The applicant , PERSON , is a NORP national who was born in DATE and lives in Bramminge . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

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

The applicant owned and managed CARDINAL private limited companies , which each ran CARDINAL freshwater fish farms .

On DATE the applicant was charged with offences against the Act on Freshwater Fish Farms of CARDINAL DATE ( bekendtgørelse nr . CARDINAL ) as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment , and with enrichment for himself .

An indictment of CARDINAL DATE , and supplementary indictments of CARDINAL DATE , DATE and DATE , amended on DATE , were submitted to ORG in ORG ) , concerning offences against the said LAW and the amended Acts on LOC of DATE ( bekendtgørelse nr . CARDINAL ) and of DATE ( bekendtgørelse nr . CARDINAL ) and LAW ( PERSON ) . The supplementary indictments were submitted because the applicant continued to exceed the fixed feed quotas until DATE .

Having received the indictment of CARDINAL DATE , ORG held a hearing on DATE , after which it adjourned the case in order that the applicant ’s counsel submitted a legal opinion . On DATE the latter maintained that ORG interpretation of section CARDINAL of LAW was not supported by the preparatory notes to LAW , nor by its wording and the administrative practice relating to the LAW . Moreover he found that ORG did not have the necessary authority to change the legal basis of the applicant ’s business by means of the LAW on Freshwater Fish Farms . Finally , he claimed that LAW did not provide the necessary legal authority for LAW on Freshwater Fish Farms .

On DATE , having obtained observations from various authorities , the Chief Constable of Hobro ( Politimesteren i Hobro ) submitted his reply to ORG . Thereafter counsel was requested to file his reply by DATE , on his request , however , the time - limit was extended .

In the meantime , on DATE , ORG of Terndrup ( PERSON ) passed judgment in a similar case , ruling on a number of questions of principle , which were also of importance in the applicant ’s case , including whether LAW had legal authority , how to calculate the fish farmers’ profit and how to assess a proportionate fine . An appeal against the judgment was lodged with ORG ) .

The applicant ’s case was adjourned awaiting the outcome of the said appeal , since it was considered to be a so - called “ test - case ” . The applicant ’s counsel represented the defendants in the said case and the applicant did not object to the adjournment of his case .

The appeal proceedings in the test - case were finally determined by a ORG judgment of CARDINAL DATE , which stated that LAW provided the requisite authority and that the sanction for any violation of it should be imposition of a fine and confiscation of any profit .

As a consequence of the judgment , ORG of Aalborg ( Statsadvokaten i Aalborg ) , who at the relevant time had CARDINAL similar cases being prosecuted by him in the first instance , forwarded a memorandum to all the Chief Constables in DATE , urging them to expedite the “ fish farms cases ” .

In DATE , however , a defendant in another test - case alleged that the CARDINAL Act was anti - competitive and therefore in conflict with ORG law . Thereupon ORG of GPE requested ORG ) and ORG set up by ORG ( PERSON for juridiske spørgsmål ) to provide an opinion . Neither found that the LAW fell within the scope of LAW of the ORG treaty . In DATE , in the specific testcase , ORG ruled that it found no reason to refer to question to ORG . Against this background , in DATE , ORG of GPE forwarded CARDINAL memoranda to the Chief Constables urging them to expedite the fish farm cases as much as possible .

In the meantime , in DATE in yet another test - case , a defendant had alleged in vain that the CARDINAL Act was contrary to section CARDINAL of LAW . Consequently , in DATE ORG of Sønderborg ( Statsadvokaten i ORG ) forwarded a memorandum to all the Chief Constables providing an account of the latest development in the cases concerning fish farms and urging to expedite them .

It appears that as from DATE difficulties arose as to setting the applicant ’s case down for trial because his counsel was busy and that therefore the applicant changed lawyer . On DATE the applicant ’s new counsel inquired about the length of the proceedings .

On DATE , the Chief Constable of PERSON replied that subsequent to the test - cases having been determined it had been difficult to set the applicants’ case down for trial , and that this was probably the reason why the applicant had changed counsel .

The trial took place before ORG in the period DATE . Hearings were held on DATE , DATE , DATE , DATE , DATE and DATE .

ORG passed judgment on DATE . The applicant was convicted and sentenced to pay a fine of CARDINAL Danish kroner ( ORG ) . In addition , a profit estimated to DKK CARDINAL was confiscated from the CARDINAL companies owned by him .

The applicant appealed immediately against the judgment to ORG GPE . On DATE the prosecution crossappealed .

Shortly thereafter counsel informed ORG that he was of the opinion that the LAW on Freshwater Fish Farms had not been notified to ORG as prescribed by the CARDINAL/CARDINAL/EEC ORG CARDINAL . He urged the prosecutor to withdraw the charges against the applicant and stated that otherwise he would request a reference for a preliminary ruling by ORG . In this connection a hearing was held on DATE and written pleadings were submitted .

Thereafter the case was adjourned in order to await the outcome of CARDINAL similar criminal cases which on DATE had been jointly brought before ORG ( Højesteret ) ( see PERSON CARDINAL.CARDINALH and UfR. CARDINAL.CARDINALH , dealt with in PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) , because the arguments of the defendants in the said cases and those of the applicant were identical . The applicant ’s counsel represented the CARDINAL defendants PERSON and PERSON in their case before ORG ( for a summary of those proceedings , which ended on DATE , when ORG passed judgments against the defendants , see PERSON and PERSON v. GPE , cited above , § § DATE ) .

On DATE the Prosecutor General forwarded a letter to ORG and others stating that the adjourned cases could now proceed .

On DATE ORG requested ORG to set down the applicant ’s case for trial . However , since the Prosecution and the environmental authorities had to discuss and coordinate the claims made in all the cases concerning fish farming , ORG requested that the case should not be scheduled before DATE .

It appears that at some date DATE , the High ORG scheduled the trial in the present case to take place during DATE in DATE .

On DATE , counsel stated that he was unable to appear on CARDINAL of the relevant dates scheduled by ORG . At the same time he made various submissions in favour of adjourning the case awaiting the outcome of a civil case lodged by the applicant concerning administrative decisions relating to the applicant ’s profession , which allegedly was of importance to the criminal case against him . The prosecutor submitted his objection thereto on DATE .

On DATE the Prosecutor General issued guidelines to the prosecution ( ORG nr . CARDINAL/CARDINAL ) on how to go about with this kind of criminal cases and which sentences to propose .

On DATE , having regard to the fact that counsel was unable to appear on CARDINAL of the relevant dates in DATE , ORG decided to re - schedule the trial . It refused counsel ’s request that the case be adjourned awaiting the outcome of the civil proceedings lodged by the applicant .

In DATE counsel requested anew an adjournment of the case . The prosecutor objected thereto on DATE . On DATE the request was refused by ORG . On DATE ORG scheduled the trial to take place during DATE on DATE .

On DATE the trial had to be adjourned until further notice as the applicant had a legal cause of absence . It was re - scheduled and took place from CARDINAL until DATE .

On DATE counsel for the applicant submitted further material to ORG and notified it that he would claim that the length of the proceedings should be taken into account when determining the sentence .

By judgment of DATE the High Court of Western GPE upheld the applicant ’s conviction with few amendments and reduced the fine to DKK CARDINAL and the amount to be confiscated to a total of DKK CARDINAL .

With regard to the applicant ’s complaint under LAW , ORG found that the proceedings had commenced on DATE and ended with its judgment of DATE , thus lasting DATE . It found that the case had been comprehensive and complex and taking all circumstances into consideration , including the awaiting of important and relevant “ test cases ” the High Court found that the length of the proceedings had not exceeded the “ reasonable time ” requirement within the meaning of LAW .

On DATE the applicant requested leave to appeal against the ORG judgment and on CARDINAL and DATE he submitted supplementary pleadings . In the request the applicant did not complain about the length of the proceedings or invoke LAW . His request was refused by the Leave - to - Appeal Board ( Procesbevillingsnævnet ) on DATE on the grounds that it had been filed after the expiry of the time - limit which was DATE after the delivery of the judgment . ORG did not find that the time - limit had been exceeded for excusable reasons , or that the case presented any such extraordinary circumstances as would make it incumbent on ORG to grant leave to appeal .

ORG provides in as far as relevant :

“ ORG notifies ORG of the scheduling of the trial , and informs [ him or her ] and the accused about assignment of counsel [ if any ] . The information to the accused thereon may be given through ORG in connection with the serving of the summons ” .

According to this provision a [ criminal ] judgment passed by a High ORG , acting as an appeal court , can not be appealed against . However , the Leave - to - Appeal Board may grant leave to appeal to a court of third instance if the case involves matters of principles or if special circumstances in the case so justify . A request for leave to appeal must be submitted to the ORG within DATE from the passing of the judgment . However , ORG may exceptionally grant leave to appeal if the request is submitted later , albeit within DATE from the passing of the judgment .


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

The applicant is a practising lawyer . Together with several other persons who were shareholders and managing director of a private limited company , the applicant learned in DATE about the existence of several plots of land on the territory of the former GPE ( GPE ) for which no restitution claim had yet been made . Pursuant to ORG DATE , whose aim was to resolve disputes over property in the territory of the GPE in a way that was socially acceptable , the deadline for the registration of such restitution claims was DATE . The applicant applied for restitution of the above plots of land without revealing that he did not have the authority of the persons who were entitled to restitution and whose names he did not know at the time . He later obtained such authority , predated the forms to a date prior to DATE and intended to arrange the assignment of the restitution claim to the private limited company for a price that was considerably below the market value of the plots of land .

ORG commenced investigations for fraud against the applicant in DATE and filed the indictment on DATE .

On DATE , ORG convicted the applicant of abetting attempted fraud in CARDINAL instances and sentenced him to a fine of CARDINAL DEM . The main proceedings had been conducted during the period DATE and DATE and concerned the applicant and CARDINAL other accused persons ; the judgment contained CARDINAL pages .

On the applicant ’s appeal on points of law , ORG on DATE quashed the judgment of ORG of CARDINAL DATE and referred the case back to another division of ORG . ORG found that ORG had not provided sufficient reasoning as to the accuseds’ intent with regard to the unlawfulness of the pecuniary benefit , an element of fraud under NORP law . Since the NORP administrative courts at the time had been divided over the issue whether or not the registration for restitution by a representative without authority could be retroactively authorised , ORG had erroneously inferred from the predated authority forms that the applicant and his co - accused had had the requisite intent . ORG referred the case back to ORG in order to establish whether the applicant had acted with contingent intent . Lastly , it found that in case of a subsequent conviction , ORG when sentencing would have to take into account fact that the proceedings against the applicant had lasted for a considerable time . The length of time would also have to be considered by ORG in the context of LAW .

On DATE , ORG , after having obtained the consent of ORG and the applicant , provisionally stayed the proceedings in accordance with section CARDINAL § CARDINAL read in conjunction with section CARDINAL § CARDINAL of LAW ( see Relevant domestic law , below ) on condition that the applicant paid the amount of CARDINAL € to the ORG treasury . The applicant paid the sum , and on DATE , ORG formally discontinued the proceedings .

Section CARDINALa of the Code of Criminal Procedure governs the discontinuance of criminal proceedings after the fulfilment of certain conditions by the applicant .

According to section CARDINALa § CARDINAL of LAW , ORG may discontinue criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of DATE imprisonment ( PERSON ) , if the defendant ’s guilt would be of a minor nature and if the fulfilment of certain conditions or orders by the defendant is suitable to remove the public interest in criminal prosecution . Such conditions notably entail the payment of a sum of money to a non - profit - making organisation or to a treasury . The defendant must consent to discontinuation . Moreover , the court which has jurisdiction to open the main proceedings must also consent unless the case concerns offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor .

After the filing of the indictment , the court which has jurisdiction may , according to section CARDINALa § CARDINAL of LAW , decide to discontinue the proceedings under the conditions set out in section CARDINAL § CARDINAL with the consent of both ORG and the defendant . Once the proceedings have been discontinued , it is not longer open to the parties to take any further steps in the procedure unless the proceedings are resumed , which is only possible if the accused is charged with an offence for which it is mandatory to impose a sentence of DATE imprisonment ( PERSON ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr J. Pernica , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

On DATE the applicant lodged an action with ORG ( městský soud ) claiming the separation of the marital property .

It appears that the proceedings are still pending .

On DATE the applicant applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended . She claimed CZK CARDINAL ( ORG CARDINAL ) in respect of pecuniary damage and expenses incurred in the judicial proceedings and CZK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) in respect of non - pecuniary damage .

In a letter of CARDINAL DATE ORG informed the applicant that her application had been accepted , that it had been found that her right to a determination of their civil claim within a reasonable time had been violated and that the applicant had been awarded a sum of CZK CARDINAL ( EUR CARDINAL ) in respect of non - pecuniary damage she might have sustained . ORG refused , however , the applicant ’s claim regarding compensation for pecuniary damage .

On DATE the applicant informed the Registry that she did not intend to turn to a court under section CARDINAL(CARDINAL ) of Act no . CARDINAL/CARDINAL as amended .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


The applicant [ Mr PERSON ] , a NORP national born in DATE , used to live in GPE . He was represented before the Court by Mr K .- PERSON , of GPE . The applicant died on DATE , but his sons ( Mr PERSON and Mr PERSON ) wished to continue the proceedings before the ORG .

The applicant was a urologist and had opened his own surgery in GPE ( GDR ) in DATE .

From DATE he had subscribed to the GPE ’s general pension scheme by paying compulsory social - insurance contributions ( ORG ) and , from DATE , optional supplementary pension insurance ( freiwillige PERSON ) . He had also subscribed to additional pension schemes ( Zusatzversorgungssysteme ) of the GPE by taking out optional pension insurance ( freiwillige PERSON ) and paying contributions to ORG and Dentists ( ORG für ORG in eigener Praxis ) .

From DATE the applicant received a DATE pension of ORG marks from the compulsory social - insurance fund and MONEY from the optional supplementary pension fund .

The applicant also received a DATE pension of MONEY pursuant to ORG ( Verordnung über die freiwillige ORG ) of DATE , and a DATE supplementary pension of MONEY from ORG and Dentists , which was increased to MONEY from DATE .

As at DATE , after a number of increases , the applicant was receiving a total DATE pension of MONEY ( excluding the pension paid pursuant to ORG of DATE ) .

Pursuant to LAW of DATE between GPE ( FRG ) and the GPE on ORG ( Staatsvertrag über die LANGUAGE einer Währungs- , Wirtschafts- und MONEY Bundesrepublik GPE und der GPE Republik – see “ Relevant domestic law ” below ) , GPE pensions were converted at the rate of CARDINAL GPE mark for CARDINAL FRG mark ( ORG ) and paid in that currency .

From DATE the applicant accordingly received a DATE pension of DEM CARDINAL,CARDINAL .

In CARDINAL decisions of ORG for Salaried Employees ( GPE für ORG ) of DATE and DATE on the conversion and alignment of GPE pension rights from DATE , the applicant ’s pension was incorporated into the ORG ’s general pension scheme and paid as an “ ordinary old - age pension ” ( PERSON ) in accordance with the method of calculation provided for in the new pensions law ( LAW and CARDINAL of Social Code no . VI ( GPE ) DATE see “ Relevant domestic law ” below ) .

At first ORG for Salaried Employees continued to pay the applicant DEM CARDINAL,CARDINAL . It subsequently increased the applicant ’s pension to DEM DATE from DATE .

In a decision of DATE ORG ( PERSON ) dismissed an objection lodged by the applicant on DATE , DATE and CARDINAL DATE against the decision of ORG challenging , among other things , the basis on which his pension rights under the GPE ’s additional pension schemes had been calculated .

In a judgment of DATE ORG ( ORG ) also dismissed an appeal by the applicant .

In a judgment of DATE ORG ( Landessozialgericht ) of ORG modified the earlier decisions and judgments in part and awarded the applicant , from DATE , a pension indexed to the cost of living ( anzupassende GPE ) of DEM CARDINAL,CARDINAL.CARDINAL per month and a non - indexed pension ( nichtanpassungs - fähige PERSON ) of DEM CARDINAL per month , making a total of DEM DATE .

ORG held that the applicant ’s pension should be calculated on the basis of LAW no . VI ( see “ Relevant domestic law ” below ) because he had also paid contributions to the GPE ’s optional supplementary pension fund .

In a judgment of DATE ORG ( ORG ) set aside that judgment , on appeal by the authorities , on the ground that the alignment and transfer of the applicant ’s pension should be based exclusively on LAW no . VI because the total amount of the pension was based at least in part on pension rights accrued under an additional or special retirement scheme ( ORG aus einem Zusatz- oder LAW ) of the GPE .

ORG reiterated that , in this type of case , it was always the special law relating to the GPE ’s additional and special retirement schemes as set out in LAW ( Einigungsvertrag – see “ Relevant domestic law ” below ) and the provisions of the PERSON on ORG ( Anspruchs - und ORG ) and LAW no . ORG that were applicable .

ORG held that the difference in treatment between persons having acquired “ real ” pension rights under the GPE ’s general pension scheme , comprising the compulsory social - insurance fund and the optional supplementary pension fund , and persons having acquired pension rights under the GPE ’s additional and special pension schemes was justified . In the former case there was a clearly established link between the contributions paid and the benefits received , and it was possible to rely on the data in the files kept by the insurance funds ( ORG in den Sozialversicherungsausweisen ) . However , with regard to pension rights under the additional and special retirement schemes , the position was much more confused ( unübersichtlich ) : the legal basis was unclear , there was only a partial obligation to pay contributions , which , even where it existed , was treated inconsistently both in respect of the income to be taken into account and of the total contributions payable ; lastly , the data available on the insured ’s life was often unusable .

ORG added that the possibility could not be ruled out , having regard to the fact that the benefits paid under the additional and special pension schemes were far greater than those paid under the general pension scheme , that the former pension rights had been greater than those of other employees in the GPE for political reasons .

ORG concluded that the legislature was therefore justified , under the provisions applicable during the transitional period ( LAW no . VI ) , in making a standardised calculation and taking as a basis the average salary used as a reference by the compulsory social insurance fund .

In DATE the applicant lodged a constitutional appeal with ORG ( Bundesverfassungsgericht ) . He submitted that the reduction ( “ Abschmelzung ” ) of his pension rights under the additional pension scheme had breached his right of property and constituted unjustified discriminatory treatment compared with his counterparts of the ORG and with persons eligible for a pension under the GPE ’s general pension scheme . The amount of his pension had , accordingly , fallen to an abnormally low level compared to the rights acquired in the GPE .

In a judgment of DATE ORG , after hearing submissions from ORG , ORG for ORG , ORG , ORG and CARDINAL experts , also dismissed the applicant ’s appeal , on the ground that the impugned provisions were not contrary to LAW ) .

ORG first reiterated the general difficulties involved in transferring and incorporating the pension rights of all pensioners from the GPE into the ORG ’s pension scheme . Those difficulties were due to the large number of pensioners ( CARDINAL ) to be incorporated and the fact that the CARDINAL schemes were based on very different principles . Whereas in the FRG the amount of benefits depended mainly on the contributions paid , the system in the GPE had been a mixture between an insurance scheme and a pension scheme ( GPE zwischen Versicherungs- und NORP ) .

ORG went on to stress that the legislature had had a wide margin of appreciation in that regard and that , for practical reasons , it had been justified for at least a transitional period of DATE in using a standardised method of calculation resulting DATE provisionally – in certain differences of treatment regarding , inter alia , the time at which the amount of the pension was finally determined ( GPE endgültigen GPE ) , the taking into consideration of DATE of service in calculating the DATE pension ( LOC der PERSON Ermittlung des monatlichen PERSON ) and the determination of the minimum protected amount ( GPE ) between pension rights under the general pension scheme and those under the GPE ’s additional and special schemes . However , from DATE those pension rights had been recalculated and the difference paid retrospectively , as had been the case for the applicant .

ORG added that , having regard to the difficulties of incorporating CARDINAL scheme into the other , the legislature had not exceeded its margin of appreciation , considering that – during DATE the pensioners whose pension rights had accrued under the additional pension schemes were not so severely affected by the provisional difference of treatment because they had a higher standard of living than the pensioners whose pension rights had accrued under the general pension scheme .

ORG pointed out that in the case of the applicant ORG for Salaried Employees had further adjusted his pension on DATE , increasing it retrospectively from DATE .

In the same judgment ORG found that at DATE , when it came to calculating the definitive amount of pensions , an inequality of treatment remained regarding the taking into consideration of the total number of DATE of service between pension rights accrued under the general pension scheme ( where only DATE of service were taken into consideration ) and pension rights accrued under the additional pension schemes of the GPE ( where DATE of service were taken into consideration ) .

ORG found that this difference in treatment breached LAW and ordered the NORP legislature to put new rules in place by DATE . However , that complaint had not been raised by the applicant , but by a third party who had also lodged a constitutional appeal .

On DATE ORG delivered several leading judgments in other cases which also concerned the method used to transfer former GPE citizens’ pension rights .

From DATE the applicant received a DATE pension of DEM CARDINAL,CARDINAL .

The pension system of the GPE comprised the general pension scheme , which was composed of the compulsory social insurance fund ( GPE ) and the optional supplementary pension fund ( freiwillige PERSON ) , and a host of additional pension schemes ( Zusatzversorgungssysteme ) , including , among others , the optional pension fund ( freiwillige PERSON ) and ORG and Dentists ( ORG für ORG in eigener Praxis ) , which paid extra benefits in addition to the pensions payable under the general scheme .

LAW of DATE between the ORG and the GPE on ORG ( Staatsvertrag über die LANGUAGE einer Währungs- , Wirtschafts- und MONEY der Bundesrepublik GPE und der GPE ) provided for pension rights accrued under the GPE scheme to be brought into line with those accrued under the ORG scheme and to be reconverted into MONEY ( ORG ) at the rate of CARDINAL GPE mark for CARDINAL FRG mark ( Articles CARDINAL § CARDINAL and CARDINAL of the LAW ) , and set out the terms and conditions of transfer of those pension rights .

LAW in question is worded as follows :

“ … Acquired rights and future rights shall be transferred to the [ FRG ] pension scheme , but the benefits payable under the special provisions shall be re - examined with a view to eliminating unjustified benefits and reducing excessive benefits … ”

Those principles also appear in LAW ( Einigungsvertrag ) of CARDINAL DATE ( see PERSON , Chapter VIII , section H , paragraph III no . CARDINAL ( b ) ) .

On the basis of that treaty the GPE legislature decided , in accordance with ORG ( Rentenangleichungsgesetz ) of DATE , that pensions under the general pension scheme and pensions under the additional pension schemes would be paid in full from DATE until their full and final incorporation into the FRG pension scheme .

After NORP reunification on DATE the retirement scheme of the GPE remained in force until DATE , the date of entry into force of the ORG ’s PERSON of DATE on ORG ( Gesetz zur Herstellung der LANGUAGE in der gesetzlichen Renten- und GPE – ORG ) .

During the transitional period from DATE to CARDINAL DATE , the CARDINAL pension schemes operated side by side in GPE .

From DATE all DATE pension amounts were determined in accordance with a new formula , whereby the pensions paid to former GPE pensioners were progressively brought into line with those paid to ORG pensioners until such time as ORG incomes were the same throughout the ORG .

The DATE pension amounts were determined in accordance with Articles ORG ( for the pension rights under the general pension scheme of the GPE ) and CARDINALb ( for the pension rights under the additional and special retirement schemes of the GPE ) of ORG no . VI of the ORG , which came into force on DATE .

Article CARDINALa of Social Code no . VI provided for the overall and definitive conversion of pension rights accrued under the general pension scheme of the GPE from DATE by multiplying DATE of service to be taken into consideration by the number of salary points ( PERSON ) acquired during DATE of service .

LAW no . ORG also provided for the conversion of pension rights under the additional and special retirement schemes by taking as a basis the average salary over DATE of service , but this was the average salary which had been used as a reference by the compulsory social insurance fund , and not individual salaries . However , those pension rights were recalculated after a transitional period of DATE and the difference was paid to pensioners retrospectively .

On NORP reunification , pensioners of the GPE and the ORG found themselves in very different positions .

According to the official statistics of ORG ) of the ORG , at DATE , the level of GPE pensions corresponded on average to CARDINAL of the level of FRG pensions , reflecting also the differences in salary and standard of living in GPE .

In general , a pensioner who at DATE had been receiving , for example , a pension of MONEY received , without taking account of price increases , on average a pension of DEM DATE , which was equivalent to a real increase of PERCENT .

Lastly , financial transfers from LOC to LOC , in connection with pensions , were of MONEY in DATE , ORG CARDINAL in DATE and MONEY in DATE .


KRIZANOVA AND OTHERS v. THE CZECH REPUBLIC

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicants , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively , and live in GPE ) respectively . They were represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON ORG ORG , from ORG .

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

On DATE the applicants brought proceedings for the restitution of their property which had been nationalised by the former communist regime .

It appears that the proceedings are still pending .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On an unspecified date the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


The applicant is a NORP national of NORP origin , born in DATE . At present he is detained in the PERSON prison in GPE .

A.

On DATE ORG convicted the applicant of murder . He was sentenced to CARDINAL years’ imprisonment . On DATE the applicant was served with a written copy of the first instance judgment . The applicant appealed .

On DATE ORG held a hearing at which the applicant ’s counsel was present . The court dismissed the appeal , finding that the first instance court had properly decided the case .

In DATE , the applicant approached the prison administration , asking why he had received no written version of the appellate decision of DATE . ORG informed him that on DATE ORG had in fact sent a written version of the appellate decision to a special hospital of ORG where , at the time , the applicant had been detained . The applicant applied to the ORG , who confirmed that the hospital had received the decision on DATE . The ORG advised the applicant to ask the hospital management about the alleged disappearance of the written decision . The applicant appears not to have approached the hospital management subsequently .

Following the applicant ’s demand , on DATE ORG sent him a written version of the decision of CARDINAL DATE . On DATE he was furnished with another copy of the decision . The applicant expressed his intention to file a cassation appeal in the case but was informed by ORG that he had not complied with the CARDINAL months’ time - limit to file a cassation appeal under LAW .

On DATE the applicant applied to ORG , complaining that he had been denied access to ORG . ORG advised the applicant to apply to ORG for leave to file a cassation appeal out of time pursuant to LAW . There is no indication that the applicant subsequently requested that leave .

B. Relevant domestic law

Pursuant to LAW , a decision of the appellate court dismissing an appeal is pronounced in open court . Reasons must be given . In its final form a written version of the decision must be prepared within DATE after its pronouncement . Pursuant to LAW , within DATE following its adoption the appellate decision must be transmitted , for execution , to the court which gave the first instance judgment . Under LAW the first instance court is then required to furnish a copy of the first instance judgment to the prison administration ( no time - limits are set by domestic criminal procedure in this respect ) . Article CARDINAL § CARDINAL also provides that , where the first instance judgment is amended or quashed , a written version of the appellate decision must also be sent to the prison for the defendant ’s information .

Under LAW , a cassation appeal can be filed within DATE after the first instance judgment becomes effective . Pursuant to LAW , if the appeal against the first instance judgment is dismissed at appellate instance , the first instance judgment becomes effective on the date when the appellate decision was taken .

Article CARDINAL § CARDINAL of the Code lays down the requirements for a cassation appeal . Pursuant to the above provision , a cassation appeal should include references to the name of a cassation court , the case and decision at issue , the substance of the decision and the reasons for appealing against it , and the appeal claims .

Article CARDINAL § CARDINAL of LAW stipulates that , provided that a cassation appeal complies with the above requirements , a senior judge of an appellate court or cassation court should order the transmission of the case - file from the lower court . Within DATE following receipt of the case - file , a senior cassation court judge must issue an order accepting the appeal for consideration .

Pursuant to LAW , a time - limit that was missed for an important reason can be reinstated by a court upon the request of the person concerned .


No violation of Art. 6-1 (right of access);Violation of Art. 6-1 (publicly);Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr PERSON was born in DATE and lives in GPE .

ORG Since DATE the applicant has owned a refuse tip at GPE in GPE . He used to operate it under a revocable refuse - tipping licence granted to his predecessor in title on DATE under LAW DATE ( ORG ) .

ORG On DATE the tipping licence was revoked by the Governor ( PERSON ) of ORG on the grounds , inter alia , that dangerously high levels of toxic substances had been found in the groundwater ( which forms part of a groundwater reservoir for drinking - water for CARDINAL people ) ; QUANTITY found at the site contained unauthorised substances ; and the site was in any event unsuitable for tipping - even ordinary domestic waste should not be dumped there .

Mr PERSON appealed to ORG für Land- PERSON ) , complaining also that he should have had the right to be heard . On DATE the appeal was dismissed on the ground that it was absolutely essential to close the tip in order to safeguard water supplies , since it was not technically possible to render the site safe . As to the applicant ’s right to be heard , he had had ample opportunity to make his views known and an oral hearing was not required in proceedings involving revocation of licences .

ORG On DATE Mr PERSON filed a complaint with ORG ) alleging a violation of , inter alia , Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , in that the administrative authorities had not granted his request for an oral hearing . He requested that a hearing be held before ORG . On DATE , pursuant to Article CARDINAL para . CARDINAL of LAW ( see paragraph CARDINAL below ) ORG declined to accept the applicant ’s complaint . It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly . To the extent that the complaint did touch upon questions of constitutional law , it did not have sufficient prospects of success . No hearing was held .

ORG On DATE , before his constitutional complaint , the applicant had lodged an appeal with ORG ( Verwaltungsgerichtshof ) in which he alleged that the decision of CARDINAL DATE was unlawful and that the administrative authorities should have held a hearing . He requested that the decision be quashed and that a hearing be held before ORG .

On DATE ORG dismissed the applicant ’s complaint as ill - founded pursuant to section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . The court found that an oral hearing before ORG had not been necessary and rejected the applicant ’s request for such a hearing before the court itself under section DATE ( CARDINAL ) ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

ORG The following reasons were given in the judgment :

" The appellant submitted in the first place that in the reasons given for the decision at first instance the scope of the DATE licence was wrongly restricted in terms of area ; the revocation of the licence , which was upheld on appeal , without this question - raised in the appeal - having been dealt with , therefore remained contradictory . The ORG can discern no such contradiction . The revocation by the water - rights authority of first instance , which was upheld by the respondent authority , related - according to the terms of the formal order - to the DATE licence without any restriction . Similarly , where in the reasons given for the Land Governor ’s decision of CARDINAL DATE the words ‘ where the gravel pit has already been ORG used when parcel CARDINAL - CARDINAL PERSON is being particularised , they are merely taken from the decision of DATE whereby the licence was granted . Moreover , the use of the expression ‘ part of the area’ ( Teilfläche ) merely clarifies - in the context of setting out the earlier history - the meaning which the same authority attributed to the outline description in the decision whereby the revoked licence had been granted . This is not a legally binding determination , nor does it in any way restrict the revocation itself , which at all events applied to the DATE licence in its entirety , regardless of how the indication ‘ where the gravel pit has already been ORG which is not more closely defined - is to be understood . It is accordingly clear , without it being necessary to go into the appeal submissions in detail , that neither the aforementioned comment in the decision at first instance nor the absence of any reference to these issues in the impugned decision amounted to an interference with the rights of the appellant .

It is irrelevant whether the reservation of the right to revoke the licence under LAW ( CARDINAL ) of LAW DATE was properly included in the DATE decision , as that decision became final and the aforesaid incidental provision became legally effective likewise . The ORG agrees with the respondent authority and , on this point , the appellant that even where , as in the present case , a reservation of the right to revoke is not spelt out in more detail , revocation is justifiable only where there are sufficient objective reasons for it ; these , however ( and to this extent the ORG ’s view does not coincide with the CARDINAL reflected in the decision appealed against ) , could only derive from considerations of public interest , since the right to revoke was not reserved in the interests of third parties . Ultimately , the revocation of a decision under LAW can only be regarded as objectively justified if it can be considered necessary within the meaning of the LAW ; and that applies only where it does not serve interests that can be asserted under provisions of LAW without any specific need for a revocation .

The appellant criticises the respondent authority for having confirmed the revocation of the water - rights licence for no valid reason .

The appellant complains that in the decision at first instance and in the impugned decision it is stated , among other things , that waste tipping in accordance with the terms of the licence could contribute to an increased potential hazard . In the decision at first instance the remark relating to an increased risk of this kind plainly goes back to a finding - also cited in the reasons - by the officially appointed medical expert that , in view of its position in the central area of the NORP basin , the site of the refuse tip was to be rejected on health grounds and represented a potential hazard to the groundwater . The same expert referred to a comment by the officially appointed technical expert , who had stated that by DATE criteria a renewal of the licence for a refuse tip on this site was to be ruled out . In the decision appealed against , the site of the tip as such was likewise described as problematical on the basis of the PERSON reports - in the expert opinion that is reproduced in the impugned decision it is stated that it was out of the question that areas where there were sources of groundwater suitable in quantity and quality for use as a water supply should be used for refuse tips - and the tipping of waste that endangered the groundwater was attributed to among other things the ‘ imprecise wording of DATE . This last observation concerns the past , and the appellant can not rely on the distinction between licensed and unlicensed tipping as set out in this ORG ’s decision of CARDINAL DATE , no . CARDINAL/CARDINAL/CARDINAL , to rebut it . This distinction was indeed recognised partly in contradiction of the view that had been advanced by the appellant ’s predecessor in title . It accordingly can not be ruled out that , prior to publication of the court decision just mentioned , the operator of the tip disregarded the differences that are pointed out in it and which are of importance as regards authorised tipping of waste . As to the technical comments on the choice of site , however , these appear to the ORG sufficient to justify the view that even authorised tipping was at least ‘ problematical’ on the particular site .

The appellant further submitted that dumping in accordance with the licence had not so far been proved to have had any effects in the area around the tip ; he referred to the report of DATE by an officially appointed technical expert , in which , however , the possibility of groundwater contamination by domestic waste is also described in detail . In the expert report reproduced in the decision appealed against , reference was also made to the fact that a considerable length of time passed between the moment of pollution and the first observable signs of harmful substances in the subsoil or in the groundwater , a fact that had previously been regarded as pointing to the subsoil ’s ( only ) seemingly unlimited cleansing and storing capacity and in many cases had led to an approach to the siting and licensing of refuse tips that would nowadays be regarded as untenable . The fear of adverse effects on the groundwater is thus not shown to be baseless - as the appellant ’s objection amounts to saying - by even a single finding .

The appellant further submitted that in the impugned decision an additional argument in favour of revocation was wrongly put forward to the effect that waste which was dumped contrary to the terms of the licence was so mixed up with that which was tipped in accordance with it that it was in practice impossible to separate the CARDINAL kinds . The appellant contended that this argument overlooked the fact that , according to the officially appointed technical expert ’s opinion of DATE on the issue of a general clearing up of the site , it was assumed that hazardous waste discovered on the site was separable from the other waste ; in the decision at first instance , moreover , such a mixing up was a mere supposition . Apart from the fact that in describing the CARDINAL types of waste as being ‘ in ORG inseparable ( as was assumed ) , account was clearly taken of the practical difficulties which were mentioned in the same expert opinion , with express reference to the need to establish ‘ a highly qualified water - supervision unit that must have appropriate facilities available to it for carrying out analyses and for the safe disposal of any hazardous waste’ , this observation concerning the past is in any case of no vital importance for the revocation , which has its effects in the future , preventing future dumping .

The appellant pointed out that a mass of findings confirmed that there was no danger in the western part of the site , contrary to what was stated in the impugned decision ; it followed that the cleaned - up western part of the site was ready for use for dumping in accordance with the terms of the licence . The passages from the administrative file which the appellant cites in evidence in this connection do not , however , support that assertion . In the opinion submitted on DATE the domestic refuse deposited on the site is described by the expert as posing a threat to the groundwater , independently of the barrels to be disposed of . In a letter of CARDINAL DATE from the district authority ( ORG ) , which is also referred to by the appellant , it was admittedly announced that the cleaning - up operation had been completed , but at the same time the issue of what was to be done with the domestic waste whose existence had originally not been known about was also addressed . In an expert opinion of CARDINAL DATE , likewise cited by the appellant , it was confirmed that digging works were being carried out in the western part of the pit , but it was also noted that domestic waste had been found there and that it could not be ruled out that chemicals had been buried with it ; furthermore , the possibility of sealing the site without removing the waste was rejected on technical grounds and because of the danger that barrels had been buried with it . In the district authority ’s letter of DATE it was stated that the domestic waste still remaining in the cleaned - up western area would be removed once the decision had been taken on cleaning up the entire site . Thus , it has not been made out that the western part of the site is free of any dangerous waste nor has the argument been refuted that further tipping of permissible waste , on top of the waste already on the site , must be stopped precisely for the purpose of removing that existing waste .

For these reasons and because , as set out in greater detail above , no further dumping of waste on the aforesaid site should be allowed - because there should be no refuse tip there at all and clearing - up work is still pending - it was not necessary for a ‘ final cleaning - up ORG to be in existence , as the appellant maintained , before further tipping under the licence could be stopped ( by revocation of the licence ) . Nor is a cleaning - up programme thereby pre - empted ; such a programme may very well make special licences necessary ; and even a partial continuation of the current tipping operations until a cleaning - up project is embarked on could not on that account be regarded as justifiable .

The appellant also considered the weighing of interests to have been inadequate and to have produced the wrong result ; this applied , on the one hand , to those municipalities which would in future be deprived of their facilities for dumping refuse , and , on the other , to the appellant , who would be financially ruined . As regards the aforementioned municipalities , the appellant can not legally represent their interests inasmuch as they are the interests of third parties , and it is moreover clear that the danger posed by the dumped waste affects a much larger number of people , as is apparent from the fact that it is widely known that , owing to its size , the ORG basin serves as a reservoir for drinking - water . The same considerations of public interest are valid with regard to the economic interests of an individual ; the respondent authority did not , as the appellant maintained , disregard the relevant considerations , since in the decision appealed against it said , among other things , that in the case in issue ‘ the public interest in ensuring the supply of drinking - water outweighs the economic interest in continuing the operation of the tip’ . It is equally untrue that the question of blame for the dumping of prohibited waste had a bearing on the revocation , as the revocation concerned the licence and thus the operation of the tip as permitted by that licence up to then .

The appellant also complains that he was not told the name of the hydraulic engineer who was officially appointed as an expert when his opinion was made known in the respondent authority ’s communication ( Vorhalt ) of CARDINAL DATE . The appellant , however , did not contradict the comment in the decision appealed against that his lawyer had been informed of the expert ’s name during an inspection of the entire file on DATE . As the appellant was familiar with the ‘ original’ of the opinion concerned ( it is referred to in the appeal ) , he must also have been aware of the exact date of the opinion , which was not given in the respondent authority ’s communication . The appellant further criticised the same expert on the ground that his opinion contained no ‘ findings of CARDINAL , a matter to which reference had already been made in the reply to the authority ’s communication . The way in which this point was dealt with in the impugned decision has been set out in the recital of facts . The technical opinion submitted in the appeal proceedings was an expert assessment of the same facts as those on which the first - instance authority had based its decision ; the technical assessment in the appeal proceedings was intended - in view of the appellant ’s appeal - precisely to throw light on whether the factual situation ( which was essentially identical both at first instance and on appeal ) should lead to the legal characterisation given it by the Governor ; it was not a question of assessing changed or substantially supplemented facts . For this reason it was unnecessary for the expert appointed by the respondent authority himself to set out afresh the facts to be taken as a basis . In a case such as the present one there can be no question of the facts on which the expert opinion was based not being known or of a further special reference being necessary to how they came about . By ‘ third - party ORG ) - a term used several times in the expert report - is usually understood , as can easily be inferred from the context , documents that have not been drawn up by the authority ( in this instance the respondent authority ) itself ; since the questions being dealt with always related to the refuse tip concerned , it is clear that what was meant were the water - rights documents of other authorities than the respondent authority which related to the tipping site . As to the appellant ’s specific criticism to the effect that the expert did not make clear what he meant by ‘ the abuses ORG , it should be noted that immediately after that passage there follows a more detailed explanation , in particular through the reference to failures to comply with the decision of DATE and condition CARDINAL of the decision of DATE , by which is meant the occurrences which led to the revocation by the Governor on CARDINAL DATE of the licence to dump distillation residues . The entire comment relating to this has little bearing on the revocation , however , because it was made by the expert only in connection with his general remarks on the need for precise definition of waste if there was to be any effective control of what was dumped . A separate reply to the question - posed in its observations in reply to the respondent authority ’s communication and repeated in the present appeal - whether account had been taken of the fact that in the eastern part of the tip there was a compressed mass of domestic refuse QUANTITY thick on the floor of the site does not seem to the ORG to be of decisive importance with regard to the revocation stopping future tipping in view of the fact that - as set out in greater detail in the present appeal - it can ‘ now ORG be assumed that ‘ under a CARDINAL to CARDINAL-metre - thick layer of highly compressed domestic refuse QUANTITY of , in all probability , unauthorised dangerous solvents have been dumped there’ and that the area must be cleaned up - which precludes all further tipping .

The appellant complained that further details about the significance of the ORG basin for the water supply were lacking in the expert report and considered the reference it contained to the ‘ expert opinions in the third - party documents’ and the ‘ specialist literature’ to be insufficient . Attention need only be drawn in the first place to the regulations issued by the respondent authority as early as DATE ( ORG - Bundesgesetzblatt - no . CARDINAL ) , which define the groundwater conservation area on whose periphery the refuse tip is situated . Furthermore - in response to the appellant ’s criticism - reference is rightly made in the impugned decision to the fact that the importance of the area was well known . ORG ( GPE ) survey report of CARDINAL DATE , according to which a groundwater sample taken on DATE had shown , among other things , that the chlorinated hydrocarbon content had further fallen , had no influence on the expert opinion in this context - this is confirmed in a note by the expert . In this connection , it must be borne in mind that the measurement was based on only a single sample and was merely ‘ better’ than one from an earlier sample . Even the appellant does not infer from it that the dangerous eastern part of the site is thereby shown to be free of danger ; if the licence continued in force , further tipping could not , in the expert ’s view , be regarded as conducive to further improvement in the quality of the groundwater . The appellant ’s objection that there was no water seepage through an open ‘ compressed , MONEY layer of domestic refuse is impossible to understand . Since this waste was alleged to exist in the eastern part of the tip , it was on that account alone not unreasonable to prevent further tipping in accordance with the licence by revoking that licence , given the need - mentioned even by the appellant - for a cleaning up of the site . It may therefore be concluded that in this respect the alleged material defects in the expert opinion are non - existent .

The appellant is also wrong to maintain that the licence should only have been revoked after special appeal proceedings in which the appeal authority would have had to make its own investigation of the facts . The facts which the Governor took as a basis were set out in detail in the decision at first instance . The alleged defects were gone into in the appeal proceedings or have now been asserted in the present appeal . In both instances , however , the appellant partly relied on facts that were irrelevant to the issue of the revocation .

Nor does the ORG agree with the appellant ’s submission that the technical expert ’s opinion in the initial appeal proceedings was defective because it contained legal arguments . In the section ‘ Definition of waste , control of ORG there is firstly merely a discussion of stipulations in the revoked decision [ to grant a licence ] and then a mention of the applicability of LAW in connection with technical observations concerning water contaminants , with a reservation ( ‘ ... would have to be checked by the water - rights authority ... ’ ) ; the question whether revocation was absolutely essential or whether defects DATE ( CARDINAL ) of LAW DATE could be remedied is dealt with from an exclusively technical point of view ; the closing remark on the subject is at all events inaccurately reproduced in the appeal inasmuch as the expert endorsed the revocation in the light not of legal but of economic requirements . Contrary to what the appellant maintained , there was no pre - emption of the legal assessment to be made by the respondent authority .

The appellant further complained that the respondent authority did not , as requested , seek further expert opinions . Reference is made in the appeal to possible alternatives to revocation and to an opinion of DATE by the hydraulic engineer officially appointed as an expert by the Governor . The appellant inferred from this expert opinion that approval of measures he had planned would have meant that the revocation could have been avoided ; in that opinion , however , it was suggested - on the assumption of ‘ dangers which , if the principle that prevention is better than cure is ORG , ruled out ‘ further ORG ( and it was stated that even tipping of domestic refuse ‘ ORG increased the danger ‘ significantly in quantitative terms’ ) and on the basis of the facts - that ‘ the question of revoking the licence granted by decision of the Governor , ON DATE ( i.e. the decision of DATE ) , should be looked into , ‘ as important assumptions , on which the issuing of the licence [ had ] been based’ had proved to be false . The expert opinion cited , which points in exactly the direction that was subsequently - in the last instance by the respondent authority - taken , was therefore an unsuitable basis for obtaining , as requested , further expert reports . Even if in the same context reference is made in the appeal to the expert report submitted in the water - rights proceedings of CARDINAL DATE in support of the view that the ‘ re - storage variant’ ( final disposal of the ‘ eastern ORG in the western part of the tip ) , which the appellant had suggested as an alternative to revoking the licence , was ‘ technically PERSON , little is gained - particularly in view of the many discussions that , according to the administrative documents , had already taken place - in the way of showing that the additional investigations that were held to be unnecessary in the impugned decision are in fact needed .

Lastly , the ORG can not accept the appellant ’s submission that an oral hearing should have been held for the specific purpose of considering the question of a revocation ; on the one hand , no provision is made for a hearing for this purpose in the law , as the appellant himself concedes , and , on the other , issues relating to a cleaning up of the tip were discussed from a large variety of angles , most recently in the proceedings of CARDINAL DATE which preceded the revocation by the first - instance authority , and for this reason it has not been shown that ‘ the facts before the appellant authority [ were ] so inadequate that the holding or reholding of an oral hearing’ should have been regarded as ‘ unavoidable’ ( LAW ( CARDINAL ) and ( CARDINAL ) of LAW DATE ) .

The appellant has consequently not succeeded in showing that the licence was revoked on grounds that were not objective and thus unlawfully .

As the appeal is consequently unfounded , it must be dismissed pursuant to section DATE ( CARDINAL ) of LAW .

The requested hearing was dispensed with under LAW ( CARDINAL ) ( CARDINAL ) of LAW .

Article CARDINAL para . CARDINAL of LAW provides :

" Hearings in civil and criminal cases by the trial court shall be oral and public . Exceptions may be prescribed by law . "

ORG By virtue of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .

ORG Pursuant to section CARDINAL of LAW , proceedings consist essentially in an exchange of written pleadings . If CARDINAL of the parties so requests ORG may hold a hearing which is in principle held in public ( sections CARDINAL ( CARDINAL ) ( CARDINAL ) and CARDINAL ( CARDINAL ) ) .

Section CARDINAL ( CARDINAL ) of the same LAW reads as follows :

" In so far as ORG does not find any unlawfulness deriving from the respondent authority ’s lack of jurisdiction or from breaches of procedural rules ( section DATE ( CARDINAL ) , paragraphs CARDINAL and CARDINAL ) ... , it must examine the contested decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . "

Section CARDINAL ( CARDINAL ) states that , save as otherwise provided , decisions of the ORG shall either dismiss a complaint as ill - founded or quash the contested decision .

ORG By virtue of LAW ( CARDINAL ) ,

" The Administrative Court shall quash the impugned decision if it is unlawful

by reason of its content , [ or ]

because the respondent authority lacked jurisdiction , [ or ]

on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

Under section CARDINAL ( CARDINAL ) of LAW , if the court quashes the challenged decision , " the administrative authorities are under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) " .

Section CARDINAL ( CARDINAL ) of LAW provides :

" Notwithstanding a party ’s application ... , ORG may decide not to hold a hearing where

it is apparent to the ORG from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further . "

ORG Under LAW para . CARDINAL of LAW :

" ORG may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The ORG may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . "


Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Luis López Guerra

NORP The applicant company , ORG , is a ORG registered in GPE . It was represented before ORG , lawyers practising in GPE .

CARDINAL .

On DATE civil proceedings in relation to a block of apartments were instituted by ORG against ORG , ORG and ORG as directors and on behalf of ORG and ORG also in his own personal capacity .

On DATE ORG found in favour of ORG .

On appeal , on DATE ORG requested ORG to join the applicant company to the proceedings in substitution of ORG , since it had inherited his rights and liabilities . The applicant company and the other defendants objected on the basis that an extraneous person could not be introduced at that stage of the proceedings .

By an interim decision of CARDINAL DATE ORG ordered the appellants to submit to the registry a copy of the relevant deed of transfer .

On DATE , following the relevant verification , namely that on CARDINAL DATE ORG , on behalf of the applicant company , had acquired CARDINAL of the apartments at issue in the proceedings , ORG accepted the request for substitution . It noted that the relevant deed of transfer explicitly stated that the vendors ( ORG and his spouse ) were assigning to the purchaser all the litigation rights pertaining to them in the present lawsuit . Consequently , the request was justified .

The civil proceedings before ORG remained pending throughout the following proceedings .

On DATE the applicant company instituted constitutional redress proceedings . It complained under LAW that the Court of Appeal decision of DATE had deprived it of a double degree of jurisdiction in the proceedings in question , since it had only become part of the proceedings at the appeal stage . In consequence , it had not been given the opportunity to submit evidence and pleadings or to cross - examine witnesses .

On DATE ORG ( FAC ) in its constitutional jurisdiction rejected the applicant company 's claims . It held that by means of the contract dated CARDINAL DATE the applicant company had bought the apartment at issue , together with any litigation rights according to law in the relevant proceedings . By means of this deed the applicant company undertook the duties and rights held by its predecessor ORG and therefore it could not be considered a distinct entity . Moreover , this transfer of rights and obligations had taken place when the proceedings were still pending before the first - instance court and , at the time , the applicant company had not made any request for substitution . Thus , ORG found that the claim was manifestly ill - founded , all the more so since LAW did not guarantee a right of appeal against a decision in civil matters . It only stated that where such a right existed it should be in conformity with the guarantees under LAW .

On DATE the applicant company appealed .

On DATE ORG upheld the first - instance judgment . It reiterated that the applicant company had fully taken over the rights and duties of its predecessor according to law and that it was the applicant company 's duty to lodge a request to be substituted in the acts of the proceedings . However , as acknowledged by the applicant company , it had chosen not to intervene at that stage as it was not in its interests . It was paradoxical that at that stage the applicant company had chosen not to intervene to protect its interest and that now it was claiming that its right had been breached because it had not been a party to the first - instance proceedings . ORG considered that since the applicant company had been at fault in failing to safeguard its interests at the time , it could not claim a breach of the Convention at this stage . Moreover , in this light , it was evident that the applicant company had been acting in bad faith .

On DATE the applicant company made a request for a retrial .

On DATE this request was rejected as null and void , it having been introduced after the DATE time - limit set by law .

On DATE the applicant company instituted a new set of constitutional redress proceedings . It complained that the procedure adopted by ORG resulting from its interim decisions of DATE and DATE was not provided for in ORG and was therefore “ extra legem ” ( not covered by law ) . In consequence it had breached the applicant company 's right to a fair trial under LAW .

On DATE ORG ( FAC ) in its constitutional jurisdiction rejected the applicant company 's claims . It expressed doubt as to whether the applicant company could institute these proceedings , since the matters at issue had been or could have been invoked in previous proceedings . However , even on the merits the complaint was manifestly ill - founded . It considered , as had the previous constitutional jurisdictions , that it was for the applicant company to request to be substituted into the proceedings in order to safeguard its interests . Moreover , the procedure adopted by ORG was not new . The transfer of litigation rights as a concept and its application was clearly enshrined in the Maltese Civil Code . The applicant company knew exactly what rights and duties it was purchasing on signing the deed of CARDINAL DATE and was aware of the pending proceedings . In consequence , it could have opted not to purchase the said property if the conditions were not to its liking . Indeed , in the proceedings in question the applicant company could not be considered distinct to its predecessor ORG . Upon the assignment of interests ORG was divested of his litigation rights and no longer had any interest in the case , this juridical interest being now vested in the applicant company as owner of the apartment and the litigation rights pertaining to it . Ultimately , the court considered that the application was an abuse of process both because the impugned legal issues were clearly established in domestic procedure and because the applicant company should have made its complaint in its first set of proceedings and not in a new set of proceedings with the aim of stalling the judicial process . In consequence , finding the application to be frivolous and vexatious , the court ordered the applicant company to pay additional costs .

On DATE the applicant appealed .

By a judgment of DATE , ORG dismissed the appeal as null and void , since no appeal lay against judgments declaring applications frivolous and vexatious . Moreover , it was clear that the same appeal was yet another attempt to further stall the proceedings and was a clear abuse of process . The applicant company ' 's actions were undoubtedly and outrightly an abuse of process and the first - instance court had been perfectly justified in declaring the application frivolous and vexatious . It ordered the applicant to pay double the costs due .

DATE of the Civil Code , LAW of LAW , in so far as relevant , reads as follows :

“ The assignment or sale of a debt , or of a right or of a cause of action is complete , and the ownership is ipso jure acquired by the assignee as soon as the debt , the right or the cause of action , and the price have been agreed upon , and , except in the case of a right transferable by the delivery of the respective document of title , the deed of assignment is made . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On CARDINAL DATE the applicant , who had qualified as a doctor in GPE in DATE after graduating in medicine from ORG , applied to ORG of the ordre des médecins ( ORG ) for registration as a member of the ordre .

The département council refused her application on the ground that , although she was NORP , she did not have a NORP medical qualification . The applicant subsequently made CARDINAL unsuccessful applications to the Minister for Health for authorisation under LAW CARDINAL , point ( CARDINAL ) , third paragraph , of LAW .

On DATE the applicant again applied to the département council , relying on the Government Declarations of CARDINAL DATE on GPE , known as the “ LOC ” , and in particular on LAW between GPE and GPE ( “ the DATE LAW ” ) , of which LAW I provides :

“ Academic diplomas and qualifications obtained in GPE and GPE under the same conditions as regards curriculum , attendance and examinations shall be automatically valid in both countries . ”

Her application was rejected on DATE by ORG of the ordre des médecins , which refused to register her .

The applicant appealed against that decision to FAC Corse regional council of the ordre des médecins . In a decision of CARDINAL DATE the regional council upheld the decision to refuse her registration .

On DATE the applicant applied to the disciplinary section of ORG ordre des médecins . In a decision of DATE the disciplinary section refused her application on the ground , inter alia , that the terms of LAW Declarations could not by themselves confer the right to practise medicine in GPE on all those who had obtained medical qualifications in GPE after that date , and therefore could not be used in support of an application for registration .

On DATE the applicant applied to the ORG d'Etat for judicial review of that decision .

On DATE , at the request of the ORG d'Etat , ORG of ORG submitted observations on the applicant 's application . It stated :

“ This application calls for the following observations on my part , which , as you requested , concern the provisions of LAW between GPE and GPE , CARDINAL of the declarations making up the ' PERSON . ...

Nature of the provisions

The PERSON d'Etat , acting in its judicial capacity , has already had occasion to rule on the nature of the provisions of the ' PERSON . Agreeing with the ORG 's position , it held that the ORG constituted an international treaty ( see the PERSON d'Etat 's PERSON judgment of CARDINAL DATE , PERSON du ORG d'Etat [ Reports of the judgments of the PERSON d'Etat ] , DATE , p. CARDINAL ) .

Applicability of the provisions

The Government Declarations of DATE were approved in a referendum held on DATE and were subsequently published in ORG on DATE . They came into force on DATE following an exchange of letters between the President of GPE and the Chairman of the Provisional Executive of ORG .

Since no measures have been taken to suspend their application or to revise their content , the provisions in question must be regarded as having been in force on DATE and DATE , when the impugned decisions ... were taken .

However , the reciprocity requirement in LAW can not be regarded as having been satisfied at that time , since those provisions had not been applied by the NORP authorities in respect of applications by NORP nationals with qualifications obtained in GPE . Consequently , they can not be applied to the facts of the present case .

In the alternative , the scope of the provisions

LAW ... lays down the principle that NORP and NORP qualifications are automatically equivalent , without there being any need for implementing regulations , provided that the curricula followed are similar .

Regard being had , in particular , to the precision of their content and the lack of any reference to implementing measures , the provisions in issue appear to be directly effective .

However , they can not be regarded as establishing an unconditional right for anyone having obtained medical qualifications in GPE to be registered as a member of the NORP ordre des médecins . In assessing candidates for registration as a member of the national ordre , reference should be made to the domestic legislation in force , in particular Articles L. CARDINAL et seq . of LAW , the requirements of which , in the case of foreign nationals , go beyond the production of a NORP medical degree or a recognised equivalent qualification , as candidates must also undergo professional aptitude tests . ”

After being apprised of those observations , the applicant produced to the ORG d'Etat declarations from various NORP authorities certifying that qualifications obtained in GPE by NORP practitioners were recognised as being automatically valid in GPE .

In a judgment of DATE the ORG d'Etat , acting in its judicial capacity , did not follow the submissions of the Government Commissioner , PERSON , and dismissed the application in the following terms :

As regards the argument based on LAW between GPE and GPE :

LAW DATE provides : ' Treaties or agreements that have been lawfully ratified or approved shall , upon publication , prevail over Acts of ORG , subject , in respect of each agreement or treaty , to its application by the other party . ' It is not for the administrative courts to determine whether and to what extent the manner in which a treaty or agreement is applied by the other party is capable of depriving the instrument 's provisions of the authority conferred on them by LAW . In observations produced on DATE the Minister for ORG stated that the aforementioned provisions of LAW between GPE and GPE could not be regarded as having been in force on the date of the decision complained of , seeing that on that date the reciprocity requirement laid down in LAW had not been satisfied . [ The applicant ] is accordingly not entitled to rely on those provisions .

As regards the other arguments :

Although [ the applicant ] submits that the disciplinary section of ORG ordre des médecins infringed ORG DATE on the recognition of diplomas , she has not produced any information from which it may be ascertained whether that argument is well - founded . ORG DATE does not impose on the member GPE any obligations on which [ the applicant ] could rely .

As [ the applicant ] was unable to show either that she had obtained the NORP qualification for practising as a doctor or any of the qualifications listed in LAW CARDINAL - CARDINAL of LAW or that she had been granted the special ministerial authorisation provided for in LAW ... for persons with foreign qualifications , she could not expect to be registered . Consequently , her argument that the disciplinary section did not take into account her ability and her clinical and academic experience is irrelevant .

In a ministerial order of CARDINAL DATE , published in the NORP ORG on DATE , the applicant was authorised to practise as a doctor in GPE with effect from DATE , LAW L. CARDINAL , point ( CARDINAL ) , third paragraph , of LAW . On the basis of that order , in a decision of DATE , the FAC département council of the ordre des médecins registered the applicant as a member of the ordre . On DATE it recognised the applicant 's abilities as an orthopaedic surgeon by designating her as a doctor specialising in orthopaedic surgery , on the basis of her qualifications and professional experience .

LAW provides :

“ Treaties or agreements that have been lawfully ratified or approved shall , upon publication , prevail over Acts of ORG , subject , in respect of each agreement or treaty , to its application by the other party . ”

Anyone wishing to practise as a doctor in GPE must satisfy certain conditions laid down in Articles L. CARDINAL , PERSON and PERSON of LAW . The CARDINAL fundamental requirements are possession of certain qualifications referred to in Article PERSON or of a special status ( LAW CARDINAL , point ( CARDINAL ) , first and second paragraphs ) , and nationality ( Article L. CARDINAL , point ( CARDINAL ) , second paragraph ) . A third condition is registration as a member of the ordre des médecins ( Article L. CARDINAL , point ( CARDINAL ) ) .

It follows from those provisions that anyone who has a “ diploma , certificate or other qualification referred to in Article PERSON ” and is a “ NORP national or a national of CARDINAL of the member GPE of ORG , of CARDINAL of the other GPE Parties to the Agreement on ORG , of GPE or of GPE ... ” automatically qualifies for registration as a member of the ordre . LAW CARDINAL - CARDINAL refers to the following qualifications for practising as a doctor : “ either ORG degree of Doctor of Medicine ... or , if the person concerned is a national of a member ORG of ORG or of ORG to the LAW on ORG , a degree , certificate or other medical qualification issued by CARDINAL of those GPE ... ” .

NORP The Minister for Health may also , after obtaining the opinion of a committee , authorise other persons on an individual basis to practise medicine ( Article L. CARDINAL , point ( CARDINAL ) , third paragraph ) , including NORP nationals who do not possess the qualifications referred to in LAW . The maximum number of persons who may be granted such authorisation is set every year “ by order of the Minister for Health , with the agreement of the aforementioned committee , regard being had to the arrangement under which they intend to practise ” .

For a long time the ORG d'Etat regarded the interpretation of an international treaty containing ambiguous or unclear provisions as a matter outside its jurisdiction because it deemed such interpretation to be a prerogative act that could not be dissociated from international relations and was not open to challenge in the courts ( a position maintained since PERSON , ORG , judgment of DATE , PERSON du ORG d'Etat , p. CARDINAL ) . When confronted with provisions that it considered insufficiently clear , it relied on the official interpretation given by the Minister for ORG ( see also PERSON , judgment of DATE , PERSON , III , p. CARDINAL , together with the submissions of Mr ORG and the commentary by Mr PERSON ) . Since the PERSON d'Etat 's judgment of DATE in ORG , the practice of referring a preliminary question to the minister has been discontinued and the PERSON d'Etat now interprets international agreements itself ; if it seeks the opinion of the executive , it does not regard itself as bound by it ( see ORG , judgment of CARDINAL DATE , ORG arrêts du ORG d'Etat , p. CARDINAL , and the ORG 's judgment in GPE v. GPE ( DATE , Series A no . CARDINAL-B ) concerning a ruling given before the ORG d'Etat had altered its position ) .

With regard to the Government Declarations of DATE , the ORG d'Etat ruled in a judgment of CARDINAL DATE ( ORG PERSON , PERSON , p. CARDINAL ) that they should be regarded as constituting an international treaty . It so held after referring a preliminary question to the Minister for ORG as to the interpretation of the Declarations ' scope . The PERSON d'Etat maintained that position even after discontinuing the practice of referring preliminary questions on the interpretation of an international treaty ( see , for example , ORG , judgment of CARDINAL DATE , case no . DATE ) .

NORP However , the change in position resulting from ORG has not been transposed to the context of applying the reciprocity clause in LAW . The PERSON d'Etat has taken the view that it is not its task to assess whether and to what extent the manner in which a treaty or agreement is applied by the other party is capable of depriving the instrument 's provisions of the authority conferred on them by LAW ( see PERSON and ministre du Budget contre PERSON , CARDINAL DATE , PERSON , p. CARDINAL , judgments of the full court , and ministre du Budget contre PERSON , judgment of CARDINAL DATE , PERSON , p. CARDINAL ) . Those judgments and the one in the instant case are the only ones in which the ORG d'Etat has ruled on the manner in which the reciprocity clause is to be applied and on the continuation of the practice of referring preliminary questions to the Minister for ORG .

When dealing with issues relating to reciprocity , ORG initially adopted the same solution as that advocated by the ORG d'Etat ( Court of Cassation , ORG , DATE , Males , ORG no . CARDINAL ) . It subsequently held that in the absence of any measures by the government to denounce a treaty or suspend its application ( such as publication in ORG of a memorandum by the Minister for ORG ) , it was not for the courts to review compliance with the condition of reciprocity in inter - State relations as laid down in LAW ( PERSON . civ . ) I , DATE , PERSON , épouse ORG international public DATE , p. CARDINAL ) . That position has been maintained ever since ( PERSON . civ . I , DATE , ordre des avocats près la cour d'appel de Paris contre PERSON , PERSON ( ORG . PERSON . ) no . DATE , and PERSON . civ . I , DATE , PERSON contre PERSON , PERSON . PERSON . no . CARDINAL ) .