SVOBODEN ZHELEZNICHARSKI SINDIKAT 'PROMYANA' v. BULGARIA

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant , PERSON “ NORP ” , is a trade union having its head office in GPE , GPE . It was represented before the Court by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

NORP The applicant trade union is open to employees of ORG ” ORG . At the material time it was CARDINAL of the CARDINAL trade unions operating in that company .

At a meeting held on DATE between the company ’s director general and representatives of the CARDINAL unions it was agreed that CARDINAL collective agreement would be negotiated and entered into . CARDINAL of the unions had already prepared a draft proposal . The director general invited all trade unions to declare in writing before DATE whether they wished to come forward with CARDINAL draft collective agreement , with a view to deciding whether or not to call a general meeting of staff to approve a joint draft collective agreement ( see paragraph CARDINAL below ) .

On DATE the company convened a general meeting of staff . The meeting took place on DATE , apparently without the participation of members of the applicant trade union , and resolved to approve the draft collective agreement put forward by the CARDINAL unions .

On DATE the chairman of the applicant trade union wrote to the company ’s director general , saying that the union agreed with the draft put forward by the other CARDINAL unions and insisting , by reference to ORG and CARDINAL § CARDINAL ( CARDINAL ) of LAW ( see paragraphs CARDINAL and CARDINAL below ) , that the union was to be invited to join the negotiations between the other unions and the company .

On DATE the chairman of the applicant trade union sent the company ’s director general a letter in identical terms .

It is unclear whether the company ’s director general replied to those letters , but it appears that the applicant trade union did not take part in the negotiations concerning the collective agreement .

On DATE the company entered into a collective agreement with the CARDINAL unions which had initially put forward a draft . The agreement provided that employees who were not members of those CARDINAL unions could join it by making a request in writing and agreeing to pay a DATE fee of PERCENT of their salary . The proceeds were to be collected by the company and used for social payments to employees in need .

In the meantime , on DATE the applicant trade union brought a civil claim against the company , seeking a judicial declaration that the resolution of the general meeting of staff approving the draft collective agreement was unlawful . On DATE the ORG discontinued the proceedings . On an appeal by the applicant trade union , on DATE ORG upheld that decision . The union appealed further . In a final decision of DATE ( опр. № CARDINAL от DATE г. по гр. д. № CARDINAL г. , ORG , ORG г. о. ) , ORG also upheld the discontinuance . It found that a trade union which had not taken part in a staff meeting for the adoption of a collective agreement could not seek the annulment of the resolution approving that agreement . Under LAW ( see paragraph CARDINAL below ) only the parties to a collective agreement were entitled to seek its annulment .

Article CARDINAL § CARDINAL of the DATE LAW proscribes restrictions of rights or privileges on grounds of race , nationality , ethnic identity , sex , origin , religion , education , opinions , political affiliation , or personal , social or property status .

Article CARDINAL § CARDINAL of the LAW provides that workers are free to form trade unions for the protection of their interests in relation to employment and social security .

Article CARDINAL of LAW , as worded DATE and DATE , provided that in the exercise of their employment rights those concerned could not be subjected to direct or indirect discrimination , be granted privileges or be subjected to restrictions based on their nationality , sex , race , skin colour , age , political or religious convictions , membership in trade unions or other associations or movements , family , social or material status , or invalidity . An amendment which came into force on CARDINAL DATE slightly modified the wording of the provision and expanded the list of grounds of discrimination by adding to it origin , sexual orientation , psychological handicaps , and differences in the term of the employment contract or in the working time .

Article CARDINAL § CARDINAL of LAW , as amended with effect from DATE , provides that trade unions represent workers before the authorities and employers and protect their rights in relation to employment , social security and the standard of living through , inter alia , collective bargaining , strike action or other lawful actions .

Collective bargaining and collective agreements are governed by ORG CARDINAL of the Code , as amended with effect from DATE and then with effect from DATE .

Collective agreements can be concluded at the level of the individual enterprise or at the level of the whole industry or sector ( Articles ORG and ORG ) . At the enterprise level , the collective agreement is concluded between the employer and the trade union(s ) in the enterprise ( LAW ) . CARDINAL collective agreement may exist in a given enterprise ( LAW ) . Its maximum duration is DATE ( LAW ) , and negotiations for the conclusion of a fresh collective agreement have to start not DATE before the expiry of the previous collective agreement ( LAW ) . The proposal for the agreement must emanate from the trade union(s ) in the enterprise . Unlike the position in relation to industrylevel or sectorlevel collective agreements ( LAW ) , for enterpriselevel agreements there is no requirement that the trade union(s ) which enter into them be “ representative ” . If in a given enterprise there exist several unions , they must come forward with a common draft proposal ( LAW ) . If they are unable to agree on one , the employer enters into an agreement with the union whose draft proposal has been approved by a majority of the general meeting of staff ( LAW ) .

By LAW ( CARDINAL ) , employers are under a duty to negotiate with the representatives of staff with a view to entering into a collective agreement . Their failure to do so gives rise to liability in damages ( Article CARDINAL § CARDINAL ) . ORG has held that the claim for damages may be brought by a trade union with which the employer has refused to negotiate ( see реш. № CARDINAL от CARDINAL октомври DATE г. по гр. д. № ORG г. , ORG , III г. о. ) . In the same judgment the court went on to say that , in the case of delayed negotiations , the compensation due under LAW should make good any damage resulting from the delay and should be assessed by reference to the terms of the collective agreement .

A collective agreement is binding only on the workers who are members of a trade union which is party to the agreement ( LAW ) . Workers who are not members of such a union ( because they are members of another union or because they are not affiliated with any union ) may join the agreement by making a request in writing , under conditions laid down by the parties to the agreement ; those conditions can not contravene the law or good morals ( LAW ) .

The parties to the collective agreement or any worker to whom it applies may bring proceedings to seek its performance ( LAW ) or annulment ( LAW ) . ORG has consistently held that claims for annulment under LAW may be brought only by the parties to the agreement – the employer and the trade union(s ) DATE or by workers to whom it applies either because they are members of the trade unions which are party to the agreement or because they have subsequently joined it ( see опр. № CARDINAL от CARDINAL юни DATE г. по гр. д. № CARDINAL/CARDINAL г. , ORG , PERSON г. о. ; опр. № CARDINAL от CARDINAL декември DATE г. по гр. д. № CARDINAL г. , ORG , PERSON г. о. ; опр. № CARDINAL от DATE г. по гр.д. № DATE г. на ORG , ORG г. о. ; опр. № CARDINAL от CARDINAL юли DATE г. по гр. д. № CARDINAL г. , ORG , ORG г. о. ; and опр. № CARDINAL от CARDINAL юли DATE г. по гр. д. № DATE г. , ORG , GPE г. о. )

The Protection Against Discrimination Act DATE came into force on DATE ( paragraph CARDINAL of the Act ’s transitional and concluding provisions ) . ORG has ruled that it does not apply retrospectively ( see реш. № CARDINAL от CARDINAL декември DATE г. по гр. д. № CARDINAL/CARDINAL г. , ORG , I г. о. ) . So has ORG ( see реш. № DATE от CARDINAL ноември DATE г. по адм. д. № DATE г. , ORG , V о. ) . However , ORG has also ruled that the prohibition of discrimination set out in the LAW is merely a reflection of the similar prohibitions set out earlier in LAW ( see paragraph CARDINAL above ) and Article CARDINAL of the Convention , which is part of domestic law ( see реш. № CARDINAL от CARDINAL януари DATE г. по гр. д. № DATE г. , ORG , I г. о. ) .

Section CARDINAL(CARDINAL ) of the LAW prohibits any direct or indirect discrimination on the basis of gender , race , nationality , ethnicity , human genome , citizenship , origin , religion or belief , education , convictions , political affiliation , personal or social status , disability , age , sexual orientation , marital status , property status , or on any other ground established by law or by an international treaty to which GPE is party .

Section CARDINAL(CARDINAL ) provides that the Act applies to all individuals on the territory of GPE . Section CARDINAL(CARDINAL ) provides that associations of individuals and legal persons enjoy protection under the LAW if they have suffered discrimination by reason of their members or employees having one of the characteristics under section PERSON ) .

NORP Under section CARDINAL(CARDINAL ) , employers are bound to provide equal employment conditions without regard to the characteristics set out in section MONEY ) ( see paragraph CARDINAL above ) .

The authority responsible for ensuring compliance with the LAW and with other statutes laying down equaltreatment provisions is ORG ( section CARDINAL ) . Section CARDINAL empowers the ORG to , inter alia , find a breach of the LAW ( point CARDINAL ) , order that the breach be discontinued and that the status quo ante be restored ( point CARDINAL ) , impose sanctions or order coercive measures ( point CARDINAL ) , or give mandatory instructions ( point CARDINAL ) . The Commission ’s decisions are subject to judicial review , until DATE by ORG ( section CARDINAL(CARDINAL ) , as worded before that date ) , and after that by ORG ( section CARDINAL ) , as worded after that date ) .

Under section ORG ) , a person who has obtained a favourable decision by the ORG and seeks compensation for damage suffered as a result of the breach of its right to equal treatment stemming from the LAW or from other statutes can bring a claim for damages against the persons or authorities which have caused the damage . If the damage stems from unlawful decisions , actions or omissions of ORG authorities or officials , the claim must be brought under the ORG and ORG DATE ( section CARDINAL(CARDINAL ) ) .

Alternatively , instead of bringing proceedings before the ORG , a person who considers that the right to equal treatment stemming from the LAW or from other statutes has been breached can bring a civil claim , seeking declaratory or injunctive relief or an award of damages ( section CARDINAL(CARDINAL ) ) . Trade unions can bring such claims on behalf of others ( section CARDINAL(CARDINAL ) ) .

NORP Since DATE trade unions have on a number of occasions brought proceedings before ORG in relation to collective bargaining and collective agreements .

In a decision of CARDINAL DATE the Commission found that a clause in a collective agreement according to which workers who were not members of the trade union which had concluded the agreement could join it only after paying a fee was not discriminatory . On DATE its decision was upheld by a threemember panel of ORG ( see реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. ORG DATE г. , PERSON , V о. ) .

In a decision of CARDINAL DATE the Commission made the same finding , but went on to order the employer to provide to its workers information about the way in which the proceeds from the fees were being spent . On DATE and DATE that decision was upheld by , respectively , a threemember panel and a fivemember panel of ORG ( see реш. № DATE от CARDINAL май DATE г. по адм. д. ORG DATE г. , ORG , V о. , and реш. № CARDINAL от CARDINAL октомври DATE г. по адм. д. № DATE г. , PERSON , петчл. св ) .

In a decision of CARDINAL DATE the ORG found that in engaging in collective bargaining only with CARDINAL trade union and ignoring the invitation of another union to negotiate with it as well , an employer had acted in a discriminatory way . However , on DATE a threemember panel of ORG quashed that decision , holding , inter alia , that the employer had not been under a duty to negotiate in the absence of a draft collective agreement put forward by the trade union in question ( see реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , ORG , V о. ) .

In a decision of DATE the Commission likewise found that in engaging in collective bargaining only with CARDINAL trade union and ignoring the invitation of another union to negotiate with it as well , an employer had acted in a discriminatory way . However , on DATE a threemember panel of ORG quashed that decision , holding , inter alia , that the trade union in question had not been duly formed , which meant that the employer had not been under a duty to negotiate with it ( see реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , PERSON , V о. ) . On DATE that judgment was upheld by a fivemember panel of the court ( see реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , петчл. св ) .

In a decision of CARDINAL DATE the ORG found that an employer had not acted in a discriminatory way visàvis a trade union during collective bargaining because that union had not come forward with a draft collective agreement of its own and because the employer had not been under a duty to resolve disputes between the various trade unions in the enterprise . On DATE and DATE that decision was upheld by , respectively , a threemember panel and a fivemember panel of ORG ( see реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , ORG , and реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , петчл. св ) .

In a decision of DATE the Commission found that in engaging in collective bargaining with CARDINAL trade unions and ignoring the invitation of another union to negotiate with it as well , an employer had acted in a discriminatory way . However , on DATE a threemember panel of ORG quashed that decision , holding , inter alia , that the union ’s allegations had not been made out on the facts ( see реш. № DATE от CARDINAL юли DATE г. по адм. д. № DATE г. , ORG , ORG ) . On DATE that judgment was upheld by a fivemember panel of the court ( see реш. № DATE от CARDINAL декември DATE г. по адм. д. GPE DATE г. , PERSON , петчл. св ) .

In a decision of CARDINAL DATE the ORG found , inter alia , that a clause in a collective agreement according to which workers who were not members of the trade unions which had concluded the agreement could join it only after paying a fee was discriminatory . On DATE a threemember panel of ORG upheld that decision on the basis that the trade union of which those workers were members was affiliated with one of the trade unions that were party to the agreement , which meant that its members could not be required separately to join the agreement and pay a fee to be able to do so ( see реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , ORG , ORG ) . On DATE that judgment was upheld by a fivemember panel of the court ( see реш. № DATE от CARDINAL февруари DATE г. по адм. д. № DATE г. , PERSON , петчл. св ) .

In a decision of DATE the Commission found that in engaging in collective bargaining with CARDINAL trade unions and effectively excluding CARDINAL other unions from the collective bargaining process , a company affiliated with ORG ” ORG had acted in a discriminatory way . The ORG went on to find that a clause in the resulting collective agreement according to which workers who were not members of the trade ORG which had concluded the agreement could join it only after paying a fee was discriminatory . In a judgment of DATE a threemember panel of ORG quashed the first part of the decision , holding that , on the facts , it could not be maintained that the company had effectively excluded the trade unions in question from the collective bargaining process . The panel upheld the second part of the decision , holding that the requirement for workers to pay a fee to join the collective agreement was discriminatory and in breach of the law , and therefore contravening Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see paragraphs DATE in fine above ) ( see реш. № DATE от DATE г. по адм. д. № DATE г. , ORG , ORG ) . On DATE that judgment was upheld by a fivemember panel of the court ( see реш. № CARDINAL от CARDINAL март DATE г. по адм. д. № DATE г. , PERSON , петчл. св ) .

In a decision of CARDINAL DATE the ORG found that a clause in a collective agreement according to which workers who were not members of the trade unions which had concluded the agreement could join it only after paying a fee was discriminatory . However , on DATE the ORG quashed that decision , holding , inter alia , that the requirement to pay a fee was justified because it in effect amounted to a contribution by workers who were not members of the trade unions in question towards the efforts of those unions to secure a beneficial collective agreement ( see реш. № CARDINAL от CARDINAL юли DATE г. по адм. д. № DATE г. , ORG , ORG о. , CARDINAL св ) . On DATE a threemember panel of ORG upheld that judgment , fully agreeing with its reasoning ( see реш. № CARDINAL от CARDINAL март DATE г. по адм. д. № DATE г. , PERSON , ORG ) .

GPE ratified the DATE Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively ( International Labour Organisation Convention No . CARDINAL ) on DATE . The ratification was registered with the Director General of ORG on DATE , and the ORG came into force in respect of GPE DATE after that , on DATE ( LAW ) . It was published in ORG on DATE , which means that , by virtue of LAW , from that date on it has been part of domestic law ( see also реш. № CARDINAL от DATE г. по PERSON д. № DATE г. , КС , обн. , GPE , бр. CARDINAL от DATE г. ) .

DATE provides as follows :

“ Measures appropriate to national conditions shall be taken , where necessary , to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or ORG organisations and workers’ organisations , with a view to the regulation of terms and conditions of employment by means of collective agreements . ”

GPE ratified the Revised European Social Charter of DATE ( ORG No . CARDINAL ) on DATE . The instrument of ratification was deposited with the Secretary General of ORG DATE , and the LAW came into force in respect of GPE on DATE , DATE following the expiration of DATE after the date of the deposit ( LAW ) . It was published in ORG on DATE , which means that , by virtue of LAW , from that date on it has been part of domestic law .

Article CARDINAL of the LAW , headed “ The right to bargain collectively ” , provides as follows :

“ With a view to ensuring the effective exercise of the right to bargain collectively , the Parties undertake :

NORP to promote joint consultation between workers and employers ;

NORP to promote , where necessary and appropriate , machinery for voluntary negotiations between employers or ORG organisations and workers’ organisations , with a view to the regulation of terms and conditions of employment by means of collective agreements ;

NORP to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes ;

and recognise :

the right of workers and employers to collective action in cases of conflicts of interest , including the right to strike , subject to obligations that might arise out of collective agreements previously entered into . ”


David Thór Björgvinsson;George Nicolaou;Georgieva;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , Mr Todor PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by PERSON V. Panayotov , a lawyer practising in GPE .

The applicants are father and daughter . The second applicant suffers from severely impaired hearing , an anxiety disorder and hypochondria . In DATE she was classified as PERCENT disabled and since then has been in receipt of a disability pension . She lives with the first applicant .

On an unspecified date after DATE the applicants were charged with defrauding CARDINAL individuals by purporting to sell them a flat which they had already sold to others . In DATE , in the course of the trial , the defrauded individuals brought claims for damages . It is unclear whether at that stage of the proceedings the applicants were legally represented .

During the trial ORG ordered an expert report on the second applicant ’s mental health at the time of the alleged offence and on her fitness to stand trial . The experts , a psychiatrist and a psychologist , stated that she suffered from an anxiety disorder which presented as emotional instability and irritability which , however , did not amount to psychosis , and concluded that at the time of the alleged offence she had been able to understand the nature of her actions and to control them . She was also judged able to take part in the proceedings and to give evidence . The experts further observed that she suffered from severe hearing loss and difficulties in articulation due to missing teeth , which had hampered their communication with her . On the basis of previous medical reports in respect of the second applicant , the experts also observed that her relations with the first applicant had at times been strained .

In a judgment of DATE , ORG found both applicants guilty of fraud and sentenced them each to DATE suspended imprisonment . In addition , it ordered them to pay damages to the civil parties .

All parties appealed . The first applicant and the civil parties were represented by counsel , but the second applicant was not . In her appeal , the second applicant alleged that her conviction was wrongful and had been tainted by breaches of the rules of procedure , and that her sentence was too harsh . At the hearing , which took place TIME and TIME on DATE , ORG appointed counsel for the second applicant with reference to LAW ( CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . However , it did not specify whether the appointment of counsel was necessary because of the applicant ’s mental disorder or because of her hearing impairment .

In her closing speech , the courtappointed counsel argued that the sentence imposed on the second applicant was too harsh and should be reduced in view of her state of health and the numerous mitigating circumstances .

In a judgment of DATE ORG upheld the applicants’ conviction and sentence , as well as the award of damages to the civil parties .

On DATE a court bailiff served notice of the judgment on the second applicant , who undertook to transmit it to the first applicant . However , according to the first applicant she did not do so within the statutory DATE time - limit for appealing on points of law , which expired on DATE .

On DATE the first applicant requested ORG to extend the time - limit for appealing on points of law . He asserted that he had not been duly notified of the judgment , as notice of it had been served solely on the second applicant , in breach of the rules of procedure .

ORG examined the request at a hearing held on DATE . The first applicant was represented by counsel . The second applicant was absent and was not legally represented . The court , considering that the applicants had conflicting interests and noting that the second applicant was absent , decided to appoint counsel for her . In her closing speech , the court - appointed counsel argued that the request was unfounded and that the second applicant had not been negligent with regard to the delivery of the notice to her father . The court observed that all previous summonses and notices to the applicants had been served on the second applicant in her capacity as the daughter of the first applicant and not as a co - accused . This had been in line with the relevant rules of procedure and there was no reason to find that the notice in question had not been properly served .

The first applicant appealed against that ruling to ORG . The court heard the case on DATE . The public prosecutor supported the appeal , arguing that it was open to doubt whether the notice had really been transmitted to the first applicant . He also said that extending the time - limit for appealing on points of law would be consistent with the first applicant ’s defence rights .

In a final decision of CARDINAL DATE ORG dismissed the appeal . It held that the notice of ORG judgment had been served in accordance with the applicable rules . The second applicant was an adult . This fact , as well as her relationship to the first applicant , had been noted in the certificate of service . The applicants did not have conflicting interests . It was true that the second applicant suffered from neurasthenia , but , according to the expert report drawn up during the trial , this had not prevented her from understanding the nature of her criminal act and bearing responsibility for it . In their appeals against the first - instance court ’s judgment the applicants had not mentioned any mental - health problems affecting the second applicant . Moreover , all earlier notices and summonses to the first applicant had been served on him through the second applicant without this being the source of any problems .

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW DATE ( “ the ORG DATE ” ) , as worded at the material time , provided that the participation of defence counsel in the proceedings was mandatory if the accused suffered from a physical or mental handicap preventing them from conducting their defence in person . The participation of counsel was also mandatory if CARDINAL or more accused had conflicting interests and CARDINAL of them was legally represented ( LAW ( CARDINAL ) ) , or if the case was heard in the accused ’s absence ( LAW ( CARDINAL ) ) .

As a rule , process had to be served personally ( LAW ) . If the addressee was absent , it could be handed to an adult member of his or her household , and if there was no such individual , to the building caretaker , a flatmate , or a neighbour , if he or she undertook to deliver it to the addressee ( LAW ) . If the process was addressed to an accused and it was impossible to serve it in the manner described it could be handed to his or her defence counsel ( LAW ) . The process server had to note on the receipt the name and address of the individual through whom the process was being served , as well as his or her relationship to the addressee ( LAW ) . An individual who undertook to deliver process to the addressee and failed to do so could be fined up to MONEY ( Article CARDINAL § CARDINAL ) .

A statutory time - limit could be extended , after its expiry , if it had been missed for a valid reason ( Article CARDINAL § CARDINAL of the CCP DATE ) . The court had to examine the matter at a public hearing in the presence of the parties ( LAW ) .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants are NORP citizens , born in DATE and DATE , respectively , and they both live in GPE , GPE .

On DATE they agreed to buy a site with planning permission from “ the vendors ” on which they intended to build a house . The sale was completed in DATE . It subsequently emerged that , because of discrepancies in the relevant site maps on which they relied during the sale , they did not have access to the site from the road . They were obliged to discontinue building and to sell the site .

On DATE the Minister for Agriculture and Food established ORG into ORG ( “ Beef Tribunal ” ) and nominated the President of ORG to be the sole member of the ORG . While conducting ORG , the President continued , when possible , to sit in cases in ORG .

On DATE the applicants instituted High Court proceedings for negligence , negligent misstatement , breach of contract , misrepresentation and breach of warranty against their own solicitors ( “ the applicants ' solicitors ” ) , the vendors and “ the vendors ' solicitors ” . On DATE ORG ordered discovery on a consent basis . Pursuant to the applicants ' motion and the defendants ' consent , on DATE ORG ordered the defendants to file their defence within DATE . Further motions of the applicants were struck out on CARDINAL and DATE and on DATE . On DATE the case was certified ready for hearing by the applicants ' senior counsel .

The case was originally listed for hearing on DATE but it was adjourned ( the applicants objected ) due to the illness of CARDINAL of the defendants to DATE when another hearing date would be fixed . On DATE a hearing date was fixed for DATE . On DATE there was no judge available and the matter was heard on DATE when the President of ORG ( “ the trial judge ” ) made himself available .

The Government maintained that the trial judge was advised by counsel present that the hearing required DATE , that the judge had notified the parties that his tribunal commitments meant that he had DATE for their case so that , if the case took longer , he would be obliged to adjourn until after ORG , that he would only deal with issues of liability and that the applicants agreed to this . The applicants denied that their counsel so advised the trial judge , that the trial judge had informed them that the trial would be so adjourned , that their counsel would have agreed to an indefinite adjournment ( given the second applicant 's psychological state ) or that they agreed to the separation of issues of liability and damages .

The applicants ' case was heard on DATE and DATE and , since it was unfinished , the trial judge adjourned it . On DATE and CARDINAL DATE the applicants wrote to ORG of ORG asking for enquiries to be made as to when the action would be resumed . On DATE they wrote to the Registrar asking him to intervene with the trial judge to fix a date and enclosing a medical report of the second applicant 's doctor dated DATE ( see paragraph CARDINAL below ) . The PERSON was also contacted by telephone on numerous occasions by the applicants regarding a hearing date . In DATE the Registrar informed the applicants by telephone that the trial judge had confirmed a hearing date in DATE . A letter to ORG DATE requested that a hearing date be fixed .

During this period , the applicants wrote also wrote to , inter alia , numerous members of PERSON ( ORG ) including to the Minister for ORG . The Deputy Chair of PERSON indicated , in a letter dated DATE , that he had contacted the Acting President of ORG asking the latter to intercede on the applicants ' behalf . On DATE the Acting President responded that the case would be taken in DATE .

On DATE the trial judge completed his report on ORG . On DATE he was appointed Chief Justice of ORG . The trial judge resumed the hearing of the applicants ' case on DATE . He heard the last CARDINAL witnesses and requested legal argument in writing . He reserved judgment , indicating that he would deliver it approximately DATE after receipt of the written submissions . Those submissions were made by DATE

On DATE , DATE , DATE and CARDINAL DATE the applicants wrote to certain Registrars of the High Court requesting information as to when the judgment would be delivered . A response , dated CARDINAL DATE , stated that the trial judge could not confirm when he could deliver his judgment given his heavy commitments . Further to the applicants ' letter , the Minister for ORG indicated in a letter of DATE that , while she could not intervene , she had brought the matter to the attention of a Registrar of ORG . The applicants also wrote to a Registrar on DATE again requesting an early delivery date . A PERSON 's letter of CARDINAL DATE indicated a delivery date before DATE . By letter dated DATE the Minister for ORG responded to a further letter from the applicants indicating that she had forwarded a copy of the applicants ' correspondence to the trial judge . Further to another letter from the applicants , a Registrar subsequently confirmed delivery of the judgment on DATE .

Judgment was orally delivered on DATE . Both the vendors and the applicants ' solicitors were found liable in damages and the claim against the vendors ' solicitors was dismissed . On DATE the ORG made various orders concerning damages ( adjournment of the assessment of damages ) and costs to be paid by the unsuccessful parties . Pending finalisation by the trial judge of the written judgment , the form of order was not to be perfected in order to allow the applicants time to consider the text of that judgment prior to the expiration of the time - limit for appealing any orders of ORG . The applicants wrote CARDINAL letters to a Registrar of ORG ( dated CARDINAL and DATE ) and the text of the judgment became available in DATE . The order of ORG was perfected on DATE and on CARDINAL DATE the applicants appealed the findings in favour of the vendors ' solicitors to ORG . The vendors also appealed the High Court findings against them .

Since a stenographer had not been present during the High Court hearings , it was necessary to prepare and agree a record of the evidence given during those hearings for the purposes of the appeal . By DATE the applicants had completed a substantial note of evidence and on DATE they submitted it to the vendors and to the vendors ' solicitors for their agreement . On DATE the applicants issued CARDINAL motions . The first sought the comments of the vendors ' solicitors on the note of evidence and the second requested that the vendors ' appeal be struck out for “ want of prosecution ” since the vendors had not filed documents in their appeal .

On DATE ORG heard both motions with the trial judge ( then Chief Justice ) presiding . The court requested the vendors and the vendors ' solicitors to submit their comments on the note of evidence within DATE , in default of which the trial judge would finalise the note . On the second motion , the vendors were given until DATE to file the relevant appeal documents , in default of which ORG envisaged striking out the vendors ' appeal . Both motions were adjourned until DATE . The vendors ' appeal and the related motion were later dropped .

Following further letters from the applicants in DATE , on DATE the vendors ' solicitors indicated that they disagreed with CARDINAL items in the note of evidence . On DATE the applicants ' motion concerning the note of evidence was adjourned to DATE . DATE the vendors ' solicitors confirmed that agreement would not be reached on the note . On DATE CARDINAL judges of ORG ( not including the trial judge ) directed the trial judge to settle the note of evidence . On DATE the applicants submitted the note of evidence together with a note of the CARDINAL disputed points to the trial judge .

In or around DATE the President of the ORG gave directions that all complaints about delays in proceedings should be forwarded to him . A memorandum of the President of ORG published in ORG of DATE noted the delays in delivering reserved judgments due to the shortage of judges and requested legal practitioners formally to notify the President of ORG of their concerns about such delays .

Subsequently , the applicants wrote to a Registrar of ORG on a number of occasions ( including on DATE , DATE and DATE ) requesting the early settlement of the note of evidence . On DATE the applicants wrote to the President of the High Court requesting him to intervene given the delay in their proceedings . In DATE a Registrar of ORG indicated orally that the trial judge would deal with the matter after DATE . The applicants sent a further reminder to that Registrar on DATE . On DATE ORG , LAW ( “ ORG ” ) requested ORG comments on the alleged undue delay in the case . On DATE a Registrar indicated to ORG that the note of evidence matter would be resolved in DATE .

NORP By letter dated DATE the trial judge forwarded a report ( CARDINAL pages ) he had prepared on the evidence and on the points disputed by the relevant parties and he apologised to the applicants for the delay . By letter dated DATE a Registrar assured ORG that the note of evidence matter had been resolved and that an early date for a hearing of the appeal would be made available .

Further to the applicants ' complaints to their member of PERSON PERSON and to the PERSON ( the deputy Prime Minister ) , the Attorney General expressed , by letter dated DATE to the applicants , his concern at the delay in their case . While he was constitutionally obliged not to interfere in judicial matters , he had mentioned the matter informally to the trial judge and the latter assured him that all outstanding matters had been dealt with . In a letter dated DATE the Attorney General confirmed to the PERSON that he was concerned about the delays which the applicants had experienced in their case and that he had raised these matters in a private and informal manner with the trial judge who had assured him that all outstanding matters had been dealt with . Following an invitation , the applicants met with a member of the Attorney ORG in DATE , although the advice was that that office could not interfere in judicial processes .

By motion dated DATE the applicants amended their appeal . By letter dated CARDINAL DATE the Minister for ORG responded to queries of the Taoiseach ( Prime Minister ) concerning the applicant 's case pointing out that on DATE the appeal hearing had been fixed for DATE .

ORG delivered its reserved judgment on the applicants ' appeal on DATE and found in the applicants ' favour , considering that the vendors ' solicitors were also liable in negligence to the applicants .

The case was remitted to ORG for the assessment and apportionment of damages . By letter dated DATE the Attorney General responded to queries raised by the applicants ' member of PERSON PERSON : he indicated that their case was “ concerning ” and that it was hoped that the recently established system for monitoring judicial delays would ensure that their experience would not be repeated .

The vendors ' solicitors filed an amended defence in DATE and the applicants filed further particulars of damage in DATE . On DATE the vendors ' solicitors made a late lodgement into court in the sum of MONEY ( NORP ) . The applicants objected . A letter dated CARDINAL DATE from the Attorney General 's office to the applicants explained that his previous intervention related to an administrative act by the trial judge ( the note of evidence ) but that the outstanding matters were judicial in which he could not interfere . By letter dated DATE the Attorney General 's office confirmed that it had been informed that a hearing date had been fixed by ORG for DATE . A letter dated DATE from the ORG 's office to the applicants confirmed that increased resources to the courts meant that it was hoped that their experiences would not be repeated . On DATE the applicants also met with the PERSON to discuss the length of their ongoing proceedings .

On DATE an assessment hearing took place in ORG . On DATE ORG awarded the applicants approximately IR£CARDINAL,CARDINAL in respect of pecuniary loss and IR£CARDINAL,CARDINAL in respect of non - pecuniary damage ( ORG finding that both applicants had been put through “ a high degree of anxiety and upset ” as a consequence of the defendants ' negligence ) . The applicants were also awarded their costs when taxed and ascertained . On DATE ORG dealt with matters concerning the attribution of liability between the defendants . The order of ORG was perfected in DATE . There was no appeal on these matters to ORG .

The Taxing Master abridged the time for service of the applicants ' bill of costs ( LAW , Rule CARDINAL ) of the Rules of ORG ) and fixed a hearing for DATE . The bill of costs contained CARDINAL items and comprised CARDINAL pages . This hearing was then adjourned on the application of the vendors ' solicitors until DATE . The hearing took place on that date and , since it did not finish , it was adjourned to and continued on DATE . It was again adjourned and concluded on DATE , when the Taxing Master delivered his reserved ruling . ORG ( approximately IR£CARDINAL,CARDINAL ) was signed by LAW on DATE .

The applicants submitted a number of medical certificates to the ORG .

A certificate prepared by the second applicant 's doctor on DATE attested to her severe symptoms of anxiety since the legal problems had arisen . She had required repeated courses of medication and she was , at that stage , depressed and on medication . Her anxiety symptoms were likely to continue until the legal situation was resolved . The same doctor confirmed , in a certificate dated DATE , a deterioration of the second applicant 's condition into “ frank depression ” . Medication had initially helped but the delay in the proceedings was worsening her condition . A psychiatric report on the second applicant dated DATE recorded her significant clinical depression since the start of the proceedings which warranted anti - depressants and tranquillisers on many occasions . It was considered that the proceedings continually threatened to bring about a relapse , in spite of certain periods of recovery following appropriate treatment . It was also considered that a full recovery was foreseeable only after the proceedings terminated . A psychiatric report on the first applicant dated DATE attested to the great strain the proceedings had caused him .

Article CARDINAL(CARDINAL)(CARDINAL ) of the LAW provide :

“ The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen . “

Certain of the personal rights of the citizen are explicitly guaranteed by provisions of the LAW . In addition , in interpreting and applying LAW , the NORP courts have identified other “ unenumerated ” rights protected by virtue of that LAW . These include the principle of “ constitutional justice ” ( inter alia , no one should be a judge in their own cause ( nemo iudex in sua causa ) , anyone who may be adversely affected by a decision should be afforded the opportunity to put their side of the case ( audi alteram partem ) and the right to fair procedures ) . The other relevant unenumerated right derived from LAW is the right to litigate or the right of access to court .

Order CARDINAL of the Rules of the Superior Courts provides as follows :

“ CARDINAL . If any question as to the validity of any law , having regard to the provisions of the LAW , shall arise in any action or matter the party having carriage of the proceedings shall forthwith serve notice upon the Attorney General , if he is not already a party .

NORP If any question as to the interpretation of the LAW , other than a question referred to in rule CARDINAL , shall arise in any action or matter , the party having carriage of the proceedings shall , if the ORG so directs , serve notice upon the Attorney General .

Such notice shall state concisely the nature of the proceedings in which the question or dispute arises and the contention or respective contentions of the party or parties to the proceedings .

The Attorney General shall thereupon be entitled to appear in the act ion or matter and become a party thereto as regards the question which arises . ”

Order CARDINAL of the Rules of the Superior Courts provides , in so far as relevant , as follows :

“ CARDINAL . At the trial or hearing of any cause or matter with oral evidence , any party may apply to the Judge for an order that the proceedings be reported by a shorthand writer and thereupon the Judge shall appoint a shorthand writer . ...

The party applying for an order under rule CARDINAL ... shall pay the remuneration of the shorthand writer and said payment shall be borne by said party unless the Judge or the Master ( as the case may be ) shall after the trial or hearing certify that in his opinion it was expedient that the proceedings or any part thereof should have been so reported . If such certificate is given the remuneration of the shorthand writer for reporting the proceedings or part thereof to which the certificate relates shall be part of the costs in the cause .

NORP The Judge shall have power , during the course or at the conclusion of the trial or hearing , to direct that copies of the shorthand writer 's transcript of the evidence or any part thereof be furnished to him at the public expense or be furnished to any party applying therefor at the expense of that party . ”