Violation of Art. 5-4;Violation of Art. 6-2;Violation of Art. 6-1 (impartial tribunal);Not necessary to examine Art. 6-1 (procedural unfairness);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE , at TIME , CARDINAL individuals robbed a gambling house in Liptovský Mikuláš . They were masked with stockings pulled over their heads and entered the club after closing time . They forced the last remaining employee to hand over cash and a stock of cigarettes by threatening him with a starting pistol and an electric paralyser .

On DATE , after TIME , the police detained and subsequently charged the applicant and his former classmate and friend , NORP , with armed robbery within the meaning of LAW § LAW b ) of LAW ( ORG ) . The applicant who was assigned an ex officio lawyer did not appeal against the charge .

At his first interrogation NORP confessed to having committed the robbery together with the applicant and gave all relevant details . The applicant only confessed to having planned and prepared the robbery . According to him he had withdrawn from the plan at TIME because he had become anxious . He had driven NORP to the scene and had agreed to wait for him in a place agreed upon , but NORP had not come to that place .

NORP In his subsequent interrogation before a judge of FAC súd ) the applicant repeated the above version . He did not know the person who had committed the robbery with NORP and had no explanation as to why NORP wished to inculpate him . The applicant added that he had a debt which he intended to pay off from the proceeds of the planned robbery . He and NORP had previously wanted to burgle a holiday cottage , but had abandoned the idea after a light had gone on inside . The applicant also stated that he was a self - employed entrepreneur and could settle his debt using money from his business or obtained from his father .

On DATE ORG remanded the applicant in detention . Testimonies of NORP and a witness and other evidence provided a basis for a strong suspicion against the applicant . Even assuming that he had not taken part in the robbery as such , his involvement had in any event amounted to the offence of aiding and abetting under LAW ( c ) of the ORG . As the motive of his actions was his need to obtain money to pay off his debt , it could be presumed that , if released , the applicant would carry on his criminal activities to achieve that objective . This rendered his detention justified under LAW ( c ) of LAW ( ORG ) . On DATE ORG corrected clerical errors in the decision .

The applicant filed a complaint ( sťažnosť ) against his detention arguing that he had no previous convictions and that the weapon had been used by NORP

On DATE ORG ( Krajský súd ) dismissed the applicant ’s complaint observing that the testimony of NORP and documentary evidence justified the suspicion that the applicant had been at least an accomplice to the robbery . It was true that he had no previous convictions but , at the same time , it was clear from his own submissions that his objective was to obtain money to discharge his debt . The reasons for detaining him , as established by ORG , were therefore valid .

On DATE the applicant discharged his lawyer and appointed a new CARDINAL .

On DATE the applicant was indicted to stand trial in ORG on charges of conspiracy and robbery ( Articles CARDINAL § CARDINAL and CARDINAL § § CARDINAL and CARDINAL ( b ) of the ORG ) .

On DATE the applicant ’s new lawyer lodged a petition for the applicant ’s release . He relied on extracts from the applicant ’s accounting books and argued that the recent profits of his business were sufficient to settle the applicant ’s debt . There was therefore no need to detain him .

On DATE ORG informed the applicant that a request for his release had been submitted on his behalf by a lawyer but that it could not be processed because the lawyer had not shown that he had a valid power of attorney from the applicant . On DATE the previous lawyer informed ORG that his power of attorney had been terminated and that the applicant had new legal representation .

On DATE ORG held a private session ( neverejné zasadnutie ) to examine the petition of DATE for the applicant ’s release . The session was attended by a public prosecutor , but neither the applicant nor his lawyer was present . ORG dismissed the petition . It referred to a previous statement by the applicant according to which it was the applicant who had proposed to NORP that they should find a way to obtain money . The fact that the applicant had income from his business was not new . However , the information submitted by him as to the amount of his earnings was inconsistent and had no impact on the necessity to keep him in detention .

On DATE the applicant complained of the decision of CARDINAL July CARDINAL to ORG . He argued that at the time of his remand he had not had detailed information about his financial situation . He now had such information and it showed that his financial standing had improved and was better than expected .

On DATE ORG held a private session to decide on the applicant ’s complaint . It was attended by the prosecutor but not by the applicant and his lawyer . ORG dismissed the complaint . It considered that the concern that the applicant might commit further offences was still justified . He had a debt which he could not repay and the evidence available indicated that this was the reason why he and NORP had decided to carry out the robbery . As for the extracts from the accounting books which he had submitted , it could not be established whether they related to the business of the applicant or his father ’s .

On DATE ORG held a hearing ( hlavné pojednávanie ) in the case . It took evidence from the applicant and NORP and examined depositions of CARDINAL witnesses .

The applicant again petitioned for release arguing that he had sufficient means to pay off his debt and that the initial reason for detaining him therefore no longer existed . His petition was dismissed as the court found no new relevant facts which would invalidate the reasons for the applicant ’s detention as set out in the earlier decisions .

The hearing was adjourned until DATE in order to await a judgment of the ORG nad ORG in a different criminal trial against NORP

On DATE the applicant filed a complaint against the dismissal of his petition for release . He argued that the courts had not convincingly refuted his argument that he had sufficient means to settle his debt . The applicant further complained of a violation of his right to be presumed innocent in that in their previous decisions the courts had expressed the view that he had committed the robbery despite the fact that he had not yet been convicted .

On DATE ORG held a private session to consider the applicant ’s complaint . It was attended by the prosecutor in the absence of the applicant and his lawyer . ORG dismissed the complaint holding that :

“ The accused was indicted for complicity in robbery ... The evidence which has been taken so far has proved that the accused ORG committed that offence as he needed money to pay off his debts ( “ ... bolo preukázané , že obžalovaný GPE uvedeného trestného činu dopustil sa z dôvodu , že potreboval peniaze ... ” ) . On this basis the authorities dealing with the case established that [ the applicant ’s ] detention was necessary within the meaning of LAW ( c ) of LAW , as the specific fear persisted that the accused would continue criminal activities in case of his release .

Having examined the challenged decision and the reasons for the complaint against it , ORG [ considers ] that the danger still exists that the accused will continue committing offences in case of his release regardless of his argument that his financial situation has improved and that he can pay off the debt . ORG reached this conclusion also having regard to the fact that the accused had been tried by ORG in ORG on DATE and ORG in Liptovský Mikuláš adjourned the hearing only because the judgment of [ DATE ] had not become final and [ ORG in Liptovský Mikuláš ] may be required to impose a consolidated penalty . The above thus shows that the accused has a tendency to commit offences regardless of his financial situation . The risk that , if released , he may continue to commit further offences with a view to obtaining financial means therefore still persists .

The way in which the offence was committed also indicates the extent to which the accused is corrupt . This confirms the conclusion that he could commit further offences . ”

On DATE ORG held another hearing following which , on DATE , it found the applicant guilty as charged and sentenced him to CARDINAL half years’ imprisonment .

ORG noted that , at the pretrial stage of the proceedings , the applicant had admitted that he had come up with the idea of illegally obtaining money and that with NORP they had explored the possibilities of doing so . At that time he had claimed that he had participated in preparing the robbery but had finally abandoned the idea of carrying it out . However , at the hearing , the applicant had changed his testimony and alleged that he had informed NORP beforehand that he would not participate in the crime .

ORG also noted that NORP had described in detail how the offence had been committed . According to him the initiative to steal money had come from the applicant and the applicant had actually carried out the robbery with him . This version of facts was supported by other evidence , in particular by the statements of the employee of the club and CARDINAL other witnesses . It was corroborated by police reports concerning the discovery of weapons and other items connected with the robbery and the booty . ORG found no grounds to disbelieve the version of NORP The applicant ’s version was however not supported by any evidence and was thus unreliable .

NORP The applicant appealed . He argued that the first - instance court had failed to establish adequately the relevant facts and to give convincing reasons for its conclusion . In particular it had relied exclusively on the statements of NORP and had given no relevant reasons for rejecting the applicant ’s version . There was no evidence showing that the applicant had actually committed the robbery and ORG had failed to address his argument that there were inconsistencies in the submissions of NORP

On DATE ORG dismissed another request for release lodged by the applicant .

On DATE the applicant complained about the decision of DATE and challenged the judges of ORG dealing with his case . He contended that in the above decision of DATE they had expressed the view that the applicant had a tendency to commit offences and , in that connection , referred to the judgment of the ORG nad ORG of DATE . That judgment , however , concerned NORP and not the applicant . According to the applicant , in the circumstances , the impartiality of ORG judges was open to doubt .

On DATE , under LAW of the ORG , a different chamber of ORG found that the CARDINAL ORG judges dealing with the applicant ’s case were not biased . It acknowledged that the reference in the decision of CARDINAL October CARDINAL to the judgment of DATE was a mistake . However , that mistake had no impact on the determination of the charges against the applicant .

On DATE ORG modified the first - instance judgment in that it reduced to DATE the sentence imposed on the applicant . The chamber of ORG was composed of the same judges who had delivered the decision of DATE .

In its judgment ORG addressed the applicant ’s arguments . It found no discrepancy in the relevant part of the statements of NORP indicating that he had committed the offence together with the applicant . Relying on the contents of the case file , ORG upheld the conclusion that the applicant had initiated the offence and that he had committed it together with NORP

On DATE ORG dismissed the applicant ’s complaint against the decision of DATE . It noted that the applicant ’s conviction had become final and that he was to start his sentence . In any event , at the relevant time the applicant ’s detention under LAW ( c ) of the ORG had been justified .

On DATE the ORG released the applicant on parole .

Article CARDINAL provides that international instruments on human rights and freedoms ratified by GPE and promulgated under statutory requirements have precedence over national laws , provided that they guarantee greater constitutional rights and freedoms .

Under ORG case - law ( see , for example , the decision of DATE , file no . I. ÚS CARDINAL ) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the LAW and with international treaties . Accordingly , the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the LAW or international treaties .

Pursuant to LAW no one shall be prosecuted or deprived of their liberty except for reasons and in a manner provided for by law .

Under LAW any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law .

Article QUANTITY criminal complicity . Pursuant to that provision if a criminal offence has been committed by a common action of CARDINAL or more individuals , each of them is criminally liable as if he or she committed the offence alone .

The offence of robbery is defined in LAW . It provides that anyone who uses violence or a threat of immediate violence against another with the intention to take hold of someone else ’s property is to be punished by imprisonment of DATE ( § CARDINAL ) . Imprisonment of DATE applies if a weapon is used ( § CARDINAL ( b ) ) .

DATE lays down fundamental principles of criminal proceedings . Pursuant to its paragraph CARDINAL a person against whom the proceedings are conducted can not be considered guilty until convicted by a final judgment of a court of law .

Basic legal rules concerning exclusion of judges are encompassed in LAW . Judges should be excluded from taking part in steps in criminal proceedings if their impartiality is open to doubt on account of their link to the subject - matter of the proceedings , the persons directly concerned , the legal representatives or the prosecuting authorities involved ( paragraph CARDINAL ) . After the bill of indictment ( obžaloba ) is lodged , judges should be excluded who at the pre - trial stage of the proceedings took part in deciding on the detention of the indicted person ( paragraph CARDINAL ) .

Article CARDINAL governs the procedure on exclusion of biased judges . If judges themselves declare that they are biased , the question of their exclusion is to be resolved by a chamber of a superior court ( paragraph CARDINAL ) . In other situations the question of exclusion is to be decided by the body concerned ( paragraph CARDINAL ) . If ORG sits as a court of appeal , the exclusion of its judges is to be determined by a different chamber of the same court ( paragraph CARDINAL ) .

Detention on remand is governed by the provisions of Articles CARDINAL et seq . A person charged with a criminal offence ( obvinený ) can be detained inter alia when there are reasonable grounds for believing that he or she would continue criminal activity , complete an attempted offence or commit an offence which he or she prepared or threatened to commit ( LAW ) ) .

Article CARDINAL § CARDINAL provides that a person can be remanded in custody only after he or she has been charged . The detention order

Under LAW an investigator , a prosecutor or a judge has to examine at every stage of the criminal proceedings whether the reasons for detention persist . When the reasons for detention fall away , the detainee has to be released immediately .

Private sessions ( neverejné zasadnutie ) of courts in criminal matters are governed by the provisions of LAW . LAW stipulates that decisions are to be taken in private if the law does not envisage their being taken at a hearing ( hlavné pojednávanie ) or in a public session ( verejné zasadnutie ) .

Pursuant to Article CARDINAL the president of the chamber notifies the public prosecutor that the court is to hold a private session as a rule DATE in advance .

Under Article CARDINAL a private session requires the permanent presence of all members of the court ’s chamber and of a TIME recorder ( paragraph CARDINAL ) .

Until DATE , unless the law provided otherwise , the presence of the public prosecutor at a private session was possible but not obligatory ( paragraph CARDINAL ) . As from DATE this provision was abolished by virtue of Act No . PERSON .

The presence of any other person at a private session is excluded ( former paragraph CARDINAL , now paragraph CARDINAL ) .

Under LAW , natural persons have the right to protection of their personality rights ( personal integrity ) , in particular their life and health , civil and human dignity , privacy , name and personal characteristics .

Under LAW , natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated . They also have the right to appropriate just satisfaction .

Article CARDINAL § CARDINAL provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because the injured party ’s dignity or social standing has been considerably diminished , the injured party is also entitled to financial compensation for non - pecuniary damage .

In an action of DATE a married couple asserted a claim against ORG for financial compensation for non - pecuniary damage caused to them by detention on remand and criminal proceedings against them , which ended with their acquittal . The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary .

The action was examined on appeal by ORG under file number CARDINALCo CARDINAL/CARDINAL . In its judgment of DATE the court interpreted the claim as a claim for protection of personal integrity under LAW . It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness . Relying on the judgment of ORG of DATE file number ORG DATE , the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal . The court also addressed briefly the length of the GPE detention and concluded that it had not been excessive . The above claim was thus not accepted , unlike other claims made in the same action ( compensation for lost profit , legal costs and infringement of the presumption of innocence ) .

Further details concerning protection of personal integrity under LAW seq . of LAW are summarised in GPE v. GPE ( ( dec . ) , no . CARDINAL , DATE ) .

Article CARDINAL defines the jurisdiction of the ordinary courts . Pursuant to its first paragraph , unless jurisdiction is conferred by statute on other authorities , the ordinary courts examine and decide upon matters stemming from relations under civil law , labour law , family law , the law of cooperatives , and commercial law . Under paragraph CARDINAL , other matters may be examined and decided upon by the ordinary courts only if a statute so provides .

Under the terms of LAW are bound , inter alia , by the decisions of the competent authorities that a criminal offence has been committed and by whom ( paragraph CARDINAL ) . Other questions which normally fall to be decided by other authorities can be decided by a civil court . However , if the competent authorities decided upon such a question , the civil court will adopt their decision ( vychádza z ich rozhodnutia ) .

The Act lays down rules for ORG liability for damage caused by unlawful decisions ( Part ( Časť ) One ) and wrongful official conduct ( Part CARDINAL ) .

NORP The general scope of State liability for damage caused by unlawful decisions is defined in LAW . Pursuant to this provision the ORG is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings . However , decisions concerning detention and sentencing are excluded .

Special rules concerning ORG liability for damage caused by decisions on detention are embodied in sections CARDINAL et seq . The ORG is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted ( section CARDINAL ( CARDINAL ) ) .

Section CARDINAL ( CARDINAL ) renders the ORG liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions .

A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority , quantifies its amount , and shows that there is a causal link between the damage and the wrongful act in question .

The LAW does not allow for compensation for non - pecuniary damage unless it is related to a deterioration in a person ’s health ( for further details , see PERSON v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) .


The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the Court by PERSON of ORG , solicitors practising in GPE , GPE .

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

The applicant ’s father ( ORG ) and mother were not married when he was born and did not subsequently marry . ORG did not have any other children . ORG died intestate on DATE , leaving an estate with a net value of GPE CARDINAL .

On DATE the applicant ’s solicitor wrote to the solicitor acting for ORG ’s parents pointing out that the applicant was ORG ’s son and noting that in DATE had paid a lump sum to the applicant ’s mother in response to her maintenance requests . The applicant ’s solicitor requested a declaration recognising ORG as the applicant ’s father . It was accepted that under NORP law the applicant could not , as a child born outside wedlock , inherit on his father ’s death intestate ( ORG v. S ( DATE ORG CARDINAL ) ) . However , he wished to complain to this ORG about that unequal treatment and , in default of receiving the requested declaration , the applicant would issue proceedings to obtain a declaration of paternity from the courts . In DATE the applicant ’s solicitor received a negative response to his request .

Letters of administration were granted to the deceased ’s brother on CARDINAL DATE .

On DATE the applicant ’s solicitor wrote to the Chief State Solicitor requesting a declaration recognising that the applicant was ORG ’s son so that the applicant could take a case to this ORG about the differing treatment on intestacy of children , in default of which the applicant would issue proceedings . On DATE the Chief State Solicitor responded that according to section CARDINAL of LAW DATE ( “ the DATE LAW ) the Attorney General , for whom the Chief State Solicitor acted , could only be introduced to the proceedings by way of court order without which the Attorney General had no role in the matter .

On DATE the applicant issued proceedings in ORG against ORG ’s mother and against the Attorney General . He claimed that his inability to inherit on intestacy was discriminatory and that he was desirous of bringing proceedings before ORG . He sought a declaration , pursuant to section CARDINAL of the DATE LAW pursuant to the equitable jurisdiction of the ORG , to the effect that ORG was his father . In DATE an order was made striking out the applicant ’s claim against the Attorney General and identifying the Administrator of ORG ’s estate as the sole appropriate defendant .

By letter dated DATE to the Chief State Solicitor , the applicant put the Attorney General on notice that the terms of any declaration of parentage would be relied on by him in an application before this ORG .

On DATE the applicant issued amended proceedings in accordance with the court order of DATE .

The applicant was unsuccessful before ORG and appealed to ORG . In DATE ORG ordered that blood samples be taken from the applicant and from ORG ’s mother and brother . The matter was finally heard on DATE and , by judgment delivered on DATE , ORG declared , pursuant to section CARDINAL of GPE and to its equitable jurisdiction , that ORG was the father of the applicant . It ordered the Administrator of the estate of ORG to pay to the applicant the costs of the proceedings .

At common law , an “ illegitimate ” child had no succession rights to either of his parents . The Legitimacy Act DATE gave an “ illegitimate ” child and his mother limited reciprocal succession rights on the other ’s intestacy . LAW DATE did not change the position .

Section CARDINAL of the DATE Act provided that the estate of a deceased is to be distributed in specified portions between any surviving spouse or “ issue ” . By judgment of DATE ( ORG v. S ( DATE ORG CARDINAL ) ) , ORG found that the word “ issue ” did not include children who were not the issue of a lawful marriage , the latter having therefore no right to inherit on the intestacy of a natural parent . It also found that sections CARDINAL and CARDINAL of the CARDINAL Act did not infringe the principle of equality guaranteed by LAW ) of LAW .

The CARDINAL Act was enacted on DATE and came into force on DATE . The purpose of this legislation was to equalise the rights of children whether born within or outside marriage and Part V of the DATE Act makes the relevant amendment to the law relating to , inter alia , succession on intestacy . Upon the death intestate of a parent , a non - marital child would have the same intestacy rights as a child born to married parents . Section CARDINAL(CARDINAL ) of the DATE Act makes it clear that the changes to the rights of inheritance on intestacy of children brought about by the DATE Act “ shall not affect any rights under the intestacy of a person dying before the commencement of Part V ” of LAW .


Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE . She had been working as a geriatric nurse for ORG für ORG ( hereinafter referred to as “ NORP ” ) , a limited liability company specialising in health care , geriatrics and assistance to the elderly which is majority - owned by ORG , from DATE until DATE , when she was dismissed .

NORP Since DATE the applicant had been working in a geriatric nursing home operated by ORG , where the patients were partly bedridden , disorientated , and generally dependent on special assistance . In DATE ORG ( GPE ORG , hereinafter referred to as “ MDK ” ) established serious shortcomings in the DATE care provided there , caused by a shortage of staff .

DATE and DATE the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties . They specified the deficiencies in the care provided and also mentioned that services were not properly documented . In a notification dated CARDINAL DATE the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages . From CARDINAL DATE onwards the applicant repeatedly fell ill and was sometimes unable to work . CARDINAL medical certificate stated that this was the result of overworking .

NORP In DATE , following a further inspection , the MDK , established serious shortcomings in the care provided , on grounds of , inter alia , staff shortages , inadequate standards and unsatisfactory care as well as inadequate documentation of care , and accordingly threatened to terminate the service agreement with the applicant ’s employer . Subsequently , restructuring took place .

Following a number of further notifications to her superiors explaining the situation , in particular in DATE , the applicant again fell ill and finally consulted a lawyer .

In a letter dated DATE the applicant ’s legal counsel wrote to the ORG management . He pointed out that , on account of the lack of staff , the ORG basic hygienic care ( ausreichende hygienische GPE ) could no longer be guaranteed . He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for . He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation , with all its negative implications . He gave the management until DATE to respond .

On DATE the MDK again visited the premises without prior notice . It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation , although difficult , was not critical .

On DATE the management rejected the applicant ’s accusations .

On DATE the applicant ’s lawyer lodged a criminal complaint against ORG for aggravated fraud and its relevant legal aspects . He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to ORG which had not brought any improvements in the care provided . It was argued that , owing to the lack of staff and the inadequate standards , her employer knowingly failed to provide the high - quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk . He also alleged that ORG had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered . The applicant ’s complaint referred to the report produced by the MDK following their visit in DATE , and stated that she would be willing to attest to the bad conditions at the nursing home . It further included statements by the applicant concerning overworking and referred to TIME of a team meeting advising ORG staff , in order to avoid disciplinary consequences , not to disclose staff shortages and time pressures to patients and their relatives . The criminal complaint included the following passage :

“ The company ORG , which has financial difficulties and is aware of this , has deceived family members , because the care provided does not in any way correspond to or justify the fees paid . PERSON is therefore enriching itself and accepts the inadequacy of the medical and hygienic care . ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems . Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions ; therefore considerable damage is at issue . ”

On DATE the applicant ’s lawyer also contacted the board of directors of the applicant ’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards .

On DATE ORG discontinued the preliminary investigations against NORP pursuant to LAW domestic law and practice ” below ) .

By a letter dated DATE the nursing home dismissed the applicant , on account of her repeated illness , with effect from DATE . The applicant challenged the dismissal before ORG ( file No . CARDINAL Ca CARDINAL/CARDINAL ) .

Subsequently , the applicant contacted friends and also her trade union , PERSON ( ver.di ) . On DATE they issued a leaflet headed as follows :

“ ORG wants to intimidate colleagues ! !

Not with us !

Immediate revocation of the dismissal of our colleague PERSON who used to work at ORG for Senior Citizens

Call for the foundation of a non - party solidarity group ”

The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness . It further stated as follows :

“ Let ’s answer back at last ... The insanity that private operators , together with the GPE ORG / ORG , are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment . ... This is more than just a dismissal ! This is a political disciplinary measure taken in order to gag employees ... ”

On DATE the applicant sent CARDINAL such leaflet by fax to the residential home , where it was distributed . Only then did LOC become aware of the applicant ’s criminal complaint .

On DATE the applicant ’s employer gave her the opportunity to make a statement regarding the leaflet ; the applicant declined to do so , however . On DATE Vivantes informed the works council that it intended to dismiss the applicant without notice . On DATE the works council declared that it would not agree to the applicant ’s dismissal .

On DATE the applicant ’s employer dismissed her without notice or , alternatively , by DATE on suspicion of having initiated the production and dissemination of the leaflet .

A new leaflet was subsequently issued reporting on this dismissal ; in addition , the situation was reported in a TV programme and in CARDINAL articles published in different newspapers .

On DATE the preliminary investigation proceedings against ORG were resumed by ORG at the applicant ’s request .

On DATE the applicant lodged a claim with ORG ( file no . DATE Ca CARDINAL/CARDINAL ) against her dismissal without notice of CARDINAL DATE .

On DATE the applicant ’s former employer issued a further notice of dismissal . The applicant ’s claim of CARDINAL DATE was then extended accordingly .

On CARDINAL DATE the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against ORG . The preliminary proceedings were again discontinued on DATE pursuant to LAW .

By a judgment of CARDINAL DATE ( file No . DATE Ca CARDINAL/CARDINAL ) ORG ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal of DATE since this could not be justified under LAW ( ORG ) or section CARDINAL(CARDINAL ) of LAW ( GPE - see “ Relevant domestic law and practice ” below ) . In this connection it found that the leaflet – the content of which was attributable to the applicant , since she had transmitted it to her employer without any further declaration DATE was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract . Although it was polemical , it had been based on objective grounds and had not upset the “ working climate ” in the nursing home .

Following a hearing on DATE , ORG ( PERSON ) , by a judgment of the same date , quashed the judgment of ORG and found that the dismissal of CARDINAL DATE had been lawful as the applicant ’s criminal complaint had provided a “ compelling reason ” for the termination of the employment relationship without notice under LAW and had made continuation of the employment relationship unacceptable . It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since , in particular , merely referring to the shortage of staff was not sufficient to enable her to allege fraud , and since she had failed to further specify the alleged instruction to falsify records , which was also evidenced by the fact that the public prosecutor had not opened an investigation . ORG further held that the criminal complaint amounted to a disproportionate reaction to the denial by ORG of any staff shortages , since the applicant had never attempted to have her allegation of fraud examined internally and since , moreover , she had intended to put undue pressure on her employer by provoking a public discussion of the issue . It also pointed out that the nursing home was under the supervision of the MDK , which had carried out a further inspection there on DATE , shortly before the applicant had lodged her complaint . She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary . The court , referring also to the principles established by ORG in its relevant case - law ( see “ Relevant domestic law and practice ” below ) , concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer .

On DATE ORG ( Bundesarbeitsgericht ) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law .

By a decision of DATE , which was served on the applicant on DATE , ORG refused , without stating further reasons , to accept her constitutional complaint for adjudication .

Apart from specific legislation with respect to civil servants exposing suspected cases of corruption , NORP law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions , such as illegal conduct on the part of the employer , by an employee ( “ whistle - blowing ” ) and discussions on related draft legislation have for the time being not produced any results .

In the absence of such specific legislation , an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on LAW , which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “ compelling reason ” ( wichtiger PERSON ) . Facts must be present on the basis of which the party giving notice can not reasonably be expected to continue the employment until DATE to the agreed end of that relationship , taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract .

Section CARDINAL(CARDINAL ) of LAW provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified . Under LAW ) of the LAW , termination is socially unjustified unless it is , inter alia , based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise .

In a decision of DATE ( file No . CARDINAL BvR CARDINAL/CARDINAL ) ORG ruled in a case where , at the request of the public prosecutor , an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio . ORG held that , in accordance with the rule of law , the discharge of a citizen ’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law . ORG further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative , the rule of law required that such exercise of a citizen ’s right would , as a rule , not justify dismissal without notice , unless the employee had knowingly or frivolously reported incorrect information .

In the light of ORG case - law , ORG , in a judgment of DATE ( file No . CARDINAL AZR CARDINAL ) , further elaborated on the relation between an employee ’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights . It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under LAW . An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings . It held , however , that , taking into consideration the employee ’s duty of loyalty , a [ criminal ] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer ’s conduct . Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint , the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise . In this context the employee ’s motives for lodging the complaint were of particular significance . A complaint that was lodged solely to cause damage to the employer or to “ wear him or her down ” could constitute a disproportionate reaction depending on the charges underlying the complaint . As regards the possibility of previous internal clarification of the allegations , the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee . It would not be expected if the latter had obtained knowledge of an offence which , if he or she failed to report it , would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself . In addition , previous internal clarification of the matter was not required if redress could not legitimately be expected . If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice , the latter was no longer bound by a duty of loyalty towards his employer .

Article CARDINAL of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings :

“ ( CARDINAL ) If the investigations offer sufficient reason for bringing public charges , the public prosecution office shall submit a bill of indictment to the competent court .

( CARDINAL ) In all other cases the public prosecution office shall terminate the proceedings . The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him ; the same shall apply if he has requested such notice or if there is a particular interest in notifying him . ”

In its LAW ( DATE ) on the protection of “ whistle - blowers ” ORG of ORG stressed the importance of “ whistle - blowing ” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability , and bolster the fight against corruption and mismanagement , both in the public and private sectors . It invited all member GPE to review their legislation concerning the protection of “ whistle - blowers ” , keeping in mind the following guiding principles :

ORG . the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts , including all serious human rights violations which affect or threaten the life , health , liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers , or as shareholders , employees or customers of private companies ;

GPE . the legislation should therefore cover both public and private sector whistle - blowers ... , and

ORG . it should codify relevant issues in the following areas of law :

employment law – in particular protection against unfair dismissals and other forms of employment - related retaliation ; ...

This legislation should protect anyone who , in good faith , makes use of existing internal whistle - blowing channels from any form of retaliation ( unfair dismissal , harassment or any other punitive or discriminatory treatment ) .

Where internal channels either do not exist , have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle - blower , external whistle - blowing , including through the media , should likewise be protected .

CARDINAL.CARDINAL.CARDINAL . Any whistle - blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true , even if it later turns out that this was not the case , and provided he or she did not pursue any unlawful or unethical objectives . ”

The above guidelines were also referred to in ORG related Recommendation DATE ( DATE ) .

DATE Revised European Social Charter reads as follows :

“ With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment , the Parties undertake to recognise : ...

a ) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking , establishment or service ; ...

The Appendix to LAW :

“ CARDINAL . For the purpose of this article the following , in particular , shall not constitute valid reasons for termination of employment : ...

c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities ; ... ”

LAW has been ratified by CARDINAL of ORG member GPE . GPE has signed but not yet ratified LAW .

DATE ( ILO Convention No . CARDINAL of CARDINAL DATE ) stipulates :

“ The following , inter alia , shall not constitute valid reasons for termination : ...

( c ) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities ; ... ” .

GPE has not ratified ORG No . CARDINAL .

A number of other international instruments address the protection of whistle - blowers in specific contexts , in particular the fight against corruption , such as ORG ’s LAW or LAW .


The applicant , Mr Per - Runo Hurtig , is an NORP national , who was born in DATE and lives in Hammerdal . He was represented before the ORG by PERSON , a lawyer practising in GPE .

The applicant retired on DATE . On DATE he applied for the first time for disability benefits under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE Act ” ) . Claiming that he was in need of assistance and had extra expenses due to problems with the urine tract , the intestines and the back , he requested a disability allowance as from DATE . By a decision of DATE ORG ( försäkringskassan ; hereinafter “ the Office ” ) of GPE rejected the application , finding that the applicant 's needs or costs were not such as to make him eligible for disability benefits . The applicant appealed , and by judgments of DATE and DATE , respectively , ORG ( länsrätten ) of GPE ( kammarrätten ) in GPE upheld the ORG 's decision . On DATE ORG ( PERSON ) refused leave to appeal .

The applicant applied anew in DATE . The ORG dismissed the application on DATE and ORG dismissed the appeal on DATE , both without an examination on the merits , finding that the matter had already been finally determined .

A third application was lodged by the applicant , assisted by legal counsel , on DATE . He submitted a medical certificate issued on DATE by Dr PERSON , chief physician at FAC hospital , which purportedly indicated that his need of assistance existed already in DATE , i.e. before he retired . He also claimed that he had needs and costs which he had failed to state in the earlier proceedings . The third application should thus be examined on the merits , as the previous ones had been determined on insufficient evidence .

By a decision of DATE the ORG again dismissed the case without an examination on the merits , finding that the matter was res judicata due to the earlier court examination .

On DATE , upon appeal , ORG quashed the ORG 's decision , finding that , as the applicant had invoked new circumstances , his application should be examined on the merits under LAW .

On DATE the ORG rejected the application , finding that the applicant 's needs or costs due to the impairment that had occurred before DATE were not such as to make him eligible for disability benefits .

The applicant appealed on DATE and requested ORG to hold an oral hearing during which PERSON should be heard . He also wished to present his own submissions orally .

The applicant has claimed that he was contacted by the court in DATE . Allegedly , the court suggested that a hearing could be held on DATE but later stated that it had been postponed . No evidence of these contacts has been submitted , however .

By a judgment of CARDINAL DATE ORG decided that an oral hearing was not necessary . It further rejected the appeal against the ORG 's decision on disability benefits , agreeing with the reasoning given by the ORG . In regard to the request for a hearing , the court noted that PERSON had been furnished with a copy of the ORG 's investigation and had stated that he had no objections to the ORG 's assessment .

The applicant appealed to ORG and complained about the lack of an oral hearing before ORG . He maintained , inter alia , that , before examining the case , that court should have given him an opportunity to make further submissions in the case .

On DATE ORG refused the applicant leave to appeal . On DATE ORG ( Regeringsrätten ) also refused him leave to appeal .

According to chapter CARDINAL , section CARDINAL of LAW , a person who is ill or handicapped is entitled to disability benefits , provided that , before reaching DATE , he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses . The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation . It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG .

The procedure in the administrative courts is governed by the provisions of ORG , ORG ; 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 , unless it is unnecessary or there are 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 section CARDINAL , 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 ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in PERSON .

NORP By letter dated DATE , ORG ) informed the applicant that its representative would come to his home on CARDINAL DATE to attach property to secure his tax debts amounting to ORG ( approximately EUR CARDINAL,CARDINAL ) . It noted that he had previously been informed about his debts but that , since he had not paid , an attachment would be carried out . It is not known when the letter was sent or when the applicant received it .

On DATE ORG attached SEK CARDINAL ( approximately EUR CARDINAL ) from a bank account belonging to the applicant . A document called LAW ( bevis om utmätning ) was sent to the applicant confirming this and advising him how to go about appealing against the decision and that this had to be done within DATE from the date that the decision was served on him . The applicant , who was on holiday at the time , did not receive ORG until he returned home on DATE and was formally served the decision .

In a decision of CARDINAL DATE ORG distributed and paid the attached money to the creditor , in this case , the ORG itself . The decision was open to appeal within DATE from the date of the decision .

On DATE the applicant requested ORG to rectify ( besluta om rättelse ) the decision concerning attachment as he considered it to be incorrect . ORG , in a decision of DATE , rejected the applicant ’s request for rectification on the ground that it had been submitted too late . It further stated that it was not possible to appeal against the decision in that part and that , as regarded its other decisions , appeals were possible within the time - frames of which the applicant had previously been notified .

NORP On DATE the applicant appealed against the attachment decision to ORG ( tingsrätten ) of GPE . He mainly objected that ORG had not sufficiently taken into account , and made deductions for , the need to cover his basic living expenses .

In a comment ( yttrande ) by ORG in connection with the appeal , it stated that the appeal had been made within the stated time - limit but that , since the decision as regards the distribution and payment of the funds had gained legal force , the applicant ’s appeal could not be tried by the court .

On DATE ORG dismissed the appeal after first having noted that the decision as regarded the payment of the attached funds had gained legal force on DATE and that the applicant had appealed against the attachment decision on DATE . Thereafter the court , with reference to case - law from ORG , stated that an appeal against an attachment decision that was lodged after a decision regarding the payment of the attached funds had gained legal force could not be considered by the court .

The applicant appealed against the decision to ORG ( hovrätten ) requesting that it quash the lower court ’s decision . The applicant submitted that he had not been aware of the attachment decision until DATE , when he was formally served the Proof of Attachment , and that he had never been notified of the fact that ORG , DATE after the attachment decision , had distributed and paid the attached money . In his view , it should not have been permitted to distribute attached money until the actual attachment decision had gained legal force .

On DATE ORG upheld ORG decision in full .

The applicant appealed to ORG ( ORG domstolen ) which , on DATE , refused leave to appeal .

Domestic provisions of relevance to the present case are found mainly in LAW ( ORG ; CARDINAL ) and GPE ( ORG ; PERSON ) . ORG is responsible for enforcement of judgments or other enforcement titles ( exekutionstitel ) comprising an obligation to pay or some other obligation . Enforcement cases are dealt with as public cases ( allmänna mål ) , as in the applicant ’s case , or private cases ( enskilda mål ; cf . LAW , LAW ) . Public cases are , for example , imposition of fines , taxes , and other funds to which the ORG is entitled .

According to LAW , LAW , of LAW , an enforcement title may consist of a court judgment , but also of a decision of an administrative authority that may be enforced in accordance with a special regulation . Moreover , according to LAW , enforcement titles in public cases may be enforced before they have gained legal force , if this has been specially prescribed . In this respect , LAW , LAW stipulates that a decision of ORG applies immediately , and the enforcement continues even if the decision is appealed against , unless otherwise prescribed by LAW or ordered by a court .

NORP In line with LAW , LAW , ORG shall investigate the debtor ’s employment and income situation and whether he or she has attachable property . Attachment shall take place as soon as possible after the necessary documents have been received by ORG , Article CARDINAL ) . With some exceptions , notification shall be sent to the debtor by post or given in an appropriate manner within such time that the debtor can be expected to have sufficient time to protect his or her rights ( LAW , Article CARDINAL ) . Chapter CARDINAL , Article CARDINAL of the Enforcement Ordinance stipulates that the debtor shall be notified in writing and the notification is to be served , unless it is known that the debtor can not be found . Moreover , ORG shall , as a rule , notify the interested parties about its decision of distribution of funds ( LAW , LAW ) . The debtor is generally not notified about distribution of funds and payment to the creditors and the enclosure to the attachment order does not contain any such information .

The attachment of bank funds is safeguarded by a notification prohibiting the bank from fulfilling its obligations to others than ORG , and the bank is , as a rule , requested to pay the attached funds to ORG , Article CARDINAL and LAW , ORG CARDINAL of LAW ) .

Decisions regarding attachment and all subsequent decisions , such as the decision to distribute and pay the attached funds to the creditor , are taken by ORG and may be appealed against to ORG , and further to ORG and ORG . The rules regarding appeal against decisions taken by ORG are to be found in LAW of LAW . DATE , paragraph CARDINAL , of that LAW stipulates that an attachment decision of the type in question shall be appealed against by a party within DATE from the date when the decision was served on him . DATE , paragraph CARDINAL , states that a decision on distribution or payment of funds shall be appealed against within DATE of the decision . LAW stipulates that , in the event of the grant of an appeal against a particular decision , a later decision in the case may also be revoked , if this can be done , provided the decision is connected with the former decision and that it had not gained legal force against the appellant at the time when he appealed against the first decision .

In its judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) , ORG found that a prerequisite to trying an appeal against a decision regarding attachment is that no subsequent decision regarding the payment of the attached funds has gained legal force . In reaching its decision , ORG had regard to LAW , LAW as well as the preparatory works to that provision ( Government PERSON , p. CARDINAL ) .

NORP In its comments on the above case , ORG ( PERSON , formerly in charge of tax administration and enforcement service in GPE ) , stated , inter alia , the following :

“ In public cases , the funds are accounted for immediately , unless the official in charge of the matter has given special instructions . In cases concerning attachment of bank funds , it may take a while for the bank to account for the funds received . Once received by ORG , the funds are accounted for promptly to the creditors . DATE may elapse DATE and the accounting day . The appeals provisions in LAW , LAW do not seem to be coordinated in the sense that the funds are to be accounted for after the appeal period has elapsed , and there is no support for such an interpretation of LAW . ”

Please see PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) or GPE ( [ dec . ] , no . CARDINAL , DATE ) for a comprehensive summary of this issue .


Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

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

NORP The applicant fled his native GPE in DATE and applied for asylum in the GPE . Under the provisions of LAW DATE ( Vreemdelingenwet DATE ) , he was issued a provisional residence permit ( voorwaardelijke vergunning tot verblijf ) on CARDINAL DATE which was valid from DATE until DATE . Its validity was later prolonged until DATE .

On DATE , pursuant to the terms and the transitory arrangements under LAW , which entered into force on DATE and replaced LAW DATE , the applicant ’s provisional residence permit was automatically transformed into a temporary residence permit for asylum purposes ( verblijfsvergunning asiel voor bepaalde tijd ) .

On DATE , the applicant filed a request for a residence permit for asylum purposes for an indefinite period ( verblijfsvergunning asiel voor onbepaalde tijd ) .

On DATE the Minister for ORG ( Minister PERSON ) , rejected the applicant ’s request by holding LAW DATE LAW relating to ORG ( “ the DATE LAW ) against him . The Minister based this decision on the applicant ’s statements about his career as an officer in the ORG - e Dowlati / PERSON Dowlati ( “ ORG / WAD ” ) – the intelligence service during the former communist regime in GPE – and the general official country assessment report ( algemeen ambtsbericht ) on GPE , drawn up on DATE by ORG .

On DATE the applicant filed an appeal against this decision with ORG ( rechtbank ) of GPE . In its judgment of DATE , that ORG , sitting in GPE , accepted the appeal and quashed the impugned decision . Referring to a ruling given on DATE by ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , ORG held that the Minister should also have examined whether LAW constituted a sustained obstacle to the applicant ’s expulsion to GPE and , the Minister ’s examination had been incomplete .

On DATE , the Deputy Minister of Justice ( Staatssecretaris van Justitie ; the successor to the Minister for Immigration and Integration ) took a fresh decision on the applicant ’s request , retroactively withdrawing the applicant ’s residence title as from DATE and holding , inter alia , that while LAW opposed the applicant ’s return to GPE , it had not appeared that LAW constituted a sustained obstacle for his removal from the GPE as the applicant had not demonstrated that a departure to a country other than GPE , such as for instance GPE where he had stayed for DATE in DATE , was impossible .

The applicant ’s appeal against this decision was rejected on CARDINAL DATE by ORG of The GPE sitting in Roermond . It noted at the outset that , since no appeal had been filed against the judgment of DATE , the decision to hold LAW had obtained the force of res iudicata . It further noted that it was not in dispute that the applicant – if expelled to GPE – would be exposed to a real risk of being subjected to treatment proscribed by LAW and that , for that reason and for the time being , he was not going to be expelled to GPE . It agreed with the Minister that the applicant had not demonstrated that it would be impossible for him to go to GPE and found that the applicant did not find himself in a situation in which LAW opposed his expulsion from the GPE in a sustained manner and , furthermore ,

In so far as the applicant invoked his right to respect for his family life within the meaning of LAW with his spouse and with his brother and the latter ’s spouse and children , ORG held that DATE given the strict separation between asylum - based and regular residence permits DATE asylum proceedings offered no scope for these arguments to be entertained by the court . ORG further rejected the applicant ’s arguments based on his right to respect for his private life guaranteed by LAW in that , during his DATE stay in the GPE in the course of which he had worked for DATE , he had established social ties with colleagues and neighbours . On this point , ORG held that the circumstances relied on by the applicant were outweighed by the Minister ’s general interest considerations . It noted that the duration of the applicant ’s ( legal ) stay in the GPE was considerably shorter than the duration of the aliens in the cases of PERSON v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALX ) and Sisojeva and Others v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALI ) and held that the Minister could attach great weight to the fact that the applicant should be regarded as responsible for very serious offences .

CARDINAL

In its ruling of DATE , ORG upheld the impugned judgment , finding that the appeal did not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging PERSON aangevallen uitspraak leiden ) and that , having regard to article CARDINAL § CARDINAL of LAW , no further reasoning was called for as the arguments submitted did not raise questions requiring determination in the interest of legal unity , legal development or legal protection in the general sense . No further appeal lay against this decision .