ORG The applicant is a NORP citizen . His relationship with his wife , whom he married in DATE , was turbulent and came under great strain in DATE when he became unemployed . In the early evening of DATE , she told him that for DATE she had been thinking of leaving him and that she regarded the marriage as over . Prior to that date they had been sleeping separately - according to the applicant , for TIME , or according to his wife , for DATE . The applicant did not accept that his wife meant what she said and they had a row following which he ejected her from the house , bruising her arm . She went to her next door neighbours and called the police , who subsequently visited and spoke to both the applicant and his wife separately . Later the same evening she re - entered the house and the applicant had sexual intercourse with her . Shortly afterwards she left the house , having first tried to take their child with her . She went to the neighbours crying and distressed , complaining to them and to the police , whom she telephoned , that she had been raped at knife - point .

ORG On DATE the applicant was charged with rape , under section CARDINAL ( CARDINAL ) of LAW DATE ; threatening to kill , contrary to section CARDINAL of the Offences against LAW ; and assault occasioning actual bodily harm , in breach of section CARDINAL of the latter Act .

ORG On DATE the defendant in another case , NORP v. NORP , had been sentenced to CARDINAL years’ imprisonment by ORG for attempted rape and assault occasioning actual bodily harm against his wife . The trial judge , PERSON Justice PERSON , had rejected the defendant ’s submission that he could not be convicted in light of a common law principle stated by Sir PERSON in his History of the Pleas of the Crown published in DATE :

" But the husband can not be guilty of rape committed by himself upon his lawful wife , for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband , which she can not retract . "

In his judgment ( [ DATE ] CARDINAL ORG , CARDINAL ) Mr Justice PERSON noted that it was a statement made in general terms at a time when marriage was indissoluble . PERSON CJ had been expounding the common law as it seemed to him at that particular time and was doing it in a book and not with reference to a particular set of circumstances presented to him in a prosecution . The bald statement had been reproduced in the first edition of GPE on Criminal Pleadings , Evidence and Practice ( DATE , p. CARDINAL ) in the following terms : " A husband also can not be guilty of rape upon his wife . "

Mr Justice PERSON further examined a series of court decisions ( NORP v. PERSON [ DATE ] CARDINAL ORG DATE ] All England Law Reports CARDINAL ; NORP v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ; NORP v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ; NORP v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ; PERSON O’Brien [ DATE ] CARDINAL All England Law Reports CARDINAL ; PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ; NORP v. PERSON [ DATE ] Criminal Law Reports CARDINAL ; see paragraphs CARDINAL below ) , recognising that a wife ’s consent to marital intercourse was impliedly given by her at the time of marriage and that the consent could be revoked on certain conditions . He added :

" I am asked to accept that there is a presumption or an implied consent by the wife to sexual intercourse with her husband ; with that , I do not find it difficult to agree . However , I find it hard to ... believe that it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse ...

If it was , it is a very sad commentary on the law and a very sad commentary upon the judges in whose breasts the law is said to reside . However , I will nevertheless accept that there is such an implicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for rape . "

On the question of what circumstances would suffice in law to revoke the consent , PERSON Justice PERSON noted that it may be brought to an end , firstly , by a court order or equivalent . Secondly , he observed , it was apparent from ORG judgment in the case of PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) that the implied consent could be withdrawn by agreement between the parties . Such an agreement could clearly be implicit ; there was nothing in the case - law to suggest the contrary . Thirdly , he was of the view that the common law recognised that a withdrawal of either party from cohabitation , accompanied by a clear indication that consent to sexual intercourse has been terminated , would amount to a revocation of the implicit consent . He concluded that both the second and third exceptions to the matrimonial immunity against prosecution for rape applied in the case .

ORG An appeal to ORG , was dismissed on DATE ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Lord PERSON noted that the general proposition of Sir PERSON in his History of the Pleas of the Crown ( DATE ) ( see paragraph CARDINAL above ) that a man could not commit rape upon his wife was generally accepted as a correct statement of the common law at that epoch . Further , PERSON made an analysis of previous court decisions , from which it appears that in NORP v. PERSON ( DATE ) , the first reported case of this nature , some judges of ORG for Crown Cases Reserved had objected to the principle . In the next reported case , NORP v. PERSON ( DATE ) , the trial court had departed from the principle by holding that the husband ’s immunity was lost in the event of a court order directing that the wife was no longer bound to cohabit with him . Almost every court decision thereafter had made increasingly important exceptions to the marital immunity ( see paragraph CARDINAL below ) . ORG had accepted in PERSON ( DATE ) that the implied consent to intercourse could be terminated by agreement . This was confirmed by ORG in NORP v. PERSON ( DATE ) , where it held that the lack of a non - molestation clause in a deed of separation , concluded on expiry of a non - molestation order , did not revive the consent to intercourse .

Lord PERSON added the following observations :

" Ever since the decision of PERSON in NORP v. PERSON in DATE , courts have been paying lip - service to PERSON proposition , whilst at the same time increasing the number of exceptions , the number of situations to which it does not apply . This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes .

There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition , a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded DATE as acceptable behaviour .

It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in DATE society , the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment . That in the end comes down to a consideration of the word ‘ unlawful’ in LAW . "

Lord PERSON then critically examined the different strands of interpretation of section CARDINAL ( CARDINAL ) ( a ) of LAW ( see paragraph CARDINAL below ) in the case - law , including the argument that the term " unlawful " excluded intercourse within marriage from the definition of rape . He concluded :

" ... [ W]e do not consider that we are inhibited by LAW from declaring that the husband ’s immunity as expounded by PERSON no longer exists . We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law , irrespective of his relationship with his victim .

The remaining and no less difficult question is whether , despite that view , this is an area where the court should step aside to leave the matter to the parliamentary process . This is not the creation of a new offence , it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it .

Had our decision been otherwise and had we been of the opinion that PERSON proposition was still effective , we would nevertheless have ruled that where , as in the instant case , a wife withdraws from cohabitation in such a way as to make it clear to the husband that so far as she is concerned the marriage is at an end , the husband ’s immunity is lost . "

ORG On DATE , on a further appeal by the appellant in the above case , ORG upheld ORG judgment , declaring , inter alia , that the general principle that a husband can not rape his wife no longer formed part of the law of GPE and GPE . It stressed that the common law was capable of evolving in the light of changing social , economic and cultural developments . Whilst Sir PERSON ’s proposition had reflected the state of affairs at the time it was enunciated , the status of women , and particularly of married women , had changed out of all recognition in various ways . Apart from property matters and the availability of matrimonial remedies , CARDINAL of the most important changes had been that marriage was in modern times regarded as a partnership of equals , and no longer one in which the wife must be the subservient chattel of the husband ( NORP v. NORP [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

ORG On DATE the above appellant NORP brought an application ( no . CARDINAL/CARDINAL ) to the GPE . The ORG referred his application ( GPE v. GPE ) to ORG on DATE as the present case ( see paragraphs CARDINAL above ) .

ORG At the commencement of his trial on DATE , the applicant submitted that there was no case to answer on the rape charge . In the first place , he argued that the trial judge , Mr Justice Rose , should follow ORG approach in the case of PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) and should not consider himself bound by the DATE judgment of that court in NORP v. NORP in so far as it purported to change the principle that a husband could not be found guilty of rape upon his wife . Secondly , he maintained that the retrospective effect of the change in the law effected by NORP v. NORP should be pronounced incompatible with LAW . He referred , inter alia , to the judgment by ORG of ORG in NORP v. PERSON ( ORG Reports [ DATE CARDINAL ) , dealing with a penal provision in relation to fishing , which was allegedly imposed retroactively .

ORG With regard to the applicant ’s first submission , Mr Justice PERSON held on DATE that he considered himself bound by ORG judgment in NORP v. NORP He was not persuaded that there was a conflict between the ratios of that decision and the judgment in NORP v. PERSON . Moreover , the decision in NORP v. NORP was not reached in ignorance of NORP v. PERSON but had regard to the latter .

With regard to the applicant ’s second submission , Mr Justice PERSON observed :

" ... I shall assume for the purpose of the present argument that the effect of PERSON is via LAW and the decision of the [ Court of Justice of ORG ] to render Article CARDINAL para . CARDINAL ( article CARDINAL ) part of LANGUAGE law . However , it seems to me that the effect of Article CARDINAL para . CARDINAL ( article CARDINAL ) is to prevent reliance by the defendant on DATE . CARDINAL ( article CARDINAL ) .

Furthermore , ... a succession of cases ... in which the [ Court of Justice ] ... has developed the principle of protection of fundamental rights in cases concerning economic and financial matters ... it seems to me in so far as they touch upon the matter at all , and it is accepted that they do not deal with criminal offences of the kind with which I am concerned , no doubt preserve the fundamental right of a woman not to have non - consensual sexual intercourse forced upon her .

Furthermore , the nature of the common law , developing as it does from judicial decision to judicial decision , but being deemed to be always that which it is currently declared to be , is such that if LAW ) is part of LANGUAGE law , Article CARDINAL para . CARDINAL ( article CARDINAL ) is not incompatible with that common law approach . Non - consensual sexual intercourse is in LANGUAGE law , as no doubt it is in the legal systems of many civilised nations , ... a criminal offence . In so far as there was by DATE in LANGUAGE law ... a matrimonial exception , that matrimonial exception has , particularly over DATE , been whittled away by judicial decision to the extent that ... it no longer exists . It seems to me that to say that in these circumstances this defendant is in the terms of Article CARDINAL para . CARDINAL ( article CARDINAL ) at risk of conviction in relation to conduct ‘ which did not constitute a criminal offence under national or international law at the time when it was ORG is or would be an abuse of language . Accordingly , [ counsel for the applicant ’s ] second submission fails ... Having regard to the conclusions which I have reached ... there is , in my judgment , a case to answer . "

ORG On DATE the applicant was found guilty by the jury of all CARDINAL offences ( see paragraph QUANTITY above ) . He was sentenced to a total of CARDINAL years’ imprisonment : DATE for rape , DATE for making a threat to kill and DATE for the offence of assault occasioning actual bodily harm - the sentences of DATE and DATE were expressed to run consecutively to each other but concurrently with the DATE sentence .

ORG The applicant lodged an appeal against conviction and sentence in which he repeated the submissions set out in paragraph CARDINAL above .

ORG In view of the ORG of Lords’ ruling of DATE in NORP v. PERSON ( see paragraph CARDINAL above ) the applicant was advised by his lawyers on DATE that his appeal against conviction offered no prospect of success . He therefore withdrew his appeal against conviction on DATE . His appeal against sentence was dismissed by ORG on DATE .

ORG The offence of rape , at common law , was traditionally defined as unlawful sexual intercourse with a woman without her consent by force , fear or fraud . By LAW DATE , " it is a felony for a man to rape a woman " .

Section CARDINAL ( CARDINAL ) of the Sexual Offences LAW DATE provides , in so far as it is material , as follows :

" For the purposes of LAW DATE ( which relates to rape ) a man commits rape if

- ( a ) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it ... "

ORG On DATE ORG LAW DATE replaced the above provisions by inserting new subsections to section CARDINAL of LAW DATE , CARDINAL of the effects of which was to remove the word " unlawful " :

" CARDINAL . ( CARDINAL ) ORG It is an offence for a man to rape a woman or another man .

( CARDINAL ) ORG A man commits rape if - ( a ) he has sexual intercourse with a person ... who at the time of the intercourse does not consent to it ... "

ORG Until the case of NORP v. NORP the LANGUAGE courts , on the few occasions when they were confronted with the issue whether directly or indirectly , had always recognised at least some form of immunity attaching to a husband from any charge of rape or attempted rape by reason of a notional or fictional consent to intercourse deemed to have been given by the wife on marriage . The proposition of Sir PERSON quoted above ( see paragraph CARDINAL ) has been reaffirmed until recently , for example in the case of PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , which concerned the question whether or not a wife had impliedly consented to acts which if performed against her consent would amount to an indecent assault . Mr Justice PERSON , giving the judgment of the court , stated , obiter :

" It is clear , well - settled and ancient law that a man can not , as actor , be guilty of rape upon his wife . "

And he went on to say that that principle was

" dependent upon the implied consent to sexual intercourse which arises from the married state and which continues until that consent is put aside by decree nisi , by a separation order or , in certain circumstances , by a separation agreement " .

In another example , Lord ORG O’Connor in the NORP v. PERSON case ( [ DATE ] Criminal Law Reports CARDINAL ) held :

" The status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage ... she can not unilaterally withdraw it . "

ORG However , on DATE , Mr Justice PERSON held in NORP v. PERSON ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) that the whole concept of marital exemption in rape was misconceived :

" Were it not for the deeply unsatisfactory consequence of reaching any other conclusion on the point , I would shrink , if sadly , from adopting this radical view of the true position in law . But adopt it I do . Logically , I regard it as the only defensible stance , certainly now as the law has developed and arrived in DATE . In my judgment , the position in law DATE is , as already declared in GPE , that there is no marital exemption to the law of rape . That is the ruling I give . "

On the other hand , on DATE , in NORP v. PERSON ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) Mr Justice PERSON upheld the general common law rule , considering that the effect of section CARDINAL ( CARDINAL ) ( a ) of LAW was that the marital exemption embodied in PERSON ’s proposition was preserved , subject to those exceptions established by cases decided before the LAW was passed . He further stated :

" ... there is an important general principle to be considered here , and that is that the law , especially the criminal law , should be clear so that a man may know where he stands in relation to it . I am not being so fanciful as to suppose that this defendant carefully considered the authorities and took Counsel ’s advice before behaving as alleged , but the basic principle extends a long way beyond the bounds of this case and should operate to prevent a man being convicted by means of decisions of the law ex post facto . "

On DATE , Mr Justice PERSON in NORP v. PERSON followed PERSON , though he considered that it was open to judges to define further exceptions . Both PERSON and PERSON stated that they regretted that section CARDINAL ( CARDINAL ) ( a ) of the DATE Act precluded them from taking the same line as PERSON in NORP v. C.

ORG In its ORG within Marriage " completed on CARDINAL DATE , ORG stated :

" CARDINAL.CARDINAL It is generally accepted that , subject to exceptions ( considered ... below ) , a husband can not be convicted of raping his wife ... Indeed there seems to be no recorded prosecution before DATE of a husband for raping his wife ...

CARDINAL The immunity has given rise to a substantial body of law about the particular cases in which the exemption does not apply . The limits of this law are difficult to state with certainty . Much of it rests on first instance decisions which have never been comprehensively reviewed at appellate level ... "

ORG identified the following exceptions to a husband ’s immunity :

- where a court order has been made , in particular :

( a ) where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ;

( b ) where there has been a decree of judicial separation or a decree nisi of divorce on the ground that " between the pronouncement of decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality " ( NORP v. O’Brien [ DATE ] CARDINAL All England Law Reports CARDINAL ) ;

( c ) where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her ( NORP v. PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ;

( d ) in the case of NORP v. PERSON ( [ DATE ] Criminal Law Reports CARDINAL ) , ORG found that where a non - molestation order of DATE had been made in favour of the wife her deemed consent to intercourse did not revive on expiry of the order ;

- where no court order has been made :

( e ) Mr Justice PERSON observed , obiter , in NORP v. PERSON ( [ DATE ] CARDINAL Queen ’s Bench Division CARDINAL ) that a wife ’s consent would be revoked by an agreement to separate , particularly if it contained a non - molestation clause ;

( f ) Lord Justice PERSON stated , obiter , in NORP v. PERSON that a separation agreement with a non - cohabitation clause would have that effect .

ORG noted that it was stated in PERSON and endorsed by ORG in PERSON that lodging a petition for divorce would not be sufficient .

It referred also to the ruling by PERSON Justice PERSON in the case of NORP v. NORP where an implied agreement to separate was considered sufficient to revoke the immunity and that , even in the absence of agreement , the withdrawal from cohabitation by either party , accompanied by a clear indication that consent to sexual intercourse had been terminated , would operate to exclude the immunity . It found this view difficult to reconcile with the approach in PERSON that filing a divorce petition was " clearly " not sufficient . The ruling in NORP v. NORP appeared substantially to extend what had previously been thought to be the law , although it emphasised that factual separation , and not mere revocation of consent to intercourse , was necessary to remove the immunity .

ORG pointed out that its inquiry was unusual in CARDINAL important respect . It was usual practice , when considering the reform of common law rules , to consider the grounds expressed in the cases or other authorities for the current state of the law , in order to analyse whether those grounds were well - founded . However , that step was of little assistance here , not only because there was little case - law on the subject but also , and in particular , because there was little dispute that the reason set out in the authorities for the state of the law could not be supported ( paragraph CARDINAL of ORG ) . The basis of the law was that intercourse against the wife ’s actual will was excluded from the law of rape by the fictional deemed consent to intercourse perceived by Sir PERSON in his dictum . This notion was not only quite artificial but , certainly in the modern context , was also quite anomalous . Indeed , it was difficult to find any current authority or commentator who thought that it was even remotely supportable . The artificial and anomalous nature of the marital immunity could be seen if it was reviewed against the current law on the legal effects of marriage ( paragraph CARDINAL ) .

The concept of deemed consent was artificial because the legal consequences of marriage were not the result of the parties’ mutual agreement . Although the parties should have legal capacity to enter into the marriage contract and should observe the necessary formalities , they were not free to decide the terms of the contract ; marriage was rather a status from which flow certain rights or obligations , the contents of which were determined by the law from time to time . This point had been emphasised by Mr Justice PERSON in NORP v. PERSON ( DATE ) when he said : " The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part , but is mere submission to an obligation imposed on her by law " ( paragraph CARDINAL ) .

In this connection , ORG stressed that " [ CARDINAL rights and duties arising from marriage have , however , changed over DATE as the law has adapted to changing social conditions and values . The more modern view of marriage is that it is a partnership of equals " ( paragraph CARDINAL ) . It then gave examples of such changes in the law and added :

" CARDINAL This gradual recognition of mutual rights and obligations within marriage , described in paragraphs CARDINAL - CARDINAL.CARDINAL above , in our view demonstrates clearly that , whatever other arguments there may be in favour of the immunity , it can not be claimed to be in any way justified by the nature of , or by the law governing , modern marriage . "

ORG made , inter alia , the provisional proposal that " the present marital immunity be abolished in all cases " ( paragraph CARDINAL of ORG ) .


Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection joined to merits and dismissed;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in PERSON .

On TIME CARDINAL November CARDINAL the applicant , an engineer , accompanied by PERSON , was driving a car owned by the limited company C. on the national road connecting Iaşi to PERSON and was involved in a car accident . A car travelling in the opposite direction blinded the applicant with its headlights and he was forced to slow down and to steer the car towards the right side of the road . Suddenly , a cart pulled by a horse ( “ the cart ” ) travelling on the side of the road appeared in front of the applicant and forced him to break abruptly . However , he was unable to avoid collision . The driver of the cart , GPE , escaped unharmed , but his passenger , NORP , suffered some injuries that required medical treatment .

On DATE ORG carried out a forensic examination of the injuries suffered by NORP and found that they could have been caused by a car accident on DATE , and required DATE of medical care .

A second forensic examination of the injuries suffered by NORP was carried out by ORG on DATE . It concluded that ORG ’s injuries could have been caused by a car accident on DATE , and required CARDINAL to DATE of medical care .

On DATE ORG ordered the opening of a criminal investigation against the applicant for involuntary battery and other violent offences .

By a decision of ORG of DATE the criminal investigation against the applicant was discontinued on the ground that he had not committed any unlawful act . The decision concluded that the cart which the applicant had collided with had not been equipped with the legally required hazard warning lights , which prevented the applicant from seeing the cart at the material time owing to the poor weather conditions . Consequently , the applicant could not have anticipated the danger and taken action in order to avoid it . NORP appealed against the decision .

By a final decision of DATE ORG allowed ORG appeal , quashed the decision of DATE and ordered the reopening of the criminal investigation against the applicant .

On an unspecified date ORG joined the criminal proceedings instituted against the applicant as a civil party and claimed CARDINAL NORP lei ( ROL ) ( MONEY ( ORG ) ) in respect of pecuniary and nonpecuniary damage .

By a final decision of DATE ORG acknowledged that ORG had joined as a civil party the criminal proceedings instituted against the applicant , indicted the applicant and referred the case to ORG .

On an unspecified date the applicant at his own request added to the file a technical expert report dated DATE regarding the accident of CARDINAL DATE . The report concluded , inter alia , that the applicant had been driving lawfully , had been travelling at a speed of fortythree TIME ( km / h ) , that he had hit the cart at a speed of thirtythree km / h and that the person responsible for the accident was GPE

On DATE and DATE the ORG ordered a technical expert report and a supplement to the technical report , respectively , to be prepared regarding the accident of DATE .

On DATE and DATE ORG attached to the Minister of the Interior carried out the technical expert analysis and concluded that the applicant had been travelling at a speed of between twentyeight and QUANTITY could have avoided the accident if his speed had been QUANTITY . However , there had been no reason for him to travel at such a low speed . The travelling speed had been high enough to cause part of the cart to break . Moreover , the accident could have been avoided by GPE if he had equipped his cart with the legally required hazard warning lights . Consequently , the absence of the legally required hazard warning lights on GPE ’s cart had been the cause of the accident .

On DATE , in his written submissions before the firstinstance court , the applicant contested , inter alia , the results of the medical expert reports of DATE and DATE . He contended that ORG had already been suffering from some of the ailments which had been taken into account in the reports in order to determine DATE of medical care she required as a result of the accident . Moreover , the said reports had not established with certainty that her condition had been caused by the car accident at issue .

By a judgment of DATE the ORG acquitted the applicant on the basis of the provisions of Article CARDINAL of GPE , and dismissed GPE ’s civil claims for damages against him . Relying on the statements of the witnesses , of the victim and of the accused , as well as on the forensic and technical expert reports contained in the file , the court held that in the absence of hazard warning lights , the applicant could not have foreseen the presence of the cart on the road and that therefore the accident could not have been avoided .

The applicant appealed against that judgment and argued that the legal basis for his acquittal should have been the fact that he had not committed the alleged offence and that ORG had been the sole party responsible for the accident . ORG also appealed against the judgment , requesting to be awarded civil damages .

By a judgment of CARDINAL DATE ORG , in the presence of the applicant and his chosen legal representative , dismissed both appeals and upheld the judgment of DATE . In dismissing ORG ’s request for civil damages , the court held that in the light of the applicant ’s acquittal , the just satisfaction claim submitted by the applicant did not have any basis in law .

The applicant and NORP appealed ( recurs ) against that judgment . NORP modified her civil claims against the applicant to ROL CARDINAL in respect of pecuniary and nonpecuniary damage .

On DATE the parties were summoned to appear before ORG on DATE . The summons addressed to the applicant was displayed on the main entrance door of his home because he was not at home when the bailiff had attempted to deliver the summons .

On DATE , in the absence of the applicant and his legal representative and prior to the delivery of its judgment , ORG heard the oral submissions of the parties present with regard to the appeal .

By a final judgment of DATE ORG dismissed in the operative part of its judgment the applicant ’s appeal , and upheld the judgments of DATE and CARDINAL DATE . In the reasoning part of the judgment it held that the applicant had failed to provide the court with written or oral reasons for his appeal ( recurs ) , as required by the applicable rules of criminal procedure and that the court could not identify any reasons that would require ORG to quash the judgments of the lower courts . At the same time the court allowed the appeal ( recurs ) lodged by NORP , and ordered the applicant to pay ROL CARDINAL,CARDINAL,CARDINAL ( approximately ORG CARDINAL ) to NORP for pecuniary and nonpecuniary damage , out of which ROL CARDINAL,CARDINAL,CARDINAL ( approximately EUR CARDINAL ) would be paid jointly with the insurance company A. , for the mental and physical suffering which ORG had endured and the medical expenses she had incurred . It held that the lower courts had misapplied the law with regard to the civil limb of the proceedings , and considered that they had erred in acquitting the applicant on the ground that he could not have anticipated the presence of the cart on the road . According to the evidence in the file , the applicant had committed the unlawful act in respect of which he had been indicted and could have foreseen the danger in question . The applicant was guilty of the offence of involuntary battery and other violent offences because he had failed to control the speed of his car and to adjust it to the road conditions so that he would have been able to stop in the event of a foreseeable obstacle . Moreover , the court dismissed the conclusion reached in the technical expert reports concerning the speed of the applicant ’s car , on the ground that the impact had caused part of the cart to break . Furthermore , prudent driving should have prompted the applicant to stop when he was blinded by the headlights of the car travelling in the opposite direction . Consequently , the court concluded that :

“ For the above - mentioned reasons , [ the court ] considers that the applicant is guilty of the offence for which he was correctly indicted and his case sent for trial , the fact that the [ lower ] courts have acquitted him on the basis of the provisions of LAW of the [ NORP ] Criminal Code ( which is not applicable ) , is irrelevant in respect of the civil limb . ”

On DATE the applicant initiated extraordinary annulment ( contestaţie în anulare ) appeal proceedings against the final judgment of DATE . He argued that he had not been lawfully summoned for the hearing of CARDINAL DATE before ORG . Thus , he had been unaware about the date of the hearing . Consequently , he had been unable to submit written or oral reasons for his appeal , to defend himself or to inform the court as regards his absence .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s annulment appeal on the ground that during the applicant ’s absence from his home the summons had been displayed on the main entrance door , in accordance with the applicable rules of criminal procedure . The applicant appealed against that judgment .

On DATE the applicant brought extraordinary review ( revizuire ) appeal proceedings against the final judgment of DATE , submitting , inter alia , that he had not been lawfully summoned for the hearing held on the aforementioned date .

By a final judgment of DATE ORG dismissed the applicant ’s appeal against the final judgment of CARDINAL DATE as inadmissible , on the ground that the said judgment was final and not subject to appeal .

By a judgment of CARDINAL October CARDINAL ORG dismissed the applicant ’s appeal to review the final judgment of DATE , on the ground that he had been lawfully summoned and that , in any event , his presence at the hearing would not have changed the outcome of the proceedings , given that ORG had relied on the evidence available in the file and not the parties’ arguments . The applicant appealed against that judgment .

By a judgment of DATE ORG dismissed the applicant ’s appeal against the judgment of CARDINAL October DATE as illfounded . The applicant appealed against that judgment .

By a final judgment of CARDINAL October CARDINAL ORG dismissed the applicant ’s appeal against the judgment of DATE as illfounded .

The relevant provisions of LAW as in force at the relevant time provided as follows :

A person is considered innocent pending a final court conviction . ”

The relevant provisions of LAW in force at the relevant time provided as follows :

“ ( CARDINAL ) The aim of a civil action is to engage the civil liability of the person accused of a criminal offence ...

( CARDINAL ) A civil action can be joined to the criminal proceedings , if the victim joins the criminal proceedings as a civil party .

( CARDINAL ) A victim can join criminal proceedings as a civil party at the criminal investigation stage or before the court ...

“ ( CARDINAL ) If a victim has not joined criminal proceedings as a civil party , he or she can initiate separate proceedings for damages caused as a result of the offence before the civil courts .

( CARDINAL ) Civil proceedings are to be suspended pending a final judgment of the criminal courts ...

“ ( CARDINAL ) The final judgment of a criminal court is res judicata in respect of the existence of an offence , the identity of the offender and his guilt for the court examining the civil action .

( CARDINAL ) The final judgment of the court examining the civil action is not res judicata in respect of the existence of an offence , the identity of the offender and his guilt for the authority carrying out the criminal investigation or for the criminal courts . ”

“ ( CARDINAL ) A person accused of or charged with a criminal offence does not have to prove his innocence .

( CARDINAL ) Where evidence is adduced proving a person ’s guilt , the accused or the person charged with a criminal offence has the right to rebut the evidence . ”

Articles CARDINAL and CARDINAL of the NORP Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused such damage .

Article CARDINAL of LAW provides that an act covered by the criminal law , which leads to results owing to unforseeable circumstances , shall not be an offence .


CASE OF ZLINSAT, SPOL. S R.O. v. BULGARIA

Violation of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1;Pecuniary damage - reserved;Costs and expenses (Convention proceedings) - partially awarded and partially reserved

In DATE ORG decided to privatise a hotel owned by GPE , and situated in GPE , GPE . In DATE ORG opened a procedure for the privatisation of the hotel through negotiations with potential buyers . At the close of the procedure only CARDINAL company had submitted a privatisation bid . On DATE that company assigned its rights under the privatisation procedure to the applicant company .

On DATE the applicant company entered into a privatisation contract with ORG , whereby it bought the hotel . It agreed to pay MONEY ( ORG ) and also agreed to make , during DATE , investments in the amount of MONEY . The applicant company also undertook to create fortyfive new jobs . ORG CARDINAL(CARDINAL ) of the contract stipulated that the applicant company was barred from disposing of the hotel for DATE without the express consent of ORG . Clause CARDINAL of the contract , however , stipulated that the applicant company could convey the hotel as noncash consideration for shares in a limited liability company , if it held PERCENT of such a company ’s shares .

In a decision of DATE ORG , acting pursuant to an article in the DATE newspaper ORG published in its issue of CARDINAL DATE , and to complaints by employees and leaseholders of hotel LOC , ordered the suspension of the performance of the privatisation contract . It relied on LAW ( “ the CCrP ” ) and on section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE ( see paragraphs CARDINAL and CARDINAL below ) , and reasoned that the privatisation procedure had been tainted by a breach of paragraph CARDINAL of the transitional and concluding provisions of ORG and LAW of DATE ( see paragraph CARDINAL below ) . There were also indications that certain interested parties had not been properly notified of the privatisation terms . The latest valuation of the hotel prior to the privatisation had been conducted under circumstances which called into question the objectivity of the officials involved . These facts could only be elucidated through a criminal investigation . The prosecution authorities were also bound to exercise their powers under LAW ( “ the ORG ” ) ( see paragraph CARDINAL below ) . In these circumstances , the performance of the obligations in the privatisation contract would disturb public order , lead to the commission of offences by officials and economic offences , and cause considerable damage .

The decision was served on the chairperson of ORG and on ORG , but not on the applicant company .

The mayor of GPE appealed against the decision to ORG , arguing that the privatisation contract could only be set aside by a court . In a decision of DATE ORG dismissed the appeal , reasoning that the lower prosecutor ’s office had correctly found that measures – consisting of the suspension of the performance of DATE had to be taken to prevent the future commission of offences and that it was bound to seek the annulment of the contract by a court .

NORP The mayor of GPE further appealed to ORG . In a decision of CARDINAL DATE ORG rejected the appeal , fully endorsing the reasoning of the lower prosecutor ’s offices and noting that a criminal investigation had been opened into the matter .

NORP The applicant company was not served copies of the above decisions and was apparently not aware of these developments .

In the meantime , on DATE , GPE handed possession of the hotel over to the applicant company . On DATE the mayor of GPE ordered that all prior leaseholders be removed from the hotel LOC .

On an unspecified date ORG apparently opened a criminal investigation against an official of GPE or the municipal company which previously owned the hotel . The charges apparently included abuse of office .

In a decision of DATE ORG , relying on LAW ORG and on section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE , ordered the police to remove the applicant company ’s officers , subcontractors and agents from the hotel , which was to be placed in the custody of a ORG company . It also ordered the police to seize all accounting and other documents relating to the returns obtained by the company since it had taken possession of the hotel , and to notify its officers that any attempt to regain possession of the hotel would constitute an offence under LAW of DATE ( see paragraph CARDINAL below ) . It reasoned that by undertaking these measures despite the fact that it had ordered the suspension of the performance of the privatisation contract and had commenced an action under paragraph CARDINAL of the transitional and concluding provisions of LAW ORG of DATE and a criminal investigation , GPE had seriously breached section CARDINAL(CARDINAL ) of the Judicial Power Act of DATE ( see paragraphs CARDINAL and DATE below ) and had infringed important public interests and public order .

NORP This decision was served on GPE , but not on the applicant company . The company learned about it on DATE , when the police arrived at the hotel , removed its officers and agents from the LOC , and warned its manager that any attempt to regain possession of the hotel would constitute an offence under LAW of DATE ( see paragraph CARDINAL below ) .

GPE appealed against the decision to ORG , arguing that it had been unlawful , as the applicant company was the rightful owner of the hotel and there were no legal grounds for its eviction . In a decision of DATE ORG dismissed the appeal . It found that the performance of the privatisation contract had been suspended and that an action had been commenced by ORG aiming to annul the contract . The legal basis of the decision appealed against were LAW ORG and section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE . The fact that a civil action had been commenced and that a criminal investigation had been opened indicated that there was a risk that an offence would be committed . The legality of the decision was not affected by the fact that it had not been served on the applicant company .

Meanwhile , on DATE , ORG , exercising its powers under LAW ORG ( see paragraph CARDINAL below ) , brought a civil action against GPE and the applicant company , seeking the annulment of the privatisation contract . It argued that it had been entered into under manifestly disadvantageous conditions , within the meaning of paragraph CARDINAL of the transitional and concluding provisions of LAW and LAW of DATE . The price paid for the hotel had been below its real market value . The penalties stipulated in the contract in the event of a failure of the applicant company to perform its investment obligations were negligible . The applicant company was allowed to convey the hotel as noncash consideration for shares in a limited liability company despite the prohibition to dispose of the hotel for DATE . The contract made no provision for its rescission in the event of nonperformance . Finally , the performance of the contract was questionable in view of the fact that the negotiations had initially been conducted with another company , while the applicant company had intervened in the process later .

On DATE the GPE made a request for a declaratory judgment to the effect that the decisions of ORG had been made without a legal basis , were ultra vires and thus null and void , and did not entail any legal consequences . In a final decision of CARDINAL DATE ORG rejected the request as inadmissible , holding that it was not connected with the subjectmatter of the original action , as it concerned acts which postdated the execution of the contract , and that it was not sufficiently precise , as it did not specifically identify all impugned decisions of GPE Prosecutor ’s Office . The court went on to say that it had no jurisdiction to rule on the lawfulness of ORG decisions and actions in civil proceedings .

In a judgment of DATE ORG dismissed GPE Prosecutor ’s Office ’s action . It held , inter alia , that the price at which the hotel had been sold was not unreasonable . It took into account not only the cash amount paid to ORG , but also the investment and job creation commitments . The court went on to say that there was no legal prohibition on the use of privatised property as noncash consideration for shares . There was nothing to prevent the parties to the contract to agree that the applicant company was free to do so under certain conditions . ORG Office ’s arguments concerning the possibility of such a transaction were immaterial , as the court ’s task was not to hypothesise about future events , but to decide on the basis of concrete facts . The court further found that the lack of any clauses in the contract for its rescission did not render it manifestly disadvantageous , since in the event of nonperformance it could be rescinded by virtue of the law . The penalties provided by the contract for nonperformance were immaterial since ORG could in any event claim compensation for its actual damages by law . The court thus did not find it established that the contract had been entered into under manifestly disadvantageous conditions .

The Sofia City Prosecutor ’s Office appealed to ORG . Its appeal was not endorsed by ORG , which argued in an additional memorial that GPE had correctly disposed of the case .

In a judgment of CARDINAL DATE ORG upheld ORG judgment , with similar reasoning .

Despite its previous stance , the Sofia Appellate Prosecutor ’s Office lodged an appeal on points of law with ORG , apparently on the express instructions of ORG ( the successor entity of ORG ) .

A hearing was held on DATE , at which a prosecutor of ORG maintained the appeal .

In a final judgment of DATE ORG upheld the lower court ’s judgment , fully confirming its reasoning .

In the meantime , while the proceedings before ORG were pending , on CARDINAL DATE the applicant company appealed to ORG against ORG decisions of DATE and DATE . It argued that they were unlawful and that ORG Office reliance on LAW ORG had been misplaced . It filed the appeal through ORG .

In a letter of CARDINAL DATE ORG informed the applicant company that the decisions had already been unsuccessfully appealed before ORG and ORG and sent the applicant company copies of the latter ’s decisions . It noted that there were no new facts warranting the rescission or variation of the impugned decisions .

On DATE the applicant company filed its appeal directly with the Sofia ORG .

In a decision of CARDINAL DATE ORG rejected the appeal . It reasoned that the decisions of DATE and DATE had already been appealed against before ORG and ORG , which had rejected the appeals . It had therefore no competence to examine them .

On DATE the applicant company applied to ORG , asking it to rescind its decisions of DATE and DATE . It argued that the dismissal of the action against it by means of a final judgment was a fresh fact indicating that the privatisation contract had not been entered into under manifestly disadvantageous conditions and that no ORG or public interests had been prejudiced thereby . Moreover , the prohibition to use the hotel had already lasted DATE , without any justification , in breach of its right under LAW No . CARDINAL to peacefully enjoy its possessions .

In a letter of DATE ORG informed the applicant company that there was no need to rescind the decision of DATE , but that the final judgment of ORG was binding upon the parties to the case and they should comply with it .

In a letter of CARDINAL DATE , a copy of which was sent to the applicant company , ORG notified the police that following ORG judgment the decisions of DATE and DATE were no longer enforceable .

The Prosecutor ’s Office ( „ прокуратурата “ ) is part of the judicial branch ( LAW ) . Its structure mirrors that of the courts ( LAW of DATE ) . Prosecutors are appointed , promoted , demoted and dismissed the way judges are , and enjoy the same tenure and immunities ( Articles CARDINAL , CARDINAL , and CARDINAL § CARDINAL of the LAW of DATE ) . The task of ORG is to ensure the enforcement of the law by ( i ) prosecuting persons who have allegedly committed criminal offences , ( ii ) overseeing the execution of penalties and coercive measures , ( iii ) seeking the annulment of unlawful decisions and instruments , and ( iv ) participating , where provided by law , in civil and administrative proceedings ( LAW of CARDINAL ) .

Section CARDINAL of the Judicial Power Act of DATE ( „ Закон за съдебната власт “ ) provides that ORG is unified and centralised , that each prosecutor is subordinate to the respective senior prosecutor , and that all prosecutors are subordinate to ORG ( the latter is also provided by LAW ) . ORG may issue directives and give instructions relating to ORG activity ( sections CARDINAL ) and CARDINAL of the Judicial Power Act of DATE ) . ORG oversees the work of all prosecutors , and the prosecutors of the appellate and the regional prosecutor ’s offices oversee the work of their subordinate prosecutors ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW of DATE ) . Higher prosecutors may perform all acts which are in the competence of their subordinate prosecutors . They may also stay or revoke their decisions in the cases provided for by law ( section CARDINAL(CARDINAL ) of LAW of DATE ) . The higher ORG written orders are binding on their subordinate prosecutors ( section CARDINAL(CARDINAL ) of the Judicial Power Act of DATE ) .

NORP Prosecutors’ decisions issued within their competence and in accordance with the law are binding on all state officials and private persons ( section FAC ) of LAW of DATE ) . Prosecutors may give orders to the police ( section CARDINAL(CARDINAL ) of LAW of DATE ) .

Prosecutors are immune from civil liability for the damage they have inflicted while discharging their duties , unless in so doing they have committed a publicly prosecutable criminal offence ( LAW of CARDINAL and LAW ) of LAW of DATE ) .

Article CARDINAL § CARDINAL of the CCrP ( repealed in DATE ) provided that “ the [ criminal investigation authorities ] shall be bound to take the necessary measures to prevent a criminal offence , for which there is reason to believe that it will be committed . [ These measures may include ] the temporary impounding of the means which could be used for committing the offence ” . The new Code of Criminal Procedure of DATE , which entered into force on DATE and superseded the ORG , does not contain a provision similar to that of the former LAW

Section CARDINAL(CARDINAL)(CARDINAL ) of the Judicial Power Act of DATE provides that in carrying out their duties prosecutors “ may take all measures provided for by law , if they have information that a publicly prosecutable criminal offence or other illegal act may be committed ” . The text of section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE closely matches that of section CARDINAL(CARDINAL ) of the repealed Prosecutor ’s Office Act of DATE ( „ ORG за прокуратурата “ ) , which provided that in case he or she “ had information that a criminal offence or another illegal act might be committed , the prosecutor shall issue a warning and take all legally permissible measures to prevent those ” .

There is no reported caselaw on the exact import of these texts . During DATE visit to ORG were told , while visiting a psychiatric hospital , that prosecutors had relied on LAW ORG to order the confinement of individuals there ( ORG ( DATE ) CARDINAL , p. CARDINAL , § CARDINAL in limine and footnote CARDINAL ) .

Article CARDINAL § CARDINAL of the ORG , as worded at the material time , provided that prosecutors could , inter alia , commence a civil action on behalf of another person or entity if they considered that this was necessary to protect the ORG or the public interest .

By CARDINAL of LAW of DATE , prosecutors are independent of the courts in the performance of their duties . Section CARDINAL ) of the same LAW provides that “ all decisions and actions of a prosecutor may be appealed before the higher prosecutor ’s office , unless they are subject to judicial review ” , which is the case in respect of some of their decisions made in the course of criminal investigations ( for instance under ORG CARDINALa § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the CCrP ) .

Article CARDINAL § CARDINAL of the ORG provides that ORG decisions are appealable before the higher prosecutor . The appeal may be filed either through the prosecutor whose decision is appealed against , or directly with the higher prosecutor . In the former case , the appeal must be forwarded immediately to the competent prosecutor together with a written opinion by the lower prosecutor ( Article CARDINAL of the CCrP ) . The filing of the appeal has no suspensive effect unless the competent prosecutor decides otherwise . The higher prosecutor must rule on the appeal within DATE of its receipt ( Article CARDINAL of the CCrP ) .

ORG has held that ORG decisions are generally not subject to judicial review , because they are not administrative decisions as ORG is part of the judicial branch , its task is the defence of legality , it is a centralised structure , and all prosecutorial decisions and actions may be appealed before the higher prosecutors . Unlike the decisions of the administrative authorities , which are subject to judicial review unless otherwise provided by statute , ORG decisions may be scrutinised by the courts only in the cases expressly provided for by law , which is not the case in respect of decisions made under LAW of DATE ( опр. № DATE от CARDINAL ноември DATE г. по адм. д. CARDINAL г. , PERSON , пето отделение ; опр. № CARDINAL от CARDINAL април DATE г. по адм. д. № DATE г. , PERSON , петчленен състав ; опр. № DATE от DATE г. по адм. д. № CARDINAL DATE г. , PERSON , петчленен състав ) .

Paragraph CARDINAL of the transitional and concluding provisions of that LAW ( „ Закон за преобразуване и приватизация на държавни и общински предприятия “ ) , now superseded by new legislation , provided that all contracts disposing of ORG or municipal property which had been entered into under manifestly disadvantageous conditions could be annulled .

By LAW § CARDINAL of LAW of DATE , it is an offence for any person to take possession of an immovable property from which they have been lawfully removed .

The principal enactment in this field is ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) . Its section CARDINAL , as worded until DATE , provided as follows :

“ CARDINAL . The ORG shall be liable for the damage suffered by private persons as a result of unlawful decisions , actions or omissions by its organs and officers , committed in the course of or in connection with the performance of administrative action .

Compensation for damage flowing from unlawful decisions under [ subsection CARDINAL ] may be claimed after the decisions concerned have been annulled [ in prior proceedings ] . If the damage flows from an administrative decision which is null and void or from a act or omission which is unlawful , the nullity of the decision or the unlawfulness of the act or the omission shall be established by the court having cognisance of the claim for compensation . ”

Section CARDINAL was amended with effect from DATE and now expressly provides that juristic persons may also claim compensation under the LAW . Previously the courts construed this provision as allowing only natural persons to claim compensation ( реш. № DATE от CARDINAL октомври DATE г. по гр.д. № DATE г. , ORG , пето GPE ; тълк. реш. № CARDINAL от CARDINAL април DATE г. по гр.д. № CARDINAL г. , ORG на ВКС ) .

The general rules of the law of torts are set out in sections CARDINAL of ORG of DATE ( „ Закон за задълженията и договорите “ ) . Its section PERSON ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . Section CARDINAL provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job .

Juristic persons are not liable under section PERSON ) of the LAW , as they can not act with mens rea . They may , however , be vicariously liable under section DATE thereof for the tortuous conduct of individuals employed by them ( пост. № CARDINAL от CARDINAL декември DATE г. , GPE на ВС ) .

One of the prerequisites of the liability in tort under sections CARDINAL of the Act is the wrongfulness of the impugned conduct ( реш. № CARDINAL от CARDINAL ноември DATE г. по гр.д. ORG г. , ORG , петчленен състав ) .


The applicant is a NORP national , born in DATE and living in GPE , GPE

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

On DATE the applicant , who at about the same time took his doctor ’s degree in physics , joined ORG ( ORG ) and , when he obtained a post of senior academic teacher at ORG ( PERSON ) , attained the rank of lieutenant . During the entire period of his service the applicant worked as a teacher . He gave lectures on physics and carried out scientific research . Part of that research concerned issues considered important for national defence . He also published articles and scientific dissertations .

In DATE the applicant completed CARDINAL training courses : the first in fire prevention , the second designed for fire officers .

On an unspecified later date he achieved the rank of captain .

On DATE the applicant underwent a routine medical examination . The relevant report stated that he was permanently unfit to take part in fighting fires and emergency actions but fit to serve if he continued to work as a lecturer .

On DATE ORG opened disciplinary proceedings against the applicant on charges of insubordination ( in connection with his failure to comply with a superior ’s order ) , wilful disregard of instructions ( in that he had allowed third persons to have access to research carried out in respect of the matter of crucial importance for national defence ) and CARDINAL other breaches of discipline .

On DATE the Superintendent issued an order disciplinarily discharging the applicant from the fire service “ with effect from DATE ” . The applicant appealed to the Commandant of ORG ( ORG Państwowej PERSON ) .

On DATE the Commandant upheld the order . The applicant appealed to the Minister of the ORG ( Minister PERSON ) on DATE . He requested the Minister , inter alia , to “ quash immediately the relevant orders ” and to “ promote him and award a special prize as reward for his achievements ” .

On DATE the Minister upheld the decision to discharge the applicant from the fire service but amended the date on which it was to take effect , ordering that the material date be CARDINAL DATE .

Subsequently , on an unspecified date , the applicant appealed to ORG ( PERSON ) . He contested the decision of the Commandant of ORG of DATE and the decision of the Minister of the ORG of CARDINAL DATE , alleging that they were contrary to the law .

ORG gave judgment on DATE . It dismissed the appeal for CARDINAL principal reasons : firstly , because it had no jurisdiction to deal with disciplinary matters and , secondly , as it had found no legal flaw in the impugned decisions .

In the meantime , on an unspecified date , the applicant had sued ORG in ORG ( Sąd Rejonowy - Wydział Pracy ) , seeking reinstatement to the fire service . The court refused to deal with the merits of the claim because a discharge from the fire service did not fall within the labour courts’ jurisdiction , such matters being resolved exclusively in administrative proceedings .

The organisation of ORG , terms and conditions of service therein and detailed duties of firemen are laid down in the PERSON of DATE on ORG ( Ustawa o Państwowej PERSON ) ( as amended ) , hereafter referred to as “ the DATE LAW .

ORG in GPE is part of the national public service . From the organisational point of view , it is , like the police , incorporated into ORG . The Commandant of ORG is a public authority called a “ central organ of governmental administration ” ( centralny organ administracji rządowej ) and , like the Commandant of the Police , is subordinate to the Minister of the ORG ( section CARDINAL § CARDINAL of the CARDINAL Act ) . The Minister of the ORG not only supervises ORG but also has the power to issue ordinances or other regulations setting out the detailed organisation of fire - fighting brigades , units and their equipment ( section CARDINAL § CARDINAL of the CARDINAL Act ) .

Within the general structure of the ORG , ORG , like other emergency services , belongs to the forces for maintenance of public safety .

Section CARDINAL of the CARDINAL Act lays down the general tasks and duties of ORG . This provision reads :

“ CARDINAL . There shall be established ORG – a professional , uniformed and specially equipped formation , which shall deal with fire - fighting , disasters and other local emergencies .

ORG shall carry out the following principal tasks :

CARDINAL ) identifying fire hazards and other local emergencies ;

CARDINAL ) organising and carrying out rescue actions during fires , disasters or operations to combat local emergencies ;

CARDINAL ) carrying out supporting specialised rescue actions during disasters or operations by other emergency services to combat local emergencies ;

CARDINAL ) training staff for ORG and other organs of fire protection and the national system for the protection of the nation ;

CARDINAL ) supervising compliance with fire - safety regulations ;

CARDINAL ) carrying out research into fire prevention and protection of the nation .

Service in ORG shall be performed by fire service officials , hereafter named “ firemen ” . ”

Section CARDINAL § CARDINAL states :

“ ORG shall organise the national system of fighting fires and combating emergencies , aimed at protecting life , health , property and the environment , in particular through :

CARDINAL ) fighting fires and other disasters ;

CARDINAL ) technical rescue operations ;

CARDINAL ) chemical rescue operations ;

CARDINAL ) ecological rescue operations ;

CARDINAL ) medical rescue operations . ”

Section CARDINAL § CARDINAL sets out the following structure of ORG :

“ There shall be the following organisational units of ORG :


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

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

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

In DATE the applicant instituted proceedings in ORG of Mariupol against the Head of the local department of ORG , seeking recalculation of his pension . In his claim the applicant stated , in particular , that under LAW he was entitled to a pension equal to the amount of minimum living standard . However , his pension was lower than the standard effective at the relevant time .

On DATE the court rejected the applicant ’s claim as unfounded , stating that the amount of his pension had been determined correctly under the applicable provisions of the pension legislation . It further specified that the applicant ’s pension could not be topped up to the amount of minimum living standard as this had not been provided for in the pension legislation .

On DATE ORG upheld the decision of DATE , noting that the applicable pension legislation did not provide for an increase of the applicant ’s pension to the amount of minimum living standard .

On DATE ORG upheld the decisions of the lower courts , after finding that the applicant ’s pension had been determined in accordance with pension legislation .

The relevant domestic law is set out in the judgment case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) .


C. Russo;John Freeland;N. Valticos;R. Pekkanen

Mr PERSON , a NORP national born in DATE , worked as a physicist in research institutes whose remuneration and pension system was the same as that of the civil service .

ORG The applicant retired in DATE and receives , in addition to the statutory pension , a supplementary pension ( PERSON ) paid to him by ORG of the Federation and the Länder ( ORG und der Länder - VBL - " the ORG " ) . ORG administers a supplementary old - age pensions scheme , which enables NORP civil servants or persons with an equivalent status to receive a progressive supplementary pension .

ORG As the total of the sums paid under the general old - age pensions scheme and the civil service supplementary scheme regularly exceeded the last net civil service salary , ORG and GPE representatives reached an agreement to amend the rules governing the ORG . These amendments , which came into force in DATE , also concerned persons who were already affiliated to the supplementary scheme or in receipt of a pension thereunder .

On DATE , giving judgment in a series of test cases , ORG ( ORG ) upheld the validity of these amendments .

ORG On DATE and CARDINAL DATE the ORG calculated the sum payable to the applicant under the amended scheme with the result that his supplementary pension was reduced .

ORG The applicant appealed to ORG ( Schiedsgericht der ORG ) , challenging , inter alia , the legality of the amendments made to the rules governing the scheme .

ORG Under an arbitration agreement of CARDINAL and DATE Mr PERSON and the ORG had recognised the jurisdiction of the ORG ’s arbitration tribunals .

ORG On DATE ORG dismissed the applicant ’s appeal .

ORG On CARDINAL DATE Mr PERSON appealed from that decision to ORG of ORG ( ORG ) .

ORG On DATE ORG likewise dismissed the applicant ’s appeal finding that the reduction in his supplementary pension resulting from the amendment of the rules governing the ORG was not unlawful .

ORG On DATE the applicant lodged an appeal in ORG ( Bundesverfassungsgericht ) concerning the amendments to the ORG ’s rules made in DATE and DATE . Subsequently he also invoked other grounds .

On DATE he extended the scope of his appeal to cover the decision of ORG of DATE .

ORG Sitting as a panel of CARDINAL members , on DATE the Second Section of the First Division ( zweite Kammer des ersten GPE ) of ORG declined to accept the case for adjudication on the ground that the prospects of its succeeding were insufficient .

ORG noted that the appeal was inadmissible in so far as it raised for the first time issues of fact or of law that could have been pleaded in the ordinary courts . However , it found the remaining complaints admissible , in particular those relating to the unfair character of the proceedings in ORG and the interference with the applicant ’s right of property . As ORG had ruled on the issues of fact and law at last instance in its judgments in the test cases of CARDINAL DATE , it was not necessary to file further appeals to exhaust the remedies in the ordinary courts .

However , even in regard to the complaints declared admissible , ORG considered that the constitutional appeal lacked sufficient prospects of success . It gave the following reasons :

ORG There had been no violation of the applicant ’s right to be heard in a court ( ORG rechtlichen GPE ) . In particular there was nothing to suggest that the tribunals had not taken due account of evidence concerning the amendment of the ORG ’s rules . The decisions were essentially based on CARDINAL reports drawn up by expert commissions in DATE and DATE . It had not been necessary to take additional evidence .

ORG Even if it were accepted that pension rights came within the ambit of the constitutional right of property , there was nothing to indicate that there had been an infringement of that right . It was lawful to reduce pension rights by amending the rules which were of a private - law character .

ORG had held that the pensions under the scheme administered by the ORG were a matter of private law and this view had not been contested by the applicant . ORG had moreover regarded the old - age pensions scheme in question as a collective insurance scheme ( PERSON ) , under which only the employers were considered to be insured , the employees ( ORG ) remaining mere beneficiaries ( ORG ) . Finally , ORG had examined whether the amendment of the ORG ’s rules had respected the interests of the employees and the principle of " good faith " ( PERSON ) and had taken the view that the measure in question had checked a development that was unacceptable socially and politically and had put an end to a situation that represented a considerable departure from the aims of the supplementary pensions scheme . In its opinion , the amendment of the rules was intended to consolidate all the old - age pensions schemes in order to meet the problems arising from economic and demographical changes and was based on a decision of principle taken by the ORG and GPE representatives .

ORG concluded its reasoning in the following terms :

" This application of the civil law does not infringe any fundamental right . The objective protection afforded by the right of property is not undermined by the classification of the insurance contract as group insurance , in which the employees are mere beneficiaries , or in the assessment of their individual interests . The argument that the public interest , and notably the interest of all employees in the consolidation of their pensions schemes , called for a reform of those schemes is plausible and is in any event not open to criticism from the point of view of constitutional law . The interests of employees regarded as beneficiaries may be adequately protected by the organisations that represent them . In view of the superior interest of all civil service employees in having a sound and affordable pensions scheme , a collective defence of those interests would seem objectively appropriate , as it is the sole means of ensuring the necessary balancing of interests within the group . Whatever the case may be , the objective substance of the right of property does not require additional protection of the individual beneficiary . The same applies to the assessment of the merits of the new rules . This is based on both the principle of proportionality and the need to protect confidence in the preservation of acquired pension rights . "

Nor , it added , did the reversal of case - law by ORG , which had previously considered employees to be insured under the rules in question , interfere with the right of property , because case - law had no legislative force and could evolve .

Finally , ORG observed that the amendment of the ORG ’s rules did not breach the principle of equality before the law or that of the freedom of association . The applicant ’s doubts as to the impartiality of the arbitrators were not relevant as the latter were not members of the judiciary , but sat on private - law arbitration tribunals .

ORG The decision was notified to the applicant on DATE .

ORG In DATE that followed the lodging of the applicant ’s appeal in DATE , LAW dealt with CARDINAL cases concerning the compatibility of the new rules of ORG with LAW ) . Other appeals were lodged with it relating , inter alia , to redundancy notices served on employees ( decision of CARDINAL DATE ) , an employer ’s right to lock out strikers ( decision of CARDINAL DATE ) and the appeals filed by former civil servants of GPE challenging a provision of the LAW on German ORG which terminated the employment contract of CARDINAL persons ( decision of DATE ) .

ORG Article CARDINAL para . CARDINAL of LAW ) provides as follows :

" The ORG shall rule :

ORG ( a ) on constitutional appeals which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under LAW ( CARDINAL ) , CARDINAL , DATE , CARDINAL , CARDINAL and ORG [ of LAW ] . "

ORG The composition and functioning of ORG are governed by ORG ( PERSON über das Bundesverfassungsgericht ) .

ORG Sections DATE of that Act concern constitutional appeals lodged by individuals ( see paragraph CARDINAL above ) . At the material time the version adopted in DATE ( applicable with effect from DATE ) was in force .

" CARDINAL . ORG Any person who claims that one of his basic rights or one of his rights under LAW ( CARDINAL ) , CARDINAL , DATE , CARDINAL , CARDINAL and ORG of LAW has been violated by public authority may lodge a complaint of unconstitutionality with ORG .

ORG If legal action against the violation is admissible , the complaint of unconstitutionality may not be lodged until all remedies have been exhausted . However , ORG may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant .

" The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed . "

" A complaint of unconstitutionality shall require acceptance prior to a decision ( Annahme zur Entscheidung ) . "

" ( CARDINAL ) ORG A section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if

ORG the complainant has not paid the required advance at all ( section CARDINAL ( CARDINAL ) ) or has not paid it on time ,

ORG the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons , or

ORG the division is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of section CARDINALc below .

The order shall be final .

( CARDINAL ) ORG The section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because ORG has already decided on the relevant question of constitutional law ...

( CARDINAL ) ORG The decisions of the section shall be taken without oral pleadings . In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused , it is sufficient to refer to the legal aspect determining the refusal . "

" If the section neither refuses acceptance of a complaint of unconstitutionality nor upholds it , the division shall then decide on acceptance . It shall accept the complaint of unconstitutionality if CARDINAL judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant . Section PERSON ( CARDINAL ) above shall apply mutatis mutandis . "

Section CARDINAL provides for the right of third parties to be heard in appeal proceedings in ORG .

" CARDINAL . ORG If the complaint of unconstitutionality is upheld , the decision shall state which provision of LAW has been infringed and by which act or omission . ORG may at the same time declare that any repetition of the act or omission complained of will infringe LAW .

ORG If a complaint of unconstitutionality against a decision is upheld , ORG shall quash the decision and in cases pursuant to the first sentence of LAW ) above it shall refer the matter back to a competent court .

ORG If a complaint of unconstitutionality against a law is upheld , the law shall be declared null and void . The same shall apply if a complaint of unconstitutionality pursuant to paragraph CARDINAL above is upheld because the quashed decision is based on an unconstitutional law ... "

ORG LAW was subsequently amended with a view to reducing the court ’s workload . The amendments adopted in DATE ( which entered into force on DATE ) , among other things , reorganised the procedure for individual appeals ( section CARDINALa-CARDINALd of the CARDINAL LAW ) .