Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection allowed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

The applicants , ORG and PERSON , were born in DATE and DATE respectively and live in LOC .

On DATE , at a disputed time between TIME and TIME , the applicants’ son , PERSON , aged DATE , sought medical aid in the Slovenj Gradec ORG because of , inter alia , nausea and itching skin . He was examined by a doctor on duty , GPE On the basis of a diagnosis of urticaria ( a type of allergic reaction ) , PERSON ordered the administration of intravenous injections of a drug containing glucocorticosteroid ( PERSON ) and an antihistaminic ( PERSON ) . Further to the administration of injections , the applicants’ son ’s condition significantly deteriorated . This was probably a result of him being allergic to CARDINAL or both of the drugs that had been administered to him . His skin became very pale , he began to tremble and to feel cold ; PERSON noticed signs of tachycardia . A diagnosis of anaphylactic shock was made . Subsequently , at TIME , he was transferred to intensive care . ORG ordered the administration of , inter alia , adrenaline . By the time the cardiologist arrived , the applicants’ son had stopped breathing and had no pulse . Cardiopulmonary resuscitation was given . At an undetermined time TIME the applicants’ son was connected to a respirator and his blood pressure and pulse returned to normal , but he remained in a coma ; his brain was severely damaged .

On DATE he was transferred to ORG ( ORG center v PERSON ) , where he died on CARDINAL DATE .

The exact timing of the events which led to the death of the ORG son and the action taken by ORG in response to the applicants’ son ’s deteriorating condition were disputed in the domestic proceedings .

On CARDINAL DATE the applicants lodged a criminal complaint ( ovadba ) with ORG of ORG ( PERSON javno tožilstvo GPE , Enota v Slovenj Gradcu ) against ORG for the criminal offence of “ negligent medical treatment ” ( nevestno zdravljenje ) which , following the applicants’ son ’s death , was characterized as “ a serious criminal offence that [ had ] caused damage to health ” ( hudo kaznivo dejanje zoper človekovo zdravje ) . The applicants argued that ORG had given their son the wrong treatment and had failed to take appropriate measures after his condition deteriorated .

In the course of the preliminary proceedings ( predkazenski postopek ) , medical documents concerning the treatment of the ORG son were seized by the police and ORG ( Inštitut za sodno medicino v PERSON ) was appointed to prepare a forensic report .

On DATE ORG dismissed the applicants’ criminal complaint on the ground of insufficient evidence .

On DATE the applicants , acting as subsidiary prosecutors ( subsidiarni tožilec ) , lodged a request for the opening of a criminal investigation ( zahteva za preiskavo ) against ORG

On DATE the investigating judge of ORG ( PERSON sodišče v Mariboru ) granted their request . On DATE , upon an appeal by ORG ( pritožba ) , the interlocutory - proceedings panel ( zunaj obravnavni senat ) of ORG overturned the investigating judge ’s decision finding that the evidence in the case - file , in particular the forensic report , did not afford reasonable grounds for suspecting that ORG had manifestly acted in breach of professional standards .

NORP The applicants’ appeal ( pritožba ) and a request for the protection of legality ( zahteva za varstvo zakonitosti ) were dismissed . The latter was dismissed on DATE by the Slovenj Gradec ORG ( Okrožno sodišče v PERSON ) , which obtained jurisdiction in the case after the reorganization of the judiciary in DATE .

Subsequently , the applicants obtained a medical opinion from Doctor T.V. who stated , inter alia , that myocarditis ( inflammation of the heart muscle ) , which had previously been considered to be a contributory factor in the death of the applicants’ son , could have occurred when he was in anaphylactic shock or even later . As a result , on DATE they lodged a request to reopen a criminal investigation ( see paragraph DATE ) . In addition , they lodged a motion to change the venue of the proceedings to ORG ( Okrožno sodišče v Mariboru ) . On DATE ORG granted their motion for a change of venue .

On DATE the interlocutory - proceedings panel of ORG granted the ORG request for an investigation . An appeal by ORG was rejected by ORG on DATE and the investigation was subsequently opened .

In the course of the investigation , the investigating judge examined witnesses and obtained an opinion from ORG , an expert at ORG in GPE ( GPE ) . ORG stated in his report that the administration of antihistaminic had led to the applicants’ son ’s serious allergic reaction . He expressed doubts as to the pre - existence of myocarditis .

On DATE the investigating judge closed the investigation .

Owing to the complexity of the case , the applicants asked ORG to take over the prosecution . Their request was rejected on DATE .

On DATE the applicants lodged an indictment against ORG for the criminal offence of “ causing death by negligence ” ( povzročitev smrti iz malomarnosti ) .

On DATE , upon ORG ’s objection to the indictment , the interlocutory - proceedings panel of ORG directed the applicants to request additional investigative measures .

The investigating judge subsequently examined several witnesses and ordered that a forensic report be prepared by ORG , an NORP forensic expert in the field of emergency medicine and anaesthesia . ORG stated in his report that the ultimate reason for the death of the applicants’ son was rather uncertain . He therefore considered the issue of the effectiveness of the measures taken by ORG in response to the applicants’ son ’s condition as being of no importance .

On DATE the investigating judge informed the applicants that the investigation had been closed .

On DATE the applicants lodged an indictment supplemented by evidence that had been gathered in the extended investigation . On DATE an interlocutory - proceedings panel rejected ORG ’s objection against the initial indictment ( see paragraph CARDINAL above ) as unfounded .

On DATE ORG lodged a request for the protection of legality , claiming that the indictment as submitted on DATE had not been served on her . On DATE ORG annulled ORG decision of CARDINAL DATE and remitted the case to ORG with instructions to serve the initial indictment on ORG subsequently lodged an objection and on DATE the interlocutory - proceedings panel decided to refer the case back to the applicants , directing them to gather more evidence by requesting additional investigative measures .

The applicants complied with the directions and requested additional investigative measures . As a result , the investigating judge ordered a supplementary report from GPE , a reconstruction of the events of CARDINAL DATE and the examination of witnesses .

The investigation was closed on DATE .

In the meantime , on DATE the applicants again unsuccessfully requested ORG to take over the prosecution .

On DATE the applicants filed a further indictment and the additional evidence they had been directed to obtain .

In DATE the applicants complained to ORG ( GPE svet ) about the length of the criminal proceedings . They also challenged the CARDINAL judges sitting in the interlocutory - proceedings panel which had previously decided on ORG ’s objection to the indictment . On DATE the President of ORG rejected the ORG request for the judges to stand down .

Following a further objection to the indictment by ORG , the interlocutory - proceedings panel examined the case on DATE and decided to discontinue the criminal proceedings . Relying in particular on the opinions of ORG and GPE , it found that the ORG son ’s reaction to the administration of PERSON and/or PERSON was a consequence of his sensitivity to those drugs and of myocarditis , which was undoubtedly a pre - existing condition . The court found that there was insufficient evidence to substantiate the applicants’ accusation that PERSON had committed the alleged criminal offence . The applicants were also ordered to pay court fees and expenses incurred in the proceedings .

On DATE the applicants lodged an appeal , which ORG dismissed on DATE . The applicants then petitioned ORG to lodge a request for the protection of legality with ORG . Their petition was rejected on DATE .

In the meantime , on DATE the applicants lodged a constitutional appeal with ORG ( PERSON sodišče ) , complaining about the unfairness and length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory - proceedings panel . On DATE ORG dismissed their appeal on the ground that a subsidiary prosecutor did not have locus standi before ORG .

On DATE the applicants also lodged a criminal complaint against CARDINAL judges of LOC and ORG who had sat in their case . The criminal complaint , in which the applicants alleged that the judges had improperly dealt with their case , was dismissed as unfounded by ORG on DATE .

Subsequently , the applicants made several attempts to re - open the case . Ultimately , on DATE , they lodged a new indictment against ORG On DATE the Slovenj Gradec ORG struck the indictment out because the prosecution of the alleged offence had become time - barred on CARDINAL DATE .

On DATE the applicants instituted civil proceedings against ORG and ORG in LOC for the non - pecuniary damage they had sustained as a result of their son ’s death in the amount of CARDINAL NORP tolars ( SIT ) .

On DATE the applicants also instituted proceedings against the head of the internal medical care unit , GPE , and the director of ORG , D.P. Further to a request by the applicants , the court joined the CARDINAL sets of proceedings .

All the defendants in the proceedings had lodged their written pleadings by DATE .

On DATE , in a supervisory appeal ( nadzorstvena pritožba ) to the President of the Slovenj ORG , the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed .

On DATE the court , referring to sub - paragraph CARDINAL of section CARDINAL of LAW ( see paragraph CARDINAL below ) , stayed the civil proceedings pending the final decision in the criminal proceedings . It noted that the decision in the civil proceedings depended to a large extent on the determination of the preliminary question ( predhodno vprašanje ) , namely the outcome of the criminal proceedings . The applicants did not appeal against that decision , which therefore became final on DATE .

NORP On DATE Judge PERSON replied to the applicants’ supervisory appeal of DATE , stating , inter alia :

“ [ The applicants ] are subsidiary prosecutors in the criminal proceedings and therefore know very well that the proceedings before ORG , where the preliminary question is being determined , have not been completed . Their supervisory appeal concerning the stay of the [ civil ] proceedings is therefore pure hypocrisy . ”

Upon a complaint by the applicants lodged with ORG , Judge PERSON was ordered to explain her reply to the applicants .

In DATE the applicants again filed a supervisory appeal ; the stay , however , remained in force .

On DATE Judge PERSON , to whom the case appears to have been assigned in the meantime , sent the applicants a letter , in which he stated , inter alia :

“ In the instant case the determination of criminal liability is a preliminary question which is relevant for the determination of the civil claim , since a civil court can not establish facts which are different from those established by the criminal court ”

On DATE the applicants filed a motion for a change of venue , which ORG rejected on DATE .

On DATE the ORG informed the applicants that the reasons for staying the proceedings still obtained .

On DATE the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted . On DATE Judge PERSON scheduled a hearing for DATE . However , the scheduled hearing was subsequently cancelled at the ORG request .

On DATE the applicants filed a further motion for a change of venue . On DATE ORG decided to move the venue to ORG on the ground that there existed “ tension which was impeding and delaying the trial . ”

The case was subsequently assigned to Judge M.T.Z. On DATE the court held a hearing .

After lodging criminal complaints against some of the judges ( see paragraph CARDINAL above ) , the applicants filed a motion on DATE for all the judges at ORG and ORG to stand down . Having been asked to comment on the ORG request , Judge PERSON stated , inter alia , that she had realised at the hearing on DATE that CARDINAL of the defendants , with whom she had shaken hands at the hearing , was a close acquaintance ( “ dobra znanca ” ) of her father . She added that the applicants were constantly lodging objections which made it impossible to conduct the proceedings . It would appear that Judge PERSON subsequently herself requested permission to withdraw from the case . On CARDINAL DATE the request for the judges to stand down was granted as far as it concerned Judge PERSON The case was assigned to Judge GPE

DATE . On DATE and DATE ORG rejected the ORG motions for a change of venue .

A hearing scheduled for DATE was adjourned at the ORG request , after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in ORG . Afterwards , they informed the court that their lawyer would continue to represent them .

On DATE ORG held a hearing .

On DATE the applicants filed a motion for Judge PERSON to stand down . The request was rejected on DATE .

A hearing scheduled for DATE was adjourned because the applicants had lodged a motion for a change of venue . On DATE the applicants lodged another motion . Both motions were rejected by ORG ( on DATE and CARDINAL DATE respectively ) .

It appears that the hearings scheduled for CARDINAL and DATE were adjourned due to the ORG newly appointed lawyer ’s commitments in another unrelated case .

On DATE the applicants filed written submissions and amended their claim for damages . They also requested that the proceedings be expedited .

Hearings were held on DATE , DATE and DATE before Judge PERSON , to whom the case had apparently meanwhile been assigned . The applicants withdrew their claims in respect of GPE and D.P. After the hearing , they requested Judge PERSON to stand down . Their request was rejected by the President of ORG on DATE . However , on DATE , Judge PERSON herself asked to withdraw from the proceedings , on the ground that her full name had been mentioned in a newspaper article on DATE which also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings . The President of the court upheld her request as being “ certainly well - founded ” .

The case was subsequently assigned to Judge PERSON

Hearings were held on DATE and DATE .

On DATE ORG delivered a judgment in which it rejected the applicants’ claim , which ultimately amounted to SIT CARDINAL in respect of non - pecuniary damage and SIT CARDINAL in respect of pecuniary damage . The applicants were ordered to pay legal costs to the defendants . Relying on the expert opinions , the court concluded that ORG could not have foreseen the applicants’ son ’s reaction to drugs administrated to him and that she and the hospital staff had acted in accordance with the required standard of care . In addition , the court rejected as unsubstantiated the applicants’ claim that the hospital was not sufficiently equipped .

On DATE the applicants lodged an appeal with ORG . The proceedings are still pending .

On DATE ORG lodged a bill of indictment ( obtožni predlog ) against the first applicant . She was accused of insulting behaviour by allegedly saying to an official at ORG “ I have had enough of this f * * court , the damn State does not do anything , is it not aware that our son was killed ” . The prosecution was based on a criminal complaint filed by ORG .

On DATE the ORG withdrew the criminal complaint as a result of the ORG ’s intervention ( see paragraph CARDINAL below ) . ORG subsequently dismissed the bill of indictment .

The applicants lodged several petitions with the ORG ’s office concerning the conduct of the civil proceedings . Their case was reported in the ORG ’s DATE Reports of DATE , DATE and DATE .

In a letter sent to the President of the Slovenj Gradec ORG on DATE , the Deputy ORG stressed that the issue of criminal liability could not be regarded as a preliminary question ( predhodno vprašanje ) in the civil proceedings instituted against the doctor and the hospital . He further stated that there was no justification for staying the proceedings .

In a letter to the applicants of CARDINAL DATE and his Annual Report of DATE ( pp . CARDINAL and CARDINAL ) , the ORG criticised the conduct of Judge PERSON The Ombudsman stressed that the judge had expressed concerns about her impartiality ( see paragraph CARDINAL above ) only after the applicants had filed the request for her to stand down and after the ORG ’s intervention in the case , although she had been aware of the reasons for the concerns beforehand .

The section of the Ombudsman ’s Report of DATE ( pp . CARDINAL - CARDINAL ) dealing with the applicants’ case and in particular criticising aspects of the judge ’s conduct of the civil proceedings states , inter alia :

“ In the record of the hearing [ of DATE ] reference is made to CARDINAL questions which the plaintiffs were not permitted to ask . ... For the majority of these CARDINAL questions , the record does not contain any reasons to explain why the judge did not allow the plaintiffs to put the question . In each instance , there was a prior objection by the GPE representatives to the question .

Although [ the applicants’ ] reactions , statements and proposals were perhaps sometimes extreme , the authorities , including the courts , ought to have taken into account their emotional distress ... This may require the trial to be conducted in a particularly respectful and flexible way , without breaching procedural rules to the detriment of the defendants . However , the record of the hearing gives the impression of a tense rather than comfortable atmosphere at the hearing , this being supported also by the records of the exchanges between the judge and the GPE representative . ”

In his DATE Report of DATE ( pp . CARDINAL - CARDINAL ) , the ORG criticised ORG for filing the criminal complaint against the first applicant ( see paragraphs CARDINAL above ) . The report drew attention to ORG explanation that the court was required by law to file and pursue the criminal complaint as to refrain would constitute a criminal offence . The Ombudsman stressed that there was no legal basis for such a conclusion . On the contrary , a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party ’s criminal complaint , which in the instant case was ORG complaint . Following the ORG ’s intervention and in view of the arguments expressed in its letters , ORG decided to withdraw the criminal complaint against the first applicant .

DATE . The Criminal Code ( PERSON zakonik , ORG no . CARDINAL ) , as amended , defines , under the heading “ Criminal Offences causing Damage to Health ” criminal offences concerning injury caused by the negligence of health - care providers . In addition , Article CARDINAL of the Criminal Code provides that anyone who causes the death of another by negligence shall be sentenced to imprisonment for not DATE and not DATE . These offences are subject to mandatory prosecution by ORG , but a subsidiary prosecution by an aggrieved party will also lie ( see , paragraph CARDINAL below ) .

Criminal proceedings in GPE are regulated by LAW ( Zakon o kazenskem postopku , ORG no . CARDINAL ; hereinafter referred to as the “ CPA ” ) and based on the principles of legality and officialness ; Prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exists that a criminal offence subject to mandatory prosecution has been committed .

Public prosecutions are conducted by the public prosecutor ’s office . However , if the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings , the aggrieved party has the right to take over the proceedings in the capacity of subsidiary prosecutor ( subsidiarni tožilec ) , that is , as an aggrieved party acting as a prosecutor ( CPA , section ORG ) ) . A subsidiary prosecutor has , in principle , the same procedural rights as the public prosecutor , except those vested in the public prosecutor as an official authority ( CPA , section CARDINAL ) ) . If the subsidiary prosecutor takes over the proceedings , the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution ( CPA , section CARDINAL ) ) .

Criminal investigations are conducted by the investigating judge at the request of a public or subsidiary prosecutor . If the investigating judge does not agree with the request to open an investigation , he must refer it to an interlocutory - proceedings panel of CARDINAL judges ( zunaj - obravnavni senat ) , which then decides whether to open a criminal investigation . If the investigating judge grants the request , the accused may lodge an appeal with the interlocutory - proceedings panel . Parties to the proceedings may appeal against the interlocutory - proceedings panel ’s decision to ORG ( višje sodišče ) . Appeals do not stay the execution of the decision to open an investigation ( section CARDINAL of the CPA ) .

If a request for investigation has been dismissed owing to a lack of reasonable suspicion that the suspect has committed a criminal offence , criminal proceedings may be reopened at the request of the public or subsidiary prosecutor provided that new evidence is produced on the basis of which the interlocutory - proceedings panel can satisfy itself that the conditions for instituting criminal proceedings are met ( CPA , section CARDINAL ) .

The investigating judge terminates the investigation once the circumstances of the case have been sufficiently elucidated ( CPA , section CARDINAL ) . Thereafter , proceedings before a court may be conducted only on the basis of an indictment ( CPA , section CARDINAL ) .

According to CARDINAL of the CPA , the accused may lodge an objection to the indictment within DATE after its receipt . The objection is examined by the interlocutory - proceedings panel . Section CARDINAL of the CPA provides , inter alia :

“ ( CARDINAL ) If in considering the objection the interlocutory - proceedings panel discovers errors or deficiencies in the indictment ( section CARDINAL ) or in the procedure itself , or finds that further investigations are required before the decision on the indictment is taken , it shall return the indictment to the prosecutor to correct the established deficiencies or to supplement ... the investigation . The prosecutor shall within DATE of being informed of the decision of the panel submit an amended indictment or request the ... supplementing of investigation . ... ”

In addition , the relevant part of section CARDINAL of the CPA provides :

“ ( CARDINAL ) In deciding an objection to the indictment the interlocutory - proceedings panel shall not allow the indictment and shall discontinue the criminal proceedings if it finds that :

CARDINAL ) a criminal prosecution is statute - barred ...

CARDINAL ) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged . ”

NORP Under the provisions of LAW ( Zakon o obligacijskih razmerjih , GPE of GPE ’s ( “ SFRJ ” ) Official Gazette no . CARDINAL , ) and its successor from DATE , LAW ( PERSON zakonik , ORG no . CARDINAL/CARDINAL ) , health institutions and their employees are liable for pecuniary and non - pecuniary damage resulting from the death of a patient caused by medical malpractice . The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee ’s failure to conform to the relevant standard of care . Employees are directly liable for death or injury under the civil law only if it is caused intentionally . However , the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter ’s gross negligence .

DATE . Section CARDINAL of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL ) , as amended , provides :

“ When the decision of the court depends on the preliminary determination of the question whether a certain right or legal relationship exists , but [ the question ] has not yet been decided by a court or other competent authority ( preliminary question ) , the court may determine the question by itself , save as otherwise provided in the special legislation .

The court ’s decision on the preliminary question shall be effective only in the proceedings in which the question was determined .

In civil proceedings , the court shall be bound with respect to the existence of the criminal offence and criminal liability by the final criminal court ’s judgment by which the accused was found guilty . ”

The relevant part of section CARDINAL of LAW provides as follows :

“ In addition to the examples specifically given in this LAW , the court may order a stay of proceedings :

if it decides not to determine the preliminary question itself ( section CARDINAL ) ... . ”

The relevant part of LAW provides :

“ If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section CARDINAL , the proceedings shall resume once the [ other ] proceedings are finally concluded ( pravnomočno končan postopek ) ... or when the court finds that there is no longer any reason to await the end [ of the other proceedings ] .

In all cases , the discontinued proceedings shall continue at the relevant party ’s request , immediately after the reasons justifying the stay cease to exist . ”

Equivalent provisions can be found in sections CARDINAL , CARDINAL , CARDINAL and CARDINAL of the new LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL/CARDINAL ) that came into force on DATE .

The Regulation on the organisation and functioning of Tribunal of ORG ( “ the Medical Tribunal ” ) ( PERSON o organizaciji in delu razsodišča ORG ) , issued on DATE , lays down , inter alia , the procedure for establishing the responsibility of doctors for breaches of the professional rules and the disciplinary measures which can be taken as a result . The ORG ’s prosecutor ( tožilec GPE ) , who is elected from among the members of ORG , is autonomous and has authority to lodge an indictment with the first - instance ORG . The aggrieved party may request the ORG ’s prosecutor to start the proceedings , but the prosecution may reject such a request . If so , the aggrieved party may invite ORG to conduct a preliminary examination . However , the power to file the indictment is vested solely in the ORG ’s prosecutor .

DATE LAW provides that ORG must base its decision solely on the indictment and evidence submitted by the ORG ’s prosecutor and the accused doctor . If the accused doctor or the ORG ’s prosecutor is dissatisfied with the verdict , he or she may appeal to the second - instance ORG .

On DATE the Act on the Protection of the Right to a Trial without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja – Official Gazette no . CARDINAL/CARDINAL “ the CARDINAL Act ” ) became operational . It allows a party to proceedings to ask for the proceedings to be expedited by means of a supervisory appeal ( nadzorstvena pritožba ) and a motion for deadline ( rokovni predlog ) and to lodge a claim for just satisfaction ( zahteva za pravično zadoščenje ) . The remedies provided by this law are subject to certain restrictions in the case of finally resolved proceedings .

Section CARDINAL of the CARDINAL Act states that it applies , inter alia , to parties to court proceedings and injured parties in criminal proceedings .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

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

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

In DATE the applicant inherited QUANTITY hectares of property from his father , of which QUANTITY hectares had been included in a joint hunting area in DATE . The provisions in force at the relevant time concerning joint hunting areas and joint hunting area associations were replaced in DATE by a LAW and in DATE by a LAW ( NORP om viltvårdsområden ; SFS MONEY ) . By the latter LAW , a joint hunting area was renamed a game conservation area .

The game conservation area to which the applicant ’s property belonged comprised CARDINAL hectares of land or QUANTITY including both land and water areas . Slightly CARDINAL properties or plots thereof were included in the area ; many of them were very small , covering CARDINAL . The applicant ’s property was situated in the north - east corner of the area .

The applicant could hunt within the game conservation area , including on his own property , but was obliged to coordinate his hunting with that of the other hunting rights holders . They were all members of ORG in GPE , ( GPE viltvårds - områdeförening ) , ( henceforth ORG ) , and took part in the decisionmaking process .

The by - laws passed by the ORG stated , among other things , that elk - hunting should usually be conducted in the form of so - called “ community hunting ” .

On DATE the applicant requested that the ORG agree to the exclusion of his property from the game conservation area . He wished to have his property registered as a “ CARDINAL calf area ” which would allow for the shooting of QUANTITY calf DATE . He submitted that being a dairy farmer he had not participated in the hunt for DATE . Moreover , he found that a hunting party consisting of CARDINAL hunters was too big and , referring to his age , fiftyfive at the relevant time , he preferred hunting on a smaller scale .

Since the ORG objected to the request , the matter had to be decided by ORG in GPE ( ORG ) , which by a decision of CARDINAL DATE refused the applicant ’s request and stated , in so far as relevant :

“ ... By letters received by ORG on DATE and DATE respectively , you have requested that part of your property ... be excluded from the game conservation area . In support thereof you have stated that you intend to register a licensed elk - hunting area on the property and hunt individually thereon . This would provide you with more hunting opportunities ...

Section CARDINAL of LAW is worded as follows :

Upon application by the property owner or the [ ORG ] , ORG may grant the exclusion from a game conservation area of :

a property which due to a change in use or for other reasons lacks essential importance for the activity of the area ;

a property , or several properties with the same owner , which can comprise a separate unit for game conservation , if the remaining properties in the [ original ] game conservation area can continue to constitute a suitable area of this kind .

... [ ORG observes that ] no change in the way the property is used has come to light . Nor can it be considered that the property lacks essential importance for the activity in the area , since together with a number of other properties , it forms the basis of the activity , which is to promote game conservation through coordination of hunting . In addition , the size of the property is not such as to be a reason for it to be considered to lack essential importance for the activity in question . Accordingly , exclusion can not be granted pursuant to section CARDINAL , subsection CARDINAL of GPE .

Pursuant to section CARDINAL of LAW ( CARDINAL:CARDINAL ) elk may only be hunted after a licence has been issued by ORG and within an area that the latter has registered ( a licensed area ) . This does not apply if the hunting only concerns elk calves . The size and general nature of a licensed area must be such that it is suitable for hunting elk . ORG may refuse to register an area as licensed ... if it does not allow for the shooting of CARDINAL adult animal per year . ORG considers that effective game conservation within the meaning of LAW can not be conducted in an area smaller than what has been referred to here and referred to in LAW of LAW . Likewise , an area of this kind can not comprise a separate unit for game conservation pursuant to section CARDINAL , subsection CARDINAL . of LAW .

The notion “ game conservation ” is defined in LAW :

The game must be conserved so as to

protect the game species that belong to the game population in the country and naturally occurring bird species that are temporarily in the country ; and

promote appropriate development of game stocks , taking into account public and private interests .

Game conservation includes using special measures to ensure that game receives protection and support and that hunting is adapted to the supply of game . The property owner and the person holding the hunting rights are responsible for making sure that the measures are carried out and that adaptations are followed .

Of course , since your property consists of a unit that is CARDINAL hectares , it can be registered as a “ CARDINAL calf area ” However , it can not thereby be considered to comprise a separate unit for game conservation pursuant to ORG .

Accordingly , [ your ] property ] can not be excluded pursuant to section DATE , subsection CARDINAL . of LAW .

As regards the question whether a decision to refuse [ your request ] contravenes [ the proportionality principle contained in ] LAW , section CARDINAL of ORG and ORG , ORG finds that there are strong reasons to support the view that it would be detrimental to effective game conservation , including elk hunting DATE which must be considered to be an important public interest – if existing game conservation areas were to be divided into smaller sections . ...

You have not shown how game conservation could be improved if [ your ] request to exclude the property was granted . ORG considers that even if [ your ] property is part of the game conservation area , game conservation can be carried out , either together with the other partners and hunters , or separately for the individual property . Thus , there are no limitations on the right of disposition over the property in question . On the contrary , there is an important public interest in retaining the property in question as part of the game conservation area . That will maintain the aim of the property owners in forming the area , namely to allow game conservation to be carried out in an efficient manner . Game conservation — primarily conservation of the elk stock — is only efficient when it can be carried out in a continuous area that is not divided . In respect of large game , hunting is an important part of game conservation . Properly conducted hunting based on biological grounds can regulate the numbers of these stocks , so that the requirements of the Hunting Act regarding preservation and promotion are fulfilled . ... ”

On an appeal , by a judgment of DATE ORG ( Länsrätten i Norrbottens Län ) upheld ORG decision .

Leave to appeal was refused on DATE by ORG ( ORG i GPE ) and on DATE by ORG ( Regeringsrätten ) .

According to LAW , LAW ( ORG ) , which is part of LAW , all citizens are guaranteed , inter alia , freedom of association in their relations with public institutions . This freedom is defined as freedom to associate with others for public or private purposes . LAW , LAW stipulates that all citizens are protected , in their relations with public institutions , against any coercion , such as to belong to a political association , religious community or other association with opinions of a political , religious , cultural or other such nature .

The rights and freedoms referred to in LAW , section CARDINAL may be restricted by law to the extent provided for in LAW , sections CARDINAL - CARDINAL ( LAW , section CARDINAL ) . Restrictions may only be imposed to achieve a purpose which is acceptable in a NORP society . A restriction may never go beyond what is necessary having regard to the purpose which occasioned it , nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy . No restriction may be imposed solely on grounds of a political , religious , cultural or other such opinion ( ibid . ) . According to LAW , section CARDINAL , freedom of association may be restricted only in respect of organisations whose activities are of a military or quasi - military nature or constitute persecution of a population group of a particular race , colour or ethnic origin . The negative freedom of association provided for in LAW , section CARDINAL may not be restricted .

The peaceful enjoyment of possessions is protected in , inter alia , ORG . Pursuant to LAW , section CARDINAL , the property of every citizen shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to public institutions or to a private subject , or to tolerate restrictions by public institutions on the use of land or buildings , other than where necessary to satisfy pressing public interests .

A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed compensation for the loss . Such compensation shall also be guaranteed to a person whose use of land or buildings is restricted by public institutions in such a manner that the ongoing use of land in the affected part of the property is substantially impaired , or the value of that part of the property suffers significant depreciation . Compensation shall be determined according to principles laid down by law ( ibid . ) .

Hunting is regulated in , inter alia , LAW ( Jaktlagen ; FAC ) . The right to hunt game is attached to the ownership of real property . Thus , section QUANTITY expresses the general principle that it is the person who owns a piece of property who has the right to hunt on that property . It is , however , possible to convey and let hunting rights , with the result that the ownership of land and the right to hunt may be vested in different persons ( see sections DATE ) .

The right to hunt may be exercised only to the extent that hunting is acceptable from the point of view of game conservation . Thus , all game is in principle protected and may be hunted only if this is permitted under LAW or under provisions or decisions based on the LAW ( section CARDINAL ) .

Specifically with respect to elk hunting , section CARDINAL of the Act establishes the main rule that , with the exception of the hunting of elk calves , this may take place only if licensed by the relevant ORG and within an area that has been registered by ORG for this purpose ( a socalled “ licensed area ” ) . Further , it follows from section CARDINAL that a licensed area shall be of such a size and character that it is suitable for elk - hunting . ORG may refuse to register an area as a licensed area if it does not allow for the shooting of CARDINAL adult animal per year . However , even if these conditions are not met , an area may be registered as a licensed area if there are special reasons for this . In addition , an area may be registered as a licensed area allowing for CARDINAL calf to be shot DATE , if the size of the area amounts to QUANTITY .

The right to hunt is connected with a general obligation to conserve and protect the game within one ’s property . Where the right to hunt has been conveyed or let , this obligation lies with the landowner and hunting right holder together . LAW provides , inter alia , that measures shall be taken for the purpose of conserving existing species of wild game and in order to promote appropriate development of game stocks , taking into account both public and private interests . Game conservation includes an obligation to use special measures to ensure that game receives protection and support and to adapt hunting to the supply of game ( ibid . ) .

With the purpose of coordinating hunting and facilitating game conservation , NORP legislation has for a long time provided land owners with the opportunity to join their properties into joint hunting areas by a unanimous or qualified majority decision . LAW on the Right to PERSON ( Lagen om rätt till jakt ; PERSON ) contained provisions on joint hunting areas and joint hunting area associations . These provisions were replaced by a new Act which entered into force on DATE , ORG DATE ( ORG om jaktvårdsområden ; MONEY ) . This Act was in turn replaced by LAW ( NORP om viltvårdsområden ; SFS MONEY ) , which entered into force on DATE . The provisions of the new Act are in many respects the same as , or similar to , the provisions contained in the old Act . A joint hunting area association existing at the time of the entry into force of the new Act shall be regarded as a game conservation area association in accordance with LAW ( see the transitional provisions of LAW ) .

The CARDINAL Act provides that CARDINAL or more properties or parts of properties may be joined into a game conservation area , for the purpose of promoting the conservation of game through coordination of hunting and measures to protect the game ( section CARDINAL ) . Where this is done , the property owners concerned shall form a game conservation area association ( viltvårdsområdeförening ) . Those who own land incorporated in such an area are members of the association ( section CARDINAL ) .

The provisions of the LAW are equally applicable to publicly and privately owned land . However , according to section CARDINAL of the LAW , a game conservation area may not include certain land owned by ORG where the PERSON population has a right to hunt according to LAW ; ORG ) . Also with respect to other land , public or private , the right of the PERSON to hunt enjoys special protection . Thus , section CARDINAL of the LAW also provides that the formation of a game conservation area may not entail limitations on the hunting rights of the PERSON .

The relevant ORG decides on the establishment of a game conservation area upon application from CARDINAL or several of the property owners concerned ( sections CARDINAL and CARDINAL ) . For such an area to be formed , CARDINAL of the owners , representing CARDINAL of the total area , must agree ( section CARDINAL ) . Another requirement is that the creation of the area shall promote the preservation of the kind of wild game that the coordination is intended to preserve and protect . Finally , it is required that the area be suitable with regard to its size and geographical position . However , no property can be included in a game conservation area if , due to its size or use , it lacks importance for the activity within the area ( section CARDINAL) . Conversely , land that is capable of being retained as a separate unit for the purpose of game conservation can not be included in the game conservation area without the owner ’s consent ( ibid . ) .

As a general rule , the question of whether to form a game conservation area shall be investigated under the guidance of a person appointed by ORG ( section CARDINAL ) . Taking into account the application documents and other relevant information , the authorised official ( förrättningsmannen ) shall put forward proposals regarding which properties should be included in the area and which by - laws should apply to the association ( section CARDINAL ) . These proposals shall be dealt with at a meeting , to which the property owners shall be summoned , and they shall be given the opportunity to submit their opinions and present their own investigations ( sections CARDINAL and CARDINAL ) . Thereafter , the official shall present a written statement expressing his or her opinion as to whether a game conservation area should be formed and , if this is the official ’s view , propose which properties should be included in the area and also put forward proposals on by - laws for the association ( section CARDINAL ) . The proposals and other relevant documents shall then be accessible to the property owners concerned for DATE so that they may examine them and submit any views that they may have . Following the expiry of this period , the official shall provide ORG with all the documents and such objections as may have been submitted , so that the ORG may determine the matter ( ibid . ) .

The game conservation area association shall have a board ( section CARDINAL ) . Members of the association are entitled to participate in the decision making by exercising their right to vote at general meetings ( sections DATE and DATE ) .

ORG shall confirm the by - laws of the association with regard to certain aspects ( sections CARDINAL and DATE ) . The ORG shall also confirm amendments of the by - laws with regard to those aspects ( sections CARDINAL and DATE ) .

If stipulated in the by - laws and provided it is in conformity with the hunting legislation , the association may decide that elk and certain other game may be hunted within the whole area ( “ area hunting ” ; områdesjakt ) and only together with other hunting right holders within the area ( “ community hunting ” ; gemensambetsjakt ) , if this is deemed necessary having regard to the conservation of game ( section CARDINAL ) . If such a decision is taken , the association may also decide on the details of the hunt , such as the number of animals that may be shot . It may also decide that participation in “ area hunting ” and “ community hunting ” shall require a hunting licence ( section CARDINAL ) . According to section DATE , if stipulated in the by - laws , the association may decide to suspend from “ area hunting ” and “ community hunting ” , for a maximum period of DATE , a member or hunting right holder who has broken the rules regarding such hunting . The by - laws may contain a requirement that hunting rights may not be conveyed or let without the consent of the association ( section CARDINAL ) . The association may decide that fees should be paid for hunting and for game that is shot ( section CARDINAL ) .

A property owner who for reasons of conscience is opposed to hunting , is entitled , upon request , to have his property exempted from “ area hunting ” and “ community hunting ” ( section CARDINAL ) .

Upon application by the board of the associations concerned , ORG may decide to join several game conservation areas together into CARDINAL area or to divide a game conservation area into several smaller areas ( section CARDINAL ) . As regards such changes , the same conditions apply as for the formation of a game conservation area ( ibid . ) .

Further , upon application by the board of the association , ORG may decide to join a property to the game conservation area , provided the owner of the property agrees to this ( section CARDINAL ) .

The exclusion of an individual property from a game conservation area is governed by LAW , which deals with CARDINAL types of situations . Thus , ORG may decide to exclude a property upon application by the property owner or the association , if , as a result of a change in its use or for other reasons , it has lost its essential importance for the activity within the area ( subsection CARDINAL , point CARDINAL ) . If the property owner and the association agree on the exclusion , the association may take the decision instead of ORG . According to the preparatory work , this provision aims , in particular , at situations in which a fundamental change has occurred in the use of the property , for example if it has begun to be used for recreational or industrial purposes ( Government PERSON , p. CARDINAL ) . Further , upon application by the property owner or the association , ORG may decide to exclude a property from the area , provided the property is capable of forming a separate unit for game conservation and provided the other properties within the area can continue to exist as a suitable area for game conservation ( sub - section CARDINAL , point CARDINAL ) .

The possibility of excluding properties has been expanded in LAW as compared to LAW DATE , which it replaced . In the CARDINAL Act , exclusion was possible in the situations referred to in section CARDINAL , sub - section CARDINAL , point CARDINAL of the CARDINAL Act , but not in the situations referred to in section CARDINAL , subsection CARDINAL , point CARDINAL .

ORG may decide , under certain conditions , that a game conservation area shall cease to exist and that the association shall be dissolved ( section DATE ) .

A decision by the general meeting of the game conservation area association or by its board may be appealed against by those affected by the decision to ORG , provided the decision relates to CARDINAL of several enumerated issues , such as hunting and game conservation , membership of the association , suspension from “ area hunting ” and exclusion from the game conservation area in accordance with section CARDINAL , sub - section CARDINAL ( section CARDINAL ) .

A decision by ORG may be appealed to the relevant ORG ( section CARDINAL ) . Subject to the grant of leave to appeal , a further appeal lies to the relevant ORG and , in the final instance , to ORG . Leave to appeal shall be granted if it is of importance for guidance on the application of the law that a superior court considers the appeal or if there are extraordinary reasons to examine the appeal . In addition , an administrative court of appeal shall grant leave to appeal if reason exists to amend the conclusion of the first instance court ( sections DATE a and CARDINAL of ORG ; förvaltningsprocesslagen ; SFS CARDINAL:CARDINAL ) .


No substantive violation of Art. 3;Violation of Art. 3 under its procedural aspect;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

At the material time , the applicant and her mother , PERSON , lived in GPE . They ran a shelter for dogs and cats ( PERSON ) in the village of PERSON .

Apparently in the context of an alleged nuisance caused by the animals , in DATE ORG initiated an investigation for disorderly conduct ( garázdaság ) against unknown perpetrators . ORG was of the view that there was a well - grounded suspicion against the applicant and her mother .

Not knowing their exact names or address and thus unable to summon them , on DATE ORG commissioned the locally competent police officer ( bőnyi körzeti megbízott ) , P.Z.H. , to establish data about the applicant and her mother and to escort them to ORG . Because of the office he held in the village , ORG had previously been introduced to the applicant and her mother .

At TIME on DATE , ORG , who hardly spoke any LANGUAGE , appeared at the gate of the shelter . He rang the bell , and the applicant ’s mother received him . Over the closed gate , ORG told her in NORP , without producing a written summons , that the police were conducting a criminal investigation against her and that she was supposed to go with him .

The applicant ’s mother – who is of a NORP origin but , unlike the applicant , speaks NORP – refused to comply with ORG ’s instruction . Following a brief dispute , she turned around and headed for the house across the yard and called her dogs to the gate of the shelter . Observing her reluctant behaviour , ORG pushed the gate open and entered the garden .

NORP Since P.Z.H. had heard the applicant ’s mother order the dogs , he drew his truncheon in order to keep them at bay .

The applicant ’s mother stepped towards ORG , grabbed his right arm and the truncheon , started to shake him and tried to push him out of the garden through the open gate . Since her attempts failed , the applicant ’s mother told ORG that she would get dressed , collect her documents and go with him . However , having entered the house , she locked the entrance door and refused to open it despite the request of the police officer .

The applicant was in the house . She heard the argument and saw part of the struggle from the window of the upper floor . She grabbed a camera and took pictures , using a flash , of ORG from the window . She then hurried down to the ground floor .

From this point onwards , the Government ’s and the applicant ’s versions of events differ .

The Government stated that the applicant stepped out of the house through a side door and continued to take pictures ; meanwhile her mother was abusing the police officer verbally . P.Z.H. requested the applicant to show him her passport . The applicant , instead of complying with the order , hit his shoulder and arm CARDINAL times with the camera . Subsequently , she stepped back towards the house and ORG followed her . They both entered the house . Once inside , ORG tried to take the camera out of the applicant ’s hand but he failed . Meanwhile , the applicant locked the door from the inside and sat on the key . The police officer attempted to get the key by immobilising the applicant ’s arm when her mother appeared , to whom the applicant gave the key .

The applicant stated that ORG was banging on the front door , demanding to be let in . The applicant slightly opened the door and took a picture of P.Z.H. Perceiving the flash , the police officer started yelling at her and , with his truncheon in his hand , shoved the door with his shoulder . The applicant , standing right behind the door , fell against the wall . The door handle hit her stomach and the door - frame hit her shoulder . While she doubled up with pain , ORG repeatedly hit her with the truncheon on the neck , back and shoulders . The applicant dropped the camera . The police officer only stopped beating her when DATE hearing the applicant ’s scream DATE her mother ran into the room .

P.Z.H. asked for reinforcements from police headquarters . With the help of CARDINAL other officers , ORG took the applicant and her mother to ORG in GPE where all the CARDINAL parties were examined . ORG prepared a medical report on their injuries , which stated that the applicant had a contusion on the back of her right hand , a distension of the right shoulder and abrasions on her back .

P.Z.H ’s left shoulder and collar bone were sensitive , and part of the middle finger nail of his left hand was torn off ( CARDINAL.CARDINAL-centimetre ) . He also had a CARDINAL abrasion on the right hand .

The applicant and her mother were then taken to ORG where both of them were heard , as was P.Z.H. as a witness against them . On DATE they were both charged with violence against an official ( hivatalos személy elleni erőszak ) .

On DATE the prosecutor in charge of the case made an official note , stating that the applicant ’s mother had informed him of a third individual , a NORP national , who had been inside the applicant ’s house at the time of the incident and had seen the events from the roof window . She provided this person ’s NORP telephone number and the name of the company employing him in GPE . ORG made no attempt to find this person , supposing that he was an illegal worker who had by that time left GPE .

In the ensuing proceedings , ORG heard the applicant as a defendant and ORG as a witness . It obtained the opinion of a forensic medical expert . Although the applicant requested the examination of the injuries of all the parties and their possible causes , this opinion , prepared by PERSON . T. on DATE , only concerned the injuries of the police officer . According to its conclusions , ORG ’s injuries had probably been caused as described by him , i.e. the applicant had hit him on the shoulder with the camera and then they had struggled for the door key . The expert stated that the applicant ’s version concerning the origin of the officer ’s injuries was less plausible though not impossible .

On DATE the original criminal proceedings conducted against the applicant and her mother on charges of disorderly conduct were terminated in the absence of any evidence of a criminal offence .

On DATE ORG submitted a bill of indictment to ORG , charging them with violence against an official . After CARDINAL hearings , ORG acquitted them on CARDINAL DATE , giving the following reasoning :

“ In view of the consistent testimonies of the defendants , the inconclusive character of the medical expert opinions , and the testimony given by Officer ORG which contained several contradictions , the court did not find it proven with the requisite certainty that the defendants had caused light bodily injury to Officer P.Z.H. ”

On the prosecutor ’s appeal , LOC ORG quashed the first - instance judgment and remitted the case to ORG . Hearings took place on DATE and DATE . On the latter date , ORG ’s commander was heard as a witness and was asked why he had not investigated how the applicant had suffered an injury to her back . He gave the following answer :

“ What can I examine on the basis of a medical report ? That has been written by a doctor . A medical report was prepared ; the lady said that she had been injured . I can not conduct any examination with regard to this . ”

The case is still pending at the first - instance .

On DATE the applicant and her mother expressed their intention to bring charges against P.Z.H. Their criminal complaint was forwarded to PERSON Public Prosecutor ’s Office under the same reference number as the one which concerned the charges against them .

On DATE ORG closed the investigation concerning the applicant ’s complaint against ORG , in the absence of any evidence of a criminal offence . ORG relied solely on the evidence which had been produced in the parallel criminal proceedings conducted against the applicant and her mother . These documents ( TIME of interrogations , the medical files and the findings of the enquiry conducted by ORG ’s superior ) were submitted to the court dealing with the criminal case conducted against the applicant and her mother .

The decision of ORG contained the following conclusions :

“ In the course of the investigation , it has been established that when Officer PERSON , acting on orders and wearing uniform , appeared at the house of PERSON and her daughter , he proceeded in accordance with Act no . DATE on the Police , and Decree no . DATE of ORG on ORG of the Police . It was PERSON and her daughter [ the applicant ] who refused to obey the police measure ; they did not comply with the officer ’s demand , obstructed him in performing his duties and caused him bodily injuries . ... Since , according to the findings of fact of the investigation [ against the applicant and her mother ] and to the enquiry carried out by the officer ’s superior , the actions of the officer as well as the use of coercive measures were lawful , no ‘ mistreatment in official proceedings’ can be established within the meaning of section CARDINAL of the Criminal Code ; therefore , we closed the investigation in the absence of any crime . ”

On DATE the applicant lodged a complaint with ORG against that decision . She complained that there had been no independent investigation in the case , particularly as the investigation authorities had not appointed a forensic medical expert in order to establish how her injuries had been caused . Moreover , the applicant stressed that the police officer ’s conduct had been unlawful in the absence of a written summons and that the decision of ORG was illogical .

On DATE ORG dismissed the applicant ’s complaint . After summarising the factual basis of the case , it gave the following reasoning :

“ During the review of the documents of the investigation , ... [ it ] established that the police action did not give rise to the well - founded suspicion [ of a crime ] ; namely , that the injuries of [ the applicant ] or those of PERSON had been caused by intentional ill - treatment exerted by the proceeding officer . Apart from the ORG allegations , there was no evidence proving that the police officer , in the course of his lawful action , exceeded the indispensable measure of force which was necessary to defy the threat and aggression directed against him and to overcome the resistance to a lawful police measure . In view of the fact that the complaint lodged against the decision closing the investigation does not contain any data to strengthen a well - founded suspicion of a crime committed by a police officer , I saw no reason to quash the impugned decision or to continue the proceedings . ”

Meanwhile , the applicant , independently of the ongoing criminal proceedings , requested another forensic medical expert to prepare an opinion concerning the possible causes of her injuries and those of the police officer .

The opinion of PERSON , dated DATE , concluded that the applicant ’s version of the events was a plausible explanation for her injuries . The expert stated in particular that the injuries on the applicant ’s shoulder and back might have originated either from punches by a hard object ( like a truncheon ) or , with equal likelihood , from being repeatedly banged against a wall . Moreover , he was of the view that the police officer ’s version did not explain the injuries . Concerning the injuries of ORG , the expert established that they could have been caused as he described . The expert added that the injury to the officer ’s shoulder could also be explained by the applicant ’s version .

On DATE the applicant , acting as substitute private prosecutor ( pótmagánvádló ) , lodged a bill of indictment with PERSON against ORG for mistreatment in official proceedings and other offences . In the bill of indictment , she complained that , despite her repeated request , ORG had never been heard as a suspect , the investigation authorities had never obtained an opinion of a forensic medical expert concerning the possible causes of her injuries and , therefore , had not produced a plausible explanation for them . The applicant attached the opinion of PERSON to the bill of indictment .

On DATE ORG dismissed the indictment . Without giving any detailed arguments and relying exclusively on the case file , it held that there was no reason to depart from the decisions of the prosecution authorities .

“ ( CARDINAL ) Liability for damage caused by the ORG administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage . ...

( CARDINAL ) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities , unless otherwise provided by law . ”

“ ( CARDINAL ) Any person in respect of whom there is an order to be brought in , must be presented before the authority , if necessary by the use of a coercive measure . ”

“ ( CARDINAL ) The authority – unless the law prescribes otherwise – shall summon any person whose presence at a procedural act is mandatory and shall notify those whose presence is not mandatory but allowed by the law .

( CARDINAL ) A summons or a notification is normally done in writing . ...

( CARDINAL ) If necessary , a summons or a notification may be done in a short way ( for example , by telephone ) . ”

“ ( CARDINAL ) If a defendant , legal counsel , a witness or an expert does not [ comply with ] a summons issued under LAW ... , the authority may

a ) order the defendant to be brought in , ... ”

“ ( CARDINAL ) Any person who is concerned by a decision of the prosecutor or the investigation authority may lodge a complaint against the decision within DATE from its delivery . ...

( CARDINAL ) ... Subject to the exceptions provided in paragraph CARDINAL , no further remedy lies against a decision determining a complaint . ”

“ ... ( CARDINAL ) After the dismissal of his [ or her ] complaint , a victim may act as a substitute private prosecutor ( pótmagánvádló ) if ...

b ) the investigation was terminated under section CARDINAL § ( CARDINAL ) ( a)-(d ) or ( f ) [ the absence of a serious suspicion of a crime , etc . ] . ”

“ ( CARDINAL ) If the superior public prosecutor dismissed a victim ’s complaint lodged against the dismissal of a criminal report or against the discontinuation of an investigation and it is possible to lodge a substitute private bill of indictment under section CARDINAL , ... the victim may act as a substitute public prosecutor within DATE from the date of the delivery of the decision . ”

“ ( CARDINAL ) The court shall accept a private bill of indictment , if there is no reason to declare it inadmissible .

( CARDINAL ) The court dismisses the private bill of indictment if ...

( d ) its factual or legal background is evidently missing . ”

“ ( CARDINAL ) No appeal lies against a decision dismissing a private bill of indictment . ”

“ ( CARDINAL ) A police measure may not cause such disadvantage as is obviously disproportionate to the legitimate aim pursued by the measure . ... ”

“ ... ( CARDINAL ) For the sake of public safety , the police may put before the authority or the competent body any person who ...

( b ) may be suspected of having committed a crime . ...

( CARDINAL ) An arrested person must be informed orally or in writing about the reasons for his [ or her ] arrest ... .

“ ( CARDINAL ) The police may not enter private houses without permission or a warrant unless it is necessary for ...

( b ) the capture and arrest of a perpetrator or a suspect of a crime , ...

( f ) the implementation of an order to bring someone in , ... ”


The applicants , Mr PERSON , PERSON and their CARDINAL children , PERSON and PERSON , are nationals of GPE , and were born in DATE , DATE , respectively . They are currently in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

s , may be summarised as follows .

The applicants are ORG and , until their departure from GPE , they lived in GPE . On DATE the first applicant arrived in GPE and applied for asylum and a residence permit . On DATE the other CARDINAL applicants arrived and joined the first applicant ’s request for asylum and residence permits . Before ORG ( Migrationsverket ) they stated that their primary reason for requesting asylum was that the fourth applicant suffered from PERSON ’s syndrome ( a genetic disorder that causes mental retardation , severe learning disabilities and other problems ) and epilepsy for which he had received no treatment or care in GPE . On the contrary , he had been considered as a lower ranking person and treated in a degrading manner by physicians and people in their surroundings .

The applicants’ second reason for requesting asylum was that the first applicant had belonged to a special unit of the police which , in DATE , had arrested PERSON , a dangerous criminal with ties to the mafia who had been wanted by ORG . PERSON had tried to escape but the first applicant and another police officer had managed to catch him . On his arrest , ORG had repeatedly threatened the first applicant . After DATE in prison , ORG had been released . However , just after F.O. ’s arrest , the applicants had started to receive telephone threats and the first applicant had been attacked by unknown men in DATE and again in DATE , DATE and DATE . Each time he had managed to defend himself but his aggressors had threatened him and had mentioned F.O. ’s name . The first applicant had talked to his superiors about the threats and attacks , but he had received no support or protection . Thus , he had had to leave the country since F.O. had contacts all over the country and the applicants therefore would not be safe anywhere in GPE .

On DATE ORG rejected the application . It noted that the purported threats and attacks had been carried out by criminals and were not sanctioned by the national authorities . It considered that the applicants had neither exhausted the possibilities to get help and protection in their home country nor shown that the national authorities would be unwilling or unable to help them . Thus , the applicants could not be granted asylum . As concerned the fourth applicant , ORG considered that his handicap was not of such a kind that the family could be granted residence permits on humanitarian grounds . In reaching this conclusion , ORG noted that there was medical care available in GPE and considered that the availability of care of a higher standard in GPE was not a reason to let the family stay .

On DATE ORG ( Utlänningsnämnden ) upheld ORG decision in full and ordered the applicants to leave GPE within DATE .

The applicants lodged a new application for residence permits on humanitarian grounds with ORG . They stated that the conditions for handicapped children were very poor in GPE and that there was no care or treatment for persons with PERSON ’s syndrome . ORG ’s attitude was that these children should not have been born . Although almost DATE , the fourth applicant could not yet walk , stand or eat by himself . Moreover , his legs were shaking , he had a low immune defence and was lacking thyroxin ( a hormone that regulates the metabolic activity of the body by controlling the rate of oxidation in cells and , when too low , retards growth and mental development in children ) . In GPE he was receiving treatment and rehabilitation measures which were essential for his development and to which he was responding positively .

On DATE ORG rejected the new application . It stated that it had already considered the fourth applicant ’s health in its previous decision and it found no reason to change that decision on the basis of the new information relied on by the applicants .

In the meantime , since the applicants had refused to leave GPE voluntarily and ORG had refused to stay the enforcement of the deportation order awaiting its new decision , the matter had been handed over to the police who had scheduled their deportation to GPE for DATE . However , on that date the applicants could not be found at their home . On DATE , the NORP immigration authorities requested GPE to accept the family back in accordance with LAW as they , on DATE , had requested asylum in GPE . On DATE ORG accepted the request and , on DATE , the applicants were returned from GPE to GPE and renewed their request for asylum and residence permits . They maintained their earlier claims and added that during their stay in GPE the fourth applicant ’s health had regressed as he had not received proper medication and the entire family was in poor mental health . Furthermore , they had no economic resources to survive in GPE and no social assistance .

On DATE ORG rejected the application . It observed that the applicants’ reasons for asylum had already been considered once and it found no grounds on which to change its former decision . It further decided that the applicants should be deported immediately since it was evident that they would not be granted asylum or leave to stay for any other reason . On DATE ORG upheld ORG decision in full .

The applicants lodged a new application for asylum with ORG , adding to their earlier claims that the first applicant had lodged a complaint with ORG threats to his family which was being investigated . Although GPE had now been convicted of serious crimes and was in prison , the result of the investigation could show that the applicants were in need of protection in GPE . Moreover , the fourth applicant ’s health had regressed somewhat and he was in need of more support and treatment .

On DATE ORG rejected the new application on the grounds that it was up to the national authorities to protect the applicants against criminals within the country and that there were no circumstances which indicated that the authorities in GPE situation , ORG found that it would not constitute a violation of humanitarian standards to deport the applicants to their home country .

On DATE ORG rejected yet another new application for residence permits by the applicants as they had invoked no new circumstances .

The applicants have submitted CARDINAL medical certificates concerning the fourth applicant , both issued by CARDINAL specialists in child and youth neurology , PERSON and PERSON .

The first medical certificate was dated DATE and stated that the fourth applicant was born with PERSON ’s syndrome and that he had a lack of thyroxin . Moreover , he suffered from an epileptic illness ( the PERSON - Kleffner syndrome ) which had caused him to lose his ability to talk and communicate . He received medication and treatment for his handicap and illnesses but was in need of regular examinations . Furthermore , it was very important that he followed continuous treatment on several levels in order to have some quality of life . This sort of treatment was not available in GPE and GPE .

The second medical certificate was dated DATE and , besides referring to the above certificate , it stated the following : The fourth applicant has PERSON ’s syndrome and an epileptic illness which involves epileptic activities in the brain and the loss of language as well as the understanding of language . As concerns his PERSON ’s syndrome , he was undergoing good rehabilitation training , physiotherapy , occupational therapy , special education and speech therapy . They were concentrating on communication and motor activity . His problems with swallowing would be examined by a speech therapist together with a dietician . He had shown clear progress after treatment with Lamictal ( an anti - epileptic medicine ) and had regained an interest in communication and could also pronounce one or CARDINAL single words , a progress from having been completely wordless and almost without any interest in interplay with others . For the future , the physicians were planning continued rehabilitation and a renewed evaluation of his epilepsy to see how he had reacted to the medication . He would probably need an increased dose of Lamictal after the evaluation . In conclusion the physicians stated that he was reacting very well to the treatment and for this positive development to continue it was an absolute prerequisite that he remain in GPE or another NORP country where he could receive the same treatment .

The applicants submitted a letter , dated DATE , by Prof . Dr. PERSON , ScD , and Ass . Dr. PERSON , GPE . at ORG in GPE , which provided the following information :

At ORG it was possible to diagnose PERSON ’s syndrome and to follow up the functions of the thyroid and to offer treatment for thyroid disorders . It was also possible to diagnose epilepsy , to prescribe Lamictal treatment and to have a child followed by neuro - paediatricians , endocrinologists , cardiologists , clinical geneticists and other specialists . However , at the moment , they could not promise that it would be possible to include a child in programmes of neuro - developing and stimulating exercises , speech pathology , psychological treatment or to include a child in a special school or pedagogical programme . Moreover , in the area , there were not enough institutions to receive and help all children with special needs and so parents were forced to care for their children and to implement necessary treatment in accordance with their financial capabilities .

According to information from DATE , there were special programmes for the social and health protection of children and families , the mentally handicapped , the elderly and civilian war victims . All CARDINAL cantons in GPE and GPE provided social and child protection within CARDINAL local centers . Most of these institutes had been modernized , and some had been newly established . There were also centers for persons with mental and physical handicaps .

Furthermore , in DATE the LAW on the protection of mentally handicapped persons was adopted in GPE . It provides for basic principles , means of organization and the realization of the protection of mentally handicapped persons , and it contains , inter alia , provisions relating to health care and the rights and obligations of beneficiaries .


Violation of Art. 14+8;Pecuniary damage - financial award

The applicants were born in DATE and DATE respectively and live in GPE in GPE .

In DATE , the applicants , a married couple , immigrated to GPE with their daughter , born in DATE . Their son , born in DATE , joined them in DATE .

NORP In DATE their request to be recognised as immigrants of NORP origin ( PERSON ) was rejected . The applicants ' request to reopen the proceedings was rejected on DATE by ORG ( Oberverwaltungsgericht ) . DATE the applicants were issued with residence titles for exceptional purposes ( NORP ) which have been regularly renewed .

On DATE ORG ) informed the first applicant , who had received child benefits ( GPE ) since DATE , that as from DATE the child benefits would no longer be paid following a change in legislation . The office noted that according to LAW of ORG ( GPE , see relevant domestic law below ) , as amended and in force as from DATE , a foreigner was only entitled to child benefits if in possession of a residence permit ( ORG ) or a provisional residence permit ( ORG ) . The office noted that this condition was not met in the applicants ' case .

On DATE ORG ( Bundesanstalt für GPE ) rejected the first applicant 's objection .

The first applicant , assisted by counsel , lodged an action with ORG ( ORG ) with the aim to be granted child benefits from DATE . He claimed that he and his family had been residing in GPE since DATE and had been paying tax and social contributions . He should , therefore , continue to be entitled to the child benefits .

On DATE ORG dismissed the first applicant 's action . It confirmed that only aliens with an unlimited or a provisional residence permit were entitled to the payment of child benefits . The new legislation had only intended to grant child benefits to aliens living in GPE on a permanent basis , whereas aliens with only a limited residence title for exceptional purposes were not likely to stay . The court further pointed out that this distinction did not violate the NORP LAW as had been stated by ORG in several judgments since DATE . As to the special protection of the family provided under LAW , the court held that this did not prevent the ORG from subjecting the payment of child benefits to the type of the residence title .

On DATE the first applicant , assisted by counsel , lodged an appeal with the GPE Social Court of Appeal ( ORG ) .

On CARDINAL DATE ORG informed the first applicant that it had referred CARDINAL pilot cases to ORG ( Bundesverfassungsgericht ) for review of LAW of ORG , and asked him whether he would agree to a suspension of his appeal proceedings until a decision had been given by ORG . On DATE ORG , having obtained the parties ' agreement , ordered the suspension of the proceedings .

By decision of DATE in the pilot cases ( CARDINAL BvL CARDINAL , CARDINAL BvL CARDINAL , CARDINAL BvL DATE ) , ORG ruled that LAW as effective from DATE until DATE was incompatible with the right to equal treatment under LAW of LAW . Accordingly , the legislator was ordered to amend the law by DATE .

The Federal Constitutional Court found , in particular , that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification . As the granting of child benefits related to the protection of family life under LAW , very weighty reasons would have to be put forward to justify unequal treatment . Such reasons were not apparent . In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in GPE , the criteria applied were inappropriate to reach that aim . The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in GPE . ORG did not discern any other reasons justifying the unequal treatment .

On DATE , following the first applicant 's request , ORG resumed the proceedings . On DATE ORG , with the parties ' consent , once again suspended proceedings pending the amendment of the applicable legislation .

In DATE the first applicant lodged a motion with ORG ( ORG ) with the aim to be granted child benefits from DATE according to the provisions of LAW ( Einkommensteuergesetz , see relevant domestic law below ) . On DATE ORG rejected the motion . The first applicant did not lodge an appeal .

Section CARDINAL of the DATE LAW ( PERSON - gesetz , ORG - PERSON , S. CARDINAL ) , as in force from DATE until DATE , provided for the payment of child benefits which are financed by ORG .

Section CARDINAL , as far as relevant , provided as follows :

“ ( CARDINAL ) Under the provisions of the present Act , anybody is entitled to child benefits for his or her children ... ,

NORP who has a place of residence ( PERSON ) or regular residence ( gewöhnlicher ORG ) within the scope of the present Act ,

( CARDINAL ) An alien is entitled to a benefit under LAW , if he has a residence permit or a provisional residence permit . ... ”

Following a reform of the law on child benefits with effect from DATE , an equivalent provision on child benefits is to be found in LAW of LAW ( Einkommenssteuergesetz ) .


Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 11

Mr PERSON , who was born in DATE , was employed by ORG , formerly ORG , ( " ORG " ) from DATE as a heavy goods vehicle driver . He was based at its depot at ORG , GPE , together with DATE and QUANTITY other drivers . His services gave complete satisfaction at all times .

Until the events giving rise to the present case , the applicant was a member of ORG ( " TGWU " ) ; from DATE to DATE he was its branch secretary . In DATE all the other non - managerial employees at ORG save CARDINAL belonged to that union . At that time , however , that depot was not a " closed shop " ( see paragraph CARDINAL below ) . Indeed , the later of CARDINAL statements of his terms of employment furnished to the applicant specified that he had the right to be a member of no trade union and that he would be informed if this right came to be modified by the conclusion of a closed shop agreement .

In DATE a fellow driver , PERSON , allegedly accused Mr PERSON of having " milked the funds " of the union whilst he was branch secretary . The applicant subsequently lodged with the local ORG branch a complaint to the effect that PERSON had " disseminated false statements tending to depreciate " him as one of its officers , but it was dismissed by the branch adjudication panel on DATE .

Mr PERSON was so dissatisfied with that decision that he resigned from ORG by letter of DATE and joined ORG instead . Some of his fellow drivers immediately ostracised him and others obstructed him in the performance of his work .

DATE ORG attempted in vain to resolve the dispute . After a period of " uneasy peace " , a substantial majority of the ORG members at ORG voted , on DATE , in favour of ( a ) a closed shop agreement with ORG and ( b ) industrial action if Mr ORG continued in employment at that depot after DATE .

At a meeting on DATE between Mr Dear , the personnel manager of ORG , and the branch committee of the union it was agreed that the strike threat would be lifted if the applicant either rejoined ORG or was employed on driving work not based at ORG . On DATE the applicant told Mr Dear that he would rejoin the union only if he received an apology from Mr NORP and that he would not accept the alternative proposed by PERSON , namely a move to ORG , a depot QUANTITY away from ORG . In a letter of the same date to the applicant , PERSON summarised the discussions to date ; stated that ORG were contractually entitled to transfer the applicant to ORG , where his earnings would be similar to those at ORG ; denied that the move would be a demotion ; and expressed the hope that the applicant would give serious thought to his position because " [ his ] dismissal [ was ] a possibility " .

Further meetings were then held , with the participation of a senior official of ORG . The applicant declined to accept as an apology a certain statement to be signed by Mr NORP As regards a transfer to PERSON , the applicant expressed concern about conditions there , in particular his fear - which Mr Dear assured him was groundless - of losing his current lorry and allowances for TIME spent away from home ; he also said that he could not face the aggravation from other drivers which he was sure would continue at that depot .

At a final meeting on DATE the applicant declined to accept either of the alternatives then put before him - working at ORG after rejoining ORG or moving to PERSON - and suggested that the management should dismiss him . Mr Dear refused to do that , and added that if the applicant reported to ORG for work , he would be sent home without pay . Mr PERSON , citing his solicitor ’s advice that that would constitute constructive dismissal ( see paragraph CARDINAL below ) , then said that he would resign with immediate effect , which he did by letter of DATE . He did not take up Mr Dear ’s further offer , dated DATE , of employment at ORG with the same opportunity for earnings and expenses as previously .

Mr PERSON then lodged with ORG a complaint of unfair dismissal ( see paragraph CARDINAL below ) against ORG and ORG . In the grounds for his application he stated that he had " been ‘ constructively dismissed’ for refusing to accept ‘ action short of dismissal’ " ( see paragraph CARDINAL below ) . His representative in these proceedings was not legally qualified , legal aid not being available for this purpose .

ORG and ORG contended that a closed shop agreement was in existence ( which would have made any dismissal fair ; see paragraph CARDINAL below ) . ORG also denied that there had been either constructive dismissal or action short of dismissal . Mr Dear admitted in cross - examination the absence of any operational reason for moving the applicant to ORG , the sole purpose being to avoid a strike ; had a strike not been threatened , ORG would have retained him at ORG and not put any pressure on him to rejoin ORG .

By decision of DATE , the ORG unanimously accepted the complaint of unfair dismissal ; it did not deal with the merits of the allegation of action short of dismissal . It found that Mr PERSON was entitled to refuse to rejoin TGWU because there was no closed shop agreement in force ; that the request that he move to PERSON was not reasonable since it was not made for genuine operational reasons but solely to avoid a strike ; that ORG had no right to suspend the applicant without pay ; that he was therefore entitled to treat himself as dismissed ; and that the dismissal was unfair because its only motive was his exercise of his express right not to belong to a union . The tribunal reserved the question of remedies for further consideration , the applicant having opted for re - engagement ( see paragraph CARDINAL below ) .

On DATE ORG , by a majority , dismissed an appeal by ORG on points of law . It found that ORG had not erred in law , misdirected itself or reached an unreasonable conclusion .

On DATE the ORG unanimously upheld an appeal by ORG on a point of law , confined to the question whether Mr ORG had been constructively dismissed . It found that there was an implied term in his contract that his employer could - for any reason - direct him to work at any place within reasonable DATE reach of his home ; ORG had erred in law in holding that this right could be exercised only if the direction were reasonable and that this condition would not be satisfied unless the direction was made for genuine operational reasons . Lord Justice PERSON stated , as regards this implied " mobility term " :

" I can not see how Mr PERSON could reasonably have objected to a term giving the contract this limited degree of flexibility when he entered the employment in DATE . If the evidence had disclosed any special circumstances which as at that time made it a matter of importance to him that he should be based at ... ORG ... rather than at ( say ) PERSON , ORG would no doubt have said so . "

ORG concluded that ORG had acted within its contractual rights in requiring the applicant to transfer to a nearby depot and that he could not be regarded as having been constructively dismissed . No question of unfair dismissal therefore arose .

On DATE Mr PERSON applied for legal aid to appeal to ORG . On DATE legal aid was granted for the purpose of obtaining counsel ’s opinion on the merits of an appeal . On CARDINAL DATE counsel advised that there were no reasonable prospects of success and that leave to appeal would not be given . Further legal aid was therefore refused on DATE .

The relevant domestic law in force at the time of the events giving rise to the present case may be summarised as follows .

A closed shop is an undertaking or workplace where there is in existence a " union membership agreement " , that is an agreement or arrangement between CARDINAL or more trade unions and CARDINAL or more employers or ORG associations having the effect in practice of requiring employees of a certain class to be or become members of a specified union ( CARDINAL of ORG DATE , as amended ) .

ORG DATE ( " LAW " ) provided that , subject to exceptions not relevant to the present case , " every employee shall have the right not to be unfairly dismissed by his employer " ( section CARDINAL ) ; the remedies for unfair dismissal were compensation or , if the individual concerned so elected and if ORG in its discretion so decided , reinstatement or re - engagement ( section DATE ) . In determining whether to make a reinstatement or re - engagement order , the tribunal had to take into account , inter alia , whether it was practicable for the employer to comply therewith ( section CARDINAL ) .

Under section CARDINAL(CARDINAL)(c ) of LAW , as substituted by LAW :

" Subject to subsection ( CARDINAL ) , the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it ( or , if CARDINAL , the principal reason ) was that the employee -

( c ) was not a member of any trade union , or of a particular trade union , or of CARDINAL of a number of particular trade unions , or had refused or proposed to refuse to become or remain a member . "

By way of exception to the foregoing , section CARDINAL(CARDINAL ) of the DATE Act laid down the basic rule that , if a " union membership agreement " ( i.e. a closed shop ; see paragraph CARDINAL above ) was in existence , the dismissal of an employee for refusal to become or remain a member of a specified union was to be regarded as fair . With effect from DATE - that is , after the events giving rise to the present case - this provision was repealed by LAW DATE .

In determining whether or not a dismissal was unfair , an ORG was directed to take no account of pressure exercised on the employer to dismiss the employee , for example by threatening to strike ; however , a third party , such as a trade union , which had exercised such pressure because the employee was not a member of a union could be joined as a party to the proceedings and ordered to pay the whole or part of any compensation awarded to the employee ( sections DATE and CARDINALA of LAW ) .

The notion of constructive dismissal was encapsulated in CARDINAL ) of LAW , which provided :

" ... an employee shall be treated as dismissed by his employer if ... the employee terminates [ his ] contract , with or without notice , in circumstances such that he is entitled to terminate it without notice by reason of the employer ’s conduct . "

It does not suffice , in this connection , that the employer ’s conduct is unreasonable ; it must amount to a significant breach going to the root of the contract of employment or showing that he no longer intends to be bound by one or more of its essential terms ( per Lord PERSON , Master of the Rolls , in GPE v. Sharp [ DATE ] Industrial Cases Reports CARDINAL , construing an earlier but identical provision ) .

Section CARDINAL(CARDINAL)(c ) of LAW , as amended by section CARDINAL(CARDINAL ) of the Employment Act DATE , conferred on an employee ( defined by section CARDINAL(CARDINAL ) of LAW so as to include a person whose employment had ceased ) a right " not to have action ( short of dismissal ) taken against him as an individual by his employer for the purpose of compelling him to be or become a member of any trade union or a particular trade union ... " .

The remedy in well - founded cases was compensation , which might extend beyond financial loss to such matters as injury to reputation and feelings , of such amount as the tribunal considered just and equitable in all the circumstances . Provisions relating to the existence of a closed shop and to the exercise of pressure on the employer , akin to those applicable in the context of unfair dismissal ( see paragraph CARDINAL above ) , also applied in this area .