CASE OF SITAROPOULOS AND OTHERS v. GREECE

Violation of P1-3;Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Flogaitis;Khanlar Hajiyev;Spyridon Flogaitis;Sverre Erik Jebens

The applicants were born in DATE , DATE and DATE respectively and live in GPE . They are officials of ORG

By Presidential Decree no . CARDINAL/CARDINAL of CARDINAL DATE , ORG was dissolved and a general election was called for DATE .

In a fax dated DATE to the NORP Ambassador in GPE , the applicants , as permanent residents in GPE , expressed the wish to exercise their voting rights in GPE in the elections to be held on DATE .

In his reply of CARDINAL DATE the Ambassador , relying on the instructions and information provided by ORG , stated as follows :

“ [ ORG ] confirms its wish DATE expressed frequently at the institutional level – to enable NORP citizens resident abroad to vote at their place of residence . However , it is clear that this matter requires regulation by means of legislation which does not currently exist . In fact , such regulation could not be brought about by a simple administrative decision , given that special measures would be required for the setting - up of polling stations in LOC In the light of the above and despite the wish expressed by the ORG , your request concerning the forthcoming elections can not be granted for objective reasons . ”

The general election took place on DATE . The applicants , who did not return to GPE , did not exercise their right to vote .

The relevant provisions of LAW read as follows :

Popular sovereignty is the foundation of government .

All powers derive from the People and exist for ORG ; they shall be exercised as specified by LAW . ”

The Members of ORG shall be elected through direct , universal and secret ballot by those citizens who have the right to vote , as specified by law . The law can not curtail the right to vote except in cases where the statutory minimum age has not been attained or in cases of legal incapacity or as a result of a final criminal conviction for certain offences .

Parliamentary elections shall be held simultaneously throughout the country . The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute .

The exercise of the right to vote is compulsory . Exceptions and criminal sanctions shall be specified in each case by law . ”

Following the Constitutional revision of DATE , LAW was amended as follows :

“ CARDINAL . Parliamentary elections shall be held simultaneously throughout the country . The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute , adopted by a majority of CARDINAL of the total number of Members of ORG . Concerning such persons , the principle of simultaneously holding elections does not rule out the exercise of their right to vote by postal vote or by other appropriate means , provided that the counting of votes and the announcement of the results is carried out at the same time as within the country . ”

“ CARDINAL . The ORG must be attentive to the situation of emigrant NORP and to the maintenance of their ties with the LOC . The ORG shall also attend to the education and the social and professional advancement of NORP working outside the ORG .

The law shall lay down arrangements relating to the organisation , operation and competences of ORG , whose mission is to allow the full expression of NORP worldwide . ”

At the time of the parliamentary elections in issue , Presidential Decree no . PERSON , which was the electoral legislation then in force , provided as follows :

“ Any NORP national aged CARDINAL or over is entitled to vote . ... ”

“ The following persons are not entitled to vote :

( a ) Persons who have been placed under guardianship , in accordance with the provisions of LAW .

( b ) Persons finally convicted of CARDINAL of the offences provided for in LAW or LAW , for the duration of their sentence . “

“ CARDINAL . The right to vote in a constituency is reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency .

Voting is mandatory . ”

NORP The report on that bill placed before ORG by the Ministers of the ORG , ORG and ORG DATE indicated that the purpose of the bill was to fulfil “ one of the ORG ’s major historical obligations , one which undeniably reinforces NORP expatriates’ ties with the homeland ” . The report stated that the right to vote of NORP nationals living abroad arose out of both LAW and LAW . In particular , as regards LAW , the report pointed out that it “ affords NORP expatriates a ‘ social right’ . The provision obliges the NORP State to take all necessary measures to maintain NORP expatriates’ ties with GPE , to ensure they have access to NORP education and to make provision , as a matter of ORG duty , for the social and professional advancement of NORP working outside GPE . Regulating the conditions for the exercise by NORP expatriates of their right to vote in NORP parliamentary elections will undeniably contribute to real ties being forged between NORP expatriates and their homeland ” . Moving on to the constitutional provision on this specific subject , namely LAW , the report stated that the law to which that Article referred had the status of an implementing law of LAW . Finally , the report considered that “ in these times of globalisation , NORP expatriates must be able to have a decisive political say in the development of their own country ” .

ORG ( ORG ) of ORG , a consultative body reporting to the Speaker of ORG , produced a report dated DATE on the aforementioned bill . That report noted that in the past , some legal authorities had argued that LAW imposed upon ORG an obligation to grant expatriate NORP the right to vote from outside GPE . However , referring to other legal authorities and the preparatory work for LAW , ORG stated that it was an option rather than a duty of the legislature to grant the right to vote from abroad . It observed , further , that the optional nature of the aforementioned provision of the LAW had not been affected by the LAW revision of DATE .

On DATE the bill was rejected by ORG since it failed to gain the majority of CARDINAL of the total number of Members of ORG required under LAW .

According to the information provided on the website of ORG of the ORG concerning NORP nationals living abroad , elections to ORG are organised as follows :

“ NORP citizens who have their residence in the other CARDINAL countries of ORG and NORP who happen to be in another Member State of ORG are entitled to participate in the election process in GPE in parallel with NORP voters throughout the NORP State . These results will be incorporated into the general voting results achieved in the NORP State overall .

In order to exercise their right to vote at their place of residence NORP resident abroad should :

be registered in an electoral roll of a municipality or community in GPE ;

be entitled to vote and not have been deprived of that right ;

submit a statement to the local ORG ( in the area where they intend to exercise their voting rights ) that they wish to vote at their place of residence . ... ;

have their residence in a Member State of ORG . Based on this statement they will be entered in special electoral rolls prepared by ORG .

Buildings belonging to ORG , buildings of other NORP authorities or services , independent offices of ORG and buildings or other premises belonging to NORP communities , associations or other NORP organizations may be used as polling stations ( to be decided on by the Minister of Interior ) , which will form electoral departments . In case these buildings are inadequate to meet election needs , buildings belonging to the ORG Member ORG may be used .

The number of electoral departments ( to be decided on by the Minister of ORG ) , which will be established for each ORG or Consulate depends on the number of voters stating their intention to vote in that area

Voting at each electoral department will take place under the supervision of a returning board which will consist of ... a Chairman and CARDINAL voters from those included in the special electoral rolls . The [ Chairman ] will be appointed by ORG . The other members of the returning board drawn from persons registered in the special electoral rolls will be appointed by the local Ambassador or Consul following a public draw of lots at the Embassy or Consulate . The date and time of such drawing of lots shall be notified by ORG by displaying a notice to this effect at their offices .

ORG functionaries , court employees and attorneys at law from GPE may be appointed as [ Chairmen ] of the returning boards . If inadequate numbers of such persons are available to cover the needs of all electoral departments , at exception ORG I of ORG may appoint the following persons ... : permanent ORG and Consul attachés and secretaries ... of higher or tertiary level education employed in the post of ORG or above ) serving within the area covered by the Embassy or Consulate . ”

The relevant texts adopted by the competent bodies of ORG provide as follows :

NORP In accordance with the opinion of ORG ) adopted in DATE , it therefore invites the member and observer states of the ORG to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim .

The ORG considers that , as a rule , priority should be given to granting effective , free and equal electoral rights to the highest possible number of citizens , without regard to their ethnic origin , health , status as members of the military or criminal record . Due regard should be given to the voting rights of citizens living abroad .

Given the importance of the right to vote in a NORP society , the member countries of ORG should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems . They should take appropriate measures to facilitate the exercise of such voting rights as much as possible , in particular by considering absentee ( postal ) , consular or e - voting , consistent with Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on legal , operational and technical standards for evoting . Member states should co - operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories .

The ORG therefore invites :

i. ORG member and observer states concerned to :

b. grant electoral rights to all their citizens ( nationals ) , without imposing residency requirements ;

c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures ( postal and/or consular voting ) and considering the introduction of e - voting consistent with Recommendation Rec(CARDINAL)CARDINAL of ORG and to co - operate with one another to this end ;

“ CARDINAL . Referring to its Resolution CARDINAL ( DATE ) on the abolition of restrictions on the right to vote , ORG calls upon ORG to :

i. NORP appeal to member and observer states to :

a. sign and ratify the DATE ORG on the Participation of Foreigners in Public Life at Local Level ( ETS No . CARDINAL ) and to grant active and passive electoral rights in local elections to all legal residents ; and

b. reconsider existing restrictions on electoral rights of prisoners and members of the military , with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim ;

ii . invite the competent services of ORG , in particular ORG ) and its ORG , to develop their activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties , such as expatriates , prison inmates , persons who have been convicted of a criminal offence , residents of nursing homes , soldiers or nomadic groups ;

iii . review existing instruments with a view to assessing the possible need for a ORG convention to improve international co - operation with a view to facilitating the exercise of electoral rights of expatriates . ”

CARDINAL Freedom of voters to express their wishes and action to combat electoral fraud

i. NORP voting procedures must be simple ;

ii . NORP voters should always have the possibility of voting in a polling station . Other means of voting are acceptable under the following conditions :

iii . NORP postal voting should be allowed only where the postal service is safe and reliable ; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad ; fraud and intimidation must not be possible ;

iv . NORP electronic voting should be used only if it is safe and reliable ; in particular , voters should be able to obtain a confirmation of their votes and to correct them , if necessary , respecting secret suffrage ; the system must be transparent ;

v. very strict rules must apply to voting by proxy ; the number of proxies a single voter may hold must be limited ;

Although LAW is not a binding document , it does nonetheless set out a NORP standard which could influence the interpretation of treaty - based rules , in particular LAW CARDINAL ( see infra CARDINAL . ) .

Guideline I.CARDINAL.CARDINAL of the LAW states that electronic voting should be accepted only if it is secure and reliable . In particular , electors must be able to obtain confirmation of their vote and correct it if necessary , while respecting secret suffrage . The system ’s transparency must be guaranteed . Any violation of secret suffrage should be sanctioned ( guideline I.CARDINAL.d ) .

In paragraph DATE onwards of the explanatory report , this guideline is clarified as follows :

Although mechanical and electronic voting methods present clear advantages when several elections are taking place at the same time , certain precautions are needed to minimise the risk of fraud , for example by enabling the voter to check his or her vote immediately after casting it . In order to facilitate verification and a recount of votes in the event of an appeal , it may also be provided that a machine could print votes onto ballot papers ; these would be placed in a sealed container where they can not be viewed . All the methods used should enable the confidentiality of the ballot to be guaranteed ( see explanatory report , § DATE ) . Electronic voting methods are ‘ secure’ if the system can withstand deliberate attack ; they are ‘ reliable’ if they can function on their own , irrespective of any shortcomings in the hardware or software ( § CARDINAL ) . The system ’s transparency must be guaranteed , in the sense that it must be possible to check that it is functioning properly ( § CARDINAL ) .

According to guideline I.CARDINAL.a . , democratic elections are not possible without respect for human rights , in particular freedom of expression and of the press , freedom of circulation inside the country , freedom of assembly and freedom of association for political purposes , including the creation of political parties . Restrictions of these freedoms must be in conformity with the ORG and , more generally , have a basis in law , be in the public interest and comply with the principle of proportionality ( cf . § CARDINAL of the explanatory report ) .

It may be concluded that , on the one hand , the institutionalisation of postal voting and e - enabled voting is , in principle , compatible with LAW . On the other hand , their compatibility depends primarily on adequate provision , through national legislation and legal practice , of the prescribed conditions , taking particular account of technical and social conditions . ”

External voting rights , e.g. granting nationals living abroad the right to vote , are a relatively new phenomenon . Even in long - established democracies , citizens living in foreign countries were not given voting rights until DATE ( e.g. GPE , GPE ) or DATE ( e.g. , GPE , GPE ) . In the meantime , however , many emerging or new democracies in LOC have introduced legal provisions for external voting .... Although it is yet not common in LOC , the introduction of external voting rights might be considered , if not yet present . However , safeguards must be implemented to ensure the integrity of the vote ...

Postal voting is permitted in several established democracies in LOC , GPE , GPE , GPE , GPE and , for voters abroad , the GPE , GPE , and GPE ... It was also used , for example , in GPE and the GPE in order to ensure maximum inclusiveness of the election process ( ORG ( CARDINAL ) DATE ) . However , it should be allowed only if the postal service is secure and reliable . Each individual case must be assessed as to whether fraud and manipulation are likely to occur with postal voting .

Having carried out a comparative study of the domestic law of PERCENT ORG member GPE based primarily on data gathered by ORG and by ORG , the ORG notes that the great majority of those countries have implemented procedures to allow their nationals living abroad to vote in parliamentary elections . In particular , CARDINAL countries make provision , without restriction as to the persons concerned , for the right to vote from abroad ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . CARDINAL member States impose certain restrictions on their nationals’ right to vote from abroad ( GPE , GPE and GPE ) . Finally , CARDINAL member GPE make no provision for their nationals living abroad to vote in parliamentary elections ( GPE , GPE , GPE and GPE ) .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 with regard to eleven sets of proceedings;No violation of Art. 6-1 with regard to two sets of proceedings;No violation of Art. 13 with regard to pending proceedings;Violation of Art. 13 with regard to concluded proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The first to fifth applicants were born in DATE , DATE and DATE respectively and live in GPE .

During DATE the applicants lent various sums of money to a number of agencies that were supposed to pay back the loans within periods ranging from DATE and at interest rates ranging from PERCENT per month ( so called “ financial engineering ” ) . As these agencies failed to re - pay the loans , the applicants instituted civil proceedings against the agencies and their alleged owners .

On DATE the applicant filed an action with ORG ( PERSON ) seeking payment of his loan in the amount of CARDINAL NORP PERSON ( ORG ) .

The preliminary hearing scheduled for DATE was adjourned .

As on DATE the presiding judge resigned from her office , the case was transferred to another judge in DATE .

The next hearing scheduled for DATE was adjourned because the presiding judge was absent .

The hearing scheduled for DATE was adjourned because PERSON did not appear . As the documents indicated that she had been released from detention on remand , the court invited the applicant to submit her new address . When the applicant informed the court that he did not know PERSON ’s new address , the court requested ORG ( ORG unutarnjih poslova PERSON ) to submit PERSON ’s new address . ORG informed the court that PERSON had changed her name into GPE

The hearings scheduled for DATE and DATE were adjourned because PERSON had not collected a notice of the hearing date .

It appears that the proceedings are pending before the court of first instance .

On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL .

Before the period to be examined by the ORG several hearings were held and several adjourned . The hearing scheduled for DATE was adjourned because PERSON did not appear . The court invited the applicant to submit the number of the case - file concerning criminal proceedings against PERSON before the same court .

As the applicant failed to do so , the court itself found the file number , but was unable to review that file because it was sent to ORG ( Županijski sud u GPE ) on DATE . The court repeated its request to examine the file on DATE , DATE and CARDINAL DATE .

As neither party appeared at the hearing scheduled for DATE the court found that the applicant had withdrawn his claim .

The applicant appealed against that decision stating that he had been ill on the date of the hearing . On DATE the court invited the applicant to submit evidence as to the fact that he had been ill . The applicant appeared before the court on DATE and stated that he had no medical documentation .

On DATE the court sent the case - file to ORG as the appellate court . However that court found that the applicant ’s appeal in effect had been a request to resume the proceedings . Consequently , on DATE the case - file was returned to ORG .

It appears that the proceedings are pending before ORG .

NORP Before the period to be examined by the Court QUANTITY hearings were held .

On DATE the court dismissed the claims of CARDINAL plaintiffs , but not in respect of the second applicant . As on DATE the plaintiffs whose claims were dismissed appealed against that decision , the case file was sent to ORG ( Županijski sud u GPE ) on DATE , for consideration on appeal .

On DATE ORG upheld the first instance decision except in respect of CARDINAL of the plaintiffs .

On DATE ORG invited the plaintiffs’ counsel to submit a certificate from the registry of ORG ( PERSON ) regarding the legal status of F.I.M.

On DATE the ORG counsel withdrew the claim in respect of F.I.M.

The next hearing took place on DATE .

At the hearing on DATE the court heard GPE and then adopted judgment rejecting all claims . The judgment was served on the GPE counsel on DATE . On DATE the plaintiffs’ counsel appealed against the judgment .

ORG , as the appellate court , found that the appeal was submitted by PERSON on behalf of all plaintiffs although he had not had a power of attorney . The case file was therefore returned to ORG on DATE . On DATE ORG invited PERSON to submit a power of attorney to represent the other plaintiffs .

It appears that the proceedings are pending on appeal before ORG .

On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG for re - payment of their loans . The applicant claimed PERSON CARDINAL .

Before the period to be taken into account CARDINAL hearing was held and CARDINAL was adjourned .

At the next hearing on DATE the court invited the plaintiffs to submit additional documentation .

Although they failed to submit that documentation , the next hearing was held on DATE . The plaintiffs asked the court to hear several witnesses but were unable to submit their addresses .

On DATE the court invited the plaintiffs to submit further evidence necessary to proceed with the case . The plaintiffs claimed that they were members of ORG Investors QUANTITY ” , but did not submit either its registration certificate or its articles of association . Furthermore , CARDINAL plaintiffs failed to submit evidence as to their investments into the “ financial engineering ” and CARDINAL plaintiffs failed to submit their addresses .

At the hearing on DATE the plaintiffs’ counsel submitted the registration certificate and the articles of association as well as the addresses of the witnesses to be heard .

At the hearing on DATE the court heard CARDINAL witness . It invited again the GPE counsel to submit evidence in respect of CARDINAL plaintiffs as to their investments into the “ financial engineering ” as well as the addresses of CARDINAL plaintiffs .

On DATE the plaintiffs submitted the requested addresses and asked the court to allow them an additional period of DATE to submit evidence in respect of CARDINAL plaintiffs as to their investments into “ financial engineering ” .

On DATE the plaintiffs submitted evidence in respect of CARDINAL plaintiffs as to their investments but were unable to produce such evidence for the third plaintiff . They also changed their claims .

At the next hearing scheduled for DATE the court stayed the proceedings because the plaintiffs’ representative did not appear .

On DATE the applicant filed a request to resume the proceedings .

It appears that the proceedings are pending before the court of first instance .

On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of NORP Francs ( CHF ) CARDINAL .

Before the period to be examined by the ORG CARDINAL hearings were adjourned . It turned out that F.I.S. had ceased to exist and that PERSON had changed her address . In DATE the court invited the applicant to submit her correct address within DATE .

On DATE the court repeated its request .

On DATE the applicant submitted PERSON ’s new address .

On DATE the court ordered the applicant to request ORG ( NORP za socijalnu skrb ) to appoint a legal representative for PERSON

On DATE ORG informed the court that by a decision of DATE it had appointed a legal representative for PERSON

At the next hearing on DATE the representative gave her reply to the applicant ’s claim . The applicant informed the court that he had obtained PERSON ’s new address and asked the court to invite PERSON to the next hearing .

At the next hearing on CARDINAL DATE the applicant was heard . PERSON failed to appear . Her representative asked the court to enclose the case - file concerning the criminal proceedings against PERSON before the same court .

However , the court was unable to enclose the criminal case file as the criminal proceedings against PERSON were still pending .

According to the Government , on DATE the court requested ORG registry to submit a certificate regarding the legal status of F.I.S. It turned out that on DATE ORG had instituted ex officio proceedings for liquidation of F.I.S.

At the next hearing on DATE the court concluded the proceedings .

On DATE the applicant , together with CARDINAL other plaintiffs , filed an action with ORG for re - payment of their loans . The applicant claimed a sum of ORG CARDINAL .

Before the period to be examined by the ORG one hearing was adjourned .

A hearing scheduled for DATE was adjourned because the defendants did not appear . T.I.A. had ceased to exist and GPE had failed to collect the notice of the hearing date .

At the hearing on CARDINAL DATE the GPE counsel gave his reply to the plaintiffs’ claim . The court invited GPE to give his additional detailed reply to the GPE claim within DATE .

The next hearing scheduled for DATE was adjourned because CARDINAL plaintiffs , including the applicant , who were supposed to be heard , failed to appear . It turned out that the applicant had failed to collect the notice of the hearing date as well as another plaintiff , while CARDINAL other plaintiffs had changed their addresses .

On DATE the plaintiffs’ counsel submitted their addresses .

The next hearing scheduled for DATE was adjourned because ORG did not appear .

At hearing on DATE the court heard one of the plaintiffs and then asked the plaintiffs to specify their claims and submit further documents .

It appears that the proceedings are pending before the court of first instance .

On DATE the court requested ORG to submit PERSON ’s correct address .

On DATE ORG informed the court that PERSON ’s address was unknown .

The next hearing scheduled for DATE was adjourned as PERSON did not appear . The documents showed that she was unknown at the address indicated . According to the registry of ORG , however , she remained registered at the same address .

On DATE the plaintiffs’ counsel asked the court to request ORG to appoint a legal representative for PERSON

On DATE the court invited again ORG to submit PERSON ’s address .

On DATE the court ordered ORG FAC uprava CARDINAL ) to make an on the spot inquiry about PERSON ’s address . The police found out that she had left the address where she was registered and that her new address was unknown .

DATE . On DATE the applicant , together with CARDINAL other plaintiffs , filed an action for re - payment of their loans with ORG . The applicant claimed a sum of DEM CARDINAL,CARDINAL .

Before the period to be examined by the ORG CARDINAL hearings were adjourned .

The court scheduled the next hearing for DATE and invited PERSON to submit the evidence he relied on in his written reply to the plaintiffs’ claims . However , he failed to do so and also did not appear at the hearing . The plaintiffs’ counsel submitted that PERSON was found guilty for fraud in criminal proceedings conducted before the same court in connection with the GPE loans . On DATE the plaintiffs’ counsel submitted the number of the criminal case - file against PERSON

On DATE the court requested the criminal case - file against PERSON from the criminal division of ORG , but the case - file was at the ORG pending decision on appeal .

The court repeated its request to enclose the criminal case - file on DATE , DATE and CARDINAL DATE and DATE , but the case - file was at ORG ( Ured državnog odvjetništva ) .

At the next hearing on DATE the court invited the applicant to submit a copy of the judgment finding PERSON guilty for fraud .

On DATE the applicant informed the court that the first instance judgment in the criminal proceedings against PERSON had been quashed and the case remitted to the court of first instance for re - trial .

Before the period to be examined by the ORG one hearing was held and one was adjourned .

On DATE the court invited the applicant ’s counsel to submit ORG ’s address within DATE .

On DATE the applicant ’s counsel submitted ORG ’s new address .

On DATE the court invited the applicant ’s counsel to submit within DATE a notice from the registry of ORG concerning the legal status of ORG

It appears that the proceedings are pending before the court of first instance .

On DATE the applicant filed an action for re - payment of his loan , in the amount of DEM CARDINAL,CARDINAL , with ORG .

Before the period to be examined by the ORG , first instance judgment awarding the applicant ’s claim in part and rejecting it in part was adopted . This judgment was quashed on appeal in the part rejecting the applicant ’s claim and the case was remitted for re - trial to the court of first instance .

The hearings scheduled for DATE , DATE and DATE before ORG were adjourned since GPE failed to appear .

At the next hearing on CARDINAL DATE the court adopted a judgment awarding the rest of the applicant ’s claim . The judgment became final on DATE .

According to the Government , the applicant has not sought to enforce the judgment .

Before the period to be examined by ORG several hearing were held and several adjourned and on DATE the court adopted judgment rejecting the applicant ’s claim .

On DATE the applicant appealed against the judgment .

On DATE the proceedings ended by ORG decision upholding the first instance judgment .

On DATE the applicant filed an action with ORG for re - payment of his loan in the amount of DEM CARDINAL,CARDINAL ; CARDINAL HRK ; and CHF CARDINAL .

The preliminary hearings scheduled for DATE , CARDINAL DATE , DATE , DATE , DATE and DATE and CARDINAL DATE were adjourned as PERSON failed to appear .

At the hearing on DATE PERSON replied to the applicant ’s claim .

On DATE the applicant specified his claim .

At the hearing on DATE the applicant and a witness were heard .

From DATE to CARDINAL DATE the court unsuccessfully attempted on many occasions to consult the case - file concerning criminal proceedings against PERSON before the same court .

At the hearing on DATE the court adopted a judgment finding in favour of the applicant . The judgment became final on DATE .

According to the Government , the applicant has not sought the enforcement of the judgment .

On DATE the applicant filed an action for re - payment of his loan in the amount of DEM CARDINAL with ORG .

DATE . Before the period to be examined by the ORG several hearings were held and several adjourned .

The hearing scheduled for DATE was adjourned because the witnesses invited did not appear .

At the hearing on DATE CARDINAL witness was heard . The court requested ORG FAC uprava varaždinska ) to submit the address of another witness .

On DATE ORG submitted the requested address .

At the hearing on DATE CARDINAL PERSON gave her testimony . The court invited ORG to submit a certificate from its registry regarding the legal status of PERSON and decided to examine the criminal case - file against GPE However , the criminal case - file could not be consulted because the criminal proceedings were pending .

The hearings scheduled for DATE and CARDINAL DATE were adjourned because DATE did not appear .

At the next hearing the court heard the applicant and Ð. M.

At the next hearing on DATE the court stayed the proceedings because the applicant did not appear .

On DATE the applicant filed a request to resume the proceedings .

It appears that the proceedings are pending before the court of first instance .

Section CARDINAL ( CARDINAL ) of LAW on LAW ( which entered into force on DATE hereinafter “ LAW ” – PERSON o PERSON ) reads as follows :

“ ORG may , exceptionally , examine a constitutional complaint prior to exhaustion of other available remedies if it is satisfied that a contested act , or failure to act within a reasonable time , grossly violates a party ’s constitutional rights and freedoms and that , if it does not act , a party will risk serious and irreparable consequences . ”

Section CARDINAL of LAW on the Changes of LAW on FAC ( entered into force on DATE , published in ORG no . CARDINAL of DATE hereinafter “ LAW DATE ” – PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON ) introduced a new Section CARDINAL ( a ) , which subsequently became LAW of LAW on ORG . The relevant parts of that Section read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

NORP The applicant , PERSON , is a NORP citizen of NORP ethnic origin , who was born in DATE and lives in PERSON . She is represented before the Court by PERSON , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE a bomb was thrown at a house owned by the applicant ’s parents - in - law . A close relative of the applicant ’s husband was killed and another injured .

In DATE and DATE fires were started at a house and adjacent premises owned by the applicant ’s husband , B.

On DATE while the applicant and her husband were returning from a funeral in GPE , PERSON was shot in the back . He was taken to a hospital in PERSON , where he died on DATE .

On DATE of the shooting of the applicant ’s husband the police arrived at the scene and carried out a crime scene inspection , which was continued the following day . The crime scene was photographed . The police examined the scene and recovered samples of earth , clothes and biological traces . The footprints found at the scene were not susceptible to forensic examination . A sniffer dog was also used and it was concluded that the perpetrator had walked for QUANTITY and had then driven away in a motor vehicle . A special team was formed in the ORG Gradiška Police Station which carried out further investigation . In DATE they interviewed CARDINAL potential witnesses , including the applicant . However , all these steps were fruitless .

On DATE an autopsy of B. ’s body was carried out .

On DATE the ORG Gradiška Police Station lodged a criminal complaint against an unknown perpetrator with the GPE ORG Attorney ’s ORG . On DATE the case was transferred to PERSON State Attorney ’s Office . However , on DATE the criminal complaint was dismissed on the grounds that the prosecution had become time - barred .

On an unspecified date the applicant and her CARDINAL children brought a civil action against the ORG in ORG , seeking compensation in connection with the death of B.

On DATE ORG awarded each claimant MONEY ( HRK ) .

This judgment was altered by ORG on DATE . The court lowered the compensation awarded to each child to HRK CARDINAL but upheld the sum awarded to the applicant .

The applicant and her children lodged an appeal on points of law with ORG . In respect of the applicant ’s children , the appeal was declared inadmissible ratione valoris . As regards the applicant , ORG reversed the lower courts’ judgment and found that the claim had become time - barred in DATE .


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

ORG The applicant , Mr. PERSON , is a NORP citizen born in DATE .

ORG On DATE , then aged DATE , he pleaded guilty at GPE PERSON to armed robbery , assaulting a police officer and being in the unlawful possession of a firearm . In respect of the first offence , he was sentenced to life imprisonment ; for the second and third offences he received CARDINAL and CARDINAL years’ imprisonment respectively , all sentences to run concurrently .

ORG The applicant had committed the robbery on DATE when he entered a pet shop in GPE , GPE , with a starting pistol loaded with blank cartridges , pointed it at the owner and told her to hand over the till . He stole a sum of MONEY which was later found on the shop floor .

DATE , he telephoned NORP police station to say that he would give himself up . He was apprehended in FAC by CARDINAL police officers . He took the starting pistol from his pocket and it went off . In the ensuing struggle , CARDINAL more blanks were fired , CARDINAL of which caused a powder burn to the wrist of CARDINAL of the police officers . It emerged that the applicant had committed the robbery because he wanted to pay back £ MONEY which he owed his mother , who had told him that morning to find lodgings elsewhere .

ORG At the trial , a prison medical officer testified that he could find no evidence of mental instability which would justify sending the applicant to a mental institution . However , a probation report , which had been prepared by a probation officer who had supervised the applicant for a period of DATE , characterised him as being susceptible to fluctuation of mood and emotionally immature , and as having a morbid interest in the literature of violence and a fascination for guns . The report also stated that he had taken to drinking heavily from time to time and that he had a high potential for aggression . No psychiatric report was available to the court .

ORG In passing sentence , Mr. PERSON said :

" ... [ T]he facts of the offence and the evidence of the character and disposition of the accused ... satisfy me that ... he is a very dangerous young man . ... I think an indeterminate sentence is the right sentence for somebody of this age , of this character and disposition , who is attracted to this form of conduct . That leaves the matter with the Secretary of ORG who can release him if and when those who have been watching him and examining him believe that with the passage of years he has become responsible . It may not take long . Or the change may not occur for a long time - I do not know how it will work out . ... So far as the first count of the indictment is concerned , I think the right conclusion , terrible though it may seem , is that I pass the sentence that the law authorises me to pass for robbery and for assault with intent to rob with arms , that is life imprisonment . The Secretary of ORG can act if and when he thinks it is safe to act . "

ORG Mr. DATE applied for leave to appeal against the sentence to ORG ) which , on DATE , dismissed the application . Lord ORG upheld the view of the sentencing judge in the following terms :

" Now at the trial it appears that the prison doctor said that there was no evidence of any mental disorder then apparent which would have justified his detention in a mental institution . The Learned Judge , quite rightly in the view of this ORG , took the view that this was not a case for borstal because borstal for CARDINAL reason would not be a sufficiently secure place to send such a dangerous young man . The Judge was therefore - since he could not send him to a mental institution for lack of evidence - faced with a difficult decision on whether he should give him what he did , namely life imprisonment , or sentence him to some long term , some definite term of imprisonment for DATE . As he was at pains to point out , he in mercy really to the boy took the former course . Now life imprisonment in this case at any rate means an indeterminate sentence . If when he gets to prison it then appears after he has been there some time that there are grounds for transferring him to a mental institution for treatment , there are ample powers under LAW which will enable the Home Secretary to do so . Moreover , as soon as it becomes apparent , and it is to be hoped that it may not be long , but one can not tell , that it is safe from the public point of view and from his own point of view to do so , this boy will be released . At first sight a sentence of life imprisonment , particularly having regard to his age , sounds terrible , but when the factors to which reference has been made are considered it will be seen that this is really in mercy to the boy and will perhaps enable him to be released much sooner than if a long term of imprisonment had been imposed , which was the only other alternative . "

ORG In DATE , the applicant was transferred to PERSON , a psychiatric prison . However , it was found that he did not respond to the regime and after CARDINAL months’ treatment , he was transferred back to FAC until his release on licence in DATE . He had originally been given a release date for DATE but had absconded from a prison hostel during DATE . He later surrendered to the police , but on his return to prison was violent and refused food for a time . On the recommendation of ORG , a further release date was set for DATE . However , this date was again rescinded when the applicant returned to a prison hostel drunk , tried to escape while being escorted to the main prison and was recaptured only after a chase and a violent struggle . His case was once more referred to ORG and , on its recommendation , he was released on licence by decision of the Secretary of ORG for ORG ( " the ORG Secretary " ) on DATE .

ORG On DATE , the applicant pleaded guilty at ORG to burglary and driving while uninsured and without a licence . It appears he had broken into a beach hut and stolen a pullover . He was given a conditional discharge for DATE and fined . The probation report described the applicant as having frequent disagreements with members of his family , with whom he lived in turn , and drinking to excess in times of stress . Following this incident , a letter warning that his licence could be revoked was issued by ORG and served on him on DATE .

At DATE , the applicant was given accommodation and employment as a labourer at FAC . On DATE he was arrested , having damaged a car in the village while driving a dumper truck without permission . He was granted bail . DATE he visited a public house and became drunk and abusive . He was escorted by police back to the Priory where he became agitated , particularly at the prospect of being sent back to prison again , and produced an air pistol , threatening to commit suicide . A priest in the PERSON remonstrated with him , the gun was fired and a lead pellet hit the ceiling . DATE he was found to be very drunk and in possession of a quantity of bottles of spirits which had been stolen from a store . He was arrested and taken to the police station where he became abusive and violent and during the night tried to hang himself . Following his arrest , he was remanded in custody by NORP ORG .

ORG On DATE , whilst Mr. PERSON was still in custody on remand , the Home Secretary ordered that his licence be revoked ( section CARDINAL(CARDINAL ) of LAW DATE , hereafter referred to as " LAW " - see paragraph CARDINAL below ) . His case was referred to ORG ( section CARDINAL ) of the Act - ibid . ) , which decided to defer consideration of his case until the outcome of his appearance in court , in connection with the above offences , was known .

ORG On DATE , he was convicted by ORG at GPE on charges of taking a dumper truck for his own use , being in possession of an air pistol as a prohibited person , theft of some alcohol and damaging a police blanket . He was given a conditional discharge for DATE by a judge ( Judge PERSON ) assisted by CARDINAL lay magistrates . Judge PERSON indicated that he did not consider that the applicant ’s case was " a typical case of someone given a sentence such as a life sentence , released on parole and then reverting straight into crime , reverting back to usual or true colours " . He then left it to ORG to consider whether to release the applicant once more on parole , with the suggestion that he be allowed his liberty again . Judge PERSON himself had no competence to restore the applicant ’s licence or to order release , although he could have revoked the licence had it still been in force ( section CARDINAL(CARDINAL ) of LAW - see paragraph CARDINAL below ) .

ORG The applicant ’s case was considered by ORG in DATE . ORG took the view that the applicant was still a danger to himself and to the public and confirmed his recall to prison . It recommended that the case be referred to ORG , the first stage of a formal review by ORG ( see paragraph CARDINAL below ) , in DATE .

ORG reviewed the case again in DATE , when it recommended that he be released on licence once more . The Home Secretary , after consultation with the Lord Chief Justice and the trial judge , did not accept ORG recommendation and decided that the applicant should be transferred to an open prison . In DATE , he absconded from the open prison to GPE , but surrendered himself to the police in DATE . In DATE , ORG recommended that he be released on licence as soon as resettlement arrangements could be made . The ORG Secretary accepted this recommendation and decided upon a provisional release date of DATE , subject to pre - release employment at FAC . However , in DATE , when in a drunken and agitated state , he was involved in a violent struggle with the hostel wardens during which CARDINAL officer was injured on the thumb with a knife . On DATE , he was found guilty at ORG of the offence of malicious wounding and sentenced to CARDINAL months’ imprisonment .

In DATE , the case was again referred to ORG , which recommended that preparation should be made for the applicant to be released directly from prison to a hostel . He was released on licence on DATE . As in the case of every life licensee , his licence included conditions requiring him , inter alia , to place himself under the supervision of a nominated probation officer ; to keep in touch with his supervising officer in accordance with that officer ’s instructions ; to reside only where approved by his supervising officer ; and not to travel outside GPE without the prior permission of his supervising officer .

ORG On DATE , at ORG , the applicant pleaded guilty to driving a motorcycle whilst unfit through drink and driving without insurance . He was fined a total of £ MONEY and disqualified from driving for DATE . On DATE , at ORG , he pleaded guilty to the charge of being in unlawful possession of a shotgun . He was sentenced to CARDINAL months’ imprisonment suspended for DATE . On DATE , the police reported that he had been apprehended whilst driving in GPE and charged with a number of motoring offences including fraudulent use of a road fund licence and driving whilst disqualified .

The case was referred to ORG for its consideration . On DATE , ORG decided not to recommend the revocation of the applicant ’s licence but asked for a letter to be sent to his supervising officer ( and to be shown to the applicant ) saying that the ORG was aware of his offences and asking to be notified if any further cause for concern was shown . In DATE , the applicant wrote to ORG acknowledging his irresponsible behaviour and agreeing to heed ORG warning .

On DATE , at ORG , he pleaded guilty to the fraudulent use of an excise licence and driving whilst disqualified and was fined a total of £ MONEY .

ORG In DATE , ORG reported that the applicant was out of touch with his supervising officer , had vacated his flat and was believed to have gone abroad . He had in fact moved his residence to GPE . The case was referred to ORG which , on DATE , recommended that his licence should be revoked on the ground that he was in breach of its conditions . The ORG ’s recommendation was accepted by the Secretary of ORG and the licence was revoked on DATE .

He was arrested by the police on DATE , having returned to GPE from GPE to visit his family .

ORG Following consideration by ORG of his representations with respect to his recall ( section CARDINAL ) of LAW - see paragraph CARDINAL below ) , Mr. PERSON was again released on licence on DATE . He subsequently failed to keep appointments with his supervisory probation officer and was found to have left his lodgings , his whereabouts being unknown . In the light of these facts ORG recommended on DATE that his licence be revoked on the same ground as in DATE . The ORG Secretary acted on this recommendation on CARDINAL DATE . As at DATE , the applicant was still at large , having once more moved his residence to GPE .

ORG By virtue of section PERSON ) of LAW , the maximum penalty for robbery with violence was imprisonment for life . This was the provision in force at the time of the applicant ’s conviction in DATE . It has now been replaced by section CARDINAL(CARDINAL ) of the Theft Act DATE , which came into force on DATE . DATE and DATE , of the CARDINAL persons convicted of robbery CARDINAL have been sentenced to life imprisonment ( ORG , vol . CARDINAL , no . CARDINAL , DATE , col . CARDINAL - written answer by the Secretary of ORG for ORG ) .

There is no definitive statement , statutory or otherwise , as to the principles governing the imposition of life sentences in GPE . However , certain guidelines have from time to time been given in judgments of ORG . Broadly speaking , according to these guidelines , apart from such crimes as murder where a life sentence is mandatory , life sentences should be reserved for exceptional cases , for example ( a ) where the offence committed is in itself grave enough to require a very long sentence ; ( b ) where it appears from the nature of the offence or from the defendant ’s history that he is a person of unstable character likely to commit such offences in the future . In relation to the latter category , ORG has stated that a sentence of life imprisonment should not be imposed unless there is clear evidence of mental instability ( as opposed to mental disorder ) which indicates that the person is likely to be a danger to the public .

ORG At the time of Mr. GPE conviction in DATE , the relevant statutory provision governing the release on licence and recall to prison of persons serving life sentences was section CARDINAL of the Prison Act DATE , which read :

" CARDINAL . ( CARDINAL ) The Secretary of ORG may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions , if any , as the Secretary of ORG may from time to time determine .

( CARDINAL ) The Secretary of ORG may at any time by order recall to prison a person released on licence under this section , but without prejudice to the power of the Secretary of ORG to release him on licence again ; and where any person is so recalled his licence shall cease to have effect and he shall , if at large , be deemed to be unlawfully at large . "

This provision was qualified by LAW DATE which provided that no person convicted of murder could be released under section CARDINAL of the DATE Act unless the Home Secretary had prior to release consulted the Lord Chief Justice and , if available , the trial judge .

ORG A new system was introduced by sections CARDINAL and CARDINAL of LAW DATE ( " LAW " ) :

" CARDINAL . ( CARDINAL ) The Secretary of ORG may , if recommended to do so by ORG , release on licence a person serving a sentence of imprisonment for life or a person detained under LAW DATE ( young offenders convicted of grave crimes ) , but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty ’s pleasure or for life except after consultation with the Lord Chief Justice of GPE together with the trial judge if available .

( CARDINAL ) Where ORG recommends the recall of any person who is subject to a licence under section CARDINAL of this LAW , the Secretary of ORG may revoke that person ’s licence and recall him to prison .

( CARDINAL ) The Secretary of ORG may revoke the licence of any such person and recall him as aforesaid without consulting ORG , where it appears to him that it is expedient in the public interest to recall that person before such consultation is practicable .

( CARDINAL ) A person recalled to prison under the foregoing provisions of this section may make representations in writing with respect to his recall and shall on return to prison be informed of the reasons for his recall and of his right to make such representations .

( CARDINAL ) The Secretary of ORG shall refer to the ORG the case of a person recalled under subsection ( CARDINAL ) of this section who makes representations under the last foregoing subsection and shall in any event so refer the case of a person returned to prison after being recalled under subsection ( CARDINAL ) of this section .

( CARDINAL ) Where the ORG recommends the immediate release on licence of a person whose case is referred to it under this section , the Secretary of ORG shall give effect to the recommendation , and where it is necessary for that purpose to release that person under subsection ( CARDINAL ) of the last foregoing section , the Secretary of ORG shall do so without the consultation required by that subsection .

( CARDINAL ) If a person subject to a licence under LAW or CARDINAL of this LAW is convicted on indictment of an offence punishable on indictment with imprisonment ... , the court by which he is convicted ... may , whether or not it passes any other sentence on him , revoke the licence .

( CARDINAL ) On the revocation of the licence of any person under this section , he shall be liable to be detained in pursuance of his sentence , and , if at large , shall be deemed to be unlawfully at large . "

ORG Once an offender is sentenced to life imprisonment , then , subject to any variation of the sentence by the sentencing court upon reconsideration within DATE or to variation of it by ORG , he may be detained by virtue of the original order of the court in prison for the rest of his life . A sentence of life imprisonment can never be altered , substituted or terminated , save if there is a free pardon or an exercise of the Royal Prerogative remitting the remainder of the sentence . Such use of the prerogative power could be contemplated only in the most exceptional circumstances , as it would have the effect of overriding the decision of the court ; it has not been considered in Mr. GPE case . As far as offenders sentenced to life imprisonment are concerned , any release ordered by the ORG Secretary under LAW is always conditional and can never become unconditional .

ORG Relevant provisions concerning ORG are also contained in section CARDINAL of LAW :

" CARDINAL . ( CARDINAL ) For the purposes of exercising the functions conferred on it by this part of this LAW as respects GPE and GPE there shall be a body known as ORG ... consisting of a chairman and not CARDINAL other members appointed by the Secretary of ORG .

( CARDINAL ) It shall be the duty of the ORG to advise the Secretary of ORG with respect to :

( a ) the release on licence under LAW ) or DATE , and the recall under section DATE , of this LAW of persons whose cases have been referred to the ORG by the Secretary of ORG ;

( b ) the conditions of such licences and the variation or cancellation of such conditions ; and

( c ) any other matter so referred which is connected with the release or recall of persons to whom the said section CARDINAL or CARDINAL applies .

( CARDINAL ) The following provisions shall have effect with respect to the proceedings of ORG on any case referred to it , that is to say :

( a ) the ORG shall deal with the case on consideration of any documents given to it by the Secretary of ORG and of any reports it has called for and any information whether oral or in writing that it has obtained ; and

( b ) if in any particular case ORG thinks it is necessary to interview the person to whom the case relates before reaching a decision , ORG may request CARDINAL of its members to interview him and shall take into account the report of that interview by that member ; ...

( CARDINAL ) The documents to be given by the Secretary of ORG to the ORG under the last foregoing subsection shall include :

( a ) where the case referred to the ORG is CARDINAL of release under section CARDINAL of this Act , any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection ;

( b ) where the case so referred relates to a person recalled under LAW of this LAW , any written representations made under that section .

As to the constitution of ORG , Schedule DATE CARDINAL Act further provides :

" CARDINAL . ORG shall include among its members :

( a ) a person who holds or has held judicial office ;

( b ) a registered medical practitioner who is a psychiatrist ;

( c ) a person appearing to the Secretary of ORG to have knowledge and experience of the supervision or aftercare of discharged prisoners ; and

( d ) a person appearing to the Secretary of ORG to have made a study of the causes of delinquency or the treatment of offenders . "

ORG always counts among its members CARDINAL ORG judges , CARDINAL circuit judges and a recorder . Cases referred to the ORG may be dealt with by CARDINAL or more members of ORG ) . In practice , ORG sits in small panels , each of which in the case of life prisoners includes a ORG judge and a psychiatrist . The judges on ORG are appointed by the ORG Secretary ( section CARDINAL(CARDINAL ) of LAW ) after consultation with the Lord Chief Justice .

ORG A recalled prisoner , as well as being entitled to make written representations to ORG under section CARDINAL ) of LAW and possibly being interviewed by a member of ORG under section CARDINAL(CARDINAL)(b ) ( see paragraphs CARDINAL and CARDINAL above ) , also has the opportunity of making oral representations to a member of ORG . The prisoner may seek legal advice in preparing his representations to ORG and ORG .

ORG is a body independent of ORG , and is constituted by way of statutory instrument . It has the duty of reviewing the cases of , amongst others , life prisoners and of reporting to the Home Secretary on their suitability for release on licence ( section CARDINAL(CARDINAL ) of LAW ) . ORG rules provide that there must be a ORG for every prison , consisting of a minimum of CARDINAL members , not CARDINAL of whom must be members of the general public . In every case of a life prisoner who is recalled , it is CARDINAL of the CARDINAL independent members of ORG who will interview the prisoner , and the prisoner has the right to make oral representations to him .

Furthermore , the GPE courts have made it clear that , for the purposes of section CARDINAL ) , the prisoner must be furnished with full and sufficient reasons for his recall in order to enable him to make sensible representations to ORG ( judgment of ORG in PERSON v. The Chairman of ORG and the Secretary of ORG , DATE ; judgment of ORG in NORP v. ORG and the Secretary of ORG for ORG , ex parte PERSON , DATE ) .

There is no entitlement to an oral hearing before ORG or the full local ORG .

ORG Where the remedy of judicial review of administrative action lies , ORG of ORG will quash decisions of an administrative authority if those decisions are taken in breach of the relevant statutory requirements or if the decisions are otherwise tainted by illegality , irrationality or procedural impropriety . The scope of judicial review was explained as follows by Lord PERSON in his speech in the case of ORG Unions v. Minister for ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL - CARDINAL ) :

" ... Judicial review has I think developed to a stage DATE when , without reiterating any analysis of the steps by which the development has come about , one can conveniently classify under CARDINAL heads the grounds on which administrative action is subject to control by judicial review . The first ground I would call ‘ ORG , the second ‘ ORG and the third ‘ procedural impropriety’ . That is not to say that further development on a case - by - case basis may not in course of time add further grounds . I have in mind particularly the possible adoption in the future of the principle of ‘ proportionality’ which is recognised in the administrative law of several of our fellow members of ORG ; but to dispose of the instant case the CARDINAL already well - established heads that I have mentioned will suffice .

By ‘ ORG as a ground for judicial review I mean that the decision - maker must understand correctly the law that regulates his decision - making power and must give effect to it . Whether he has or not is par excellence a justiciable question to be decided , in the event of dispute , by those persons , the judges , by whom the judicial power of the ORG is exercisable .

By ‘ irrationality’ I mean what can by now be succinctly referred to as ‘ Wednesbury unreasonableness’ ( see ORG v. ORG All England Law Reports CARDINAL , CARDINAL CARDINAL King ’s Bench Reports CARDINAL ) . It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it .

I have described the third head as ‘ procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision . This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred , even where such failure does not involve any denial of natural justice .

ORG According to the Government , a decision of ORG or of the ORG Secretary which violates any of those requirements may be quashed by the courts . Thus , in CARDINAL recent cases , the courts have examined , under the head of procedural impropriety , whether adequate reasons for recall were given for the purposes of section CARDINAL ) of LAW and have , in CARDINAL case , quashed on that ground a decision of ORG refusing to recommend release from prison on licence pursuant to its powers under section CARDINAL(CARDINAL ) of LAW ( see respectively the PERSON and PERSON cases - paragraphs CARDINAL and CARDINAL above ) . In the PERSON case , ORG also considered the extent to which the rules of natural justice apply to proceedings before ORG . Lord Justice Eveleigh stated :

" ... I agree with what was said by Lord Justice PERSON in his judgment in ORG . He quoted the words of Lord Justice PERSON in the case of ORG v. Lord ORG , DATE , CARDINAL Weekly Law Reports CARDINAL , at page CARDINAL , where he said : ‘ The scope and extent of the principles of natural justice depend on the subject matter to which they are sought to be applied : see Reg . v. ORG for GPE , ex parte GPE and GPE DATE CARDINAL Queen ’s Bench Reports CARDINAL , CARDINAL . They apply to the present case , as conceded , to the extent that they impose on ORG , and each member of it , a duty to act fairly . That duty does not , in my judgment , require that any disclosure is made to the prisoner of adverse material which ORG have in their possession to assist them in their advisory and reporting functions.’

[ Counsel for the applicant for judicial review ] submitted that there is a difference in this case and that case , because that case was dealing with an initial release on parole and not with a consideration of the matter by ORG after recall . It is true factually that there is that distinction , but in my judgment that distinction results in CARDINAL difference and CARDINAL difference only from the point of view of the consideration of the matter by ORG ; that is that the prisoner himself , in the case of recall , is entitled to have been told the reasons for his recall . So there is some information to which he is entitled , but to my mind that is the only distinction between the CARDINAL cases . The principle of natural justice upon which reliance has been placed in this case , i.e. an alleged principle of full disclosure , does not in my judgment apply . "


The applicant is a NORP national , born in DATE , and was detained at the time of the introduction of the application . He is represented before the ORG by PERSON , a lawyer practising in GPE .

A.

In its judgment of CARDINAL DATE , ORG ( Arrondissementsrechtbank ) of ORG convicted the applicant of homicide and of hiding and/or removing a body with the aim to conceal the fact and/or the cause of death . It sentenced the applicant to CARDINAL years’ imprisonment . In addition , it ordered the measure that the applicant be placed at the Government ’s disposal ( terbeschikkingstelling ) in order to receive mental treatment at the ORG ’s expense . The applicant filed an appeal with ORG ( Gerechtshof ) of ‘ s - Hertogenbosch . The prosecution did not appeal .

On DATE , following adversarial proceedings , ORG delivered its judgment in public . With the exception of the qualification and the determination of sentence , ORG upheld the judgment of CARDINAL DATE . It convicted the applicant of homicide and of hiding and removing a body with the aim to conceal the fact and/or the cause of death . ORG sentenced the applicant to CARDINAL years’ imprisonment . It further ordered the measure that the applicant be placed at the ORG ’s disposal .

As regards the determination of the applicant ’s sentence of imprisonment , ORG stated :

< Translation >

“ In the court ’s opinion another or lighter sanction than a punishment which entails unconditional deprivation of liberty of a duration stated hereinafter does not suffice . On this point , the seriousness of what has been found proven in relation to other punishable facts as , inter alia , expressed by the statutory defined maximum punishment for this and by the punishments imposed for similar facts , has been taken into account .

The court is of the opinion that a punishment as imposed by the first instance court and as sought by the procurator - general does not suffice in that it insufficiently expresses ;

- the fact that the victim PERSON was a girl of DATE and the fact that she was related to the accused ;

- the extent to which the facts found proven caused personal suffering in the victim ’s family circle and to extent to which society has been rocked ;

- the violent character of what has been found proven and the social unrest of which this is also a consequence . ”

The applicant filed an appeal in cassation with ORG ( PERSON ) . Relying on LAW , he complained , inter alia , that it did not appear from the judgment of ORG whether or not it had decided unanimously to increase his sentence . He submitted that , pursuant to LAW ) , such an increase could only be decided unanimously by ORG . In his opinion , a convicted person should be able to verify whether this rule had in fact been respected .

The Procurator - General ( Procureur - Generaal ) to ORG , in his advisory opinion to ORG , considered on this point that it can not be derived from the GPE case - law under the Convention that there is an obligation that judgments must reflect whether the rule set out in Article CARDINAL § CARDINAL of LAW has been respected . In his opinion , it concerns a rule of domestic procedural law and it is to the domestic legislator to decide whether and , if so , to what extent compliance with this rule must be apparent . Although the Procurator - General agreed with the applicant that it would be desirable that ORG , in a situation referred to in Article CARDINAL § CARDINAL , would make it clear in its judgment that an increase of sentence had been decided unanimously . However , he did not consider that a failure to do so should result in nullity of the judgment concerned . In his opinion , there was insufficient reason for departing from the established case - law . On this point , he found that - given the explicit reasons stated for the increase of sentence - there were no reasons to doubt whether ORG had unanimously decided to increase the applicant ’s sentence .

In its judgment of DATE and referring to LAW ( Wet op de Rechterlijke Organisatie ) , ORG rejected the applicant ’s appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development .

B. Relevant domestic law and practice

With the exception of LAW of LAW , which concerns decisions of ORG in relation of revision requests , there is no explicit statutory general rule in NORP law to the effect that judicial decisions must be taken by a majority . This principle is considered to be inherent in the NORP judicial system insofar as cases are not determined by a single judge .

A reference to judges’ deliberations is contained in LAW , pursuant to which provision the President of a chamber of the court must , during the judges’ deliberations , ask each of the judges individually to state his or her opinion . The President will be the last person to state his or her opinion . According to LAW , each of the sitting judges must participate in the decision making .

However , according to LAW , a unanimous decision of the judges concerned is required in CARDINAL specific situations , including the situation described in paragraph CARDINAL of this provision , which reads :

< Translation >

“ Where only the accused has filed an appeal , he can - as to what has been found proven against him in the first instance proceedings - only by a unanimous vote be given a higher sentence than the sentence given by the first instance court . ”

Article CARDINAL § CARDINAL of LAW stipulated initially that , where only the accused had filed an appeal , no higher sentence could be imposed . This protection did , however , not apply where the appeal court reached different findings than the first instance court in relation to what facts were considered proven ( bewezenverklaring ) . As it was felt incompatible with the public law character of criminal proceedings to restrict the appeal judge in the assessment of the seriousness of the offence of which an accused had been found guilty , this provision was amended on DATE to its current wording .

In CARDINAL cases , ORG rejected a complaint that the unanimity required under LAW did not appear from the wording of the judgment of ORG . ORG held that there is no statutory provision to the effect that an appeal judgment must explicitly mention that the requirement under LAW has been respected ( PERSON DATE , PERSON , nr . CARDINAL ; and HR DATE , GPE DATE , nr . CARDINAL ) .

Article PERSON of LAW provides :

< Translation >

“ If ORG considers that a complaint submitted can not lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development , it can limit itself to this finding when giving the reasons of its decision on that point . ”


CASE OF YORDANOVA AND TOSHEV v. BULGARIA

Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The first applicant , who was born in DATE , is a journalist by profession . At the relevant time she was employed at ORG , a leading national DATE newspaper , as a journalist and deputy editor in the newspaper ’s criminal department . In DATE or DATE she started working for TIME , another leading national DATE newspaper .

The second applicant was born in DATE . At the relevant time he was ORG ’s editorinchief .

On CARDINAL DATE the press service of ORG announced the arrest of PERSON , a former employee of ORG and of ORG . The press release specified that he had been detained and charged under LAW DATE with abusing his office with a view to obtaining pecuniary gain , which had led to serious negative consequences . In particular , it stated that he had misappropriated , concealed and used secret official documents . The investigation against him was ongoing . The same day this information was relayed to many newspapers by ORG .

Shortly after receiving the news , the first applicant went to the premises of FAC , where , along with journalists from other newspapers , she tried to obtain more information about the case . TIME , in line with the established practice at that time , a military prosecutor showed up before the journalists to make a statement about the case and answer questions . In addition to the information in the press release , the prosecutor said that a bag with secret documents had been found during a search of PERSON ’s home , that PERSON ’s wife had also been implicated in the affair , and that by using those documents , which contained information about the ORG metallurgical plant “ GPE , PERSON ’s wife had engaged in lucrative business ventures involving metals .

DATE several national newspapers ran stories about the case . The applicant also covered it in an article which appeared in the CARDINAL DATE issue of ORG . It bore the caption “ Private company ’s shady iron business discovered ” , the headline “ Former police officer arrested over bag with secret documents ” , and the applicant ’s byline , and read :

“ A former officer was arrested after the metropolitan police found in his home a bag with secret documents , it became clear DATE .

[ N.T. ] , former officer of ORG and investigator in ORG , was put behind bars for misappropriating , concealing and using secret documents , the [ Ministry ] announced DATE . He has been charged under LAW of LAW with abusing his office with a view to enriching himself , which has led to serious negative consequences . The law provides for up to DATE imprisonment if the accused is found guilty .

The documents that [ N.T. ] took relate to the operations and the business of the ‘ GPE metallurgical plant , the law enforcement people said . He gave the secret information to his wife , who had a private irontrading company . Her business thus thrived and she amassed a substantial capital , the initial investigation found .

The arrest took place DATE , ORG specified . The handcuffs clicked on [ N.T. ] ’s wrists DATE before he was set to become a practising lawyer . Originals of secret documents , obtained by him probably while an operative of the former CARDINALth district police department , were found during a search of his home .

The whole family of [ N.T. ] was implicated in the affair , say persons close to the investigation . The detainee ’s father used to be the head of the CARDINALrd district police department , but it is unclear whether he was aware of his son ’s deeds .

[ PERSON ] formerly worked as an investigator in CARDINAL of the district investigation services in GPE for DATE . On paper he quit of his own free will DATE . In reality , he was asked to go because he lacked the requisite qualities for the office he occupied , said people from ORG DATE .

The ‘ National NORP service of the [ GPE ORG ] and ORG are making additional inquiries to uncover [ N.T. ] ’s criminal activities , said the [ Ministry ] ’s press service DATE . The investigation has been entrusted to ORG . ”

On DATE ORG published another article entitled “ ORG wo n’t let former officer out of arrest ” . The article was authored by the first applicant but did not bear her byline . It read as follows :

“ The former ORG officer and investigator [ PERSON ] , who was detained at DATE on charges of misappropriating , concealing and using secret documents , will remain in detention , we learned DATE . His [ detention ] was upheld in a prosecutor ’s decision issued DATE , said to ORG the lieutenant colonel [ TIME ] of ORG .

[ N.T. ] was charged under LAW of LAW with abuse of office . A bag with secret documents relating to the business of the ‘ GPE metallurgical plant was found during a search of his home . [ PERSON ] obtained them while an operative of the former CARDINALth district police department . He gave the information to his wife , who had a private irontrading company . Before the investigation she said that she had carried out CARDINAL transaction . ”

In DATE the prosecuting authorities brought PERSON to trial CARDINAL times , but each time the Sofia Military Court referred the case back for rectification of procedural errors . Eventually , on DATE the court discontinued the proceedings under a newly introduced rule of criminal procedure allowing accused persons to seek discontinuance of the proceedings against them if the case had not proceeded to trial for DATE after the bringing of charges ( for more details on that rule , see PERSON and GPE v. GPE , nos . CARDINAL and DATE , § § CARDINAL , CARDINAL DATE ) .

On DATE N.T. brought a civil claim against the CARDINAL applicants and ORG ’s publisher , ORG . He alleged that the CARDINAL articles had defamed him by making injurious and untrue allegations which had not been based on a proper journalistic enquiry . They had affected gravely both him and his family . He sought compensation for nonpecuniary damage in the sum of CARDINAL old NORP levs ( ORG ) , plus interest , in respect of the first article , and BGL CARDINAL , plus interest , in respect of the second article . He also claimed costs .

The Sofia City Court held QUANTITY hearings , CARDINAL of which was adjourned because the CARDINAL applicants had not been properly summoned . In a judgment of DATE it dismissed PERSON ’s claim . It found that the first applicant , like many other journalists , had based her article on reliable official sources . This excluded any wrongful conduct on her part . The second applicant was therefore not liable either .

N.T. appealed . ORG held a hearing on DATE . On DATE it upheld the lower court ’s judgment . It found that at the time when the CARDINAL articles had been published there had not existed any statutory rules governing journalistic enquiries . Journalists , including the first applicant , had been bound to adhere to the de facto rules of the profession . The first applicant had not breached those rules in researching the CARDINAL articles . She had used many independent sources to elucidate the facts covered in both articles . She had based her allegations on information from ORG and ORG , and a statement made by a public prosecutor . Both she and the second applicant had thus fulfilled their professional duties , which excluded any negligence on their part . Strict liability in tort did not exist under NORP law .

N.T. appealed on points of law . ORG heard the appeal at a hearing held on DATE . On DATE it quashed ORG judgment and remitted the case . It found that that court , whose task had not simply been to review the firstinstance court ’s judgment but to decide the case de novo , had not gathered all available evidence – in particular evidence relating to the identity of the public prosecutor cited in the first article and any evidence concerning the truthfulness of the second article – and had not properly analysed it . Its findings that the allegations in the articles were true did not correspond to the material in the case . The cassation court went on to say that in order to determine whether or not the applicants were liable in tort the court of appeal should have ascertained the truth or the falsity of the assertions made in the CARDINAL articles , because the right to freedom of expression could not be used to infringe the reputation of others .

NORP On remittal , ORG held CARDINAL hearings . At the second of those , which took place on DATE , the court decided to stay the proceedings pending the outcome of the criminal proceedings against PERSON of the parties appealed against that decision . After criminal proceedings against PERSON came to an end in DATE ( see paragraph CARDINAL above ) , the court decided to resume the examination of the case , and held a hearing on DATE .

In a judgment of DATE the ORG allowed PERSON ’s claim . It ordered the CARDINAL applicants and ORG to pay him CARDINAL new NORP levs ( ORG ) , plus interest , in nonpecuniary damages in respect of the first article . The court also ordered the second applicant and ORG to pay PERSON CARDINAL , plus interest , in nonpecuniary damages in respect of the second article . Lastly , the court ordered the CARDINAL applicants and ORG to pay PERSON in respect of costs . It specified that they were jointly liable to pay those amounts .

The court held that in preparing the articles the first applicant had acted tortiously because she had not followed the customary rules governing journalistic enquiries . Those rules required that any information , even that coming from official sources , be checked against CARDINAL independent sources . The first applicant had not done that with regard to the information received from a public prosecutor whose identity she had been unable to establish . The resulting articles had contained defamatory and injurious statements about PERSON and his family which went beyond the information in the press release issued by the authorities : that the “ business of [ the applicant ’s wife had ] thrived and she [ had ] amassed a substantial capital ” , that the “ whole family [ had been ] implicated in the affair ” , and that the authorities had found “ a bag with secret documents relating to the business of the ‘ GPE metallurgical plant ” . By writing and publishing unverified defamatory allegations about PERSON the applicants had acted in breach of the general duty under LAW DATE ( see paragraph CARDINAL below ) not to infringe the rights of others . They could have anticipated the damaging result of their actions and could have averted it by taking additional steps to verify the accuracy of the statements in the articles . They had not done so , and had therefore acted negligently . The second applicant had been under a duty to do so by virtue of his position as the newspaper ’s editorinchief , especially with regard to an article that did not bear a byline . As for the first applicant , she had made untrue and uncorroborated injurious remarks and allegations about PERSON ’s personal and professional life , without taking into account the negative consequences that could flow from them . ORG was vicariously liable for the applicants’ actions .

The court determined the quantum of the award in equity , as required under LAW of LAW DATE ( see paragraph CARDINAL below ) . It took into account ORG ’s circulation , the number of potential readers and the degree of moral suffering sustained by PERSON

The applicants appealed on points of law , arguing , among other things , that the court of appeal ’s judgment was in breach of LAW . On DATE a threemember panel of ORG refused to hear their appeal . It observed that PERSON had brought CARDINAL claims of BGN CARDINAL each . Those claims had been triable at first instance not by GPE , but by GPE . By accepting to hear the case , GPE , which had the rank of a regional court , had in effect exercised its powers under LAW of LAW DATE to take up and examine at first instance a case falling within the jurisdiction of CARDINAL of the district courts in its region ( see paragraph CARDINAL below ) . That had in turn led to an appellate judgment by ORG . Had the procedure ran its normal course , the case would have been examined at first instance by GPE and on appeal by ORG . The case thus fell within the ambit of Article CARDINALa § CARDINAL ( a ) of the LAW ( see paragraph CARDINAL below ) , with the result that no appeal lay against ORG judgment .

On an appeal by the applicants , in a final decision of CARDINAL DATE a fivemember panel of ORG upheld the threemember panel ’s decision . It fully agreed with its reasoning and went on to say that the examination of the case at second instance by ORG due to the irregular manner in which the proceedings had unfolded in terms of which court had jurisdiction could not render a judgment concerning claims of MONEY amenable to appeal on points of law . The threshold for lodging such an appeal was primarily a function of the amount in dispute . It could not be circumvented through the application of LAW of the abovementioned LAW and the resulting examination of the case at first instance by ORG .

The relevant provisions of the DATE LAW read as follows :

“ The private life of citizens shall be inviolable . All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour , dignity and reputation . ”

“ CARDINAL . Everyone is entitled to express an opinion or to publicise it through words , whether written or oral , sounds or images , or in any other way .

NORP That right shall not be exercised to the detriment of the rights and reputation of others , or for incitement to forcible change of the constitutionally established order , perpetration of a crime or enmity or violence against anyone . ”

“ The press and the other mass media shall be free and not subject to censorship . ”

“ CARDINAL . Everyone has the right to seek , receive and impart information . The exercise of that right may not be directed against the rights and the good name of other citizens or against national security , public order , public health or morals .

NORP Citizens shall have the right to information from ORG bodies or agencies on any matter of legitimate interest to them , unless the information is a ORG secret or a secret protected by law or it affects the rights of others . ”

“ Rights shall not be abused , nor shall they be exercised to the detriment of the rights or the legitimate interests of others . ”

NORP The general rules of the law of tort are set out in sections CARDINAL of ORG DATE ( “ the DATE LAW ) . Section CARDINAL(CARDINAL ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . Under section ORG ) , fault is presumed until proved otherwise . Section CARDINAL provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . Section CARDINAL provides that the amount of compensation in respect of nonpecuniary damage is to be determined by the court in equity . If a tort has been committed by several persons , they are jointly liable for the resulting damage ( section CARDINAL ) .

Article CARDINAL § CARDINAL ( b ) of ORG Procedure DATE ( superseded on DATE by LAW DATE ) , as in force between CARDINAL DATE and DATE , provided that money claims of up to ORG CARDINAL were triable by the district courts and those exceeding ORG CARDINAL by the regional courts . Under LAW , a regional court could take up and examine at first instance a case falling within the jurisdiction of CARDINAL of the district courts in its region .

Article CARDINALa § CARDINAL ( a ) of DATE , as in force DATE , provided that regional court judgments concerning money claims of up to BGN CARDINAL were not subject to appeal on points of law . An amendment which came into force in DATE increased that threshold to BGN CARDINAL,CARDINAL .


The applicant is a NORP national , born in DATE . He resides in GPE , GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .

A.

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

At the material time the applicant was employed as a baker by ORG ( fællesforeningen af PERSON ) . He was also a member of the trade union ORG ( Nærings- og GPE ) and his employment was governed by a collective labour agreement between the ORG and the ORG .

On DATE the applicant left his place of work in circumstances which remain in dispute . The following day he received a letter from his employer by which his employment was terminated . The applicant protested against the dismissal and contacted his trade union . Following a discussion with the applicant the ORG sent a letter to the ORG on CARDINAL DATE protesting against the applicant ’s dismissal .

Subsequently the ORG discussed the settlement with the applicant who , following consultations with his lawyer , could not approve the text but requested certain additional guarantees as to employment , wages and seniority .

On DATE another meeting was held between the representatives of the ORG and the ORG . The applicant was aware of the date of this meeting but did not participate this time either . According to TIME of this meeting the above settlement was upheld with CARDINAL additional guarantees in respect of the applicant ’s salary and seniority . The settlement was approved and signed by the representatives of the ORG and the ORG on DATE .

On DATE ORG Civilretten i Glostrup ) received a writ by which the applicant instituted proceedings against the ORG claiming CARDINAL ORG representing his salary from DATE until DATE . It appears that at this moment in time the applicant still considered himself employed by the ORG . However , subsequently he refused the ORG ’s offer of reemployment in accordance with the above settlement since he had found other employment .

In the proceedings before ORG the ORG maintained , in particular , that the applicant could not submit further claims as he was bound by the settlement reached between the ORG and the ORG . The applicant maintained , however , that this argument would , if upheld by the court , amount to a violation of his rights as secured to him by LAW .

ORG held an oral hearing in the case where the applicant , assisted by counsel , was heard . The court furthermore heard CARDINAL witnesses . On the basis of an evaluation of the available evidence ORG pronounced judgment in favour of the ORG on CARDINAL DATE . The judgment reads , in its relevant part as follows :

( Translation )

“ The settlement between the ORG and the ORG is final and it has been approved by [ the representative of the ORG ] on behalf of [ the applicant ] . It is noted in this connection that the ORG by virtue of the [ collective labour ] agreements has a standing and irrevocable authorisation to reach such settlements on behalf of its members .

On the basis of the evidence submitted the terms of the settlement must be considered fulfilled .

Accordingly , the court finds in favour of the defendant .

It is noted in this respect that [ the applicant ] will not be precluded from claiming damages from the ORG during a possible lawsuit , if [ he ] finds that during the settlement negotiations the ORG did not take proper care of [ his ] interests . Thus , the settlement ought not to be set aside with reference to LAW ] . ... ”

The applicant appealed against the judgment to ORG of Eastern GPE ( PERSON landsret ) which also held a hearing during which the applicant and the witnesses were heard again . On DATE ORG upheld ORG judgment . The judgment reads , in its relevant parts , as follows :

( Translation )

CARDINAL judges ... opine as follows :

We find it established that [ the applicant ] himself requested his union ORG to secure that the dispute concerning his dismissal should be solved by negotiations between the ORG and the ORG . It must have been clear to [ the applicant ] that a solution in the case would hereafter be found in accordance with the rules governing labour disputes . Furthermore , we find it established that between the parties in question agreement was reached on the disputed settlement .

We find hereafter that , also without [ the applicant ’s ] acceptance of the settlement , the ORG has had authorisation to reach it with binding effect for [ the applicant ] . With this reasoning we vote for [ upholding the judgment ] .

Judge ... opines as follows :

First , I do not find that the ORG by virtue of the collective labour agreements has a standing and irrevocable authorisation to enter into an agreement as the CARDINAL in question which does not concern a labour market dispute .

Second , I find it established that the reservation in the draft settlement referred to the ORG 's approval as well as that of [ the applicant ] . ... I do not find it established that , when he received confirmation of [ the ORG 's ] approval of the settlement , [ the representative of the ORG ] believed or had any reason to believe that the agreement had not been approved by [ the applicant ] ... . Thus , the agreement is binding on [ the applicant ] . With this reasoning I vote as the majority . ... ”

On DATE ORG ( Procesbevillingsnævnet ) rejected the applicant 's request for leave to appeal to ORG ( Højesteret ) .

B. Relevant domestic law and practice

The NORP labour market is to a high extent governed by collective agreements concluded between the labour market parties . About CARDINAL per cent of all employees are organised and nearly CARDINAL per cent of all employees are covered by collective agreements .

As a consequence of the high rate of organisation , pay and working conditions in GPE are mainly regulated by collective agreements between labour market partners .

Pay and working conditions may further be agreed individually between the individual employee and the employer .

There is an interaction among the CARDINAL elements - collective agreements , individual agreements and legislation - when it comes to identifying the rights of an employee in relation to the employer .

A collective agreement has effect within the occupation field covered by the agreement . An employer who has concluded or adhered to a collective agreement has a duty in relation to the trade union to pay the employees the wage and salary fixed in the collective agreement whether the employee is or is not a member of the organisation concerned . However , a non - organised employee may not invoke rights under the collective agreement , but only under his or her individual agreement . On the other hand employees have no independent and direct rights which can be invoked under the collective agreement . Through the membership of a trade union , the union is considered empowered to act on behalf of its members .

As regards cases settled within the machinery set up for settlement of labour disputes , i.e. by arbitration or by ORG , the right to take legal action is vested in the organisation which is a party to the agreement . It is also the organisation which decides about the subject - matter of the case . Before the ordinary courts of law it is the individual employee who has the right to sue .

As regards rights based on legislation the rule is that such rights may always be enforced by the ordinary courts of law . The courts will hear the case whether or not the employee is a member of a trade union or other organisation . In such cases it is always the individual employee who is entitled to bring the action and who may dispose of the subjectmatter of the case .

If the rights of the employee are based on a collective agreement , the legal situation may be summarised as follows :

If the employee is not organised and thus not attached to any organisation , but his or her rights are , nevertheless , based on a collective agreement , the practice is that the ordinary courts of law will hear the case . Reference is made to ORG and U CARDINAL/CARDINALH.

If the employee is organised , the starting point is that the matter should be settled by the special machinery for settlement of labour disputes , i.e. by arbitration or by ORG . In such cases the general rule is that the organisations have the full disposal of the subject - matter and the right to take legal action . An exception from this general rule follows from LAW , subsection CARDINAL , of LAW which reads as follows :

( Translation )

“ An employee shall , however , be entitled to bring an action for award of outstanding wages in the ordinary courts of law unless the organisation , in proceedings before ORG , has waived this right on behalf of the employee or when the failure to pay wages is related to a labour market dispute . ”

The ordinary courts of law have , inter alia on the basis of this provision , heard cases involving collective agreements , even if the organisation has failed to proceed with the case within the framework of the machinery set up for the settlement of labour disputes , cf . UCARDINAL/CARDINALØ , PERSON and GPE in which express reference was made to the right of access to court under LAW .

Any decision ( judgment ) of ORG is final . ORG is the first and only level of jurisdiction , since no appeal lies against its decisions . Consequently , the judgments of ORG are directly enforceable in accordance with the rules of ORG relating to enforcement of judicial awards , cf . LAW .