CASE OF TÁRSASÁG A SZABADSÁGJOGOKÉRT v. HUNGARY

Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient

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

The applicant is an association founded in DATE , with its seat in GPE .

In DATE a Member of ORG ( “ the MP ” ) and other individuals lodged a complaint for abstract review with ORG . The complaint requested the constitutional scrutiny of some recent amendments to LAW which concerned certain drug - related offences .

NORP In DATE the MP gave a press interview concerning the complaint .

On DATE the applicant – a non - governmental organisation whose declared aim is to promote fundamental rights as well as to strengthen civil society and the rule of law in GPE and which is active in the field of drug policy DATE requested ORG to grant them access to the complaint pending before it , in accordance with LAW no . DATE on ORG and LAW ( “ the LAW DATE ” ) .

On DATE ORG denied the request without having consulted the MP , explaining that a complaint pending before it could not be made available to outsiders without the approval of its author .

On DATE the applicant brought an action against ORG . It requested ORG to oblige the respondent to give it access to the complaint , in accordance with section CARDINAL ) of the Data Act DATE .

On DATE ORG adopted a decision on the constitutionality of the impugned amendments to LAW . It contained a summary of the complaint in question and was pronounced publicly .

Notwithstanding the fact that the Constitutional Court procedure had already been terminated , on DATE ORG dismissed the applicant ’s action . It held in essence that the complaint could not be regarded as “ data ” and the lack of access to it could not be disputed under LAW DATE .

The applicant appealed , disputing ORG findings . Moreover , it requested that the complaint be made available to it after the deletion of any personal information contained therein .

On DATE ORG upheld the first - instance decision . It considered that the complaint contained some “ data ” ; however , that data was “ personal ” and could not be accessed without the author ’s approval . Such protection of personal data could not be overridden by other lawful interests , including the accessibility of public information .

The applicant ’s secondary claim was rejected without any particular reasoning .

“ ( CARDINAL ) ... [ E]veryone has the right to a good reputation , the privacy of his home and the protection of secrecy in private affairs and personal data . ”

“ ( CARDINAL ) ... [ E]veryone has the right to express freely his / her opinion and , furthermore , to access and distribute information of public interest . ”

“ The competence of ORG includes :

( b ) posterior review of the constitutionality of statutes ... ”

“ ( CARDINAL ) The procedure under LAW ( b ) may be initiated by anyone . ”

“ ( CARDINAL ) Public information : data , other than personal data , which relates to the activities of , or is processed by , a body or a person carrying out ORG or municipal tasks or other public duties defined by the law . ”

“ ( CARDINAL ) ( a ) Personal data may be processed if the person concerned consents to it .... ”

“ Unless exception is made under the law , the right to protection of personal data and the personality rights of the person concerned must not be violated by ... interests related to data management , including the public nature ( section DATE ) of data of general interest . ”

“ ( CARDINAL ) The organs or persons charged with exercising ORG ... functions shall , within the scope of their competence ... , promote and secure the right of the public to be informed accurately and speedily .

( CARDINAL ) The organs mentioned in subsection CARDINAL hereof shall regularly publish or otherwise make accessible the most important data ... concerning their activities . ...

( CARDINAL ) Those mentioned in subsection CARDINAL hereof shall ensure that anyone is able to access any data of public interest which they may handle , unless the data has been lawfully declared ORG or service secrets by a competent authority ... or the law restricts the right of public access to data of public interest , specifying the types of data concerned , regard being had to :

( a ) the interests of national defence ;

( b ) the interests of national security ;

( c ) the interests of the prevention or prosecution of crime ;

( d ) the interests of central finances or foreign exchange policy ;

( e ) foreign relations or relations with international organisations ;

( f ) a pending court procedure . ... ”

“ ( CARDINAL ) If an applicant ’s request for data of public interest is denied , he or she shall have access to a court .

( CARDINAL ) The burden of proof concerning the lawfulness and well - foundedness of the refusal shall lie with the organ handling the data .

( CARDINAL ) The action shall be brought within DATE from the notification of the refusal against the organ which has denied the information sought . ...

( CARDINAL ) The court shall give priority to these cases .

( CARDINAL ) If the court accepts the applicant ’s claim , it shall issue a decision ordering the organ handling the data to communicate the information of public interest which has been sought . ”


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought proceedings before ORG of GPE ( “ the ORG ” ) against GPE Fuel and Energy Complex , a ORG energy supply enterprise , for damages . He complained that the defendant had deprived him of his right to a reduced price for heating , to which he was entitled as a disabled veteran of the Second World War .

In a judgment of CARDINAL DATE ORG granted the applicant 's claim in part and ordered the defendant to repay the sums overpaid by the applicant DATE .

On DATE , upon the defendant 's appeal , GPE ( “ the ORG ” ) quashed the judgment in part and ordered a fresh examination by the first - instance court .

On DATE Judge PERSON of ORG took up the case and fixed a hearing for DATE .

According to the Government , the applicant modified his claims on CARDINAL DATE .

During the hearing on DATE the applicant waived part of his claims and lodged claims against new defendants , with the result that the hearing was postponed until DATE .

In the ORG 's submission , the applicant modified his claims on CARDINAL DATE .

According to the Government , the hearing scheduled for CARDINAL DATE was not held owing to the fact that Judge PERSON had resigned from office , with the result that on DATE the case was transferred to Judge P. The latter was on sick leave DATE . Subsequently all cases assigned to Judge PERSON were transferred to Judge ORG , who fixed a hearing in the applicant 's case for DATE . On the latter date the hearing was postponed until DATE as the judge was engaged in unrelated proceedings .

In the ORG 's submission , the applicant modified his claims on CARDINAL and DATE .

On DATE the hearing was adjourned until DATE because the defendants and a third party had failed to appear , and then until DATE because the judge was engaged in unrelated proceedings . Then the hearing was postponed until DATE in view of the defendant 's failure to appear .

On DATE the hearing was adjourned until DATE at the applicant 's request ; he asked for more time to adduce some evidence and consult his lawyer , and then until DATE as the judge was on leave . In the ORG 's submission , on DATE the applicant modified his claims . On the same date the hearing was postponed until DATE , as the defendants had failed to appear and there was no evidence in the case file that they had been duly notified of the hearing .

By a judgment of CARDINAL DATE ORG dismissed the applicant 's claims . The applicant 's appeal against this judgment was stayed on DATE owing to his failure to comply with certain formal requirements and he was invited to remedy the shortcomings by DATE . On the latter date the applicant lodged an amended appeal .

On DATE ORG upheld the judgment of DATE on appeal .


Violation of Art. 5-1-c;Violation of Art. 5-5;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

On DATE the applicant was arrested on suspicion of fraud . On DATE , the Prague CARDINAL ORG ( obvodní soud ) ordered his pre - trial detention pursuant to LAW hereinafter “ the ORG ” ) . The court held that , given the applicant ’s NORP citizenship and lack of residence in GPE , and the fact that he was likely to be sentenced to a lengthy prison sentence , there was a risk that he would abscond to avoid the criminal proceedings .

On DATE an indictment against the applicant on a charge of fraud was filed in ORG .

On DATE , DATE and DATE ORG dismissed requests for release from custody filed by the applicant . The court held that the reasons for the applicant ’s detention continued to apply . CARDINAL appeals by the applicant directed against the second and third of ORG decisions were dismissed by ORG on DATE and CARDINAL DATE , respectively .

On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) against ORG decision of CARDINAL DATE , alleging a violation of his right to personal liberty under LAW and CARDINAL of LAW ( Listina základních práv a svobod ) , of his freedom of movement under LAW and of the right to judicial protection under LAW , in that the reasoning of the court decisions was insufficient . He added that LAW had also been violated .

On DATE ORG dismissed a request for release from custody filed by the applicant on DATE and decided , under LAW and CARDINAL of the ORG , that the applicant was to remain in detention . The court did not accept the applicant ’s written pledge .

In a judgment of CARDINAL DATE ORG convicted the applicant of fraud , sentenced him to CARDINAL half GPE imprisonment and ordered his expulsion from GPE .

On DATE the applicant supplemented his constitutional appeal , alleging that despite his request ORG decision of DATE had not been translated into LANGUAGE , in violation of LAW ( e ) of the Convention . He also complained that in the decision of DATE ORG had decided to renew the order for his detention for the first time since the pre - trial detention had been ordered on DATE . The applicant thus regarded the period of detention after CARDINAL DATE , that is after the expiry of DATE period covered by the first detention order , as unlawful . In this respect he relied , inter alia , on LAW .

On DATE ORG dismissed the applicant ’s complaint against ORG decision of DATE .

On DATE ORG varied ORG judgment of DATE but the applicant ’s prison sentence remained unchanged . In response to the applicant ’s argument that the trial court had not given him the opportunity to question CARDINAL of the witnesses , the appellate court held that this witness had been heard at trial in the applicant ’s and his counsel ’s presence and that they had used this opportunity to ask him questions .

In a decision of CARDINAL DATE ORG ( PERSON ) held that ORG had violated the applicant ’s rights guaranteed under LAW and CARDINAL of the LAW in that it had not decided on extension of the applicant ’s pre - trial detention or his release within the statutory time - limit . The court stated in particular :

“ It appears from the case - file that the courts decided on the applicant ’s requests for release and/or his complaints against the respective dismissals , but not on his remaining in custody or his release as provided for in LAW and CARDINAL of the ORG . Such a decision complying with the requirements laid down in the ORG was adopted by the GPE CARDINAL ORG on DATE , that is , DATE after the applicant ’s pre - trial detention had been ordered . The ORG underlines that when deciding on a request for release filed by an accused , a court ‘ ORG examines , as in the present case , whether there are still reasons for his detention . The criteria specified in LAW ORG require stricter conditions to be fulfilled for a decision to continue the accused ’s detention ”

ORG did not grant the applicant ’s request for ORG decision of CARDINAL DATE to be quashed , the applicant having been sentenced to a term of imprisonment in the meantime .

The relevant domestic law and practice concerning pre - trial detention and the possibility of compensation for its unlawfulness are set out in the ORG ’s judgment PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .


Violation of Art. 8;Violation of P7-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch

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

NORP In DATE the applicant , a NORP citizen , came to GPE and settled there . He lived in GPE for DATE and , in DATE , set up a NORP commercial company whose main activity was roasting and marketing coffee . He also learnt NORP and cohabited with a NORP national from DATE .

On DATE the applicant ’s girlfriend , who was visiting him in GPE , gave birth to a child . DATE the applicant , his girlfriend and the baby returned to GPE .

On DATE the applicant , who had been abroad , came back to GPE unimpeded by the border police . DATE , however , border police officers came to his home and deported him .

On DATE the applicant ’s lawyer lodged an application with ORG against ORG and the public prosecutor ’s office at ORG for judicial review of the deportation order against the applicant .

She submitted that she had not been served with any document declaring the applicant ’s presence in NORP territory to be undesirable . She added that the applicant had been living in GPE since DATE , had been awarded a medal for his role in the anti - communist revolt of DATE , had set up a commercial company , was supporting his family and had not in any way been a danger to national security .

The only hearing before ORG was held on DATE . The representative of ORG provided the applicant ’s lawyer with a copy of an order of CARDINAL DATE of the public prosecutor ’s office at ORG in which , at the request of ORG ( ORG ) and in accordance with Government Emergency Ordinance no . CARDINAL/CARDINAL on the rules governing aliens in GPE , the applicant had been declared an “ undesirable person ” and banned from GPE for DATE on the ground that there was “ sufficient and serious intelligence that he was engaged in activities capable of endangering national security ” . The last paragraph of the order stated that it should be served on the applicant and enforced by ORG in accordance with LAW no . CARDINAL/CARDINAL .

According to the documents filed in the proceedings by the representative of ORG , ORG had informed ORG , ORG and the border police on DATE that the applicant had been banned from entering the country .

NORP The applicant ’s lawyer requested an adjournment in order to send the applicant a copy of the order of the public prosecutor ’s office and take his instructions .

Although the representative of the public prosecutor ’s office supported that request on the ground that it had not been established that the obligation to serve the order on the applicant had been complied with , ORG decided to go ahead with the examination of the case . Considering that the evidence already adduced was sufficient , it also dismissed a further request by the applicant ’s lawyer for an adjournment in order to produce documents in support of her application .

Ruling on the merits , ORG rejected the application as follows :

“ After analysing the evidence in the case and the parties’ arguments , the ORG rejects as ill - founded the application against the public prosecutor ’s order ... and the deportation order , considering that , in accordance with sections DATE and CARDINAL ) of Government Emergency Ordinance no . CARDINAL , the measure ordered is justified and lawful ...

With regard to the reasoning of the impugned administrative order , [ the ORG ] notes that it satisfies the substantive and formal conditions required by the special provisions , power to authorise residence on the ORG ’s territory being exercised by the appropriate ORG authorities in compliance with the relevant provisions and with the principle of proportionality between the restriction of fundamental rights and the situation giving rise to that restriction . Accordingly , the deportation was lawfully ordered .

It is alleged that the measure taken pursuant to the public prosecutor ’s order of CARDINAL DATE was communicated to the border police , ORG and ORG on DATE , whereas in the operative part of the order it was stated that , pursuant to section CARDINAL of Government Emergency Ordinance no . CARDINAL , ORG had to notify and enforce it ; the details of the alien ’s passport and residence being mentioned in the preamble to the order .

Accordingly , the ORG rejects as ill - founded , on every ground , the application lodged against the order of the public prosecutor ’s office at ORG . ”

In accordance with section CARDINAL(CARDINAL ) of Government Emergency Ordinance no . CARDINAL/CARDINAL , that judgment was final .

Subsequently , in DATE and DATE , the applicant ’s girlfriend , who does not speak NORP , and their son , who is a national of GPE and of GPE and GPE , went to GPE and GPE on a number of occasions , staying for periods ranging from DATE to DATE .

“ ( CARDINAL ) ORG , or its regional offices , shall inform the alien concerned that he must leave NORP territory .

( CARDINAL ) The order to leave the territory shall be drawn up in CARDINAL copies , CARDINAL in NORP and the other in an international language .

( CARDINAL ) If the alien is present on the territory , he shall be served with a copy which he shall sign ...

( CARDINAL ) If the alien is absent , notification shall be :

( a ) by mail , by way of letter sent to his address , if known , requiring acknowledgment of receipt ; or

( b ) displayed at the head office of ORG if his address is unknown . ”

“ ( CARDINAL ) A declaration that an alien is undesirable is an administrative measure taken against a person who has previously engaged , is currently engaged , or in respect of whom there is sufficient intelligence that he has the intention of engaging in activities capable of endangering national security or public order .

( CARDINAL ) On a proposal of ORG or another institution having appropriate powers in the sphere of public order and national security and being in possession of sufficient intelligence of the kind referred to above , the measure envisaged in the preceding sub - section shall be taken by a prosecutor designated from among the members of the public prosecutor ’s office at ORG .

( CARDINAL ) After receiving the proposal , the prosecutor shall give his reasoned decision within DATE and , if he accepts the proposal , shall send the order declaring the alien undesirable to ORG for enforcement . If the order is based on reasons of national security , those reasons shall not be mentioned in it .

( CARDINAL ) The alien ’s right of residence shall cease automatically on the date of the order .

( CARDINAL ) The alien can be declared undesirable for a period of DATE ...

“ ( CARDINAL ) The order declaring an alien undesirable shall be served on the person concerned by ORG in accordance with the procedure provided for in DATE .

( CARDINAL ) Communication of the data and information justifying a declaration that an alien is undesirable for reasons related to national security shall be authorised only on the terms and to the persons expressly mentioned in the legislation on activities relating to national security and the protection of secret information . Such information can not be communicated in any form , whether direct or indirect , to the alien who has been declared undesirable . ”

“ ( CARDINAL ) An application for judicial review of an order declaring an alien ’s presence undesirable may be lodged with ORG by the party concerned within DATE of the date of service of the order . The court ’s judgment shall be final .

( CARDINAL ) Such an application shall not stay enforcement of the order ... ”

In a case similar to the applicant ’s , ORG ruled on the compatibility of section CARDINAL(CARDINAL ) of Government Emergency Ordinance no . QUANTITY with the constitutional principles of non - discrimination , the right of access to a tribunal and the right to a fair trial . An objection on grounds of unconstitutionality had been raised by an alien when seeking judicial review of an order by the public prosecutor ’s office declaring him undesirable on the ground that “ sufficient intelligence had been received that he had been engaged in activities capable of endangering national security ” .

ORG held that the above - mentioned section was in conformity with the LAW and the LAW , for the following reasons :

“ The situation of aliens who are declared undesirable in the interests of national security and the protection of secret information is different from that of other aliens , which allows the legislature to establish different rights for these CARDINAL categories of alien without that difference infringing the principle of equality . The genuine difference arising from the CARDINAL situations justifies the existence of different rules .

The ORG also notes that the prohibition on communicating to undesirable aliens the data and information justifying that measure is in conformity with the provisions of LAW , which provides that ‘ the right to information shall not undermine national NORP .

Nor do the provisions of section CARDINAL(CARDINAL ) of the Government Emergency Ordinance infringe the principle of free access to the courts , as provided for in LAW . In accordance with section CARDINAL(CARDINAL ) [ of the above - mentioned ordinance ] , the person concerned can apply for judicial review of the prosecutor ’s order ...

Nor can the ORG accept [ the criticism ] concerning the independence of the judges [ of ORG ] ; they must comply with the law giving priority to GPE ’s national security interests . ORG is required to rule on the application for judicial review of the order in accordance with the provisions of Emergency Ordinance no . CARDINAL/CARDINAL , reviewing , in the conditions and within the limits laid down by that ordinance , the lawfulness and merits of the order of the public prosecutor ’s office .

With regard to the provisions of LAW ... , the ORG notes that the impugned provision does not prevent those concerned from applying to the courts to defend themselves and assert all the guarantees of a fair trial . Furthermore , ORG held , in its judgment of DATE in the case of ORG v. GPE [ [ ORG ] , no . ORG , § DATE , ECHR CARDINAL-X ] , that decisions regarding the entry , stay and deportation of aliens did not concern the determination of an applicant ’s civil rights or obligations or of a criminal charge against him within the meaning of Article CARDINAL § CARDINAL of the Convention . ”


CASE OF JEHOVAS ZEUGEN IN ÖSTERREICH v. AUSTRIA

Violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion);Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 2 of Protocol No. 1 - Secure the payment of taxes);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant community was at the time of the events complained of a registered religious community established in GPE under LAW DATE . Since DATE it has had the status of a religious society , a status conferred by statute .

In DATE the applicant community wished to employ a couple , GPE and GPE , who were both ministers belonging to ORG of Jehovah ’s Witnesses ( ORG der PERSON ) and who were LANGUAGE speaking citizens of the GPE , for the benefit of its LANGUAGE speaking members in GPE .

NORP In order to obtain a residence permit ( PERSON ) or a settlement permit ( Niederlassungsbewilligung ) , the couple had to have a work permit or be able to show that they were not subject to the provisions of ORG ( “ the LAW ” ) . On DATE the applicant community therefore applied to ORG Arbeitsmarktservice ) in GPE for a declaratory decision that the pastoral work the couple would exercise was exempt from the provisions of LAW . It submitted that , since the entry into force of LAW DATE , section CARDINAL(CARDINAL ) of LAW had to be understood as referring to all persons doing pastoral work for religious communities and not only as referring to ministers of recognised churches and religious societies . In any event , it submitted that the tasks which would be assigned to GPE and GPE would not constitute employment within the terms of LAW .

On DATE ORG dismissed the application and , on DATE , an appeal panel of ORG confirmed the decision . Both authorities found that only ministers performing pastoral duties belonging to a recognised religious society were exempt from the provisions of LAW , but not members of a registered religious community , which was the status of the applicant community . In addition , the boards held that pastoral work had the typical features of employment within the meaning of LAW , as it was exercised within a hierarchical structure , subject to the instructions of a superior and involved economic dependence .

On DATE the applicant community filed a complaint with ORG , in which it argued that the decisions of the administrative authorities had violated its rights under LAW CARDINAL of the Convention .

On DATE ORG dismissed the complaint . It found that any employment contracts the applicant community concluded with aliens concerning pastoral work as ministers would be subject to the provisions of LAW , because the exemption in section CARDINAL ) of LAW only applied to churches or religious societies recognised by law .

ORG held that even though the pastoral work of ministers clearly fell within the scope of protection of Article CARDINAL , which also comprised the conclusion of employment contracts by a religious group with persons engaging in such activities , and even though labour - market regulations , in particular the employment of aliens , might constitute an interference with the rights protected by DATE , such interference was justified under paragraph CARDINAL of Article CARDINAL . The difference between the employment of foreigners as ministers performing pastoral work by a religious society and employment by a registered religious community made by LAW was in conformity with LAW . Through recognition as a religious society , that religious group acquired a legal status , more closely defined in LAW , which would allow it to participate in the shaping of public life in GPE an PERSON öffentlichen PERSON teilzunehmen ) . As this status could , and indeed had to , be granted to all churches and religious societies provided the conditions established by law were met , the distinction between recognised religious societies and other communities did not give rise to doubts as to its constitutionality .

On DATE ORG dismissed the complaint , which had been transferred to it . The applicant community argued that section CARDINAL ) of LAW was discriminatory . However , ORG found that this matter had been exhaustively examined by ORG in its above decision . This decision was served on the applicant community ’s lawyer on DATE .

NORP In DATE the applicant community received a donation .

On DATE ORG ( PERSON für GPE PERSON ) ordered the applicant community to pay inheritance and gift tax in the amount of PERCENT on the sum received . It found that the applicant community could not rely on section CARDINAL(CARDINAL)(CARDINAL ) of the ORG and LAW DATE ( “ the DATE LAW ) , which provided an exemption from tax liability for certain donations to religious institutions , because this tax privilege was reserved to churches and religious societies recognised by law .

On DATE the applicant community appealed . It argued that , as a result of the entry into force of LAW on DATE , the exemption from tax liability under LAW ) of LAW also extended to registered religious communities such as itself .

On DATE ORG ( PERSON ) dismissed the appeal . It noted that section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW clearly referred to religious societies and there was no doubt that this did not mean a registered religious community . Referring to the caselaw of ORG , in particular its decision of DATE ( see above ) , it found that the difference in treatment between religious societies and religious communities was in accordance with LAW . Further , none of the other exemption clauses under this provision applied to the applicant community .

On DATE the applicant community filed a complaint with ORG , arguing that the impugned decision had violated its right to equal treatment , right to the peaceful enjoyment of its property and right not to be discriminated against on the basis of religion .

On DATE ORG declined to deal with the complaint for a lack of prospects of success , considering that insofar as the applicant community ’s complaints concerned matters of constitutional law they had been sufficiently dealt with in its previous caselaw .

On DATE , following a request by the applicant community , it remitted the case to ORG . On DATE the applicant community supplemented its complaint before ORG .

On DATE ORG dismissed the complaint as unfounded . It found that the applicant community was not a religious society and could not , therefore , rely on a privilege reserved to such an institution . Moreover , it was also not a charitable institution ( gemeinnützige Körperschaft ) within the meaning of LAW , as charitable goals were only those which consisted of promoting the interests of the general public ( nur solche GPE durch deren Erfüllung die GPE gefördert wird ) . As the applicant community , according to its constitutional documents , essentially addressed its activities to its members alone , it addressed itself to a more restricted group than the general public .

Section CARDINAL(CARDINAL ) of ORG provides , insofar as relevant , as follows :

“ The provisions of this federal act do not apply to :

( d ) NORP aliens in respect of pastoral work they exercise as part of a church or religious society recognised by law ; ... ”

Section CARDINAL(CARDINAL ) of the ORG and LAW DATE , which was still in force at the relevant time , reads , insofar as relevant , as follows :

“ [ The following ] are also exempt from taxation :

( CARDINAL ) donations between living persons of movable objects or sums of money to

- domestic legal persons which pursue exclusively charitable , benevolent or ecclesiastical purposes ;

- domestic churches or religious societies recognised by law ;

- political parties . ”

For a detailed description of the legal situation concerning religious societies and religious communities in GPE , see the case of ORG der PERSON and Others v. GPE , no . CARDINAL , § § DATE , DATE .


CASE OF AGOUDIMOS AND CEFALLONIAN SKY SHIPPING CO. v. GREECE

Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant company is incorporated under NORP law , has its seat in GPE and has gone into liquidation . The first applicant is CARDINAL of the CARDINAL liquidators .

On DATE the ship ORG , registered in GPE and owned by ORG , was seized by the company ’s creditors . The ship was put on compulsory sale by auction ( αναγκαστικός πλειστηριασμός ) on DATE . It was acquired by the first applicant at the price of FAC CARDINAL . On DATE the first applicant sold the ship to the applicant company which in turn sold it to a foreign company .

On DATE the applicant company asked the registrar of ships ( νηολόγος ) of GPE to remove the ship from his records since it had been acquired by a foreigner . The request was refused on the ground that the applicant company had failed to produce a certificate to the effect that debts owed in respect of the ship to the tax and social security authorities prior to the auction had been paid in full .

The applicant company challenged ex parte ( εκούσια δικαιοδοσία ) the registrar ’s refusal before the single - member first instance civil court ( GPE Πρωτοδικείο ) of GPE . On DATE the court considered that the production of the certificate requested by the registrar was not necessary ; according to the view followed by most courts , a person acquiring a ship put on compulsory sale by auction was not responsible for the previous ORG debts to the ORG or the ORG social security fund ( GPE – hereinafter ORG ) . The registrar and ORG did not appeal against this decision . On DATE Omega Kasos was removed from the records of the GPE registry for ships .

On DATE ORG ordered the first applicant and the applicant company , in their capacity as previous owners of ORG , to pay ORG CARDINAL , by way of social security contributions in respect of the period prior to the auction , plus interest . It also asked them to pay GRD CARDINAL for the repatriation of the crew of ORG who had at CARDINAL stage been left stranded in a foreign port by the previous ship - owners .

On DATE the applicants challenged ORG ’s order before the multi - member first instance civil court ( PERSON ) of GPE relying , inter alia , on the decision of the single - member first instance civil court of DATE .

On DATE the multi - member first instance civil court of GPE found against the applicants , relying on Articles CARDINAL § CARDINAL ( a ) and CARDINAL § CARDINAL of Presidential Decree no . CARDINAL/CARDINAL as interpreted in decisions ORG . CARDINAL and CARDINAL/CARDINAL of ORG . The applicants appealed .

On DATE ORG ( Εφετείο ) of GPE upheld the appeal considering that the legislation that rendered all the previous owners of a ship responsible for debts to ORG did not cover owners who had acquired a ship put on compulsory sale by auction . The court of appeal relied on Articles CARDINAL § CARDINAL ( a ) and CARDINAL of Presidential Decree no . CARDINAL/CARDINAL , as interpreted in its own decision No . CARDINAL and in decisions ORG . CARDINAL/CARDINAL and CARDINAL of ORG . The court also mentioned a number of decisions that accepted a different interpretation , which it was not prepared to follow ( decision No . CARDINAL of ORG and its own decisions ORG . CARDINAL and CARDINAL ) .

On DATE ORG enacted Law no . CARDINAL/CARDINAL , entitled “ Modification and completion of the legislation on ORG and other provisions ” . LAW CARDINAL of that law interpreted in an authoritative manner ( αυθεντική ερμηνεία ) Article CARDINAL § CARDINAL of Presidential Decree no . CARDINAL/CARDINAL : According to ORG ’s interpretation , this provision also concerned owners who had acquired a ship put on compulsory sale by auction .

On DATE ORG appealed against the decision of DATE of ORG of GPE to ORG relying , inter alia , on LAW CARDINAL of Law no . CARDINAL/CARDINAL . The applicants submitted that the DATE law should not be taken into consideration , inter alia , in the light of ORG and ORG GPE judgment of DATE ( Series A no . ORG ) .

On DATE ORG obtained an order for the seizure of the first applicant ’s real property . The first applicant did not appeal ( ανακοπή ) against this order .

On DATE ORG found in favour of ORG . ORG reasoned as follows : a person acquiring a ship put on compulsory sale by auction was responsible under LAW § CARDINAL ( a ) of Presidential Decree no . CARDINAL/CARDINAL for the previous ORG debts to ORG ; this reading of the provision was also supported ( in the words of ORG “ a further argument in favour of this interpretation can be drawn ” ) by LAW no . CARDINAL/CARDINAL interpreting in an authoritative manner LAW § CARDINAL of Presidential Decree no . CARDINAL . ORG sent the case back to ORG .

The proceedings are still pending and the first applicant ’s property remains under seizure .

Article CARDINAL § CARDINAL of the DATE LAW reads as follows :

“ The authentic interpretation of the laws shall rest with the legislative power . ”

Presidential decree no . ORG provides the following :

“ The following persons are jointly and severally liable , without having the right to require that the creditor should first try to execute against the principal debtor , for any contributions resulting from contracts with sailors on the crew list ( ναυτολόγιο ) or , in general , contributions assessed by a public authority in accordance with the relevant special procedures ( βεβαιωμένες ) :

a ) NORP all former ship - owners in respect of claims created before they transferred the ship ’s ownership , as well as their successors ; ... ”

“ The transfer of the ownership of a ship can not be validly recorded in the registry for ships ( νηολόγιο ) if unaccompanied by a certificate that the ship does not have any outstanding debts to ORG ... ”

ORG in its decisions nos . CARDINAL , CARDINAL/CARDINAL , DATE , DATE and DATE considered that the legislation that rendered all the previous owners of a ship responsible for debts to ORG also covered owners who had acquired a ship put on compulsory sale by auction . The same line was followed by the multi - member first - instance civil court of GPE in decisions nos . GPE and DATE , ORG of GPE in decisions ORG . CARDINAL , GPE and DATE , ORG of GPE in decision no . CARDINAL , and ORG PERSON της PERSON ) in decision no . CARDINAL .

NORP However , in its decisions nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ORG adopted the opposite view , which had also been taken by ORG of GPE in decisions ORG . ORG , CARDINAL and CARDINAL/CARDINAL .

Law no . CARDINAL/CARDINAL provides the following :

“ The true meaning of the term ‘ ORG in LAW § CARDINAL of Presidential Decree no . GPE is such that it includes the ... compulsory sale by auction ... ”

“ Monies paid to ORG by successful bidders at auctions for the compulsory sale of ships are returned ... only in cases in which , at the time of the publication of this law , a final judgment ( αμετάκλητη δικαστική απόφαση ) has been issued . ”

It was indicated in the explanatory report ( εισηγητική έκθεση νόμου ) of PERSON no . CARDINAL/CARDINAL that “ the purpose of the interpretative provisions of LAW was to settle the disputes , secure the collection of ORG ’s resources and harmonise the fund ’s legislation with the findings of the ORG caselaw ” .

During the parliamentary debates , the Government ’s Rapporteur expressed the view that LAW said law validated the ORG caselaw on the matter ( see the Official Minutes of Parliament - session of CARDINAL DATE , p. MONEY ) .


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the village of GPE , the GPE - Frankivs'k region of GPE .

NORP In DATE the applicant 's family was placed on the waiting list to receive an apartment from the ORG . By DATE the applicant was first on the housing list . Nevertheless , ORG of ORG , by a decision of CARDINAL DATE , gave an available apartment to another person . The applicant instituted proceedings in the PERSON ORG against the executive committee of ORG , challenging its decision .

On DATE , the GPE - Frankivs'k ORG found for the applicant and ordered ORG to assign the disputed apartment to the applicant . On DATE , ORG upheld the decision of ORG .

In DATE , as the judgment in her favour remained unenforced , the applicant requested ORG to change the manner of enforcement and to order ORG to build her a house . On DATE , the court satisfied the applicant 's request and changed the manner of execution accordingly .

In DATE , as the judgment was still unenforced , the applicant requested the same district court to change the manner of execution again and to award her the pecuniary equivalent of the disputed apartment . On DATE , ORG satisfied the applicant 's request and awarded her ORG CARDINAL in compensation .

On DATE , the Head of ORG of ORG issued an order to freeze all the current bank accounts of ORG in order to secure the payment of the judgment debt in the applicant 's favour .

On DATE , ORG challenged the order of DATE in ORG . The enforcement proceedings were accordingly suspended .

On DATE , ORG found in part for ORG and quashed the order of ORG with respect to CARDINAL principal accounts containing the budget funds for social payments , salaries , etc . By the same decision the court allowed the other accounts of the debtor to be frozen .

NORP The applicant lodged a protest with the Deputy Chairman of the GPE - Frankivs'k ORG to challenge this decision . The Deputy Chairman rejected her protest by his letter of DATE . On DATE , the panel of CARDINAL judges of ORG of ORG of GPE rejected the applicant 's request for leave to appeal under the new cassation procedure .

On DATE the court decision of DATE was enforced in full and the Bailiffs ended the enforcement proceedings .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant used to work as a cashier and accountant in a stateowned company .

An audit of the company at DATE revealed a cash deficit of CARDINAL old NORP levs .

In DATE the applicant was given a copy of the audit ’s final act , which contained the ORG opinion that , inter alia , during the period DATE she had deliberately made false entries in the accounting books and had thus misappropriated funds .

On DATE ORG opened a preliminary investigation in respect of the applicant and CARDINAL other employees of the company . It seems that the applicant became aware of the investigation soon after its opening . The case was sent for investigation to ORG . The prosecutor in charge of the case indicated a number of specific facts which the investigator had to establish and ordered that the investigation be completed within DATE .

On DATE ORG , noting that no investigative steps had been taken until that moment despite its instructions of DATE , directed the investigator immediately to start working on the case and finalise the investigation within DATE .

In DATE the applicant was questioned several times . The investigation authorities also questioned a number of witnesses and gathered documents and other evidence .

On DATE the applicant was charged under Article CARDINAL § CARDINAL in conjunction with Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL of LAW ( “ CC ” ) with particularly aggravated misappropriation of funds in particularly large amounts , the commission of which had been facilitated by other offences ( making of official documents containing false information and abuse of office ) carrying a lesser penalty .

On DATE ORG asked ORG for a sixtyday extension of the timelimit for the completion of the investigation . On DATE ORG granted the extension .

On DATE ORG asked ORG to extend the time - limit for the completion of the investigation with a further DATE . It stated that all witnesses had already been questioned and a vast amount of accounting and other documents relating to the applicant ’s criminal activity spanning DATE had been seized . A graphological expert report had been drawn up in respect of some of these documents . An accounting expert report was in the works , but would not be ready within the time - limit previously set for the completion of the investigation , because it required the processing of a large number of accounting documents . On DATE ORG acceded to this request .

On DATE the investigator reformulated the charges against the applicant and notified her accordingly .

On DATE the investigator allowed the applicant and her counsel to acquaint themselves with the case file .

DATE the investigator concluded his work on the case and sent the file to ORG with the proposal to commit the applicant for trial .

On DATE ORG found that the evidence thus far collected indicated that the misappropriation of funds allegedly committed by the applicant and by CARDINAL of her co - accused was not particularly aggravated . Moreover , in the meantime she had restored part of the money . Accordingly , it decided to prosecute the applicant for nonaggravated misappropriation of funds ( LAW ) . As this offence fell within the jurisdiction of ORG , it sent the file to ORG .

On DATE ORG discontinued the criminal proceedings against CARDINAL of the co - accused , as it found that the minor nature of the offences allegedly committed by them allowed an administrative prosecution . It decided to pursue the case against the applicant and the fourth co - accused .

On DATE amendments to LAW ( “ ORG ” ) entered into force , providing , inter alia , that criminal proceedings could be discontinued before the end of the trial with a plea agreement between the prosecution and the defence .

On DATE ORG indicted the applicant .

On DATE the prosecution and the applicant entered into a plea agreement whereby the applicant pleaded guilty and was sentenced to CARDINAL GPE imprisonment , suspended for DATE , and occupational disbarment for DATE .

On DATE the plea agreement was approved by ORG and the proceedings were discontinued .

On DATE the applicant was arrested and remanded in custody . As grounds for her detention the investigator cited the seriousness of the offence charged against her .

On DATE the applicant appealed against her detention to ORG . She stated that she had not attempted to abscond or obstruct the investigation during DATE since she had become aware of the criminal charges against her , that she was no longer working as a cashier or accountant and could not , therefore , commit other offences , and that she had undergone gynaecological surgery in DATE and had still not recovered completely .

On DATE ORG confirmed the decision to detain the applicant . It found that she had been charged with a serious offence punishable by more than CARDINAL years’ imprisonment and that “ therefore , the [ detention ] [ was ] lawful : it [ was ] based on the imperative provision of LAW ORG ” . It further stated that the question whether or not LAW ORG should be applied was to be assessed by the investigator and by the supervising prosecutor . In the applicant ’s case the investigator and the supervising prosecutor had not applied LAW of the ORG “ in view of the current stage of the proceedings ” . It followed that the applicant ’s detention was lawful . By a decision of DATE ORG rejected the applicant ’s ensuing appeal against this decision .

A further appeal against the applicant ’s detention was rejected by ORG on DATE .

On DATE ORG confirmed the applicant ’s detention of its own motion .

In the meantime , on DATE , the applicant appealed against her detention to ORG . In his written submissions to ORG the applicant ’s counsel stated , in particular , that the decision to detain the applicant had been based solely on the gravity of the charges against her , whereas other important factors had not been taken into account . For instance , the applicant had a permanent address where she lived with her husband and QUANTITY daughters . Also , she had known about the criminal charges against her for DATE prior to her arrest but had made no attempt to abscond or obstruct the investigation . Furthermore , the evidence against the applicant was weak , it having been established that CARDINAL other persons had access to keys to the cashier ’s office . The prosecutor had blindly followed the conclusions of the auditors who had pointed to the applicant on the sole ground that she had been the person in charge . However , no proof was found that the applicant herself had made false entries in the accounting books . The applicant ’s counsel also referred to her medical condition and enclosed medical certificates .

On DATE the court rejected the appeal . It held , inter alia :

“ [ The charges against the applicant ] concern a serious offence within the meaning of LAW , that is , an offence under LAW , punishable by DATE imprisonment . In this respect there exists the requirement , under LAW ORG , that detention be imposed .

... [ The medical certificates submitted by the applicant ] reflect her state of health during DATE . No information concerning her present state of health has been submitted . It follows that at present there exist no circumstances requiring the modification of the measure ‘ pre - trial detention’ imposed on the [ applicant ] . Therefore the appeal is ill - founded and must be dismissed . ”

On DATE the applicant ’s counsel requested the investigator in charge of the case to order a medical examination of the applicant with a view to establishing whether the conditions of detention were dangerous for her health . On DATE upon the investigator ’s order the applicant was examined by CARDINAL medical experts . In a report of DATE the experts found that the problems related to the surgery which the applicant had undergone DATE ( in DATE ) did not affect her condition and that she could remain in custody .

On DATE the applicant was urgently transferred to a hospital due to pain in her gall bladder . She underwent surgery . On DATE her counsel submitted to ORG a request for her release in view of her poor health . In addition , he argued that there was no risk of the applicant absconding , obstructing the investigation or committing an offence , because she had become aware of the charges against DATE prior to her arrest but had not attempted to commit any of these acts .

On DATE ORG requested ORG to comment on the request for the applicant ’s release . In particular , the ORG was requested to address the issue whether the applicant ’s continuing detention was justified in view of the surgery she had undergone . On DATE ORG ordered ORG to request an expert medical opinion on the above issue . On DATE a group of medical experts was appointed to examine the applicant . The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention .

Following this opinion , on DATE ORG decided to discontinue the applicant ’s pre - trial detention in view of her ill health , which was found incompatible with the conditions in detention . It further found that the applicant ’s state of health made it impossible for her to flee , obstruct the investigation or commit an offence . Also , the investigation had almost been completed .

DATE the applicant was released from custody and placed under house arrest .

On an unspecified later date the applicant submitted to ORG a request for release . The request was rejected on DATE . ORG held that the applicant ’s pre - trial detention had been replaced by house arrest because it had been found that the applicant ’s health was incompatible with the conditions in detention and , moreover , the risk of her absconding or re - offending was objectively excluded in view of her illness . Unlike pre - trial detention , house arrest was not incompatible with her state of health , because there she could undergo medical examinations and treatment . The applicant had not requested permission to leave her house for specified periods of time to undergo treatment . Thus , there was no need for her to be released .

DATE the applicant appealed against her house arrest to ORG . She argued that there was no risk of her absconding or re - offending . She also referred to her poor health . By a decision of DATE ORG rejected the appeal , apparently without giving any specific reasons .

On DATE the investigator confirmed the applicant ’s house arrest of his own motion , without giving reasons .

On DATE ORG confirmed the applicant ’s house arrest of its own motion , without giving reasons .

On DATE the applicant ’s counsel appealed to ORG against ORG Office ’s decision to confirm the house arrest . He stated that it had lasted for DATE and that there was no indication that the applicant would abscond or re - offend . Moreover , all relevant evidence had already been gathered .

On DATE , apparently before transmitting the appeal to ORG , ORG reviewed the matter and decided to grant bail . It stated that the investigation authorities had sent the case to the prosecution twice and it had been returned for further clarifications each time . As of that time the file was at the investigation and there was no indication that it would be received at ORG any time soon . The further continuation of the house arrest would amount to mere repression , since all relevant evidence had already been gathered and there was no risk of the applicant obstructing the investigation . It also added that the requests for release submitted in DATE were apparently rejected because at that time the applicant ’s deprivation of liberty had not lasted very long .

Article CARDINAL § CARDINAL of the ORG , read in conjunction with Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL , provides that particularly aggravated misappropriation of funds in particularly large amounts , the commission of which has been facilitated by another offence which carries a lesser penalty , is punishable by DATE imprisonment .

By LAW ( CARDINAL ) of the ORG , read in conjunction with LAW , misappropriation of funds in not particularly aggravated cases is punishable by one to CARDINAL years’ imprisonment , if its commission has been facilitated by another offence which carries a lesser penalty .

The legal grounds for detention pending trial are set out in Article CARDINAL of the ORG , the relevant part of which , as worded at the material time , provided as follows :

“ CARDINAL . Pre - trial detention trial shall be ordered [ in cases where the charges concern ] a serious intentional crime .

NORP In the cases falling under paragraph CARDINAL [ pre - trial detention ] may be dispensed with if there is no risk of the accused absconding , obstructing the investigation or committing a further crime .

A “ serious ” crime is defined by LAW as one punishable by PERCENT DATE imprisonment .

ORG practice at the relevant time ( it has now become at least partly obsolete as a result of amendments to the ORG in force since DATE ) was that LAW required that a person charged with a serious intentional offence be detained . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any risk of absconding or re - offending was objectively excluded as , for example , in the case of a detainee who was seriously ill , elderly , or already in custody on other grounds , such as serving a sentence ( опред. № CARDINAL от CARDINAL май DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL октомври DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL ноември DATE г. по н.д. CARDINAL/CARDINAL г. ) .

Under LAW ORG , a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecuted offence . Apart from pretrial detention , CARDINAL such measure is house arrest .

Article CARDINAL of the ORG , as in force at the relevant time , provided that measures to secure appearance were intended to prevent the accused from absconding , re - offending , or thwarting the establishing of the truth . When imposing a particular measure , the competent authority had to have regard to the dangerousness of the alleged offence , the evidence against the accused , his or her health , family status , profession , age , etc . ( LAW ) .

Article CARDINAL of the ORG , as in force at the material time , defined house arrest as follows :

“ ORG arrest shall consist of a prohibition for the accused to leave his [ or her ] home without permission by the respective organs . ”

In its interpretative decision no . CARDINAL/CARDINAL ( реш. № CARDINAL от CARDINAL юли DATE г. по конституционно дело № CARDINAL от DATE г. , обн. , NORP брой DATE от DATE г. ) ORG held as follows :

“ ... [ ORG arrest is also a form of detention and [ constitutes ] an interference with the inviolability [ of the person ] . ”

At the relevant time the ORG did not provide for judicial review of house arrest . Thus , the only possibility for a person put under house arrest was to apply to a prosecutor who could order his or her release . If the prosecutor refused to release the person under house arrest , he or she could appeal to a higher prosecutor ( ORG CARDINAL and CARDINAL of the ORG ) .

The ORG was amended with effect from DATE and at present provides , in the newly introduced paragraph CARDINAL of its LAW , for full initial and subsequent judicial control of house arrest .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant , an engineer with a university degree , applied for the post of building inspector in the municipality of Tuusula . On DATE a Mr J. , a building engineer , was appointed .

On DATE the applicant applied for rectification , which was rejected by ORG ( ympäristö- ja rakennuslautakunta , miljö- och byggnadsnämnden ) on DATE .

On DATE the applicant appealed . On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) overturned the decision , finding that the appointment procedure had been flawed by the fact that the applicant had not been among those candidates invited to an interview .

On DATE the municipality appealed . On DATE the applicant replied to the appeal . The municipality filed a second set of representations .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) overturned the lower court ’s decision . It held that the fact that , of the twenty persons who had applied for the post , CARDINAL had been interviewed did not disclose any partiality in the preparation of the case . Nor did it find that there were such differences between the applicant and Mr J. that ORG could be considered to have gone beyond its margin of appreciation when appointing the latter to the post . It had not transpired that the decision not to appoint the applicant could have been based on his age , as alleged by the applicant .

The applicant applied for the post of building inspector in the municipality of ORG . On DATE PERSON , a building engineer , was appointed .

On DATE the applicant applied for rectification , which was rejected by ORG ( ympäristölautakunta , miljönämnden ) on DATE .

On DATE the applicant appealed . On DATE ORG rejected the appeal , finding that there were no such differences between the applicant and PERSON that ORG could be considered to have gone beyond its margin of appreciation when appointing the latter to the post .

On DATE the applicant appealed further . On DATE ORG rejected the appeal , endorsing the lower court ’s reasons .

The applicant applied for the post of building inspector / master builder in the municipality of PERSON . On DATE a Mr H. , an engineer with a university degree , was appointed by ORG ( kunnanhallitus , kommunalstyrelsen ) .

On DATE the applicant applied for rectification , which was rejected by ORG on DATE .

On DATE the applicant appealed . On DATE ORG rejected the applicant ’s appeal .

The applicant applied for the post of building inspector in the municipality of Sahalahti . On DATE a PERSON , an engineer , was appointed by ORG ( kunnanvaltuusto , kommunalfullmäktige ) .

On DATE the applicant appealed . On CARDINAL DATE ORG overturned the decision insofar as PERSON a PERSON had been given priority over the applicant in the event that PERSON did not accept the post .

On an unspecified date the applicant appealed further . On DATE ORG rejected the appeal , endorsing the lower court ’s reasons .

The applicant applied for the post of deputy to the building inspector in the municipality of ORG . On DATE a Ms U. , a master builder , was appointed .

On DATE the applicant appealed . On DATE ORG rejected the appeal .

The applicant applied for the post of building inspector in the municipality of ORG . On DATE PERSON , a building engineer , was appointed by ORG .

On an unspecified date the applicant applied for rectification , which was rejected by ORG on DATE .

On an unspecified date the applicant appealed . On DATE ORG rejected the appeal .

The applicant applied for the post of building inspector in the municipality of GPE . On DATE a Mr L. , an engineer , was appointed by ORG .

On an unspecified date the applicant applied for rectification , which was rejected by the municipal executive board on DATE .

The applicant applied for the post of city engineer in the municipality of ORG . On DATE a Mr V. , a building engineer , was appointed by ORG .

The applicant applied for the post of technical director in the municipality of PERSON . On DATE a Mr R. , an engineer with a university degree , was appointed by ORG .

On an unspecified date the applicant appealed . On DATE ORG overturned the decision , finding that the appointment procedure had been flawed by the fact that the applicant had not been among those candidates invited to an interview .

On unspecified dates PERSON and the municipality appealed . On DATE ORG overturned the lower court ’s decision . It held that the fact that , of the CARDINAL persons who had applied for the post , CARDINAL had been interviewed did not disclose any partiality in the preparation of the case . Nor did it find that there were such differences between the applicant and PERSON that the municipal board could be considered to have gone beyond its margin of appreciation when appointing the latter to the post . It had not transpired that the decision not to appoint the applicant could have been based on his age , as alleged .

The applicant applied for the post of building inspector in the municipality of GPE . On DATE a PERSON , a building engineer , was appointed by ORG .

The applicant applied for the post of building inspector in the municipality of ORG . On DATE a PERSON , a building engineer , was appointed by ORG .

The applicant applied for the post of technical director in the municipality of GPE . On DATE a PERSON , a building engineer , was appointed by ORG .


No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Elisabeth Steiner;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in PERSON , GPE .

The applicant worked for DATE in LOC of GPE . She instituted court proceedings against local pension authorities claiming recalculation of her pension .

On DATE ORG of GPE granted her claim . The court ordered ORG of LOC of GPE to recalculate her pension paid after DATE by counting DATE of her service in LOC as DATE of working record and to pay her respective pension arrears for the period DATE and DATE . On DATE the judgment was upheld on appeal by ORG and entered into force . It appears that the parties were not present at the appeal hearing .

On DATE the applicant received CARDINAL writs of execution from the district court . By the accompanying letter , sent by registered mail , the court informed her that she had to submit the writs to the respondent authority . In case of the debtor ’s refusal to enforce the judgment voluntarily , she was advised to forward it to the local bailiffs’ service , so that the enforcement proceedings could be opened .

The applicant did not forward the writs either to the local bailiffs’ service or the respondent pension authority . The judgment remained unenforced .

According to the Government , in the meantime the applicant ’s oldage pension had been recalculated and on DATE further indexlinked .

On DATE and CARDINAL DATE she applied to ORG for a copy of the writs of execution . She argued without further details that , due to her lack of knowledge on the matter , she must have sent CARDINAL of the writs to the ORG and that she must have lost another one .

By CARDINAL separate decisions of CARDINAL DATE and CARDINAL DATE the district court rejected her respective applications , since she had not complied with the DATE time - limit for lodging a request for the copy of the writ . The court found no valid reason for extension of that timelimit . The court further observed that in any event the applicant had already been in receipt of the old - age pension in the amount higher than that awarded by the judgment of DATE . If recalculated in line with that judgment , the amount of her pension would have been significantly reduced .


CASE OF WASILEWSKA AND KALUCKA v. POLAND

Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award

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

The applicants were born in DATE and DATE respectively and they live in FAC .

On DATE Mr PERSON , who at the material time was DATE , arrived at the Spała FAC accompanied by CARDINAL persons , PERSON and ORG They parked their car , a ORG Passat , next to a fence surrounding FAC .

Suddenly , a column of CARDINAL vehicles , CARDINAL minibuses and CARDINAL saloon car , arrived . Several armed men jumped out of the vehicles . It later turned out that they were police officers from the PERSON and ORG and from a special anti - terrorist group .

Some of the officers wore plain clothes and others combat uniforms with bulletproof vests and helmets . Not all the police officers were wearing fluorescent vests and they bore no other visible signs that would indicate that they were from the police . In particular one police officer , later named witness no . CARDINAL , as was visible on the film recorded by the camera of the private television station ORG , was not wearing such a vest . The ORG television had been preparing a documentary on the work of the police and had placed cameras in the police cars . A short documentary “ Criminal Games ” was prepared following the operation .

Mr GPE and the other CARDINAL occupants of the car thought they were about to be robbed and tried to escape in the direction of the swimming pool which led to a dead end . PERSON took the driver 's seat and Mr PERSON climbed into the back - seat behind him . The third man , ORG , did not manage to get inside the car and tried to run away .

Mr GPE and PERSON drove DATE third police vehicles while the police opened fire , shooting repeatedly at the driver and the passenger . The orders of the commanding officer had not been complied with as he had ordered that the police officers from the last vehicle should arrest the suspects . Instead many other officers had left their vehicles and attempted to stop the car by firing automatic weapons .

The whole operation lasted TIME during which CARDINAL bullets were fired at the car as it was driving off , according to an expert , at CARDINAL k.p.h . In spite of the claims by the police officers that they had been aiming at the tyres , none of the tyres had been damaged .

NORP The driver lost control of the vehicle and hit the fence . Mr PERSON was severely wounded and was removed from the car by one of the police officers , who pulled him by the head . The first applicant submitted that Mr PERSON was of a heavy build , weighing QUANTITY , and at the time of the events was observed to have CARDINAL bullet wounds .

No arrangements had been made for an ambulance to be present . Although the police officers testified that they had attempted to resuscitate PERSON and stop the haemorrhage , the autopsy reports made no mention of this . Mr PERSON died before the arrival of an ambulance TIME after the shooting . The driver of the car , PERSON , was seriously wounded .

On an unspecified date both applicants requested ORG to initiate a criminal investigation into the death of PERSON .

The prosecutor took testimony from all the police officers who had taken part in the operation , as anonymous witnesses ( świadek incognito ) .

On DATE the ORG decided to discontinue the investigation . The prosecutor established that the operation had been initiated upon information that CARDINAL armed criminal gangs would engage in a confrontation in the Spała FAC . According to the information obtained by the police the gangs would be armed with semi - automatic GPE - type weapons . CARDINAL police officers had arrived in CARDINAL unmarked cars , wearing balaclavas and bulletproof vests . The officers from ORG were in plain clothes but were wearing fluorescent vests with the word “ Police ” marked on them . The other group , from a special anti - terrorist force , were wearing uniforms and dark - coloured vests marked “ Police ” .

The police operation had started when the commanding officer received information that a suspicious group of people had gathered on the grounds of ORG . After he had given the order to move , the column of cars had approached the ORG Passat that was parked at right angles to the street . The commanding officer had ordered the arrest of CARDINAL men who were standing next to the ORG and who turned out to be Mr ORG and ORG The arrest was to be carried out by police officers from the last CARDINAL cars in the column . The police vehicles had moved CARDINAL after the other , blocking the street and the suspects ' car . The suspects had tried to escape and CARDINAL of them had jumped into the car and driven off fast , taking advantage of a gap that had been left between the second and third police vehicles . By this time almost all the police cars had stopped and the police officers had got out . They were armed with guns and semi - automatic rifles . A police officer , who in the proceedings was named anonymous witness no . CARDINAL , got out of the second vehicle and found himself in the way of the ORG so he jumped aside to avoid being hit by the rapidly moving car . He shouted “ police ” and started shooting , aiming at the tyres of the suspects ' car . He fired TIME shots from his sub - machine gun ( pistolet maszynowy Glauberyt ) . Another police officer , witness no . CARDINAL , got out of the first vehicle and found himself facing the escaping ORG . He was wearing a fluorescent vest marked with the word “ Police ” , and shouted “ stop , police ” but the driver failed to obey . At the last moment , the witness had had to jump aside but had nevertheless been hit by the car and sustained an injury to his leg . He had not lost balance , and fired CARDINAL shots from his gun ( pistolet marki Glock ) at the tyres of the ORG . A policeman from the anti - terrorist forces , witness no . CARDINAL , had stepped out of the second car and had also attempted to stop the car by firing CARDINAL shots from his sub - machine gun ( ORG maszynowy MP-CARDINAL ) . He aimed at the engine , front tyres and , as the car was passing him , its side and the rear tyres . The next police officer , witness no . CARDINAL , had followed police officer no . CARDINAL out of the first police vehicle . As the suspects ' car was passing him he noticed that the driver was aiming at him with an object resembling a gun . The police officer then fired a short burst from his machine gun ( karabin PERSON ) aiming at the lower side of the car and tyres . Finally , another officer from the antiterrorist forces , witness no . DATE , had got out of the third vehicle . Noticing that the suspects ' car had passed one of the police vehicles and hit officer no . CARDINAL , he had run after the escaping vehicle , shouted to the driver to stop and opened fire with his machine gun ( a PERSON ) , aiming at the car 's left rear tyres . The other police officers had run after ORG , the remaining suspect who had not managed to get into the car , and overpowered him .

The suspects ' car stopped on reaching the metal fence . Witness no . CARDINAL had gone to the car and ordered the driver to surrender . He had helped him out of the car and attended to him as he was bleeding . Anonymous witness no . CARDINAL had opened the rear door of the car and removed PERSON , pulling him by the head as he had not reacted to his orders . He did not resist but was still alive . The police officer had tried to staunch the bleeding from his back and called the commanding officer , who brought over a medical ventilator and started to resuscitate him until the arrival of the ambulance .

The prosecutor also established that Mr PERSON 's death had been caused by a bullet wound to the torso . The bullet breached the abdominal aorta causing a massive haemorrhage . It did not leave his body and the experts were able to establish that it had been fired by witness no . CARDINAL . In addition to the fatal wound , PERSON had sustained a further CARDINAL surface bullet wounds to his head , right arm , lower torso , left torso and left thigh .

Following a search of the ORG CARDINAL guns had been found , CARDINAL on the floor behind the driver 's seat and the second in the pocket at the back of the driver 's seat .

NORP The other suspect , PERSON , had sustained CARDINAL bullet wounds to the torso and head , the latter caused by a shot fired by witness no . CARDINAL . As a result , he had become severely disabled , suffering from paralysis on one side of his face and deafness .

The prosecutor established that the driver of the ORG had failed to obey the order to stop , accelerated towards witness no . CARDINAL , and had therefore acted with the intention of killing him . The prosecutor concluded that in those circumstances the police officers had had the right to use their firearms in pursuing persons against whom there was a reasonable suspicion that they had attempted to commit homicide and were armed . According to the prosecutor , the investigation materials showed that when using their weapons the police officers had followed all the relevant rules and their sole intention had been to stop escaping suspects . The prosecutor thus decided to discontinue the investigation as no crime had been committed .

Both applicants appealed against that decision . They submitted that PERSON and Mr PERSON had not been armed as the guns found in the car had not been used and did not have their fingerprints on them . The gun linked by the expert to PERSON by scent identification had been hidden in the pocket of the car seat and thus could not have been used by him . The applicants alleged that the prosecutor had failed to deal with many inconsistencies in the testimonies of the police officers . Moreover , it had not been explained why no blood stains had been found in the car even though PERSON had died of a haemorrhage and suffered many bullet wounds . The applicants also blamed the police for not preparing the operation properly . They pointed to the fact that in total CARDINAL armed police officers had participated in the operation during which forty shots had been fired at the car ( including CARDINAL which had passed through a point above the driver 's door handle , CARDINAL through the boot , CARDINAL through the rear bumper , and CARDINAL through the driver 's seat and back seat ) . The car 's tyres remained undamaged despite the testimonies of the police officers that they had all aimed at the tyres . The applicants therefore submitted that the force used by the police officers against CARDINAL unarmed men had been disproportionate .

On DATE the Tomaszów Mazowiecki District Court ( Sąd Rejonowy ) dismissed the applicants ' appeals and upheld the prosecutor 's decision . It found that no offence had been committed and the law , in particular section CARDINAL(CARDINAL)(CARDINAL ) of LAW , had been complied with . The court stated :

“ When seeing the police , [ PERSON and Mr PERSON ] tried to escape . This attempt was met with a firm but proper response from the police officers participating in the operation , in particular anonymous witness no . CARDINAL , who stood in the path of the oncoming car and attempted to stop it by shouting : ' Stop , police ' . One should recall at this point the very important circumstance that this witness was wearing a fluorescent vest with the word ' Police ' marked on it , leaving no room for doubt about his function . The car was heading straight for the intervening police officer who only managed to avoid being hit by PERSON [ who was driving the car ] through his training and expertise ...

The court has established , after analysing the evidence , that when firing the shots the police officers followed all the procedures necessary in the situation and their intention was only to stop the speeding car and to arrest the fugitives . They used their guns in the direct pursuit of the suspects , who had made an attempt on the life and health of the police officers ...

The court does not agree with the submission made in the appeal lodged by the [ first applicant 's ] lawyer that PERSON and [ PERSON ] had not used any firearms and that no shot had been fired by them . The actions of the police officers were not in response to shots being fired by the suspects . They attempted to arrest persons in respect of whom there was a reasonable suspicion that they were armed , without a relevant licence , and who had made a direct and illegal attempt on the life and health of the police officers .... ”

That decision was final as no appeal lay against it .

After the events , PERSON and some other persons arrested in the Spała FAC were indicted on various charges .

It appears that in the course of these proceedings the police officers who had participated in the operation again gave evidence in court . The applicants submitted excerpts from the transcript of CARDINAL of the hearings held on an unspecified date when the court heard witness no . CARDINAL . The witness repeated the version of events he had given in the investigation against the police . Afterwards he was shown the episodes from the film recorded by a TVN camera . He then testified as follows :

“ I saw on the film that a person , probably me , jumped out of a car and did not have a yellow vest on , but from what I can remember I must have put on this vest when drawing alongside the second vehicle . It was caused by the fact , mentioned by me before , that according to the first plan of the operation , the team in the vehicle I was in was supposed to make arrests at the swimming pool [ located deeper inside the grounds of the FAC , where some other suspects were arrested ] . That 's why I was taken by surprise when the order of the commanding officer came and so did not have my vest on when I got out of the car . I was not wearing a helmet either , as I did not put it on and it remained in the car . At this moment I do not remember if I got out of the car with the vest in my hand but I believe so . ”

It appears that in DATE ORG convicted PERSON of assaulting a police officer and sentenced him to DATE imprisonment .

It appears that subsequently in this set of proceedings , on DATE , an expert opinion was submitted to the court by a road accident expert . The expert was unable to establish beyond reasonable doubt the exact location of witness no . CARDINAL and the ORG Passat during the events . He was also unable to give a conclusive opinion on whether the driver of the ORG had had time to change direction in order to avoid hitting witness no . CARDINAL , who had emerged suddenly from his police car .

Article CARDINAL of LAW of DATE ( ORG ) reads , in so far as relevant :

“ CARDINAL . If a lawful order given by a police authority or police officer has not been complied with , a police officer may apply the following coercive measures :

CARDINAL ) NORP physical , technical and chemical means to restrain or escort persons or to stop vehicles ;

CARDINAL ) NORP truncheons ;

CARDINAL ) NORP water cannons ;

CARDINAL ) NORP police dogs ;

CARDINAL ) rubber bullets fired from firearms .

Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed . ”

Section CARDINAL of LAW provides :

“ CARDINAL . If the coercive measures mentioned in section CARDINAL ( CARDINAL ) prove insufficient , or their use in the circumstances is not possible , a police officer may use firearms exclusively :

CARDINAL ) NORP in order to fend off a direct and illegal attempt on the life , health or liberty of a police officer or other person , or to prevent activities directly related to such an attempt ,

CARDINAL ) NORP against a person who fails to obey an order to drop immediately a weapon or another dangerous instrument whose use poses a threat to the life , health or liberty of a police officer or other person ,

CARDINAL ) in the direct pursuit of a person in relation to whom the use of firearms was lawful under paragraphs CARDINAL or CARDINAL , or who is reasonably suspected of committing a crime , an attempted act of terrorism , abduction in order to obtain a ransom or other demand , mugging , robbery , violent assault , intentional serious bodily injury , rape , arson or other intentional threat to public security , life and/or health ,

NORP In operations by organised units or sub - units of the Police , firearms shall be used only on the direct orders of the commanding officer .

Firearms shall be used so as to cause minimum damage to the person targeted , and without any intention of depriving that person of his or her life and without endangering the life or health of others .

The Council of Ministers shall issue a resolution defining the conditions and operational procedural requirements for the use of firearms by the organised Police detachments mentioned in paragraph CARDINAL . ”


Violation of Art. 8;Not necessary to examine Art. 14;Partly inadmissible;Non-pecuniary damage - finding of violation sufficient;Cost and expenses award - domestic and Convention proceedings

Alvina Gyulumyan;Egbert Myjer;John Hedigan;Lucius Caflisch;Luzius Wildhaber;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE , before the applicant ’s birth , the ORG - appointed guardian brought an action against ORG , the applicant ’s putative biological father , seeking a declaration of paternity and payment of a contribution towards his maintenance . PERSON admitted that he had had sexual relations with the applicant ’s mother but denied paternity .

On DATE , after the applicant ’s birth , his mother declared on registering the birth that the father was PERSON , with whom she had had sexual relations during the period of conception .

On DATE ORG Instance dismissed the action for a declaration of paternity . In the absence of an appeal , the judgment became final .

NORP In DATE the applicant , who had been placed with a foster family , met his mother , who informed him that his father was PERSON According to the applicant , he had regular contact with his father and received presents from him and a DATE payment of MONEY ( ( CHF ) – PERSON euros ( EUR ) ) until he reached the age of majority . PERSON and his family denied those allegations . Only PERSON ’s legitimate son admitted that he had received a telephone call from the applicant after PERSON ’s death .

Furthermore , ORG always refused to undergo tests to establish his paternity . In DATE , shortly after his death , a blood - type analysis carried out at the applicant ’s request did not rule out his being the latter ’s father .

In DATE the applicant contacted ORG to have a private paternity test carried out , but his request was refused .

On DATE the applicant successfully applied to renew the lease for ORG ’s tomb until DATE for the sum of CHF MONEY ( ORG CARDINAL,CARDINAL ) .

On DATE the applicant applied to ORG for revision of the judgment of CARDINAL DATE . In the course of the proceedings he also requested a DNA test on the mortal remains of ORG

On DATE ORG refused the request for a DNA test .

On DATE the Canton of ORG rejected the applicant ’s application on the ground that it was impossible to obtain a declaration of paternity without also amending the register of births , deaths and marriages .

ORG argued that the applicant was not entitled to such an amendment of the register as a result of the DATE revision of LAW abolishing the exceptio plurium constupratorum , a defence which the putative biological father could use in a paternity suit . However , in his application to ORG the applicant had sought revision of the DATE judgment , in which the exceptio plurium had been relied on to the benefit of ORG

ORG noted that DATE ( when the revised Civil Code had come into force ) , an illegitimate child who was DATE on DATE had had the option of converting a maintenance claim into a civil action ( paternity suit ) where the exceptio plurium had been raised . However , this was no longer permitted under the revised Civil Code .

ORG accordingly held that , even supposing that the applicant had been awarded maintenance in DATE , he was no longer entitled to have the register of births , deaths and marriages amended , firstly because the law had changed , and secondly because he had been born DATE before the end of the transition period between the old and new laws .

His request for evidence to be taken by means of a DNA test was therefore refused .

On DATE ORG adopted a judgment , served on DATE , in which it rejected the applicant ’s application on the following grounds :

“ The right to know one ’s parentage can not be absolute in scope but must be weighed against the interests relating to protection of the personal freedom of others – in the instant case , the right of the deceased , deriving from human dignity , to protect his remains from interferences contrary to morality and custom , and the right of the close relatives to respect for the deceased and the inviolability of his corpse . ...

The right to know one ’s parents is generally linked to the right to be raised by them . The applicant , who is DATE , has been able to develop his personality and pursue a large portion of his existence without suffering any medically attested damage to his physical or mental health as a result of his uncertainty as to his parentage , despite the vicissitudes of his childhood and adolescence . On the other hand , while the reasons of family devotion opposing the exhumation of the mortal remains of the late [ ORG ] are understandable , the respondents have not advanced any religious or philosophical grounds in support of their position ; in particular , they have not argued that they would have renewed the lease on their relative ’s tomb had the applicant not done so .

However , in weighing up the conflicting interests , the refusal of the application for an expert examination may be upheld since , in the absence of any consequences of a civil - law nature , the applicant has not established that he has suffered sufficiently serious damage to his psychological well - being , as protected by the right to personal freedom , to justify the evidentiary measure requested . The measure appears excessive in view of the principle of proportionality , having regard to the applicant ’s particular circumstances , from which it can not be concluded that his personality or mental stability might be seriously threatened by the uncertainty that may still persist as regards his parentage , in spite of all the information in his possession suggesting that [ ORG ] very probably is his father . ORG was therefore entitled to restrict the applicant ’s personal freedom by taking into consideration that of the respondents , in view of the lack of public interest in having this parental tie established and the disproportionate nature of the steps required to establish it . ”

Lastly , ORG observed that there were no consequences of a civil - law nature that could justify implementing the measure sought .


The applicant , Mr Pavlo Volodymyrovych Soloshenko , is a NORP national who was born in DATE and lives in the town of GPE , the ORG region , GPE .

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

In DATE the applicant instituted proceedings in ORG against ORG , seeking recovery of food allowance arrears ( an extraordinary compensation for food expenses ) for the period from DATE until DATE , to which he was entitled having been a relief worker during the CARDINAL Chernobyl Nuclear Plant disaster . On DATE the court ordered the department to pay the applicant ORG CARDINAL in compensation .

On DATE the court issued a writ of execution for the judgment .

On DATE the same court granted the department an extension of the time - limit for lodging its appeal against the judgment . The applicant did not appeal against that decision .

On DATE the ORG upheld the judgment of DATE . The decision of CARDINAL DATE was not appealed in cassation .

On DATE the applicant submitted to ORG the writ of execution for the judgement of DATE , seeking initiation of the enforcement proceedings .

On DATE ORG postponed initiation of those proceedings on the ground that the writ of execution did not contain information about the debtor ’s bank accounts . It sent the writ to ORG for corrections to be made by DATE .

According to the Government , ORG issued another writ in respect of the judgment at issue on DATE .

On DATE ORG instituted enforcement proceedings .

On DATE ORG discontinued the enforcement proceedings in the light of the full execution of the judgment of DATE .


Violation of P7-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE am PERSON .

On DATE the applicant was involved in a road traffic accident in which his passenger was slightly injured .

On DATE the Braunau ORG Bezirkshauptmannschaft ) ordered the applicant to pay a fine of CARDINAL NORP schillings ( ORG ) , with CARDINAL days’ imprisonment in default , for driving under the influence of drink , contrary to sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( a ) of LAW DATE ( Straßenverkehrsordnung ) . The applicant did not appeal .

Meanwhile , on CARDINAL DATE , a criminal information was laid against him .

On DATE ORG ( Bezirksgericht ) convicted the applicant under LAW and CARDINAL of LAW ) of causing injury by negligence , with the additional element of LAW , and sentenced him to pay a fine of ORG CARDINAL with CARDINAL days’ imprisonment in default .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal . ORG noted that ORG had meanwhile found that the NORP reservation in respect of LAW No . CARDINAL was invalid ( see the PERSON v. GPE judgment of DATE , Series A no . CARDINAL-C , pp . DATE , § § DATE ) . However , the judgment was not directly applicable and , therefore , it had to be assumed that double punishment was still lawful under domestic law , if the courts decided after the administrative authorities . In addition it noted that , following a judgment of ORG changing the subsidiarity provisions in section CARDINAL ( CARDINAL ) ( c ) of LAW , the administrative offence of drunken driving was subsidiary to an offence under LAW committed with the additional element of LAW . This change of law was however not applicable to the case in issue .

Section CARDINAL ( CARDINAL ) of LAW DATE provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or QUANTITY or QUANTITY respectively .

Section CARDINAL of LAW , so far as relevant , provided at the material time , that :

“ ( CARDINAL ) It shall be an administrative offence ( GPE ) , punishable with a fine of not less than ORG CARDINAL,CARDINAL and not more than ATS CARDINAL,CARDINAL or , in default of payment with CARDINAL to CARDINAL GPE imprisonment , for any person :

( a ) to drive a vehicle when under the influence of drink ...

( CARDINAL ) An administrative offence is not committed where : ...

( c ) facts constituting an offence under sub - sections ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) also constitute an offence falling within the jurisdiction of the [ ordinary ] courts ... . ”

In its judgment of CARDINAL DATE ORG had to examine the constitutionality of LAW subsection ( CARDINAL ) of LAW , by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts .

ORG noted that that it was not contrary to LAW if a single act constituted more than one offence . This was a feature common to the criminal law of many NORP countries . However , it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute CARDINAL offence , whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment . Thus , LAW prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other . Where , as in the present case , the law explicitly provided that one offence was not subsidiary to another , it had to be guided by LAW . The ORG ’s Gradinger judgment of DATE had shown that there was a breach of this Article if an essential aspect of an offence , which had already been tried by the courts , was tried again by the administrative authorities .

Section CARDINAL subsections ( CARDINAL)(a ) and ( CARDINAL ) of LAW , taken together , meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent . According to the criminal courts’ constant case - law under LAW of LAW ( cited below ) , drunken driving was also an essential aspect of certain offences tried by these courts . Insofar as LAW ( CARDINAL ) of FAC limited the subsidiarity of administrative offences to those enumerated in subsections ( CARDINAL ) to ( CARDINAL ) of section CARDINAL , thus excluding subsidiarity for the offence of drunken driving contained in section CARDINAL ( CARDINAL)(a ) , it violated LAW .

Meanwhile , section CARDINAL ( CARDINAL ) of LAW has been amended . It now provides that an administrative offence is not committed where facts constituting an offence under LAW also constitute an offence falling within the jurisdiction of the ordinary courts .

By LAW , it is an offence , punishable by up to three months’ imprisonment or a fine of up to CARDINAL and eighty day - rates , to cause injury by negligence . By virtue of LAW , where the special circumstances of LAW apply , the maximum possible sentence is increased from CARDINAL months’ to CARDINAL months’ imprisonment or a fine of up to CARDINAL and sixty day - rates .

Article CARDINAL § CARDINAL applies where a person commits the offence

“ after allowing himself , even if only negligently , to become intoxicated ... through the consumption of alcohol , but not to an extent which excludes his responsibility , notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state ” .

By virtue of an irrebuttable presumption applied by the criminal courts , a driver with a blood alcohol level of QUANTITY or higher is deemed to be “ intoxicated ” for the purposes of LAW .