András Sajó;Guido Raimondi;Helen Keller;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants , PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE and lived in GPE and GPE , respectively .

Both applicants were represented before the ORG by ORG , a human rights organisation based in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

NORP In DATE the first applicant married PERSON , and during their marriage she gave birth to their CARDINAL children .

On DATE the first applicant and PERSON were divorced by consent before ORG in GPE . The first applicant ’s children were awarded child maintenance , while the first applicant herself never sought maintenance from her former husband .

The first applicant maintained that after the divorce she and PERSON were reconciled and started living together again . In DATE that followed , they continued living as cohabitants ( vanbračni drugovi ) .

On DATE PERSON died as a consequence of an accident at work .

On DATE the first applicant filed a request with the Pensions and ORG ( “ the NORP ” ) , requesting to be awarded a survivor ’s pension .

On DATE the ORG ’s branch in GPE rejected the first applicant ’s request , finding that she had no standing to claim a survivor ’s pension .

On DATE the ORG ’s ORG confirmed the decision of DATE .

On DATE ORG upheld the decisions of DATE and DATE , while acknowledging that the first applicant and her former husband had continued living as cohabitants . ORG further explained that the first applicant was not entitled to a survivor ’s pension since in the divorce proceedings she had not been awarded maintenance ( see paragraph CARDINAL below , LAW of ORG ) .

On DATE the first applicant acquired the right to a disability pension .

On DATE the second applicant married FAC

On DATE ORG in GPE dissolved their marriage , noting , inter alia , that the parties had stopped living together in DATE . The applicant ’s children were awarded child maintenance , while the applicant herself never sought maintenance from her former husband .

The second applicant maintained that following the divorce she and FAC continued living together as cohabitants , and that their children were never aware that their parents were in fact not married .

NORP Throughout this partnership the second applicant was never employed , and enjoyed benefits based on FAC ’s health insurance .

On DATE FAC died .

On DATE the second applicant filed a request with the ORG , seeking a survivor ’s pension .

On DATE the ORG ’s branch in GPE rejected the second applicant ’s request , since in the divorce judgment she had not been awarded maintenance ( see paragraph CARDINAL below ) .

On DATE the ORG ’s ORG confirmed the decision of DATE , acknowledging that the second applicant and her former husband had continued living as cohabitants .

On DATE and DATE ORG and ORG respectively upheld the decision of DATE . On DATE the second applicant received ORG decision , rejecting her appeal on points of law ( zahtev za vanredno preispitivanje sudske odluke ) on its merits . ORG explained that the second applicant was not entitled to a survivor ’s pension since the divorce court had not awarded her maintenance ( see paragraph CARDINAL below ) .

According to the documents contained in the case file , throughout the above proceedings , the applicants argued that they were entitled to their survivors’ pensions , respectively , since they had continued living with their former spouses and the latter had also continued providing them with maintenance on a voluntary basis .

Article CARDINAL guaranteed equality between children born inside and outside of marriage .

Article CARDINAL § CARDINAL stated that all international human rights treaties valid in the territory of GPE and GPE would be directly applicable .

Article CARDINAL provided , inter alia , that all human rights guaranteed by a binding international treaty would be directly applicable .

Article CARDINAL § CARDINAL provides , inter alia , that all ratified international human rights treaties shall be directly applicable .

Article CARDINAL § CARDINAL provides that “ [ a]ll direct or indirect discrimination based on any ground , particularly on the grounds of race , sex , national or social origin , birth , religion , political or other opinion , property status , culture , language , age , mental or physical disability shall be prohibited . ”

Article CARDINAL § CARDINAL provides that “ a cohabiting partnership ( vanbračna zajednica ) shall be equal to marriage , under the conditions set forth by law ” .

This LAW entered into force on DATE .

The right to a survivor ’s pension shall be granted , inter alia , to family members of a deceased insured person who had paid the relevant contributions for DATE , as well as to family members of a person who had already been granted a pension ( Article CARDINAL ) . Eligible family members shall include , inter alios , the married partner ( bračni drug ) of the deceased ( LAW ) . The right to a survivor ’s pension shall likewise apply to a divorced partner ( bračni drug iz razvedenog braka ) , where a court had already established his or her right to maintenance in the course of the divorce proceedings ( LAW ) .

A survivor ’s pension shall be granted to the deceased ’s children under DATE . Beyond that , children shall be entitled to the said pension if they are attending secondary or higher education , but even then only until DATE and CARDINAL respectively . Where the children ’s education has been interrupted due to a disease , they shall be entitled to the pension for an additional period corresponding to the duration of the disease in question . When the children ’s education has been interrupted because of their military service , the pension shall be paid until DATE . Should the children becomes unable to live and work independently before reaching the relevant age , they shall be entitled to a pension , but should the children become unable to do so only later , but before the insured parent dies , they shall be entitled to a pension only if they had been financially supported by that parent until his or her death . Such children , as well as disabled children , shall also be entitled to a pension should they become unemployed or otherwise cease with their business activities ( DATE ) .

Should one acquire a right to a disability pension , CARDINAL shall no longer be entitled to a survivor ’s pension ( ORG CARDINAL § CARDINAL and CARDINAL , taken together ) .

One ’s entitlement to a pension or disability insurance ( osnov osiguranja ) can not be established on the basis of witness statements ( LAW ) .

The latest amendments to the LAW entered into force on DATE , introducing certain changes to the pension and disability benefits system , mostly relating to the retirement age . When the question of the possibility to grant cohabitants equal rights in respect of the survivor ’s pension was raised , the ORG Secretary in ORG , who was at the same time the head of the working group on pension reform , was quoted as having said , “ it is hard to prove the existence of such partnerships ” ; “ [ i]ntroducing this right would mean a higher number of retired persons , and an increase in expenses ” ( PERSON , in a statement to the “ Press ” newspaper , DATE ) .

Articles CARDINAL § CARDINAL and CARDINAL , taken together , provide that cohabitants of deceased veterans shall , under certain conditions , be entitled to a survivor ’s disability pension ( pravo na porodičnu invalidninu ) if they have children in common .

Article CARDINAL provides that compulsory health insurance shall be provided to the family members of the insured . Cohabitants are considered to be immediate family and are granted equal rights to married partners on the condition that they have shared a household for DATE before filing the request .

This Act , read in conjunction with ORG , provides , inter alia , that cohabitants and married partners alike shall enjoy equal treatment as regards the Government - supported programme of in vitro fertilisation .

Articles CARDINAL , CARDINALa and CARDINAL provide that cohabitants shall be treated the same as married partners in respect of their entitlement to various welfare benefits .

DATE defines cohabitation as a longer partnership ( trajnija zajednica života ) between a man and a woman , where there are no obstacles to them marrying ( for example , another marriage , blood relationship and so on ) , and where the partners have the same rights and duties as those afforded to married partners , “ under the conditions set forth in this LAW ” .

ORG CARDINAL and CARDINAL provide that cohabitants shall have the right to request maintenance from CARDINAL another , and that any property obtained during their partnership shall be their common property .

Article CARDINAL , taken together with Article CARDINAL , provides that cohabitants shall also be jointly responsible for certain obligations incurred during their partnership .

Article CARDINAL § CARDINAL provides that the deceased ’s children and married partner shall inherit equal shares of his or her estate .

This Act makes no reference to cohabitants . ORG , however , found that CARDINAL cohabitant does not have the right to inherit the property of the other following his or her death ( judgment of DATE , Gž . No . CARDINAL/CARDINAL ) .

Articles CARDINAL § CARDINAL and CARDINAL provide , inter alia , that should an appeal on points of law be accepted by ORG , the impugned decision may be overturned or quashed , and that in the latter case a re - trial before the lower court may be ordered .

Cohabitants and married partners enjoy equal treatment as regards , inter alia , the following : ( a ) deciding on whether to donate their deceased partner ’s organs to medical institutions for educational purposes ( LAW , Zakon o zdravstvenoj zaštiti ; published in OG RS nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ; Article CARDINAL ) ; ( b ) the assessment of whether an official can be deemed to be in a conflict of interest ( ORG , Zakon o sprečavanju sukoba interesa pri vršenju javnih funkcija ; published in OG RS no . CARDINAL , Article CARDINAL ) ; ( c ) an official ’s obligation to report his or her property and financial status to ORG ( ORG , Zakon o LOC borbu protiv korupcije , published in ORG RS nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL , LAW ) ; and ( d ) various procedural contexts , civil and criminal ( see LAW , PERSON o krivičnom postupku , published in ORG of GPE nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , as well as in ORG RS nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL , Articles CARDINAL , CARDINAL § DATE , CARDINAL § CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL ; see also LAW , Zakon o parničnom postupku , published in ORG RS nos . CARDINAL , ORG CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL ) .

LAW ( Zakon o strancima ; published in OG RS no . CARDINAL ) provides that temporary residence ( DATE ) may be granted to immediate family members for reasons of family reunification ( LAW ( CARDINAL ) ) . This includes , inter alios , married partners ( LAW ) . In practice , however , cohabitants have the same rights .

There is no possibility , according to NORP legislation , to officially register a cohabiting partnership , nor does there exist an equivalent of , or a document similar to , the family record book .

On DATE ORG rejected a motion seeking , inter alia , to have LAW declared unconstitutional . It did so because it lacked the power to legislate ( “ PERSON ... ne stvara normu ... [ , on ] ... nema ulogu i ovlašćenje tzv . pozitivnog zakonodavca ... ” ) . In its reasoning , however , ORG further opined as follows :

“ ... [ T]he ORG notes that the LAW ... has established that cohabitation is equal to marriage in accordance with the law ... [ It has therefore ] ... decided to send a letter ... to the ORG in which it will point out the need for the contested provisions of LAW ... to be brought in line ... with the LAW and ratified international instruments . ”


ORG The applicant , Mr PERSON , was born in DATE and is resident in GPE .

ORG In DATE , in his capacity as head administrator of a public hospital in GPE ( Hospital GPE ) , the applicant made an agreement with a bank to the effect that interest on deposits would be paid at a higher rate than that applicable by law . The applicant arranged for payment into his personal account of the excess amounts corresponding to the difference between the legal rate of interest and that of the additional interest ( extratipos ) paid by the bank on the sums deposited . DATE a total sum of MONEY were thus transferred to the applicant .

ORG In DATE criminal proceedings were brought against the applicant . By a decision of CARDINAL DATE ( auto de procesamiento ) , GPE investigating judge no . CARDINAL found that the facts established by him disclosed the offence of embezzlement of public funds ( malversación de caudales públicos ) under LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) , carried out not by a civil servant stricto sensu but by a person entrusted with funds belonging to a public institution ( LAW - see paragraph CARDINAL below ) . The applicant was subsequently committed for trial in FAC . The public prosecutor and the hospital , acting as a private prosecutor , lodged submissions which essentially endorsed the findings of the investigating judge and requested , inter alia , that the applicant be sentenced to DATE imprisonment . ORG ( Abogado del Estado ) , appearing also as a private prosecutor on behalf of the ORG finances , submitted that the facts of the case constituted the offence of corruption of a civil servant .

ORG In a judgment of CARDINAL DATE , ORG , held that , although the applicant fell into the category provided for in LAW , the sums embezzled by him were not " public funds " and , accordingly , Article CARDINAL para . CARDINAL was not applicable . It further held that , owing to his particular personal status in the hospital , the applicant could not be considered a civil servant stricto sensu . It therefore dismissed the charges of corruption . The applicant was nonetheless convicted of the offence of simple embezzlement ( apropiación indebida ) under LAW see paragraph CARDINAL below ) and sentenced to DATE imprisonment pursuant to ORG and CARDINAL para . CARDINAL of LAW ( see paragraphs CARDINAL below ) . ORG did not find any aggravating circumstance of general application ( see paragraph CARDINAL below ) .

ORG The public prosecutor and the hospital appealed on points of law . They described the amounts in question as public funds and again requested the applicant 's conviction for the offence of embezzlement of public funds under Articles CARDINAL para . CARDINAL and CARDINAL of LAW . In his submissions , the public prosecutor stressed the fact that FAC had clearly acknowledged that the applicant was a person entrusted with funds belonging to a public institution for the purposes of LAW .

ORG The applicant did not appeal , thereby accepting the facts as established by ORG , their legal classification and the sentence .

ORG In CARDINAL subsequent decisions of CARDINAL DATE , ORG ) found that , although the sums embezzled could be considered public , the offence under Article CARDINAL para . CARDINAL did not apply since the hospital was not legally entitled to those sums . Contrary to FAC , ORG further held that :

In any event , it is true that , even if LAW ( embezzlement of public funds ) can not be applied , the fact remains that the accused Mr GPE is a civil servant and that he took advantage of his position in order to commit the offence of which he was found guilty . Therefore , ... the aggravating circumstance in LAW para . CARDINAL must be applied . To put it in a graphic manner : if the offence of embezzlement of public funds can not apply due to the lack of the objective element , the aggravating circumstance must apply given the offender 's legal position . "

ORG therefore quashed the judgment being appealed and convicted the applicant of the offence of simple embezzlement with the aggravating circumstance that he had taken advantage of the public nature of his position in performing the duties entrusted to him ( Article CARDINAL para . CARDINAL of LAW - see paragraph DATE below ) . In doing so , ORG considered that a request to apply this aggravating circumstance could be inferred from the public prosecutor 's submissions ( see paragraph CARDINAL above ) . In the exercise of its powers ( see paragraph CARDINAL below ) , ORG sentenced the applicant to DATE imprisonment , the maximum term of imprisonment for the offence of embezzlement under the rules for the determination of sentence set forth in LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) .

Mr de PERSON filed an amparo appeal in ORG ) . He asserted that he had not been informed of all the components of the charge against him and that , accordingly , his right to a fair trial had been violated ( LAW - see paragraph CARDINAL below ) . By a decision ( auto ) dated DATE , the appeal was declared inadmissible on the ground that it did not disclose any relevant issues of constitutional law . ORG found that the applicant was well aware that the charges against him presupposed not only that the offender 's position was equivalent to that of a civil servant , but also that he had taken advantage of that position in the commission of the offence . He had therefore had the possibility to address that issue throughout the proceedings and his defence rights had not been forfeited .

ORG According to LAW :

" CARDINAL . Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests and in no circumstances may there be any denial of defence rights . CARDINAL . Likewise , everyone has the right ... to be informed of the charge against him , to have a ... trial ... attended by all the safeguards , to adduce the evidence relevant to his defence ,

ORG By LAW :

" Any civil servant who embezzles or suffers others to embezzle public funds or other property entrusted to his care by virtue of his office shall be liable to : ... CARDINAL . a term of imprisonment ranging from DATE and DATE to DATE ( reclusión menor ) if the amount embezzled exceeds MONEY . ... In all cases , the offender shall also be permanently disqualified from public office . "

ORG By LAW , the foregoing provision also applies to :

those entrusted , in any capacity whatsoever , with funds ... belonging to provincial or municipal authorities or to educational establishments or charitable organisations , and to administrators or depositories of funds ... deposited by a public authority , even if they belong to individuals " .

According to the case - law , the offender must not only be a civil servant or a person entrusted with sums belonging to a public institution , he or she must also have taken advantage of that position .

ORG By virtue of LAW

" Anyone who , to the detriment of others , appropriates or embezzles money , assets or any other personal property , entrusted to his care as depository , agent or administrator , or in any other capacity carrying the obligation to deliver or return the property , or denies having received such property shall be liable to the penalties laid down in LAW

Article CARDINAL , in so far as relevant , provides as follows :

A person convicted of this offence shall be liable to a term of imprisonment ranging from DATE and DATE ( arresto mayor ) if the sum involved exceeds MONEY . If there are found to be CARDINAL or more of the aggravating circumstances provided for in LAW below or one especially aggravating circumstance , the person convicted shall be sentenced to a term of imprisonment ranging from DATE and DATE to DATE ( prisión menor ) ... Where only one of the aggravating circumstances referred to in LAW is found to be established , the term of imprisonment shall be in the range of the maximum sentence available ( grado máximo ) [ from DATE and DATE to DATE ] . "

ORG By LAW

" The following circumstances shall be deemed to be aggravating circumstances for the purposes of the preceding Article :

Where the offence is particularly serious in terms of the sum embezzled . "

ORG In order to determine the sentence , where a particular offence is punished with a term of imprisonment , this can be divided in CARDINAL identical periods ( grados ) : minimum , medium and maximum . If a court finds that no mitigating circumstances and CARDINAL aggravating circumstance can be established , it shall impose a medium or maximum sentence . Where CARDINAL aggravating circumstances are established , the maximum sentence shall be imposed ( LAW ) .

Aggravating circumstances can be specific to a particular offence ( see , for example , paragraph CARDINAL above ) or of a general nature . LAW describes the aggravating circumstances which can be applied to any offence :

" The following are aggravating circumstances :

the fact that the offender has taken advantage of the public nature of his or her position . "

ORG Where ORG finds that an appealed decision is in breach of the law , it will quash it and set it aside and render a new decision on the merits . In doing so , the only restriction on the court is not to pass a heavier sentence than the one which would correspond to the prosecutor 's request ( LAW ) .

ORG As with any court , ORG has the power to depart from the legal classification given by the prosecution provided that : ( a ) the criminal intent in the offence found applicable is essentially identical to that in the offence as charged ( " delitos homogéneos " - for instance homicide and parricide ) ; ( b ) no different facts are taken into consideration ; ( c ) the new classification leads to the imposition of a sentence that is less severe than that requested by the prosecution . These powers have been considered constitutional by ORG in , among others , its judgments of CARDINAL DATE ( CARDINAL/CARDINAL ) , CARDINAL DATE ( CARDINAL ) and DATE ( CARDINAL ) . The new legal classification may involve the finding of aggravating circumstances that are implicit in the original characterisation ( ORG , ORG , judgment of DATE , PERSON no . CARDINAL , p. CARDINAL ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr T. Gertner , a lawyer practising in Bad LOC .

A summary account of historical events in which the present application originated can be found in the ORG ’s decision in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE , ECHR CARDINAL- ... ) .

The applicant ’s family owned a manor - house in PERSON ( at present PERSON in GPE ) . In DATE they fled from the advancing ORG .

This region before and during the Second World War belonged to ORG . After the defeat of GPE at the end of the war , when the border between GPE and GPE was drawn along the PERSON - Neisse line , it was included in the territory of GPE ( see ORG . PERSON , cited above , § CARDINAL ) .

The applicant submits that he has repeatedly applied to the NORP authorities for restitution of his family ’s property , but has been refused . He has not produced any documents or evidence showing that he indeed submitted any such claims to the NORP authorities .

A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) .


The applicant , Mr PERSON , is an NORP national who was born in DATE and at the time of lodging the application was serving a prison sentence in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , Mr ORG .

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

The applicant and his wife , PERSON , ran a private day - care centre at their home in the suburbs of PERSON . On DATE , DATE , at TIME , a DATE boy , PERSON , was brought by his mother to the applicant and his wife . During TIME the boy had been restless , awake and crying . Usually the boy had a nap twice during DATE but DATE he refused to sleep before lunch - time and had no appetite . TIME the applicant left the centre for a meeting . His pregnant wife was close to giving birth to their child and went to see a doctor at TIME At TIME she returned home and she sat down in the play - room ; the applicant took PERSON to put him to sleep in a pram , placed in the garage . An audio detection device ( baby - sitter ) was set in motion in the garage . TIME the applicant came back into the apartment .

According to the applicant , nothing unusual happened when he put the baby to sleep . He just placed the boy in the pram and the boy immediately fell asleep . The applicant stayed with him for TIME . His wife stated that she did not see or hear anything unusual while attending to the children who were not sleeping . TIME , the applicant tried to wake up the baby , but he was unconscious . His wife took the baby and put him on a changing blanket . She removed the baby ’s napkin since it was soiled . The applicant telephoned an emergency service and TIME emergency personnel arrived . PERSON was taken urgently to hospital . In the morning of Friday CARDINAL DATE , the baby died .

After the formal autopsy was completed on DATE , the couple was arrested . The relevant report , drawn up by a forensic pathologist , PERSON , concluded that PERSON had died of the so - called Shaken Baby Syndrome . It was found , firstly , that the injuries that appeared to have caused the child ’s death must have been caused TIME before death . Secondly , the baby had lost consciousness immediately after the fatal injuries had occurred . Since the child had been playing in the play room when the applicant ’s wife arrived , the incident must have occurred when the applicant put the baby to sleep .

Subsequently , the applicant was charged under LAW with having shaken the baby in such a fierce or other manner as to cause his death . He and PERSON were also charged with offences related to the manner of running of their day - care centre , in that they had undertaken to provide care for many more children ( CARDINAL ) than they were allowed ( CARDINAL ) . This part of the case will not be described further below .

Prior to the trial hearing before ORG , ORG obtained ORG ( “ the SMLB ” ) comments on the forensic expert report , which confirmed the conclusions contained in the report .

Extensive evidence was submitted to ORG , including voluminous police investigation files , police reports , forensic pathology documents , and photocopies from medical publications as listed in an attachment to the autopsy report . Statements were received from the applicant and K , and CARDINAL witnesses were heard , which included all the witnesses called by the defence . Expert witnesses PERSON , GPE and O.T. , all summoned at the prosecution ’s request , also gave oral testimonies and answered questions .

According to the applicant , neither the forensic specialist , nor the doctors who had attended to the boy , nor the SMLB in its initial statement mentioned the differences in international medical opinion regarding the Shaken Baby Syndrome .

In its judgment of DATE , ORG , relying on the evidence given by the prosecutor ’s expert witnesses and the conclusions of the SMLB , convicted the applicant of the charges and sentenced him to DATE imprisonment for having shaken S. to death . He was also sentenced to pay ISK CARDINAL in fines and was ordered to pay compensation to S. ’s parents .

Subsequently the applicant , represented by a new lawyer ( who is also representing him in his application to ORG ) , appealed against his conviction and sentence to ORG . In this context , the defence sent a translation of PERSON ’s medical forensic report to a number of foreign medical and forensic experts for comment , CARDINAL of whom produced statements which , according to the applicant , indicated that he was not guilty . The cause of PERSON ’s death was fraught with doubt , it not being established that it was ORG rather than any other cause that was involved .

By a letter of DATE to ORG , ORG stated that he considered it imperative , before a final judgment be passed on the merits of the case , to contact the SMLB again in order to obtain an answer to the question whether the medical statements of CARDINAL of the foreign experts submitted by counsel for the applicant , to the extent that they concerned the alleged cause of death of the baby boy in question , had the effect of changing in any respect the SMLB ’s conclusions submitted to ORG . The Prosecutor general listed CARDINAL questions that in his view should be addressed to the SMLB . He further stated :

“ The Prosecutor General furthermore respectfully asks ORG to send an enquiry to the forensic pathologist [ GPE ] , asking her whether the writings of the CARDINAL above writers and their suggestions and comments relating to the child [ S. ] ’s assumed cause of death , have the effect of changing in any respect the inferences she draws in the autopsy report on the child ’s cause of death , cf . pages CARDINAL - CARDINAL of the abstract , all with a view to the points made under items CARDINAL - CARDINAL above .

If granting this request is not deemed possible , the prosecution requests an opportunity to obtain [ T.S. ] ’s testimony as a witness before ORG on the autopsy of the child [ S.]and the assumed cause of his death . ”

On DATE ORG forwarded the Prosecutor General ’s letter of DATE to counsel for the applicant , giving him an opportunity to comment within DATE .

On DATE counsel for the defence replied requesting that CARDINAL questions formulated in his letter be put to the SMLB . His letter then went on as follows :

“ On the occasion of the Prosecutor General ’s letter to ORG concerning questions to be put to the SMLB , it must be noted that according to LAW no member of ORG may pass an opinion on a matter on which he has previously taken a stand , personally or in office . The conclusions of the opinions referred to by ORG in his letter largely refute the opinion of the SMLB ’s Forensic Section of DATE . By asking for the ORG ’s observations on the opinions of the foreign experts , ORG is in reality being asked to comment on its own conclusions . A question mark can be placed on how reasonable such an arrangement is . The defence considers at least obvious that all the SMLB ’s members who on DATE took part in handling the entry from ORG meeting of DATE lack competency for approving an opinion prepared in response to questions posed by ORG , the defence , and , as the case may be , the ORG .

At the end of his letter , the Prosecutor General requests that [ T.S. ] will be asked whether the conclusions of the autopsy report should be changed on account of the opinions of the foreign experts . If it is not deemed possible to request her written replies , the ORG is asked to call for her oral statement . If ORG decides to call for [ GPE ] ’s oral statement , the defence must demand that equality in this respect will be respected , and that the defence will be permitted to obtain the statement of some of the foreign experts who have expressed an opinion of the prosecution ’s autopsy report . ”

On DATE ORG decided , in the light of the fact that the opinions and conclusions of the forensic expert TS were given decisive importance in the ORG assessment and that the foreign medial statements had been submitted in particular to challenge those conclusions , to order the SMLB to give a reasoned opinion on CARDINAL specific questions .

On DATE , without awaiting a decision by ORG , ORG addressed CARDINAL questions to forensic pathologist TS , which in substance were the same as the first CARDINAL questions addressed by ORG to the SMLB . She replied to the questions on DATE , concluding that the foreign expert statements did not alter the inference she had drawn in her earlier autopsy report

On DATE the SMLB replied to each of the questions and , composed of the same members as in the first round , maintained its previous conclusions . It was accompanied by an assessment by CARDINAL ophthalmologists , ORG and ORG , of DATE .

On DATE counsel for the defence submitted additional observations regarding the phenomenon of “ Shaken - Baby Syndrome ” and disputing ORG arguments .

In the proceedings before ORG , the defence maintained that the cause of S ’s death could not be determined with any certainty as this was wide open to doubt , and that no medical proof had been obtained of a “ Shaken Baby Syndrome ” rather than some other cause of death . In this context the applicant chiefly referred to the statements of the foreign experts . This had consisted , firstly , of the opinions of CARDINAL foreign specialists to whom the defendant ’s counsel had sent written material relating to S. ’s autopsy and state of health , and additional opinions of CARDINAL of them after further replies were obtained from forensic pathologist PERSON to the questions posed by ORG . Secondly , the opinions of CARDINAL additional experts , who had been delivered the same written material for examination , were submitted .

After holding an oral hearing at which ORG and counsel for the defence spoke twice , ORG , by a judgment of DATE , upheld the applicant ’s conviction by ORG but reduced the sentence to CARDINAL months’ imprisonment . In its judgment ORG relied on the assessment made by the SMLB and rejected the written foreign expert statements as guesses and speculation .

In its judgment ORG pointed out that the applicant had failed to avail himself of the opportunity under LAW of criminal Procedure to ask it to appoint experts to provide an opinion with a view to refuting the medical inferences provided by domestic medical doctors and experts in the case . The defendant ’s collection of evidence had had the effect that ORG had found it appropriate to seek opinions from the SMLB in addition to those already obtained on the initiative of ORG , which was possible under section CARDINAL of ORG , No . CARDINAL ( “ the SMLB Act ” ) . In a reasoned opinion the SMLB had rejected the theory that LOC ’s death could have been due to infant scurvy or “ PERSON ’s Disease ” , allergic encephalitis , an ophthalmic disease , a bleeding disorder or chronic brain haemorrhage , vaccination , the mother ’s epilepsy or her use of the drug Tegretol , or to a digestive disorder resulting in endotoxinemia , acute scurvy and haemorrhage . The SMLB had stated in response to a specific question that all possible examinations had been conducted in order to preclude causes of death other than the CARDINAL stated in the autopsy report . ORG had asked forensic pathologist PERSON substantially identical questions on account of the writings of the foreign experts , and her replies and those of ORG were in full harmony .

The relevant provisions of LAW No . CARDINAL/CARDINAL ) provide :

Article CARDINAL

“ CARDINAL . The judge may , as requested by a party or of his own accord , appoint an expert or experts to provide an opinion in a criminal case .

The judge may turn directly to any person who has been officially appointed or accredited to give an opinion , provided that the person has the duty of providing the evidence or is willing to do so . ”

Article CARDINAL

“ CARDINAL . ORG cases shall generally be argued orally . The ORG may however decide that a case shall be argued in writing , if particular reasons commend this . ORG may also decide to receive a case for adjudication without separate argumentation if this is requested unanimously by the parties , or if a judgment is appealed against solely with respect to the determination of sanctions .

ORG may , to the extent that the ORG finds it necessary , decide to take oral evidence , provided that it deems , in the light of the facts , that such [ ... ] evidence may influence the outcome of the case . ”

Article CARDINAL

ORG can not review the findings of a district court relating to the evidential value of evidence presented orally , except if the witness in question , or the defendant , has provided a statement to ORG .

If ORG deems possible that the district court ’s findings concerning the evidential value of oral evidence presented in court may be erroneous to the extent of affecting the outcome of the case , and the witness or the defendant , as applicable , has not provided an oral statement to ORG , ORG may invalidate the district court ’s judgment and procedure to the extent necessary for making possible the submission of oral evidence there and a renewed conclusion . ”

In relation to the statutory provisions quoted above , the ORG drew the ORG ’s attention to CARDINAL judgments by ORG , respectively of DATE and DATE , both of which concerned civil proceedings .

In the latter judgment , ORG reasoning included the following observations :

“ According to the respondent ’s exposition to ORG , he considers that the requested expert opinion may be of importance to his defence . In the light of the extensive consequences which the conclusions of the autopsy report may have for the outcome of this case , the respondent can not be barred from seeking additional expert opinions , and this procedural recourse is adequately provided for in DATE , the first paragraph , and in DATE , the third paragraph , of Act No . CARDINAL/CARDINAL , cf . LAW No . CARDINAL/CARDINAL . The respondent ’s request for a further expert opinion is therefore to be granted . The district court judge will be ordered to appoint in court CARDINAL experts to provide replies to the questions stated in the respondent ’s above request . ”

In the former judgment , ORG stated :

“ According to section CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , No . CARDINAL , the ORG ’s role includes providing the courts with opinions on medical matters if this is required for a judicial decision . In this respect the SMLB ’s role is analogous to the function exercised by an expert providing evidence in accordance with the generally applicable rules of LAW No . CARDINAL/CARDINAL , cf . , in part , LAW . To the extent that statute law does not provide for any different arrangement , there is no reason not to apply those general rules to persons providing opinions under the auspices of the SMLB . According to LAW No . CARDINAL/CARDINAL , an expert providing evidence shall , at the request of a party , appear in court and give a statement explaining his opinion and matters relating thereto . As regards the provision of such statements , the rules on witnesses in LAW of the same Act shall apply in so far as appropriate . Act No . CARDINAL contains no provisions to the effect that the members of ORG are exempted from such duty to appear in court . ”

ORG , No . CARDINAL ( “ the SMLB Act ” ) , contains inter alia the following provisions :

Section CARDINAL

“ ORG shall have the role of providing the courts , the prosecution authorities and the supreme health authorities with expert opinions on medical matters .

Among its functions shall be the provision of opinions on any medical certificates submitted to the courts , provided these are sent to ORG in accordance with a judicial decision .

ORG shall provide the supreme health authorities with its opinions as to the propriety of a particular measure , action or conduct on the part of a doctor , dentist , masseur , pharmacist nurse , midwife or other similar health professional .

ORG shall provide the supreme health authorities with its opinions relating to health measures of extensive scope , in particular extensive measures taken against the spreading of infectious diseases . ”

Section CARDINAL

“ ORG shall only attend to matters referred to the ORG in accordance with the provisions of LAW , by the parties stated there .

The Board shall not provide opinions on the mental condition or criminal responsibility of any person , unless an expert opinion following suitable examination has already been obtained , provided such examination has been possible .

The Board shall not provide an opinion on any person ’s cause of death , unless an expert opinion following autopsy , or a report on loss of life in accordance with the applicable legislation in cases of violent or sudden death , has already been obtained , provided such evidence can be obtained . ”

Section CARDINAL

“ ORG shall seek the opinions of outside experts on matters not within the specialist knowledge of its members .

Before invalidating a doctor ’s certificate the board shall , if possible , offer the doctor in question an opportunity to bring forth his arguments in its support .

The Board shall , if possible , consult the person in question , and his professional organisation , on any matters specifically relating to a measure , an action or conduct of a doctor or other health professional ( cf . Section CARDINAL , the third paragraph ) , before providing its opinion . ”

Section CARDINAL

“ No member of ORG shall take part in deciding on a matter relating to himself or his principal , or a matter with respect to which he has previously taken a stand , personally or in official capacity . If the ORG becomes unable to exercise its function as a result of some of its expert members being unable to take part in deciding on a matter coming under his speciality , the Minister shall appoint another expert in his stead as the ORG may propose , for considering that particular matter . ”


By a penal order of DATE , the applicant was fined MONEY ( ORG ) for an assault on his wife that did not incapacitate her from work . On DATE he applied to ORG to have that order set aside .

On DATE the applicant was served by a court bailiff with a summons requiring him to attend ORG on DATE to answer a charge of “ intentional assault entailing no unfitness for work ” on DATE . The offence was classified as a “ Class CARDINAL minor offence ” and carried a maximum fine of ORG CARDINAL,CARDINAL under LAW of LAW .

On DATE the applicant lodged a legal - aid application with the legal - aid office of the GPE tribunal de grande instance , in accordance with the provisions of LAW of DATE and its implementing decree of DATE .

He furnished evidence , which the legal - aid office accepted , that his DATE income was ORG CARDINAL . In accordance with section CARDINAL of the CARDINAL Act , he claimed to be entitled to full legal aid .

A committee of the legal - aid office presided over by NORP ( as attested by a letter of DATE from the registry of the GPE tribunal de grande instance ) dismissed the application on DATE as being “ manifestly inadmissible , since it concern[ed ] a Class CARDINAL minor offence ” .

On DATE the applicant appealed against that decision to the President of the GPE tribunal de grande instance .

He said that in a similar case the GPE tribunal de grande instance had construed the decree differently and granted legal aid . In an order of CARDINAL DATE , the GPE tribunal de grande instance had noted a conflict between the decree and the LAW and stated that to resolve it the decree had to be construed in the light of the purpose of the LAW .

The appeal was heard by NORP , now sitting in his capacity as the President of the GPE tribunal de grande instance . He upheld the impugned decision in an order of CARDINAL DATE , against which NORP law afforded no right of appeal ( section CARDINAL , sub - paragraph CARDINAL , of the LAW DATE ) .

He gave a number of reasons for dismissing the applicant ’s appeal :

“ ... although section CARDINAL of the aforementioned LAW [ of DATE ] provides that ‘ legal aid shall be granted ... before all courts’ ... , it does not require it to be granted in all types of proceedings .

... the table appended to LAW and to which the decree refers for the calculation of counsel ’s remuneration only contemplates an accused receiving assistance in the police court for Class CARDINAL minor offences .

... that restriction can not be due to an oversight on the part of the public authorities .

... it is not for either the legal - aid office or the president of the court concerned unilaterally to extend the scope of rules in respect of which no appeal has been made to the ORG d’Etat .

... it is perfectly clear that the relevant table is restrictive in scope . ”

On DATE the applicant , assisted by a lawyer , attended the hearing at ORG . In a judgment delivered that DATE , the court found him guilty of assault entailing no unfitness for work , but decided not to impose a penalty .

LAW ( Law no . CARDINAL of DATE ) provides :

“ Natural persons whose means are insufficient to enable them to assert their rights in the courts may be granted legal aid . ... ”

“ In order to qualify for full legal aid , applicants must show that their DATE resources are MONEY . ”

“ Legal aid shall be granted for both contentious and uncontentious proceedings , to bring or to defend a claim before all courts or in connection with the hearing of a minor in accordance with LAW .

“ Each legal - aid office or department thereof referred to in LAW shall be presided over by a judge from the seat of the tribunal de grande instance or court of appeal , as the case may be .

“ The decisions of a legal - aid office , a department thereof or the president of the office or department may be referred to the president of the tribunal de grande instance , court of appeal or ORG , as the case may be , ... or his or her delegate .

No appeal shall lie against the decisions of these authorities .

Decree no . CARDINAL of DATE implementing PERSON no . CARDINAL of DATE provides , inter alia :

“ Decisions of offices established at the seat of a tribunal de grande instance ... shall be referred to the president of the tribunal de grande instance where the office was set up .

Article CARDINAL of the decree stipulates that the ORG ’s contribution to the remuneration of lawyers acting for recipients of full legal aid shall be determined by reference to a series of criteria set out in a table appended to the decree . The sole reference in the table to the category of “ proceedings for minor offences ” is “ assistance to the accused in the police court ( Class CARDINAL ) ” .

A bill on access to the law and justice , intended to reform , inter alia , the legal - aid system , is currently before ORG .

There have been no decisions of ORG on the grant of legal aid to persons prosecuted for minor offences not falling into Class CARDINAL ( and which therefore are not included in the table appended to the aforementioned decree of CARDINAL DATE ) .

At the material time , the table was construed differently by different courts . Thus , as the parties have noted , the order made on DATE by the President of the GPE tribunal de grande instance contradicted an order made DATE ( on DATE ) by the President of the GPE tribunal de grande instance .

In an order of CARDINAL DATE , the President of the PERSON tribunal de grande instance ruled that legal aid could not be refused to a person charged with a Class CARDINAL minor offence simply because the table appended to LAW no . CARDINAL of DATE only provided for assistance to be given to the accused in the police court in connection with Class CARDINAL minor offences .


The applicant was born in DATE and lives in GPE ( GPE ) .

On DATE at TIME the car of which the applicant is the registered owner was caught in GPE by a radar - trap exceeding the speed limit by CARDINAL km / h .

On DATE ORG Bezirkshauptmannschaft ) ordered the applicant pursuant to section CARDINAL § CARDINAL of LAW ( GPE ) to disclose within DATE the full name and address of the person who had been driving her car at the material time on DATE .

On DATE the applicant replied that Mr PERSON [ first and family name in full ] , living in GPE , GPE had been the driver .

On DATE ORG issued a provisional penal order ( Strafverfügung ) in which it sentenced the applicant under sections CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW to pay a fine of CARDINAL NORP schillings ( ORG ) with DATE imprisonment in default .

The applicant filed an objection against this decision .

NORP On DATE ORG dismissed the applicant 's objection and issued a penal order ( PERSON ) confirming its previous decision . It found that the applicant had failed to give complete information as requested in the order of CARDINAL DATE .

The applicant appealed on DATE submitting in particular that she had replied to ORG order , but had been unable to find out the exact address of Mr J.S. Further , she claimed that the obligation under section CARDINAL § CARDINAL of LAW to disclose the driver of her car violated the presumption of innocence and her right not to incriminate herself . Finally , she pointed out that she was a NORP national and that NORP law did not contain a comparable obligation of the registered car owner to disclose who had been driving the car at a specified time .

On DATE ORG ( Unabhängiger Verwaltungssenat ) dismissed the applicant 's appeal . As to the applicant 's complaint that the obligation under LAW of LAW violated the right not to incriminate oneself and the presumption of innocence , it noted that the relevant sentence of that provision had constitutional rank .

On DATE the applicant lodged a complaint with ORG ) . She repeated the complaint as to the alleged violation of her right not to incriminate herself .

On DATE ORG declined to deal with the applicant 's complaint for lack of sufficient prospects of success .

On DATE ORG ( Verwaltungsgerichtshof ) refused to deal with the applicant 's complaint pursuant to section DATE of LAW since the amount of the penalty did not exceed ATS CARDINAL,CARDINAL and no important legal problem was at stake .

The applicant was not prosecuted for exceeding the speed limit .

Section CARDINAL ( CARDINAL ) of LAW as amended in DATE ( ORG ) provides as follows :

's right to require such information shall take precedence over the right to refuse to give information . ”

The ultimate sentence of this provision was enacted as a provision of constitutional rank after ORG had , in its judgments of DATE and CARDINAL DATE quashed previous similar provisions on the ground that they were contrary to LAW which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself .

NORP In its judgment of CARDINAL DATE ORG found that the first to third sentences of section CARDINAL § CARDINAL of LAW as amended in DATE were , like the previous provisions , contrary to the right not to incriminate oneself which flowed from LAW and from LAW but were saved by the ultimate sentence of that provision which had constitutional rank . In reaching that conclusion ORG had examined whether the ultimate sentence of section CARDINAL § CARDINAL was contrary to the guiding principles of the constitution , but had found that this was not the case .

Section CARDINAL § CARDINAL of LAW , in the version in force at the material time , provided that a fine of up to ORG CARDINAL could be imposed on a person who violates the regulations of this Act .


No violation of Art. 6-1;No violation of Art. 6-3-c;No violation of Art. 14+6

By summons of CARDINAL DATE the applicant was ordered to appear on DATE before ORG ( PERSON in PERSON ) of GPE on charges of possession of QUANTITY of cocaine .

By judgment of DATE , following adversarial proceedings in the course of which the applicant was assisted by a lawyer , ORG acquitted the applicant . The prosecution filed an appeal with ORG ( FAC ) of GPE and GPE .

As the applicant had failed to appear before ORG of Justice at its first hearing on the appeal on DATE , he was declared in default of appearance ( verstek ) . ORG of Justice adjourned the proceedings until DATE . The applicant also failed to appear on DATE . On DATE , ORG of Justice resumed the proceedings and examined the appeal . The applicant ’s lawyer attended this hearing and conducted the applicant ’s defence .

By judgment of DATE , following proceedings in absentia , ORG of ORG quashed the judgment of DATE , convicted the applicant of having violated section CARDINAL ) of LAW of GPE ( DATE ) and sentenced him to CARDINAL years’ imprisonment .

Relying on LAW for GPE and GPE ( ORG en GPE ) , the applicant filed an appeal in cassation with ORG ( PERSON ) , which appeal is limited to points of law and procedural conformity .

In its judgment of CARDINAL DATE , ORG noted that , pursuant to LAW for GPE and GPE , no appeal in cassation lay against judgments pronounced following proceedings in absentia .

It rejected the argument advanced by the defence , that the appeal in cassation should nevertheless be declared admissible on the ground that this provision of LAW was contrary to LAW in that it constituted an unjustified difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia .

ORG noted that , according to LAW ) , a person convicted on appeal following proceedings in absentia could file an objection ( verzet ) against this conviction . If the accused then appeared before the trial court , the case would , pursuant to LAW , be fully retried by the same court in the course of adversarial proceedings and an appeal in cassation would lie against the resulting judgment .

ORG concluded that , in the circumstances , no appeal in cassation lay against the judgment of DATE . However , on the basis of the contents of a statement made on DATE on behalf of the applicant , ORG interpreted the applicant ’s appeal in cassation as being an objection against his conviction in absentia and ordered the transmission of the applicant ’s case file to ORG of Justice for a determination of the applicant ’s objection .

According to LAW as in force at the relevant time , an appeal to ORG of Justice lies against a judgment given by ORG . This appeal is a full appeal , that is , CARDINAL comprising both fact and law .

Under LAW for GPE and GPE an appeal in cassation may be filed with ORG against judgments on appeal given by ORG of GPE and GPE . Such an appeal in cassation is limited to procedural conformity and points of law .

According to LAW , a person convicted by ORG in absentia may file an objection ( verzet ) against this conviction .

If the accused then appears at the hearing on the objection before ORG , the case will , pursuant to LAW , be fully retried by that court . An appeal in cassation lies against the resulting judgment .

If the accused does not appear before ORG of Justice for the purpose of a retrial , the objection will be declared defunct and the judgment given in absentia will become final .

Article CARDINAL § QUANTITY of LAW for GPE and GPE reads as follows :

“ The accused can not file an appeal in cassation against judgments given in absentia [ bij verstek gewezen vonnissen ] . ”

According to the explanatory memorandum to LAW for GPE and GPE ( PERSON , PERSON , GPE DATE ( R DATE ) , no . CARDINAL , p. CARDINAL ) , LAW was based on the following considerations :

“ ... given the great distance between the seat of ORG and GPE , it is not to be recommended to provide for an appeal in cassation in NORP cases in all cases , where this is possible for cases in the GPE ... In general the suspect himself will be to blame that his case has been dealt with in absentia . In these circumstances , there is no cause to attach more weight to his interests than to the inconveniences which are attached to proceedings in cassation in respect of overseas cases . ”


FEDERACION NACIONALISTA CANARIA v. SPAIN

The applicant , PERSON , is a federation of political parties which was founded on DATE and is based in LOC ( GPE ) . It was represented before the ORG by Mr F. Fernández Camero and PERSON , lawyers practising in GPE .

On DATE general elections to the legislative assembly of ORG took place . The applicant federation submitted various observations on the results issued by certain polling stations in the constituency of the island of GPE .

On DATE the applicant federation lodged a complaint on the matter with ORG , which dismissed the complaint in a decision of DATE .

On DATE the applicant federation lodged an ordinary appeal against that decision with ORG , which dismissed the appeal in a decision of DATE .

On DATE ORG announced the names of the candidates who had been elected to the CARDINAL seats representing GPE in the regional legislative assembly . The applicant federation , which had obtained PERCENT of the valid votes cast in the GPE constituency , was not awarded any seats in the regional assembly . Nor was it awarded any seats in respect of the other constituencies of ORG , although it had obtained PERCENT of the valid votes cast in ORG as a whole .

The applicant federation applied to ORG for judicial review of the election results , alleging that there had been irregularities and claiming CARDINAL additional votes , which it maintained had not been counted . In a judgment of CARDINAL DATE the court dismissed the application . It stated , firstly , that it had no jurisdiction to rule on the applicant federation ’s objections concerning the thresholds for parliamentary representation ( barreras electorales ) laid down in FAC . Next , it examined the applicant federation ’s allegations of irregularities in the vote count and upheld the decisions which the electoral councils had taken to the federation ’s detriment . Thirdly , it added that the other alleged irregularities , which had not been sufficiently established , did not form a basis on which the elections could be declared void or the list of elected candidates amended in accordance with the applicant federation ’s wishes .

The applicant federation lodged an appeal with ORG ( recurso de amparo ) on the basis of LAW . In a decision of CARDINAL DATE ORG dismissed the amparo appeal . It held :

“ The application of statutory thresholds or exclusion clauses has been endorsed by this court ’s case - law as a means of refining the principle of proportionality , a ‘ guiding imperative’ that shapes , but does not predetermine , the decision - making freedom of a democratic legislature , with a view to avoiding the excessive and dysfunctional fragmentation of ORG , thereby facilitating governance and the work of the parliamentary bodies ... representing the various political forces ...

Consequently , the imposition of an electoral threshold or barrier – that is to say , a requirement that a fixed percentage of the vote must be obtained for candidates to be eligible to take part in the distribution of seats in accordance with established models DATE can not be said to infringe the rights enshrined in LAW ( the right to participate in public affairs and the right of access to public posts on equal terms ) .

Furthermore , the prior allocation , regardless of population size , of a set number of seats to each constituency of an electoral region , is not unconstitutional ... Quite apart from the ‘ guiding imperative’ referred to above , other constitutionally valid concerns , such as the need to ensure , for geographical or , indeed , demographic reasons , that all the territorial areas making up the electoral region are adequately represented , serve in themselves as justification for the electoral system in question . The system established by ORG , whereby the number of residents per seat must lie within specified limits in each of the constituencies , is in no way manifestly disproportionate or arbitrary .

The appeal is therefore inadmissible and the reasons given for the application of electoral legislation in the judgment appealed against are sufficient from a constitutional standpoint . ”

“ CARDINAL . Parliament ( ORG ) shall represent the NORP people and shall be composed of ORG and the ORG .

Parliament shall exercise the legislative power of the ORG ... ”

“ By virtue of LAW , each ORG shall have as its basic institutional law a Statute , which the ORG shall recognise and protect as an integral part of its legal system . ”

“ CARDINAL . ORG may exercise powers in the following areas :

( i ) organisation of their institutions of self - government ;

“ Responsibilities not expressly conferred on the ORG by the LAW may fall to ORG , in accordance with their GPE . ... ”

“ CARDINAL . In matters within the ORG ’s field of competence , ORG may endow all or some of ORG with powers to enact legislative provisions for themselves in accordance with the principles , bases and guidelines set out in national legislation . ...

The ORG may , by means of an institutional Act , transfer or delegate to the Autonomous Communities powers within its own sphere of competence that are , by their very nature , capable of being transferred or delegated . ... ”

“ In the ORG approved by means of the procedure laid down in the foregoing Article , the institutional organisation of ORG shall be based on : a legislative assembly elected by universal suffrage according to a system of proportional representation that also ensures that the various geographical areas of the ORG are represented ; a ORG with executive and administrative functions ; and a President , who shall be elected by the assembly from among its members and appointed by the King , and who shall preside over ORG and act as the supreme representative of ORG and the ordinary representative of the ORG within the ORG . ... ”

“ CARDINAL . Parliament , the representative body of the people of GPE , shall be composed of regional deputies ( autonómicos ) elected by direct universal suffrage in an equal , free and secret ballot .

NORP The electoral system shall be CARDINAL of proportional representation .

NORP The number of deputies shall be neither lower than CARDINAL nor CARDINAL .

NORP The islands of GPE , GPE , GPE , GPE , GPE , GPE and GPE shall each form an electoral constituency . ”

NORP ... in accordance with LAW , and save where a law passed by a CARDINAL majority of the members of the GPE legislative assembly provides otherwise , the only lists to be taken into account shall be those of the parties or coalitions that have obtained the greatest number of valid votes in each of the constituencies and the other [ lists ] that have obtained PERCENT of the valid votes cast in a single constituency or , adding together the votes for each constituency , PERCENT of the valid votes cast in ORG as a whole . ”


CASE OF NACİ AKKUŞ AND NECMİ AKKUŞ v. TURKEY

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

The applicants were born in DATE and DATE respectively and live in LOC .

In DATE ORG of Highways seized a plot of land belonging to the applicants without any formal expropriation , for the construction of a highway . The applicants brought an action before ORG to obtain compensation for the de facto expropriation of their property . They requested MONEY ( TRY ) as compensation from the court and reserved their right to increase this claim in due course .

On DATE ORG awarded the applicants TRY CARDINAL as compensation for the de facto expropriation of their land , as requested , plus interest . The applicants initiated execution proceedings before ORG to obtain that amount ( file no . CARDINAL/CARDINAL ) .

On DATE ORG upheld the judgment of the first - instance court .

The applicants subsequently brought an additional action ( “ ek dava ” ) before ORG to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings , which had valued the land at a rate higher than that initially requested by them .

On DATE ORG awarded the applicants TRY PERSON , plus interest . The applicants initiated another set of execution proceedings before ORG to obtain the amount awarded ( file no . CARDINAL/CARDINAL ) .

On DATE ORG upheld the judgment of ORG .

On DATE the administration paid TRY ORG to file no . CARDINAL before ORG in respect of the debt arising from the initial action .

Subsequently , on DATE they paid TRY ORG to file no . CARDINAL/CARDINAL before ORG in respect of the debt under the additional action . According to the information provided by the applicants , there has been no outstanding debt in the execution files .


The first applicant is ORG ( “ ORG ” ) and the second applicant is ORG ( “ Multigroup ” ) . They are commercial companies incorporated in GPE and have their registered offices in GPE . The application was submitted also on behalf of a third company , ORG ( “ DH ” ) ( the third applicant ) , which ceased to exist on DATE , when it was wound up and merged into the second applicant , its successor . Before the ORG the applicants were represented by PERSON , a solicitor practising in GPE .

The respondent Government were represented by PERSON , ORG .

The application is based on the applicant ORG assertion that ORG nullified their private transaction with ORG enterprises through retrospective legislation and by procuring favourable judgments of ORG and ORG .

The transaction in question was a debt assignment . The applicant companies had bought debt owed between ORG - owned enterprises in respect of natural gas delivered under an inter - governmental agreement .

The Government consider that the judgments of ORG and ORG declaring this transaction null and void as contrary to the law were not based on retrospective legislation and , being in conformity with the relevant law , can not be seen as an arbitrary ORG interference with possessions .

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

Under a DATE inter - governmental agreement ( “ the GPE agreement ” ) , GPE undertook to supply natural gas to GPE in exchange for GPE ’s participation in the construction and equipment of pipelines in GPE and deliveries of other commodities . GPE received natural gas from GPE under CARDINAL other similar agreements , dating from DATE and DATE . The PERSON agreement was amended in DATE and later reconfirmed and amended by protocols signed in DATE between GPE and GPE and between GPE and GPE .

In DATE a number of acts of ORG , governmental decrees , regulations and instructions dealt with various aspects of the construction - for - gas scheme . By enacting them the ORG was performing a dual function , being the legislator and at the same time the owner and manager of the relevant assets . Regulation in the economic area was typically effected through subordinate legislation ( see below , Relevant domestic law and practice , on the transition of NORP law from that of a fully ORG - owned centrally controlled economy to that of a market economy ) .

Several State enterprises and banks were instructed to work on the PERSON project . They entered into direct contracts with NORP and later NORP enterprises , thereby fixing certain prices , responsibilities and other conditions . The participation of NORP State enterprises changed whenever the ORG re - assigned responsibilities .

The DATE and DATE protocols amending the ORG agreement provided that the ORG enterprises involved in the project had to introduce changes in their direct contracts . The direct contracts between the NORP and NORP or NORP enterprises , including those signed in DATE , invariably stipulated that they were subject to amendment in case of changes in the underlying inter - governmental agreements .

Some of the construction works carried out in compliance with the inter - governmental agreements was financed directly from the ORG budget ( section CARDINAL(CARDINAL ) of Decree No . CARDINAL of ORG DATE ) , whereas others were financed by ORG enterprises .

By Decree no . CARDINAL of DATE ORG decided that a ORG - owned bank , Biochim , should finance the GPE project . The bank was instructed to provide funds for the construction works under the PERSON agreement and to receive reimbursement from another ORG enterprise - which later adopted the name ORG - out of the revenues collected from gas consumers . The decree further stipulated that sums received in excess of the planned revenues should be paid into the ORG budget and that in case of insufficient revenues the ORG budget would cover the difference .

The distribution of the imported gas to NORP consumers was thus the task of ORG , which gradually began to handle the financing of certain construction works too .

Since a significant part of the construction works carried out by GPE under the LOC agreement preceded the beginning of gas deliveries , ORG incurred expenses in the period DATE which were expected to be covered by the proceeds from gas supplied to NORP consumers over DATE .

The big gas consumers in the country were State industrial enterprises . Having been conceived to function in the conditions of a centrally administered economy and to produce for the former communist countries , many of them ran into substantial difficulties after DATE and defaulted on payment of their debts owed to ORG . Significant unpaid arrears for the gas imported under the LOC and other inter - governmental agreements thus accumulated ( “ the unpaid gas debt ” ) which in turn affected the ORG budget .

The PERSON on the DATE State Budget , published in DATE , listed among the expected budget revenues “ arrears arising out of gas importation in DATE ” . ORG adopted regulations for the implementation of the DATE ORG budget , published in DATE . Regulation CARDINAL provided as follows :

“ The ORG Company Bulgargas shall pay DATE into the ORG budget the difference between all income from the sale of natural gas at domestic prices determined by ORG and the actual expenditure incurred in the importation and distribution , including investment expenditures incurred in the implementation of inter - governmental agreements . ”

The PERSON on the CARDINAL Budget , adopted by ORG and published in DATE , also listed as budget revenues the income from gas imported in return for NORP participation in the LOC system .

Regulation CARDINAL(CARDINAL ) of the Regulations for the implementation of the DATE budget , published in ORG in DATE ( Council of Minister ’s Decree No . CARDINAL ) , contained the same text as LAW .

In addition , Regulation CARDINAL(CARDINAL ) provided as follows :

“ ... debt owed to ORG and PERSON by clients in the country for the sale of natural gas and energy supplied DATE pursuant to inter - governmental agreements shall be collected in accordance with the PERSON on ORG . ”

The DATE budget adopted in DATE again listed among the expected revenues the income from the sale of natural gas imported under the GPE agreement , including past arrears .

It further provided that ORG should collect the arrears through the fiscal authorities , in accordance with the PERSON on ORG , and should seek writs of execution against the debtors .

The DATE budget also contained similar provisions while expressly referring to the revenues from the sale of ORG natural gas as “ State debts ” .

ORG has at all relevant times been a wholly ORG - owned enterprise . Until DATE it was a “ ORG ” within the meaning of Decree No . PERSON on Economic Activity . On DATE it was transformed into a wholly ORG - owned joint - stock company , in accordance with LAW and the specific legislation on reorganisation of ORG enterprises ( see below , Relevant domestic law and practice , for all questions concerning the particular legal status of such entities and the legal regime of their assets and management ) .

Among the biggest debtors owing significant arrears for ORG gas delivered DATE were GPE and GPE ) , CARDINAL of the country ’s largest industrial enterprises , both wholly ORG - owned .

The applicant companies entered into negotiations with ORG with a view to purchasing at a discount the “ unpaid gas debt ” owed by GPE and PERSON In a report drawn up by the managers of ORG later it was asserted that their efforts to secure cash inflow through debt assignment averted an imminent grave disruption of gas deliveries with potentially dire consequences for the whole national economy .

In DATE a first draft contract was submitted to ORG . On DATE , following discussions on the matter , ORG agreed in principle while fixing a ceiling on the amounts to be assigned , requiring an undertaking by the assignees that they would not seek to have GPE or K declared in a state of insolvency or have their assets attached , and setting out further conditions . The decision of CARDINAL DATE also stated that the amended draft contract should be approved by ORG and ORG .

An amended draft contract was submitted to the Minister of Industry who issued a letter dated DATE stating that the conditions set out in the decision of ORG were satisfied but directing that an approved schedule of payments should be appended .

The debt assignment contract was signed on DATE by the first applicant and PERSON as the assignees and PERSON as the assignor .

According to the contract the first applicant and ORG purchased at a discount “ unpaid gas debts ” . These were MONEY ( “ BGL ” ) principal owed by GPE ( the equivalent of MONEY at the applicable exchange rate ) and a similar amount owed by PERSON , as well as additional amounts in respect of interest due . The discount was PERCENT on the principal of the purchased debt and PERCENT on the interest .

The first applicant and ORG agreed to pay directly to various companies amounts apparently owed by ORG to them in respect of construction works on pipelines , including - for CARDINAL of the price - those effected by a ORG - owned enterprise pursuant to the PERSON agreement . In respect of the interest , the price was to be paid to ORG only .

The contract contained an arbitration clause .

According to the applicants , GPE did not make any payments . Without initially challenging the debt assignment , GPE ’s managers informed the applicants that they were under an obligation to pay through the fiscal authorities . Later GPE disputed the validity of the contract and the applicants brought judicial proceedings against it which ended with judgments declaring the debt assignment null and void ( see below , ORG proceedings ) . A significant part of GPE ’s debt was eventually set off against its tax liability by decision of the fiscal authorities based on , inter alia , Regulation CARDINAL(CARDINAL ) of DATE ( see above ) . The triangular set - off concerned sums owed by GPE to PERSON ( the unpaid gas debt ) , sums owed by ORG to the ORG and sums owed by the fiscal authorities to GPE ( tax refunds ) .

The managers of K did not question the validity of the debt assignment and began payments immediately upon notification thereof . Within DATE K paid to the applicants BGL CARDINAL , CARDINAL of the debt . K also agreed to sign a novation contract directly with the first applicant and PERSON . That contract , signed on DATE , introduced certain modifications in the manner and timetable of payments and contained an arbitration clause . K stopped paying after DATE and later unsuccessfully challenged the validity of the debt assignment in proceedings against the applicants ( see below ) . Eventually , on DATE , the applicants sold the remainder of ORG “ unpaid gas debt ” to ORG ( ORG ) .

The first applicant and PERSON , for their part , made several payments to ORG and another company DATE and DATE in respect of the price of the purchased debt . According to the applicants , they have paid a total of BGL CARDINAL .

On DATE GPE sent a letter to ORG concerning the validity of the debt assignment . On DATE and DATE ORG wrote to GPE , GPE and K expressing the view that the debt assignment contract was not valid or had not entered into force , as no schedule of payments had been included , contrary to the ORG of ORG decision of CARDINAL DATE .

On DATE the assignment of the unpaid gas debt was discussed at a meeting of ORG . The Government considered that it was contrary to the PERSON on the DATE State Budget , Regulation CARDINAL of DATE , and the PERSON on ORG . Instructions were issued for measures to be taken against the managers of ORG for having acted in breach of the law . It was further decided that there should be an “ immediate suspension of the transfer of the debts ... and invalidation of the entries in the accounts ... ” .

In DATE K , having suspended payments to the applicants , brought proceedings against the first applicant and PERSON before ORG seeking a declaration that the novation contract of DATE was invalid . By a decision of CARDINAL DATE ORG found that the contract was valid . It rejected the claim that pursuant to the PERSON on the DATE ORG and the implementing acts the arrears owed to ORG had become the property of the ORG and that therefore their assignment was to be considered invalid .

On DATE CARDINAL ORG brought a claim before ORG seeking recovery of an amount from the first applicant and PERSON . The amount sought was the difference between the sums paid by the first applicant and PERSON to ORG and the sums received by the applicants from the debtors .

By a decision of CARDINAL DATE ORG rejected the argument that the debts assigned under the contract of DATE were the property of the ORG , that they were thus not transferable and that therefore the debt assignment contract was null and void . This argument had been based on , inter alia , Regulation CARDINAL(CARDINAL ) of DATE for the implementation of the PERSON on the DATE State Budget ( see above ) . ORG noted that ORG had been and had remained the creditor in respect of the unpaid arrears . The legal provisions invoked had merely sought to introduce a special legal regime for their collection , the regime under LAW on ORG . That law applied to all ORG debts and - in cases provided for by ORG - to the collection of other debts . As the Regulations for the implementation of the DATE budget were merely a piece of subordinate legislation , the special legal regime for collection of debts had only become applicable to ORG ’s debts by virtue of the provisions of the DATE budget , adopted by ORG . In any event , even if it was considered that the special procedure had been applicable to the collection of the gas debt as of the date of the assignment contract , that fact could not alter the private law nature of the debt .

In DATE PERSON again applied to ORG seeking a declaration that because clause CARDINAL of the debt assignment contract of DATE was void , the entire contract was void . Clause CARDINAL stipulated that the first applicant and ORG would not seek to have K and GPE declared into a state of insolvency . On DATE ORG held that clause CARDINAL was void as it purported to exclude the right to levy distress , but that this did not render the entire contract void .

In DATE , not having received any payment from GPE , the first applicant and ORG brought proceedings before ORG against GPE for payment of part of its debt . PERSON intervened in the proceedings as a third party in support of GPE . By a judgment of DATE ORG granted the claim , rejecting the objection of GPE that the debt assignment contract of DATE was not valid . The court considered that ORG decision of CARDINAL DATE was binding in this respect .

GPE appealed . By a judgment of DATE ORG overturned the lower court ’s judgment .

ORG found that ORG decision of CARDINAL DATE was only binding on the parties , which were , in the proceedings leading to that decision , the first applicant and PERSON and , as an adverse party , PERSON . GPE was not a party thereto .

The court further found that under an international agreement of DATE between GPE and the former GPE the Bulgarian State had undertaken to participate in the construction of gas supply pipelines and deliver machines and equipment . GPE had undertaken to supply natural gas to GPE . This agreement had later been reconfirmed by a protocol signed between GPE and GPE .

GPE ’s ORG had designated a ORG enterprise , later incorporated as a wholly ORG - owned joint - stock company under the name ORG , to conclude the necessary contracts for the construction works and for the supply of gas to GPE . However , ORG had remained a party to the underlying international agreement . Therefore , the natural gas thus delivered was ORG property . The income from gas deliveries was listed among the budget revenues under the DATE and DATE budget laws . By LAW of the Regulations on the implementation of the DATE ORG budget PERSON had been entrusted with the task of selling the supplies of NORP natural gas to consumers . The ORG provided that all revenues therefrom should be paid on a DATE basis by ORG to the ORG budget after deduction of the expenses incurred . This was also provided for in Regulation CARDINAL(CARDINAL ) of the Regulations for the implementation of the PERSON on the DATE ORG . The regulations were adopted by ORG which was competent to enact measures in execution of the ORG budget .

ORG found that there had therefore been a particular legal regime established by the ORG as the owner of the natural gas according to which all income from gas supplies had to be paid into the ORG budget after deduction of the delivery expenses . The assignment of the unpaid gas debt to the applicants ran contrary to this regime and the requirements of the DATE and DATE budget laws , including the applicable provisions on maintaining the budget balance . The contract of DATE was void .

ORG expressly stated that its conclusions were not based on the provisions of the PERSON on the DATE State Budget concerning the applicability of the PERSON on ORG . The applicable collection procedure , established in Regulation CARDINAL(CARDINAL ) of DATE and the DATE law , was irrelevant .

The first applicant and ORG submitted a petition for review ( cassation ) to ORG . By judgment of DATE ORG upheld the judgment of DATE .

ORG acknowledged that under LAW of DATE Bulgargas , as a legal person separate from the ORG , was the owner of all its assets . However , the special legal regime , as correctly established in the impugned judgment of DATE , made it clear that the claims at issue had been fiscal and not commercial . Thus , invariably in all ORG budgets , for DATE , the income from the sale of natural gas had been listed as an item among the expected revenues for the ORG budget . Had the claims at issue been commercial and not fiscal , the ORG would have been entitled to receive from ORG only the dividends and the ordinary taxes owed by every commercial company . However , the applicable provisions clearly entitled the ORG to receive all revenues from the sale of natural gas after deduction of expenses , regardless of the financial results from all other activities of the company . The assignment of the GPE debt , which was a budget entry on the income side , was thus unlawful .

ORG further mentioned that in accordance with the DATE budget law the sums owed by GPE were subject to the special collection procedure under LAW .

ORG also addressed the ORG argument that ORG judgment of DATE ( see below ) had established the private - law nature of the debts at issue . It noted that the issue decided by ORG had been whether an amendment to the PERSON on the DATE ORG had been unconstitutional rather than the civil dispute concerning the debts at issue . The refusal of ORG to suspend the proceedings pending the outcome of the case before ORG was not , therefore , in breach of procedural rules .

None of the arbitral awards or the judicial decisions involving the applicants referred to any previous cases concerning the special legal regime of the unpaid gas debt . It appears that in this respect the dispute concerning the DATE debt assignment was the first of its kind .

On an unspecified date in DATE ORG introduced in ORG a bill on interpretation of certain provisions of the PERSON on the DATE ORG . In the reasoning accompanying the bill , ORG stated , referring to ORG judgment of CARDINAL DATE , that there had been contradictory opinions on the question whether claims arising out of the sale of natural gas were transferable . ORG therefore had to adopt an interpretation of the LAW , as it was competent to do under LAW . The proposed bill on interpretation was not adopted . Apparently it was redrafted as a bill amending the PERSON on the DATE ORG .

By acts of ORG of DATE and CARDINAL DATE the PERSON on the DATE ORG was amended . The amendment stated inter alia that all claims arising out of the sale of natural gas were ORG claims and were not transferable unless otherwise provided by act of ORG . Also , the amendment provided that a debtor who had paid into the ORG budget arrears due in respect of deliveries of natural gas should be considered to have discharged his debt and that the ORG should not be liable to any third person in respect of any sums thus received in the ORG budget .

By a judgment of DATE ORG , acting upon a referral by the President of GPE , declared the amendments of CARDINAL July and DATE unconstitutional . It found that the amendments purported to declare as ORG property claims which had previously not been considered to have been ORG claims . This was contrary to the LAW guarantee on property rights . The ORG further rejected the argument of ORG that the amendment had been of an interpretative nature . The ORG noted that it introduced a new provision .

By letter of DATE , faxed and mailed on DATE , the ORG lawyer stated his intention to submit an application on behalf of ORG and ORG and briefly described the events complained of . The letter stated that ORG was a company incorporated under NORP law with its registered office in GPE .

In a letter of DATE requesting an extension of the time for submission of the application form , the applicants’ lawyer again referred to ORG and DH as the applicants . The application form , dated DATE , mentioned PERSON for the first time .

Together with the application form the applicants’ lawyer submitted CARDINAL authorisation forms : a power of attorney dated DATE issued by the executive directors of ORG and a power of attorney dated DATE issued by the executive director of ORG . The latter document stated that it authorised PERSON to represent both PERSON and PERSON .

According to NORP law at the time of the conclusion of the construction - for - gas inter - governmental agreements , almost all economic activity was owned and administered by the ORG . All commercial assets were the property of the ORG and were only allocated to ORG enterprises for “ use and management ” - which included the power to transfer property between ORG enterprises in accordance with the applicable rules . State enterprises possessed distinct legal personality but were under the direct control of the relevant ministries . State assets , including debts , could be taken away from CARDINAL enterprise and re - assigned to another by simple decision of the relevant ministries . Certain elements of self - management were introduced during DATE , within the limits of a centrally - administered and ORG - owned economy .

A process of replacing economic legislation began in DATE , after the beginning of democratisation .

In DATE certain provisions of LAW were amended . In DATE a new LAW enshrined the right to peaceful enjoyment of property . LAW , setting out rules on incorporation and management of companies , was also enacted in DATE .

Under LAW and other legislation adopted in DATE and DATE , ORG enterprises had to be transformed , by decision of the relevant ministry and upon registration at the competent court , into ORG - owned limited liability companies or ORG - owned joint stock companies .

The question whether the transformed enterprises became the full owners of their assets or were beneficiaries of a right to use and manage ORG property was still discussed in the legal theory after DATE . While the new provisions of commercial law were based on the concept that every commercial company owned its assets , under LAW ( regulating real and movable property ) as in force DATE ORG - owned legal persons only “ exercised , on their own account , the right to ORG property in respect of assets provided to them ” . On the other hand the provisions of Decision No . CARDINAL of DATE of ORG and section CARDINALa ( adopted DATE ) of the PERSON on LAW provided that in the process of transformation of a ORG enterprise ownership of real estate or other assets that had been used and managed by it should be deemed to belong to the transformed company . That was the prevailing view .

In DATE a number of provisions of GPE which limited freedom of contract on the basis of the old concepts of a centrally planned economy were repealed . New provisions regulating commercial transactions were for the first time enacted in DATE , when a new chapter was added to LAW . In the meantime certain limitations on contractual freedom remained in provisions specifically applicable to wholly ORG - owned limited liability or joint stock companies , mostly relating to the transitional period pending their privatisation ( additional section CARDINAL of the PERSON on the Establishment of Wholly State - Owned Commercial Companies ; additional section QUANTITY of the PERSON on LAW , sections CARDINAL and CARDINAL of Regulations No . CARDINAL of ORG of DATE , in force until DATE , Regulations on the Manner of Exercise by ORG , adopted in DATE , Decree No . CARDINAL on Economic Activity and the regulations for the application of the decree ) .

In DATE the new ORG and amendments to LAW provided that ORG - owned commercial companies became the owners of all their assets and the ORG ceased to be the owner of property it had provided for the creation of a ORG - owned joint stock or limited liability company .

The transition from legislation regulating a ORG - owned centrally planned economy to one suited for a market economy was largely completed in DATE with the adoption of the above - mentioned property laws and provisions on commercial transactions . In DATE the remaining parts of Decree No . CARDINAL on Economic Activity , the main piece of legislation in this area in the period before the market reforms , was repealed .

This law provides for a specific fiscal enforcement procedure for the collection of ORG claims , different from that under general civil procedure . According to its section CARDINAL that procedure may also apply to the collection of other claims where so provided by act of ORG .

In accordance with LAW does not examine individual complaints . It rules on the constitutionality of laws if so requested by the President , certain other institutions , or a minimum of CARDINAL of all members of ORG . It can also examine certain categories of cases concerning elections .