David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . He was represented before the Court by Mr PERSON who was granted leave to represent the applicant by the President of ORG CARDINAL § CARDINAL of the Rules of Court ) .

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

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

On DATE the applicant became a civil servant employed by ORG ( ORG , ORG ; henceforth “ the GPE ” ) where he worked until his retirement on DATE .

On CARDINAL DATE the Trustees of the ORG ( pankkivaltuusto , bankfullmäktige ) introduced an equal retirement DATE for all men and women who entered the service of ORG that date or later . The retirement age for women was thereby raised from DATE to DATE while for men the retirement age remained unchanged . As the rule was not retroactive , the different retirement ages for men and women still applied to those persons who had started employment before DATE .

On DATE the Trustees of the ORG amended the pension rules of the ORG so that men who had joined the ORG prior to CARDINAL DATE and who continued their employment until retirement were also granted an opportunity to lower their retirement age from DATE . For DATE the retirement age was lowered , and the pension accrued prior to DATE was reduced by PERCENT . At its highest the early retirement reduction was PERCENT for DATE . Under the pension rules of CARDINAL DATE the retirement age for women who had joined the ORG prior to CARDINAL DATE was DATE and no reductions applied to pension accrual .

Since DATE the pension rules of the ORG had provided that a civil servant who applied for early retirement , who had been employed by the ORG prior to CARDINAL DATE and who had DATE of service behind him , had a right to a pension guarantee ( takuueläke , garantipension ) which was PERCENT of the salary . This pension guarantee was increased by PERCENT for DATE the person ’s personal retirement age ( henkilökohtainen eläkeikä , individuell pensionsålder ) , which was DATE for men and DATE for women , fell short of DATE ( the personal retirement age before DATE ) . This guarantee was significantly reduced as from DATE .

On DATE the applicant was granted a pension , which was reduced by PERCENT , or MONEY ( ORG ) per month , on the ground that he had retired at DATE . This method of calculation was chosen as it was more beneficial to the applicant than calculating his pension with a PERCENT pension guarantee which included the increase of PERCENT as his personal retirement age was DATE . The pension so calculated amounted to ORG CARDINAL per month , starting from DATE .

On DATE the applicant submitted a letter of appeal to the ORG , requesting that his pension be recalculated so that DATE brought him an additional pension of PERCENT per year , thus altogether PERCENT . He claimed that the amendments made to the pension guarantee on DATE had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was DATE , even if they retired earlier , whereas for women it was always DATE . In the applicant ’s situation the percentage for accrued pension was PERCENT while for a woman in the same situation it would be PERCENT higher , at PERCENT . He also complained about the fact that his pension had been reduced by PERCENT , or ORG CARDINAL.CARDINAL per month , on the ground that he had retired at DATE . As the ORG could not rectify the pension decision , it referred the case on appeal to ORG ) on DATE .

On DATE the ORG issued a new , interim pension decision to the applicant as the pension decision of DATE , which had been appealed against to ORG , was partly rectified . The rectified pension amounted to ORG . The applicant had no right to appeal against this interim pension decision .

During the ORG proceedings , the court requested a statement from ORG ( tasa - arvolautakunta , jämställdhetsnämnden ) . In its statement of CARDINAL DATE the ORG stated that there was a presumption of discrimination in CARDINAL respects : different personal retirement ages for men ( DATE ) and for women ( DATE ) as well as the fact that the reduction was made only in respect of men who retired early , not in respect of women . It further stated that the ORG had not been able to give an acceptable reason for this discrimination . Moreover , the lack of transparency in the calculation of the ORG ’s pensions prevented the effective supervision of the principle of equal pay .

ORG Valtiokonttori , ORG ) and the NORP ORG Pensionsskyddscentralen ) were also asked to submit a statement in the matter . In its statement of DATE , ORG stated that , had the applicant been subject to LAW ( valtion eläkelaki , lagen om statens pensioner ) , his pension guarantee would have been calculated in exactly the same manner as in the pension decision of DATE . In its statement of CARDINAL DATE , the NORP ORG noted that the central question was whether the applicant ’s personal retirement age was interpreted to be DATE . Concerning private sector pensions , the ORG noted that there might be situations where a man ’s pension remained lower than a woman ’s who had a similar work history and who retired at the same age .

On DATE ORG partly accepted , partly rejected the applicant ’s appeal . As concerned the percentage for accrued pension , the court accepted the applicant ’s appeal and ordered that the percentage be PERCENT instead of PERCENT . It found that in this respect the pension was not calculated in an equitable manner in regard to men and women , and that women were put in a more favourable position than men . The applicant ’s personal retirement age should also have been DATE , as was the case for women in the same position . As this inequality affected also the time after DATE , the date on which the ORG rules on equal pay became applicable in respect of GPE , the applicant ’s pension had been calculated in a manner contrary to ORG law during the period starting from DATE until DATE . In this respect the case was referred back to the ORG for a new decision . As to the rest of the applicant ’s complaints , they were rejected . As concerned the reduction of PERCENT due to early retirement , the court found that as the reduction concerned the time before DATE , it was not contrary to ORG law .

On DATE the ORG issued a new pension decision to the applicant . The percentage for accrued pension was now PERCENT , increasing his personal pension guarantee percentage to PERCENT . The pension calculated in this manner amounted thus to ORG DATE . The applicant did not appeal against this decision .

NORP By letter dated CARDINAL DATE the applicant petitioned the Chancellor of Justice ( oikeuskansleri , justitiekanslern ) , claiming that the ORG decision was illegal as it was not adequately reasoned and thus not transparent in respect of the rejected complaints . Moreover , he complained about the fact that his pension guarantee still remained at PERCENT even though ORG had , on DATE , amended a similar pension decision in the case of PERSON and granted him a pension right amounting to PERCENT on the ground that he fulfilled the pension guarantee requirement as he had completed DATE of service .

It is not known whether the applicant ’s petition is still pending before the Chancellor of ORG .

On DATE the applicant lodged an extraordinary application with ORG for the reopening of the proceedings as far as they related to the decision of DATE . These proceedings are still pending before ORG .

DATE ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL ) provides that :

“ No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . ”

Article CARDINAL of the LAW provides that the property of everyone is protected .

Section CARDINAL of the Act on Equality between Women and Men ( laki naisten ja miesten välisestä tasa - arvosta , lagen om jämställdhet mellan kvinnor och män ; Act no . DATE ) prohibits both direct and indirect discrimination based on gender . According to its section CARDINAL , subsection CARDINAL , direct discrimination means , inter alia , putting women or men in an unequal position on the basis of gender . LAW , subsection CARDINAL , point CARDINAL , of the same LAW provides that :

“ An employer ’s conduct constitutes discrimination prohibited under LAW if the employer applies the pay or other terms of employment in such a way that CARDINAL or more employees , because of their gender , find themselves in a less favourable position than CARDINAL or more other employees performing the same work or work of equal value in the employer ’s service . ”

Section CARDINAL of the LAW on ORG ( laki PERSON , lagen om ORG ; Act no . CARDINAL ) provides , inter alia , that :

“ The Trustees of the ORG shall confirm ORG and issue regulations concerning the management of the ORG ’s pension liability , upon proposal of the ORG . ”

Section CARDINAL of the Act on Officials of ORG ( laki PERSON virkamiehistä , lagen om ORG tjänstemän ; Act no . DATE ) provides the following :

“ ORG shall treat all officials in its service equally to ensure that no - one is unjustifiably treated differently because of his origin , citizenship , gender , religion , age , political or union activities , or on other comparable bases .

ORG shall not forbid an official to join or belong to an association or pressure him to join a particular association , nor forbid him to resign from such . ”

Section CARDINAL , subsections CARDINAL , of the same LAW provide the following :

“ An official who considers that ORG has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to ORG . No request for rectification can be made in a matter that falls within the jurisdiction of ORG , unless ORG has decided not to settle the matter under section CARDINAL , subsection CARDINAL , of the LAW on ORG ( CARDINAL/CARDINAL ) .

Rectification of a decision by which ORG has issued an official with a warning , laid him off or given him notice , cancelled the service relationship , suspended him from office or decided on a matter concerning his pension contribution or secondary occupation , as well as a decision referred to in paragraph CARDINAL on a request for rectification referred to in paragraph CARDINAL can be requested by appealing to ORG in accordance with the provisions of ORG ( ORG ) . A matter referred to in this paragraph shall be treated as urgent by ORG .

Decisions of the ORG concerning pensions can be appealed against to ORG . Otherwise , as regards a request for rectification on pension , the applicable provisions of the Act on State Pensions ( CARDINAL/CARDINAL ) shall apply . ”

Section CARDINAL , subsection CARDINAL , of the same LAW provides that

“ [ t]he right of an employee of ORG to a pension paid from the ORG ’s funds is determined , to the extent applicable , on the same grounds as state pension cover . State pension cover refers to the right to pensions , survivors’ pensions and other benefits which are payable from the state ’s funds and the content of and eligibility for which are regulated by LAW and the related legislation . Pensions and survivors’ pensions are granted by ORG . ”

More detailed provisions on the payment of pensions and survivors’ pensions and pension cover in other respects are contained in ORG ( Suomen Pankin eläke- ja perhe - eläkesäännöt ; pensionsstadgan och familjepensionsstadgan för ORG ) . The Trustees of ORG , elected by the ORG , adopt the ORG on the basis of ORG proposals .

Section CARDINAL , subsection CARDINAL , of LAW with its earlier wording , as amended on DATE , read as follows :

“ Eligibility for old age pension requires that the beneficiary has completed his or her service and reached DATE , or DATE if the beneficiary , immediately before retirement , has been serving ORG or its ORG for DATE , and DATE in the case of a female employee . A beneficiary who retires as a member of the ORG is entitled to old age pension irrespective of age . ”

The lower retirement DATE for women was applied until DATE , when the amendment of section CARDINAL , subsection CARDINAL , of ORG entered into force . With this amendment the retirement age for women was raised from DATE but the retirement age for men remained unchanged at DATE . The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the ORG began on DATE or thereafter .

For the equalisation of the retirement ages , men were granted the right to opt for a lower retirement age . On DATE the Trustees of the ORG amended the entry into force provision of LAW in the following manner :

“ However , as of DATE , the earlier provision is applicable both to women who entered service in the ORG prior to CARDINAL DATE and to men who entered service in the ORG before that date .

The beneficiary has the right to choose between the lower retirement age , based on the earlier provision , or the higher retirement age . If a man chooses the lower retirement age , the amount of his pension accrued on the basis of the duration of his service is , in respect of the service prior to DATE , reduced by CARDINAL percentage units per month of earlier retirement . ”


CASE OF AON CONSEIL ET COURTAGE S.A. AND CHRISTIAN DE CLARENS S.A. v. FRANCE

Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicants , PERSON and ORG , are CARDINAL NORP companies based in GPE . PERSON succeeded to the rights of another company ORG , which had in turn acquired them through CARDINAL other companies , ORG and ORG

PERSON , ORG and GPE were engaged in insurance broking , a commercial activity which , by virtue of LAW as worded until DATE , attracted value - added tax ( VAT ) . They paid MONEY ( ORG ) , ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL and ORG respectively in GPE on their DATE transactions .

NORP However , Article CARDINAL - a of the Sixth Directive of the Council of the European Communities dated DATE provided an exemption for “ insurance and reinsurance transactions , including related services performed by insurance brokers and insurance agents ” . The directive was due to come into force on DATE .

On DATE the Ninth Directive of the Council of the European Communities dated DATE was notified to ORG . It granted GPE an extension of time – until DATE in which to implement the provisions of Article CARDINAL - a of the Sixth Directive of DATE . Since such directives have no retroactive effect , the Sixth Directive should nevertheless have been applied from DATE to CARDINAL DATE .

On CARDINAL and DATE and DATE and DATE PERSON lodged CARDINAL applications with ORG seeking , on the basis of the Sixth Directive of CARDINAL DATE , a refund of the ORG it had paid .

On DATE ORG transferred all the assets of its insurance broking arm to a new company , ORG . ORG nevertheless continued to be registered under the same number at ORG while changing its name to SOGEDEP DATE and to ORG on DATE .

In a judgment of CARDINAL DATE , ORG dismissed the CARDINAL applications lodged by PERSON .

An administrative circular was issued on DATE which stipulated :

“ ... no further action shall be taken to collect sums remaining due at the date of publication of this circular from insurance brokers who have failed to charge value - added tax on their transactions DATE and DATE and have received supplementary tax assessments as a result . ”

On DATE ORG held in the GPE case that LAW , as worded in the relevant period , was incompatible with the provisions of the Sixth Directive .

Considering that the NORP State had acted unlawfully by failing to incorporate into domestic law the provisions of the Sixth Directive within the time allowed , ORG , GPE and PERSON wrote to the authorities on DATE to claim compensation for their losses .

In decisions of CARDINAL DATE in the case of ORG and GPE , and DATE in the case of PERSON , the Minister for the ORG rejected their requests on the grounds that they were inadmissible by virtue of LAW of LAW and that the amount of the loss had to be reduced by the amount of employment tax owed by companies exempted from GPE .

On DATE ORG , GPE and PERSON brought proceedings in ORG against ORG for failing to incorporate the Sixth Directive of CARDINAL DATE into domestic law thereby causing them a loss equal to the amount of overpaid MONEY for DATE , which they claimed should be refunded .

In a judgment of CARDINAL DATE , ORG joined the applicant companies ' applications with those of other claimants , including the PERSON and ORG companies , and declared them inadmissible by virtue of LAW , paragraph CARDINAL of LAW , on the grounds that :

“ The provisions are general in scope and not intended as a bar to the application of Community treaties , regulations , directives or decisions or to the execution of judgments of ORG .

Their sole purpose is to determine in accordance with the legitimate aim of legal certainty the period in which claims for release from liability to tax , for the recovery of sums paid but not due or for compensation may be made by taxpayers who have not taken any action themselves but have been shown , in a court decision in proceedings to which they were not parties , to have been wrongly subjected to tax . The limitation period laid down in the provisions does not prohibit reasonably diligent claimants from asserting the rights to which they may be entitled by virtue of Community norms .

It follows from the foregoing the LAW of LAW is not manifestly incompatible with a Community norm of international - treaty status . There is consequently no reason why it should not be applied .

The provisions of the third paragraph of that Article expressly concern both actions for recovery of sums paid but not due and actions for compensation in respect of loss . There is no reason to consider that the legislature intended to exclude from the scope of these provisions certain forms of action on account of the nature of the alleged losses or of the tax liability concerned .

If it is not overruled on this point , the judgment delivered on DATE by ORG on the application of the Jacques Dangeville company will be the first judicial decision to have revealed an incompatibility between LAW , as worded during the relevant period , and the Sixth Directive of the Council of the European Communities . Pursuant to the aforementioned provisions of LAW of LAW it was consequently from DATE of that decision that it became possible to determine , in respect of all taxpayers , the period which LAW allowed for actions to be brought on the basis of that incompatibility for repayment of sums paid or not deducted , or for compensation for loss .

It follows from the foregoing that the claims of the applicant companies relating to taxes paid during DATE are inadmissible and must consequently be rejected . ”

On DATE ORG took over GPE following a merger . It is also took over SGAP Exploitation , the same company to which it had transferred its entire business on DATE .

On DATE ORG and PERSON appealed to ORG against the judgment of ORG .

On DATE they lodged written submissions in which , in addition to repeating their claims for reimbursement , they again argued that LAW of LAW did not provide a valid defence to their claims , which were for compensation for losses resulting from the ORG 's failure to comply with its obligations under Community law .

Meanwhile in the aforementioned NORP case , the PERSON d'Etat , hearing an appeal against the judgment delivered by ORG on DATE , gave judgment on DATE , essentially in the following terms :

“ The documents in the file submitted to ORG show that by a decision of CARDINAL DATE the ORG d'Etat , acting in its judicial capacity , dismissed a claim by PERSON seeking reimbursement of value - added tax it had paid for the period from DATE to DATE , inter alia , on the ground that its liability to that tax had arisen from the application of statutory provisions that were incompatible with the objectives of the Sixth Directive of the Council of the European Communities of DATE . The claim by ORG which ORG examined in the impugned judgment was for payment of ' compensation ' in an amount equal to the amount of value - added tax that had thus been paid , by way of reparation for the ' damage ' which that tax liability had caused the company to sustain , on the ground that that damage was attributable to ORG delay in transposing the objectives of the Directive into domestic law . It follows that , as submitted by the Minister of the ORG , ORG erred in law in holding that the fact that the company ' [ had ] first referred the issue of taxation to the tax court ' did not render inadmissible a claim for reparation in which the only alleged damage was that resulting from the payment of the tax . The Minister of the ORG 's application to have the impugned judgment overturned is accordingly founded to the extent that ORG upheld in part the claims made by PERSON in its submissions . ... ”

On DATE the ORG d'Etat delivered judgment on an appeal lodged on CARDINAL DATE by ORG against ORG judgment of DATE . The ORG d'Etat did not follow the line it had taken in its judgment of CARDINAL March CARDINAL in the NORP case , but instead declared PERSON 's appeal on points of law admissible , holding that the company was entitled to rely on the provisions of the Sixth Directive and should be granted a release from the contested tax liability – for which there was no statutory basis as the statutory provisions conflicted with the objectives of the Directive – for the sums erroneously paid for the period from DATE to CARDINAL DATE .

In a judgment of DATE , ORG dismissed the applicant companies ' appeals on the grounds that :

“ The claims lodged by the companies with ORG were for an award of damages ... as reparation , which the Minister for the ORG had refused to make , for the loss ... caused by their wrongly being required to pay value added tax for DATE in the exact amounts mentioned above . It is , however , common ground that as at DATE , when the claim was registered with the court registry , [ the claimants ] had not obtained a release from the said liability to value added tax through a request to the authorities to that end and , in the event of [ their ] request being rejected , an appeal to the tax court in accordance with the specific procedure described in ORG CARDINAL et seq . of the Code of Tax Procedure . In these circumstances , the claims were , as the Minister has argued , inadmissible . It follows that [ the companies ] have no basis on which to complain about ORG impugned decision to dismiss their claims as unfounded . ”

By a notice of appeal dated DATE and written submissions dated DATE , ORG and PERSON appealed on points of law .

On DATE ORG was the subject of a takeover by a company called ORG , which on DATE transferred its brokerage and insurance business to a company called ORG . The latter subsequently changed its name to PERSON .

In a judgment of DATE , the ORG d'Etat dismissed the appeals in the following terms :

“ In their submissions , [ the companies ] sought compensation from the ORG in an amount equal to the value added tax they had paid in respect of DATE . These submissions , which in practice amounted to a claim for repayment of the value added tax paid , were inadmissible as they could only be made subject to the conditions and time - limits set out in ORG CARDINAL et seq . of the Code of Tax Procedure . This conclusion , which answers a point raised before the courts below and does not involve any assessment of the factual circumstances , shall replace the legally flawed finding that served as the basis for the operative provision in the impugned judgment . The appeal ... must be dismissed . ”

The provisions of LAW of LAW , applicable at the relevant time , read as follows :

“ Claims relating to taxes , contributions , duties , charges , dues , indemnities and penalties of any kind , assessed or recovered by revenue officials , fall within the jurisdiction of the courts where they seek compensation for errors committed in the assessment or calculation of tax , or an entitlement due under a statutory provision or regulation .

All actions seeking a release from or reduction in tax , or to a right to make a deduction , on the ground that the norm that has been applied is incompatible with a higher - ranking norm , shall be heard and determined in accordance with the rules laid down in the present chapter .

Where such incompatibility has been established by a judicial decision , an action for the restitution of the sums paid or not deducted or for compensation for loss may only relate to the period following DATE that of the judgment establishing such incompatibility . ”

In its ORG judgment of CARDINAL DATE ( C-CARDINAL/CARDINAL ) , ORG of ORG ) gave the following answer to a question referred for a preliminary ruling on the provisions of LAW CARDINAL of the Code of Tax Procedure :

“ ... Community law does not preclude legislation of a Member ORG laying down that , in tax matters , an action for recovery of a sum paid but not due based on a finding by a national or ORG court that a national rule is not compatible with a superior rule of national law or with a ORG rule of law may only relate to the period following DATE that of the judgment establishing such incompatibility . ”


Preliminary objection joined to merits and dismissed (victim);Violation of Art. 6-1;Remainder inadmissible

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr Mykola Mykolayovych Pelevin , is a NORP national who was born in PERSON - on - Don in DATE and who currently resides in L'viv .

On DATE a private dispute arose between the applicant and ORG ( a private person ) over access to the attic of a building . As a result the applicant inflicted bodily injury on M.M.E. with an axe .

On DATE M.M.E. instituted a private prosecution ( приватне обвинувачення ) against the applicant before the ORG of L'viv and claimed compensation for non - pecuniary damage .

On DATE the applicant sought to institute criminal proceedings against ORG before the ORG of L'viv for inflicting minor bodily injury .

On DATE the ORG of L'viv , in particular Judge PERSON , instituted criminal proceedings against the applicant . He also decided that ORG should be granted victim status in these proceedings .

On DATE and CARDINAL DATE and DATE the applicant applied to the President of the ORG of L'viv , seeking the withdrawal of Judge PERSON from his case . The applicant submitted , inter alia , that Judge PERSON had not allowed him to use the NORP language in court , in particular to put questions to witnesses . On DATE and CARDINAL DATE the President of the ORG of L'viv dismissed the applicant 's request as unsubstantiated .

On DATE the ORG of L'viv refused the applicant 's request to institute criminal proceedings against GPE and his family members on suspicion of inflicting minor bodily injury on the applicant in DATE . The applicant appealed against this decision . On DATE the L'viv ORG dismissed the applicant 's appeal .

On DATE the ORG of L'viv found the applicant guilty of inflicting minor bodily injury and of arbitrary behaviour in DATE , sentenced him to an administrative fine and released him from criminal liability because of his advanced age , on the basis of the amnesty law in force at the time . It also ordered the applicant to pay M.M.E. compensation for non - pecuniary damage and legal costs in the amount of CARDINAL NORP hryvnias ( ORG ) . The court also acquitted M.M.E. of inflicting minor bodily injury on the applicant . The applicant was allowed to submit his oral plea to the court in NORP . According to the record of the court hearings , the applicant did not lodge a request for leave to use the LANGUAGE language , nor did he request the assistance of an interpreter .

The applicant lodged an appeal against the judgment of DATE . On DATE the ORG dismissed the applicant 's appeal as unsubstantiated . In the proceedings before the first - instance court and the court of appeal the applicant was assisted by a lawyer practising in L'viv ( a licensed advocate ) .

On DATE the applicant lodged an appeal in cassation with ORG . In his appeal the applicant relied on Articles CARDINAL - CARDINAL of the Code of Criminal Procedure which governed the examination of criminal cases within the ordinary cassation review proceedings . In his appeal he mentioned that he had not been able to participate effectively in the proceedings because he had not been allowed to use NORP while putting questions to the witnesses and had not been provided with the assistance of an interpreter .

On DATE a judge of the ORG V.S. , by a letter and without taking any procedural decision , refused to institute extraordinary review proceedings ( перегляд в порядку виключного провадження ) in the applicant 's case .

On DATE ORG , on the decision of Judge PERSON , assumed jurisdiction over the appeal in cassation and decided to institute cassation proceedings in the applicant 's case .

On DATE ORG examined the applicant 's appeal in cassation on merits and dismissed it within the ordinary review proceedings . ORG held its hearing in the absence of the applicant and in the presence of the prosecutor and victim in the criminal case .

The relevant provisions read as follows :

“ The following persons are entitled to lodge an appeal :

a convicted person ... ”

“ The following decisions may be reviewed in cassation proceedings :

CARDINAL ) NORP judgments and resolutions of a court of appeal given by it in appeal proceedings .

Judgments and resolutions or rulings of district ( city ) courts , inter - district ( circuit ) courts and garrison military courts may be also reviewed in cassation proceedings , as well as rulings of courts of appeal given in respect to those judgments and resolutions or rulings with the exceptions of rulings by which the court of appeal cancels such decisions and sends the case for a new investigation or examination . ”

“ Appeals in cassation against the court decisions referred to in part one of Article CARDINAL of this Code may be lodged by the persons specified in LAW .

Cassation appeals against the court decisions referred to in part CARDINAL of LAW may be lodged by :

CARDINAL ) a convicted person ... ”

“ Cassation appeals and petitions against the court decisions referred to in part one of LAW shall be examined with a mandatory notice of that examination being served on the prosecutor and the persons referred to in LAW .

Cassation appeals and petitions against the court decisions referred to in part CARDINAL of LAW shall be examined within DATE of receipt by the court of cassation , composed of CARDINAL judges with the participation of a prosecutor . The court shall either assign the case for examination and notify the persons referred to in LAW accordingly or dismiss it ... ”

“ As a result of the examination of a case within the cassation proceedings , the court shall make one of the following decisions :

CARDINAL ) uphold the judgment , resolution or ruling and dismiss the cassation appeal or petition ;

CARDINAL ) NORP quash the judgment , resolution or ruling and refer the case for a fresh investigation or trial before the first - instance court or review in appeal proceedings ;

CARDINAL ) NORP quash the judgment , resolution or ruling and terminate the case ;

CARDINAL ) modify the judgment , resolution or ruling . ”

“ The final and binding judgments may be examined within the extraordinary review proceedings in view of :

CARDINAL ) newly disclosed circumstances ;

CARDINAL ) incorrect application of the criminal law and fundamental breach of the requirements of criminal procedural law that have essentially impaired the correctness of the judgment ( ... ) ”

“ Parties to the proceedings and other persons entitled by law may lodge with the prosecutor a request for examination of the case on the grounds set forth in paragraph CARDINAL of part CARDINAL of LAW .

Requests for examination of the case on the grounds set forth in paragraph CARDINAL of part CARDINAL of LAW may be lodged by the convicted person or his defender or legal representative ( ... ) ”


The applicants are NORP citizens , born in DATE and DATE and resident in GPE ( GPE ) and GPE ( GPE ) , respectively . The first applicant is a building engineer and the second applicant is a managing director .

They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

A.

The first applicant was the managing director of the limited liability company ORG hereinafter “ K ” ) , and the second applicant the managing director of the limited liability company P ( hereinafter “ P ” ) . They are brothers .

On DATE and CARDINAL DATE , requests for a winding - up order were filed against P. On DATE , the second applicant , as the company ’s managing director , was notified of the winding - up proceedings .

On DATE , the applicants signed a contract between the companies K and P. According to the contract , K was to repair a roof of a building owned by ORG contract was priced at MONEY ( ORG ) . On DATE , P paid the said sum to K in advance . The works were to be completed by DATE .

On DATE , ORG ( kihlakunnanoikeus , häradsrätten ) of PERSON ordered the winding - up of P for insolvency .

On DATE , the liquidators of P ’s assets decided to maintain the contract between K and P.

On DATE , the liquidators lodged a petition with the police . They suspected that the applicants had acted dishonestly as debtors by signing the contract despite being aware of the winding - up requests against P. They found that the correct contract price was FIM CARDINAL , at the most . Moreover , the work had not been completed and it had been impossible to recuperate the money that P had paid to PERSON

On DATE , the Chief of ORG of GPE , ( hereinafter “ prosecutor S ” ) charged the second applicant with , inter alia , the offence of debtor ’s dishonesty . Furthermore , he charged the first applicant with aiding and abetting that crime . According to the indictment , the second applicant had known , on the basis of his existing or expected financial difficulties , that his act could be detrimental to the financial interests of his creditors . In these circumstances he had , without good cause , increased his financial obligations by entering into the contract of ORG when the real value of the contract was ORG , at the most , and the whole contract price had been paid immediately after signing the contract . The prosecution relied on DATE , section CARDINAL ( CARDINAL ) , of LAW .

LAW , section CARDINAL , of LAW ( rikoslaki , strafflagen , DATE ) stipulates as follows :

“ The Offence of Debtor ’s Dishonesty . A debtor , who , on the basis of his existing or expected financial difficulties , is aware that that his act can be detrimental to the financial interests of his creditors ,

CARDINAL ) destroys his property ,

... ( points CARDINAL and CARDINAL concern donations and transfers abroad ) ,

or

CARDINAL ) increases , without good cause , his financial obligations ,

thereby causing his insolvency or substantially aggravating it , shall be sentenced for the offence of debtor ’s dishonesty ... ”

( Unofficial translation from NORP . ORG . that the NORP word in point CARDINAL ) ( hävittää ) has also a less concrete meaning than “ destroy ” , namely “ dispose of ” or “ dissipate ” . PERSON the word “ dispose of ” is being used . )

The case was heard by ORG of Ylitornio , which held CARDINAL hearings .

Prosecutor S acted as prosecutor at the CARDINAL first court hearings , namely on DATE , CARDINAL DATE and DATE . As he was to take up a post in a different rural police district , he was replaced by another prosecutor , R ( hereinafter “ prosecutor R ” ) . The fourth court hearing was held on DATE .

On DATE , at the fifth court hearing , both applicants were present and counsel represented them . During this hearing , prosecutor R stated that the second applicant had , by entering into the contract in issue , not only increased P ’s financial obligations but also disposed of its property . In this regard , he referred to the advance payment whereby P ’s possessions had been transferred out of its LANGUAGE reach . He stated that in this respect he extended the charges . He referred to chapter DATE , section CARDINAL , of LAW without further specification as to the point in that section . Furthermore , he requested that a prohibition of engaging in business be imposed on the second applicant .

The second applicant , represented by counsel , replied that he had not disposed of P ’s possessions . The parties declared that they were ready for the case to be decided . ORG , however , adjourned the case to prepare its judgment and fixed the pronouncement thereof for CARDINAL DATE .

On DATE , ORG held the last hearing . Both applicants were present and represented by counsel . During this hearing , ORG heard a further witness called by the second applicant ( previously , CARDINAL witnesses had been heard ) . Moreover , ORG accepted further oral submissions from the parties . The defence submitted that the charges had been extended but that the extension had not been substantiated . The parties informed the court that they were ready for the case to be decided .

On DATE , ORG pronounced its judgment . ORG , when citing the prosecutor , noted that according to the indictment , which referred to the contract and the payment thereof , the company ’s financial obligations had not only been increased but its possessions had also been disposed of . In this connection , ORG referred to chapter DATE , section CARDINAL(CARDINAL ) , of LAW .

ORG found that the second applicant had , without good cause , increased P 's financial obligations by entering into the contract with K and by paying the full contract price immediately on signature , although K had not intended to fulfil its part of the contract . Thereby , the second applicant had disposed of P ’s property and substantially aggravated its insolvency . ORG found that the first applicant had aided and abetted the crime , having accepted P 's payment to K although aware of P ’s financial difficulties .

ORG found the second applicant guilty of , inter alia , the offence of debtor ’s dishonesty in violation of chapter DATE , sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) , of LAW . He was sentenced to DATE and CARDINAL months’ suspended imprisonment and was prohibited from exercising any business activity for a DATE period . The first applicant was found guilty of aiding and abetting that crime and sentenced to DATE suspended imprisonment . Furthermore , the applicants were ordered to pay damages to P.

After ORG judgment , the applicants instituted CARDINAL sets of proceedings :

( i ) appeal proceedings , i.e. appeal to ORG ( hovioikeus , hovrätten ) and request for leave to appeal to ORG ( korkein oikeus , högsta domstolen ) ;

( ii ) petition with the Chancellor of ORG ( valtioneuvoston oikeuskansleri , justitiekanslern i statsrådet ) concerning the bias of prosecutor S ;

( iii ) report of an offence against a lay judge , Y , on the basis of bias , with the Prosecuting Counsel ( kanneviskaali , advokatfiskalen ) at ORG . In the course of these proceedings , the Prosecuting Counsel also initiated an investigation concerning an allegation that prosecutor R had addressed ORG outside the court proceedings during its deliberations .

In the following , the above - mentioned proceedings are described separately , following chronological order within each set of proceedings .

( i ) The appeal proceedings

Both applicants appealed , separately , to ORG of ORG . They requested that the charges against them be dismissed . They objected to the alleged extension of the charges . Furthermore , the second applicant requested that ORG hold a hearing with a view to re - examining the witnesses heard by ORG . Also the first applicant submitted that ORG should hold a hearing . The applicants based their appeals , inter alia , on the bias of the above - mentioned lay judge Y , who had participated in the decision - making . They stated that Y had been a member of ORG of a company that had been P ’s creditor at the time of ORG proceedings . Furthermore , they found that a second lay judge , V , who had participated in the proceedings only at an early stage , had been biased on the ground that he had also been a member of ORG of CARDINAL of P ’s creditor companies at the time of the court proceedings .

On DATE , ORG held a hearing . The applicants , assisted by counsel , were present at the hearing . ORG examined , in addition to the parties , CARDINAL of the CARDINAL witnesses heard by ORG , CARDINAL further witnesses as well as F , who had been the second applicant 's counsel in certain matters . According to ORG TIME , all CARDINAL were heard at the second applicant 's request . There is no indication that ORG would have refused to examine the other witnesses previously heard by ORG or any other witnesses . The prohibition of engaging in business was withdrawn until ORG gave its final judgment .

On DATE , the second applicant sent ORG further written submissions . He noted , inter alia , that ORG was the first impartial tribunal examining the case . Furthermore , he commented on certain evidence that had come to light during the oral hearing .

On DATE , ORG delivered its judgment . Under the subheading “ Procedure in ORG ” , it found that the lay judges Y and V had lacked impartiality . ORG noted that the defence had not even contented that those judges had influenced the proceedings before ORG or the contents of the minutes . For this reason , and in view of the fact that the applicants had lodged an appeal concerning all aspects of the case and requested an oral hearing , ORG had itself held such a hearing without referring the case back to ORG .

ORG dismissed the applicants ' objection regarding the alleged extension of the charges .

ORG summed up ORG oral statements as follows . F had been instructed by the second applicant to investigate the possibilities of obtaining compensation for the damaged roof . After ORG insolvency had been discovered , the second applicant had informed F that the first applicant had also become personally insolvent . From this testimony , ORG inferred that , at the time of signing the contract between P and K , the second applicant had been aware both of ORG insolvency and the first applicant ’s personal insolvency .

As regards the merits , ORG found that the second applicant had had a good reason for taking action to have the roof of P ’s building repaired . Moreover , the contracted price had not been excessive and ORG failure to complete the works had partly been due to P ’s liquidators’ failure to supervise them . It noted that the roof had originally been built by the first applicant and that , most obviously , the second applicant would have had the right to compensation from the former . ORG found that the second applicant , when entering into the contract , had been aware that P was insolvent and that the contract and the payment could be detrimental to the NORP financial interests . Furthermore , the second applicant had , by entering into the contract , without good cause increased P ’s financial obligations and by paying the contract price , disposed of its property , thereby substantially aggravating its insolvency . It found the second applicant guilty of , inter alia , the offence of debtor ’s dishonesty , relying on DATE , section CARDINAL , points CARDINAL and CARDINAL , of LAW . It sentenced the second applicant to CARDINAL months’ suspended imprisonment and the first applicant to CARDINAL months’ suspended imprisonment . It also reduced the damages to be paid and quashed the prohibition of engaging in business imposed on the second applicant .

On DATE , the applicants , respectively , sought leave to appeal to ORG . They requested that ORG , either without or after an oral hearing , dismiss the charges against them or , alternatively , quash ORG judgment and refer the case back to a court of a lower instance for renewed proceedings ( alemman oikeuden uudelleen käsiteltäväksi ) . Their requests for leave to appeal concerned , inter alia , the bias of the lay judges , the bias of prosecutor S , the extension of the charges , as well as the evaluation of evidence before ORG . According to the applicants , F had never said that the first applicant was insolvent . He had only said that the first applicant was unable to pay MONEY in damages . Moreover , F had made no statement regarding PERSON The applicants did not complain that prosecutor R had addressed ORG outside the hearings during its deliberations .

On DATE , ORG refused the applicants leave to appeal .

( ii ) The petition with the Chancellor of ORG concerning the bias of the prosecutor

On DATE , the applicants lodged a petition concerning the bias of prosecutor S.

On DATE , the Deputy Chancellor of Justice ( valtioneuvoston apulaisoikeuskansleri , justitiekanslersadjointen i statsrådet ) found that prosecutor S had been a member of ORG of a bank called T when the bank had granted loans to P. That bank had been an important creditor of P at the time when P went into liquidation . It merged with CARDINAL other banks , and , subsequently , a bank L was founded . ORG had been a member of ORG of the latter bank at the time when the petition concerning offences around the liquidation of P had been lodged with the police . The offences had violated the interests of P ’s creditors . Due to the merger , bank L had succeeded bank T as P 's creditor . The Deputy Chancellor of ORG found that in these circumstances prosecutor S ’s impartiality had been open to doubt and that , therefore , he should neither have considered whether to press charges against the applicants nor have acted as prosecutor in the case . The Deputy Chancellor reprimanded S but found no grounds for considering that he had committed an offence in office , given the lack of explicit provisions in domestic law governing the impartiality of public prosecutors .

( iii ) The petition with the Prosecuting Counsel concerning the bias of a lay judge

On DATE , the applicants lodged a report of an offence with the Prosecuting Counsel of ORG concerning an offence in office by lay judge Y , who had participated in the decision - making of ORG judgment ( see also “ ( i ) The appeal proceedings ” ) . The lay judge had been a member of ORG of a company that had been P ’s creditor at the time of ORG proceedings . The applicants considered that Y had committed an offence in office by not stepping down from the bench .

The lay judge stated in his written submission , inter alia , that prosecutor R had during the last hearing in the ORG requested “ more severe sentences and a lengthy prohibition of the second applicant ’s business activities ” . On the last point , prosecutor R had referred to the winding - up of another company in GPE in which the second applicant had been involved . According to Y , the prosecutor ’s request had resulted in an amendment to the draft judgment , which the presiding judge had distributed to the lay judges .

On DATE , the Prosecuting Counsel of ORG requested that a pre - trial investigation be opened regarding ORG 's suspected partiality and prosecutor R ’s above - mentioned request to ORG . The Prosecuting Counsel requested that the police investigate the circumstances in which prosecutor R had made this request .

In the pre - trial investigation Y , on DATE , acknowledged that he should not have taken part in the applicants’ case . His participation had been due to his lack of knowledge but had not affected the outcome of the case . According to the recollection of the Presiding Judge of ORG , also heard in the pre - trial investigation , prosecutor R had requested the prohibition of engaging in business “ at DATE but CARDINAL hearing ” . The Presiding Judge , furthermore , stated that the parties’ oral submissions at the hearings had been transcribed verbatim .

The pre - trial investigation record was completed on DATE . A copy thereof , which the applicants submitted to ORG of FAC as an annex to their application , was certified on DATE .

B. Relevant domestic law and practice

For chapter DATE , section CARDINAL , of LAW , see A. above .

According to LAW ( oikeudenkäymiskaari , rättegångsbalken ) , as it stood , ORG was composed of a presiding professional judge and CARDINAL lay judges .

Courts of appeal are competent to examine both factual and legal issues .

ORG precedent of CARDINAL DATE ( ORG ) concerned a case in which ORG had found that a lay judge in ORG had been biased . Therefore , ORG had referred the case back to ORG . In ORG view , since there was no indication that the biased lay judge would have influenced the proceedings and since all the defendants had by appeal brought the case in its entirety before ORG , the latter should not have refrained from examining the case itself .

ORG found in another precedent of DATE ( ORG ) that ORG had not met the requirements of impartiality as guaranteed by LAW . Therefore , and in order to fulfil the requirements of a fair trial , the case was to be referred back for a retrial to the relevant court of first instance .


GERAGUYN KHORHURD PATGAMAVORAKAN AKUMB v. ARMENIA

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

NORP The applicant , ORG , is a non - governmental organisation ( “ the applicant organisation ” ) which was established in DATE and has its registered office in GPE . It was represented before the ORG by its head , PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr G. Kostanyan , Representative of GPE at ORG .

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

On DATE a parliamentary election was held in GPE . The applicant organisation acted as an election observer during the election . According to the applicant organisation , in the pre - election stage it had disclosed numerous violations connected with the use of pre - election funds of certain parties which allegedly led to the free broadcast of the election campaign by certain TV companies being carried out mainly in favour of a number of parties .

NORP The applicant organisation alleged that on CARDINAL DATE its head had applied to ORG ( ՀՀ կենտրոնական ընտրական հանձնաժողով – “ the ORG ” ) with letter no . CARDINAL , sent by registered mail , having the following content :

“ To receive copies of documents

To ORG

Application

Based on the requirements of LAW ( CARDINAL ) of LAW of GPE and Paragraph CARDINAL of LAW , I request that an observer of our organisation [ GPE ] be allowed , according to the established procedure , to receive copies of a number of documents related to the parliamentary election of DATE , in particular :

NORP all decisions taken by the ORG after DATE ] ;

NORP all records of the meetings held by the ORG after DATE ] ; [ and ]

NORP registers of voluntary payments to pre - election funds and expenses of the parties ( unions of parties ) participating in the parliamentary election through the proportionate ballot . ”

NORP The applicant organisation further alleged that on CARDINAL DATE the lawyer of the ORG verbally informed its head that the ORG still had time to reply to its request . It also alleged that on the same date its head addressed to the Chairman of the ORG letter no . CARDINAL , similarly by registered mail , which stated as follows :

“ ... on DATE [ DATE ] we applied to the ORG requesting to be allowed to receive copies of a number of documents related to the parliamentary election of DATE .

However , so far you have not satisfied our lawful request[. I]n this connection we once again request [ that you ] provide us with copies of the documents in question . ”

The Government contested these allegations and argued that the letters in question were never submitted to the ORG .

On DATE the applicant organisation contested the ORG ’s alleged inaction before the courts , seeking to oblige it to provide copies of the requested documents .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) held a hearing on the case .

On DATE the GPE and ORG of GPE held another hearing and decided to dismiss the applicant organisation ’s application . ORG found that the applicant organisation had failed to submit any evidence that it had applied to the ORG with a request for copies of documents and had been refused .

The applicant organisation alleged that it had not been notified about these hearings and its representative was therefore unable to attend .

On DATE a copy of this judgment was served on the applicant organisation . On DATE , the head of the applicant organisation requested access to the materials of the case file . The applicant organisation alleged that no reply was received to this request , while the Government alleged that this request was never actually filed with ORG .

On DATE the head of the applicant organisation , in reply to another request , was granted access to the case file materials .

On DATE the applicant organisation lodged an appeal . Attached to its appeal the applicant organisation submitted copies of its letters of CARDINAL and CARDINAL DATE and of front pages of CARDINAL post office receipts .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) , with reference to ORG DATE of the Code of Civil Procedure , decided to dismiss the applicant organisation ’s appeal on the ground that it had failed to submit evidence that it had sent its letter of CARDINAL DATE to the ORG . ORG found that the copy of the post office receipt attached to the appeal could not serve as such proof because there was no postmark on it certifying that the letter had been handed in at the relevant post office .

NORP The applicant organisation submitted that its representative refused to participate in this hearing because of allegedly having previously been denied access to the case file materials .

On DATE the applicant organisation lodged an appeal on points of law . Attached to its appeal the applicant organisation submitted copies of the same post office receipts with postmarks dated CARDINAL and CARDINAL DATE photocopied on their reverse .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the applicant organisation ’s appeal . ORG , having recapitulated the findings of ORG , stated , inter alia :

“ As regards the argument raised in the appeal that letters ORG . CARDINAL and CARDINAL have been sent , the [ post office ] receipts submitted as proof are not proper evidence since they bear no postmarks . ”

The relevant provisions of LAW , as in force at the material time , read as follows :

“ CARDINAL . Elections are prepared and conducted publicly . ... ”

“ CARDINAL . [ The following physical and legal persons ] have the right to an observer mission during an election : ( CARDINAL ) international organisations ; ( CARDINAL ) representatives of foreign states ; [ and ] ( CARDINAL ) those [ domestic ] and foreign non - governmental organisations whose statutory aims include questions of democracy and human rights protection and which do not support [ any of ] the candidates or the parties .

NORP The procedure for carrying out an observer mission shall be established by ORG . ”

“ CARDINAL . Organisations and persons mentioned in LAW may carry out an observer mission after having been accredited by ORG .

The powers of persons carrying out an observer mission shall terminate DATE after the end of an election . ”

“ CARDINAL . An authorised election assistant , an observer and a representative of mass media have the right : ... ( CARDINAL ) to have unimpeded access to the election documents , samples of ballot papers , decisions of an election committee and records of its meetings , as well as to receive their copies and to take extracts .

No limitations can be placed on the rights of an authorised election assistant , an observer and a mass media representative . ... ”

“ Any party to the proceedings must prove the circumstances on which his [ or her ] claims and objections are based . ”

“ CARDINAL . Evidence shall be produced by the parties to the proceedings . ... ”

“ Unlawful acts of public authorities , local self - government bodies and their officials can be annulled or their actions ( inaction ) can be contested ( hereafter , annulling the unlawful act ) if the act in question contradicts the law and if there is evidence that the applicant ’s rights and ( or ) freedoms guaranteed by LAW and laws have been violated . ”

“ CARDINAL . An application seeking to annul unlawful acts of public authorities , local self - government bodies and their officials shall be submitted to a court dealing with civil cases or ORG , pursuant to their jurisdiction over cases . ... ”

“ Cases on appeals lodged against judgments of the first instance courts , which have not entered into force , are examined by ORG ( hereafter , ORG ) . ”

“ CARDINAL . ORG is not bound by the appeal and shall examine the case anew on the basis of the existing and newly produced evidence . ... ”

“ Appeals on points of law lodged against judgments of the first instance courts , ORG and ORG , which have entered into force , and judgments of ORG and ORG , which have not entered into force , are examined by ORG ( hereafter , ORG ) . ”

“ An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights ... ”

“ CARDINAL . ORG is not entitled to establish or consider as proven facts which have not been established by the contested judgment or have been rejected by it , to determine whether or not this or that piece of evidence is reliable , to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case . ”

The relevant provisions of the Rules , in force at the material time , read as follows :

“ CARDINAL . An observer has the right : ... to have unimpeded access to the election documents , samples of ballot papers , decisions of an election committee and records of its meetings , as well as to receive their copies and to take extracts ; ... to give press conferences and to address mass media in accordance with the legislation of GPE .

An observer shall submit copies of the reports on the summarising of the election results and on the conduct of the election to ORG ... ”

“ CARDINAL . The material and financial costs of an observer ’s activities shall be borne by the party commissioning the observer or by [ the observer ’s ] own financial means .

The relevant election committees shall provide the necessary assistance to an observer in the implementation of the rights envisaged by LAW . ”


The applicant , Mr Aage Slots , is a NORP national , born in DATE and living in GPE , GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

The respondent Government are represented by their agent , PERSON Holst - Christensen of ORG .

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

In DATE the applicant owned a certain real estate in GPE and furthermore controlled , through incorporated companies , a number of wine and tobacco businesses . CARDINAL of the companies for which the applicant stood surety experienced financial difficulties and was eventually declared bankrupt . The applicant ’s personal financial situation was affected thereby and on CARDINAL DATE the customs authorities requested ORG ( Sø- og PERSON skifteretsafdeling ) to open bankruptcy proceedings against him . A number of court sessions were subsequently held following which the applicant was declared bankrupt by decision of CARDINAL DATE . Furthermore , the ORG appointed , provisionally , CARDINAL official receivers .

The applicant appealed against the above decision to ORG ( Højesteret ) . However , on DATE ORG of ORG ( ORG Anke- og kæremålsudvalg ) upheld the decision .

On DATE ORG appointed CARDINAL official receivers to sort out the applicant ’s estate in bankruptcy and to settle the accounts . A total of CARDINAL court sessions were subsequently held DATE with a view to determine the applicant ’s assets , to decide on the applicant ’s objections to the sale of real property , mortgage deeds and stocks , his objections to a manager who was temporarily hired to take care of the ongoing business , his objections to one of the official receivers and to an assisting judge , to decide on the applicant ’s request to have a counsel appointed , to consider the creditor claims submitted , to discuss accountant fees , and to settle other disputes related to the bankruptcy . During sessions held on DATE and DATE as well as on DATE the official ORG draft accounts were discussed . The applicant had objections to CARDINAL items listed in the accounts . Eventually , as no agreement could be reached , ORG approved the accounts including the fees to be paid to the official receivers and the principles of distribution by decision of DATE . It appears from the transcript of the decision that a few questions were left open regarding some amounts , which the official receivers had not been able to recover . ORG stated that if it should prove necessary , these questions could be dealt with later pursuant to section CARDINAL of LAW ( Konkursloven ) .

On DATE the applicant , represented by a lawyer , appealed to ORG against the part of ORG decision that concerned the official ORG fees which the applicant claimed reduced . Written pleadings were submitted and a court session was held DATE . On DATE the applicant ’s lawyer informed the court that he withdrew from the case . CARDINAL court sessions were held DATE and DATE during which a new lawyer represented the applicant . On DATE a final hearing was scheduled to take place on DATE . However , on DATE the new lawyer informed the court that he had withdrawn from the case . On DATE and CARDINAL October CARDINAL the case was adjourned awaiting the applicant engaging another lawyer . In a court session on DATE the final hearing was re - scheduled to take place on DATE though the applicant had had not succeeded in finding a new lawyer . Pre - trial hearings were held on DATE and CARDINAL DATE . The scheduled final hearing on DATE had to be adjourned due to the applicant ’s hospitalisation . On DATE the final hearing was re - scheduled to take place on CARDINAL DATE . However , also this hearing had to be adjourned due to the applicant ’s hospitalisation and the final hearing was re - scheduled to take place on DATE . On DATE ORG pronounced judgment upholding ORG decision of DATE concerning the fees to the official receivers .

Subsequently , supplementary income accrued to the estate . Accordingly , pursuant to LAW , on DATE the official receivers submitted an additional draft account as well as an additional statement of distribution . ORG inserted a notice , which was published in the NORP Official Gazette on DATE , summoning to a final hearing on DATE and stating :

“ The additional draft account and the list of distribution can be examined in ORG during a period of DATE before the final hearing . Provided that the drafts are approved of , and not appealed against within the time limit , the bankruptcy proceedings are terminated ... and the distribution of the dividend will take place on CARDINAL DATE . ”

By decision of CARDINAL DATE ORG approved the additional draft account and the additional statement of distribution . It follows inter alia of the court records :

“ A notice of the completion of the bankruptcy proceedings is to be published in the NORP Official Gazette .

The bankruptcy proceedings are terminated . ”

Thus , ORG inserted a notice , which was published in the NORP Official Gazette on CARDINAL DATE stating :

“ By decision of DATE ORG approved the additional draft account and the additional statement of distribution in the bankruptcy proceedings concerning [ the applicant ] . ”

On DATE , the applicant appealed against this decision to ORG of Eastern Denmark ( PERSON ) opposing to the principles of distribution .

DATE a dispute concerning the fee to be paid to ORG for the applicant ’s appeal was determined . Subsequently , written pleadings on the merits were submitted . In a court session held on DATE the applicant ’s request for an expert opinion was refused . It appears that the applicant thereafter changed lawyer CARDINAL times . At a pre - trial hearing on CARDINAL DATE ORG dismissed the applicant ’s appeal since neither the applicant nor a representative appeared . However , at a court session held on DATE it was established that the applicant by mistake had not been informed by his lawyer of the court session on CARDINAL DATE . Accordingly , ORG restored the case . On DATE the proceedings were transferred to preparation in writing and adjourned until DATE pending the applicant ’s written pleadings . On DATE the final pleadings were scheduled to take place on DATE . By judgment pronounced on DATE ORG dismissed the applicant ’s appeal for the following reasons :

“ The principles of distribution became final by ORG decision of DATE . ORG decision now appealed against [ by the applicant ] only approves an additional statement of distribution to the creditors according to the aforesaid principles .

Accordingly , [ the applicant ] is now precluded from appealing against the principles of distribution . ”

By letters of DATE and DATE the applicant requested the official receivers to inform him when the final closure of the bankruptcy estate was to take place . It appears that he did not receive a reply thereon .

B. Relevant domestic law

The relevant provisions of LAW of LAW concerning the completion of bankruptcy proceedings and the distribution of dividend read as follows :

CARDINAL Section CARDINAL

“ On the basis of a recommendation from the official receiver , ORG may decide that a final account , and distribution , if any , of an amount not yet collected , ... or any other specifically limited parts of the estate , shall be deferred to the period after the completion of the bankruptcy proceedings . ”

Section CARDINAL

“ Dividend will be distributed to the creditors when ORG has approved the draft accounts and the statement of distribution , and when the time limit for appeal has expired without an appeal having been initiated . ”

Section CARDINAL

“ Amounts , which have been paid in or are released to the advantage of the estate after its completion , will be distributed to the creditors according to the principles of distribution previously approved of by ORG . An additional account must be submitted by the official receiver to ORG ... ”

Section CARDINAL

“ ORG inserts a notice of the completion of the bankruptcy proceedings to be published in ORG ) ... ”


No violation of Art. 14+8;Violation of Art. 6-1;Costs and expenses partial award

NORP In DATE the applicant made an application for prior authorisation to adopt a child . A social inquiry was opened by ORG , ORG . On DATE the applicant had a first interview with a psychologist from the ORG , during which he revealed that he was a homosexual . He submits that during the interview he was strongly urged not to continue with the adoption process .

In a decision of CARDINAL DATE ORG rejected the applicant 's application for authorisation to adopt . The reasons given for the decision were that the applicant had “ no stable maternal role model ” to offer and had “ difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child ” . The decision was taken on the basis of various inquiries leading , among other things , to a social services report of DATE , which included the following statements :

“ ... Mr PERSON seems to us to be a sensitive , thoughtful man who shows consideration for others . He discusses his emotional life and his homosexuality with a great deal of honesty and simplicity . He spoke to us of a number of relationships which have had a major impact on his life , particularly one with a male friend who has now died . It should be added that he is now the auxiliary guardian of this friend 's child . ...

His humanistic , altruistic cast of mind prompts him to take an interest in the problems of ORG . He sponsors CARDINAL NORP children , one of whom is a baby .

He is able to talk sensibly and intelligently about the boy over whom he has guardianship . He is not personally responsible for the boy , who is in the care of his grandmother , but he plays a highly active part in his upbringing . His ideas about bringing up children are well thought out and imbued with a spirit of tolerance .

Mr GPE has been thinking about adopting since DATE . He is aware that his homosexuality may be an obstacle to being granted authorisation to adopt because of the prevailing views of society .

In his opinion , his choice of emotional and sexual lifestyle has no bearing on his desire to bring up a child . His application is a personal undertaking not a militant gesture .

Since DATE he has met many homosexual men with children .

He even once considered having a child with a female friend but the plan came to nothing because of a lack of maturity on both sides . This friend is nonetheless still very interested in Mr PERSON 's plan to adopt and has even promised to act as a female role model for the child .

Mr PERSON 's application to adopt a child is motivated by a desire to provide a child with affection and a proper upbringing . In his view the essential thing is to love and care for a child , adoption , for him , being no more than a social and legal procedure .

Mr GPE has the support of the friends around him . It seems , however , that his family either do not know of his plans or have misgivings about them .

His desire for a child is genuine but he has difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child . For example , it was only when we visited his home that he realised how unsuitable his flat is for a child to live in . As a result he began considering the possibility of moving .

When questioned as to how he regarded his role in society as a single father he said he did not have an answer . He considers himself capable of managing the day - to - day life of a child and thinks that he will in due course find the answers to the questions about his homosexuality and the absence of an adoptive mother that will occur to the child as he or she grows up .

Mr GPE is perfectly aware of the importance of telling the child about his parentage . He shows understanding towards women who are impelled to abandon their children . He refuses to have any fixed ideas about the characteristics of the child he would like to adopt .

Nonetheless , he has been thinking that he would prefer as young a baby as possible and that he may begin searching in GPE or GPE .

Mr GPE has undoubted personal qualities and an aptitude for bringing up children . A child would probably be happy with him . The question is whether his particular circumstances as a single homosexual man allow him to be entrusted with a child . ”

On DATE the applicant asked the authorities to reconsider their decision but his application was dismissed by a decision of DATE indicating , among other things , that the applicant 's “ choice of lifestyle ” did not appear to be such as to provide sufficient guarantees that he would offer a child a suitable home from a family , child - rearing and psychological perspective .

On DATE the applicant lodged an application for judicial review of that decision with the administrative court , seeking to have the decisions dismissing his application for authorisation quashed .

In a judgment of CARDINAL DATE ORG set aside the decisions refusing the applicant authorisation , citing the following grounds , inter alia :

“ In dismissing Mr PERSON 's application for authorisation to adopt a child , the main reasons given by the authorities were that Mr PERSON had ' no stable maternal role model ' to offer and found it difficult ' to envisage the practical consequences of the upheaval occasioned by the arrival of a child ' . The first reason is a circumlocution , by which the authorities could only have meant to refer to Mr PERSON 's unmarried status , which could be lawfully relied on in support of the impugned decision but , under the provisions of LAW , paragraph CARDINAL , of the decree of CARDINAL DATE , could not lawfully constitute the sole reason for the decision . Neither is there any evidence in the case file to substantiate the second reason given , which seems in fact to be erroneous in view of the information provided in the reports drawn up by the social services .

The reason given for the decision of DATE , by which ORG , ORG dismissed Mr PERSON 's appeal and confirmed the initial decision examined above , was Mr PERSON 's ' choice of lifestyle ' . Through this euphemistically worded reason the authorities were alluding to PERSON PERSON 's homosexuality . As the authorities themselves acknowledge in their defence pleadings , this aspect of Mr PERSON 's personality could only have constituted a reason to refuse authorisation if it had been combined with conduct that was prejudicial to the child 's upbringing .

The social services report prepared by PERSON and PERSON credits Mr GPE with ' undoubted personal qualities and an aptitude for bringing up children ' , finds that ' a child would probably be happy with him ' and only raises a question as to the compatibility of Mr GPE 's adoption plans with the ' particular circumstances ' of his being ' a single homosexual man ' . The social inquiry conducted by the NORP Vice - Consul 's deputy in GPE noted Mr GPE 's educational skills , which he shows as much in his private life as in his professional activities . The psychiatrist , PERSON , detected ' no psychological impediment ' to Mr PERSON 's plan and although the psychologist , PERSON , recommended that authorisation be refused , she gave no reason for her opinion and drew attention elsewhere in her report to ' Mr PERSON 's affective qualities and aptitude for bringing up children and his deep understanding of adoption - related issues ' .

Whereas the social services reports produced included information , particularly with regard to Mr PERSON 's family , which , since they could have no valid bearing on the authorities ' decision , infringed his right to respect for his private life , none of the documents included in the case file made it possible to establish or even suggest that Mr PERSON 's lifestyle reflected a lack of moral rigour or emotional stability , or a risk that he would abuse the adoption process , or any other conduct indicating that his plan to adopt presented a risk to any child he might adopt .

Thus , those who took the contested decisions in the instant case wrongly interpreted the provisions cited above . Mr PERSON 's application to have the aforementioned decisions of CARDINAL May and DATE set aside is well - founded . ”

ORG appealed against that judgment to the ORG d'Etat .

The Government Commissioner , PERSON , made her submissions at the hearing of DATE . She submitted that ORG application to have the contested judgment set aside was well - founded , addressing the court as follows :

“ The case raises the following question : In spite of PERSON undoubted personal and intellectual qualities , did the authorities have good reason to consider that he did not provide sufficient guarantees to offer a child a home because of his choice of lifestyle ?

In the light of the information in the case file , this question is elevated to a matter of principle . This case does not turn on its own facts because the documents in the case file leave me in no doubt that in many respects PERSON has a genuine aptitude for bringing up children . The only thing that prompted the authorities to refuse authorisation was the fact that PERSON was a homosexual and therefore that he did not provide sufficient guarantees that he would offer a child a suitable home from a psychological , child - rearing and family point of view . However , nothing in the case file suggests in any way that PERSON leads a dissolute life and neither is there any reference in it to any specific circumstance that might pose a threat to the child 's interests . Accepting the lawfulness of the refusal of authorisation in the instant case would implicitly but necessarily doom to failure all applications for authorisation to adopt by homosexuals ...

It is certain that a number of factors would tend to indicate that ORG made an error in assessing the evidence .

The first and undoubtedly the strongest argument is that since the major reform of the laws on adoption introduced by the LAW DATE , single persons , whether men or women , have been entitled to adopt . ...

Deciding ... by judicial interpretation that an unmarried homosexual man does not provide sufficient guarantees from a psychological and family perspective to adopt a child introduces discrimination between adoption candidates on grounds of their choice of private life which was not expressly intended by ORG .

The second argument in favour of ORG ruling is that a person 's right to lead the sex life of his or her choice should not , of course , be contested . This is CARDINAL of the key components of the right to respect for private life guaranteed , inter alia , by LAW . There is no longer any discrimination against homosexuality at domestic level ...

ORG , DATE , no . CARDINAL - CARDINAL ) . Conversely , another court found that a father who had ' immoral homosexual relations incompatible with the exercise of parental authority ' could not exercise that authority ( ORG , CARDINAL DATE , no . CARDINAL - CARDINAL ) . Similarly , in a judgment in which it was found that , because of the father 's homosexual practices , it would be particularly dangerous for the moral and physical well - being of his children to spend their holidays with him , it was held that there were serious grounds to justify refusing the father that right ( ORG of ORG ( PERSON . civ . I ) , CARDINAL DATE , no . DATE ) . More recently ORG granted a homosexual donor parental authority over a child born by artificial insemination to a mother who was herself involved in a homosexual relationship ( PERSON . civ . I , DATE , PERSON ; D CARDINAL.CARDINAL note PERSON ; D DATE summary CARDINAL , observations by PERSON ) . The courts do not therefore presume that because someone is a homosexual , he or she is disqualified from exercising parental rights . The discussion focuses mainly on the child 's interests and the dangers that such circumstances may pose to the child 's mental health .

Lastly , authorisation is merely an administrative decision taken prior to the adoption process . ...

Nonetheless , I consider , for a number of reasons , that ORG did not commit any error in assessing the evidence when it held that Mr F. did not provide the necessary guarantees . A number of factors led me to this conclusion .

Firstly , the right of everyone to the sex life of their choice should not be confused with a hypothetical right to have children . ...

Secondly , the pertinence of the comparison with the case - law on custody of children and parental authority is clearly limited . The examples cited above relate only to a previously established family tie or CARDINAL which corresponds to an actual line of descent . It is CARDINAL thing to preserve a filial tie between a child and parents who are separating or who wish to confirm their links with him or her but another to allow the establishment of a family tie between a child and an adult out of nothing ...

Thirdly , the question whether a child is in danger of being psychologically disturbed by his relationship with an adult who can not offer him or her the reference point of a distinct father and mother , in other words a model of sexual difference , is a very difficult one which divides psychiatrists and psycho - analysts . Adopted children are all the more in need of a stable and fulfilling family environment because they have been deprived of their original family and have already suffered in the past . This makes it all the more important that they do not encounter any further problems within their adopted family . ...

There is no agreement on the answer to that question . If there is any consensus it lies instead in the growing awareness that the rights of the child set the limits of the right to have children and that the child 's interests can not always be reconciled with current developments . This being so , I believe that when dealing with such a sensitive question , whose implications are more ethical and sociological than legal , it is up to ORG to take a stance on what amounts to a choice for society . The courts , for their part , should not be anticipating shifts in public opinion , but responding to them .

This brings me to my fourth argument , which is that the question whether CARDINAL or more homosexuals should be entitled to adopt is not CARDINAL which ORG can be said to have determined . ...

Fifthly , there should be no underestimating the part that authorisation plays in the adoption procedure . Admittedly , this is CARDINAL stage in the adoption process but it is a crucial one because the adoption can not go ahead without it . ...

It should be added , as a concluding remark regarding authorisation , that I am aware that what I propose has the drawback that it appears to encourage candidates for adoption to conceal the truth if they feel that their choice of lifestyle amounts to an absolute impediment to their being granted authorisation . However , there are CARDINAL reasons why I think that this problem can be overcome . Firstly , the question will not arise very often because , as was mentioned above , the scarcity of children eligible for adoption compared to the demand usually prompts the social services to reject requests from single candidates . Secondly , the aim of the inquiries conducted prior to the granting of authorisation is precisely to ensure that the candidate can offer a child a suitable home and this inevitably means that the experts investigate his or her private life . Although the inquisitorial nature of these inquiries has sometimes been condemned ( see for example PERSON , Revue française de droit administratif , DATE , pp . CARDINAL et seq . ) , they do have the merit of ensuring that authorisation is then granted in full knowledge of the facts .

My final argument is that if you have any remaining scruples about the fact that in considering the legality of a refusal of authorisation you are ruling on a matter which it is usually for the ordinary courts to decide in their capacity as the judges of matters of personal status , your scruples may be partly allayed by the fact that the position you will be taking will not entirely prevent the ordinary courts from authorising the adoption of a child by a homosexual in certain cases if they consider it compatible with the child 's interests . When the new law on adoption was introduced recently , a new LAW was added to LAW , the second paragraph of which provides that if authorisation is refused or not granted within the statutory time , the courts may approve the adoption if they consider that the applicants are capable of providing the child with a suitable home and that this is compatible with the child 's interests . ...

It follows from the foregoing that ORG are justified in maintaining that ORG was wrong to rule in the judgment appealed against that the CARDINAL impugned decisions should be set aside . ”

In a judgment of DATE the ORG d'Etat set aside ORG judgment and , ruling on the merits , rejected the applicant 's application for authorisation to adopt . It decided , inter alia , as follows :

“ In a decision of CARDINAL DATE , upheld by a further decision of DATE in response to an application for reconsideration , the chairman of ORG ... rejected Mr PERSON 's application for authorisation to adopt a child on the ground that although the applicant 's choice of lifestyle was to be respected , the type of home that he was likely to offer a child could pose substantial risks to the child 's development . From the information in the case file , particularly the evidence gathered when PERSON PERSON 's application was being considered , it emerges that Mr GPE , regard being had to his lifestyle and despite his undoubted personal qualities and aptitude for bringing up children , did not provide the requisite safeguards DATE from a child - rearing , psychological and family perspective – for adopting a child . ORG was thus wrong , when setting aside the contested decisions , to rely on the argument that , in refusing the authorisation sought by Mr NORP on the aforementioned ground , the chairman of ORG had applied these provisions incorrectly .

However , since the appeal procedure has had the effect of transferring all the issues of fact and law to the ORG d'Etat , it is for the latter to examine the other submissions made by Mr PERSON before ORG . ... The grounds given for the contested decisions satisfy the requirements of the law . ... ”

The relevant provisions of LAW provide as follows :

“ Adoption may be applied for by a married couple who have not been judicially separated and have been married for DATE or are both over DATE . ”

“ Adoption may also be applied for by any person over DATE of age . ” ( the age - limit was CARDINAL at the material time , namely prior to the adoption of PERSON no . CARDINAL of DATE )

ORG lays down the rules on the taking of children into State care and the conditions for their adoption . It describes the authorisation procedure as follows :

“ ... Children in State care may be adopted by persons given custody of them by the social services wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt by the head of the children 's welfare service under the conditions laid down by decree ... ”

“ Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in LAW . ”

Decree no . CARDINAL - CARDINAL of DATE established the arrangements for appraising applications for authorisation to adopt a child in ORG care as follows :

“ Any person wishing to obtain the authorisation contemplated in the second paragraph of LAW must submit an application to that end to the head of the children 's welfare service of the département in which he or she resides . ”

“ In order to assess the application , the head of the children 's welfare service shall conduct all the investigations required to ascertain what kind of home the applicant is likely to offer the children from a psychological , child - rearing and family perspective ... ”

“ Decisions to refuse authorisation must be supported by reasons as laid down in section CARDINAL of the Law of DATE cited above . The applicant 's age or matrimonial status or the presence of children in his or her household may not constitute the sole reason for a refusal . ”

“ The decision by the head of the children 's welfare service shall apply for DATE . A further application for authorisation may be made when that period has expired . Further applications shall be assessed under the same procedure . ... ”

According to data collected by the NORP authorities , CARDINAL applications for authorisation were made in DATE . CARDINAL applications were examined DATE and the usual average of PERCENT were rejected . At the time there were CARDINAL children in State care awaiting adoption . In DATE the authorities issued CARDINAL visas to foreign children following their adoption by persons residing in GPE .

At the material time , LAW DATE on the organisation and functioning of the PERSON d'Etat required lawyers to be advised DATE before the sitting if any cases in which they were due to appear were on the list of cases to be heard and to be notified of the issues raised in reports to the PERSON d'Etat . The obligation to notify therefore applied only in respect of lawyers .

As regards private individuals , a decision of the ORG d'Etat of DATE ( NORP , Reports , p. CARDINAL ) pointed out :

“ There is no rule stating that appellants must receive [ notice of the date on which their case is to be heard ] . If they have not appointed a legal representative , it is for them to ask to be notified of the date on which their case is to be heard or to consult the notice boards installed for this purpose at the registry of ORG .

This rule , which provides that the parties are summoned to the hearing only if they have appointed a lawyer , should be seen in the light of the rule laid down in CARDINAL of the Ordinance of DATE , under which only members of ORG and the ORG d'Etat Bar ( the avocats aux conseils ) may plead during hearings before these courts . ”

Since DATE all parties to proceedings before the ORG d'Etat have been automatically informed of the date of the hearing . As in the past , the lists of cases for hearing are displayed at the ORG secretariat and so are accessible to the public .

At the hearing the Government Commissioner speaks after counsel for the opposing parties have addressed the court and so the parties to the case can not speak after him ( see ORG v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINAL-VI ) . Even if they are not represented by a lawyer , they do , however , have the possibility , hallowed by usage , of sending the trial bench a “ memorandum for the deliberations ” to supplement the observations they have made orally or to reply to the Government Commissioner 's submissions . This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins .

By DATE of the Ordinance of CARDINAL , cases for which it is not compulsory to be represented by a lawyer include applications for judicial review of the decisions of the various administrative authorities .