STAATKUNDIG GEREFORMEERDE PARTIJ v. THE NETHERLANDS

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra

NORP The applicant body is an association under GPE law . Named ORG ( LOC , hereinafter “ ORG ” as per its acronym in NORP ) , it functions as a political party . Before the ORG the ORG is represented by ORG , ORG and ORG PERSON , lawyers practising in GPE , GPE and ORG , respectively . ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. PERSON , of ORG .

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

The ORG was founded in DATE and has , since DATE , consistently held CARDINAL to CARDINAL seats in ORG ( ORG ) of ORG .

The ORG is a confessional political party firmly rooted in historical ORG . Both the ORG ’s Statement of Principles ( Program PERSON ) and its articles of association ( statuten ) state that the party bases itself directly on the infallible Word of God as revealed in the Bible . In addition to the Bible , the ORG acknowledges the Three Forms of Unity ( PERSON van GPE ) accepted by churches of ORG tradition , namely ORG ( PERSON ) , ORG ( PERSON ) and the ORG of PERSON ( Dordtse Leerregels ) .

With its strong emphasis on religion as the inspiration of its politics , the ORG draws its membership from among Reformed NORP believers of a traditional inclination but it has no formal links with any particular church .

It is a basic tenet of the ORG that Government should govern as God ’s servant according to the Word of God . Government derives its authority not from the people , but from God Himself . This view is derived from scripture ( NORP CARDINAL:CARDINAL and CARDINAL ) .

The ORG does not aim , in the first place , to win the majority of votes of the electorate , but rather it strives to promote and implement its principles . It uses ORG as its arena to express those principles .

The ORG professes the absolute authority of the Word of God over all areas of societal life . The ORG rejects the idea of absolute equality of human beings , which it sees as false teaching of the French Revolution . In essence , the ORG believes that , although all human beings are of equal value as God ’s creatures , differences in nature , talents and place in society should be recognised . Scripture ( in particular CARDINAL Corinthians CARDINAL ) teaches that men and women have different roles in society . Thus , women are not inferior to men as human beings ; but unlike men , women should not be eligible for public office .

Articles DATE and CARDINAL of the applicant party ’s Statement of Principles spell out this view . They read as follows :

“ The Word of God holds that , on the basis of the order of creation , man and woman have each been given their own and distinct mission and place . In this order the man is the head of the woman . Any measures aimed at acknowledging the equality of men and women are to be regarded positively . Every effort at emancipation that negates the God - given mission and place of men and women is considered revolutionary and has to be combated forcefully . ”

“ The notion of [ the existence of ] a right to vote for women which results from a revolutionary striving for emancipation is incompatible with woman ’s calling . The latter equally holds true for the participation of women in both representative and administrative political organs . Women shall be led by their consciences as regards the question whether casting their vote is in accordance with their God - given place . ”

In its application form , the ORG emphasises that it considers its scriptural points of departure and principles to be crucial . They constitute the ultimate foundation for the functioning of the party in practice and they represent the deeply - rooted and profoundly - felt religious convictions of the party itself and its members . They are , indeed , felt to be the ORG ’s raison d’être .

The ORG maintains a political youth organisation , “ ORG Youth ” ( ORG - jongeren ) , and a political science institute , ORG ( ORG , named after the author of ORG ) .

The ORG ’s income consists of membership fees , Government subsidy , donations and bequests , proceeds from the sale of its periodical , interest payments and income not elsewhere included . According to the ORG ’s DATE report , the party ’s total income in DATE was QUANTITY ( ORG ) , of which ORG CARDINAL,CARDINAL ( including arrears referable to DATE in an amount of some EUR CARDINAL ) consisted of Government subsidy .

On DATE after the rulings of ORG in the civil proceedings ( see below ) – the ORG amended its Principles to enable women to become members of the party . Since DATE the ORG has admitted women members , though still without allowing them to stand for election to public office .

A group of non - governmental organisations , the PERSON test case foundation ( PERSON proefprocessenfonds PERSON , named after an DATE suffragette ) , the GPE section of ORG ( PERSON voor de Mensenrechten ) , ORG ( PERSON ) , ORG , ORG ( PERSON , ORG ) , ORG ( PERSON GPE ) and other private associations and foundations which later abandoned the proceedings ( hereinafter “ PERSON and Others ” ) lodged a pair of actions under GPE civil law , one against the ORG , the other against the ORG , with the civil section of ORG ( rechtbank ) of GPE .

Their actions were brought pursuant to article CARDINAL:CARDINALa of LAW ( Burgerlijk Wetboek ) . They were based on the associations’ and foundations’ goals as stated in their articles of association ; as relevant to the case before the ORG , these included the protection of women ’s rights and interests . The grounds on which these actions were brought were , for all practical purposes , the same .

PERSON Foundation and Others stated that owing to the differential treatment according to gender laid down in its articles of association , the ORG violated fundamental rights of equal treatment of men and women and fundamental rights in terms of the right of women to political participation . In this sense , so it was argued , the general interest of society as such in the elimination of discrimination was being violated . It was claimed that the ORG would not allow women membership of the party and consequently to stand for election to organs of general representation , nor certain other privileges reserved to men . This violated LAW . CARDINAL of the Convention in conjunction with LAW No . CARDINAL of the Convention , Articles CARDINAL and CARDINAL of the DATE LAW , LAW on the Elimination of All Forms of Discrimination against Women and relevant provisions of LAW .

In the proceedings against the ORG PERSON and Others asked ORG to hold that the ORG ’s position was in violation of the treaty and constitutional provisions aforementioned and consequently wrongful in respect of themselves and/or the persons whose interests they defended ; to order ORG to change its bye - laws accordingly ; and to annul the provisions of the ORG ’s bye - laws that created differential membership status between men and women . In the proceedings against the ORG , they sought the same finding of violations of treaty and constitutional provisions and an order for measures to put an end to what they argued was an unlawful situation .

On DATE ORG delivered judgments in both cases .

In the judgment given in the case against the ORG itself , ORG found that the plaintiffs lacked standing on the ground that they had no legal interest . This finding was based essentially on the fact , as established , that no women had come forward who subscribed to the principles of the ORG and wished to become members for that reason . Although an appeal was lodged against this judgment with ORG ( gerechtshof ) of GPE , the proceedings were not actively pursued and ORG eventually struck the case out of its list .

In the judgment given in the case against the ORG , ORG found that the ORG had violated LAW by having granted subsidies to the ORG pursuant to LAW ( Wet subsidiëring politieke partijen ) . LAW was held to be binding and to have direct effect in accordance with the GPE constitution . ORG held that in having granted subsidies to the ORG , the ORG had acted unlawfully against PERSON and Others , having regard to the ORG ’s obligation to protect women ’s rights based on , in particular , LAW . The ORG was ordered to refrain from granting any such subsidy to the ORG for as long as the party continued to deny women membership of the party on an equal footing with men .

Based on this judgment CARDINAL rather distinct sets of proceedings and appeals ensued , the first under GPE administrative law , the second under GPE civil law . They will be discussed separately below .

On DATE the Minister of the Interior and ORG ( Minister PERSON en GPE – “ the Minister ” ) , taking the view that he was bound by ORG judgment , rejected the ORG ’s application for a subsidy pursuant to LAW .

The ORG lodged an objection ( bezwaar ) with the Minister against this decision . With the Minister ’s permission , the objection was referred to the administrative law section of ORG of GPE for adjudication without a prior administrative decision .

NORP By decision of CARDINAL DATE ORG rejected the ORG ’s appeal against the refusal to grant a subsidy , holding that , in view of ORG judgment in the civil proceedings , the Minister would have acted unlawfully if he had granted the subsidy .

On DATE the ORG lodged further appeal with ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State – “ the Administrative Jurisdiction Division ” ) .

PERSON Foundation and Others were granted leave to join the proceedings as a third party .

In its judgment of CARDINAL DATE ORG acknowledged that LAW was binding and had direct effect but should not be construed as precluding the Minister from granting subsidies to the ORG pursuant to LAW as long as that party continued to bar women from membership of the party and , consequently , from standing for office in , among other legislative bodies , ORG .

ORG considered that while LAW ) of the Convention on the Elimination of All Forms of Discrimination against Women provided that women should be ensured , on equal terms with men , the right to participate in non - governmental organisations and associations – which included political parties – , the text did not require that women should be ensured the right to participate in “ all ” such organisations and associations . Nor did the travaux préparatoires of ORG admit of such an interpretation of LAW .

ORG went on to consider that in many GPE , including the GPE , the democratic structure of the state ( democratisch staatsbestel ) , including the right to vote , was DATE like the women ’s rights codified in the Convention on the Elimination of All Forms of Discrimination against Women – imposed by public international law . Application of Article CARDINAL of the Convention on the Elimination of All Forms of Discrimination against Women to a political party would , so it was held , encroach not only on the freedom rights of political parties , but also on the public interest of sufficient representation of the full electorate , as foreseen in the GPE constitutional order . This included the representation in the elected bodies of small minorities with views divergent from those held by the majority , as long as any such views did not violate criminal law .

The rights of women as found , for the purposes of this case , in LAW should be weighed against other internationally recognised rights of political parties : those of freedom of religion and conscience , freedom of assembly and association and freedom of expression .

LAW was aimed not at the financial stimulation of individual political parties , but served the public interest of creating a situation in which – among other things – the various religious beliefs that might exist in society were broadly reflected . The fact that LAW provided that all parties represented in the GPE parliament be granted subsidies on the same conditions – except when their conduct had led to a criminal conviction of illegal discrimination as provided for in LAW showed that the GPE legislature had explicitly chosen to leave to the judiciary any issues of denying subsidies to particular parties based on discrimination . ORG endorsed this approach by holding that political parties , even those with opinions deviating from the majority , should not be excluded from participation in the public debate , provided that such deviating opinions did not violate criminal law . Otherwise , the legitimacy of the public debate would be compromised .

ORG also attached value to the fact that in the GPE women were not precluded from joining DATE other – political parties and stand for election on equal terms with men . It held that nothing prevented women wishing to stand for office but otherwise adhering to views and convictions like those adhered to by the ORG from founding their own political party and possibly benefiting from subsidies granted pursuant to LAW . Therefore no real infringement of the rights guaranteed to women by LAW obtained in the GPE .

With reference to ORG judgments in the cases of ORG ( ÖZDEP ) v. GPE ( [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINAL-VIII ) and PERSON ( ORG ) and Others v. GPE ( [ ORG ] , ORG . ORG , CARDINAL , ORG and CARDINAL , § CARDINAL , ORG CARDINAL-II ) , ORG also pointed out that the ORG considered that GPE should show restraint in limiting the freedoms of political parties since they were essential for the proper functioning of a pluralistic and NORP society . Intervention in the functioning of political parties could only be justified in cases where a domestic court had found that a political party constituted a danger to the democratic legal order ( democratische rechtsorde ) . This was not so in the present case .

ORG thus granted the appeal lodged by the ORG and ordered the Minister to take a fresh decision based on its judgment .

The ORG appealed to the civil section of ORG against the judgment of the civil section of ORG of GPE DATE . ORG granted the ORG leave to join the ORG as a party to the proceedings .

In its judgment of CARDINAL DATE ORG reiterated that the ORG had codified in its Statement of Principles , which were based on the Word of God , that the man is the head of the woman and that the woman was not allowed to be elected to Government office . It further held that PERSON and Others , the respondents in appeal , were not to be denied standing and that LAW was directly binding on the ORG . It remained to be assessed whether the ORG had violated said provision .

ORG noted that the ORG distinguished between men and women to the extent that women were not allowed by the party to stand for election , without there being an objective justification for this difference in treatment . Women were , by that time , allowed to become members of the party , but were explicitly barred from standing for election . The ORG had sought to justify this distinction solely with reference to its religion , which was dismissed as not constituting objective justification .

In failing to take adequate measures to prevent the ORG from proceeding in this manner , the ORG had acted in violation of LAW as well as of ORG and CARDINAL of LAW .

In the proceedings before ORG , the ORG had argued that forcing the party to allow women to stand for election would violate its right to freedom of religion , of expression and of association as laid down in ORG CARDINAL of the Convention . ORG considered that the breach of the prohibition of discrimination based on gender of which PERSON and Others accused the ORG should be weighed against the rights invoked by the ORG , provided those latter rights were indeed infringed by the finding that the prohibition of discrimination had been breached .

As regards LAW , ORG held that this provision did not guarantee an absolute right to freedom of religion . Expressions of religious belief should only be protected when they were a direct expression of that religion . ORG found that , in spite of the deeply religious motives underpinning it in this particular case , preventing women from standing for election did not constitute conduct protected by LAW as such conduct could not be defined as a direct expression of the ORG ’s religious beliefs . ORG similarly failed to see how the ORG would be hindered in exercising its religious beliefs if it did not , or were forced not to , deny its female members the right to stand for election . Even if compelling the ORG to allow women to stand for election was to be construed as an infringement of its right to freedom of religion , such compulsion would not touch upon the core of that right ; that core was the protection of personal religious beliefs and acts closely connected to it , such as acts of worship in the context of generally accepted religious ceremonies . The connection between the core of LAW and the practice of excluding women from the right to stand for election was therefore relatively tenuous .

As regards LAW , the ORG had argued that granting the female members of the party the right to stand for election would violate the party ’s PERSON right , protected by LAW , to assemble and to organise their party in accordance with their principles and , secondly , to their right freely to choose , without ORG intervention , who to elect as their representatives .

The Court of Appeal agreed with the ORG that forcing the party to allow women to stand for election would conflict with its ideological basic principles and would thus infringe its rights under LAW . However , there was nothing preventing the ORG from organising itself otherwise and , bar this particular element , wholly in accordance with its basic principles . ORG further held that if and when the ORG was forced to allow women to stand for election , nothing precluded it from freely deciding on such issues as composition of lists of candidates standing for elections and what political opinions such candidates should express . Such political opinions , ORG held , could also include those not shared by the majority in the GPE , namely that women were by definition not suited for any Government office .

ORG considered that neither the ORG nor the ORG had substantiated how having to allow female members to be able to stand for elections would infringe the ORG ’s rights under LAW . It reiterated that nothing would preclude the ORG from expressing its opinions about women while allowing women to stand for election .

In terms of balancing these conflicting rights , ORG had regard to the fact that the Convention did not allow any exceptions to the prohibition of discrimination based on gender , whereas it did allow certain limitations to the rights of freedom of religion , of assembly and association and of expression . Although not considering it to be decisive , it did attach value to this difference .

ORG attached great importance to the fact that the alleged discrimination of women occurred in the context of a political party , rather than some other association that did not manifest itself in the public domain . It considered that political parties played an essential role within the democracy and a central one within the GPE electoral system , where one could only stand for office as a candidate for a political party . ORG concluded that a democracy based on the rule of law ( rechtsstaat ) was fundamentally affected if representative bodies were formed , albeit to a small extent , through a process that violated the prohibition of discrimination based on gender . It had to be weighed against this that , as ORG had already held , allowing women to stand for election did not infringe in their core the rights invoked by the ORG .

The Court of Appeal therefore concluded that the interest of maintaining the prohibition of discrimination should outweigh the rights invoked by the ORG , and that it was thus for the ORG to take measures effectively leading the ORG to grant women the right to stand for election . It added that the ORG ought to deploy a measure that was both effective while at the same time not impinging on the fundamental rights of the ( members of the ) ORG any more than was necessary .

Unlike ORG , however , ORG found that the ORG could not be ordered to stop granting subsidies to the ORG pursuant to LAW as the judiciary in the GPE had not the competence to order the ORG to take specific measures of any kind . Consequently ORG overruled ORG judgment on this particular point .

The ORG and the ORG each lodged a separate appeal on points of law ( cassatie ) to ORG ( PERSON ) . ORG joined the cases . All CARDINAL appeals – PERSON Foundation and Others , the ORG and the ORG – were declared admissible .

ORG reasoning on the merits included the following :

“ CARDINAL.CARDINAL.CARDINAL . NORP The central issue in this case is the ORG ’s view that women should not enjoy the right to stand for election to the general representative bodies of government . This view is expressed in LAW ORG ’s Statement of Principles .

The rejection of the right of women to stand for election is grounded in the ORG ’s conviction that in God ’s order of creation men and women are admittedly complete equals ( they are ‘ an equal bi - union within GPE ( een gelijkwaardige tweedeling binnen de schepping ) but not the same and that they each have received their own specific , distinct calling and place . In this order , the man is the head of the woman : ‘ The man was created first by God . The woman was taken from the man . In this [ order ] , the woman is “ subordinate ” to the man , who is invested with “ responsibility ” , but definitely not PERSON ( LAW with explanatory report ) . For that reason government is reserved for the man . This excludes the woman from government , which means that she should not be a member of political organs , whether representative or executive . The consequence of that , in the ORG ’s view , is that women do not enjoy the right to stand for election ( explanatory report on LAW [ of the Statement of Principles ] .

CARDINAL.CARDINAL.CARDINAL . The ORG as a political party expresses its rejection in practice of women ’s right to stand for election by not nominating women as candidates for election to general representative government bodies . The issue in the present case is whether the ORG should take action against this .

It is no longer an issue that the ORG did not admit women as ( ordinary ) party members either , as since the change in the bye - laws of DATE women can be members of the ORG with voting rights in the general assembly and the right to be office - holders within the party . In the view of the ORG , incidentally , one can only become a member of the ORG if one subscribes to its basic principles and aims , including the Statement of Principles , so that all members , including female members , are legally bound to the Statement of Principles and the consequent view that government office and therefore the right to stand for election to general representative organs is not for women . The ORG is considering requiring new members to sign a written statement to the effect that the aspiring member subscribes to the basic principles and aims of the ORG .

DATE . It follows [ from the direct applicability of LAW ) of the Convention on the Elimination of All Forms of Discrimination against Women ] that the ORG has the duty towards its citizens , based on the provisions mentioned of ORG , to ensure that political parties do not merely admit women as members , in so far as membership of a party is required for nomination as a candidate , but also to admit them to nomination as candidates itself . Only thus can the ORG effectively secure to women the right to stand for election as the Convention on the Elimination of All Forms of Discrimination against Women demands . The Convention on the Elimination of All Forms of Discrimination against Women does not leave the ORG any margin of appreciation on this point .

CARDINAL.CARDINAL.CARDINAL . The above does not alter the fact that the right of women to equal treatment , as set out in , inter alia , LAW , may in particular cases come into conflict with other equally important basic rights , including freedom of religion and freedom of association , and that these rights must be weighed against each other in order to decide which should prevail . There is no reason to assume , as PERSON and Others argue , that this balancing exercise has been done already in LAW .

The ORG ’s and the ORG ’s position therefore raises the question whether an exception to equal rights for women , as set out in LAW , can be accepted in relation to the right to stand for election in a case like the present , in which a political party whose political aims are grounded on its religious convictions , based on these convictions deny women nomination as candidates for election to public elected bodies . In view of what follows , this question must be answered in the negative .

The basic rights of freedom of religion and freedom of association DATE and of course also freedom of expression , which , for the matter now in issue , has little if any independent significance next to the basic rights just mentioned DATE guarantee that citizens may unite in a political party on the basis of a religious or philosophical conviction and may express their conviction and the political principles and programmes based thereon within the framework of that party .

In a democratic state governed by the rule of law , however , those principles and programmes may only be given practical effect within the limits posed by laws and treaties .

The general representative bodies represent the entire population without making distinctions among the citizens of whom it is made up . They form the heart of the democracy and a guarantee for the democratic content of the ORG . The rights to vote and to stand for election are essential to guarantee the democratic content of these bodies . Both LAW taken together with its LAW and , as far as women are concerned , LAW guarantee to everyone , without any distinction based on gender , the right to elect members of these bodies as well as to be elected to them . The said provisions mention the right to vote and the right to stand for election in the same breath , thus expressing that in a democracy they are each other ’s necessary pendant , since the voters must be able to determine for themselves who among them should be eligible .

Seen thus , since the possibility to exercise the right to stand for election goes to the core of the ORG ’s democratic functioning , it is unacceptable that a political formation in composing its lists of candidates violates a basic right that guarantees the elective rights of all citizens , regardless of whether such action reposes on a principle rooted for that formation in its religious or philosophical convictions . To that extent , the prohibition of discrimination set forth in LAW , Article CARDINAL taken together with LAW and , in the particular context of the present case , LAW outweighs the other basic rights in issue .

It follows from the above that the ORG ’s violation of the basic right , guaranteed by the LAW and the said treaties , to be allowed to stand for election on an equal footing with men is not justified by the fact that its view of woman ’s calling and place in society is directly rooted in its religious conviction . Admittedly the ORG can not be denied its conviction and the civil courts are not even competent to express an opinion on the question whether that conviction is of greater or lesser importance in the faith of the members of the party , and admittedly a democratic legal order requires tolerance in relation to opinion rooted in religious or philosophical convictions . All that , however , does not prevent the courts from finding the way in which the ORG puts its convictions into practice in nominating candidates for general representative bodies unacceptable .

The ORG ’s specific obligations and the claims of PERSON and Others

CARDINAL.CARDINAL.CARDINAL . It follows from the above that the ORG was wrong to take the position that its own balancing exercise entitled it not to take any measures against the ORG ’s failure to admit women to its lists of candidates for election to the general representative bodies .

ORG was therefore right to conclude in [ its ] judgment that the ORG is under an obligation to take measures that will actually lead to the ORG granting the right to stand for election to women and that the ORG must adopt a measure to that purpose that will at the same time be effective and impinge as little as possible on the basic rights of the ( members of the ) ORG .

It does not follow , however , that the courts are competent or able to order the ORG to take specific measures to put a stop to the ORG ’s discrimination as regards the right of its female members to stand for election .

As was held in ORG judgment of DATE , [ ( ORG [ National Jurisprudence Number ] , “ LJN ” ) ORG ] , the courts have not the competence to order the ORG to enact statutory legislation . The cross - appeal brought by PERSON and Others fails on this point . Leaving aside the fact that PERSON and Others have not , even in their cross - appeal in both cases , indicated what other measures the ORG would be in a position to take ( apart from blocking the subsidy , which will be discussed hereafter ) , it is in the present case , which concerns the interrelation between a political party and the ORG , all the less possible in principle to give a court order for specific measures to meet the requirements of LAW because the choice of such measures to be taken by the ORG requires a balancing of interests which coincides with political assessments to a degree that can not be expected from the courts .

This also applies to an order blocking the subsidy allotted to the ORG by the ORG . Moreover , as ORG of ORG held [ see paragraphs DATE above ] , neither LAW , nor LAW , nor the LAW requires this and present legislation does not offer that possibility apart from the situation , which does not obtain in the present case , of a final and binding judgment of a criminal court convicting of discrimination within the meaning of the penal provisions contained in section QUANTITY of LAW .

For the same reason set out in the second sub - paragraph , ORG rightly denied PERSON and DATE claim for an order to put an end to an unlawful situation within a time - limit to be set by the court at its discretion , quite apart from the fact that the ground on which any court might consider ordering such a vague and general prohibition is unclear . ”

ORG delivered its judgment on DATE . No further appeal lay against it .

By letter of CARDINAL DATE the applicant party informed ORG following developments .

On DATE ORG adjudicated a case relating to the present one , in which the ORG was the defendant party . An appeal had been lodged by an interested party against the decision of DATE of the principal electoral committee ( hoofdstembureau ) to declare valid the list of candidates submitted by the ORG for the elections of the members of ORG ( ORG ) .

It was argued before ORG that the list submitted by the ORG should have been declared invalid as the ORG discriminated against women by , in breach of LAW , not allowing them to become eligible for public office , including ORG . Since the ORG had failed to take appropriate measures against the ORG ’s conduct , as ordered by ORG by judgment of DATE ( supra ) , the list submitted should have been declared invalid .

ORG rejected the appeal . It noted that ORG judgment had held , specifically , that it was to be left to the GPE legislature to take appropriate measures to end the illegal situation .

LAW ( PERSON ) , ORG further considered , was also specifically drafted so as to leave issues pertaining to legitimacy of political parties’ goals and motives to the prerogative of the judiciary , with article I CARDINAL of that Act enumerating , exhaustively , grounds rendering lists of candidates invalid . The principal electoral committee had thus been limited by law to scrutinising lists of candidates only against those grounds for invalidity found in LAW . Given that a failure to comply with LAW did not feature in article I CARDINAL , ORG concluded that the principal electoral committee had correctly not examined the compatibility of the list of candidates submitted by the ORG with said LAW .

On DATE the Minister of the Interior and ORG wrote to the ORG ’s governing body ( hoofdbestuur ) in the following terms :

“ ORG , in its judgment of DATE on the subject of the passive voting rights of women in your party , has held that the ORG must take a measure that is at once effective and interferes as little as possible with the basic rights of ( members of ) the ORG .

I am aware that you have since lodged an application against the judgment with ORG . I am proceeding on the assumption that some time will TIME before the ORG will give its decision in the case , the more so if it has to deal with the substance of the extremely fundamental questions of principle here in issue . For me too , it is important in taking such a measure that I should be in a position to take into account the ORG ’s view on these matters of principle . However , I feel that I can not wait if at this time there is a legal obstacle to a woman to exercise her passive voting rights in your party ( indien er op dit moment in juridische zin een beletsel zou zijn voor een vrouw om haar passief kiesrecht uit te oefenen in uw partij ) .

In view of the above , I would appreciate your ORG ’s answers to the following questions :

Do your bye - laws or rules , including the Statement of Principles , impose impediments ( belemmeringen ) in a legal sense on women who are members of your party to stand for election to a representative body ?

In drawing up your lists of candidates , do you follow procedures which hinder the eligibility of women ?

In considering the candidates who come forward , do you apply any selection criteria other than their suitability to act as members of representative bodies on behalf of your ORG ?

If there are any impediments on any one of the former points , are you prepared to remove them ? ”

On DATE the governing body of the ORG replied in the following terms :

“ In your letter of CARDINAL DATE you have put several questions to the governing body of the ORG . The governing body will deal with them in succession .

Your first question is whether the bye - laws , rules or Statement of Principles impose impediments in a legal sense on women who are members of the ORG to stand for election to a representative body .

In DATE the bye - laws and rules of the ORG were modified by a decision of its members at a general meeting , so that members of the ORG are now referred to as ‘ persons’ , see section CARDINAL of the bye - laws . The same applies to standing for election to representative bodies , see sections CARDINAL - CARDINAL of the rules . A difference made between men and women members was actually removed from these provisions in DATE .

Your second question concerns the possible use of procedures in drawing up lists of candidates which might hinder women in standing for election . The ORG applies no formal selection criteria other than the general standard set out in sections DATE of the rules , which require that candidates should be members considered to be faithful to the ORG ’s principles and suitable , in which age , church involvement and occupation are relevant factors . Women members , like all members , have the possibility to contribute actively in the selection of candidates for election to representative bodies ( een actieve bijdrage te vervullen bij de kandidaatstelling van volksvertegenwoordigers ) , and also to add items to the agenda , etc .

Lists of candidates are drawn up after the advice of a selection advisory board has been obtained . The only formal restrictions in the rules are constituted by the length of membership of ORG ( DATE ) and where appropriate an age criterion for persons who are not yet members of the representative body concerned . No further procedural restrictions can be derived from the rules .

You next ask whether within the ORG , in considering the candidates who come forward , any selection criteria are applied other than their suitability to act as members of representative bodies on behalf of the ORG . Every selection advisory board must , as in any party , seek out members who can be considered to promote the ORG ’s principles . These principles , as set out in the Statement of Principles , form the core of the ORG . ORG members have been pursuing politics based on these principles for DATE . The ORG ’s so - called ‘ position on ORG ( vrouwenstandpunt ) is a part of a more enveloping view of Bible - based politics ( meeromvattende visie op Bijbelgenormeerde politiek ) on which the ORG operates . Every candidate is expected to be able to be politically active on the basis of this more enveloping view of Bible - based politics . It is for the various selection advisory boards to give a reasoned opinion on this point .

In view of the negative answers to your above questions , the governing body can not answer your last question , that is , whether the governing body is prepared to remove any impediments .

That concludes the answers to your questions .

The governing body would wish to make the following , perhaps entirely unnecessary , remark . The governing body has submitted an application to ORG in GPE because the ORG finds ORG judgment of DATE unacceptable . The grassroots support of the ORG across its full width considers itself deeply affected and harmed in its constitutionally protected freedoms , including freedom of religion , freedom of expression and the freedom to set up a political association and promote its principles in representative bodies . ”

On DATE the Minister of the Interior and ORG wrote to the Speaker of ORG of ORG in the following terms :

“ In a judgment of DATE ORG has held that ORG was correct in finding that the ORG was under a duty to take measures to ensure that the ORG grants the right to stand for election to women ; the ORG is required , in so doing , to apply a measure that is at once effective and least liable to impinge on the basic rights of ( members of the ) ORG . Following this judgment , the ORG has lodged an application with ORG in GPE ( ‘ the ORG ) , because the ORG considers as a matter of principle that it ought to be free to act according to the principles held within the party . The lodging of this application does not suspend the execution of the judgment of ORG .

This does not alter the fact that executing the judgment of ORG can make serious inroads and requires care and preparation , also in view of the fundamental rights at stake . For that reason I consider it indicated to take the ORG ’s judgment into consideration before arriving at a final decision in this complex matter .

In preparing to execute the judgment of ORG I have ascertained , among other things , whether there is at this time a formal ( legal ) impediment preventing women from exercising their right to stand for election within the ORG .

Against this background , I have asked the ORG ’s governing body whether there are currently any restrictions for women in bye - laws , or related rules , or in the procedures or selection criteria operated by the governing body , other than suitability of the candidates as perceived by the governing body . The governing body has informed me that no such formal impediments exist . I attach the relevant correspondence . I am of the view that this will suffice for now and will consider the need and desirability of possible legal measures after the ORG has expressed itself . ”

This letter was the subject of debate in ORG for the ORG ( ORG CARDINAL FAC ) of ORG of ORG on DATE . A majority of the Members present , including those elected in respect of the ORG , supported the Minister ’s proposal to await the outcome of the present proceedings before the ORG before deciding whether to take any action .

Provisions of the LAW for GPE ( PERSON voor het FAC ) relevant to the case are the following :

“ All persons in the GPE shall be treated equally in equal circumstances . Discrimination on the grounds of religion , belief , political opinion , race or sex or on any other grounds whatsoever shall not be permitted . ”

“ GPE national shall have an equal right to elect the members of the general representative bodies and to stand for election as a member of those bodies , subject to the limitations and exceptions prescribed by ORG . ”

“ CARDINAL . Everyone shall have the right to profess freely his religion or belief , either individually or in community with others , without prejudice to his responsibility under the law .

Rules concerning the exercise of this right other than in buildings and enclosed places may be laid down by ORG for the protection of health , in the interest of traffic and to combat or prevent disorder . ”

Article CARDINAL of LAW , in its relevant part , provides as follows :

“ CARDINAL . A foundation ( ORG ) or association with full legal personality ( vereniging met volledige rechtsbevoegdheid ) can bring an action purporting to protect other ORG interests of like nature ( gelijksoortige belangen PERSON ) , in so far as it protects these interests pursuant to its articles of association . ... ”

Provisions of LAW relevant to the case include the following :

“ CARDINAL . NORP The Minister [ of the Interior and ORG ] shall grant a subsidy to a political party that has taken part in the last elections held for the LOC or ORG of ORG with its name ( aanduiding ) above the list of its candidates and to whose list CARDINAL or more seats have been assigned as a result .

The subsidy shall be granted per calendar DATE .

No subsidy shall be granted to a political party which , [ on DATE of the calendar year ] , does not have CARDINAL members . ”

“ CARDINAL . For the purpose of the application of this LAW , a political party can designate CARDINAL political youth organisation and enter into a written subsidy agreement with it . A political youth organisation can be designated by CARDINAL political party .

For the purpose of the application of this LAW , a political party can designate CARDINAL political science institute and enter into a written subsidy agreement with it . A political science institute can be designated by CARDINAL political party . ... ”

“ CARDINAL . The subsidy shall be granted for expenses directly connected with the following activities :

a NORP political training and education activities ( politieke vormings- en scholingsactiviteiten ) ;

b. providing information ;

c. maintaining contacts with sister parties outside the GPE ;

d. supporting training and education activities for the cadre of sister parties outside the GPE ;

e. political science activities ;

PERSON activities aimed at promoting political participation by young people ;

g. recruiting members ;

h. involving non - members in subsidisable activities of the political party ;

i. recruiting , selecting and supporting political office holders ;

PERSON activities within the framework of election campaigns . ”

“ CARDINAL . If a political party has been sentenced to a non - suspended fine for contravening CARDINAL of ORG , d , e , f or g or LAW ( PERSON ) , its entitlement to subsidy shall lapse automatically for a period beginning on DATE on which the conviction becomes final . This period shall be :

a. DATE if the fine is MONEY ( ORG ) or less ;

b. DATE if the fine is more than EUR CARDINAL.CARDINAL but less than EUR CARDINAL.CARDINAL ;

c. DATE if the fine is more than ORG CARDINAL.CARDINAL but less than EUR CARDINAL.CARDINAL ;

d. DATE if the fine is more than EUR CARDINAL.CARDINAL . ... ”

The provisions of LAW referred to in section DATE ) prohibit public insult of groups on the ground of race , religion or philosophical conviction , heterosexual or homosexual orientation , or physical , mental or intellectual handicap ( Article ORG ) ; public incitement to hatred , discrimination or violence against others on the same grounds ( Article CARDINALd : this LAW also mentions discrimination on the ground of gender ) ; public expressions , other than in the context of factual reporting , containing such insult or incitement ( Article CARDINALd : this Article also mentions discrimination on the ground of gender ) ; participating in , or supporting , activities aimed at discriminating on the above grounds , and on gender ( Article PERSON ) ; and discrimination on the ground of race , committed professionally or in office ( LAW ) .

DATE Convention on the Elimination of All Forms of Discrimination against Women provides as follows :

“ GPE Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and , in particular , shall ensure to women , on equal terms with men , the right :

( a ) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies ;

( b ) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government ;

( c ) To participate in non - governmental organizations and associations concerned with the public and political life of the country . ”

Provisions of the DATE LAW relevant to the case are the following :

“ CARDINAL . ORG to LAW undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present LAW , without distinction of any kind , such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status .

Where not already provided for by existing legislative or other measures , ORG to the present Covenant undertakes to take the necessary steps , in accordance with its constitutional processes and with the provisions of the present LAW , to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present LAW .

ORG to the present LAW undertakes :

( a ) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy , notwithstanding that the violation has been committed by persons acting in an official capacity ;

( b ) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial , administrative or legislative authorities , or by any other competent authority provided for by the legal system of the ORG , and to develop the possibilities of judicial remedy ;

( c ) To ensure that the competent authorities shall enforce such remedies when granted . ”

“ Every citizen shall have the right and the opportunity , without any of the distinctions mentioned in LAW and without unreasonable restrictions :

( a ) To take part in the conduct of public affairs , directly or through freely chosen representatives ;

( b ) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot , guaranteeing the free expression of the will of the electors ;

( c ) To have access , on general terms of equality , to public service in his country . “

“ All persons are equal before the law and are entitled without any discrimination to the equal protection of the law . In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . ”


The applicant , a national of GPE and GPE , was born in DATE and lives in GPE , GPE . The respondent Government are represented by Mr PERSON , Agent . The facts of the case , as submitted by the parties , may be summarised as follows .

In DATE criminal proceedings on charges of fraud and other offences were initiated against the applicant and CARDINAL other suspects . On DATE the applicant was arrested . On DATE the ORG ordered his detention on remand . This decision was upheld on appeal .

After extensions of his detention on DATE , DATE , DATE , DATE and DATE , the applicant was released on DATE . He alleges that between that date and DATE he stayed at his mother ’s home in GPE , GPE .

On DATE the case - file was transferred to the public prosecutor ’s office .

On DATE a bill of indictment was preferred in the case . The applicant was charged with the offences of fraud and forgery and manipulation of documents .

On DATE the Pest Central District Court ’s mail to the applicant , which included the bill of indictment , was returned as the addressee was unknown .

On DATE ORG confirmed that the applicant could not be located at his last known address .

Having received information about the applicant ’s last address before his emigration to GPE , in DATE ORG unsuccessfully attempted to serve the bill of indictment on him at that address .

On DATE ORG in GPE issued a passport to the applicant . According to the stamps in this passport , during the period until DATE the applicant travelled to and from GPE on numerous occasions .

On DATE ORG informed ORG that the search for the applicant had been unsuccessful . On DATE an arrest warrant was issued .

A hearing was held on DATE . Observing that some defendants had absconded , ORG suspended the proceedings . Subsequently , the case was transferred to the Budapest II / III District Court .

On DATE the applicant lodged an application for a passport with ORG in GPE . On DATE ORG refused to renew his NORP passport on account of the criminal proceedings pending against him . On DATE the Minister of the ORG dismissed his administrative appeal .

Subsequently , ORG was informed of these administrative proceedings . Using the address indicated by the applicant in his passport application , the court again attempted to serve the bill of indictment on him , but without success . In response to the court ’s request , the competent ORG found out about the applicant ’s address in Csömör on DATE .

Meanwhile , apparently on DATE , the applicant left GPE and returned to GPE where he has remained ever since .

On DATE a summons to a hearing scheduled for DATE was served on the applicant ’s wife . At the hearing , however , neither the applicant nor his formerly authorised legal counsel showed up . On DATE the counsel informed ORG that he was no longer representing the applicant . The court ’s renewed summons could not be served on the applicant as he was not available at his last known address .

The next hearing was held on DATE .

The applicant ’s whereabouts remained unknown until DATE when he wrote to ORG from GPE . On DATE ORG again issued an arrest warrant . Its further attempts to summon the applicant using his last known addresses in GPE and GPE GPE remained unsuccessful .

Another hearing took place on DATE . On this occasion , the court considered the possibility of seeking the applicant ’s extradition .

On DATE ORG again suspended the proceedings , having regard to the fact that the applicant and other defendants had absconded .

On DATE ORG resumed the proceedings . It held a hearing on DATE and another hearing on DATE . On DATE , it issued an order discontinuing the criminal proceedings against the applicant on the ground that the charges had become time - barred on DATE .

According to section QUANTITY of LAW , as in force in the relevant period , a period of suspension is included in the prescription period if the proceedings are suspended because the perpetrator ’s whereabouts are unknown .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr A. Kazakov , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

On DATE the applicant was conscripted into the NORP armed forces to complete his military service . He was physically fit at the time . The applicant served primarily with ORG and was stationed in several garrisons .

On DATE he was transferred to garrison no . CARDINAL in the town of GPE to attend a radiotelegraph training course .

A medical examination of DATE pronounced the applicant physically fit .

According to the applicant his platoon commander in GPE , Lieutenant A. , started to systematically ill - treat him because he failed to meet the performance standards required of him .

The applicant visited the garrison ’s infirmary on DATE . He was diagnosed with “ neurosis ” and prescribed antidepressants .

TIME in DATE the applicant was ordered to the office of the platoon officers . PERSON , Senior PERSON and PERSON were present . According to the applicant , they criticised him for his low performance in the training course and , as punishment , ordered him to do QUANTITY . When he got down and started the pushups , PERSON and Senior PERSON started to kick him with their military boots . He was allegedly kicked numerous times in the head , neck and stomach . PERSON allegedly witnessed the beating . The officers then warned the applicant not to tell anyone what had happened .

According to the applicant , soon after that he started having problems with his vision and had pain in his neck .

On an unspecified date the applicant visited the garrison ’s infirmary . It is unclear whether any injuries were found on his person . The garrison doctor apparently diagnosed the applicant with cervical spondylosis and redirected him to ORG for an X - ray examination .

On DATE the applicant was examined in ORG where the diagnosis of cervical spondylosis was confirmed .

The applicant visited the garrison ’s infirmary on CARDINAL and CARDINAL May and again on DATE when he was diagnosed with “ neurosis ” . He was redirected to ORG where he was hospitalised for an undetermined DATE . Upon his discharge from the hospital he was given home leave on medical grounds .

Upon expiration of the home leave , on DATE the applicant returned to his former garrison in the village of ORG .

The applicant continued to seek medical treatment . He visited the garrison ’s infirmary in ORG on DATE and DATE and CARDINAL and DATE . On each occasion he was diagnosed with “ neurosis ” and was prescribed antidepressants .

After a medical examination on DATE the applicant was pronounced physically fit .

On DATE the applicant suffered his first seizure involving convulsion of the limbs , frothing at the mouth and loss of consciousness . The applicant was taken to ORG where he was hospitalised from DATE to DATE . He suffered a second seizure while in hospital and was diagnosed with “ suspected epilepsy ” . Upon being discharged from the hospital the applicant was given home leave on medical grounds .

While on home leave he suffered a third seizure on DATE .

After returning to his garrison , the applicant had a follow - up examination at ORG on DATE . He was apparently redirected to ORG of ORG in GPE ( “ MMA ” ) , where he was hospitalised from DATE . The applicant was diagnosed with :

“ PERSON dystonia . Syncope . [ Observed ] pro - epilepsy ” .

On DATE the applicant was discharged from the military as the term of his military service had expired .

On an unspecified later date he was pronounced unfit for active military service on medical grounds and was removed from the military ’s reserve list .

Following the applicant ’s discharge from the military his medical condition continued to deteriorate and the number and frequency of the seizures increased .

Following a fourth seizure on DATE the applicant was hospitalised at the ORG from DATE to CARDINAL DATE . He was diagnosed with :

“ Epilepsy – acute seizures . Lymphadenitis generalised non - specific ” .

On DATE a CAT scan was performed on the applicant ’s head at ORG . It was discovered that he had a cerebral oedema .

The applicant was again hospitalised at ORG from DATE and then from DATE to CARDINAL DATE . During his first stay he was diagnosed with :

“ Head contusion . Symptomatic [ of epilepsy ] . ”

During his second stay the diagnosis was :

“ [ Epilepsy ] – acute seizures . Massive functional cumulation . ”

DATE and DATE the applicant was hospitalised at the ORG . On DATE he underwent an operation during which a cavernous angioma ( a benign vascular malformation which can be caused by a trauma to the spinal cord ) was removed from his brain .

On an unspecified date in DATE the applicant ’s mother complained to ORG ( the “ ORG ” ) of the deterioration in her son ’s health while he was in the military . In response , by letter of DATE , the ORG informed her that her son had received all the medical assistance required .

In DATE , at the applicant ’s request , a doctor drew up an expert report on his state of health . On the basis of the relevant medical documents and the applicant ’s explanations , he concluded that the applicant had developed epilepsy during the time of his military service but that it could not be established with certainty whether its cause had been related to the alleged beating of the applicant in DATE .

On DATE the applicant himself complained to ORG . He apparently named the officers involved in the alleged beating in the NORP garrison and PERSON , who had allegedly witnessed it .

By order of DATE the Chairman of ORG set up an internal commission to investigate the applicant ’s accusations . In the course of its work , the commission questioned PERSON , Senior PERSON and the doctor at the NORP garrison ’s infirmary . PERSON was not sought out for questioning because he had left the military in DATE . The officers questioned denied that the applicant had been ill - treated or that they had beaten him . The garrison ’s doctor also denied that she had seen any injuries on the applicant during the medical examinations performed at the time .

By letter of DATE the ORG informed the applicant that the investigation had concluded that his accusations were unfounded and that his complaints would not be followed up any further .

On DATE the applicant also filed a complaint with the NORP military prosecutor ’s office , which opened a preliminary investigation and questioned Senior PERSON and the doctor at the NORP garrison , who both said that they did not remember the applicant . PERSON denied ever beating or hitting soldiers and the garrison doctor denied any knowledge of ill - treatment of the applicant . PERSON was not questioned as he had not been found at his known address .

On DATE a prosecutor from the NORP military prosecutor ’s office refused to open criminal proceedings in relation to the alleged illtreatment of the applicant . On the basis of the testimonies obtained , the applicant ’s medical records and the medical expert report drawn up in DATE , he concluded that it had not been established that the applicant had been beaten in the ORG garrison or that his medical condition had resulted from a trauma allegedly sustained during that beating .

On appeal by the applicant , on DATE that decision was upheld by the military appellate prosecutor ’s office in GPE .

It appears that the applicant did not appeal against that decision to ORG .

By decision of DATE , ORG ( “ the ORG ” ) assessed the applicant ’s medical condition and recognised him to be disabled with PERCENT disability . Upon appeal , by decisions of DATE and DATE , ORG ( “ the CLEMC ” ) quashed the decision of the ORG and assessed the applicant to be disabled with PERCENT disability . The starting date of the disability was determined to be DATE . In its decisions , the CLEMC referred to the applicant ’s allegations that he had been beaten in DATE but did not conclude that this had caused his medical condition .

In DATE the applicant started to receive an army pension .

His disability was reassessed by the ORG on DATE . The commission found that the number and frequency of his seizures had decreased and assessed the applicant to be disabled with PERCENT disability . Upon appeal , by decision of CARDINAL DATE , the ORG quashed the decision of the ORG and further decreased the applicant ’s percentage of disability to PERCENT . Once again the CLEMC referred to the applicant ’s alleged beating in DATE but did not state that it considered this to be the cause of his medical condition .

The applicant was entitled to appeal against the decision of the CLEMC but apparently failed to do so .

Apparently , as a result of the reduction of his disability level , on DATE the applicant ’s army pension was decreased from an unspecified amount to MONEY ( the equivalent of CARDINAL ) .

On DATE the applicant filed a complaint with the prosecutor ’s office , challenging the grounds for his discharge from the military on DATE .

By letter of DATE the NORP regional prosecutor ’s office informed him that it was not competent to rule on the matter and that instead he should initiate an administrative action challenging the order for his discharge . It does not appear that the applicant initiated any such action .

The applicant filed several more complaints to various authorities seeking compensation for the damage caused as a result of the illness he developed while in the military . In response , by letters of CARDINAL and DATE from ORG , letters of DATE and DATE from ORG and a letter of DATE from the ORG , he was informed of the procedure and formalities required to claim the special compensation provided for in section CARDINAL § CARDINAL of LAW , in force at the time . In particular , the applicant was advised of the need to obtain an evaluation of his medical condition by ORG , which apparently he did not do .

Neither did he bring an action before the civil courts to seek compensation , as he was expressly entitled to do under section CARDINAL § CARDINAL of LAW , in force at the time .


The applicant is a NORP national , born in DATE . He is represented before the ORG by Mr NORP , a lawyer practising in GPE , GPE .

The applicant is a sociologist and was at the material time employed by ORG ( Antirasistisk senter ) as a researcher . His application before the NORP relates to the publication of a book in respect of which he was found to have defamed PERSON The facts of the case , as described mainly in the national NORP judgments , may be summarised as follows .

In DATE ORG published a book , of which the applicant was the author , entitled “ At the extremity ” ( “ PERSON ytterst ” ) with the subtitle “ NORP groupings in GPE ” ( “ Rasistiske grupperinger i GPE ” ) . It was presented as a product of scientific research conducted by a sociologist , listing and describing the most important racist groupings and persons in GPE and presenting in chart form the connections between the various groupings . This included the names of CARDINAL persons , CARDINAL of whom had been convicted of offences of assault , some of murder , and sentenced to long terms of imprisonment .

The book comprised CARDINAL Chapters entitled : CARDINAL . ORG in GPE , CARDINAL . PERSON - nazism in NORP , CARDINAL . The Race Warriors , CARDINAL . GPE is Ours , CARDINAL . To ORG , CARDINAL . Many Rivers Small , CARDINAL . PERSON ’s Successors or just Silly People ( this LAW was divided into CARDINAL sections : a. ORG but these are only Appearances , b. Contacts Abroad , c. Words and Contents , d. Methods , e. Consequences ) , CARDINAL . ORG , and CARDINAL . But is that Something to be Concerned About ?

On the cover of the book , the following is stated about the book ’s contents :

“ AT THE EXTREME is the first book to give an insight into current racist groupings in GPE .

DATE people in GPE laughed at ORG distributing leaflets stating : ‘ GPE for the NORP - foreigners get out’ . DATE the laughter has calmed down . Since the reunification CARDINAL persons have been killed by ORG .

Many people wonder whether the same could happen in GPE . Are the racist groupings in GPE PERSON ’s successors or are they just a gang of silly fools ?

No other political issue in GPE has roused people to the extent of the debate on immigration .

There are DATE CARDINAL racist groupings which are against immigration .

Who are they ? What do they do ?

What consequences will this have for NORP society ?

The answers may be found in this book . ”

The book ’s foreword includes the following statement :

“ Many call them racists . They call themselves NORP , PERSON , racists , nationalists or patriots . The labelling may be practical but the substance is more important . The groupings mentioned in this book are described as racists because , by words and deeds , they discriminate and harass individuals and groups on grounds of their ethnic origin , culture or religion .

People who form part of racist groups are not of any singular kind . They are not monsters , PERSON fans or mad . They are like ordinary people – almost .

Their solution to problems of anxiety and discontent , a channel for their hatred DATE is to have somebody to blame : If we get rid of immigrants , we may also be able to get rid of social problems such as narcotics , rape , stabbing and social security fraud ? ”

In LAW , at page CARDINAL , a certain PERSON is mentioned as follows :

“ ACROSS PARTY LINES ELECTORAL INITIATIVE ( PERSON DATE hereinafter referred to as “ the TVI ” )

The above grouping is actually registered as a party . Its leader is Ms I .- M. L. , and it operates from a mailbox at GPE . It is a newsletter party which seldom appears publicly , except for Ms I .- M.L. ’s participation in certain TV debates and her leaflets for ORG ( ORG ) . ”

The introduction to LAW stated that there were CARDINAL registered parties hostile to immigrants in GPE and that

“ DATE the parties emerge as an attempt to dress racism with a suit and a tie in order to lure people into believing that it is ‘ an entirely ordinary party’ on the same line as other established parties . ”

In LAW a. , at page CARDINAL , it is stated :

“ As usual in NORP society , it is men , in particular elderly men , who are the leaders , except for PERSON ( Najonaldemokratene ) and PERSON ( PERSON ) . The average age is lower within the militant groupings , but men lead these too . In the skin head milieus there is a stronger presence of young women than in other groups . ”

Contrary to what is stated above , the ORG was not a registered political party but a grouping of CARDINAL persons . Under LAW of the Parliamentary , County , and LAW DATE ( LAW No . CARDINAL , Valgloven ) , the signature of CARDINAL persons entitled to vote in NORP elections is a prerequisite for the registration of a party by the competent authority , namely the notarius publicus in GPE . The lists of registered political parties are publicised . At present , there are CARDINAL registered political parties in GPE .

On DATE Ms I .- M.L. instituted proceedings against the applicant before ORG , claiming that the manner in which she had been mentioned in the applicant ’s book constituted unlawful accusations of racism which were defamatory and warranted compensation . She felt particularly aggrieved and defenceless against such research , which was on a different level from ordinary public discussion . The risk of being described as a racist made it impossible to express one ’s opinions in a public debate . Following the book ’s publication , she feared reprisals from the far left and had had to bear derogatory remarks from neighbours . She was of the firm opinion that she was not a racist .

By judgment of CARDINAL DATE , ORG acquitted the applicant . While finding that the book had indeed labelled Ms I .- M.L. as a racist it considered that it had been justified . In ORG view the classical lexical definition of racism , which related to the belief that CARDINAL race was superior to another according to physical and mental distinctions , ought to be supplemented by a more modern understanding of the concept . Ms ORG had , by her own words and public connections , handled questions of immigration policy in a manner which , she should expect , would spark off reactions .

Ms I .- M.L. appealed to ORG ( PERSON ) , which in a judgment of DATE found unjustified defamation within the meaning of LAW .

ORG observed that , given the book ’s title , in particular its subtitle , the comments on its cover page and the foreword , PERSON group , the LAW , was to be perceived as a racist group by the ordinary reader . The description of that group contained no reservation such as that made with respect to ORG . The accusation of racism not only concerned the ORG but also extended to Ms I .- M.L. She was mentioned as the leader of the group and her name was cited twice . The book ’s own definition of the concept of racism stated in the foreword should be decisive for the ordinary reader ’s understanding of the book . Given the text on the cover page , taking as a starting point NORP PERSON and mentioning that DATE people had been killed by such NORP , the reader would get the impression that the book dealt with clearly racist groups .

However , while Ms I .- M.L. ’s remarks published by ORG about the lack of common traditions between NORP and many immigrants or foreigners were deemed to border on racism , ORG did not find that any of her published statements constituted proof of racism , even though they might be perceived as offensive by some immigrants . Her participation in a certain seminar ( at which representatives of a number of racist groupings had been present ) also fell within her freedom of expression and opinion . The same applied to the fact that , for a short time , she had held a post on ORG interim governing ORG board in GPE . Since these matters did not justify describing her as a racist the applicant had failed to prove that the accusations made against her were true .

Moreover , while the accusations – which encompassed allegations of discrimination and harassment on ethnic grounds – had been expressed in a book written by a researcher for ordinary sale and were serious , the applicant ’s investigations into Ms I .- M.L. had been clearly deficient . The information contained in the book about Ms I .- M.L. and her group was erroneous , namely , the allegations that the group ORG had been registered as a political party , that FAC had taken part in television debates and that she had been involved in the distribution of leaflets for ORG . It was clear that the applicant had in part confused Ms I .- M.L. with someone else . In the view of ORG , had the applicant met the requirement of diligence that ought to apply , he would have avoided such errors , with the result that the ORG would have appeared as a particularly marginal group of little public interest . Probably , if the applicant had carried out reasonable research , this group would not even have been mentioned in the book .

Considering the case as a whole , ORG found that the accusation that PERSON was racist , according to the book ’s own definition , must be deemed inappropriate , and constituted punishable defamation .

Under LAW of LAW DATE ( Skadeserstatningsloven – Law no . CARDINAL of CARDINAL DATE ) , ORG ordered the applicant to pay MONEY ( ORG ) to PERSON in compensation for non - pecuniary damage . The amount awarded took into account that , to the extent that she felt defamed , she had brought this largely on herself by her affirmations and recommendations . She had expressed views which had been offensive to many immigrants and which , if they were to be accepted , would make their situation difficult in GPE . Regard was also had to the fact that the book had brought the applicant little profit . Finally the applicant was ordered to pay ORG CARDINAL for her costs before ORG and ORG .

On DATE ORG of ORG ( Høyesteretts kjæremålsutvalg ) refused the applicant leave to appeal .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

On DATE the applicant was arrested and charged with sexual assault of a minor . Immediately upon his arrest , at TIME , the applicant was subjected to a body search at the police station . The report stated , inter alia , that no injuries were found on the applicant .

On DATE at TIME the applicant underwent a physical examination in the presence of attesting witnesses PERSON and P. No injuries were noted in the examination report . The applicant alleges that during the examination the officer of the detention facility of ORG ) , ORG , beat him up with a police truncheon and that investigator PERSON abused him verbally .

On DATE at TIME the applicant was assigned legal counsel .

On DATE at TIME a forensic examination of the applicant was carried out in connection with the criminal charges against him . He was examined by a forensic expert who found CARDINAL bruises on the right side of the applicant ’s back . The report stated that the bruises were inflicted with a “ blunt , hard , long object with a round or oval cross - section , such as a police truncheon or a baton ” , and that they dated back to CARDINAL before the forensic examination .

According to the applicant , on DATE he complained about his ill - treatment to PERSON , the investigator of the GPE prosecutor ’s office , who was investigating his case . She allegedly promised to register his complaint and to bring the matter to the prosecutor ’s attention . The applicant claimed that he had complained to the prosecutor ’s office again a number of times , but received no reply .

On DATE the applicant was given access to the results of the forensic examination .

On DATE the applicant sent a written complaint to the prosecutor ’s office of GPE complaining about the ill - treatment he allegedly received on DATE of his arrest .

Having received no reply , on DATE the applicant wrote to the GPE prosecutor ’s office asking for news on his complaint of illtreatment .

On DATE and on DATE the applicant complained to ORG of GPE about the lack of response to his complaint of ill - treatment . On DATE they replied that his letter had been forwarded to the GPE prosecutor ’s office for a decision .

On DATE investigator PERSON decided not to investigate the applicant ’s allegations in criminal proceedings . The parties have not provided any information about this part of the inquiry . The ORG stated , in particular , that the relevant files had been destroyed after having reached the time - limit of their storage in archives .

The applicant complained about the decision of DATE to the superior prosecutor ’s office and also challenged it before a court .

On DATE ORG of ORG replied to the applicant that the inquiry into his allegations had been sufficient . It was considered , in particular , that no breach of domestic law arose from the fact that investigator PERSON had been in charge of the inquiry , because she had not been personally implicated in the alleged illtreatment .

On DATE the Langepasskiy Town Court of ORG convicted the applicant as charged . Having noted that the applicant had committed the offence while on parole following a previous criminal conviction , the court lifted the parole and sentenced him to an aggregate prison term of DATE .

On DATE the court examined the applicant ’s complaint about a lack of an effective investigation into his allegations of ill - treatment . It quashed the decision of the prosecutor ’s office dispensing with criminal proceedings on the grounds that investigator PERSON , who had taken the decision , was also an investigator in the applicant ’s criminal case and could therefore be regarded as an interested party ; she was therefore precluded from conducting the inquiry into the applicant ’s allegations of ill - treatment .

NORP The prosecutor ’s office resumed the inquiry and assigned the file to PERSON , an investigator of ORG . On DATE PERSON questioned PERSON , who had acted as an attesting witness during the applicant ’s physical examination . He explained that on TIME he had been remanded in custody , and that he had been in the state of alcoholic intoxication when he was requested by the facility officers to act as an attesting witness during the applicant ’s physical examination . He said that the applicant had been “ anxious ” , but he had not been beaten with a truncheon or otherwise ill - treated . He did not remember much about the events at issue because of the time that had elapsed since ; however , he remembered that the applicant had made no complaints of having been beaten . On DATE PERSON questioned the implicated policemen , PERSON and B. , and they denied the allegations of having used force in general and a truncheon in particular . They admitted that there had been a police truncheon in the room , hanging on the wall , but stated that it had not been used . PERSON , the investigator of the applicant ’s criminal case who had formerly conducted the inquiry , was also questioned . She stated that she had not seen any injuries and had not received any complaints from the applicant .

On DATE the prosecutor ’s office decided not to open a criminal investigation into the applicant ’s allegations of ill - treatment . The decision referred to the statements of ORG , ORG , PERSON and PERSON and concluded that there was no evidence in support of the applicant ’s claims .

On DATE the prosecutor ’s office sent the applicant a letter , attaching a copy of the above - mentioned decision . The applicant claimed that he did not receive this notification and did not know about the decision until DATE . He therefore sent several complaints to the prosecutor ’s office about their failure to comply with the court order and investigate his ill - treatment . He also requested access to the inquiry file .

On DATE investigator PERSON replied to the applicant that she had conducted an inquiry into his allegations of ill - treatment within the statutory time - limit of DATE . She indicated that the inquiry file was with the prosecutor ’s office of GPE .

On DATE the applicant lodged a complaint with ORG about the failure to investigate his ill - treatment in criminal proceedings . He requested that the court find the refusal to open criminal proceedings unlawful , grant him access to the inquiry file and award him compensation for non - pecuniary damage on account of the authorities’ alleged failure to provide him redress for a violation of his Convention rights . The court returned the applicant ’s complaint , stating that it fell under the jurisdiction of ORG , and instructed the applicant to apply to that court under the procedure provided for by LAW .

On DATE the applicant submitted his complaint to ORG and requested it to consider his complaint under the rules of civil procedure .

On DATE ORG sent the applicant another reply to his complaint , advising him that his action against the decision of the prosecutor ’s office had to be lodged under the rules of criminal procedure .

On DATE the ORG returned the applicant ’s complaint and indicated that he had to specify his claims and to distinguish the grounds for his request under civil procedure from those under criminal procedure . On DATE it again refused , by letter , to accept the complaint for examination , stating that it could not be considered in civil proceedings . The applicant had to challenge the decision of the prosecutor ’s office in criminal proceedings first and then , on the basis of that decision , claim damages under the civil procedure . On DATE the same court took a formal decision refusing to accept the applicant ’s complaint , citing the aforementioned grounds .

The applicant reformulated his complaint under the rules of criminal procedure , and on DATE it was accepted for examination .

On DATE the ORG examined the applicant ’s complaint and decided that the decision of DATE was lawful and well - founded . It found that the initial decision dispensing with a criminal investigation had been quashed because the investigator had been an interested party , and that in the new inquiry no shortfalls could be found . It noted that the investigator had questioned the police officers implicated , T. and PERSON , as well as the attesting witness , all of whom had denied that the applicant had been subjected to violence or verbal assault . The court found that the prosecutor ’s office had sent the applicant a copy of the decision of DATE and rejected the applicant ’s claims that he should have been informed about the course of the inquiry as lacking any basis in law .

The applicant appealed , claiming , inter alia , that he had not been duly informed of the decision dispensing with a criminal investigation , that he had not been given access to the inquiry file , that neither the investigator nor the court had commented on the injuries recorded in the forensic report and that the date of his first complaint to the prosecutor ’s office was DATE and not DATE , as stated in the judgment .

On DATE ORG upheld the judgment of DATE . It found , in particular , that the existence of injuries , in the absence of other evidence supporting the applicant ’s allegations , was not sufficient to find ORG guilty of having inflicted them . The court also stated that the failure to notify the applicant of the decision did not render it unlawful , and that during the firstinstance hearing the applicant had not requested access to the inquiry file .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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

Late in the evening of DATE the applicant was arrested at his home on suspicion of having committed theft and robbery . He was placed in the isolation wing of the LOC police station .

According to the applicant , in response to his requests for legal aid , he was beaten up by police officers PERSON and PERSON They pressurised him to confess to the above - mentioned crimes . The applicant attempted to commit suicide but , as it appears , was promptly provided with medical assistance . It does not appear that this incident had any adverse consequences on his health .

Following the arrest the applicant remained in detention .

The Government submitted that according to the information provided by ORG of GPE the applicant 's first documented interview took place on DATE in the presence of his lawyer , S.

The applicant complained about the ill - treatment to the police and to a local prosecutor 's office .

It appears that the prosecutor 's office did not take any steps in connection with the applicant 's complaints , other than remitting the case to a police investigator , PERSON , from the same police station .

On DATE PERSON ordered the applicant 's medical examination .

The examination was carried out on DATE . According to the expert 's report , the applicant had a bruise of QUANTITY on his back in the right lumbar region and the right temple area was sensitive on palpation . Noting that no harm to the applicant 's health could be established , the expert concluded that the bruise could have been inflicted at the time and in the circumstances described by the applicant .

By a decision of CARDINAL DATE a senior assistant to ORG refused to institute criminal proceedings against police officers PERSON and PERSON for lack of evidence of a crime .

The decision referred to the statements of PERSON and PERSON , who denied the allegations of ill - treatment . Investigator PERSON stated that he had ordered a medical examination in response to the applicant 's complaint and noted that the applicant had not complained about the alleged ill - treatment to the prosecutor when the latter had authorised his detention on remand . Finally , having regard to the expert 's report , the prosecutor concluded that he was unable to establish any ill - treatment on the part of the police officers and noted that the injury sustained by the applicant could have occurred “ in other circumstances ” .

The applicant submitted that he had learned about this decision “ much later ” .

The Government did not make any comments concerning the date of notification of this decision to the applicant .

On an unspecified date the applicant 's criminal case concerning the charges of theft and robbery was transferred to ORG for examination .

During the court hearing of his criminal case on DATE the applicant repeated his allegations of ill - treatment . The CARDINAL co - accused in the applicant 's case also alleged ill - treatment by the police officers . The prosecutor participating in the examination of the case moved to adjourn the proceedings in order to carry out an inquiry into their submissions .

By a decision of the same date the trial court entrusted ORG with the inquiry and adjourned the proceedings .

On DATE the Senior Assistant to the Prosecutor of ORG refused to institute criminal proceedings against the police officers , referring , among other things , to the oral evidence given by police officers PERSON and PERSON and investigator PERSON as well as to the previous decision of CARDINAL DATE .

The applicant stated that he was not notified about the decision immediately .

The Government submitted that the decision had been read aloud during the court hearing of DATE .

NORP The applicant complained about the decisions of the prosecutor 's office to ORG , alleging that they were unfounded and that several witnesses of the ill - treatment had not been questioned , and requested an additional inquiry .

By a judgment of DATE the court rejected his complaint . In particular , it stated that :

“ ... The plaintiff 's submissions proved unconfirmed during the court hearing . According to the statements of the police officers PERSON and PERSON obtained in course of the prosecutor 's inquiry into the alleged ill - treatment , PERSON [ the applicant ] was detained on suspicion of robbery and theft , no physical or psychological pressure was exerted on him ... PERSON failed to complain to the prosecutor who ... authorised his arrest although he had the opportunity ...

... According to the plaintiff , upon his placement in the isolation ward , he was hit with his head against the walls . However , his co - accused ORG . did not confirm this allegation .

The expert 's opinion of DATE revealed an injury , [ namely , ] a bruise in the left lumbar region . No injuries to the head were established ... which refutes the [ plaintiff 's ] allegations of ill - treatment following his arrest .

In these circumstances the court considers that the decisions [ ... ] of [ ... ] DATE refusing to institute criminal proceedings against PERSON and PERSON and [ ... ] of DATE [ ... ] are lawful and that there are no reasons to quash them . ”

The applicant appealed .

By a decision of DATE ORG held that the trial court had examined the case under the rules of civil procedure whereas the complaints against the investigative measures ought to have been examined under the provisions of the criminal procedure . It quashed the first - instance judgment and terminated the proceedings without examining the substance of the applicant 's complaints .

NORP In response to the ORG 's request for copies of the investigation file in respect of the events of DATE , the Government submitted that the file had been destroyed due to the expiry of the time - limit for its storage . The Government referred to an ORG dated DATE issued by ORG office .

By a judgment of DATE the ORG convicted the applicant of robbery and theft and sentenced him to DATE of imprisonment and confiscation of his property . The applicant submits that he received a copy of the judgment on DATE . In the judgment , the trial court specifically rejected the applicant 's allegations of ill - treatment as unfounded without contesting the existence of his injuries or providing any explanation for their origin . The trial court referred to the decision of CARDINAL DATE without questioning the witnesses mentioned in that decision in court .

On DATE ORG upheld the judgment on appeal .

Both courts referred to the conclusions of the prosecutor 's inquiries into the alleged ill - treatment and rejected the applicant 's submissions in this connection .

Article CARDINAL § CARDINAL ( f ) of LAW of the Russian Federation makes acts of torture punishable by DATE imprisonment . Under LAW ( a ) and ( c ) abuse of an official position associated with the use of violence or entailing serious consequences carries a punishment of DATE imprisonment .

DATE , criminal proceedings in GPE were governed by LAW RSFSR ( “ the old ORG ” ) . Under LAW ORG , a refusal to open criminal proceedings could be appealed against to a prosecutor or a court . Under LAW , a refusal by the prosecutor could be appealed against to a higher prosecutor .


The applicant , Mr PERSON , is a citizen of GPE , who was born in DATE and lives in GPE , GPE . The respondent Government are represented by their Agent PERSON .

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

The applicant was an employee of the NORP company “ Graditelj ” , in GPE , GPE . On DATE he had an accident at his workplace and suffered injuries . Since then he has mostly been on sick - leave . On CARDINAL DATE the applicant obtained a certificate from ORG ( Republički fond zdravstvene zaštite PERSON ) that ORG covered sick - leave allowance regardless of the applicants’ place of living . The applicant left GPE some time in the autumn of DATE and went to live in GPE .

On DATE the company sent him a letter informing him that they had terminated his contract of employment as of CARDINAL DATE since ORG had refused to pay his sick - leave allowance .

On DATE the applicant claimed a sick - leave allowance as from CARDINAL DATE before ORG , ORG ( ORG fond zdravstvenog osiguranja i zdravstva ORG Polje ) . He relied on ORG certificate .

This request was rejected on DATE by ORG in PERSON . It was found that the applicant received sick - leave allowance for the period from CARDINAL DATE until DATE . The last time he had attended an examination before a medical experts’ commission in charge of grating sick - leave was on DATE . After that he had left for GPE . The ORG did not accept medical certificates from GPE because , according to NORP laws , the applicant had to present himself in person before a medical experts’ commission in GPE in order to have his sick - leave prolonged .

On DATE the applicant appealed against that decision to ORG ( PERSON republičkog fonda zdravstvenog osiguranja i zdravstva Hrvatske ) .

According to the applicant , on DATE and DATE , respectively , he lodged requests with ORG for speeding up the proceedings . He received no reply .

As the above Commission failed to decide upon the applicant ’s appeal , on DATE he instituted administrative proceedings in ORG Upravni Sud PERSON ) asking it to decide the matter . On DATE he lodged a request for speeding up the proceedings , but received no reply . It appears that the proceedings are still pending before that court .

According to the Government on DATE ORG rejected the applicant ’s appeal of DATE . Since the postal services with GPE at that time were interrupted , the decision was placed on the ORG ’s public notice - board .

As regards the applicant ’s claim before ORG , the Government submit that on DATE the court invited the applicant to inform it whether he wished to extend his claim against the second instance decision .

Section CARDINAL ( CARDINAL ) of LAW ( Zakon o upravnim sporovima ) allows an applicant to lodge a claim in ORG if an appellate body does not issue a decision upon his appeal within DATE followed by DATE upon the applicant ’s repeated request .

Section CARDINAL of the same LAW provides that ORG must either instruct the lower bodies on how to resolve the case or resolve the case itself .

Section CARDINAL of LAW on the Changes of LAW on FAC ( entered into force on DATE , published in ORG no . CARDINAL of DATE - hereinafter “ LAW DATE ” - PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON ) introduced a new Section CARDINAL ( a ) , which subsequently became LAW of LAW on ORG . The relevant parts of that Section read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .