Violation of P1-3;Pecuniary damage and non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

She stood for the elections to ORG ( ORG ) of DATE as a candidate of the opposition bloc PERSON . She was registered as a candidate by ORG ( “ the ConEC ” ) for the singlemandate ORG no . CARDINAL .

The constituency was divided into CARDINAL electoral precincts , with CARDINAL polling station in each precinct . There were a total of CARDINAL candidates running for election in this constituency .

At DATE , the applicant obtained copies of the election protocols drawn up by each of the thirty - seven Precinct Electoral Commissions ( “ the PEC ” ) . According to the copies of the ORG protocols in the applicant 's possession , she received the largest number of votes in the constituency . Specifically , she received a total of CARDINAL votes . The second highest number of votes , CARDINAL votes in total , was received by a candidate from the ruling ORG ) . The applicant received the highest number of votes in CARDINAL polling stations , while PERSON received the highest number of votes in CARDINAL polling stations .

According to the ConEC protocol drawn up on DATE following an official tabulation of results received from the precincts , the applicant obtained the highest number of votes cast in the constituency . Specifically , according to the ConEC protocol , the applicant received CARDINAL votes , ORG received CARDINAL votes , and a third candidate received CARDINAL votes . The total number of votes cast for each of the remaining candidates was substantially lower . The ConEC protocol indicated the applicant as “ the elected candidate ” .

On DATE ORG ( “ the ORG ” ) issued a decision invalidating the election results in ORG no . CARDINAL . The decision , in its entirety , stated as follows :

“ Pursuant to Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL.CARDINAL.CARDINAL of LAW and sections CARDINAL of the PERSON of CARDINAL DATE on Approval and Entry into Force of LAW , ORG decides :

To invalidate the election results in Polling Stations nos . CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , and CARDINAL of ORG no . CARDINAL due to impermissible alterations [ “ yolverilməz düzəlişlər ” ] made in the PEC protocols of these polling stations as well as infringements of law [ “ qanun pozuntuları ” ] which made it impossible to determine the will of the voters .

To invalidate the election results in ORG no . CARDINAL due to the fact that the number of polling stations in which the election results have been invalidated constitutes CARDINAL of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes CARDINAL of the total number of voters in the constituency .

To forward the relevant materials concerning this electoral constituency to ORG for investigation . ”

On DATE the applicant lodged an appeal against this decision with ORG , arguing that the findings in the ORG decision were wrong . While the ORG decision noted that “ impermissible alterations ” had been made to the protocols of CARDINAL PECs , in reality such alterations had been made to the protocols of CARDINAL PECs ( in FAC . CARDINAL , DATE , DATE , DATE and DATE ) . The applicant noted that this conclusion could be arrived at by simply comparing the ConEC protocol with the copies of the ORG protocols in her possession . She further noted that , on each occasion , the alterations had been made to reduce the number of votes cast in her favour and to increase the number of ORG 's votes . Even though these falsifications were directed against the applicant , she was still the winner according to the falsified results announced by the ConEC .

As to the alterations made in the remaining eleven PEC protocols , the applicant argued that they were of a technical nature and did not affect the number of votes cast for each candidate . Therefore , those alterations could not impede the determination of the will of the voters .

The applicant further complained that the ORG had failed to consider the possibility of ordering a recount of the votes as required by LAW and to summon her as the candidate and hear her explanation as required by LAW .

Lastly , the applicant noted that the ConEC protocol had been submitted to the ORG on TIME and the issue of invalidation of the election results had been put immediately on the ORG agenda on DATE . As a result , due to lack of time , some ORG members had received incomplete or misleading information about the matter and had thus made an uninformed decision .

During the hearing held on DATE , the judges of ORG refused to independently examine the originals of the ORG and ConEC protocols . ORG upheld the ORG decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful .

The applicant lodged a cassation appeal . Apart from the arguments advanced in her appeal before ORG , she also complained , inter alia , that ORG had refused to independently examine the primary evidence ( the originals of the relevant election protocols ) and had simply taken the ORG 's findings as fact .

On DATE ORG rejected the applicant 's appeal and upheld ORG judgment as lawful .

Subsequently , it was decreed to hold repeat elections in all constituencies in which the election results had been invalidated . There were a total of CARDINAL such constituencies . It appears that , owing to certain opposition forces ' decision to boycott the repeat elections , the applicant did not stand for election in the repeat elections held on DATE .

In the meantime , criminal proceedings were instituted against the ConEC chairman and the chairman of ORG no . CARDINAL , for tampering with the official PEC protocols of a total of CARDINAL different polling stations ( Polling Stations nos . CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and DATE ) .

On DATE the ORG convicted both the defendants under ORG CARDINAL ( falsification of election documents ) and MONEY ( abuse of official power ) of LAW . The first defendant was fined in the amount of CARDINAL new NORP manats ( MONEY ) and was banned from holding office in the electoral administration . The second defendant was sentenced to DATE and DATE corrective labour , with PERCENT of his earnings to be withheld in favour of the ORG .

The factual findings in ORG judgment , based on the defendant 's own confessions and several witness statements , revealed that the majority of falsifications in the ORG protocols had been made at the ConEC level by its chairman , after the submission of the protocols to the ConEC . These falsifications were made in favour of either ORG or other candidates , but not the applicant .

NORP In particular , during the hearings , the first defendant , the PERSON chairman , confessed that he had tampered with the ORG protocols for CARDINAL polling stations . In particular , he altered the figures representing the total vote count of various candidates in each polling station by inserting additional numbers or changing the existing numbers . In this manner , he increased the number of votes for CARDINAL candidates other than the applicant ( including PERSON , to whose vote count he added CARDINAL more “ votes ” ) , and reduced the number of votes received by the applicant ( by CARDINAL “ votes ” ) .

The second defendant , the ORG chairman , confessed to having tampered with the ORG protocol for his polling station in a similar manner , with the aim of increasing the total vote counts of CARDINAL candidates who were the applicant 's opponents .

After the count of votes in a polling station at the end of DATE , the ORG draws up an election protocol ( in CARDINAL original copies ) documenting the results of the vote in the polling station ( Articles CARDINAL ) . CARDINAL copy of the ORG protocol , together with other relevant documents , is then submitted to the relevant ConEC within TIME ( Article CARDINAL ) . The ConEC verifies whether the ORG protocol complies with the law and whether it contains any inconsistencies ( LAW ) . After submission of all ORG protocols , the ConEC tabulates , within DATE of DATE , the results from the different polling stations and draws up a protocol reflecting the aggregate results of the vote in the constituency ( Article CARDINAL ) . CARDINAL copy of the ConEC protocol , together with other relevant documents , is then submitted to the ORG within DATE of DATE ( Article CARDINAL ) . The ORG checks whether the ConEC protocols comply with the law and whether they contain any inconsistencies ( Article CARDINAL ) and draws up its own final protocol reflecting the results of the elections in all constituencies ( Article CARDINAL ) .

NORP If within DATE of DATE the ORG discovers mistakes , impermissible alterations or inconsistencies in protocols ( including the accompanying documents ) submitted by ConECs , the ORG may order a recount of the votes in the relevant electoral constituency ( LAW ) .

Upon review of a request to invalidate the election win by a registered candidate , an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials ( Article CARDINAL ) .

In case of discovery of irregularities aimed at assisting candidates who have not ultimately been elected , such irregularities can not be a basis for invalidation of election results ( Article CARDINAL ) .

The CARDINAL or ORG may invalidate the election results in an entire single - mandate constituency if election results in CARDINAL of polling stations , representing CARDINAL of the constituency electorate , have been invalidated ( Article CARDINAL.CARDINAL.CARDINAL ) .

According to former LAW in force at the material time , during the initial vote - counting at a polling station at the end of DATE , upon discovery in the ballot - box of a voting ballot which had not been properly placed in the corresponding envelope , the vote on that ballot was considered to be invalid . Article CARDINAL was subsequently repealed on DATE .

The relevant excerpts from the report read as follows :

“ Although constituency aggregate results were made available within the legal deadline , detailed results by polling station were only released on DATE , DATE after the election , despite the computer networking of all ConECs with the ORG . This made it difficult for candidates and observers to check that results had been reported accurately . Protocols from CARDINAL constituencies , CARDINAL and DATE , were never posted publicly . ...

The ORG invalidated the results of CARDINAL constituencies [ including ORG No . CARDINAL ] under LAW , which states that if a ConEC or the ORG cancels CARDINAL of PECs representing CARDINAL of the total electorate in a constituency , then the entire constituency result is considered invalid . ...

At least ... CARDINAL ConEC chairpersons [ ConECs CARDINAL and DATE ] were dismissed after DATE for involvement in electoral malfeasance . The CARDINAL ConEC chairpersons were arrested and charged with forging election documents . ... The ORG forwarded materials on possible criminal violations to ORG Office regarding CARDINAL PECs . ...

The process of invalidation of aggregated results in CARDINAL constituencies by the ORG did not have sufficient legal grounds or an evidentiary basis , nor was the process transparent . The ORG decisions on the invalidation of the election results in the CARDINAL constituencies concluded that there were “ unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters ” but did not provide any factual basis to support this conclusion . ...

Furthermore , when it invalidated results , the ORG did not make the required initial factual inquiry [ as required by LAW ] , and ignored LAW , which authorizes the ORG to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “ mistakes , inadmissible corrections and inconsistencies . ” Protocols of ConECs and PECs were not examined or reviewed at ORG sessions . Invalidation of results in a polling station was premised solely on the conclusion of an individual ORG member as to whether a protocol should be invalidated . The judgment of a single ORG member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved . Accordingly , there was no factual basis presented publicly for invalidating results in any of the CARDINAL constituencies , which is particularly troubling since the ORG registered few complaints that alleged violations in these constituencies . ...

The adjudication of post - election disputes in the courts largely disregarded the legal framework , and fell short of internationally accepted norms . ... In most cases , complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both ORG and ORG .

Opposition candidates appealed the ORG 's invalidation of results in constituencies CARDINAL , DATE and CARDINAL . ORG upheld the CARDINAL ORG decisions without any investigation or review of the primary documents and evidence , such as the ORG protocols . In constituency CARDINAL , the appellant petitioned ORG to examine the protocols , which had been forwarded to ORG office by the ORG . This petition was denied . In constituency DATE , the appellant made an identical request and the court again denied the petition , ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline . The ORG was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation . ...

Proceedings in ORG did not correct the shortcomings noted above . ORG upheld each ORG decision . ”


The applicant , PERSON , is a GPE national , born in DATE and living in GPE . She is represented before the ORG by Mr M. Murdoch , a lawyer practising in GPE . The respondent Government are represented by PERSON of ORG .

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

The applicant is a Romany traveller or gypsy . In DATE she purchased her plot of land at CARDINAL FAC , GPE , GPE and since then she has lived in a caravan or caravans on the plot with her aged mother and the applicant 's CARDINAL grandchildren who attend local schools . The applicant 's mother suffers from poor health and requires constant attention . She has lived in caravans all her life . The applicant at the time of introducing the applicant had employment in a local supermarket , but herself also has difficulty reading and writing . A number of other gypsy families lived in caravans in adjacent sites . PERSON had been used by gypsies for DATE and the group resident there were known as the “ Dudmoor gypsies ” .

The applicant 's request to ORG ( the “ Council ” ) for planning permission to station her caravans on her land was refused sometime in DATE . The reasons given for the refusal were :

NORP that the site fell within an area designated as LOC and was therefore contrary to LOC ;

NORP that a residential caravan as proposed was considered to be visually damaging to the landscape and was therefore contrary to LOC ;

NORP that the proposed development would be contrary to the provisions of ORG as adopted by ORG for this area , and

NORP that , whilst the foul water drainage arrangements were considered to be adequate for the proposed development , the ORG was concerned about the proliferation of such facilities in the immediately surrounding area which might ultimately cause environmental problems and necessitate a marine drainage scheme .

An enforcement notice was issued on DATE concluding that there had been a breach of planning control due to a material change of use of land from uncultivated and uninhabited land to use for stationing a caravan for the purposes of human habitation . The notice required that the land be reverted to former use as uncultivated and uninhabited land by removing the caravan from the land within DATE .

An appeal was made to the Secretary of ORG for the Environment against the refusal of planning permission ( under section CARDINAL of ORG DATE as amended by ORG DATE ) and the enforcement notice ( under PERSON CARDINAL(CARDINAL)(a ) and ( h ) of ORG DATE as amended ) . An Inspector was appointed and he held a local public inquiry into the appeals on CARDINAL and DATE . Having visited the site and having heard submissions for the applicant , the ORG and third parties , the Inspector concluded that there was a “ small but identifiable need for accommodation in the area ” . However in respect to the impact of the unauthorised development , the ORG stated :

“ The buildings , caravans and rectangular shaped plots are out of keeping with the area and considerably detract from its rural character and appearance ... [ T]hey have , in my opinion , a suburban appearance , quite alien in this setting , that unacceptably harms the visual quality of the area and serves to undermine the aims and application of the prevailing restrictive policies . ”

Placing considerable weight on the serious harm that the sites caused to the area and the strong policy and amenity objections to the site , the Inspector concluded that on balance the use of the sites should not continue . Recognising that the applicant had local links of some longstanding to the extent that she was considered to be “ resident in the area ” , the Inspector concluded that the question of proliferation and precedent were of particular importance given that , if the present appeal were allowed , future requests would be difficult to refuse . As a result , the ORG found that the appeal should be dismissed and , recommending that the enforcement notice should be upheld , he proposed extending the period for compliance to DATE .

The Secretary of ORG accepted the ORG 's recommendations on DATE and his conclusion that the appearance of the appeal sites was “ out of character with the generally rural nature of the area ” . He acknowledged that there was a need to provide accommodation for travelling families in GPE , but considered that in this case the objections put forward against the proposal outweighed that need . Furthermore , the Secretary of ORG reiterated the conclusions of the ORG in relation to the proposal to develop the area for leisure activities , in particular that although this development would substantially alter the area , he did not believe that the proposal would be incompatible with the status of the area as GPE , nor would it erode its visual qualities or conflict with its amenity value . The Secretary of ORG also agreed with the extension of the period for compliance on the grounds that the applicant had nowhere else to go .

An offer of sites at PERSON was made to the applicant and other gypsies in or DATE . It was considered by them to be unacceptable . While the applicant 's husband moved to the site after separating from her , she did not believe that he stayed DATE . Her son took his wife and family to PERSON after she had been scared by council officials but had only stayed there DATE .

In DATE , complaints were made by the applicant and her neighbours to the ORG Ombudsman alleging that ORG had not fulfilled its statutory obligations to them and that it had not dealt properly with their proposals for resolving the situation .

By letter dated DATE , the ORG noted that ORG had been attempting to find alternative sites for the complainants for DATE and had offered a number of solutions which the complainants had refused . She concluded :

“ Having considered the evidence , I am not persuaded that ORG have failed in their statutory duty to provide adequate accommodation for [ the complainants ] . I am more inclined to commend the ORG for the considerable efforts that they made to try and ensure that [ the complainants ] were able to remain in GPE . ... The offers of accommodation which the ORG made ... appear to me to be reasonable and consistent with their statutory obligations . ”

Proceedings were instituted in ORG by the ORG in DATE and they resulted in an injunction being made on DATE that the applicant remove her caravan from her land by DATE . The applicant sought to vary this order by extending the time for compliance pending the decision by ORG in GPE v GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL , p. CARDINAL ) . This application was opposed by the ORG and ORG dismissed the application on DATE on the ground that the injunction was a final order under LAW DATE and the judge had no power to alter it .

Subsequent appeal to ORG was available , but the applicant declined to appeal on the advice that such an appeal was bound to fail . In DATE , the ORG made an application to commit the applicant for contempt of court . On DATE , ORG dismissed the order for committal against the applicant and ordered costs in her favour . By letter dated DATE , the applicant 's solicitor informed ORG that the application for committal failed on a technicality , namely , that the local authority had failed to ensure that the documentation was adequately and properly served on the applicant .

The ORG recommenced proceedings in ORG . An order was made by consent under which the applicant was given DATE to vacate the land . ORG had given notice that they were prepared to re - open a former gypsy site for the applicant and others . DATE in the order was renewable until the site opened .

In DATE , the site at PERSON was inspected by the applicant and others with representatives of ORG . The applicant stated that the warden 's office had been destroyed by vandalism and fire ; no site warden had been appointed ; the site itself was in very poor condition and , when transient gypsy families left , reoccupation of their vacated sites was not being permitted . She alleged that there was a general consensus that she and the other gypsies could not be reasonably expected to move from a rural location to a site which was the equivalent of an inner city sink estate .

The applicant 's further application for planning permission , along with other Dudmoor gypsies who occupied adjacent sites , concerning altogether CARDINAL residential caravans , CARDINAL touring caravans and associated structures , was refused by ORG during DATE .

A public local inquiry concerning their appeals was held before an Inspector on CARDINAL and DATE .

In his report dated DATE , the ORG stated :

“ CARDINAL.CARDINAL It is a matter of agreement that the appeal site and the surrounding area is within the Green Belt and the proposal is contrary to LOC policies of the statutory and emerging ORG for the area .

CARDINAL LOC area is remote , being accessed over a long partly unmade country lane , but there are views over it from the adjacent PERSON which is a popular recreation area . Despite a scatter of buildings the area retains a predominantly rural appearance .

CARDINAL NORP In my view the cluster of mobile homes the subject of this appeal form an obtrusive feature , harmful to the predominantly rural character and appearance of the area particularly when viewed from PERSON and from FAC . Despite the long history of the plots , screening has not been effective and in my view the mobile homes are not acceptable in terms of gypsy sites or affordable housing .

CARDINAL earlier appeals in DATE and DATE were dismissed and efforts to relocate the appellants and others have been going on since DATE . A number of other gypsies have been relocated .

CARDINAL NORP Despite the appellants ' protestations that the alternative sites offered were either unsuitable or unavailable , it seems to me that the evidence of the considerable efforts made to relocate them is much stronger . This was recognised by ORG in DATE and I find no reason to disagree with his findings .

CARDINAL NORP The resident gypsies are acknowledged to be hard working families and there is no animosity towards them from local people . However there have been problems arising from the use of the plots as transit sites .

QUANTITY NORP I am mindful of the disturbance and stress likely to be caused to the appellants and their relatives , particularly the very old , the frail and the young . However , in all the circumstances of this case I conclude that this is not sufficient to justify setting aside the Green Belt and country protection policies ... or outweigh the harm the presence of the mobile homes do to the predominantly rural character and appearance of this area ... ”

In his letter of DATE , the Secretary of ORG for the Environment accepted the ORG 's recommendation to refuse the appeals . He considered that considerable efforts had been made to find alternatives for the applicant , including reasonable offers of accommodation at PERSON which were not taken up . He noted that the applicant had stated that she would move to the FAC site ( temporarily closed ) if that was reopened under suitable conditions and in a suitable state of repair .

Offers of sites at ORG and GPE were made to the applicant . She refused them as inappropriate and unacceptable , as they were outside the GPE area with which she had long associations and where she had employment and her children had schools . There was no direct public transport and she could not drive .

ORG as amended by ORG DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .

The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG 's decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

Again there is a further right of appeal on a point of law to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector 's decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

The purpose of ORG and the operation of the policy to protect them is set out in the national policy document FAC ( DATE ) .

“ CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE . ...

The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .

There are CARDINAL purposes in GPE :

– to check the unrestricted sprawl of large built - up areas ;

– to prevent neighbouring towns from merging into one another ;

– to assist in safeguarding the countryside from encroachment ;

– to preserve the setting and special character of historic towns ; and

– to assist in urban regeneration by encouraging the recycling of derelict and other urban land . ...

NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead . ...

The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances . ...

Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development . ”


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

The applicant owns and runs a website ( http://sites.google.com/a/ahmetyildirim.com.tr/academic/ ) on which he publishes his academic work and his views on various topics . The website was created using the ORG website creation and hosting service ( http://sites.google.com/ ) .

On DATE , under section CARDINAL(CARDINAL)(b ) of Law no . CARDINAL on regulating Internet publications and combating Internet offences , ORG Instance ordered the blocking of the website http://sites.google.com/site/kemalizminkarinagrisi/benimhikayem/atatuerk-koessi/at ( hereinafter “ the offending website ” ) . The order was issued as a preventive measure in the context of criminal proceedings against the site ’s owner , who was accused of insulting the memory of GPE .

On DATE , under section CARDINAL(CARDINAL ) of Law no . CARDINAL , a copy of the blocking order was sent to ORG ( “ the ORG ” ) for execution .

On DATE , at the request of the ORG , ORG varied its decision of DATE and ordered the blocking of all access to ORG under LAW no . DATE . The ORG had indicated that this was the only means of blocking the offending website , as its owner did not have a server certificate and lived abroad .

The ORG , implementing the order of DATE , blocked all access to ORG and the applicant was thus unable to access his own website . All his subsequent attempts to remedy the situation were unsuccessful because of the blocking order issued by the court .

On DATE the applicant applied to have the blocking order of CARDINAL DATE set aside in respect of his website . He pointed out that he used the website regularly in order to publish his academic work and his opinions on various topics , and that the measure had barred all access to his site , which had no connection with the offending website . He argued , in particular , that in order to prevent other websites being affected by the measure , a method should have been chosen which would make only the offending website inaccessible . He cited as an example blocking the site ’s URL .

In support of his request , the applicant furnished the court with a copy of the webpage which appeared when he tried to access his own website . The following warning was displayed :

“ ORG has applied the order issued by ORG on DATE in respect of this website ( ORG ) as a preventive measure . ”

On DATE ORG dismissed the applicant ’s application . Referring to a recommendation issued by the ORG , it considered that the only means of blocking access to the offending website , in accordance with the blocking order , had been to block access to the ORG service , which had hosted the content complained of .

The applicant wrote to ORG on DATE informing it that he was still unable to access his website even though , as far as he understood it , the criminal proceedings against the owner of the offending website had been discontinued on DATE because of the impossibility of determining the identity and address of the accused , who lived abroad .

The relevant parts of PERSON no . PERSON read as follows :

“ ( CARDINAL ) For the purposes of this PERSON ,

( e ) ORG provider [ ( erişim sağlayıcı ) shall mean ] any natural or legal person which provides users with Internet access ;

( f ) Content provider [ ( içerik sağlayıcı ) shall mean ] any natural or legal person which produces , modifies or supplies any kind of information or data for Internet users ;

( ğ ) Internet publication [ ( yayın ) shall mean ] data which can be accessed via the Internet by an indeterminate number of persons ;

( l ) Publication [ ( yayın ) shall mean ] publication on the Internet ;

“ ( CARDINAL ) Content providers shall be held liable for any content they provide via the Internet .

( CARDINAL ) Content providers shall not be held liable for content belonging to others which can be accessed by means of a link provided by them ...

“ ( CARDINAL ) NORP service providers shall not be required to monitor the content hosted by them or to ascertain whether it constitutes illegal activity .

( CARDINAL ) Subject to their criminal responsibility , hosting service providers who are informed , in accordance with sections CARDINAL and CARDINAL of this PERSON , of the illegal nature of content hosted by them shall be required to cease publishing it , in so far as they have the technical capacity to do so . ”

“ ( CARDINAL)(a ) Where they are informed , in accordance with the provisions of this PERSON , of the illegal nature of content published by a user , access providers shall be required to block access to the illegal content , in so far as they have the technical capacity to do so .

( CARDINAL ) ORG providers shall not be required to monitor the legality of the content and information to which they provide access .

“ ( CARDINAL ) A blocking order [ erişimin engellenmesi ] shall be issued in respect of Internet publications where there are sufficient grounds to suspect that their content is such as to amount to CARDINAL of the following offences :

( a ) NORP offences under LAW ...

( CARDINAL ) incitement to suicide ( LAW ) ;

( CARDINAL ) sexual abuse of minors ( LAW ) ;

( CARDINAL ) facilitating the use of narcotic drugs ( Article CARDINAL ) ;

( CARDINAL ) supplying products dangerous to health ( LAW ;

( CARDINAL ) NORP obscenity ( Article CARDINAL ) ;

( CARDINAL ) NORP prostitution ( Article CARDINAL ) ;

( CARDINAL ) NORP hosting gambling activities ;

( b ) NORP offences against PERSON under PERSON no . DATE of DATE ;

( CARDINAL ) The blocking order shall be issued by a judge if the case is at the investigation stage or by the court if a prosecution has been brought . During the investigation , the blocking of access may be ordered by the public prosecutor in cases where a delay in acting could have harmful effects . The order must then be submitted to the judge for approval within TIME . The judge must give a decision within a further TIME . If he or she does not approve the blocking of access , the measure shall be lifted by the prosecutor forthwith . Blocking orders issued as a preventive measure may be appealed against in accordance with the provisions of LAW ( Law no . CARDINAL ) .

( CARDINAL ) A copy of the blocking order issued by the judge , court or public prosecutor shall be sent to the [ ORG ] Directorate for execution .

( CARDINAL ) Where the content provider or the hosting service provider is abroad ... the blocking order shall be issued by the ORG of its own motion . It shall then be notified to the access provider with a request for execution .

( CARDINAL ) ORG orders shall be implemented immediately or at the latest TIME after notification .

( CARDINAL ) If the criminal investigation ends in a decision to discontinue the proceedings , the blocking order shall automatically cease to apply ...

( CARDINAL) Where the trial ends in an acquittal , the blocking order shall automatically cease to apply ...

( CARDINAL ) If the illegal content is removed , the blocking order shall be lifted ... ”

ORG was established under provisional section CARDINAL of Law no . CARDINAL on police powers and responsibilities , as amended on DATE by PERSON no . DATE . As an administrative body it is responsible , among other tasks , for recording and monitoring information disseminated using telecommunications tools .

In practice , where a court orders the blocking of access to a specific website , it falls to the ORG to implement the measure . If the content provider or hosting service provider is abroad , the ORG may block all access to the pages of the intermediary service provider under section CARDINAL(CARDINAL ) and ( CARDINAL ) of PERSON no . CARDINAL . Therefore , the issuing of a blocking order does not result only in access to the website which is the subject of criminal proceedings being blocked ; access to all the content on the Internet domain concerned is also liable to be blocked . Thus , domains such as blogspot.com , blogger.com , ORG , ORG and youtube.com have been the subject of blocking orders over long periods of time because of the websites which they host .

The notion of what constitutes a “ publication ” within the meaning of section CARDINAL(CARDINAL ) of PERSON no . ORG has also been the subject of debate among legal commentators . In the view of some commentators , sub - paragraph ( ğ ) , according to which the concept of “ Internet publication ” denotes “ data which can be accessed via the Internet by an indeterminate number of persons ” is in contradiction with the notion contained in subsection ( l ) of the same section , which states that “ [ p]ublication [ ( yayın ) shall mean ] publication on the Internet ” . The difficulty stems from the reference to “ data which can be accessed via the Internet ” , which could apply to all kinds of data transmitted over the Internet .

The Convention on Cybercrime ( ETS No . CARDINAL ) , which came into force on DATE , was drawn up by the member ORG , GPE , GPE , GPE and GPE . It deals with various types of offences in the sphere of cybercrime : action directed against the confidentiality , integrity and availability of computer data and systems ; computer - related forgery and fraud ; content - related offences , especially those related to child pornography ; and offences concerning infringements of copyright and related rights ( LAW , LAW , Titles DATE ) .

The preamble to the Declaration of the Committee of Ministers on human rights and the rule of law in FAC ( CM(CARDINAL)CARDINAL final of CARDINAL DATE ) recognises that “ limited or no access to [ information and communication technologies ( ICTs ) ] can deprive individuals of the ability to exercise fully their human rights ” . The first chapter of the Declaration , entitled “ Human rights in the FAC ” contains the following passages :

“ CARDINAL . The right to freedom of expression , information and communication

ICTs provide unprecedented opportunities for all to enjoy freedom of expression . However , ICTs also pose many serious challenges to that freedom , such as ORG and private censorship .

Freedom of expression , information and communication should be respected in a digital as well as in a non - digital environment , and should not be subject to restrictions other than those provided for in LAW ] , simply because communication is carried in digital form .

In guaranteeing freedom of expression , member GPE should ensure that national legislation to combat illegal content , for example racism , racial discrimination and child pornography , applies equally to offences committed via ICTs .

Member GPE should maintain and enhance legal and practical measures to prevent ORG and private censorship . ... ”

The preamble to the LAW on freedom of communication on the Internet adopted by ORG on DATE at the CARDINALth meeting of the Ministers’ Deputies states that prior control of communications on the Internet , regardless of frontiers , should remain an exception , and that there is a need to remove barriers to individual access to the Internet . The Declaration sets forth , inter alia , the following principles :

Principle CARDINAL : Content rules for the Internet

Member GPE should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery .

Principle CARDINAL : Absence of prior ORG control

Public authorities should not , through general blocking or filtering measures , deny access by the public to information and other communication on the Internet , regardless of frontiers . This does not prevent the installation of filters for the protection of minors , in particular in places accessible to them , such as schools or libraries .

Provided that the safeguards of LAW , paragraph CARDINAL , of ORG are respected , measures may be taken to enforce the removal of clearly identifiable Internet content or , alternatively , the blockage of access to it , if the competent national authorities have taken a provisional or final decision on its illegality .

The explanatory note to the LAW includes the following commentary on LAW :

“ Absence of prior ORG control

This principle underlines the importance of no prior ORG control over what the public can search for on the Internet . In some countries , there is a tendency to block access by the population to content on certain foreign or domestic websites for political reasons . This and similar practices of prior ORG control should be strongly condemned .

Although the ORG should by no means take broad measures to block undesirable content , exceptions must be allowed for the protection of minors . Where minors have access to the Internet , for example in schools or libraries , public authorities may require filters to be installed on computers to block access to harmful content .

The absence of prior control by the ORG does not of course rule out measures being undertaken to remove content from the Internet or block access to it following a preliminary or final decision of the competent national authorities on its illegality , not only under penal law , but also under other branches of law such as civil or administrative law . This would typically be the case when injunctions are sought to prevent the publication on the Internet of content which is illegal . Such measures , which could entail some sort of prior control , would have to fulfil the requirements of LAW , paragraph CARDINAL , of ORG and they would have to be directed at a clearly identifiable Internet content . ”

NORP In DATE ORG adopted Recommendation CM / Rec(CARDINAL)CARDINAL on measures to promote the public service value of the Internet . The second and third chapters , entitled “ Access ” and “ LAW ” respectively , deal implicitly with the issues of accessibility of the Internet and the restrictions that may be permitted .

Also in DATE , ORG adopted Recommendation CM / Rec(CARDINAL)CARDINAL on promoting freedom of expression and information in the new information and communications environment .

In DATE ORG adopted Recommendation CM / Rec(CARDINAL)CARDINAL . The appendix to this Recommendation sets out guidelines on using and controlling Internet filters in order to fully exercise and enjoy the right to freedom of expression and information .

On DATE ORG adopted Recommendation CM / Rec(CARDINAL)CARDINAL on the protection of human rights with regard to search engines . Paragraph CARDINAL of the Recommendation stresses , inter alia , that “ [ s]earch engines enable a worldwide public to seek , receive and impart information and ideas and other content in particular to acquire knowledge , engage in debate and participate in democratic processes ” .

Recommendation GPE ) , adopted by ORG on DATE , stated expressly that ORG should participate in efforts to establish an e - democracy on the basis of full and safe access to the Internet . ORG therefore recommended to member GPE that they should condemn governmentimposed censorship of the content that could be searched on Internet sites , and called on them “ to ensure that freedom of expression is not subject to arbitrary restrictions from the public and/or private sphere and to avoid all legislative or administrative measures that could have a ‘ chilling effect’ on all aspects of freedom of speech ” .

Case GPE , examined by ORG of ORG ( CJEU ) , concerned a reference for a preliminary ruling following an order issued by a NORP court requiring an Internet service provider to install a permanent monitoring system blocking all online activity liable to infringe intellectual property rights .

In its judgment of CARDINAL DATE the ORG held that the holders of intellectual property rights should have the possibility of applying for an injunction against an intermediary who carried a third party ’s infringement of a protected work or other subject matter in a network , and that the arrangements governing such injunctions should be left to national law . However , the national rules had to observe the limitations arising from ORG law and in particular from the Directive on electronic commerce ( CARDINAL ) , which prohibited national authorities from adopting measures which would require an Internet service provider to carry out general monitoring of the information that it transmitted on its network . The ORG took the view that injunctions of the kind issued in the case under consideration did not respect the requirement that a fair balance be struck between the right to intellectual property on the one hand and the freedom to conduct business , the right to protection of personal data and the freedom to receive or impart information on the other . Accordingly , it concluded that ORG law , and in particular Directive CARDINAL and the applicable fundamental rights , precluded an injunction imposed on an Internet service provider to introduce a system for filtering all electronic communications passing via its services , applied indiscriminately to all its customers , as a preventive measure , exclusively at its expense and for an unlimited period .

In its General Comment No . DATE on LAW , adopted at its CARDINALnd session ( CARDINAL DATE ) , ORG stated as follows :

“ CARDINAL . Any restrictions on the operation of websites , blogs or any other Internet - based , electronic or other such information - dissemination system , including systems to support such communication , such as Internet service providers or search engines , are only permissible to the extent that they are compatible with paragraph CARDINAL . Permissible restrictions generally should be content - specific ; generic bans on the operation of certain sites and systems are not compatible with paragraph CARDINAL . It is also inconsistent with paragraph CARDINAL to prohibit a site or an information - dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government . ”

In view of the fact that legislation concerning the Internet , which has to be seen against a background of rapidly changing new technologies , is particularly dynamic and fragmented , it is difficult to identify common standards based on a comparison of the legal situation in ORG member GPE . A survey carried out by ORG , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) reveals that the right to Internet access is protected in theory by the constitutional guarantees applicable to freedom of expression and freedom to receive ideas and information . The right to Internet access is considered to be inherent in the right to access information and communication protected by national Constitutions , and encompasses the right for each individual to participate in the information society and the obligation for GPE to guarantee access to the Internet for their citizens . It can therefore be inferred from all the general guarantees protecting freedom of expression that a right to unhindered Internet access should also be recognised .

In a decision of DATE ( no . PERCENT CARDINAL DC ) , ORG , for instance , stated clearly that freedom of expression implied freedom of access to the Internet . ORG also set forth a number of basic principles concerning the restriction of Internet access . Restrictions on the public ’s right to access online communication services could be ordered only by a judge , following a fair trial , and had to be proportionate . Finding that “ in view of the nature of the freedom guaranteed by LAW , the legislature may not ... confer powers [ to restrict or prevent Internet access ] on an administrative authority with the aim of protecting the holders of copyright and related rights ” , ORG declared to be unconstitutional the legislative provisions which provided for the blocking of Internet access in cases of infringement of copyright , in the absence of a prior judicial decision . It held that the suspension of access could be ordered only after adversarial judicial proceedings , as an ancillary penalty . Interim measures or injunctions could be ordered by the urgent - applications judge , provided that they were “ strictly necessary in order to preserve the rights in question ” .

As regards possible restrictions in cases of illegal Internet content , NORP countries have adopted a wide variety of approaches and legislative measures , ranging from the suspension of individual rights of Internet access or the removal of the illegal content , to the blocking of access to the specific website in question . In most NORP countries , the protection of the rights of minors and efforts to combat the sexual exploitation of minors constitute a basis for appropriate measures restricting access to the websites concerned ( this is the case in GPE , GPE , GPE and GPE ) . When it comes to ordinary crime , the measures restricting access are different and less severe in CARDINAL countries ( GPE , GPE , GPE , GPE , GPE and GPE ) .

As to the scope of the restrictions , a distinction is generally made according to the nature of the offence committed , namely between offences against intellectual property rights and other offences . According to a report by ORG in LOC ( LOC ) entitled “ Freedom of expression on the Internet : study of legal provisions and practices related to freedom of expression , the free flow of information and media pluralism on the Internet in LOC participating GPE ” , there are no general legislative provisions on the blocking of Internet access in GPE , GPE , GPE or GPE . CARDINAL countries ( GPE , GPE , the GPE , GPE and GPE ) have no legislation providing for wholesale blocking irrespective of the offence but have enacted specific legislative provisions allowing access to be blocked in the case of certain types of offence . These include child pornography , racism , hate speech , incitement to terrorism and defamation .

In GPE , although a blanket prohibition on Internet access is not possible , access restrictions may be imposed under federal legislation on specific grounds , for instance to protect the foundations of the constitutional order , morals , health or the legitimate rights and interests of others , or in the interests of national defence and security ( Federal Law no . CARDINAL ) .

In those countries which do not have a general or specific legislative framework providing for the closure of sites and/or the blocking of access , blocking measures may nonetheless be ordered by a judge or applied on a voluntary basis .

The possibility of appealing against a measure prohibiting Internet access is closely linked to the general guarantees protecting the right to receive information and to express one ’s views . In GPE , GPE , GPE , GPE , GPE and GPE , no specific provisions exist governing appeals against measures restricting access to an Internet page . Reference is made instead to the general constitutional provisions on freedom of expression and information or , in the case of GPE , to the possibility of judicial review if the user can prove that he or she has a sufficient interest linked to the subject of the impugned measure . In GPE , the legislation makes express provision for contesting a measure restricting access to information on the Internet before a higher administrative authority or a specialised agency or directly before the courts in cases concerning public information which the authorities are required to make accessible ( LAW ) .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

The facts of the case may be summarised as follows .

In DATE the applicant , who had previously taken refuge in GPE for political reasons , fled to GPE illegally . He was then recognised as a refugee by the ORG as part of a group of CARDINAL asylum seekers ( “ the CARDINAL group ” ) who had similarly fled GPE to GPE in DATE . Following an agreement between the NORP authorities and the ORG High Commissioner for Refugees ( ORG ) , the applicant was granted a temporary residence permit in GPE to reside at a place to be determined by ORG . The applicant , however , was not recognised as a “ refugee ” proper , within the meaning of the DATE LAW , but was merely given “ alien ” status under LAW no . CARDINAL on “ the Residence and Travel of Aliens in GPE ” . He was also notified by ORG that the terms of his residence in GPE did not involve an eventual resettlement in a third country .

On DATE the President of the ORG notified the respondent Government of the introduction of the application under LAW .

According to the information provided by the respondent Government in their observations , the applicant has been issued a temporary residence permit .

On DATE the applicant informed the ORG that he had fled GPE to GPE , where he sought asylum .

On DATE the respondent Government informed the ORG that despite his valid permit to reside in the city of PERSON , the applicant had left the city without permission and that they had no information as to his whereabouts .


András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants , PERSON , PERSON , Mr PERSON , PERSON , Mr PERSON , Mr PERSON , Ms PERSON , Mr PERSON and Mr PERSON , are NORP nationals who live in GPE ( see GPE for dates of birth ) . They were represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Co - Agent , PERSON .

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

The applicants as employees of ORG ( GPE per la promozione dello sviluppo nel LOC ) had by DATE accumulated a certain length of service and had been paying contributions towards their old - age pension into ORG ( ORG ) , the primary NORP welfare entity . Thus , according to the law in force at the time , on DATE , even assuming they became unemployed in the future , all the applicants had already accrued all the necessary DATE of contributions to obtain an old age - pension on attaining pensionable age ( CARDINAL for men and CARDINAL for women ) ( see annexed table ) .

AGENSUD had previously been called ORG ) , a public entity having its own juridical personality . Thus , according to the applicants , on DATE they were civil servants and all the relevant guarantees applied to them , including LAW no . CARDINAL of CARDINAL DATE ( Law no . TIME ) ( the law which had instituted the Cassa ) , providing that on the date of cessation of the ORG or its dissolution , all the rights and obligations of the latter would be transferred to the ORG .

NORP By means of PERSON no . CARDINAL of DATE ( Law no . CARDINAL ) ORG was dissolved . However , the working relationship between employer and employee with its duties and obligations was not transferred to the ORG as had been provided . Instead , this working relationship ceased to have effect and the employees acquired a right to an “ end - of - service payment ” ( TFR ) . They were further given the option to undertake new employment with a new civil service entity . This employment , however , provided for lower salaries than the ones they had previously received , contrary , according to the applicants , to consolidated principles of the public service ( Presidential decree no . CARDINAL of DATE see relevant domestic law ) . The ORG noted that this salary corresponded to that of ORG employees in equal grades of service .

Eventually , in DATE , the applicants were employed within ORG ( the Ministry ) with retroactive effect from DATE . Thus , they had chosen to remain in employment and accepted lower salaries , together with the implications for their future social welfare coverage and pensions , in respect of contributions to be paid during this new employment .

At the time , the law ( LAW no . CARDINAL/CARDINAL ) provided for CARDINAL options , CARDINAL of which ( hereinafter referred to as joining ) entailed that previous contributions paid by the applicants , viz by ORG to the ORG , be joined to those that would subsequently be paid by ORG to a different welfare entity , namely the ORG ( ORG per I Dipendenti dell’Amministrazione Pubblica ) .

According to the applicants , on the basis of LAW ( b ) of PERSON no . CARDINAL/CARDINAL , any benefits acquired had to remain untouched and the change of system should have occurred without any disbursements or losses on their part . Thus , the applicants accepted the relevant employment offer and the joining of their contributions , believing that , in accordance with the case - law as it stood at the time ( see Title C below ) , they would receive back any payments in excess which would not go towards the calculation of their pension .

Indeed , at the time , the system of joining entailed that only part of the previous contributions ( paid to ORG ) was used for the calculation of the pensions . However , it eventually resulted that any contributions in excess were to the benefit of the ORG and were not given back to the ORG or to the applicants . It followed that a future pension would also not have benefited from the entirety of the contributions paid . Thus , through this move the applicants suffered CARDINAL disadvantages : firstly , any future pensions would be lower and secondly a good share of the already paid contributions would be lost .

In consequence , the legislator provided for a derogation ( LAW ) applicable to a limited number of employees of the LAW , namely personnel who had left the civil service after DATE and before the entry into force of LAW b ) of PERSON No . CARDINAL/CARDINAL . The derogation entailed the restitution of the paid contributions which had not been calculated for the purposes of joining the social security periods . The applicants did not fall within this category .

Initially , the civil service started paying up all the ORG employees , without distinction , either spontaneously or as a result of a number of court cases successful at first instance . However , eventually , the civil service limited this payment only to persons who had left the civil service after DATE and before the entry into force of LAW b ) of PERSON No . CARDINAL/CARDINAL , thus excluding the applicants , who had accepted to take up new employment and agreed to the joining of their contributions into one entity .

NORP In DATE the NORP welfare system introduced a new pension calculation , namely ORG ( calculation of pension by reference to contributions paid throughout a life - time and revalorisation factors ) as opposed to ORG ( based on the salaries applicable to employees in DATE of service ) . The change in system has been gradual and while for young employees the system is obligatory , for older ones it is only optional .

In DATE the applicants instituted judicial proceedings to ascertain their right to the restitution of the contributions they had paid to the ORG and which had not been used to calculate their pensions . They contended that if LAW bis had to be interpreted as not implying the right for them to take back their contributions , it would be discriminatory vis - à - vis both a ) other ORG employees and/or b ) other employees in general who had previously been transferred and had been reimbursed the excess contributions . They requested the reimbursement of the relevant sums .

By a judgment of CARDINAL DATE , ORG ( TAR ) declared the application inadmissible on formal and procedural grounds .

On appeal , by a judgment delivered on DATE in the relevant registry of the plenary ( PERSON ) , ORG ( PERSON ) rejected the claims on the merits . It held that the contributions which had been paid to ORG but had not been used for pension calculation could validly be vested in the ORG . In the ambit of a welfare system based on the principle of solidarity , the circumstances that social benefits do not reflect the contributions paid did not amount to unjust enrichment of the entity receiving the contributions . Lastly , the restitution of contributions was an exceptional measure not regulated by uniform norms and only applicable to a certain category of people . In consequence , in the absence of any specific norm to that effect , the applicants did not have a right to the reimbursement of contributions paid in excess . Moreover , the applicants had accepted to take up new employment with the civil service and requested the joining of their contributory periods .

NORP In DATE the plenary ( PERSON ) of ORG ( PERSON ) had held that it was possible to reimburse contributions in excess to civil servants . The same was reiterated again in DATE in analogous cases relating to the dissolution of ORG ( enti mutualistici ) , whose employees were transferred to another organ of the civil service .

Subsequently , numerous ex - employees of the ORG instituted court proceedings complaining about the lower salaries and social coverage . By a judgment of ORG of DATE it was held that persons in the ORG position had acquired a new status equal to their colleagues . Thus , since they had been given the option either to retire and maintain the old welfare regime or to continue in employment and join the contributions into CARDINAL ( at the ORG ’s expense and for certain others with the recovery of such contributions ) , the system was in conformity with constitutional principles .

Again in relation to ORG employees , ORG had originally by an opinion of DATE , delivered in the framework of its consultative competence , expressed itself in favour of reimbursement being made to all ORG employees , including the ones in the applicants’ situation . On the same lines , a number of decisions at first instance , some of which had become final , were delivered ( for example PERSON the Ministry for transport and Infrastructure , ORG and ORG , judgment of ORG of DATE and PERSON , ORG , ORG and ORG judgment of ORG DATE ) . It was only ORG formation which reversed this jurisprudence in DATE in the applicants’ domestic case .

In accordance with the law in force up to DATE , persons were eligible to receive an old - age pension on attaining pensionable age , namely CARDINAL for men and CARDINAL for women , after DATE of welfare contributions . As from DATE to DATE , DATE of welfare contributions were necessary to obtain the said benefit . This applied even if persons had been unemployed up to the date when they reached pensionable age . As from DATE to DATE , DATE of welfare contributions were necessary to obtain the said benefit ; however , pensionable age was increased to CARDINAL for men and CARDINAL for women . As from DATE to DATE , DATE of welfare contributions were necessary to obtain the said benefit when reaching pensionable age , which remained CARDINAL for men and CARDINAL for women .

LAW no . CARDINAL/CARDINAL , in so far as relevant , reads as follows :

“ On the date of cessation of the ORG or its dissolution , all the rights and obligations of the latter are transferred to the ORG . ”

Article CARDINAL of Presidential decree no . CARDINAL of DATE , provides as follows :

“ In the case of career changes in the same or a different administration , employees having higher salaries than those provided on such change are awarded a personal cheque , relevant to pensions , equal to the difference between the CARDINAL salaries , without prejudice to future salary increases . ”

Article CARDINAL bis paragraph CARDINAL ( b ) of PERSON no . CARDINAL/CARDINAL provided that LAW no . DATE was applicable to the persons in the applicants’ positions for the purposes of welfare coverage . The latter read as follows :

“ The joining of social security periods related to service rendered with suppressed public entities , in relation to which there has been a transfer of personnel to other public entities , occurs ex officio through the receiving welfare entity , without any charges on the employees . ”


CASE OF VILHO ESKELINEN AND OTHERS v. FINLAND

Violation of Art. 6-1 (length of proceedings);No violation of Art. 6-1 (lack of a hearing);Violation of Art. 13;No violation of P1-1 alone or in conjunction with Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Anatoly Kovler;Christos Rozakis;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Javier Borrego Borrego;Jean-Paul Costa;Kristaq Traja;Lech Garlicki;Luzius Wildhaber;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in PERSON and PERSON .

The first CARDINAL applicants and the late Mr PERSON worked in LOC . Under a collective agreement concluded in DATE , they were entitled to a remote - area allowance , which was added to their salaries as a bonus for working in a remote part of the country . The amounts of the allowance were calculated on the basis of a given area ’s remoteness . By a collective agreement concluded on DATE , the remote - area allowance was abolished . This would have resulted in a reduction of the salary payable to civil servants whose duty station was PERSON . In order to prevent such a reduction , the collective agreement granted them DATE individual wage supplements from DATE .

On DATE GPE was incorporated into LOC by a decision of ORG ( sisäasiainministeriö , inrikesministeriet ) . Following the incorporation , the ORG duty station changed . They also lost their individual wage supplements and the length of their commute allegedly increased by CARDINAL QUANTITY per day as they had to travel from GPE to GPE .

According to the applicants , following their request of CARDINAL DATE to that effect , ORG ( läänin poliisijohto , länspolisledningen ) promised that their loss would be compensated .

On DATE ORG , at the request of ORG , submitted a request for authorisation for the payment of DATE individual wage supplements , amounting to CARDINAL and MONEY ( ORG ) ( DATE ) per person , to those police officers and other personnel whose duty station had been changed from GPE to GPE . The request referred to an allegedly analogous case ( the PERSON case ) in which ORG ( valtiovarainministeriö , finansministeriet ) had granted a request for individual wage supplements on DATE . On DATE ORG replied that it could not grant such authorisation . It gave no reasons for its refusal .

On DATE competence to decide on wage supplements in respect of local police forces was transferred to ORG ( lääninhallitus , länsstyrelsen ) .

On DATE the applicants lodged an application requesting that they be compensated for their loss . They referred to the above decision in the PERSON case . They also relied on the principle of equality as laid down in LAW then in force ( NORP hallitusmuoto , NORP för GPE ; PERSON no . CARDINAL/CARDINAL ) .

DATE , on DATE , the request was rejected by ORG . It reasoned :

“ The civil servants of the former LOC ... have ... requested compensation for the losses arising from the incorporation of police districts , in response to which ORG , endorsing the request , submitted documents to ORG . By a letter of DATE , ORG recommended to ORG the retroactive payment from DATE of individual wage supplements to those civil servants whose duty station , after the incorporation , is ORG .

By a letter of DATE , [ ORG ] informed ORG that it had found that it could not grant the request .

Following the [ ORG ] decision , competence to decide on individual wage supplements was transferred to ORG . On DATE , in a negotiation meeting held by ORG at which the applicants were represented by PERSON , it was noted that negotiations were pending with regard to ORG in GPE , which was a corresponding case . As [ ORG ] , which had the relevant competence , had already decided the claims concerning LOC , it was concluded that , on grounds of fairness , the decision in PERSON would be adhered to in GPE were it to depart from the view of ORG . ORG rejected the application and the decision was upheld by ORG . No new grounds have been presented in the letter of DATE , or in PERSON [ further and ] separate claim of CARDINAL DATE , to support the claims which have already been decided [ by ORG ] .

ORG has not learned of any positive decisions regarding compensation in corresponding cases as regards the incorporation of police districts anywhere in the country following the above - mentioned [ ORG ] decision .

In DATE , when the incorporation took place , ORG lacked competence to make any binding promises as regards the compensation of costs . Its view had been shown through its support of the application .

ORG , using its discretion and basing itself on the earlier decision by the competent authority , considers that the decision has acquired a certain res judicata effect . Emphasising the principles of equality and fairness , ORG also bases itself on the prevalent practice throughout the country . ”

Meanwhile , in DATE CARDINAL of the applicants lodged a complaint with the Chancellor of ORG ( oikeuskansleri , justitiekanslern ) who , in his decision of DATE , drew attention to the fact that the applicants had still not received any answer to their application .

On DATE the applicants appealed against ORG decision and requested an oral hearing which , they asserted , would make it possible to establish the facts of the case , in particular that a promise had been made by ORG . ORG ( lääninoikeus , länsrätten ) received replies to the appeal from ORG and ORG Attorney ( lääninasiamies , länsombudet ) , and these were communicated to the applicants for comment .

By a decision of CARDINAL DATE , ORG reasoned :

“ Rectification of wage increases affecting pensions falls outside ORG competence .

It is not necessary to receive oral testimony from the parties as regards ORG of ORG promises concerning the incorporation of police districts , or on how the case has been otherwise handled , in order to clarify the case .

In its letter of CARDINAL DATE , ORG proposed to ORG that LOC be incorporated into LOC from DATE [ in fact , ORG recommended payment , not incorporation ] and that the inconvenience caused by the change of duty station be compensated in the form of a wage supplement of ORG CARDINAL to CARDINAL per month , retroactively from DATE . In its letter of CARDINAL DATE , ORG considered that it could not grant the request . Negotiations were held between ORG of ORG and ORG ] on DATE and between ORG of ORG and the ORG representative on DATE .

Pursuant to LAW ( as amended on DATE ) , ORG has competence to decide on wage supplements in respect of ... civil servants in the local police forces .

ORG must be considered to have examined the applicants’ ... submission dated DATE as a rectification request , referred to in LAW of ORG . The rectification request has been lodged within the time laid down by section PERSON ) of ORG , if calculated from ORG decision of DATE .

In DATE ORG of ORG lacked competence to give any binding promises pertaining to compensation . Competence to decide the matter lay at that time with ORG , which in its letter of CARDINAL DATE had stated that it considered that it could not accede to the request . Since DATE ORG has had competence to decide on the wages of local police .

ORG has in its decision , subject to appeal , based itself on the decision by the former competent authority and on the fact that after DATE no compensation had been awarded to personnel in other cases in which incorporation had taken place . The decision is therefore based on the prevalent practice at that time in the entire country . The decision can not be considered unreasonable in those circumstances . It has been possible to dismiss the request for rectification . ”

On DATE the applicants appealed further , requesting an oral hearing and emphasising that similar wage supplements had been granted to personnel from other police districts in corresponding situations . They relied , for example , on a decision of DATE by ORG , granting a police officer an individual wage supplement from DATE following incorporation of ORG into LOC .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , having received observations from ORG and the ORG Attorney and having communicated them to the applicants for comment , upheld the lower court ’s decision . It reasoned :

“ ORG has examined the case .

The promises made by ORG of ORG as regards compensation for costs arising from the incorporation of police districts have no legal relevance to the case . Thus , the holding of an oral hearing is manifestly unnecessary . Accordingly , ORG , having regard to section CARDINAL ) of LAW , refuses [ the appellants’ ] request for an oral hearing .

In their letter of DATE , [ the appellants ] requested compensation in the form of individual wage supplements of costs arising from the incorporation of their police district . On DATE competence to decide on wages in respect of local police forces was transferred to ORG pursuant to section CARDINAL(CARDINAL ) of the State Collective Agreement Decree ( as amended on DATE ) .

[ The appellants ] have no statutory right to the individual wage supplement in question . ORG has not overstepped its margin of appreciation . ORG decision is not in breach of the law . Therefore , ORG , having regard to section CARDINAL(CARDINAL ) of ORG , finds that there is no reason to amend the outcome of ORG decision , which accordingly remains final . ”

The implementing instruction of CARDINAL DATE on the application of the collective agreement with regard to the payment of a cold - area allowance to civil servants provided :

“ A civil servant working ( before DATE ) in a municipality not covered by the new collective agreement is entitled to an individual wage supplement ... as long as he or she is working in the municipality giving rise to an entitlement to such an allowance . Where a civil servant entitled to an individual wage supplement is ordered , temporarily or as a substitute , to perform the duties of another civil servant , or where his or her duty station is transferred to a municipality in which the previous remote - area allowance has not been paid , the said civil servant will not be paid the individual wage supplement during the period he or she is performing those other duties because , in order to receive the wage supplement , the civil servant has to perform his or her duties in a municipality giving rise to entitlement to the wage supplement . ”

According to the applicants , this instruction was not relevant to the present case , in that it allegedly concerned only temporary transfers , whereas the transfer of the applicants’ place of duty had been of a permanent nature .

In its request of CARDINAL DATE , ORG referred to an allegedly analogous case in which ORG had on DATE granted a request for individual wage supplements following the incorporation of LOC into that of GPE ( the PERSON case ) .

On DATE ORG refused a request for compensation for commuting costs lodged by a civil servant whose duty station had changed following the incorporation of the LOC into that of the NORP and LOC . The decision was upheld by ORG and ORG on DATE and DATE respectively .

By a decision of DATE , ORG granted a police officer a cold - area allowance at level CARDINAL plus an individual wage supplement compensating for the difference between level CARDINAL ( Valtimo ) and level CARDINAL ( ORG ) of the cold - area allowance following the incorporation of ORG into LOC ( the ORG case ) .

Section CARDINAL(CARDINAL ) of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki , förvaltningsprocesslagen ; PERSON no . ORG ) provides that an oral hearing must be held if requested by a private party . An oral hearing may however be dispensed with if a party ’s request is ruled inadmissible or immediately dismissed or if an oral hearing would be clearly unnecessary due to the nature of the case or other circumstances .

The explanatory report on the Government Bill ( no . CARDINAL ) for the enactment of LAW examines the right to an oral hearing as provided by LAW and the possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary , as stated in section CARDINAL(CARDINAL ) of the said LAW . It notes that an oral hearing contributes to a focused and immediate procedure but since it does not always bring any added value , it must be ensured that the flexibility and cost - effectiveness of the administrative procedure is not undermined . An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole .

The international law and practice from which the ORG sought guidance in PERSON v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALVIII ) has been outlined in that judgment ( see § § DATE ) .

Article CARDINAL of LAW , proclaimed on DATE , on the right to an effective remedy and a fair trial , provides :

“ Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article .

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law . Everyone shall have the possibility of being advised , defended and represented .

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice . ”

The Explanations relating to LAW , originally prepared under the authority of ORG which drafted the LAW and finally integrated in LAW establishing a LAW for LOC , do not have equal authority to the LAW . However , they are a “ valuable tool of interpretation intended to clarify the provisions of LAW . They read as follows ( extract ) :

“ The second paragraph [ of LAW ] corresponds to Article CARDINAL(CARDINAL ) of the ORG which reads as follows :

‘ In the determination of his civil rights and obligations or of any criminal charge against him , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals , public order or national security in a NORP society , where the interests of juveniles or the protection of the private life of the parties so require , or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of ORG

In Union law , the right to a fair hearing is not confined to disputes relating to civil law rights and obligations . That is one of the consequences of the fact that the ORG is a community based on the rule of law as stated by ORG , ‘ PERSON v. ORG ( judgment of DATE , [ DATE ] ECR CARDINAL ) . Nevertheless , in all respects other than their scope , the guarantees afforded by the ORG apply in a similar way to the ORG . ”

It follows that LAW , in the context of ORG law , is not confined to civil rights and obligations or to criminal matters within the meaning of Article CARDINAL of the Convention . In this respect the Charter codified existing case - law of ORG of ORG ( see PERSON v. Chief Constable of ORG , Case CARDINAL/CARDINAL , [ DATE ] ECR CARDINAL , referred to in paragraph CARDINAL below ) .