CASE OF VAN MARLE AND OTHERS v. THE NETHERLANDS

Mr. PERSON , Mr. PERSON , Mr. PERSON and Mr. PERSON were born in DATE , DATE , DATE and DATE , respectively . The first of them resides in GPE , the second and third in GPE and the fourth in GPE . CARDINAL have , since various dates DATE , practised as accountants .

ORG In DATE , each of the applicants applied to be registered as a certified accountant , in accordance with the transitional provisions contained in section CARDINAL of the Act of DATE regulating this profession ( see paragraphs CARDINAL and CARDINAL below ) .

Each of them was asked by ORG ( see paragraph CARDINAL below ) to submit CARDINAL DATE accounts drawn up under his responsibility , and they were interviewed by ORG in the course of DATE . ORG finally rejected the applications , on DATE in the case of Mr. PERSON , on DATE in the cases of Mr. PERSON and Mr. PERSON , and on DATE in the case of Mr. PERSON .

The applicants then appealed to ORG ( see paragraph CARDINAL below ) . They were again asked to submit accounts prepared by them and were interviewed by ORG in the course of DATE .

A note concerning ORG proceedings was communicated to ORG , but not to the applicants .

ORG dismissed the appeals on the ground that the ORG statements had been unsatisfactory on certain essential points and that their replies to questions did not show sufficient professional competence . It reached these decisions on DATE in the case of Mr. PERSON , on DATE in the cases of Mr. PERSON and Mr. PERSON , and on DATE in the case of Mr. PERSON .

At the start of Mr. PERSON ’s interview , the chairman informed him that CARDINAL of the members of ORG was unable to attend the meeting . Mr. PERSON agreed nonetheless to the proceedings taking place ; the decision bore the signatures of all CARDINAL members .

None of the applicants took his case to ORG as provided for under LAW . They considered that there was no point in doing so ; as evidence of this they cited a decision of DATE of ORG , which had declared an appeal against a decision of ORG inadmissible on the ground that ORG was a judicial body and could not be regarded as an administrative one .

In DATE and DATE ORG passed CARDINAL Acts designed to regulate and delimit the profession of accountant , which until then had not been subject to any statutory control .

The LAW of DATE CARDINALThe Act of DATE ( FAC ) lays down the standards of professional competence required of accountants practising on a large scale , who are called upon to audit company accounts with a view to issuing a certificate of accuracy ( verklaring van getrouwheid ) .

The only statute directly relevant to the present case is LAW of DATE ( ORG - administratie - consulenten ) . It concerns those accountants who do not engage in the aforesaid activities and are not required to have so high a standard of competence - essentially accountants acting for small and medium - sized firms .

Since DATE after the DATE Act came into force ( DATE ) - the position has been that the only persons entitled to call themselves accountants are those covered by LAW , certified accountants and persons working as accountants in the public service ( section CARDINAL(CARDINAL ) of LAW , read in conjunction with section CARDINAL ) and section CARDINAL ) . Anyone wrongfully using the title is liable to criminal penalties and disciplinary proceedings .

Application for registration as a certified accountant is made to ORG ( commissie voor de inschrijving ) , whose decisions are subject to appeal to ORG ( commissie van beroep ; see paragraph CARDINAL below ) .

Applicants must hold one of the CARDINAL diplomas specified in the LAW or another qualification which , in the view of the Minister for Economic Affairs , denotes similar professional competence ( section CARDINAL ) .

However , transitional provisions contained in CARDINAL also permit the registration of persons who had been engaged in professional accountancy work to an extent and in a manner evidencing adequate professional competence

- either for CARDINAL of DATE immediately DATE ( section CARDINAL(CARDINAL)(a ) ) ;

- or , as regards holders of CARDINAL of the diplomas or qualifications specified in section CARDINAL(CARDINAL)(b ) , for DATE immediately preceding DATE .

Section CARDINAL(CARDINAL ) provides that the work in question consists of organising effective management , assessing management effectiveness , drawing up DATE accounts , preparing explanatory reports analysing and interpreting data supplied by management and giving advice accordingly .

Under section CARDINAL anyone wishing , like the applicants , to take advantage of the transitional provisions must apply to ORG ( commissie voor de toelating ) , a body established to determine whether a person satisfies the requirements of section CARDINAL .

After consulting the Minister of ORG and ORG and the Minister for ORG , the Minister for ORG decides the size of the Board , appoints the members and designates the chairman and the vice - chairman or vice - chairmen .

ORG , which may sit in chambers of CARDINAL or more members , may hear the applicant ( section CARDINAL(CARDINAL ) ) . He has the option of being assisted by an adviser and , unless the ORG decides otherwise , of being represented at the hearing ( section ORG ) ) .

An unfavourable decision may be taken only after the applicant has been heard or at least invited by registered letter to appear before the ORG ( section CARDINAL ) ) . Reasons must be given for any such decision and it must be notified to the applicant by registered mail ( section CARDINAL ) ) .

ORG hears appeals against unfavourable decisions of ORG ( section CARDINAL ) and ORG . It is composed of CARDINAL members and CARDINAL substitutes . CARDINAL of each must be eligible for appointment as a district court judge and exercise , or have exercised , judicial functions , but they may not be , or have been , accountants ( section CARDINAL ) ) ; the other CARDINAL members and substitutes must be accountancy experts .

The members are bound by professional secrecy ( section CARDINAL ) . After consulting the Minister of ORG , the Minister for ORG appoints them and designates the chairman and vice - chairman .

Before giving its decision , ORG must hear the appellant or invite him by registered letter to appear before it ( sections CARDINAL ) and CARDINAL(CARDINAL ) ) . It may obtain information from ORG of first instance and hear third persons ( section DATE ) .

Unless the ORG decides otherwise , the appellant may be assisted by a lawyer or represented at the hearing ; the ORG may also refuse to allow him to be represented or assisted by a person who is not a lawyer ( section CARDINAL ) , read in conjunction with section CARDINAL ) and ( CARDINAL ) ) .

ORG must give reasons for its decision and notify the decision and reasons to the appellant and to ORG of first instance ( sections CARDINAL ) and CARDINAL ) ) .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by Mr P. PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON of ORG .

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

NORP The applicant , a former customs officer , was charged with accepting a bribe from another customs officer , P.D. , in DATE .

On DATE P.D. was convicted by ORG of , inter alia , offering a bribe to the applicant in DATE . The court was composed of Judge PERSON , and CARDINAL lay judges , PERSON and C.J.

Subsequently , on DATE , the same court , in the same composition , convicted the applicant of accepting the same bribe from ORG

On an unspecified date the applicant ’s lawyer appealed against the firstinstance judgment . In his appeal he did not raise a complaint regarding the composition of the court .

On DATE ORG adopted a resolution and held that in circumstances such as those in the present case , where evidence which had constituted the basis for the conviction of one of the perpetrators of a crime was also to be the basis for the conviction of another perpetrator of the same offence , the judge who had examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators ( see “ Relevant domestic law and practice ” below ) .

On DATE the applicant ’s lawyer sent a letter to the secondinstance court and , relying on ORG resolution of CARDINAL DATE submitted that the judges who had convicted the applicant should have been withdrawn from the proceedings . He furtheredings ( “ the LAW ” ) ( see below ) .

On DATE ORG dismissed the appeal and upheld the first - instance judgment . It admitted that the CARDINAL judges should not have examined the applicant ’s case . However , it found that the complaint had not been raised in the appeal and therefore could not be taken into account as CARDINAL of the bases of the appeal . It also considered that the shortcoming in the proceedings before the first - instance court did not constitute one of the specific grounds for appeal referred to in LAW of the LAW , which the court of appeal had to take into account ex officio . ORG further noted that the only way to amend the first - instance judgment was to apply LAW ; however , it found no grounds to do so .

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ A judge shall be withdrawn from the examination of a case if there are circumstances which may give rise to justified doubts as to his or her impartiality in a particular case . ”

Article CARDINAL of the Code provides as follows :

“ If upholding a first - instance judgment would be manifestly unjustified , the judgment shall be amended in favour of the accused person or quashed , notwithstanding the complaints raised in an appeal . ”

“ The appellate court shall examine the case within the framework of an appeal . It shall examine the case beyond the framework of an appeal if it is provided for by law . ”

Article CARDINAL of the Code , in so far as relevant , provides as follows :

“ Irrespective of the framework of an appeal , the complaints raised and the influence of a shortcoming on the contents of a decision , the appellate court shall quash the challenged decision if :

( CARDINAL ) the decision was issued by or with the participation of a judge who should have been withdrawn pursuant to LAW ( ... ) . ”

On DATE ORG adopted a resolution in which it stated as follows :

“ If evidence which has constituted the basis for the conviction of CARDINAL of the perpetrators of a crime is also to be the basis for the conviction of another perpetrator of the same offence , the judge who examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators , on account of a justified suspicion regarding his or her impartiality within the meaning of LAW . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award

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

In DATE the applicant noticed a lump on her neck and went to ORG . After a general examination she was diagnosed with a noncancerous salivary gland tumor . In DATE she underwent a surgery . Only after her operation were the relevant tests carried out , which proved the malignant nature of her tumor . Subsequently , the applicant turned to another hospital , in GPE , where she underwent a second operation . This additional surgery has led to serious complications such as jaundice and post - traumatic stress disorder .

On DATE the applicant initiated before ORG ( Sąd Rejonowy w Lublinie ) civil proceedings for compensation against ORG represented by ORG . She claimed that she was a victim of medical malpractice because of the errors committed while making the diagnosis and during the first surgery which led to additional surgery and caused enormous suffering and general deterioration of her health .

On DATE the applicant was partly exempted from the courtfees .

On DATE the trial court held a first hearing .

DATE and DATE CARDINAL hearings were held . The trial court heard witnesses and the applicant , and ordered preparation of expert opinions .

In DATE and DATE CARDINAL expert opinions prepared by ORG were submitted to the court .

DATE and DATE no hearings were held .

At the hearings held on DATE and DATE the court ordered CARDINAL additional expert medical opinions .

On DATE the court , sitting in camera , dismissed the parties’ applications for another expert opinion because they had failed to pay the costs of the opinion .

At the hearing held on DATE the court allowed the parties’ application for an additional expert opinion .

On DATE the opinion was submitted to the court .

Subsequently , the trial court held hearings on DATE and DATE .

In DATE the trial court held in total CARDINAL hearings and on DATE it gave judgment . It awarded the applicant ORG CARDINAL in compensation and dismissed the remaining part of her action .

Both parties appealed against the judgment .

On DATE ORG ( Sąd Wojewódzki ) held a hearing and on DATE it gave judgment . The court quashed the firstinstance judgment and remitted the case to ORG .

On DATE the trial court held the first hearing at which the applicant changed the value of her claim . In consequence , the case was transferred to ORG .

Subsequently , hearings were held on DATE and DATE .

On DATE the trial court , sitting in camera , decided that in view of the changes in the law on the administrative organisation of GPE the Lublin Governor would represent ORG .

On DATE the applicant further extended her action . She requested ORG CARDINAL,CARDINAL as compensation for non - pecuniary and pecuniary damage .

On DATE the trial court , sitting in camera , ordered CARDINAL medical expert opinions . The court also exempted the applicant from the courtfees for the extended value of her claim .

On DATE , DATE and DATE the court held hearings .

On DATE the ORG gave judgment . It awarded the applicant ORG for non - pecuniary damage and ORG CARDINAL for pecuniary damage . The court found , inter alia , that the surgery carried out in ORG did not satisfy the requirements of diligent medical care ( niezgodna z zasadami sztuki lekarskiej ) and was done without the obligatory consent of the applicant . The malpractice during the surgery had to be remedied by the second , additional , operation which resulted in unnecessary physical and psychological suffering on the part of the applicant and prolonged the period of insecurity about the final diagnosis of her life - threatening illness .

The parties did not appeal against this judgment and it became final .


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

In DATE , the applicant arrived in GPE from GPE and sought political asylum . She was initially provided with accommodation by the social services department of GPE and ORG ( “ the NORP ” ) . On DATE , the applicant moved into accommodation owned by a housing association . A member of the housing association 's staff assisted the applicant to complete her application for housing and council tax benefit which was submitted to the ORG in DATE . This application was successful .

The applicant was required by law to renew her application for housing and council tax benefit on an DATE basis . Because of her lack of familiarity with the benefits system and her poor LANGUAGE , the applicant failed to submit a benefit renewal form to the ORG by the required time . In DATE , the applicant received correspondence from the housing association about her rent arrears . As the applicant did not understand the correspondence , she sought assistance from the ORG 's advice office . After obtaining this advice the applicant realised that her housing and council tax benefit had ceased . She therefore submitted a prospective claim as well as a backdated claim for both types of benefit to DATE .

NORP The prospective claim was successful and the applicant began to receive housing benefit again from DATE , but on CARDINAL DATE the ORG rejected the application for backdated benefit because the applicant had failed to show “ good cause ” why she had not claimed the benefits earlier .

During the period from DATE to CARDINAL DATE the applicant lost housing benefit of GBP MONEY , and since her rent in any event exceeded the benefit to which she had been entitled , her rent arrears amounted to GBP CARDINAL . The housing association commenced possession proceedings , seeking the applicant 's eviction for non - payment of rent , and the ORG also brought proceedings based on the applicant 's failure to pay council tax of ORG CARDINAL for DATE . On DATE a court order was made allowing the ORG to deduct GBP CARDINAL per week from the applicant 's income support of GBP CARDINAL .

On DATE , the applicant 's legal advisers wrote to the ORG requesting that they reconsider their refusal . However , by letter dated DATE , the ORG informed the applicant that they were upholding their initial decision to refuse council tax and housing benefits .

The applicant appealed . The case was heard on DATE by GPE and ORG ( “ the NORP ” ) . The ORG consisted of CARDINAL Councillors from the ORG . It was advised by a barrister from the ORG 's legal department . The applicant was represented by ORG and the ORG was represented by a ORG benefits officer . The ORG rejected the applicant 's appeal , finding that the applicant must have received some correspondence from the local authority during the period from DATE to CARDINAL DATE concerning the council tax she owed , although no such correspondence was produced to it .

On DATE the housing association 's possession proceedings against the applicant concluded with a court order requiring her to pay off the rent arrears at GBP CARDINAL DATE ( in addition to the GBP CARDINAL per week for council tax arrears ) .

On DATE , the applicant sought judicial review of the ORG 's decision . She complained that the ORG had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision . The applicant also alleged that the ORG was not an “ independent and impartial ” tribunal under LAW .

On DATE , ORG dismissed the applicant 's application for leave to apply for judicial review on the grounds that the LAW had not yet been incorporated into LANGUAGE law , and further dismissed the application on the merits , on the grounds that the ORG 's decision was neither unreasonable nor irrational . The applicant was unable to appeal because legal aid was refused . The applicant subsequently obtained Counsel 's opinion that the appeal had no prospects of success .

Housing benefit ( “ HB ” ) is a means - tested benefit payable towards housing costs in rented accommodation . It is not dependent on or linked to the payment of contributions by the claimant .

The HB scheme is administered by the local authority . Payments of HB are subsidised by central Government , normally to the extent of PERCENT , although where HB is paid as a result of a decision that the claimant had good cause for a late claim the subsidy is PERCENT .

HB is awarded for “ benefit periods ” and entitlement for each period is dependent on a claim being made in time in accordance with the statutory rules . If a claimant makes a late claim , any entitlement to arrears of HB depends on the claimant establishing “ good cause ” for having missed the deadline . The case - law establishes that the concept of “ good cause ” involves an objective judgment as to whether this individual claimant , with his or her characteristics such as language and mental health , did what could reasonably have been expected of him or her .

At the relevant time , a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department . If the benefit was refused the claimant was entitled to a review of the decision , first by the local authority itself , then by a ORG , which comprised CARDINAL elected councillors from the local authority . Since DATE , HBRBs have been replaced by tribunals set up under LAW DATE .

The procedure before the ORG was governed by ORG DATE . Regulation CARDINAL provided , as relevant :

“ ( CARDINAL ) Subject to the provisions of these Regulations

( a ) the procedure in connection with a further review shall be such as the Chairman of the ORG shall determine ;

( b ) any person affected may make representations in writing in connection with the further review and such representations shall be considered by ORG ;

( c ) at the hearing any affected person has the right to

( i ) be heard , and may be accompanied and may be represented by another person whether that person is professionally qualified or not , and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these regulations ;

( ii ) call persons to give evidence ;

( iii ) put questions to any person who gives evidence ;

( d ) ORG may call for , receive or hear representations and evidence from any person present as it considers appropriate . ”

ORG Good Practice Guide provided , inter alia , that “ the general principle underlying the proceedings ” was the observance of natural justice . The ORG should “ be fair and be seen to be fair to all parties at all times ” . The ORG was “ in law , a separate body from the authority ” and “ independent ” . Before the hearing of a case checks were carried out to ensure that ORG Members “ have had no previous dealings with the case , and that they have no relationship with the claimant or any other person affected ” .

In ORG judgment in NORP v. Secretary of ORG for the Environment , ex parte Holding and ORG , ORG and ORG , [ DATE ] ORG CARDINAL , ( “ GPE ” ) , Lord PERSON of GPE described the scope of judicial review as follows ( § DATE ) :

“ It has long been established that if the Secretary of ORG misinterprets the legislation under which he purports to act , or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision , or reaches a perverse decision , the court may set his decision aside . Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross - examined , or for representations to be made or to take any step which fairness or natural justice requires , the court may interfere . The legality of the decision and the procedural steps must be subject to sufficient judicial control . ” ...

Lord PERSON continued that he was further of the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of an established and relevant fact ( § § CARDINAL of the judgment , and see also Lord PERSON at § CARDINAL , Lord PERSON at MONEY and Lord PERSON at § CARDINAL ) and , where human rights were in issue , on grounds of lack of proportionality .

In Runa Begum ( ORG ) v. GPE of GPE [ DATE ] ORG CARDINAL ( see paragraph CARDINAL below ) , Lord PERSON of PERSON made it clear that a court on judicial review ( § § CARDINAL - CARDINAL ) :

“ ... may not only quash the authority 's decision ... if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact ... It is plain that the ... judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority ... . ”

Since the coming into force of LAW , the NORP courts have considered on a number of occasions the extent to which judicial review can remedy defects of independence in a first instance administrative tribunal .

In GPE ( cited above ) , ORG considered the procedure whereby the Secretary of ORG had the power himself to determine certain matters of planning and compulsory purchase , subject to judicial review . Following the ORG 's judgment in PERSON the GPE , no . CARDINAL , § § DATE , Series A no . CARDINAL-A , ORG held unanimously that since the decisions in question involved substantial considerations of policy and public interest it was acceptable , and indeed desirable , that they be made by a public official , accountable to ORG . Although the Secretary of ORG was not an independent and impartial tribunal , he ( or rather , his ORG 's decision - making process ) offered a number of procedural safeguards , such as an inspector 's inquiry with the opportunity for interested parties to be heard , and these safeguards , together with the availability of judicial review ( see paragraphs CARDINAL - CARDINAL above ) was sufficient to comply with the requirement for “ an independent and impartial tribunal ” in LAW .

Lord PERSON explained the democratic principles underlying this approach as follows ( § § CARDINAL and DATE ) :

“ In a democratic country , decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them . Sometimes the subject - matter is such that ORG can itself lay down general rules for enforcement by the courts . Taxation is a good example ; ORG decides on grounds of general interest what taxation is required and the rules according to which it should be levied . The application of those rules , to determine the liability of a particular person , is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the courts . On the other hand , sometimes one can not formulate general rules and the question of what the general interest requires has to be determined on a case by case basis . Town and country planning or road construction , in which every decision is in some respects different , are archetypal examples . In such cases ORG may delegate the decision - making power to local democratically elected bodies or to ministers of the ORG responsible to ORG . In that way the democratic principle is preserved .

... There is however another relevant principle which must exist in a NORP society . That is the rule of law . When ministers or officials make decisions affecting the rights of individuals , they must do so in accordance with the law . The legality of what they do must be subject to review by independent and impartial tribunals . This is reflected in the requirement in LAW No . CARDINAL that a taking of property must be ' subject to the conditions provided for by law ' . The principles of judicial review give effect to the rule of law . They ensure that administrative decisions will be taken rationally , in accordance with a fair procedure and within the powers conferred by ORG . ... ”

ORG returned to these issues in PERSON ( cited above ) . The appellant had been offered a flat by the local authority , but considered it unsuitable for herself and her children because , she alleged , it was on a housing estate known for drugs and crime and in close proximity to a friend of her ex - husband . She requested a review of the local authority 's decision . The reviewing officer was a re - housing manager employed by the same local authority but who had not been involved in the original decision and who was senior to the original decision - maker . She found that there were no serious problems on the estate and that the relationship between PERSON and her husband was not such as to make it intolerable for them to risk meeting each other .

It was accepted that the case involved the determination of civil rights and that the reviewing officer was not , in herself , an “ independent and impartial tribunal ” . ORG held unanimously that the existence of judicial review was sufficient in this context for the purposes of LAW . In reaching this conclusion , Lord PERSON of NORP considered CARDINAL matters as “ particularly pertinent ” : first , that the legislation in question was part of a far - reaching statutory scheme regulating the important social field of housing , where scarce resources had to be divided among many individuals in need ; secondly , that although the council had to decide a number of factual issues , these decisions were “ only staging posts on the way to the much broader judgments ” concerning local conditions and the availability of alternative accommodation , which the housing officer had the specialist knowledge and experience to make ; thirdly , the review procedure incorporated a number of safeguards to ensure that the reviewer came to the case with an open mind and took into account the applicant 's representations . Lord PERSON commented , generally , on the inter - relation between the LAW concept of “ civil rights ” and the requirement for an “ independent and impartial tribunal ” , that ( § CARDINAL ) :

“ the narrower the interpretation given to ' civil rights ' , the greater the need to insist on review by a judicial tribunal exercising full powers . Conversely , the more elastic the interpretation given to ' civil rights ' , the more flexible must be the approach to the requirement of independent and impartial review if the emasculation ( by over - judicialisation ) of administrative welfare schemes is to be avoided . ... ”

It was argued before ORG that when , as in GPE and GPE , the decision turned upon questions of policy or “ expediency ” , it was not necessary for the appellate court to be able to substitute its own opinion for that of the decision - maker ; that would be contrary to the principle of democratic accountability . However , where , as in PERSON , the decision turned upon a question of contested fact , it was necessary either that the appellate court should have full jurisdiction to review the facts or that the primary decision - making process should be attended with sufficient safeguards as to make it virtually judicial . In response , Lord PERSON ( § § DATE ) underlined that the fact - finding in PERSON had been closely analogous to a criminal trial , since the inspector 's decision that Mr PERSON had acted in breach of planning control would be binding on him in any subsequent criminal proceedings for failing to comply with the enforcement notice . Lord PERSON continued :

“ A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions ( such as licensing or granting planning permission ) or administering schemes of social welfare such as [ housing the homeless ] . The rule of law rightly requires that certain decisions , of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights , should be entrusted to the judicial branch of government . This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators . Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision - maker ( see PERSON v. GPE [ judgment of DATE , Series A no . CARDINAL-B ] ) .

But utilitarian considerations have their place when it comes to setting up , for example , schemes of regulation or social welfare . I said earlier that in determining the appropriate scope of judicial review of administrative action , regard must be had to democratic accountability , efficient administration and the sovereignty of ORG . This case raises no question of democratic accountability . ...

On the other hand , efficient administration and the sovereignty of ORG are very relevant . ORG is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes ... . ”

Following ORG judgment in GPE , but before that in PERSON , ORG examined whether the ORG procedure at issue in the present application was compliant with LAW , in a case where the determination of the central issues of fact depended on an assessment whether the claimant was telling the truth : PERSON ( NORP on the application of ) v. ORG [ DATE ] EWHC Admin CARDINAL . The Secretary of ORG conceded that the ORG lacked the appearance of an independent and impartial tribunal . On the question whether judicial review proceedings were sufficient to remedy the problem , PERSON observed :

“ There is however , in my judgment , CARDINAL insuperable difficulty . Unlike an inspector [ in a planning case ] , whose position was described by Lord PERSON [ in NORP v. Secretary of ORG for the Environment , ex parte Holding and ORG , ORG and ORG , [ DATE ] ORG CARDINAL ; [ DATE ] CARDINAL All ER CARDINAL : see Holding and ORG plc v. GPE DATE . ) , no . CARDINAL/CARDINAL , ORG DATE ] as independent , the same can not be said of a councillor who is directly connected to CARDINAL of the parties to the dispute , namely the ORG . The dispute was between the claimant and the ORG . The case against payment of benefit was presented by employee of the ORG and relied upon the statement of an official of ORG in the ORG 's Revenue office ) . ...

The reasoning carefully set out by the ORG enables the court to ensure that there has been no material error of fact . Even in relation to a finding of fact , this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence . But , in that respect , the court can only exercise limited control . It can not substitute its own views as to the weight of the evidence ... In my judgment , the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of a [ planning ] inspector and ORG . The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which can not be adequately scrutinised or rectified by this court . CARDINAL of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute is that the extent to which a judgment of fact may be infected can not easily be , if at all , discerned . The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts . ...

Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear , cogent and supported by the evidence . This court can not cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts ; still less any power to weigh the evidence . Accordingly , I conclude that there has been no determination of the claimant 's entitlement to housing benefit by an independent and impartial tribunal . The level of review which this court can exercise does not replenish the want of independence in ORG , caused by its connection to a party in the dispute . ”

The Secretary of ORG was granted leave to appeal against this judgment but , in the event , decided not to appeal .

The PERSON judgment was approved and followed , after ORG judgment in PERSON , by ORG in NORP ( PERSON and another ) v. ORG [ DATE ] EWHC CARDINAL .

In each of its DATE report CARDINAL , ORG ( a statutory advisory committee which reports to the Lord Chancellor ) recommended the abolition of the ORG system , because of concerns about lack of independence and the potential for injustice .


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

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

The applicant was born in DATE . He is currently serving a prison sentence .

On DATE the applicant was arrested . On DATE he was remanded in custody by ORG ( Sąd Rejonowy ) on suspicion that he had killed his mother . His pretrial detention was subsequently extended by ORG ( PERSON ) on DATE , by ORG ( Sąd Apelacyjny ) on DATE , by decisions of the ORG of DATE and CARDINAL DATE , and by decisions of ORG of DATE , CARDINAL DATE , CARDINAL July and CARDINAL DATE .

The domestic courts justified the applicant ’s pretrial detention in its initial phase by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed , as well as by the need to secure the proper course of the proceedings . During that time , an autopsy , a number of unspecified biological tests and an inspection of the crime scene were carried out . At the later stage of the applicant ’s detention , the authorities referred to the severity of the sentence likely to be imposed on him . In addition , they emphasised that the investigation could not be completed for reasons beyond the prosecutor ’s control , namely delays in obtaining expert reports and in viewing the applicant ’s testimony recorded on video tape .

From DATE until DATE the applicant was concurrently serving a sentence of CARDINAL days’ imprisonment , imposed on an unspecified date by ORG in another criminal case .

The applicant ’s minor sons and his wife were witnesses in the investigation . In DATE the prosecutor decided that a psychologist should be present when the younger son was to be interviewed by the prosecution . Apparently the older son was also interviewed by the prosecutor on an unspecified date . The applicant submitted that his wife and CARDINAL sons were not allowed , for an unspecified period , to communicate with him in writing or to visit him in prison . The prosecution relied on LAW ( see paragraph CARDINAL below ) .

The applicant was indicted on DATE . In the proceedings before the first- and second - instance courts he was represented by a legal - aid lawyer .

On DATE the ORG convicted the applicant of murder and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG upheld that judgment . A copy of the judgment was served on the applicant on DATE .

On DATE ORG appointed a legalaid lawyer for the purposes of the cassation proceedings .

A copy of the judgment of DATE was served on the legal - aid lawyer on DATE .

By a letter of DATE the lawyer informed ORG that , in her opinion , a cassation appeal in the applicant ’s case lacked prospects of success and that she therefore refused to prepare and lodge one with ORG . By a letter of DATE ORG informed the applicant of the lawyer ’s refusal and , further , that no other legal - aid lawyer would be appointed for the purpose of lodging a cassation appeal in his case .

The court ’s letter was served on the applicant by the prison administration on DATE .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . GPE , § § CARDINAL , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE .

Under LAW of DATE Criminal Procedure ( “ the Code ” ) , which entered into force on DATE , a party to criminal proceedings can lodge a cassation appeal with ORG against any final decision of an appellate court which had terminated criminal proceedings . The cassation appeal has to be lodged and signed by an advocate , on pain of being declared inadmissible . The relevant part of LAW provides :

“ A cassation appeal may be lodged only on the grounds referred to in LAW [ these include a number of procedural irregularities , such as , for instance , incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of the rules governing jurisdiction in criminal matters ; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself , etc . ] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach . A cassation appeal shall not lie against the severity of the penalty imposed ( niewspółmierności kary ) . ”

Pursuant to LAW , a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within DATE from the date of service of the judgment of the appellate court with its written grounds on the party or , if the party has been represented , on his or her lawyer .

Under LAW of the LAW , an accused may appoint a lawyer to represent him or her in criminal proceedings . If he or she can not afford lawyers’ fees , a request for legal aid may be made under LAW of the Code .

A grant of legal aid expires upon a judgment of an appellate court . A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with ORG . The relevant part of LAW of the LAW provides :

“ A defence counsel appointed under the legalaid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court , in writing , that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged , the defence counsel is entitled to represent the defendant in the subsequent proceedings . ”

In its decision of CARDINAL DATE ( V ORG CARDINAL , OSNKW CARDINAL/CARDINAL/CARDINAL ) ORG stated that cassation proceedings had a special character in that the judgment essentially became final after it had been upheld by the appellate court . Bearing in mind the special character of these proceedings , the court was of the view that at this stage the mere fact that the convicted person was granted legal aid was sufficient to ensure an effective exercise of his or her defence rights . It was the lawyer ’s task to analyse the case and establish whether there were grounds on which to lodge a cassation appeal against the judgment of the appellate court . If the lawyer was of the opinion that there were no grounds on which to do so , there was no legal basis in LAW that would either oblige the lawyer to prepare such an appeal against his or her better judgment , or oblige the court to assign another lawyer to prepare such an appeal in the case .

NORP In its decision of CARDINAL DATE ORG stated that the refusal of a legalaid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time ( V ORG CARDINAL/CARDINAL ) . It confirmed this ruling in a further decision of DATE . ORG observed that the court could only assign a new legal - aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success . If this were not the case , a court was not obliged to assign a new legal - aid lawyer to represent the convicted person and its refusal was not subject to appeal ( III KZ CARDINAL/CARDINAL ) .

In a later decision of DATE ORG expressed the opinion that such negligence could be proved only in disciplinary proceedings instituted against a lawyer under the provisions of LAW ( V KZ CARDINAL/CARDINAL ) .

In its decisions of CARDINAL DATE and DATE ORG expressed the view that when a legal - aid lawyer refused to represent a convicted person before ORG , the appellate court was not obliged to assign a new lawyer to the case ( II KZ CARDINAL/CARDINAL , II KZ CARDINAL/CARDINAL ) .

On DATE ORG changed its previous position concerning the date from which the timelimit for lodging of a cassation appeal started to run ( see paragraph CARDINAL above ) . It examined a particular situation where a legal - aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings , finding that a cassation appeal would offer no prospects of success . It held that in such a situation the appellate court was obliged to instruct the defendant that the time - limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer ’s refusal and not on DATE when the judgment of the appellate court was served on the defendant himself . It stated that it was not open to doubt that a defendant faced with the legal - aid lawyer ’s refusal had a right to take other measures to seek legal assistance necessary for an effective lodging of a cassation appeal ( III KZ CARDINAL/CARDINAL ) . ORG reiterated its position in a decision of DATE and in a number of similar decisions given in DATE . It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time - limit in such situations was calculated , but the strand of the case - law launched by the decision given in DATE was both dominant and correct , and also accepted by doctrine as providing to the defendants adequate procedural guarantees of access to ORG within a reasonable time - frame ( II KZ CARDINAL/CARDINAL ) .

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE .

Article CARDINAL § CARDINAL reads as follows :

“ Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as those secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . ”

Article CARDINAL § CARDINAL reads , in so far as relevant , as follows :

“ ( ... ) detainee ’s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . ”

This provision further provides that a detainee is allowed to receive visitors , provided that he has obtained permission from the investigating prosecutor ( at the investigative stage ) or from the trial court ( once the trial has begun ) .

On DATE the Rules of Detention on Remand ( ORG w sprawie regulaminu wykonywania tymczasowego aresztowania ) entered into force . Paragraph CARDINAL of the ORG provides :

“ The detainee ’s correspondence ... is dispatched through the intermediary of the authority at whose disposal he remains . ”

In DATE , the ORG adopted ORG ( the Basic Principles ) . They provide , in particular :

“ CARDINAL . The duties of lawyers towards their clients shall include :

( a ) Advising clients as to their legal rights and obligations , and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients ;

( b ) Assisting clients in every appropriate way , and taking legal action to protect their interests ;

( c ) Assisting clients before courts , tribunals or administrative authorities , where appropriate .

Lawyers , in protecting the rights of their clients and in promoting the cause of justice , shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession .

Lawyers shall always loyally respect the interests of their clients .

A number of recommendations have been adopted by ORG with regard to access to justice and the provision of legal - aid services . In particular , Recommendation No . R ( CARDINAL ) CARDINAL on measures facilitating access to justice provides :

“ CARDINAL . No litigant should be prevented from being assisted by a lawyer . The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided . Where , having regard to the nature of the matter involved , it would be desirable , in order to facilitate access to justice , for an individual to put his own case before the courts , then representation by a lawyer should not be compulsory . ”

“ Recalling that in addition to the right of access to the law and to justice provided for in LAW , the other provisions of the LAW and particularly Articles CARDINAL , CARDINAL and DATE are equally applicable to the very poor , as are the other legal instruments of ORG such as LAW ;

Considering that this recommendation is intended to improve , especially with regard to the very poor , existing legal advice and legal aid systems , and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed .

Recommends that the governments of member states :

ORG access to the law for the very poor ( “ the right to the protection of the law ” ) by : ...

b. promoting legal advice services for the very poor ; ...

Facilitate effective access to the courts for the very poor , especially by the following means :

c. recognising the right to be assisted by an appropriate counsel , as far as possible of one ’s choice , who will receive adequate remuneration ;

e. simplifying the procedure for granting legal aid to the very poor , [ ... ] ”

“ ORG , under the terms of Article CARDINAL.b of the Statue of the Council of Europe , [ ... ]

Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms ; [ ... ]

Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers ,

Recommends the governments of member PERSON to take or reinforce , as the case may be , all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation .

All necessary measures should be taken to respect , protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public , in particular in the light of the relevant provisions of LAW .

All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers ,

Lawyers should be encouraged to provide legal services to persons in an economically weak position .

Governments of member GPE should , where appropriate to ensure effective access to justice , ensure that effective legal services are available to persons in an economically weak position , in particular to persons deprived of their liberty .

Lawyers’ duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds . ”

On DATE ORG adopted an Interim Resolution concerning the judgments of ORG in CARDINAL cases against GPE relating to the excessive length of detention on remand ( “ the DATE Resolution ” ) . Noting that the number of cases in which ORG had found violations of LAW was constantly increasing , it concluded that this revealed a structural problem . A more detailed rendition of the DATE Resolution can be found in the ORG ’s judgment given in the case of ORG v. GPE ( see ORG v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ; not final ) .

On DATE ORG Commissioner for Human Rights released a Memorandum to the NORP Government concerning , among other issues , the use of the detention measure in GPE , stressing that examples of cases brought to the ORG where pre - trial detention had lasted DATE were not uncommon . The Commissioner urged the NORP authorities to review the application and functioning of pre - trial detention in NORP law . A more detailed rendition of the relevant parts of the Memorandum can be found in the above mentioned ORG judgment ( see ORG v. GPE , cited above , § CARDINAL ) .


Preliminary objection rejected (six month period);Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr LOC , an NORP journalist residing in GPE , was at the relevant time the editor of ORG .

On DATE - during the parliamentary election campaign - it was reported in a television programme that Mr PERSON , then Secretary General of CARDINAL of the political parties which participated in the governing coalition , ORG ( ORG ) , had suggested that the family allowances for NORP women should be increased by PERCENT in order to obviate their seeking abortions for financial reasons , whilst those paid to immigrant mothers should be reduced to PERCENT of their current levels . He had justified his statement by saying that immigrant families were placed in a discriminatory position in other NORP countries as well .

On DATE the applicant and several other persons laid a criminal information ( PERSON ) against Mr PERSON . However , the GPE public prosecutor ’s office decided on DATE not to prosecute him .

On DATE it was laid , the full text of the criminal information was published by the applicant in Forum . The cover page of the relevant issue contained a summary of its contents , including the title : " Criminal information against ORG Secretary General ( PERSON gegen ORG - PERSON ) " . The following text appeared at page CARDINAL :

( Translation )

" CRIMINAL INFORMATION against PERSON

Date of birth unknown , occupation : Secretary General , c / o FPÖ ( ORG ) , ORG , ORG , GPE

ON SUSPICION OF

the misdemeanour ( PERSON ) of incitement to hatred , contrary to LAW ,

the misdemeanour ( PERSON ) of incitement to commit criminal offences and expressing approval of criminal offences , contrary to LAW , and

the offence ( Verbrechen ) of activities within the meaning of sections CARDINAL and CARDINAL of LAW of CARDINAL DATE ( StGBl . no . CARDINAL ) on the prohibition of ORG ( ORG ) ( " LAW " ) .

THE FACTS

‘ The Secretary General of ORG , Mr PERSON DATE proposed raising family allowances for NORP women by PERCENT , the aim of this measure being to deter NORP women from having abortions for financial reasons . At the same time PERSON demanded that family allowances from the NORP State for mothers of migrant workers’ families ( PERSON ) should be reduced to CARDINAL the present level . ORG stated that migrant worker families are placed in a less favourable position in other NORP countries PERSON

ORG ( ORG ) , Television programmes CARDINAL + CARDINAL Late News CARDINAL.CARDINAL.CARDINAL

Count CARDINAL :

PERSON public statement was made in a way which offends human dignity and is directed against a group of persons defined by their membership of a people , ethnic group or ORG ; in the present case , by the fact that they do not have NORP citizenship .

The contrasting treatment of NORP women , who are to be spared the need for abortions by being placed in a better financial position , and mothers of migrant workers’ families who are not only not to be treated in the same way , but who are moreover , according to PERSON suggestion , to have their family allowances halved ( allowances which in his opinion are too low to prevent abortion for financial reasons ) , gives the impression , which must in all likelihood have been intended by him , that mothers of migrant workers’ families and their unborn children are an inferior , worthless or less valuable sector of the population as a whole , and that it is in the interests of the NORP people for such mothers to have abortions .

PERSON has thereby presented migrant workers as being undeserving or unworthy of the respect of their fellow human beings ; the authors of this information regard this as a tendentious incitement to hatred of and contempt for migrant workers in GPE , object thereto and lay this information .

Count CARDINAL :

PERSON is publicly proposing - and thereby calling in particular on ORG and ORG to introduce - measures which constitute the substance of the offence of activities within the meaning of sections CARDINAL and CARDINAL of LAW ( see below ) .

Count CARDINAL :

Under section CARDINAL of LAW , activities of any sort on behalf of the ORG or its aims are prohibited , even if such activities are carried out outside that organisation .

Section CARDINAL of LAW says that " A person who in public or in the presence of several persons ... instigates , incites or seeks to induce conduct prohibited by LAW , in particular any person who for this purpose glorifies or extols the aims , organs or actions of the ORG , shall , unless a more serious offence appears therein , be punished by a term of imprisonment of from DATE and confiscation of his entire property " .

The authors of this information refer in this connection to the CARDINAL points of ORG of CARDINAL . They note that , until the passing of LAW of DATE by ORG , this manifesto remained the party ’s sole programme and that it therefore contains in authentic and complete form the aims of the ORG ’s programme . It says inter alia that :

‘ CARDINAL . A person who does not have NORP nationality is to be able to live in GPE only as a visitor and must be subject to aliens legislation .

We demand that the ORG undertake , first and foremost , to provide opportunities for employment and the subsistence of its citizens . If it is not possible to feed the entire population of the ORG , citizens of foreign nations ( non - citizens ) must be expelled from the PERSON .

All further immigration of NORP is to be prevented . We demand that all non - NORP who have immigrated to GPE since DATE be compelled to leave the Reich immediately.’

Creating a hostile attitude to citizens of foreign nations ( non - citizens ) , and placing them in a less favourable position , to such an extent that it became difficult for them to live in the PERSON and they were forced to leave , were essential aims of the ORG and its policy .

PERSON proposal to increase family allowances for NORP women by PERCENT in order to stop them having abortions for financial reasons , and at the same time to reduce family allowances for mothers of migrant workers’ families to CARDINAL the present level , represents a cynical means of driving citizens of foreign nations out of GPE and indeed forcing those who stay in GPE to have abortions ; being entirely consistent with and corresponding to the philosophy and aims of the ORG that ‘ the ORG must first and foremost provide opportunities for employment and the subsistence of its ORG , these proposals are aimed , amongst other things , at improving the living conditions of citizens ( NORP mothers ) by worsening those of migrant workers and , at the same time , at preventing all further immigration of NORP ( see above , ORG points CARDINAL and CARDINAL) .

From this it is apparent that PERSON has undertaken activities which correspond to the aims of the ORG , or at the very least has extolled its measures against citizens of foreign nations by proposing that such measures be applied in GPE .

As to the accuracy of these allegations , the authors of this information rely on their own statements , the ORG newsreaders’ scripts for ORG on television programmes CARDINAL and CARDINAL on DATE and the ORG manifesto of CARDINAL .

This criminal information is therefore laid against PERSON etc .

( Signed ) : ... , PERSON "

On DATE Mr ORG brought a private prosecution for defamation ( üble GPE , LAW - see paragraph CARDINAL below ) against the applicant and the other signatories of the criminal information . He also sought the immediate seizure of the relevant issue of Forum ( sections CARDINAL and CARDINAL of LAW ) and compensation from its owners ( section CARDINAL of LAW - see paragraph CARDINAL below ) .

ORG ( Ratskammer ) of ORG ( PERSON für PERSON - " the Regional Court " ) decided on DATE to order the discontinuance of the proceedings under LAW para . CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . It found that the publication did not constitute the criminal offence defined in LAW , since the case did not concern the wrongful attribution of a certain ( dishonest ) behaviour , but only value - judgments ( ORG ) on behaviour which , as such , had been correctly described .

On appeal by Mr Grabher - Meyer ORG ( Oberlandesgericht ) , composed of Mr PERSON , as President , and Mr PERSON and Mr PERSON , quashed the above decision on CARDINAL DATE . It held that for the average reader the publication must have created the impression that a contemptible attitude ( verächtliche Gesinnung ) was ascribed to Mr ORG . The authors had disregarded the standards of fair journalism by going beyond a comparative and critical analysis of his statements and insinuating motives which he had not himself expressed , in particular by alleging that he had been guided by ORG attitudes . Accordingly , the case was referred back to ORG .

On DATE the defamation proceedings against the signatories of the criminal information other than Mr Oberschlick were severed from the main proceedings by ORG and referred for decision to ORG PERSON ) , on the ground that those persons had not been associated with the publication in Forum . On DATE the former proceedings were discontinued .

On DATE ORG ordered the publication in Forum of information about the defamation proceedings against the applicant ( section CARDINAL of LAW - see paragraph CARDINAL below ) . This decision was confirmed by ORG on DATE .

ORG held a hearing on CARDINAL DATE , during which it heard evidence from Mr ORG and the applicant .

The latter offered evidence that what he had written was true ( GPE ) , claiming that in this respect it was sufficient to establish that a criminal information had actually been laid in the terms published in Forum . He argued that by reporting his suspicions he had been fulfilling a legal duty and that he was therefore exculpated under LAW ( see paragraph CARDINAL below ) . The fact that the legal qualification of Mr Grabher - Meyer ’s statements might have been erroneous could not be held against him because he was not a lawyer .

On DATE the applicant was convicted of defamation ( LAW and sentenced to a fine of CARDINAL NORP schillings or , in default , to CARDINAL days’ imprisonment . ORG also made the following orders against the owners ( ORG ) of ORG and ORG ( ORG der Redakteure und ORG ) : the seizure of the relevant issue of Forum , the publication of its judgment ( sections CARDINAL and CARDINAL of LAW ) , and the award to Mr Grabher - Meyer of compensation of MONEY ( section CARDINAL of LAW ) . In addition , they were declared to be jointly and severally liable for the payment of the fine ( section CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) .

In its judgment of CARDINAL DATE , ORG held that it was bound by the opinion expressed by ORG in its decision of CARDINAL DATE ( see paragraph CARDINAL above ) . Therefore the objective conditions for the offence of defamation were satisfied .

Mr PERSON also fulfilled the subjective requirements because he had acknowledged that he had intended to draw attention to what , in his opinion , was the National Socialist way of thinking of Mr Grabher - Meyer . Mr PERSON had , however , not established the truth of his allegations nor justified them . In ORG view , it was not sufficient that this politician had made the criticised statements and that a criminal information regarding it had been laid in the terms published in Forum . The statements in question did not necessarily show the intentions PERSON had inferred therefrom . It could also be understood as a proposal to reallocate the notoriously limited resources of ORG in favour of NORP in order to stem the influx of migrant workers . This admittedly revealed a xenophobic way of thinking , but did not yet amount to a ORG attitude or to a criminal offence .

The fact that the publication involved only a reprint of the criminal information did not exculpate the applicant . Whilst everyone was free to report to the police facts which he considered constituted a criminal offence , it went far beyond the mere reporting of a criminal suspicion to publish the text of the information in a periodical and thus to make it accessible to the general public . There was no justification for doing so . In this respect , the applicant could not invoke a legal duty under LAW , namely to draw the public ’s attention to the ( allegedly ) NORP mentality of a high - ranking official of a governing party . That allegation came under the general rule that a person who had made an attack of this kind through the media had to prove that it was true .

Mr PERSON subsequently requested on several occasions to be supplied with a copy of the record of the hearing , but without success . It seems that it was not until after the communication of the written judgment on DATE that the record reached the applicant . On DATE he applied for a rectification of the trial record which , according to him , failed to mention certain statements by Mr ORG which were of importance for assessing the evidence concerning the truth of the applicant ’s allegations . He had allegedly stated at the trial , inter alia , that he was opposed to excessive immigration of foreigners ( PERSON ) and that for tactical reasons he approved the " stop foreigners " campaign ( " PERSON " ) which had been conducted by a right - wing political party and had subsequently been prohibited . He had also allegedly admitted having considered social - policy measures directed against the children of foreign workers in NORP schools .

On DATE ORG rejected this application , after having consulted the transcriber , on the ground that after DATE the judge had no recollection of the detailed statements . It nevertheless pointed out that although the latter did not appear in the transcriber ’s notes , similar statements did .

On DATE ORG , composed of the same judges and again presided over by PERSON ( see paragraph CARDINAL above ) , dismissed the applicant ’s appeal ( GPE ) .

In relation to a complaint concerning ORG decision of CARDINAL DATE ( see paragraph DATE above ) , ORG observed that this decision was final . Furthermore , it did not appear that ORG had failed to determine any requests made during the trial concerning the record . In any event , the statements in question were irrelevant for the judgment on the merits of the matter .

ORG then dealt with the substantive issues . In its view , ORG had not been legally bound by ORG ’s earlier decision concerning the qualification of the offence . ORG , however , saw no reason to depart from that decision . What was decisive was that Mr Grabher - Meyer was alleged to have had motives which he himself had not expressed . The case therefore did not concern the ( possibly incorrect ) legal qualification of his statements , but allegations putting a stain on his character which objectively could not be inferred from those statements .

According to ORG , ORG had rightly held that what had to be proved was the truth of the critical inferences as to Mr ORG character made in the article and had rightly found that the applicant had failed to bring this proof . The fact that a short report on the criminal information against this politician would not have been punishable did not justify the conclusion that a full reprint of it was not punishable either . The publication in the form of a criminal information was intended to ensure that the accusation as to his character made therein would have a particularly telling effect on the average reader . Neither the right to report a criminal suspicion ( Article CARDINAL para . CARDINAL of the Code of Criminal Procedure - see paragraph CARDINAL below ) nor the exception provided for in LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) justified the publication because it was not appropriate ( mangels Anlassadäquanz ) : it had been insinuated , without a sufficient basis in the facts , that Mr Grabher - Meyer held ORG attitudes .

The written text of the judgment was served upon the applicant on DATE .

On DATE he requested the Attorney - General ( Generalprokurator ) to file a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) , but he was informed on DATE that the Attorney - General did not intend to take any action .

LAW provides :

" CARDINAL . Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . "

Under LAW , " evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ... " .

Under LAW para . CARDINAL " conduct of the kind mentioned in LAW ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right " . Under paragraph CARDINAL of the same provision " a person who is forced for special reasons to make an allegation within the meaning of LAW ... in the particular form and manner in which it was made , is not to be punished , unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care " .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim compensation from him . Furthermore , the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings ( section CARDINAL ) .

The person defamed may request the forfeiture of the publication by which a media offence has been committed ( section CARDINAL ) . Under section CARDINAL he may also request the immediate seizure of such a publication if section CARDINAL is likely to be applied subsequently , unless the adverse consequences of seizure would be disproportionate to the legal interest to be protected by this measure . Seizure shall not be ordered if that interest can instead be protected by the publication of information that criminal proceedings have been instituted ( section CARDINAL ) . Finally , the victim may request the publication of the judgment in so far as this appears necessary for the information of the public ( section CARDINAL ) .

The first sentence of Article CARDINAL para . CARDINAL of the Code of Criminal Procedure reads as follows :

" Anybody who acquires knowledge of criminal conduct such as automatically attracts public prosecution shall have the right to report it . "

Furthermore , section CARDINAL ( g ) para . CARDINAL of LAW imposes a duty to denounce offences under LAW in certain circumstances . Failure to fulfil this duty may be punished by imprisonment for DATE .

Under the special simplified procedure - which was followed in this instance - , if a single judge of ORG is of the opinion that the facts of the case do not constitute a criminal offence , he shall seek a decision by ORG ( Article CARDINAL para . CARDINAL ( CARDINAL ) of LAW ) , which shall order the discontinuance of the proceedings if it shares his view ( Article CARDINAL para . CARDINAL ) . The prosecution may appeal against such an order ( Article CARDINAL para . CARDINAL ) . If ORG upholds the appeal and refers the case back to ORG , the following special rules apply :

" The trial court shall not be bound by decisions of ORG or of the court of second instance which confirm ... that the facts constitute a criminal offence ... "

" Those members of the court of second instance who participated at a previous stage in the decision of ORG to discontinue the proceedings or in the determination of an appeal against such a decision ( Article CARDINAL ) shall be disqualified from hearing or determining an appeal . "

Disqualification of a judge ( PERSON ) is governed by the following provisions of LAW :

" A judge is obliged to bring circumstances which disqualify him to the immediate attention of the president of the court of which he is a member ... "

" From the moment when grounds for his disqualification come to his knowledge , every judicial officer ( ORG ) shall refrain from any judicial acts , on pain of nullity . The judicial officer concerned may carry out judicial acts which are urgent , but only where there is danger in delay and if another judge or registrar can not be appointed immediately . ... "

Furthermore , under LAW the parties to the proceedings may challenge ( ablehnen ) a judge if they can show that there are reasons for doubting his complete impartiality . Although LAW refers expressly to grounds " other than disqualification " , it is the practice of the courts to apply LAW also in cases where a party raises an issue relating to a judge ’s disqualification . In fact , the disqualification of a first - instance judge can not subsequently be pleaded in nullity proceedings unless he was challenged before or at the trial or immediately after the ground for disqualification became known to the party ( Article CARDINAL para . CARDINAL ( CARDINAL ) of LAW ) . The procedure applicable in this respect is the following :

" Where a party seeks to challenge a judge , he may make an application in writing to the court of which the judge is a member or make an oral declaration to this effect before the registrar . He may do this at any time , except that , where the challenge concerns a member of the trial court , it must be made not TIME before the beginning of the hearing and , where it is directed against the whole court , not DATE after service of the summons to attend the hearing . The application must specify and , as far as possible , justify the reasons for the challenge . "

" ( CARDINAL ) As a rule it is for the president of the court of which the challenged judicial officer is a member to decide on the admissibility of the challenge .

( CARDINAL ) ...

( CARDINAL ) No appeal lies against such a decision ... "

Records of hearings before criminal courts in GPE are usually drawn up in summary form unless , for special reasons , the court orders the preparation of a shorthand transcript . A shorthand transcript must be prepared if this is requested by a party who advances the costs thereof ( Article CARDINAL para . CARDINAL ) .

In other cases the record is limited to a note of all essential formalities of the proceedings . The parties are free to request the recording of specific points in order to preserve their rights ( Article CARDINAL para . CARDINAL , applicable to single - judge proceedings by virtue of Article CARDINAL ) .

Where the establishment of a verbatim version is important , the judge shall , upon the request of a party , order that particular passages be read out at once ( Article CARDINAL para . CARDINAL ) .

The answers of the defendant and the depositions of the witnesses and experts shall be mentioned only if they contain deviations from , alterations of or additions to the statements recorded in the files or if the witnesses or experts are heard for the first time at the trial ( Article CARDINAL para . CARDINAL ) .

The parties are free to inspect the completed record and its appendices and to make copies thereof ( Article CARDINAL para . CARDINAL ) . Case - law has established that they are entitled to request additions or corrections to the record at the trial or afterwards , as long as an appeal is pending ( PERSON , " EvBl " , DATE , p. CARDINAL and PERSON , CARDINAL/CARDINAL ) . The court ’s decision on such a request is final and is not open to appeal ( Richterzeitung , CARDINAL , p. CARDINAL , EvBl . CARDINAL ) .

It is only total failure to prepare a trial record that is a ground of nullity ( Article CARDINAL para . CARDINAL ( CARDINAL ) ) . Other deficiencies in the record can not be pleaded in nullity proceedings , except failure to decide on motions concerning the record which were made during the trial ( Article CARDINAL para . CARDINAL ( CARDINAL ) ) .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicants are CARDINAL individuals and ORG in GPE ( “ the applicant organisation ” ) , an organisation founded by them .

The CARDINAL individual applicants , Mr PERSON , Mr PERSON , PERSON , Mr PERSON and Mr Petko Borisov Traikov are NORP nationals who lived at the relevant time in the city of PERSON .

The applicant organisation was founded in DATE .

All applicants were represented before the ORG by PERSON and PERSON , lawyers practising in GPE . The respondent Government were represented by their Agent PERSON , of ORG .

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

CARDINAL of the applicants , Mr GPE used to be a religious minister in ORG in PERSON until DATE , when he was dismissed .

Thereafter , Mr Borisov started organising religious meetings in a house in PERSON where the individual applicants and other persons prayed and discussed religious matters .

It appears that the house in question belonged to ORG in PERSON . It was built by their followers who had donated money and worked on the site .

Mr GPE , however , claimed that the house belonged to him .

According to the applicants , in DATE and DATE police officers allegedly visited the prayer house CARDINAL times and told the participants that religious activities without registration as a religious community were not allowed . Each time the participants were allegedly ordered to leave .

The applicants never submitted complaints in respect of those alleged events .

On DATE Mr Borisov was allegedly taken by police officers from his brother ’s home and detained “ for a week ” . He was allegedly questioned about his religious beliefs and activities and warned against conducting religious services without registration .

It appears that on an unspecified date ORG in PERSON took possession of the disputed house . According to the applicants , this happened with the assistance of the police .

In DATE , Mr PERSON wrote a complaint to the prosecuting authorities about a number of different events , including property disputes and his application for welfare payments , and also stated that in DATE he had been detained unlawfully . By decisions of CARDINAL May and DATE the relevant prosecutors refused to open criminal proceedings noting that some of his complaints concerned civil law disputes and that after verification his allegation that he had been detained in DATE had proved groundless .

At a meeting on DATE the individual applicants and CARDINAL other individuals , residents of ORG , founded the applicant organisation , ORG in GPE . They approved its statute and elected its governing council . Mr PERSON was elected its President .

In accordance with the applicant organisation ’s Statute , it would engage in Bible studies , prayers and charity .

On DATE the applicant organisation applied to ORG for registration as a religious denomination under LAW .

As no reply was received , on DATE an appeal was filed with ORG against the tacit refusal of ORG .

On DATE ORG replied to the application for registration by letter . It stated , inter alia , that the applicant organisation ’s submissions did not provide sufficient information about the religion it practiced and thus did not permit a conclusion that the applicant organisation had the characteristic features of a distinct religious denomination . The letter , which was apparently made on a model form used in similar circumstances , stated that the applicant organisation should rectify the deficiencies in its application .

In the proceedings before ORG the parties made written submissions . ORG stated , inter alia , that the applicant organisation had been invited to submit additional information and explain the features that characterised it as a distinct religious denomination . The applicant organisation had not replied .

By decision of DATE ORG rejected the appeal as inadmissible . It found that the registration proceedings were pending before ORG which had invited the applicant organisation to rectify its application . The applicant organisation had not replied . Therefore , there had not been a tacit refusal and the appeal was premature .

Upon the applicant organisation ’s appeal , on DATE a CARDINAL - member chamber of ORG upheld the decision of DATE .

The applicant organisation never replied to the ORG of Minister ’s letter of DATE .

In DATE PERSON was officially registered as the local leader of another religious organisation , ORG in PERSON , the region of GPE .

There is no provision of NORP law requiring a religious group organising public religious activities to register as a legal person . Nonetheless , at the relevant time , the police often disrupted religious meetings of unregistered groups . In administrative practice , the view according to which religious activities were not allowed without registration was widespread ( see the facts in GPE sdruzhenie GPE na NORP v. GPE , no . ORG decision of DATE and PERSON and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE and PERSON v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , DATE ) .

In its judgment no . CARDINAL of DATE in case no . DATE , ORG observed that the relevant law did not impose an obligation for a religious group to register and that the view that registration was a necessary pre - condition for religious gatherings was contra legem .

LAW DATE , which superseded earlier legislation , does not require registration as a pre - condition for public religious gatherings .

At the relevant time and until DATE , a religious group wishing to obtain registration as a legal person could register at the local regional court as an association under section CARDINALa of the Persons and Family Act , with the authorisation of ORG . At the relevant time CARDINAL religious groups belonging to various religions were registered as associations .

Separately , religious denominations were subject to registration in accordance with LAW , as in force at the relevant time and until DATE . ORG , the NORP community , the NORP community , ORG , several protestant churches and other religions were registered as religious denominations in GPE .

On DATE LAW DATE entered into force . It introduced changes in the registration procedure for religious denominations . It also repealed section CARDINALa of the Persons and Family Act .

In accordance with section QUANTITY of ORG and LAW as in force at the relevant time , every detained person has the right to appeal to a court against his detention .

A person claiming that his property has been unlawfully taken away from him may bring a rei vindicatio action or an action for possession under LAW .

It is open to alleged victims of unlawful police actions to submit complaints to the prosecution authorities and to bring civil proceedings under LAW DATE .