON , a neurologist from the NORP ORG of ORG ( “ the ORG ” ) , examined the applicant on DATE . He confirmed the earlier diagnoses and recommended complex treatment in a specialised neurological unit of ORG , including treatment with hyperbaric oxygen ( ORG ) therapy .

On CARDINAL DATE the director of the prison hospital where the applicant was being held informed the court of ORG 's recommendations and said that the applicant was being given the medication prescribed but not ORG therapy , which it was impossible to administer at the prison hospital due to the lack of the necessary equipment . He also informed the court that the applicant 's condition prevented him from attending court hearings .

On DATE ORG found that the condition of the applicant and of another co - accused had worsened , and suspended examination of their cases “ until recovery ” . The court did not respond to the applicant 's wife 's request for his release to allow treatment or to the abovementioned letter from the director of the prison hospital .

By letters of CARDINAL , DATE and DATE , DATE and CARDINAL DATE the director of the prison hospital again informed the court of the lack of the necessary equipment at the hospital for the treatment prescribed by GPE

On DATE and DATE a medical board of ORG which included doctors from the ORG examined the applicant and on DATE recommended , inter alia , ORG treatment in a specialised neurological unit .

On DATE the director of the prison hospital confirmed on the applicant 's behalf that the hospital did not have the necessary equipment for the recommended neurological treatment . That information was submitted to ORG .

On DATE ORG filed an amicus curiae brief with the court after visiting the applicant in hospital . It considered that the applicant 's state of health was irreconcilable with his conditions of detention and treatment and protested against the decision to suspend examination of the case pending his recovery .

In view of the findings of ORG medical board of CARDINAL DATE recommending that the applicant be treated in a specialised neurological unit , ORG on DATE ordered his transfer to the ORG , a ORG - run institution , for DATE . According to the Government , the usual period of treatment at the ORG in DATE was DATE .

On DATE the applicant requested ORG to order an expert report on his state of health before and after his arrest as well as his condition on the date of lodging the request . In its decision of DATE ORG rejected the applicant 's request on the ground that no doubts had been raised regarding his state of health .

On an unspecified date the applicant requested the ORG management to provide a description of his state of health and the treatment received . He received no answer . On DATE the court ordered the ORG to answer immediately and the court received its answer on DATE . In it , the ORG set out its diagnosis of the applicant 's condition and found that his health was unstable and that he needed further treatment . On DATE ORG extended the applicant 's treatment until DATE on the basis of the letter from the ORG .

According to a certificate issued by the ORG therapy unit of ORG ( “ the ORG ” ) , the applicant received CARDINAL ORG therapy sessions there starting on DATE . The applicant was prescribed a twelvesession course , scheduled to continue until DATE . According to the applicant , he was escorted from the ORG to the ORG DATE for the procedure and also began a course of acupuncture there . The applicant submitted a copy of the certificate to ORG , which on DATE decided that he should be transferred to the prison hospital . The court based its decision on the ORG 's letter of DATE , which stated that the applicant 's condition had stabilised and that he would be discharged on DATE . The applicant 's diagnosis as stated in the letter of CARDINAL DATE was as follows : serious , subcompensated type II diabetes ( insulindependent ) , diabetic retinopathy , autoimmune thyroiditis , hypothyroiditis , ischaemic cardiomyopathy , pectoral angina , second - degree arterial hypertension with very high risk , mixed cardiopathy , rare supraventricular extrasystolia , stage NORP dyscirculatory mixed encephalopathy , cerebral atrophy , pyramidal insufficiency , particularly on the right side , diabetic polyneuropathy and astheno - depressive syndrome . The letter also noted that the applicant 's continued detention would “ contribute to a permanent state of psycho - emotional tension which , in turn , [ would ] cause fluctuations in arterial pressure and blood - sugar levels ” . The same diagnosis was noted in the medical form for the applicant 's discharge from the ORG on DATE .

Since the ORG letter did not include ORG therapy among its recommendations for treatment , the court found the schedule of ORG treatment extending until DATE to be irrelevant .

On DATE ORG replied to ORG questions regarding the need to treat the applicant . The letter stated that on DATE the applicant 's medical records had been examined by a group of doctors , who found that he did not need in - patient treatment “ in any medical establishment , including the [ ORG ] ” and that he could be treated as an outpatient .

On DATE the applicant was examined by a psychotherapist , who diagnosed him with cerebral - organic asthenic disturbance , anxious - depressive disturbance of organic - psychogenic origin and severe existential stress .

On DATE the applicant was due to be discharged from the ORG . The medical form for the applicant 's discharge from the ORG on CARDINAL DATE repeated the diagnosis made on DATE , adding a diagnosis of prostate abscess . Amongst the recommendations made by the ORG was ORG treatment DATE . On DATE the trial court ordered the applicant 's transfer to ORG ( “ the ORG ” ) for DATE in order to receive ORG treatment . After the hearing the applicant lost consciousness and was taken by ambulance to ORG ( “ the ORG ” ) with suspected myocardial failure . As a result , the trial court amended its decision of the same date and ordered that the applicant be treated in the ORG .

In a letter of CARDINAL DATE the applicant submitted to ORG a certificate stating that on DATE he had been recognised as having a seconddegree disability .

On DATE the Minister of Health ordered the setting - up of a medical commission for the purpose of determining the applicant 's state of health during the period from DATE to DATE . The commission established that the applicant had been given all the treatment prescribed by the ORG while in detention in the prison hospital . It further found that ORG treatment had not been required in the applicant 's case but was simply an additional treatment for diabetes and its complications . The interruption of the applicant 's ORG treatment had not affected his state of health , as proved by his stable blood - sugar levels before and after interruption .

On DATE the trial court rejected a habeas corpus request made by the applicant , on the following grounds :

“ ... the reasons for prolonging the accused 's detention pending trial remain valid because the charges against him are based on circumstances not yet examined by the court , and altering the preventive measure may hinder the establishment of the truth in the criminal trial . ”

On DATE the applicant made another habeas corpus request , relying on Articles CARDINAL and CARDINAL of the LAW and emphasising that while examination of his case had been suspended pending his recovery , he had been refused the medical treatment necessary to ensure such recovery . The court postponed examination of the request . Examination of the request was again postponed on DATE for an indefinite period .

On DATE Judge PERSON was absent and examination of the case was postponed . On DATE other members of the court were absent and examination of the case was once more postponed .

On DATE the applicant requested a copy of the court transcripts of CARDINAL and DATE and informed the court of the worsening of his condition . The request was refused . On DATE ORG informed the applicant that examination of his habeas corpus request had been postponed pending an answer from ORG to its enquiry of DATE regarding his condition .

On DATE ORG rejected the applicant 's habeas corpus request “ because the reasons for prolonging his detention remain valid ” . The court also rejected the applicant 's complaint that the inadequate medical treatment he had received amounted to inhuman and degrading treatment :

“ ... because the representative of the [ prison hospital ] declared that [ the applicant ] had been given the necessary medical treatment on an in - patient basis ; there is no evidence of inhuman or degrading treatment . ”

At the same time , however , the court ordered the applicant 's transfer to the ORG ( see paragraph CARDINAL above ) .

DATE . On DATE an appeal by the applicant against the refusal of his habeas corpus request was not examined , the court finding that no further appeal was possible . The court also rejected his request for a medical examination to establish his current state of health and the manner in which he had been treated during his detention .

On DATE the applicant made another habeas corpus request challenging , inter alia , the persistence of any reasonable suspicion justifying his continued detention . He referred to the finding of a violation of LAW in the case of ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) as a new circumstance warranting reexamination of the need to detain him . The court rejected the request , finding that it could not be submitted until DATE at least after the last such request had been examined . It also found that the judgment referred to was not a new circumstance , as it related only to Mr ORG and not to the applicant .

On DATE the applicant asked ORG to order his continued treatment at the ORG or his release based on his habeas corpus request . The court rejected the request to continue treatment at the ORG ( see paragraph CARDINAL above ) and did not examine the habeas corpus request .

On DATE ORG rejected the applicant 's habeas corpus request of DATE , finding that :

“ ... not all the evidence has been examined ; [ the applicant ] has worked as a deputy mayor of PERSON and continues to have influence over witnesses yet to be questioned ; he may obstruct the presentation to the court of authentic evidence still being kept by GPE . ”

On DATE the applicant 's detention pending trial was replaced with an obligation not to leave his city of residence .

On TIME the ORG indicated by facsimile to ORG an interim measure under Rule CARDINAL of ORG , stating that “ the applicant should not be transferred from the [ ORG ] . This interim measure will be valid until ORG will have the opportunity to examine the case , i.e. until DATE at the latest ” . The same message was sent several times by facsimile during the morning of DATE . On DATE , the Deputy Registrar of the Fourth Section made several calls to the telephone numbers indicated by ORG , but received no response .

On TIME DATE the applicant 's lawyer requested the trial court to stay execution of its decision of DATE and to prevent the applicant 's transfer from the ORG . He submitted a copy of the facsimile from ORG the interim measure . ORG did not hold a hearing and did not reply to his request . The applicant was finally transferred to the prison hospital on DATE .

On DATE the applicant 's lawyer informed the President of ORG ( PERSON ) of the failure of Judge PERSON , President of ORG , to examine his request of DATE , and asked for urgent action in order to ensure compliance with the ORG 's directions for interim measures . On DATE the lawyer submitted a similar request to the Agent of ORG before the ORG and to ORG , noting that the prosecutor in charge of the case had supported the applicant 's request to continue being treated at the ORG . He also noted that the decision to transfer the applicant to the prison hospital had not been enforced by CARDINAL a.m. , when he had lodged his request with ORG .

On DATE and following ORG request , ORG ordered the applicant 's readmission to the ORG until CARDINAL DATE . The subsequent events are disputed by the parties . According to the applicant , he was brought to the ORG at TIME , but for TIME the management refused to admit him . When the applicant began to feel ill , the management admitted him after TIME . According to the Government , the applicant was admitted on DATE ORG ordered his admission and the delay resulted from the doctors ' view that the applicant did not require further treatment at the ORG . ORG personally oversaw execution of the order .

The applicant submitted a copy of a news report broadcast on the PRO - TV television channel , which showed the events at the ORG . The reporter stated that the applicant had been kept waiting for TIME for a decision and that he had finally been admitted after TIME . The doctors informed the reporter that they had refused initially to admit the applicant because they did not have his personal medical file , and had admitted him only when the medical file was brought to them . In an interview given to the same reporter , ORG stated that the reason for the delay in admitting the applicant had been “ certain technical , organisational issues ” . This was confirmed by a statement from the deputy head of ORG .

On DATE ORG informed the applicant 's lawyer , in response to his letter of DATE , that ORG had been officially informed of ORG directions for interim measures via a facsimile from ORG on DATE at TIME Following an urgent court hearing , the trial court had ordered the applicant 's readmission to the ORG .

The relevant provisions of LAW ( “ the ORG ” ) read as follows :

“ CARDINAL . Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond , obstruct the establishment of the truth during the criminal proceedings or reoffend ; alternatively , they can be applied by the court in order to ensure the enforcement of a sentence .

Detention pending trial and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding DATE . In cases concerning offences in respect of which the law provides for a custodial sentence of DATE , they may be applied if ... the accused has already committed the acts mentioned in paragraph CARDINAL .

NORP In deciding on the necessity of applying preventive measures , the prosecuting authority and the court shall take into consideration the following additional criteria :

( CARDINAL ) the nature and degree of harm caused by the offence ;

( CARDINAL ) the character of the ... accused ;

( CARDINAL ) his / her age and state of health ;

( CARDINAL ) his / her occupation ;

( CARDINAL ) his / her family status and the existence of any dependants ;

( CARDINAL ) his / her economic status ;

( CARDINAL ) the existence of a permanent place of abode ;

( CARDINAL) other essential circumstances ... ”

“ CARDINAL . Requests ... shall be examined and decided upon immediately after being lodged . If the authority to which the request is addressed can not decide upon it immediately , it shall give its decision within DATE from the date of receipt . ... ”

Following the entry into force of the new Code of Criminal Procedure on DATE , the first - instance courts were obliged to ensure that a judge was on duty at DATE and on DATE to deal with any urgent matters . According to a certificate issued by the President of ORG , that court had put in place a duty roster of this kind .

In its judgment in PERSON ( judgment of DATE , ICJ Reports DATE , § § CARDINAL - CARDINAL ) ) , ORG decided that :

“ CARDINAL . As regards the question whether GPE has complied with the obligation incumbent upon it as a result of LAW , the ORG observes that the Order indicated CARDINAL provisional measures , the first of which states that

' [ GPE should take alCARDINAL measures at its disposal to ensure that PERSON is not executed pending the final decision in these proceedings , and should inform ORG the measures which it has taken in implementation of this Order ' .

The second measure required the Government of GPE to ' transmit this Order to the Governor of GPE . ... ORG had transmitted to the Governor of GPE a copy of ORG . ...

GPE authorities have thus limited themselves to the mere transmission of the text of the Order to the Governor of GPE . This certainly met the requirement of the second of the CARDINAL measures indicated . As to the first measure , the ORG notes that it did not create an obligation of result , but that GPE was asked to ' take alCARDINAL measures at its disposal to ensure that PERSON is not executed pending the final decision in these proceedings ' . The ORG agrees that due to the extremely late presentation of the request for provisional measures , there was certainly very little time for GPE authorities to act .

The ORG observes , nevertheless , that the mere transmission of its Order to the Governor of GPE without any comment , particularly without even so much as a plea for a temporary stay and an explanation that there is no general agreement on the position of GPE that orders of ORG on provisional measures are non - binding , was certainly less than could have been done even in the short time available . ...

It is also noteworthy that the Governor of GPE , to whom ORG had been transmitted , decided not to give effect to it , even though ORG had recommended a stay of execution for PERSON .

Finally , ORG rejected a separate application by GPE for a stay of execution , ' [ g]iven the tardiness of the pleas and the jurisdictional barriers they implicate ' . Yet it would have been open to ORG , as one of its members urged , to grant a preliminary stay , which would have given it ' time to consider , after briefing from alCARDINAL interested parties , the jurisdictional and international legal issues involved . . . ' ( GPE et al . v. GPE et al . , ORG , DATE ) .

The review of the above steps taken by the authorities of GPE with regard to LAW DATE indicates that the various competent GPE authorities failed to take DATE the steps they could have taken to give effect to ORG . The Order did not require GPE to exercise powers it did not have : but it did impose the obligation to ' take alCARDINAL measures at its disposal to ensure that PERSON is not executed pending the final decision in these proceedings ... ' . The ORG finds that GPE did not discharge this obligation .

Under these circumstances the ORG concludes that GPE has not complied with LAW . ”


CASE OF GROPPERA RADIO AG AND OTHERS v. SWITZERLAND

No violation of Art. 10;Not necessary to examine Art. 13

ORG , a limited company incorporated under NORP law , has its registered office at GPE ( GPE of GPE ) and produces radio programmes .

Mr PERSON , Mr PERSON and Mr PERSON are all NORP nationals . Mr GPE is a publisher and lives at GPE ; he runs ORG and is its statutory representative and sole shareholder . PERSON , who is a journalist and an employee of ORG , lives at ORG ( GPE of GPE ) . Mr PERSON is likewise employed by the company as a journalist and lives at FAC but also has a home in GPE .

ORG In DATE an NORP private limited company , PERSON . , built a radio station on the ORG - a QUANTITY peak in GPE , near GPE , QUANTITY kilometres from the NORP border - for ORG predecessor , ORG ( see paragraphs CARDINAL below ) . The station used a QUANTITY transmitter and a directional aerial with a gain of QUANTITY , such that the apparent power radiated was of the order of CARDINAL kW. Using this transmitter , the most powerful in LOC , the station broadcast to GPE over a distance of QUANTITY km to the north - west and thus reached CARDINAL of the country ’s population , mainly in the GPE area .

ORG From DATE to CARDINAL DATE the ORG station was managed by ORG . but operated by its owner , ORG , a company that Mr PERSON had set up in order to evade the ORG broadcasting monopoly in GPE . The programmes , which were broadcast on VHF and were wholly financed by NORP advertisers , were intended for listeners DATE .

ORG On DATE ORG adopted an Ordinance on local radio trials , thereby ending the monopoly of ORG . CARDINAL applications were made for trials of this kind , including CARDINAL by ORG , which wanted to serve the GPE area .

ORG On DATE ORG issued CARDINAL licences . CARDINAL of these went to ORG , but it was issued on condition that the broadcasts from the ORG should cease after CARDINAL DATE .

Mr Schawinski agreed to this but sold the station on the PERSON to Mr Marquard .

ORG From DATE ORG used the ORG station to broadcast , under the name of ORG , a slightly altered schedule to the GPE area , on the frequency that had been used by ORG . These programmes could be received not only by the owners of car radios and other personal sets but also by cable - network companies , which retransmitted them . They consisted of light music , information bulletins , commercials and programmes in which the programme - makers and listeners communicated directly or indirectly with each other by telephone or over the air . Like ORG , ORG broadcast only in the GPE dialect .

ORG NORP local radio stations began broadcasting from DATE and attracted a large number of listeners . They came into competition with ORG , mainly because they could finance themselves through advertising , subject to certain conditions . An opinion poll carried out in the GPE area and published on DATE showed that ORG reached PERCENT of listeners and ORG .

ORG On DATE ORG issued an LAW relating to the LAW governing correspondence by telegraph and telephone ( " the DATE Ordinance " ) to replace another of DATE . It came into force on DATE and contained general provisions applicable to the licensing scheme .

It created a third category of licence for receiving installations - community - antenna installations - which was additional to categories CARDINAL ( private receiving ) and CARDINAL ( public receiving ) . By LAW ,

" A community - antenna licence shall entitle the holder to :

( a ) operate the local distribution network defined in the licence and rebroadcast by this means radio and television programmes from transmitters which comply with the provisions of LAW of DATE and the international ORG and with those of the international conventions and agreements concluded within ORG ;

ORG From DATE most of the NORP cable companies ceased to retransmit the programmes put out by ORG .

Some of them , however , including the community - antenna co - operative of PERSON and the surrounding district ( PERSON - " the co - operative " ) , continued to broadcast them .

ORG On DATE the GPE area telecommunications office of the national ORG ( PTT ) informed the co - operative that ORG broadcasts , since they did not comply with the international rules in force , were unlawful , so that under LAW DATE Ordinance retransmission was not covered by the community - antenna licence . It added that the co - operative would be committing an offence if it continued to retransmit them , and it required the co - operative to cancel within DATE all the technical arrangements made for receiving and broadcasting the programmes in question .

ORG On DATE this order was confirmed by the national head office of the PTT .

ORG The co - operative and CARDINAL of its subscribers challenged this decision by bringing an administrative - law appeal in ORG .

ORG On DATE the ORG transmitter was damaged by lightning . It ceased broadcasting and has never resumed since , although the applicants claimed that the damage was quickly repaired . Later , in an interview published in the LOC GPE on DATE , Mr Marquard acknowledged that he had made an error of business judgment in acquiring the radio station .

ORG joined the appeal by filing pleadings on DATE . It claimed that it too was a victim of the provisions of the DATE Ordinance concerning community - antenna licences , as the restrictions they imposed considerably reduced the number of its listeners , thereby cutting its revenue and jeopardising its financial survival .

ORG On DATE ORG informed the parties that it had learned that the ORG transmitter had been destroyed and would apparently not be repaired . As there was no interest in pursuing the proceedings , the court proposed striking out the appeals without taking a decision on the merits ( " die Beschwerde ohne LOC abzuschreiben " ) .

The applicants refused to consent to this .

ORG gave judgment on DATE , after deliberating in public on DATE .

It ruled that the appeals were admissible inasmuch as they were directed not against the ban on retransmission itself but against the sanctions imposed by the PTT for disregarding the ban .

It went on to dismiss the appeals for the following reasons ( translated from NORP ) :

" CARDINAL . The ORG can normally only hear an administrative appeal if the appellant has a live ( present or future ) interest in taking proceedings . If the interest in taking proceedings has ceased to exist , the case becomes purely academic and must not continue unless special circumstances require a decision on the merits , for example where it would otherwise not be possible to give a binding ruling on matters of principle in time ...

( a ) the PERSON community - antenna co - operative and its subscribers have only a contingent interest in taking proceedings , depending on whether ORG is going to resume broadcasting ; so long as there are no broadcasts , there is nothing to feed into the cable network . If it is highly unlikely that the broadcasts will be resumed , there is no need to examine the merits of the appeal .

ORG claimed to have made all the arrangements necessary for restarting its broadcasts in the event of the present appeal ’s being held to have a suspensive effect ( or of its succeeding ) . That statement , however , was unsupported by any evidence , although the burden of proof is on the appellant in this regard and ORG ’s submission is open to serious doubt . The company claimed to have ceased its broadcasts - independently of the consequences of the station ’s having been struck by lightning - because of the PTT ’s ban on retransmission . Other reasons may have weighed more heavily , however . With the arrival of experimental local radio stations and a third frequency for ORG [ ORG und Fernsehen der deutschen und rätoromanischen GPE ] , the transmitter on ORG had to face serious competition , including that from ORG ; the transmitter ’s survival is accordingly no doubt in jeopardy irrespective of the ban on retransmission . That being so , ORG gratuitous statement that it was ready to resume its activities is not sufficient to prove that the PERSON community - antenna co - operative and its subscribers have a live interest in taking proceedings . It follows that there is no need to examine the merits of their appeal .

The ORG does not need to determine the question whether there might be a live interest if the transmitter resumed or had already resumed its broadcasts , which are incompatible with international telecommunications law - subject to any contrary decision by the NORP courts and , possibly , by an international court of arbitration .

( b ) For the same reasons there is no need to consider the merits of the appeal brought by ORG .

The company can not plausibly maintain that if its appeal succeeded , it would resume its activities - which have been made impossible , short of new investment , by a storm that occurred after the appeal was brought - and would , furthermore , have the financial means to do so .

Moreover , this case is a wholly exceptional CARDINAL . Transmitters which broadcast in contravention of national or international law can not usually survive for long . Matters are different as regards the PERSON transmitter only because proceedings are still pending in GPE and because hitherto none of the means of settling disputes provided for in LAW ... has been used . It is unlikely that a second case of this kind will arise , if only because of the doubtful profitability of such transmitters . There is therefore insufficient justification for determining , with an eye to the future , the issues raised by the case , some of which are extremely sensitive .

In any case , even if it were to be held that ORG had a possible interest in taking proceedings , its claim to retransmit again , through the co - operative ’s cable network , its probably unlawful ... broadcasts , after resuming them , would not deserve the law ’s protection . "

Lastly , the court made an order for costs against ORG since its appeal could not succeed as the company had breached the law by attempting to circumvent a ban on retransmission that had been imposed by the PTT and that , moreover , did not concern it directly .

ORG From DATE ORG predecessor ) broadcast to GPE from ORG ( see paragraph CARDINAL above ) . On several occasions it changed its frequency in order to prevent interference with other radio stations .

On DATE , following complaints from the NORP and NORP telecommunications authorities , ORG prohibited GPE . ( the manager of the station - see paragraph CARDINAL above ) from continuing its operations and threatened to put its transmitter out of action . The transmitter closed down on DATE , was functioning again DATE and then ceased broadcasting on DATE .

ORG Belton s.r.l . brought proceedings in ORG , which on DATE refused an application for a provisional broadcasting licence .

ORG On DATE the Chiavenna magistrate declared that the closing down of the transmitter was unlawful , and broadcasting resumed on DATE .

ORG On DATE the PTT again demanded that the broadcasts should cease . On DATE a second application ( no . PERSON ) was made to ORG , but on DATE that court refused a stay of execution . On DATE the ORG transmitter closed down for the third time .

On DATE the Consiglio di Stato granted an application for a stay of execution pending the proceedings in ORG , and ORG began broadcasting again on DATE .

ORG In a judgment ( no . CARDINAL/CARDINAL ) of DATE , which was filed at the registry on DATE , ORG held that ORG was carrying on its activities in GPE unlawfully . The ORG station could not be considered as a local radio station under NORP law , since it had a broadcasting radius of QUANTITY and broadcast only to listeners living across the border . The court added that under PERSON no . CARDINAL of DATE ( " new provisions concerning radio and television broadcasting " ) , the ORG had a monopoly of radio broadcasts intended for foreign countries . Lastly , the court upheld the closure order , which was executed on DATE .

ORG On DATE , following an appeal by PERSON . , the PERSON adopted CARDINAL decisions , the first of which was filed at the registry DATE and the other CARDINAL on DATE :

( i ) an order ( no . CARDINAL ) staying execution of the judgment of DATE , so that ORG was able to resume broadcasting on DATE ;

( ii ) a judgment ( no . CARDINAL/CARDINAL ) allowing the appeal in part and reserving a decision as to the rest ; and

( iii ) an order ( no . CARDINAL/CARDINAL ) referring the case to ORG - as sections CARDINAL , CARDINAL and DATE of the DATE Law appeared to raise a constitutional issue - and staying the proceedings .

ORG gave its decision on CARDINAL DATE in a judgment ( no . CARDINAL/CARDINAL ) which was filed at the registry on DATE It declared section CARDINAL(CARDINAL ) of the impugned PERSON to be unconstitutional as it did not make any provision for the possibility of broadcasting programmes abroad under licences issued to private companies by the ORG authorities .

ORG The International Telecommunication Convention , which was concluded in ORG on DATE and revised on DATE , has been ratified by all ORG member GPE . In GPE it has been published in full in the Official Collection of Federal Statutes ( DATE , p. CARDINAL , and DATE , p. CARDINAL ) , and in ORG ( CARDINAL ) .

Article CARDINAL , entitled " Rational Use of the Radio Frequency Spectrum " , provides :

" Members shall endeavour to limit the number of frequencies and the spectrum space used to the minimum essential to provide in a satisfactory manner the necessary services . To that end they shall endeavour to apply the latest technical advances as soon as possible . "

LAW reads :

" All stations , whatever their purpose , must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members or of recognised private operating agencies , or of other duly authorised operating agencies which carry on radio service , and which operate in accordance with the provisions of LAW . "

The ORG is supplemented and clarified by CARDINAL sets of administrative rules : ORG , LAW and ORG . Only the first of these is relevant in the instant case .

ORG date from DATE and were likewise amended in DATE and also on other occasions . They run to CARDINAL pages and - except for numbers CARDINAL and CARDINAL - have not been published in ORG . The latter contains the following reference to them :

" The administrative regulations relating to LAW of DATE are not being published in ORG . They may be consulted at ORG , ORG and ORG , Viktoriastrasse CARDINAL , ORG , or may be obtained from the ORG , ORG , ORG , GPE . "

Apart from number CARDINAL ( see paragraph CARDINAL below ) , the provisions of ORG relevant to the present case are the following :

" No transmitting station may be established or operated by a private person or by any enterprise without a licence issued in an appropriate form and in conformity with the provisions of these Regulations by the Government of the country to which the station in question is subject ... "

" In principle , except in the frequency band QUANTITY , broadcasting stations using frequencies below QUANTITY or QUANTITY shall not employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned . "

ORG By number CARDINAL of ORG ,

" Broadcasting stations in the band QUANTITY MHz in GPE CARDINAL shall be established and operated in accordance with an agreement and associated plan for the band QUANTITY to be drawn up by a regional broadcasting conference ( see Resolution CARDINAL ) . Prior to the date of entry into force of this agreement , broadcasting stations may be introduced subject to agreement between administrations concerned , on the understanding that such an operation shall in no case prejudice the establishment of the plan . "

ORG The work of the conference contemplated in this provision resulted in the adoption in DATE of a regional convention better known under the name of the ORG plan . This instrument , which was superseded in DATE by the " GPE plan " , governed the use of the QUANTITY MHz frequency band and laid down a procedure for considering new applications for frequency allocations ; it also indicated the position and characteristics of the transmitters concerned .

ORG Unlike GPE , GPE has not acceded to the plan . Nor have the CARDINAL countries concluded an individual agreement as required before a transmitter can broadcast from CARDINAL national territory to another .

ORG never jammed the broadcasts from the Pizzo Groppera in order to stop them . They did , however , make approaches to the NORP authorities and to ORG .

ORG CARDINAL delegations , CARDINAL NORP and CARDINAL NORP , met in GPE on DATE and DATE to study the " problem of external transmitters situated on NORP territory and broadcasting programmes to GPE " . TIME of the meeting mentioned the following points :

" CARDINAL . The NORP delegation confirmed that on DATE the ‘ FAC delle ORG Telecomunicazioni’ sent a warning to ORG ( Signor PERSON ) in GPE , and receipt of the document was acknowledged on DATE . The document stated that the transmitter had to confine the scope of its activities to NORP territory . Those in charge of the station had DATE in which to comply with this order , failing which their transmitter would be put out of action ( disattivazione ) . The NORP delegation expected immediate action . In accordance with the agreements concluded in GPE on CARDINAL and DATE , the NORP delegation assured the NORP delegation that ORG would pursue the course of action already embarked on with the despatch of the warning ( diffida ) , in order to halt the broadcasts to GPE . The NORP delegation stated nonetheless that if nothing was done by DATE and if the broadcasts still continued , the case would have to be submitted to ORG ( ORG ) .

As regards the external transmitters which were disrupting broadcasting in GPE , some measure of agreement was reached . The NORP side had already taken measures to implement the rules in force . One transmitter had even temporarily ceased functioning . Future arrangements would be examined on a case - by - case basis by the representatives of the CARDINAL authorities , i.e. Mr PERSON for GPE and Mr GPE .

The NORP delegation insisted on measures being taken , in accordance with the international agreements , against other transmitters sited in GPE which broadcast programmes intended mainly for GPE . The NORP delegation , which was willing to settle the problem in accordance with its international commitments , said that it could not for the time being participate in any official co - ordination procedure , mainly because there was currently no legal basis for it .

The NORP delegation confirmed its position vis - à - vis the international agreements and stressed the need for them to be applied unrestrictedly by the co - signatory countries .

Given the importance of the issues in question , the CARDINAL delegations decided to continue their negotiations DATE . "

ORG In a letter of CARDINAL DATE ORG ( Head Office of the PTT ) submitted a request for assistance to the chairman of ORG ( ORG ) .

It indicated inter alia :

" In GPE , especially in LOC , there are a large number of private radio and television broadcasting stations transmitting on frequencies which have not been co - ordinated with ORG . This state of affairs contravenes Articles CARDINAL and CARDINAL of the regional broadcasting agreements ( ORG , GPE DATE ) and numbers CARDINAL and CARDINAL of ORG , international agreements to which the NORP and NORP authorities are parties .

Some of these stations broadcast programmes and advertising designed for listeners in neighbouring NORP towns and employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned , contrary to number DATE of ORG . Furthermore , these private stations interfere with the proper functioning of NORP radio services . To give a better picture of the situation , we are enclosing copies of the reports of harmful interference that we have sent to the NORP authorities ( since DATE ) , pursuant to LAW , LAW of ORG . You will also find a summary table of NORP private radio stations which , through their presence on the airwaves , are preventing the implementation of our frequency allocations .

For DATE now , the various representations made by the NORP PTT to the NORP authorities with a view to a co - ordination of effort have unfortunately produced no significant result . It is for this reason that before , if need be , taking the steps provided for in LAW , number CARDINAL , of ORG ( GPE , DATE ) , the NORP authorities request ORG to take , as soon as possible , all necessary measures to remedy this situation . "

ORG On DATE the chairman of ORG sent ORG of the NORP PTT a copy of a letter sent the same day to ORG informing it that frequency allocations were being used in breach of ORG and regional agreements .

The most recent of the ORG ’s representations to the NORP authorities was made in a telefaxed message on DATE , which read :

" CARDINAL . ORG has yet to receive any information about the solution of the cases of harmful interference reported by the NORP authorities . Similar cases of harmful interference have recently been reported by the authorities of CARDINAL other GPE .

On behalf of ORG I wish to express serious concern at the apparent lack of progress in eliminating the harmful interference caused to radio and television broadcasting stations in GPE and at the fact that a chaotic situation seems to have developed in the region which , to say the least , renders the existing international treaties nugatory .

In your letter of CARDINAL DATE you informed ORG that an agreement had been reached with the NORP authorities , but no practical measure seems to have been taken . Your GPE has not yet replied to the ORG ’s letters of CARDINAL DATE , CARDINAL DATE and DATE and has not submitted any comments - as it was required to do under ORG [ ORG ] CARDINAL - on the ORG ’s investigation pursuant to ORG CARDINAL and RR CARDINAL into the harmful interference caused to the NORP authorities’ radio and television broadcasting stations which was reported to you in the ORG ’s letter of CARDINAL DATE .

ORG wishes to draw your ORG ’s attention to the extremely serious situation currently prevailing .

In particular :

( I ) The ORG has concluded that the NORP authorities have failed to comply with the obligations which they freely undertook to fulfil in the International Telecommunication Convention , ORG and the regional agreements .

( II ) CARDINAL NORP stations are currently causing persistent harmful interference to officially authorised stations in CARDINAL neighbouring countries .

( III ) No means has been found of reducing this major interference , which continues to increase .

( IV ) There has been no specific reply to the ORG ’s letters .

In view of this situation , which has existed for DATE now and has recently become alarmingly serious , ORG is bound to consider taking further measures with a view to overcoming the serious consequences for the authorities of GPE , GPE and GPE of the NORP authorities’ failure to fulfil their obligations .

Copies of this telefax are being sent to the authorities of GPE , GPE and GPE . "

The ORG never received any reply from the NORP authorities .


The applicant is a NORP national , born in DATE , and living in GPE . She is represented before ORG by PERSON , a lawyer practising in GPE .

A.

The applicant and her husband have CARDINAL sons , born in DATE and DATE respectively , and CARDINAL daughters , born in DATE and DATE respectively .

Pursuant to the relevant rules of NORP law , these children bear the surname of the applicant ’s husband . As the applicant and her husband wished their sons to bear the surname of their father and their daughter to bear the surname of the applicant , the applicant filed a request on DATE to change the surname of her , at that time still unborn , daughter .

On DATE , the ORG Secretary of ORG ( ORG ) rejected the applicant ’s request . The applicant ’s subsequent appeal to ORG ( Arrondissementsrechtbank ) of GPE was rejected on DATE . The applicant filed a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) .

It recalled that the ORG Secretary had based the refusal of the applicant ’s request on a finding that the relevant rules on the chance of surnames did not foresee in a request like the applicant ’s one and that it had not been established that there were such special circumstances on the basis of which a strict application of the relevant rules would not be acceptable ex aequo et bono . It further noted that ORG had also not found such circumstances .

Insofar as the applicant argued that the NORP rules on surnames are contrary to LAW in that they amount to a discriminatory treatment between men and women , ORG held that the request at issue only concerned one of the applicant ’s children whereas no such request had been made for her other CARDINAL children . The refusal at issue was not found to be discriminatory as it achieved that all children having the same parents bear the same surname and that therefore no difference between boys and girls was made . Moreover , in GPE DATE amending Articles CARDINAL and CARDINAL of Book I of the Civil Code ( Burgerlijk Wetboek ) , the legislator had , in the meantime , created the possibility for parents to choose themselves which of their respective surnames their children will bear , albeit with the restriction that all of their children must bear the same surname . It held that this restriction was in conformity with its consideration as to the alleged discriminatory character of the refusal of the applicant ’s request .

As to the applicant ’s argument that the refusal of her request was in violation of LAW , the Administrative Law Division held that there was no interference , as such , with the applicant ’s rights under this provision in that the refusal did not alter the applicant ’s personal situation or her family life with her daughter . As to the question whether the GPE were under a positive obligation under LAW to grant the applicant ’s request , it was held that the applicant ’s personal interest , i.e. the continuation of her family name by her daughter ’s surname , was outweighed by the general interest in preserving the stability required in the legal rules governing names ( “ de handhaving van de nodige stabiliteit in het namenrecht ” ) and that , therefore , the GPE authorities were not under a positive obligation to grant the applicant ’s request .

B. Relevant domestic law and practice

Until DATE , a child born in wedlock or a child whose father had recognised his paternity automatically obtained the father ’s surname . Only limited possibilities existed to obtain change of one ’s surname .

On DATE , as a result of the entry into force of the Act of DATE amending Articles CARDINAL and CARDINAL of Book I of the Civil Code , the rules governing surnames were changed .

Under the new situation , married parents may make a joint formal declaration , either before or when formally registering the birth of their first child , stating whether the child will bear the surname of the father or the mother . This declaration will continue to apply to any children born subsequently to the couple . In the absence of any declaration , a child will automatically obtain the father ’s surname .

If the parents are not married , the child will obtain the mother ’s surname ; also where the father has recognised his paternity . If unmarried parents wish their child to bear the father ’s surname , a joint formal declaration to this effect must be made at the time of the father ’s recognition of his paternity .

The change in the law also included transitory rules in respect of children born before DATE , provided that the oldest child , at the time the parents make their formal declaration , has not yet attained DATE . These transitory rules remained in force until DATE . Under these transitory rules , parents may make a joint formal declaration to the effect that their child or children bear the mother ’s surname . Any children born subsequently to the couple will then automatically obtain the mother ’s surname .