CASE OF SWEDISH ENGINE DRIVERS' UNION v. SWEDEN

No violation of Art. 11;No violation of Art. 14+11;No violation of Art. 13

The NORP Engine Drivers ' Union ( ORG ) is a trade union founded in DATE with its head office in GPE . It is open to the five to CARDINAL employees of ORG who are either crewmen or personnel from among whom crewmen are recruited . Its membership rose from CARDINAL in DATE to CARDINAL in DATE , then dropped to CARDINAL in DATE . Thus the applicant union comprises PERCENT of the eligible railway personnel , by far the majority of PERCENT - belong to the ORG 's Section of ORG ( ORG ) , CARDINAL of the CARDINAL principal federations of ORG employees .

The applicant union is an independent trade union . It complains that ORG ( PERSON , hereinafter referred to as " the Office " ) concluded collective agreements on terms of employment and conditions of work only with the said federations . It maintains that this policy has led to stagnation and a drop in its own membership ; the Government challenges these statements .

General background

For DATE , workers and employers in the private sector in GPE have traditionally enjoyed the right to form and join trade unions and to take action in defence of their occupational interests without interference by the ORG .

Certain principles of labour law which had evolved in practice were codified in DATE and DATE by the following legislation :

LAW deals with collective labour agreements between employers or employers ' associations and trade unions . It specifies in particular the legal effects of such agreements . For example , the parties may not take strike or lock - out action in regard to an issue regulated by a collective agreement in force between them .

The DATE LAW contained rules governing the composition , jurisdiction and procedure of ORG .

ORG was competent to hear cases of alleged violation of LAW on the Right to Organise and Negotiate . It also had jurisdiction in disputes relating to the interpretation and application of collective agreements , but proceedings could only be brought by a party to the agreement in issue . Unions or non - union employees to whom such an agreement had been made applicable ( paragraph CARDINAL below ) were obliged to bring their disputes before the ordinary courts or administrative courts , as the case might be .

The above - mentioned DATE Act guarantees CARDINAL distinct rights to the parties on the labour market , namely the right to organise and the right to negotiate .

The right to organise is defined in LAW as the right of employers and employees to belong to an employers ' organisation or a trade union , to exercise their rights as members of that organisation or union , and to work for an organisation or a union or for the formation of an organisation or a union , without interference or pressure by the other party . LAW specifies that the right to organise shall be considered as being violated " if measures are taken either by employers or by employees to constrain any employee or employer , as the case may be , to refrain from becoming a member of , or to resign from , an association , to refrain from exercising his rights as a member of an association , or to refrain from working for an association or for the formation of an association , and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer , as the case may be , on the ground that such employee or employer is a member of an association , exercises his rights as a member of an association or works for an association or for the formation of an association " .

The only way in which such associations enjoy the protection of the LAW is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as interference in the affairs of the association .

The right to negotiate is defined in LAW as " the right to institute negotiations regarding conditions of employment or relations between employers and employees in general " . It imposes on the other party an obligation to enter into negotiations , to attend meetings for negotiations and , where necessary , to make proposals for the settlement of the issues involved . This provision is applicable to all trade unions including the applicant union . As ORG ruled in DATE ( see paragraph CARDINAL below ) , this does not mean that the negotiation must lead to the conclusion of an agreement even where the substantive terms are not in dispute .

DATE , the ORG determined the wages and conditions of employment of its employees in the event of a breakdown of the negotiations between the ORG and the employees .

As from DATE , the DATE LAW ( statstjänstemanalag ) has virtually assimilated ORG employees to employees in the private sector as regards trade union rights , strikes , lock - outs , etc . The LAW made LAW , the DATE LAW and LAW on the Right to Organise and Negotiate applicable in the public sector . Furthermore , the LAW provided for collective agreements to be concluded , subject to certain exceptions , between the ORG , representing the ORG as employer , and the organisations of ORG employees . ORG has a nominee on the governing board of the ORG .

The DATE legislative reform was facilitated by the centralised structure of the NORP trade union movement ; CARDINAL factor that contributed much to its adoption was the conclusion in DATE of LAW ( slottsbacksavtalet ) between the ORG and the CARDINAL main organisations of ORG employees , namely :

According to the information at the disposal of the ORG , these federations , of which numbers ( ii ) and ( iii ) recently merged , represent the large majority of NORP ORG employees : CARDINAL out of the CARDINAL whose terms of employment are negotiated by the ORG . CARDINAL trade unions are affiliated to these organisations . The few independent trade unions , including the applicant , represent CARDINAL ORG employees in all .

Clause CARDINAL of the above - mentioned LAW provides that negotiations with a view to concluding a collective agreement shall be conducted on the employees behalf by the " main organisation " concerned , unless the ORG and the " main organisation " agree otherwise . A note is appended stating that it is not thereby intended to depart from the earlier practice observed in regard to negotiations with a particular association as to any question which exclusively concerns that association .

CARDINAL exception was made to this rule in the case of ORG ( Sveriges Läkarförbund ) ; some other exceptions have been or are made from time to time . For instance , in DATE , the ORG concluded a separate collective agreement with an independent union of forestry workers . The ORG and the applicant union disagree about the circumstances surrounding the making of such exceptions .

ORG of DATE relating to LAW ( ORG om vissa statliga kollektivavtal m.m . ) includes the following provisions :

" Collective agreements as to such conditions of employment or service as are determined by the King - in - Council or by ORG shall be concluded conditionally on the agreement being sanctioned by the King - in - Council . "

" An ORG which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers , notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement . "

Certain forms of employees ' representation are confined to parties to a collective agreement . Thus , the applicant union complains , inter alia , of being disqualified from representation on ORG of the NORP ORG established by ORG of DATE , on ORG established by FAC , and on ORG . The applicant further complains that it can not appoint official trade union representatives under LAW of DATE on ORG at ORG ( lagen om facklig förtroendemans ställning på arbetsplatsen ) , or safety inspectors under LAW , as amended on DATE ( lagen om ändring i arbetarskyddslagen ) .

The law described above at paragraphs CARDINAL has in DATE undergone various changes . Thus , trade union rights in both the public and private sectors have been embodied in the new NORP LAW which came into force on DATE . In addition , the Act of CARDINAL DATE on the Procedure for ORG ( lag om rättegången i arbetsvister ) has replaced the DATE LAW . Since DATE , the new Act has enabled any trade union , whether a party to a collective agreement or not , to bring before ORG any dispute relating to the interpretation or application of such an agreement .

Facts of the particular case

DATE and DATE , the terms of employment and conditions of work of ORG employees were governed by a collective agreement concluded by the ORG and the CARDINAL federations . The applicant was not affiliated to any of these federations , but the collective agreement was made directly applicable to it by an accessory agreement which the ORG concluded with the applicant on DATE .

On DATE , the applicant indicated that it wished to terminate the accessory agreement as from DATE and it asked for negotiations regarding a new agreement , indicating certain general guidelines for the negotiations .

On DATE , the applicant union submitted more detailed demands regarding the terms of employment of its members and again asked for negotiations which were to start at the same time as the negotiations with other comparable unions . This request was repeated in DATE and DATE .

In DATE and DATE , the ORG held exploratory meetings with the CARDINAL federations and provided them with certain proposals regarding the terms of employment which were to apply to ORG employees in DATE and DATE . Following these meetings , the ORG also held a meeting with the applicant on DATE . On this occasion , the ORG and the applicant union examined the demands formulated by the union in its letter of CARDINAL DATE . ORG also handed over the proposals which it had previously presented to the CARDINAL federations . These proposals concerned all ORG employees , including engine drivers . Finally , the ORG declared that it did not intend to conclude a collective agreement with the applicant for DATE , nor even an accessory agreement such as that concluded in DATE . It stated , however , that it was prepared to continue discussing engine drivers ' terms of employment with the applicant union .

On DATE , the applicant union asked the ORG to reconsider its refusal to conclude a separate agreement with the union , but the ORG replied on DATE that it maintained its previous position .

According to the Government , the new attitude of the ORG which , even after the DATE reform , had concluded accessory agreements with the applicant and other independent trade unions , could be explained by the fact that in GPE , at DATE and in DATE , the trade union structures in the public sector were tending to disintegrate .

On DATE , the applicant union proclaimed a strike and a blacklisting of jobs as from DATE After certain legal and other questions regarding the strike and the blacklisting of jobs had been discussed in writing and orally between the ORG and the applicant , the ORG decided on CARDINAL DATE to proclaim a lock - out of members of the applicant union as from CARDINAL DATE .

The strike and the blacklisting became effective on CARDINAL DATE but were cancelled as from DATE Consequently , the lock - out did not become effective . However , in retaliation against the strike action , the ORG refused to apply retroactively to the members of the applicant union a new agreement concluded with the federations on DATE . This caused each member of the applicant union a loss of CARDINAL to CARDINAL NORP Crowns . Proceedings brought in the name of CARDINAL of the applicant 's members concerning this dispute ended on DATE by a judgment of ORG dismissing the applicant 's claim .

On DATE , the ORG transmitted to the applicant a copy of the final proposal made in the course of its negotiations with the CARDINAL federations . At a meeting on DATE , the applicant requested the ORG to conclude with it an agreement which DATE apart from certain clauses - would be identical with the agreement to be concluded with the CARDINAL federations . The ORG rejected this proposal .

On DATE the ORG concluded with the CARDINAL federations a general collective agreement for DATE . In principle , the agreement applied to all ORG employees , including engine drivers . In accordance with LAW relating to LAW , the application of this agreement was extended to the members of the applicant union .

At a meeting on DATE , the latter submitted to the ORG its demands for DATE . The applicant union also raised the question of a separate agreement . A further meeting was held on DATE at which the demands presented by the applicant on DATE were examined in detail .

By letters of DATE and CARDINAL DATE , the applicant union reverted to the question of a separate agreement , but ORG decided on DATE to maintain its refusal to conclude such an agreement with the union .

Negotiations between the ORG and the applicant union took place at CARDINAL further meetings on DATE , DATE and DATE . At these meetings the ORG and the applicant discussed the terms of employment of engine drivers , and the ORG informed the union about proposals which had been presented during the negotiations between the ORG and the CARDINAL federations .

On DATE , the ORG concluded a general collective agreement with CARDINAL of the CARDINAL federations , namely GPE and ORG This agreement regulated the terms of employment of ORG employees , including engine drivers , for the period DATE . Under LAW of DATE , this general agreement became applicable to the members of the applicant union as well as to the members of the other CARDINAL federations .

On DATE , the applicant union introduced proceedings against the ORG before ORG , seeking a declaration that the ORG was obliged to enter into negotiations with a view to concluding a collective agreement with the applicant union , and also to conclude such an agreement with the applicant union if the parties were in accord on the substantive issues .

The applicant union referred to Sections CARDINAL and CARDINAL of the DATE Act on the Right to Organise and Negotiate . The union also invoked LAW then in force , some general principles of NORP law and a number of international instruments including LAW .

ORG dismissed the applicant 's claim in a lengthily reasoned judgment delivered on DATE . ORG held that LAW neither debarred a party from declaring at the outset of negotiations that it would not conclude an agreement , nor implied an obligation to conclude an agreement following negotiations . The ORG added that LAW did not afford trade union organisations any protection in their own right .

ORG noted that the international instruments relied on could serve to clarify NORP law : while they had not been incorporated into NORP law , it must be assumed that NORP law intended to respect them . Nevertheless , the ORG found that the submissions on this point in the instant case did not cause it to alter its judgment on the questions in dispute .

On several subsequent occasions , the applicant union attempted unsuccessfully to secure the conclusion of a collective agreement ; its latest attempt was in DATE .

In its application lodged with ORG on DATE , the applicant union alleged violation of ORG CARDINAL , CARDINAL and DATE ( article CARDINAL , LAW , article DATE ) of the Convention .

The Commission declared the application admissible on DATE .

In its report on CARDINAL DATE the Commission expressed the unanimous opinion :

- that the conduct of the ORG might in principle raise an issue under LAW ) of the LAW , even if the ORG were fulfilling typical employer functions ,

- that the refusal by the respondent Government to enter into collective agreements with the applicant did not violate LAW para . CARDINAL ( LAW ) as such ;

- that the different treatment of the applicant and the federations with regard to the enjoyment of the freedom of association was reasonably and objectively justified and did not therefore contravene LAW read in conjunction with LAW article DATE ) ;

- that LAW ) had not been violated in the present case .

The report contains a separate concurring opinion shared by CARDINAL other members of the Commission .


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a civil claim for payment with ORG ( Sąd Rejonowy ) . The applicant requested the court to make an order for payment against his business partner . The value of the claim was MONEY ( ORG ) ( CARDINAL euros ( ORG ) ) .

DATE and DATE the court held CARDINAL hearings , CARDINAL of which were postponed for various reasons .

At the hearing on DATE the parties concluded a friendly settlement . On DATE ORG ( Sąd Rejonowy ) discontinued the proceedings .

On DATE the applicant lodged a complaint with ORG under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . He sought a ruling that the length of the proceedings before ORG had been excessive and an award of just satisfaction .

On DATE ORG gave a decision in which it acknowledged the excessive length of the proceedings ( DATE and DATE of inactivity on the part of ORG ) but refused to grant the applicant any just satisfaction , holding that the applicant had failed to reason his request for just satisfaction and that the proceedings for payment of ORG CARDINAL “ were not particularly important for the applicant who is an entrepreneur , because the consequences are not attributable to the excessive length of the proceedings ” .

On DATE the applicant lodged another application concerning the length of a different set of civil proceedings for payment . These proceedings lasted DATE and DATE at CARDINAL court instances . The applicant made use of the complaint provided for by LAW and the domestic court acknowledged the excessive length of proceedings ( DATE of inactivity on the part of ORG ) but refused to grant the applicant any just satisfaction .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII , and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu .

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

NORP The applicant worked as senior economist in the company C. ( “ the company ” ) , a former ORG - owned company , which has operated since DATE as a joint stock corporation with mainly private capital .

On DATE the applicant was dismissed from his job . He challenged that decision and on DATE ORG ( “ the ORG ” ) ordered his reinstatement and payment of a sum of money for overdue salary . That judgment became final on DATE .

On DATE the company decided to reinstate the applicant , but indicated that it was impossible to reinstate him in his previous job , since that post was no longer available following the company ’s privatisation , and therefore terminated his employment contract . However , on DATE the company issued an employment contract for the applicant , stating that he was reinstated in his previous position . The applicant was informed of that contract on DATE , but it was only in DATE that he sought its annulment . In a final decision of CARDINAL DATE ORG ( “ the Court of Appeal ” ) allowed the action , noting the absence of the applicant ’s consent and also the non - existence of the relevant post at that time .

On DATE the company altered the period of notice established in its decision of CARDINAL DATE , and on DATE it paid the amount ordered by the court .

On DATE ORG annulled the CARDINAL decisions of CARDINAL DATE and DATE and ordered the company to reinstate the applicant in his previous job or in an equivalent post , to pay him CARDINAL NORP lei ( ROL ) in overdue salary for the period DATE to DATE , and also to pay him the corresponding salary until effective reinstatement . In its reasoning , the court accepted the assessment of damages proposed by the applicant based on a DATE wage of MONEY ( USD ) . That judgment became final on DATE .

On DATE and on DATE ORG ordered the attachment of the company ’s financial assets up to ROL CARDINAL,CARDINAL,CARDINAL . On DATE the company paid that amount .

On DATE the company informed the corresponding ORG agency of the impossibility to reinstate the applicant , but on DATE invited him to its headquarters to discuss the reinstatement . The applicant went on DATE , but no agreement was reached .

On DATE the applicant requested the bailiff P.A. to enforce the judgment by seizure of the company ’s assets . Having the court ’s approval , the bailiff instructed the ORG bank to attach the company ’s financial assets . On DATE the bank refused to perform that seizure in the absence of a writ of execution for that amount of USD CARDINAL CARDINAL , which represented , according to the applicant , the updated sum of the overdue salary , granted by the final judgment of CARDINAL DATE .

On DATE the applicant requested the court to validate that seizure . On DATE ORG declared the action inadmissible , since the company ’s accounts had been blocked under the provisions of Government Ordinance no . CARDINAL of DATE ( “ Ordinance no . CARDINAL/CARDINAL ” ) regarding enforcement of budgetary financial claims , and therefore the enforcement had to be carried out under those provisions by the financial administration , not by the courts .

On DATE , following the decease of the bailiff GPE , the execution file was transferred to the bailiff ORG

NORP On DATE ORG dismissed an objection to execution by the company . That judgment became final and a further objection was dismissed on the basis of the res judicata principle .

On DATE the bailiff ORG sought the attachment of company ’s accounts at the ORG bank and on DATE he updated the amount . On DATE the bank informed the bailiff that it could not proceed with that seizure since the amount claimed was not clearly based on an enforceable title .

On DATE and DATE , at the applicant ’s request , the bailiff carried out new seizures , informing both the company and the enforcing court .

Furthermore , on DATE the applicant requested ORG and ORG ( the “ ORG ” ) to continue enforcement under Ordinance no . CARDINAL/CARDINAL . On DATE he lodged an administrative action against that agency , alleging refusal to bring the execution to a conclusion . ORG ( “ the ORG ” ) dismissed that action on DATE , finding no refusal by the ORG , which on DATE had seized the company ’s accounts under a warrant of execution from DATE . In the absence of any appeal , that judgment became final .

On DATE ORG , in private , approved the continuation of enforcement by the ORG .

On DATE the applicant brought summary proceedings against the company , the ORG bank and the ORG , seeking to remove impediments to recovery of the debt . On DATE ORG declared the action inadmissible , considering firstly that his request would amount to a decision on the merits , not to a provisional measure , and secondly that there was no urgency . A further appeal by the applicant was annulled for lack of payment of the stamp duty , by a final decision of CARDINAL DATE .

On DATE the ORG requested the ORG bank to attach the company ’s assets up to USD CARDINAL,CARDINAL.CARDINAL , and on DATE referred the case back to the bailiff PERSON , to continue with the execution .

On DATE , upon a request by the applicant , the bailiff updated the debt and carried out a seizure for NORP in respect of overdue salary up to DATE .

NORP The bailiff requested the court ’s endorsement . On DATE ORG upheld the seizure , and on DATE ORG authorized the attachment of the company ’s assets in the ORG bank up to FAC . That judgment became final . The company ’s subsequent objection to execution was dismissed on CARDINAL DATE by ORG .

On DATE and DATE the applicant received USD CARDINAL.CARDINAL and ORG CARDINAL,CARDINAL.CARDINAL respectively . On DATE ORG attached the accounts of the ORG bank in ORG ( “ BNR ” ) up to USD CARDINAL,CARDINAL.CARDINAL .

On DATE the bailiff certified that the applicant had recovered the whole debt under the judgment of CARDINAL DATE , corresponding to salary arrears for DATE inclusive , until his employee status had ceased because of retirement ( see below ) .

The applicant also acknowledged in a letter of DATE addressed to a domestic court that he had received the above - mentioned amount of NORP .

On DATE the applicant complained that the bailiff had declined to record the company ’s refusal to enforce the DATE judgment . On DATE ORG considered that request as exceeding the bailiff ’s competence .

On DATE the bailiff declined to continue with the enforcement on grounds , inter alia , of non - payment by the applicant of the execution fees . The applicant contested that refusal before the court , but on DATE ORG dismissed his request , since he had not paid those fees . That judgment became final , since a further appeal by the applicant had lapsed .

On DATE the applicant filed a complaint against the bailiff before ORG and demanded his replacement . On DATE the ORG rejected his allegations and refused replacement since , at that moment , the enforcement was being carried out by the ORG ( see paragraph CARDINAL above ) .

On DATE the applicant requested the bailiff to seize the company ’s assets up to USD CARDINAL,CARDINAL.CARDINAL , representing the difference for DATE between salary and pension . On DATE ORG allowed a seizure up to the amount stipulated in the judgment of DATE .

However , by an official record of DATE the bailiff declined to update that difference , since the DATE judgment had not granted such a right , nor had the above - mentioned court decision of DATE .

The applicant lodged an action against the bailiff . Eventually on DATE ORG dismissed that action , considering that the bailiff ’s task was to enforce an instrument of title , whereas the impugned difference between salary and pension was not provided for either in the DATE judgment or in the court decision of DATE . That judgment became final , since an appeal by the applicant had lapsed .

On DATE the applicant requested the bailiff to certify in an official record that the company had disregarded the obligation to reinstate him . By a statement of CARDINAL DATE the bailiff considered that request as amounting to establishment of a factual situation , which could have been legally made only on the basis of a court judgment .

The applicant complained before the court , but on DATE ORG dismissed the action , since the bailiff had acted lawfully . That judgment became final .

On DATE the applicant sought payment by the company to the ORG of his social security , unemployment and pension insurance contributions , and income taxes . By final decisions of DATE and CARDINAL DATE ORG quashed the judgments of the lower courts and sent the case back for fresh examination . The proceedings are still pending .

On DATE ORG referred to the prosecutor a criminal complaint by the applicant against the head of the company for , inter alia , non - enforcement of the DATE judgment in respect of reinstatement . According to the applicant , the prosecutor had not informed him of any solution .

On DATE ORG , in an unappealable interlocutory decision , declared inadmissible an action against the company for a daily pecuniary penalty for failure to comply with the judgment of CARDINAL DATE . The court held that the applicant had not complied with the provisions of LAW , which provided that a claim for a daily pecuniary penalty could be lodged only at the enforcement stage and following a summons addressed to the debtor .

On DATE ORG and Other ORG ( the “ LOC ” ) certified the applicant ’s unfitness for work .

On DATE the applicant made a request to retire on grounds of disablement and on DATE he informed the ORG that the company owed him salaries for the period DATE to DATE .

On DATE ORG ( the “ CPMB ” ) allowed the applicant ’s request to retire and granted him a disablement pension starting from DATE .

On DATE the applicant requested the bailiff to carry out a seizure in respect of the difference between salary and pension , for DATE . The bailiff carried out that seizure , but the company contested it . By a final decision of CARDINAL DATE ORG annulled the seizure in part . It held that the company had paid the pecuniary damage under the DATE judgment and that the company ’s obligation to pay salaries had lasted only until the applicant lost his work capacity , since LAW ) of ORG made provision for de jure termination of a work contract on the date of communication of the retirement decision .

On DATE ORG consented , in private , to a request by the bailiff to attach the company ’s assets in the ORG bank , for salaries corresponding to DATE . On DATE the bailiff carried out that seizure .

However , on DATE ORG allowed an objection by the company and annulled that seizure . It considered that the company ’s obligation to pay salaries had lasted until reinstatement , which was no longer possible since the applicant had chosen to retire . The court also held that the DATE judgment had not given the applicant a right to the difference between salary and pension . That judgment became final .

On DATE ORG dismissed by a final decision an action by the company against the applicant , seeking to establish the latter ’s refusal to be reinstated and also the lapse of his right to enforce the DATE judgment in respect of reinstatement .

The court held that the obligation of reinstatement was an obligation of performance intuitu personae , depending exclusively on the debtor ’s willingness and which could not be carried out by forced execution . It further considered that the DATE judgment ordered the company to reinstate the applicant , but also established an equivalent method of enforcement of that obligation by payment of salaries until effective reinstatement . That judgment had not established CARDINAL different obligations , but CARDINAL obligation to act , which was to be enforced either in kind by the company , or by equivalent , the latter being the only possibility for the applicant to coerce the debtor .

The court also noted the company ’s refusal to reinstate the applicant and its unrealistic intentions in that respect ( see paragraph CARDINAL above ) .

On CARDINAL DATE the bailiff ORG , upon a request by the applicant , carried out a seizure on the company ’s assets for outstanding salaries for DATE .

On DATE ORG allowed an objection by the company to that seizure . The court held that the company could no longer reinstate the applicant since he had chosen to retire , and that the company ’s obligation to pay salaries had lasted until retirement . By the time of retirement , the company ’s obligation to pay salaries under the DATE judgment had been enforced . Therefore the company ’s obligation to pay salaries had ceased and the applicant could not claim salary and pension payments concurrently . In the absence of any appeal , that judgment became final .

The relevant domestic law is described in GPE and PERSON v. GPE ( ( dec . ) , no . CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) .


No violation of Art. 3;Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the competent authorities opened a criminal investigation against the applicant on suspicion of abuse of power ( “ zloupotreba službenog položaja ” ) and forging of official documents ( “ falsifikovanje službenih isprava ” ) . On DATE , the applicant was examined by the investigating judge , at which time he submitted a temporary address .

On DATE the police searched the flat owned by the applicant situated at the address of his permanent residence ( prebivalište ) . The applicant 's mother , who was present at the search , stated that the applicant had not lived in that flat for DATE . According to the official police report , the police then contacted the applicant by telephone and he informed them that he was looking for a new flat .

Subsequently , following a request by ORG ( PERSON javno tužilaštvo ORG ) , on DATE ORG ( ORG u ORG ) ordered that the applicant be detained on remand under section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( risk of flight ) and that an arrest warrant be issued against him . The applicant appealed against that decision . On DATE his lawyer submitted the applicant 's new address to ORG , alleging that he had already done so on DATE . However , on DATE ORG dismissed the appeal against the detention order .

On DATE ORG indicted the applicant and shortly thereafter , on DATE , ORG quashed the detention order against the applicant and set bail at ORG CARDINAL,CARDINAL . The applicant appeared at the court hearing in person . However , ORG quashed the bail decision and remitted the case . Thereafter , ORG again ordered that the applicant be remanded in custody because his behaviour thus far had indicated a high risk of flight ; ORG upheld that decision .

Meanwhile , on DATE the applicant was brought before ORG ( investigating ) judge ( “ istražni sudija ” ) , and was remanded in custody . The applicant claimed that he had gone to the police station of his own accord , but the Government disagreed . There appears to have been no official police report on the applicant 's arrest . The only document relating to the event of DATE a note made by the investigating judge of ORG – states as follows :

“ It is established that the [ police ] officers ... at TIME brought [ the applicant ] before the ... investigating judge of this court ... The accused states that at TIME he voluntarily reported to the Novi Sad police department , because he heard that they were looking for him ... ”

The applicant requested to be released on bail and offered LAW . His request was dismissed as insufficient , since “ the amount [ he had ] obtained by unlawful actions was several times higher than the amount offered ” and thus provided no guarantee that he would not abscond . His detention was thereafter regularly extended because of such a risk .

NORP On DATE the Novi Sad District Court sentenced the applicant to DATE imprisonment . On DATE ORG quashed that judgment and remitted the case , extending at the same time the applicant 's pre - trial detention to prevent his absconding .

The applicant filed several applications for release on bail , but his requests were dismissed .

In the resumed proceedings , on DATE ORG again found the applicant guilty and sentenced him to DATE imprisonment . However , that judgment was .quashed by ORG on DATE and the applicant 's detention was extended .

NORP In DATE the applicant requested release from detention on account of inadequate medical care , but his request was dismissed in DATE .

In the remitted proceedings , on CARDINAL DATE the applicant 's counsel objected to an expert opinion submitted to the court . She explained the applicant 's health condition in detail , complained about the inadequacy of his medical treatment in detention and stressed that his health had deteriorated to a large extent owing to the duration of his detention .

In a fresh judgment in the applicant 's case delivered on DATE , the court sentenced the applicant to DATE imprisonment , but decided to release him . However , the applicant was ordered not to leave his habitual place of residence and to report to ORG DATE , failing which he might be returned to custody .

The applicant was examined for the first time on DATE , shortly after being taken into custody . The medical report concluded that he had been in good health .

During DATE he was diagnosed with psychiatric problems and was hospitalised on several occasions . In DATE he suffered from severe back pain and was hospitalised as a result of a hunger strike . In DATE he was diagnosed with benign breast augmentation . In addition to the public medical care provided , since DATE the domestic court had allowed the applicant to have regular consultations with his private doctor .

At DATE the applicant was diagnosed with Hepatitis C. The testing was organised within the framework of voluntary confidential counselling and testing for HIV and Hepatitis ( “ Dobrovoljno povjerljivo savjetovalište i testiranje ” ) , which at the material time appears to have been available in prison .

NORP The applicant claimed that he had been diagnosed already in DATE , whereas the Government submitted that his diagnosis had been made on DATE . In his examination of DATE the applicant 's private doctor made no mention of a Hepatitis C infection .

On DATE the applicant went on a hunger strike .

On DATE the applicant was examined by his private doctor , who recommended that he be examined by an infectious diseases specialist . That consultation took place on CARDINAL DATE , when the applicant underwent further blood tests .

As a result of his hunger strike , on DATE the applicant was transferred to ORG because of a rise in his liver enzymes . However , he refused to be examined by the hospital staff , claiming that he had contracted Hepatitis during his last stay there . On DATE the applicant 's lawyer requested the court that he be returned to ORG , and on DATE the authorities acted accordingly . On his release from ORG , the doctors concluded that there were no traces of starvation and that the applicant suffered from drug abuse .

On his return , he was again examined by the infectious diseases specialist , who on the basis of further blood tests concluded that his liver enzymes had improved and that he should undergo a liver biopsy , which was performed on DATE . The biopsy established that the applicant suffered from chronic Hepatitis C with minimal activity and minimal fibrosis . In DATE samples were sent for additional tests to determine his genotype in order to start anti - viral treatment .

The applicant was released from detention on DATE , before the genotyping tests were concluded and before he had started receiving treatment for his condition .

Pursuant to a medical report dated DATE , after the applicant had undergone the appropriate anti - viral treatment , his infection was in remission .

The relevant provisions of LAW ( PERSON o krivičnom postupku ; published in OG FRY nos . CARDINAL , CARDINAL , CARDINAL , ORG and CARDINAL ) in force at the material time read as follows :

“ If there are circumstances indicating that the defendant might abscond , hide , go to an unknown place or abroad , the court may , by a reasoned decision , prohibit him from leaving his place of residence . ...

The parties may appeal against a ruling ordering , extending or setting aside [ the said ] measures ... and ORG may also appeal against a ruling rejecting his request for their application . ORG ... shall decide on the appeal ... [ within DATE ] ... The appeal does not stay the execution of the ruling . ... ”

“ A defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... [ or if duly summoned , that he is clearly evading appearance at the main hearing ] ... , may remain at large or may be released providing that he personally , or another person on his behalf , gives bail guaranteeing that he will not abscond until the conclusion of the criminal proceedings , and the defendant himself promises that he will not hide or change his place of residence without permission . ”

“ A decision concerning bail before and in the course of a [ judicial ] investigation shall be rendered by the investigating judge . After the indictment is preferred , the decision on bail shall be rendered by the President of the ORG and [ subsequently ] at the main hearing by the ORG itself . ”

“ For the purposes of the unhindered conduct of the criminal proceedings ... detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if :

( CARDINAL ) he is in hiding or his identity can not be established , or if there are other circumstances clearly indicating a risk of flight ; ... ”

“ Detention shall be ordered by a decision of the competent court . ...

A decision on detention shall be served on the person to whom it relates at the time he is deprived of his liberty , but no later than within TIME ...

A detained person may file an appeal against the decision on detention with the ORG within TIME from the time of its receipt . The appeal , the decision on detention and other files shall immediately be forwarded to ORG . The appeal shall not stay the execution of the [ impugned ] decision . ...

In the situation referred to ... [ above ] ... [ , ] the Judicial Panel shall rule on the appeal within TIME . ”

“ If the defendant is in detention on remand , the second - instance court shall examine the continuation of the reasons for the measure and decide whether or not to extend it . No appeal shall lie against that decision . ”

The relevant provision of ORG ( Zakon o izvršenju krivičnih sankcija ; published in ORG no . CARDINAL/CARDINAL ) reads as follows :

“ Prisoners are entitled to free medical care .

Prisoners who can not receive adequate medical treatment within the institution shall be transferred to ORG or other health institution , and pregnant women to a maternity ward for childbirth .

ORG spent on medical treatment shall be calculated as part of the time of imprisonment . ”

“ ( CARDINAL ) Medical treatment of a prisoner is conducted with his consent .

( CARDINAL ) Force - feeding of a prisoner is not allowed ... ”

“ The enforcement of a detention measure is subject to supervision by the president of ORG that has jurisdiction for the territory where the main premises of the detention facility are located . ”


HEROLD TELE MEDIA S.R.O. v. SLOVAKIA AND GERMANY

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , ORG , ORG . , is a private limited company which has its registered office in GPE . The application on its behalf was filed by PERSON , the company 's managing partner .

company , may be summarised as follows .

Company NORP telekomunikácie , š.p . was established by ORG on DATE . It was a ORG - owned company . Its director , or deputy director in his or her absence , was authorised to act and sign documents on behalf of the company .

According to the register of companies available on the Internet , Mr PERSON had been the company 's director between PERSON and CARDINAL DATE . He had been the company 's managing director from ORG CARDINAL DATE to DATE . Mr PERSON had been deputy managing director between CARDINAL DATE and DATE .

A different section of the register of companies concerning NORP telekomunikácie , š.p . was entitled “ Further legal issues ” . It comprised an entry covering the period from DATE , which indicated :

“ For the period of the settlement negotiations , the council of creditors suspended , within the meaning of section CARDINALe(CARDINAL)(a ) of the DATE LAW , the exercise of functions of the persons authorised to act on behalf of the company under its articles listed in the register , and appointed Mr PERSON as manager . During the period of the settlement proceedings the director thus appointed shall represent the company and sign documents on its behalf . [ The proceedings ] were discontinued by a decision of ORG of DATE ... in accordance with Act no . CARDINAL . ORG upheld ORG decision by its decision no . CARDINAL Obo CARDINAL of DATE . ”

On DATE the Minister of Transport and Telecommunications decided to dissolve PERSON telekomunikácie , š.p . The company was transformed into a joint stock company , PERSON telekomunikácie , a.s . , which succeeded to all the rights and obligations of its predecessor . On those grounds company NORP telekomunikácie , š.p . was deleted from the companies register on DATE .

Under a contract of DATE ORG , with the agreement of ORG , Post and Telecommunications , sold PERCENT of the shares of PERSON telekomunikácie , a.s . to ORG , a company which had its registered office in GPE , GPE . Point CARDINAL subjected the transaction to several conditions with suspensive effect . They included the absence of any binding decision , delivered by a court or other public authority , prohibiting the transaction agreed upon in the contract .

Subsequently , the company NORP telekomunikácie , a.s . was twice renamed . Its current business name is ORG , a.s .

On DATE a meeting of the council of creditors of PERSON telekomunikácie , š.p . was held in the presence of a notary public . That council had been established in the context of the proceedings under LAW , which were held before ORG under file no . CARDINAL K CARDINAL/CARDINAL ( for further details see also PERSON telekomunikácie , š.p . and ORG , ORG . v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) . CARDINAL members of the council of creditors attended the meeting as well as PERSON , whom that council had earlier appointed as director of PERSON telekomunikácie , š.p . in the context of the above proceedings .

At the meeting the council of creditors , with reference to section CARDINALe ( CARDINAL ) and ( CARDINAL ) of the DATE LAW , authorised PERSON to conclude a contract on the sale of PERSON telekomunikácie , š.p . to the applicant company .

On DATE Mr Eke concluded a contract with the applicant company under which the latter purchased the entire company NORP telekomunikácie , š.p . The contract provided , inter alia , that the purchase price would be determined in a separate agreement at DATE .

PERSON authorised PERSON , a lawyer practising in GPE , to petition for the above sale of company PERSON telekomunikácie , š.p . to be entered in the register of companies . PERSON lodged such a petition on behalf of PERSON telekomunikácie , a.s . with the Bratislava I ORG on DATE . In it reference was made to instructions which PERSON had given to PERSON on DATE . With the approval of the petitioner , the applicant company asked for leave to act CARDINAL party in the proceedings .

On DATE the Bratislava I ORG rejected the petition . The decision indicated Mr Eke as plaintiff . With reference to Articles CARDINAL , DATE and CARDINAL of LAW and the data entered in the register of companies , the court did not consider it established that PERSON had been a member of the managing board of PERSON telekomunikácie , a.s . Accordingly , neither the company 's articles nor LAW entitled him to act on that company 's behalf . The decision further stated that PERSON had acted on the basis of written instructions which PERSON had signed on DATE , that is at a time when PERSON telekomunikácie , š.p . , had been dissolved without liquidation .

ORG dismissed the applicant company 's request for leave to join the proceedings as a third party . It held that a third party could not be admitted to proceedings initiated by a person who lacked standing to do so . Furthermore , a third party could be admitted only in the context of contentious proceedings . However , proceedings concerning an entry in the register of companies did not fall within that category .

On CARDINAL and CARDINAL DATE PERSON , acting on behalf of PERSON telekomunikácie , a.s . , the applicant company and PERSON appealed . They argued that ORG had incorrectly considered PERSON as plaintiff , had refused to admit the applicant as a third party in the proceedings , had failed to hear the parties and had not allowed them to consult the file with a view to checking the date of the authority of PERSON They requested that the court of appeal hear them and that the sale be entered in the register of companies ex officio , pursuant to LAW .

On DATE Mr PERSON complained to the President of ORG that he had been erroneously indicated in the decision as plaintiff .

On DATE Mr PERSON complained to the President of ORG that the court file did not contain an authority of DATE to which the GPE I ORG had referred in its decision of CARDINAL DATE .

On DATE PERSON filed a similar complaint with ORG . PERSON further complained that the court file was not complete .

On DATE ORG decided that the GPE I ORG judges were not excluded from dealing with the above case . ORG further upheld the Bratislava I ORG decision of CARDINAL DATE . The decision indicated PERSON as plaintiff and mentioned PERSON as his representative .

ORG held that a judge 's failure to act in accordance with the wish of a party was not a relevant reason for that judge 's exclusion . There was nothing to indicate that the judges of the Bratislava I ORG were biased .

ORG further held that , at the time when the petition had been lodged , Mr PERSON had not been entered in the register of companies as a person entitled to act on behalf of the company at issue . No document authorising PERSON to take such action had been submitted in the context of the proceedings . Moreover , PERSON telekomunikácie , a.s . , in an opinion of DATE , had denied that its representatives had initiated an entry in the register of companies concerning that company 's sale . The first - instance court had therefore correctly concluded that PERSON had filed the petition on behalf of PERSON as a natural person . The latter lacked standing to petition for the entry at issue to be made in the register of companies .

ORG held that a person could be admitted as a third party exclusively in contentious proceedings . Article CARDINALb § CARDINAL of the Code of Civil Procedure entitled the first - instance court to decide on the petition of DATE without a prior hearing . ORG , with reference to LAW , did not hold a hearing in the appeal proceedings .

On DATE PERSON and the applicant company lodged an appeal on points of law . On DATE PERSON informed ORG that company PERSON telekomunikácie , a.s . was also a plaintiff in the cassation proceedings . They argued that they had not been heard by the courts and had been prevented by them from verifying the documents in the file and from submitting comments on those documents . The conclusion that PERSON had lacked standing to file the petition on behalf of PERSON telekomunikácie , š.p . and in respect of that company 's legal successor was arbitrary . The applicant company was also a party to the proceedings .

On DATE ORG rejected the appeal on points of law lodged by PERSON It held that the lower courts had correctly concluded that PERSON had lacked standing to file a petition on behalf of PERSON telekomunikácie , a.s . and considered it as having been filed in his own capacity . The relevant provisions of LAW allowed for petitions concerning an entry in the register of companies to be decided upon without a hearing . The petitioner was under an obligation to substantiate the request by all relevant documents . There was therefore no need to hear him or her .

The applicant company maintained that a series of steps had been taken with a view to preventing the requested entry to be made in the companies register .

Its representative argued , with reference to the safeguard provisions included in the contract on the transfer of shares of NORP telekomunikácie , a.s . to ORG , ORG , that representatives of those companies and the Ambassador of GPE to GPE had intervened with the Prime Minister , ORG , ORG , ORG and ORG .

The applicant further referred to a document which ORG , Post and Telecommunications had presented in DATE . Entitled “ Information on judicial disputes of NORP telekomunikácie , a.s . in the case ' ORG ” , the document indicates that the claims were based on CARDINAL contracts concluded in DATE and DATE on the publishing of telephone directories . PERSON telekomunikácie , a.s . or its predecessor contested such claims . The document states that the NORP authorities had undertaken to do as much as possible , to the extent that the law allowed , to contest the claims related to the “ ORG ” . Immediate measures were therefore required , within the framework of the law in force , with a view to a final resolution of the issue . In particular , it was necessary to accelerate the judicial proceedings pending as well as the investigation into the criminal complaint . An annex to the document lists CARDINAL sets of pending judicial proceedings .

Article CARDINALa § CARDINAL provides that proceedings relating to the register of companies are brought upon the request of the natural or legal person whom the entry in the register concerns or by other persons entitled to do so under the relevant law . LAW ORG entitles courts to start such proceedings of their own initiative for the purpose of harmonising information entered in the register of companies with the actual situation .

Pursuant to Article CARDINALb § CARDINAL , in proceedings concerning an entry in the register of companies courts are obliged to examine whether the statutory requirements for making such an entry are met . Paragraph CARDINAL of Article CARDINALb authorises courts to deliver decisions on the content of an entry in the register of companies without holding an oral hearing .

Under Article CARDINAL § CARDINAL(c ) , a court of appeal may dispense with a hearing where an appeal concerns a decision ( not a judgment ) of the first - instance court .

Article CARDINALa § CARDINAL provides that the court of cassation always decides on appeals on points of law lodged against a decision ( not a judgment ) without a prior hearing .

Pursuant to LAW , legal persons act through the intermediary of bodies established under their articles or through their representative .

Under LAW ) , information about a company entered in the register of companies shall comprise the name and address of the persons who are the representatives of the company under its articles and also specify the manner in which such persons are authorised to act on behalf of the company .

LAW provides that a request for an entry to be made in the register of companies is to be submitted either by authorised persons whom such an entry concerns or by persons entitled to do so in accordance with the law or by persons whom the above mentioned persons authorise to do so . A petition for an entry in the register of companies must be accompanied by documents proving the facts which are to be specified in the register ( paragraph CARDINAL of Article CARDINAL ) .

Pursuant to Article CARDINAL , courts or other authorities have to notify the court which holds the register of companies of any inconsistencies between the actual situation and the information in the register of companies as soon as they become aware of them in the context of their activity .

Article CARDINAL § CARDINAL provides that managing board directs the activities and acts on behalf of a joint stock company . It decides on all issues concerning the company , unless they fall within the power of its general assembly . Members of the managing board who are authorised to represent the company and the manner in which they can do so are to be entered in the register of companies .

Pursuant to Article CARDINAL § CARDINAL , where a company is sold by a person entered in the register of companies , such a person files a petition for a corresponding entry to be made in the register of companies .

Section CARDINAL of ORG ( PERSON o štátnom podniku ) of DATE provides that the bodies of a ORG - owned company comprise its director and supervisory board .

ORG ) and ( CARDINAL ) provide that the director is appointed and revoked by the central governmental authority which established the company .

Pursuant to section ORG ) , the director acts on behalf of a ORG - owned company .

Law no . CARDINAL/CARDINAL sets out the conditions for the transfer of ORG - owned property to other persons .

Section CARDINAL(CARDINAL ) , as in force at the relevant time , prohibited ORG - owned companies from concluding contracts on the transfer of property which served their business activities .

In accordance with ORG practice , proceedings concerning an entry in the register of companies are non - contentious . A petition for an entry in the register of companies is to be supported by documents proving the relevant facts . Where a legal person initiates proceedings concerning an entry relating to it in the companies ' register , the court involved decides exclusively on the rights and obligations of the petitioner as a party to such proceedings . Third parties are excluded from proceedings concerning entries in the register of companies ( Collection of judicial decisions and opinions of ORG , nos . CARDINAL , CARDINAL and DATE ) .


Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 and 8 and of P1-1;No violation of Art. 5-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings

The applicants are all NORP nationals . They were living in GPE village at the time of the alleged events giving rise to the present application . The facts of the case are in dispute between the parties and may be summarised as follows .

Until DATE the applicants all lived in GPE , a village of GPE district in GPE , in the then state - of - emergency region of GPE . In DATE , terrorist activity was a major concern in this area . Since DATE a violent conflict had been going on in the region between the security forces and sections of the NORP population in favour of NORP autonomy , in particular members of the ORG ( ORG of GPE ) . The inhabitants of the LOC village were suspected of “ aiding and abetting terrorists ” ; and accordingly they were strictly and frequently controlled by the gendarmes stationed near the village .

On DATE security forces surrounded ORG and assembled the inhabitants in the village square . Using curse words , they told the villagers that the village would be evacuated at once with no possibility of return . The applicants took what they were able to carry with them and left the village . Immediately after the evacuation , the soldiers set the houses and the crops on fire .

The applicants moved temporarily into a prefabricated ORG disaster housing complex close to GPE .

Following the incident , the applicants filed individual petitions with ORG office complaining about the burning down of their village by gendarmes . The applicants noted their temporary addresses as the reply address for their petitions .

As the case concerned an investigation into alleged acts of the security forces , ORG issued a decision of nonjurisdiction and referred the petitions to the office of LOC in GPE in accordance with the PERSON on the Prosecution of Civil Servants ( Memurin Muhakematı GPE ) .

The District Governor sent a letter to ORG and requested information about the applicants’ allegations .

In a letter of CARDINAL DATE the ORG Commander informed the FAC Governor that the security forces had not burned any house during their operations in the area . Accordingly , ORG issued a decision to discontinue the criminal proceedings against the gendarmes .

On DATE the GPE LOC Governor sent a letter to the applicants . Relying on the NORP ORG Commander ’s letter of DATE , he explained that he was unconvinced by their allegations . He further explained that pursuant to the established case - law of ORG ( NORP ) , no inquiry was possible unless the identity of the accused civil servant were specified . He therefore stated that the authorities would not initiate an investigation into the alleged events .

The applicants did not receive this letter . They learned about ORG decision of non - jurisdiction and ORG decision from their fellow villagers and acquaintances at a much later stage .

In DATE members of the ORG started a propaganda campaign for the organisation in the villages of GPE district . They kidnapped young men from these villages and forced them to join the organisation . The ORG militants issued threats against the villagers and harassed them . The inhabitants of the villages left their homes as a result of the pressure exerted by the ORG .

The investigation carried out by the authorities revealed that the applicants’ houses had not been burned by the security forces but by terrorists wearing military uniforms . In their statements to the investigating authorities , the applicants failed to indicate the identity of the perpetrators of the alleged crime .

The parties submitted various documents with a view to substantiating their claims . These documents , in so far as they are relevant , can be summarised as follows .

ORG is a non - governmental organisation with its head office in GPE , GPE . Its DATE Report stated that , from DATE , CARDINAL villages and hamlets had been evacuated . ORG maintained that village evacuations had accelerated in DATE , mostly targeting the villages whose inhabitants refused to serve as village guards .

The DATE Report of the TIHV argued that the ORG ’s policy was to claim that the evacuations and eventual destructions were caused by ORG terror , poverty and the forces of nature . According to the same report , CARDINAL villages were burned down in each of the provinces subject to the emergency rule .

The DATE Report maintained that CARDINAL villages had been evacuated in DATE . According to ORG , the State - of - Emergency Regional Governor once mentioned that a total of CARDINAL villages and CARDINAL hamlets had been evacuated for various reasons , although never admitting that evacuations had been carried out by security forces .

The DATE and CARDINAL Reports described the ORG ’s policy of evacuating villages as a systematic “ internal security operation ” applied throughout DATE .

The excerpts gave a comprehensive list of burned - down and/or evacuated villages from DATE . The list did not make any reference to ORG as having been evacuated and destroyed .

The excerpts contained several articles reproduced from a DATE newspaper ORG , relating to the evacuation of villages and its detrimental effects on the displaced persons . The articles stressed that numerous villagers had filed petitions with the ORG authorities , complaining that their villages had been burned down by security forces .

The articles also emphasized that the ORG ’s public declarations , which appeared to allow displaced villagers to return to their villages , were unreliable . Whenever villagers had attempted to do so , they were physically denied access to their villages .

NORP This report was prepared by ORG composed of CARDINAL members of parliament . According to the report , in DATE and DATE the inhabitants of CARDINAL villages and CARDINAL hamlets were evicted and forced to move to other regions of the country ( p.CARDINAL ) .

The report included a statement by Mr PERSON , a former governor of ORG . Mr GPE explained that , during his office , occasional village evacuations by military authorities were brought to his attention . He stated that DATE although very rarely – he had received complaints about village burnings . According to PERSON , it was inconceivable to assert that all the villages were vacated due to ORG coercion . He alleged that the Government had failed to take the necessary measures for a healthy resettlement of displaced persons ( p.CARDINAL ) .

NORP The report also referred to the “ Human Rights Report – GPE ” , prepared and submitted to ORG in DATE by PERSON Yavuz PERSON , the chairman of ORG . This latter report dedicated a chapter to immigrants and evacuated villages . It argued that , in DATE , the practice of evacuation of villages and hamlets was widespread . Many houses in villages were either destroyed or made uninhabitable . People were forced to emigrate from the region and pressure was exerted on the inhabitants until they left their villages . In DATE there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards ( p.CARDINAL ) .

The report of ORG also referred to the speech delivered at ORG by Mr PERSON , a deputy from Şırnak , on DATE on the question of evacuated villages . PERSON stated , inter alia , that the villages were evacuated either by the ORG , in order to intimidate those who opposed it , by the authorities since they were unable to protect the villages , or because the inhabitants of those villages refused to become village guards or were suspected of having aided the ORG ( p. CARDINAL ) .

In conclusion , it was recommended in the report that the inhabitants of the settlement units should be re - housed in the provinces , districts or central villages – rather than hamlets DATE close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region , priority being given to the immigrants .

NORP This report aims at establishing the property owned by each of the applicants . Having regard to the registers of the land registry office and municipality registry office , it appears that PERSON did not own any property . He was not subscribed to ORG , meaning that he did not have electricity at home . However , he receives pension from the ORG . It further appeared that PERSON owned a “ green card ” given to very poor people for medical care and that he received TRL CARDINAL in aid from the GPE District Governor ’s office .

PERSON owned QUANTITY of land according to the land registry records . It was estimated that he could derive TRL CARDINAL ’s DATE income at the relevant time . PERSON owned a “ green card ” given to very poor people for medical care . The GPE District Governor ’s office gave him CARDINAL sheep , ORG and food in aid for his living . DATE PERSON lived in a house in the disaster houses complex provided by the Government . In DATE he moved into a house which was built within the context of “ return to village and rehabilitation project ” .

PERSON did not own any property according to the land registry records . But he owned QUANTITY , a house and a stable as well as land measuring QUANTITY according to his declaration of DATE to the municipality registration office . It was estimated that he could derive ORG DATE income at the relevant time . Since DATE he is the holder of a “ green card ” given to very poor people for medical care . PERSON received food and GPE CARDINAL,CARDINAL,CARDINAL ’s in aid from the GPE District Governor ’s office . Furthermore , he lived in a house in the disaster houses complex provided by the Government . In DATE he moved into a house which was built within the context of “ return to village and rehabilitation project ” .

The witness is a former resident of ORG village . He is currently the mayor of Kandolar neighbourhood in GPE . His statements were taken in order to determine the situation of the applicants who had lodged an application with the ORG . The witness stated that DATE the applicants had lived in prefabricated houses in GPE neighbourhood of GPE . In DATE they had moved into new houses built by the Government . At the relevant time nobody lived in ORG . There was no electricity , school or telephone in the village .

Gendarme Major Yüksel Sönmez informed ORG that the houses belonging to PERSON , PERSON , PERSON and PERSON in ORG village and in Toprak hamlet had been burned down by terrorists wearing military uniforms . In his opinion , the terrorists aimed at pacifying the security forces and creating hostility between the latter and the people in the region .

Following an investigation conducted into the allegations that ORG security forces had burned down houses in GPE village , the inspector established that the houses had not been burned down by the security forces but by terrorists wearing military uniforms . The terrorists had further forced the villagers to complain to the authorities that their houses had been burned down by the security forces . The inspector also noted that the security forces had been conducting operations in the region with a view to maintaining the security of the people and that therefore they would not burn villages or give damage to property .

A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . GPE , § § DATE , DATE ) .


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

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

The applicant worked full - time as a cleaning assistant from DATE until DATE when she had to stop due to pain in her neck , shoulders , right arm , knee joints , wrists and finger joints . In DATE she was granted a disability pension . Alleging that her disability was the result of harmful effects in her work the applicant claimed compensation ( livränta ) . In this respect she and her counsel attended a meeting with ORG ( Försäkringskassan ) of GPE . Apparently , the applicant ’s request that her husband be heard as a witness was refused . An opinion of CARDINAL DATE from CARDINAL doctor , and an opinion of DATE from another doctor , attached to ORG in order to assist with medical matters ( förtroendeläkare ; “ insurance doctor ” ) , were submitted . They both found that the permanent reduction of the applicant ’s working capacity was not as such a result of a “ harmful effect ” , rather her suffering emanated from DATE of hard work and her developed age .

On DATE ORG refused the applicant ’s claim for compensation .

On appeal to ORG in GPE ( GPE i GPE ) , the applicant requested that an oral hearing be held since , alleging that it was impossible for her to obtain a detailed opinion from a doctor in GPE , her counsel wanted to submit oral arguments on her case .

By decision of CARDINAL DATE the court stated as follows :

” The proceedings before the court are written . According to LAW ( förvaltningsprocesslagen ) the proceedings before the administrative courts may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case . An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing .

Having regard to the nature of the case and the evidence submitted , the court finds an oral hearing unnecessary

The court invites [ the applicant ] to submit no later that DATE her final observations in the case . If no documents are submitted , the case will be determined on the basis of the available material ” .

The applicant made further submissions in the case . Also , she reiterated her request for an oral hearing , stating that she questioned the professional competence of the insurance doctor , and asserted that , without an oral hearing , her case would be adjudicated in an incompetent , unlawful and partial manner . She did not invoke any witnesses or other oral evidence .

On DATE ORG refused an oral hearing and delivered its judgment confirming ORG decision in the light of the material submitted , including the statements from the said CARDINAL doctors . As regards the question of an oral hearing , the court held as far as relevant :

“ Both [ the applicant ] and her representative were present at the meeting , after which ORG made their decision in the case . Moreover , she has described thoroughly in writing her place of work and the tasks assigned to her . In these circumstances , the court finds that the case has been clarified to the extent required . Therefore , an oral hearing is unnecessary . ”

The applicant requested leave to appeal and an oral hearing in the leaveto - appeal proceedings . In support of the latter she stated that she wanted to hear the insurance doctor as a witness , in order that he confirm his written opinion under oath , so that he would bear some responsibility for his statements , which in the applicant ’s view lacked relevance .

By decision of CARDINAL DATE ORG ( ORG i GPE ) refused an oral hearing , and gave at the same time the applicant an opportunity to submit within DATE further observations she might wish to invoke regarding the leave - to - appeal issue . The applicant , reiterating her request for an oral hearing , stated that neither ORG , nor the insurance doctor was adequately qualified .

By decision of DATE ORG refused to grant the applicant leave to appeal against ORG judgment of DATE . In her appeal to ORG the applicant stated that she considered the facts of the case to be clear due to her written observations and the fact that she had been present at the meeting with ORG . Nevertheless , her counsel wished to make oral submission on the appeal before ORG .

On DATE ORG ( Regeringsrätten ) refused leave to appeal against the decision of DATE .

All gainfully employed persons working in GPE are insured against industrial injuries in accordance with LAW ( lagen om arbetsskadeförsäkring , CARDINAL:CARDINAL ; hereinafter “ the LAW ” ) . The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person ’s place of work .

Pursuant to chapter CARDINAL , LAW , an industrial injury shall immediately be reported to the employer , who shall report it to ORG . The office shall obtain a medical opinion concerning the injury . A physician shall be attached to the office in order to assist it in medical matters ( the insurance doctor ) . The assessment of whether an injury qualifies as an industrial injury , as well as the degree of reduction of a person ’s ability to engage in gainful employment , shall be made on the basis of the available medical opinions , the insurance doctor ’s assessment of those opinions and any other information pertaining to the matter .

For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured ORG health problems . What is meant by “ harmful effect “ is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person . At the relevant time , the question whether a particular injury or illness incurred by the insured person was to be regarded as an industrial injury was subject to the following special rule of evidence . If the insured person had suffered an accident or had been subjected to some other harmful effect at work , his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion ( chapter CARDINAL , LAW in its wording from DATE until DATE ) .

The procedure in the administrative courts is governed by the provisions of ORG ( förvaltningsprocesslagen , lag CARDINAL:CARDINAL - hereinafter “ the DATE LAW ) . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , and if it is not unnecessary and there are no particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of LAW , that a party ’s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in FAC .

On DATE the applicant lodged an application for division of an inheritance and dissolution of co - ownership with ORG ( Sąd Rejonowy ) . The inheritance consisted of an apartment , money deposited on bank accounts and golden jewellery .

During the proceedings the hearings were scheduled DATE . The hearings were often adjourned due to the judge ’s illness or the parties’ lawyers’ failure to appear .

On DATE the applicant lodged an application with ORG for the case to be dealt with speedily as , on account of unpaid rent for the apartment , being a part of the inheritance , the estate had fallen into debt .

On DATE ORG ruled on the inheritance rights and awarded the applicant money and furniture . The applicant appealed .

On DATE ORG ( PERSON ) partially amended ORG judgment and increased the sum awarded to the applicant . On CARDINAL DATE ORG issued a writ of execution in respect of the judgment .

The enforcement proceedings are pending .

On DATE the applicant filed a complaint with ORG under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

The applicant sought a ruling declaring that the length of the proceedings before ORG had been excessive and an award of just satisfaction in the amount of MONEY ( PLN ) ( MONEY ( ORG ) ) .

On DATE the ORG gave a decision in which it acknowledged the excessive length of the proceedings before ORG . It awarded the applicant LAW ( approximately EUR CARDINAL ) in just satisfaction . The court referred to the overall length of the proceedings and to the complexity of the case .

The applicant appealed . On DATE ORG rejected the appeal as inadmissible in law .


No violation of Art. 3  in the event of the applicant being removed to Uganda

Dean Spielmann;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Mark Villiger;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi

The applicant was born in GPE in DATE . She currently lives in GPE .

The applicant entered GPE on DATE under an assumed name . She was seriously ill and was admitted to hospital , where she was diagnosed as HIV - positive with “ considerable immunosuppression and ... disseminated mycobacterium TB ” .

On DATE solicitors lodged an asylum application on her behalf , claiming that she had been ill - treated and raped by ORG in GPE because of her association with the Lord ’s Resistance Army , and asserting that she was in fear of her life and safety if she were returned .

In DATE the applicant developed a second Aids - defining illness , PERSON ’s sarcoma . Her CDCARDINAL count was down to CARDINAL ( that of a healthy person is over CARDINAL ) . After treatment with antiretroviral drugs and frequent monitoring , her condition began to stabilise so that by DATE , when ORG examined the case , her CDCARDINAL count had risen to CARDINAL .

NORP In DATE a consultant physician prepared an expert report , at the request of the applicant ’s solicitor , which expressed the view that without continuing regular antiretroviral treatment to improve and maintain her CDCARDINAL count , and monitoring to ensure that the correct combination of drugs was used , the applicant ’s life expectancy would be DATE , due to the disseminated PERSON ’s sarcoma and the risk of infections . The medication she needed would be available in GPE , but only at considerable expense and in limited supply in the applicant ’s home town of GPE . Moreover , the author of the report pointed out that in GPE there was no provision for publicly funded blood monitoring , basic nursing care , social security , food or housing .

NORP The Secretary of ORG refused the asylum claim on DATE on grounds of credibility , and also because it was not accepted that the NORP authorities were interested in the applicant . The applicant ’s LAW claim was also rejected , the Secretary of ORG noting that treatment of Aids in GPE was comparable to that in any other NORP country , and that all the major antiretroviral drugs were available in GPE at highly subsidised prices .

An adjudicator determined the applicant ’s appeal on DATE . He dismissed the appeal against the asylum refusal , but allowed the appeal on LAW grounds by reference to the case of NORP v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) . He found that the applicant ’s case fell within the scope of ORG which provide that exceptional leave to remain in or enter GPE must be given :

“ ... where there is credible medical evidence that return , due to the medical facilities in the country concerned , would reduce the applicant ’s life expectancy and subject him to acute physical and mental suffering , in circumstances where the GPE [ GPE ] can be regarded as having assumed responsibility for his care . ... ”

NORP The Secretary of ORG appealed against LAW CARDINAL finding , contending that all the Aids drugs available under ORG in GPE could also be obtained locally , and most were also available at a reduced price through the ORG Nations’ funded projects and from bilateral Aids donor - funded programmes . The applicant ’s return would not , therefore , be to a “ complete absence of medical treatment ” , and so would not subject her to “ acute physical and mental suffering ” . ORG allowed the appeal on DATE . It found as follows :

“ Medical treatment is available in GPE for the [ applicant ’s ] condition even though the ORG accept that the level of medical provision in GPE falls below that in GPE and will continue to lag behind the advance of continuing drug advances which inevitably first become available in highly developed countries . Nonetheless , extensive efforts are being made in GPE to tackle the Aids situation – Aids - treating drugs are available , refined forms of drug are being supplied ( albeit with time lags ) and it would not be until the [ applicant ’s ] specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided . ”

Leave to appeal to ORG was granted on DATE , and on DATE the applicant ’s appeal to ORG was dismissed by a majority of CARDINAL ( [ DATE ] EWCA Civ CARDINAL ) . With reference to the case of NORP v. GPE ( cited above ) , Lord Justice Laws ( with whom Lord Justice PERSON concurred ) stated :

“ The contrast between the relative well - being accorded in a signatory ORG to a very sick person who , for a while , even a long while , is accommodated there , and the scarcities and hardships which ( without any violation of international law ) he would face if he were returned home , is to my mind DATE even if the contrast is very great DATE an extremely fragile basis upon which to erect a legal duty upon the ORG to confer or extend a right to remain in its territory , a duty unsupported by any decision or policy adopted by the democratic arm , executive or legislature , of the ORG ’s government . The elaboration of immigration policy ... is a paradigm of the responsibility of elected government . CARDINAL readily understands that such a responsibility may be qualified by a supervening legal obligation arising under the ORG [ the Convention ] where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the LAW , especially if it would be meted out to him at the hands of the ORG . But a claim to be protected from the harsh effects of a want of resources , albeit made harsher by its contrast with the facilities available in the host country , is to my mind something else altogether .

... I would hold that the application of LAW where the complaint in essence is of want of resources in the applicant ’s home country ( in contrast to what has been available in the country from which he is to be removed ) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised ORG . That does not , I acknowledge , amount to a sharp legal test ... an LAW case of this kind must be based on facts which are not only exceptional , but extreme ; extreme , that is , judged in the context of cases all or many of which ( like this one ) demand one ’s sympathy on pressing grounds ... ”

Lord Justice Carnwath , dissenting , was unable to say that the facts of the case were so clear that the only reasonable conclusion was that LAW did not apply . Given the stark contrast between the applicant ’s position in GPE and the practical certainty of a dramatically reduced life expectancy if returned to GPE with no effective family support , he would have remitted the case to the fact - finding body in the case , ORG .

Leave to appeal to ORG was granted , and on CARDINAL DATE ORG unanimously dismissed the applicant ’s appeal ( [ DATE ] ORG CARDINAL ) .

Lord PERSON of GPE summarised the applicant ’s prognosis as follows :

“ ... In DATE [ the applicant ] developed a second Aids - defining illness , PERSON ’s sarcoma . The CDCARDINAL cell count of a normal healthy person is over CARDINAL . Hers was down to CARDINAL .

As a result of modern drugs and skilled medical treatment over a lengthy period , including a prolonged course of systematic chemotherapy , the [ applicant ] is now much better . Her CDCARDINAL count has risen [ from CARDINAL ] to CARDINAL . Her condition is stable . Her doctors say that if she continues to have access to the drugs and medical facilities available in GPE she should remain well for ‘ decades’ . But without these drugs and facilities the prognosis is ‘ appalling’ : she will suffer ill health , discomfort , pain and death within DATE or CARDINAL . This is because the highly active antiretroviral medication she is currently receiving does not cure her disease . It does not restore her to her pre - disease state . The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while , and only while , she continues to receive it .

The cruel reality is that if the [ applicant ] returns to GPE her ability to obtain the necessary medication is problematic . So if she returns to GPE and can not obtain the medical assistance she needs to keep her illness under control , her position will be similar to having a life - support machine turned off . ”

Lord Hope of PERSON , with whom Lord PERSON , Lord PERSON of ORG - under - Heywood and Lord ORG agreed , referred in detail to the ORG ’s case - law ( see paragraphs CARDINAL - CARDINAL below ) , and held as follows :

“ ... that GPE has adhered throughout to CARDINAL basic principles . On the one hand , the fundamental nature of the LAW guarantees applies irrespective of the reprehensible conduct of the applicant . ... On the other hand , aliens who are subject to expulsion can not claim any entitlement to remain in the territory of a ORG in order to continue to benefit from medical , social or other forms of assistance provided by the expelling ORG . For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional ... The question on which the ORG has to concentrate is whether the present state of the applicant ’s health is such that , on humanitarian grounds , he ought not to be expelled unless it can [ be ] shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving ORG . The only cases where this test has been found to be satisfied are NORP v. GPE ... and PERSON v. GPE ... [ T]he ORG has been at pains in its decisions to avoid any further extension of the exceptional category of case which NORP v. GPE represents .

It may be that the ORG has not really faced up to the consequences of developments in medical techniques since the cases of NORP v. the GPE and GPE v. GPE were decided . The position DATE is that HIV infections can be controlled effectively and indefinitely by the administration of retroviral drugs . In almost all cases where this treatment is being delivered successfully it will be found that at present the patient is in good health . But in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death . The antiretroviral treatment can be likened to a lifesupport machine . Although the effects of terminating the treatment are not so immediate , in the longer term they are just as fatal . It appears to be somewhat disingenuous for the ORG to concentrate on the applicant ’s state of health which , on a true analysis , is due entirely to the treatment whose continuation is so much at risk .

But it can not be said that the ORG is unaware of the advances of medical science in this field . All the recent cases since GPE v. GPE have demonstrated this feature . The fact that the ORG appears to have been unmoved by them is due , I think , to its adherence to the principle that aliens who are subject to expulsion can not claim any entitlement to remain in the territory of a ORG in order to continue to benefit from medical , social or other forms of assistance provided by the expelling ORG . The way this principle was referred to and then applied in GPE the GPE ... is , in my opinion , highly significant . What the ORG is in effect saying it that the fact that the treatment may be beyond the reach of the applicant in the receiving ORG is not to be treated as an exceptional circumstance . It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence . But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in ORG , especially those in sub - Saharan LOC . For the circumstances to be , as it was put in LOC v. the GPE , ‘ very exceptional’ it would need to be shown that the applicant ’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying .

... So long as [ the applicant ] continues to take the treatment she will remain healthy and she will have DATE of good health to look forward to . Her present condition can not be said to be critical . She is fit to travel , and will remain fit if and so long as she can obtain the treatment that she needs when she returns to GPE . The evidence is that the treatment that she needs is available there , albeit at considerable cost . She also still has relatives there , although her position is that none of them would be willing and able to accommodate and take care of her . In my opinion her case falls into the same category as GPE v. GPE , PERSON v. the GPE , GPE v. GPE and GPE the GPE , where the ORG has consistently held that the test of exceptional circumstances has not been satisfied . In my opinion the ORG ’s jurisprudence leads inevitably to the conclusion that her removal to GPE would not violate the guarantees of LAW . ... ”

Lord Hope concluded by observing :

“ [ Any extension of the principles in NORP v. GPE ] would have the effect of affording all those in the [ applicant ’s ] condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV / Aids had reached that which is available in LOC . It would risk drawing into the GPE large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country . This would result in a very great and no doubt unquantifiable commitment of resources which it is , to say the least , highly questionable GPE Parties to the Convention would ever have agreed to . The better course , one might have thought , would be for GPE to continue to concentrate their efforts on the steps which are currently being taken , with the assistance of the drugs companies , to make the necessary medical care universally and freely available in the countries of the third world which are still suffering so much from the relentless scourge of HIV / Aids . ”

ORG of GPE , agreeing that the appeal should be dismissed , reviewed the domestic and Convention authorities and phrased the test to be applied as follows :

“ ... whether the applicant ’s illness has reached such a critical stage ( i.e. he is dying ) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity . ... [ The test ] is not met on the facts of this case . ”

According to information obtained by ORG of its own motion , HIV is normally treated by antiretroviral drugs . In GPE , in common with most developed countries , these drugs are provided in combination , a practice known as “ highly active antiretroviral therapy ” ( ORG ) . The proper administration of antiretroviral drugs depends on regular monitoring of the patient , including blood tests , and the availability of medical personnel to adjust at frequent intervals the level and type of drugs taken . Such treatment is generally available free of charge on ORG .

In GPE , attempts have been made to reduce the country ’s dependency on imported medication , including producing generic drugs locally . However , in common with most sub - NORP countries , the availability of antiretroviral drugs is hampered by limited financial resources and by shortcomings in the health - care infrastructure required to administer them effectively . As a result , according to research carried out by ORG ) , CARDINAL of those needing antiretroviral therapy in GPE receive it ( WHO , “ Progress on Global Access to HIV Antiretroviral Therapy ” , DATE , pp . CARDINAL , DATE and DATE ) . ORG Programme on HIV / Aids ( UNAIDS ) and WHO in their DATE country situation analysis on GPE also cited major barriers to HIV prevention , treatment , care and support as including limited public investment , limited service coverage and lack of a policy framework . There are also significant disparities in the provision of drugs between urban and rural areas ( WHO , “ ORG for HIV / Aids Treatment Scale - Up : GPE ” , DATE ) . In addition , progress in providing medical care has been offset by the ever - increasing number of people requiring treatment ( ORG , “ Aids Epidemic Update ” , DATE , p. CARDINAL ) and given the rapid population growth in GPE , its stable HIV incidence rate means that an increasing number of people acquire HIV DATE ( ORG , “ Aids Epidemic Update ” , DATE , p. CARDINAL ) .