The applicant is a NORP national , born in DATE and living in GPE . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

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

The applicant applied for disability benefits in DATE . Additional information was requested from her and she was asked to fill out the appropriate form .

Her formal application for a disability allowance ( handikappersättning ) under LAW , LAW DATE LAW ( lagen om allmän försäkring ; hereinafter “ the DATE Act ” ) was lodged on DATE . CARDINAL different medical opinions and also medical records from a hospital were enclosed . The applicant invoked back problems and problems relating to incontinence . She stated , inter alia , that she was unable to use public transportation .

ORG ( försäkringskassan ) of GPE requested the opinion of CARDINAL other medical doctors who were attached to the ORG in order to assist in medical matters ( förtroendeläkare ; ” insurance doctor ” ) . After having studied the documents in the case , the insurance doctors came to different conclusions . CARDINAL doctor , ORG , considered that the applicant was unable to use public transportation and the other doctor found that the available documents failed to substantiate this contention .

On DATE the ORG rejected the application , finding that the applicant ’s needs or costs did not attain the level required under the above Act .

Doctor PERSON ’s statement had not been included among the documents which formed the basis of the ORG ’s decision , nor had the applicant been informed of the statement . After the applicant had made a complaint in these respects , ORG ( PERSON ) levelled serious criticism against the ORG ’s handling of the case .

The applicant appealed against the ORG ’s decision to ORG ( länsrätten ) of GPE . Before this court as well as during the following court proceedings she was represented by legal counsel . She requested the court to hold an oral hearing and to obtain the opinion of a medical expert . She gave no explicit motive for her request for an oral hearing .

On DATE the court informed the applicant as follows :

( Translation )

“ Having regard to the available material , the [ court ] finds no need to hold an oral hearing .

In your submission of DATE you have also requested the court to obtain a certificate from a medical doctor with special neurological knowledge regarding the need to use a car for transport to and from work and the need for help with heavy domestic duties . Doctor [ I.O .- L. ] has in a certificate of CARDINAL DATE made an assessment of [ the applicant ’s ] need of a car for transports to and from work . [ The court ] therefore considers further material unnecessary as regards that issue . [ The court ] invites you to submit whether you maintain your request .

[ The court ] hereby gives you the opportunity to make in writing , no later than CARDINAL DATE , your final submissions in the case .

If you maintain your request for an oral hearing in the case , you are required to submit to [ the court ] , within the same time , a statement of evidence indicating the evidence you want to invoke and what you want to prove with each separate piece of evidence . [ ... ]

If no response is submitted to [ the court ] , the case will be determined on the basis of the available material . ”

No submission of evidence was made by the applicant . Instead she responded by informing the court that she regarded the court ’s notification as a decision of , inter alia , her request for an oral hearing .

By judgment of DATE , ORG , taking into account the medical certificates and the other evidence in the case , rejected the applicant ’s appeal with extensive reasons . The court , referring to most of the medical certificates available in the case , found no evidence from the documentation supporting that the applicant in her everyday life needed assistance from another person to such an extent as to qualify for benefits . Neither did the court find that the applicant needed continuing assistance in order to be gainfully employed . Lastly the court found nothing to substantiate that the applicant due to a functional impairment was prevented from using public transportation to and from work , for which reason she was not entitled to benefits in order to cover any extra expenses .

The applicant then appealed to ORG ( kammarrätten ) in GPE , submitting yet another medical certificate . She again requested that the opinion of a medical expert be obtained . She did not request the appellate court to hold an oral hearing , and the court did not hold a hearing on its own motion . By decision of DATE the court rejected her request for a further medical opinion and instructed her to submit concluding arguments in writing .

On DATE ORG , after having rejected the applicant ’s renewed request for a further medical opinion , upheld ORG judgment with substantial reasons . The court referred to the new medical certificate and found that the functional impairments described therein did not prevent the applicant from using public transportation .

The applicant made a further appeal to ORG ( Försäkringsöverdomstolen ) . She requested that an oral hearing be held and that the opinion of a medical expert be obtained . She also complained about the lack of oral hearings before the lower courts and their refusal to obtain a further medical opinion .

By letters of DATE and DATE , ORG informed the applicant that it did not intend to request a further medical opinion or to hold an oral hearing . The applicant was given the opportunity to submit further observations on the question of leave to appeal .

On DATE ORG refused the applicant leave to appeal against the judgment of ORG .

B. Relevant domestic law

According to LAW , LAW , a person who is ill or handicapped may receive disability benefits provided that he or she is insured and registered with ORG and has reached the age of DATE . A further requirement is that the insured person before turning DATE has become functionally impaired for a considerable time and to such a degree that he or she is in need of more time - consuming assistance from another person on a DATE basis , is in need of continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses . All NORP nationals and other residents in GPE are automatically insured in accordance with LAW .

It is the total need of support and assistance that determines whether an insured person is entitled to disability benefits and , should that be the case , the amount of compensation . When making this assessment , it is necessary to look into the insured person ’s whole situation and to add together the need for different types of assistance and extra expenses . A medical report is required when it comes to the assessment of the functional impairment itself . As far as extra expenses are concerned , the extent to which other measures from the social services compensate also have to be taken into account , for instance assistance benefit ( when the handicapped person has his or her own personal assistant ) . When it comes to costs for transportation to and from work by car , it also has to be considered whether it is possible to use public transportation service for the disabled . Furthermore , at the time of relevance for the present case , protection aids against incontinence were provided free of charge .

Disability benefits are not subject to taxation . They are granted on a DATE basis with CARDINAL , CARDINAL or DATE per cent of the yearly basic amount for national security purposes ( “ the basic amount ” ) , depending on the extent to which the insured person is in need of assistance and the amount of extra expenses caused by the handicap . The basic amount was MONEY ( SEK ) during DATE when the applicant applied for disability benefits . In DATE , when her application was rejected by ORG , the amount was SEK CARDINAL,CARDINAL .

A decision by ORG in accordance with LAW may be appealed against to ORG and from there on to ORG and , at the relevant time , to ORG . The latter court was the highest social insurance court prior to DATE . ORG was abolished with effect from this date and its tasks were taken over by ORG ( Regeringsrätten ) .

ORG could not examine a case on its merits without first granting leave to appeal . According to the provisions in force after DATE , the ORG could grant leave to appeal in CARDINAL different situations : if it was of importance for guidance in application of the law that the ORG examine the case ; and if there were extraordinary reasons for the ORG to examine the case , e.g. on account of the fact that a ground existed for the re - opening of the case or that the outcome of the case in the inferior court was clearly due to a gross oversight or a gross mistake .

The procedure in the administrative courts is governed by the provisions of the DATE LAW ( förvaltningsprocesslagen ; hereinafter ” the DATE LAW ) . The same LAW also regulated the proceedings before ORG . According to LAW , the proceedings consist of a written procedure . However , the proceedings may include an oral hearing with regard to a certain issue , when there is reason to assume that such a measure would be to the advantage of the proceedings or that a rapid determination of the case is promoted . According to the third paragraph of LAW , an oral hearing shall take place before a ORG and an ORG on the request of an individual party to the case , if such a hearing is not unnecessary and there are no particular reasons against it . Thus , the opportunity for an individual party to the case to obtain an oral hearing on request under those circumstances was not available in the proceedings before ORG .

According to the travaux préparatoires to LAW PERSON , p. CARDINAL ) the oral element can be a valuable complement to the written proceedings and an oral hearing can be of advantage to the examination of a case in CARDINAL respects , mainly . First of all , in order to hear a witness , an expert witness or a party , or when it is difficult for a party to present the case in writing . Secondly , in order to sort out the different positions in the case and to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . When the LAW was drafted , it was also stressed that oral elements in the proceedings are not to be seen as an alternative to the written procedure but merely as a complement to it .

The reference in LAW to the promotion of a rapid determination of the case was added in DATE . The purpose was to make it clearer that an oral hearing could , and should , be held in order to further a more rapid and effective examination of the case . The amendment aimed mainly at such cases concerning taxation that are connected with criminal proceedings before the general courts ( cf . Government Bill CARDINAL/CARDINAL:CARDINAL ) .

In connection with the enactment of the DATE Act it was stated , in respect of the third paragraph of LAW , that a party ’s request for an oral hearing should be given great consideration . However , the party would not be allowed to have a decisive influence in the matter . The question whether or not an oral hearing is unnecessary should primarily be determined against the background of the available information in the case . Other circumstances can , however , also be of relevance , for instance the importance for the party of the matter at stake or the fact that an oral hearing would enhance the party ’s understanding of a future decision in the case . A particular reason against the holding of an oral hearing can be that the case is of a trivial character or that the costs for an oral hearing would not be proportionate to the values involved in the matter at stake ( cf . Government PERSON , p. CARDINAL ) .


CASE OF JURISIC AND COLLEGIUM MEHRERAU v. AUSTRIA

Violations of Art. 6-1;Not necessary to examine further complaint under Art. 6-1;Costs and expenses partial award - Convention and domestic proceedings

The second applicant wished to employ the first applicant as a farm hand .

On DATE the applicants lodged a request with ORG Arbeitsmarktservice ) for the grant of an employment permit to the second applicant . They submitted that the first applicant , a national of GPE , and his wife had been resident in GPE since DATE . Both he and his wife had been granted residence permits ( GPE ) that were valid until DATE . The applicants claimed that the first applicant had a right to take up employment in GPE . They referred in that connection to FAC and ORG between ORG and GPE and submitted that those treaties had to be applied by analogy to their case .

On DATE ORG refused the request in accordance with s. CARDINAL(CARDINAL ) of ORG ( GPE ) . It found that the maximum quota fixed for the employment of foreign workers in PERSON had been exceeded and none of the conditions for making an exception under s. CARDINAL ( CARDINAL ) of the LAW were met .

On DATE the applicants appealed . They reiterated the arguments they had submitted before ORG .

On DATE ORG rejected the first applicant ’s appeal as inadmissible . It noted that only the second applicant as the proposed employer , not the first applicant , had the right to lodge a request for the grant of an employment permit . According to s. CARDINAL of ORG an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer . In the present case , however , neither of these conditions applied . In particular , ORG had based its decision exclusively on the situation of the labour market , and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded . For that reason , the first applicant was not a party to the proceedings .

ORG further noted that only certain refugees DATE namely , those who had indefinite leave to remain , were married to an NORP national or had a child of NORP nationality – were exempted from the regulations of ORG . The first applicant did not fall into any of those categories . ORG between ORG and GPE was not applicable in the present case as the first applicant was not a NORP national .

ORG went on to dismiss the second applicant ’s appeal . It observed that ORG had proposed a replacement for the first applicant within the meaning of s. CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG , but he had not been taken on . In a telephone conversation ORG had been informed by a representative of the second applicant that the proposed replacement had not been employed because the relevant post had already been filled . In further submissions the second applicant stated that the replacement had not complied with the requirements of the post .

ORG concluded that the second applicant had no further interest in employing the first applicant . It observed in particular that the second applicant had not given sufficient reasons as to why the proposed replacement could not work as a farm hand , a post which did not require any special qualification . It concluded that the second applicant was not interested in employing a replacement and dismissed the request for an employment permit under s. CARDINAL ) of LAW . It further noted that , in any event , the conditions for granting an employment permit had not been satisfied as the maximum quota fixed for the employment of foreign workers in PERSON had been exceeded and none of the conditions for an exception under s. CARDINAL ) of the above LAW applied .

On DATE the applicants filed a complaint with ORG and requested an oral hearing . They submitted that ORG had not carried out sufficient investigations before reaching its findings . In particular , it had not heard evidence from the second applicant . They further denied that the second applicant had informed ORG that the relevant post had been filled , and contested the maximum quota .

Referring to LAW , ORG between ORG and GPE , LAW , LAW and LAW , the applicants submitted that the first applicant had a right to take up employment in GPE and had standing to join the proceedings . They also relied on DATE CARDINAL .

They submitted that the first applicant had come to GPE as a NORP refugee , had resided there with his wife since DATE and was in possession of a residence permit that was valid until DATE .

On DATE ORG rejected the first applicant ’s complaint and dismissed the second applicant ’s complaint . It found that none of the first applicant ’s rights had been violated , as the refusal to grant the employment permit was not based on reasons related to the first applicant ’s personal circumstances under s. CARDINAL of ORG .

As to the second applicant ’s complaint , it found that ORG decision was coherent and conclusive . ORG had based its decision essentially on the statements of the second applicant . There had , therefore , been no further need to hear representations from the second applicant . ORG concluded that ORG had rightly refused to issue an employment permit DATE ( CARDINAL ) of ORG . It also decided that it was unnecessary to examine the second applicant ’s further submissions questioning whether the maximum quota had been attained .

ORG further noted that the second applicant had never alleged that the first applicant was a refugee within the meaning of LAW . As regards the reference to LAW and LAW , it noted that those treaties were not directly applicable and so could not create any subjective rights . At most , they might be of assistance in interpreting the domestic legislation . However , having regard to the clear wording of s. CARDINAL of ORG and the fact that there was no prospect of that provision being successfully challenged in ORG ) , as that court had already ruled that proceedings concerning a request for an employment permit under LAW did not concern a “ civil right or obligation ” within the meaning of LAW , the Administrative Court said that even the above mentioned interpretation would not lead to recognition of the first applicant ’s legal standing in the proceedings concerning the grant of an employment permit .

It went on to note that ORG between ORG and GPE was not applicable as the first applicant was not NORP .

In accordance with s. CARDINAL ) of LAW ( PERSON ) , ORG dismissed the ORG request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case . Referring to its case - law it further found that the proceedings did not concern a “ civil right ” within the meaning of LAW . The decision was served on the applicants’ counsel on DATE .

The second applicant was subsequently granted a permit to employ the first applicant from DATE until DATE and from DATE until DATE .

In DATE the applicant ’s wife became an NORP citizen . Consequently , ORG is no longer applicable to the first applicant .

The Employment of Aliens Act ( ORG ) regulates an alien ’s access to the NORP labour market . The relevant parts of the Act at the material time were as follows :

Section CARDINAL stated that the LAW was not applicable inter alia to :

- certain refugees who had indefinite leave to remain in GPE , who were married to an NORP national or who had a child of NORP nationality ( s. CARDINAL(CARDINAL)(a ) ) ;

- aliens married to an NORP national if they were in possession of a residence document ( ORG ) within the meaning of LAW ( s. CARDINAL ) ) ; under LAW ( PERSON ) there are CARDINAL types of residence document : residence permits ( GPE ) and settlement permits ( Niederlassungsbewilligung ) . The relevant provisions of LAW make it easier for aliens married to an NORP national to obtain a settlement permit .

Under s. CARDINAL(CARDINAL ) of ORG the competent ORG had to certify that the alien concerned fulfilled the requirements of s. MONEY ) before he could take up employment .

S. CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW laid down the principle that a proposed employer required an employment permit ( PERSON ) if he wished to take on a foreign employee . Without such a permit the contract of employment between the employer and the foreign employee was null and void . However , while he was actually employed an alien hired without an employment permit had the same rights against his employer as he would have had if the contract of employment had been valid . If the lack of an employment permit was due to the employer ’s negligence , the foreign employee further enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship ( s. CARDINAL ) .

S. CARDINAL of the Act provided that a request could be made for an “ exemption certificate ” ( PERSON ) in respect of aliens who had been continuously legally employed within the meaning of the LAW in GPE for DATE during DATE , and for aliens who had been married to an NORP national for DATE and had their residence ( ORG ) in GPE . The exemption certificate subsequently relieved the alien or potential employer from the obligation to apply for an employment permit . S. CARDINAL provided that the alien concerned could apply for an exemption certificate to the competent ORG .

If an alien had been continuously legally employed within the meaning of the LAW for DATE in DATE , he was entitled to request a personal work permit ( Arbeitserlaubnis ) which was normally valid for CARDINAL region only and could be restricted to certain kinds of employment ( s. CARDINAL ( a ) ) .

S. CARDINAL provided that in order to obtain an employment permit the employer had to submit details of the proposed employment of the individual employee to ORG concerned . The application could be made by the alien only if there was no employer .

According to s. CARDINAL ) an employment permit could only be granted if the situation and evolution of the labour market so allowed and important public or economic interests would not be harmed . Furthermore , specific conditions listed in s. CARDINAL ) had to be fulfilled .

S. CARDINAL(b)(CARDINAL ) laid down that the situation and evolution of the labour market only allowed an employment permit to be granted in respect of a proposed foreign employee if there were no prior - ranking foreign job applicants . Prior - ranking foreign job applicants included aliens who were in possession of an exemption certificate within the meaning of s. CARDINAL of the LAW or who were in receipt of unemployment insurance payments ( PERSON ) ( s. CARDINAL(b)(CARDINAL ) and ( CARDINAL ) ) .

S. CARDINAL(c ) provided that an employment permit had to be issued ex officio in respect of NORP nationals falling within the relevant provisions of ORG between ORG and GPE .

Under s. CARDINAL ) the Minister for ORG could fix maximum quotas for the employment of aliens in a specific region ( PERSON ) for DATE . PERSON ) provided that once the maximum quota had been exhausted , no further employment permits could be issued unless there were certain exceptional circumstances .

S. DATE provided that , in principle , the foreign job applicant was not a party to the proceedings concerning the issue of the employment permit . Exceptions were made where the personal circumstances of the alien were relevant to the decision or where there was no employer .

According to the settled case - law of ORG and ORG a refusal to issue an employment permit under PERSON CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG could not violate a proposed foreign employee ’s rights because he had no legal entitlement to the grant under that LAW ( see PERSON , PERSON DATE ; and ORG decision of DATE , CARDINAL/CARDINAL/CARDINAL ) .

ORG and ORG have further held that the refusal of an employment permit to a proposed employer is not a decision concerning the employer ’s “ civil rights ” ( see , for example , PERSON DATE and ORG decision of DATE , CARDINAL/CARDINAL/CARDINAL with further references ) .

According to s. CARDINAL ) of LAW , ORG must hold a hearing after its preliminary investigation of the case if a complainant so requests within the time - limit . PERSON ) and ( CARDINAL ) provides , however , that , notwithstanding such a request , ORG may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing is unlikely to help clarify the case and that the lack of a hearing will not violate LAW .


P1-1 applicable;Violation of P1-1;Just satisfaction partially reserved

The applicant was born in DATE and lives in GPE .

The applicant claimed to be the owner of CARDINAL tenements in GPE . Before the ORG he produced a statement made on DATE by a notary public , which reads as follows :

“ I the undersigned Dr. PERSON , ORG , do hereby certify that in virtue of a secret will made on DATE , by PERSON , and published by me on DATE , Major PERSON [ the applicant ] was nominated and appointed by his father , the late Mr PERSON as his sole universal heir and Testamentary Executor of his estate to whom he bequeathed CARDINAL undivided parts of tenements situated at numbers CARDINAL NORP Street , GPE , - of which QUANTITY had been inherited by his wife from her late brother Sir PERSON and the further DATE purchased by him from her brother 's family in DATE all of which were owned in common with the remaining QUANTITY and equal parts owned by CARDINAL further members of the PERSON family residing somewhere in LOC , the administration of which had been passed on to him by their eldest brother Captain PERSON who had been their family administrator until he emigrated from GPE on DATE . ”

In DATE the CARDINAL tenements were requisitioned for the purpose of providing housing for homeless people . The requisition order was served on the applicant 's ancestor , Mr PERSON . Further correspondence about the LOC was addressed to Mr PERSON , as trustee of the estate of the late Sir PERSON .

On DATE a judicial letter was sent to Mr PERSON “ as owner ” of the LOC , demanding recognition of the tenants . He replied that he was only the trustee of the estate and could not therefore recognise the tenants . This position was confirmed in a court application of DATE .

The top floor of CARDINAL of the tenements was allocated to PERSON and his family , while family PERSON had been allotted the ground floor . The requisition of this tenement , composed of CARDINAL floors , was contested on the ground that the ground floor provided the only access to a field , which belonged to the same owner and which had not been requisitioned . After these tenants had been recognised , on DATE the LOC were derequisitioned .

The LOC were again requisitioned on DATE from Mr PERSON . They were derequisitioned on CARDINAL DATE .

On DATE a fresh requisition order concerning the same tenement was issued to Mr. PERSON . The authorities instructed that family P. be allotted both floors . The housekeeper , who was in correspondence about the matter with the applicant ( Mr PERSON ) , handed over all the keys of the tenement .

On DATE the applicant wrote to ORG asking for reconsideration of the order of DATE . He reiterated the argument concerning access to the field . The ORG acknowledged receipt of this letter but did not reply to it . On an unspecified date in DATE , an amended requisition order , including the field adjacent to the applicant 's tenement , was issued .

NORP The applicant alleged that he had sought the assistance of ORG and of the Attorney General in order to restore the situation and that on further meetings with the authorities he had been made to believe that the situation would be remedied . However , this had not been the case and he did not obtain any satisfaction .

On DATE the applicant instituted proceedings before ORG ( FAC ) against ORG . He alleged that the requisition order of DATE had been issued as a result of an abuse of power and was therefore null and void . He also claimed an infringement of his right to the enjoyment of his property as guaranteed by LAW No . CARDINAL by reason that the requisition order had not been made in accordance with the public interest and that he had not received adequate and appropriate compensation .

In a judgment of DATE , ORG dismissed the applicant 's claim . It declared that the tenement should be considered ' quid unum ' and therefore as a single entity , including the field . It also found that the applicant 's submission that the requisition order had been made in excess of power was unsubstantiated .

ORG held that the existence of a public interest should be assessed in the light of the particular features of each individual case . In the applicant 's case , the requisition was aimed at ensuring a fair distribution of homes . The benefit enjoyed by the son of PERSON and his family , who were still using the tenement as a place of habitation , was far superior to that of the applicant . In fact , the latter made sporadic use of the garden or field , which , according to certain witnesses , was used as a rubbish dump .

ORG furthermore observed that the applicant had brought his complaints DATE after the issuing of the requisition order and that during this period he had apparently accepted the rent that he was being paid . This rent had been established by ORG and had the applicant wanted to review the amount of the rent he could have applied to ORG .

ORG found that it had no jurisdiction to deal with the alleged violation of LAW No . CARDINAL since the requisition order had been issued in DATE . According to LAW , the ORG could not be applied retroactively and thus only breaches which occurred after DATE fell within the jurisdiction of the domestic courts .

The applicant appealed to ORG .

He observed that had the tenement been a single entity , this should have been the case from the original requisition order made in DATE . However , the field only became accessory to the tenement according to the DATE requisition order . The applicant moreover claimed that the tenant was making use of the land to further his gardening hobby , which could not be considered an essential part of his accommodation needs . The applicant recalled that he had been deprived of his property for DATE and complained about the amount of rent ( CARDINAL NORP Liras ( ORG ) per DATE MONEY ( ORG ) ) , which he considered to be ridiculous in comparison with the market value of the property .

In a judgment of DATE , ORG rejected the applicant 's appeal .

It held that the applicant 's tenement should be considered CARDINAL whole property , especially since the only access to the field was through the ground floor . Furthermore , the applicant had never made any serious attempt to question this and had kept unreservedly receiving the rent due . In any case , if he had not been satisfied with the amount of the rent , the applicant should have applied to ORG , thus using the ordinary remedy available in such circumstances .

The Constitutional Court found that the applicant 's claim regarding a violation of his right to the enjoyment of property was inadmissible ratione temporis as the requisition order had been issued and executed before DATE . However , since the complaint concerning the absence of adequate compensation referred to a continuing situation , ORG went on to consider its merits .

It recalled that the applicant had always accepted rent from the tenants , which meant that there was a regular lease between the CARDINAL . ORG held that the Government enjoyed a wide margin of appreciation in assessing what was in the public interest and which measures were proportionate to the aims sought to be achieved . It quoted PERSON and PERSON book Theory and Practice of the European Convention stating that social and economic policy in the field of housing constituted an aim in the general interest .

Finally , the requisition and the amount of rent were in accordance with the GPE case - law . ORG referred , on these points , to the cases of ORG and Others v. PERSON ( judgment of CARDINAL DATE , Series A no . CARDINAL ) , GPE and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) , The Holy Monasteries v. GPE ( judgment of DATE , Series A no . TIME ) and PERSON and Others v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) .

According to section CARDINAL of the Housing Act requisition means :

“ to take possession of a building or require the building to be placed at the disposal of the requisitioning authority . ”

Until DATE the ORG Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest for providing living accommodation to certain persons or for ensuring a fair distribution of living accommodation . As in force at the time of the requisition of the applicant 's tenement , section CARDINAL(CARDINAL ) of LAW read as follows :

“ The Secretary , if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation , may requisition any building , and may give such directions as appears to him to be necessary or expedient in order that the requisition may be put into effect or complied with . ”

After DATE the authority to issue requisition orders was given to ORG .

A requisition order imposes on the owner of the requisitioned LOC a landlord - tenant relationship . According to section CARDINAL(CARDINAL ) of LAW , ORG may require the owner to recognise the person accommodated in his property as his tenant or sub - tenant .

The owner of the LOC may seek authorisation for non - compliance with this request in accordance with section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , which , in so far as relevant , provides :

“ ( CARDINAL ) Within DATE of service on him of a judicial letter under the last preceding sub - section , the requisitionee , by application to FAC in contestation of the Director , may pray for an authorisation of non - compliance with that request ...

( CARDINAL ) The court shall not grant the authorisation of non - compliance mentioned in DATE sub - section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request :

Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub - article . ”

According to LAW , the owner of the LOC has a right to compensation , which is calculated and payable pursuant to the criteria established in LAW , which , in so far as relevant , reads as follows :

“ ( CARDINAL ) Subject as hereinafter provided , the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums , that is to say-

( a ) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this LAW , under a letting granted immediately before the beginning of that period :

Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of LAW , the rent shall not exceed the fair rent as defined in LAW ;

( b ) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained ( except in so far as the damage has been made good during that period by the occupant of the requisitioned LOC or by a person acting on behalf of ORG ) , no account being taken of damage which , under the provisions of this LAW , is the responsibility of the requisitionee ;

( c ) a sum equal to the amount of expenses reasonably incurred , otherwise than on behalf of the Director , for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building . ”

According to LAW , “ fair rent ” means :

“ i ) in respect of an old house , the rent which might reasonably be expected in respect of an old house , regard being had to the average rents prevalent on DATE , as shown on the registers of ORG in respect of comparable dwelling houses in the same or in comparable localities :

Provided that where , after DATE , structural alterations or additions in a house , whether old or new , have been carried out which , in the opinion of ORG , have enhanced the rental value of the house and in respect of which or , as the case may be , of a part of which , no compensation has been paid or is payable under the provisions of the War Damage Ordinance CARDINAL , and no amount has been paid or is payable by way of a grant by ORG of GPE , the rent shall be increased by an amount which , in the opinion of ORG , corresponds to the enhancement of the rental value and which shall in no case exceed a return of DATE a year on the capital outlay on the alterations or additions ( excluding any interest on loans or in respect of idle capital ) or , as the case may be , on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance CARDINAL , and no amount has been paid or is payable by way of grant by ORG of GPE , in every case as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG ; and

ii ) in respect of a new house , a sum equivalent to a return of CARDINAL per centum a year on the freehold value of the site and of CARDINAL per centum on the capital outlay on construction ( excluding any sum which has been paid or is payable by way of a grant by the Government of GPE and any interest on loans or in respect of idle capital ) as proven by the landlord to the satisfaction of ORG or , in default , as assessed by ORG :

Provided that where a payment under LAW , is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part , for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed DATE fair rent of the former building as on CARDINALst March,CARDINAL , or CARDINAL per centum for DATE on that part of the capital outlay , whichever is the less ;

iii ) in respect of a scheme house , an DATE sum to be determined by agreement ... ”


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicant lives in GPE .

On DATE the applicant applied to ORG for authorisation for a political demonstration in front of ORG , in FAC , a vast open area traditionally used for political demonstrations . The declared objectives of the demonstration were , among others , commemoration of the revolution of DATE and of the tumultuous events in GPE in DATE as well as to call attention to the perceived absence of legal certainty in the country . The event was scheduled for DATE , CARDINAL DATE .

According to ORG ’s official and public activity log available on the Internet , the only event taking place on that date in ORG ’s building was a conference and DATE organised by ORG under the title “ Employment – Equality of Chances – Competitiveness ” . No parliamentary session was scheduled .

On DATE ORG proposed to the applicant that the planned demonstration be held in a secluded part of FAC , rather than its entirety . The applicant refused this suggestion .

On DATE ORG forbade the demonstration . It was of the view that the planned demonstration would ‘ gravely endanger’ the functioning of ORG , which was a legitimate ground for prohibiting it under section CARDINAL(CARDINAL ) of LAW . In particular , the speeches and music – belonging in the programme and DATE might disturb the MPs’ work . Moreover , the participants – whose number was estimated at CARDINAL persons – might physically impede the MPs’ driving in and out of ORG ’s car park , which , in the authority ’s view , amounted to restricting their freedom of movement and to inhibiting the functioning of the organ of the people ’s representation .

The applicant applied for judicial review . He submitted in particular that another demonstration with an agenda identical to his but scheduled for DATE , DATE , had not been forbidden on exactly the same location ; this fact showed , in his view , discrimination against him and his planned event . According to ORG ’s official and public activity log available on the Internet , on DATE parliamentary commissions were in session .

On DATE ORG dismissed his complaint , endorsing in essence ORG reasoning .


The applicant is a NORP national , born in DATE and living in GPE .

A.

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

On DATE the public prosecutor of GPE summoned the applicant to appear before the CARDINAL - member first instance criminal court ( trimeles plimmeliodikio ) of GPE on DATE to be tried for making a false criminal accusation and perjury .

The applicant 's trial took place in his absence on DATE . He was found guilty and given a commutable sentence of DATE . The applicant appealed on DATE and the enforcement of the first instance decision was suspended .

On DATE the CARDINAL - member ORG ( trimeles efetio ) of GPE decided to discontinue the proceedings against the applicant because the action had become time - barred .

On DATE the applicant applied for compensation for the proceedings instituted against him .

On DATE ORG in GPE sent the applicant a letter it had received from ORG of GPE . This letter , dated DATE , was addressed to ORG and stated the following :

“ In reply to your letter of DATE , which concerns a request by PERSON , we inform you that , according to the law , he has no right to be compensated . ”

B. The applicant 's previous application under the Convention

On DATE the applicant lodged application No . CARDINAL with ORG complaining , inter alia , of the length of the above criminal proceedings against him , which were at the time pending at first instance .

On DATE the Commission declared the applicant 's complaint concerning the length of the first instance proceedings admissible . It declared the remainder of the application inadmissible .

On DATE the Commission expressed the opinion that the applicant 's right under LAW to a hearing within a reasonable time had been violated because of the length of the first instance proceedings .

On DATE ORG found that there had been a violation of LAW in the applicant 's case .


Violation of Article 6 - Right to a fair trial

Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall

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

The applicant was working at ORG when criminal proceedings were instigated against him for alleged involvement in the activities of an illegal organisation . He was accused together with other suspects of , inter alia , hanging posters and banners in various places in GPE on behalf of that organisation . Throughout the proceedings the applicant maintained his innocence . In the meantime , ORG suspended the applicant pending the criminal proceedings .

On DATE ORG , on the basis of the evidence contained in the case file , convicted the applicant LAW no . ORG and sentenced him to DATE and DATE imprisonment and to a fine . The applicant appealed .

On an unspecified date a written opinion of the principal public prosecutor at ORG dated DATE was submitted to that court . This opinion was not communicated to the applicant .

On DATE ORG held a hearing and upheld the judgment of the first - instance court in respect of the applicant .

The applicant 's request for a rectification of ORG judgment was dismissed by the principal public prosecutor at that court .

The applicant submitted that he had been released from prison in DATE .

By an additional judgment dated DATE , ORG , taking into account the amendment to the definition of “ terror acts ” under section CARDINAL of Law no . ORG pursuant to Law no . DATE , acquitted the applicant , who had not taken part in any violent activities , and nullified his conviction , together with all its consequences . This judgment became final on CARDINAL DATE .

NORP In the meantime , on DATE , ORG of ORG decided to dismiss the applicant from the civil service . The applicant 's objection to this decision was dismissed by the administrative court who noted , inter alia , that , according to the disciplinary investigation , the applicant had taken DATE leave from DATE in pursuit of his illegal activities . The court also noted that the applicant 's conviction had become final . This decision was subsequently upheld by ORG on DATE . In his observations the applicant submitted that , despite his acquittal , his request for a retrial had been rejected by the administrative court . However , he did not submit any court decisions .

According to an attestation dated DATE the applicant is currently employed at ORG hospital in GPE .

The relevant domestic law and practice in force at the material time and subsequent changes to domestic legislation are outlined in the following judgments ; Göç v. GPE , [ ORG ] , no . CARDINAL , § CARDINAL , ORG PERSON , and PERSON v. GPE , no . PERSON , § § DATE , DATE .


The applicants , Mr PERSON and PERSON are NORP nationals who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by PERSON I.V. Novikov , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

The applicants are spouses . They receive old - age pensions .

On DATE the Law on ORG ( “ the LAW ” ) introduced a new method of calculation of retirement benefits based on so - called “ individual pensioner coefficient ” ( “ the ORG ” ) . The ORG was the ratio between an individual ’s wages at the moment of retirement and the national average rate and was meant to maintain a link between a person ’s pension and previous earnings .

The authority in charge of the applicants’ pensions – ORG of LOC of GPE ( “ the Fund ” ) – decided that the ORG to be applied to them should be CARDINAL . The applicants considered that this decision was arbitrary as it conflicted , in their opinion , with LAW . They brought a court action against the Fund for an increase of their pensions in accordance with LAW .

On DATE ORG ( “ the ORG ” ) found for the applicants . It held that since the defendant had misinterpreted LAW , the applicants’ pensions should be increased in line with an ORG of PERCENT . The court also recovered the pension arrears in the amount of MONEY ( RUB ) and indexation in the amount of RUB CARDINAL in favour of the first applicant , RUB CARDINAL,CARDINAL.CARDINAL and GPE respectively , in favour of the second applicant .

On DATE ORG ( “ the ORG ” ) rejected an appeal by the defendant . On DATE the judgment of DATE acquired legal force .

On DATE the ORG requested ORG to re - consider its judgment of DATE due to discovery of new circumstances . The ORG submitted that on DATE ORG had issued an Instruction on the Application of Limitations established by LAW ( “ the Instruction ” ) . The instruction clarified how LAW should be applied . The ORG contended that since it had been unaware of that instruction at the moment when the judgment was passed , the judgment would have to be reconsidered . The ORG claimed that it had learned about the ORG on DATE and requested ORG to postpone the enforcement proceedings of the judgment of DATE until the examination of the request to re - consider the judgment .

On DATE ORG rejected the defendant ’s request to postpone the enforcement proceedings . ORG upheld the decision on appeal on DATE .

On DATE the ORG submitted a new application for reconsideration of the judgment of DATE due to discovery of new circumstances . This time the ORG claimed that on DATE ORG of GPE had dismissed the complaint by a group of individuals challenging the ORG . ORG found that ORG had acted within its competence when it had issued the ORG , and that the ORG ’s interpretation of LAW had been correct . The ORG contended that since it had been unaware of the decision of DATE at the time of the judgment of DATE , the judgment would have to be reconsidered .

On DATE ORG granted the ORG ’s application . The ORG applied Article CARDINAL of the Code of Civil Procedure according to which judgments could be re - considered in case of discovery of significant circumstances which were not and could not haven been known to the party concerned . The court found that the ORG , as upheld by ORG , could serve as such a circumstance . No appeal lay against this decision . The court quashed the judgment of DATE , as upheld on DATE , and remitted the case for a new examination to the first instance court . The first applicant was present at the hearing .

After a fresh examination on DATE ORG dismissed the applicants’ claims in full having applied the Instruction . On DATE ORG rejected the ORG appeal against the judgment .

In the meantime , the applicants filed a new court action against ORG for wrong calculation of their retirement pension . On DATE ORG rejected their claims . By a decision of DATE ORG upheld the judgment .

Article CARDINAL of the RSFSR Code of Civil Procedure of DATE ( in force at the material time ) provided for grounds for reconsideration of final judgments on the basis of “ newly - discovered circumstances ” . Such grounds included , inter alia , significant circumstances which were not and could not have been known to the party which applied for reconsideration , and invalidation of a court ruling or another authority ’s decision which had served as a legal basis for the judgment in question .

Article CARDINAL required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within DATE after the discovery of the circumstances .

Pursuant to LAW on the basis of newly - discovered circumstances , should either grant such an application and quash the final judgment or dismiss the application . Such a decision was not amenable to appeal .


Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 11;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants were both born in DATE and live in Bad PERSON and GPE respectively .

From DATE a GCARDINAL summit of Heads of State and Government was held in GPE , in the vicinity of GPE .

NORP The police considered that there was a threat of terrorist attacks , in particular by NORP terrorists , during the summit . Furthermore , having regard to the experience of previous GCARDINAL summits , they considered that there was a risk of property damage by left - wing extremists . The latter were found to have planned to protest against , block and sabotage the summit .

NORP The police estimated that there would be CARDINAL participants at an international demonstration in GPE on DATE , CARDINAL of whom were ready to use violence , and that there would be CARDINAL demonstrators present during the summit , CARDINAL of whom would be ready to use violence .

On DATE serious riots broke out in GPE centre , involving well - organised violent demonstrators , forming what has been termed a “ black block ” , who attacked the police with stones and baseball bats . CARDINAL policemen were injured .

According to a press release of the GPE - West Pomerania Ministry of the ORG dated DATE , CARDINAL police officers had been involved in ensuring that the GCARDINAL summit could be held without disruption and in protecting its participants from attacks by terrorists or antiglobalisation demonstrators prepared to use violence . During the summit , CARDINAL people had been detained in holding pens for prisoners ( Gefangenensammelstellen ) . The courts had been asked to confirm the detainees’ detention in CARDINAL cases ; they had done so in respect of CARDINAL individuals .

NORP In DATE the applicants drove to GPE in order to participate in demonstrations against the GCARDINAL summit in GPE .

On DATE at TIME the applicants’ identity was checked and established by the police in a car park in front of PERSON prison , where they were standing next to a van in the company of CARDINAL other people . No other people were present in the car park . The police submitted that the first applicant had physically resisted the identity check . He had allegedly hit the arms of a policeman who had attempted to determine the second applicant ’s identity . He had also kicked another policeman ’s shin in order to prevent his own identity from being determined . The applicants submitted that the second applicant had himself been hit by the police , although he had already been holding his identity card in his hand ready for inspection . The police searched the van and found folded - up banners bearing the inscriptions “ Freedom for all prisoners ” and “ Free all now ” . The applicants were arrested . It appears that the banners found were seized .

In CARDINAL separate decisions taken on DATE at TIME and CARDINAL a.m. respectively , ORG , having examined both applicants in person , ordered their detention ( amtlicher ORG ) until DATE , TIME at the latest .

Relying on section GPE ) , paragraph CARDINAL ) , and section CARDINAL(CARDINAL ) of the GPE - West Pomerania Public Security and LAW ( Gesetz über die öffentliche PERSON in GPE - Vorpommern – “ the NORP ” , see paragraphs CARDINAL - CARDINAL below ) , ORG found that the applicants’ detention had been lawful in order to prevent the imminent commission or continuation of a criminal offence . As the applicants had been found in front of PERSON prison in a van in which objects calling for the liberation of prisoners had been discovered , it had to be assumed that they had been about to commit or aid and abet a criminal offence .

ORG further found that the applicants’ continued detention was indispensable and proportionate . At the hearing , both applicants had given the impression that they had intended to proceed with committing an offence . As they had not made any statements or submissions on the merits , they had been unable to justify their conduct .

On DATE ORG , in CARDINAL separate decisions , dismissed appeals ( sofortige PERSON ) lodged by the first and second applicants .

ORG confirmed ORG finding that the applicants’ arrest had been lawful under section CARDINAL(CARDINAL ) , paragraph CARDINAL ( a ) , of the ORG . As the applicants had been found in the vicinity of PERSON prison in possession of banners with an imperative wording ( “ free ” ) , they had intended to incite others to free prisoners and that constituted an offence . Moreover , having regard to the material in the case file , the first applicant had obstructed police officers in the exercise of their duties . The second applicant , for his part , had been charged with dangerous interference with rail traffic in DATE in connection with the transport of “ castor ” containers . ORG further agreed with ORG reasoning to the effect that the continuation of the applicants’ detention was indispensable and proportionate .

On DATE ORG dismissed further appeals ( sofortige PERSON ) subsequently brought by the applicants . In their appeals , the applicants , represented by counsel , had submitted that the slogans on the banners had been addressed to the police and the authorities , urging them to end the numerous arrests and detentions of demonstrators . They had not been meant to call upon others to attack prisons and to free prisoners by force , an interpretation which had to be considered far - fetched , given that there had not been any violent liberation of detainees from NORP prisons in DATE .

ORG upheld the lower courts’ finding that the requirements of section CARDINAL(CARDINAL ) , paragraph CARDINAL ) , of the ORG had been met . The applicants’ arrest and continued detention was indispensable in order to avert a danger to public security and order . The banner “ Free all now ” , together with the banner “ Freedom for all prisoners ” , could be understood as an incitement to liberate prisoners , an offence under LAW ( see paragraph CARDINAL below ) . The police had been entitled to assume that the applicants had intended to drive to GPE and display the banners at the partly violent demonstrations there . As a result , a crowd which had been ready to use violence might have been incited to liberate people who had been arrested and detained .

In respect of the second applicant , the requirements of section CARDINAL(CARDINAL ) , paragraph ORG ) , of the ORG ( see paragraph CARDINAL below ) had also been met . The second applicant had been arrested in DATE in comparable circumstances on suspicion of dangerous interference with rail traffic in connection with the transport of castor containers . It was irrelevant whether he had subsequently been convicted .

The applicants had not contested the ORG conclusions ; they had not made any statements or submissions on the merits . The police had been obliged to take into consideration the general security situation in GPE on DATE . On DATE , very violent clashes between demonstrators and the police had taken place in the city centre . Moreover , the applicants had proved to be prone to violence themselves by attacking police officers .

The Court of Appeal further considered that the applicants’ right to freedom of expression under LAW did not warrant a different conclusion . It accepted that the slogans on the banners could be understood in different ways . However , in the tense situation in and around GPE the police had been authorised to prevent ambiguous declarations which could have lead to a risk to public security and order .

Furthermore , the duration of the applicants’ detention was proportionate . According to a report by the NORP police of DATE , CARDINAL anti - globalisation activists , some of whom were very violent , were moving towards PERSON and were calling for an “ attack on the embankment ” . It could not be ruled out that the applicants would have participated in those demonstrations with the banners and would thus have incited other demonstrators to liberate prisoners .

On DATE both applicants lodged a constitutional complaint with ORG and applied for an interim injunction ordering their immediate release .

The applicants complained that their detention had violated , in particular , their right to liberty and their right to freedom of expression . The second applicant further submitted that his detention had been in breach of his right to freedom of assembly . Both applicants argued that it had been far - fetched to interpret the slogans on the banners as inciting other demonstrators to attack prisons and to liberate prisoners . The banners had been addressed to the police , who had already arrested many antiglobalisation activists , to the participants in the GCARDINAL summit and to the public in general , and had not advocated acts of violence . The applicants further stressed that they did not have any previous convictions . The second applicant submitted , in particular , that the criminal proceedings against him for dangerous interference with rail traffic had been discontinued .

These complaints were initially registered under file nos . CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL . On DATE the reporting judge at ORG informed the ORG representatives by telephone that ORG would not take a decision on the ORG request for interim measures .

On DATE at TIME the applicants were released from prison .

NORP The applicants’ constitutional complaints of DATE were then considered to have become devoid of purpose following their release .

On DATE the applicants asked ORG to find that their detention had been unconstitutional , despite the fact that they had been released in the meantime . Thereupon , their constitutional complaints were registered anew ( files CARDINAL . CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG , in CARDINAL separate decisions , declined to consider the first and second applicants’ constitutional complaints , without giving reasons ( file FAC . CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) .

The decision was served on the first applicant ’s counsel on DATE and on the second applicant ’s counsel on CARDINAL DATE .

The criminal proceedings instituted against the first applicant for having obstructed public officers in the exercise of their duties ( Widerstand gegen LOC ) in the course of the identity check on DATE were discontinued , in exchange for the first applicant paying MONEY ( ORG ) . The criminal proceedings against the second applicant for the same offence were discontinued on grounds of insignificance .

The applicants submitted that CARDINAL of the police officers involved in their arrest had later been convicted of causing bodily harm while discharging public duties in relation to a different matter . They submitted that the proceedings were still pending before the appellate court . The Government did not comment on that point .

No criminal proceedings were brought against the applicants for having incited others to free prisoners .

On DATE ORG dismissed the applicants’ complaints of a violation of their right to be heard .

On DATE ORG declined to consider the first applicant ’s fresh constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) and on DATE it declined to consider the second applicant ’s fresh constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . In their complaints the applicants had relied , in particular , on their rights to liberty , to freedom of expression and to freedom of assembly .

Section CARDINAL(CARDINAL ) of the ORG , in so far as relevant , provides :

“ A person may only be detained if :

NORP ... ;

NORP this is indispensable in order to prevent the imminent commission or continuation of a criminal offence ; the assumption that a person will commit or aid and abet such an offence may be based , in particular , on the fact that

( a ) he or she has announced or incited the commission of the offence or carries banners or other items containing such incitement ;

( c ) he or she has been apprehended in the past on comparable grounds as a person involved in the commission of offences , and if facts warrant the conclusion that a repetition of this conduct is to be expected ... ”

Section CARDINAL(CARDINAL ) of the ORG provides that if the police take a person into custody , they must immediately obtain a judicial decision on the lawfulness and continuation of the detention . The judicial decision must set a maximum duration of detention , which may not exceed DATE in cases governed by section GPE ) , paragraph CARDINAL . ORG in the district in which the person concerned was arrested has jurisdiction to take the decision .

Under section CARDINAL of the ORG , the authorities may order a person to leave a place or prohibit a person from going to a specific place ( GPE ) in order to avert a real danger . If the facts warrant the conclusion that the person will commit an offence in a specific area , the person may be prohibited from entering that area for DATE .

NORP Under section CARDINAL(CARDINAL ) of the FAC , an item may only be seized in order to avert an imminent danger to public security or order ( paragraph CARDINAL ) or if the facts warrant the conclusion that it might be used in order to commit a criminal or regulatory offence ( paragraph CARDINAL ) .

Section CARDINAL(CARDINAL ) of LAW provides that anyone who frees a prisoner or incites or helps him to escape is to be punished by imprisonment of DATE or a fine . Subsection CARDINAL of section CARDINAL provides that an attempt to commit such an offence is also punishable .

Sections CARDINAL et seq . of the Code of Criminal Procedure concern pretrial detention . Pursuant to Section CARDINAL(CARDINAL ) of the Code , a defendant may be remanded in custody if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him . Pre - trial detention may not be ordered if it is disproportionate to the importance of the case and to the penalty or measure of correction and prevention expected to be imposed .


Preliminary objection rejected (victim);No violation of Art. 6-2

ORG Mrs. PERSON , a NORP national , is the widow and heir of Mr. PERSON , who died on CARDINAL DATE . She lives in PERSON .

ORG Her husband was a senior manager in a holding company , ORG , whose trading activities centred on iron , steel and fuel , including motor fuel . He joined the firm on DATE and subsequently held a number of key positions in it .

On DATE , ORG ceased payments by reason of insolvency and asked ORG ( ORG ) to set in motion composition proceedings ( PERSON ) .

On DATE , Mr. PERSON was arrested under a warrant issued by ORG on DATE ; he was suspected among other things of bankruptcy offences . Other senior managers in the company were also arrested .

ORG On DATE , the indictment , which was CARDINAL pages long , was served on Mr. PERSON and CARDINAL co - defendants .

The trial hearings began on DATE before ORG ( CARDINAL . ORG ) of ORG ( ORG ) . They lasted until DATE , CARDINAL or QUANTITY hearings being held DATE . The court heard evidence from CARDINAL of witnesses , and CARDINAL documents were read out . The applicant ’s husband was defended by CARDINAL counsel , CARDINAL of whom was assigned by the court .

ORG On DATE , ORG delivered its judgment , which ran to CARDINAL pages .

Mr. PERSON was found guilty inter alia on several charges of breach of trust ( PERSON ) , criminal bankruptcy ( GPE ) and fraud ( FAC ) , and given an aggregate sentence of CARDINAL years’ imprisonment . His CARDINAL co - defendants were also sentenced to prison terms - CARDINAL of them , for more or less identical offences and a few additional ones , to DATE , DATE , DATE respectively ; the other CARDINAL , for aiding and abetting , to DATE , DATE each . In respect of a series of fraud charges , ORG stayed the proceedings under LAW ( see paragraph CARDINAL below ) ; and it acquitted Mr. PERSON and CARDINAL of his co - defendants on a number of other charges .

In determining the sentences , ORG took into account as extenuating circumstances the length of the proceedings and , in respect of the applicant ’s husband , his detention on remand for DATE ; this period was deducted from the total sentence .

ORG Mr. PERSON entered an appeal on points of law on DATE that judgment was given . After receiving the text of the judgment on DATE , he filed - on CARDINAL DATE - full pleadings which ran to CARDINAL pages with CARDINAL appendices . ORG ( ORG ) had not given a decision by the time he died on DATE , so that the proceedings in respect of Mr. PERSON came to an end without any decision being taken on his appeal .

CARDINAL of the co - defendants , who had likewise challenged ORG judgment , later withdrew their appeals on points of law ; the appeal lodged by the fourth person convicted , Mr. PERSON , was dismissed by ORG on DATE as being manifestly ill - founded .

ORG Having been arrested and detained on remand on CARDINAL DATE ( see paragraph CARDINAL above ) , Mr. PERSON was released on bail at DATE in order to undergo a bile - duct operation . He was re - arrested on DATE but freed by ORG ( Oberlandesgericht ) on DATE , the court holding that there was no valid ground for quashing the DATE order suspending execution of the arrest warrant .

On DATE , ORG ordered his re - arrest and , at the same time , the arrest of all the co - defendants ; as the public prosecutor had made his final submissions , calling for heavy sentences , the court held that the measures taken to prevent the defendants absconding were no longer sufficient .

On DATE , Mr. PERSON was released on health grounds .

ORG In written pleadings dated DATE , the applicant , as her deceased husband ’s sole heir , sought orders that the ORG should bear the necessary costs and expenses ( notwendige PERSON ) incurred by her late husband in connection with his conviction by ORG and that the estate should be paid compensation for his detention pending trial . In the alternative , she requested ORG to adjourn a decision on her applications until such time as ORG had given judgment on the appeal brought by the co - defendant Mr. PERSON

On DATE , ORG found against Mrs. PERSON . Its decision read as follows :

The applications are admissible ... but ill - founded .

Where proceedings are terminated by reason of a defendant ’s death , his necessary costs and expenses are normally borne by the ORG , but this does not apply where , were it not for this technical bar , the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld ( wenn es bei GPE des PERSON annähernd sicher zu erwarten war , dass es zur Verurteilung des Angeklagten gekommen bzw . bei einer GPE geblieben wäre ) . This was so in the instant case .

The defendant had already been found guilty , in a judgment that had not become final , after lengthy court proceedings in a trial ( ORG ) lasting CARDINAL and a half years . The judgment convicting the CARDINAL co - defendants ... , who were likewise sentenced to several GPE imprisonment , has become final . The co - defendant M is maintaining his appeal on points of law .

The submissions made by the defence in its full pleadings afford no reason to suppose that the defendant would have been acquitted had the proceedings continued . The pleas alleging procedural defects ( formelle Rügen ) - even assuming them to be well - founded - would have been material to the decision to be taken in the instant case only if , in the event of a new trial , a different verdict on the merits would have been expected , that is to say an acquittal . The fact that [ CARDINAL of ] the defendants ... have withdrawn their appeals on points of law , thereby confirming the judgment against them , argues decisively in favour of the correctness ( materielle PERSON ) of the judgment .

As to the plea alleging a breach of substantive law ( materielle GPE ) , the defence ’s submissions again provide nothing to support the hypothesis that the proceedings were moving towards an acquittal . The quotations from the trial court ’s judgment are taken out of context , do not cover the considerations ( ORG ) subsequently set out by that court in the reasons for its judgment and are accordingly not consistent with its assessment of the case as a whole .

For the same reasons the court declines to award compensation for the time spent in detention on remand , pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of ORG ( PERSON über die PERSON für GPE ) [ see paragraph CARDINAL below ] .

Nor , to the extent that the proceedings were provisionally stayed under LAW [ see paragraph CARDINAL below ] , are there any grounds for ordering the ORG to pay the defendant ’s necessary costs and expenses , because in view of the reasons given for the judgment , it was much more likely , having regard to the adverse financial position of the ORG holding company , that if the proceedings had continued , the defendant would have been convicted on the counts in question ( FAC nach den Ausführungen i m PERSON der ungünstigen wirtschaftlichen Situation des Stummkonzerns bei einer GPE des PERSON wesentlich wahrscheinlicher war , dass es insoweit zu einer ORG gekommen wäre ) .

That being so , the court does not consider it necessary to defer judgment until a decision has been given on the co - defendant M ’s appeal on points of law .

ORG The applicant appealed to ORG against that decision on DATE . In written pleadings dated DATE , she challenged , inter alia , ORG finding that , had her husband not died , he " would almost certainly have been convicted or his conviction almost certainly have been upheld " . She claimed that that statement was erroneous and infringed LAW ) and LAW ) ( article DATE , article CARDINAL ) and LAW ) ( article DATE , article DATE ) of the LAW . The court caused the conviction to " become final " posthumously , thereby prejudicing her as the defendant ’s widow with regard to the rights relied on and , in particular , entailing a violation of LAW ( article LAW ) of the Convention . It was as if it were sought to obtain a final ( abschliessend ) conviction of the deceased by a side wind in the form of a decision as to costs although no final ( rechtskräftig ) judgment had been handed down confirming that he had committed the offences with which he was charged . ORG likewise disregarded the presumption of innocence in stating that the grounds of appeal afforded no reason to suppose that the defendant would have been acquitted . It ought at most to have decided , after a summary examination of the case , that the appeal on points of law had some prospects of success , or it should have refrained from expressing a view . It was precisely for that reason that the applicant had requested an adjournment to await the judgment of ORG in the appeal proceedings brought by CARDINAL of the co - defendants . The court , however , had prejudged ORG decision by holding that the plea alleging a breach of substantive law again provided nothing to support the hypothesis of an acquittal : the court should have known that vital points in Mr. PERSON ’s appeal were also relied on by the co - defendant M.

The applicant pointed out in addition that from the outset her husband had denied having committed any offences and had indeed been acquitted on several counts . In the light , inter alia , of LAW ( article LAW ) of the LAW , it therefore had to be assumed that in the event of a new trial he would have been acquitted completely . Since criminal law was based on the principle of individual guilt , it was quite simply unacceptable - and , once again , contrary to LAW ( article LAW ) - to judge the deceased by the conduct of CARDINAL of the co - defendants . In any case , the fact that those co - defendants had withdrawn their appeals on points of law could not be regarded as an admission of guilt ; besides , they had held responsibilities within ORG different from those of her husband .

ORG The public prosecutor ’s office in GPE and the principal public prosecutor ’s office ( ORG ) at ORG , to which Mrs. PERSON ’s appeal ( sofortige Beschwerde ) had been forwarded for any comments , contended that the appeal should be dismissed .

On DATE , the GPE public prosecutor submitted that , having regard to the state of the proceedings , there was every likelihood ( hohe PERSON ) that the conviction would have been upheld .

The principal public prosecutor gave his opinion on DATE . He considered that an assessment of the likely outcome of the proceedings ( Prüfung des mutmasslichen Verfahrensausgangs ) , having regard to the reasons given in the judgment of ORG and the grounds of the appeal on points of law , could lead to CARDINAL conclusion . It could be assumed - and , indeed , had to be - that if the proceedings had been continued , the defendant ’s conviction would have been upheld . The principal public prosecutor took the view that the outcome of the appeal brought by the co - defendant M and still pending before ORG was of some relevance in assessing the likely outcome of the proceedings concerning Mr. PERSON , who , according to the aforementioned judgment , had committed his various offences in concert ( Mittäterschaft ) with the said co - defendant .

ORG The applicant , to whom the public prosecutors’ observations had been communicated , replied on DATE . She stated , inter alia , that there were considerable dissimilarities between M and her husband as regards the charges against them , their behaviour and the grounds of their appeals ; and as evidence of this she pointed to the indictment , the judgment convicting the defendants , and the appeals .

ORG The ORG dismissed the action on DATE .

It left open the question whether , in the event of a defendant ’s death before the final conclusion ( rechtskräftiger Abschluss ) of criminal proceedings , a decision such as that sought by Mrs. PERSON could be taken , by analogy , under LAW and LAW ) of ORG ( see paragraphs CARDINAL - CARDINAL below ) . And it added :

" Even assuming such decisions are possible ( GPE ) , the assessment of the probable outcome of the trial , which must be made in both instances , leads to the conclusion that if the proceedings had been pursued until a final decision was handed down , the former defendant ’s conviction would almost certainly ( CARDINAL annähernder PERSON ) have been upheld . In order to avoid repetition , reference is made to the reasons given for the contested decision , which are valid ( zutreffend ) . It should be noted in addition that the appeal on points of law of the co - defendant M was subsequently dismissed , on DATE , by ORG ... as being manifestly ill - founded . That fact is of particular importance in assessing the prospects of success which ... Mr. PERSON ’s appeal would have had , because according to the reasons given for the judgment of CARDINAL DATE , the offences of which [ he ] was convicted at first instance were committed together with ... PERSON

On DATE , ORG rejected the objections ( Gegenvorstellungen ) which the applicant had lodged against the judgment of DATE .

ORG Mrs. PERSON then applied to ORG ( Bundesverfassungsgericht ) , claiming a breach of LAW ( protection of the dignity of man ) , LAW ( the right of property ) and LAW ( principle of the rule of law ) of LAW .

On DATE , a bench of CARDINAL judges of ORG refused to entertain the constitutional complaint because it considered that the complaint did not have sufficient prospects of success . The reasons for its decision were as follows :

" CARDINAL . The presumption of innocence , which is founded on the principle of the rule of law , precludes treating as guilty a person who has not been finally ( rechtskräftig ) convicted . That does not mean , however , that in every case costs must be reimbursed where the proceedings are terminated without guilt having been established ( PERSON ) ...

The refusal of the applications for an order that the ORG should bear the deceased defendant ’s necessary costs and expenses is based on LAW , second sentence , sub - paragraph CARDINAL , of LAW . The decision on the claim for compensation is based on section CARDINAL(CARDINAL)(CARDINAL ) of ORG . Both provisions , whose conformity with the LAW can not be doubted , confer on the courts a degree of discretion . There is nothing to suggest that the courts exercised their discretion in a manner contrary to LAW .

( a ) Admittedly , the decisions being challenged make a prediction of the probable outcome of the proceedings had they been continued . However , such an assessment does not amount to a finding of guilt but merely to a finding of a continuing state of suspicion ( Eine derartige PERSON indessen nicht die PERSON , sondern lediglich die PERSON fortbestehenden PERSON ) . Consequently , it does not offend the presumption of innocence .

( b ) Nor was the prediction of the outcome of the proceedings arbitrary in nature .

( aa ) Neither the alleged defects ... in the judgment convicting the defendant nor the grounds of the appeal on points of law make it possible to dismiss as untenable the conclusion reached in the contested decisions that a ( subsequent ) acquittal was unlikely in respect of each of the offences of which the deceased defendant had been convicted . That was the only relevant issue for the order as to costs . The courts’ reference to the lack of success of the appeal proceedings instituted by the co - defendant M and to the withdrawal of the appeals on points of law entered by the other defendants is clearly to be regarded merely as an additional argument , and the impugned decisions are not based on it .

( bb ) Nor do the grounds advanced in support of the constitutional complaint show the unreasonableness of ORG opinion that , had the proceedings been continued , a conviction would have been more likely than an acquittal ... [ in connection with the charge in respect of which the proceedings had been provisionally stayed ] ...

ORG Article CARDINAL of LAW , which was applied by ORG in its judgment of CARDINAL DATE , provides :

" CARDINAL . The public prosecutor may decide not to prosecute

( CARDINAL ) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant in a final decision - or which he must expect to be imposed - for another offence ...

Once proceedings have been instituted , the court may provisionally stay them at any stage on an application by the public prosecutor .

ORG By the terms of LAW , any judgment , order of summary punishment or decision terminating a set of proceedings must determine who is to pay the costs of the proceedings ( paragraph CARDINAL ) ; the judgment or decision in which the proceedings culminate shall state who is to bear the necessary costs and expenses ( paragraph CARDINAL ) .

Article CARDINAL of the Code of Criminal Procedure further provides :

" CARDINAL . If the defendant ( PERSON ) is acquitted or if committal for trial ( GPE ) is refused or if the proceedings against him are discontinued , the costs of the proceedings and the defendant ’s necessary costs and expenses shall be borne by the ORG .

... The court may decline to award the defendant ’s necessary costs and expenses against the ORG where the defendant

( CARDINAL ) has avoided conviction merely because of a technical bar to the proceedings ( NORP ) .

If the court stays the proceedings under a provision which leaves this decision to its discretion , it may decide not to order the ORG to bear the defendant ’s necessary costs and expenses .

Inasmuch as the law does not make the reimbursement of necessary costs and expenses mandatory , the courts decide the issue on an equitable basis and have a degree of discretion in the matter .

ORG The death of a person who has been convicted , if it occurs before the relevant criminal proceedings have been definitively closed , terminates those proceedings without any decision by the competent court being needed ; in such circumstances , the costs of the proceedings can not be awarded against the estate of the deceased ( LAW ) .

As regards the deceased ’s own necessary costs and expenses and indemnification in respect of any time spent by the deceased in detention on remand , the practice of the NORP courts at the time in question varied . Some courts considered any indemnification to be precluded , whereas others - such as ORG in the present case - applied the relevant provisions of LAW and ORG . On DATE , ORG held that , in the absence of any basis in law , the necessary costs and expenses of a defendant who has died before the conviction has become final can not be awarded out of public funds .

ORG By section CARDINAL(CARDINAL ) of ORG DATE , any person who has suffered prejudice by reason of having been detained on remand shall be indemnified by the ORG in the event of his being acquitted or if the proceedings brought against him are discontinued . This rule is , however , subject to certain exceptions , including the CARDINAL laid down in section CARDINAL(CARDINAL)(CARDINAL ) of the LAW , which provides :

" CARDINAL . Compensation may be refused wholly or in part where the defendant

( CARDINAL ) is not convicted of an offence or proceedings are discontinued solely on account of ... a technical bar . "

By section CARDINAL of the same LAW , the competent court shall give a ruling on indemnification in the judgment or the decision terminating proceedings .

ORG The scope of the principle of the presumption of innocence in the context of discontinuance of criminal proceedings has recently been clarified by ORG . By a judgment ( PERSON ) delivered on CARDINAL DATE , ORG quashed , as contravening the principle , CARDINAL decisions by district courts and CARDINAL decision by a regional court whereby the courts , having held the guilt of the defendants to be insignificant ( gering ) , had stayed the private prosecutions brought against them but had awarded the costs of the proceedings against the defendants , including the costs and expenses of the complainants ( cases CARDINAL Bvr CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and QUANTITY , PERSON DATE , pp . CARDINAL - CARDINAL ) .

ORG held it to be inconsistent with the presumption of innocence to speak in the reasons given for a discontinuance decision of a defendant ’s guilt or to base an order as to costs and expenses on the supposition ( Annahme ) that a defendant has been guilty of an offence if the trial has not reached the stage at which the verdict can be given ( PERSON ) . It pointed out that the principle of the presumption of innocence derived from the principle of the rule of law , and it also referred to LAW ( article LAW ) of the LAW . The Convention did not have the status of constitutional law in GPE , but regard should be had to it and to the case - law of ORG in interpreting the principles and fundamental rights enshrined in LAW ) .

Reaffirming its case - law , ORG reiterated that , by virtue of the principle of the presumption of innocence , no measures amounting in effect to a penalty may be taken against a defendant without his guilt having been established beforehand at a proper trial and no defendant may be treated as guilty . The court added that this principle requires that guilt be proved according to law before it can be held against the person concerned . A finding of guilt will accordingly not be legitimate for this purpose unless it is pronounced at the close of a trial which has reached the stage at which a verdict can be given .

Citing the PERSON judgment of CARDINAL DATE ( Series A no . CARDINAL ) , ORG ruled that a decision discontinuing criminal proceedings may offend the presumption of innocence if it contains in its reasoning a finding of the defendant ’s guilt without that guilt having been proved according to law . On the other hand , nothing precluded a court from making findings in such a decision as to the defendant ’s guilt and ordering him to pay the necessary costs and expenses of the complainants as well as the costs of the proceedings if it had held a hearing enabling it to reach a verdict ( ORG ) .

On the basis of these considerations , the Constitutional Court quashed CARDINAL of the CARDINAL decisions challenged but dismissed the application in the first of the CARDINAL cases concerned , as the defence had made the closing address after a trial .


CASE OF TUQUABO-TEKLE AND OTHERS v. THE NETHERLANDS

Preliminary objection dismissed (estoppel);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant PERSON was born in DATE and her son PERSON in DATE . PERSON husband , PERSON , was born in DATE , and their children GPE and PERSON in DATE , respectively . These applicants live in GPE . The applicant PERSON – a daughter of PERSON was born on CARDINAL DATE and lives in PERSON , GPE .

In DATE , after the death of her first husband and during the civil war , PERSON fled from GPE to GPE , where she applied for asylum . She submitted that she had been harassed and detained by the NORP authorities on account of her husband ’s activities for ORG . Although denied asylum , she was granted a residence permit on humanitarian grounds in DATE . Her eldest child , PERSON , had stayed behind in GPE with a friend of his mother ’s , and she had left her other CARDINAL children , ORG and PERSON , in the care of an uncle and their grandmother ( in what subsequently became ORG ) . After permission was granted by the NORP authorities for the children to reside with PERSON , and with the assistance of those authorities and the ORG , her son PERSON entered GPE in DATE . It did not prove possible at that time to procure the departure of the other children from GPE , but it was PERSON intention to bring them to GPE later .

In DATE PERSON married Mr GPE , who was living in the GPE where he had been admitted as a refugee . On DATE PERSON and her son PERSON moved to the GPE to live with Mr GPE . PERSON was granted a residence permit in order to reside in the GPE with her husband on DATE . CARDINAL children , GPE and PERSON , were subsequently born to the couple .

On DATE , PERSON and Mr PERSON filed a request for a provisional residence visa ( machtiging tot voorlopig verblijf ) for ORG , in an attempt to have their ( step)daughter , who was then DATE , join them in the GPE . Such a visa is normally a prerequisite for the grant of a residence permit , which confers more permanent residence rights .

On DATE the Minister of ORG ( Minister PERSON ) rejected their request . The Minister concluded that there were no grounds to authorise family reunion in the GPE since the close family ties ( gezinsband ) between PERSON and her daughter were considered to have ceased to exist and such ties had never existed between Mr GPE and his stepdaughter . Ever since PERSON ORG had left GPE , ORG had been living with an uncle and her grandmother ; she was deemed to have been integrated into the latter ’s family and thus no longer actually belonged to PERSON family unit ( gezin ) . There was no indication that this situation could not be maintained . Moreover , after marrying PERSON , PERSON had started a new family unit in the GPE to which her daughter had never belonged . Furthermore , the couple had not shown that they had been sufficiently involved with the upbringing and care of their ( step)daughter . According to the information available , it was PERSON parents who had custody of ORG .

On DATE PERSON and Mr PERSON filed an objection ( bezwaar ) through counsel with the Minister of ORG , emphasising that Mehret could no longer lead a normal existence in GPE now that she had reached marriageable age and her grandmother had decided that , for that reason , ORG should stop going to school . There were , moreover , sound reasons why PERSON had been unable to bring her daughter to GPE or the GPE prior to DATE . At the time when she had been granted leave to remain in GPE and permission to be joined by her children , contacts with GPE were impossible and it was for this reason that only PERSON , who had been in GPE at the time , was able to go to GPE . In DATE Mrs ORG had travelled to GPE but it had not proved possible to obtain travel documents for ORG , as there were not yet any official bodies equipped to issue passports in GPE and the authorities in GPE refused to do so for NORP citizens . The family ’s housing situation in the GPE had posed a further problem : despite the fact that they had been placed on a waiting list and had been issued with a certificate of urgency ( urgentieverklaring ) , no rental accommodation suitable for a family of CARDINAL adults and CARDINAL children was available . Once it had become possible to obtain a passport for ORG and more spacious accommodation had been obtained , the application for a provisional residence visa was lodged . Moreover , PERSON and her husband had been sending money to GPE on a regular basis , initially by courier as bank transactions were impossible .

On DATE the Minister rejected the objection , reiterating that the close family ties between PERSON and her daughter had ceased to exist . PERSON and her husband had not shown that they had made a substantial parental or financial contribution to ORG upbringing . Furthermore , the couple had not sufficiently shown why , in view of ORG age , she could not remain in the care of her uncle or her grandmother , if necessary supported financially by her family from the GPE . The Minister did not find it established that serious attempts had been made to arrange for ORG to come to the GPE as soon as possible : PERSON had been legally resident in the GPE since DATE but the request for ORG to be allowed to join her had not been lodged until DATE . Contrary to what the applicants appeared to contend , under the applicable legal provisions a lack of adequate accommodation would not have stood in the way of a provisional residence visa being granted . It appeared that PERSON and her husband had let the inexpediency of ORG presence in their cramped accommodation prevail over the desire to reunite ORG with her mother as soon as possible . Thus , the Minister concluded , the child ’s integration into the uncle ’s and grandmother ’s family could not be considered to have been a temporary measure .

On behalf of ORG , PERSON and Mr GPE lodged an appeal against this decision of the Minister , through counsel , with ORG ( arrondissementsrechtbank ) of GPE , sitting in GPE , on DATE . In these proceedings , the Minister of ORG argued , inter alia , that from DATE it had been possible to request and obtain a passport in GPE .

On DATE ORG dismissed the appeal . It held that PERSON had failed to show that her close family ties with her daughter had been maintained . It also found that , following her departure in DATE , PERSON had no longer exercised parental authority over her daughter in the sense of being intensively involved with her daughter ’s upbringing or of taking decisions in this regard . ORG agreed with the Minister of ORG that the ( step)daughter of PERSON and Mr Tuquabo should be deemed to have become integrated into the family of her uncle and grandmother . ORG attached importance to the fact that the couple had only requested to have their ( step)daughter join them in the GPE on DATE , and that they had failed to provide any documentary evidence to substantiate their claim that , even after DATE , it had remained impossible to obtain a passport for Mehret in GPE .

When assessing whether the ORG ’s actions had been in compliance with the requirements of LAW , ORG addressed the question whether the refusal to grant ORG residence visa , as such , constituted a violation of that provision . It pointed out that its task was to strike a fair balance between the interests of the applicants and those of society as a whole ( the latter interest being served by a restrictive immigration policy ) . It found that no obligation for the ORG to allow family reunion on its territory could be derived from LAW . It further considered that there were no objective reasons why the family members in the GPE could not pursue family life with ORG in GPE .

ORG decision was final and not subject to appeal .

At the time relevant to the present application , the admission , residence and expulsion of aliens were regulated by LAW DATE ( “ the LAW ” - Vreemdelingenwet DATE ) . On DATE a new Aliens Act entered into force but this has no bearing on the present case .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa ( machtiging tot voorlopig verblijf ) . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .

The Government pursue a restrictive immigration policy owing to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations arising from international agreements , or if their presence serves an essential national interest , or on compelling humanitarian grounds .

The admission policy for family reunion purposes was laid down in LAW of LAW DATE ( Vreemdelingencirculaire DATE ) . It provided that the spouse , a minor child born of the marriage and actually belonging to the family unit , and a minor child born outside the marriage but actually belonging to the family unit ( such as a child from an earlier relationship of either spouse or a foster child ) could be eligible for family reunion , if certain further conditions ( relating to matters such as public policy and means of subsistence ) were met .

The person with whom a family member was seeking to be reunited in the GPE had to have suitable accommodation available to him or her on a permanent basis . This requirement was not imposed on GPE nationals , on refugees who had been admitted or on holders of a residence permit for the purposes of asylum .

The phrase “ actually belonging to the family unit ” ( “ feitelijk behoren QUANTITY ” ) used in GPE law only partly overlaps with the term “ family life ” in LAW . The former is understood to mean , for instance , that the close family ties ( gezinsband ) between the child and its parents whom it wishes to join in the GPE already existed in another country and have been maintained . For the rest , the question whether the close family ties can be deemed to have been severed is addressed on the basis of the facts and circumstances of each specific case . Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation , the way in which the relationship between parent and child has been developed during the separation , the parent ’s involvement in the child ’s care and upbringing , custody arrangements , the amount and frequency of the parent ’s financial contributions to the child ’s care and upbringing , the parent ’s intention to have the child join him or her as soon as possible and his or her efforts to do so , and the length of time that the child has lived in a family other than with the parent . The burden of proving that the close family ties between parent and child have not been severed lies with the parent residing in the GPE . The longer the parent and child have been separated , the heavier the burden of proof on the person in the GPE becomes . It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the GPE sooner .

CARDINAL