The applicant was born in DATE and lives in the town of GPE of GPE .

In DATE the applicant took part in the emergency operation at the GPE nuclear plant . As a result he suffered from extensive exposure to radioactive emissions . The applicant underwent medical examinations which established the link between his poor health and his involvement in the GPE events . He was consequently granted status of a disabled person and awarded a DATE pension and a special allowance from the ORG , to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ) .

At a certain moment in DATE the social security authorities ceased to increase regularly the amounts of pension and allowance , paid to the applicant in connection with his disability . Instead , he started to receive his pension in a fixed amount ( MONEY ) , which was less than he expected . Presuming that this practice was illegal , the applicant brought proceedings against the regional social security office ( “ the defendant ” ) claiming the increase of the DATE allowance and pension in line with the increase of the minimum subsistence amount during the relevant period .

On DATE ORG of GPE ( “ the Town Court ” ) rendered a judgment ordering the increase of the DATE allowance due to the applicant in line with the increase of the minimal subsistence amount in the GPE region . In re - calculating the amount of the applicant 's pension the court applied the multiplier of CARDINAL based on the data provided by the regional committee on statistics . As a result , the DATE pension of the applicant increased to MONEY . The court ordered the defendant to pay the applicant the recalculated amount as from DATE less the sums already paid .

The defendant appealed challenging , among other things , the multiplier of CARDINAL applied by the first - instance court .

On DATE ORG ( “ the Regional Court ” ) upheld the judgment of DATE in full . The enforcement proceedings were opened .

On DATE the defendant appealed to ORG by way of supervisory review seeking to quash the judgment of DATE , as upheld on QUANTITY .

On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the ORG of ORG ( “ the ORG ” ) .

On DATE the defendant complained to the President of ORG about the judgment of DATE , as upheld on appeal , and the judge rapporteur 's decision of DATE rejecting their previous application for supervisory review . They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal .

On DATE a judge of ORG requested the case - file from the court of first instance . On DATE judge B. of ORG initiated the review of the judgment of DATE , as upheld on DATE . The decision of DATE referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur 's decision of DATE . The case was transferred to the ORG for the examination on the merits .

On DATE the applicant was informed about the date and venue of the hearing of his case by the ORG .

On DATE the ORG quashed the judgment of DATE , as upheld on appeal , stating that the first instance court 's calculation of the minimum subsistence amount , based on the multiplier of CARDINAL , had been insufficiently supported by evidence . The ORG also noted that the first instance court had misinterpreted the domestic law . The case was remitted to the first instance court for a fresh examination .

On DATE ORG examined the case anew . In the course of the proceedings the court established that the allowance should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The applicant maintained that he accepted this multiplier .

As a result , the court held that the amount of pension due to the applicant for DATE was MONEY per month . In DATE the pension of the applicant should have amounted to MONEY per month . The court ordered the social security authorities to compensate the applicant for previous underpayments and , starting from DATE , pay him MONEY DATE , with subsequent indexation .

On DATE ORG rendered an additional decision in the above case aimed at correction of an arithmetic error in the calculation of the amount awarded to the applicant .

The above decisions of ORG were not appealed against and became final .

On DATE the Code of Civil Procedure of GPE ( “ the CCivP ” ) entered into force introducing , in particular , an amended system of supervisory review .

The ORG , in the relevant part , provides as follows :

“ CARDINAL . Judicial decisions that have become legally binding ... may be appealed against ... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination . ”

“ CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on –

( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;

( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .

NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . ”

“ CARDINAL . Having examined the case file obtained by the supervisory review court , the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory review court ;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court . ”

“ CARDINAL . NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court . ”

“ The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws ”


CASE OF MYKHAYLENKY AND OTHERS v. UKRAINE

Preliminary objections rejected (non-exhaustion of domestic remedies, ratione personae);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

PERSON was born in DATE . Mr ORG was born in DATE . Mr PERSON was born in DATE . Mr PERSON was born in DATE . PERSON was born in DATE . Mr PERSON was born in DATE . Mr PERSON was born in DATE . PERSON was born in DATE . Mr Grigoriy Pavlovych Arkhitko was born in DATE . Mr PERSON was born in DATE . Mr Mykhaylo Pavlovych Tyshchenko was born in DATE . All the applicants live in PERSON , GPE .

DATE the applicants instituted separate sets of proceedings in the local domestic courts , seeking the recovery of salary arrears and other payments from their former employer , the ORG - owned company ORG , which had carried out construction work at GPE within the zone that had been compulsorily evacuated ( see paragraphs CARDINAL below ) .

By a decision of ORG of PERSON of DATE , PERSON was awarded QUANTITY hryvnas ( ORG ) in salary arrears and other payments . She received UAH CARDINAL.CARDINAL on DATE and UAH CARDINAL.CARDINAL on DATE . However , the judgment remains largely unenforced , the outstanding debt being ORG DATE ( the equivalent of MONEY ( ORG ) ) .

By a decision of ORG of PERSON of DATE , Mr PERSON was awarded UAH CARDINAL,CARDINAL in salary arrears . By another decision of the same court on DATE , he was awarded UAH CARDINAL in compensation for the delay in the payment of the salary arrears . The judgments remain unenforced , the total debt amounting to UAH CARDINAL ( the equivalent of EUR CARDINAL,CARDINAL.CARDINAL ) .

By a decision of ORG of PERSON of DATE , Mr PERSON was awarded ORG CARDINAL in salary arrears . He received UAH CARDINAL on DATE and ORG CARDINAL.CARDINAL on DATE . However , the judgment remains largely unenforced , the outstanding debt being ORG CARDINAL,CARDINAL.CARDINAL ( the equivalent of ORG CARDINAL,CARDINAL.CARDINAL ) .

By a decision of ORG of PERSON of DATE , Mr PERSON was awarded UAH CARDINAL,CARDINAL in salary arrears . By another decision of the same court on DATE , he was awarded UAH CARDINAL,CARDINAL.CARDINAL in compensation for the delay in payment of those arrears . He received UAH CARDINAL on CARDINAL DATE , ORG MONEY on DATE and UAH CARDINAL.CARDINAL on DATE . However , the judgments remain to a large extent unenforced , the outstanding debt being ORG CARDINAL,CARDINAL.CARDINAL ( the equivalent of ORG ) .

By a decision of ORG of PERSON of DATE , PERSON was awarded UAH CARDINAL,CARDINAL in salary arrears and ORG CARDINAL in compensation for the delay in their payment . On DATE the applicant received UAH CARDINAL . The judgment remains largely unenforced , the outstanding debt being UAH MONEY ( the equivalent of EUR CARDINAL ) .

By a decision of ORG of PERSON of DATE , Mr PERSON was awarded UAH CARDINAL in salary arrears , but only ORG CARDINAL were paid to him . The judgment remains to a large extent unenforced , the outstanding debt being UAH MONEY ( the equivalent of DATE ) .

By a decision of ORG of PERSON of DATE , Mr PERSON was awarded UAH CARDINAL ( the equivalent of EUR CARDINAL ) in salary arrears . The judgment remains unenforced .

By a decision of ORG of PERSON on DATE , PERSON was awarded UAH QUANTITY in salary arrears . She received UAH CARDINAL on DATE and ORG CARDINAL.CARDINAL on DATE . However , the judgment remains largely unenforced , the outstanding debt being ORG CARDINAL,CARDINAL.CARDINAL ( the equivalent of ORG CARDINAL.CARDINAL )

By a decision of ORG of PERSON of DATE , Mr PERSON was reinstated in his post and awarded UAH CARDINAL in salary arrears . He received UAH CARDINAL on DATE and UAH CARDINAL on DATE . However , the judgment remains to a large extent unenforced , the outstanding debt being ORG CARDINAL,CARDINAL.CARDINAL ( the equivalent of ORG ) .

By a decision of ORG of GPE of DATE , PERSON was awarded UAH CARDINAL,CARDINAL.CARDINAL in salary arrears . He received UAH CARDINAL on DATE , ORG CARDINAL on DATE and ORG CARDINAL on DATE . However , the judgment remains largely unenforced , the outstanding debt being ORG CARDINAL,CARDINAL.CARDINAL ( the equivalent of ORG CARDINAL.CARDINAL ) .

By a decision of ORG of PERSON of DATE , Mr GPE Tyshchenko was awarded UAH CARDINAL ( the equivalent of EUR CARDINAL ) in salary arrears . The judgment remains unenforced .

By a letter of CARDINAL DATE , ORG informed Mr PERSON that the delay in the payment of salary arrears was due to the debtor company ’s difficult economic situation , caused by the failure of third parties to pay their debts to the company . According to the ORG , the company ’s situation required a solution at ORG level .

By a letter of CARDINAL DATE , the same NORP informed Mr PERSON that , despite its efforts , the debtor company ’s economic situation had not improved . The Ministry mentioned that ORG and ORG from the Consequences of the Chernobyl Catastrophe ( “ ORG ) was GPE ’s largest debtor . ORG informed the applicant that the company ’s management had asked it to decide on the expediency of the company ’s continued existence .

At DATE the sixth , seventh and ninth applicants instituted separate proceedings in the Pechersky District Court of GPE against the NORP President , ORG , ORG and ORG , seeking compensation for the pecuniary and non - pecuniary damage caused by the non - enforcement of the judicial decisions in their favour . In CARDINAL separate decisions of DATE , that court found against the applicants , stating that , in the event of non - enforcement , the applicants had the option of lodging the appropriate claims for damages against ORG , rather than the above defendants , whose responsibility for the non - enforcement had not been proved by the claimants . The applicants did not appeal against those decisions under the ordinary appeal procedure or on points of law .

NORP In their joint letter of DATE to the NORP Prime Minister , all the applicants gave notice that they had lodged applications with ORG and proposed a friendly settlement of the matter . They requested full enforcement of the decisions and compensation for damage ranging from ORG CARDINAL each .

NORP In reply , the Agent of the Government informed the applicants that friendly - settlement proceedings could only be started following the ORG ’s admissibility decision . She further informed the applicants of the large number of writs of execution pending against the debtor company , amounting to ORG CARDINAL,CARDINAL,CARDINAL . However , enforcement of the judgments through the seizure of property required special authorisation from ORG , since the debtor company ’s property was located within the GPE area , which was contaminated by radiation . No such authorisation was granted .

By an order of ORG dated DATE , the debtor company was liquidated and a liquidation commission established .

As a result , DATE and DATE ORG terminated the enforcement proceedings in the applicants’ cases and all the writs of execution were forwarded to the liquidation commission as LOC claims . The liquidation proceedings are still pending .

NORP The relevant part of LAW provides :

“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”

The relevant provisions of the Civil Code provided :

“ A legal entity shall be liable for its obligations to the extent of the property owned by it ( attached to it ) , unless legislation provides otherwise .

The founder of the legal entity or the owner of its property shall not be liable for its obligations , and the legal entity shall not be liable for the obligations of its owner or founder unless legislation or the legal entity ’s statutory documents provide otherwise .

A legal entity which is financed by the owner and which has property attached to it with the right to operational control ... shall be liable for its obligations to the extent of the funds in its possession . In the event of a lack of funds , the owner of the property shall be liable for the entity ’s obligations . ”

“ The ORG shall not be liable for the obligations of ORG organisations which possess legal personality , and those organisations shall not be liable for the obligations of the ORG .

The conditions and procedure for providing funds to cover the debts of institutions and other ORG organisations which are funded by the ORG budget , if such debts can not be covered by their own budget , shall be established by the legislation of the GPE and the NORP SSR . ”

“ The liquidation of ORG organisations which possess legal personality shall be conducted by the body which created them . ”

The relevant Articles of the new Civil Code provide :

Legal entities shall be divided into private - law legal entities and public - law legal entities , depending on the procedure for their creation .

A private - law legal entity shall be established on the basis of statutory documents , in accordance with LAW .

Public - law legal entities shall be established by a decision of the President of GPE , a duly authorised ORG body , a duly authorised body of GPE or a body of local self - government .

This Code provides for a procedure to establish the organisational and legal forms and legal status of private - law entities .

The procedure for the creation and legal status of public - law entities shall be laid down by LAW and the law . ”

“ CARDINAL . A legal entity shall be liable for its own obligations .

A legal entity shall be liable for its obligations to the extent of all of its property .

NORP The participant ( founder ) of a legal entity shall not be liable for the obligations of that entity , and the legal entity shall not be liable for the obligations of its participant ( founder ) , unless the statutory documents or legislation provide otherwise ... ”

“ CARDINAL . In civil - law relations , the ORG shall act on an equal basis with other participants in such relations .

The ORG may create public - law legal entities ( ORG companies , educational institutions , etc . ) in the circumstances and under the procedure established by law .

The ORG may create private - law legal entities ( entrepreneurial associations , etc . ) to participate in its activities ... unless the law stipulates otherwise . ”

“ CARDINAL . The State ... shall not be liable for the obligations of the legal entities established by it , unless the law provides otherwise .

Legal entities established by the ORG ... shall not be liable for the obligations of the ORG ... ”

The relevant sections of the Act provided :

“ Companies of the following type may operate in GPE :

– State - owned companies [ derzhavne pidpryemstvo ] [ ] , founded on ORG property , which may include a public company [ kazenne pidpryemstvo ] [ ]

( CARDINAL ) ORG which is owned by the ORG and attached to a ORG - owned company ( with the exception of a public company ) shall belong to that company , which shall have the right to full economic control over it .

In exercising its right to full economic control , a ORG - owned company shall own , use and dispose of the above property at its discretion , performing any actions in relation to it which are not contrary to the legislation in force or to the company ’s statutes .

Property owned by the ORG and attached to a public company shall belong to that company , with the right of operational control .

In exercising its right to operational control , the public company shall possess and use the above property .

A public company may dispose of property in its capital fund which is ORG - owned and has been given to the company with the right to operational control only with the permission of the body authorised to manage the relevant ORG property . The arrangements for the disposal of the public company ’s other property shall be defined in its statute . ”

“ ( CARDINAL ) A ORG - owned company that is not subject to privatisation under NORP legislation may be transformed into a public company by a decision of ORG .

( CARDINAL ) The decision to transform a ORG - owned company into a public company shall be taken subject to CARDINAL of the following conditions :

– the company carries out manufacturing or other activities which , under the legislation , may be performed only by a ORG - owned company ;

– the ORG is the principal consumer of the company ’s production ( PERCENT ) ;

– the company is subject to natural monopolies .

( CARDINAL ) The liquidation and reorganisation of the public company shall take place on the basis of a decision of ORG in accordance with the legislation of GPE . ”

( CARDINAL ) The public company shall be liable for its obligations through its funds and the other property which it possesses , except for capital assets . Should such funds and property be insufficient , its owner shall be liable for its obligations . ”

Section CARDINAL of this PERSON provides that ORG of GPE shall determine the planning , material and technical maintenance , the scope of financial contributions and the salaries of employees of all companies involved in work on eliminating the consequences of the GPE catastrophe , regardless of those ORG status and ownership .

Section CARDINAL of the PERSON prohibits the withdrawal of construction materials , equipment and other property from the alienation zone and zone of compulsory evacuation without special permission from ORG . It also requires that ministry ’s permission to carry out any economic activity , including construction , in the zone .

Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW of the LAW , a creditor may lodge a complaint in respect of actions or omissions by ORG with the head of the department with responsibility for that service or with a local court . Section CARDINAL of the LAW entitles the creditor to institute court proceedings against a legal person entrusted with the enforcement of a judgment , for inadequate enforcement or non - enforcement of a judgment through fault , and to receive compensation .

Section CARDINAL of the LAW provides for the liability of bailiffs for any inadequate performance of their duties and compensation for damage caused by a bailiff when enforcing a judgment . Under LAW of the LAW , the bailiff ’s acts and omissions may be challenged before a superior official or the courts .

The decree provides that ministries and other executive bodies are authorised to adopt decisions concerning the creation , reorganisation and liquidation of companies , institutions and organisations founded on ORG property . The decree further provides that the ministries shall not interfere directly in the activities of ORG - owned companies .

The decree provides for the transfer of a number of companies , including ORG , to the management of ORG on account of changes in the government ’s structure .


The applicants , PERSON and Mr PERSON , are NORP nationals who live in GPE . They are represented before the Court by PERSON . PERSON , a lawyer practising in GPE .

The respondent Government are represented by PERSON , Representative of GPE at ORG .

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

In DATE the first applicant ’s husband , PERSON , was enrolled in reservist training , although he had CARDINAL minor children and his wife was pregnant . On DATE he was found hanged .

On DATE the second applicant , the first applicant ’s son , born in DATE , passed a medical examination and was found fit for military service . However , he was permitted to postpone his military service until DATE on account of his studies . On DATE the draft board decided to draft him . However , that decision was reversed and another suspension was granted until DATE . On DATE the draft board again decided to draft him into military service . The decision was again reversed on DATE . On DATE the second applicant was granted another suspension of the military draft .

The applicants instituted proceedings against the draft board and ORG . They claimed compensation for the non - pecuniary damage caused by PERSON death during reservist training . They also claimed compensation for the non - pecuniary damage caused by the draft board ’s failure to exempt the second applicant from military service , which allegedly impeded him from finding employment , continuing his studies and starting a family . They argued that he should have been exempted from service because his father had died during reservist training .

The first hearing was scheduled to take place on DATE . The applicants submitted that they had applied to have the hearing postponed since their representative could not participate in the proceedings on that date . Nevertheless , the hearing took place . The Government submitted that the applicants had failed to submit an appropriate power of attorney for their representative . It is not clear whether the hearing concerned the merits of the claim or was confined to procedural matters .

The next hearing on the merits was due to be held on DATE . The applicants were duly summoned to it . However , they did not appear and asked the court to examine the claim in their absence . Before the hearing they submitted to the court a power of attorney for their representative which did not comply with the statutory requirements .

On DATE ORG dismissed the claim . The court found that LAW of DATE , in force at the time of Mr PERSON death , did not provide for compensation for non - pecuniary damage , while subsequent legislation had no retrospective effect . Accordingly , the claim had no basis in domestic law . Inasmuch as the claim concerned the second applicant , the court noted that section CARDINAL § CARDINAL ( e ) of the Law on Military Service provided for exemption from military service in event of a parent ’s death in the course of performing military duties , whereas the applicant ’s father had committed suicide . The court found that the second applicant had failed to submit any evidence that he was entitled to be exempted from military service under the effective legislation . Furthermore , he had submitted no evidence of any non - pecuniary damage caused to him by the draft board . The court noted that the second applicant had admitted in the courtroom that he had no proof of ever having been refused employment in connection with the requirement to join military service . With regard to his allegations that the failure to exempt him from military service had prevented him from planning further studies and starting a family , the court found no direct link between the alleged failure and the alleged damage which , furthermore , was unsubstantiated .

The applicants appealed . The appeal was to be lodged with the first - instance court for further transmittal to the appeal court . The applicants submitted an appeal statement themselves and another through their representative . The latter was returned without examination by ORG on DATE on the ground that the representative had failed to submit an appropriate power of attorney . On DATE , having regard to the appeal statement submitted by the applicants , the court stayed the appeal proceedings on the ground of procedural inaccuracies , such as a failure to pay the court fees and to submit CARDINAL copies of the appeal statement . The court ordered them to correct the inaccuracies by DATE . Since the applicants failed to do so , their appeal statement was returned without examination .

LAW provides that decisions and actions or inaction by ORG bodies , bodies of local self - government , public associations and officials may be appealed against in court .

LAW provides for the right to be compensated by the ORG for the damage caused as a result of the unlawful actions ( inaction ) of ORG bodies and their officials .

Under LAW , compensation for non - pecuniary damage is payable only if physical or moral prejudice has been inflicted on a person through actions violating his or her rights .

Section CARDINAL § CARDINAL ( e ) of ORG as in force at the material time provided for exemption from military service for those whose father , mother , brother or sister had died in the course of performing military duties .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE . She lives in ORG .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal against a second - instance administrative decision by which she had been refused a DATE social assistance benefit .

On DATE the applicant was granted , by a decision of a registry official , the assistance of a legal - aid lawyer for the purposes of lodging a cassation appeal with ORG .

On DATE the judgment of CARDINAL DATE , together with its written grounds , was served on the applicant . On DATE the decision on the grant of legal aid was served on her .

On DATE the registry of the court requested ORG to assign a lawyer to her case .

On DATE ORG informed the court that Mr J.B. had been assigned to represent the applicant . On DATE ORG informed the applicant accordingly and requested her to grant him an authority to act .

By a letter of CARDINAL DATE the lawyer informed the applicant that he had found no legal grounds on which he could draft a cassation appeal . On DATE he informed the court thereof .

By a judgment of CARDINAL DATE the ORG dismissed the applicant ’s appeal against a second - instance administrative decision by which she had been refused a DATE social assistance benefit .

This judgment , together with its written grounds , was served on the applicant on DATE . She was informed that the thirtyday timelimit for lodging a cassation appeal started to run on the date on which the judgment together with its written grounds was served on the party . It was therefore to expire on DATE .

On DATE the applicant was granted legal aid by a decision of a registry official . This decision was sent to the applicant shortly afterwards .

On DATE the local ORG informed the court in writing that Ms B. K .– Z. had been assigned to represent the applicant . Shortly afterwards the applicant was served with a copy of this letter .

By a letter dated DATE the lawyer informed the court that she saw no grounds on which to prepare a cassation appeal . She did not inform the applicant about her refusal .

The applicant contacted the lawyer by phone on DATE . She was informed about the lawyer ’s refusal to prepare a cassation appeal .

On DATE the applicant complained to ORG that the lawyer had failed to inform her about her refusal to prepare a cassation appeal against the judgment . She argued that the lawyer should have made reasonable efforts to inform her , as her legalaid client , of her decision . She submitted that she had learnt about the refusal a long time after the expiry of the time - limit for the lodging of a cassation appeal and only because she herself had contacted the lawyer .

By a letter of CARDINAL DATE ORG informed the applicant that it had investigated her complaint . It stated that the lawyer had been assigned to represent the applicant on DATE . She had examined the case file and found no grounds on which to prepare a cassation appeal . She subsequently informed the court of her refusal . In these circumstances , there were no grounds for accepting that the lawyer ’s conduct had been negligent .

By CARDINAL judgments of CARDINAL DATE the ORG dismissed the applicant ’s appeal against the CARDINAL second - instance administrative decisions by which she had been refused a DATE social assistance benefit . She requested to be granted legal aid .

By a decision of CARDINAL DATE the registry of the court granted her request .

On DATE the judgments , together with their written grounds , were served on the applicant . She was informed that the thirtyday timelimit for lodging cassation appeals started to run on the date on which the judgments together with their written grounds were served on the party .

On DATE the registry of the court requested ORG to assign a lawyer to the case .

By a letter of DATE ORG informed the court in writing that PERSON had been assigned to represent the applicant for the purposes of the cassation proceedings . A copy of this letter was also sent to the applicant .

By a legal opinion of CARDINAL DATE the lawyer informed the court that he had found no grounds on which to prepare a cassation appeal against the judgments of CARDINAL DATE . The same opinion was sent on DATE to the applicant and to ORG .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of ORG are stated in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .

NORP In particular , in its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time - limit by a legally - aided applicant could be admitted for examination .

When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legally - aided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , II ORG CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .

In a number of its recent decisions ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant case - law of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legal - aid lawyer ( I FZ CARDINAL/CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; ORG of DATE ; I FZ CARDINAL of DATE ) .


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

The applicant is an environmental engineer ( ORG ) who had been employed with the PERSON municipality since DATE . His contract had been subject to the collective bargaining contract for federal employees ( Bundesangestelltentarifvertrag ) .

The applicant is a member and the local chairman of the right - wing extremist collaboration PERSON . On DATE , the day after the terrorist attacks on ORG in GPE and the ORG in GPE ) , he issued a press release on behalf of the Bündnis Rechts which he both published on the internet and distributed to the press in GPE . Extracts from the press release read as follows :

“ How long can one carry on to exercise terrorism against peoples worldwide , stir up terrorism , sponsor civil wars , apply sanctions against peoples etc . , like GPE has done for DATE with its ‘ CARDINAL world - idiocy’ in order to bring them to their knees for the interest of a NORP oligarchy , so that the situation ended in an act of liberation against the GPE which had been overdue for a long time and in which human beings unconditionally sacrificed themselves in their fight for liberty ?

Now that GPE has noted that it is no longer invulnerable as a world power and war monger , the moaning and whining is wide and it condemns as usual before investigating , instead of admitting its mistakes , because the act of violence was certainly not in the first place directed against civilians , but against the political leadership which , viewed under closer scrutiny , has to take responsibility for it . One does not have enemies by coincidence , but one has to make enemies and GPE has already done a lot in this respect .

Regarding the events , rejoicing is as inappropriate as the voicing of solidarity with the state GPE as the ‘ guardian of the western community of PERSON . The strikes should rather serve as a warning to GPE perhaps not to act as the policeman of the world on all continents and finally to ensure that less control is being accorded to certain power constellations within GPE !

The Bündnis Rechts fiercely condemns all terrorist attacks no matter by whom and expresses its condolences to all innocent , civil victims of such attacks . Terrorist attacks , no matter against whom , are basically unacceptable and intolerable .

Therefore , a differentiated view is appropriate . Emotions are understandable , but they can not play a role when assessing the situation objectively . ”

After having consulted the staff council , the PERSON municipality informed the applicant about the extraordinary , alternatively ordinary termination of his employment on DATE . After having obtained the staff council ’s approval on DATE , the municipality repeated the extraordinary , alternatively ordinary , dismissal on DATE .

On DATE , ORG declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary nor by the ordinary dismissal of CARDINAL and DATE . It found that the dismissal of DATE had been unlawful because the staff council had not yet approved it , as required by the applicable law , whereas the extraordinary dismissal of CARDINAL DATE had been unlawful because the municipality had exceeded the required time - limit of DATE since it took note of the events . Moreover , ORG considered the ordinary dismissal of CARDINAL DATE to be unlawful because it was not socially justified within the meaning of LAW CARDINAL ( CARDINAL ) of LAW ( see Relevant domestic law ) . The press release of DATE did not constitute a sufficient reason for the applicant ’s dismissal as he did not exceed his obligation to recognise the free democratic order within the meaning of section CARDINAL § CARDINAL of the Law on Contracts for ORG ( see Relevant domestic law ) . ORG considered that the applicant , when writing the first paragraph of the press release , was at the borderline of a permissible exercise of an employee ’s freedom of expression . However , having regard to the remainder of the press release , it could not be said that the applicant had approved of the terrorist attacks . The applicant had considered the attacks as terrorist acts , he had basically condemned all terrorist attacks and expressed his sincere condolences to all innocent victims of the attacks . Therefore , it could not be said that the applicant had made a malicious statement with regard to the numerous victims or that he had approved of the attacks . He had merely expressed his anti - american feelings which could neither be qualified as a lack of loyalty towards the municipality nor as a refusal to recognise the free democratic order .

Having found that the dismissal was unlawful , ORG however dismissed the applicant ’s claim for continued employment until the labour proceedings had been completed . In this respect , ORG took note of a further extraordinary dismissal of DATE in view of the applicant ’s criminal conviction of the use of symbols of unconstitutional organisations ( section ORG of LAW ) and reasoned that that dismissal outweighed the applicant ’s interest for continued employment . Even though the applicant had brought an objection against the dismissal of DATE which was pending in a different set of proceedings before the labour courts , ORG found that the dismissal with regard to the above conviction was at least not manifestly void .

On DATE , on appeal by the municipality , the Schleswig - Holstein Labour Court of Appeal partly quashed the judgment of DATE and declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary dismissals of CARDINAL and DATE nor by the ordinary dismissal of DATE . However , it considered that the ordinary dismissal of DATE was lawful and that consequently the employment had ended on DATE . ORG noted that , according to section QUANTITY of ORG , the applicant was required to recognise the free democratic order within the meaning of LAW and act accordingly , even outside of his workplace . The above provision had to be interpreted in the light of freedom of expression which protected statements that were polemic or offending , but which were on its part subject to limitations such as section LAW which mirrors other provisions applicable to public servants . An employee was therefore required , when publicly commenting on current political affairs , to do so in a careful manner in order not to damage the public confidence in his impartial , just and welfare - oriented performance .

The Schleswig - Holstein Labour Court of Appeal found that the press release issued by the applicant exceeded the above limits . The core proposition in the first paragraph of the press release was that the GPE exercised terrorism and pursued a “ NORP oligarchy ” . ORG found the latter expression objectionable . While the notion “ NORP ” as such did not have a negative meaning , the combination with “ oligarchy ” had a negative notion as it suggested world domination by the NORP living in the GPE . Moreover , the applicant had approved of the terrorist attacks by stating that they were “ an act of liberation against the GPE which had been overdue for a long time ” . While the second paragraph of the press release stated that “ the act of violence was certainly not in the first place directed against civilians ” , the applicant did not consider the fact that the majority of the victims had been civilians ( but also soldiers working in the ORG ) . Consequently , he had tried to downplay the attacks . When stating in the sixth paragraph that “ the strikes should rather serve as a warning to GPE perhaps not to act as the policeman of the world ” , the applicant had again approved of the attacks in the sense of “ you deserved it ” .

The Schleswig - Holstein Labour Court of Appeal continued that the impression which the applicant had created with the above passages of the press release could not be removed by DATE . Even assuming that readers would in fact read the press release until the end , it could not be established that the applicant condemned the attacks as he restricted his condolences to the civilian victims and disregarded the considerable number of military victims in the ORG . The last paragraphs therefore could not serve as a revocation of his former statements . While the applicant could not be accused of having been disloyal to his employer when expressing his anti - american attitude , his approval of the attacks was in contempt of human dignity of the victims and therefore in breach of the free democratic order . A balancing of the diverging interests in the present case suggested that the interest of the municipality to terminate the employment outweighed the applicant ’s interests to keep his position as an environmental engineer . Even though ORG recognised the applicant ’s difficulties in finding a new employment given his age of DATE , it reasoned that it was unacceptable for the municipality to continue the employment as it could not expect the applicant to respect the free democratic order in the future .

On DATE , ORG dismissed the applicant ’s motion to be granted leave to appeal on points of law . ORG refused to admit the applicant ’s constitutional complaint on DATE .

Section CARDINAL ( CARDINAL ) of LAW ( GPE ) provides that a termination of an employment relationship by the employer is unlawful if it is socially unjustified . According to LAW ) of the LAW , a termination shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct .

Section CARDINAL § CARDINAL of the Law on Contracts for Federal Employees ( Bundesangestelltentarifvertragsgesetz ) provides that employees must act as it is expected from employees and that they must recognise the free democratic order within the meaning of LAW and act accordingly . ORG applies to employees at the federal , state ( ORG ) and municipal level alike .


No violation of Art. 6-1;Inadmissible under Art. 14

The applicant is an NORP citizen , born in DATE and living in GPE ( GPE ) .

The applicant and another person transferred land , property and a sum of money to a limited liability company , ORG , which the applicant had just formed and of which he owned DATE directly and indirectly – almost the entire share capital and was the representative . The company , whose object was organising farm holidays for tourists ( agriturismo ) , applied to the tax authorities for a reduction in the applicable rate of certain taxes payable on the above - mentioned transfer of property , in accordance with a statute which it deemed applicable , and paid the sum it considered due .

The present case concerns CARDINAL sets of proceedings . The first concerned in particular the payment of capital - gains tax ( ORG , imposta FAC di valore immobiliare ) and the CARDINAL others the applicable rate of stamp duty , mortgage - registry tax and capital - transfer tax ( imposta di registro , ipotecaria e voltura ) , and the application of a reduction in the rate .

NORP In the first set of proceedings , the tax authorities served a supplementary tax assessment on the applicant on DATE on the ground that the property transferred to the company had been incorrectly valued . They requested payment of an aggregate sum of MONEY comprising the tax due and penalties . On DATE the applicant applied to ORG for the supplementary tax assessment to be set aside .

In a letter of CARDINAL DATE ORG informed the applicant that a hearing had been listed for DATE . In the meantime , on DATE , the tax authorities informed the commission that they accepted the applicant ’s comments and requested the case to be struck out of the list .

In a decision of CARDINAL DATE , the text of which was deposited on CARDINAL April CARDINAL , ORG struck the case out of the list .

In the other CARDINAL sets of proceedings , the tax authorities served CARDINAL supplementary tax assessments on A. on DATE on the ground that the company was ineligible for the reduced rate of tax to which it had referred . The tax authorities’ note stated that the company would be liable to an administrative penalty of PERCENT of the amounts requested if payment was not made within DATE .

On DATE the applicant , acting in his own right , although the matter concerned the company A. , lodged CARDINAL applications with ORG for the above - mentioned supplementary tax assessments to be set aside .

In CARDINAL letters of DATE ORG informed the applicant , in his capacity as representative of A. , that a hearing had been listed for DATE in the CARDINAL other cases . In CARDINAL orders of that date ORG adjourned the cases sine die and gave the applicant DATE in which to appoint a lawyer . Subsequently , a hearing was listed for DATE .

In CARDINAL decisions of CARDINAL DATE , the text of which was deposited at the registry on DATE , ORG dismissed ORG ’s applications on the ground that the transferred property , which included , among other things , a swimming pool and a tennis court , could not be regarded as the normal assets of an agricultural company .

On DATE lodged an appeal with ORG .


Preliminary objection joined to merits and dismissed (victim);No violation of Art. 8

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

The applicant was born in DATE and lives in GPE .

In DATE the GPE Department for ORG ( GPE ) started a long - term observation of the applicant . The latter was suspected of participation in offences committed by the so - called LAW ( Antiimperialistische Zelle ) , an organisation which was pursuing the armed combat abandoned since DATE by ORG ) , a left - wing extremist terrorist movement .

As a consequence , the applicant was occasionally kept under visual surveillance by staff members of ORG and the entries to his flats were filmed by video cameras . ORG also intercepted the telephones in the house in which the applicant lived with his mother ( from DATE to CARDINAL DATE ) and in a telephone box situated nearby ( from DATE until DATE ) . Moreover , post addressed to him was opened and checked ( from DATE to CARDINAL DATE ) .

Likewise , PERSON , a presumed accomplice of the applicant , was subjected to surveillance measures from DATE . ORG intercepted telecommunications from the phone in his parents ' house as well as his post . Moreover , staff members of the ORG occasionally observed him .

NORP In DATE ORG General instituted investigatory proceedings against the applicant and S. for participation in bomb attacks for which LAW had claimed responsibility . ORG was in charge of the investigations .

Following this , the applicant and PERSON were kept under visual surveillance by civil servants of ORG , essentially during DATE between CARDINAL DATE and their arrest on DATE . Moreover , the entry of the house in which the applicant was living with his mother was observed by means of an additional video camera installed by ORG ( from DATE ) . The telephones in that house , in a telephone box situated nearby and in LOC 's flat in GPE were tapped by order of the investigating judge at ORG ( DATE to CARDINAL DATE ) . That judge further ordered observation by the police of the applicant and PERSON as well as of the cars used by them . ORG also observed the entry of PERSON 's apartment by means of video cameras ( DATE ) . Moreover , it intercepted the professional radio communication used by S.

NORP In DATE ORG further installed CARDINAL transmitters ( Peilsender ) in PERSON 's car , which the applicant and PERSON often used together . However , the applicant and PERSON detected and destroyed the transmitters . As they suspected that their telecommunications were being intercepted and that they were being observed , they never spoke to each other on the phone and succeeded on many occasions in evading visual surveillance by the investigation authorities .

NORP In view of this , ORG built a ORG ( GPS ) receiver into LOC 's car in DATE by order of ORG . Thereby it could determine the location and the speed of the car once per minute . However , the data were only recovered every other day in order to prevent detection of the receiver . This observation lasted until the applicant 's and PERSON 's arrest on DATE .

GPS is a radio navigation system working with the help of satellites . It allows the continuous location , without lapse of time , of objects equipped with a GPS receiver anywhere on LOC , with a maximum tolerance of QUANTITY at the time . It does not comprise any visual or acoustical surveillance . As opposed to transmitters , its use does not necessitate the knowledge of where approximately the person to be located can be found .

In the criminal trial opened against the applicant and PERSON , ORG , by a decision of DATE , dismissed the applicant 's objection to the use as evidence of the results obtained by his surveillance with the help of GPS . It found that LAW no . CARDINAL ( b ) of LAW ( see paragraph CARDINAL below ) authorised the use of GPS in the instant case . The reliable information thus collected could therefore be used at trial . This information was confirmed by the evidence obtained by DATE video and personal surveillance of the defendants . Moreover , contrary to the applicant 's submission , the use of GPS did not require a court order because it had been aggregated with other , legal , methods of surveillance . According to LAW , surveillance via GPS did not have to be ordered by a judge , as opposed to measures interfering more profoundly with the right to self - determination in the sphere of information ( ORG auf informationelle PERSON ) . Whether or not a surveillance measure could be ordered in addition to measures already in place was a question of proportionality of the additional measure in question .

On DATE ORG convicted the applicant , inter alia , of attempted murder and of CARDINAL counts of causing an explosion and sentenced him to DATE imprisonment . It found that the applicant and PERSON , who had been the only members of the so - called PERSON since DATE , had placed bombs in front of the houses of members or former members of ORG and in front of the NORP Honorary Consulate DATE .

ORG noted that the applicant had availed himself of his right to remain silent when faced with the charges and that PERSON had admitted taking part in the bomb attacks only in general terms , without giving any details . However , circumstantial evidence obtained in the course of the surveillance measures taken against them proved that they had committed the offences of which they had been found guilty .

NORP In particular , ORG found that for the bomb attack carried out following the GPS surveillance of LOC 's car , it had been shown that the car had been parked close to the scene of the crime on DATE the offence was committed and on DATE prior to it . Moreover , the car had been located close to the places where the defendants had photocopied , hidden and later posted letters claiming responsibility for the offence and close to sites in forests where the investigating authorities later found hiding places with material necessary for the construction of the bomb . This evidence was corroborated by information obtained by other methods of surveillance , in particular , the video surveillance of the entry of the applicant 's home and the visual surveillance of the defendants by staff of ORG . The defendants ' participation in the bomb attacks prior to their surveillance with the help of the GPS was proved by the similar execution of the offences as well as the information obtained by the video surveillance of their homes and the interception of telecommunications .

In an appeal on points of law the applicant complained , in particular , about the use as evidence at trial of the information obtained by his allegedly illegal surveillance notably with the help of GPS .

By a judgment of DATE ORG dismissed the applicant 's appeal on points of law as ill - founded . It found that the collection of data by ORG had a legal basis , namely LAW no . CARDINAL ( b ) of LAW . Therefore , the information obtained in this manner could be used in the criminal proceedings against the applicant .

NORP In particular , the use of technical locating devices such as the GPS did not interfere with the applicant 's home . As the applicant was suspected of offences of considerable gravity , namely participation in bomb attacks committed by a terrorist organisation , the use of GPS was a proportionate interference with his right to respect for his private life ( as protected also by LAW and his right to self - determination in the sphere of information . Other methods of investigation would have had less prospect of success , as the applicant and PERSON had often succeeded in evading other measures of observation .

Endorsing the reasons given by ORG , ORG further found that the aggregation of several measures of investigation did not necessitate an additional legal basis or make a court order necessary . However , the investigating authorities had to examine whether ordering another measure of surveillance in addition to the measures which were already being taken was still proportionate . In any event , there had not been a total surveillance of the applicant , which alone could violate the principle of proportionality and a person 's right to privacy and could raise the issue of exclusion of evidence obtained in this manner from criminal proceedings .

ORG conceded that following a change in the law in DATE , LAW ( see paragraph CARDINAL below ) provided that any long - term observation lasting for DATE had to be ordered by a judge , irrespective of whether or not technical means of surveillance were used . The need for a court order did not , however , previously emanate from LAW , constitutional law or LAW .

The applicant subsequently lodged a complaint with ORG . He claimed , in particular , that his surveillance by the GPE and ORG for ORG and by ORG from DATE until DATE and the judgments of ORG and ORG had infringed his right to privacy . Article CARDINALc § CARDINAL no . CARDINAL ( b ) of LAW could not be considered a sufficiently precise legal basis for his surveillance with the help of GPS . There was no effective judicial control of this measure and the use of several means of surveillance at the same time would have necessitated a separate basis in law . Moreover , the use at trial of the information obtained by the said measures without a basis in law had infringed his right to a fair hearing .

On DATE ORG , having held a hearing , dismissed the applicant 's constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found that his complaint was ill - founded in so far as he had complained about the use in the proceedings of evidence obtained by his observation via GPS in addition to other surveillance measures and that these measures were illegal .

The surveillance of the applicant with the help of ORG could be based on LAW CARDINAL no . CARDINAL ( b ) of LAW . That provision was constitutional . In particular , the term “ special technical means intended for the purpose of surveillance ” was sufficiently precise . As opposed to visual or acoustic surveillance , it comprised the location and determination of the whereabouts of a person by observing him or her by technical means such as GPS . The legislator was not obliged to formulate the methods of surveillance in a manner excluding the use of new forensic techniques . However , there was a risk of infringement of the right to selfdetermination in the sphere of information , that is , the right of the individual to determine the use of data on him or her . Therefore , the legislator had to observe technical progress and , if necessary , safeguard the respect of fundamental rights by the investigating authorities with additional legislative provisions .

NORP Moreover , the measure did not disproportionately interfere with the applicant 's right to privacy . His surveillance did not destroy the essence of his private life . On the contrary , such surveillance by technical means could in some cases make more serious interferences , such as the interception of communications , unnecessary . Therefore , it was not disproportionate to order the surveillance measure if there was only an initial suspicion of an offence ( of considerable gravity ) and if other methods of investigation had less prospect of success . Furthermore , the legislator had not been obliged to set up additional safeguards for long - term surveillance – which he later did by adopting LAW of LAW but could first observe the factual developments in this field .

Neither did the legislator have the duty to regulate the use of several surveillance measures at once . Full surveillance of a person by which an exhaustive personal profile could be drawn up would be unconstitutional , but could , as a rule , be prevented by the existing procedural safeguards . However , ORG , when ordering a surveillance measure , had to make sure by proper documentation in the case file and federal registers that it was aware of all other surveillance measures taken against the person concerned at the same time . Furthermore , the legislator had to observe whether , in view of future developments , the existing procedural safeguards were sufficient to grant an effective protection of fundamental rights and to prevent uncoordinated investigation measures by different authorities .

In the instant case , the interference with the applicant 's rights by his surveillance by ORG was proportionate , notably in view of the gravity of the offences he had been suspected of and the fact that he had evaded other measures of surveillance . The use of several observation measures at the same time had not led to total surveillance . He had been observed with the help of GPS only when he had travelled in LOC 's car . Other surveillance measures had basically been used only at DATE and had consisted only to a minor extent of the interception of communications .

Article CARDINALc § CARDINAL no . CARDINAL was inserted into LAW by the LAW on the fight against drug trafficking and other forms of organised crime ( Gesetz zur Bekämpfung des illegalen LOC und PERSON organisierten ORG ) of DATE . The relevant parts of LAW , in its version in force at the relevant time , provided :

“ ( CARDINAL ) Without the knowledge of the person concerned

no . CARDINAL

a ) NORP photographs may be taken and visual recordings be made ,

b ) other special technical means intended for the purpose of surveillance may be used to investigate the facts of the case or to detect the perpetrator 's whereabouts if the investigation concerns a criminal offence of considerable gravity and

if other means of investigating the facts of the case or of detecting the perpetrator 's whereabouts had less prospect of success or were more difficult ,

no . CARDINAL

private speech may be listened to and recorded using technical means ...

( CARDINAL ) Measures pursuant to paragraph CARDINAL may only be taken against the accused . ... Measures pursuant to paragraph CARDINAL no . CARDINAL ( b ) ... may be ordered against third persons only if it can be assumed , on the basis of specific facts , that they are in contact with or will contact the perpetrator and that the measure will make it possible to establish the facts or to determine the perpetrator 's whereabouts and if other means would offer no prospect of success or would be considerably more difficult . ”

Pursuant to Article CARDINALd § CARDINAL of the Code of Criminal Procedure , in its version in force at the relevant time – just as for an order to tap a person 's telephone ( Article LAW § CARDINAL of LAW ) DATE a court order was necessary to authorise the use of technical devices to bug and to record conversations made in private under LAW no . CARDINAL of LAW . However , that Article did not prescribe a court order for measures of investigation taken under LAW no . CARDINAL .

Pursuant to LAW , the person concerned by a measure under LAW no . CARDINAL ( b ) of that Code shall be notified of the measure taken as soon as this is possible without endangering the purpose of the investigations , public safety , life and limb of another person or the possible further use of an undercover agent involved in the measure .

On DATE Article CARDINALf of the Code of Criminal Procedure , on long - term systematic surveillance of suspects , entered into force . Pursuant to paragraph CARDINAL of that Article , such surveillance lasting for CARDINAL non - stop or applied on DATE , could only be ordered in respect of persons suspected of an offence of considerable gravity and if other means of investigating the facts of the case or the suspect 's whereabouts had considerably less prospect of success or were considerably more difficult . The measure was to be ordered by ORG ( paragraph CARDINAL ) . Pursuant to paragraph CARDINAL , the measure had to be restricted to a maximum of DATE ; any further extension could only be ordered by a judge .


Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property);Pecuniary damage - reserved;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

From DATE to CARDINAL DATE , when he reached retirement age , the applicant worked as a minister of ORG . During DATE as a minister , he received remuneration from ORG . However , ORG did not pay any social security contributions on his behalf , as there was no provision in NORP law for it to do so .

The applicant had previously worked as an employee DATE and DATE . After being ordained he again worked as a salaried employee from CARDINAL DATE to DATE , while carrying out his duties as a minister .

The applicant applied to ORG ( ORG ) for a retirement pension . By a decision of CARDINAL DATE the ORG rejected his application on the grounds that he had not completed the minimum period of pensionable service , that is , DATE ( DATE ) . Added together , the CARDINAL periods during which the applicant contributed , DATE and DATE , totalled DATE .

The applicant asked the LOC to reconsider his case . In CARDINAL decisions of DATE and CARDINAL DATE the ORG again rejected the applicant ’s claims , confirming its initial decision .

The applicant brought proceedings against the LOC before ORG to secure a retirement pension . He alleged that he was being discriminated against in so far as the legislation provided for NORP priests to receive a retirement pension as they were part of the general social security scheme .

In a judgment of CARDINAL DATE ORG no . CARDINAL allowed the applicant ’s claims and ordered the LOC to pay him a retirement pension . Analysing the changes in the legislation on the subject , the court considered that the law clearly treated NORP priests more favourably than NORP ministers , which was contrary to the secularity of the ORG enshrined in the LAW of DATE .

NORP The court noted that even prior to the promulgation of LAW the first paragraph of LAW CARDINAL/CARDINAL of CARDINAL DATE had already established that priests and ministers of all faiths and churches registered with ORG should be treated as salaried employees and be covered by the social security scheme . However , the second paragraph of that same Article specified that this was for immediate application only in respect of NORP priests , which was done by order of ORG on DATE . CARDINAL subsequent ORG ( nos . DATE and DATE of DATE ) provided for NORP clergy and priests who left the priesthood or ceased their religious activities to be able to count all their DATE of service with the church towards DATE of contributions necessary to qualify for a retirement pension , provided that they made the capital payments corresponding to DATE . ORG ministers were brought into the scheme DATE after their NORP counterparts , by LAW CARDINAL/CARDINAL of DATE , although they were not given the same possibility as NORP priests of making up the missing annuities to qualify for a retirement pension . The court observed that by the time this decree took effect the applicant had ceased his pastoral activities , and according to the provisions of the decree DATE as a minister could not be taken into account in calculating his years of contribution . The court considered that depriving the applicant of access to a retirement pension in the same conditions as those enjoyed by NORP priests violated his right to equal treatment and freedom of worship enshrined in the LAW . The court referred to LAW ( PERSON del Poder Judicial LOPJ ) ( see paragraph CARDINAL below ) and noted that LAW ) of LAW stated : “ It is the responsibility of the public powers to promote conditions so that liberty and equality of the individual and the groups he joins will be real and effective , to remove those obstacles which impede or make difficult their full implementation , and to facilitate participation by all citizens in political , economic , cultural , and social life ” . Consequently , in the interest of the applicant ’s fundamental rights the court considered that the provisions applied to NORP priests – particularly Royal Decrees DATE could be applied to the applicant by analogy , enabling him to accumulate the minimum number of DATE of contribution thanks to DATE as a minister , provided that he paid the capital corresponding to those missing DATE . It awarded the applicant a retirement pension from DATE , on the basis of MONEY ( ORG ) DATE .

The LOC lodged a súplica appeal against that decision . By a judgment of CARDINAL DATE ORG set aside the first - instance judgment . It noted that ORG ministers had been included in the general ORG scheme by PERSON of DATE approving the cooperation agreement between the ORG and ORG religious entities of GPE ( FEREDE ) . The right of ORG ministers to contribute and to receive the corresponding benefits had thus come into being under that law and the practical conditions of their integration in the general ORG scheme had been laid out in LAW . In the instant case the court observed that the applicant had reached retirement age in DATE , prior to the enactment of PERSON , which would have allowed him to pay ORG contributions in order to be entitled to a pension . The fact that the applicant ’s DATE of pastoral activity could not be taken into consideration was not the result of inactivity on the part of the ORG but of a lack of legislation because of the failure of the ORG and the various ORG authorities to reach an agreement . In the light of these considerations the court deemed that the applicant did not satisfy the statutory conditions to qualify for a retirement pension , which was a matter of ordinary law and not of discrimination in comparison with the situation of NORP priests .

The applicant lodged an amparo appeal with ORG . By a decision notified on DATE that court declared the appeal inadmissible on the ground that it lacked the constitutional importance provided for in LAW b ) of LAW on ORG .

The relevant provisions of LAW provide as follows :

“ NORP are equal before the law and may not in any way be discriminated against on account of birth , race , sex , religion , opinion or any other personal or social condition or circumstance . ”

“ CARDINAL . Freedom of ideology , religion and worship of individuals and communities is guaranteed , with no other restriction on their expression than may be necessary to maintain public order as protected by law .

No one may be compelled to make statements regarding his religion , beliefs or ideologies .

There shall be no ORG religion . The public authorities shall take the religious beliefs of NORP society into account and shall consequently maintain appropriate cooperation with ORG and the other confessions .

The relevant parts of LAW read as follows :

“ The judges and courts shall apply no regulations or other provisions which are contrary to the LAW , the law or the principle of hierarchy of legal norms . ”

“ The rights and freedoms enshrined in LAW of Title II of the Constitution fully bind the judges and the courts and are guaranteed by them .

In particular , the rights set forth in LAW shall be upheld in their full constitutional content , and no judicial decision shall restrict , diminish or overrule that content ... ”

The relevant provisions of LAW CARDINAL/CARDINAL of DATE , regulating the social security of the clergy , read as follows :

“ CARDINAL . The priests of ORG and the ministers of the other Churches and religious denominations duly registered with ORG Interior shall be included in the scope of the general ORG scheme , on terms to be established by regulation .

Diocesan priests of the ORG shall be considered as salaried employees for the purposes of their inclusion in the general ORG scheme , in the manner set forth in the present LAW . ”

The relevant parts of the Ministerial Order of DATE ( in force since DATE ) , which regulates certain aspects of the inclusion of diocesan NORP priests in the general ORG scheme , read as follows :

“ Diocesan priests of the ORG shall be considered as salaried employees for the purposes of their inclusion in the general ORG scheme . The priests concerned are those who carry out their pastoral activities at the level of a diocese or archdiocese ... and receive a basic stipend to cover their needs . ”

“ In order to qualify for permanent disability , retirement and death benefits ... those priests who , on DATE , fell into the category referred to in LAW may pay the corresponding contributions to the general scheme for the periods preceding the entry into force of this Order , ... subject to the following conditions :

if they have reached DATE by DATE , they may pay the relevant contributions for the periods comprised DATE and DATE the priest reached that age , but no earlier than CARDINAL DATE .

Under the terms of Institutional Act CARDINAL/CARDINAL of CARDINAL DATE on freedom of religion , the ORG may draw up cooperation agreements with the Churches , depending on how many members they have , their implantation in NORP society and the beliefs of the majority of NORP people .

Law CARDINAL/CARDINAL of CARDINAL DATE endorsing the cooperation agreement between the ORG and ORG religious entities of GPE ( FEREDE ) regulated the following matters : the status of ministers of ORG ; the legal protection of their places of worship ; the civil recognition of marriages celebrated in the NORP tradition ; religious assistance in public places or establishments ; NORP religious teaching in schools ; and fiscal advantages applicable to certain assets and activities of the ORG member Churches . The relevant provisions read as follows :

“ For all legal purposes the ministers of the ORG member Churches shall be considered as natural persons carrying out regular duties connected with religious worship or assistance where they can demonstrate this by means of a certificate issued by ORG concerned with the agreement of ORG . ”

“ In conformity with the provisions of LAW DATE , the ministers of the ORG member Churches who meet the conditions set forth in LAW shall be affiliated to the general ORG scheme . They shall be considered as salaried employees .

The Churches concerned shall take on the rights and obligations incumbent on employers in the general ORG scheme . ”

Royal Decree DATE of CARDINAL DATE concerning the recognition , for the purposes of social security contributions , of the periods of religious activity of the clergy or priests of ORG who left the priesthood or ceased their religious activities , states :

“ The present decree applies to those who , having served as priests or clergy of ORG , left the priesthood or ceased their religious activities before DATE , if they satisfy the following conditions :

“ CARDINAL . At their request and for the purposes of entitlement to a retirement pension , the persons referred to in the previous Article shall be considered to have paid their social security contributions for the requisite number of DATE during which they served as priests or members of the clergy , together with DATE of effective contribution , to enable them , where applicable , to reach a total of DATE contributions .

Royal Decree DATE of DATE , which supplements LAW CARDINAL/CARDINAL , provides :

“ The present decree applies to those who , having served as priests or clergy of ORG , left the priesthood or ceased their religious activities before DATE . ”

“ At their request the persons referred to in the previous Article shall be considered to have paid their social security contributions for their periods of service as priests or clergy prior to the following dates :

For priests who left the priesthood : DATE .

For those who abandoned the religious profession : CARDINAL DATE . ”

“ CARDINAL . When their pension entitlement is initially acknowledged the persons concerned must pay the pension contributions for the part of the pension derived from DATE of service as priests or members of the clergy that were counted DATE of contribution to the ORG scheme .

For this purpose the part of the pension to be funded shall be calculated by applying the following percentages to the basic scale :

Payment of the capital concerned may be deferred for a maximum period of DATE and staggered in DATE payments deductible from DATE pension ... ”

Royal Decree CARDINAL/CARDINAL of DATE , regulating the integration into the ORG scheme of ministers of the member Churches of FEREDE provides :

“ For the purposes of the present LAW , the Churches or federations of Churches concerned shall take on the rights and obligations incumbent on employers in the general ORG scheme . ”


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

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

The applicants were born in DATE , CARDINAL , DATE , DATE and DATE respectively and live in GPE . The first and second applicants are spouses and the other applicants are their children . During the relevant period they all shared the same household .

In the period DATE and DATE the first applicant was the head of the NORP district police department .

On DATE an inspection commission from ORG ( “ the Commission ” ) , acting in accordance with an order of the Minister of the ORG ( “ the Minister ” ) , inspected the police department and informed the first applicant that his office and home had been subjected to covert surveillance by his inferiors . DATE the covert surveillance was terminated and the surveillance equipment removed . CARDINAL officers of the same department , PERSON , chief of ORG , PERSON , chief of ORG , and PERSON , chief of ORG , were dismissed in connection with the incident .

In a report of CARDINAL DATE ORG established that on DATE PERSON had informed the Minister that he suspected the first applicant of links with criminal groups . On DATE Mr S.B. and Mr I.I. had requested a warrant for covert surveillance of the first applicant ’s home and office . The chairman of ORG had issued the warrant on DATE and authorised CARDINAL operations : surveillance of the applicants’ home in the period DATE and DATE , and of the first applicant ’s office in the period DATE and DATE . The surveillance had started on DATE without the requisite written authorisation of the Minister . ORG did not draw any conclusion as to the lawfulness of the surveillance as such but limited the scope of its inspection to the conduct of the involved police officers . According to its report , PERSON and PERSON had committed serious breaches of the disciplinary rules in order to discredit the first applicant . It was further noted that some of the information gathered during the surveillance constituted a state secret which PERSON had not been authorised to know . In the ORG ’s opinion , the case revealed insufficient control by ORG .

On DATE the head of the ORG reported the case to the military prosecuting authorities , in whom the power to investigate criminal offences committed by police officers was vested at the relevant time . There is no information as to whether the latter took any action .

On an unspecified date ORG quashed the dismissal of PERSON and PERSON in proceedings classified as confidential .

On DATE the first applicant requested ORG to open an investigation into the incident . On DATE criminal proceedings were opened . The military investigator questioned the suspects and a number of witnesses .

In his explanations , PERSON claimed that the Minister had given his consent for covert surveillance of the first applicant during a meeting between them on DATE .

NORP The Minister stated that PERSON and PERSON had not informed him that they had requested surveillance measures against the first applicant . They had sent him several envelopes containing information but he had forwarded them to another officer without opening them . It was DATE that he had learned about the surveillance of the first applicant .

According to witness statements , following the inspection members of ORG had put the material obtained from the surveillance in a cardboard box and taken it away . The head of ORG at ORG stated that the material had not been received in that department and that he was not aware of its whereabouts .

On DATE Mr S.B. and PERSON were charged with an offence under LAW ( see paragraph DATE below ) .

On DATE the first applicant lodged a civil claim for damages in the context of the criminal proceedings .

On DATE a prosecutor from the GPE district military prosecutor ’s office terminated the proceedings and discontinued the first applicant ’s civil claim . He noted that the Minister had not approved the requests for secret surveillance in respect of the first applicant . However , during the inspection of CARDINAL DATE the surveillance had been discontinued and the intelligence thus obtained had been delivered to the Chief Secretary of ORG and had later been destroyed . The prosecutor therefore found that the first applicant had not suffered any damage , as the intelligence gathered had been destroyed . He further found that Mr S.B. and PERSON had acted in accordance with LAW , which only required the Minister to be informed about secret surveillance in urgent cases .

On DATE the applicant appealed to ORG . He indicated several allegedly unclear points , among which : the reason why the case had been considered urgent ; whether PERSON and PERSON I.I. were competent to request the application of secret surveillance and the reasons for considering that no surveillance had taken place between CARDINAL and CARDINAL DATE .

By a decision of DATE ORG quashed the appealed order for lack of sufficient reasoning and remitted the case for further investigation . It noted that the public prosecutor had not explained why he deemed that there had been a situation of urgency justifying the application of section CARDINAL of the ORG , nor why the CARDINAL accused had failed to inform the Minister immediately , as the ORG required . It went on to hold that the possible surveillance of the first applicant for DATE after the expiration of the permission had also not been investigated .

NORP The investigator questioned the CARDINAL accused . They stated that they had sent the requests to the Minister for approval on DATE , together with some of the material gathered .

By an order of CARDINAL DATE a prosecutor from the GPE district military prosecutor ’s office again terminated the proceedings . He found that the Minister had given oral permission for surveillance of the first applicant on DATE . The CARDINAL accused had sent him the first envelope containing intelligence on DATE . The requests for covert surveillance had been sent on DATE together with the second portion of intelligence . The last envelope had been sent on DATE . He found that while the Minister had not approved the secret surveillance in writing , he had in any event given oral permission and the CARDINAL accused had acted pursuant to section CARDINAL of the ORG . The prosecutor noted that the Minister denied having given any oral permission for secret surveillance . However , he assumed that the Minister must have known about it , as the first results from it had been sent to him in DATE . The prosecutor further found that in the period DATE secret surveillance was indeed still deployed , as time had been necessary for their dismantling , but no intelligence had been gathered during this period . He also held that although the Minister had not been informed immediately , this was a trivial breach of the procedure which did not amount to a criminal offence as no damage had been inflicted on the first applicant .

On DATE the first applicant appealed further , reiterating his arguments and emphasising the Commission ’s finding that on DATE his office was still under secret surveillance .

NORP In a final decision of DATE ORG dismissed the appeal and terminated the proceedings . It relied on the prosecutor ’s findings , and held that the accused officers had acted in accordance with the law and that the first applicant had not suffered any damage from their actions . PERSON and Mr. PERSON had been dismissed on disciplinary grounds , but ORG had quashed the dismissal and ordered their reinstatement , thus finding that their actions had been lawful . The court also held that the case had been urgent as it had concerned the head of LOC and that no secret surveillance had taken place outside the permitted time - limit .

According to the information made available to the ORG , no investigation was ever opened against the first applicant in connection with any criminal activity or unlawful conduct .

On an unspecified date in DATE the first applicant initiated private criminal proceedings against PERSON and PERSON for insult and libel , and joined a civil claim for damages , in relation to allegedly insulting statements made by them on a local radio station and in a newspaper in DATE relating to his personality and his work as head of LOC .

In a judgment of CARDINAL DATE the ORG acquitted the defendants of the charges of insult and found them guilty of libel , sentencing them to a fine . It also awarded damages to the first applicant .

On DATE the ORG quashed this judgment for breaches of procedure and remitted the case for fresh examination .

In a court hearing on DATE the ORG terminated the proceedings , as the statutory limitation period for the offences had expired . The court did not rule on the civil claim , as it found that after the remittal the first applicant should have been designated a civil claimant again . This had not been possible however as no hearing on the merits had taken place after the remittal .

On an unspecified date in DATE the first applicant brought a civil action against PERSON and PERSON for insult and libel . In a judgment of DATE ORG partly allowed the action . On appeal on CARDINAL DATE the ORG quashed that judgment , holding that the first applicant had not proved that he had sustained any non - pecuniary damage in connection with the GPE statements . On DATE ORG upheld the judgment of ORG , with similar reasoning .

The relevant provisions of the LAW of DATE are :

“ CARDINAL . The private life of citizens shall be inviolable . Everyone shall have the right to be protected against unlawful interference with his private and family life and against encroachments on his honour , dignity and reputation .

No one may be spied on , photographed , filmed , recorded , or subjected to similar actions without his or her knowledge or despite his or her express disagreement , except in cases provided for by law . ”

“ The home shall be inviolable . No one may enter or remain in it without the consent of its inhabitant , except in the cases expressly specified by law . ”

“ CARDINAL . NORP The freedom and secrecy of correspondence and other communications shall be inviolable .

NORP This rule may only be subject to exceptions with the permission of the judicial authorities , when necessary for uncovering or preventing serious offences . ”

“ ORG shall have the right to information from state bodies or agencies on any matter of legitimate interest to them , unless the information is a state secret or a secret protected by law , or affects the rights of others . ”

Under LAW of DATE ( “ the ORG ” ) , as in force at the relevant time , only several exhaustively listed bodies , including the regional directorates of ORG , could request the use of special means of surveillance and draw on the intelligence obtained thereby ( section CARDINAL of the SSMA ) . Section CARDINAL of the ORG specified that it was the head of the respective service who could start the procedure for deploying such measures by lodging a written application with the relevant court .

After a judicial warrant had been issued , the Minister of the ORG or a deputy minister designated in writing by the Minister was to make a written order for the deployment of special means of surveillance ( section CARDINAL ) . In urgent cases the deployment could start immediately upon the issue of the judicial warrant ( section CARDINAL ) . However , in that case the Minister or the deputy minister was to be informed immediately ( ibid . ) . In a judgment of DATE ( реш. № CARDINAL от DATE г. по ORG № CARDINAL/CARDINAL г. ) ORG found that the written approval of the Minister of the ORG was of a technical nature and could be given after the beginning of the surveillance , while the existence of a court warrant at the time of deployment of the surveillance measures was essential for their lawfulness . As regards what was considered an “ urgent case ” , in its judgment of DATE ( реш. № CARDINAL от DATE г. по в.н.о.х.д. № DATE г. ) ORG stated that this issue was to be determined by the body conducting the surveillance and that its discretion was not amenable to judicial review .

The remainder of the ORG provisions and other legislation relevant to the application of means of secret surveillance as well as judicial practice on this issue have been summarised in paragraphs § § DATE of the ORG ’s judgment in the case of ORG and PERSON v. GPE ( no . CARDINAL , DATE ) .

Following the ORG ’s judgment in ORG and PERSON ( cited above ) , on DATE the Government laid before ORG a bill for the amendment of the ORG . The explanatory notes to the bill referred to the above - mentioned judgment and to the need to bring the LAW in line with the requirements of the LAW . The bill was enacted on DATE and came into force on DATE . Along with a host of other changes , the amendment created ORG , an independent body whose task was to oversee the services authorised to use such means . On DATE ORG adopted further amendments to the LAW , abolishing the ORG and replacing it with a special parliamentary commission vested with similar competence . Its powers included inspecting the LOC where the information or documents connected with covert surveillance were kept or disposed of , requesting information from the bodies using surveillance measures , reporting to the ORG , and making recommendations on the work of the competent bodies . It could also inform individuals , under certain conditions , that unlawful surveillance measures had been applied in respect of them .

Pursuant to LAW , the manufacture , use , sale and retention of special technical means for secret gathering of information without authorisation received in accordance with the law is an offence . The offence is aggravated if it is committed by an official in connection with his or her duties .

Article CARDINAL of the ORG provides that the abuse and excess of power and failure to carry out duties associated with an office held , resulting in damage being inflicted , is an offence .

Section CARDINAL of the DATE State and ORG ( “ the ORG ” ) , as amended in DATE , provides as follows :

“ The ORG and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions , actions or omissions by their organs and officials , committed in the course of or in connection with the performance of administrative action . ”

Section CARDINAL(CARDINAL ) of the ORG provides for liability of the investigating and prosecuting authorities or the courts in CARDINAL situations : unlawful detention ; bringing of charges or conviction and sentencing , if the proceedings have later been abandoned or the conviction has been set aside ; coercive medical treatment or coercive measures imposed by a court , if its decision has later been quashed as being unlawful ; and serving of a sentence over and above its prescribed duration .

On DATE a new point CARDINAL was added to section CARDINAL(CARDINAL ) . It provides that the ORG is liable for the damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special surveillance means . There is no reported caselaw under that provision .

According to the caselaw ORG and ORG , the liability provisions of the SMRDA – including those added after the LAW was originally enacted – confer on the persons concerned a substantive right to claim damages , and have no retroactive effect ( see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

The pertinent provisions of LAW of DATE , applicable at the relevant time , and other relevant legislation and practice , have been summarised in paragraphs CARDINAL of the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) .