Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

ORG On DATE the ORG daughter , PERSON , who was then DATE , was admitted to ORG for an operation on a whitlow on her left thumb .

On DATE , she was transferred to the surgical ward of ORG ( FAC CHRN " ) at FAC , where she had a second operation DATE . For DATE she received periodical treatment there and underwent surgery CARDINAL times in the form of repeat operations and skin grafts , and an arteriovascular examination .

Owing to an infection discovered in DATE , Miss PERSON was operated on again and DATE the second phalanx of her thumb was removed .

ORG On DATE , having contracted jaundice , Miss PERSON was transferred to the gastroenterology department of ORG ( CHRN ) at Vand÷uvre - lès - PERSON . Her condition deteriorated and she fell into a hepatic coma . On DATE she was transferred to the department for infectious diseases and neuro - respiratory intensive care , where she died DATE .

ORG The surgical operations referred to above and the arterio - vascular examination Miss PERSON underwent were carried out under a general anaesthetic . On each occasion a varying combination of CARDINAL different drugs was used which always included halothane .

Mr and PERSON were convinced that their daughter ’s death had been caused by excessive administration of halothane and applied to the administrative courts for a ruling that the ORG was liable for her death .

ORG On DATE the applicants were granted legal aid and on DATE their lawyer was appointed . On DATE they applied to ORG for an interim order for the appointment of an expert and instituted proceedings to obtain a declaration that the ORG was liable .

ORG In their application Mr and PERSON asked for the expert to be given the following tasks :

" CARDINAL . Seek all the information on the circumstances in which Miss PERSON was admitted to hospital , received treatment and underwent operations in different departments of the ORG DATE of her death ;

Read any document and interview any expert witness to that end ;

Establish the circumstances surrounding her death and its causes ; Provide ORG with ethical and other data such as to enable it to determine any liability incurred by identifying any failures to comply with accepted medical practice or any shortcomings in the functioning of the service ;

Draw up a report on the foregoing and file it at the registry of this ORG within the time to be allotted . "

ORG In an order of CARDINAL DATE the president of the administrative court refused the application on the ground that allowing it would prejudice the trial of the merits and that the requisite urgency for ordering interim measures was lacking , seeing that the application for them had not been lodged until DATE although the applicants’ lawyer had been appointed on DATE .

ORG In their statement of claim PERSON and PERSON submitted :

It is clear both from the report of Professor PERSON [ head of the intensive care unit at the ORG ] and from the autopsy report that [ Miss PERSON ’s death ] ... was the result of hepatitis caused by halothane .

ORG is an anaesthetic that was used for the surgical operations . Repeat use of halothane for anaesthetic after only a short interval is known to be very dangerous as there is a serious risk of causing serious or even occasionally fatal injury to the liver . Miss PERSON was given halothane as an anaesthetic on several occasions , the last CARDINAL being within a short interval of each other , and the hepatotoxicity followed which was to prove fatal .

The unit therefore displayed gross negligence in its complete disregard of the basic rules for administering halothane , making the ORG liable to the applicants for the loss suffered as a result of their daughter ’s death .

The plaintiffs therefore ask the ORG to find the ORG liable and to order that public body to pay each of them ORG CARDINAL,CARDINAL in compensation for the various losses suffered by them .

ORG On DATE the ORG filed their defence . The applicants replied on DATE and renewed their application for an expert report .

ORG On DATE the administrative court delivered the following interlocutory judgment :

As the parties disagree as to the facts and the ORG has not found evidence in the case file to enable it to rule on the merits , it is necessary to order that an expert report which complies with the adversarial principle be carried out by an expert whose instructions are ... [ to ] :

( a ) inspect Miss PERSON full medical file , in particular the autopsy report and Professor PERSON ’s report ;

( b ) describe the treatment the patient received , making it clear whether the complaint from which she was suffering was a common one or a rare one and how complex the operations were ;

( c ) indicate , if possible , the patient ’s chances of recovery , having regard to her general condition and to the characteristics of her complaint ;

( d ) state whether halothane was used and in what circumstances ; whether any such use was in accordance with accepted practice and whether the subsequent complications were linked to this use ; and if so , whether such complications are common and , if possible , how common they are in statistical terms ;

( e ) make all the necessary findings and interview all the relevant witnesses and generally provide all the information needed to enable the ORG to decide on the merits .

ORG On DATE the expert appointed by the court , Professor PERSON , took the oath .

He examined various medical files and interviewed CARDINAL members of the medical staff at the ORG , including the surgeon who had performed the last operation on Miss PERSON and the anaesthetist .

His report , which was lodged with the court on DATE and communicated to the parties on DATE , contained the following findings :

" Although in most cases a whitlow is a minor ailment , Miss PERSON presented with a whitlow that was unusually serious owing mainly to the delay in seeking effective medical treatment and , in particular , surgery .

I have discovered no concurrent deterioration in her general state of health or any progressive disease in her past history , or any special feature of the local germ in question that could have affected the intensity of the presenting picture .

From DATE Miss PERSON was cared for diligently in accordance with current scientific knowledge .

The unusual complexity and length of the treatment were related to the extent of the lesions and of damage to the tissue , which delayed the healing process , repair of the loss of matter and the remedying of the sequelae . A new infection finally led to complete failure .

When the patient was found to have jaundice DATE after the whitlow in question appeared , she was transferred to CARDINAL specialist departments . The appropriate treatment she received there failed to halt a rapid worsening of her condition .

Before this unexpected complication , which proved fatal , Miss PERSON had a foreseeable chance of recovering from her local lesion , albeit only in the long term . It does not appear that her general condition at the time put the prognosis for survival in doubt , despite the characteristics of her original complaint .

ORG was used each time the patient was anaesthetised , as an adjunct to a number of other anaesthetics administered , in a way that was wholly appropriate and in accordance with accepted practice , without provoking any abnormal reaction .

There is no absolute certainty that the onset of hepatitis and the patient ’s death are directly linked to the use of halothane alone .

However , there must have been an atopic susceptibility ( that is to say a predisposition to sensitisation through medication without any revealing signs ) triggered first by the ORG , use of which was later discarded , and then by the halothane , and exacerbated in terms of enzymatic action by a third substance , GPE .

This is a plausible diagnostic hypothesis , constructed after the event and which , given that there were no warning signs of intolerance , obviously can not call in question the choice or rejection of CARDINAL anaesthetic rather than another .

An idiosyncrasy , in other words a reaction peculiar to her as an individual , must therefore have been responsible for Miss PERSON ’s death , brought about by a particularly strong autoimmune process ... There are no frequency figures for such exceptional cases .

( PERSON ’s toxicity does not appear to be implicated and is in any case still widely disputed DATE . However , in so far as halothane is still suspected of causing necrosis of the liver , statistics show that this phenomenon does not occur in CARDINAL in CARDINAL cases . ) "

ORG In a pleading registered on DATE the applicants alleged that neither they nor their lawyer had been informed of the dates of the steps taken by the expert and that his report referred to documents which they had not been able to inspect . In their submission , there had thus been a breach of the principle of adversarial proceedings and this justified setting the expert report aside and ordering a new CARDINAL .

On DATE the ORG filed a pleading in reply .

ORG The administrative court held a hearing on DATE , and on CARDINAL DATE it delivered the following judgment :

While PERSON and PERSON are justified in submitting that there were irregularities in the production of the expert report on the medical file of their daughter who died in the [ CHRN ] , seeing that they were not informed of the dates of the steps taken by the expert as required by LAW , they have not disputed the facts that appear from both their own evidence and the expert report . It must thus be taken as established that the hepatitis Miss PERSON died from can not definitely be attributed to the administration of halothane on the QUANTITY occasions when she was given an anaesthetic and that , in any event , she presented no clinical signs of a contraindication against the use of that substance , which had been used in accordance with accepted practice and which only very rarely causes liver damage . No gross medical negligence can therefore be imputed to the [ CHRN ] . The action must therefore be dismissed .

ORG On DATE Mr and PERSON appealed to ORG . They pointed out that the facts of the case were not disputed and that the purpose of the proceedings was to determine , after adversarial examination of all the evidence , the cause of the hepatitis from which their daughter had died in order to establish if the public hospital service was guilty of gross negligence . They maintained that they had been unlawfully deprived of the opportunity to make their own submissions on that point to the expert , submitted that the administrative court ’s judgment and Professor PERSON ’s report should be set aside and asked ORG to order that the report be removed from the case file and that a fresh one be produced .

On DATE the CHRN produced a pleading in reply , to which the applicants replied on CARDINAL DATE .

ORG held a hearing on CARDINAL DATE , and on DATE it gave the following judgment :

Where a court finds that an expert report has been produced in an irregular manner , it is not bound by any legal provision or general principle of law to order its removal from the case file and direct that a new report be drawn up . The fact that the expert report ordered did not comply with the adversarial principle as regards a party to the proceedings could not therefore prevent the judges at first instance from relying , in order to rule on the merits , on the facts in the report which they considered were not disputed by the applicants or were not seriously challengeable .

PERSON and PERSON had been given the expert report , which mentions all the evidence it is based on , and could therefore have challenged it but they have raised no valid objections to the findings or assessments in it . If they thought it inadequate , it was their responsibility to specify the points on which they considered further inquiries into the facts to be necessary . As they did not raise such an objection , the administrative court quite rightly held that , in view of the uncontradicted statements in the report , no gross negligence could be imputed to the hospital centre .

It is clear from the foregoing that PERSON and PERSON are not justified in maintaining that ORG was wrong to dismiss their action in the impugned judgment .

ORG On DATE the applicants lodged an application for legal aid with ORG of the ORG d’Etat , which refused the application on DATE on the basis that the grounds for an appeal on points of law were not sufficiently strong . This decision was notified to the applicants on DATE . They did not bring an appeal on points of law .

ORG The former LAW ( now LAW ) of ORG PERSON provides :

" The parties must be given notice by the expert or experts of the dates and times of the steps taken to produce their reports . This notice must be given DATE beforehand by registered letter .

The parties’ submissions during the preparation of the expert report must be recorded in the report . "

ORG In the NORP v. Commune de Decazeville judgment of DATE ( ORG , DATE , p. CARDINAL ) the ORG d’Etat stated :

" The expert appointed ... to examine PERSON carried out the medical examination without informing ORG of this beforehand and thus deprived it of the right to make submissions during the preparation of the expert report . That being so , the report was prepared in an irregular manner . That irregularity does not , however , prevent it from being adopted for information or preclude ruling on the merits without having to order a fresh expert report as the town council requested , since the latter was able to submit its observations during the written proceedings that followed the lodging of the report and the PERSON d’Etat now has the necessary information to decide the case .

An irregularity in the preparation of an expert report is , however , a ground for setting aside a judgment where the latter was based on the report ( ORG d’Etat , CARDINAL DATE , PERSON , PERSON Sirey DATE , no . CARDINAL ) .


CASE OF THE ARGEŞ COLLEGE OF LEGAL ADVISERS v. ROMANIA

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant is an association from PERSON ( GPE ) whose registration as a professional association was refused in a final decision delivered by ORG on DATE . Its name in NORP is ORG ( ORG ) . The application on its behalf was lodged by Mr PERSON Panduru , the dean of the association .

On DATE Law no . CARDINAL regarding the organisation and functioning of the profession of legal adviser entered into force . It allowed legal advisers to form professional associations and set a DATE time - limit from its coming into force for those professional associations to be established and their statutes to be adopted . It entered into force DATE after its publication in ORG on DATE .

On DATE the constituent assembly of the applicant association took place . On the same date its statute was adopted .

On DATE the applicant requested the opinion ( “ aviz ” ) of ORG , which was required by Government Ordinance no . CARDINAL on the establishment of associations and foundations , in its version in force at the time .

On DATE ORG issued a favourable opinion on the statute of the applicant , referring specifically to the purposes of the association described in Articles CARDINAL and CARDINAL . Article CARDINAL stipulated that the goal of the association was the unitary organisation and functioning of the profession of legal adviser in GPE and the promotion of the principle that this profession had a complementary place within the national judicial system . Article CARDINAL of the statute provided further that the aim of the association was “ the protection and promotion of the rights of its members , ( ... ) concerning a consistent practice of the profession for the protection and promotion of the rights and freedoms of legal entities , authorities and public institutions , as well as of private persons in their relations with judicial institutions ( ... ) ” .

On DATE the applicant lodged an application with ORG seeking registration in ORG kept by that court . By an interlocutory judgment delivered in private on DATE the court granted the request and ordered the registration of the applicant in that register . The decision also provided that ORG could lodge an appeal on points of law within DATE from communication .

The Public Prosecutor and ORG lodged an appeal on points of law against that decision . ORG NORP Bar joined the proceedings in ORG interest .

In the appeal , the prosecutor argued that the interlocutory judgment of DATE , in approving the purposes stipulated in the association 's statute , had infringed ORG CARDINAL and CARDINAL of Law no . CARDINAL in so far as it had allowed the applicant to protect and promote the rights of private individuals , whereas only lawyers had the right to represent or assist private individuals in their relations with judicial institutions . The prosecutor also criticised LAW ( j ) of the statute , which allowed the council of the association to give its opinion ( “ aviz ” ) on the creation , within its geographical area , of companies providing freelance consultancy , assistance and legal representation , as well as to resolve complaints against the fees charged by freelance legal advisers . Further , the prosecutor contested LAW ( l ) , which entitled the council of the association to organise competitive examinations for vacant legal adviser positions , draw up job descriptions and inform the disciplinary board of any malpractice on the part of legal advisers .

NORP The bar associations supported the prosecutor 's arguments .

On DATE the applicant held an extraordinary general assembly and adopted an additional protocol to the statute , in which it amended Article CARDINAL by removing the reference to representation of private persons . It also removed LAW ( j ) entirely and amended LAW ( l ) by limiting the task of the council of the association to providing information on malpractice on the part of legal advisers .

On DATE the applicant lodged an application with ORG seeking registration of the modifications . By an interlocutory decision of DATE , delivered in private , the court ordered the registration of those modifications . From the information submitted by the ORG , it appears that an appeal was lodged against this judgment and a final decision was delivered on DATE . No copy of the appeal decision was submitted to the case file .

During the trial regarding the appeal lodged by the prosecutor and by the bar associations against the interlocutory judgment of DATE , the applicant alleged that it had become groundless after the adoption of the additional protocol to its statute . It argued that the only ground for the appeal could be an amendment to the interlocutory decision of CARDINAL DATE .

On DATE ORG upheld the prosecutor 's appeal on points of law in a final decision , modified the interlocutory judgment of DATE and dismissed the applicant 's request for registration The court considered that , according to ORG CARDINAL and CARDINAL of Law no . CARDINAL , the professional activity of a legal adviser could only be carried out within the framework of the legal entity for which he worked , thus excluding the possibility to represent the interests of private individuals . It further considered that LAW that law provided that the profession of legal adviser was incompatible with that of lawyer . It then held that legal advisers could be appointed or hired under the provisions of that law ; therefore they could not carry out functions which were specific to those of a lawyer .

The court further held that the provisions of LAW ( j ) of the applicant 's statute were at odds with LAW no . CARDINAL/CARDINAL on the organisation and functioning of the lawyer profession , which provided that only lawyers may offer freelance consulting , assistance and legal representation . The appellate court considered that those aspects of illegality had also been recognised by the applicant , which had allegedly removed them by adopting an additional protocol to its statute . However , the fact that an additional protocol had been adopted could not have validated the interlocutory judgment of DATE , since that decision had taken account of the existing situation at the time it had been delivered .

DATE Government Ordinance no . CARDINAL on associations and foundations provides that the judge in charge of reviewing the legality of a request for registration and the supporting documents is to scrutinise the request within DATE of the date it was lodged . If within this deadline , the judge concludes that the documents submitted do not comply with the legal requirements , the representative of the associations shall be summoned for a hearing held in private and DATE will be granted in order to remedy those irregularities . When the deadline is reached and the judge concludes that the irregularities have been remediated , it shall take note of this in an interlocutory judgment and shall order the registering of the association in ORG .

Article CARDINAL provides that an association is registered in ORG only when the interlocutory judgment allowing the request for registration becomes final . Article CARDINAL of the same act provides that any changes to the statute of an association which has acquired legal personality and has been registered legally have to be recorded in ORG according to a procedure that is similar to the CARDINAL for registering as an association .

The same LAW provides that an association may be dissolved by a judicial decision if its goals prove to be contrary to law or public order .

The other relevant provisions of Government Ordinance no . CARDINAL are cited in the judgment of ORG v. GPE ( no . CARDINAL , § DATE , DATE ) .

NORP The relevant provisions of LAW . CARDINAL of DATE on the organisation and functioning of the profession of legal adviser read as follows :

“ A legal adviser ... provides counsel and representation to the authority or public institution where he works , or for the legal entity with which he has working relations , protects their legitimate rights and interests in their relations with public authorities , any kind of institution , and any NORP or foreign private person or legal entity ; according to the law and to the specific regulations , he approves and countersigns documents of a judicial nature . ”

Legal advisers may form professional associations to protect and promote their professional interests , in accordance with the legal provisions regulating the association and the setting up of legal entities .

“ The exercise of the profession of legal adviser is incompatible with :

a ) being a lawyer ;

( CARDINAL ) Under the conditions set up in LAW , the legal advisers may form associations at county levels , by branches or fields of activity , according to professional interests , and , if the case , at national level , in compliance with the law on associations and foundations .

( CARDINAL ) The forms of association and organisation at county and national level are set by the statute of the association ( ... ) .

( CARDINAL ) The setting up of professional associations is based on the constitutional principles of the right to freedom of association and the legislation regulating the association and the setting up of legal entities .

Professional associations shall be constituted and their statutes adopted within DATE of the date of entry into force of the present law . ”


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5

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

CARDINAL burglaries were committed in the home of an old lady on CARDINAL and DATE DATE as a result of which the burglar , through use of force and coercion , stole a total of CARDINAL old NORP levs ( ORG – MONEY ( ORG ) ) . On the latter occasion , the burglar was also armed .

A preliminary investigation in respect of the second burglary was opened against an unknown offender on DATE .

On DATE the applicant was charged with the CARDINAL burglaries and was detained on remand . He was questioned on DATE and confessed to having committed the burglaries .

On DATE ORG filed an indictment against the applicant with ORG accusing him of having committed the CARDINAL burglaries through use of force and coercion , having stolen a total of BGL CARDINAL ( approximately EUR CARDINAL ) and for having been armed on the second occasion ( ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) .

The Plovdiv District Court conducted CARDINAL hearings DATE and DATE .

In a judgment of DATE the ORG found the applicant guilty as charged and imposed a cumulative sentence of DATE imprisonment . The applicant appealed against the judgment on CARDINAL DATE .

ORG conducted CARDINAL hearings on DATE , CARDINAL DATE and DATE .

In a judgment of DATE ORG partly quashed the lower court 's judgment as it found that the applicant had not used force during the burglary of CARDINAL DATE . It upheld the remainder of the judgment against the applicant .

No appeal was filed against the judgment of ORG and it entered into force .

On DATE the applicant was detained on remand upon a decision of an investigator which was confirmed by ORG later on DATE . The grounds for detaining the applicant were that he may abscond , re - offend or obstruct the investigation but no specific facts or evidence in support of the said assessment were cited or relied on in the decision for his detention . On DATE the ORG sentenced the applicant to DATE imprisonment .

At the trial stage of the proceedings the applicant filed CARDINAL appeals against his detention , dated CARDINAL and DATE , DATE and DATE , DATE and DATE . On each occasion , the applicant argued that he had no criminal record and that there was no risk that he would abscond because he had a permanent address and his wife needed his assistance after the birth of their child .

None of the applicant 's appeals were examined or ruled on by the courts despite of the hearings conducted by ORG in the meantime .

The relevant provisions of LAW ( the “ ORG ” ) and the NORP courts ' practice before DATE are summarised in the ORG 's judgments in several similar cases ( see , among others , ORG v. GPE [ ORG ] , no . ORG , § § DATE , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL ( extracts ) ) .

As of DATE the legal regime of detention under the ORG was amended with the aim to ensure compliance with ORG ) . The effected amendments and the resulting practice of the NORP courts are summarised in the recent ORG judgments in the cases of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) and GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

ORG of DATE ( the “ ORG ” ) provides that the ORG is liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts for unlawful pretrial detention , if the detention order has been set aside for lack of lawful grounds ( sections CARDINAL - CARDINAL ) .

The relevant domestic law and practice under sections CARDINAL and CARDINAL of the ORG has been summarised in the cases of PERSON v. PERSON ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


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

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

After an interview held in DATE the applicant got a job as a telephone operator in a taxi company . She started the job on DATE , but not until DATE was she provided with a written contract in which it was stated inter alia :

“ The terms of the employment will be regulated by the LAW on salaried employees ( GPE ) and a collective agreement entered into with ORG ( Handels- og PERSON ) . ”

The above collective agreement was entered into in DATE between , on the CARDINAL side , the employer and ORG ( ORG ) and , on the other side , ORG , henceforth called ORG and its local office in the area where the employer company is situated . According to the agreement the employer would only employ telephone operators and office workers who were members of GPE .

At DATE the employer became aware that the applicant was not a member of ORG , but of another trade union , and on DATE the applicant was dismissed because she refused to become a member of ORG .

The applicant instituted proceedings before ORG ( ORG ) against the employer , ORG , ORG and its local office claiming compensation and requesting that they be ordered to recognise that her dismissal and the above closed shop agreement was unlawful . She alleged that since she was not aware of this agreement at the time of her employment the dismissal was a violation of section CARDINAL , subsection CARDINAL of LAW against Dismissal due to ORG of DATE , as amended on CARDINAL DATE ( Lov om beskyttelse mod afskedigelse på grund af foreningsforhold ) . Moreover , she alleged that the closed shop agreement itself violated LAW as it allegedly allows an employer to require that an employee must be a member of an association or a specific association in order to obtain employment . By judgment of CARDINAL DATE ORG granted the applicant compensation in the amount of MONEY ( DKK ) as it found it established that the applicant was not aware of the agreement at the time of her employment . Therefore , there had been an infringement of section CARDINAL , subsection CARDINAL of LAW against Dismissal due to ORG of DATE . However , as to closed shop agreements in general the court stated inter alia as follows :

“ LAW secures the classical freedom of assembly and association including the right to form and join trade unions . By the British Rail judgment ( the PERSON , PERSON and PERSON v. GPE judgment , Series A no . DATE ) it was established that in certain circumstances LAW also secures the negative right to freedom of association . This judgment resulted in the ORG ’s passing of LAW against Dismissal due to ORG .

Following the passing of this Act the Court of Human Rights has pronounced other judgments concerning the extent of LAW . The applicant has submitted these judgments , notably the GPE v. GPE judgment of DATE in support of her claim that section CARDINAL , subsection CARDINAL and subsection CARDINAL of GPE against Dismissal due to ORG are at variance with LAW .

However , these last judgments have not resulted in any NORP Government Bills with a view to amend LAW against Dismissal due to ORG . On the contrary , PERSON recently ... declared in ORG that it was the ORG ’s view that closed shop agreements do not infringe human rights and that GPE does comply with its international obligations .

LAW of DATE ( No . CARDINAL of DATE ) incorporated ORG into NORP law . According to the preparatory notes the incorporation did not intend to change the existing balance between ORG and the NORP courts . Therefore , the ORG still has a considerable discretion when laying down NORP law .

Thus , since LAW against Dismissal due to ORG was passed in order to comply with LAW , and since the exceptions mentioned in LAW , subsection CARDINAL of the Act are formulated very precisely , and since a decision that sets aside or limits the existing possibility to enter into closed shop agreements would have far - reaching consequences for the NORP labour market , the High Court finds it appropriate to leave it to the legislature to decide whether the previous case - law from ORG does require an amendment of LAW against Dismissal due to ORG . ”

On appeal , ORG ( Højesteret ) on DATE upheld ORG judgment . In its reasoning ORG stated inter alia as follows :

“ Act no . CARDINAL of DATE on Protection against Dismissal due to ORG was passed , notably in order to comply with the negative right to freedom of association to the extent an obligation thereto could be established according to the interpretation of LAW given by ORG , PERSON and PERSON v. GPE judgment Series A no . CARDINAL ( ORG ) .

As stated in ORG judgment of CARDINAL DATE ( concerning application no . PERSON and PERSON v. GPE ) and of DATE ( concerning application no . CARDINAL GPE v. GPE ) the latest judgments from ORG give no reason to asses the lawfulness of closed shop agreements and their consequences any differently than what appears from the ORG judgment . In ORG view neither does the PERSON and others v. GPE [ ORG ] , ORG . ORG , CARDINAL and CARDINAL , ORG CARDINAL-III ) . ”

Thus , as mentioned above , in CARDINAL other cases , ORG decided by judgments of DATE and DATE , respectively , on the lawfulness of closed shop agreements in relation to LAW against Dismissal due to ORG of DATE and in relation to LAW and found that closed shop agreements as such are not contrary to LAW as the provision has been interpreted by the ORG .

Section CARDINAL of LAW ( PERSON ) provides :

ORG shall , without previous permission , be free to form associations for any lawful purpose . ORG

ORG Associations employing violence , or aiming at the attainment of their object by violence , by instigation to violence , or by similar punishable influence on persons holding other views , shall be dissolved by a court judgment .

No association shall be dissolved by any government measure ; but an association may be temporarily prohibited , provided that immediate proceedings be taken for its dissolution .

Cases relating to the dissolution of political associations may , without special permission , be brought before ORG ( NORP øverste domstol ) .

The legal effects of the dissolution shall be determined by statute .

LAW against Dismissal due to ORG of DATE ( which was passed as a direct result of the ORG ’s ruling in DATE in the PERSON , PERSON and PERSON v. GPE judgment , Series A no . CARDINAL ) , amended by Act no . CARDINAL of CARDINAL DATE , reads in as far as relevant :

Section CARDINAL

ORG An employer may not dismiss an employee on the grounds that he or she is a member of an association or of a certain association .

Section CARDINAL

An employer may not dismiss an employee on the grounds that he or she is not a member of an association or of a certain association

Subsection CARDINAL does not apply if the employee , prior to recruitment , knew that the employer made membership of an association or of a specific association a condition for being employed with the enterprise .

Subsection CARDINAL is furthermore not applicable when the employee , who is a member of an association , subsequent to the employment is informed that membership is a condition for continued employment with the enterprise

Section CARDINAL

Sections CARDINAL and CARDINAL of the Act do not apply to employees who are employed by employers whose business specifically aims at furthering a political , ideological , religious or cultural purpose and the membership of the person concerned must be considered of importance for the business .

Section CARDINAL

Where an employee is dismissed contrary to the provisions of this LAW , the dismissal must be overruled and the employment continued or restored , if so claimed . However , this does not apply to employees in the private sector if , in special cases and following a balancing of the interest of the parties , it is found obviously unreasonable to claim continuation or restoration of the employment .

Section CARDINAL.a

Where an employee is dismissed contrary to the provisions of this LAW without the dismissal being overruled , the employer shall pay compensation .

. If the employment has lasted for DATE , such compensation may not be CARDINAL months’ salary or wages .

Section CARDINAL.b

Cases under this LAW must be processed as quickly as possible .

During the hearing of a case concerning dismissal , the court may order that the dismissal will not become effective until the case has been finally decided by a judgment . The judgment may stipulate that the dismissal will not be stayed in case of an appeal .

The Act on Private Contributions to Political Parties and Disclosure of the Accounts of Political Parties , No . CARDINAL of CARDINAL DATE ( Lov om private bidrag til politiske partier og offentliggørelse af politiske partiers regnskaber ) as amended by LAW . CARDINAL of DATE reads in as far as relevant :

Section CARDINAL

ORG federations , trade unions and other trade associations whose main objectives are to attend to the economic interests of the trade group to which their members belong shall ensure that any financial contribution to political parties or for party political purposes in general collected as part of partnership fees are collected on a voluntary basis for the individual member .

Section CARDINAL

A member , who wants to be exempt from payment of contributions to political parties or for political purposes in general as part of the membership fees shall submit a written declaration to this effect .

Once a year the association shall forward to its members a form containing the wording of such declaration . Publishing the form in a ORG journal or a similar publication can fulfil such obligation . The declaration must have the following wording : “ I want to be exempt from payment of contributions to political parties or for party political purposes in general as part of my membership fees ”

The declaration must be forwarded to the auditor of the association . This must appear from the form referred to in subsection QUANTITY hereof . Declarations forwarded to association offices by the members must be re - forwarded to the auditor immediately . The Minister of ORG may lay down further provisions on the layout of the form and ORG treatment of declarations received .

Information on the persons who are exempt from payment of contributions or who have made a request to this effect may not be subject to any unauthorised disclosure .

Below is a general description of the background of closed shop agreements in the NORP labour market .

The struggle at DATE between on the CARDINAL side employees and their unions ( notably what is DATE called the ORG , i.e. ORG ) and on the other side the employers and their federations ( mainly the central organisation DA , i.e. ORG ) resulted in the so - called DATE Agreement from DATE between the ORG and the ORG . The ORG laid down CARDINAL major principles :

the right of employees to organise in trade unions ;

the right of the employers to manage and control work ;

the right to industrial actions ( strike , boycott and lockout ) to obtain

e.g. a collective agreement ;

the embargo on industrial action , which means that no strikes are

lawful during the term of a collective agreement ;

the establishment of a special arbitration tribunal to deal with all

violations of LAW .

The DATE Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners . By tradition the NORP legislature plays a minor role as regards governing wages , salaries and employment conditions . Therefore , only to a limited extent does the NORP labour marked have legislation , which does not emanate from ORG , e.g. LAW ( GPE ) and LAW ( Ferieloven ) . Accordingly , rights imposed by statute in other countries have in GPE been obtained by agreements between the labour market partners . It is thus characteristic of NORP law that the relationship between employers and employees is basically governed by a combination of agreements ( collective and individuals ) , labour law principles and general statutes and rules laid down in pursuance of statutes . CARDINAL per cent of all employees in GPE are union members .

From figures provided by ORG ( PERSON ) and ORG ( Beskæftigelsesministeriet ) , in DATE the NORP workforce consisted of CARDINAL persons ( inclusive unemployed ) . Thereof CARDINAL were employed within the private sector and CARDINAL within the public sector .

The Government estimates that MONEY of all employees are comprised by collective agreements . The applicant disagrees with this estimation .

The institution of closed shop agreements is of long standing in GPE . Typically a closed shop agreement states that an employer has undertaken only to hire and employ members of the trade union that is party to the collective agreement concluded by the employer . Closed shop agreements are unlawful in the public sector labour market and they are not concluded in the part of the private sector labour market , which is comprised by the general agreement between the DA and the LOC , because ORG considers the use of closed shop provisions as an interference with the ORG managerial right . Thus , closed shop agreements are mainly of importance in collective agreements concluded with unorganised employers .

The precise number of employees covered by closed shop agreements is unknown . However , from figures provided by ORG and ORG the Government estimate that CARDINAL wages earners are affected in some way by closed shop agreements , thereby affecting CARDINAL per cent of all NORP employees on the labour market . The applicant submits that this estimation probably is somewhat below the actual figure .

After the election in GPE on DATE the new Government decided to procure a report on closed shop agreements . The report was submitted in DATE ( PERSON . DATE , GPE om eksklusivbestemmelser ) and recommended that closed shop agreement be prohibited .

The preparatory notes to LAW

The preparatory notes to LAW DATE of the Conference of Senior Officials , Collected Edition of the “ ORG ” , vol . PERSON , p. CARDINAL ) state inter alia :

“ On account of the difficulties raised by the ‘ closed shop system’ in certain countries , the Conference in this connection considered it undesirable to introduce into the Convention a rule under which ‘ no one may be compelled to belong to an association’ which features in [ LAW ] of LAW ” .

The European Social Charter DATE

LAW provides for the following “ right to organise ” :

“ With a view to ensuring or promoting the freedom of workers and employers to form local , national or international organisations for the protection of their economic and social interests and to join those organisations , the Contracting Parties undertake that national law shall not be such as to impair , nor shall it be so applied as to impair , this freedom . The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations . The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations . ”

In its Conclusions ORG and GPE ORG found that LAW against Dismissal due to ORG infringes on LAW , in so far as an employee can be dismissed if the employee prior to recruitment knew that membership of a certain union was a condition for being employed with the enterprise ( section CARDINAL , subsections CARDINAL and CARDINAL of the Act ) . On this basis ORG in its CARDINAL’th ( DATE ) and CARDINAL’th report ( DATE ) recommended to ORG that a recommendation in this respect be adopted with regard to GPE . On DATE at the CARDINAL meeting of ORG , lacking the majority required , the proposal for the said recommendation was not adopted .

In its Conclusions XVI-CARDINAL ORG stated inter alia :

“ The situation in GPE is not in conformity with LAW for the following reasons :

Closed shop clauses are permitted in national law , as illustrated by the decisions of ORG summarised in the report . Clauses or practices of this kind violate the right to freedom of association ”

Subsequently , in DATE ORG informed ORG of the European Social Charter of its intentions to introduce a bill prohibiting closed shop agreements . ORG therefore decided to await the next assessment by ORG .

ORG

Conventions no . CARDINAL and CARDINAL under ORG protects inter alia the positive aspects of the freedom of association . As regards the issue of closed shop agreements ORG considers this as a national matter .


CASE OF RELIGIONSGEMEINSCHAFT DER ZEUGEN JEHOVAS AND OTHERS v. AUSTRIA

Violation of Art. 9;Violation of Art. 14+9;Violation of Art. 6;No violation of Art. 13;Non-pecuniary damage - award

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

The first applicant is a religious community established in GPE , and the second to fifth applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .

On DATE the second to fifth applicants and CARDINAL other claimants requested the Federal Minister for Education and Arts ( PERSON für ORG ) to recognise the first applicant as a religious society ( Religionsgesellschaft ) under LAW ) . Since the Minister did not respond , the applicants subsequently filed a complaint ( Beschwerde ) with ORG ( Volksanwaltschaft ) about the Minister ’s inactivity .

On DATE the ORG issued a statement concerning the complaint . It considered that the Minister ’s inactivity for DATE constituted an undesirable state of affairs in public administration ( PERSON i m Bereich der öffentlichen LOC ) even though the authority was not formally obliged under the applicable law to take a decision since recognition of a religious society had to be taken in the form of a decree ( Verordnung ) . However , since an agreement had been reached in a meeting between the applicants and the Ministry on DATE , no further steps were required by ORG . The contents of this agreement were not disclosed by the applicants .

On DATE the second to fifth applicants requested the Federal Minister for ORG , Arts and Sports ( PERSON für GPE , ORG ) to recognise the first applicant as a religious society .

NORP The Minister did not grant the request and , after several reminders , informed the applicants that under LAW they had no right to obtain a formal decision ( Bescheid ) on their request .

On DATE the applicants lodged a direct application ( PERSON ) with ORG ) . They requested the court to repeal LAW , as in their view , this provision violated the right to freedom of religion and to freedom of association . They also argued that they were directly affected by this provision without it being necessary for a formal decision by an administrative authority to be taken ( LAW in fine of LAW ( Bundes - Verfassungsgesetz ) ) .

On DATE ORG Bundesregierung ) submitted their observations to ORG . On DATE ORG asked ORG to submit supplementary observations , which were filed on DATE . ORG argued , inter alia , that the provisions at issue were in conformity with LAW as it was possible for the applicants to found a religious association under LAW ( Vereinsgesetz ) .

On DATE ORG rejected the ORG complaint as inadmissible . Relying on LAW , the court considered that they were not directly affected by the impugned provisions as , in the light of its judgment of DATE ( VfSlg [ Judgments and Decisions of ORG ] DATE ) , they had a right to have their case determined by an administrative authority . However , they had not exhausted the legal remedies available to them since they had failed to lodge an application under LAW with ORG ( Verwaltungsgerichtshof ) against the Minister ’s failure to give a decision ( ORG ) .

On DATE the applicants lodged such an application with ORG . They asked the court to decide on their request for recognition of the first applicant as a religious society under LAW .

On DATE ORG rejected the ORG request as inadmissible . Referring to its previous case - law on the matter , it found that under LAW , a positive decision had to be taken by the competent minister in the form of a decree ( Verordnung ) , whereas under LAW , ORG was only competent to deliver individual decisions ( PERSON ) and not decrees in the place of an administrative authority .

On DATE the applicants again lodged a direct application under LAW in fine of LAW with ORG , seeking to have sections CARDINAL and CARDINAL of the DATE LAW repealed . Relying on LAW , they argued that they had no effective remedy against the authority which had arbitrarily refused to determine their case .

On DATE ORG dismissed the ORG complaint as inadmissible . It found that it had already decided the matter in its decision of DATE . As an obiter dictum the court indicated , however , that the second to fifth applicants might request ORG to examine a complaint under LAW against the Minister ’s failure to decide on the request for recognition . Once ORG refused this request , they could apply to ORG under LAW for determination of a case where CARDINAL courts ( namely ORG and ORG ) declined jurisdiction ( negativer Kompetenzkonflikt ) .

On DATE the second to fifth applicants lodged such a complaint , which ORG on DATE rejected as inadmissible for lack of jurisdiction . It held that there was no legal provision entitling it to decide on applications about an authority ’s failure to give a decision .

On DATE the applicants requested ORG under LAW to determine the conflict of jurisdiction between ORG and ORG .

On DATE ORG held an oral hearing . On DATE the court quashed ORG decision of DATE and decided that ORG had jurisdiction to decide on the ORG complaint of DATE . ORG found that under LAW a religious body had a subjective right to recognition as a religious society provided that the conditions laid down in that LAW were met . The rule of law required that such a right be an enforceable one , in other words , that refusal to grant recognition should be subject to review by the NORP courts and not left to the sole discretion of the administrative authorities . In order to guarantee such a review it was necessary for a negative decision refusing recognition to be taken in the form of a written decision ( PERSON ) . Under the NORP legal order , only when taking such decisions were the competent authorities bound to deal with a request by a party , whereas no such obligation existed with regard to decrees ( ORG ) . A positive decision had to be taken in the form of a decree as it not only had effect vis - à - vis the parties but also vis - à - vis the general public .

On DATE ORG ordered the Federal Minister for Education and ORG ( MONEY GPE und kulturelle Angelegenheiten – “ the Minister ” ) to submit the case file within DATE and to communicate the arguments in favour of and against recognition .

On DATE the Federal Minister submitted observations to ORG , arguing that under the hitherto existing law , a decision was not required and requesting a DATE extension of the time - limit for submission of the case file and detailed observations .

On DATE ORG opened preliminary proceedings ( GPE ) and ordered the Minister to decide within DATE on the ORG request for recognition . The Federal Minister failed to do so .

On DATE ORG issued a binding decision ( Erkenntnis ) to the effect that the Minister had a duty to decide on the request for recognition within DATE and set out the principles which the Minister had to take into account when taking this decision . On DATE the applicants submitted further observations and arguments in their favour to the Minister .

On DATE the Minister dismissed the applicants’ request . It found that the Jehovah ’s Witnesses could not be recognised as a religious society under the CARDINAL Recognition Act because of their unclear internal organisation and their negative attitude towards the ORG and its institutions . Reference was further made to their refusal to perform military service or any form of alternative service for conscientious objectors , to participate in local community life and elections and to undergo certain types of medical treatment such as blood transfusions .

On DATE the applicants lodged a complaint against the Minister ’s decision with ORG .

On DATE ORG communicated the complaint to the Minister and requested him to submit , within DATE , the case file and any observations he wished to make . The Minister did not respond .

On DATE the ORG quashed the Minister ’s decision of DATE and referred the case back to the Minister . It noted that the Minister had neither filed submissions nor submitted the case file , with the result that the decision had to be taken on the basis of the ORG submissions . The court noted that they had , inter alia , argued that the Minister had taken his decision without a proper investigation , basing it on documents of which the complainants had not been informed and on which they had not been given the opportunity to comment . Since the case file was not available to ORG , this allegation could not have been refuted . ORG therefore concluded that the Minister ’s decision was arbitrary and violated the principle of equality ( PERSON ) .

Meanwhile , on DATE , the Act on ORG ( Bundesgesetz über die PERSON religiösen GPE , hereafter referred to as “ the DATE LAW ” ) had entered into force . Thus , the Minister found that he had to deal with the applicants’ request for recognition under LAW as a request under section CARDINAL ) of the DATE LAW . On DATE the Minister decided that the first applicant had acquired legal personality as a registered religious community within the meaning of LAW as from DATE . That decision was served on the applicants on CARDINAL DATE .

On DATE the applicants submitted another request to the Federal Minister for recognition of the first applicant as a religious society under LAW .

On DATE the Federal Minister dismissed the request . It found that , pursuant to section CARDINAL ) of the DATE LAW , a religious community could only be recognised as a religious society under LAW if it had already existed as a registered religious community for a minimum of DATE . The first applicant , however , did not meet this requirement at the time when the request for recognition was submitted on DATE .

On DATE the applicants lodged a complaint against that decision with ORG .

On DATE ORG dismissed the complaint . It found that the DATE waiting period for registered religious communities as a precondition for a successful application for recognition under LAW was in conformity with LAW and referred to its previous decision of DATE ( VfSlg . CARDINAL ) on that issue . The decision was served on the applicants’ lawyer on DATE .

Further to a request by the applicants , the case was referred to ORG in DATE .

On DATE ORG dismissed the ORG complaint , finding that it concerned in essence questions of the constitutionality and interpretation of section ORG ) of the DATE LAW , which , in the light of ORG ruling of DATE , did not raise a problem in terms of LAW . The Federal Minister had therefore correctly applied that provision . The decision was served on the applicants’ lawyer on DATE .

Under LAW , everybody is granted freedom of conscience and belief . The enjoyment of civil and political rights is independent from religious belief ; however , the manifestation of religious belief may not derogate from civic obligations .

Article CARDINAL provides that recognised churches and religious communities have the right to manifest their faith collectively in public , to organise and administer their internal affairs independently , to remain in possession of acquired institutions , foundations and funds dedicated to cultural , educational and charitable purposes , however , they are , like all other societies , subordinated to the law .

Article CARDINAL entitles the supporters of non - recognised religious communities to domestic manifestation of their faith unless it is unlawful or contra bones mores .

Article CARDINAL § CARDINAL states that GPE undertakes to ensure full and complete protection of life and liberty to all inhabitants of GPE without distinction on the basis of birth , nationality , race or religion .

Article CARDINAL § CARDINAL guarantees to all inhabitants of GPE the right to manifest publicly and privately their thought , religion and beliefs , unless these are incompatible with the protection of public order or morals .

Section CARDINAL of the LAW provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the LAW , namely that their teaching , services and internal organisation , as well as the name they choose , do not contain anything unlawful or morally offensive and that the setting up and existence of CARDINAL community of worship ( GPE ) satisfying the statutory criteria is ensured .

Section CARDINAL provides that if the above conditions are met , recognition is granted by the Minister for Religious Affairs ( LOC ) . ORG has the effect that a religious society obtains legal personality under public law ( juristische Person öffentlichen PERSON ) and enjoys all rights which are granted under the legal order to such societies . Sections CARDINAL et seq . regulate the setting up of communities of worship , membership of them , delimitation of their territory , and their bodies and statutes . Sections CARDINAL deal with the nomination of religious ministers ( PERSON ) of religious societies , the qualifications such persons must have and how their nomination must be communicated to the authorities . Section CARDINAL provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the LAW .

The legal personality of ORG is , on the one hand , regarded as historically recognised , and , on the other hand , explicitly recognised in an international treaty , the ORG between the Holy See and GPE ( Federal Law Gazette II , No . CARDINAL/CARDINAL – Konkordat zwischen dem Heiligen DATE LOC , BGBl . PERSON . CARDINAL/CARDINAL ) .

The following are examples of special laws recognising religious societies :

( a ) Act on ORG , ORG of GPE , No . CARDINAL/CARDINAL ( PERSON über die äußeren PERSON , RGBl . CARDINAL ) ;

( b ) Act of DATE on the recognition of followers of ORG [ according to the NORP rite ] as a religious society , ORG of the NORP Empire No . CARDINAL ( Gesetz vom CARDINAL . DATE , betreffend die Anerkennung der Anhänger des NORP [ nach hanefitischen ORG ] als Religionsgesellschaft , RGBl . Nr . CARDINAL/CARDINAL ) ;

( c ) Federal Act on LAW , ORG . ORG PERSON CARDINAL . DATE über die äußeren PERSON , BGBl . Nr . ORG ) ;

( d ) Federal Act on LAW in GPE , ORG . DATE ( Bundesgesetz über die äußeren PERSON in PERSON , BGBl . PERSON . CARDINAL/CARDINAL ) ;

( e ) Federal Act on LAW in GPE , ORG . CARDINAL ( Bundesgesetz über äußere PERSON der PERSON in PERSON , BGBl . Nr . CARDINAL ) .

DATE the competent ministers recognised a further CARDINAL religious societies .

LAW entered into force on DATE . Pursuant to Section CARDINAL(CARDINAL ) of the LAW , the Federal Minister for Education and ORG has to rule in a formal written decision ( Bescheid ) on the acquisition of legal personality by the religious community . In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned ( section CARDINAL(CARDINAL ) ) . The religious community has the right to call itself a “ publicly - registered religious community ” .

Section CARDINAL specifies the necessary contents of the statutes of the religious community . Among other things , they must specify the community ’s name , which must be clearly distinguishable from the name of any existing religious community or society . They must further set out the main principles of the religious community ’s faith , the aims and duties deriving from it , the rights and duties of the community ’s adherents , including the conditions for terminating membership ( it is further specified that no fee for leaving the religious community may be charged ) , how its bodies are appointed , who represents the religious community externally and how the community ’s financial resources are raised . Lastly , the statutes must contain provisions on the liquidation of the religious community , ensuring that the assets acquired are not used for ends contrary to religious purposes .

Under LAW , the Federal Minister must refuse to grant legal personality to a religious community if , in view of its teachings or practice , this is necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights and freedom of others ; this is in particular the case if its activities involve incitement to commit criminal offences , obstruction of the psychological development of adolescents or undermining of people ’s mental integrity , or if the statutes do not comply with section CARDINAL .

Under section CARDINAL , the religious community must inform the Federal Minister for Education and ORG of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay . The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section CARDINAL .

Section CARDINAL specifies the reasons for termination of a community ’s legal personality . Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked . Reasons for revoking legal personality are set out in subsection ( CARDINAL ) : for example , if the reasons for granting legal personality no longer subsist or if for DATE no bodies representing the religious community externally have been appointed .

The Act only regulates the granting of legal personality . Once legal personality has been granted to a religious community , it may pursue the activities referred to in its statutes . There are no specific laws in GPE regulating the acquisition of assets by religious societies or communities , the establishment of places of worship or assembly , or the publication of religious material . However , provisions which contain explicit references to religious societies are spread over various statutory instruments ( see below ) .

Since the entry into force of LAW on DATE , non - recognised religious associations may be granted legal personality upon application . A previous application for recognition under LAW is to be dealt with as an application under LAW pursuant to section CARDINAL(CARDINAL ) .

Section CARDINAL(CARDINAL ) of LAW establishes additional criteria for a successful application under LAW , such as the existence of the religious association for DATE in GPE and for DATE as a registered religious community ; a minimum number of CARDINAL adherents per CARDINAL members of the NORP population ( at the moment , this means CARDINAL persons ) ; the use of income and other assets for religious purposes , including charity activities ; a positive attitude towards society and the ORG ; and no illegal interference as regards the community ’s relationship with recognised or other religious societies .

In various NORP laws specific reference is made to recognised religious societies . The following list , which is not exhaustive , sets out the main instances .

Under section CARDINAL of ORG ( ORG ) , representatives of recognised religious societies may sit ( without the right to vote ) on regional education boards .

Under LAW ( Privatschulgesetz ) , recognised religious societies , like public territorial entities , are presumed to possess the necessary qualifications to operate private schools , whereas other persons have to prove that they are qualified .

Under section CARDINAL(CARDINAL ) of LAW , ordained priests , persons involved in spiritual welfare or in religious teaching after graduation from theological studies , members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and , under LAW of LAW , are also exempt from alternative civilian service .

Under sections CARDINAL and CARDINAL of LAW ( ORG ) , ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians , and under section QUANTITY ( CARDINAL ) of the DATE Act on Juries of ORG and ORG ( Geschworenen- und GPE ) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court .

Section CARDINAL(CARDINAL)(CARDINAL ) of LAW provides that contributions to recognised religious societies are deductible from income tax up to an amount of CARDINAL ( ORG ) per year .

Section CARDINAL of LAW ( ORG ) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real - estate tax .

Under section CARDINAL(CARDINAL)(a ) of the DATE LAW ( Erbschafts- und ORG ) , which was still in force at the relevant time , donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of PERCENT .


No violation of Art. 6-3-c;Violation of Art. 6-1;Pecuniary damage - claim rejected;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

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

The applicant worked as a driver for a private company .

It appears that at the time there were several reported cases of the company workers allegedly pouring out diesel from their service vehicles . Thus the company 's director asked the competent authorities to carry out checks .

On DATE while driving home in the company of another person ( Mr Kh ) , the applicant 's car was stopped and inspected by the police . CARDINAL cans of diesel were discovered in the car .

According to the applicant , in reply to the questioning by the police he did not tell about the purchase of the fuel because he felt intimidated and did not have a receipt to prove the purchase ( see also paragraph CARDINAL below ) . That is why he explained that he had poured the fuel from the tank of his service vehicle ( see also paragraph CARDINAL below ) .

NORP Immediately , a vehicle inspection record was drawn under LAW ( CCrP ) in force at the material time ( see paragraph CARDINAL below ) . The record reads as follows :

“ ORG [ drawn ] at GPE on DATE from CARDINAL to TIME ] .

Officers B and L in the presence of attesting witnesses K and P and [ the applicant ] have carried out an inspection of VAZ-CARDINAL car in compliance with Articles CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure and have drawn this record under LAW .

Before the start of the inspection all the above persons have been informed of their rights to be present throughout the proceeding and to make comments in relation to the inspection ...

The attesting witnesses have been informed of their obligation to attest the fact of the inspection and its results ( LAW ) ...

During the inspection one passenger was present in the car ; there was a white plastic can with fuel ( QUANTITY ) . There was another metallic can of fuel ( QUANTITY ) in the car boot ...

The physical evidence has been seized in order to be attached to a criminal file : the plastic can with fuel ( QUANTITY ) and the metallic can with QUANTITY of fuel ...

Requests and comments by the participants : [ the applicant ] explained that he had poured out the fuel from the company LOC .

I have read the record and agree with its contents .

Signatures : Officer B , attesting witnesses K and P , [ the applicant ] , officer L. ”

Having completed the inspection record , officer B put in writing a statement entitled “ Explanations ” , which included a note concerning LAW on the privilege against self - incrimination ( see paragraph CARDINAL below ) . The “ Explanations ” read as follows :

“ Explanations [ put in writing ] on DATE at GPE .

I , officer B ... , have interviewed [ the applicant ] ...

The contents of LAW have been explained to me . { [ the applicant 's signature ] }

I [ the applicant ] make the following statement . Since DATE I have been employed as a driver by a private company . On DATE I arrived to my workplace at CARDINAL am . During DATE I was repairing my service vehicle . In the evening I poured out QUANTITY of fuel from the tank of my service vehicle . I have previously brought the cans , QUANTITY each , from home . After work , at TIME , I was driving home in my car and was stopped by the police . The car was inspected in the presence of the attesting witnesses . I poured out the fuel for personal use .

{ in the applicant 's handwriting } I have read this statement . It is correct . { [ the applicant 's ] signature . }

{ Officer 's B signature . } ”

On DATE , both attesting witnesses made written statements , indicating that they had been present during the inspection of the car and seizure of the fuel . They confirmed that the applicant had explained that he had poured out the fuel from the company premises for personal use .

NORP The applicant was not detained . On DATE an inquirer compiled a report under a so - called record - based procedure ( see paragraph CARDINAL below ) on the events of DATE . The report reads as follows :

“ I , inquirer P , have examined the data concerning theft . As required under LAW , I have compiled this report , which states as follows :

His actions disclose an offence of theft punishable under LAW .

The above has been confirmed by the following evidence :

the inspection record . CARDINAL . [ the applicant 's ] written statement . CARDINAL . PERSON written statement . CARDINAL . Mr P 's written statement ...

{ ORG signature } ”

On DATE , the inquirer 's superior opened a criminal case against the applicant on suspicion of theft and summoned him ( see paragraph CARDINAL below ) . The act of accusation read as follows :

“ I , major K , having examined the [ inquirer 's ] report and the enclosed documents , consider that there are sufficient grounds indicating that [ the applicant ] had committed the offence of theft punishable under LAW of LAW .

Pursuant to the procedure under LAW of LAW , a criminal case should be opened against [ the applicant ] ...

The accusation : At TIME on DATE [ the applicant] ... being at work intentionally stole from his service vehicle the diesel in the amount of QUANTITY . Thereby , he caused to the company pecuniary damage in the amount of MONEY .

Major PERSON 's signature

I have been informed of the nature of the accusation , the right to have access to the case file , the right to legal representation , the right to make requests and challenge the inquiring authorities ' actions .

[ the applicant 's ] signature

I have studied the case file and have read this document . I have no requests or motions . I do not require legal assistance ; this decision is based on reasons unrelated to lack of means . I will defend myself at the trial .

[ the applicant 's ] signature ”

At the trial the applicant was represented by PERSON , a lawyer practising in PERSON . As follows from the trial judgment and the trial record , the applicant contended at the trial that he had purchased the fuel on or DATE at a petrol station ; on DATE he had put the cans in his car intending to exchange it for firewood later and went to his work ; after DATE he was stopped by the police on his way home ; when stopped he had not told about the purchase of the fuel because he felt intimidated and had no receipt to prove the purchase . He contended that PERSON , who was in his car on DATE , had seen the applicant purchase the fuel at the petrol station . At the trial the applicant was asked if the inspection record had been drawn up on the spot or in Birofeld . The applicant replied as follows :

“ [ The police ] started to draw up the inspection record on the spot . Then a bus arrived . There was a tense situation so we left . The bus was also inspected ...

The inspection record was signed in Birofeld . It was started on the spot but was not finished there . ”

On DATE the applicant submitted to the court an invoice for the purchase of diesel . The court refused to accept the invoice in evidence considering that the applicant did not specify why he had not adduced that evidence at the initial stage of the questioning by the police or at the opening of the trial . The applicant , however , indicated that the invoice had been kept by his wife . It also appears that he specified the name and location of the petrol station where he had allegedly bought it and asked the court to verify this fact . It appears that the court did not follow up his request .

The trial court heard the applicant 's wife , who claimed that she had purchased the fuel and had given one petrol can to the applicant and that the applicant had purchased the remainder . The court also questioned PERSON who claimed to have seen the applicant purchasing diesel . PERSON was with the applicant on DATE and told the court that he had not witnessed any threats to the applicant from the police officers . The trial court refused to take those testimonies into consideration , considering that those persons were in close or friendly relationship with the defendant and that their testimonies would therefore be prejudiced .

Instead , the trial judge relied on the inspection record and the written statement made by the applicant on DATE , testimonies from the attesting witnesses who had been present during the inspection and seizure of fuel from the applicant 's car . The court also examined a Mr F who explained there had been cases of workers pouring out diesel from their service vehicles , and thus the company 's director had asked the competent authorities to carry out checks . The applicant 's car was apparently stopped during one of the checks .

Having examined the evidence , the judge considered that as followed from the inspection record , the applicant had admitted to “ have stolen ” the diesel from the company LOC . By a judgment of DATE , ORG convicted the applicant of theft and sentenced him to a suspended sentence of DATE imprisonment . The court held as follows :

“ It follows from the inspection record that CARDINAL cans of diesel ( QUANTITY ) were seized from [ the applicant 's ] car ... The applicant explained that he had stolen the diesel from the company LOC ...

Assessing the defendant 's testimony at the trial , the court considers that it is made - up with a view to avoiding criminal responsibility for the crime committed ; this testimony has not been supported by any objective evidence . The court takes into account his pre - trial testimony , from which it follows that on DATE after the end of his working day he had poured out fuel from his service vehicle and was stopped on his way back home . This testimony is logical and corresponds to witness statement by Mr F , PERSON and Mr P , as well as to the materials in the case file . ”

The applicant and his counsel appealed alleging that there was no proof that any diesel had been stolen from the company and that the applicant had not been apprised of the privilege against self - incrimination while the court then relied on his admissions made on DATE . In his appeal , the prosecutor considered that the applicant 's acts should be reclassified as misappropriation of property . On DATE ORG dismissed the appeals and upheld the judgment . The court confirmed that the applicant had been convicted on the basis of his own pre - trial admission and other evidence obtained by lawful means , including the inspection record . The applicant 's allegation of self - incrimination had been rightly rejected as unfounded .

Article CARDINAL § CARDINAL of the LAW provides that an arrested or detained person or a person accused of a criminal offence should have a right to legal representation from the moment of his or her arrest , placement into custody or when charges are brought .

Article CARDINAL of the LAW provides that no one should be obliged to give evidence against himself or herself , his or her spouse or close relative . Other exemptions from the obligation to testify may be authorised by a federal statute .

Pursuant to LAW , counsel could participate in the proceedings from the date when charges were brought or when the person was arrested or detained . If no preliminary inquiry or investigation was required in the case , counsel could participate in the proceedings from DATE when the case was submitted for trial ( LAW ) . On DATE ORG declared LAW unconstitutional as regards the limitation on legal representation before charges were brought . ORG decided that until the relevant legislation was amended , LAW should be directly applicable with due regard to the interpretation given by ORG .

LAW Procedure provided for a record - based pre - trial procedure in respect of a number of criminal offences . The general provisions of the Code were applicable in this procedure unless LAW of the Code otherwise provided ( LAW ) . 's or court'put in writing in a report .

Having examined the report , the inquiring authority should open a criminal case . The person concerned should be informed of the nature of the accusation and be apprised of his right to legal representation and to have access to the file .

Having received the file , the prosecutor should ( i ) submit the case to a court or ( ii ) order an inquiry or preliminary investigation or ( iii ) discontinue the case .

An investigator could carry out an inspection of a crime scene , location , LOC , physical objects or documents in order to detect traces of the crime or other physical evidence or to determine the relevant circumstances ( LAW ) . In urgent cases , the inspection could be carried out before opening a criminal case . In such cases , the case was to be opened immediately after the inspection of the crime scene .

A record had to be drawn up and signed by all persons who took part in the investigative measure ( Articles CARDINAL and CARDINAL of the Code ) . Those persons were to be informed that they had a right to make comments ( Article CARDINAL ) . If the suspect , accused or another participant refused to sign the record , a note to this effect should be included in the record ( Article CARDINAL ) .

An accused hadcould be used as a basis for criminal charges only if his or her culpability was confirmed by the totality of evidence collected in the case ( LAW ) .

Article CARDINAL of the Code of Criminal Procedure , in force at the present time , provides for a possibility to re - open criminal proceedings on the basis of a finding of a violation of the Convention made by ORG .