The applicant , Mr Mairold Veermäe , is an NORP national who was born in DATE and is currently serving a prison sentence in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr A. PERSON , Director at ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

On DATE the applicant was convicted by a NORP district court of an aggravated narcotics offence and sentenced to DATE imprisonment . He had been detained since DATE . On DATE ORG ( ulkomaalaisvirasto , utlänningsverket ) ordered his expulsion to GPE . The judgment and the expulsion order both became final .

On DATE ORG ( rikosseuraamusvirasto , brottspåföljdsverket ) proposed to ORG that the applicant should serve the rest of his sentence in GPE . The applicant and ORG were invited to submit observations . The applicant objected to being transferred to GPE , whereas ORG agreed to the transfer .

On DATE ORG ordered the applicant to serve the rest of his sentence in GPE . It relied on section CARDINAL(CARDINAL ) of ORG in the Enforcement of LAW ( Law no . CARDINAL/CARDINAL , as amended by Law no . CARDINAL/CARDINAL ) ( laki kansainvälisestä yhteistoiminnasta eräiden rikosoikeudellisten seuraamusten täytäntöönpanossa , lag om internationellt samarbete vid verkställighet av vissa straffrättsliga påföljder ) and on LAW to the Convention on ORG ( NORP Treaty Series no . CARDINAL ; Finnish Treaty Series no . CARDINAL/CARDINAL ) . ORG held , inter alia , that the applicant did not have particular bonds with GPE and that he had closer social ties to GPE than to GPE .

The applicant appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , requesting the quashing of ORG decision . He argued that in GPE it would be possible for him to be released on parole on DATE after serving CARDINAL his sentence ; in GPE release on parole would only be possible after serving CARDINAL of the sentence . Even then his release on parole would be discretionary as PERCENT of inmates in NORP prisons were released on parole , whereas the rest served their sentences in their entirety . The de facto sentence would thus be CARDINAL and a half years longer in GPE , or even twice as long as the sentence in GPE if no release on parole were granted in GPE . He further claimed that some prisons in GPE were old and overcrowded . The applicant relied on Articles CARDINAL and CARDINAL of the Convention , maintaining that his transfer to GPE would place him in a discriminatory position compared to NORP prisoners and also to other NORP prisoners in GPE who were not transferred to GPE . He further relied on the non bis in idem principle ( LAW ) .

In its opinion to ORG , ORG stated the following ( as transcribed by the court ) :

“ ... Veermäe has been sentenced to DATE imprisonment , of which he will , as a first - time offender , be serving DATE and DATE . In GPE it would be possible for PERSON to obtain conditional release on having served CARDINAL of his sentence , that is to say DATE . [ His ] possibility of being released conditionally in GPE is therefore not significantly smaller than in GPE and the NORP legislation does not in this respect differ significantly from our own . ”

On DATE ORG dismissed the applicant ’s appeal , finding that , even though he was likely to serve a significantly longer prison sentence in GPE owing to the differences in the possibility of being released on parole , this in itself did not violate LAW . It also found that LAW would not be violated merely on account of the fact that prisons in GPE were apparently old and overcrowded . It ruled out any discrimination as the International Cooperation in the Enforcement of LAW , which naturally only applied to foreigners , provided an acceptable reason for the transfer .

ORG further held that the applicant ’s transfer to GPE would not breach LAW either , as the sentence he would actually be serving there would not exceed the sentence imposed by the NORP courts . No appeal lay against ORG decision ..

On DATE the NORP ORG requested ORG to consent to the enforcement of the sentence in GPE . At the time of filing their observations , the Government submitted that the consent of the latter had still not been received .

On DATE the applicant was transferred to a NORP open prison facility .

Under LAW , LAW ( as amended by PERSON no . CARDINAL/CARDINAL ) , of LAW ( laki rangaistusten täytäntöönpanosta , lag om verkställighet av straff ) , a prisoner may be conditionally released after serving CARDINAL or , exceptionally , CARDINAL of the sentence , in the latter case provided that the prisoner has not served a prison sentence during DATE preceding the offence . The factors to be taken into account in the decision to release a prisoner conditionally include , inter alia , the nature of and the motives for the offence , the prisoner ’s earlier lifestyle and his or her behaviour in prison , as well as the situation the prisoner would face on release .

Despite the authorities’ discretionary powers , it is very rare for conditional release to be postponed in GPE . A first - time prisoner is usually released after serving CARDINAL the sentence .

Under LAW , sections CARDINAL and CARDINAL ( as amended by PERSON no . CARDINAL/CARDINAL ) , a prisoner may appeal to a district court against , inter alia , the postponement of his or her conditional release on serving CARDINAL of the sentence ( whichever is applicable under LAW , LAW ) .

In a report ( no . CARDINAL ) , ORG noted the following ( on p. CARDINAL ) :

“ ... In DATE [ conditional release ] was almost never postponed . Following the instruction issued by ORG in DATE ( no . CARDINAL/CARDINAL/CARDINAL ) postponements have been very rare and almost exclusively based on the prisoner ’s consent . ... ”

It further observed ( on p. CARDINAL ) :

“ [ The proposals now being made ] would not change the existing legislation as regards the possibility of obtaining conditional release on serving CARDINAL of a sentence . Nor would there be any change as regards those prisoners who had not served a term of imprisonment during DATE preceding their offence and who are [ therefore ] to be released on serving CARDINAL their sentence . ... ”

The aim of the Convention on ORG ( “ LAW ” LAW no . CARDINAL and Finnish Treaty Series no . CARDINAL/CARDINAL ) , including its LAW , is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons . According to the LAW , foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society .

LAW came into force in respect of GPE on CARDINAL DATE and LAW on DATE . They came into force in respect of GPE on DATE and DATE respectively . Thus , they were in force on DATE when the applicant was convicted by the district court .

LAW enables the transfer of a sentenced person from “ the sentencing ORG ” to “ the administering State ” provided , inter alia , that the person in question is a national of the administering State ; that he or she ( or in some instances a legal representative ) consents to the transfer ; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering ORG or would constitute a criminal offence if committed on its territory ; and that the sentencing and administering GPE both agree to the transfer .

Article CARDINAL ( “ Effect of transfer for administering ORG ” ) reads as follows :

“ CARDINAL . The competent authorities of the administering State shall :

( a ) NORP continue the enforcement of the sentence immediately or through a court or administrative order , under the conditions set out in LAW , or

( b ) convert the sentence , through a judicial or administrative procedure , into a decision of that ORG , thereby substituting for the sanction imposed in the sentencing ORG a sanction prescribed by the law of the administering ORG for the same offence , under the conditions set out in LAW .

The administering ORG , if requested , shall inform the sentencing ORG before the transfer of the sentenced person as to which of these procedures it will follow .

The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions .

Article CARDINAL ( “ Continued enforcement ” ) provides :

“ CARDINAL . In the case of continued enforcement , the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing ORG .

NORP If , however , this sentence is by its nature or duration incompatible with the law of the administering State , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure shall , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG . ”

LAW Conversion of sentence ” ) reads as follows :

“ CARDINAL . In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority :

( a ) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing ORG ;

( b ) may not convert a sanction involving deprivation of liberty to a pecuniary sanction ;

( c ) shall deduct the full period of deprivation of liberty served by the sentenced person ; and

( d ) shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .

NORP If the conversion procedure takes place after the transfer of the sentenced person , the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure . ”

LAW provides as follows :

“ Upon being requested by the sentencing ORG , the administering ORG may , subject to the provisions of this LAW , agree to the transfer of a sentenced person without the consent of that person , where the sentence passed on the latter , or an administrative decision consequential to that sentence , includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing ORG once he or she is released from prison . ”

LAW ( hallinto - oikeuslaki , lag om förvaltningsdomstolarna ; CARDINAL ) provides that the administrative courts examine and decide such administrative appeals , disputes and other cases as fall within their competence under LAW ( hallintolainkäyttölaki , förvaltningsprocesslag ; ORG ) or other acts of ORG . LAW of ORG in the Enforcement of LAW provides that no appeal lies against the administrative court ’s decision . The government bill concerning LAW to the Convention on ORG ( HE CARDINAL/CARDINAL , p. CARDINAL ) states :

“ When considering a request for transfer , ORG should , in particular , pay attention to prison conditions in the ORG in which enforcement is being requested . The decision would also be affected , inter alia , by the most likely date on which the sentenced person would be conditionally released in accordance with the laws of the ORG of enforcement . Should the possibilities for conditional release in the ORG of enforcement be considerably weaker than in GPE , it might be unreasonable to request the transfer of the sentenced person . ”

ORG , having discussed the government bill , observed in its report ( ORG ) :

“ The prison conditions in the receiving ORG should be adequate to ensure that the prisoner will not be subjected to inhuman or degrading treatment or punishment . As a minimum , the conditions in which the prison sentence is served and its duration should not significantly differ from those applicable in GPE . Thus , transfers should also not take place where the legislation of the receiving State concerning the serving of sentences significantly differs from the NORP legislation , for example in respect of the possibility of conditional release . ”

The present case is the second one of its kind concerning GPE before the ORG , the first application ( ORG v. GPE ( dec . ) , no . PERSON , DATE ) having been declared inadmissible by the ORG as the applicant was no longer considered the victim of a violation within the meaning of LAW following his release on parole in GPE . In that case ORG gave an account of the relevant domestic legislation and practice , a summary of which can also be found below .

LAW , which replaced LAW on DATE , divides criminal offences into offences in the first degree and offences in the second degree . Criminal offences in the first degree are those for which LAW prescribes a maximum penalty of imprisonment for a term of DATE , life imprisonment or compulsory dissolution . A criminal offence in the second degree carries a term of imprisonment of DATE or a pecuniary penalty .

In accordance with LAW , which came into force on DATE , an offence committed prior to the entry into force of LAW which is also punishable as a criminal offence under LAW is assessed in the light of the corresponding LAW in force at the time of the commission of the offence . If , after the entry into force of LAW , a penalty is imposed for a criminal offence committed prior to the entry into force of LAW , the penalty is based on the one provided for in the corresponding LAW in force at the time of the commission of the offence , where the LAW in question prescribes a lesser penalty .

The offence of unlawful handling of large quantities of narcotic drugs or psychotropic substances was punishable by CARDINAL to CARDINAL years’ imprisonment from DATE to DATE ( LAW ) , thus rendering the offence an offence in the second degree under LAW . Since DATE the offence has been punishable by CARDINAL to CARDINAL years’ imprisonment , thus making the offence an offence in the first degree . LAW , valid until DATE and in force at the time the applicant committed his offence ( CARDINAL September CARDINAL - CARDINAL January CARDINAL ) , provided for a scale of penalties from CARDINAL to seven years’ imprisonment .

Conditional release ( release on parole ) is governed by LAW . If a person has been convicted of a criminal offence in the second degree , or a criminal offence in the first degree through negligence , the court may release the convicted offender conditionally if he or she has actually served CARDINAL but not DATE of the sentence imposed . If a person has been convicted of intentional commission of a criminal offence in the first degree , the court may release the person conditionally if the convicted person has actually served CARDINAL of the sentence imposed . In deciding on conditional release , the court must take into consideration the circumstances relating to the commission of the criminal offence , the personality of the convicted offender , his or her previous personal history and conduct while serving the sentence , his or her living conditions and the consequences which conditional release may entail for him or her .

In transfer cases , GPE has used the procedure of conversion of sentences on account of the fact that the criminal law in the sentencing GPE has , so far , provided for harsher penalties than those prescribed by NORP law for the same criminal offences . Transfer cases are heard by ORG , which converts the sentence into one applicable for a similar offence under NORP law . In ORG , ORG could not speculate as to the nature of the sentence , that being solely within the competence of the court . However , taking into account the relevant provisions of law and the current practice in transfer cases , they considered it likely that the penalty imposed in GPE would be less severe than the one imposed in GPE and that the actual term of imprisonment would be no longer than it would have been in GPE . In that regard , they noted that at the time of the commission of the offence it had carried a penalty of DATE imprisonment . However , according to the wording of LAW as in force until DATE , the penalty was imprisonment from DATE and as this penalty was less severe it thus replaced the CARDINAL prescribed by LAW . At the relevant time , therefore , the offence constituted a criminal offence in the second degree and conditional release would be possible after CARDINAL the sentence had been served .

In DATE prisoners were transferred from GPE to GPE to continue serving their sentences . In all cases LAW ( b ) of LAW was applied , as the penalty in GPE was significantly harsher ( a longer term of imprisonment ) than that prescribed for similar offences under NORP law . In ORG , ORG referred to a judgment delivered on DATE by ORG . In that case an NORP citizen had been convicted in GPE of a serious drug - related offence and sentenced to DATE imprisonment . ORG converted the sentence and imposed CARDINAL of CARDINAL years’ imprisonment . In most of the conversion cases , ORG has alleviated the situation of the transferred persons , as the prison sentences imposed have been reduced . In ORG submitted that they had no grounds to believe that the situation would be different regarding other comparable cases . A transferred prisoner had the possibility of bringing the case before ORG and he or she could submit any relevant information for consideration in the conversion of the sentence . An appeal lay to ORG .

In DATE a total of CARDINAL inmates were released from NORP prisons , CARDINAL of whom were conditionally released , amounting to PERCENT of the total number released . The average percentage of persons released conditionally has remained stable at PERCENT of all prisoners released throughout DATE .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13 and 14;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr PERSON , who resides at PERSON , was formerly employed by a private insurance company ( " the company " ) as the director of their regional branch office for GPE .

ORG In DATE a dispute arose between the applicant and the company concerning various paid activities which it proposed to withdraw from him . Mr Obermeier instituted proceedings in ORG ( Arbeitsgericht ) . On DATE , DATE following the first hearing , he was suspended from his duties by his employer ; the company considered that it was entitled to take such a decision at any time without giving reasons .

ORG After having unsuccessfully sought the opening of disciplinary proceedings , the applicant decided to challenge his suspension in the courts . Accordingly , on DATE , he brought , in ORG , an action for a declaratory judgment ( PERSON ) and , in the alternative , an action for performance ( PERSON ) . The first action was intended to establish the invalidity of the contested measure , while the second sought its revocation . He alleged in particular that the measure in question was designed to penalise him for having instituted legal proceedings against the company and was therefore unjustified .

ORG On DATE ORG dismissed the applicant ’s claims . On DATE ORG ( PERSON ) allowed PERSON appeal as regards the part of the judgment concerning the revocation of the suspension . It considered that by virtue of clause CARDINAL of the collective agreement for insurance employees ( see paragraph CARDINAL below ) , which was applicable , suspension of an employee was subject to certain conditions and that the first - instance court should have ascertained whether they were satisfied . The fact that Mr Obermeier had instituted legal proceedings against his employer could not in itself justify the impugned measure . The court dismissed the remainder of the appeal , finding that , under LAW ) , a declaratory judgment may bear only on the existence of a legal relationship ( Rechtsverhältnis ) and not on the validity of a legal measure ( GPE ) such as the suspension of an employee .

ORG The company appealed on points of law to ORG ( Oberster Gerichtshof ) which , on DATE , upheld ORG judgment . The case was therefore remitted to ORG .

ORG In the meantime the company had decided to terminate PERSON employment , his dismissal taking the form of " administrative retirement " ( administrative GPE ) . This decision , taken pursuant to clause CARDINAL § CARDINAL of the collective agreement ( see paragraph CARDINAL below ) , was notified to him on DATE and was due to become operative on DATE .

ORG Previously , on CARDINAL DATE , the company had , as it was required to do under section CARDINAL § CARDINAL of GPE ( GPE , see paragraph CARDINAL below ) , sought the authorisation of ORG , " ORG " ) for the applicant ’s dismissal . On CARDINAL DATE Mr Obermeier had been declared disabled for the purposes of that LAW .

ORG The ORG took the view that section CARDINAL § CARDINAL left the decision concerning the authorisation in question to its discretion but that it had to exercise that discretion in accordance with the spirit of the LAW , in other words taking account of the legitimate interest of the employer in the dismissal and the employee ’s special need for social protection . Following a hearing , the ORG gave its consent to the dismissal on DATE , finding that the relationship of trust between the parties had been irremediably undermined .

Mr Obermeier appealed against this decision , alleging inter alia that ORG had failed to hold an inquiry into the case and had obtained only the company ’s observations . ORG ( PERSON ) for GPE confirmed the ORG ’s decision on DATE , after proceedings in which no argument was taken .

ORG The applicant then appealed to ORG ( Verwaltungsgerichtshof ) which dismissed his appeal on DATE . It considered that the authorisation for his dismissal given by ORG and confirmed on appeal was not unlawful since it was not vitiated by errors of law ; the contested decision had not exceeded the discretionary power which the law conferred on the administrative authorities in this field ( see paragraph CARDINAL below ) . It added that the procedural requirements had been complied with in the administrative proceedings , in particular as regards PERSON access to the file .

ORG The applicant sought relief from ORG judgment by an application ( no . CARDINAL ) to ORG , which was declared inadmissible on CARDINAL DATE ( Decisions and Reports no . DATE , pp . CARDINAL ) .

ORG Simultaneously with the administrative proceedings relating to the authorisation for the applicant ’s dismissal , ORG resumed consideration of his suspension , following ORG decision remitting the case to it ( see paragraph CARDINAL above ) .

ORG The company pleaded Mr PERSON ’s lack of a legal interest ( NORP ) in the revocation of his suspension , since in the meantime he had been dismissed . The applicant , for his part , challenged the lawfulness of his dismissal . He stressed in particular that it had been pronounced before the authorisation from ORG had become final , as the case was still pending before ORG .

ORG On DATE the court rejected the applicant ’s claim . The dismissal had been pronounced with the authorisation of the competent administrative authority and the proceedings in ORG did not have suspensive effect . On CARDINAL DATE ORG upheld this judgment , observing that , in the intervening period , ORG had dismissed PERSON appeal .

ORG The applicant appealed on points of law to ORG which , on DATE , quashed the decisions of the labour courts . Overruling its previous case - law , it found that the company should have waited until ORG authorisation had become final ( rechtskräftig ) . Since the applicant ’s dismissal was therefore invalid , he had an interest in challenging his suspension ; accordingly , ORG remitted the case to ORG .

ORG Following this judgment , the company sent to the applicant , on DATE , a further notification of dismissal , which was to take effect on DATE . On DATE it requested ORG for a retroactive authorisation for the dismissal pronounced on DATE . It alleged that ORG overruling of its own case - law had not been foreseeable and therefore constituted an exceptional case for the purposes of section CARDINAL § CARDINAL of GPE .

ORG On DATE the ORG rejected the company ’s request on the ground that its decision of DATE ( see paragraph CARDINAL above ) had final effect ( Rechtskraft ) . On appeal by both parties , the Provincial Governor set aside this decision on DATE and gave his retroactive consent to the applicant ’s first dismissal .

ORG On DATE the applicant appealed on points of law to ORG ) which , on DATE , referred the case to ORG . The latter court allowed the appeal on CARDINAL DATE , finding that the company had committed an error of law by dismissing PERSON before the authorisation had become final . Consequently , on DATE , the NORP Governor confirmed the ORG ’s decision of CARDINAL DATE .

Mr Obermeier then asked ORG to declare , pursuant to sections CARDINAL of ORG , that his employment contract subsisted . ORG and the Provincial Governor found , on DATE and CARDINAL DATE respectively , that they lacked jurisdiction to make such a declaration , the matter being one for the ordinary courts .

ORG Following ORG order of DATE remitting the applicant ’s case to it ( see paragraph CARDINAL above ) , ORG allowed the applicant ’s claim on DATE . In its view , the legal proceedings instituted against the company by Mr Obermeier were in no way vexatious and therefore did not justify a measure of suspension , by which the employer had prejudged the outcome of the proceedings pending .

ORG On DATE , on an appeal by the company , ORG set aside this decision , notwithstanding the applicant ’s request for a stay pending the decisions of ORG and ORG ( see paragraph CARDINAL above ) . ORG considered itself bound by the Provincial Governor ’s decision of CARDINAL DATE authorising PERSON dismissal as from DATE ( see paragraph CARDINAL above ) . It concluded therefrom that the applicant no longer had any legal interest in obtaining the revocation of his suspension .

ORG On DATE ORG dismissed the applicant ’s appeal on points of law lodged on DATE . It found that ORG had been correct in regarding ORG authorisation as binding ; since only the administrative authorities were competent to apply the Disabled Persons ( Employment ) Act , those authorities were not bound by the opinion expressed by ORG in its judgment of DATE ( see paragraph CARDINAL above ) that the conditions laid down in section CARDINAL § CARDINAL of the LAW in question for the granting of retroactive authorisation were not satisfied . ORG stated that it was not for the civil courts to review the decisions of the administrative authorities . On the contrary , they were required to base their own judgments on such decisions , without any further examination .

In its judgment , ORG did not take into account the applicant ’s appeal to ORG and ORG . Indeed it seems to have been unaware of ORG judgment of CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG Simultaneously with the administrative proceedings instituted by him , PERSON also challenged his dismissal in the labour courts . On DATE he brought an action in ORG for a declaration that his dismissal was invalid . He argued that the company had not waited until the authorisation given by ORG had become final in law and had in addition failed to inform the works council , as it was required to do under section CARDINAL § CARDINAL of LAW , see paragraph CARDINAL below ) .

ORG After having stayed these proceedings on DATE , the court dismissed PERSON action on DATE on the ground that , in the meantime , the NORP Governor had given his retroactive consent to the applicant ’s dismissal from employment ( see paragraph CARDINAL above ) . The parties did not appeal from this decision .

ORG Following ORG judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , the applicant filed an application on DATE for the proceedings to be reopened ( PERSON ) and requested that such proceedings also deal with the second dismissal from employment . ORG judgment of CARDINAL DATE , which allowed this application , was upheld on DATE by ORG ( Oberlandesgericht ) and , on DATE , by ORG .

ORG Ruling on the merits on DATE , ORG found that Mr Obermeier had never been validly dismissed . It took the view that the effects of the prior authorisation given by ORG were not permanent and that such authorisation could provide the legal basis only for a dismissal which was closely linked to it both in terms of the period of time which had elapsed and as regards the substance ; this was not the case in respect of the second dismissal .

ORG On an appeal by the company , ORG set aside this decision on DATE on the ground that the situation was a continuous one so that there was a sufficient connection between the consent given by the administrative authority and the dismissal from employment pronounced on DATE .

ORG The applicant claimed that he had cited at the hearing , as an additional ground for the invalidity of his dismissal , disregard of clause CARDINAL § CARDINAL of the collective agreement ( see paragraph CARDINAL below ) , which requires the valid consent of the works council . The transcript of the hearing , notified to the applicant on DATE , did not refer to his statements in this respect ; he therefore lodged an objection to it on DATE , which ORG dismissed on DATE as out of time .

ORG In the meantime , the applicant had appealed on a point of law against ORG judgment of CARDINAL DATE ( see paragraph CARDINAL above ) . On DATE in a supplementary memorial he stressed that for his second dismissal no valid prior consent had been obtained from the works council as was required under clause CARDINAL § CARDINAL of the collective agreement .

ORG dismissed the appeal on DATE , holding that section CARDINAL of LAW , by virtue of which any dismissal from employment without prior consultation of the works council is invalid , did not apply to a disabled person . In such cases the consultation of the works council had already been effected by the interposition of the Board , acting in pursuance of section LAW . ORG declared the memorial of DATE inadmissible under the rule that CARDINAL appeal may be lodged ( ORG der ORG , see paragraph CARDINAL below ) .

ORG On DATE , even before a copy of ORG judgment had been served on him , the applicant instituted new proceedings in ORG , sitting as a social and labour court . He sought a declaration that the second dismissal was void on the ground that the company had not obtained the prior consent of the works council , as it was required to do under clause CARDINAL § CARDINAL of the collective agreement . The court dismissed the action on DATE , finding that the agreement given by the works council in DATE was also valid in relation to the DATE dismissal .

ORG , and subsequently ORG , dismissed PERSON appeals on DATE and DATE respectively .

ORG On DATE the applicant applied again to ORG for a declaration that the dismissal of CARDINAL DATE and the authorisation given by the administrative bodies were void as being contrary to honest practices ( GPE ) . On CARDINAL DATE the court rejected the claim . It took the view that the administrative organs in question had , by implication , expressed their opinion on the matter by giving their agreement pursuant to section CARDINAL § CARDINAL of GPE , because an authorisation accorded for a dismissal contrary to honest practices would have been inconsistent with the criteria which ORG had laid down for the validity of such decisions . On DATE ORG upheld this judgment . On appeal on points of law by PERSON , ORG quashed these CARDINAL decisions but dismissed his application on DATE , on the ground that the judicial decisions which had closed the proceedings in which the applicant had already contested the validity of his dismissal in the labour courts ( see paragraphs CARDINAL above ) were final .

ORG In the intervening period , PERSON had , on DATE , applied to the labour courts for the reopening of the proceedings concerning his suspension , proceedings which had been terminated by ORG on DATE ( see paragraph CARDINAL above ) . He relied on the judgment delivered by ORG on CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG On DATE ORG dismissed the application for the proceedings to be reopened , on procedural grounds . However , on DATE ORG allowed the applicant ’s appeal on points of law and remitted the case to ORG which had acquired jurisdiction by virtue of a new LAW on the social and labour courts .

ORG On DATE ORG ordered the proceedings to be reopened but allowed the company ’s application for a stay pending the conclusion of the proceedings concerning the dismissal of DATE . It did so despite the protracted nature of the proceedings , because the decision on the dismissal was clearly crucial to the suspension proceedings . The proceedings remain stayed .

ORG Employment contracts are governed by the general law of contract ( Articles CARDINAL et seq . of LAW , ORG ) and in particular by the provisions on contracts for services ( NORP , Articles CARDINAL et seq . of the Code ) , supplemented by LAW NORP , ORG no . CARDINAL as amended ) . LAW provides that a person may be dismissed only on certain specific grounds , which it lists .

ORG As a general rule , employment contracts are concluded on the basis of collective agreements ( Kollektivverträge ) , whose terms form part of the conditions of employment , unless otherwise stipulated in the individual contract . ORG ( PERSON für ORG ) , which was applicable in this instance , lays down the principle that , with very few exceptions , a permanent employee may be dismissed only after disciplinary proceedings ( clause CARDINAL § CARDINAL ) . CARDINAL of the exceptions is " administrative retirement " ( administrative GPE ) , provided for in clause CARDINAL § CARDINAL . Among the conditions to which such a measure is subject is the prior consent of the works council .

ORG Clause DATE of the agreement concerns " suspension " ( GPE ) , and is worded as follows :

" ( CARDINAL ) Suspension does not constitute a penalty , but is a preventive administrative measure which may be imposed by management in the following cases :

( a ) where a criminal or disciplinary investigation is being conducted against an employee ;

( b ) where there has been a gross failure to show due respect and proper deference to hierarchical superiors ;

( c ) where it appears necessary on grounds of safety at work and in the interests of the undertaking .

( CARDINAL ) During the period of his suspension , the employee shall continue to be paid his salary . In addition he shall continue to be entitled to promotion on grounds of seniority . "

ORG The dismissal of employees is governed in principle by LAW , ORG no . CARDINAL/CARDINAL ) . The version applicable at the material time provided as follows :

" Appeal against dismissal

( CARDINAL ) Before dismissing an employee , an employer shall notify the works council , which may comment within DATE .

( CARDINAL ) If so requested by it , the employer shall discuss the dismissal with the works council within DATE allowed for comment . Any dismissal prior to expiry of this period shall be invalid , unless the works council has already stated its position .

( CARDINAL ) If the works council has not expressly authorised the proposed dismissal within the period specified in paragraph ( CARDINAL ) , application may be made to the conciliation board to set it aside , if

the dismissal is not justified from a social point of view and the dismissed employee has already been in the employ of the undertaking for DATE . Dismissal is unjustified from a social point of view when it damages the employee ’s vital interests , unless the employer can show that it is due to

( a ) circumstances relating to the employee personally and which are detrimental to the interests of the undertaking or

( b ) business requirements which militate against his continued employment .

In the examination as to whether a dismissal is unjustified from a social point of view , special attention shall be given in the case of older employees to the fact that they have been employed without a break for DATE in the undertaking or the company of which the undertaking is part , and to the difficulties that they may be expected to encounter in finding new employment because of their age .

( CARDINAL ) The employer is required to give the works council notice of the dismissal . If it has expressly objected to the proposed dismissal , the works council may , within DATE of being notified , contest it before the conciliation board at the dismissed employee ’s request . If the works council does not act on the employee ’s request and contest the dismissal , he may himself do so before the conciliation board within DATE following expiry of the time - limit laid down for the works council .

( CARDINAL ) ...

( CARDINAL ) If the conciliation board grants the application , the dismissal shall be invalid . The conciliation board ’s decision shall be final . "

The conciliation board operates as a labour court .

ORG Article CARDINAL of the Disabled Persons ( Employment ) Act ( GPE , PERSON no . CARDINAL/CARDINAL , as amended ) , provides as follows :

" Dismissal

( CARDINAL ) Except in cases where a longer period of notice is required , a disabled person who enjoys special status and is dismissed by his employer shall be entitled to DATE notice . ...

( CARDINAL ) A ... person [ in this category ] may only be dismissed by his employer if ORG , ... , after having consulted the works council ... , has given its consent ; the employee shall have the status of a party in these proceedings . Without prejudice to legal provisions imposing additional conditions on termination of employment , any dismissal pronounced without the prior authorisation of ORG shall be invalid unless the ORG gives its consent retroactively in exceptional circumstances . Section CARDINAL § § CARDINAL to CARDINAL of LAW ( ORG no . CARDINAL/CARDINAL ) shall not apply to the dismissal of disabled persons enjoying special status . "

ORG Unless otherwise provided for in ORG , the procedure before ORG and , on appeal , before the second - instance authority is governed by LAW Allgemeines Verwaltungsverfahrensgesetz , PERSON . GPE , as amended ) .

ORG Under section CARDINALa of the LAW , appeals from the ORG ’s decisions are heard by ORG ( PERSON ) , acting as a delegated authority of the federal administration ( mittelbare GPE ) within the meaning of LAW Bundesverfassungsgesetz ) . In this capacity , he is subject to instructions ( PERSON ) from the Federal Minister for ORG ( MONEY FAC CARDINAL § CARDINAL in conjunction with LAW of LAW ) .

ORG An appeal to ORG has suspensive effect by virtue of LAW .

ORG The resulting decision is deemed to be final ( formell rechtskräftig ) although it may be challenged in ORG ( Verwaltungsgerichtshof ) and in ORG ) pursuant , respectively , to Articles CARDINAL and CARDINAL of LAW . Such appeals do not have suspensive effect , unless the relevant courts decide otherwise ( section CARDINAL of LAW ( PERSON ) , PERSON no . DATE , and CARDINAL of LAW ( Verfassungsgerichtshofgesetz ) , PERSON no . CARDINAL/CARDINAL ) .

ORG declares the decision void if it does not dismiss the appeal as unfounded ; it rules on the merits only if the competent authority has failed in its duty to render a decision ( section CARDINAL § CARDINAL of LAW ) .

Where it has to review the lawfulness of an administrative measure , the ORG bases its decision on the facts established by the relevant authority , with reference solely to the complaints submitted , except where the authority in question lacked jurisdiction or where procedural rules have been infringed ( section CARDINAL of the above - mentioned Act ) . In this connection the Act specifies that ORG is to declare void the impugned measure for infringement of such a rule where the facts found by the authorities are not borne out , on an important point , by the evidence , where the facts thus determined have to be supplemented on such a point and where there is a failure to comply with rules which , if they had been correctly applied , could have resulted in a different decision ( section CARDINAL § CARDINAL ( CARDINAL ) of the LAW ) .

If in the course of such an examination grounds emerge which were hitherto unknown to the parties , ORG has to hear the parties and , if necessary , stay the proceedings ( section CARDINAL § CARDINAL ) .

The procedure involves essentially an exchange of memorials ( section CARDINAL ) , followed , except in certain cases listed in the LAW , by a hearing conducted under the adversarial principle in the presence of the parties concerned and , as a rule , held in public ( sections DATE and DATE ) .

ORG LAW stipulates in addition that at all levels of jurisdiction the administrative authorities must be separate from the courts .

LAW of the LAW applies where ORG has to review the lawfulness of an administrative measure taken in the exercise of a discretionary power which the law confers on the competent authority ; it provides as follows :

" There is no ground for a finding of unlawfulness ( PERSON ) where the legislature has refrained from laying down binding rules for the conduct of the administrative authority and leaves it to that body to determine its own conduct and the authority in question has used this discretionary power in accordance with the law . "

ORG Until the entry into force of ORG ( Arbeits- PERSON , ORG no . DATE ) on DATE , the proceedings in the present case were governed by FAC ( Arbeitsgerichtsgesetz , GPE no . DATE , as amended ) .

This Act provided for first - instance labour courts , sitting for the same areas as district courts ( PERSON ; section CARDINAL ) . Appeal lay to the ordinary civil courts in other words ORG and ORG , which courts , set up special chambers for this purpose ( sections CARDINAL § CARDINAL and CARDINAL ) . The new legislation conferred jurisdiction in labour disputes on special chambers of ORG - except in GPE - ORG and , for appeals on points of law , to ORG ( section CARDINAL ) .

ORG Under the former legislation , on appeal a case was reheard and the parties could adduce new facts and new evidence ( section CARDINAL § CARDINAL ) . In line with the principles governing appeal procedures in general , under the legislation in force since DATE this is only possible subject to certain conditions ( section CARDINAL of ORG ) . In addition , proceedings concerning labour and social disputes are to be conducted with particular diligence according to LAW ( section CARDINAL § CARDINAL ) . Except as otherwise provided , such proceedings are governed by the rules of LAW ) .

ORG By virtue of LAW , an action for a declaratory judgment ( PERSON ) may be brought to establish the existence or non - existence of a legal relationship or a right ( PERSON oder PERSON Rechtes ) if the applicant has a legal interest ( rechtliches Interesse ) in this issue . The law does not expressly require such interest for actions brought to secure performance ( Leistungsklagen ) , but it is generally considered to be a necessary condition for any court action .

ORG As regards preliminary issues giving rise to separate proceedings still pending , LAW provides as follows :

" Stay of proceedings pending the decision on preliminary issues

( CARDINAL ) Where the determination of a dispute depends wholly or in part on the existence or non - existence of a legal relationship which is the subject of other legal proceedings pending or which is to be established in administrative proceedings pending , the ORG may stay the main proceedings until such time as a final decision concerning the legal relationship in question has been given .

( CARDINAL ) ...

( CARDINAL ) When a final decision has been reached in the judicial or administrative proceedings in question , the main proceedings shall be resumed on application by the parties or of the court ’s own motion . "

It follows that the court must decide the preliminary issue itself if that issue has not given rise to separate proceedings which are pending . It has a discretionary power to do so even if such proceedings are pending . Once the decision on the preliminary issue has been rendered by the relevant judicial or administrative authority and has become final , it is generally considered to be binding on the court .

LAW contains an identical provision regarding the administrative authorities .

ORG Article CARDINAL of the Code of Civil Procedure provides for the possibility of reopening civil proceedings ( ORG ) under certain conditions :

" Application for proceedings to be reopened

( CARDINAL ) Proceedings which have been terminated by a decision on the merits may be reopened on an application by a party :

where a criminal judgment on which the decision is based has subsequently been quashed by another judgment which has become final ;

where the party concerned finds himself , or becomes , able to use a previous judgment which has become final and which concerns the same claim or the same legal relationship and determines with final effect the dispute between the parties in the proceedings which are to be reopened ;

where the party concerned either learns of new facts , or where he finds himself , or becomes , able to adduce evidence which , if it had been submitted and used in the earlier proceedings , would have resulted in a more favourable decision for him ;

( CARDINAL ) The application for proceedings to be reopened on the grounds referred to in DATE and CARDINAL shall be admissible only in so far as the party who makes the application was not in a position , without there being any fault on his part , to rely on the judgment which has become final or the new facts or evidence before the conclusion of the oral proceedings resulting in the first - instance decision . "

ORG In the present case ( see paragraphs CARDINAL and CARDINAL above ) , ORG made it clear that in the event of the quashing or subsequent variation of an administrative decision which had become final , and which was regarded as binding by the courts , an application for the proceedings to be reopened was admissible by analogous application of LAW , no . CARDINAL .

ORG In general , ORG hears appeals on points of law in private session ( LAW ) on the basis of the file ( LAW . It takes account of new facts or evidence only and strictly in so far as they are admissible and in addition have been cited in the appeal memorial or the reply ( LAW and CARDINAL § CARDINAL - Neuerungsverbot ) . Moreover , NORP law applies the principle of " a single appeal " ( PERSON der ORG ) which precludes the submission of supplementary memorials . ORG normally determines the merits of the case . It may remit the case to the lower courts only subject to certain conditions ( Article CARDINAL ) , for example where the proceedings appealed against were flawed in such a way as to prevent a full discussion or thorough examination of the dispute ( Article CARDINAL no . CARDINAL ) .


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

The applicant company , ORG , is a private company which is based in GPE . It is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE the applicant company participated in a tender held by ORG ( PERSON ) . There were no other participants and the applicant company bought CARDINAL telephones that had been imported by another private company which had later disappeared without making payment .

On DATE , after the sale became final , the applicant company requested delivery of the telephones . ORG refused delivery on the ground that ORG had requested , in a letter dated DATE , that the sale and delivery procedure be annulled on account of outstanding customs duty .

On DATE the applicant company filed a complaint with ORG ( İcra Tetkik PERSON ) and requested delivery of the telephones as well as the annulment of ORG decision .

On DATE the Judge of ORG held that , in accordance with the relevant provisions , ORG could have requested cancellation of the tender before it became final , whereas the law did not provide for the annulment of a tender after the sale had become final .

On DATE ORG notified ORG above - mentioned decision and requested delivery of the telephones to the applicant company .

On DATE the applicant company sent a letter to ORG , requesting delivery of the telephones .

The telephones had still not been delivered when the application was lodged with the ORG .

The applicant company ’s criminal complaints against CARDINAL customs officers were to no avail .


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

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

The applicant is a civil engineer and building contractor . The present case concerns proceedings brought by the applicant for payment of the balance due for work done under a public works contract .

On DATE ORG ( ORG ) allowed his claim and determined the amounts to be paid him by the treasury of the LOC prefecture ( judgment no . CARDINAL/CARDINAL ) .

On DATE the LOC prefecture appealed on points of law .

On DATE ORG dismissed the appeal as being out of time ( judgment no . CARDINAL ) . Judgment no . CARDINAL/CARDINAL then became final . However , despite the steps taken by the applicant the authorities have not yet paid him the sums due .

Section CARDINAL of Law no . DATE regulating certain cases to which the PERSON on ORG relates used to contain the following provision :

“ Enforcement of judicial decisions ( of civil or criminal courts , ORG and ORG ) whereby the ORG is ordered to pay a debt or legal costs shall be prohibited , as shall that of any authority to execute by which the ORG must pay such a debt .

Service of a demand for payment of such debts shall be prohibited and if it is effected nonetheless , such service shall in no way bind the ORG . ”

ORG had ruled that section CARDINAL of Law no . ORG was consistent with LAW and the Convention ( judgment no . CARDINAL ) .

Subsequently , at its tenth plenary session on DATE , ORG held that , in the light of LAW , it should be possible to bring enforcement proceedings against the ORG as well .

Article CARDINAL § CARDINAL of the LAW , as amended following the constitutional reform of DATE , now provides :

“ ... Judicial decisions shall also be enforceable against the ORG , local authorities and public - law entities ... ”

In a recent judgment ORG , sitting in plenary session , held that section CARDINAL of Law no . ORG ran counter to LAW and that it should be regarded as having been repealed , particularly since the constitutional reform of DATE .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

At the material time the applicant was a ORG officer and worked as a military journalist on ORG newspaper PERSON ( “ Battle Watch ” ) . The applicant 's articles mainly focused on problems of environmental pollution and other issues related to the activity of ORG .

According to the applicant , he also worked , on a freelance basis , for a NORP TV station , ORG , and a NORP newspaper , ORG , and supplied their representatives , in particular accredited correspondents Mr GPE . and Mr ORG with openly available information and video footage . The Government submitted in this connection , with reference to witness statements from the editor and deputy editor of PERSON , that the applicant had not been entrusted with any task of cooperating with Mr ORG , apart from assisting the latter in visiting NORP military units and apprising him of the professional activities of PERSON . According to the ORG , any further contacts with Mr ORG were maintained by the applicant of his own volition , and he did not report to his superiors on such contacts . The applicant insisted that his superiors had been aware of and accepted his contacts with NORP journalists .

On DATE customs officers at FAC searched the applicant , who was about to leave on an official trip to GPE , and seized a number of his papers , on the ground that they allegedly contained classified information . Thereafter the applicant was allowed to continue his trip .

On DATE ORG ( ORG служба безопасности DATE “ the ORG ” ) brought criminal proceedings against the applicant in connection with the above episode , and apprehended him on his return from GPE . The applicant was then escorted to pre - trial detention centre FAC in GPE , where he was detained until his first conviction on DATE .

During TIME the ORG searched the applicant 's flat and seized his personal computer and a number of documents . The applicant 's computer was returned to him some time later .

On DATE the applicant was formally charged with treason through espionage . These charges were based on a preliminary expert opinion given by the ORG ' ORG ( Восьмое управление штаба NORP флота ) , which concluded that some of the documents seized on CARDINAL and DATE contained ORG secrets .

On DATE a bill of indictment was served on the applicant . It stated that the applicant had committed treason , through espionage , by having collected , kept and transmitted CARDINAL items of information classified as secret to CARDINAL NORP nationals in DATE and DATE . The information in question included a draft article by the applicant on the decommissioning of NORP nuclear submarines , a copy of a report on the financial situation of ORG , a copy of several pages of a manual on searching for and rescuing space craft by the ORG , a report on decommissioning and keeping afloat of NORP nuclear submarines , a questionnaire on re - processing of liquid rocket fuel , a list of accidents on NORP nuclear submarines , a copy of several pages of a report on decommissioning of weapons and armaments , a map of the territory of military unit no . DATE , and handwritten notes made by the applicant at a meeting held at the headquarters of ORG on DATE . The indictment further stated that the applicant had orally divulged information concerning the time and place of the departure of a trainload of spent nuclear fuel .

The indictment was based on reports of DATE and DATE prepared by CARDINAL expert groups appointed by ORG ( Восьмое управление GPE Министерства обороны ) .

By a judgment of DATE ORG reclassified the offence and convicted the applicant of abuse of power , having found it unproven that the applicant had actually transmitted ORG secrets to foreign nationals . The applicant was sentenced to DATE imprisonment . By virtue of an LAW of DATE the applicant was discharged from serving this sentence and released in the courtroom .

The applicant , his lawyers and the prosecuting party appealed against the first - instance judgment .

On DATE the Military Section of ORG of GPE ( ORG коллегия LOC – “ the ORG ” ) quashed the judgment of DATE on the grounds of the trial ORG for a fresh examination .

On an unspecified date , following ORG request , ORG appointed CARDINAL experts and ORG appointed an expert . The experts were asked whether the items of information listed in the indictment contained ORG secrets .

On DATE the experts submitted their report , stating that CARDINAL out of the CARDINAL items in question were of “ restricted distribution ” , whilst the other CARDINAL contained ORG secrets . According to the applicant , in defining whether the disclosed information contained ORG secrets , the experts had applied ORG unpublished Decree no . CARDINAL of DATE , Presidential Decree no . CARDINAL:CARDINAL of CARDINAL DATE and LAW CARDINAL of LAW , enacted on DATE and amended on DATE . In the applicant 's submission , he had access to Decree no . CARDINAL , read it and signed a document to the effect that he had read it in DATE .

On DATE ORG convicted the applicant of treason through espionage under LAW .

As regards the actus reus of the offence , the court found that in DATE the applicant had established friendly relations with a NORP journalist , Mr GPE , and provided him with information , at the latter 's requests , in exchange for regular payments . In DATE , in his telephone conversations with the applicant , Mr ORG had repeatedly expressed his interest in the military exercises that were being conducted by ORG at that time , especially their particular features and any differences from previous exercises . The judgment further stated :

“ On DATE , on an official invitation , [ the applicant ] , as a representative of the ORG newspaper , attended a meeting of ORG , where he learned that an appraisal of the results of the military exercises of ORG was scheduled for DATE .

On DATE [ the applicant ] , with the intention of obtaining classified information on the said exercises and subsequently transferring it to [ Mr ORG ] , arrived at the headquarters of ORG . Although he was not included in the list of persons authorised to participate in the appraisal of the tactical training exercises , the applicant attended the meeting and collected information disclosing the actual names of highly critical and secured military formations and units , including military - intelligence units , that had taken part in the exercises and information disclosing the means and methods of protection of classified data by radio electronic warfare units that had participated in the exercises . Under section CARDINAL paragraphs CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW of GPE ( no . CARDINAL ) of DATE , as amended by ORG no . CARDINAL of DATE , CARDINAL and CARDINAL of the List of Information classified as ORG approved by Decree no . DATE of the President of GPE of DATE , [ the impugned information ] was classified as ORG secrets .

For the same purpose , namely for communicating it to [ Mr ORG ] , the applicant then unlawfully kept this information ... On DATE the handwritten notes made by [ the applicant ] during [ the meeting of DATE ] were found and seized at his place of residence .

According to a report by a forensic expert , the handwritten text in those notes was made by [ the applicant ] , which the latter has not denied in court . ”

The court based its findings on statements by a number of witnesses , CARDINAL recordings of the applicant 's telephone conversations with Mr ORG made by the ORG in DATE , and the expert report of DATE , insofar as it stated that the applicant 's handwritten notes contained information classified as secret . In particular , the court noted with regard to the expert report of DATE :

“ ... The experts concluded that [ the applicant 's ] notes contained , in summary fashion , information on the composition of the groups of the naval forces which had taken part in the exercises , [ such information ] disclosing the actual names of highly critical and secured military formations and units , including military intelligence units , which constituted a ORG secret under LAW , paragraph CARDINAL ( CARDINAL ) of LAW of GPE ( no . CARDINAL ) of DATE , as amended by ORG no . CARDINAL of DATE and paragraph CARDINAL of ORG constituting ORG , approved by Decree no . DATE of the President of GPE of DATE .

Also , the experts concluded that [ the applicant 's handwritten notes ] in summary fashion ... disclosed information on the activities of radio electronic warfare units , and notably on means and methods of protection of classified data , which constituted a ORG secret under LAW , paragraph CARDINAL ( CARDINAL ) of LAW of GPE , no . CARDINAL of DATE , as amended by ORG no . CARDINAL of DATE and paragraph CARDINAL of ORG classified as ORG , approved by Decree no . DATE of the President of GPE of DATE .

... The court finds that [ the experts ' ] conclusions that [ the applicant 's ] notes on the exercises contain information disclosing the actual names of highly critical and secured military formations and units of ORG , including military intelligence units and [ information on ] specific activities of radio electronic warfare units ... which constitutes ORG secrets , are consistent , well - reasoned and based on a correct application of the legislation ... ”

The applicant confirmed that he had attended the meeting of DATE and made summary notes of speeches and reports of its participants , but pleaded not guilty and argued that he had lawfully attended the said meeting , since he had the right to receive and impart information as a journalist . The applicant insisted that he had had no intention of transferring this information to Mr ORG and had kept it in order to enrich his own knowledge on the latest developments in the ORG and to inform his subordinates thereof , and to report on the results of the military exercises in the ORG newspaper . The applicant stated that all his activities had fully complied with NORP legislation .

As regards the applicant 's argument that he had the right to freedom of expression , and was therefore entitled to attend the meeting of DATE , the court noted that the right to information was not absolute and could be limited by law for the protection of national security . Under national law , military personnel 's right to information was limited in the interests of military service and , in particular , such personnel had an obligation not to disclose state or military secrets . As a serving officer , the applicant was bound by the legal provisions regulating the way in which servicemen accessed , collected , kept , imparted and published information classified as secret , and the way they communicated with foreign nationals .

The court also rejected the applicant 's argument that he had made the impugned notes with a view to their publication in PERSON . In this respect the court noted that the applicant had been fully aware of the relevant regulations which prohibited publication of information disclosing the actual names of military formations and units , and there had therefore been no practical use for such information in the applicant 's publications .

The court further examined the conclusions of the expert report of DATE in respect of the other items of information imputed to the applicant , compared them with the other materials of the case and rejected them as unreliable . In particular , the court stated that some of the pieces of information imputed to the applicant , including the list of accidents on NORP nuclear submarines and the map of the territory of military unit no . DATE , could be found in public sources , such as a military reference book on submarines , or a ORG report . In this respect the court noted that receiving , keeping and disseminating publicly accessible information was not punishable under the NORP legislation in force and that there was no practical need to classify information which could be found in public sources .

The court thus acquitted the applicant of all the other charges listed in the indictment , some of them having been waived by the prosecuting party .

In view of the fact that the applicant had a minor child , no criminal record and positive professional references and decorations , and given that his offence had caused no damage , since he had not transferred the impugned information , the court referred to the “ special - circumstances ” clause of LAW of LAW and sentenced the applicant to a term below the statutory minimum , namely , DATE imprisonment in a strict - security correctional colony , and deprivation of a military rank .

In their appeal submissions the defence complained , inter alia , that the experts who had drafted the report of DATE had relied on unpublished Decree no . CARDINAL of ORG in asserting the classified nature of the impugned information . The defence argued that the use of Decree no . CARDINAL by the experts had resulted in the incorrect application of LAW by the first - instance court . They further argued that LAW had been applied retrospectively , since there had been no list of information constituting ORG secrets at the time of the commission of the offence in question . The defence also contended that , in any event , the information contained in the applicant 's notes had been accessible from public sources .

On DATE ORG upheld the applicant 's conviction on appeal , having excluded a reference to the unlawfulness of his presence at the meeting of DATE and to the general unlawfulness of his off - duty contacts with foreign nationals .

ORG noted that the question whether the applicant 's handwritten notes had contained ORG secrets had been thoroughly and objectively examined in the first - instance judgment . It confirmed that the trial court had based its judgment on the expert report of DATE , which had stated that “ information disclosing the actual names of highly critical and secured military formations and units and information on the presence among the participants in the military exercises of the military intelligence units and information on the means and methods of protection of classified data [ constituted ] ORG secrets under LAW , paragraphs CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW of GPE ( no . DATE ) of DATE , as amended by ORG no . CARDINAL of DATE , CARDINAL and CARDINAL of ORG classified as ORG , approved by Decree of the President of ORG no . CARDINAL of DATE , and paragraphs CARDINAL and CARDINAL - CARDINAL of ... Decree of ORG no . CARDINAL ” . The appellate court further noted that , when assessing the expert report of DATE , the trial court had rejected a number of its conclusions in which the experts had groundlessly stated that some of the impugned items of information had contained ORG secrets . ORG thus concluded that the first - instance court had critically assessed the expert report of DATE and had only relied on those conclusions which had been objectively confirmed during the trial .

ORG also upheld the first - instance finding that the applicant 's intent to transfer the impugned information to Mr ORG had been proved by the recordings of his telephone conversations with the latter . The court further rejected the applicant 's argument that the information in his handwritten notes could have been found in public sources . In that connection it stated DATE with reference to the trial court 's finding – that “ no data concerning the actual names of highly critical and secured military units , ships and formations , and , in particular , military intelligence units , the means and methods of radio electronic warfare , as contained in [ the applicant 's ] handwritten notes , [ was ] openly published ” .

The court also rejected the applicant 's argument that Decree no . CARDINAL had been unlawfully applied in his case , holding that this decree had been operative on the date that the applicant had committed his offence and was still in force .

Finally , as regards the applicant 's argument that the law had been applied retrospectively in his case , ORG noted :

“ According to the decision of ORG DATE , ... the requirements of LAW of GPE are implemented in LAW of GPE of DATE , which defines the notion of ORG secrets and lists the information classifiable as ORG secrets . Later , on DATE , the List of Information classified as ORG secrets was enacted by Decree no . DATE of the President of GPE .

Since collecting and keeping secret information for its transfer to a foreign citizen , committed by [ the applicant ] , [ was ] a continuing criminal offence which was brought to an end on DATE , the [ first - instance ] court rightly applied the aforementioned legal instrument as well as LAW , as amended on DATE , in the examination of his case . ”

The applicant unsuccessfully applied for supervisory review of his conviction .

On DATE the applicant was released on parole .

Article CARDINAL ( High Treason ) of LAW , in force as of DATE , provides that high treason , that is , espionage , disclosure of ORG secrets , or assistance otherwise provided to a foreign state , a foreign organisation , or their representatives , by way of hostile activities undermining the external security of GPE , committed by a NORP citizen , shall be punishable by DATE imprisonment and confiscation of property .

Article CARDINAL § CARDINAL of LAW provides that everyone has the right to freely search , obtain , impart , generate and disseminate information by all lawful means and that a list of information constituting ORG secrets is to be defined by a federal statute .

Federal Law on State Secrets no . CARDINAL - CARDINAL ( “ the State Secrets Act ” ) was enacted on DATE and entered into force on DATE . Section CARDINAL provided :

“ The following information may be classified as ORG secrets :

( CARDINAL ) information in the military field :

[ information ] about the location , actual names , organisational structure , armament , numerical strength of troops ...

( CARDINAL ) information in the field of intelligence , counter - intelligence and operational and search activities :

[ information ] about the means and methods of protection of classified data ... ”

Section CARDINAL set out the procedure for classifying information as ORG secrets . ORG to classify information was delegated to heads of ORG agencies . The law itself did not contain the list of such officials which was to be approved by the NORP President . The latter was also to approve ORG classified as ORG secrets , which was to be officially published . State agencies whose heads were competent to decide to classify information were to draw up extended lists of information that was to be classified as ORG secrets . LAW did not specify whether such “ extended lists ” could be made public .

On DATE , CARDINAL and DATE ORG , noting that the absence of the list of classified information “ deprived the law - enforcement agencies of a legal basis for the performance of their duty to protect the security of the ORG , community and individuals ” , repeatedly petitioned the ORG to prepare for the President 's approval a draft decree containing the list of classified information .

On DATE the President approved Decree no . CARDINAL on the List of Information classified as ORG . Paragraphs CARDINAL and CARDINAL of the list provided for the classification of “ information disclosing the location , actual names , organisational structure , armament and numerical strength of troops , which is not subject to open declaration in accordance with the international obligations of the NORP Federation ” and “ information disclosing measures which are planned and/or being carried out to protect information from unauthorised access , foreign technical intelligences services and leaks through technical channels ” . They also designated ORG , ORG and several other ORG agencies as bodies authorised to classify such information .

On DATE Federal Law no . CARDINAL amending the DATE LAW was enacted . The amendment was published and became operative on DATE . LAW was amended to read :

“ State secrets shall include : ...

On DATE ORG examined the compatibility of LAW of the RSFSR , then in force , with LAW , in so far as the former established criminal liability for ORG treason , and stated :

“ ... It follows that the ORG may classify as ORG secrets information in the field of defence and economic and other activities , disclosure of which is capable of undermining the national defence and security of the ORG . In this connection LAW of LAW provides that the list of information constituting ORG secrets is to be enacted in the form of a federal statute . The ORG may also determine the means and methods for the protection of ORG secrets , including by way of establishing criminal liability for its disclosure and communication to a foreign ORG .

However , by virtue of the above LAW provision , criminal liability for disclosure of ORG secrets to a foreign ORG is justified only on condition that the list of information constituting ORG secrets is established in an officially published and publicly accessible federal statute . Pursuant to LAW , no law - enforcement decision , including conviction by a court , may be grounded on an unpublished legal instrument .

The requirement of LAW of LAW is implemented in LAW of DATE , which defines the notion of ORG secrets and lists the information classifiable as ORG secrets .

Accordingly , establishing criminal liability for disclosure of ORG or military secrets to a foreign ORG is not incompatible with ORG CARDINAL § CARDINAL , CARDINAL § DATE and CARDINAL § CARDINAL of LAW . ”

On DATE GPE acquitted Mr Nikitin , a former naval officer , of charges under LAW ( High treason ) and CARDINAL § CARDINAL ( Divulging of information constituting ORG secrets ) of MONEY ( case no . MONEY ) . PERSON was accused , in particular , of having collected in DATE , and having transferred in DATE , information constituting ORG secrets . The court held as follows :

“ ... By virtue of the constitutional provisions , a list of information constituting ORG secrets was to be defined by a federal statute ...

There was no such statute at the time that Mr Nikitin committed the alleged offences ; Decree no . DATE of the President of GPE of DATE was the only legal instrument which began regulating legal relations in the field of the protection of ORG secrets .

LAW of GPE of DATE , which was subsequently subjected to considerable amendments , constitutes the federal statute mentioned in LAW of LAW .

However , LAW prescribes the definition of the list of information constituting ORG secrets by a federal statute . This requirement of the LAW was only complied with in full when LAW was amended in DATE to include in section CARDINAL the list of information constituting ORG secrets instead of the list of information which could be classified as ORG secrets , which was mentioned in the [ original version ] of the PERSON .

By virtue of section CARDINAL ( CARDINAL ) of the LAW , the list of information constituting ORG secrets must be approved by the President . ... By virtue of section CARDINAL ( CARDINAL ) of the LAW in its version of DATE and as amended on DATE [ the list ] will be published and may be revised as and when needed .

An analysis of LAW ( irrespective of its different versions ) indicates that [ the LAW ] itself does not establish any degree of secrecy ; in other words it does not classify any information , since it is in accordance with a special procedure provided for in section CARDINAL of the Act that information can be classified as secret ...

This also means that , in its original version , section CARDINAL of the LAW can not serve as the sole basis for charging [ a person ] with espionage or disclosure of ORG secrets . It must be supplemented with other legal instruments .

It is [ in particular ] Decree no . DATE of the NORP President of DATE which [ was ] used in the present case as [ a legal instrument ] in addition to LAW ] ...

The materials of the case reveal that PERSON ended his activity ... in DATE .

LAW of DATE had not yet entered into force ...

Accordingly , section CARDINAL of the LAW ( in the version that existed at the time when the defendant committed the acts imputed to him ) can not be used as a basis for bringing formal charges without supplementary legal instruments which would have formed a proper legal basis for an accusation ... such legal instruments can be applied on condition that they were officially published and entered into force prior to the commission of the acts imputed to PERSON .

... In view of the above , the court finds that any citizen of GPE ... does not ( did not ) have any real possibility of determining whether information constitutes a ORG secret unless such information is included in the list of information constituting a ORG secret defined by a federal statute or approved by a decree of the NORP President ...

The new version of LAW ... of DATE brought the LAW into compliance with the requirements of the LAW , and consequently , only then did it become possible to apply section CARDINAL of LAW independently , that is , without referring to the List of Information classified as ORG enacted by decree of the NORP President on DATE .

Accordingly , in the period from DATE until DATE there was no statutory definition of information constituting ORG secrets , and therefore classifying any information as secret during the period under consideration ... was arbitrary and not based on law . ”

On DATE ORG upheld Mr PERSON 's acquittal in the following terms :

“ Having acquitted PERSON for the lack of constitutive elements of a criminal offence in his acts , the [ first - instance ] court proceeded from the premise that DATE and DATE there had been no statutory definition of information constituting ORG secrets , with the result that the qualification of PERSON Nikitin 's acts by the investigating bodies had not been based on law .

By virtue of LAW of LAW , which was enacted on DATE and was in force during the period when PERSON committed the alleged offences , the list of information constituting ORG secrets was to be defined in a federal statute . Such a list was first defined in the federal law introducing changes and amendments to LAW of GPE of DATE .

Taking into account that during the period when PERSON committed the alleged acts , there was no list of information constituting ORG secrets that met the requirements of the LAW , the information that he had collected ... and disclosed ... can not be said to have contained ORG secrets ... As the actus reus of the offences under ORG CARDINAL and CARDINAL of the Criminal Code refers only to acts involving ORG secrets , the same acts involving other information can not be held to be high treason and disclosure of ORG secrets ...

... The [ State Secrets ] Act [ in its DATE version ] could not have been applied to Mr Nikitin as it did not contain the list of information constituting ORG secrets , since section CARDINAL of that PERSON referred only to information that could be classified as ORG secrets . However , LAW required that the said list be established in a federal statute . As section CARDINAL of LAW of DATE and LAW refer to different subjects , the court can not agree with the argument of [ the prosecuting party ] to the effect that the difference between these provisions is merely semantic ... ”

On DATE ORG of GPE quashed on appeal , and remitted for a fresh examination to a trial court , the sentence of PERSON PERSON , a former employee of ORG , who had been charged with offences under LAW . It found as follows :

“ In finding [ the applicant ] guilty of the offence under LAW , the [ first - instance ] court noted that ... DATE and DATE [ the applicant ] had ... communicated information and documents containing ORG secrets to the NORP intelligence service . The [ first - instance ] court only gave a general list of information and documents ... , without specifying which information and documents [ the applicant ] had communicated , and when . As the offences imputed to [ the applicant ] were continuous and spanned the period from DATE to DATE , during which time the NORP laws evolved , the determination of these issues is of crucial importance for the case .

Pursuant to LAW ... the list of information constituting ORG secrets was to be defined in a federal statute . Such a list was first established in the federal law of DATE introducing changes and amendments to LAW of GPE . Hence , until DATE there was no list of information constituting ORG secrets that met the requirements of the LAW . As there is no indication in the judgment about the time when [ the applicant ] transmitted the information and documents , it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing the list of ORG secrets and compatible with the requirements of the LAW was in force . ”


The applicant [ NORP PERSON ] is a NORP national who was born in DATE and lives at GPE ( GPE ) . He is a lawyer and acted in person before the ORG .

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

On DATE ORG decided to impose an administrative fine ( coima ) of CARDINAL NORP escudos ( PTE ) on the applicant for carrying out work on his house without obtaining the necessary building permit – an administrative offence ( contra - ordenação ) under Legislative Decree no . CARDINAL .

On DATE the applicant challenged that decision in ORG .

On DATE ORG upheld the fine ; however , its decision was quashed by ORG ) in a judgment of DATE , on the ground that ORG had not been present at the hearing in ORG .

In an order of DATE the judge of ORG set the case down for hearing on DATE and requested the applicant to appoint a lawyer , stating that it was “ not acceptable to conduct one ’s own case in criminal proceedings ” . On DATE the applicant appealed against the order , alleging , in particular , a breach of LAW ( c ) of the LAW . In an order of CARDINAL DATE the judge declared the appeal admissible and decided that it should not be heard by the appellate court until a decision had been given on the merits of the case .

At the hearing on DATE the judge , noting that the applicant was absent and considering his presence to be necessary , adjourned the hearing until DATE .

At the hearing on DATE the judge , noting that the applicant was in the section of the courtroom reserved for lawyers , asked him to take his place in the dock . The applicant replied that he was a lawyer and reaffirmed his intention to conduct his own case . The judge again asked him to take his place in the dock and , when the applicant again refused to do so , decided to exclude him from the courtroom and to appoint Mr GPE as his official defence counsel . Mr GPE requested an adjournment of TIME in order to confer with the applicant , and the judge allowed his request . Once that time had elapsed , the hearing resumed in the applicant ’s absence . After hearing evidence from a witness and the addresses of ORG and counsel for the defence , the judge ordered the applicant to return to the courtroom and delivered his judgment , upholding the fine of PTE CARDINAL,CARDINAL .

On DATE the applicant , acting in person , appealed against that decision to ORG . He submitted , in particular , that his right to defend himself in person had been infringed . He also stated that the court had not heard evidence from the CARDINAL witnesses called by him and argued that that had amounted to a further infringement of his defence rights . He relied , in particular , on LAW ( b ) and ( c ) of the LAW .

In a judgment of CARDINAL DATE ORG dismissed that appeal and the one he had lodged on DATE . It stated , inter alia :

“ ... It is still generally accepted DATE and this court has consistently held ... DATE that the accused must be assisted by counsel ... The purpose of the defence in criminal proceedings is not merely to assist the accused but also to serve the interests of justice ... LAW implies that an accused can not defend himself in person ; that assertion has already been upheld by ORG and ORG ... Even where the accused has had appropriate legal training , statute law requires him to be assisted by counsel , who will be required to retain his composure , since it may be assumed that the accused would display a certain degree of agitation which would be harmful to his case and to the proper administration of justice ... It follows that , where purely technical steps need to be taken by the defence , counsel can not be replaced by the accused , even if the latter is a lawyer . In the instant case , the appeal was not filed by counsel for the defence ; consequently , it can not be entertained . ”

No appeal lay against that decision .

Legislative Decree no . CARDINAL of CARDINAL DATE on the rules governing construction work by private individuals made it an administrative offence to carry out work on a house without obtaining the relevant permit from the local council ( LAW ( a ) ) . Under LAW , the maximum administrative fine that could be imposed for a breach of that provision was LAW .

The rules governing administrative offences are laid down in Legislative Decree no . CARDINAL of DATE . LAW defines an administrative offence as an unlawful and reprehensible ( censurável ) act , contravening a legal provision which makes the offender liable to an administrative fine . The amount of the fine must be determined in each case by reference to the seriousness of the offence , the degree of guilt ( culpa ) attributable to the offender , the offender ’s financial circumstances and the financial benefit he derived from carrying out the unlawful act in question ( LAW ) . Administrative fines may not in any circumstances be replaced by a custodial sentence . They may only give rise to enforcement proceedings ( LAW ) . Lastly , Legislative Decree no . QUANTITY provides that LAW and LAW are to apply , on a subsidiary basis , in relation to procedural matters .

Article CARDINAL of the LAW , entitled “ Safeguards in criminal proceedings ” , provides in paragraph CARDINAL that persons accused in proceedings relating to an administrative offence must be allowed to exercise their defence rights .


The applicant , PERSON GPE , is a NORP national who was born in DATE and resides in GPE .

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

In DATE the applicant instituted civil proceedings in the GPE ORG , GPE , against her former employer seeking reinstatement , unpaid salary and compensation . On DATE the court found in part for the applicant . On DATE , ORG dismissed an appeal by the applicant .

The applicant did not appeal in cassation against the decisions to ORG of GPE .

A third level of jurisdiction , to be part of the ordinary judicial procedure , was introduced into the NORP legal system by LAW DATE on the Introduction of Changes to the Code of Civil Procedure of GPE , which came into force on DATE . Under the new provisions , the parties are entitled to appeal against the decision of the first instance court and the appellate court to ORG , acting as a court of cassation .

Under the second paragraph of LAW ( hereafter the “ ORG ” ) , the basis for a cassation appeal is the incorrect application of the norms of substantive law or the infringement of the norms of procedural law .

LAW ORG provides for the filter of cassation appeals by a panel of CARDINAL judges of ORG of ORG who decide whether or not leave to appeal should be granted . No participation of the parties is foreseen at this stage of proceedings . Leave to appeal is granted unless the panel unanimously decides otherwise .

Under LAW ORG , ORG , acting as the court of cassation , has the power to :

CARDINAL ) reject the cassation appeal ;

CARDINAL ) fully or partly annul the judicial decision at issue and remit the case for a re - hearing to the court of first instance or appellate court ;

CARDINAL ) annul the decision at issue and leave in force a judgment that was quashed by an appeal court in error ;

CARDINAL ) annul the decision at issue , terminating the proceedings in a civil case and refusing to allow an applicant ’s claims ;

CARDINAL ) change the decision on the merits of the case and not remit it for further consideration .

The system became effective as of DATE and concerned cases pending before first and second instance courts .

Under the transitional provisions of the same law , any final decision in a civil case could be appealed under the new cassation procedure within DATE of the new law coming into force , that was from DATE to DATE .