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

The applicant , Mr Uroš Suhadolc , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by PERSON ORG from PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney .

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

On TIME CARDINAL DATE the applicant was driving a car near the town of PERSON , where a police officer using a laser speed measurement device identified his speed as QUANTITY . The speed limit was QUANTITY / h . The applicant ’s car was stopped and he was asked to undergo a breath alcohol test . CARDINAL police officers conducted the procedure . The electronic device for measuring the level of alcohol in the applicant ’s breath gave a reading of QUANTITY mg / l . The applicant was informed that he was charged with committing CARDINAL road traffic offences under LAW , namely the offences of driving in excess of the speed limit and driving under the influence of alcohol , with a blood alcohol content of QUANTITY of alcohol in QUANTITY of breath . He was barred from continuing to drive . CARDINAL reports were prepared on the spot . A report concerning the measurement of the applicant ’s speed contained , amongst other information , the specification of the speed measuring device , the date , time and place of the measurement and the results captured by the device , as well as the name of the officer using the device and the identification number of the certificate proving his competence to use the device . The report concerning the breath alcohol test contained , amongst other information , the specification of the device used and the results , and noted that the applicant had agreed with the results . The applicant also signed the report and was given a copy of it . Lastly , the applicant was issued with a written notice indicating the charges and inviting him to submit a written statement in reply within DATE .

On DATE the applicant submitted a written statement in which he denied committing any offence . He argued that the speed measuring device should not have been used in the dark and that his vehicle did not have the capacity to reach the speed shown by the device . The police must have confused his car with another vehicle or misused the speed measuring device . He further argued that there had been no road signs indicating the speed limit on the road where he had been driving . Moreover , the applicant disputed the credibility of the breath alcohol test and alleged that it had been exposed to factors whose presence or functioning could have interfered with the results , such as the police radio .

On DATE the ORG issued a decision . The applicant was found to have committed the CARDINAL offences and was given a fine – combined to cover both offences – of CARDINAL NORP tolars ( SIT ) ( MONEY ( ORG ) ) and CARDINAL penalty points . The decision referred to the QUANTITY police reports , which indicated the results of the speed measurement and the breath alcohol test . It rejected the applicant ’s arguments concerning the misuse of the speed measuring device , noting that the device had been designed in such a way that in the event of any interference , the wrong position being used or a loss of signal no result would be shown . It also referred to the confirmation of ORG that the type of device in question complied with the relevant technical requirements . As regards the breathalyser , the decision mentioned that special tests had been carried out at the request of ORG to verify the effect of mobile phones and radio devices on breathalyser results . The tests proved that there was no such effect . As regards the applicant ’s argument concerning the lack of a road sign showing the speed limit , the police explained that the speed limit of QUANTITY applied by virtue of the general rule concerning the speed limit in inhabited areas . Finally , the applicant was ordered to pay CARDINAL SIT ( approximately EUR CARDINAL ) for the costs of the proceedings .

On DATE the applicant lodged a request for judicial review . He alleged that only a judge could have validly convicted him . He further complained that the time - limit for the submission of the request for judicial review was too short . He denied committing the offences and demanded that the police prove their allegations . In particular , he asked the police to prove that it had been his speed captured by the device , and to supply documents demonstrating the credibility of the laser machine ’s results and the method used to measure the level of alcohol in his breath , as well the competence of the officer to handle the speed measuring device .

The ORG delivered a judgment rejecting the request as unsubstantiated on DATE . The court noted at the outset that the applicant had lodged a “ standard ” request for judicial review . It found that the procedure had not infringed applicable legislation and , in particular , that the facts had been properly established by the police officers . The court referred to the CARDINAL reports prepared by the officers on the spot , a certificate which demonstrated that the respective police officer had undergone appropriate professional training for the use of the laser device in question and the confirmation of ORG that this type of device complied with the relevant technical requirements . As regards the breath alcohol test , the court noted that the applicant ’s conviction for driving under the influence of alcohol had been based on the report indicating the results of the breath alcohol test , which had been signed by the applicant without comment . Since the applicant had agreed with the report , no further steps had been taken by the police to establish the applicant ’s level of intoxication . Finally , the court also found that the impugned decision had not violated the applicant ’s constitutional rights , as it had been issued in accordance with applicable law and judicial review had been available to him . The court also rejected his complaint concerning the DATE time - limit , stating that this was a statutory time - limit of which he had been informed in the police ’s decision . The applicant was ordered to pay ORG CARDINAL for the costs of the proceedings .

On DATE the applicant lodged a constitutional appeal , alleging a violation of fair trial guarantees – in particular , that any fine should be imposed by a judicial and not by a police procedure ; that he had been charged and convicted by the police ; and that the guarantees enshrined in Articles CARDINAL , DATE and DATE of the LAW had not been provided to him . In addition , he complained that no ordinary appeal lay against the local court ’s judgement .

ORG dismissed the applicant ’s constitutional appeal on DATE . It relied on point CARDINAL of the first paragraph of section CARDINALb of LAW , read together with point CARDINAL of the second paragraph of section LANGUAGE of that Act ( see “ Relevant domestic law and practice ” below ) . ORG decision was served on the applicant on DATE .

“ Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law .

Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual . ”

“ Court hearings shall be public . Judgments shall be pronounced publicly . Exceptions shall be provided by law . ”

“ Anyone charged with a criminal offence must , in addition to absolute equality , be guaranteed the following rights :

- the right to have adequate time and facilities to prepare his defence ;

- the right to be present at his trial and to conduct his own defence or to be defended by a legal representative ;

- the right to present all evidence to his benefit ;

- the right not to incriminate himself or his relatives or those close to him , and to not admit [ his ] guilt . ”

Prior to DATE , proceedings concerning regulatory offences were regulated by ORG DATE ( Zakon o prekrških , ORG of GPE no . CARDINAL , as amended ) . Under that law , proceedings were conducted by judges handling minor offences . Appeals against their decisions were dealt with by judicial panels handling minor offences .

On DATE a new LAW ( hereinafter referred to as “ the ORG ” , ORG no . CARDINAL/CARDINAL ) was enacted by ORG . It came into force on DATE and began to be implemented from DATE . As stated in the travaux préparatoires to this law , the reform was considered necessary because of the heavy backlogs faced by the courts and the need to simplify and expedite the processing of cases concerning minor offences .

Under section CARDINAL of the ORG , an “ offence ” means any act that is against the law , or is in breach of a Government regulation or local self - government ordinance , and which is , as such , designated as a punishable minor offence . While the ORG contains some specific provisions concerning the elements of a minor offence and responsibility for such an offence , it also refers to provisions of LAW , which are to be applied by analogy in minor offence procedure . In addition , the principle of the presumption of innocence is included in the ORG , which in section QUANTITY states that “ persons accused of having committed minor offences are innocent until their responsibility is established by a final decision ” .

The ORG provides for sanctions in respect of minor offences , namely a fine , a warning , penalty points ( which can lead to withdrawal of a driving licence ) , a ban on driving , expulsion of a foreigner from GPE and seizure of items ( sections CARDINAL of the ORG ) .

The significant difference between the old and the new system introduced by the ORG is the establishment of a summary procedure ( hitri postopek ) , which is conducted by administrative authorities such as the police or inspectorates .

An administrative authority may start a procedure upon its own motion or upon request . If a defendant has not had an opportunity to reply to the charges when the offence was recorded or considered by the authority , the latter , before issuing any decision , shall invite the defendant to submit a written reply . The decision should include a short reference to the defendant ’s statement and state the facts and evidence on which it is based . It must also include a warning as to the possibility of imprisonment for non - payment ( sections CARDINAL ) .

Summary procedure is used as a rule for minor offences , subject to the following exceptions : cases where another person has been injured ; offences where an additional sentence can be imposed ; cases where an additional penalty of a driving ban is envisaged ; cases where a pecuniary claim or a minor is involved , or which concern military duties ; or cases where an additional sentence of penalty points which are sufficient to lead to the withdrawal of a driving licence is envisaged ( section CARDINAL of the ORG ) . These cases are dealt with by courts handling minor offences in ordinary judicial proceedings ( redni sodni postopek ) in which LAW is applied by analogy .

After the summary procedure , judicial review is available . An application for such review is dealt with by a single judge at a court handling minor offences , which is normally a local court ( sections CARDINAL of the ORG ) .

A defendant has the right to lodge an application for judicial review within DATE from the receipt of an administrative authority ’s decision concerning a minor offence . By lodging such an application , a defendant renounces the opportunity of paying a reduced fine . In addition , an application , in principle , suspends payment of the fine .

An application can be lodged on standard appeal grounds ( a violation of procedural or substantive law , erroneous or insufficient establishment of facts , and/or a challenge to the sanction ) . It should be filed with the administrative authority that issued the relevant decision . If the authority considers that the request is well - founded , it may annul or change its decision . If not , it sends the file and any additional evidence to the local court ( section CARDINAL of the ORG ) .

A judge can decide on the admissibility and merits of the application on the basis of the file received from the administrative authority . Under LAW of the ORG , the judge may reject the application in a judgment , if there is no need for further fact - finding and if the grounds for appeal are not established . This is done without hearing the applicant . If the judge finds that the facts were correctly established but that a different sanction should be imposed , he may uphold the application in part and modify the administrative authority ’s decision accordingly . If a violation of procedural or substantive law is established or if further fact - finding is required , the judge quashes the decision and decides on the case in ordinary judicial proceedings to which the accused and the authority that issued the impugned decision are parties . In these judicial proceedings , the defendant has a right to be heard orally by the judge , to adduce evidence , to make procedural requests and to appeal against the judgment ( sections CARDINAL of the ORG ) .

An appeal to ORG can be lodged on all grounds against a first - instance court ’s decision declaring an application inadmissible and against a judgment by which the administrative authority ’s decision has been modified to the defendant ’s disadvantage following additional fact - finding . In addition , an appeal can be lodged on all grounds , except factual ones , against a decision imposing a fine higher than the minimum amount or ordering a seizure of items worth QUANTITY .

The relevant provisions of LAW ( Zakon o varnosti cestnega prometa , ORG no . CARDINAL/CARDINAL , implemented from DATE ) read as follows :

“ ( CARDINAL ) The speed limit shall be :

– QUANTITY – on roads in inhabited areas ;

( CARDINAL ) A driver who exceeds the speed limit determined by the general rule or road signs on a road in an inhabited area , shall be liable for the following fine :

( c ) if he exceeds the speed limit by CARDINAL but QUANTITY SIT . The driver shall also be given CARDINAL penalty points ;

( CARDINAL ) All other drivers may have a maximum of QUANTITY grams of alcohol per kilogram in their blood or QUANTITY of alcohol in QUANTITY of breath ....

( CARDINAL ) A driver ... who violates paragraph CARDINAL of this section , shall be punished with a fine [ as follows ] :

( b ) if he has CARDINAL but QUANTITY of alcohol per kilogram of blood or CARDINAL but QUANTITY of alcohol in QUANTITY of breath , with a minimum [ fine of ] CARDINAL SIT . ... The driver ... shall also be given CARDINAL penalty points .

“ ( CARDINAL ) An administrative body can also decide in summary proceedings on a minor offence for which , apart from a fine , a sentence of a maximum of CARDINAL penalty points is prescribed [ for each offence ] ...

( CARDINAL ) A court ... shall declare invalid the driving licence of a driver who , on the basis of the decision of the administrative body , reaches or exceeds CARDINAL penalty points .

LAW ( Zakon o ustavnem sodišču , ORG no . CARDINAL/CARDINAL ) was adopted on DATE . It stated that a constitutional appeal was inadmissible if it did not concern an important legal issue and if an alleged violation of human rights or fundamental freedoms did not have significant consequences for the complainant .

On CARDINAL DATE ORG adopted an amendment to LAW ( Official Gazette no . DATE , hereinafter referred as “ LAW ” ) which limited the availability of constitutional appeals by , inter alia , excluding the possibility of challenging decisions issued in proceedings concerning minor offences . However , such cases could , exceptionally , be examined if they raised important constitutional questions extending beyond a specific case . LAW came into force on DATE . The relevant provisions of the amended LAW no . DATE official consolidated version ) read as follows :

“ ( CARDINAL ) The Constitutional Court shall decide in a panel of CARDINAL ORG judges ( hereinafter referred to as a panel ) at a closed session whether to initiate proceedings on the basis of a constitutional appeal . ”

“ ( CARDINAL ) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [ alleged ] did not have significant consequences for the complainant .

( CARDINAL ) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions :

- issued in small - claims disputes ... ;

- concerning costs of proceedings , where such decision alone is challenged in the constitutional appeal ;

- issued in trespass to property disputes ;

- issued in minor offence cases .

( CARDINAL ) Irrespective of the preceding paragraph , ORG may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph , notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case . ”

“ ( CARDINAL ) A constitutional appeal shall be rejected :

- if it does not concern an individual act by which a state authority , local authority , or a holder of public power decided on the rights , obligations or legal interest of the complainant ;

- if the complainant does not have a legal interest in a decision on the constitutional appeal ;

- if it is not admissible , except in the instance referred to in the third paragraph of the preceding section ;

- if it was not lodged in due time ;

( CARDINAL ) A constitutional appeal shall be accepted for consideration :

- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant ; or

- if it concerns an important constitutional question which goes beyond the importance of the actual case .

Section CARDINAL of the LAW , concerning transitional rules , provides so far as relevant :

“ ( CARDINAL ) Proceedings which are pending at the time of entry into force of LAW shall be continued according to the provisions of LAW .

( CARDINAL ) If ORG has declared a constitutional appeal admissible before the entry into force of LAW , it shall decide [ the case ] regardless of Articles DATE and CARDINAL . ”

ORG has established precedents as regards the rights of the defence in minor offence proceedings . Its case - law has been developed on the basis of its jurisdiction to decide on requests for the protection of legality ( zahteva za varstvo zakonitosti ) lodged by the public prosecutor in cases concerning minor offences . According to the extracts from the relevant case - law submitted by the Government , ORG has found that an offender must have the opportunity to defend himself in the proceedings , in particular , to respond to all the factual and legal aspects of the case ( judgments nos . PERSON CARDINAL/CARDINAL , PERSON CARDINAL/CARDINAL , IV Ips CARDINAL/CARDINAL ) . ORG has also decided that the local courts are not required to examine every piece of evidence put forward by the offender . They must , however , examine evidence whose relevance is sufficiently established ( judgment no . PERSON CARDINAL/CARDINAL ) . In the context of minor offences which entail a presumption of the vehicle owner ’s liability , ORG has found that that the accused must offer convincing and reasonable evidence in his defence . The defendant must specify the evidence and the facts which it is claimed are proved by it ( judgment no . PERSON CARDINAL/CARDINAL ) . Finally , ORG has found that the local courts must examine every specific argument which refers to significant facts , reply to such arguments and explain its decision taken on those points . However , the courts do not have to examine statements which are legally irrelevant and are not required to reply to statements of a general nature . Neither must they repeat the reasons given by the administrative authority , but rather can simply endorse its findings ( judgment no . PERSON CARDINAL/CARDINAL ) .

By decision no . Up-CARDINAL/CARDINAL of DATE , ORG assessed a local court ’s refusal to hear a witness in minor offence proceedings . The appellant had been fined for parking his car illegally , but denied that he had been using his car at that time . In his request for judicial review , he asked the local court to hear a witness who would prove his alibi . However , that request was rejected by the court , which decided that the applicant should have submitted documents in his defence . ORG found that the applicant ’s right to defend himself enshrined in LAW had been violated , as the local court , which should have heard the witnesses , had unlawfully limited the appellant ’s choice of defence method .


Violation of Art. 10;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in the village of PERSON , in GPE .

The applicant has been the editor of a DATE newspaper , ORG ( GPE будни ) , since he founded it in DATE .

In DATE a leaflet was distributed in PERSON and LOC concerning a member of parliament ( MP ) , PERSON , who was going to stand in the forthcoming elections . The leaflet read as follows :

“ Enough of telling fairy tales ! ! ! Let us turn to the facts ! Read the NORP DATE newspaper PERSON . The fortune of the member of ORG is estimated by the newspaper at MONEY ! ! You do not believe it ? Where does the money come from ? ? ? PERSON charges MONEY for a letter with the letterhead of a member of ORG , and MONEY for an MP 's inquiry concerning a delicate matter ! ! ! Lobbying on behalf of PERSON interests in LOC – MONEY per year . The profit from trading in medicines and from the sale of overpriced medicines to GPE MONEY per year . Vote for our fellow countryman PERSON and you will surely turn him into a billionaire ! ! ! ”

The leaflet was either quoted or its contents were described in a number of newspapers including PERSON ( GPE правда ) of DATE and PERSON ( LOC ) of DATE and internet news sites , including posts on www.news.nashbryansk.ru , DATE , www.vlasti.net and www.semCARDINAL.ru of DATE , a post on www.sobesednik.ru of unspecified date in DATE and a post on www.globalrus.ru of DATE . The applicant has provided copies of the newspaper articles and printouts from the internet sites .

On DATE in Bryanskiye Budni no . CARDINAL ( no . CARDINAL ) the applicant published an article entitled “ PERSON and GPE ” ( “ GPE и PERSON ) . The article reads as follows :

“ PERSON was slandered . Ivanych . GPE . The hand reaches for an axe . Revenge ! For our workers ' conscience !

The circulation of the leaflet distributed through towns and villages , according to ORG himself and his associates , is CARDINAL copies , and it says that GPE scraped up a fortune of MONEY . An angry rebuff of this allegation was made by ORG . He did not take it , says ORG , ORG did not chuck him MONEY for assistance in the sale of medicines either , and MONEY for an MP 's inquiry is unheard of .

Actually , when we are talking about PERSON , it is appropriate to say that one should not look a gift horse in the mouth . PERSON gave medical equipment as a present to CARDINAL outpatient clinics , and it is impossible to count how many music boxes he gave to schools and orphans ' homes . It is clearly improper to ask the donor where he got the money for all these goods . The benefactors paid for GPE 's pretty haircut , and he justly distributed the catch among those in need .

If there are doubts , they are caused by the unsightly history of NORP ' parliamentarism ' . Recently , in connection with the events of DATE , we were reminded how cynically PERSON bought MPs who had not yet decided which side of the barricades to run to . He promised them a rich piece of cake , and they slyly ran for this piece , swallowing their spittle . PERSON 's party was accused of bribery many times , but all our elected representatives take [ bribes ] ( except PERSON , of course ) , if we mean not only money but also greyhound puppies : favours from NORP patrons , from ORG or NORP residing in GPE . And this is a serious school , a school of venality . This is why the accusation against FAC in the clandestine leaflet fell on fertile ground . ORG took bribes or not , he will have to account for all his colleagues , for the fact that he has sat next to venal MPs in the venal PERSON for DATE . In a way , the retribution is legitimate .

Who is the author ? He is closer to the body of ORG than the MP himself thinks . Of course , the easiest answer is : the one who intends to stand against him in the same electoral district . We have no doubts that PERSON 's ill - wishers from this camp will scribble too , but the leaflet containing a reference to the NORP source was in fact made in a different camp . Which one ? Remember who recently visited GPE . Thus , nominally these forces are GPE 's allies , but effectively they consider him a serf . And serfs need to be reminded from which barn they originate , so that they do not put on airs and are obedient .

Unfortunately , GPE is looking for ill - wishers in the wrong camp . They should be searched for among the people who cover themselves with red rags . Their handwriting is recognisable . Their latest provocation in the press was , in fact , a supplement to LOC . They published a fake edition of Budni that criticised the opposition to LOC , inter alia , to test their undercover printing works . Although the editors lodged an official complaint , the law - enforcement authorities did not try to find the publisher . And now here is a new volley , and surely not the last one , from the underground regional committee [ of ORG ] . ”

On DATE ORG of GPE issued a decree declaring that the applicant 's article was intended to agitate the electorate and to encourage a negative attitude towards Mr GPE . The applicant appealed to a court against the decree .

On DATE the ORG found that the decree was unlawful . The court held :

“ ... [ T]he article was published on DATE ... before the election campaign had started ... [ T]he article contains information about the distribution of a leaflet saying that PERSON had made a fortune of MONEY , and speculations by the author concerning the existence of this money and its sources . The contents of the leaflet are not quoted in the article . The text of the article contains neither information about the forthcoming elections to ORG ... , about PERSON GPE as a candidate for ORG , his political views and ideas , nor agitational calls to vote for or against PERSON or other candidates .

... [ Mr ] PERSON stated at the hearing that in the article he had not sought to agitate but had merely stated his opinion concerning the distributed leaflet and the information contained therein . The [ defendant ] did not produce any proof to the contrary ... ”

ORG of the Bryansk Region appealed .

On DATE ORG upheld the judgment .

On DATE Mr GPE brought an action for defamation against the applicant in ORG of GPE and sought damages in the amount of MONEY ( RUB ) . He claimed , in particular , that the following passages were untrue and damaging to his honour and reputation :

“ Shandybin scraped up a fortune of MONEY . ”

“ He did not take it , says ORG , ORG did not chuck him MONEY for assistance in the sale of medicines either , and MONEY for an MP 's inquiry is unheard of . ”

“ Thus , nominally these forces are ORG 's allies , but effectively they consider him a serf . And serfs need to be reminded from which barn they originate , so that they do not put on airs and are obedient . ”

On DATE the ORG found for the claimant . The court held :

“ ... [ T]he article PERSON and GPE as a whole , as well as particular phrases and words ( the subject of the dispute ) in it , are strongly indicative of a negative judgment and contain direct emotional judgments which constitute insulting attacks and indirect judgments .

... [ T]he [ first ] assertion as such , in the context of the article , is insulting , and damaging to the honour and dignity of the claimant and ... to his reputation . The defendant failed to prove the contrary . The claim is well - founded .

... The author ironically uses [ slang words ] in the [ second ] assertion so as to give it a cynical , insulting character and describes the claimant in negative terms . The assertion is beyond the limits of civilised communication and is in breach of moral standards . Accordingly , the claimant 's assertion ... concerning the disparaging character of the above quotation is well - founded .

... The [ third ] assertion has an emotionally expressive tone of contempt and humiliation and presents the [ MP ] to the readers in a negative light , as a person capable of doing bad things for society . If used metaphorically , the words are disapproving in tone . The claimant has grounds to perceive the assertions as insulting and slanderous . The court considers this information damaging to the honour , dignity and reputation of the claimant . ”

The court held the applicant liable for RUR CARDINAL,CARDINAL in respect of non - pecuniary damage sustained by the claimant . The applicant was also ordered to provide Mr GPE with an opportunity to publish his response in LOC . NORP The applicant appealed .

On DATE ORG reversed the judgment in the part relating to the publication of the claimant 's response in LOC and upheld it in the remaining part . The court found that since Mr PERSON had not applied directly to LOC for the publication of the response within DATE of the publication of the defaming information , under LAW and DATE of the Law on ORG he was estopped from applying to a court in this respect . The court further held :

“ On the basis of the evidence described in the judgment the [ first - instance ] court reached the correct conclusion that the assertions at issue did not correspond to the truth and discredited the honour , dignity and reputation of the claimant . ”

Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .

Article CARDINAL provides that an individual may apply to a court with a request for the rectification of information ( сведения ) that is damaging to his honour , dignity or professional reputation unless the disseminator of that information proves that it “ corresponds to reality ” ( Paragraph CARDINAL ) . The defamatory information must be refuted in the same media source that disseminated it ( Paragraph CARDINAL ) . The aggrieved person also has a right to publish a response in the same media source ( Paragraph CARDINAL ) . He may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of the information ( Paragraph CARDINAL ) .

Under LAW of the Law on ORG no . PERSON of CARDINAL DATE a media source may refuse to publish a response to defamatory information if the aggrieved person did not apply for the publication of the response within DATE of the publication of the defamatory information . Under LAW a refusal to publish a response may be appealed against to a court within DATE of the publication of the defamatory information .

The ORG ( in force at the material time ) provided that , in order to be considered damaging , information ( сведения ) had to be untrue and contain allegations of a breach of laws or moral principles ( commission of a dishonest act , improper behaviour at the workplace or in everyday life , etc . ) . Dissemination of such information was understood as the publication of the information or its broadcasting , inclusion in professional references , public speeches , applications to ORG officials and communication in other forms , including oral , to CARDINAL other person ( Section CARDINAL ) . The burden of proof was on the defendant to show that the disseminated information had been true and accurate ( Section CARDINAL ) .


No violation of Art. 3;No violation of Art. 8;No violation of Art. 13

The applicant is a schizophrenic suffering from a psychotic illness . He appears to have experienced the first symptoms in DATE . When he first came to the attention of the mental health services , his condition was so severe that consideration was given to detaining him compulsorily in a psychiatric hospital . However , this turned out to be unnecessary as he responded sufficiently to treatment and his illness has been successfully managed . At DATE , he was admitted to hospital for DATE following a minor relapse which his psychiatrist attributed in part to side effects from his previous medication . His antipsychotic medication was changed from sulpiride to olanzapine .

Schizophrenia is an illness or group of illnesses affecting language , planning , emotion , perceptions and movement . “ Positive symptoms ” often accompany acute psychotic episodes ( including delusions , hallucinations , disordered or fragmented thinking and catatonic movements ) . “ Negative symptoms ” , associated with long - term illness , include feelings of emotional numbness , difficulty in communicating with others , lack of motivation and inability to care about or cope with everyday tasks .

The applicant arrived in GPE as a visitor on DATE and was granted DATE leave to remain , which was extended until DATE because he was undertaking studies . In DATE an out - of - time application for a further extension was rejected and in DATE he was requested to leave .

On DATE the applicant married PERSON , a GPE citizen . On DATE he applied for leave to remain on account of his marriage . He was granted leave to remain on that basis until DATE . On DATE he applied for indefinite leave to remain as a foreign spouse . This was refused on DATE . On DATE the applicant made further representations and on CARDINAL DATE he was granted indefinite leave to remain as a foreign spouse .

On DATE the applicant left GPE to visit GPE . As a result , his indefinite leave to remain lapsed . He returned to GPE on DATE and sought leave to enter as a returning resident . The immigration officer , whose suspicions were aroused about the subsistence of the marriage on which leave to remain had been obtained , granted him temporary admission pending further enquiries . On DATE the immigration authorities decided to refuse leave to enter on the ground that indefinite leave to remain had been obtained by deception , the marriage being one of convenience . He was given notice of intention to remove him from GPE . He was only entitled to appeal against the basis of that decision after leaving GPE . The applicant sought deferral of the removal directions on the basis of his medical condition . The Secretary of ORG refused to defer the directions .

On DATE the applicant applied for judicial review of the proposed expulsion on the grounds that it would cause him a full relapse in his mental health problems and would amount to inhuman and degrading treatment , contrary to LAW . By a letter of DATE , the Secretary of ORG gave detailed reasons for his decision .

On DATE ORG refused the applicant leave to apply for judicial review . The applicant renewed his application before ORG .

The applicant made further representations about his medical condition , which were considered by the Secretary of ORG and rejected in letters dated DATE .

On DATE ORG adjourned the application to enable the Government to reconsider their position in the light of further material submitted by the applicant . It suggested that the Government might wish to obtain their own medical examination of the applicant .

DATE the Government indicated that they did not wish to have the applicant medically examined . They submitted that there was a hospital in GPE which provided treatment “ not solely to those who have committed crimes ” and which could admit the applicant and administer the medication which the Government understood the applicant to be receiving . The hospital was situated at GPE , DATE to QUANTITY from the applicant 's village of GPE . In a letter dated DATE , the immigration authorities stated , inter alia , that , as advised by ORG , there was at that time no particular danger in travelling between GPE and PERSON . As regards the applicant 's state of health , they stated that they would only remove the applicant if he was certified as fit to travel , and he would be accompanied by medical personnel during the journey . As medication and treatment would be available to him in GPE , it was concluded that his circumstances were not so exceptional or compelling that he should be granted entry .

The applicant obtained opinions from his psychiatrist as to the likely effect of his removal to GPE . In a letter dated DATE , Dr PERSON stated that there was a high risk that the applicant would suffer a relapse of psychotic symptoms on being returned to GPE . The requirement to undertake regularly an arduous journey through a troubled region would make the risk still greater . She pointed out that when individuals with psychotic illnesses relapse , they commonly have great difficulty in being sufficiently organised to seek help for themselves or to travel . For this reason , it was necessary for the management of such illnesses to be local and readily accessible . It was therefore very unlikely in these circumstances that any relapse of the applicant would be effectively treated . In a supplementary report of DATE , PERSON stated that any suffering which might accompany a relapse would be likely to be substantial . When the applicant 's illness had been severe , he had lost all insight into the fact that he was ill and believed the persecutory delusions and abuse which he experienced , including voices telling him to harm other people . He had previously felt sufficiently depressed and hopeless to contemplate suicide .

The applicant also obtained opinions from PERSON , Deputy Director of ORG as to conditions in GPE . In a letter of DATE , PERSON stated that the area in which GPE and PERSON were situated had been a focus of terrorist violence and terrorist action since DATE .

Following further adjournments requested by the Government , the matter came before ORG on DATE . The court dismissed the applicant 's appeal . In giving his judgment , with which the CARDINAL other judges concurred , Lord Justice PERSON referred to the evidence from the Government relating to the possibilities of treatment and to their view that there was no particular danger in travelling along the main road between GPE and PERSON by DATE . He referred also to the evidence from the applicant with respect to the risk of relapse , the inadequacy of the alleged facilities and the state of disorder and violence which was alleged severely to compromise his ability to travel for regular treatment . He concluded , however , that matters of that sort were for the judgment of the Secretary of ORG :

“ It is not for this ORG to take the decision as to whether the applicant should in all the circumstances be removed to GPE . It is for this Court to review in appropriate cases the decision of the Secretary of ORG on well - known grounds and the limitations imposed on the ORG are well - established . [ Counsel for the applicant ] , of course , is submitting that the facts as disclosed in the evidence filed on behalf of the applicant show that the decision is unreasonable in a ORG sense and/or constitutes a breach of LAW . However , it has to be said that the letters from the Chief Immigration Officer answer , it seems to me , with particularity each of the points which is made on behalf of the applicant . It is not for us to judge where the truth lies , for example , between the account of PERSON [ Deputy Director of ORG ] on the one hand and the account on which the Secretary of ORG has based his view on the other as to the situation obtaining in the area between GPE and PERSON . What would have to be established if this application were to stand any chance of success would be that the decision of the Secretary of ORG in the light of the information available was so unreasonable that no reasonable Secretary of ORG could have come to it . For my part , I see no prospect of a ORG being persuaded , if leave were granted , that that was the position . Moreover it is clear from the letter of CARDINAL July that quite exceptional steps are intended to be taken by the Secretary of ORG to endeavour that the applicant is adequately cared for on the journey and on his arrival , and , finally , I observe that it has twice been reiterated that his case will be reviewed in respect of the situation in GPE and also no doubt in respect of his current state of health before any removal directions are put into effect . ... while this is obviously a case which must have occasioned the Secretary of ORG considerable thought and which poses difficult decisions , he has taken decisions on the basis of information available to him and given a full and detailed explanation of his reasons . I see no prospect whatever of the ORG being persuaded that his decision is in the circumstances so unreasonable that no reasonable Secretary of ORG could have reached it . ”

Removal directions were set for DATE .

The applicant 's home village is GPE . His parents live there , as do CARDINAL of his brothers and a sister . His father is retired and lives on his pension . He has a CARDINAL - bedroom house . None of the family has a car . The nearest hospital with facilities for treating mental illness is PERSON in GPE , QUANTITY away . The Government have provided a letter dated DATE from Professor PERSON , a senior psychiatrist at that hospital , indicating that the hospital CARDINAL beds catering for persons committed in the context of criminal acts and CARDINAL beds for persons referred administratively . He stated that the drug olanzapine was available in GPE and could be prescribed in hospital pharmacies . Medical treatment , including drugs , was provided free to persons treated at the hospital .

In a further opinion dated DATE sought by the immigration authorities with the applicant 's consent , PERSON reported that , when seen in DATE , the applicant showed some signs of deterioration , with his auditory hallucinations having become more intrusive and with thoughts about harming himself and voices telling him to harm himself ( “ positive symptoms ” ) . He had been unable to sleep because of this . His olanzapine had been increased and he had responded to this . However , he continued to have considerable difficulty with motivation and social withdrawal ( “ negative symptoms ” ) . The applicant 's mental illness was likely to be a long - term one . She would expect that he would continue to have positive symptoms , which would persist and could worsen , although controlled to a substantial degree by olanzapine . At times , he might require urgent help with these symptoms . There had been a significant deterioration in his level of social functioning probably due to negative symptoms and which was likely to be significantly handicapping in DATE . With continuing medication and support from the mental health services , however , he would be likely to remain at the same level and not require very long periods of institutionalisation . Nor was he at a very serious risk of suicide . She stated , however , that if the applicant were to be returned to GPE she would be more uncertain of the prognosis . She thought it was

“ highly likely that stressful life events such as deportation together with the more stressful environment he would be likely to encounter in GPE would trigger exacerbation of his symptoms as occurred on his last visit to GPE . ... his fearfulness when unwell and also the motivational difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell . ... If he were unable to obtain appropriate help , if he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling himself to harm himself or others ... Thus I do think that there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect . ”

She further advised that any change in medication from olanzapine to sulpiride would create a risk of deterioration in his negative symptoms and diminish the control of the positive symptoms .

Subject to exceptions , persons who are not GPE citizens may not enter or remain in the GPE unless given leave to do so . The grant of leave may be for a limited or indefinite period . Leave to enter is granted by immigration officers . Leave to remain is granted by the Secretary of ORG .

NORP The Secretary of ORG makes rules concerning the practice to be followed in applying LAW DATE . The rules concerning the admission and residence of spouses provide that indefinite leave to remain as a foreign spouse requires , inter alia , that the marriage be still subsisting .

Where there has been a refusal of leave to enter , there is a right of appeal under LAW of LAW DATE to an adjudicator . However , this appeal can not be exercised until the applicant has left GPE .

Persons seeking to enter GPE for medical treatment must show that they can maintain and accommodate themselves without recourse to public funds . The Secretary of ORG retains a power to grant leave to enter outside ORG , known as “ exceptional leave ” . The policy statement entitled “ Exceptional Leave ” ( DATE ) , although it applied to asylum - seekers , reflects the approach taken by the Secretary of ORG in this case :

“ CARDINAL . Eligibility criteria

ELE / R [ exceptional leave to enter or remain ] must be granted to asylum applicants if they fall under the following criteria

– where the DATE LAW requirements are not met in the individual case but return to the country of origin would result in the applicant being subjected to torture or other cruel , inhuman or degrading treatment or where the removal would result in an unjustifiable break up of family life . For example ...

– where there is credible medical evidence that return , due to the medical facilities in the country concerned , would reduce the applicant 's life expectancy and subject him to acute physical and mental suffering , in circumstances where the GPE can be regarded as having assumed responsibility for his care . In cases of doubt , a second opinion should be sought from a credible source . ...

Disqualifying criteria

A person should never be disqualified from ORG / R if there are substantial reasons for believing that he or she would be tortured or otherwise subjected to inhuman or degrading treatment if they were to be returned to their country of origin ... ”

Decisions of the Home Secretary to refuse asylum , to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of NORP public law .

These principles do not permit the courts to make findings of fact on matters within the jurisdiction of the Secretary of ORG or to substitute their discretion for the minister 's . The courts may quash his decision only if he has failed to interpret or apply LANGUAGE law correctly , if he failed to take account of issues which he was required by law to address , or if his decision was so irrational or perverse that no reasonable Secretary of ORG could have made it ( ORG v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) .

In the recent case of NORP v. Home Secretary , ex parte PERSON ( DATE ) concerning the Secretary of ORG 's refusal of asylum to a young male NORP draft evader , Lord Justice PERSON , in ORG judgment , stated as follows :

“ I therefore conclude that the domestic court 's obligation on an irrationality challenge in an LAW case is to subject the Secretary of ORG 's decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of ORG . Only if it does will the challenge succeed .

All that said , however , this is not an area in which the ORG will pay any especial deference to the Secretary of ORG 's conclusion on the facts . In the first place , the human right involved here DATE the right not to be exposed to a real risk of LAW treatment DATE is both absolute and fundamental : it is not a qualified right requiring a balance to be struck with some competing social need . Secondly , the ORG here is hardly less well placed than the Secretary of ORG himself to evaluate the risk once the relevant material is before it . Thirdly , whilst I would reject the applicant 's contention that the Secretary of ORG has knowingly misrepresented the evidence or shut his eyes to the true position , we must , I think , recognise at least the possibility that he has ( even if unconsciously ) tended to depreciate the evidence of risk and , throughout the protracted decision - making process , may have tended also to rationalise the further material adduced so as to maintain his pre - existing stance rather than reassess the position with an open mind . In circumstances such as these , what has been called the ' discretionary area of judgment ' DATE the area of judgment within which the ORG should defer to the Secretary of ORG as the person primarily entrusted with the decision on the applicant 's removal ... DATE is decidedly a narrow one . ”


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial awards (global) and Government to return the plot of land;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed

The applicants , all siblings , were born in DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE and GPE , GPE .

During the communist regime several plots of land and CARDINAL shops owned by the applicants’ father were confiscated by the authorities without payment of compensation . The property , measuring in total CARDINAL sq . m ( the land ) and QUANTITY . m ( the shops ) ( “ the relevant property ” ) , was situated in the GPE region .

On an unspecified date the applicants lodged an application with the ORG ( GPE i GPE dhe PERSON Pronave – “ the Commission ” ) under LAW , seeking to have the relevant property returned to them .

On DATE and DATE , respectively ORG upheld the ORG title as joint owners of CARDINAL shops and a plot of land measuring QUANTITY m. Not being able to restore the relevant property in its entirety , the Commission ruled that QUANTITY . m of the relevant property was to be returned to the applicants and that they were entitled to compensation , under LAW , in respect of the remaining QUANTITY . m of land and the shops . Moreover , it decided not to rule on the adjacent plot of land measuring QUANTITY m , since agricultural property was outside its jurisdiction : rather ORG was the competent body pursuant to LAW ( Law no . DATE of DATE ) .

On an unspecified date , in compliance with ORG decision of DATE , the applicants took possession of the plot of land measuring QUANTITY m.

Notwithstanding the ORG requests , to date , the authorities have failed to comply with the parts of the ORG ’s decisions of CARDINAL DATE and DATE relating to the payment of compensation in respect of the shops and the plot of land measuring QUANTITY m.

On an unspecified date the applicants lodged an application with ORG ( “ the ORG ” ) , attached to GPE , claiming property rights in respect of the plot of land measuring QUANTITY m.

On DATE ORG upheld the property claims of the applicants Sh . ORG , PERSON and PERSON ( “ the first CARDINAL applicants ” ) and dismissed those of the applicants PERSON . PERSON , PERSON and PERSON ( “ the last CARDINAL applicants ” ) on the ground that the latter were not eligible to claim property rights over agricultural land , in so far as they were not resident in the area where the land was located .

The first CARDINAL applicants entered their ownership of the property in ORG . According to the ownership certificates , the ORG titles nos . CARDINAL , FAC and CARDINAL corresponded to the plots of land registered in the ORG as nos . CARDINAL , CARDINAL respectively .

On DATE ORG , further to a request by ORG , declared the first CARDINAL applicants’ titles void on the basis that the decision of CARDINAL DATE conflicted with substantive laws .

On DATE the first CARDINAL applicants initiated proceedings in ORG , claiming property rights over the relevant property .

On DATE ORG annulled ORG decision of DATE and ordered ORG to examine de novo the first CARDINAL ORG claim to be given title to the plot of land measuring CARDINAL,CARDINALsq.m . The judgment became final at the latest on DATE .

On an unspecified date ORG issued a writ for the enforcement of the judgment of DATE .

On DATE , by letter no . CARDINAL , ORG ordered the GPE to comply with ORG decision of CARDINAL DATE .

On DATE , by decision no . CARDINAL , GPE held that it had no jurisdiction to enforce the decision on the ground that ORG , which would originally have had jurisdiction , had been dissolved pursuant to the Instruction of CARDINAL DATE by the city ’s mayor .

On DATE , the newly established ORG , in compliance with ORG judgment of DATE , upheld the validity of the first CARDINAL ORG titles nos . CARDINAL , FAC and CARDINAL .

The applicants maintained that the property issue was still unresolved since the local authorities had transferred the above - mentioned plots of land to third parties , so that the Commission decision was thus ineffective in practice . Entries in ORG indicate that the plots of land registered as ORG . CARDINAL and CARDINAL/CARDINAL ( corresponding to the ORG titles nos . CARDINAL , FAC ) are currently owned by third parties and the applicants maintained that third parties had built on the third plot of land corresponding to title no . CARDINAL . The ORG maintained that the applicants had failed to register their title to the relevant property in ORG in order to take possession of the property in question and did not comment on the applicants’ submission concerning the transfer of the property to third parties .

The NORP LAW , in so far as relevant , reads as follows :

“ CARDINAL . The right of private property is protected by law CARDINAL . Property may be acquired by gift , inheritance , purchase , or any other ordinary means provided by LAW . CARDINAL . The law may provide for expropriations or limitations in the exercise of a property right only in the public interest . CARDINAL . The expropriations or limitations of a property right that are equivalent to expropriation are permitted only against fair compensation . CARDINAL . A complaint may be filed in court to resolve disputes regarding the amount / extent of compensation due . ”

“ In the protection of his constitutional and legal rights , freedoms and interests , and in defence of a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

“ State bodies shall comply with judicial decisions . ”

“ The Constitutional Court shall decide : ... ( f ) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

“ CARDINAL . Within DATE from the date when this LAW enters into force , The ORG , guided by the criteria of article CARDINAL , shall issue laws for the just resolution of different issues related to expropriations and confiscations done before the approval of this LAW ;

Laws and other normative acts that relate to the expropriations and confiscations , adopted before the entry into force of this LAW , shall be applied provided they are compatible with the latter . ”

ORG ( GPE për kthimin dhe kompensimin e pronës ) underwent several amendments during DATE . The main changes to LAW of DATE came about as a result of CARDINAL laws which entered into force respectively in DATE and DATE . Thus , hereinafter they will be referred to as the “ LAW DATE ” , the “ Property Act DATE ” and the “ Property Act CARDINAL ” , respectively .

The relevant provisions of each of these laws are abridged as follows :

According to the Act of DATE the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim the ownership over the original properties . Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in kind ( in a maximum of QUANTITY . m ) or in value if CARDINAL of the following conditions was met : the alleged property ( CARDINAL ) was pasture , meadow , forestry land , or agricultural or non - agricultural land ; ( CARDINAL ) was not subject to PERSON no . CARDINAL of DATE ; ( CARDINAL ) was currently ORG - owned ; ( CARDINAL ) had been designated as suitable for construction and is situated within the boundaries of a city .

Section CARDINAL of the Act provided for the following forms of compensation in respect of property which could not be restituted : ( a ) State bonds , equivalent to the compensation owed , and with a first option of acquiring shares in ORG enterprises being privatised by the ORG or in other activities carried out through the granting of loans ; ( b ) an equivalent plot of land or building site near to an urban area , in accordance with the general urban - development regulations ; and ( c ) an equivalent plot of land in a tourist zone , in accordance with the general urban - development regulations .

ORG had the authority to define detailed rules for determining the methods and time - limits for such compensation to take place .

NORP Moreover , the DATE Act instituted the Commission on Restitution and Compensation of Properties ( GPE i GPE dhe PERSON ) as the competent administrative body to deal with former ORG restitution and compensation of property claims . However , it omitted to provide a time - limit within which a decision could be appealed , thus preventing it from even becoming binding .

LAW enacted in DATE , repealing the previous one , provided for CARDINAL forms of restitution of immovable properties , namely the return , under certain circumstances , of the original property and compensation in the event of the impossibility for the authorities to return the original property . The restitution was not limited in size . The LAW provided for CARDINAL forms of compensation : ( a ) property of the same kind ; ( b ) property of any other kind ; ( c ) shares in ORG - owned companies ; ( d ) the value of a ORG - owned property in the privatisation process , and ( e ) a sum of money corresponding to the value attributed to the property at the time of the decision ( section CARDINAL ) . The Act instituted ORG ( PERSON per GPE dhe GPE e Pronave ) , composed of CARDINAL members elected by ORG . Its role was to decide on the lawfulness of district GPE decisions on restitution and compensation claims ( sections DATE ) . ORG was to establish the rules and the criteria of these ( sections CARDINAL ) .

Section CARDINAL provided for the enforcement of the decisions awarding compensation within DATE of DATE . On its entry into force , persons entitled to claim restitution or compensation had to lodge applications with ORG by DATE . The LAW granted the ORG discretion to decide which form of compensation should be granted , but applicants could express in writing their preferred type of compensation . ORG decision could be appealed to ORG ( section CARDINAL ) and to the district courts within DATE of the date of issue of the ORG ’s decision .

On DATE ORG adopted an LAW , setting down the method by which immovable property would be valued for compensation purposes . Its implementation was left to ORG for the Compensation and ORG , which was to issue the appropriate maps for the GPE valuation .

NORP In order to comply with the GPE decisions awarding pecuniary compensation , section CARDINAL of the CARDINAL Act provided for the establishment of a DATE ORG , whose aim was to provide financial support for such awards . LAW was examined by both the LAW and ORG .

On DATE ORG , concluded that LAW had no retroactive effect and that its provisions , could therefore , not have any impact on property rights recognised by administrative or court decisions given before its entry into force .

On DATE Property Act of DATE was amended by means of LAW which entered into force on DATE . It provided , inter alia , for the establishment of the Agency for ORG , a new body competent to decide restitution and compensation claims ( section CARDINAL ) . The new law repealed sections CARDINAL § CARDINAL ; DATE and DATE of the previous law which , inter alia , provided for the procedure for the enforcement of decisions that awarded compensation .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

By a decision of CARDINAL DATE ORG in GPE awarded a pension to the applicant . It was to be paid to him for a period beginning on DATE .

Under the applicable provisions of domestic law , ORG was competent to make payments to the applicant , but it failed to do so . In a letter to the ORG dated DATE , the Director of ORG confirmed the applicant ’s entitlement to a military pension .

As ORG still refused to make payments , apparently considering that the DATE decision was not in conformity with the law , the applicant lodged an action with ORG on DATE , complaining about the ORG ’s failure to pay . In its pleadings , the ORG argued that the decision had been given in breach of substantive provisions of the applicable social insurance laws . It further indicated that it had informed ORG about its doubts as to the lawfulness of the decision . Subsequently , the ORG had summoned the applicant to undergo an additional medical examination . As the applicant had failed to comply with the summons , payment of a part of his pension had been stayed with effect from CARDINAL DATE .

By a judgment of DATE the court allowed the applicant ’s action . It ordered ORG to pay the amount of pension due for the period from DATE to CARDINAL DATE . It noted the decision staying payment of the applicant ’s pension . However , it stressed that the decision given on DATE had not been appealed against and , as a result , had become final . The ORG was therefore bound by it . There were no grounds for not paying the applicant the amounts due for DATE . The court was not competent to reexamine the lawfulness of the DATE decision in the proceedings before it .

The Military Pensions Office appealed . It reiterated that , in its view , the DATE decision had not been in compliance with the substantive law .

On DATE ORG upheld the judgment , finding that the first - instance court had correctly found that it had not been empowered to re - examine the lawfulness of the DATE decision . It further reiterated that this decision had to be complied with by ORG .

On DATE the applicant reiterated his request to have the amounts due paid to him , but to no avail . Subsequently , ORG lodged a cassation appeal against this judgment with ORG .

On DATE the applicant complained to ORG and to the Prime Minister about the ORG ’s failure to pay him the pension .

By a decision of CARDINAL DATE ORG dismissed the appeal lodged by the ORG , finding that it had failed to comply with the relevant procedural requirements .

NORP In DATE ORG paid the applicant the amounts in arrears together with statutory interest .

Under LAW , as applicable at the material time , judgments of the second - instance courts were immediately enforceable .


Violation of P1-1;Not necessary to examine merits of remainder of complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , CARDINAL , DATE , DATE and DATE respectively . They were employed by the construction company ORG ( hereinafter “ the company ” ) DATE and DATE on a time - wage basis .

The company , being a member of the ORG , was bound by a collective labour agreement , ORG ( ORG ) , concluded between LOC ( ORG , hereinafter “ the Union ” ) and the ORG . The relevant local branch of the ORG in the instant case was the GPE branch , ORG .

At the material time , CARDINAL employees in the company carried out work covered by the labour agreement . CARDINAL of these workers were members of the Union whereas the CARDINAL applicants were not members of the ORG or of any other trade union .

Under LAW , subsection f CARDINAL of the collective agreement , as it stood at the relevant time , the local branch had the right to inspect on a continuous basis wage conditions by measuring piecework ( ackordsarbete ) and result work ( resultatarbete ) , as well as monitoring time - based work ( tidlönearbete ) . If inspections were carried out in accordance with the collective agreement , the local branch had the right to reimbursement of the costs involved on the basis of a fee of PERCENT of the worker ’s wages . The employer was obliged to deduct this amount from the worker ’s wages and to supply the local branch with the information necessary for the inspection work .

On DATE ORG concluded an accord pursuant to which a worker organised in a trade union other than the Union could request his or her employer not to deduct the inspection fee , with the result that the ORG would no longer have the right to request either information or the payment of a fee in respect of that worker . In a subsequent dispute between the ORG and the ORG over the interpretation of the accord , an out - of - court settlement was reached on DATE to the effect that it applied to all workers belonging to a trade union other than the Union .

On CARDINAL DATE the company and ORG concluded an agreement concerning the inspection work . The agreement gave details of the work and specified , inter alia , that it was the company ’s responsibility to provide ORG with the wage information and to deduct fees from the wages of the workers and pay them to ORG CARDINAL times a year . The information was to include the place of work , the names and social security numbers of the workers and TIME and net wages .

The applicants requested to be exempt from the deductions , which in their case concerned fees for monitoring the wages for TIME work . The company complied with their requests , stopped paying the fees to ORG and did not provide it with the above - mentioned wage information concerning the applicants . ORG insisted on payment and initiated formal local negotiations . These were held on DATE and DATE . However , no solution was reached , either in the local negotiations or in the subsequent central negotiations between ORG .

The ORG eventually brought the case before ORG ) , seeking a declaratory judgment to the effect that the company was not obliged to levy the monitoring fees in question . It argued that the inspection of wages , in so far as it did not concern the technical measuring of piecework , aimed at securing the observance of the provisions of the collective labour agreement and was therefore part of the general activities of the Union . Moreover , the DATE and DATE reports of ORG allegedly showed that the inspection fees greatly exceeded the costs of the work and that the surplus was used for general union activities . Consequently , the corresponding deductions from the applicants’ wages were tantamount to forced union membership or , at least , involved an unacceptable compulsion to join the ORG or another trade union . The conduct thus violated their negative freedom of association under LAW as well as under domestic law . Furthermore , since the applicants did not share the political values of the Union , the levy on their wages also violated their rights under LAW .

CARDINAL of the applicants , Mr Evaldsson and Mr Hodell , were heard by ORG . They submitted that they opposed the deductions because they did not think that the monitoring work was of any use to them and considered the deductions an unnecessary expense . Allegedly , they also submitted that they felt that the deductions were unjust .

The Union disagreed with the ORG , arguing that the monitoring fees could not be seen as tantamount to forced membership of the ORG , such membership being secured through the payment of a separate membership fee . The system of monitoring fees did not involve a compulsion to join a trade union . Moreover , the applicants had not expressed any ideological reasons for their unwillingness to contribute to the monitoring work . The ORG claimed that , contrary to the ORG allegation , the DATE and DATE reports of ORG showed that the proceeds of that work had not contributed to general union activities but that , in fact , the monitoring had been run at a loss . Furthermore , the inspection work was strictly separated , economically and otherwise , from the other activities of ORG . Finally , arguing that the positive aspect of the freedom of association under LAW was stronger than its negative counterpart , the ORG claimed that a ban on the levying of monitoring fees on unorganised workers’ wages would violate the positive rights of its members , as this could induce members to leave the ORG in order to avoid paying the fees .

By a judgment of DATE , ORG rejected the ORG claims . It referred to several of its previous judgments concerning various types of measurement and monitoring fees . In a case from DATE ( DATE nr CARDINAL ) , the court had found that the monitoring of time - based wages was wholly different from the measuring of piecework , as no special action had to be taken to establish the amount and type of work performed . Instead , the inspection of time - based wages rather aimed at securing the observance of the collective labour agreement and also served as a basis for the statistics used by the Union in wage negotiations with the employers . Consequently , the monitoring benefited the general union activities and the fees contributed financially to those activities . The court had therefore concluded that the levying of fees on the wages of members of ORG for monitoring work carried out by another trade union involved a violation of those worker ’s positive freedom of association , as they would have to resign from their own organisation in order to avoid contributing to both organisations .

ORG stated that there was no reason to come to a different conclusion in the instant case as to the nature of the monitoring work . Thus , from the point of view of association law , there was no reason to distinguish between monitoring work and general union activities . Having reached that conclusion , the court found no reason to determine whether the monitoring fees generated a surplus which contributed to other union activities .

However , the situation in the instant case was different from the DATE case in that the applicants were not subjected to pressure to leave their organisation . Instead , the question was to what extent they were protected by a right to negative freedom of association . ORG noted that the negative freedom of association under domestic law was exclusively based on the Convention . It referred to ORG case - law and drew the conclusion that only the core of the negative freedom of association was protected under LAW , meaning that a person must have been subjected to a certain measure of force or at least strong pressure to join an organisation in order to give rise to a violation of LAW .

ORG initially concluded that the monitoring fee deductions did not entail membership of the ORG and that no pressure had been exerted to compel the applicants to join the ORG against their will .

It further found that the fact that the applicants , through payment of the monitoring fee , indirectly supported the activities of the Union did not in itself amount to forced membership , since being a member of the ORG also entailed certain other duties , such as loyalty to its objectives and payment of a membership fee . The situation would have been different if the applicants would to some extent have been associated with the ORG ’s ideology as a result of the monitoring fee deductions . However , the fee in issue was deducted in accordance with their employer ’s obligations under the collective labour agreement , and it was , accordingly , difficult to see a link with the ORG ’s ideology . In this connection , the court also referred to the evidence given before it by PERSON and PERSON . While it questioned whether the grounds for their position in the case could have a bearing on their negative freedom of association , the court nevertheless found that there was no indication that they opposed the deduction of the fees because they took exception to union activities in general or to the ideology of the Union .

ORG went on to state that , while the applicants , through the fee deductions , contributed to the general activities of the Union , they were not treated any differently from ORG members as concerns the monitoring . In order to monitor the observance of the collective labour agreement , the work was carried out with respect to all employees affected by the agreement , whether belonging to a trade union or not . Noting that it could appear offensive to an unorganised worker to have to contribute to the work , the court stated that it was not without importance that the unorganised worker in fact obtained something in return for the fee paid .

ORG further noted that , theoretically , the applicants could be inclined to join a trade union other than the Union in order to avoid the wage deduction for the monitoring fee . It found , however , that it was not very realistic that an employee would regard the wage deduction as a particular incentive to do so .

ORG concluded that all the above considerations indicated that the deductions did not breach the applicants’ rights under LAW . As to the main issue to be determined – whether the monitoring fee was intended as a measure to pressure them to join the Union – the court could not find that it had any such coercive effect . As the fee was not tantamount to forced membership of the Union and had not influenced or forced the applicants to join the Union , the company had been obliged to make a deduction from their wages in accordance with the collective labour agreement .

Freedom of association is guaranteed in the NORP constitution . LAW , LAW CARDINAL of ORG ( Regeringsformen ) provides in its relevant parts :

“ In relation to the public administration , every citizen is guaranteed :

freedom of expression : the freedom to communicate information and to express ideas , opinions and emotions whether orally , in writing , in pictorial representations or in any other way ; ...

freedom of association : the freedom to unite with others for public or private purposes ; ... ”

LAW , LAW protects , inter alia , the negative aspect of freedom of association . It reads :

“ In relation to the public administration , every citizen is protected against coercion to divulge an opinion in a political , religious , cultural or other such connection . In relation to the public administration , he is furthermore protected against coercion to participate in a meeting for the formation of opinion or in a demonstration or other manifestation of opinion , or to belong to a political association , religious congregation or other association for opinions referred to in the first sentence . ”

Section CARDINAL of the DATE Act on Co - Determination at Work ( Lag om medbestämmande i arbetslivet , SFS CARDINAL:CARDINAL , hereinafter “ the DATE LAW ) guarantees the right of employers and employees to form , belong to and work for labour market organisations . The right of association is further protected by LAW CARDINAL , which forbids any recourse to action against someone on the opposing side for having exercised this right or in order not to exercise it .

Section CARDINAL of the CARDINAL Act gives ORG and GPE organisations as well as individual employers a right of negotiation in regard to matters concerning the relationship between employers and employees . It does not provide for any right of negotiation for the individual employees , who are obliged to exercise their powers through the trade unions .

Under section CARDINAL of LAW , a collective labour agreement is binding not only on the employer ’s and employee ’s organisations but also on their members , i.e. companies and individual workers . Moreover , in practice , the collective agreement is also of significance for employees who are not trade union members in that it has a normative effect . This entails that the individual work contracts are considered to have the same contents as the collective agreement unless the parties to the contract have expressly agreed otherwise .

NORP Under section CARDINAL of LAW , an employer and an employee can not conclude a legally valid agreement which contradicts the collective agreement by which they are bound . This means that an agreement contradicting the collective agreement is automatically null and void . While contracts with less favourable conditions than the collective agreement are normally invalid , the validity of contracts with more favourable conditions depends on an interpretation of the agreement in question . As the instant provision formally only prohibits an employer from concluding contradictory contracts with members of the trade union which is party to the collective agreement , it is possible for the employer to conclude such contracts with employees who are not members of the relevant trade union . However , most collective agreements are based on the presumption that an employer does not have a right to conclude such contracts with non - member workers . Consequently , while the contracts in question remain valid , the employer may be liable to pay damages to the trade union .

Monitoring of wages for TIME work is conducted in a manner determined by the employer and the local union branch . It normally involves the examination of documents provided by the employer and personal visits by the union ’s representatives to the employer . If a mistake is discovered , clarifications or corrections can be made by telephone or letter . In some cases , formal negotiations are required .

Under the terms of ORG , the local union branch is entitled to a fee as compensation for the costs entailed by the monitoring work . The fee PERCENT of the employee ’s wages DATE is deducted by the employer from the wages of each individual worker .

According to the applicants , a member of the ORG pays MONEY ( SEK ) per year in monitoring fees in addition to the union membership fee of SEK CARDINAL,CARDINAL . The largest competing trade union , the ORG union , does not have a monitoring system . The ORG therefore has a de facto monopoly in this field .

The regulation regarding the monitoring of wages was incorporated in the DATE LAW . Previously , workers paid time - based wages had not been subjected to deductions for monitoring fees . According to the applicants , the purpose was that workers paid time - based wages , as an act of solidarity with workers carrying out piecework , should contribute to the whole inspection system . At the material time , the majority of the workers performed piecework , the measurement of which was costly and time - consuming . The fee for monitoring time - based wages was thus not primarily introduced as reimbursement for the service in question , but as a means of supporting the measurement of piecework wages .

DATE , PERCENT of workers are paid time - based wages , which is almost the opposite ratio compared to the situation in DATE . In general , the monitoring of wages is now computerised and based on information provided by the employer .

According to a statement of CARDINAL DATE by PERSON , former division manager at ORG , a review of the still existing audit material for DATE showed that , as a result of the monitoring work , wages had been adjusted upwards for CARDINAL workers , of which CARDINAL were not Union members .

The activities of ORG , the local union branch , are divided into CARDINAL parts : branch activities ( inter alia , wage negotiations , union agitation and political work ) and business activities ( i.e. the inspection work , comprised of the monitoring of time - based wages and the measurement of piecework ) . Branch or non - profit activities are to be paid for by means of union membership fees . Revenue from the business activities , which is subject to value - added tax , should cover the costs of such activities .

The parties have submitted various documents to the ORG containing information on the revenue and cost of the activities of ORG and the ORG branch . The following information has been compiled from these documents .

According to the DATE report for DATE , ORG had CARDINAL permanent employees ( CARDINAL officials and CARDINAL administrative personnel ) on DATE . Before ORG , ORG stated that the number of persons involved in inspection work ( monitoring and measuring ) during the period relevant to the present case , DATE , was the same as at DATE , and that the DATE report named CARDINAL officials who had been occupied with this activity . However , the DATE report CARDINAL , in addition to the head of the relevant department , CARDINAL officials who were dealing with such work , CARDINAL of whom had been doing so only until DATE . It thus appears that , during the relevant period , CARDINAL officials were involved in inspection work , i.e. PERCENT of the total number of officials . Incidentally , the DATE report for DATE indicates that , at DATE , the total workforce of ORG remained the same .

Byggettan ’s DATE reports for DATE contain statements of accounts where its business activities , i.e. the inspection work , are separated from its branch activities . According to the statement of accounts for DATE , ORG ’s branch activities showed a loss of MONEY , whereas the inspection work recorded a profit of MONEY . The total revenue from the inspection work amounted to MONEY , the operational and administrative costs of this sector of activity were SEK CARDINAL.CARDINAL million and the write - offs of movables came to SEK CARDINAL.CARDINAL million . Whereas it is shown , in a footnote to the statement of accounts , that , of the revenue from the inspection work , SEK CARDINAL.CARDINAL million derived from monitoring fees , there is no such differentiation as regards the costs .

However , in another footnote , information is provided on ORG ’s costs , which are given separately for the branch activities and the inspection work . The total costs for wages and remunerations in DATE amounted to MONEY , of which MONEY ( i.e. PERCENT ) were attributed to the inspection work . The total amount of pension payments was MONEY , of which MONEY ( or PERCENT ) were a burden on the latter activities . The remaining costs , including offices , travels , administration and social contributions , totalled MONEY , of which MONEY ( PERCENT ) were attributed to the inspection work .

In submissions by ORG to ORG and by the Government in the present proceedings , it has been claimed that the result of the inspection work has to be corrected to the extent that a reimbursement was received from the pension fund of ORG . In the statement of accounts for DATE , a reimbursement of MONEY was recorded for the inspection work . As this reimbursement in effect reduced the costs , the amount has to be deducted from the recorded profit of MONEY in order to arrive at the real financial result of the inspection work . Thus , in the ORG ’s view , the pension payments should be recorded as a cost , whereas the pension fund reimbursement should not be considered as revenue . Consequently , in DATE , that sector of activity was actually run at a loss of MONEY .

The applicants , however , disagree with the above calculation . They have stated that , throughout DATE , the branches of ORG have made contributions to the pension fund , whose accumulated assets are used to honour the ORG ’s pension commitments towards its retired personnel . Thus , when making pension payments , the ORG branches are not the actual payer but are making the payments on behalf of the pension fund , presumably because the fund does not have an administrative division of its own to handle such payments . Accordingly , the applicants claim that , when determining the actual DATE result of the inspection work , the pension transactions should only be taken into account to the extent that the fund reimbursements differ from the pension payments . In DATE , the reimbursement received by ORG exceeded the pension payments by MONEY . The financial result of DATE should thus be reduced by only that amount and the recorded profit of MONEY consequently remains virtually unchanged .

In the statements of accounts of ORG GPE branch for DATE , pension fund reimbursements have been recorded as revenue and pension payments as costs . Consequently , only the differences between reimbursements and payments have affected the DATE results .

The statements of accounts in the DATE reports of ORG for DATE , CARDINAL and DATE contain figures which give a picture similar to DATE . In DATE , the revenue from the inspection work was SEK CARDINAL.CARDINAL million ( of which the monitoring fees came to SEK CARDINAL.CARDINAL million ) and the recorded profit of that sector of activity amounted to FAC . ORG received a pension fund reimbursement of CARDINAL SEK CARDINAL.CARDINAL million . If the result is corrected with this amount , in the manner claimed by the ORG , the profit would turn into a loss of MONEY . However , the reimbursement exceeded the pension payments by QUANTITY . If pension transactions were altogether excluded from the calculation , as effectively suggested by the applicants , the profit would be halved and amount to SEK CARDINAL.CARDINAL million . PERCENT of the wage costs , PERCENT of the pension payments and PERCENT of the other costs of DATE were attributed to the inspection work .

In DATE , the inspection work revenue was MONEY ( of which the monitoring fees amounted to MONEY ) and the recorded profit was MONEY . A pension fund reimbursement of MONEY was received which , if allowed to correct the result in full , would change the latter into a loss of SEK CARDINAL.CARDINAL million . However , as the reimbursement exceeded the pension payments by MONEY , the profit would remain at MONEY if pension transactions were not taken into account . PERCENT of the wage costs , PERCENT of the pension payments and PERCENT of the other costs were attributed to the inspection work .

In DATE , the inspection work revenue was MONEY ( of which the monitoring fees came to MONEY ) and the recorded profit was MONEY . A pension fund reimbursement of MONEY was received which , if correcting the result , would reduce the profit to MONEY . However , as the reimbursement exceeded the pension payments by MONEY , the profit would be MONEY if pension transactions were not taken into account . PERCENT of the wage costs , PERCENT of the pension payments and PERCENT of the other costs were attributed to the inspection work .

NORP The budgets for DATE and DATE have been made available to the ORG by the parties .

In its budget for DATE , ORG estimated that the monitoring work would cost SEK CARDINAL.CARDINAL million and that the direct costs of the inspection unit ( dealing with both monitoring of time - based wages and measuring of piecework ) would amount to FAC . The projected revenue from the inspection work was SEK CARDINAL million . It thus appears that the costs of the monitoring work accounted for CARDINAL of the inspection costs . However , as can be seen from the above - mentioned figures presented in the DATE report for DATE ( see paragraph CARDINAL above ) , the monitoring fees’ share of the inspection revenue came to CARDINAL ( MONEY out of a recorded total of MONEY ) . That share was approximately the same in DATE , CARDINAL and DATE .

The budgets for DATE give the estimated total costs of the various units of ORG . In DATE , the total projected costs of all sectors of activity were SEK CARDINAL.CARDINAL million . The monitoring unit had a budget of FAC . million and the wages and contracts unit ( the largest unit of ORG , which , according to the description in the budget , was dealing with , inter alia , the measurement of piecework , wage negotiations and matters concerning workers’ co - determination , the work environment and safety ) had a budget of MONEY . It is not possible to discern , from the material available to the Court , how much of the latter unit ’s budgeted costs related to the measuring work . Furthermore , as an unknown portion of ORG ’s general administrative costs would presumably have to be attributed to monitoring and measuring , the total budgeted costs for the CARDINAL types of inspection work can not be established .

However , the costs of the inspection work according to the official results for DATE appear to be considerably higher than the budgeted costs for that activity . Thus , the statement of accounts for DATE attributes SEK CARDINAL in operational and administrative costs and write - offs to the inspection work , which corresponds to PERCENT of the grand total of MONEY . If , as claimed by the Government , an amount corresponding to that DATE ’s pension fund reimbursement is to be added as an actual cost , the official costs attributed to the inspection work rise to PERCENT of the total costs .

In the budget for DATE , the projected total costs of ORG were MONEY , while those pertaining to the monitoring unit and the wages and contracts unit were MONEY , respectively . DATE budget estimated the total costs at MONEY . Both the monitoring unit and the new wages unit ( responsible , inter alia , for measuring work ) had a budget of MONEY . In DATE , the budgeted total costs were MONEY and those pertaining to the monitoring unit and the wages unit were MONEY and CARDINAL , respectively .

A chart compiled by Mr PERSON , Deputy Head of Finance at the Union , and submitted to ORG , contains the results of the monitoring and measuring activities of all CARDINAL branches of the Union . According to the chart , ORG recorded a positive result in CARDINAL out of DATE presented and had an accumulated profit of MONEY during the period . If corrected with the reimbursements received from the pension fund , the accumulated profit would amount to MONEY . However , the chart shows a negative overall result for CARDINAL of the branches . As a consequence , the accumulated DATE result of the inspection work of all the branches of the Union was a loss of MONEY , or DATE if the result is corrected with the contributions made by the branches to the pension fund and the reimbursements received from that fund during DATE a loss of MONEY .

It should be noted that the chart in question does not provide any information on the actual pension payments made by the ORG branches , nor how the DATE costs had been assigned between the inspection work and the GPE other activities . The statements of accounts of the GPE branch for DATE show , however , that that branch allocated the costs in much the same way as ORG .

NORP In a statement of DATE , made in regard to the present case and submitted to ORG , Mr PERSON gave the following information on the monitoring activities of ORG in DATE . A total of QUANTITY was deducted from the wages of workers working for employers bound by ORG . The total costs of the monitoring work were MONEY . A large part of the costs was financed by the employers themselves and not by means of deductions from workers’ wages .

In the ORG ’s periodical , ORG , issue no . CARDINAL/CARDINAL ( published on DATE ) , Mr PERSON stated that the ORG had a relatively low membership fee compared to other major trade unions because the monitoring and measuring fees bore the cost of the organisation of negotiations .