CASE OF STEEL AND OTHERS v. THE UNITED KINGDOM

Not necessary to examine Art. 5-3;Not necessary to examine Art. 6-2;Not necessary to examine Art. 6-3-b;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 11;Not necessary to examine Art. 13;No violation of Art. 5-1 (first applicant);No violation of Art. 5-1 (second applicant);Violation of Art. 5-1 (third, fourth and fifth applicant);No violation of Art. 5-1 (first and second applicant);No violation of Art. 5-5;No violation of Art. 6-3-a;No violation of Art. 10 (first applicant);No violation of Art. 10 (second applicant);Violation of Art. 10 (third, fourth and fifth applicants);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The first applicant , PERSON , was born in DATE and lives in GPE .

On DATE , together with CARDINAL others , she took part in a protest against a grouse shoot on ORG , GPE . During TIME , the protesters attempted to obstruct and distract those taking part in the shoot . At TIME the shooting party broke for lunch and did not recommence until TIME , when the police arrived and an officer began warning the protesters , through a public address system , to stop their behaviour . The protesters ignored this request and the police made a total of CARDINAL arrests .

Ms Steel was arrested by a police officer at TIME for “ breach of the peace ” ( see paragraphs CARDINAL–CARDINAL below ) . According to the police she was intentionally impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun to take aim , thus preventing him from firing .

She was taken to a police vehicle where she was detained until TIME , when she was transferred to a prison van . At TIME she was taken to GPE police station . Upon review , her continued detention there was authorised at TIME to prevent any further breach of the peace ” and subsequently , at TIME on DATE , “ in order to place her before the court later [ that ] TIME ” . In total she was detained for TIME .

At TIME on DATE she was cautioned and charged . The charge - sheet stated :

“ That you did on DATE at Wheeldale Beck in the NORP of PERSON behaved [ sic ] in a manner whereby a breach of the peace was occasioned . The complaint of PC CARDINAL Dougall of ORG who applies for an order requiring that you enter into a recognizance with or without sureties to keep the peace . Pursuant to section CARDINAL of LAW DATE [ “ the DATE Act ” – see paragraphs CARDINAL–CARDINAL below ] . ”

At TIME on DATE , she was further charged with using “ threatening , abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment , alarm or distress ” , contrary to LAW ” – see paragraph CARDINAL below ) .

She attended court on TIME CARDINAL DATE and was released on conditional bail , the condition being that she was not to attend any game shoot in GPE during the period of remand .

Ms Steel ’s trial took place before ORG DATE . She was acquitted on the section CARDINAL charge relating to TIME of CARDINAL DATE , and convicted on the section CARDINAL charge relating to TIME . The magistrates found the complaint regarding the alleged breach of the peace proved but did not specify what behaviour of the applicant justified this conclusion or whether the complaint related to TIME .

Ms Steel appealed . Her appeal was heard by way of rehearing on DATE by ORG , which upheld the GPE findings , imposed a fine of MONEY ( GBP ) for the section CARDINAL offence , and , in respect of the breach of the peace , ordered the applicant to agree to be bound over for DATE in the sum of GBP CARDINAL ( see paragraph CARDINAL below ) .

ORG refused to be bound over , and was committed to prison for DATE .

The second applicant , PERSON , was born in DATE and lives in GPE , GPE .

On DATE , she took part in a protest against the building of an extension to the MCARDINAL motorway in GPE , GPE . During the course of DATE a group of CARDINAL protesters repeatedly broke into a construction site , where they climbed into trees which were to be felled and onto some of the stationary machinery . On each occasion they were removed by security guards . The protesters did not offer any resistance and there were no incidents of violence or damage to machinery .

Ms Lush was arrested at TIME while standing under the “ bucket ” of a “ ORG ” digger , for conduct “ likely to provoke a disturbance of the peace ” . She was taken to GPE police station where she was charged at TIME The charge - sheet states :

ORG as a person whose conduct on DATE at GPE , PERSON , was likely to provoke a disturbance of the peace to be brought before a Justice of the FAC or Magistrate to be dealt with according to law . ”

She was kept in custody until TIME DATE ( MONEY detention ) , on the grounds that if released she would cause a further breach of the peace .

She appeared before ORG on TIME of DATE to answer an allegation that she had engaged in conduct likely to provoke a disturbance of the peace . The proceedings were adjourned and she was released .

The proceedings resumed on DATE , when the allegation of conduct likely to cause a breach of the peace , brought under section CARDINAL of LAW , was found to have been made out . PERSON was ordered to agree to be bound over for DATE to keep the peace and be of good behaviour in the sum of GBP CARDINAL . She refused to be bound over and was committed to prison for DATE .

On DATE PERSON requested the magistrates to state a case to ORG ( see paragraph CARDINAL below ) . The magistrates replied on DATE that under LAW of LAW they would require a recognizance of GBP CARDINAL that the applicant would prosecute the appeal without delay , submit to judgment and pay any costs ordered by ORG . After correspondence between PERSON representatives and the clerk of the court concerning the applicant ’s means , the magistrates agreed to reduce the recognizance to GBP CARDINAL . However , PERSON was unable to continue with the appeal since her application for legal aid was refused .

PERSON , born in DATE , Mr PERSON , born in DATE , and Mr PERSON , born in DATE , all live in GPE .

On DATE , at TIME , they attended the Queen Elizabeth Conference Centre in GPE , GPE , where the “ Fighter Helicopter II ” Conference was being held , in order to protest with CARDINAL others against the sale of fighter helicopters . The protest took the form of handing out leaflets and holding up banners saying : “ Work for Peace and not War . ”

At TIME the CARDINAL applicants were arrested by police officers . PERSON was holding a banner and PERSON and PERSON Cole were distributing leaflets . All CARDINAL applicants were taken to ORG police station where the custody record for each states the “ circumstances ” ( the word “ charges ” having been deleted ) as :

“ Breach of the peace , common law .

On DATE at ORG , FAC , GPE SWCARDINAL , constituted or was likely to provoke a disturbance of the peace to be brought before a ORG of the Peace to be dealt with according to law .

Contrary to common law . ”

At TIME the applicants were taken to FAC where they were detained in a cell . They were brought before the magistrates at TIME , having been detained for TIME . The magistrates adjourned the matters due to lack of time and the applicants were released .

On DATE , when the proceedings were resumed , the prosecution decided not to call any evidence and the magistrates dismissed the case against the applicants .

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

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

He continued :

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

NORP In DATE , in a differently constituted ORG giving judgment in NORP v. Chief Constable of GPE and GPE , ex parte ORG ( [ DATE ] ORG Reports CARDINAL ) , which concerned a protest against the construction of a nuclear power station , Lord ORG , Master of the Rolls , defined “ breach of the peace ” more broadly , as follows :

“ There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it . He is entitled by law peacefully to go on with his work on his lawful occasions . If anyone unlawfully and physically obstructs the worker DATE by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace . ” ( p. CARDINAL )

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

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

In another case before ORG , PERSON and PERSON v. Director of Public Prosecutions ( [ DATE ] Justice of the Peace Reports CARDINAL ) , Lord Justice PERSON stated :

“ … the court would surely not find a [ breach of the peace ] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course , it would be if the defendant ’s conduct was not merely lawful but such as in no material way interfered with the other ’s rights . A fortiori , if the defendant was properly exercising his own basic rights , whether of assembly , demonstration or free speech . ” ( p. CARDINAL )

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

Section CARDINAL of LAW CARDINAL ( “ the DATE LAW ) creates the offence of threatening , abusive , insulting or disorderly conduct likely to harass , alarm or distress others . It is triable before magistrates and punishable by fine . It is a defence to a charge under LAW CARDINAL for the accused to show that the behaviour in question was reasonable in the circumstances .

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

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

Section CARDINAL of the CARDINAL Act provides :

“ ( CARDINAL ) The power of a GPE court on the complaint of any person to adjudge any other person to enter into a recognizance , with or without sureties , to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint .

( CARDINAL ) If any person ordered by a GPE court under subsection ( CARDINAL ) above to enter into a recognizance , with or without sureties , to keep the peace or to be of good behaviour fails to comply with the order , the court may commit him to custody for a period not exceeding DATE or until he sooner complies with the order . ”

The procedure under section CARDINAL of the CARDINAL Act is begun by laying a formal complaint , usually by a police officer . Before the magistrates can make an order they must be satisfied , on the basis of admissible evidence , that ( CARDINAL ) the defendant ’s conduct caused a breach of the peace or was likely to cause CARDINAL ( NORP v. PERSON , ex parte Ward [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ; and ( CARDINAL ) unless the order is made , there is a real risk that the defendant will cause a further breach of the peace in the future .

Although a binding - over order is not a criminal conviction , these proceedings have been described as analogous to criminal proceedings . In the past it was unclear whether the court should apply the criminal or the civil standard of proof when deciding whether facts exist which warrant a binding - over order at the conclusion of the proceedings . However , in PERSON and PERSON v. PERSON ( cited above ) , Lord Justice PERSON stated :

“ It is common ground that , although no criminal conviction results from finding such a complaint proved , the criminal standard of proof applies to the procedure . ”

In addition to the above statutory procedure , magistrates have powers to bind over at common law and under LAW . These powers allow magistrates , at any stage in proceedings before them , to bind over any participant in the proceedings ( for example , a witness , acquitted defendant or a defendant who has not yet been acquitted or convicted ) , if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra DATE ( “ conduct which has the property of being wrong rather than right in the judgment of the vast majority of contemporary fellow citizens ” ( per Lord Justice PERSON in ORG v. ORG [ DATE ] CARDINAL ORG CARDINAL ) .

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

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

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

ORG therefore recommended abolition of the power to bind over .

Under section CARDINAL of ORG DATE , a civil action , for example for false imprisonment , may lie against a magistrate in respect of any act or omission in the purported execution of his or her duty only if it can be proved that he or she acted both in bad faith and in excess of jurisdiction .


Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by their Agent , Mr PERSON of ORG .

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

In DATE the applicant and PERSON . started living together as husband and wife without formally registering their marriage . On DATE a child was born to them .

On DATE an incident of physical harassment of the applicant by PERSON . took place . On DATE , as soon as the applicant had reported about that incident , ORG opened a criminal case against PERSON . for battery of the applicant .

On DATE the applicant brought an action requesting child support from PERSON . , with whom she had terminated cohabitation by that time .

In a decision of DATE , the ORG in GPE allowed the applicant ’s action . PERSON was ordered to assist her in the raising of their daughter by paying PERCENT of his income DATE , which amount however should never be CARDINAL NORP laris ( GEL , CARDINAL ( ORG ) ) . The payments were to take effect from DATE , the date of the introduction of the applicant ’s action , until their child reached the age of majority ( DATE ) . No subsequent appeal was lodged against that decision , and it became binding .

On DATE ORG of ORG reproached the competent bailiff of LOC for not having enforced the decision of DATE . The bailiff was instructed to recover GEL CARDINAL ( ORG CARDINAL ) from the debtor in a lump sum as arrears for DATE of non - payment , and to ensure the continuous payment of the maintenance in future . ORG further ordered that the debtor ’s whereabouts be established and his assets frozen , to be sold by compulsory public auction , if necessary .

In DATE the bailiff itemised and froze PERSON ’s real and movable property . Some assets of minor value were later sold at public auction , as a result of which enforcement measure the applicant received GEL CARDINAL ( ORG CARDINAL ) .

On DATE ORG informed the applicant that PERSON . had managed to alienate some of the frozen assets , in respect of which fact ORG later opened another criminal case .

On DATE the ORG , overturning a lower instance verdict , found PERSON . guilty of infliction of less serious bodily injury to the applicant and the persistent non - payment of the court - awarded maintenance , offences under Articles CARDINAL § CARDINAL and CARDINAL of LAW . He was sentenced to DATE and CARDINAL months’ conditional imprisonment for the first offence and fined GEL CARDINAL ( EUR CARDINAL ) for the second .

In addition , ORG examined the applicant ’s civil claims . Thus , in the same judgment of DATE , it ordered PERSON . to pay her GEL CARDINAL ( ORG CARDINAL,CARDINAL ) in pecuniary damages , this amount corresponding to the arrears of maintenance for DATE , and GEL CARDINAL ( EUR CARDINAL ) in non - pecuniary damages for the distress caused by his wrongful actions .

In a decision of DATE , delivered in the applicant ’s presence , ORG upheld the judgment of DATE .

On DATE the ORG issued enforcement writs on the basis of the judgment of DATE , ordering PERSON . to pay the applicant GEL CARDINAL ( ORG CARDINAL ) within DATE . Supervision of the enforcement was entrusted to ORG .

On DATE ORG , complaining to ORG that PERSON . had failed to discharge the judgment debt of DATE , requested that the probation be cancelled and that he be imprisoned . On DATE ORG dismissed that request .

The relevant legal provisions concerning the possibility of suing the enforcement authority were cited in the case of Nazaretian v. GPE ( ( dec . ) , no . DATE , DATE ) .


Violation of Art. 6-3-c;Not necessary to examine Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings

Mr. PERSON , a NORP national born in DATE , is currently living in GPE ; he was resident in GPE from DATE .

The applicant arrived in GPE in DATE and was engaged by the firm of ORG at ORG . He stayed there for DATE . Subsequently , he had a succession of different occupations : mechanic in another firm at ORG , manager of a restaurant , independent insurance and building - loans broker . The last - mentioned activity , which consisted of negotiating and concluding , for example , life - insurance and savings contracts with NORP workers , provided him , as he himself stated , with a very good DATE income .

On DATE , ORG ( ORG ) imposed on him a suspended sentence of CARDINAL months’ imprisonment for an offence against LAW ( Betaeubungsmittelgesetz ) . ORG ( Landgericht ) dismissed the applicant ’s appeal on DATE .

These proceedings are not here in issue .

The criminal proceedings to which the present case relates began in DATE .

Mr. PERSON was arrested on DATE on suspicion of having committed a further offence against LAW ; on DATE , he was granted the assistance of an officially appointed lawyer , namely Mr. PERSON , of GPE .

The trial opened before ORG on DATE and continued on CARDINAL , DATE , DATE and DATE . The applicant was defended by Mr. PERSON and , at certain TIME , by Mr. PERSON , a member of the same firm .

On DATE , the court sentenced Mr. PERSON to DATE and CARDINAL months’ imprisonment for an offence against LAW and for tax evasion ( Steuerhinterziehung ) : it was found to be proved that in DATE the accused had illegally imported into GPE QUANTITY of cannabis resin of NORP origin , hidden in his car .

On DATE , Mr. PERSON filed an appeal on points of law ( Revision ) . In his memorial of DATE , setting out the grounds of appeal , he relied , inter alia , on LAW , which provides that several accused persons may not be defended by one and the same lawyer ( see paragraph CARDINAL below ) . Mr. PERSON explained that he had previously represented another person who on the occasion in question had , according to ORG findings , been Mr. PERSON ’s accomplice .

Mr. PERSON was released on DATE and returned to GPE .

On DATE , the Federal public prosecutor ( ORG ) moved that the appeal be held inadmissible on the ground that it had been filed by a defence counsel who , on his own admission , was not entitled to represent the applicant .

On DATE , Mr. PERSON applied for leave to proceed out of time ( Wiedereinsetzung in den vorigen Stand ) in order to lodge a fresh appeal , which appeal he in fact filed at the same moment . On DATE , ORG ( ORG ) allowed the application ; it had first sought the opinion of the public prosecutor who , without giving reasons , had indicated that he was in favour of such a course .

On DATE , ORG granted Mr. PERSON ’s request of DATE to be appointed official defence counsel to file the memorial setting out the grounds of appeal ; DATE it relieved Mr. PERSON of his duties .

In his memorial of DATE , which was CARDINAL pages in length , Mr. PERSON complained solely of procedural errors ( PERSON ) . He listed CARDINAL , most of which concerned decisions of ORG refusing to appoint an expert or to summon , question or have questions put to witnesses . The last of the alleged errors related to LAW : recalling that Mr. PERSON had previously defended another person whom ORG had convicted , on DATE , as an accomplice of Mr. PERSON , Mr. PERSON maintained that this recourse to a common defence counsel had been contrary to the interests of both accused ( see paragraph CARDINAL below ) .

In its observations in reply ( ORG ) of DATE , the public prosecutor ’s office attached to ORG submitted that the appeal was inadmissible . It considered that Article CARDINAL prevented Mr. PERSON , just as it did Mr. PERSON , from acting in the case as officially appointed lawyer . Mr. PERSON replied on DATE . He pointed out , amongst other things , that since he had never defended Mr. PERSON ’s accomplice , Article CARDINAL did not apply to him .

On DATE , the Federal public prosecutor invited the above - mentioned office to comment on the complaints that had been made ; in his view , it was at least doubtful whether the appeal was inadmissible de plano .

On DATE , the GPE public prosecutor ’s office filed its supplementary observations ( weitere Gegenerklaerung ) , dated DATE ; it sent a copy to Mr. PERSON . In accordance with the practice in such matters ( Instruction no . CARDINAL of the Instructions on Criminal Procedure and Administrative Fines Procedure - Richtlinien für das PERSON ) , the observations reproduced for each complaint the relevant documents in the case - file , in particular the requests made by the applicant ’s lawyer during the trial and the decisions taken by ORG thereon . As regards LAW , the public prosecutor ’s office referred to its earlier observations , including those of DATE .

On application by the Federal public prosecutor ’s office , ORG decided on DATE to hold a hearing ( ORG ) on DATE . Mr. PERSON and his client , who had returned to GPE , were notified of this on DATE .

On DATE , Mr. PERSON applied to be officially appointed as the applicant ’s lawyer for the hearing of DATE .

The President of ORG ( Strafsenat ) of ORG refused the application on DATE . In his view , an accused ( Angeklagter ) who was at liberty was not entitled to such an appointment for hearings in an appeal on a point of law ; there was no legal requirement at that stage for him either to appear in person or to be represented by a lawyer ( LAW paras . CARDINAL and CARDINAL of LAW ; see paragraph CARDINAL below ) . As regards compliance with procedural rules ( verfahrensrechtlich ) , an appeal court ( GPE ) would examine the impugned decision on the basis of the written grounds of appeal ; as regards any substantive complaints ( bei sachlichrechtlicher Beanstandung ) , it would affect of its own motion a review that was not subject to any limitations . Furthermore , on this occasion neither the facts of the case nor the legal issues it raised justified the appointment requested .

In the objections ( Gegenvorstellungen ) he raised on DATE , Mr. PERSON cited a judgment of DATE of ORG ( see paragraph CARDINAL below ) , holding that , in addition to the cases provided for by law , legal aid had to be granted for hearings in appeals on a point of law in " serious " ( " schwerwiegend " ) cases if the person concerned was unable to pay a lawyer of his own choosing . And , he submitted , Mr. PERSON was in such a situation , for a final conviction would lead to his expulsion . Mr. PERSON asked ORG to indicate whether he should supply particulars of the applicant ’s assets in order to substantiate ( glaubhaft machen ) the latter ’s lack of means . According to Mr. PERSON , Mr. PERSON was obviously ( offensichtlich ) not in a position to pay a lawyer . He had come to GPE as a migrant worker and had returned to GPE after spending a long ( laengeren ) period in GPE prison . It was evident that he had no savings .

Mr. PERSON requested that , if need be , the matter be referred to the ORG for decision .

On DATE , the President of ORG confirmed his decision of DATE refusing the application ; he took the view that the above - mentioned judgment of DATE did not concern a case that was comparable to the applicant ’s .

The hearing was held on DATE , in the absence of the applicant and of Mr. PERSON . According to the minutes , ORG heard the judge acting as rapporteur and then the submissions ( Ausfuhrungen ) of an official of the Federal public prosecutor ’s office ( Bundesanwaltschaft ) in favour of rejecting the appeal . After deliberating in private , the court gave on the same day judgment dismissing the appeal .

The judgment held firstly that the appeal was admissible : Article CARDINAL of the Code of Criminal Procedure did not prevent Mr. PERSON from representing Mr. PERSON before ORG . On the other hand , that Article had not been complied with at first instance since Mr. PERSON had previously defended the applicant ’s accomplice . However , ORG , referring to a judgment of its ORG ( see paragraph CARDINAL below ) , added that an appeal on a point of law based on that Article could succeed only if the representation of several accused by CARDINAL and the same lawyer proved to be really defence . And on this occasion it had not been established that there was any conflict of interests .

ORG then rejected the remainder of the complaints : some were examined in detail and held to be without foundation and the others were considered more briefly and held to be manifestly ill - founded .

The judgment , which was CARDINAL pages in length , was served on Mr. PERSON on DATE .

In DATE , Mr. PERSON lodged an appeal with ORG . Alleging a violation of ORG , CARDINAL , DATE , DATE , DATE and CARDINAL para . CARDINAL of LAW , he repeated the submissions made by his colleague Mr. PERSON before ORG on DATE ( see paragraph CARDINAL above ) . He argued that it was only through a defence counsel that Mr. PERSON could have availed himself of his right to be heard : he lived in GPE , lacked financial resources and had an insufficient command of NORP . In addition , the legal issues involved were particularly complex , as was shown by the length of the memorial setting out the grounds of appeal ( see paragraph CARDINAL above ) and ORG decision to hold a hearing . Mr. PERSON should therefore have been given the opportunity of stating his views on the submissions of the Federal public prosecutor ’s office . Again , the consequences of an unfavourable judgment would have been such as to make the official appointment of a lawyer essential : for the applicant , dismissal of the appeal meant his undoing in GPE and the breakdown of his marriage and family life .

Mr. PERSON , who requested that legal aid be granted to the applicant , asked ORG to indicate whether he should supply particulars of his client ’s assets in order to substantiate ( glaubhaft machen ) the latter ’s lack of means .

In a ruling given on DATE by a panel of CARDINAL judges , ORG decided not to hear the appeal on the ground that it did not offer sufficient prospects of success . ORG found nothing arbitrary in the decision of the President of ORG . Moreover , the case was not " serious " , within the meaning of the above - mentioned judgment of DATE ( see paragraphs CARDINAL above and CARDINAL below ) . Finally , Mr. PERSON could have remained in GPE and attended the hearing before ORG , if need be with the assistance of an interpreter .

After his arrest on DATE , Mr. PERSON had remained in custody until DATE , partly in detention on remand and partly to serve sentences that had been imposed on him .

If the accused has not chosen a defence counsel , the trial court will appoint CARDINAL in the following cases ( listed in Article CARDINAL para . CARDINAL of the Code of Criminal Procedure ) :

- the trial at first instance is before ORG ( Oberlandesgericht ) or ORG ;

- the accused is charged with an indictable offence ( PERSON ) ;

- the proceedings may result in the accused ’s being prohibited from exercising a profession ;

- the accused is deaf or dumb ;

- the accused has been interned for DATE by order or with the approval of a court and has not been released DATE before the opening of the trial ;

- the question arises whether the accused should be detained for mental examination ;

- the case concerns preventive detention proceedings ( PERSON ) ;

- a decision has been taken prohibiting the previous defence counsel from taking part in the proceedings .

An appointment will also be made in other cases , either by the court of its own motion or at the accused ’s request , if such a step appears necessary on account of the seriousness of the act in question , the factual or legal complexity of the case , or if it is obvious that the accused can not conduct his own defence ( Article CARDINAL para . CARDINAL ) .

The official appointment of a lawyer by the trial court covers not only the proceedings before that court but also the written stage of any appeal on a point of law . If necessary , the trial court will make a special appointment for the latter stage .

An accused ( ORG ) who is in custody does not have an enforceable right to attend hearings in an appeal on a point of law - whether before the appeal court or ORG ( Articles CARDINAL and CARDINAL of the Judicial Code - Gerichtsverfassungsgesetz ) - , but he may be represented thereat by a lawyer ( Article CARDINAL para . CARDINAL ) . If he has not chosen a lawyer and is not brought to the hearing , the President of the court having jurisdiction will appoint CARDINAL for him if he so requests ( Article CARDINAL para . CARDINAL ) .

An accused who is at liberty may appear in person or be represented by a lawyer at the appeal hearing ( LAW para . CARDINAL ) . According to the case - law of ORG , defence counsel can be assigned to him only under LAW para . CARDINAL ( see paragraph CARDINAL above ) , since Article CARDINAL para . CARDINAL does not apply to hearings in an appeal on a point of law ( ORG in PERSON , vol . CARDINAL , pp . CARDINAL - CARDINAL ) .

Furthermore , ORG has held that defence counsel is to be appointed by the court of its own motion and at the expense of the ORG in serious cases ( schwerwiegende GPE ) if the accused can not pay for a lawyer of his own choosing ( PERSON , vol . DATE , pp . CARDINAL - CARDINAL ) .

The court concerned may dispose of an appeal on a point of law without hearings in the following cases only :

- where it finds the appeal inadmissible ( Article CARDINAL para . CARDINAL of the Code of Criminal Procedure ) ;

- where , on a reasoned application by the public prosecutor ’s office , the court considers unanimously that the appeal is manifestly ill - founded ( Article CARDINAL para . CARDINAL ) ; and

- where the court finds unanimously that an appeal filed in the interests of the accused is well - founded ( Article CARDINAL para . CARDINAL ) .

In all other cases the court has to hold a hearing before taking its decision ( Article CARDINAL para . CARDINAL ) ; before ORG , there are hearings in CARDINAL per cent of the appeals on points of law lodged in criminal cases .

When the public prosecutor ’s office applies for an appeal to be rejected as manifestly ill - founded , it has to communicate its submissions and the reasons to the appellant ; the latter may file a reply within DATE ( Article CARDINAL para . CARDINAL ) .

Article CARDINAL para . CARDINAL requires that the accused and his lawyer be informed of the date and place of the hearing ; if it is not possible to contact the former , notification to the latter is sufficient .

Appeal hearings open with the rapporteur ’s address ; this is followed by the statements and submissions of the public prosecutor ’s office , the accused and his defence counsel . The appellant is heard first and the last address to the court is always made by the accused ( LAW ) .

According to the former version of LAW , which was in force until DATE , several accused could be represented by a single counsel if this was not contrary to the interests of the defence . As it was often difficult for courts to detect or establish such conflicts of interests , Article CARDINAL was modified in DATE : the new text , which has been applicable since DATE , does not allow several accused to be defended by a common defence counsel .

However , ORG ( ORG ) held on DATE and CARDINAL DATE that an appeal on a point of law based on a violation of LAW could succeed only if recourse to a common defence counsel was in fact contrary to the interests of the defence ( ORG in PERSON , vol . CARDINAL , pp . CARDINAL - CARDINAL ; vol . CARDINAL , pp . CARDINAL - CARDINAL ) . ORG followed these precedents in its judgment of CARDINAL DATE in the present case ( see paragraph CARDINAL above ) . The Government stated that this interpretation has since been accepted by all FAC of ORG .


Remainder inadmissible;No violation of Art. 10

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the NORP ORG issued a decision by which it imposed a ban on the activities of ORG of Kurdistan ( “ the NORP ” ) , under LAW , second sentence , of ORG , see Relevant domestic law , below ) .

Relevant parts of the decision read as follows :

“ CARDINAL . The activities pursued by ORG of Kurdistan ” ( PKK) ... run contrary to provisions of the criminal law , are directed against the concept of international understanding , endanger inner security and other important interests of GPE .

ORG of NORP ” ( PKK) ... is not allowed to pursue its activities within the territorial ambit of ORG . ”

As the ORG as such did not challenge the imposition of the ban before the NORP courts , the decision became final on DATE .

Following the arrest of its leader , PERSON , in DATE , the ORG 's executives changed their strategy and declared an end to the armed battle against NORP army entities . Following a “ peace initiative ” declared by the party 's seventh congress on DATE , the ORG did not organise any further demonstrations or violent acts in GPE .

In DATE the ORG 's presidential counsel decided to launch a large - scale campaign , during which their supporters should address themselves to the NORP authorities , should acknowledge their support for the ORG and should demand that the ban on the ORG 's activities be lifted .

The supporters signed a declaration . The declarations were then collected and handed over in large numbers to parliaments , administrative bodies and courts . The content of the largely identical declarations was as follows :

“ Self declaration ( ORG )

“ I also am a follower of the ORG ” ( “ PERSON ” )

As the NORP people has been denied its basic right to life , it has had no choice but to take up arms . After DATE of war , our national leader , PERSON , has initiated a strategic change . For DATE the ORG has been using exclusively political means to fight for a peaceful and democratic solution to the NORP question . On the basis of this new strategy ORG of Kurdistan ( ORG ) is undergoing a global reformation . Strongly determined to find a solution , it has developed its political activities against all resistance without leaving the framework of legality .

Although the NORP question emerged geographically in LOC , having regard to its historical , political and international connections it is a NORP problem waiting for a solution . LOC played a major role in the setting of LOC boundaries . That is why LOC is now confronted with the task of playing a role in the solution of the problems . Just as it failed to offer a prospect of a solution when our leader was abducted in the framework of an international conspiracy , LOC fails DATE to make use of the opportunities offered by the ORG .

While the majority of ORG make GPE 's accession to ORG dependent on the GPE criteria , they deny the national and political status of the NORP living in LOC . GPE and GPE , in particular , insist on a policy of bans . With this destructive attitude LOC puts itself within the context of the policy of destruction and negation which is directed against the NORP people . DATE as in the past LOC continues its negative tradition . This is nothing but a policy of double moral standards .

On this basis I , as a member of the NORP people , declare that I share the ORG 's new policy , which , for DATE , has been leading its political fight on a legal basis . I further declare that I belong to the ORG .

I challenge the NORP Member States to apply the same standards to themselves they apply to non - member GPE . I furthermore request these ORG to comply themselves with the express criteria for accession to ORG with regard to the NORP living in LOC . I therefore demand the full recognition of the rights granted to other peoples for the NORP people .

I further demand the official recognition of the cultural and political values created by the NORP people in the course of their great struggle . In this context I demand respect for my people 's national and political identity .

I support the line of the ORG 's democratic struggle , as has been confirmed by its seventh congress . Having regard to the fact that the ORG has not committed CARDINAL single violent act for DATE , I demand the lifting of all bans which are applied on the ORG .

I further declare that the liberty of our leader , PERSON , and the possibility of his political activity are the only guarantee for an enduring solution . I therefore demand : “ Freedom for PERSON in GPE ” .

I hereby declare that I most severely condemn the prohibition issued against the ORG and the criminal prosecution of ORG membership and of active sympathy for the ORG . I further declare that I do not acknowledge this prohibition and that I assume all responsibility arising therefrom . ”

With others , the applicant organised and coordinated a collection of signatures of the declaration in GPE . She also signed a declaration herself . On DATE the applicant , with CARDINAL others , handed CARDINAL folders containing CARDINAL signed declarations to the GPE public prosecutor . On DATE the applicant handed over one further folder containing declarations . Furthermore , the applicant donated certain sums of money to a sub - organisation of the ORG , which was also subject to the ban .

Within the framework of the campaign , CARDINAL declarations were handed to the authorities in GPE ; CARDINAL declarations were submitted to NORP administration as a whole .

On DATE ORG ( Landgericht ) convicted the applicant of contravening a ban imposed on an association 's activity ( section QUANTITY no . CARDINAL in conjunction with section CARDINAL , second sentence , of ORG ) and sentenced her to CARDINAL DATE fines of DATE each . During the hearing before that court , the applicant submitted a declaration that she had not intended to breach the criminal law , but to express her opinion and to further the understanding between the NORP and the NORP people . ORG considered that the applicant , by signing the declaration , taking part in the campaign and giving donations , had flouted the ban on pursuing the ORG 's activities .

ORG considered that the declaration 's content , seen in the context of the accompanying campaign , was likely to have a positive effect on the association 's unlawful activities . ORG considered , in particular , that the declaration “ not ( to ) acknowledge this ban and ( to ) assume all responsibility arising therefrom ” had a twofold effect : Firstly , the applicant expressed her commitment not to abide by the ban in the future and thus to provide the ORG with security for planning further unlawful activities . Secondly , it was likely to strengthen solidarity with other potential supporters .

According to ORG , the declaration signed by the applicant was not covered by her right to freedom of expression , as the applicant did not confine herself to claiming freedom and self - determination for the NORP people , to demand the lifting of the ban on the ORG and most severely to condemn its continuation , which would fall within the ambit of the applicant 's freedom of expression . Seen in the context of the aims of the overall campaign , the declaration also contained the statement that the applicant would continue to support the ORG even if the ban imposed on its activities was not lifted . This was already implied in the concluding statement , that the applicant would “ assume all responsibility arising therefrom ” , that is to say from any flouting of the ban . ORG also considered that the campaign had the further aim of overburdening the public prosecution service with such a large number of criminal proceedings that they would not be able to cope .

ORG considered as mitigating factors , inter alia , the importance of the right to freedom of expression .

On DATE ORG ( ORG ) , referring to its own pilot judgment given on DATE ( see relevant domestic law and practice , below ) , dismissed the applicant 's appeal on points of law . According to that court , ORG interpretation of the applicant 's statement and the evaluation of her behaviour were compatible with the right to freedom of expression as enshrined in LAW Law.comprehensively and coherently refuted the applicant 's allegations that she had not participated in a campaign which had been organised by the ORG with the aim to hamper the criminal prosecution of breaches of the ban by provoking a massive quantity of criminal investigations , but that she had merely intended to express her opinion on the ban . This was demonstrated by the fact that the applicant and the other campaigners did not address themselves to ORG , which would have been competent for lifting the ban , but addressed a massive quantity of collected individually signed declarations to the public prosecutor 's office . The applicant 's unwillingness to abide by the ban was further demonstrated by the fact that she had been previously convicted of a similar offence and that she had flouted the ban in another , separate way by financially supporting a sub - organisation of the ORG .

ORG finally considered that ORG had sufficiently weighted the importance of the right to freedom of expression when assessing the sentence .

On DATE the applicant lodged a constitutional complaint in which she complained that her right to freedom of expression and her right to petition had been violated .

On DATE ORG ) , in a reasoned decision of CARDINAL pages , refused to accept the applicant 's complaint for adjudication as being unfounded .

Article CARDINAL of the German Basic Law ( Freedom of Expression ) reads as follows :

“ ( CARDINAL ) Every person shall have the right freely to express and disseminate his opinions in speech , writing and pictures , and to inform himself without hindrance from generally accessible sources ( ... ) .

( CARDINAL ) These rights shall find their limits in the provisions of general laws , in provisions for the protection of young persons , and in the right to personal honour .

( CARDINAL ) .... ”

LAW ) provides :

“ ( CARDINAL ) All NORP shall have the right to form corporations and other associations .

( CARDINAL ) Associations whose aims or activities contravene the criminal laws , or that are directed against the constitutional order or the concept of international understanding , shall be prohibited . ”

Article CARDINAL of LAW ( ban on retroactive criminal laws ) provides :

“ ( CARDINAL ) ...

( CARDINAL ) An act may be punished only if it was defined by a law as a criminal offence before the act was committed . ”

The relevant sections of ORG ) read as follows :

Section CARDINAL

Banning

“ An association can only be treated as being banned if the competent authority established by decree that its aims or its activity contravene the criminal law or that it is directed against the constitutional order or against the idea of international understanding ... ”

Section CARDINAL

Geographical applicability of bans imposed on associations

“ ... If a ( foreign ) association does not have a sub - organisation within the geographical applicability of this LAW , the ban ( section CARDINAL paragraph CARDINAL ) is directed against its activity within that territory . ”

Section CARDINAL

“ Anyone who , within the geographical applicability of this act , by pursuing an activity

contravenes an enforceable prohibition under LAW sentence PERSON ( ... )

Will be sentenced to DATE imprisonment or to a fine . ”

On DATE ORG issued a pilot judgment ( no . CARDINAL StR CARDINAL/CARDINAL ) on the criminal liability incurred by signing the “ self declaration ” which also forms the subject matter of the instant complaint .

ORG confirmed its earlier case - law that a person contravened an enforceable prohibition within the meaning of section CARDINAL § CARDINAL no . CARDINAL in conjunction with section CARDINAL sentence CARDINAL of ORG if his activity made reference to the banned activity of the association and was conducive to those activities . The acts had to be actually suited to producing an advantageous effect in regard to the banned activities .

The court considered that the submission of these signed declarations within the framework of a large - scale campaign was concretely suited to support the ORG 's activities . Having regard to the overall context of the statement and to the circumstances of the campaign , ORG considered that it could be ruled out that the signatories confined themselves merely to demand freedom and self - determination for the NORP people , a lifting of the ban and most severely to condemn the maintenance of the ban . This statement would have been covered by their right to freedom of expression . However , the concluding statement , according to which the signatories declared that they assumed “ all responsibility arising therefrom ” ( that is to say from the non - observance of the ban ) made it unequivocally clear that they were ready to flout the ban and to bear the ensuing criminal prosecution . Otherwise , the addendum would not make sense , as these consequences could not be expected for the mere utterance of criticism and the request for a lifting of the ban , which would be covered by the right to freedom of expression and thus be exempt from criminal liability .

This interpretation was further corroborated by the fact that it had been the campaigners ' declared aim to overburden public prosecution authorities with such a large number of proceedings that they would be unable to cope .


Geoffrey Valenzia;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

The applicant was born in GPE and his birth was registered there . He was born out of wedlock and is the son of a NORP mother and a NORP father . The latter ’s paternity has been determined both judicially and scientifically ( see below ) . PERSON , the applicant ’s father , of NORP citizenship , has refused to acknowledge his son or to maintain a relationship with him .

On an unspecified date the applicant ’s mother made a request for her son to be granted NORP citizenship .

On DATE , ORG informed the applicant ’s mother that since she was not a NORP citizen and the father of the applicant had not yet been declared to be a NORP citizen on the applicant ’s birth certificate , the applicant was not entitled to NORP citizenship . She was informed that citizenship would be granted only if the NORP father recognised his son on the applicant ’s birth certificate .

Subsequently , the applicant ’s mother instituted proceedings in GPE for the NORP man with whom she had had a relationship to be declared the applicant ’s father on the applicant ’s birth certificate . By a decree of an unspecified date the NORP courts declared PERSON , a NORP citizen , to be the applicant ’s biological father . Consequently , the applicant ’s birth certificate was amended to reflect the established paternity .

According to the Government , in the meantime the applicant ’s mother was informed that even if PERSON was judicially declared to be the applicant ’s father the applicant would still not be eligible for citizenship in view of section CARDINAL(CARDINAL)(b ) and CARDINAL(CARDINAL)(a ) of LAW , which stated that children born out of wedlock were only eligible for NORP citizenship if their mother was LANGUAGE .

Subsequently , the applicant ’s mother again submitted an application under LAW ) of LAW ( see Relevant Domestic Law below ) for her son to be granted NORP citizenship .

On an unspecified date her application was rejected on the basis that NORP citizenship could not be granted to an illegitimate child in cases where the illegitimate offspring was born to a non - NORP mother and a NORP father , in accordance with section CARDINAL(CARDINAL)(a ) of LAW ( see Relevant Domestic Law ) . Since the applicant was not born to a married couple , as a result of the application of LAW CARDINAL(CARDINAL)(a ) any reference to the “ father ” in section CARDINAL ) had to be deemed to be a reference to the mother .

By a judgment of CARDINAL DATE ORG ( FAC ) in GPE also declared PERSON to be the applicant ’s biological father and he was ordered to pay maintenance .

Pending the above judgment , in DATE , the applicant ’s mother in her own name and on behalf of the applicant , as his curator ad litem , instituted constitutional redress proceedings , complaining that the said provision was discriminatory and contrary to both LAW and the Convention .

On DATE ORG , in its constitutional jurisdiction , found that the said provisions were in violation of LAW , because they discriminated against the applicant by depriving him of NORP citizenship . It further abstained from taking a decision on the compatibility of the provisions with the Convention .

On DATE , on appeal , ORG reversed the first - instance judgment in respect of the compatibility of the provisions with the LAW . However , it sent the case back to ORG for a determination on the compatibility of those provisions with the Convention .

On DATE ORG in its constitutional jurisdiction held that section CARDINAL(CARDINAL)(a ) of LAW was null vis - á - vis

On DATE , on appeal , ORG reversed the first - instance judgment . Noting the amendments in DATE ( see Relevant Domestic Law ) , it considered that its judgment had to be limited to the parameters of the application before it . It held that the right to citizenship was not a substantive Convention right . The grant or denial of citizenship would not facilitate or create obstacles to the applicant ’s family life since his father categorically refused to have any contact with him . Moreover , since the Convention did not oblige a ORG to allow a non - national spouse to reside in its territory , it could not be said that the ORG was obliged to grant citizenship to a non - national .

LAW , LAW , in so far as relevant , reads as follows :

Section CARDINAL

“ ( CARDINAL ) A person born outside GPE on or after DATE ( DATE ) shall be deemed to have become or shall become a citizen of GPE at the date of his or her birth :

( b ) in the case of a person born on or after DATE , if at the date of such person ’s birth , his or her father or mother is a citizen of GPE ... ”

Section CARDINAL

“ ( CARDINAL ) In this LAW - ( a ) any reference to the father of a person shall , in relation to a person born out of wedlock and not legitimated , be construed as a reference to the mother of that person ; ... ”

By means of LAW of DATE the following subsections were added to LAW :

“ ( CARDINAL ) A person born outside GPE on or after DATE who proves he is a descendant in the direct line of an ascendant born in GPE of a parent likewise born in GPE shall be entitled , upon making an application as may be prescribed and upon taking the oath of allegiance , to be registered as a citizen of GPE :

Provided that when the said person is a minor , any such person who according to law has authority over that minor , may submit an application for the registration of the said minor as a citizen of GPE .

( CARDINAL ) Any ascendant as provided in subarticle ( CARDINAL ) who dies before DATE and who would , but for his death , have been entitled to acquire NORP citizenship under this article , shall be deemed to have acquired such citizenship for the purposes of subarticle ( CARDINAL ) .

( CARDINAL ) Where any of the parents of a person applying to be registered as a citizen of GPE by virtue of subarticle ( CARDINAL ) was alive on DATE ( for the purposes of this article referred to as " the relevant parent " ) and the relevant parent is also a descendant in the direct line of an ascendant born in GPE of a parent likewise born in GPE , such person shall not be entitled to be registered as a citizen of GPE by virtue of subarticle ( CARDINAL ) unless the relevant parent had at any time acquired NORP citizenship under this article or under article CARDINAL ; so however that any such relevant parent who dies DATE and who would have been entitled to acquire such citizenship under subarticle ( CARDINAL ) or under subarticle ( CARDINAL ) of article CARDINAL shall be deemed to have acquired such citizenship for the purposes of that subarticle .

( CARDINAL ) Where any of the parents of a person applying to be registered as a citizen of GPE by virtue of subarticle ( CARDINAL ) was born on or after DATE ( for the purposes of this article referred to as " the relevant parent " ) and the relevant parent is also a descendant in the direct line of an ascendant born in GPE of a parent likewise born in GPE , such person shall not be entitled to be registered as a citizen of GPE by virtue of subarticle ( CARDINAL ) unless the relevant parent had at any time acquired NORP citizenship under this article .

( CARDINAL ) The person applying to be registered as a citizen of GPE under subarticle ( CARDINAL ) shall be entitled to be registered as a citizen of GPE if the relevant parent dies after DATE , DATE and the relevant parent had applied for and would have been entitled to be granted NORP citizenship under this article or under article CARDINAL . ”


ORG On DATE Mr Gitonas , then an employee of ORG ) , was seconded to the post of Deputy Head ( PERSON ) of the Prime Minister ’s private office . He occupied that post for a period of DATE until DATE , when his secondment ended .

ORG In the general election of CARDINAL DATE the applicant stood as a candidate for ORG ( PA.SO.K ) in the second GPE constituency . As he obtained more than the required minimum number of votes for election , ORG ( NORP protodikio ) declared in a decision of DATE that he had been elected .

ORG On DATE and DATE and CARDINAL DATE CARDINAL members of the constituency ’s electorate lodged an application with ORG ( PERSON ) for an order annulling Mr PERSON ’s election . They relied on Article QUANTITY para . CARDINAL of the LAW ( see paragraph CARDINAL below ) and maintained , inter alia , that the applicant ’s election was a nullity as , before the election , he had held the post of Deputy Head of the Prime Minister ’s private office , a ground for disqualification from standing for election under that Article .

ORG In the proceedings the applicant argued that as an employee of ORG , a private - law entity , he could not be considered a civil servant and he pointed out that he had become deputy head of the Prime Minister ’s private office by secondment .

The Special Supreme Court considered the CARDINAL applications together and gave its judgment ( no . CARDINAL/CARDINAL ) by CARDINAL votes to CARDINAL on DATE . It annulled PERSON election on the following grounds :

" Under [ Article CARDINAL para . CARDINAL ] , as is apparent both from its wording ( the disqualification applies in ` any’ constituency ) and from its purpose ( to deter civil servants ... from using their posts to prepare for a political career , and at the same time to ensure that civil servants are politically neutral in the performance of their duties as required by the LAW and by statute ) , the disqualification covers the whole geographical area in which those duties were performed ... , so that a civil servant who has general responsibility throughout GPE may not become an elected member of parliament in any constituency . The bar applies in all cases where the post has been occupied for DATE during DATE preceding the election even if , in the interval between the post being taken up and the election , another general election took place in which the person concerned stood as a candidate ...

The aforementioned constitutional provision means that the bar applies irrespective of the lawfulness of the administrative act whereby the post was filled ...

The provision applies to salaried civil servants appointed to established posts expressly created by law and governed exclusively by public - law rules ; included within that category are dismissable civil servants in temporary posts within the meaning of LAW para . CARDINAL of the LAW ...

Law no . DATE on ` the organisation of the Prime Minister ’s private office’ established an independent public service to assist and directly serve the Prime Minister in the performance of his duties . To this political private office of the Prime Minister ... were subsequently added - by decision of the Prime Minister taken under LAW ( b ) of PERSON no . CARDINAL/CARDINAL - the special office of the deputy head responsible for supervising and implementing the decisions of the public government bodies and of the Prime Minister , and a category A post of Deputy Director - General . Generally speaking , the ordinary rules do not apply to recruitment to posts in the Prime Minister ’s political private office , which are filled , without any competition being held , either by appointment or secondment from the civil service or a public - law or public - sector entity , or by assignment of duties which the person concerned performs concurrently ... with those of his usual occupation , as determined by the Prime Minister , in a decision published in ORG ( section CARDINAL ) . Under section CARDINAL ( CARDINAL ) , persons seconded to the political private office of the Prime Minister must elect whether to receive their entire remuneration of all kinds from their permanent post or from the post to which they have been seconded ... It is apparent from the aforementioned provisions that the post of Deputy Head of the Prime Minister ’s political private office ... is a remunerated post occupied by a dismissable civil servant within the meaning of Article CARDINAL para . CARDINAL of the LAW , with general and decision - making responsibility for the entire country , and as such is covered by LAW para . CARDINAL .

... The documents in the case file show that [ the applicant ] was seconded from ORG to the post of Deputy Head of the Prime Minister ’s political private office by decision no . YCARDINAL/CARDINAL , of the then Prime Minister , published in ORG of DATE , and served in that post continuously until DATE , when his secondment was ended by a similar decision of the Prime Minister ... By a written declaration of CARDINAL DATE [ the applicant ] elected to receive the remuneration attaching to his permanent post . Consequently , as he occupied a remunerated post in category A , with nationwide responsibility , for DATE during DATE preceding the general election of DATE , he was barred from standing as a candidate or being elected as a member of parliament in that election even if , in the interval between his taking up that post and the latest election , another election had been held in which [ the applicant ] had stood . "

In a dissenting opinion CARDINAL members of ORG took the view that section CARDINAL ( b ) of PERSON no . CARDINAL/CARDINAL did not authorise the creation of a post of Deputy Director - General and that the applicant had never acquired the status of salaried civil servant ; even supposing that ORG belonged to the public sector and that the post had been created under the provisions of PERSON no . CARDINAL/CARDINAL , the applicant ’s secondment had been temporary , which meant that he had retained his former status as an employee of the bank , which continued to pay his salary .

ORG On DATE Mr GPE was appointed Director - General of GPE ’s second television channel ( ORG , " ETCARDINAL " ) by a resolution of the board of governors of ORG ( ERT - AE ) , a public company . He occupied that post for DATE , until DATE .

ORG In the election of CARDINAL DATE the applicant stood as a candidate for the electoral coalition " Zante Initiative for Progress , Development and Simple Proportional Representation " ( PERSON gia proodo - anaptixi - apli analogiki ) in the LOC constituency . As he obtained more than the required minimum number of votes for election , ORG declared , in a decision of DATE , that he had been elected .

ORG On DATE a member of the constituency ’s electorate , relying on Article CARDINAL para . CARDINAL of the LAW ( see paragraph CARDINAL below ) , lodged an application with ORG for an order annulling Mr GPE ’s election on the ground that during the period preceding the election Mr GPE had occupied the post of Director - General of ETCARDINAL .

ORG , by CARDINAL votes to CARDINAL , annulled the election in a judgment ( no . CARDINAL/CARDINAL ) of CARDINAL DATE in these terms :

The disqualification [ from standing for election ] also applies where , in the interval between the disqualifying post being taken up and the relevant election , another election took place in which the person concerned stood as a candidate . The possibility that a civil servant will use his post to prepare for his political career does in fact exist in this case too , as the effects of such preparations are not limited to the election immediately following the taking up of the post but may extend to subsequent elections ; consequently , it has to be accepted that the civil servant continues to be disqualified LAW , if the election takes place within DATE as specified in the LAW . A public undertaking is an undertaking which under the law ... exists to promote the general interest , in the form of a legal entity over which the ORG exerts a decisive influence and which operates according to economic criteria , not by speculating ... but by making profits that will enable it to achieve its fundamental objectives ... LAW no . CARDINAL/CARDINAL established a private - law entity in the form of a company called ‘ ORG ... Section CARDINAL ( CARDINAL ) provides that ORG is a public undertaking belonging to the public sector ( PERSON no . CARDINAL/CARDINAL ) ; it is controlled and supervised by the ORG . By CARDINAL ( CARDINAL ) of the aforementioned PERSON , the objects of ORG are to organise , operate and develop radio and television broadcasting , and contribute to informing , educating and entertaining the NORP people . That provision also lays down that ORG is not a profit - seeking entity ... The [ ERT - AE ’s ] main departments set out and apply , for the areas within their responsibility , the basic principles laid down by the board of governors and are financially independent ... The board of governors appoints a director - general to head each department ( section CARDINAL ) . It follows that a director - general - appointed by the board of governors and given the task of applying in the area for which he is responsible the basic principles laid down by the board , to whose supervision he is moreover subject - is the employee of a public undertaking within the meaning of Article CARDINAL para . CARDINAL of the LAW ; because of that position ... , he is liable to the disqualification referred to in that Article .

It is apparent from the aforementioned provisions , and in particular those providing that ETCARDINAL and ETCARDINAL enjoy independence in programme scheduling , that ... the directorgeneral participates in the choice or may influence the content of television programmes , and the programmes ... are broadcast throughout GPE and can be received in all areas of the country . In the course of his duties a director - general may , through his role in determining television programme scheduling , have an advantage over other NORP citizens in preparing for a political career . ... PERSON was appointed as Director - General of ETCARDINAL by ORG board of governors and remained in that position from DATE to DATE ... In the light of the foregoing , [ the applicant ] was a member of staff of a public entity for a period of DATE during DATE preceding the election ; as his authority was by its nature general , he is disqualified from standing for election under LAW para . CARDINAL of the LAW ... "

In a dissenting opinion CARDINAL members of ORG expressed the view that the responsibilities of the directors - general of ETCARDINAL and ETCARDINAL were not such as to create a link between the head of a department and a particular constituency . The mere fact that the television channel ’s credits were broadcast in a particular constituency did not amount to performing official duties in that constituency .

ORG On DATE Mr Sifounakis was appointed ORG of ORG ( ORG ) and on CARDINAL DATE Director - General of its first television channel ( ETCARDINAL ) . The applicant occupied that post until DATE .

ORG In the general election of CARDINAL DATE the applicant stood as a candidate for ORG ( PA.SO.K ) in the NORP constituency . As he obtained more than the required minimum number of votes for election , ORG declared in a decision of CARDINAL DATE that he had been elected .

ORG On DATE a candidate from the same party in the same constituency lodged an application with ORG for an order annulling PERSON election and a declaration that he himself , as first substitute member for ORG , was the member of parliament . In support of his application he relied on LAW para . CARDINAL of the LAW ( see paragraph CARDINAL below ) , maintaining in particular that the applicant ’s election was a nullity as , before the election , the applicant had held the post of Director - General of ORG and ETCARDINAL and was consequently barred from standing as a candidate .

ORG In a judgment ( no . CARDINAL/CARDINAL ) of CARDINAL DATE ORG annulled PERSON election for the same reasons as it gave in PERSON case . It found that ORG , a company wholly owned by the ORG but administratively and financially independent and operating in the public interest according to the rules governing the private economy ( PERSON no . CARDINAL ) , had merged with ORG by virtue of PERSON no . DATE .

ORG From DATE to CARDINAL DATE Mr PERSON occupied the post of First Deputy Director of ORG ( ORG - " IKA " ) .

ORG In the general election of DATE he stood as a candidate for ORG in the PERSON constituency . As he obtained more than the required minimum number of votes for election , ORG of First Instance declared in a decision no . CARDINAL/CARDINAL that he had been elected .

ORG On DATE another candidate for that constituency from the same party lodged an application with ORG for an order annulling Mr PERSON ’s election and for a declaration that he , as first substitute candidate for the PERSON constituency , had been elected a member of parliament . He relied on Article QUANTITY para . CARDINAL of the LAW ( see paragraph CARDINAL below ) and maintained in particular that Mr PERSON ’s election was a nullity as , before the election , he had held the post of First Deputy Director of the ORG .

ORG On DATE ORG annulled ( by CARDINAL votes to CARDINAL ) his election on the following grounds ( judgment no . CARDINAL ) :

Under this ORG ’s case - law :

( CARDINAL ) the governor of a public - law company or public undertaking - who , by virtue of Article CARDINAL para . CARDINAL of the LAW , can not be elected as a member of parliament if he has not resigned before becoming a candidate , but who is not disqualified under paragraph CARDINAL of that Article - is the sole organ ... running that entity or undertaking , in other words having the exclusive right to decide ... questions relating to its management ( see judgment no . CARDINAL of ORG ) .

( CARDINAL ) What matters for the purposes of determining whether in law an organ is a ` PERSON is not merely that the term ` PERSON is used in the law or the articles of association , but also the powers which the organ is given by those provisions ( see judgments ORG . CARDINAL , and CARDINAL and DATE of ORG ) .

( CARDINAL ) Persons classified by the law as governors of public - law entities but who , by virtue of the provisions governing their occupational status , are nevertheless subordinate to the entity are subject to the disqualification provided for in paragraph CARDINAL of LAW ( see judgments nos . CARDINAL and CARDINAL/CARDINAL of ORG ) .

In the instant case , during the period in issue , the governor of the ORG , by decisions ... , delegated to the [ applicant ] - the first deputy director - certain powers concerning questions within the remit of the ORG ’s departments , but excluding matters relating to ` the development of the ORG ’s general ORG . By a decision of CARDINAL DATE the governor of the ORG appointed the [ applicant ] to act as his replacement for the period from DATE . The first deputy director is appointed for DATE and takes part in deliberations of the board of directors in a consultative capacity . It is apparent from the foregoing that , although the first deputy director of the ORG is not subject to ORG ... , his relationship with the ORG is that of employee and more particularly of a dismissable salaried member of staff ( LAW paras . CARDINAL and CARDINAL of the LAW ) of that public - law entity ; consequently , he is subject to the disqualification from election provided for in LAW para . CARDINAL

... The first deputy director of the ORG is a member of staff with nationwide responsibilities and for that reason he can not be elected as a member of parliament in any constituency .

ORG In a dissenting opinion CARDINAL members of ORG took the view that , like the governor , the deputy directors were the highest - ranking organs of the ORG , and not members of its staff , for CARDINAL reasons : ( a ) a distinction was drawn in the ORG ’s articles of association ( LAW between the " management " , which included the board of directors , the governors and the deputy directors , and the " departments " , to which the ORG ’s " members of staff " were attached ; ( b ) the deputy directors were excluded from the provisions of the royal decree ... " on the application of LAW to the ORG ’s members of staff " by LAW ; ( c ) deputy directors were not subject to disciplinary measures , whereas being so subject was a decisive factor for classification as a civil servant or as a member of staff of a public - law entity ; ( d ) deputy directors were not subordinate to the governor in the exercise of the powers he had delegated them , which they would necessarily have been if they were civil servants ; and ( e ) they had a right to vote when chairing meetings of the ORG ’s board of directors as the governor ’s replacement .

ORG From DATE to CARDINAL DATE PERSON occupied the post of Second Deputy Director of ORG .

ORG In the general election of DATE the applicant stood as a candidate for ORG in the second GPE constituency . As he obtained more than the required minimum number of votes for election , ORG declared in a decision no . CARDINAL/CARDINAL that he had been elected .

ORG On DATE another candidate for that constituency from the same party lodged an application with ORG for an order annulling PERSON election and for a declaration that he , as first substitute candidate for the second GPE constituency , had been elected a member of parliament . He relied on Article QUANTITY para . CARDINAL of the LAW ( see paragraph CARDINAL below ) and maintained in particular that the applicant ’s election was a nullity as , before the election , he had held the post of Second Deputy Director of the ORG .

ORG On DATE ORG annulled ( by CARDINAL votes to CARDINAL ) PERSON election on the following grounds ( judgment no . CARDINAL/CARDINAL ) :

Under this ORG ’s case - law :

ORG is managed by its governor and a board of directors . The governor is the highest - ranking administrative organ of the ORG ; he [ is empowered ] to decide any question not expressly reserved by law to the board of directors , to act as the head of all the ORG ’s departments and to supervise them and review their actions , to take all appropriate measures , to recruit staff and take disciplinary action , to represent the ORG in court and other proceedings , to chair the board of directors ; more generally , he is the highest - ranking administrative organ of the ORG ; that organ is not subordinate to any other organ of the entity and manages the ORG jointly with the board of directors ( see judgments nos . CARDINAL and CARDINAL/CARDINAL of ORG ) . The post of First Deputy Director of the ORG was created by LAW no . CARDINAL of CARDINAL DATE , and that of Second Deputy Director by LAW no . CARDINAL . Neither organ , which the aforementioned provisions ... classify as deputy director , is a governor of the ORG so as to be subject to disqualification from election under LAW ... The fact that the deputy director acts as the governor ’s replacement is not sufficient for him to be ascribed governor status , especially as by law , and in particular section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL , it is the governor who appoints CARDINAL of the deputy directors to act as his replacement and as that delegation [ of powers ] ... does not alter the nature of that organ even during periods when the replacement is effective ... In the instant case , during the period in issue , the governor of the ORG , by decision ... , delegated to the [ applicant ] - the second deputy director - certain powers concerning questions within the remit of the ORG ’s departments , but excluding matters relating to ` the development of the ORG ’s general ORG . By the same decision the governor of the ORG appointed the [ applicant ] to act as his replacement for the period from DATE to DATE . The second deputy director is appointed for DATE and takes part in deliberations of the board of directors in a consultative capacity . It is apparent from the foregoing that , although the second deputy director of the ORG is not subject to ORG ... , his relationship with the ORG is that of employee and he is a salaried member of staff - for the duration of his term in office - of a public - law entity ; consequently , he is subject to the disqualification from election provided for in LAW para . CARDINAL ...

ORG In a dissenting opinion CARDINAL members of ORG took the view that , like the governor , the deputy directors were the highestranking organs of the ORG , and not members of its staff , for CARDINAL reasons : ( a ) a distinction was drawn in the ORG ’s articles of association ( LAW between the " management " , which included the board of directors , the governors and the deputy directors , and the " departments " , to which the ORG ’s " members of staff " were attached ; ( b ) the deputy directors were excluded from the provisions of the royal decree ... " on the application of LAW to the ORG ’s members of staff " by LAW ; ( c ) deputy directors were not subject to disciplinary measures , whereas being so subject was a decisive factor for classification as a civil servant or as a member of staff of a public - law entity ; ( d ) deputy directors were not subordinate to the governor in the exercise of the powers he had delegated them , which they would necessarily have been if they were civil servants ; and ( e ) they had a right to vote when chairing meetings of the ORG ’s board of directors as the governor ’s replacement .

ORG The relevant Articles of the LAW provide :

" Radio and television shall be subject to direct ORG control . Their aim shall be the objective , even - handed broadcasting of information and news and of literary and artistic works ; quality of programmes must be maintained in all cases , in view of their social role and the country ’s cultural development . "

" CARDINAL . Salaried civil and public servants , officers of the armed forces and the security forces , employees of local authorities or other public - law entities , the mayors of municipalities , the governors or chairmen of boards of directors of public - law entities or public or municipal undertakings , notaries and land registrars may not stand as candidates or be elected as members of parliament if they have not resigned before becoming candidates . Resignation shall take effect as soon as it is submitted in writing . A member of the armed forces who resigns may not be reinstated . Civil and public servants may not be reinstated until DATE has elapsed after their resignation . ...

Salaried civil servants , active members of the armed forces and officers of the security forces , members of staff of public - law entities in general , and the governors and members of staff of public or municipal undertakings or charitable bodies may not stand as candidates or be elected as members of parliament in any constituency where they have performed their duties for DATE during DATE preceding the elections . The permanent secretaries of ministries during DATE of the DATE parliamentary term shall be subject to the same restrictions . Candidates for election to ORG and subordinate civil servants from the central departments of ORG shall not be subject to these restrictions .

" Where the validity of legislative elections is contested because of irregularities in the electoral process or a candidate ’s failure to meet the requirements laid down by law , the elections shall be reviewed and any disputes arising from them heard by ORG referred to in LAW . "

" CARDINAL . Civil servants shall carry out the ORG ’s will and serve the people ; they shall abide by the LAW and be devoted to their country . The qualifications and procedural requirements for their appointment shall be laid down by law .

The benefit of irremovability may be withdrawn by statute from senior civil servants on secondment , persons directly appointed as ambassadors , members of the private offices of the President of the Republic , the Prime Minister , ministers and ministers of ORG . ... "

ORG In a judgment ( no . CARDINAL ) of CARDINAL DATE ORG held that the chairman of the board of directors of a public undertaking ( ORG in the Craft Industry - " EOMMEX " ) could not be equated with the governor of such an undertaking and was not therefore subject to the disqualification from standing for election provided for in Article CARDINAL para . CARDINAL of the LAW . In particular , ORG said :

" ... In using the word ` PERSON , the LAW is referring to the single person , the organ of the undertaking that , under the provisions governing the undertaking and the general law , runs it , that is to say the organ that alone decides , under its powers as laid down by law or in the articles of association , questions concerning the management of the undertaking ( such as achieving its objectives , managing staff and making agreements ) . What matters for the purposes of [ LAW para . CARDINAL ] is to know what the powers concerned are , not the description of the elected member as ` PERSON , as it can not be ruled out that a person who is not so described in the articles of association of the undertaking ... may perform such duties even though his title is that of chairman of the board of directors .

... It is apparent from the foregoing that the person who acts as chairman of the board of directors of ORG can not be described as ` PERSON in the aforementioned sense .

The chairman ( a ) draws up the agenda ; ( b ) receives reports on the functioning of the entity from its manager ; ( c ) supervises the manager ’s implementation of the board of ORG resolutions ; and ( d ) represents EOMMEX in court proceedings whilst being empowered to assign that task to other people ... He can not , by virtue of these functions , which are the only ones the law allocates to him , be described as a ` governor’ of the organisation , since none of them , not even the last one , corresponds to the concept of managerial act ... The position would be different had the manager ’s functions been assigned to the chairman , since in that eventuality the chairman of the board of directors would actually be ` ORG the organisation .

ORG has also held that the Secretary - General of ORG ( " EOT " ) and the Governor of ORG ( " IKA " ) were not caught by the disqualification in LAW . With regard to the Secretary - General , it held ( in judgment no . CARDINAL/CARDINAL ) that he was not subordinate to ORG ’s board of directors , to which he was in no way answerable , not even for disciplinary purposes ; with regard to the Governor it held ( in judgments nos . CARDINAL and CARDINAL/CARDINAL ) : " It is apparent from paragraph CARDINAL of Article CARDINAL - in which the grounds for disqualification from standing for election , which must be strictly construed , are exhaustively set forth - read together with paragraph CARDINAL of that Article that the governors of public - law entities , who are covered by the disabilities referred to in paragraph CARDINAL ... are not covered by those in paragraph CARDINAL as they are not included among the exhaustive list of persons subject to disqualification . "


Violation of Art. 6-1 with regard to the second proceedings;Inadmissible under Art. 6-1 with regard to the first proceedings;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

In the context of an inheritance dispute , CARDINAL civil proceedings were brought against the applicant .

On DATE Mr J.F.J. brought an action against the applicant before ORG challenging her status as an heiress . On DATE ORG dismissed the action .

On DATE PERSON brought another action against PERSON , PERSON F.J. and the applicant before ORG .

On DATE ORG held a hearing and requested the parties to submit motions .

On DATE and CARDINAL DATE ORG held hearings . At the hearings some of the parties did not appear since ORG had failed to summon them in accordance with the procedural rules . A hearing scheduled for DATE was re - scheduled .

On DATE and DATE ORG held hearings . On DATE it stayed the proceedings pending the outcome of the proceedings before the XVIII / XIX District Court . In the latter proceedings , on DATE the court held a hearing . On DATE ORG appointed an expert . On DATE the court dismissed the plaintiff 's claim . The judgment became final on DATE .

At the plaintiff 's request , on DATE ORG resumed its proceedings . Subsequently , another judge was appointed to hear the case .

On DATE ORG held a hearing . At the hearing the plaintiff withdrew her action in respect of PERSON and PERSON

On DATE ORG discontinued the proceedings in respect of PERSON and PERSON and ordered the applicant to submit further documents .

On DATE ORG delivered a judgment and partly admitted the plaintiff 's claims . The applicant appealed .

On DATE ORG held a hearing and delivered a judgment which was pronounced on DATE . It partly quashed ORG decision and remitted the case to the first - instance court .

In the resumed proceedings , on DATE , DATE , DATE and DATE , ORG held hearings .

Subsequently , another judge was appointed to hear the case . On DATE ORG heard CARDINAL witnesses .

On DATE ORG appointed a real - estate expert .

Subsequently , yet another judge was appointed to hear the case . On DATE ORG held a hearing .

On DATE ORG delivered a judgment . The applicant appealed .

In the appeal proceedings , the hearings scheduled for DATE and DATE were re - scheduled due to the illness of CARDINAL of the judges .

On DATE and DATE ORG held hearings . On the latter date it delivered a judgment which was pronounced on DATE .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr B. GPE , a lawyer practising in GPE .

On DATE a NORP national , ORG , was found dead in GPE , GPE . Subsequently , the applicant was arrested in GPE in connection with her murder .

On DATE the ORG convicted the applicant of homicide and sentenced him to life imprisonment .

On DATE the judgment was upheld by ORG .

It appears that the NORP authorities requested the NORP authorities to take over the execution of the applicant ’s sentence . On DATE they also decided that the applicant was to be expelled from GPE and prohibited from returning for DATE . The applicant did not give his consent to his transfer to GPE . On DATE ORG decided that it was possible to transfer the applicant to GPE under LAW ( LAW ) and its LAW . Afterwards the Polish ORG agreed to his transfer .

On DATE the applicant was transferred to GPE .

On CARDINAL DATE the ORG gave a ruling on the legal qualification of the offence under NORP law and on the enforcement of the sentence . It considered that the offence of which the applicant had been convicted in GPE fulfilled the description of the offence of homicide prohibited by Article CARDINAL § CARDINAL of LAW Criminal Code . The court further considered that this offence carried under NORP law a minimum sentence of CARDINAL years’ imprisonment or life imprisonment . Thus the sentence imposed in GPE did not exceed the maximum prescribed by the law of the administering ORG and it was not necessary to adapt the sanction .

In consequence the court decided that the applicant would serve the sentence of life imprisonment in GPE . The court finally decided that the additional penalty of deprivation of civic rights imposed by the NORP court could not be imposed as it had not been foreseen for the offence prohibited by Article CARDINAL § CARDINAL of LAW .

The applicant appealed against the ruling . He complained in particular about the decision not to apply regulations pertaining to conditional release that were binding in the sentencing country , GPE .

On DATE the ORG upheld the judgment . The court amended the legal basis of ORG judgment in that it considered that the latter court had correctly converted the applicant ’s sentence according to ORG CARDINAL § CARDINAL ( b ) and CARDINAL of LAW . Moreover , the court admitted that the rules pertaining to conditional release differed between GPE and GPE . In GPE a person in the applicant ’s situation could apply for parole after having served CARDINAL years’ imprisonment whereas in GPE that term was shorter and amounted to DATE . However , the court decided not to rule on the matter of conditional release as the NORP judgment did not include a provision on the length of the sentence the applicant would have to serve before he was eligible to apply for conditional release . Therefore , NORP rules on enforcement of sentences would be applicable to the case .

Under Article CARDINAL § CARDINAL of the Criminal Code a prisoner serving a life sentence is eligible for parole after serving a minimum of DATE of his sentence .

The objectives of the DATE LAW , ORG , No . CARDINAL ) , including its DATE LAW ( ETS No . CARDINAL ) , are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons . According to the LAW to LAW , these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society .

Article CARDINAL § CARDINAL of the Transfer Convention enables the transfer of a sentenced person from “ the sentencing State ” to “ the administering State ” provided , inter alia , that the person in question is a national of the administering State ; that he or she ( or in some instances a legal representative ) consents to the transfer ; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering ORG or would constitute a criminal offence if committed on its territory ; and that the sentencing and administering GPE both agree to the transfer .

Article CARDINAL of LAW ( “ Effect of transfer for administering State ” ) provides :

“ CARDINAL . The competent authorities of the administering State shall :

a. continue the enforcement of the sentence immediately or through a court or administrative order , under the conditions set out in LAW , or

b. convert the sentence , through a judicial or administrative procedure , into a decision of that ORG , thereby substituting for the sanction imposed in the sentencing ORG a sanction prescribed by the law of the administering ORG for the same offence , under the conditions set out in LAW .

The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions . ... ”

Article CARDINAL of LAW ( “ Conversion of sentence ” ) provides :

“ CARDINAL . In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority :

a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing ORG ;

b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction ;

c. shall deduct the full period of deprivation of liberty served by the sentenced person ; and

d. shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .

If the conversion procedure takes place after the transfer of the sentenced person , the administering ORG shall keep that person in custody or otherwise ensure his presence in the administering ORG pending the outcome of that procedure . ”

Article CARDINAL of LAW ( “ Sentenced persons subject to an expulsion or deportation order ” ) provides :

“ CARDINAL . Upon being requested by the sentencing ORG , the administering ORG may , subject to the provisions of this LAW , agree to the transfer of a sentenced person without the consent of that person , where the sentence passed on the latter , or an administrative decision consequential to that sentence , includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing ORG once he or she is released from prison . ”

LAW entered into force in respect of GPE on DATE .