The applicant , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by PERSON , a member of the ORG d’Etat and ORG .

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

DATE clashes occurred between NORP of NORP - Berber origin and others belonging to black NORP ethnic groups . Some servicemen from these ethnic groups , accused of mounting a coup ORG , were taken prisoner . Some of them were subjected to acts of torture or barbarity by their guards , among whom was the applicant , an intelligence officer at the PERSON army headquarters in GPE , holding the rank of lieutenant .

On DATE an amnesty law was passed in favour of members of the armed forces and the security forces who had committed offences DATE and DATE in connection with the events giving rise to armed conflict and acts of violence . By virtue of that law , no proceedings were brought against the applicant for offences committed against prisoners .

In DATE the applicant , who was by then captain of the NORP army , arrived in GPE for a training course at ORG .

On DATE ORG ) and ORG ( ORG ) lodged a criminal complaint against the applicant , together with an application to join the proceedings as civil parties , for acts of torture allegedly committed by him in GPE in DATE and DATE . These criminal proceedings were based on ORG and Other Cruel , Inhuman or Degrading Treatment or Punishment ( hereinafter “ LAW ” ) , adopted by ORG of ORG on DATE , which was ratified by GPE and came into force on CARDINAL DATE .

The applicant was arrested on DATE .

On DATE an investigation was begun and the applicant was charged with committing acts of torture or barbarity . He was placed in pre - trial detention until DATE , before being released on bail . The applicant absconded on an unknown date . A warrant was issued for his arrest in DATE .

On DATE the investigating judge committed the applicant for trial on charges of committing , and aiding and abetting acts of torture and barbarity . The judge based the indictment on the witness evidence of CARDINAL former servicemen and the widow of a tenth serviceman . CARDINAL of the witnesses , who had taken refuge in GPE , had been confronted with the applicant during the investigation , while the others had provided written statements . The applicant appealed against the committal order .

In a judgment of DATE , ORG of ORG declared the applicant ’s appeal inadmissible on the ground that it had been lodged too late . The applicant appealed on points of law .

On DATE ORG quashed ORG judgment and remitted the case to ORG .

In a judgment of DATE , ORG of ORG upheld the order of the investigating judge and committed the applicant for trial before ORG . It found that the condition provided for in LAW was satisfied , as the acts in question had been carried out in the context of an “ ethnic purge ” and a massive campaign of repression conducted by the NORP government in power at the time , and that the applicant had acknowledged having acted in an official capacity , within the meaning of the Convention provisions , as an intelligence officer and member of the investigating committee . ORG also considered that the provisions of Articles CARDINAL , CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW and LAW vested jurisdiction in the NORP courts to try the case , apply LANGUAGE law and override an amnesty law passed by a foreign State where application of that law would result in a breach of GPE ’s international obligations and render the principle of universal jurisdiction totally ineffective . As the principle of lawfulness did not preclude an offence from being defined in a treaty or an international agreement , the latter prevailing over the law , it held that while “ acts of torture ” had , since the new Criminal Code , been classified as a “ separate crime ” defined and punishable under ORG CARDINAL - CARDINAL et seq . of LAW , such acts had previously constituted an aggravating circumstance in respect of certain offences , and particularly the crime of aggravated assault provided for in LAW and CARDINAL of the Criminal Code , now repealed , which was a crime punishable by “ CARDINAL to CARDINAL years’ imprisonment ” . ORG concluded that the offence with which the applicant was charged DATE which constituted a crime – was not time - barred and that the only limit in terms of punishment was that only those penalties applicable at the relevant time could be imposed , unless a more lenient criminal law had since been passed .

In a judgment of DATE , ORG dismissed an appeal on points of law lodged by the applicant , finding that ORG had justified its decision in respect of all the points raised by the applicant .

As the applicant had absconded , a summons to appear before ORG was served at the public prosecutor ’s office on CARDINAL DATE .

On DATE the trial was held before ORG . Counsel for the accused was heard in the latter ’s absence .

On DATE ORG delivered CARDINAL judgments . In the first one it sentenced the applicant to CARDINAL years’ imprisonment for intentionally subjecting certain persons to acts of torture and barbarity and , in addition , causing such acts to be committed against other detainees by abuse of his official position or by giving instructions to servicemen to commit such acts . ORG referred , inter alia , to Articles CARDINAL and CARDINAL of the former Criminal Code , LAW , and to LAW . In the second judgment it awarded damages to the various civil parties .

“ Any criminals , irrespective of the type of offence they have committed , who use torture or commit acts of barbarity in the execution of their crime shall be punished as being guilty of murder .

Anyone who , in perpetrating their offence , uses torture or commits acts of barbarity shall be punished by CARDINAL to ten years’ imprisonment . ”

“ Anyone who has intentionally wounded another or committed violence or assault resulting in sickness or total unfitness for work for DATE shall be liable to between CARDINAL months’ and CARDINAL years’ imprisonment and to a fine of MONEY or to CARDINAL of those penalties alone . ... ”

“ Anyone who subjects another to torture or to acts of barbarity shall be liable to DATE imprisonment .

The first CARDINAL paragraphs of Article CARDINAL relating to the minimum term of imprisonment shall apply to the offence provided for in the present Article . ”

The circular of CARDINAL DATE , which contains commentaries on the new Criminal Code and the provisions of the LAW DATE , specifies as follows :

“ [ t]he expression torture and acts of barbarity shall retain the meaning currently ascribed to it in the case - law where such acts are referred to as an aggravating circumstance . ”

Both the crime instituted by the law and the former aggravating circumstance of torture or acts of barbarity presuppose the establishment of an actus reus , consisting of the commission of CARDINAL or more acts of exceptional seriousness which go beyond mere violence and cause the victim severe pain or suffering , and mens rea , consisting of the intention to deny a person their human dignity ( ORG of ORG , judgment of DATE , commentary in PERSON , DATE , p. CARDINAL , and cited in LAW pénal ( “ LAW ” ) , ed . PERSON ) .

According to the case - law of ORG , the new provisions relating to torture and acts of barbarity ensure continuity of the definition of the offence as expressed in the former LAW ( Bull . crim . CARDINAL DATE , ORG . no . CARDINAL , appeal no . CARDINAL - CARDINAL : a court which commits an accused for trial before ORG on the ground that LAW of the new LAW – making it a crime to commit torture or acts of barbarity concurrently with a sexual offence – ensures continuity of the offence provided for in former LAW , introduced by LAW DATE and making it an offence to commit indecent assault accompanied by torture or acts of barbarity , makes a proper application of successive criminal laws ) .

The circular of CARDINAL DATE also specifies that the provisions of the new Criminal Code are of much broader application than those of LAW , the latter applying only to acts perpetrated by public officials for specific motives . It also indicates that the new definition remedies substantial loopholes in the punishment of the crime by allowing not only the degree of injury suffered by the victim to be taken into account , but also the seriousness of the violent act in question , irrespective of its consequences . In particular , it remedies the disadvantages arising from the inability to punish attempted wilful assault under the former system .

“ An accused who fails to attend the opening of his or her trial without a valid excuse shall be tried in absentia in accordance with the provisions of the present chapter . The same shall apply where the accused is recorded absent during the proceedings and it is not possible to stay the proceedings pending his or her return . ... ”

“ An accused who is convicted in absentia can not appeal . ”

“ Perpetrators of or accomplices to offences committed outside the territory of the Republic may be prosecuted and tried by the NORP courts either where NORP law is applicable under the provisions of Book I of the Criminal Code or another statute , or where an international convention confers jurisdiction on the NORP courts to deal with the offence . ”

“ Under the international conventions referred to in the following ORG , anyone who is guilty of having committed any of the offences listed in these provisions outside the territory of the Republic and is present in GPE may be prosecuted and tried by the NORP courts . The provisions of the present Article shall apply to attempts to commit these offences , whenever an attempt is punishable . ”

“ For the implementation of the [ ORG and Other Cruel , Inhuman or Degrading Treatment or Punishment , adopted in GPE on DATE , anyone guilty of committing torture within the meaning of LAW may be prosecuted and tried in accordance with the provisions of LAW . ”

Article CARDINAL

“ CARDINAL . For the purposes of this Convention , the term ‘ torture’ means any act by which severe pain or suffering , whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . It does not include pain or suffering arising only from , inherent in or incidental to lawful sanctions .

This Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application . ”

Article CARDINAL

“ CARDINAL . Each State Party shall take effective legislative , administrative , judicial or other measures to prevent acts of torture in any territory under its jurisdiction .

No exceptional circumstances whatsoever , whether a state of war or a threat of war , internal political instability or any other public emergency , may be invoked as a justification of torture .

An order from a superior officer or a public authority may not be invoked as a justification of torture . ”

Article CARDINAL

“ CARDINAL . Each State Party shall ensure that all acts of torture are offences under its criminal law . The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture .

Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature . ”

Article CARDINAL

“ CARDINAL . Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in DATE in the following cases :

( a ) when the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that ORG ;

( b ) when the alleged offender is a national of that ORG ;

( c ) when the victim is a national of that ORG if that ORG considers it appropriate .

Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to LAW mentioned in paragraph CARDINAL of this Article .

This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law . ”

Article CARDINAL

“ CARDINAL . Upon being satisfied , after an examination of information available to it , that the circumstances so warrant , any ORG in whose territory a person alleged to have committed any offence referred to in DATE is present shall take him into custody or take other legal measures to ensure his presence . The custody and other legal measures shall be as provided in the law of that ORG but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted .

Such State shall immediately make a preliminary inquiry into the facts .

Any person in custody pursuant to paragraph CARDINAL of this Article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national , or , if he is a stateless person , with the representative of the State where he usually resides .

When a ORG , pursuant to this LAW , has taken a person into custody , it shall immediately notify the ORG referred to in DATE , paragraph CARDINAL , of the fact that such person is in custody and of the circumstances which warrant his detention . The ORG which makes the preliminary inquiry contemplated in paragraph CARDINAL of this Article shall promptly report its findings to the said GPE and shall indicate whether it intends to exercise jurisdiction . ”

Article CARDINAL

“ CARDINAL . ORG in the territory under whose jurisdiction a person alleged to have committed any offence referred to in DATE is found shall in the cases contemplated in LAW , if it does not extradite him , submit the case to its competent authorities for the purpose of prosecution .

These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that ORG . In the cases referred to in DATE , paragraph CARDINAL , the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in DATE , paragraph CARDINAL .

Any person regarding whom proceedings are brought in connection with any of the offences referred to in LAW shall be guaranteed fair treatment at all stages of the proceedings . ”

Article CARDINAL

“ No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . ”

Article CARDINAL [ common to the LAW ]

“ In the case of armed conflict not of an international character occurring in the territory of CARDINAL of the High Contracting Parties , each ORG to the conflict shall be bound to apply , as a minimum , the following provisions :

Persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed hors de combat by sickness , wounds , detention , or any other cause , shall in all circumstances be treated humanely , without any adverse distinction founded on race , colour , religion or faith , sex , birth or wealth , or any other similar criteria .

To this end , the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above - mentioned persons :

( a ) violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ;

( c ) NORP outrages upon personal dignity , in particular humiliating and degrading treatment ;

Article CARDINAL

“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment . ”

“ No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . In particular , no one shall be subjected without his free consent to medical or scientific experimentation . ”

ORG stated in DATE in its General Comment No . CARDINAL on LAW that it had noted that some States had granted amnesty in respect of acts of torture , while stating that “ amnesties are generally incompatible with the duty of GPE to investigate such acts ; to guarantee freedom from such acts within their jurisdiction ; and to ensure that they do not occur in the future . States may not deprive individuals of the right to an effective remedy , including compensation and such full rehabilitation as may be possible ” ( Compilation of General Comments and General Recommendations Adopted by LAW , ORG . ORG ( DATE ) , p. CARDINAL ) .

“ CARDINAL . Every person has the right to have his physical , mental , and moral integrity respected .

No one shall be subjected to torture or to cruel , inhuman , or degrading punishment or treatment . All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person . ”

Article CARDINAL

Without prejudice to the generality of the foregoing , the following acts against the persons referred to in paragraph CARDINAL are and shall remain prohibited at any time and in any place whatsoever :

( a ) violence to the life , health and physical or mental well - being of persons , in particular murder as well as cruel treatment such as torture , mutilation or any form of corporal punishment ;

“ Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status . All forms of exploitation and degradation of man , particularly slavery , slave trade , torture , cruel , inhuman or degrading punishment and treatment , shall be prohibited . ”

“ CARDINAL . Having regard to paragraph CARDINAL of the Preamble and LAW , the ORG shall determine that a case is inadmissible where :

( a ) the case is being investigated or prosecuted by a ORG which has jurisdiction over it , unless the ORG is unwilling or unable genuinely to carry out the investigation or prosecution ;

( b ) the case has been investigated by a ORG which has jurisdiction over it and the ORG has decided not to prosecute the person concerned , unless the decision resulted from the unwillingness or inability of the ORG genuinely to prosecute ;

( c ) NORP the person concerned has already been tried for conduct which is the subject of the complaint , and a trial by the Court is not permitted LAW CARDINAL , paragraph CARDINAL ;

( d ) the case is not of sufficient gravity to justify further action by the ORG .

NORP In order to determine unwillingness in a particular case , the ORG shall consider , having regard to the principles of due process recognised by international law , whether one or more of the following exist , as applicable :

( a ) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ORG referred to in DATE ;

( b ) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice ;

( c ) the proceedings were not or are not being conducted independently or impartially , and they were or are being conducted in a manner which , in the circumstances , is inconsistent with an intent to bring the person concerned to justice .

NORP In order to determine inability in a particular case , the ORG shall consider whether , due to a total or substantial collapse or unavailability of its national judicial system , the ORG is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings . ”

In a judgment of DATE ( Case concerning LAW DATE , GPE v. GPE ) , ORG observed that GPE was no longer invoking the matter of GPE ’s claim to exercise universal jurisdiction and decided to confine its examination to the issue of respect for the immunities which the NORP Minister for ORG enjoyed in the exercise of his functions . The question of the NORP judge ’s powers and , accordingly , the exercise of universal jurisdiction was nonetheless addressed by certain judges in separate opinions annexed to the judgment ( particularly , in the above - mentioned case , with regard to the universal jurisdiction by default thus exercised by GPE ) .

In the case of Prosecutor v. PERSON ( judgment of DATE ( IT-CARDINAL - CARDINAL/CARDINAL-T ) ) , ORG for the former GPE held as follows :

“ CARDINAL . Because of the importance of the values it protects , this principle [ the principle of the prohibition against torture ] has evolved into a peremptory norm or jus cogens , that is , a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ ORG customary rules . The most conspicuous consequence of this higher rank is that the principle at issue can not be derogated from by GPE through international treaties or local or special customs or even general customary rules not endowed with the same normative force .

Clearly , the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become CARDINAL of the most fundamental standards of the international community . Furthermore , this prohibition is designed to produce a deterrent effect , in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate .

... It would be senseless to argue , on the one hand , that on account of the jus cogens value of the prohibition against torture , treaties or customary rules providing for torture would be null and void ab initio , and then be unmindful of a ORG say , taking national measures authorising or condoning torture or absolving its perpetrators ...

Furthermore , at the individual level , that is , that of criminal liability , it would seem that CARDINAL of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every ORG is entitled to investigate , prosecute and punish or extradite individuals accused of torture , who are present in a territory under its jurisdiction . ... ”

Similar findings can be found in the judgments Prosecutor v. Mucić and Others ( DATE , IT-CARDINAL - CARDINAL-T , § CARDINAL ) and Prosecutor v. PERSON ( DATE , IT-CARDINAL - CARDINAL-T and IT-CARDINAL - CARDINAL , § CARDINAL ) .


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

The applicant , PERSON , is an NORP national who lives in GPE . She was represented before the Court by Mr F.X. Berndorfer , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

The applicant is the owner of CARDINAL plots of land of QUANTITY in the GPE municipality . The property , plot nos . CARDINAL and CARDINAL on the GPE land register , had been designated as building land since DATE . By contract of CARDINAL DATE the applicant ’s parents transferred the property to her . At the same time they transferred other plots of building land to her sister . The applicant and her sister considered that the plots of land each of them had received were of approximately equal value and therefore made written statements waiving their right to a compulsory portion of their GPE estate .

Meanwhile , on DATE the new NORP Land Planning Act ( Raumordnungsgestz – hereinafter , “ LAW ” ) had entered into force . Its section CARDINAL(CARDINAL ) had obliged all municipalities to review existing area zoning plans ( Flächenwidmungspläne ) within DATE .

On DATE GPE , pending the review of the area zoning plan , issued a temporary building prohibition ( Bausperre ) for parts of the municipal area . Pursuant to GPE the temporary building prohibition is a decree ( Verordnung ) which has to be made public . Based on the recommendations of land planning expert PERSON , the review of the area zoning plan concerned CARDINAL plots of land , including the CARDINAL plots of land at issue , which were at that time still owned by the applicant ’s parents . The temporary building prohibition was extended twice .

On DATE the mayor of the NORP municipality informed the applicant that a change in the area zoning plan was envisaged which would lead to the designation of her CARDINAL plots of land as green land ( Grünland ) . He gave her the opportunity to submit written comments , which she did on DATE . She opposed the change , giving arguments for maintaining the designation of her plots of land as building land .

By a decision of CARDINAL DATE the GPE municipal council ( PERSON ) amended the area zoning plan . As a result the applicant ’s property was designated as green land . In its considerations the municipal council set out on a general level that the reserve of building land by far exceeded the projected need . In respect of the applicant ’s plots of land , it noted in particular :

“ The objection of PERSON , owner of plot nos . CARDINAL and DATE [ ... ] should be rejected , since in accordance with LAW of GPE only areas that are suitable for construction based on their natural and infrastructural conditions may be classified as building land . Such land is required in order to meet the demand of the municipality for building land which has been projected by the municipality for a planning period of DATE . Areas that are unsuitable for appropriate construction on account of their natural conditions may not be designated as building land . This applies also to areas whose development would entail unreasonable costs .

In the opinion of the local planning expert and author of the plan , the plots of land at issue lack suitability as building land ( just like the rest of the areas re - designated as green land in accordance with the area zoning plan amendment ) for the following reasons : building development would entail unreasonable costs owing to the steep gradient of the slope ; the suitability of the property as a housing area is limited on account of the emission load of the Eferdinger Federal Road ; because of its position on a northern slope with adjacent woodland , only reduced insulation is possible ; in general , construction on the steep PERSON hills descending to the river GPE would violate section CARDINAL(CARDINAL ) ( protection of the environment ) and paragraph CARDINAL ( preservation of the typical settlement structure and landscape ) of GPE . ”

Of the CARDINAL plots of land concerned by the review of the area zoning plan , a total of CARDINAL were re - designated as green land .

The area zoning plan amendment was approved on DATE by ORG ( PERSON ) , acting as the supervisory authority for the municipality , and entered into force on DATE .

Under NORP law a land owner can not challenge an area zoning plan directly before ORG , but has to raise the question of its lawfulness in the context of administrative proceedings , for instance in proceedings on a request for a building permit ( GPE ) or a building - site permit ( ORG ) ( see relevant domestic law below ) .

On DATE the applicant applied to the NORP municipality for a permit for a building site for the CARDINAL plots of land at issue . She claimed in essence that the change of designation of her property had been unlawful . In support of this argument she submitted an opinion by a land planning expert , ORG , dated DATE . The conclusion of the latter was that the CARDINAL plots of land were suitable for construction .

The mayor refused the application by a decision of CARDINAL DATE noting that the granting of a building - site permit would be contrary to the property ’s designation as green land .

The applicant appealed on DATE . She referred to the written comments she had made in the proceedings concerning the amendment of the area zoning plan and complained that the authority had failed to examine her arguments . Furthermore , she alleged that the change of designation was unlawful for the following reasons : Firstly , the re - designation of her property as green land was not an appropriate means of achieving the declared aim of reducing the despoliation of the landscape , given the position of her property close to the centre of the municipality . Secondly , changes in the area zoning plan were subject to restrictions . Only very significant public - interest reasons could prevail over the individual interest of preserving acquired rights . The main aim pursued by the change to the area zoning plan , namely to reduce the excess of building land , did not have such preponderant weight . Thirdly , there were no new facts which would justify the change of designation , since the excess of building land had existed for DATE and had been aggravated by the municipality itself newly designating numerous plots of land in the past . Fourthly , the authority had failed to take the applicant ’s interests into account . Her property had suffered a very considerable loss of value for which she had not been compensated under LAW of the NORP Land Planning Act . Finally , no uniform criteria had been applied as regards the re - designation of building land as green land , since other plots of land in a comparable position and with comparable topography , including CARDINAL plots of land adjacent to hers , had not been re - designated .

By a decision of DATE ORG dismissed the applicant ’s appeal . It noted that the applicant ’s arguments concerned the underlying decision to amend the area zoning plan and could not be taken into account in the proceedings at issue .

The applicant filed an objection ( PERSON ) against this decision in which she repeated the arguments she had submitted in her appeal .

On DATE the ORG dismissed the applicant ’s objection . It noted that the area zoning plan was a decree , that is , a binding act of subordinate legislation . While the applicant was entitled to submit arguments as regards its lawfulness , it was not for the administrative authorities but for ORG ) to examine those arguments .

The applicant lodged a complaint with ORG against the refusal of the building - site permit , challenging the lawfulness of the underlying area zoning plan . She claimed that the building authorities’ decisions violated her right to property and the principle of non - discrimination in that the refusal of a building - site permit had been based on an unlawful area zoning plan . In that regard , she repeated all the arguments she had already submitted in the course of the proceedings .

On DATE ORG dismissed the applicant ’s complaint . It noted that the municipality had based the re - designation of the applicant ’s property on the undisputed excess of building land and on its lack of suitability for construction . It had adduced specific reasons for finding that the applicant ’s plots of land were unsuitable for construction , such as their position on a steep slope , the unreasonable costs of development because of that position , the interests of environmental protection in preserving the woods on the slope , the emission load of the nearby FAC and the limited possibilities for insulation . The expert opinion of ORG submitted by the applicant had supported her position only in part . In particular , it had not contested the unreasonable costs of developing the property because of its position on a steep slope . Nor had it contradicted the municipality ’s argument in respect of emissions from the nearby FAC .

In sum , the municipality had rightly come to the conclusion that the previous designation of the applicant ’s property as building land was contrary to the principles laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW . In such a case LAW ) of LAW obliged the municipality to change the designation of the plots of land at issue without a further weighing of interests as this task had already been carried out by the legislator . The question whether or not it was lawful to maintain the designation of CARDINAL neighbouring plots of land as building land did not fall to be examined in the present proceedings .

ORG decision was served on the applicant ’s counsel on DATE .

In GPE land planning is governed by the DATE NORP Land Planning Act . Area zoning plans are issued by the municipalities . Under NORP law area zoning plans and any amendments thereto are regarded as decrees , that is , binding acts of subordinate legislation . The lawfulness of decrees can only be reviewed by ORG ( Article CARDINAL of LAW ) .

Proceedings in which area zoning plans are issued or amended are not ordinary administrative proceedings and the land owners affected by them , while having the right to submit comments , are not parties to the proceedings . They are not entitled to challenge the area zoning plan directly before ORG if it is possible to institute administrative proceedings , for instance building proceedings .

If an area zoning plan is the basis for refusing a building permit or a building - site permit , which is a preliminary decision on the suitability of land for construction purposes , the persons concerned are expected to assert their rights in the building proceedings , in which they can ultimately challenge the lawfulness of the area zoning plan before ORG .

The relevant provisions of the DATE NORP Land Planning Act ( Raumordnungsgesetz ) state as follows :

“ ( CARDINAL ) The objectives of LAW are , in particular :

protecting the environment against adverse impact as well as safeguarding or restoring a natural balance ;

preserving and shaping settlement structures , including the development of settlements , and preserving typical settlement structures and landscapes ... ”

“ ( CARDINAL ) In implementing its tasks of local land planning , each municipality shall issue the area zoning plan and the local development concept by a decree , and manage and review them at regular intervals . The local development concept shall be prepared for a planning period of DATE , the area zoning plan for a planning period of DATE . ”

“ ( CARDINAL ) Only such areas may be designated as building land as are suited for construction based on their natural and infrastructural conditions . They have to meet the demand for building land of the municipality projected by the municipality for a planning period of DATE . Areas lacking suitability for adequate construction owing to natural conditions ( e.g. ground - water level , flood hazard , rock fall , soil characteristics , risk of avalanche ) may not be designated as building land . This applies also to areas whose development would entail unreasonable costs ... ”

“ ( CARDINAL ) All areas not designated as building land or transport areas shall be designated as green land . ”

“ ( CARDINAL ) After the entry into force of LAW , each municipality shall review the area zoning plan and adopt an area zoning plan together with the local development concept DATE after the entry into force of LAW . Furthermore , the area zoning plan shall be reviewed to ascertain whether the building land areas designated in the area zoning plan but not yet used for the designated purpose still conform to the principles of LAW . Building land areas whose designation contravenes the aforementioned principles shall be designated as building land or as green land , as appropriate , by changing the area zoning plan . ”

Under section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , compensation for a change of designation is only available in specific circumstances , essentially when the owner of land relying on the designation of the property as building land has already incurred costs in view of intended construction which is then made impossible by the amendment of the area zoning plan , or when a plot of land which is suited for construction within the meaning of section CARDINAL(CARDINAL ) and is entirely or mostly surrounded by building land is not designated as building land and suffers a loss of value as a result .


Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant , who is of NORP origin , was born in DATE and lives in GPE .

On DATE the applicant submitted an application for the post of deputy county state attorney in the GPE State Attorney ’s Office . He relied on section CARDINAL(CARDINAL ) of LAW on LAW and section CARDINAL(CARDINAL ) of LAW ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE ORG ( ORG vijeće ) , after a secret ballot , unanimously adopted a decision appointing ORG deputy county state attorney in the ORG Attorney ’s Office . It found that both candidates satisfied the statutory requirements to be appointed deputy state attorney but gave priority to ORG , having regard to her extensive experience of working on civil and administrative law cases . The decision contained an information notice ( pouka o pravnom lijeku ) to the effect that administrative dispute proceedings could be instituted against it by bringing an action in ORG ( ORG ) within DATE of its service . The information notice reads as follows :

“ Against this decision an administrative dispute may be instituted by bringing an action in ORG within DATE of the service of the decision . ”

On DATE the applicant instituted administrative dispute proceedings in ORG by bringing an action under section CARDINAL of LAW ( see paragraph CARDINAL below ) against ORG decision of CARDINAL DATE . He again relied on section CARDINAL(CARDINAL ) of LAW on LAW .

On DATE ORG declared the applicant ’s action inadmissible , finding that the contested decision did not constitute an “ administrative act ” within the meaning of section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) . Therefore , instead of instituting administrative dispute proceedings by bringing an action ( against an administrative act ) , the applicant should have lodged “ a request for the protection of a constitutionally guaranteed right ” ( zahtjev za zaštitu ustavom zajamčenog prava ) , a remedy provided in section CARDINAL of LAW ( see paragraph CARDINAL below ) . ORG also held that the applicant ’s action could not have been , even in substance , regarded as such a request , because he had not relied on any provision of the LAW , but only on LAW on LAW .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against ORG decision . In so doing the applicant , alleging a violation of his right of access to court , relied on LAW .

On DATE ORG dismissed the applicant ’s constitutional complaint . The relevant part of that decision reads as follows :

“ ORG finds that the complainant ’s rights under LAW were not breached in the proceedings before ORG because ORG did not proceed contrary to the legal views established by ORG in the application of that provision to individual cases .

ORG notes that in its practice it has established the rule that there is a remedy before ORG ( a request under LAW of LAW ) against a decision on appointment of a deputy state attorney , and that this remedy has to be used before a constitutional complaint is lodged with ORG ( decision no . U - III-CARDINAL/CARDINAL of DATE ) . ”

NORP The relevant provisions of LAW ORG , ORG nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows :

“ The right to appeal against decisions adopted in the first - instance proceedings before a court or other authorised body shall be guaranteed .

The right of appeal may exceptionally be excluded in cases provided by law if other legal protection is ensured . ”

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ Every national of GPE shall have the right , under equal conditions , to take part in the conduct of public affairs , and to be admitted to public service . ”

In its decisions no . U - III-CARDINAL/CARDINAL of DATE ( published in ORG no . CARDINAL of DATE ) , no . ORG of CARDINAL DATE ( published in ORG no . CARDINAL of DATE ) and no . ORG ( published in ORG no . CARDINAL of DATE ) ORG held that in cases where the first - instance courts had wrongly informed parties on legal remedies by indicating longer time - limits for lodging appeals against their decisions than those provided in the relevant legislation , and the parties lodged their appeals outside of the statutory time - limits but within the time - limits indicated by the first - instance courts , those appeals could not be declared inadmissible as lodged out of time . To do so would run contrary to the constitutional right to appeal guaranteed by LAW , and the constitutional right to a fair hearing , in its part concerning access to court , guaranteed by LAW ( see preceding paragraph ) .

In its judgment no . Zpa-CARDINAL/CARDINAL - CARDINAL of DATE , following a request for the protection of a constitutionally guaranteed right ( see paragraph CARDINAL below ) ORG quashed the decision of ORG on appointment of a municipal court judge . It held that every candidate satisfying the statutory requirements had the right to equal participation in a competition for public office . Therefore , by appointing a candidate who did not satisfy the statutory requirements for appointment as a judge of a municipal court , ORG violated the other candidate ’s constitutional right to “ equal access to public service ” guaranteed by LAW ( see paragraph CARDINAL above ) .

The relevant provision of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of QUANTITY DATE – “ LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :

“ ( CARDINAL ) Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a state authority , local or regional government , or a legal person invested with public authority , on his or her rights or obligations , or as regards suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or the right to local or regional government , guaranteed by LAW ( ‘ constitutional right’ ) ...

( CARDINAL ) If another legal remedy is available in respect of the violation of the constitutional right [ complained of ] , a constitutional complaint may be lodged only after this remedy has been used .

( CARDINAL ) In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] is available , remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given . ”

In its decision no . U - III-CARDINAL/CARDINAL of DATE ( Official Gazette no . DATE of DATE ) ORG held that a request for the protection of a constitutionally guaranteed right under LAW of LAW ( see paragraph CARDINAL below ) must be lodged against a decision of ORG on appointment of a deputy state attorney before a constitutional complaint under LAW of LAW .

The relevant provisions of LAW on LAW ( Zakon o pravima nacionalnih manjina , ORG nos . CARDINAL/CARDINAL and PERSON ) , which entered into force on DATE , read as follows :

“ ( CARDINAL ) The representation of members of national minorities in the organs of ORG administration and judicial organs shall be secured in accordance with special legislation , and taking into account the proportion of members of national minorities in the total population at the level in respect of which the organ of state administration or judicial organ is established , and acquired rights .

( CARDINAL ) In filling the posts referred to in paragraphs CARDINAL of this section , priority shall be given under the same conditions to members of national minorities . ”

On DATE ORG delivered its judgment in case no . Zpa-CARDINAL/CARDINAL , where an aggrieved candidate , member of a national minority , lodged a request for the protection of a constitutionally guaranteed right under LAW of LAW ( see paragraph CARDINAL below ) against a decision of ORG on appointment of a municipal court judge . He argued that the contested decision had breached his right guaranteed by LAW ( see paragraph CARDINAL above ) in conjunction with section CARDINAL ) of LAW on LAW ( see paragraph CARDINAL above ) . ORG dismissed his request ( only ) because in his application for the post of a municipal court judge he had not expressed the wish to be treated as a member of a national minority and had not relied on section CARDINAL ) of LAW on LAW .

The relevant provision of LAW ( Zakon o državnom odvjetništvu , ORG nos . CARDINAL , CARDINAL/CARDINAL , DATE ( corrigendum ) , CARDINAL ) , as in force at the material time , provided as follows :

“ ( CARDINAL ) NORP Deputy state attorneys shall be appointed in a manner , under the conditions and according to a procedure that guarantees they possess the expertise , independence and moral standing necessary to discharge the duty of a state attorney .

( CARDINAL ) NORP national who holds a law degree and has passed the bar exam may be appointed a deputy state attorney . ”

“ A person may be appointed a deputy state attorney in a county state attorney ’s office if he or she has , as a holder of public office in the judiciary , exercised judicial duties , or has been an advocate , notary public or notary public ’s assessor , or lecturer of law courses at a law faculty for DATE , or has worked in another legal profession for DATE after passing the bar exam . ”

LAW provided that decisions of ORG rendered in disciplinary proceedings ( section CARDINAL ) and decisions on removal from the office of a state attorney ( section CARDINAL ) ) could be challenged by instituting administrative disputes proceedings before ORG in the form of an action under LAW of LAW . However , LAW had no provisions on remedies available against decisions of ORG on appointment of state attorneys .

NORP In its decision no . Us-CARDINAL/CARDINAL of CARDINAL DATE ORG held for the first time that a decision of ORG on appointment of a deputy state attorney was not an administrative act within the meaning of section CARDINAL(CARDINAL ) of LAW . It also held that such a decision could only be contested before that court by lodging a request for the protection of a constitutionally guaranteed right under LAW of LAW ( see paragraph CARDINAL below ) .

The Administrative Disputes Act ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG . CARDINAL , CARDINAL/CARDINAL and DATE ) in its relevant part provides as follows :

Section DATE ) provides that administrative dispute proceedings may be initiated only against an administrative act .

Section CARDINAL(CARDINAL ) provides that an administrative act , within the meaning of the LAW , is an act whereby a ORG organ , in the exercise of public authority , decides on a right or obligation of an individual or an organisation in an administrative matter .

Section CARDINAL(CARDINAL ) provides that an administrative act may be challenged for : ( a ) misapplication of substantive law , ( b ) lack of jurisdiction , or ( c ) procedural errors or incorrect findings of fact .

Section CARDINAL provides that administrative dispute proceedings are instituted by bringing an action .

Section CARDINAL(CARDINAL ) provides that the action has to be brought within DATE from the service on the plaintiff of the administrative act ( that is , a decision ) being contested by the action .

Section ORG ) provides that a statement of claim must contain : ( a ) the first and last name , or the name and the seat , of the plaintiff ; ( b ) the administrative act being contested by the action ; ( c ) a brief statement of the cause of action ; as well as ( d ) to which direction and to what extent it is proposed to quash the administrative act , and ( e ) the signature of the plaintiff . The statement of claim must be accompanied by the original or a copy of the contested act .

Section CARDINAL(CARDINAL ) provides that if the action is incomplete or incomprehensible , the president of the panel shall invite the plaintiff to rectify the shortcomings within a certain time - limit . In doing so , the president should instruct the plaintiff as to what has to be done and how and warn him or her of the consequences of failing to comply with the court ’s request .

Section CARDINAL(CARDINAL ) provides that if the plaintiff does not rectify the shortcomings in his action within the time - limit fixed , and they are of such a nature as to prevent the court proceeding with the case , the court shall declare the action inadmissible as deficient .

Section CARDINAL provides that ORG must declare an action inadmissible if , inter alia , the contested decision does not constitute an administrative act within the meaning of section CARDINAL of that Act .

Sections CARDINAL provide for the remedy of reopening of proceedings before ORG and regulate the procedure following a petition for reopening .

Section CARDINAL provides that if LAW does not contain specific provisions on the procedure before ORG ( that is , in administrative disputes ) , the provisions of LAW should apply mutatis mutandis .

Section CARDINAL reads as follows :

“ A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [ that is , a decision ] , and no other judicial protection is ensured , shall be decided by the [ ORG ] , by applying the provisions of this LAW mutatis mutandis . ”

According to the conclusion reached at the plenary session of judges of ORG held on CARDINAL DATE , an action against an administrative act is to be considered a request for judicial protection within the meaning of LAW of LAW if from the content of the action it transpires that it may concern a breach of rights or freedoms guaranteed by LAW . In such cases ORG could not review every breach of procedural or substantive law but only those that amount to breaches of constitutionally guaranteed rights or freedoms .

According to ORG case - law ( judgment no . Zpa-CARDINAL/CARDINAL - CARDINAL of DATE ) , the requirements for affording judicial protection under LAW of LAW , which must be met in their totality , are : ( a ) the request has to concern rights or freedoms expressly guaranteed by LAW , ( b ) those rights or freedoms were allegedly breached by a final decision which does not have the characteristics of an administrative act , and ( c ) the legal system does not provide for another judicial avenue of redress . If the request lodged under LAW of LAW does not concern a right or freedom guaranteed by LAW , it should be declared inadmissible ( decision no . Zpa-CARDINAL/CARDINAL of DATE ) . The time - limit for lodging such a request is the same as the time - limit for bringing an action against an administrative act under LAW of LAW ( see paragraphs CARDINAL - CARDINAL above ) , that is , DATE from the service of the contested decision ( Zpa-CARDINAL/CARDINAL of DATE ) .

The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG of ORG CARDINAL/CARDINAL ( consolidated text ) , and ORG no . CARDINAL/CARDINAL ) provide as follows :

“ ( CARDINAL ) By notice on legal remedies a party is informed whether he or she may lodge an appeal against the decision or institute administrative dispute proceedings or other judicial proceedings .

( CARDINAL ) Where administrative dispute proceedings may be instituted against the decision , the notice shall indicate in which court and within what time - limit the action should be brought . Where other judicial proceedings may be instituted , it [ the notice ] shall indicate before which court and within what time - limit the proceedings should be instituted .

( CARDINAL ) When incorrect information has been given , a party may follow the legislation in force or the notice . A party which followed the incorrect information shall not suffer any adverse consequences as a result . ”

In its decision no . Zpa-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG held that an incorrect information as regards the remedies available against a decision of ORG did not give rise to the rights stipulated in section CARDINAL of LAW ( see preceding paragraph ) .

The relevant provision of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) reads as follows :

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”


CASE OF WILSON, NATIONAL UNION OF JOURNALISTS AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 11;Not necessary to examine Art. 10;Not necessary to examine Art. 14+10 or 14+11;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

Gaukur Jörundsson;Nicolas Bratza;Phillips of Worth Matravers

The first applicant , PERSON , was employed as a journalist at ORG . The local branch , or “ Chapel ” of the second applicant , the NUJ , had been recognised since DATE for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members .

On DATE the first applicant , in common with other journalists , received the following letter from the editor of ORG :

“ Dear PERSON ,

You probably know that the collective bargaining agreement between the PERSON and the Management is due to end on DATE . The ORG has given notice that it does not intend to negotiate a new agreement with the PERSON and that , from that date , the ORG will not be recognised as a negotiating body .

Instead , salaries will be reviewed DATE each DATE as they are already for the senior editors . Departmental heads will make recommendations to me for each individual member of their staff . I will , of course , discuss these with my editors in detail and add my own assessment , as I do now , for merit rises . I shall then implement salary increases .

A handbook has been drawn up which contains the benefits and conditions which exist under the current agreement .

Each member of staff will be given a new contract which embodies these conditions together with the ORG . I think it is worth pointing out that the ORG includes a grievance procedure .

All journalists who sign their new contracts before DATE will be awarded a PERCENT wage increase backdated to CARDINAL DATE . As I have said , the next review of salaries will be on DATE .

I would like to point out that , contrary to what is happening on other national newspapers , our new arrangement does not involve any redundancies . Nor any radical changes in the way we produce our papers .

I think you should know that the initiative to end collective bargaining has come from the editors , not the management .

It is the skill of journalists as individuals that makes our papers . We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here , in order that they and our papers shall prosper .

The success of ORG is based on its team of highly qualified and highly paid journalists . We intend to develop that success and , with it , the careers of our journalists .

Yours sincerely ,

The first applicant refused to sign a new contract , because he objected to its provisions prohibiting trade union activity during TIME and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment . In subsequent DATE Mr ORG 's salary increased , but was never raised to the same level as that of employees who had accepted personal contracts .

After DATE the employer continued to deal with the ORG on health and safety issues , but did not recognise the union for any other purpose .

The third and fourth applicants , PERSON and PERSON , were employed by ORG ( “ the ORG ” ) at the FAC of GPE as manual grade employees . They were members of the ORG ( the fifth applicant ) . The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement .

On DATE the third and fourth applicants , in common with other manual grade employees , were sent letters in the following terms :

“ I am writing to advise you that ORG has decided to offer you a personal contract of employment to take effect on DATE .

You are probably aware that offers of personal contract terms have already been made to ORG , Clerical , Technical staff and some Manual Grade Staff at GPE . In offering personal contracts , the ORG is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded .

Under the proposed new contract of employment , the level of future pay increases including that due on DATE , together with other improvements in conditions of service , will be determined by ORG Wages will relate to the individual 's responsibilities and performance together with conditions in the employment market , and the ORG 's financial position .

If you choose to accept a new individual contract then the Agreement with ORG , which currently forms part of your contract of employment , will no longer apply to you . Your conditions of employment will , however , differ only in limited respects from those which you have at present . The most significant alterations are that you will no longer have the right to be represented by ORG and , in future , your pay will not be determined by the present negotiated wage ranges , i.e. , ORG and PERSON will no longer apply . Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract ; similarly , voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to PERCENT .

As part of your personal contract the ORG will pay you an increased wage from DATE , as advised to you in the attached personal letter , this new wage is inclusive of your pending DATE pay review .

This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:–

Allowances , e.g. Height , tool , allowances , etc . ,

Holiday bonus and higher grade duty payments .

These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay .

Overtime will be offered as and when necessary . There will be no contractual overtime .

Under the new terms there will be a single DATE review on DATE , the first review being on DATE . Staff on personal contracts will be paid DATE by ORG ) .

If you accept a personal contract , the Company will , if you so wish , provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan ( ORG ) for yourself . Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription . Full details are enclosed with this letter . ...

The ORG believes that the offer you are being made represents a significant improvement in your terms and conditions of employment . I hope therefore that you will decide to accept this offer . You should , however , clearly understand that you are free to reject it . ... ”

The average pay increase offered to manual grade employees who accepted personal contracts was PERCENT .

The third and fourth applicants refused to sign personal contracts . Their pay and conditions of employment for DATE were decided on a collective basis following negotiations between the union and the employer . They received an increase of pay and allowances of PERCENT and were not offered private medical insurance .

NORP In DATE the employer gave notice that it was terminating the collective agreement and de - recognising the union for all purposes .

The remaining applicants , Mr PERSON and the others , were all employed by the ORG at FAC in GPE and were members of the fifth applicant trade union , which was recognised by the employer for the purposes of collective bargaining . On DATE and DATE employees were sent letters offering them personal contracts with pay increases . In return , the employee had to relinquish all rights to trade union recognition and representation , and to agree that DATE increases and other terms and conditions would no longer be negotiated by the union on his behalf .

The applicants refused to sign personal contracts and , as a result , received only a PERCENT DATE pay increase on their basic rate of pay . Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was PERCENT greater than that awarded to the applicants .

The individual applicants all separately applied to ORG complaining that the requirement to sign the personal contract and lose union rights , or accept a lower pay rise , was contrary to section CARDINAL(CARDINAL)(a ) of ORG DATE ( “ the DATE Act ” – see paragraph CARDINAL below ) .

In the proceedings brought by PERSON , PERSON and PERSON PERSON , ORG found in favour of the applicants . The employers successfully appealed to ORG , and the applicants appealed to ORG .

The Court of Appeal found for the applicants on DATE ( judgment reported as ORG v. ORG ; ORG v. ORG [ DATE ] Industrial Cases Reports CARDINAL ) .

In ORG it was accepted in ORG that , in discriminating against the employees who refused to sign personal contracts , the employer had taken “ action ( short of dismissal ) ” against them , within the meaning of section CARDINAL of LAW . The court held that the concept “ being ... a member of an independent trade union ” in section CARDINAL involved more than simply holding a union membership card , and included making use of the essential services provided by the union , such as collective representation . In offering pay increases to those who revoked their right to be represented by the union , the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union . In denying the pay rise to those who would not forgo collective representation , the employer had acted with the purpose of penalising union membership , contrary to section CARDINAL(CARDINAL)(a ) of LAW .

In PERSON it was accepted that the employer 's decision to de - recognise the union from DATE was not contrary to section CARDINAL , since the de - recognition was aimed at the union as a whole and was not action against any individual employee . The union had no legal sanction against de - recognition or the termination of the agreement on conditions of employment it had negotiated ; the only sanction available to it was the threat of industrial action . The employer 's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining . Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union .

The employers appealed to ORG , which , on DATE , decided unanimously against the applicants ( [ DATE ] CARDINAL Law Reports : Appeal Cases CARDINAL ) . CARDINAL of the five Law Lords held that the word “ action ” in section PERSON ) could not be construed as including an omission , so that the withholding of benefits by the employers from the applicants did not amount to “ action ( short of dismissal ) ” . In addition , CARDINAL of the CARDINAL Law Lords found that the employers ' conduct had not been motivated by “ the purpose of preventing , ... deterring ... or penalising ” union membership , although in ORG ( in the words of FAC ) “ it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union 's collective - bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment ” . However , trade unions could offer their members services other than the negotiation of terms and conditions of employment , and membership of a trade union could not therefore be equated with the use of the union 's services for collective bargaining .

Following ORG judgment , the applicants withdrew their applications from ORG , having been advised that they could not succeed .

According to GPE law , a “ trade union ” is any organisation which consists wholly or mainly of workers and has the regulation of relations between workers and employers or employers ' associations as CARDINAL of its principal purposes ( section CARDINAL of ORG DATE “ the DATE LAW ) . There is no system of licensing trade unions prior to their recognition for collective bargaining .

At the time of the events in question in this case , collective bargaining was a wholly voluntary process . There was no legislation in GPE which inhibited the freedom of employers to recognise or de - recognise trade unions for the purposes of collective bargaining ( LAW , repealing LAW DATE ) .

Section CARDINAL(CARDINAL)(a ) of ORG DATE provided :

“ PERSON ) Every employee shall have the right not to have action ( short of dismissal ) taken against him as an individual by his employer for the purpose of

( a ) preventing or deterring him from being or seeking to become a member of an independent trade union , or penalising him for doing so . ”

This provision was re - enacted as section DATE ) of the DATE Act .

After ORG found for the applicants , ORG enacted LAW DATE ( “ the DATE LAW ) to amend section CARDINAL of the DATE Act by providing that where “ the employer 's purpose was to further a change in his relationship with all or any class of his employees ” then , unless the employer 's action was action that no reasonable employer could take , section DATE ) of the DATE Act would provide no remedy for the employee .

Although a strike by employees involves breaches of their respective contracts of employment and calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing a breach of contract of the employees concerned , section CARDINAL of the DATE Act confers protection where the defendant is acting “ in contemplation or furtherance of a trade dispute ” ( as defined ; see ORG v. GPE DATE . ) , no . CARDINAL , ECHR CARDINAL-I ) .

DATE of the Social Charter provides for the following “ right to organise ” :

“ With a view to ensuring or promoting the freedom of workers and employers to form local , national or international organisations for the protection of their economic and social interests and to join those organisations , the Contracting Parties undertake that national law shall not be such as to impair , nor shall it be so applied as to impair , this freedom . The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations . The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations . ”

Article CARDINAL of the Charter is headed “ The right to bargain collectively ” and provides :

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

( CARDINAL ) to promote joint consultation between workers and employers ;

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

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

and recognise :

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

In DATE ORG set up under LAW of the Social Charter examined section CARDINAL of the DATE Act with a view to determining whether it was consistent with LAW and observed as follows ( Conclusions XIII-CARDINAL , ORG , DATE , p. CARDINAL ) :

“ ... ORG was of the opinion that the wording of section CARDINAL ) was so general that the effect of this provision was that only in exceptional cases would a tribunal be able to rule that the action taken by the employer was unlawful because it violated freedom of association . It considered that this weakening of the protection of freedom of association was not compatible with the requirements of LAW . It pointed out that ' ORG is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise , and in particular to protect workers ' organisations from any interference on the part of employers ' ( see most recently Conclusions PERSON , p. CARDINAL ) . It also referred to its conclusion under LAW and its case - law to the effect that where a fundamental trade union prerogative such as the right to bargain collectively was restricted , this could amount to an infringement of the very nature of trade union freedom ( see most recently Conclusions FAC , p. CARDINAL ) . ”

In its next report ORG again insisted “ that the necessary measures be taken to repeal [ section CARDINAL of the DATE Act , inter alia ] ” , commenting ( Conclusions XIV - I , DATE , pp . CARDINAL and CARDINAL ) :

“ The ORG repeats the criticism raised in its previous conclusion with respect to section CARDINAL of the CARDINAL Act which is in breach of LAW as it permits employers to take certain measures such as awarding preferential remuneration to employees in order to persuade them to relinquish trade union activities and collective bargaining ... ”

GPE has ratified ORG ( ORG ) ORG of the Right to Organise Convention , DATE ( no . DATE ) and its Right to Organise and Collective Bargaining Convention , DATE ( no . CARDINAL ) .

Convention no . DATE provides , inter alia :

“ Part I. Freedom of Association

Article CARDINAL

Each Member of ORG for which this Convention is in force undertakes to give effect to the following provisions .

Article CARDINAL

Workers and employers , without distinction whatsoever , shall have the right to establish and , subject only to the rules of the organisation concerned , to join organisations of their own choosing without previous authorisation .

Article CARDINAL

In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers .

Part II . Protection of the Right to Organise

LAW

Each Member of ORG for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise . ”

Convention no . CARDINAL provides , inter alia :

“ Article CARDINAL

Workers shall enjoy adequate protection against acts of anti - union discrimination in respect of their employment .

Such protection shall apply more particularly in respect of acts calculated to –

( a ) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership ;

( b ) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside TIME or , with the consent of the employer , within TIME .

Article CARDINAL

Machinery appropriate to national conditions shall be established , where necessary , for the purpose of ensuring respect for the right to organise as defined in the preceding ORG .

Article CARDINAL

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

ORG has considered section CARDINAL of LAW in the context of a case of alleged intimidation intended to bring about the de - recognition of CARDINAL trade unions at a steel works in GPE , and the absence of any remedy under national law ( Case no . DATE , ORG of ORG , PERSON . ORG , DATE , Series B , no . CARDINAL ) . ORG concluded as follows ( paragraphs CARDINAL and CARDINAL ) :

“ CARDINAL . While bearing in mind that collective bargaining , if it is to be effective , must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining , the ORG has considered that the competent authorities should , in all cases , have the power to proceed to an objective verification of any claim by a union that it represents the majority of workers in an undertaking , provided that such a claim appears to be plausible and that if the union concerned is found to be the majority union , the authorities should take appropriate conciliatory measures to obtain the employer 's recognition of that union for collective bargaining purposes ( see Digest , op . cit . , paras . CARDINAL and CARDINAL ) . While noting from the ORG 's observations that collective bargaining is still an option for the employer , the ORG concludes that , given the facts available in this particular case , [ the employer ] has by - passed the representative organisation and entered into direct individual negotiation with its employees , in a manner contrary to the principle that collective negotiation between employers and organisations of workers should be encouraged and promoted . The ORG notes with interest the ORG 's indication that a ORG on fairness at work , with a focus on union recognition , is being prepared . ORG hopes that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers ' organisations and requests the Government to keep it informed of the progress made in this regard .

Finally , as concerns the previous ORG 's argument with respect to the relevance of LAW of the [ CARDINAL LAW ] , the ORG can only state that , in the absence of a more detailed reply concerning the facts of this specific case based on a thorough and independent investigation , it is not in a position to judge on the relevance of LAW to the case in question . It would recall however that it was the ORG which had raised the matter of LAW in its initial reply to this complaint and that the conclusions reached by ORG were based wholly upon its conclusions in a previous case presented against ORG for alleged infringements of trade union rights ( see ORG , Case no . DATE ) wherein it had invited the Government to reconsider LAW in consultation with the social partners since it considered that this provision could hardly be said to constitute a measure to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements , as provided for in LAW no . CARDINAL ( ratified by GPE ) . The ORG recalls in this respect that section CARDINAL directs a tribunal , when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union , to have regard primarily to the employer 's purpose to further a change in the relationship with the employees and the ORG had concluded that this section considerably limited the tribunal 's competence for determining such action as being in violation of section CARDINAL concerning action short of dismissal ( see ORG , Case no . CARDINAL , para . CARDINAL ) . The ORG does not consider that the possible effects of section CARDINAL have changed in this respect and it would therefore once again call on the Government to take steps to amend that section so that it ensures workers ' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining . It requests the Government to keep it informed in this respect . ”

The ORG recommended , inter alia , ( and its recommendations were approved by the ORG 's ORG ) :

“ ( a ) Noting with interest the ORG 's indication that a ORG on fairness at work , with a focus on union recognition , is being prepared , the ORG expresses the hope that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers ' organisations and requests the Government to keep it informed of the progress made in this regard .

( e ) The ORG once again calls on the Government to take steps to amend LAW so that it ensures workers ' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining . It requests the Government to keep it informed in this regard . ”


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant requested an enforcement of ORG decision of DATE , by which the defendant had been ordered to employ the applicant .

On DATE the Bratislava I ORG ordered the enforcement .

On CARDINAL DATE the applicant and the defendant concluded an employment contract .

On DATE , upon ORG request , the applicant informed it that he wished to continue the enforcement .

On DATE ORG again asked the applicant if he wished to continue the proceedings .

In the applicant ’s words , he requested the judgment of DATE to be enforced because he had not been satisfied with the working conditions as provided for by the defendant . As a result , he had stopped going to work already in DATE .

On DATE ORG discontinued the proceedings . It held that the defendant had complied with the obligation set out in the judgment of DATE by concluding the contract with the applicant on DATE . The contract fulfilled the conditions stated in the judgment of DATE and the applicant ’s right pursuant to that judgment had been extinguished .

The applicant appealed and on DATE ORG upheld ORG decision .

On DATE and DATE ORG rejected CARDINAL complaints about the length of the enforcement proceedings lodged by the applicant . On DATE , on the applicant ’s third complaint , ORG found that ORG had violated the applicant ’s right to a hearing without unjustified delay under LAW . It further held that the overall duration of the proceedings of DATE had been unreasonable . It awarded the applicant CARDINAL ( ORG ) as just satisfaction in respect of non - pecuniary damage suffered .


The applicant is an NORP citizen , born in DATE . He is a farmer residing in GPE ( GPE ) . Before the ORG he is represented by Mr. PERSON , a lawyer practising in GPE .

On DATE the ORG ( Agrarbezirksbehörde - " ORG " ) instituted consolidation proceedings ( PERSON ) for PERSON .

In DATE the applicant received several parcels of land situated in GPE as a donation from third persons . In DATE and DATE he bought further land in GPE .

On DATE ORG , on the basis of a draft consolidation plan , ordered the provisional transfer of compensation parcels . This measure also affected several parcels of the land owned by the applicant and his father . According to an agreement concluded with ORG the applicant 's father , who has the same name as the applicant , PERSON , and had also acted on the applicant ’s behalf , agreed in DATE to the exchange of several parcels of land . The decision of CARDINAL DATE was served on the parties concerned , not by mail but by a circular letter which an employee of ORG ( PERSON ) served on the parties by visiting them . Acknowledgements of receipt were signed .

On DATE ORG by a circular letter informed the CARDINAL owners of land concerned by the consolidation proceedings that a consolidation plan had been drawn up which could be inspected at ORG DATE . During this period appeals against the consolidation plan could be lodged . This circular letter was again not served by mail but by an employee of ORG . On the acknowledgement of receipt under No . CARDINAL the applicant ’s mother is mentioned and there is a signature beside her name . Under No . CARDINAL there is the name “ PERSON ” and the address ORG . Beside his name is a signature which seems to be identical to the one beside No . CARDINAL .

The applicant claims that he did not receive the circular letter . It had been served on another person bearing the same name as the applicant and who had died in the meantime . According to the Government , the circular letter was properly served on the applicant and his mother had signed the receipt in his place .

The applicant 's father filed an appeal against the consolidation plan which he later withdrew . No appeal by the applicant is recorded in the files .

On DATE ORG ( Bezirksgericht ) , acting as the land registry , amended the land register according to the consolidation plan . This decision was served on the applicant .

On DATE ORG issued a decree ( Verordnung ) by which the consolidation proceedings were formally terminated . This decree was published in the official gazette , published at ORG and ORG and entered into force on CARDINAL DATE .

On DATE the applicant sent a letter to ORG . He submitted that he still maintained an appeal he had lodged on DATE and that the amendments entered on the land register were incorrect or invalid . He further announced that after the harvest in DATE he would cultivate his previous parcels of land and requested ORG to re - establish the former borders .

On DATE the applicant appeared before ORG . He submitted a copy of his appeal of DATE and stated that he had handed over the appeal to the civil servant who had directed the land consolidation proceedings . He was informed that no appeal had been found in the files , that by the decree of CARDINAL DATE the land consolidation proceedings had been terminated and that therefore no further decision could be taken . According to the copy of the appeal handed over to the officer of ORG , the applicant had complained that certain parcels of his land were too far away from the land he had received in compensation and that he should keep other parcels which were closer to his farming estate .

On DATE ORG , referring to the applicant ’s letter of CARDINAL May DATE , informed him that no appeal by the applicant against the consolidation plan had ever been received by the authority . The proceedings had become final ( rechtskräftig ) , the land register had been amended accordingly and no further decision relating to the land consolidation proceedings could be taken . The applicant was advised to refrain from any interference with other people ’s land as this would only create serious problems for him .

DATE , on DATE the applicant , assisted by counsel , requested ORG to resume the consolidation proceedings and , in particular , to serve on him ORG circular letter of CARDINAL DATE or , alternatively , the consolidation plan , so that he could appeal against the plan .

On DATE ORG rejected the applicant 's request for lack of competence . On the applicant ’s appeal , ORG ( Landesagrarsenat - " ORG " ) on DATE quashed this decision . On CARDINAL DATE ORG again rejected the applicant 's request and found that , after the publication of the decree of CARDINAL DATE , no further claims concerning the consolidation proceedings could be made .

On DATE ORG dismissed the applicant 's appeal and confirmed ORG decision . It noted that , under LAW of ORG ( ORG ) , consolidation proceedings have to be terminated by a decree once all the plan ’s measures , including the changes in the land register ( PERSON ) , have been carried out .

On DATE ORG Verfassungsgerichtshof ) refused to deal with the applicant 's complaint as it found that it had no prospect of success and referred the case to ORG ( Verwaltungsgerichtshof ) . ORG also found that it had no doubts as to the constitutionality of the decree of CARDINAL DATE since any alleged deficiencies in the communication of the circular letter of DATE could no longer affect the lawfulness of the decree by which the consolidation proceedings had been concluded .

On DATE ORG dismissed the applicant 's complaint and confirmed ORG reasoning . ORG found that , as a consequence of the entry into force of ORG decree of CARDINAL DATE , the land consolidation authorities no longer had jurisdiction . Thus the land consolidation authorities were no longer competent to serve the consolidation plan on the applicant .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lived in GPE , GPE . When lodging his application he was detained in GPE , GPE .

The applicant , who described himself as a “ NORP ” , was working as an informer for ORG and ORG ( ORG ) .

On DATE the applicant was arrested in GPE a. M. in the presence of “ VP CARDINAL ” , an informer working for ORG who had pretended wanting to buy ecstasy tablets . The applicant was taken into detention on remand on suspicion of having trafficked in drugs .

On DATE the trial on charges of drug trafficking was opened against the applicant and CARDINAL co - defendants .

The informer “ VP CARDINAL ” could not be heard as a witness in person as ORG for the ORG had made a declaration refusing the informer permission to testify in court ( GPE ) . ORG had argued that it was necessary to keep secret the identity of the informer in order to protect his life and limb as the applicant had threatened the informer with reprisals if something went wrong in the course of the drug deal .

Therefore , the statements “ VP CARDINAL ” had made to ORG were read out in the hearing . “ VP CARDINAL ” submitted that he had travelled to GPE twice , not on the police ’s instruction , but merely in order to visit his friend “ X ” . In GPE he had met various persons , acquaintances of “ X ” , who had proposed to sell drugs to him . He did not wish to disclose the identity of “ X ” for fear of reprisals by the organizers of the drug deal . In GPE a. M. he had then met the applicant who had offered him CARDINAL ecstasy tablets which had been delivered by the applicant ’s CARDINAL accomplices DATE .

On DATE the applicant ’s lawyer requested the court to interrogate the informer “ VP CARDINAL ” or to have him interrogated as to the identity and address of “ X ” . He wished to question “ X ” as a witness in order to prove that “ VP CARDINAL ” had willingly and illegally provoked the drug deal in GPE on the instructions of the NORP police . ORG dismissed the applicant ’s motion , arguing that it was not necessary to investigate the identity of “ X ” . However , a catalogue of other questions were submitted to the police officer PERSON , who was supervising “ VP CARDINAL ” , by the court on the applicant ’s request and the answers given by “ VP CARDINAL ” were subsequently read out in court .

On DATE the GPE a. ORG convicted the applicant of joint drug trafficking and sentenced him to DATE and CARDINAL months’ imprisonment . It based its findings of fact on the applicant ’s confession and that of his CARDINAL co - defendants as well as on the evidence given by CARDINAL eye - witnesses , the informer “ VP CARDINAL ” and another informer ( who had also been refused permission to testify in court ) whose statements had been read out in the hearing . It found that , despite the caution necessary when a witness could not be questioned personally in court and his statements were merely read out , the informers had to be considered as credible . In assessing their credibility , the court took into account the oral statements made by the police officer S. supervising them . S. had stated , in particular , that he knew “ VP CARDINAL ” already for a long time , had checked the trustworthiness of his statements on several occasions and had also observed him on CARDINAL occasion when he met the applicant in GPE .

In its judgment , the GPE a. ORG dismissed a further motion of the applicant to have “ X ” questioned . Because of the declaration made by ORG for the ORG refusing “ VP CARDINAL ” permission to testify , the court had been unable to question him . Both the questioning of “ VP CARDINAL ” on the identity of “ X ” and that of “ X ” would lead to the disclosure of the identity of “ VP CARDINAL ” , which would be detrimental to the welfare of GPE or ORG .

In fixing the applicant ’s sentence , the GPE a. ORG took into consideration as a mitigating factor that the drug deal had been monitored by the police from the outset so that it was not very likely that the drugs could ever be circulated .

On DATE ( decision served on DATE ) ORG dismissed the applicant ’s appeal on points of law as ill - founded .

On DATE the applicant lodged a complaint with ORG . He argued that his rights under Articles CARDINAL and CARDINAL of LAW , read in conjunction with the rule of law , which enshrined the rights protected by LAW , were violated by the decision of ORG . He argued that ORG refusal to have the informer “ VP CARDINAL ” and “ X ” questioned violated his right to have witnesses against him examined and restricted his defence rights . The illegal provocation of the drugs deal by “ VP CARDINAL ” on instructions of the NORP police , which would have been proved on examination of these witnesses , would at least have led to a significant reduction of his sentence .

On DATE ORG refused to admit the applicant ’s constitutional complaint . It held that the complaint had no prospects of success as it was ill - founded .

ORG found that the applicant ’s right to a fair trial in accordance with the rule of law under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW had not been violated in the proceedings at issue . It argued that in cases in which a witness was refused permission to testify the defendant ’s rights could adequately be protected by submitting questions to the witness in writing which the latter had to answer in an adequate manner . In so far as the responses to the questions could not lead to the disclosure of the witness ’s identity , a court was not authorised generally to refuse the defendant or his defence counsel questioning the witness in this way .

However , ORG found that in the present case the rejection of the motion to take evidence was justified . The witness “ VP CARDINAL ” , when interrogated by the police , had already stated that he would not disclose the identity of “ X ” . Due to the refusal to give the witness permission to testify ORG had no means to force him , if necessary by the imposition of a fine or by arrest for disobedience to a court order pursuant to section CARDINAL of the Code of Criminal Procedure , to disclose what he knew . In practice , a renewed police interrogation of the informer would therefore not have caused him to make further statements as to the identity of “ X ” .