Violation of Art. 5-4;Violation of Art. 6-1;No violation of Art. 5-1;Just satisfaction reserved

Mr. PERSON resides in the GPE . He married in DATE and several children were born of the marriage . In DATE , he was committed to a psychiatric hospital by direction of the local burgomaster in accordance with an emergency procedure . DATE , on his wife ’s application , he was confined to the same hospital under an order made by ORG ( kantongerecht ) of his place of residence . On his wife ’s further application and subsequently at the request of the public prosecutor ( officier van justitie ) , the order was renewed from DATE by ORG ( arrondissements- rechtbank ) on the basis of medical reports from the doctor treating the applicant .

Mr. PERSON complains of the procedure followed in his case . In particular , he objects that he was never heard by the various courts or notified of the orders , that he did not receive any legal assistance and that he had no opportunity of challenging the medical reports . His complaints are also directed against the decisions on his requests for discharge and against his loss of civil capacity .

The detention of persons of unsound mind is governed by LAW of DATE on ORG supervision of mentally ill persons ( wet van CARDINAL DATE , FAC , tot regeling van het Staatstoezicht op krankzinnigen ) . Usually referred to as the Mentally Ill Persons Act ( krankzinnigenwet ) , the LAW has been amended several times , in the last instance by LAW of DATE which came into force on CARDINAL DATE , that is some time after the applicant had first been detained . A PERSON providing for a complete reform of the system is at present pending before ORG .

The Mentally Ill Persons Act is divided into CARDINAL main chapters . Principally relevant for the present proceedings are the CARDINAL chapters dealing firstly with the admission of persons to psychiatric hospitals and their stay therein , secondly with leave of absence and discharge therefrom , and thirdly with the administration of the property of persons admitted to psychiatric hospitals .

The LAW does not define who are " mentally ill persons " but lays down the grounds for committing such persons to hospital ( see the following paragraphs ) . It would appear from the evidence submitted that , according to the general practice currently followed , the GPE courts will authorise the confinement of a " mentally ill person " only if his mental disorder is of such a kind or of such gravity as to make him an actual danger to himself or to others .

In urgent cases , the burgomaster has the power to direct the compulsory admission of a " mentally ill person " to a psychiatric hospital .

Until DATE , the burgomaster had to obtain prior medical advice only if circumstances permitted ; his decision was valid for DATE but the public prosecutor could shorten or extend the term ( section CARDINAL of the Act ) .

This procedure was considerably changed by LAW , section CARDINAL being repealed and replaced by sections PERSON to CARDINALj . The burgomaster is now obliged to seek the prior opinion of a psychiatrist or , should that not be possible , another medical practitioner . Once he has issued a direction to detain , he must immediately inform the public prosecutor and send him the medical declarations on which the direction was based . The public prosecutor is in his turn required to transmit these declarations not later than the following day to the President of ORG with , where appropriate , an application for a continuation of the detention . Such continuation , if made , is valid for DATE but may be renewed by the President for a second period of similar duration . Thereafter the procedure concerning applications for a provisional detention order is to be followed ( see paragraphs CARDINAL and CARDINAL below ) .

Apart from the above - mentioned emergency cases , no one may be deprived of his liberty on grounds of mental illness or insanity except under a provisional detention order made by a court .

ORG judge ( kantonrechter ) may issue a provisional detention order on written application ( verzoek ) made by a close relative by blood or marriage of full age , the spouse or the legal representative of the individual concerned and seeking his confinement either in the interests of public order or in his own interests ( section CARDINAL of the Act ) . The judge may also issue such an order on application by a person of full age who considers that his own condition is such as to require suitable treatment ( section CARDINAL ) . In addition , a provisional detention order may be made by the President of ORG following a request ( requisitoir ) by the public prosecutor ( section CARDINAL ) .

The application or request must , according to LAW , be accompanied by a declaration drawn up not DATE by a doctor licensed to practise in the GPE but not attached to the institution to which it is proposed admitting the patient . The declaration must be to the effect that the person concerned " is in a state of mental illness ( toestand van krankzinnigheid ) and that it is necessary or desirable to treat him in a psychiatric hospital " . An application may also mention facts and documents giving a clearer indication of the state of mental illness , but this is purely optional .

Since the entry into force of LAW , the medical declaration must be made by a psychiatrist who is not himself treating the patient ; as far as possible , it must state , with reasons , whether the patient ’s condition is such that it would be pointless or medically inadvisable for him to be heard by the court . The psychiatrist must , if he can , first consult the family doctor .

The judge makes a provisional detention order if the medical declaration , either on its own or in conjunction with the facts related or the documents supplied , adequately establishes that treatment in a psychiatric hospital is necessary or desirable ( section CARDINAL para . CARDINAL of the Act ) .

Until DATE , the examination of the application or request was not subject to any limitative formalities . Section CARDINAL , in the version in force when the facts of the present case occurred , provided that the judge had competence to hear beforehand the person whose detention was being sought . As a result of the above - mentioned amending LAW , the judge is now obliged to hear the person in question unless he concludes from the medical declaration that this would be pointless or medically inadvisable ; he may , either of his own motion or at the request of that person , provide the latter with legal assistance ( section CARDINAL para . CARDINAL ) . The judge must seek all possible information both from the individual who made the application or the request mentioned in sections CARDINAL and CARDINAL and from certain other individuals ( section CARDINAL para . CARDINAL ) . He retains the power to call witnesses and experts ( section CARDINAL para . CARDINAL ) and may , if he thinks fit , summon anyone who made an application for a detention order pursuant to section CARDINAL to appear before him ( section CARDINAL para . CARDINAL ) .

A provisional detention order is not subject to appeal and is , moreover , not notified to the person concerned ( section CARDINAL ) ; it is valid for DATE ( section CARDINAL ) .

The order , like detention orders ( see paragraphs CARDINAL and CARDINAL below ) , authorises rather than enjoins compulsory confinement and it may happen that it is not put into effect . In the case of a person who is not yet hospitalised , the admission to a psychiatric hospital or other specialised institution must take place within DATE , on production of the court order ( sections QUANTITY and CARDINAL ) . The closest relatives by blood or marriage , the spouse or the legal representative must be informed of the patient ’s admission by the burgomaster , who is notified thereof by the court or the public prosecutor ( section DATE ) . The medical declaration on which the judge based his decision must be transmitted to the institution ’s doctor treating the patient . This doctor has to enter his findings on a register every day for DATE , then on a DATE basis for the ensuing DATE and thereafter on a DATE basis ( section CARDINAL ) .

Within TIME of the admission , the doctor responsible for the patient ’s treatment is required to send to the public prosecutor of the district in which the psychiatric hospital is situated a reasoned declaration on the patient ’s mental condition and on the necessity or desirability of prolonging his stay in a psychiatric hospital ( section CARDINAL ) .

Within DATE following the issue of the provisional detention order , a further application or request , seeking the continuation of the patient ’s confinement in a psychiatric hospital for DATE , may be submitted to ORG . Any such application or request must be accompanied by the medical records of the doctor responsible , together with a reasoned declaration by him as to whether it is necessary or desirable for the patient to undergo further treatment in a psychiatric hospital ( section CARDINAL ) .

The patient need not be notified of the application or request or of the proceedings relating thereto .

A decision on the application or request is taken by ORG ( section CARDINAL ) . Apart from being obliged to hear the public prosecutor , the ORG does not have to follow any set procedure . It may call for evidence from witnesses or other sources , hear the patient , grant him legal assistance and consult experts , but it is not bound to do so . During the examination of the case , the patient must remain in the institution , if necessary for DATE after the making of the provisional order .

ORG decision , which is not subject to appeal , is not delivered at a public hearing , nor is it notified to the person concerned . In practice , it is left to the hospital authorities to determine if and when such notification is warranted from the medical point of view .

The general rule is that , when hearing civil cases , ORG sits as a chamber composed of CARDINAL judges ( section CARDINAL para . CARDINAL of LAW ) . However , this chamber may refer to a single - judge chamber ( enkelvoudige kamer ) such cases as it deems suitable ( LAW ( b ) of LAW ) . ORG has its own Rules of Order ( reglement van orde ) which are approved by LAW on the advice of ORG ( PERSON ) . Under LAW of ORG , as in force at the relevant time ( see paragraphs CARDINAL and CARDINAL below ) , jurisdiction in all cases regarding the detention and stay of persons in psychiatric hospitals was allotted to a single - judge chamber .

Not CARDINAL and not DATE before the expiry of the period covered by the ORG ’s detention order , an application or request for the prolongation of the patient ’s detention for DATE may be made to ORG ( section CARDINAL of LAW ) .

Subsequent procedure is the same as for the making of the detention order provided for in section CARDINAL of the LAW . The LAW does not specify when the ORG has to give its ruling .

Leave of absence ( verlof ) for a specified period may be granted to a patient by the doctor in charge of the institution ( section CARDINAL ) .

The authorities of a psychiatric hospital may at any time grant the discharge ( ontslag ) of a patient on the basis of a written declaration from the aforesaid doctor to the effect that the patient shows no signs of mental illness or that his treatment in a psychiatric hospital is no longer necessary or desirable ( section CARDINAL ) .

A written request for the patient ’s discharge may be made to the hospital authorities by the patient himself , the person who applied for his detention or , in the latter ’s absence , another of the relatives by blood or marriage mentioned in LAW para . CARDINAL , in the version in force prior to LAW ) . The authorities must at once consult the doctor in charge of the institution and , if his opinion is favourable , must discharge the patient . If the doctor ’s opinion is unfavourable , the authorities must transmit the request , together with the opinion , to the public prosecutor who will , in principle , refer it to ORG for decision . The ORG ’s procedure for this purpose is the same as that applicable to the making of detention orders ( see paragraph CARDINAL above ) ; its decision is not subject to appeal ( section CARDINAL paras . CARDINAL and CARDINAL ) .

However , the public prosecutor is not obliged to forward the request to the ORG if it appears manifestly impossible to grant the request ( indien het verzoek klaarblijkelijk niet voor inwilliging vatbaar is ) , if a previous request is still pending , or if the ORG has already dismissed a similar request during the period covered by the detention order and the circumstances have not changed ( section CARDINAL para . CARDINAL ) .

The public prosecutor , being responsible for the supervision of psychiatric hospitals , has a duty to see that no one is unlawfully detained in such an institution . If the doctor in charge of the institution agrees , the public prosecutor may order the discharge of a patient whose continued confinement he considers unnecessary . If the doctor in charge does not agree , the public prosecutor may refer the matter to ORG . Should the public prosecutor have doubts about the need for the patient ’s continued confinement , he may refer the matter to the ORG ; he is obliged to do so if a public health inspector so requests ( section CARDINAL ) .

When the period covered by a detention order expires , the hospital authorities must inform the public prosecutor of the fact within DATE and , if no application has been made to the ORG to prolong the detention , he must thereupon order the patient ’s discharge unless he concludes from a reasoned declaration in writing by the doctor in charge that such a step would present a danger to public order ; in the latter event , he must himself request the ORG to prolong the detention ( section CARDINAL ) .

Any person of full age who is actually confined in a psychiatric hospital automatically loses the capacity to administer his property ( section DATE ) . As a consequence , all contracts entered into by the person concerned after his confinement are void and he can not legally transfer property or operate his bank account . The patient regains the capacity to manage his property only when he is formally discharged but not , for instance , when he is granted leave of absence .

On application by any of the persons entitled to seek an individual ’s detention , or at the request of the public prosecutor , ORG may appoint a provisional administrator ( provisioneel bewinsdvoerder ) for anyone confined in a psychiatric hospital , should this be deemed necessary or desirable ( section CARDINAL ) . In addition , the general rule laid down in LAW enables ORG to nominate a guardian ( curator ) on behalf of a person , whether in custody or not , who , by reason of mental illness or dipsomania , is no longer capable of managing his own affairs .

The overall aim of the PERSON is to improve the position of the psychiatric patient : it seeks to strengthen the procedural guarantees accompanying his detention and to allow him more freedom within the hospital .

The criterion justifying confinement in a psychiatric hospital would henceforth be that the individual , on account of his mental state , constitutes " a danger for himself , for others or for the general safety of persons and goods " . Further modifications of relevance would include the following : the competent court at all stages would be the single - judge chamber of ORG ; the provisional detention order would be valid for DATE only ; before making an order or determining a request for discharge , the court would as a general rule have to hear the person concerned ; the only occasion when the court might decide not to hear the patient would be when examining the application or request for the first detention order , that is DATE after the making of the provisional detention order ; the court would be obliged to grant legal assistance to the person concerned at his request ; there would be a right of appeal against orders authorising detention ; admission to a psychiatric hospital would not automatically bring about loss of civil capacity .

Mr. PERSON received voluntary treatment in a psychiatric hospital from DATE to CARDINAL September CARDINAL . At some time prior to this , he had apparently suffered severe brain damage in an accident . On CARDINAL DATE , he was committed to the " Zon en Schild " ( " Sun and Shield " ) psychiatric hospital at GPE on the direction of the GPE burgomaster in accordance with the emergency procedure then in force under LAW ( see paragraph CARDINAL above ) . The events prompting this decision were that the applicant had stolen documents from the local registry office , been detained by the police and then been found lying naked on a bed in a police cell . The term of the detention was extended by the public prosecutor , as was possible under paragraph CARDINAL of section CARDINAL .

On DATE , during the currency of the " emergency " confinement , Mr. PERSON ’s wife applied to ORG on a standard form for his provisional detention in the " Zon an Schild " hospital in the interests of public order as well as those of her husband .

The application was accompanied by a medical declaration , dated DATE , made out by a general medical practitioner who had examined the patient for the first time DATE . The declaration stated that the patient had been detained in DATE for " attempted murder " and had been under psychiatric treatment in DATE . It also stated that the patient was " a schizophrene , suffering from imaginary and Utopian ideas , who has for a fairly long time been destroying himself as well as his family " and that he " is unaware of his morbid condition " . The doctor concluded that " for the time being " the patient certainly could not " be left at large in society " .

On DATE , on the basis of this declaration , ORG granted the application and authorised the applicant ’s provisional detention , without first exercising its power to hear him or to seek expert advice .

On DATE , the applicant ’s wife applied to ORG for a DATE detention order in respect of her husband .

Her application was accompanied by the DATE and DATE records of the doctor in attendance as well as the declaration as to the necessity or desirability of further treatment in a psychiatric hospital .

On the basis of these documents , the single - judge chamber responsible for hearing such cases made the order on DATE .

On DATE , following an application by Mrs. PERSON and on the basis of the DATE records of the doctor in attendance and his declaration , identical to that of DATE , the single - judge chamber made an order authorising the prolongation of the detention " by DATE if necessary " as from DATE .

On DATE , the applicant was moved to the " Rijks PERSON " ( " ORG " ) at GPE . This hospital was further away from the home of his wife , whom he had previously been able to visit on several occasions .

On DATE , the public prosecutor at ‘ s - Hertogenbosch requested the renewal of the detention order for DATE , on the basis of the DATE records of the doctors who had successively treated Mr. PERSON and a declaration by the doctor in attendance at GPE , which read as follows :

" The patient is suffering from a mental illness with the following symptoms : psychopathic personality , quarrelsome and scheming nature , paranoiac tendency , untrustworthiness ; shows signs of dementia in the shape of ... emotional withdrawal ; egocentric tendency ; in need of strict supervision and special care . Continued treatment in a psychiatric hospital must be considered necessary . "

On DATE , that is to say , DATE after the previous order had lapsed , the first ordinary chamber of ORG at ‘ s - Hertogenbosch authorised detention for DATE .

On DATE , DATE and DATE , the same court made further DATE renewals of the detention order following requests by the public prosecutor and on the basis of the DATE medical records and identical declarations by the doctor in attendance , who had however changed in the course of DATE . On DATE and DATE , ORG again granted similar requests by the public prosecutor . The most recent renewal order referred to in the evidence dates from DATE .

The medical records forwarded DATE to the courts , although fairly brief , indicated that the applicant showed schizophrenic and paranoiac reactions , that he was unaware of his pathological condition and that , on several occasions , he had committed quite serious acts without appreciating their consequences . For example , the records relate how , in pursuance of some fanciful schemes , Mr. PERSON went abroad with family savings and soon became penniless , without realising either the state of neglect in which he had left his family or his own dependence on the consular authorities who had to assist and repatriate him .

In DATE , the applicant had made a first request to the hospital authorities for his discharge in accordance with LAW ( see paragraph CARDINAL above ) . The hospital authorities forwarded the request to the public prosecutor who in turn referred it to ORG . ORG , after hearing the patient at the hospital , dismissed the request .

In DATE , the hospital authorities forwarded a second request to the public prosecutor with a negative recommendation . After hearing Mr. PERSON , the public prosecutor , pursuant to paragraph CARDINAL of section CARDINAL , rejected the request without referring it to ORG for decision . The same applied to a third request , made in DATE .

On DATE , the patient made a further request for his discharge to the authorities of the " Rijks Psychiatrisch Inrichting " . On DATE , the medical director of the institution forwarded the request to the public prosecutor with his comments , which may be summarised as follows : the patient was suffering from a paranoiac psychosis which could be successfully treated by psychopharmacological methods , but during previous leaves of absence he had failed to take the drugs prescribed , with the result that he had had to be readmitted after a relapse ; steps were being taken to reintegrate the patient gradually into society and he was spending his TIME outside the hospital ; in the light of the past setbacks , there would have been little point in discharging him . On the strength of this opinion and after hearing Mr. PERSON , the public prosecutor again refused the request and refrained from referring it to ORG . He notified the applicant of his decision on CARDINAL DATE .

The applicant ’s CARDINAL requests for discharge took the form of simple statements that he was not mentally deranged , that he had been falsely accused of misdemeanours and that he did not constitute a danger for himself or to others . The public prosecutor did not refer the CARDINAL later requests to ORG because it appeared manifestly impossible to grant them .

Mr. PERSON has from time to time been given leave of absence for various periods . On CARDINAL occasions - DATE in DATE , DATE in DATE , DATE and DATE in DATE - he has been allowed to lodge outside the hospital on an experimental basis . Each time , he has had to be readmitted to hospital . Several reasons are adverted to in the evidence : he failed to follow the treatment prescribed ; his lodging was found to be in a filthy state ; and , most recently , he smashed a window in GPE where he was wandering .

Mr. PERSON automatically lost the capacity to administer his property on being detained in a psychiatric hospital ( section CARDINAL of the Act ; see paragraph CARDINAL above ) . No provisional administrator was appointed ( section CARDINAL ) and his affairs were at first managed , so it seems , by his wife . Then , on DATE , a guardian was nominated by ORG ( Article CARDINAL of LAW ) . The guardian has made no request for Mr. PERSON ’s release .


CASE OF WELCH v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed

ORG The case was referred to the ORG by ORG ( " the Commission " ) on DATE within the DATE period laid down by Article CARDINAL para . CARDINAL and LAW ( article DATE , article CARDINAL ) of the Convention . It originated in an application ( no . CARDINAL ) against GPE and GPE lodged with the Commission under LAW ( article CARDINAL ) by a NORP citizen , Mr PERSON , on DATE .

ORG In a judgment of CARDINAL DATE ( " the principal judgment " , Series A no . CARDINAL-A ) , the ORG found that the confiscation order of CARDINAL DATE made against the applicant following his conviction for drugs offences amounted to the retrospective imposition of a penalty in breach of LAW . CARDINAL ( article CARDINAL ) of the Convention ( ibid . , pp . CARDINAL , paras . CARDINAL - CARDINAL , and point CARDINAL of the operative provisions ) .

The ORG also held that the respondent ORG was to pay the applicant , within DATE , £ MONEY , less the sums paid by way of legal aid , in respect of costs and expenses ( ibid . , p. CARDINAL , paras . CARDINAL , and point CARDINAL of the operative provisions ) .

ORG As the question of the application of LAW ) was not ready for decision in respect of pecuniary and non - pecuniary damage , the ORG reserved it and invited the ORG and the applicant to submit in writing , within DATE , their observations on the matter and , in particular , to notify ORG of any agreement they might reach ( ibid . , p. CARDINAL , para . CARDINAL , CARDINAL of the operative provisions ) .

ORG The negotiations for an agreement having proved unsuccessful , the Registrar received memorials from the Government and the applicant on CARDINAL and CARDINAL DATE respectively concerning the question of damage .

ORG In accordance with an order of the President of CARDINAL DATE , comments on the claims made by the applicant were submitted by the ORG on DATE . The applicant replied to these submissions on DATE . On DATE a further comment was received from the Government .

ORG On DATE the Secretary to ORG informed the Registrar that the ORG had no observations to make as regards the above submissions .

Mr PERSON , who was unable to take further part in the case , was subsequently replaced by PERSON ( Rule CARDINAL para . CARDINAL of Rules of Court A ) .


The applicant was born in DATE and lives in GPE .

Following her dismissal from work on DATE the applicant brought a civil action in ORG ( PERSON ) on DATE against her former employer seeking her reinstatement and the salary arrears . Since the entry into force of the LAW in respect of GPE on DATE , the court held CARDINAL hearings and obtained an expert opinion . The expert opinion received by the court on DATE could not be served on the applicant because she had changed her address without notifying the court .

On DATE the applicant lodged a constitutional complaint under LAW ( CARDINAL ) of LAW . On DATE ORG ( Ustavni sud PERSON ) accepted the applicant 's complaint , finding a violation of her constitutional right to a hearing within a reasonable time . It ordered ORG to give a decision in the applicant 's case within DATE following its publication in ORG and awarded her compensation in the amount of CARDINAL NORP kunas ( HRK ) . The decision was published on DATE .

NORP In its judgment of CARDINAL DATE ORG dismissed the applicant 's claim as ill - founded . That judgement was served on the applicant on DATE . Following an appeal , on CARDINAL DATE ORG ( Županijski sud u GPE ) quashed the first - instance judgment and remitted the case .

In the fresh proceedings before ORG a hearing was held on DATE . The hearing scheduled for DATE was adjourned because the summons sent to the applicant had been returned . At the next hearing held on DATE the applicant extended her claim to another defendant . The proceedings are still pending .

DATE ( Ustav Republike Hrvatske , ORG no . CARDINAL of DATE ) reads as follows :

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

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant 's rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Public hearing)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Stanislav Shevchuk

The applicant is a vice - president of ORG ) , a non - governmental youth organisation , and a member of ORG .

On DATE the applicant , acting on behalf of ORG , notified the GPE Mayor and the Head of LOC of the organisation ’s intention to hold a peaceful assembly ( picket ) in front of the ORG building on DATE from TIME The purpose of the assembly was declared as the demand for completion of the construction of the residential buildings contracted by ORG .

NORP In reply , by a letter of the same date , ORG informed the applicant that holding a picket within such short notice was liable to be considered unlawful . The letter indicated that , pursuant to LAW of the GPE of DATE on the procedure for organisation and holding of meetings , rallies , street marches and demonstrations in the GPE ( the DATE Decree – see paragraph CARDINAL below ) , notification had to be given no later than DATE prior to the meeting in question . It further indicated that ORG , in its decision of DATE ( see paragraph CARDINAL below ) , had held that the organisers of peaceful assemblies must inform the authorities in advance of their intention to hold a meeting . It also mentioned that no implementing law in respect of the right to peaceful assembly had yet been enacted in GPE and that the CARDINAL Decree was still in force . The applicant was further informed that untimely notification about the picket could be considered as a violation of the procedure for holding meetings under paragraph CARDINAL of the DATE Decree and the person responsible held administratively liable under LAW ( the ORG ) .

The picket took place as planned TIME on DATE . According to the applicant , it was peaceful and only a few people took part in it . The police report of DATE noted that CARDINAL persons had taken part in the picket and that there had been no violation of public order .

On DATE a police officer of LOC drew up an administrative offence report , in the applicant ’s presence , indicating that on DATE the applicant had organised and held a picket in violation of LAW ORG and the decision of ORG of DATE . The applicant signed the report , adding a note to the effect that he considered his actions lawful . The report was referred to a court .

On CARDINAL DATE the GPE ORG of Odessa ( “ the ORG ” ) examined the applicant ’s case . According to the record of the hearing , provided by the ORG , the questioning took place QUANTITY After that the judge retired to the deliberations chamber . At TIME the judge publicly pronounced judgment and the hearing closed at TIME According to the Government , the full text of the judgment was pronounced publicly and TIME the court clerk handed a hard copy of the judgment to the applicant ’s representative . According to the applicant , the judgment was not pronounced in public but given to his representative in writing TIME after the end of the hearing .

NORP In that judgment ORG found that the applicant had violated public order by failing to give the ORG sufficient advance notification of the picket he had organised . The court found the applicant guilty of having violated the procedure for organising and holding meetings and demonstrations and fined him CARDINAL NORP hryvnias ( ORG ) ( MONEY ( ORG ) ) . The court held , in particular , that the applicant was in breach of LAW ORG because he had not complied with the DATE notification requirement . The court based its findings on DATE , which provided that an application to hold an assembly had to be lodged with the relevant authority DATE in advance . The court further referred to the decision of ORG and noted that the exact time - limits for notification were to be regulated by law . It further indicated that LAW was valid in GPE under ORG on temporary application of certain legislative acts of GPE ( see paragraph CARDINAL below ) . The court also pointed to the fact that the applicant had been informed by the ORG that the notification he had given was liable to be regarded as contrary to the requirements of the legislation and had been warned that he could incur administrative liability .

On DATE the applicant appealed . He argued that LAW , on which the first - instance court had based in its decision , was invalid and contrary to the LAW . In particular , he noted that the DATE Decree provided that persons wishing to hold a peaceful assembly had to seek permission , whereas the LAW provided only that the authorities had to be notified of an intention to hold such an assembly . Furthermore , LAW provided that human rights guarantees had to be regulated exclusively by laws and LAW provided that restrictions on the right to peaceful assembly could be established only by law , whereas the DATE Decree was not a law of GPE . He further noted that at the time of the picket there had been no judicial decision restricting the above - mentioned picket as required by LAW . The applicant also contended that his punishment violated LAW and was not necessary as the picket had been peaceful and had not violated public order . Lastly , he complained that the decision in question had not been pronounced publicly which was contrary to LAW ( see paragraph CARDINAL below ) and to LAW .

On DATE the ORG , ruling in the presence of the applicant and his representative , upheld the decision of the first - instance court . Its ruling contained a summary of the facts of the case , outlined the applicant ’s arguments and included an analysis of the pertinent legislation in line with that of the first - instance court . As to the applicant ’s argument that it was unnecessary to punish him , the court pointed out that the applicant had been punished not for breaching the procedure for holding an assembly but for violating the established procedure for organising it . The court did not however address the applicant ’s complaint that the first - instance court ’s judgment had not been pronounced publicly .

The applicant has not paid the fine .

The relevant provisions of the LAW read , in so far as relevant , as follows :

“ Human and ORG rights and freedoms affirmed by LAW are not exhaustive .

Constitutional rights and freedoms are guaranteed and shall not be abolished .

The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force . ”

“ ORG have the right to assemble peacefully without arms and to hold meetings , rallies , marches and demonstrations , after notifying the executive authorities and bodies of local self - government beforehand .

Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes , protecting the health of the population , or protecting the rights and freedoms of other persons .

“ The following are determined exclusively by the laws of GPE :

( CARDINAL ) NORP human and ORG rights and freedoms ; the guarantees of these rights and freedoms ; the main duties of the citizen ... ”

“ CARDINAL . Laws and other normative acts enacted prior to the entry into force of this LAW shall apply in so far as they do not conflict with LAW ... ”

The relevant provisions of the Code read , in so far as relevant , as follows :

“ A breach of the procedure for organising and holding meetings , rallies , street marches and demonstrations shall be punishable by a reprimand or by a fine of DATE times the minimum DATE wage .

The same actions committed within DATE of the application of administrative penalties or by the organiser of the meeting , rally , street procession or demonstration shall be punishable by a fine of QUANTITY times the minimum DATE wage , or by correctional labour of DATE , with a deduction of PERCENT of earnings ; or by administrative detention of DATE . ”

Article CARDINAL

Pronouncement and service of decision regarding an administrative offence

“ A decision shall be pronounced immediately after the examination of the case . Within DATE a copy of the decision shall be given or sent to the person concerned ... ”

The Decree lays down the procedure for seeking and granting permission to organise and hold meetings , rallies , street marches and demonstrations . The PERSON provides inter alia :

“ The LAW of the GPE , according to the interests of the people and for strengthening and development of the socialist system , guarantees to the citizens of the GPE the freedom of meetings , rallies , street marches and demonstrations . The exercise of these political freedoms shall be ensured to the working people and their organizations by providing them with public buildings , streets , squares and other places ...

An application to hold a meeting , rally , street procession or demonstration shall be submitted to the executive committee of the appropriate local NORP of people ’s deputies ...

An application to hold a meeting , rally , street procession or demonstration shall be submitted in writing no later than DATE before the planned date of the event in question ...

NORP The executive committee of the NORP of people ’s deputies shall examine the application and notify the representatives ( organisers ) of its decision DATE prior to the date of the event mentioned in the application ...

NORP The executive committee of the NORP of people ’s deputies shall ban a meeting , rally , street procession or demonstration if the goal of the event in question is contrary to LAW GPE , ORG or of the autonomous republics or poses a threat to the public order and safety of citizens . ”

The resolution provides in particular :

“ ... before the relevant legislation of GPE is enacted , the legislation of the GPE is applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of GPE and in so far as they do not contravene the LAW and legislation of GPE . ”

NORP In its decision ORG held inter alia :

“ CARDINAL . ... ORG of GPE applied to ORG for an official interpretation of the provisions of LAW regarding timely notification to executive authorities or bodies of local self - government of planned meetings , rallies , marches or demonstrations .

In this constitutional application it is noted that , under LAW , citizens have the right to assemble peacefully without arms and to hold meetings , rallies , marches or demonstrations following prior notification to the executive authorities or bodies of local self - government . However , it is stressed that the current legislation of GPE does not provide for a specific time - limit within which the executive authorities or bodies of local self - government are to be notified about such actions ...

... ORG holds as follows :

The provisions of the first part of DATE GPE on the timely notification to the executive authorities or bodies of local self - government about planned meetings , rallies , marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above - mentioned authorities in advance , that is , within a reasonable time prior to the date of the planned event . These time - limits should not restrict the right of citizens under LAW , but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self - government with an opportunity to take measures to ensure that citizens may freely hold meetings , rallies , marches and demonstrations and to protect public order and the rights and freedoms of others .

Specifying the exact deadlines for timely notification with regard to the particularities of [ different ] forms of peaceful assembly , the number of participants , the venue , at what time the event is to be held , and so on , is a matter for legislative regulation ... ”

On DATE the Plenary of ORG by its Decree No . CARDINAL decided to send this note for information to the judges of lower administrative courts . The note mentioned , inter alia , as follows :

“ ... The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings , rallies , street marches and demonstrations laid down by LAW of the GPE of DATE No . CARDINAL-XI on the procedure for organisation and holding of meetings , rallies , street marches and demonstrations in the GPE . This approach is incorrect .

Since the norms of this Decree establish the procedure for authorising ( registering ) peaceful assembly and empower the authorities and bodies of local self - governments to ban such events , whereas the norms of the LAW of GPE provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering , the above - mentioned legal act should not be applied by courts when deciding such cases ... ”

In a judgment of LOC of Dnipropetrovs’k of DATE in the case of PERSON ORG of the Dnipropetrovs’k ORG concerning the adoption of regulations on holding mass events in the city of Dnipropetrovs’k , the court held , inter alia , that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by NORP legislation and therefore the ORG had no grounds for adopting the impugned regulation , which would interfere with the rights of citizens .

In another case ORG , in a judgment of CARDINAL DATE , restricted the right of several NGOs and private persons to hold a demonstration on account , in particular , of their failure to notify ORG of their intention DATE in advance . The court referred to LAW . The participants appealed against that judgment . On DATE ORG quashed the judgment of the first - instance court . In its decision ORG noted that the CARDINAL Decree conflicted with the LAW as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event , whereas Article CARDINAL of the LAW provided that the authorities should be notified that a demonstration was being planned , and empowered only the judicial authorities to place restrictions on the organisation thereof . It also noted that in its decision of DATE ( see paragraph CARDINAL above ) ORG had not referred to LAW as a normative act which should apply in GPE to the legal relations under consideration . The court also noted that the file contained no documents proving that notification about the demonstration DATE in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others . It concluded that the judgment of the first - instance court was incompatible with Article CARDINAL of the LAW .

NORP In another case ORG , in a decision of DATE , quashed a judgment of ORG , which had restricted the freedom of peaceful assembly in respect of a number of political and non - governmental organisations upon an application by ORG . In its decision ORG noted that , in deciding the case , the first - instance court had had regard to the provisions of the CARDINAL Decree , whereas since DATE the question of holding peaceful gatherings had been regulated by LAW . The court further stated that LAW conflicted with the LAW as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non - existent country ( “ the GPE ” ) , regulated relations between the citizens of the GPE and the executive committees of the NORP of ORG , and considered demonstrations on the basis of their compatibility with LAW GPE , the constitutions of the union and the autonomous GPE , that is , non - existent constitutions of non - existent subjects . The court also noted that under the NORP LAW human rights and freedoms , and the relevant safeguards , could be defined only by the laws of GPE .

Other relevant domestic law and practice and the relevant international documents can be found in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE , DATE and DATE to DATE , DATE ) .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants , Mr PERSON ( “ the first applicant ” ) and PERSON Gordana Tonić ( “ the second applicant ” ) , are NORP nationals who were born in DATE and live in GPE . They were represented before the Court by Mrs Lj . GPE , an advocate practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the Act on Compensation for , and ORG of , Property Taken under the NORP communist regime ( ORG o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine – “ the LAW ” ) entered into force . It enabled the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants or a spouse ) , to obtain under certain conditions either restitution of or compensation for property appropriated during the communist regime . They were required to submit their requests within DATE from the LAW ’s entry into force . Requests submitted after that date were to be declared inadmissible .

Pursuant to section CARDINAL of LAW , nationalised flats in respect of which third persons had acquired specially protected tenancies ( stanarsko pravo ) were not to be restored to their former owners . The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) . At the same time , the former owners were entitled to financial compensation in respect of the flats .

On the other hand , pursuant to section CARDINAL of LAW , confiscated flats were to be awarded to their former owners . Under section CARDINAL of ORG ( Zakon o ORG za naknadu oduzete imovine ) , the tenant had the right to purchase a confiscated flat only if no request for its restitution had been submitted or if such request had been dismissed in a final decision .

The applicants were holders of specially protected tenancies of flats in GPE , measuring QUANTITY ( the first applicant ’s flat ) and QUANTITY ( the second applicant ’s flat ) . Both flats are located in the same building , which in DATE was confiscated from its owner PERSON by the communist authorities .

On DATE PERSON ’s daughter PERSON instituted administrative proceedings before ORG of GPE ( Grad GPE , PERSON ured za imovinskopravne poslove ) by submitting a request for restitution of ORG confiscated property , including the above - mentioned building .

On DATE PERSON died and her testamentary heirs GPE .- V. and ORG took over the proceedings .

On DATE the ORG delivered a decision awarding ownership of the plot of land on which the building at issue was built to ORG .- V. and ORG It stated , however , that it would decide on the restitution of the building itself at DATE .

On DATE the ORG issued a decision awarding ownership of the entire building to GPE .- V. and ORG and declaring that the applicants had acquired the status of protected lessees ( zaštićeni najmoprimci ) under LAW of LAW .

On DATE ORG ( ORG pravosuđa ) , as the second - instance administrative authority , dismissed an appeal by the applicants and upheld the first - instance decision of CARDINAL DATE .

The applicants then brought an action in ORG ( ORG ) challenging the ORG ’s decision . On DATE ORG dismissed the applicants’ action . The first - instance decision of CARDINAL DATE thereby became final .

The applicants then lodged a constitutional complaint against the judgment of ORG . It would appear that the proceedings are currently pending before ORG ( Ustavni sud PERSON ) .

Meanwhile , in DATE the applicants made requests to GPE to purchase their respective flats , under the Specially Protected Tenancies ( Sale to LAW .

On DATE the second applicant asked ORG of GPE whether a request for restitution of the building in which her ( and the first applicant ’s ) flat was located had been submitted . In the letter of CARDINAL DATE the ORG replied that no such request had been submitted .

On DATE GPE , as the provider of the flat , concluded a contract of sale with the first applicant whereby it sold him the flat in respect of which he had a specially protected tenancy for CARDINAL NORP kunas ( HRK ) . On DATE GPE concluded a similar contract with the second applicant , selling her the flat in respect of which she had a specially protected tenancy for HRK CARDINAL . Shortly afterwards the applicants were recorded as the owners of their respective flats in the land register .

On DATE ORG - V. and ORG brought a civil action in ORG ( PERSON ) against the applicants , several other individuals who had purchased flats located in the same building and GPE . They asked the court to declare the contracts of sale null and void as being contrary to peremptory rules . They argued that under LAW , confiscated flats were not to be sold to their tenants but awarded to their former owners . Only if the former owner ’s request for restitution had been dismissed or declared inadmissible were the tenants allowed to purchase such flats . The plaintiffs explained that they had taken over the administrative proceedings instituted on DATE before ORG of GPE by PERSON , who had submitted a request for restitution of the entire building in which the flats in question were located , and that this request had not been dismissed or declared inadmissible by the time the impugned contracts of sale had been concluded . Therefore , GPE had not been allowed to sell those flats as long as the request for their restitution had been pending .

On DATE the court declared the impugned contracts of sale null and void ab initio , endorsing the arguments adduced by the plaintiffs . It found that the contracts were in breach of peremptory rules and therefore null and void from their inception . The respondents appealed .

On DATE ORG ( Županijski sud u GPE ) dismissed an appeal by the respondents and upheld the first - instance judgment .

The applicants then lodged constitutional complaints , alleging a violation of their constitutional right to equality before the law .

On DATE ORG dismissed the applicants’ constitutional complaints .

The LAW on the Prohibition of the Transfer of Rights to Dispose of and Use Certain Items of Immovable Property in ORG to other Users or into the Ownership of other ORG ( Zakon o zabrani prijenosa prava raspolaganja i korištenja određenih nekretnina u društvenom vlasništvu na druge korisnike odnosno u vlasništvo drugih fizičkih i pravnih osoba , ORG nos . DATE , CARDINAL/CARDINAL , CARDINAL and CARDINAL/CARDINAL – “ LAW ” ) , which entered into force on DATE , banned any transfer of property that had been acquired by means of nationalisation or confiscation .

Paragraph CARDINAL of section CARDINAL provided that the prohibition applied to any property appropriated on the basis of legislation listed in that paragraph .

Paragraph CARDINAL of section CARDINAL provided that the prohibition applied to any property appropriated by means of confiscation irrespective of the legislation on which the confiscation measure had been based .

Section CARDINAL(CARDINAL ) provided that any contract concluded in contravention of the provisions of LAW was null and void .

Section CARDINAL provided that the prohibition was to apply until the introduction of denationalisation legislation .

The Act on Compensation for , and Restitution of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , PERSON ( amendments ) and DATE ( corrigendum ) DATE “ the DATE LAW ” ) , which entered into force on DATE , enables the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants and a spouse ) , to seek under certain conditions either restitution of or compensation for appropriated property . The relevant provisions of LAW read as follows :

I. BASIC PROVISIONS

( CARDINAL ) Restitution of property appropriated from former owners within the meaning of this LAW shall , in principle , take the form of payment of compensation in money or securities ( stocks or shares , or bonds ) , or , exceptionally , restitution in kind .

( CARDINAL ) Ownership of confiscated property shall be awarded to its former owner in accordance with this LAW , and if this is impracticable ... the former owner shall have the right to compensation in the form of money or securities . ”

IV . SUBJECT OF RESTITUTION

( a ) RESTITUTION OF APPROPRIATED FLATS

“ ( CARDINAL ) Unless they were appropriated by means of confiscation , the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners .

( CARDINAL ) The former owner shall have the right to compensation and the tenant [ i.e. the holder of a specially protected tenancy ] shall have the right to purchase the flat . ”

( b ) RESTITUTION OF CONFISCATED FLATS

“ Ownership of a flat appropriated [ by means of confiscation ] shall be awarded to its former owner . ”

“ Where the flat is awarded to its former owner , the tenants [ i.e. the holders of a specially protected tenancy of the flat ] shall acquire the status of [ protected ] lessees under the provisions of [ the Lease of Flats Act ] . ”

“ ( CARDINAL ) The [ former ] owner and the lessee are bound to conclude a lease contract [ with protected rent ] within DATE from DATE the decision awarding ownership [ of the flat to the former owner ] became final .

( CARDINAL ) If the [ former ] owner refuses to conclude the lease contract , the tenant may enforce his or her right by bringing an action in the competent court within DATE from DATE the [ former ] owner of the flat refused to conclude the lease contract . The court ’s decision shall entirely replace the lease contract . ”

“ In the case of further disposal in rem of the flat , the lessee shall have the right of pre - emption . ”

VI . NORP EXCEPTIONS FROM RESTITUTION IN KIND OF NATIONALISED , CONFISCATED OR OTHERWISE APPROPRIATED PROPERTY

“ Unless otherwise provided by this LAW , ownership and possession of property of which third persons have acquired ownership on the basis of a valid legal title , or of property which has been handed over into their possession on the basis of a valid legal title for acquiring ownership , shall not be returned to the former owner . ”

In its judgment no . PERSON CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG held that the time - limit specified in section CARDINAL(CARDINAL ) of LAW was not preclusive and that therefore by failing to observe it , a former holder of a specially protected tenancy did not lose his right to conclude a lease contract with protected rent .

ORG ( Zakon o ORG za naknadu oduzete imovine , ORG nos . CARDINAL , FAC and CARDINAL ) , which entered into force on DATE , reads as follows in so far as relevant :

“ The tenants ( lessees ) of confiscated flats in respect of which no requests for restitution were submitted within the time - limit prescribed by [ LAW ] , or such requests were dismissed by a final decision , shall acquire the right to purchase their flats under the provisions of that LAW . ”

ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL ) , which entered into force on DATE , entitled the holder of a specially protected tenancy of a socially owned flat to purchase it from the provider of the flat under favourable conditions .

ORG o najmu stanova , ORG no . CARDINAL/CARDINAL of DATE ) , which entered into force on DATE , regulates the legal relationship between the landlord and the lessee with respect to the lease of flats . It recognises a special category of lessees ( “ protected lessees ” DATE najmoprimci ) , namely those who were previously holders of specially protected tenancies on privately owned flats or those who did not purchase their flats under ORG . That category is subject to a number of protections , for instance , the obligation of landlords to contract a lease for an unlimited period of time ; payment of protected rent ( zaštićena najamnina ) , the amount of which is to be prescribed by the Government ; and limited list of grounds for termination of the lease .

Pursuant to the LAW , a landlord may terminate the lease of a protected lessee in the following cases :

if the lessee does not pay the rent or charges ;

if the lessee sublets the flat or part of it without permission from the landlord ;

if the lessee or other tenants in the flat disturb other tenants in the building ;

if another person , not named in the lease contract , lives in the flat for longer than DATE without permission from the landlord , except where that person is a spouse , child or parent of the lessee or of the other legal tenants in the flat , or a dependant of the lessee or a person on whom the lessee is dependent ;

if the lessee or other legal tenants do not use the flat as living accommodation but for other purposes ;

if the landlord does not have another flat and is entitled to social welfare benefits or is DATE .

Under section CARDINAL(CARDINAL ) of the LAW , the landlord may also terminate the lease of a protected lessee if the landlord intends to move into the flat himself or install his children , parents or dependants in it .

Section CARDINAL provided that by the LAW ’s entry into force , specially protected tenancies were to be abolished and the holders of such tenancies were to become protected lessees .

Section ORG ) provided that the lessee had to submit a request for the conclusion of a lease contract with protected rent to the landlord within DATE from the LAW ’s entry into force , or from DATE on which the decision determining the right of that person to use the flat became final .

In its decision no . U-CARDINAL/CARDINAL of DATE ORG held that the time - limit set forth in section ORG ) of ORG was not preclusive and that therefore by failing to observe it , a former holder of a specially protected tenancy did not lose her right to conclude a lease contract with protected rent .

The relevant part of LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG no . CARDINAL/CARDINAL with subsequent amendments DATE “ the DATE LAW ” ) provided as follows :

“ ( CARDINAL ) A contract that is contrary to the LAW , peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise .

( CARDINAL ) If the conclusion of a contract is prohibited only to CARDINAL party , the contract shall remain valid , unless the law in a particular case provides otherwise , and the party that has breached the statutory prohibition shall bear the relevant consequences . ”

“ Where a contract is null and void , each contracting party is bound to return to the other everything it has received on the basis of such a contract . If that is not possible , or if the nature of the obligation performed renders restitution impracticable , an appropriate [ amount of ] monetary compensation shall be given , according to the prices at the moment a court decision is passed , unless the law provides otherwise . ”

“ ( CARDINAL ) A contract that is null and void shall not become valid if the cause of nullity subsequently disappears .

( CARDINAL ) However , if a prohibition was of minor importance , and the contract has been performed , the issue of nullity may not be raised . ”

“ A contracting party responsible for the conclusion of a contract that is null and void shall be liable in damages to the other contracting party for the damage sustained on account of the nullity of the contract , if the latter did not know or , according to the circumstances , should not have known of the existence of the cause of nullity . ”

“ ( CARDINAL ) The court shall examine the issue of nullity of its own motion [ ex officio ] and any interested party may raise it .

( CARDINAL ) A state attorney shall also have the right to plead nullity . ”

“ The right to plead nullity shall not lapse . ”

On DATE the new LAW ( Zakon o obveznim odnosima , ORG , ORG . CARDINAL/CARDINAL and TIME “ the DATE LAW ” ) entered into force . Its sections CARDINAL , CARDINAL and CARDINAL to CARDINAL contain the same provisions as sections CARDINAL , ORG and CARDINAL to CARDINAL of the DATE LAW .


Violation of Art. 6-1;Violation of Art. 6-1 and 6-3-d

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

On DATE he was arrested on suspicion of having committed several robberies .

On DATE the case against him and CARDINAL other accused was submitted for trial to LOC .

On DATE ORG convicted the applicant of theft and several counts of aggravated robbery . On DATE ORG quashed his conviction on appeal and remitted the case for a fresh examination .

A new conviction was handed down on DATE . It was upheld on appeal on DATE but was set aside on DATE by the ORG of ORG by way of supervisory review proceedings . The case was then sent for a new trial to ORG of LOC .

On DATE ORG , composed of judge S. , as president , and CARDINAL lay assessors , held the first hearing . The applicant and CARDINAL of his co - defendants appeared before the court . At the beginning of the hearing , it was found that all victims and certain witnesses had failed to appear . Messrs. P. and NORP , victims in the case , did not appear because they lived far from GPE . The summons which had been sent to Mr GPE . , a victim , had not been delivered as he had moved house . Mr PERSON , also a victim in the case , was on a business trip and could not attend . PERSON , the fifth victim , and the witnesses defaulted for various reasons . The prosecutor did not appear either . Though all defendants protested against the continuation of the hearing in the absence of the prosecutor , the victims and the witnesses , the court decided to proceed with the trial . The presiding judge read out the bill of indictment and questioned the defendants who all protested their innocence .

On DATE , CARDINAL DATE , the fifth victim and several witnesses appeared in court . The prosecutor was not present . The presiding judge again questioned the defendants , examined the victim and witnesses and studied documents in the file . The applicant asked the court to summon and examine attesting witnesses who had been present when the victims , in particular Messrs. GPE . and PERSON , had identified him on a photograph . The court refused . It then decided to read out the written depositions to the investigative authorities by defaulting witnesses and by Messrs. NORP , GPE . , PERSON and P. The last CARDINAL were direct eyewitnesses of the applicant 's actions . The defendants and counsel unsuccessfully objected to doing so and insisted that all the victims and witnesses should be examined in open court . After the written depositions had been read out , the applicant expressed doubts as to the credibility of some of them .

NORP On DATE the trial court continued reading out of the depositions by the defaulting witnesses and then proceeded to hear the final pleadings for the defence . The defendants and counsel objected to the concluding of the judicial inquiry but their objection was dismissed .

By a judgment of DATE , ORG convicted the applicant of theft and several counts of aggravated robbery and sentenced him to DATE imprisonment in a high - security colony . The judgment was based to a significant extent on the written depositions by victims and the report on the identification of the applicant from a photograph by Messrs. GPE . and PERSON The court found that the statements made by the CARDINAL defaulted victims during the pre - trial investigation “ confirmed the guilt of all the defendants ” . As to the testimonies by the fifth victim and by the appeared witnesses , they concerned circumstances unrelated to the authorship of the incriminated offences , the defendants ' alibi and their alleged ill - treatment by the police .

The applicant lodged an appeal . He submitted in particular that the trial court in the prosecutor 's absence had assumed the prosecutorial function . He also complained that the court had not examined the victims and witnesses whose testimonies had been of significant importance for the determination of his case .

On DATE ORG held an open hearing . The prosecutor did not participate . ORG dismissed the applicant 's appeal and upheld his conviction and sentence in their entirety . It endorsed in a summary fashion the findings of ORG and made no comment in respect of the applicant 's complaints about the prosecutor 's absence from the trial and the alleged failure of the trial court to examine the key witnesses .

During the preparation of a case for an examination a judge had to decide whether a state prosecutor should participate in the trial . If the judge found that the prosecutor 's participation was necessary , his decision was binding on the prosecutor . If the latter informed the court , when submitting the case for trial , of his wish to sustain the charges in the court , the judge could not hold otherwise ( Article CARDINAL ) .

If the prosecutor failed to appear , the court , after having heard participants present at the hearing , decided whether it was possible to examine the case in his absence or whether the hearing should be adjourned ( Articles CARDINAL and CARDINAL ) .

At the trial , the prosecutor accused a defendant on behalf of the ORG , participated in the examination of evidence and gave conclusions and submissions , in particular in respect of law and punishment to be applied to the defendant . If the prosecutor was convinced that materials of the judicial investigation no longer supported charges levelled against the defendant , he had to drop the charges ( Article CARDINAL ) .

The state prosecutor 's participation is mandatory in all trials in public prosecution cases ( Article CARDINAL ) .

NORP In its decision of DATE ORG held that a criminal trial was based on the principles of adversarial proceedings and equality of the parties , which meant first of all strict separation of the judicial function and the prosecution function which were to be carried out by different actors . The adversarial nature of criminal trials implied that the institution of criminal prosecution , the formulation of a charge and its sustaining before the court , were insured by competent bodies and officials , as well as victims . Imposing on the court the obligation to substitute , in CARDINAL or another form , for those bodies and persons ' prosecution activity , was incompatible with principle of the separation of powers and with the role of the court as an administrator of justice .

Reading out of earlier statements made by a victim , or a witness , was permitted if they did not appear before the court owing to reasons that made their attendance impossible ( Articles CARDINAL and CARDINAL ) .

Reading out of earlier statements made by a victim , or a witness , is permitted if the parties give their consent to it and if ( CARDINAL ) there are substantial discrepancies between the earlier statement and the later statement before the court or ( CARDINAL ) the victim or the witness has not appeared before the court ( LAW ) .

The court may , without seeking the consent of the parties , read out earlier statements by the defaulted victim , or the witness , in case of ( CARDINAL ) the death , ( CARDINAL ) the serious illness , ( CARDINAL ) the refusal to appear by the victim or the witness if they are citizens of other GPE or ( CARDINAL ) the natural disaster or other force majeure circumstances ( LAW ) .

The Convention on Legal Assistance and Legal Relations in Civil , Family and Criminal Matters ( signed in GPE on DATE and amended on DATE , “ the DATE Minsk Convention ” ) , to which both GPE and GPE are parties , provides that a witness and a victim who are subjects of CARDINAL ORG can be summoned , for the purpose of their examination , by a “ body of justice ” of ORG . The witness and the victim are entitled to reimbursement of travelling , and certain other , costs and expenses incurred in connection with their participation in the criminal proceedings ( Section CARDINAL ) .

If a witness or a victim did not obey a summons to appear without a valid reason , they could be brought to the courtroom under escort . A witness could be fined , in addition ( Articles DATE and DATE ) .

A witness and a victim were entitled to reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings ( Article CARDINAL ) .

ORG If a witness or a victim does not obey a summons to appear without a valid reason , they may be brought to a courtroom under escort ( Article CARDINAL ) .

A witness and a victim are entitled to reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings ( Article CARDINAL ) .

A witness , or a victim , who live abroad , with their consent , may be summoned for the participation in criminal proceedings conducted in the territory of GPE ( Article CARDINAL § CARDINAL ) .

Following the examination of an appeal , the appeal court may decide ( CARDINAL ) to dismiss the appeal and uphold the judgment , ( CARDINAL ) to quash the judgment and terminate the criminal proceedings , ( CARDINAL ) to quash the judgment and remit the case for a new trial , or ( CARDINAL ) to amend the judgment ( Article CARDINAL of LAW ) .

A judgment may be quashed or amended on appeal if there is an inconsistency between conclusions reached by the trial court in the judgment and facts established by that court . Violation of procedural law and wrongful application of criminal law , as well as unfairness of the judgment , also constitute grounds for reversing or changing the judgment ( Article CARDINAL of the Code ) .


Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1

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

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

CARDINAL .

NORP In DATE the applicant joined ORG ( “ TA ” ) as a pay and accounts clerk , a military post , carrying out duties such as filing , photocopying and maintaining a stationery store . In DATE the applicant was informed that he was to be made redundant , following organisational changes in the ORG pursuant to a process of civilianisation . He was subsequently informed that the clerical post which he had occupied was to become a civilian post and was to be converted to that of a technical store - man . The applicant applied for this new post , but was informed in DATE that he could take it only if he undertook a training course , but that all relevant training courses had been cancelled . He also applied for a number of other clerical posts within the ORG but was refused for them all .

The applicant was therefore made redundant . His discharge from the ORG , dated DATE , was formally made , incorrectly , on the basis that his services were no longer required . The applicant later discovered that his former duties were being carried out by an untrained civilian , while the technical store - man post remained vacant .

On DATE the applicant complained about his redundancy to ORG , but his claim was rejected because ORG did not have jurisdiction over matters involving military personnel .

On DATE the applicant claimed redress in respect of his redundancy from his Commanding Officer , under sections CARDINAL and CARDINAL of the Army Act DATE .

On DATE the Commanding Officer issued a brief in which he concluded that the applicant had a weak case for redress . He further requested ORG to determine whether the applicant was subject to military law . The applicant 's solicitors , on DATE , submitted observations in reply . The matter was then placed before ORG .

NORP In DATE , the applicant applied for judicial review in respect of ORG failure to determine the case within a reasonable time . His application was granted by ORG on DATE and ORG was ordered to deal with the case expeditiously .

ORG , without holding an oral hearing or directing a ORG to be convened , issued its decision on DATE , refusing the applicant 's claim for redress .

The applicant applied for judicial review of the decision not to hold an oral hearing or convene a ORG .

On DATE , while the judicial review application was pending , ORG directed that a ORG should be convened . ORG was convened by an order dated DATE . It sat in DATE , considered oral and documentary evidence and issued a summary of its factual findings on DATE . It found in the applicant 's favour as regards his argument that he ought to have been , but was not , given priority before CARDINAL selection boards . It was anticipated that the level of compensation would be fixed by negotiation between ORG and the applicant .

ORG met to reach a determination on DATE . It issued its decision on DATE , ordering that the applicant be offered compensation in respect of the failure to offer him alternative employment within the ORG . On DATE , an award of compensation was notified to the applicant but he disputed the calculation of the compensation .

In DATE a further offer of settlement was made to the applicant , which he rejected .

On DATE ORG made a further compensation offer of GBP CARDINAL,CARDINAL.CARDINAL . The sum was made up of CARDINAL parts : loss of salary ( minus the applicant 's actual earnings during the relevant period ) ; a redundancy payment estimated on the basis that the applicant would have had DATE service ; and loss of pension rights , again based on a DATE period . The applicant rejected the offer on the basis that it did not include costs or a sum to compensate him for the stress he had suffered .

The applicant , acting as a litigant in person , subsequently applied for judicial review of the decision , claiming that the award had not been properly assessed . Permission was granted on DATE . The applicant advanced CARDINAL criticisms : first , that the award was based on the assumption that he would have been discharged from the army DATE after the date on which he was actually discharged ; second , that the salary base used for the calculation of all CARDINAL elements of the award was taken to be GBP CARDINAL per year gross . The latter criticism was only formally advanced at the hearing itself .

On DATE ORG rejected the applicant 's complaint regarding the DATE cut - off date . However , in light of evidence produced to the court regarding the level of the applicant 's salary at the time of his redundancy , the court accepted ORG undertaking to review the level of the annual salary used in its calculation and , if appropriate , to reassess the award of compensation within DATE . Although formally the applicant was the unsuccessful party in the litigation , and as a result would normally be required to pay the costs of ORG , the court ordered the applicant to pay CARDINAL of ORG costs partly on the ground that “ the history of this matter displays an inordinate period of delay ” .

On DATE , a revised offer of GBP CARDINAL,CARDINAL.CARDINAL was made to the applicant . The offer was rejected .

The applicant again applied for judicial review on DATE seeking an order requiring ORG to investigate and take steps towards redressing his complaint within a prescribed time - frame and damages for the losses suffered by him as a result of ORG failure to perform its duties . There was a hearing on DATE but no order was made .

On DATE , a further offer was made to the applicant in the sum of GBP CARDINAL .

On DATE the applicant again applied for judicial review in respect of the delay but again , following a hearing on DATE , no order was made .

On DATE , following another application for judicial review , ORG adjourned the case pending promulgation by ORG of its written decision regarding the offer of compensation .

On DATE ORG issued its decision awarding the applicant compensation of ORG CARDINAL,CARDINAL.CARDINAL .

The applicant 's application for judicial review was refused on DATE on the ground that ORG decision had brought the finality which the applicant had been seeking .

The applicant brought a fresh application for judicial review on the ground that the award of CARDINAL DATE had been incorrectly reached . The application was refused on the papers on DATE . Following the applicant 's renewed application and an oral hearing , permission was finally refused on DATE .

According to GPE 's ORG ( CARDINALth Edition ) , the terms of engagement of members of the armed forces do not constitute a contract of service in the strict sense . Members of the armed forces are appointed by the ORG under the ORG prerogative and hold their appointments “ at the Queen 's pleasure ” .

The ORG , although essentially part - time , has a small number of attached regular army officers and non - commissioned officers responsible for organising and supervising the management and training of the unit . At the relevant time , the routine administration of the ORG tended to be vested in a special category of uniformed reservists known as ORG ( “ LOC ) . ORG were recruited into the ORG to perform a specific job within a ORG unit .

Under section CARDINAL(CARDINAL)(h ) of the Army Act DATE , ORG soldiers were subject at all times to military law .

Section CARDINAL of the Army Act DATE set out , at the relevant time , the redress available to the applicant following his redundancy . It provided as follows :

“ ( CARDINAL ) If a warrant officer , non - commissioned officer or soldier thinks himself wronged in any matter by any officer other than his commanding officer or by any warrant officer , non - commissioned officer or soldier , he may make a complaint with respect to that matter to his commanding officer .

( CARDINAL ) If a warrant officer , non - commissioned officer or soldier thinks himself wronged in any matter by his commanding officer , either by redress not being given to his satisfaction on a complaint under the last foregoing subsection or for any other reason , he may , in accordance with the procedure laid down in Queen 's Regulations , make a complaint with respect thereto to ORG ,

( CARDINAL ) It shall be the duty of a commanding officer or , as the case may be , ORG to have any complaint received by him or them investigated and to take any steps for redressing the matter complained of which appear to him or them to be necessary . ”

Queen 's Regulation ( “ QR ” ) CARDINAL.CARDINAL(b ) provided :

“ Every complaint is to be fully and distinctly stated and any explanation or other evidence as may be necessary for the proper investigation and speedy determination of the complaint is to be annexed to it . ”

QR CARDINAL provided :

“ A complaint is to be submitted , in writing , to the complainant 's commanding officer no matter if the commanding officer has previously refused to redress the matter complained of ; has not the power to grant the redress sought ; or if the complaint has been made against the action or refusal of action by the commanding officer himself . ”

NORP QR CARDINAL provided :

“ Any complaint under Section ... CARDINAL(CARDINAL ) of the Army Act DATE is , when received by the commanding officer , to be forwarded by him , with any comments , to his next higher authority . That authority is to examine the complaint and is himself to grant redress if he has power to do so and thinks he should . If redress is not then granted , or is not granted to the complainant 's satisfaction , that authority is to forward the complaint , together with any comments by the commanding officer and himself , to the next higher authority , and the procedure repeated . In this way , unless full redress is granted at an intermediate level , the complaint will come up through the chain of command to ORG and will be presented to ORG . The complainant is to be informed of progress at each stage and given the opportunity to withdraw his complaint if he wishes . ”

New primary legislation governing redress of complaints was introduced in LAW but this new legislation applied only to complaints brought on or after DATE .

ORG is appointed by Letters Patent from Her Majesty to have command of the armed forces . It is composed of the defence ministers , the most senior ORG civil servants and the most senior officers of the armed forces .

Under section CARDINAL(CARDINAL ) of the Defence ( Transfer of Functions ) Act DATE , the functions of ORG may be discharged by ORG .

The requirements of fairness to be observed in the procedure before ORG were set out in R v ORG ex parte PERSON [ DATE ] CARDINAL QB CARDINAL ( “ the PERSON principles ” ) . ORG considered that ORG must achieve “ a high standard of fairness ” and , in particular , there must be a proper hearing at which all relevant evidence is considered ; the members of ORG must meet for this purpose ; where appropriate , an oral hearing must be held with opportunity for cross - examination of witnesses ; there must be a proper examination ; all material seen by ORG must be disclosed to the complainant ( subject to public interest immunity exceptions ) ; and the complainant must be given an opportunity to respond to material and have his response considered by ORG .

NORP Under section CARDINAL(CARDINAL ) of the Army Act DATE , ORG had the power to convene ORG ( “ the Board ” ) to investigate and report on the facts relating to a matter referred to it by ORG .

The composition of the ORG was specified in section CARDINAL(CARDINAL ) as consisting of a president , who shall be an officer not below the rank of captain or corresponding rank and be subject to military law , and not CARDINAL other members each of whom shall either be a person subject to military law or a person not so subject who is in the service of the ORG .

The applicable rules were set out in ORG Rules DATE ( “ the Rules ” ) , which established , under LAW , a duty for ORG to investigate and report on the facts relating to any matter referred to it and , if directed to do so , to express its opinion on any question arising .

Rule CARDINAL(CARDINAL ) provided that :

“ The President shall lay the terms of reference before the board and the board shall proceed to hear and record evidence in accordance with the provisions of these Rules . ”

Rule CARDINAL(CARDINAL ) provided :

“ A board shall hear the evidence of the witnesses who have been made available by the authority and may hear the evidence of such other persons as they think fit . ”

Rule CARDINAL provided :

“ A board may receive any evidence which they consider relevant to the matter referred to the board , whether oral or written , and whether or not it would be admissible in a civil court . ”

Rules CARDINAL(CARDINAL ) provided :

“ The president shall record , or cause to be recorded , the proceedings of the board in writing and in sufficient detail to enable the authority to follow the course of the proceedings . ”

The relevant ORG ( CARDINAL ) provided as follows :

“ Administrative instructions relating to boards of inquiry convened in accordance with ORG Rules DATE ... are contained in Annex A to this LAW . These instructions are to be followed in all cases . ”

Paragraph CARDINAL of FAC A provided :

“ ... all persons who may be affected by the findings are to be given an opportunity to attend or be [ re]presented . ”

Although ORG was not strictly bound by the findings of ORG , it would be rare for ORG to substitute its own findings for those of ORG .

Members of the armed forces have access to civilian employment tribunals in relation to issues regarding equal pay and unlawful discrimination on grounds of race , sex , religion , belief or sexual orientation .

Although at the relevant time the right not to be unfairly dismissed was a statutory right , under section CARDINAL(CARDINAL ) of ORG DATE , its application to service as a member of the armed forces was excluded under section LAW . Accordingly , ORG did not have jurisdiction to hear a claim for unfair dismissal brought by a member of the armed forces .

The scope of judicial review in administrative decision - making in GPE is set out in the ORG 's judgment of ORG v. the GPE , no . CARDINAL , § § DATE , DATE .


The applicant , Multigestion , is a company incorporated under NORP law , with its registered office in GPE . It was represented before the ORG by Mr PERSON , of ORG .

The applicant company is an approved management company , belonging to the group of management companies of the ORG company , which is itself a subsidiary of the ORG group . The applicant company manages CARDINAL non - trading real - estate investment companies – PERSON and PERSON . Also part of the PERSON group are a company called PERSON , which manages among other companies the non - trading real - estate investment company ORG CARDINAL , and another called ORG , whose object is to take part in property promotion campaigns .

Acting on an anonymous tip - off , the Chairman of ORG des opérations de bourse – “ the COB ” ) decided , on DATE , to open an investigation into the management of the CARDINAL non - trading real estate investment companies mentioned above and into the transactions carried out on their behalf .

On DATE the COB decided to open proceedings with a view to imposing penalties on the applicant company .

The Chairman of the COB informed the applicant company of the complaints against it on DATE . It was suspected of using its authority to act not in the collective interest of investors but for purposes other than those for which the authority had been given .

On DATE a decision taken by the COB on DATE was served on the applicant company . The COB had imposed a fine of MONEY and ordered publication of the decision in the COB ’s DATE bulletin and in ORG .

On DATE the applicant company gave notice of intention to appeal against the above decision , producing a statement of the grounds of appeal within the time allowed , on DATE . It did not plead the COB ’s partiality on account of the fact that the same person had been its chairman when important decisions were being taken at both the investigation stage and the trial stage , the presence of the reporting commissioner ( the rapporteur ) at the deliberations or the fact that it had not had access to his written report . It did , however , plead an infringement of the presumption of innocence on account of the fact that the burden of proof had been reversed , and it contested the COB ’s submissions .

Ruling in connection with another case and , according to the applicant company , against all expectations , ORG held on DATE that the penalties imposed by the COB were contrary to LAW when , in particular , the rapporteur took part in the deliberations . That decision was published in ORG of DATE . On DATE ORG dismissed an appeal on points of law against the above judgment . Following that change in the case - law the COB modified its working practices .

On DATE the COB submitted its observations on the applicant company ’s appeal .

On DATE the applicant company produced a reply in which it submitted a new ground of appeal , pleading infringement by the COB of the principles of fairness and impartiality . It referred in particular to ORG judgment of DATE .

On DATE ORG noted of its own motion that the applicant company had not submitted the above ground of appeal within the DATE period allowed by law . It therefore invited the parties to present further submissions on its admissibility .

The applicant company attempted to establish that LAW no . CARDINAL of DATE did not bar the raising of a ground of appeal based on public - policy considerations after expiry of the DATE time - limit .

On DATE ORG declared the ground of appeal relating to the unfairness of the procedure before the COB inadmissible , as being out of time , and dismissed the application to set aside the COB ’s decision of DATE .

The applicant company appealed on points of law against the above judgment . In support of its appeal it argued that LAW no . MONEY of DATE “ necessarily [ said nothing about ] what [ was ] to be done with grounds of appeal based on public - policy considerations , which [ could ] be submitted at any stage of the proceedings ” and that “ courts [ had ] a duty to note of their own motion arguments grounded on public policy whenever such arguments [ were ] apparent from the documents submitted to them , and particularly from the decision referred to them ” . It also argued that there had been no legal basis for the sanction imposed by the COB , since the burden of proof had been reversed , or for ORG decision , given that it had upheld the sanction imposed without verifying whether all the elements of the offence had been made out .

In a judgment of DATE ORG dismissed the applicant company ’s appeal on points of law against the judgment of DATE . It held that although the ground of appeal relating to a violation of LAW had been based on public - policy considerations it had been out of time and therefore inadmissible . It dismissed the other CARDINAL points of law raised by the applicant company as manifestly ill - founded .

LAW no . CARDINAL of DATE

“ An appeal must be lodged by means of a written declaration deposited in CARDINAL copies with the registry of ORG in exchange for a certificate of receipt .

An appeal shall be inadmissible by default if the declaration does not contain the information required by LAW and state the object of the appeal .

Where the declaration does not contain a statement of the grounds of appeal , the appellant must , on pain of the same sanction , file such statement with the registry within DATE of filing the declaration . ... ”


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

The facts of the case , as submitted by the applicant , may be summarised as follows :

The applicant has been living in GPE since DATE . His wife followed him in DATE and their CARDINAL children were born there .

On DATE ORG Bezirkshauptmannschaft ) imposed a DATE residence ban on the applicant pursuant to section QUANTITY of the DATE LAW ( PERSON ) . It referred to the applicant ’s conviction on charges of burglary and coercion , for which he had been sentenced to CARDINAL months’ imprisonment . Further , it had regard to CARDINAL convictions in relation to administrative offences for which he had been fined . It found that although the issue of a residence ban constituted an interference with the applicant ’s private and family life , the public interest outweighed the applicant ’s personal interests in remaining in GPE .

On DATE ORG ) confirmed the decision , but reduced the duration of the residence ban to DATE .

Subsequently , the applicant lodged a complaint with ORG ( Verwaltungsgerichtshof ) .

On DATE ORG granted the applicant ’s request for suspensive effect .

On DATE LAW DATE entered into force ( “ the CARDINAL Act ” ) .

On DATE ORG declared the applicant ’s complaint to be devoid of purpose and discontinued the proceedings .

It noted in the first place that , pursuant to LAW , the conditions for issuing a residence ban differed from those set out in LAW DATE ( “ the DATE LAW ) . In the present case , the requirements of LAW CARDINAL ( CARDINAL ) of LAW to discontinue proceedings were fulfilled for the following reasons : Unlike section CARDINAL of the DATE Act , under which the authority had to issue a residence ban if the conditions were met , section CARDINAL of LAW left a certain degree of discretion to the authority . In the proceedings conducted so far , the applicant had not had the opportunity to submit facts , which - having regard to the authority ’s discretion - could militate against the issue of a residence ban . Moreover , the residence ban against the applicant was not one which could obviously be based on the provisions of LAW . This was why the applicant ’s complaint had become devoid of purpose and the proceedings had to be discontinued . Referring to section QUANTITY , ORG found that the applicant had to bear his own costs . ORG decision was served on the applicant on DATE .

As a consequence of ORG decision , the residence ban proceedings were remitted to the first instance authority .

On DATE ORG again imposed a DATE residence ban on the applicant pursuant to section QUANTITY of LAW . It had regard to the fact that , in addition to the conviction already relied on in the residence ban of DATE , the applicant had also been convicted of negligently causing bodily harm , of intentionally causing bodily harm and of poaching and , in each case , had been sentenced to a fine . Moreover , his convictions for administrative offences had in the meantime increased to a total of CARDINAL . The applicant had , thus , shown a continuous disrespect for the NORP legal order . Although the issue of a residence ban constituted an interference with the applicant ’s private and family life , it was necessary for the prevention of disorder and crime .

The applicant ’s appeal and his further complaint to ORG remained unsuccessful .

Section CARDINAL of the CARDINAL Act contains transitional provisions relating inter alia to residence bans . So far as relevant it reads as follows :

“ ( CARDINAL ) A residence ban , which is being challenged in proceedings before ORG or ORG , ceases to be effective on DATE of entry into force of this LAW , unless it obviously has a basis in the provisions of this LAW . ORG ...

( CARDINAL ) In cases falling under paragraph CARDINAL ... the complaint [ to ORG or ORG ] has to be declared devoid of purpose and the proceedings are to be discontinued without hearing the applicant . ... ”

ORG has to decide in each of such pending cases whether the conditions for discontinuing the proceedings are met . Following a decision discontinuing the proceedings pursuant to section CARDINAL ( CARDINAL ) and ( CARDINAL ) , the residence ban proceedings are remitted to the first instance authority .

Section CARDINAL , so far as material , provides as follows :

“ ( CARDINAL ) ... section CARDINAL ( CARDINAL ) .. applies to proceedings which are pending at the time of the entry into force of this LAW and are ... not to be rejected as being inadmissible . The parties to these proceedings have to bear their own costs . ”

Section CARDINAL ( CARDINAL ) of LAW provides that the prevailing party may claim the reimbursement of their costs from the unsuccessful party .