Violation of Art. 6-1;No violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON and his wife PERSON are NORP farmers residing at GPE , GPE . They complain of consolidation measures ( PERSON ) taken in respect of their land since DATE .

On DATE ORG ( PERSON , " ORG " ) opened the Hacking land consolidation proceedings , pursuant to section CARDINAL of GPE DATE ( ORG , " LAW " ) . The measures concerned CARDINAL landownersand covered QUANTITY , including the applicants’ property at GPE .

On DATE Mr and PERSON made a " declaration of wishes " ( PERSON ) , expressing their wish to receive parcels situated near their farmhouse . On CARDINAL DATE ORG adopted the land valuation schedule , against which the ORG did not appeal .

On DATE ORG ordered the provisional transfer of compensatory plots ( ORG ) on the basis of a draft consolidation scheme ( ORG ) , pursuant to section CARDINAL of the CARDINAL Act ( see paragraph CARDINAL below ) . The applicants had agreed to this plan , which provided them with a parcel of QUANTITY near their farm , and did not contest the transfer decision . While they lost the ownership of land formerly belonging to them ( including the CARDINAL plots mentioned in paragraph CARDINAL below ) , which passed to the association of landowners ( see paragraph CARDINAL below ) , they acquired the provisional ownership of certain plots subject to a condition subsequent , namely that they would be dispossessed of them under the final consolidation scheme , if it did not confirm the allocation thereof to the applicants ( section CARDINAL of the DATE LAW .

On DATE the municipal council of GPE had adopted an area zoning plan ( GPE ; see paragraphs CARDINAL - CARDINAL below ) , which was approved on DATE by the government of the Land . The ORG property , which was covered by the consolidation scheme , retained its designation as agricultural land , although certain adjoining plots had been redesignated as building land in DATE and DATE .

At the request of the new ( provisional ) owners , the municipal council amended the area zoning plan on DATE . It classified as building land CARDINAL plots covering a surface of QUANTITY which had previously belonged to the applicants . On DATE the Land government approved the decision , which became final on DATE

Subsequently the CARDINAL plots were divided into parcels and sold to several persons who were granted building permits in respect of them .

On DATE Mr and PERSON asked ORG to return to them the CARDINAL plots by withdrawing them from the consolidation scheme . In their view the plots in question were now to be regarded as land of special value which under the relevant legislation was in principle to be left to the previous owners . In the alternative , they asked to be allocated building land or to be accorded financial compensation ( Geldwertentschädigung ) . They also sought compensation ( ORG ) on account of loss of interest ( PERSON ) arising from the fact that they had not themselves been able to sell the CARDINAL plots after the amendment of the area zoning plan ; they estimated this amount at QUANTITY on the basis of a price of QUANTITY at an interest rate of PERCENT .

ORG replied by a letter of CARDINAL DATE . It referred to ORG DATE ( " LAW " ) , which had replaced LAW , and drew their attention to the fact that claims for compensation had to be submitted within DATE on which the consolidation scheme became final ( section CARDINAL ) ; see paragraph CARDINAL below ) . It therefore requested the applicants to await the publication of the scheme which was scheduled for DATE .

The PERSON took the view that ORG had failed to resolve within the statutory time - limit of DATE the questions which they had raised with it and , on DATE , filed with ORG ( ORG , " ORG " ) an application for a ruling on the matter ( section CARDINAL of LAW , ORG ; see paragraph CARDINAL below ) .

ORG gave its decision on DATE . It dismissed the request for the CARDINAL plots to be withdrawn from the consolidation scheme . It considered that , in order to attain its objective , the scheme had to include the land in question and the fact that the plots were now building land made no difference in this respect . It found that ORG refusal to rule on the applicants’ other claims was justified since the merits of such claims could not be determined until the consolidation scheme had become final . ORG ordered ORG not to approve or authorise any further division into parcels of the land in question or to allow any further conversion into building land or any further issue of building permits .

The ORG appealed to ORG ( ORG , " ORG " ) , which declared their appeal inadmissible on DATE . Its decision was upheld on DATE by ORG ) and on DATE by ORG ( Verwaltungsgerichtshof ) .

Previously , on DATE , the applicants had contested ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) directly in ORG , which gave its decision on DATE . It upheld the impugned decision in so far as ORG had refused to return the CARDINAL plots to the applicants , but at the same time declared the appeal well - founded on the other points . As ORG had not ruled within the statutory period of DATE on the alternative claims filed by the applicants , ORG ought to have decided them itself .

In new proceedings before it , ORG gave its decision on DATE . In its view it was not possible under LAW to afford compensation for the alleged damage . The LAW provided that the owners of plots of special value covered by a consolidation scheme should in principle be compensated by the allocation of land of the same type . As regards the building land claimed by the ORG , ORG noted that the provisional transfer of the plots precluded altering their allocation for the time being . However , the provisional transfer did not prejudge the consolidation scheme which would determine definitively the question of land of special value . Furthermore , the building plots were referred to only in the area zoning plan for GPE and there was therefore an inseparable link between that plan and the question of statutory compensation for land of special value . Accordingly , the area zoning , which was the responsibility of the municipal authorities and not the agricultural authorities , was a precondition . The municipal council of GPE had announced that it proposed to convert into building land certain of the compensatory plots allocated to the applicants , but their area and location had not yet been fixed . ORG concluded that it could not rule on the merits of the question until an appeal had been filed concerning the consolidation scheme , once the latter had been adopted and published .

Mr and PERSON then appealed to ORG , which on DATE refused to entertain their appeal as the case did not raise any specific questions of constitutional law . It remitted the case to ORG , in accordance with the ORG alternative plea .

ORG dismissed the appeal on DATE . It noted in the first place that the applicants had themselves obtained the plots which they had wished and whose designation as agricultural land had not been changed . They had thus suffered no temporary disadvantage for which they could claim financial compensation . It was true that the area zoning plan had reclassified a part of their former land after its provisional transfer . However , the consolidation scheme , which was to fix the statutory compensation , would have to take into account any changes in the value of the land occurring in the course of the proceedings , for example following a new area zoning plan as in this instance . Consequently , the contested decision was not unlawful .

Relying on section CARDINALa(CARDINAL ) of ORG DATE ( PERSON , " the DATE LAW " ) , according to which the consolidation scheme is to be published not DATE after the final decision on the provisional transfer of plots , the ORG asked ORG on DATE to take jurisdiction over the case in accordance with section CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE the ORG refused . It considered that it was empowered to adopt the consolidation scheme only if the failure to comply with the statutory time - limit of DATE was exclusively the fault of ORG . This was not the case .

Since the provisional transfer ORG had made every effort to draw up the consolidation scheme . Its work had been delayed on account , in particular , of the proposed route for a new major road and its link roads across the area in question , which made it necessary to revise the position of CARDINAL owners . Furthermore , a substantial part of the file had had to remain for DATE with ORG in connection with appeal proceedings instituted by a landowner ; likewise , the ORG application of CARDINAL DATE had required the file to be sent to ORG , then to ORG and to ORG , and had therefore prevented a decision from being taken during this period . ORG could have adopted and published the consolidation scheme in DATE if further consideration , inquiries and interviews had not been necessary following the alteration to the GPE area zoning plan . With a view to expediting the final adoption of the area zoning plan , it had held discussions with the municipal council DATE , and then with the authorities with competence in the field of land development on DATE , DATE , DATE and DATE .

As the area zoning plan had still not been settled , it had not been possible to adopt the consolidation scheme , because ORG could not yet determine whether the allocation of land provided the applicants with sufficient compensation , thereby satisfying the statutory criteria . It was , moreover , contrary to the principles of efficient administration to finalise the consolidation scheme before the adoption of the area zoning plan . The conduct of ORG had thus been justified . Under section CARDINAL of ORG , it was possible to stay ( aussetzen ) proceedings pending a definitive decision on a preliminary question which was the subject of other proceedings . In this case the area zoning constituted a preliminary question for the consolidation proceedings .

The applicants appealed to ORG , which dismissed their appeal on DATE .

It began by upholding ORG decision that the latter had competence to adopt a consolidation scheme solely where the failure to comply with the statutory time - limit of DATE was exclusively the fault of ORG . According to the established case - law of ORG , there was no such fault where the delay resulted from the conduct of CARDINAL of the parties or from an insurmountable obstacle . In the present case it had not been suggested that the applicants’ conduct had been in any way reprehensible , nor could the failure to comply with the statutory DATE time - limit be blamed on ORG . Throughout the consolidation proceedings , it had to take account of the area zoning plans and any amendments thereto . It was therefore impossible , and indeed contrary to the principles of efficient administration , to adopt a consolidation scheme where no final land - development plan or area zoning plan existed , and where negotiations for the adoption of such plan were in progress . Even before the ORG appeal had been filed , the competent authority had conducted further inspections of the land and had had contacts with the GPE municipal council , which was considering the possibility of converting some of the plots allocated to them into building land . In those circumstances , there was no justification for adopting a consolidation scheme which would probably have been defective as from its adoption , if the municipal authority subsequently fixed an amended area zoning plan . The finalisation of such a plan in fact constituted a precondition for the adoption of the consolidation scheme . For all these reasons , ORG had been right to stay the proceedings pending the final decision of the municipal council and was not responsible for the delay in the consolidation proceedings .

Mr and PERSON contested this decision before ORG , which , on DATE , refused to entertain their appeal on the same grounds as those set out in its judgment of DATE ( see paragraph CARDINAL above ) . It remitted the case to ORG in accordance with the ORG alternative plea .

ORG dismissed the ORG appeal on DATE . It found , inter alia , that ORG refusal to assume jurisdiction had been justified , since the failure to comply with the statutory time - limit was not exclusively attributable to ORG . Furthermore , the applicants’ claims concerning the nature and extent of the compensatory plots related to the question of the statutory compensation , which would be dealt with by the consolidation scheme .

On DATE ORG published the consolidation scheme ( see paragraph CARDINAL below ) ; it returned to the Wiesingers QUANTITY of their former land and allocated to them plots covering an area of QUANTITY classified as a zone capable of being redesignated as building land ( Bauerwartungsland ) . It pointed out that the applicants had already received monetary compensation , in DATE , for certain plots that they had had to give up in connection with the construction of the new major road . It dismissed their claim for compensation for the increased value of their former land following its reclassification , because that had been taken into consideration when the compensatory plots were allocated definitively . Finally , ORG found that the applicants had not suffered any temporary damage and were not entitled to any financial reparation .

The applicants contested the scheme before ORG . They argued that the land which they had ultimately received was of a lower value than their former land ; they had , they claimed , sustained a loss of CARDINAL schillings .

The different agricultural authorities attempted first to secure a friendly settlement of the dispute : ORG , between CARDINAL DATE and DATE , during which period CARDINAL meetings were held , and ORG , DATE and QUANTITY DATE , at eignteen meetings with the parties concerned , the local authorities , the highways department and the land designation supervisory authority . In the course of these meetings ORG invited the municipal authorities in question to redesignate a particular plot which they were proposing to allocate to the applicants as building land .

However , the authorities’ efforts were in vain .

After the attempts to reach a friendly settlement had failed , ORG held a hearing on DATE .

On DATE it allowed in part the ORG appeal . It awarded to them a part of their former land , now reclassified , and other plots converted or to be converted into industrial sites . On the other hand , it dismissed once again their claim for financial compensation .

The applicants appealed against this decision to ORG , which dismissed their appeal on DATE .

After having examined in detail the ORG objections , ORG concluded that they had received compensatory plots of a value equivalent to that of their former land , as was required under LAW . Accordingly , the impugned decision did not infringe their statutory rights . Furthermore , according to ORG , if the new situation of agriculture in the area was compared to the old one , it could be said that the consolidation scheme had been a success and had achieved its goals .

In the meantime the applicants had appealed to ORG , which has not yet ruled .

Prior to the adoption of the consolidation scheme , the ORG applied to the civil courts for an order directing the cessation of the construction work which had begun on their former land .

On DATE ORG ( GPE ) found that it lacked jurisdiction . Its decision was overturned on CARDINAL DATE by ORG ( Oberlandesgericht ) , but on DATE ORG ( Oberster Gerichtshof ) confirmed that the civil courts were not competent to decide the matter . ORG declined , on account of the exclusive powers vested in ORG under NORP law ( section CARDINAL(CARDINAL ) of the CARDINAL Act ; see paragraph CARDINAL below ) , to follow its previous case - law , although it concerned similar facts .

The applicants also requested authorisation to construct CARDINAL animal feed silos on their compensatory plots near their farm . However , the authorities refused on the ground that they were only provisionally owners of the land in question .

The basic rules applying to the consolidation of agricultural land are embodied in ORG ( Flurverfassungs - Grundsatzgesetz DATE ) , as amended in DATE . The ORG have regulated the matters for which they are made responsible under LAW in provincial agricultural land planning Acts ( ORG ) .

In GPE , consolidation is governed by ORG DATE ( " LAW " ) . This replaced an Act of DATE , which had itself replaced an LAW that had been brought into force again in DATE . The proceedings in the present case were instituted under LAW , on the basis of which the provisional transfer was ordered . However , the subsequent proceedings were governed by LAW .

The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area ( section CARDINAL(CARDINAL ) of LAW ) . It comprises communal measures and facilities and redistribution of land . The operation takes place in the following stages :

- the initial proceedings ;

- ascertainment of the occupiers of the land in question and assessment of its value ;

- planning of communal measures and facilities ;

- provisional transfer of land , where appropriate ;

- adoption of the consolidation plan .

None of these stages may begin until the previous stage has been terminated with a final decision .

The initial proceedings , which are instituted of the authorities’ own motion , serve to determine the consolidation area , which , in addition to farmland and forest , may include land voluntarily offered for consolidation and land required for communal facilities ( sections CARDINAL and CARDINAL ) . Land which is not needed for the purposes of consolidation may subsequently be withdrawn from the area ( section CARDINAL(CARDINAL ) ) . The owners form an association ( ORG ) , which is a corporate body governed by public law .

The institution of proceedings means that land use is restricted until the proceedings are concluded ; any change in use must be approved by the appropriate agricultural authority . This authority has exclusive jurisdiction , inter alia , over disputes concerning ownership and tenure of land in the consolidation area ( section CARDINAL ) .

Once the decision to open proceedings has become final , the agricultural authority ascertains who are the occupiers of the land and assesses its value ( sections CARDINAL and DATE ) . Its decision ( PERSON ) determines the value of the land in accordance with precise statutory criteria ( LAW CARDINAL ) . Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others . Once the agricultural authority ’s decision has become final , however , it is binding on all of them .

Communal measures ( e.g. soil improvement , alterations to terrain or landscape ) and communal facilities ( e.g. private roads , bridges , ditches , drainage and irrigation ) are ordered , where they are needed , in a specific decision by the relevant authority ( Plan der gemeinsamen ORG ) , which must also settle the question of costs , these usually being shared by the landowners .

Under section CARDINAL , in both the DATE and LAW , land may be provisionally transferred before the adoption of the consolidation scheme , even if some owners object .

Decisions by the competent authorities ordering provisional transfers are not appealable ; but section CARDINAL of ORG DATE ( ORG , as amended in DATE , " the CARDINAL/CARDINAL LAW " ) provides that the final decision shall lie with ORG , except in cases where an appeal lies to ORG ( see paragraph CARDINAL below ) .

The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period . The land transferred becomes the property of the transferees subject to a condition subsequent : ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation plan ( NORP unter auflösender PERSON , section CARDINAL(CARDINAL ) ) . This provisional , conditional ownership is , as a rule , not entered in the land register , since it is subject to a resolutive condition and it is possible that the parties concerned may be allotted other parcels once the proceedings are completed . ORG has to authorise any entry in the land register ( sections CARDINAL et seq . ) .

At the end of the proceedings , the agricultural authority adopts the consolidation scheme ( ORG , section CARDINAL ) . Since DATE this has to be published within DATE of the final decision provisionally to transfer parcels of land ( section CARDINALa(CARDINAL ) of the DATE LAW ) , failing which the person concerned may request the higher authority to assume jurisdiction . The adoption of the plan is an administrative act which is supported by maps and other technical data , and whose main function is to determine the compensation due to the landowners who are parties to the proceedings . LAW includes the following regulations on this matter :

- when compensatory parcels are being determined , regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme ;

- any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or , if that is not possible , to be reallocated his previous parcels , including building land ( section DATE ) ;

- changes in the value of land which come about in the course of the proceedings , including those occurring after the provisional transfer , must be taken into account in the final allocation under the consolidation scheme ( section CARDINAL(CARDINAL ) ) ;

- claims for compensation have to be submitted within DATE from the date on which the consolidation scheme becomes final ( section CARDINAL ) ) .

The provincial legislation does not provide for any financial compensation for damage suffered , before a final consolidation plan comes into force , by landowners who successfully challenge the lawfulness of compensation received in the form of land .

The first - instance authority in GPE is ORG , which is a purely administrative body . The higher authorities are ORG , established at ORG ( Amt der Landesregierung ) , and ORG , set up within ORG für Land- PERSON ) . These boards include judges and constitute a kind of " specialised administrative tribunal " .

Decisions ( PERSON ) of ORG can be challenged by way of appeal ( GPE ) to ORG , whose decision is final except where it varies the decision in question and where the dispute concerns CARDINAL of the issues listed in section CARDINAL(CARDINAL ) of the CARDINAL/CARDINAL Federal Act , such as the lawfulness of the compensation in the event of land consolidation ; in such cases an appeal lies to ORG .

The executive can neither set aside nor vary the decisions of these CARDINAL bodies , but they can be challenged in ORG ( section CARDINAL of of the CARDINAL/CARDINAL LAW and Article CARDINAL para . CARDINAL of LAW ) .

Procedure before the land reform boards is governed by LAW , section CARDINAL of which stipulates that LAW - except for one section of no relevance in the instant case - shall apply , subject to the variations and additional provisions made in the DATE LAW .

The boards are responsible for the conduct of the proceedings ( section CARDINAL of the General Administrative Procedure Act ) . By section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , the boards take their decisions after a private hearing .

Boards must determine cases without undue delay ( ohne unnötigen Aufschub ) and in any event not DATE after an application has been made to them ( section CARDINAL(CARDINAL ) ) . If the board ’s decision ( Erkenntnis ) is not notified to the parties concerned within that time , they may apply to the higher authority , which will thereupon acquire jurisdiction to determine the merits ( section CARDINAL(CARDINAL ) ) . If the latter authority fails to give a decision within the statutory time - limit , jurisdiction passes - on an application by the interested party - to ORG ( Article CARDINAL of LAW and section CARDINAL of LAW ) .

In the present case , area zoning planning is governed by ORG ( Raumordnungsgesetz ) .

In NORP law area zoning plans and any amendments thereto are regarded as decrees ( ORG ) , even if they only concern CARDINAL individual ’s property . Accordingly , the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them .

However , the competent local authorities ( NORP ) must take into consideration planning proceedings of neighbouring local authorities and other public law corporations , as well as regionally significant measures of other planning organisations ( section CARDINAL(CARDINAL ) ) , including the planning projects of the agricultural authorities .

The lawfulness of decrees can be challenged before ORG under LAW . However , case - law has established that area zoning plans can not be directly challenged in proceedings under LAW by the individuals affected if it is possible to institute administrative proceedings .

This is the case , in particular , where the area zoning plan is the basis for the granting or withholding of building permits . The persons affected are expected to assert their rights in administrative proceedings concerning the building permit , in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation . Ultimately this question can be brought before ORG by a constitutional complaint under LAW or by a request made by ORG under LAW para . CARDINAL and LAW .

The decisions of land reform boards can be challenged in ORG . The latter will determine whether there has been any infringement of the applicant ’s rights under LAW and whether the boards have applied a decree ( Verordnung ) that is unauthorised by statute law , an unconstitutional statute or an international treaty that is unlawful ( rechtswidrig ) under NORP law ( LAW ) .

As an exception to the general rule laid down in Article CARDINAL para . CARDINAL of LAW , section CARDINAL of the CARDINAL/CARDINAL LAW provides for an appeal to ORG against the decisions of land reform boards . Application may be made to ORG before or after an application to ORG . The latter will , if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests , refer the case to ORG ( Article CARDINAL para . CARDINAL of LAW ) .

Under LAW , the ORG determines applications alleging the unlawfulness of an administrative act ( Bescheid ) or a breach by a competent authority of its duty to take a decision . It also hears appeals against decisions of boards whose members include judges - such as the land reform boards ( see paragraph CARDINAL above ) - where such jurisdiction is conferred on it by statute .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant ’s father owned a plot of land of QUANTITY in the area around GPE , which was expropriated after DATE .

In DATE , following the adoption of legislation providing for the restoration of titles to certain types of expropriated property , the applicant sought the restitution of the land . In DATE her claim was only allowed in respect of QUANTITY of the plot as the authorities found that in respect of QUANTITY the applicant ’s father had soon after the expropriation been compensated with other land .

On an unspecified date in DATE the applicant brought a rei vindicatio action against the GPE municipality , claiming that the latter was unlawfully in possession of QUANTITY of land in respect of which restitution had been refused . The applicant alleged that her rights to the property at issue had been restored ex lege by virtue of the denationalisation legislation .

In a judgment of DATE ORG dismissed the claim , finding that the applicant ’s rights had not been restored ex lege as her father had , at the relevant time , received compensation for the lands at issue . On DATE ORG upheld that judgment .

On DATE the applicant appealed in cassation . As she had failed to justify her appeal in view of the requirements of LAW DATE ( see Relevant domestic law below ) , she was instructed to do so by a judge of ORG .

Within the time - limit given , the applicant submitted a written statement concerning the grounds for cassation under LAW , and not the admissibility criteria under LAW . Finding that she had failed to comply with the aforementioned instructions , on DATE ORG discontinued the proceedings . On an appeal by the applicant , on DATE that decision was upheld by ORG , which confirmed the lower court ’s conclusion that she had failed to comply with the relevant procedural requirements .

The Code of Civil Procedure , adopted in DATE and in force since DATE , introduced new requirements for the admissibility of cassation appeals .

Pursuant to LAW , as worded initially , ORG was competent to examine cases where the court of appeal has ruled upon “ a material question of law or procedure ” , and where , in addition , one of the following CARDINAL situations has occurred : ( a ) the question has been decided not in conformity with the practice of ORG ; ( b ) there have been conflicting decisions of the national courts ; and ( c ) the question is of importance for the accurate application of the relevant law or for the development of the law .

In a decision of DATE ORG found that these new requirements for the admissibility of cassation appeals did not , in principle , run contrary to the right to access to a court , as guaranteed in LAW . Their exact content and meaning would be clarified in judicial practice . However , ORG found that the requirement of LAW that the court of appeal must have ruled on “ a material question of law or procedure ” ( see above ) unnecessarily restricted the access to cassation and , accordingly , struck down as being anti - constitutional the word “ material ” ( see ORG no . CARDINAL of DATE , constitutional case no . CARDINAL/CARDINAL ) .

The Code of Civil Procedure DATE further provides that it is incumbent on the party seeking cassation to justify , in view of the requirements of LAW , that the cassation appeal merits examination . Failure to put forward arguments in that regard will result in the discontinuation of the proceedings ( LAW and CARDINAL of the Code ) .

Under LAW , the grounds for seeking cassation remained the same as those under LAW , namely material breaches of law and procedure , nullity and ill - founded conclusions ( LAW of LAW ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)

The applicant was born in DATE and lives in GPE .

On DATE the applicant submitted a request to ORG concerning Olympic annuity as being the coach of an Olympic medal winner . He was informed that according to the legal regulation in force , he could not request the annuity as it was the medal winner who should make a proposition for the beneficiary of such annuity . In the meanwhile ORG established the annuity for another coach .

On DATE ORG submitted an objection to the ORG ’s decision on the applicant ’s behalf , which was dismissed by the Minister on DATE .

The Prosecutor ’s Office sought judicial review of the Minister ’s decision before ORG . The applicant intervened in the proceedings . ORG dismissed the action on DATE . In the review proceedings ORG quashed the Minister ’s decision and remitted the case to the administrative authority on DATE .

In the resumed proceedings the administrative authorities dismissed the applicant ’s request on both levels . The applicant sought judicial review of the ORG ’s decision before ORG . It dismissed his action on DATE .

The applicant lodged a petition for review with ORG . Finding that the applicant should have initiated the action against the Minister , it quashed the first - instance judgment and discontinued the proceedings on DATE .

The applicant therefore again initiated the judicial review of the administrative decisions mentioned in paragraph CARDINAL above before ORG , this time bringing the action against the Minister . His action was finally dismissed by ORG on DATE .


CASE OF GRANOS ORGANICOS NACIONALES S.A. v. GERMANY

No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing;Legal aid);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court;Fair hearing;Legal aid)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Mark Villiger

The applicant company is registered under NORP PERSON and is based in GPE .

NORP The applicant company exported organic bananas to LOC . In DATE it concluded a commission contract with CARDINAL NORP companies , agreeing that all legal disputes would be brought before the courts in GPE . The contract also included a clause that legal disputes be settled by an arbitration tribunal in GPE .

On DATE the applicant company requested legal aid to bring a civil action before ORG ( Landgericht ) against the CARDINAL NORP companies for breach of the commission contract , submitting that the applicant company and its shareholder were insolvent and could thus not afford an advance payment of the court fees .

On DATE ORG dismissed the request for legal aid . It held that , according to section CARDINAL ( CARDINAL ) of LAW ( PERSON , see Relevant domestic law , below ) , only legal persons founded or based in CARDINAL of the member GPE of ORG or ORG were entitled to legal aid .

On DATE ORG rejected an objection by the applicant company . It held that section CARDINAL of LAW exhaustively determined which legal persons were entitled to receive legal aid , and it was not for the court to extend this provision to include companies based outside LOC . GPE was not obliged to enable all legal persons in the world to benefit from legal aid .

On DATE ORG ( Oberlandesgericht ) confirmed ORG decisions . It added that the interference with the applicant company ’s right of access to a court was justified . The restriction imposed on the applicant ’s right of access to a court was justified by the principle of reciprocity : if equal treatment was codified under constitutional law , there would be no incentive for foreign States to provide NORP legal persons with the same legal standard . The court also held that , even if the applicant company were to be put on a par with a domestic legal person , the non - litigation of the applicant company ’s case did not run counter to the general interest . Relying on a ruling of ORG ( no . CARDINAL BvR CARDINAL/CARDINAL , report BVerfGE CARDINAL , CARDINAL ) , it considered in this regard that even a domestic legal entity retained its right to exist under the legal order only if it was able to pursue its objectives by virtue of its own strength and means .

On DATE ORG refused to admit the applicant company ’s constitutional complaint . This decision was served on the applicant company on DATE .

The relevant provisions of LAW read as follows :

“ ( CARDINAL ) Plaintiffs who do not reside in a Member ORG of ORG or in another State party to LAW have , at the other party ’s request , to provide a security for the costs of the proceedings . ”

“ Parties who on account of their personal and economic circumstances are unable to pay the costs of litigation , or who can only pay these costs in part or in instalments shall , upon their application , be granted legal aid if the intended litigation of the case offers sufficient prospects of success and does not appear wanton . ... ”

“ Upon their application , legal aid shall be granted to

( CARDINAL ) NORP legal persons or associations capable of being a party founded or based in another Member State of ORG or in another State party to LAW if the costs can be paid neither by them nor by those financially involved in the object of the legal dispute and if non - litigation of the case would run counter to the general interest . LAW , last part of first sentence , shall apply . ”

The relevant provisions of LAW ( PERSON ) read as follows :

“ In civil legal disputes the action shall not be served until the fees for the general proceedings have been paid ... ”

“ Section CARDINAL ... shall not apply where

NORP the plaintiff has been granted legal aid ,

NORP the plaintiff is exempt from paying fees , or

the intended litigation of the case does not lack prospects of success and does not appear wanton , and where it can be substantiated that

( a ) in view of the plaintiff ’s financial situation or other reasons , immediate payment of the costs would cause difficulties or

( b ) delaying litigation would cause damage to the plaintiff that could not be compensated , or only with difficulty ; the declaration of the authorised counsel is deemed to be sufficient substantiation . ”

“ An appeal can be lodged against the decision to make the court action contingent upon the advance payment of costs and against the amount of the fees ... ”

Article CARDINAL of LAW Procedure reads as follows :

“ Legal aid is granted to natural persons who would risk , upon payment or guarantee of the costs of the proceedings , to no longer be able to maintain themselves or their dependents . ”

Article CARDINAL § CARDINAL of LAW ( concluded on DATE ) reads as follows :

“ In civil and commercial matters , nationals of the Contracting States shall be granted free legal aid in all the other ORG , on the same basis as nationals of these GPE , upon compliance with the legislation of the ORG where the free legal aid is sought . “

LAW provides that any ORG may accede to the convention , unless a ORG or several GPE which have ratified the convention object .

GPE ratified LAW on DATE . GPE is not a State party to that convention .

A comparative survey conducted in DATE on legislation and practice in CARDINAL State Parties to the Convention distinguished CARDINAL different approaches as to the possibility for legal persons to obtain legal aid ( compare ORG v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE , and PERSON GPE DATE . ) , no . CARDINAL , DATE , § § CARDINAL–CARDINAL ) .

In the majority of GPE surveyed ( GPE , GPE , GPE , GPE , GPE , GPE and GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) legislation excluded any form of legal aid to legal persons . In a number of other GPE ( GPE , GPE , GPE , GPE , GPE and GPE ) only legal persons with a non - commercial purpose ( but non - lucratif ) were eligible for legal aid . In the third group of GPE ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE and GPE ) legal persons including commercial companies were eligible for specific forms of legal aid in certain circumstances .


Violation of Art. 10;Non-pecuniary damage - finding of a violation sufficient

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE . The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant , at the material time Vice - President of ORG ( Munkáspárt ) – a registered left - wing political party DATE was a speaker at a lawful demonstration in the centre of GPE . The demonstration took place at the former location of a statue of PERSON , which had been removed by the authorities . On his jacket , the applicant wore a CARDINAL - pointed red star ( hereinafter “ the red star ” ) , QUANTITY in diameter , as a symbol of the international workers’ movement . In application of LAW , a police patrol which was present called on the applicant to remove the star , which he did .

Subsequently , criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public . He was questioned as a suspect on DATE .

On DATE the Pest Central District Court convicted the applicant of the offence of using a totalitarian symbol . It refrained from imposing a sanction for a probationary period of DATE .

The applicant appealed to ORG ( ORG ) .

On DATE that court decided to stay the proceedings and to refer the case to ORG of ORG ( CJEU ) for a preliminary ruling under LAW establishing ORG . The reference – received at the ORG on DATE concerned the interpretation of the principle of non - discrimination as a fundamental principle of Community law .

In its order for reference , ORG observed that in several member States of ORG , such as GPE , the symbol of left - wing parties is the red star or the hammer and sickle . Therefore , the question arose whether a provision in CARDINAL member ORG of ORG prohibiting the use of the symbols of the international labour movement on pain of criminal prosecution was discriminatory , when such a display in another member ORG did not give rise to any sanction .

On DATE the ORG declared that it had no jurisdiction to answer the question referred by ORG . The relevant part of the reasoning reads as follows :

“ CARDINAL . By its question , the national court asks , essentially , whether the principle of non - discrimination , Article CARDINAL ORG , ORG CARDINAL/CARDINAL/EC of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ( ORG , p. CARDINAL ) or Articles CARDINAL , DATE and DATE of GPE , proclaimed on DATE in GPE ( OJ C CARDINAL , p. CARDINAL ) , preclude a national provision , such as LAW , which imposes sanctions on the use in public of the symbol in question in the main proceedings .

By contrast , the ORG has no such jurisdiction with regard to national provisions outside the scope of Community law and when the subject matter of the dispute is not connected in any way with any of the situations contemplated by the treaties ( see GPE , paragraphs CARDINAL and DATE ) .

It is clear that PERSON situation is not connected in any way with any of the situations contemplated by the provisions of the treaties and the NORP provisions applied in the main proceedings are outside the scope of Community law .

In those circumstances , it must be held , on the basis of LAW , that the ORG clearly has no jurisdiction to answer the question referred by the ORG . ”

On DATE ORG upheld the applicant ’s conviction .

The LAW of GPE provides , in its relevant part , as follows :

“ CARDINAL . GPE is an independent and democratic ORG under the rule of law ...

No one ’s activity shall aim at the violent acquisition or exercise of power or at its exclusive possession ... ”

“ CARDINAL . In GPE everyone has the right to freely express his opinion , and , furthermore , to have access to and distribute information of public interest . ”

The Criminal Code , as in force at the material time , provided , in so far as relevant , as follows :

“ CARDINAL . In case of a misdemeanour ( vétség ) or a felony ( bűntett ) punishable by imprisonment of up to a maximum of DATE , the court may postpone the imposition of a sentence for a probationary period if it can be presumed with good reason that the aim of the punishment may be just as well attained in this manner . ”

“ CARDINAL . NORP The probation shall be terminated and a punishment shall be imposed if ... the person on probation is convicted of an offence committed during the probationary period ... ”

“ CARDINAL . A person who commits an action whose direct objective is to change the constitutional order of GPE by means of violence or by threatening violence – in particular , using armed force – commits a felony ... ”

“ A person who incites , before a wider public , to hatred against

( a ) NORP the NORP nation , or

( b ) a national , ethnic , racial or religious community or certain groups of the population ...

commits a felony ... ”

“ CARDINAL . A person who ( a ) disseminates , ( b ) uses in public , or ( c ) exhibits a swastika , an ORG - badge , an arrow - cross , a symbol of the sickle and hammer or a red star , or a symbol depicting any of them , commits a misdemeanour – unless a more serious crime is committed DATE and shall be sentenced to a criminal fine ( pénzbüntetés ) .

The conduct proscribed under paragraph CARDINAL is not punishable , if it is done for the purposes of education , science , art or in order to provide information about history or contemporary events .

Paragraphs CARDINAL and CARDINAL do not apply to the insignia of GPE which are in force . ”

The Code of Criminal Procedure provides as follows :

“ CARDINAL . Review proceedings may be instituted in favour of the defendant if :

( b ) a human rights institution set up by an international treaty has established that the conduct of the proceedings or the final decision of the court has violated a provision of an international treaty promulgated by an act , provided that GPE has acknowledged the jurisdiction of the international human rights organisation and that the violation can be remedied through review . ”

Decision no . CARDINAL ( V. CARDINAL . ) of ORG , dealing with the constitutionality of LAW , contains the following passages :

“ ... [ N]ot only do such totalitarian symbols represent the totalitarian regimes known to and suffered by the general public , but it has from the very beginning been reflected in the legislation of GPE that the unlawful acts committed by such regimes should be addressed together ...

ORG has expressly confirmed in its decisions ... that no constitutional concern may be raised against the equal assessment and joint regulation of such totalitarian regimes ...

In DATE before the democratic transformation , only the dissemination of NORP and arrow - cross symbols had been prosecuted ... At the same time , resulting reasonably from the nature of the political regime , the use of symbols representing NORP ideas had not been punished ; on the contrary , they were protected by criminal law . In this respect , the LAW does , indeed , eliminate the former unjustified distinction made in respect of totalitarian symbols ...

The Convention ( of ORG a wide margin of appreciation in assessing what can be seen as an interference which is ‘ necessary in a democratic society’ ( PERSON , DATE ; markt intern , DATE ; ORG , DATE ; PERSON , DATE ; PERSON , DATE ) . ...

In several of its early decisions , ORG included the historical situation as a relevant factor in the scope of constitutional review ...

In its decisions so far , ORG has consistently assessed the historical circumstances ( most often , the end of the [ previous ] regime ) by acknowledging that such circumstances may necessitate some restriction on fundamental rights , but it has never accepted any derogation from the requirements of constitutionality on the basis of the mere fact that the political regime has been changed ...

The Constitutional Court points out that even the practice of ORG takes into account the specific historical past and present of the respondent State when it assesses the legitimate aim and necessity of restricting freedom of expression .

In the case of ORG v. GPE concerning the restriction of the political activities and the freedom of political debate of police officers , the ORG passed its judgment on DATE stating that ‘ the objective that the critical position of the police in society should not be compromised as a result of weakening the political neutrality of its members is an objective that can be accepted in line with democratic principles . This objective has special historical significance in GPE due to the former totalitarian system of the country where the ORG relied greatly on the direct commitment of the police forces to the ruling party’ ...

In the practice of ORG , conduct endangering public order and offending the dignity of communities may be subject to criminal - law protection if it is not directed against an expressly defined particular person ; theoretically , there is no other – less severe – tool available to achieve the desired objective than criminal sanction ...

To be a democracy under the rule of law is closely related to maintaining and operating the constitutional order ... The LAW is not neutral as regards values ; [ on the contrary , ] it has its own set of values . Expressing opinions inconsistent with constitutional values is not protected by LAW ...

The LAW belongs to a democratic ORG under the rule of law and , therefore , the constitution - making power has considered democracy , pluralism and human dignity constitutional values worth protecting ; at the same time , it makes unconstitutional any activity directed at the forcible acquisition or exercise of public power , or at the exclusive possession thereof ( LAW ) . Article CARDINAL orders the punishment of distributing , using in front of a large public gathering and exhibiting in public symbols that were used by political dictatorial regimes ; such regimes committed unlawful acts en masse and violated fundamental human rights . All of these symbols represent the despotism of the ORG , symbolise negative political ideas realised throughout the history of GPE in DATE , and are expressly prohibited by LAW , which imposes upon everyone the obligation to resist such activities ...

Using the symbols in the way prohibited by LAW can cause a reasonable feeling of menace or fear based on the concrete experience of people – including their various communities – who suffered injury in the past , as such symbols represent the risk of having such inhuman acts repeated in connection with the totalitarian ideas concerned .

In the opinion of ORG , if DATE in addition to the subject thus protected by criminal law – the protection of other constitutional values can not be achieved by other means , criminal - law protection itself is not considered to be disproportionate , provided that it is necessary to have protection against the use of such symbols . Whether or not it is necessary to have such protection in a NORP society depends on the nature of the restriction , its social and historical context , and its impact on the persons affected .

Based on the above , in the present case , the statute under review serves the purpose of protecting other constitutional values in addition to the protected subject defined in criminal law . Such values are the democratic nature of the ORG under the rule of law mentioned in LAW , the prohibition defined in LAW , as well as the requirement specified in LAW , stating that all people shall be treated by the law as persons of equal dignity ...

Allowing an unrestricted , open and public use of the symbols concerned would , in the present historical situation , seriously offend all persons committed to democracy who respect the human dignity of persons and thus condemn the ideologies of hatred and aggression , and would offend in particular those who were persecuted by NORP and communism . In GPE , the memories of both ideologies represented by the prohibited symbols , as well as the sins committed under these symbols , are still alive in the public mind and in the communities of those who have survived persecution ; these things are not forgotten . The individuals who suffered severely and their relatives live among us . The use of such symbols recalls the recent past , together with the threats of that time , the inhuman sufferings , the deportations and the deadly ideologies .

In the opinion of ORG , it is indeed a measure with a view to the protection of democratic society – and therefore not unconstitutional – if , in the present historical situation , the ORG prohibits certain conduct contrary to democracy , connected to the use of the particular symbols of totalitarian regimes , their dissemination , their use in front of a large public gathering , and a public exhibition ...

The constitutional assessment and evaluation of criminally sanctioning separate violations of the values protected by DATE namely , public order and the dignity of communities committed to the values of democracy DATE could possibly result in a different conclusion ; however , since the use of totalitarian symbols violates both values jointly and simultaneously , there is a cumulative and synergic effect reinforced by the present - day impact of recent historical events .

ORG holds that the historical experience of GPE and the danger to the constitutional values threatening NORP society reflected in the potential publicly to demonstrate activities based on the ideologies of former regimes , convincingly , objectively and reasonably justify the prohibition of such activities and the use of the criminal law to combat them . The restriction on freedom of expression found in LAW , in the light of the historical background , is considered to be a response to a pressing social need .

According to ORG , in the present historical situation , there is no effective legal tool other than the tools of criminal law and penal sanction ( ultima ratio ) against the use of the symbols specified in LAW ; the subjects committing the crime and , in particular , the CARDINAL specific types of conduct in committing the crime , require restriction for the protection of the aims represented by the constitutional values . In another country with a similar historical experience , LAW also deems it an offence , endangering the democratic ORG under the rule of law , to use the symbols ( flags , badges , uniforms , slogans and forms of greeting ) of unconstitutional organisations [ Strafgesetzbuch ( StGB ) vom CARDINAL . Mai CARDINAL ( RGBl . PERSON ) in der PERSON GPE vom CARDINAL . DATE ( BGBl . I , CARDINAL ) § ORG . ] ...

It is not prohibited by the law to produce , acquire , keep , import , export or even use such symbols provided it is not done in front of a large public gathering . There are CARDINAL specific types of conduct mentioned in the law as being contrary to the values of ORG under the rule of law ( distribution , use in front of a large public gathering and public exhibition ) , because of the tendency of such conduct not only to ‘ insult or cause amazement or GPE to the public , but also to create express fear or menace by reflecting an identification with the detested ideologies and an intention to propagate openly such ideologies . Such conduct can offend the whole of NORP society , especially the human dignity of major groups and communities which suffered from the most severe crimes committed in the name of both ideologies represented by the prohibited symbols .

On the basis of the above , in the opinion of ORG , the restriction specified in LAW is not disproportionate to the weight of the protected objectives , while the scope and the sanction of the restriction is qualified as the least severe potential tool . Therefore , the restriction of the fundamental right defined in the given provision of LAW is in compliance with the requirement of proportionality ... ”


Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - award

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

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

The applicant is married with CARDINAL children . She has a medium - level education . Prior to her early retirement she was employed for DATE and had paid her social security contributions to the ORG . Her child , born in DATE , suffers from atopic bronchial asthma ( atopowa astma oskrzelowa ) , various allergies and recurring sino - pulmonary infections .

On DATE the applicant filed an application with ORG to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

NORP The particular type of pension sought by the applicant was at the relevant time regulated by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON . DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki ) ( “ the DATE LAW ) .

Along with her application for a pension , the applicant submitted , among other documents , a medical certificate issued on DATE by a specialist in allergy and pulmonology from ORG in GPE ( GPE Opieki PERSON ) . The certificate stated that the applicant ’s DATE son had suffered from DATE from atopic bronchial asthma , various allergies , as well as frequent sinopulmonary infections often accompanied by fever and bronchial constriction ( spastyczne skurcze oskrzeli ) . Consequently , he was in need of his mother ’s constant care . It was further noted that the medical certificate had been issued in connection with the application for an early - retirement pension regulated by the DATE Ordinance in view of the need to provide permanent care to the child from DATE .

On DATE ORG ( ORG ) issued a decision granting the applicant the right to an early - retirement pension in the amount of MONEY ( ORG ) gross ( ORG CARDINAL,CARDINAL net ) , starting from DATE . In the same decision , however , ORG suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision .

On DATE the applicant resigned from her full - time job as a clerk at ORG in PERSON , where she had been employed for DATE .

Consequently , on an unspecified date , ORG issued a new decision authorising the payment of the previously awarded retirement pension starting from DATE .

Subsequently , the applicant was issued with a pensioner ’s identity card marked ‘ valid ORG and for the following DATE she continued to receive her pension without interruption .

On DATE ORG issued CARDINAL decisions . By virtue of the first decision , the payment of the applicant ’s pension was discontinued starting from DATE . By virtue of the second decision , the ORG revoked the initial decision of CARDINAL DATE and eventually refused to award the applicant the right to an early - retirement pension under the scheme provided for by the DATE Ordinance . The latter decision stated that on DATE the proceedings concerning the applicant ’s right to a pension had been re - opened ex officio and that , as a result , “ the medical certificate attached to her application for a pension had been found to raise doubts [ as to its accuracy ] ” . Furthermore , the following standard clause appeared in the decision :

“ In the light of the medical documentation obtained concerning the child , it was established that the condition with which the child had been diagnosed was not enumerated in the [ DATE ] Ordinance , and the analysis of the level of severity and the course [ of the disease ] did not indicate an impairment of bodily functions to such a degree as to justify the award of the pension [ on account of ] the necessity of permanent care of the child . It follows that the medical certificate serving as the basis for the award of the benefit is not supported by medical documentation . Consequently the right to a retirement pension is denied . ”

The applicant appealed against the decision of DATE divesting her of the right to an early - retirement pension . She submitted that she should receive the benefit because her son required her constant care , as confirmed by the medical certificate attached to the original application . Moreover , the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal .

A medical report by an expert in pulmonology was ordered by ORG . Having examined the medical documentation concerning the applicant ’s son , as well as the child in person , the expert found that the applicant ’s son suffered from sporadic bronchial asthma and recurring sinopulmonary infections . The expert concluded that the child did not require , as of DATE or at the time of the proceedings , his mother ’s permanent care , her nursing or any further aid , since his bronchial asthma did not significantly impair his respiratory functions . He further observed that the applicant ’s care was needed only when the child ’s condition occasionally became more severe .

Relying on the above expert opinion , ORG held that the applicant had been rightfully divested of the right to a pension under the scheme provided by the DATE Ordinance as she did not satisfy the requirement of necessary permanent care . ORG did not examine the case from the standpoint of the doctrine of vested rights .

On DATE ORG ( FAC ) dismissed the applicant ’s appeal against the aforementioned judgment . ORG agreed with the findings of fact contained in the expert opinion produced in the course of the first - instance proceedings to the effect that the applicant ’s son did not require at the relevant time his mother ’s permanent care .

On the issue of the re - opening of the proceedings , ORG observed that decisions concerning retirement and disability pensions were only of a declaratory character . Therefore , they could be quashed by a social security authority where new evidence had been submitted or relevant circumstances , which pre - existed the initial pension award but which had not been taken into consideration by the authority beforehand , had come to light .

Furthermore , ORG observed that pension decisions could be verified even in the light of pre - existing circumstances which had not been taken into consideration as a result of the authority ’s own mistake or negligence . On the other hand , ORG agreed with the applicant that the proceedings could not be re - opened as a consequence of a different assessment of the very same evidence which had accompanied the original application for a pension .

The Court of Appeal found that , in the instant case , the impugned pension proceedings had been re - opened because relevant circumstances pre - existing the initial pension award had been discovered by the authority in the course of a supplementary examination of the child ’s entire medical record by ORG doctor ( lekarz orzecznik ) .

Finally , ORG stated that the doctrine of vested rights did not apply to rights acquired unjustly , for example when a person had been granted a right to a pension whereas in fact he or she had never met the requirements laid down in the relevant provisions . ORG recalled that the purpose behind the DATE Ordinance was to enable the carers of children with extremely severe disorders to take early retirement . It was aimed at providing a substitute source of income in cases where persons had lost their wages owing to the need to terminate their employment in order to take care of their sick children on a permanent basis . ORG emphasised that , in such circumstances , it was necessary for the social security authorities to make a careful examination of whether or not persons applying for the right in question satisfied all the requirements .

On DATE ( decision served on DATE ) ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal , fully endorsing the Court of Appeal’authority had lacked evidence as to the severity of the child ’s condition , since the medical certificate attached to the application did not specify those activities which the child could not perform due to his alleged impairment . The fact that the aforementioned evidence had been lacking at the date of the decision did not come to light until after the validation of the decision . Therefore , the impugned proceedings had been re - opened due to the discovery of new relevant circumstances and not on the basis of a reexamination of the very same evidence attached to the applicant ’s application for a pension .

The applicant was not ordered to return her early - retirement benefits paid by ORG from DATE until DATE , despite the revocation of her right to the early - retirement pension .

In the period from DATE ( the date on which the payment of the applicant ’s “ EWK ” pension was discontinued ) to DATE the applicant was not in receipt of any social benefits . The applicant submitted that in that period she had had no other income .

As a result of separate social security proceedings , which had been instituted by the applicant , ORG ( ORG ) decided on DATE to grant the applicant a preretirement benefit ( zasiłek przedemerytalny ) in the amount of MONEY ( ORG ) net . Because , under the applicable law , a DATE statute of limitations applies to social security claims the decision to grant the right had a retroactive effect , with a starting date of DATE .

As a result , on an unspecified date , presumably on DATE , the applicant received a pre - retirement benefit in the form of a lump - sum payment for the period DATE and DATE , without interest .

The benefit was at first paid by ORG ( Powiatowy Urząd Pracy ) and since DATE it was paid by ORG . As of DATE the applicant ’s preretirement benefit amounts to MONEY ( ORG ) net .

In the light of the law as it now applies , it appears that the applicant will qualify for a regular retirement pension in DATE .

CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The applicant in the instant case and most of the other applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .

The applicant submitted , according to the ORG , that PERCENT of the total number of “ EWK ” pension recipients had been subjected to review and re - opening under LAW of the DATE Law .

The Government submitted that as of DATE approximately CARDINAL individuals had been in receipt of the “ EWK ” pension . Although there were no statistics as to how many pensions had been revoked either countrywide or in each region , that number was very small .

The system of social security in GPE is regulated by LAW DATE on the system of social insurance ( Ustawa o systemie ubezpieczeń społecznych ) and a number of other acts applying to specific occupational groups and regulating specific types of benefits .

Proceedings for granting welfare benefits are CARDINAL - tier . First , an application for a benefit is made to the regional ORG . The board makes an assessment of the eligibility criteria for each type of benefit and issues a decision . Then , in the event that an individual concerned appeals , the decision becomes subject to judicial review by a social security court , which is a specialised branch of a regional civil court . ORG is a ORG authority which carries out administrative functions and issues declaratory decisions . In the judicial review phase , the ORG becomes a party to the proceedings before the social security court .

A judicial decision taken by the regional social security court may then be challenged by either party to the proceedings before a special social security branch of a court of appeal . Ultimately , a decision delivered by an appellate court may be appealed to ORG . This remedy is available irrespective of the amount of the claim .

The DATE Ordinance ceased to be in force on DATE . However , its provisions remained in operation with regard to persons who had met the requirements of an early - retirement pension before that date but had failed to apply for the benefit in due time . The conditions to be fulfilled by a person in order to qualify for an early - retirement pension were laid down by paragraph CARDINAL of the DATE Ordinance .

Paragraph CARDINAL.CARDINAL contained a reference to LAW paragraph CARDINAL point CARDINAL of the LAW DATE on retirement pensions of employees and their families . In the relevant part it provided that persons entitled to an earlyretirement pension were those persons ( both women and men ) who had been employed for CARDINAL or DATE and who personally took care of a child .

Paragraph CARDINAL.CARDINAL provided that for children under the age of DATE it was not necessary to submit an official ORG disability certificate . It was sufficient to present a medical certificate issued by a specialist medical clinic stating : “ due to the health condition , caused by CARDINAL of the diseases enumerated in paragraph CARDINAL , the child requires permanent care ” .

Paragraph CARDINAL.CARDINAL provided that early retirement was justified by the following physical and/or mental conditions of the child :

“ CARDINAL . Complete dysfunction of upper or lower limbs , pareses and palsies , which prevent the child from independent movement and from controlling his or her physiological functions ;

Mild , moderate and severe mental retardation , mental disorders , injury or disease of the central nervous system , making impossible autonomy in decisions or in DATE activities ;

Mild mental retardation with accompanying significant impairment of movement , sight , hearing or other chronic diseases significantly impairing bodily functions ;

Other diseases impairing body effectiveness to a very serious degree . ”

The re - opening of the proceedings concerning the benefit in question is regulated in CARDINAL of the DATE Law , which at the relevant time read as follows :

“ CARDINAL.CARDINAL The right to benefits or the amount of benefits will be re - assessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”

In its resolution of CARDINAL DATE ( no . III UZP CARDINAL/CARDINAL ) , adopted by a bench of CARDINAL judges , ORG ( Sąd Najwyższy ) dealt with the question submitted by the Ombudsman ( PERSON ) as to whether a different assessment of the evidence attached to the application for a pension , carried out by a social security authority after validation of the decision concerning the pension , might constitute a ground for reopening the proceedings leading to a review of the right to a pension in accordance with CARDINAL of the PERSON of DATE on retirement and disability pensions paid from ORG . The answer was in the negative . ORG held , inter alia :

“ A different assessment of the [ same ] evidence as attached to the application for a retirement or disability pension , carried out by a social security authority after validation of the decision awarding the right to a pension , is not one of the circumstances justifying the ex officio re - opening of the proceedings for a review of the right to a pension in accordance with section CARDINAL of the Law of CARDINAL DATE on retirement and disability pensions paid from ORG . ”


CASE OF STETSENKO AND STETSENKO v. RUSSIA

Violation of Art. 6-1 (quashing of final judgment);Not necessary to examine other complaint under Art. 6-1;Remainder inadmissible;Pecuniary damage - financial awards;Non-pecuniary damage - financial awards;Costs and expenses (Convention proceedings) - partial award

The applicants were born in DATE and DATE , respectively , and live in the town of GPE .

On DATE the applicants sued ORG for arrears and an increased interest on their savings deposited with the bank .

On DATE and CARDINAL DATE the ORG of GPE issued judgments . Both judgments were quashed on appeal on DATE and DATE , respectively , and the case was remitted for a fresh examination by ORG .

On DATE ORG dismissed the applicants ' action . On DATE ORG , acting on appeal , quashed the judgment of DATE and ordered re - examination of the case .

On DATE ORG partly accepted the applicants ' action , awarded the first applicant MONEY ( ORG , MONEY ) and the second applicant RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL ) in arrears and dismissed the remainder of their claims .

On DATE ORG upheld the judgment of DATE in the part concerning payment of arrears , which accordingly became final , but remitted the remainder of the claims for a new examination .

ORG issued writs of execution and on DATE the applicants lodged the writs with bailiffs .

On DATE the President of ORG lodged before the Presidium of ORG an application for a supervisory review of the judgments of DATE and DATE and DATE .

A supervisory - review hearing was listed for DATE and the applicants were summoned .

The applicants arrived to the courthouse on DATE . They were invited to a courtroom and asked whether they supported the application for a supervisory review . After the applicants had objected to the review they were asked to leave the courtroom .

On DATE the Presidium of ORG , by way of the supervisory - review proceedings , quashed the judgments of CARDINAL October and DATE and DATE and upheld the judgment of CARDINAL DATE .


CASE OF VAN DER HEIJDEN v. THE NETHERLANDS

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Nicolas Bratza

The applicant was born in DATE and lives in ‘ s - Hertogenbosch .

On TIME DATE , a man was shot and killed in a café in ‘ s - Hertogenbosch by a person believed to be the applicant ’s unmarried life partner , PERSON The applicant was understood to have been in the company of PERSON at the relevant time .

According to the Government , PERSON had been convicted of similar offences in DATE and DATE , and on the latter occasion of attempted manslaughter using a firearm . While serving his sentence for that offence , PERSON had been given DATE leave ; it was during DATE that the above - mentioned shooting took place .

On DATE , having been summoned as a witness in the criminal investigation that had been opened against PERSON , the applicant appeared but refused to testify before the investigating judge ( rechtercommissaris ) . She explained that , although they were not married and had not entered into a registered partnership ( geregistreerd partnerschap ) , she and PERSON had been cohabiting for DATE in a relationship out of which CARDINAL children had been born , both of whom had been recognised by PERSON The applicant argued that on the basis of this relationship she should be regarded as entitled to the testimonial privilege ( verschoningsrecht ) afforded to ORG spouses and registered partners under LAW , opening sentence and sub - paragraph CARDINAL , of LAW ( PERSON ; see paragraph CARDINAL below ) . Although being of the view that the applicant was not entitled to testimonial privilege , the investigating judge rejected the public prosecutor ’s request to issue an order for the applicant ’s detention for failure to comply with a judicial order ( gijzeling ) , finding that the applicant ’s personal interests in remaining at liberty outweighed those of the prosecution . The public prosecutor appealed against this decision to the ‘ s - ORG ( rechtbank ) .

On DATE the ‘ s - ORG , sitting in chambers ( raadkamer ) , quashed the investigating judge ’s decision of CARDINAL DATE and ordered the applicant ’s detention for failure to comply with a judicial order . It considered that it could reasonably be assumed that the applicant was able to convey what had occurred in relation to PERSON before , during and after the shooting . It noted that , according to the provisions of LAW , opening sentence and sub - paragraph CARDINAL , of LAW as in force from DATE , the ( former ) spouse or the ( former ) registered partner of a suspect were competent but not compellable witnesses , that is to say , persons entitled to testimonial privilege . It further held :

“ It follows from the wording and the legal history of [ Article CARDINAL , opening sentence and sub - paragraph CARDINAL , ] that the legislature has quite recently and unambiguously chosen not to include in the scope of [ the privilege set out in Article CARDINAL , opening sentence and sub - paragraph CARDINAL , ] any partners other than spouses and registered partners ( as well as former spouses and former registered partners ) . As it does not appear that [ the applicant ] and the suspect are or have been married or that they are or have been registered partners , ORG is of the view that [ the applicant ] can not claim an entitlement to the testimonial privilege laid down in LAW . This is not altered by the fact that [ the applicant ] and the suspect are engaged in another kind of longterm cohabitation . ORG rejects the argument raised by counsel for [ the applicant ] that it follows from ORG CARDINAL and CARDINAL of the Convention that the GPE legislature can not limit the group of persons ( related to a suspect ) entitled to testimonial privilege . An extension of that group must , also in view of the far - reaching consequences thereof , be decided by the legislature and for that reason goes beyond the judicial function ( rechtsvormende taak ) of the courts . ”

In its subsequent balancing of the competing interests involved , ORG noted that the facts at issue concerned CARDINAL of the most serious crimes set out in LAW ( PERSON ) and concluded that the applicant ’s personal interests were outweighed by the general interest of the truth being uncovered . It further added that the circumstance that the applicant and PERSON were cohabiting as if they were in a marriage or a registered partnership could not lead it to balance the interests differently . Rejection of the request to issue a detention order on the basis of that circumstance would entail that the applicant was nevertheless , and in circumvention of LAW , granted a right to testimonial privilege , and that would be contrary to the legislature ’s choice .

On DATE , DATE , at TIME , the applicant was taken into detention for failure to comply with a judicial order . As required by LAW ( see paragraph CARDINAL below ) , the applicant was heard on DATE by an investigating judge , who rejected a release request by counsel for the applicant and who notified ORG within the statutory time - limit of TIME after she was taken into detention .

On DATE ORG , sitting in chambers , examined whether the applicant ’s detention should continue , and in that context it heard the applicant , who persisted in her refusal to give evidence in the criminal investigation against PERSON ORG agreed with the decision taken in chambers on DATE that the applicant was not entitled to testimonial privilege . Concluding that the interests of the investigation in obtaining the applicant ’s evidence outweighed the interests invoked on behalf of the applicant , ORG decided that the applicant was to be kept in detention for DATE , with a possibility of further extension . The applicant lodged an appeal with ORG ( gerechtshof ) .

On DATE ORG , sitting in chambers , examined a request by the prosecution of DATE to extend the applicant ’s detention . After hearing the public prosecutor , the applicant and her lawyer ORG rejected the request and ordered the applicant ’s immediate release . It found that the interest of the truth being uncovered in the criminal proceedings against PERSON was outweighed by the applicant ’s personal interest in being released , also taking into account the fact that the applicant ’s detention entailed an interference with her rights under LAW ( “ mede gelet op het feit dat de vrijheidsbeneming van de getuige een inbreuk op artikel CARDINAL van het EVRM tot gevolg heeft ” ) .

On DATE , the ‘ s - ORG dismissed the applicant ’s appeal ( hoger beroep ) and upheld the impugned decision of DATE .

On DATE , after noting that the applicant had been released on DATE , ORG ( PERSON ) declared inadmissible for lack of interest the applicant ’s subsequent appeal on points of law ( cassatie ) . ORG nevertheless saw fit to consider the applicant ’s first complaint that ORG had incorrectly upheld the ruling of ORG in which it was concluded that she was not entitled to the testimonial privilege of Article CARDINAL , opening sentence and sub - paragraph CARDINAL , of LAW , as well as her second complaint that to deny her this privilege was contrary to Articles CARDINAL and CARDINAL of the Convention .

Having noted the wording of Article CARDINAL , opening sentence and subparagraph CARDINAL , of LAW as in force since DATE , ORG rejected the first complaint . As to the applicant ’s grievance based on ORG CARDINAL and CARDINAL of the Convention , ORG held :

“ Testimonial privilege as laid down in LAW , opening sentence and sub - paragraph CARDINAL , of LAW seeks to protect the ‘ family life’ within the meaning of LAW that exists between the spouses and partners referred to in that provision . By granting this privilege to spouses and registered partners but not to other partners – even when such partners , like the applicant and her partner , cohabit in a sustained fashion – the law differentiates between the different forms of cohabitation at issue here . Even assuming that this can be said to constitute a difference in treatment of persons in the same situation , there is an objective and reasonable justification for this difference in treatment , having regard to the fact that the granting of testimonial privilege to spouses and registered partners is an exception to the statutory duty to testify , which exception makes the interest of uncovering the truth yield to the interests of those relationships , with the statutory arrangement delimiting this exception in a clear and workable manner , thus serving legal certainty . ”

No further appeal lay against this ruling .

Unlike the suspect , a witness in ( preliminary ) criminal proceedings is obliged to answer questions put to him or her when he or she is under oath , and any deliberate refusal to do so constitutes a criminal offence under LAW . However , LAW grants the right not to give evidence to certain relatives of the suspect .

Article CARDINAL of the Code of Criminal Procedure provides as follows :

“ The following shall be excused the obligation to give evidence or answer certain questions :

CARDINAL : NORP the relatives in the ascending or the descending line of a suspect or co - suspect , whether connected by blood or by marriage ;

CARDINAL : NORP the relatives ex transverso [ i.e. siblings , uncles , aunts , nieces and nephews , etc . ] of a suspect or co - suspect , whether connected by blood or by marriage , up to and including the third degree of kinship ;

CARDINAL : NORP the spouse or former spouse , or registered partner or former registered partner , of a suspect or co - suspect . ”

The third sub - paragraph formerly applied only to the spouse and the former spouse of a suspect or co - suspect . It was amended to extend the testimonial privilege to the registered partner ( or former registered partner ) with effect from DATE , when LAW ( GPE geregistreerd partnerschap ) and LAW on the Adaptation of Legislation to LAW into Book CARDINAL of the Civil Code ( Wet tot aanpassing van wetgeving aan de invoering van het geregistreerd partnerschap in PERSON ) entered into force .

As can be inferred from the Explanatory Memorandum ( PERSON ) to LAW ( see Parliamentary Documents , ORG of ORG ( PERSON ) CARDINAL , CARDINAL , no . CARDINAL , p. CARDINAL ) , and from an advisory opinion of ORG endorsed by ORG in a judgment of DATE ( National LAW , published in PERSON ( GPE Law Reports ) DATE , no . CARDINAL ) , the basis for this testimonial privilege lies in the sphere of the protection of family relations . In accepting the right not to give evidence against a relative , spouse or registered partner , the legislature has acknowledged the important social value of those relationships in society and has sought to prevent witnesses from being faced with a moral dilemma by having to make a choice between testifying , and thereby jeopardising their relationship with the suspect , or giving perjured evidence in order to protect that relationship .

Article CARDINAL of LAW provides as follows :

“ CARDINAL . If , when questioned , the witness refuses without any lawful reason to answer the questions put to him or to make the required statement or take the required oath or affirmation , the investigating judge shall , if this is urgently required in the interest of the investigation , either proprio motu or if so requested by the public prosecutor or by the defence , order that the witness shall be detained for failure to comply with a judicial order until ORG has given a decision in the matter .

NORP The investigating judge shall notify ORG within TIME after the detention has commenced , unless the witness is released from detention before then . ORG shall , within TIME [ from the notification ] , order that the witness be kept in detention or released . ”

“ CARDINAL . ORG order for the witness to remain in detention shall be valid for no longer than DATE .

NORP However , as long as the preliminary judicial investigation ( gerechtelijk vooronderzoek ) remains pending , ORG may , on the basis of the findings of the investigating judge or at the request of the public prosecutor , after having again questioned the witness , extend the validity of the order again and again ( telkens ) for DATE each time . ”

“ CARDINAL . The investigating judge shall order the witness released from detention as soon as he has fulfilled his obligation or his evidence is no longer needed .

ORG may at any time order the witness released from detention , whether on the basis of the findings of the investigating judge , proprio motu or if so requested by the public prosecutor or by the defence . The witness shall be heard or summoned beforehand .

NORP If the witness ’s request to be released from detention is refused , he may appeal within DATE of the official notification of the decision , and in the event that his appeal is dismissed , he may within the same time - limit lodge an appeal on points of law . ...

NORP In any event , the public prosecutor shall order that the witness be released as soon as the preliminary judicial investigation has been closed or discontinued . ”

A partnership is registered by means of a registration document drawn up by ORG , Deaths and Marriages ( ambtenaar van de burgerlijke stand ) ( LAW ) ; the formal requirements are similar to those of a marriage . It can be dissolved by mutual consent , by the registration of a statement to that effect signed by both parties and co - signed by an advocate or a notary , or by a court order at the request of CARDINAL of the parties ( Article CARDINAL of LAW ) .

The provisions of the Civil Code setting out the legal consequences of marriage apply by analogy to a registered partnership , with the exception of certain rules governing the establishment of legal family ties ( familierechtelijke betrekkingen ) with descendants ( Article CARDINAL of LAW ) .

On DATE , in response to a request made during the ORG ’s hearing ( see paragraph CARDINAL above ) , the Government supplied the following information :

“ In DATE article CARDINAL of the Code of Criminal Procedure ( ORG ) was amended to the extent that the right to be exempted from testifying would also apply to a witness who had entered into a registered partnership with the defendant . This amendment in itself did not lead to any debate on the question whether other forms of relationships should be entitled to the same exemption .

However , this amendment – among many others – was a consequence of the introduction of registered partnership , which in turn was preceded by a full survey ( concluded in DATE , [ Parliamentary Documents , ORG of ORG , DATE , no . CARDINAL ] ) of all legislation that made a distinction between married and unmarried couples . With regard to article CARDINAL ORG the survey mentioned that an amendment should be considered to the effect that the article would include a life partner ( p. CARDINAL ) .

Following this survey the ORG committee [ a committee tasked with reviewing legislative projects , named after its chairman , Professor PERSON ] presented its report ‘ Partnerships’ ( ORG , DATE ) to the ORG . The committee was of the opinion that the best way to remove all existing distinctions would be to introduce CARDINAL new possibilities of registering partnerships in addition to marriage . Together these CARDINAL forms of registration could be used as categories in most legal provisions that attached legal consequences to different types of partnerships .

Following further discussion in parliament ( [ Parliamentary Documents , ORG of ORG , DATE , ORG . CARDINAL , DATE and DATE ] ) the Government decided to introduce CARDINAL new form of registration , which then became known as registered partnership . In doing so , the Government accepted that in several instances , specific provisions might be required to accommodate situations of family life not covered by the accepted categories . However , in the context of article CARDINAL ORG this was not considered necessary . ”

All Council of Europe Member GPE have addressed in their legislation the question whether in criminal proceedings the spouse of the defendant can be compelled to give evidence . The following is a brief and necessarily condensed survey of the position in the various domestic legal orders . It is based on information available to the ORG at the time of its hearing ( see paragraph CARDINAL above ) .

In no ORG member ORG , with the exception of GPE and GPE , are spouses obliged to give evidence in criminal proceedings in which the other spouse is a suspect . In a few cases , namely GPE , GPE and GPE , exclusion of the evidence of the suspect ’s spouse is automatic ; in general , however , the spouse may opt to give evidence or claim a privilege or an exemption when called as a witness .

The possibility formally to register a partnership exists in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE ( some of the autonomous communities ) , GPE , GPE , GPE and GPE . Some of these GPE allow such registration only if the parties are of the same sex ( including GPE , GPE , GPE , GPE , GPE , GPE and GPE ) ; the other member GPE concerned provide registration of a partnership as an alternative to marriage when the parties are a man and a woman .

Of the CARDINAL member GPE that allow the registration of partnerships , CARDINAL are prepared to exempt the suspect ’s registered partner from giving evidence : these are GPE , GPE , GPE , GPE , GPE and the GPE , whose legislation explicitly so provides , and GPE , GPE , GPE , GPE , GPE , GPE and GPE , whose laws assimilate registered partnership to marriage in this aspect as in others . GPE and GPE do not extend this privilege to registered partners ; GPE and GPE grant no testimonial privilege at all .

A minority of member GPE – namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE – exempt the person engaged to be married to the suspect from the duty to give evidence . However , apart from GPE , GPE , GPE , GPE , GPE , GPE and GPE , these member States qualify this exemption by requiring evidence of the existence of a bond similar to marriage , such as stable cohabitation or a child born of the relationship .

Cohabitees who are not married , engaged to be married or in a registered partnership with the suspect appear to be dispensed from giving evidence unconditionally only in GPE , GPE , GPE and GPE . By contrast , GPE , GPE , GPE , GPE , GPE , GPE , “ the Former GPE ” , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE require proof of the marriage - like nature of the relationship , usually in the form of children born of it , demonstrable financial arrangements or length of cohabitation . It would appear that the other ORG member GPE do not permit a person merely cohabiting with the suspect to withhold his or her evidence .