Preliminary objection joined to merits and dismissed (non-exhaustion of domesic remedies);Remainder inadmissible;Violation of Art. 13;Violations of Art. 3 (substantive aspect);Non-pecuniary damage - award

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

The applicant was born in DATE and is currently serving a prison sentence in correctional colony no . CARDINAL in GPE .

In DATE the applicant was convicted of drug trafficking and sentenced to DATE imprisonment . In DATE he was granted an early release .

In DATE the police received an anonymous complaint stating that the applicant and his friend Mr O. were making and selling drugs in their flats . The police questioned the applicant 's neighbours , who confirmed unanimously that the applicant and Mr O. were drug dealers .

NORP The police made a series of test purchases of drugs from the applicant and Mr O. In DATE and DATE two persons code - named “ Shadow ” and “ NORP ” asked the applicant and Mr O. to make drugs for them . They went on several occasions to Mr O. 's flat accompanied by their acquaintance PERSON The applicant and PERSON made opium from the ingredients bought by the applicant with Shadow 's and PERSON 's money . They then consumed the opium together .

On DATE PERSON called the applicant , complained of withdrawal symptoms and asked him to procure him drugs . The applicant asked PERSON to take MONEY from GPE and to change it in a nearby pharmacy . He then bought opium ingredients with that money and made opium in his flat . He met GPE TIME , handed a part of the opium over to him and left the remainder for himself . PERSON gave the opium received from the applicant to the police .

On DATE the applicant was arrested and charged with drug trafficking .

During the trial the Proletarskiy District Court of Tula heard numerous witnesses , including Shadow , PERSON , the applicant 's neighbours and the police officers who had supervised the test purchases . PERSON 's pre - trial depositions were read out as he had died before the start of the trial . The trial court also examined expert opinions and material evidence , such as the opium received by Shadow and PERSON from the applicant and Mr O. and utensils for making opium found in the applicant 's and PERSON flats .

On DATE the ORG acquitted the applicant of drug trafficking in respect of the episodes of DATE and DATE , finding that on those occasions he had made drugs for personal consumption with his acquaintances rather than for sale . It further convicted the applicant of drug trafficking for selling drugs on DATE . The applicant was sentenced to DATE imprisonment .

On DATE ORG upheld the judgment on appeal .

From DATE to CARDINAL DATE the applicant was held in remand centre no . IZ-CARDINAL/CARDINAL in GPE .

According to certificates of DATE issued by the remand centre administration and submitted by the ORG , from DATE to CARDINAL DATE the applicant was held in cell no . DATE , which measured QUANTITY m and housed CARDINAL forty inmates . From DATE to DATE he was held in cell no . DATE , which measured QUANTITY m and housed CARDINAL inmates . From DATE to CARDINAL DATE he was held in cell no . CARDINAL , measuring QUANTITY m and housing CARDINAL forty inmates . The Government also produced the plan of those cells confirming the cell measurements .

The same certificates state that the inmates were allowed to take a shower once DATE for TIME and had an TIME DATE walk . It was not possible to establish the frequency of family visits or of the applicant 's meetings with counsel . The applicant was also frequently taken out of the cell to see a doctor . Inmates suffering from infectious diseases , such as scabies , tuberculosis , HIV , hepatitis or sexually transmittable diseases , were held separately from other inmates . The applicant was never held together with anyone suffering from scabies or tuberculosis .

According to the applicant , he was held in cells CARDINAL . CARDINAL , DATE , DATE and CARDINAL . Cell no . CARDINAL measured QUANTITY m. It was equipped with CARDINAL bunks and housed CARDINAL inmates . Cell no . CARDINAL measured CARDINAL sq . m , was equipped with QUANTITY and housed CARDINAL inmates . Cell no . CARDINAL measured QUANTITY m. It was equipped with CARDINAL bunks and housed CARDINAL to CARDINAL inmates . As the number of bunks was often insufficient , inmates had to take turns to sleep . Punishment cell no . CARDINAL , where the applicant was held alone from CARDINAL to CARDINAL DATE , measured QUANTITY m.

All cells were insufficiently lit . There was CARDINAL CARDINAL-watt light bulb in each cell . The windows were small . Some of them were broken and inmates had to cover the holes with cloth . There was no forced ventilation and it was extremely hot in DATE and very cold in DATE . The cells were stuffy and smoky .

Each cell was equipped with a lavatory bowl which had no flush system . This was not separated from the living area and the person using the toilet was in view of the other inmates . The dining table was very close to the toilet .

The cells swarmed with rats , bugs , lice , spiders and cockroaches . The walls were covered with mould . Articles of hygiene were sparse . The bedding was dirty and ragged . All complaints to the detention facility administration about poor sanitary conditions went unanswered .

NORP The applicant shared his cell with persons suffering from tuberculosis and scabies . He allegedly contracted scabies while in GPE .

Inmates were allowed to take a shower once DATE . The entire cell population was taken to the shower hall for a total of TIME . There were CARDINAL shower stands and the inmates had insufficient time to shower .

NORP The food was insipid . There was neither fruit nor meat . Vegetables were rarely served . Fish was served in small quantities of QUANTITY per person per day . Although the applicant was prescribed a special diet by a doctor , no special food was provided .

NORP The applicant submitted written statements by his co - detainees confirming his description of the conditions of detention .

The applicant attempted to lodge complaints about the appalling conditions with the prosecutor of the NORP region and the head of the penitentiary department of the NORP region . The remand centre administration did not dispatch his complaints . The warders threatened that he would suffer if he attempted to complain again . He was then put in a punishment cell for DATE .

It appears from the decision of CARDINAL DATE issued by the acting head of remand centre no . IZ-CARDINAL/CARDINAL that the applicant was put in a punishment cell for wrenching the tap off a drinking water tank and using it to make a hole in the wall through which he communicated with the inmates in the neighbouring cell .

The applicant also alleged that during the trial he had been regularly transported to the courthouse in inhuman conditions .

According to a certificate of DATE issued by the remand centre administration and submitted by the ORG , remand centre no . GPE in GPE , where the applicant was held from DATE to CARDINAL DATE , had a medical unit . The medical staff consisted of a general physician , a specialist in skin and venereal diseases , a surgeon , an otolaryngologist , a dentist , a radiologist , a tuberculosis specialist , physician assistants and nurses . The unit had all the necessary equipment and medication .

On DATE the applicant was examined by a physician . He informed the doctor that he had been HIV - positive since DATE and that he was also infected with hepatitis B and C viruses . On DATE he was examined by a psychiatrist who diagnosed him with drug withdrawal syndrome . An HIV antibody blood test confirmed that the applicant was indeed HIV - positive . A chest photofluorography was also performed .

On DATE the applicant was examined by a drug addiction specialist from an HIV medical unit . He noted that the disease had attained clinical stage CARDINAL , but that the applicant 's state of health was satisfactory . He prescribed a special diet . He further recommended that the applicant be held in a special cell for HIV - positive inmates and that general blood and urine tests and chest photofluorography be performed DATE .

On DATE the applicant was examined by a psychiatrist . He complained of headache and liver pain . The doctor prescribed a pain reliever and liver pills .

On DATE the applicant was examined by a nurse . He complained of liver pain . The nurse prescribed hepatoprotective herbal pills and antispasmodic pills .

On DATE the applicant was examined by a surgeon . On DATE a chest photofluorography was performed .

On DATE general blood and urine tests were performed .

On DATE a hepatitis C antibody blood test confirmed that the applicant was suffering from chronic hepatitis C.

On DATE the applicant was examined by a psychiatrist .

On DATE CDCARDINAL , CDCARDINAL and viral load tests were made . The applicant 's CDCARDINAL count was CARDINAL.CARDINAL x CARDINAL ( equivalent to CARDINAL cells / mmCARDINAL ) , while his HIV RNA ( viral load ) was CARDINAL copies / ml .

On DATE a nurse explained to the applicant the results of the CDCARDINAL and viral load tests .

On CARDINAL DATE the applicant was examined by a general physician . He complained of pain in his left shoulder joint . He was diagnosed with arthrosis and prescribed anti - inflammatory treatment .

On DATE a chest photofluorography was performed .

On DATE CDCARDINAL and viral load tests were made for the second time . The applicant 's CDCARDINAL count was QUANTITY ( equivalent to CARDINAL cells / mmCARDINAL ) , while his HIV RNA ( viral load ) was CARDINAL copies / ml .

On DATE the applicant was diagnosed with dermatitis and prescribed treatment for dermatitis and hepatoprotective pills .

On DATE the applicant complained about insomnia and was prescribed sleeping pills .

At DATE a treatment schedule for DATE was prepared . It was recommended that the applicant should be examined twice a year by a general physician , a tuberculosis specialist and an infectious disease specialist . Chest photofluorography and abdominal ultrasound scans were to be performed twice a year and the applicant was to receive a special diet .

On DATE the applicant was examined by a general physician before being transferred to the correctional colony . The examining doctor confirmed the previous diagnosis . On DATE the applicant was transferred to correctional colony no . CARDINAL in the NORP region .

On DATE the applicant was examined by the colony 's physician assistant . He noted that the applicant 's health was satisfactory , his skin was healthy and the lymph nodes were not enlarged .

On DATE the applicant was admitted to the prison hospital of the NORP region ( no . IK-CARDINAL , hereafter “ NORP prison hospital ” ) . He was examined by a neuropathologist and an ophthalmologist and underwent an abdominal ultrasound scan and a general blood test . The doctors prescribed anti - inflammatory treatment for arthrosis , hepatoprotective pills and vitamins .

DATE . On DATE CDCARDINAL and viral load tests were performed . The applicant 's CDCARDINAL count was CARDINAL x CARDINAL ( equivalent to CARDINAL cells / mmCARDINAL ) , while his HIV RNA ( viral load ) was CARDINAL copies / ml .

The applicant was discharged from hospital on DATE .

On DATE the applicant was examined by the colony 's physician assistant . He complained of an aching shoulder joint and liver pains . The physician 's assistant noted that the applicant 's health was satisfactory .

On DATE the applicant was examined by a psychiatrist who diagnosed him with heroin addiction in forced remission .

On DATE the applicant complained of dizziness . He was examined by a nurse who diagnosed him with low blood pressure and prescribed vitamins .

On DATE the applicant was again examined by the colony 's physician assistant . The applicant again complained of liver pain and an aching shoulder joint . The physician assistant noted that the applicant 's gall bladder was deformed but his health was otherwise satisfactory .

On DATE the applicant again complained of an aching shoulder joint . He was prescribed pain relievers .

On DATE the applicant was admitted to the surgery unit of NORP prison hospital . His shoulder joint was X - rayed and general blood and urine tests were made . He was diagnosed with arthrosis and prescribed pain relievers and physiotherapy .

On DATE the applicant was discharged from hospital .

At DATE a treatment schedule for DATE was prepared . It was noted that the applicant 's HIV condition had attained clinical stage CARDINAL . It was recommended that the applicant be examined DATE by a general physician , a tuberculosis specialist and an infectious disease specialist . He was also to undergo laboratory examinations twice a year , and chest photofluorography and abdominal ultrasound scans were to be performed DATE . The applicant was also to receive a special diet .

On DATE the applicant was granted disability status .

On DATE the applicant was examined by the colony 's physician assistant , who found that his health was satisfactory .

On DATE the applicant was again examined by a physician assistant , who prescribed treatment for a respiratory infection and gum inflammation .

On DATE the applicant was examined by a physician . He complained of fever , abdomen pains , cough , headache and heartburn . He was prescribed antibacterial pills .

On DATE general blood and urine tests were made .

On DATE the applicant was taken to NORP prison hospital for examination . He was examined by an ophthalmologist , a surgeon , a neuropathologist , a dentist , a psychiatrist and a general physician . He underwent general blood and urine tests , an ultrasound scan of the abdominal area and an electrocardiogram . He received vitamins and neuroleptic drugs .

On DATE CDCARDINAL and viral load tests were performed . The applicant 's CDCARDINAL count was QUANTITY ( equivalent to CARDINAL cells / mmCARDINAL ) , while his HIV RNA ( viral load ) was CARDINAL copies / ml .

At DATE a treatment schedule for DATE was prepared . It was recommended that the applicant be examined twice a year by a physician , a tuberculosis specialist and an infectious disease specialist . Chest photofluorography , abdominal ultrasound scans and gastro - duodenoscopy were to be performed twice a year and the applicant was to receive a special diet .

DATE . On DATE the applicant was again taken to NORP prison hospital for examination . He was examined by an ophthalmologist , a surgeon , a neuropathologist , a dentist , a psychiatrist , a dermatologist and an otolaryngologist and underwent an ultrasound scan of the abdominal area and a chest photofluorography . General blood and urine tests were also made . He received vitamins and physiotherapy . He was discharged on DATE . The hospital doctors recommended treatment for arthritis and gall bladder deformation and regular supervision by a general physician and a psychiatrist .

On DATE the applicant was examined by a physician assistant , who found that his condition was satisfactory .

On DATE a hepatitis B antibody blood test was performed which established that the applicant did not have hepatitis B.

Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

NORP law gives detailed guidelines for the provision of medical assistance to detained individuals . These guidelines , found in joint Decree no . CARDINAL/CARDINAL of ORG and ORG , on ORG or Detained ( “ the Regulation ” ) , enacted on DATE , are applicable to all detainees without exception . In particular , section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee . On arrival at a detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates . The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance . Particular attention must be paid to individuals suffering from contagious conditions . DATE after the detainee 's arrival at the detention facility , he should receive an in - depth medical examination , including fluorography . During the in - depth examination a doctor should record the detainee 's complaints , study his medical and personal history , record injuries if present , and recent tattoos , and schedule additional medical procedures if necessary . A doctor should also authorise laboratory analyses to identify sexually transmitted diseases , HIV , tuberculosis and other illnesses .

Subsequent medical examinations of detainees are performed at least twice a DATE or at the detainees ' request . If a detainee 's state of health has deteriorated , medical examinations and assistance should be provided by medical personnel of the detention facility . In such cases a medical examination should include a general medical check - up and additional methods of testing , if necessary , with the participation of particular medical specialists . The results of the examinations should be recorded in the detainee 's medical history . The detainee should be fully informed of the results of the medical examinations .

Detainees take prescribed medicines in the presence of a doctor . In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a DATE dose of medicines to the detainee for unobserved intake .

Section X of the Regulation regulates medical examinations , monitoring and treatment of detainees suffering from HIV . In particular , it provides that medical examinations , monitoring and treatment of detainees infected with HIV should be performed in accordance with the general standards of medical assistance to HIV - positive patients . All HIV - positive detainees should be registered and their condition should be monitored regularly to secure timely diagnosis and treatment of diseases that may accelerate the progression of the HIV infection , timely identification of symptoms of such progression and timely prescription of specific therapy . During the initial examination of an HIV - infected detainee a doctor must confirm his HIV status , identify the clinical stage of the disease , detect possible opportunistic infections and set up an adequate course of treatment . The frequency of subsequent medical examinations depends on the clinical stage of the disease and the detainee 's CDCARDINAL count . A detainee in clinical stage CARDINAL of the disease and with a CDCARDINAL count exceeding CARDINAL cells / mm³ must be examined by a doctor DATE , while a detainee in clinical stage CARDINAL of the disease with a CDCARDINAL count lower than CARDINAL cells / mm³ must be examined by a doctor DATE .

DATE . Order no . CARDINAL , on Standard medical assistance to persons infected with HIV , issued by ORG on DATE , provides that a person infected with HIV must be subjected to the following tests and examinations in particular , irrespective of the clinical stage of the disease :

- abdominal ultrasound scan twice a year ;

- electrocardiography DATE ;

- chest photofluorography once or DATE ;

- a general blood test CARDINAL times a year ;

- a general urine test once DATE ;

- psychology consultation CARDINAL times a year ;

- HIV RNA ( viral load ) test twice a year ;

- CDCARDINAL test CARDINAL times a year .

ORG ( “ WHO ” ) guidelines of DATE “ Antiretroviral therapy for HIV infection in adults and adolescents : recommendations for a public health approach ” read as follows :

“ CARDINAL . Immunological assessment of HIV - infected adults and adolescents

The optimum time to commence ORG [ antiretroviral therapy ] is before patients become unwell or present with their first opportunistic infection . Immunological monitoring ( CDCARDINAL testing ) is the ideal way to approach this situation . A baseline CDCARDINAL cell count not only guides the decision on when to initiate ORG but is also essential if CDCARDINAL counts are to be used to monitor ORG . Table CARDINAL summarizes the immunological criteria for the initiation of ART .

Table CARDINAL . CDCARDINAL criteria for the initiation of ART in adults and adolescents

The benchmark threshold marking a substantially increased risk of clinical disease progression is a CDCARDINAL cell count of CARDINAL cells / mmCARDINAL . Although it is never too late to initiate ORG , patients should preferably begin the therapy before the CDCARDINAL cell count drops to or QUANTITY . The optimum time to initiate ORG with a CDCARDINAL cell count of CARDINAL cells / mmCARDINAL is unknown . Patients with CDCARDINAL cell counts in this range require regular clinical and immunological evaluation .

The treatment of patients with WHO clinical stage CARDINAL disease should not depend on a CDCARDINAL cell count determination : all such patients should initiate ORG . For WHO clinical stage CARDINAL conditions , a threshold of QUANTITY has been identified as a level below which functional immune deficiency is present and ORG should be considered ... For patients with clinical stage CARDINAL or CARDINAL disease , a CDCARDINAL count below CARDINAL cells / mmCARDINAL is a clear indication for treatment . Although there are no randomized trial data on the CDCARDINAL cell count level at which to start therapy in asymptomatic persons , data from a number of cohorts have been consistent in demonstrating that disease progression is greater in persons who start antiretroviral therapy with CDCARDINAL counts CARDINAL cells / mmCARDINAL than in those starting therapy above this level . In general these studies have not been able to detect a difference in outcome between persons who start therapy at CDCARDINAL counts of CARDINAL cells / mmCARDINAL and those who do so at CDCARDINAL counts CARDINAL cells / mmCARDINAL . However , if the CDCARDINAL count is CARDINAL cells / mmCARDINAL , ART should be delayed ...

Table CARDINAL . Recommendations for initiating ORG in adults and adolescents in accordance with clinical stages and the availability of immunological markers

Virological assessment of HIV - infected adults and adolescents

Plasma viral load measurement is not necessary before initiating ORG . It rarely informs the clinical decision as to when ORG should begin if both PERSON testing and the assessment of clinical staging are performed ...

Considerations in hepatitis B or hepatitis C coinfection

In the setting of HIV infection the course of ORG [ hepatitis C]-associated liver disease is accelerated . Rates of progression of liver disease in HIV / ORG coinfection are greater . ... there is contradictory evidence on the effects of ORG on HIV disease progression . In the NORP cohort study the presence of ORG was independently associated with an increased risk of progression to AIDS and death . However , the EuroSIDA cohort analysis found that the overall virological and immunological responses to ORG were not affected by ORG serostatus ... However , the risk of mortality related to liver disease was markedly increased in ORG - seropositive patients ...

Irrespective of whether a patient has HIV infection , the optimal treatment for hepatitis C virus infection is pegylated interferon alpha and ribavirin ( ORG ) ... The initiation of LAW in HIV / ORG - coinfected patients should follow the same principles and recommendations as for the initiation of ORG in HIV - monoinfected patients . However , the patients should be followed up more closely because of the major risk of drug - related hepatotoxicity and for specific drug interactions of some ARVs with anti - HCV drugs ... In patients with high CDCARDINAL cell counts it is preferable to treat ORG infection before HIV . While concurrent treatment of both infections is feasible , it may be complicated by pill burden ... , drug toxicities and drug interactions . In patients who need ORG it may be preferable to initiate ORG and delay ORG therapy in order to obtain better anti - HCV response rates after immune recovery ...

Clinical and laboratory monitoring

Clinical and laboratory monitoring of HIV - infected patients serves CARDINAL purposes . Firstly , for patients under care who are not yet eligible for ORG , regular monitoring is essential for the identification of the point at which they become eligible for ORG or for prophylaxis against opportunistic infections ... Well - designed monitoring protocols can facilitate the initiation of [ opportunistic infections ] prophylaxis and LAW in the majority of HIV - infected patients before they develop advanced HIV infection .

Secondly , once patients have been initiated on ORG , regular monitoring is necessary to assess efficacy , manage side - effects and identify treatment failure ...

Because resources are limited , laboratory testing should generally be directed by signs and symptoms and should be done only when the results can be used to guide management decisions . Exceptions are the recommendations to obtain a CDCARDINAL cell count DATE ...

Monitoring of patients who are not yet eligible for ART

Patients who are not yet eligible for ORG should be monitored for clinical progression and by CDCARDINAL count measurement DATE . Clinical evaluation should include the same parameters as are used in baseline evaluations , including weight gain or loss and development of clinical signs and symptoms of progressive HIV disease . These clinical parameters and the CDCARDINAL cell count should be used to update the WHO disease stage at each visit and to determine whether patients have become eligible for [ opportunistic infections ] prophylaxis or ORG . Clinical evaluation and CDCARDINAL counts can be obtained more frequently as the clinical or immunological threshold for initiating ORG approaches ( Table CARDINAL ) ... ”

On DATE WHO published a document entitled “ Rapid Advice : Antiretroviral Therapy for HIV Infection in Adults and Adolescents ” . It revised the previous recommendations concerning the commencement of antiretroviral treatment contained in the DATE guidelines . It strongly recommended that antiretroviral treatment be started in all patients with HIV who had a CDCARDINAL count lower than CARDINAL cells per mmCARDINAL irrespective of clinical symptoms . It stressed the necessity of CDCARDINAL testing in identifying whether HIV - positive patients at WHO clinical stage CARDINAL or CARDINAL of the disease needed to start antiretroviral treatment . Furthermore , it strongly recommended that antiretroviral treatment be started in all patients with HIV at WHO clinical stage CARDINAL or CARDINAL irrespective of CDCARDINAL count .

The same recommendations are contained in the ORG 's DATE guidelines “ Antiretroviral therapy for HIV infection in adults and adolescents : recommendations for a public health approach ” .


Mr PERSON lives at LOC , in the commune of GPE ) .

Since DATE he has been involved in cattle farming on a farm of QUANTITY which his father had operated before him . The farmland comprises a parcel registered as " Commune Woensdrecht , section G , no . DATE " ( circa QUANTITY ) , of which Mr NORP is a co - owner together with the PERSON , a foundation set up for the purpose of nature preservation . He has a one sixth interest in the land . The above parcel was situated outside the dyke along the eastern end of the PERSON , an arm of LOC .

The eastern part of the PERSON has been shut off from the sea by a series of dykes whose purpose was to strengthen the defences against the sea rather than to reclaim land .

Before the completion of these dykes the area comprising the parcel G , no . DATE consisted partly of a complex of open water , strips of mudland and siltland submerged either by each high tide or by spring tides ( slikken en schorren ) , intersected by inlets , and partly of low dunes backed by cliffs ) . The open - water area was a mixture of salt and fresh water . Due to these conditions , only limited use could be made of the parcel .

The dyke enclosing the land comprising the parcel - called " PERSON " after the local delta region known as the " Markiezaatsmeer " - was completed in DATE . Thereafter , with the disappearance of the tides and the predominance of fresh water , the land gradually became drier with changes in the flora and fauna of the area and an explosive growth of thistles .

At the present time the PERSON , an area composed of QUANTITY land and QUANTITY water , is partly a " protected natural site " in the sense of section CARDINAL of LAW ( " LAW " - ( PERSON ) and partly a " national nature preserve " in the sense of LAW of that LAW ( see paragraphs CARDINAL below ) . The PERSON acts as a supervisor for the area .

Before the PERSON was completed the Minister of Culture , Recreation and Public Works designated the area which includes the parcel as a " protected natural site " by an order of CARDINAL DATE made pursuant to section DATE CARDINAL Act .

An explanatory note was appended to the order . Points CARDINAL and CARDINAL of the note contained a comprehensive description of the particular scientific and environmental importance of the area as it then was . Point CARDINAL described the developments to be expected from the completion of the dykes , including the gradual cessation of tidal effects , the transformation into a freshwater zone , the drying out of the land and important changes in the existing biotope .

Point CARDINAL of the note specified that " current long - established use of land could continue as usual " but that " certain actions should , however , be subject to authorisation " ; among these were " the use of methods intended or likely to alter or intensify the existing use of land " , " removing , destroying or degrading the soil ( ... ) , filling in , levelling , clearing or ploughing the land " and " the use of herbicides or substances to promote or inhibit growth " .

On DATE the applicant appealed against the designation order to the ORG under LAW ( see paragraph CARDINAL below ) .

He pointed out that he used parts of the designated area including parcel G , no . DATE for pasturing cattle and alleged that the order would turn those parts into wasteland . He submitted that this would not be in the interests of nature conservation and would , moreover , entail considerable economic losses . Further , the area ’s protection as a natural site was already sufficiently secured by the GPE regional development plan and the Woensdrecht municipal land - use plan , both of which respected the rights of farmers . He concluded that the reasons given for the order were both insufficient and superfluous and that it should be annulled .

The appeal was heard before ORG ( PERSON ) of ORG ( PERSON ) ( see paragraphs CARDINAL and CARDINAL below ) on DATE .

In accordance with the advisory opinion of that ORG the applicant ’s appeal was dismissed by LAW of DATE , no . CARDINAL ( ORG ( PERSON ) DATE , CARDINAL ) .

The Crown first held that the area met the requirements of section CARDINAL ( b ) of LAW . It then examined and rejected the objection that the requirement of section CARDINAL of that Act was not fulfilled in that the protection of the area was already secured in another way . As to the applicant ’s fear that his user of parcel G , no . DATE for pasturing cattle would be unduly restricted , the Crown held that at the hearing it had been established that the manner in which he had exploited the parcel did not impair the essential characteristics of the area so that the existing use could be continued without an authorisation being required . The applicant ’s fear that the site would turn into wasteland was considered unfounded because it was possible to use the land so as to prevent that . Finally the ORG held that the interests of protecting the area as a " protected natural site " under LAW outweighed the interests of the applicant .

In DATE the applicant had QUANTITY of parcel G , no . DATE levelled and some inlets filled in . When this was discovered , the Minister of Agriculture and Fisheries on DATE issued an order under LAW of LAW to cease work . The applicant appealed against this order to ORG ( Afdeling Rechtspraak ) of ORG ( see paragraph CARDINAL below ) and requested an interim injunction from the President of that ORG . Following the dismissal of that request on CARDINAL DATE , the Minister , by order of CARDINAL DATE , specified the steps to be taken by the applicant to restore the land to its original state . The Minister stated that , if these measures were not carried out by the applicant before DATE , they would be done at his expense . The applicant appealed against this order to ORG alleging that he had taken the impugned measures in order to destroy the thistles proliferating on parcel G , no . DATE , as he had been ordered to do by the municipal authorities of the commune of ORG joined the appeals and dismissed them on CARDINAL DATE .

On DATE the Minister of ORG refused to grant the applicant authorisation to use mechanical means for destroying thistles on part of the land .

The applicant appealed to the ORG against this decision . In accordance with section CARDINAL para . CARDINAL of LAW on ORG ( PERSON wet PERSON ) , the appeal was referred for decision to ORG of ORG . The appeal was dismissed on DATE .

On DATE the applicant claimed compensation under section CARDINAL of LAW . He claimed that he had suffered damage because of the manner in which the natural site was managed . As a result thistles had become so abundant that all other growth had ceased and the use of parcel G , no . DATE for pasture had become impossible . He based his claim for Hfl . CARDINAL on the allegation that as from DATE he had had the intention to use that parcel for intensive pasture , increasing the number of cattle to CARDINAL .

The Minister dismissed the claim on CARDINAL DATE , pointing out , inter alia , that the applicant could not reasonably have expected that after the closure of the PERSON he would have been able to use the parcel more intensively than before since he must have known long before that the area would be designated as a protected natural site .

On DATE the applicant appealed against this decision to the ORG . At the date of the hearing before the ORG the appeal was still pending before ORG of ORG .

LAW ( b ) of LAW defines a natural site as composed of grounds and waters which are of general interest as regards their scenic beauty or scientific value .

Under section CARDINAL of the LAW the Minister of Culture , Recreation and Public Works may , in agreement with the Minister for Planning and Development ( ruimtelijke ordening ) , designate as a protected natural site ( beschermd natuurmonument ) a natural site which is not protected in any other way . Designation takes place by means of a reasoned decision which must specify the land registry parcels affected by the designation .

LAW ) of the LAW states that it is forbidden to carry out actions detrimental to the scenic beauty or scientific interest of a protected natural site or which might disfigure the site , without authorisation by the Minister or in breach of the terms of such an authorisation . LAW ) specifies that the actions envisaged by LAW ( CARDINAL ) are those which affect the essential characteristics of the protected natural site as set out in the designation order .

LAW allows for the possibility of obtaining compensation for damage suffered as a result of a designation order , refusal of authorisation or the terms attached to an authorisation .

Section CARDINAL of the Act limits appeal to the ORG by interested parties to : a designation order under LAW , a repeal of such an order under LAW , decisions as to authorisations made under LAW and decisions as to compensation for damage under section CARDINAL .

Under section CARDINAL the Minister of Culture , Recreation and Public Works may designate as a " national nature preserve " ( staatsnatuurmonument ) a natural site which belongs to the ORG .

Sections CARDINAL to CARDINAL of the LAW provide for various penalties or coercive measures in respect of actions contrary to the provisions of the LAW .

Under GPE law the civil courts have traditionally had competence to grant relief against the administration if and in so far as no other relief is available .

This competence is based on the LAW and on LAW ( FAC RO ) ) .

Under subsection CARDINAL of CARDINAL of the LAW it is for the judiciary to adjudicate on " disputes on civil rights and claims " . The " judiciary " responsible for the administration of justice in civil cases is composed of ORG , the courts of appeal , the district and cantonal courts .

ORG provides ( as far as relevant ) :

" The judiciary is exclusively charged to take cognizance of and to decide upon all disputes on property or rights derived from property , on claims or civil rights ... "

The leading precedents as to the interpretation of LAW are ORG judgments of DATE and of CARDINAL DATE .

In its judgment of DATE ( PERSON ( GPE ) DATE , p. CARDINAL ) ORG held that :

" under section CARDINAL RO , the exclusive competence of the judiciary depends on the object of the dispute , that is the right for which the plaintiff claims protection , and not on the nature of the right on which the defendant ’s argument is based " .

The case which was decided by ORG in its judgment of DATE ( GPE CARDINAL/CARDINAL , no . CARDINAL ) concerned an action brought by a commune against a province based on the latter ’s refusal to deliver electricity to the commune . The commune alleged in the first place that it was entitled to delivery under a quasi - contractual obligation incumbent on the province and in the second place that the refusal constituted a tort since it was contrary to a public law obligation . The commune sought both a declaratory judgment that the refusal was unlawful and a judicial order to deliver .

As to the first ground ORG , reiterating its decision of DATE , held inter alia that :

" for the question whether there is a claim within the meaning of that section [ section CARDINAL RO ] it is immaterial whether the obligation is governed by public or by civil law ... "

On the second ground ORG noted that these claims were based on section CARDINAL of LAW and held :

" that the protection afforded by this section is not confined only to the claim for damages to which it explicitly refers , but also applies to preventive measures where there exists a serious threat that injustice is on the point of being done . "

It concluded that as far as the latter ground was concerned the " object of the dispute " was an obligation under section CARDINAL of LAW and that , accordingly , the case concerned a civil right within the meaning of section CARDINAL RO , it being irrelevant for the competence of the civil courts whether or not the obligation to deliver the electricity was of a public law nature .

The above case - law is understood to imply that where a citizen bases his claims against the administration on the allegation that the latter has committed a tort against him , the civil courts are , in principle , competent to take cognizance of the case .

Finally it should be noted that where the civil courts are competent the President of ORG has competence in interlocutory proceedings ( kort geding - see , for the role of these proceedings in the GPE , the PERSON judgment of DATE , Series A no . CARDINAL , p. CARDINAL , para . CARDINAL ) .

Under section CARDINAL of the LAW , as construed in the constant case - law of ORG , the judiciary is not permitted to examine the lawfulness of Acts of ORG . The courts can , however , review the lawfulness of subordinate legislation and of all other acts of the administration including the lawfulness of decisions which have a general character ( such as regulations , plans or , directives ) .

A decision of the administration is unlawful ( onrechtmatig ) and constitutes a tort within the meaning of section CARDINAL of LAW when it violates a right of the plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff ’s interests , or to general principles of proper administration which , inter alia , forbid abuse of power and encompass the principles of proportionality and reasoned decisions as well as requiring that all relevant considerations be taken into account in reaching a decision .

Although section CARDINAL of the Civil Code states that a victim of a tort is entitled to damages , his rights under this section are wider . He may ask for a declaratory judgment and for an injunction by which the defendant is either forbidden or ordered to do something ( see also paragraph CARDINAL above ) . That means that a citizen who claims that a decision of the administration constitutes a tort may demand , if need be in interlocutory proceedings , that the court or its President restrains the administration , for example , from executing or having executed its impugned decision ( see ORG judgment of DATE , GPE DATE , no . CARDINAL ) . In this sense the courts , although they lack competence to annul the decisions of administrative authorities , may , as ORG explained in its judgment of DATE , make such a decision " inoperative " .

Although claims for damages against the administration are subject to a limitation period of DATE under a special LAW DATE , the period of limitation for other forms of relief against the administration based on section CARDINAL of LAW is the normal DATE period provided for in section DATE of that code .

Under GPE law there are CARDINAL other forms of relief against the administration .

In the first place , it may be possible to appeal to an administrative tribunal with competence to make a decision in the matter . This is , as a general rule , possible in areas such as fiscal law , social security law , and the law concerning civil servants : in these fields cases are dealt with by either special administrative tribunals or special sections of the civil courts .

Since DATE , when the LAW concerning administrative jurisdiction as to decisions of the administration ( FAC administratieve rechtspraak overheidsbeschikkingen ( LAW ) ) entered into force , there is , moreover , a more general administrative tribunal , ORG ( Afdeling Rechtspraak ) of ORG ( PERSON ) , which is competent only as regards administrative decisions . It is since LAW that it has become possible to appeal to ORG from those orders made under LAW against which under LAW there is no appeal to the Crown ( see paragraphs CARDINAL , DATE and DATE above ) .

In the second place , under GPE law as it stood before the enactment of LAW on ORG ( see paragraph CARDINAL below ) there was a special form of relief against the administration , referred to as an " administrative appeal " . Under this procedure the aggrieved citizen was given the right to appeal from the decision of an administrative authority to a higher administrative authority which , if the appeal was allowed , had competence to take the proper decision itself . The appeal to the Crown under LAW from the designation order of the Minister ( see paragraph CARDINAL above ) is an example of this type of relief . A further example was the administrative appeal which was at stake in ORG judgments of CARDINAL DATE ( GPE DATE , no . CARDINAL ) and CARDINAL DATE ( GPE DATE , no CARDINAL ) : the appeal from a decision by the municipal executive to the municipal council ( see paragraph CARDINAL in fine below ) .

In its judgment of DATE ( NJ DATE , no . CARDINAL ) , ORG examined whether the lower court was correct in holding that it should not examine the lawfulness of a municipal development plan . ORG recalled that an appeal lies to the ORG after such a plan has been approved first by the municipal council and then by the provincial council . It added that in such an appeal ORG gives an advisory opinion and thus " an examination of the case in adversary proceedings is secured " .

The ORG concluded :

" that the law , by making available the above - described administrative procedure , offers such guarantees to all those interested in the substance of the municipal development plan , that it is to be assumed that a plan which has been formally drawn up in accordance with the law is final for everybody ... , so that an action before the civil courts , based on the allegation that the plan is null and void because the substance is contrary to the law , is excluded . "

In its above - mentioned judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) ORG took the opposite view with regard to the administrative appeal then under examination :

" ... because the appeal to the municipal council which is possible under the law does not offer sufficient guarantees for it to be regarded as a special procedure which excludes the possibility of seeking relief before the civil courts ... "

ORG reiterated this opinion in its judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) . There the court held that :

" if the applicant for a building licence is of the opinion that the authorities by refusing his application have violated section CARDINAL of LAW , he may under section CARDINAL of LAW claim damages for the harm he has suffered . The court in assessing that claim must examine the lawfulness of the decision refusing the application because the procedure to seek relief from such a decision does not offer sufficient guarantees for it to be considered a special procedure which excludes examination on the basis of section CARDINAL of LAW . "

The above - mentioned judgments form part of an extensive case - law to the effect that where an administrative appeal offers sufficient guarantees as to a fair procedure , the civil courts , although remaining in principle competent , should refrain from examining the lawfulness of the administrative decision against which the appeal lies . Examination of the latter question is not , however , excluded if the administrative appeal does not offer such guarantees .

In DATE , in a much noted article by PERSON ( Non sine causa , Opstellen aangeboden aan Prof . PERSON , pp . CARDINAL et seq . ) it was submitted that the ORG did not meet the requirements of LAW para . CARDINAL ( article CARDINAL ) of the LAW . The author warned that there might be many cases of appeal to the ORG where that provision applied and argued that the appeal to the ORG procedure should be revised . The ORG ’s judgment in the PERSON case ( the judgment of DATE , Series A no . CARDINAL ) confirmed the correctness of these views .

Prior to the ORG judgment several authorities - among whom a member of ORG - had already stated that , if the above proposition was right , the consequence would be that ( CARDINAL ) the appeal to the ORG could no longer be said to be an administrative appeal which " offers sufficient guarantees " as to a fair procedure and ( CARDINAL ) that , accordingly , under the doctrine described in paragraphs CARDINAL - CARDINAL above , the civil courts would be free to examine the lawfulness of any decision of the administration coming within the province of DATE ( article CARDINAL ) of the LAW against which appeal to the ORG lies ( see , inter alia : ORG , ORG , DATE , pp . CARDINAL et seq . ; PERSON , GPE , DATE , p. CARDINAL ; PERSON , PERSON voor de Nederlandse Juristenvereniging , ORG DATE , ORG . , p. CARDINAL ; PERSON Does & ORG , PERSON ( DATE ) , p. CARDINAL ) .

After the ORG judgment this view was generally accepted among the many learned writers who examined the consequences of that judgment for the GPE system of remedies against the administration ( see , inter alia , PERSON , PERSON DATE , p. CARDINAL ; PERSON , ibid . , p. CARDINAL ; PERSON , Nederlands Juristenblad DATE , p. CARDINAL ; " Kroonberoep en Art . CARDINAL ECRM " ( DATE ) , pp . CARDINAL , DATE , DATE and CARDINAL ; PERSON , in his note on the ORG judgment , ORG Beslissingen DATE , no . CARDINAL ; PERSON and PERSON , ORG in de sociale rechtsstaat , ORG , p. CARDINAL ) . The only question which divided the legal profession was whether or not it would be necessary to appeal to the ORG before taking the case to a civil court .

The above view concerning the competence of the civil courts was also accepted by ORG in a judgment of CARDINAL DATE in interlocutory proceedings ( PERSON DATE , no . CARDINAL ) .

ORG decided this issue for the first time in its judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) . The case concerned a decision taken by the municipal authorities under LAW DATE ( PERSON ) to close down the plaintiff ’s business . Under that Act the plaintiff could have appealed to the Crown ( " administrative appeal " ) and in that context he could have requested interim mesures from the President of ORG of ORG . Instead , however , he instituted interlocutory proceedings ( kort geding ) before the President of a civil court . Both the President and ORG held that the plaintiff should have availed himself of the appeal procedure to the ORG and refused to entertain the action . In conformity with the advisory opinion of the acting PERSON ORG dismissed the appeal .

The ORG first recalled that :

" the fact that , under section CARDINAL RO civil courts are competent to take cognizance of an action based on section CARDINAL of LAW , does not prevent a refusal to entertain the action based on , to put it briefly , the existence of another remedy which offers sufficient guarantees . "

The ORG then held that there actually was such a procedure because the plaintiff could have addressed himself to the President of ORG of ORG ; accordingly , the President of the civil court was not the appropriate judge in the matter .

As appears from the opinion of PERSON , a ORG judge acting as PERSON , this was in conformity with the doctrine referred to in DATE above . He had , however , also discussed the question whether that doctrine could still be upheld after the ORG judgment which he considered ought to be taken into account . He concluded that " also after the ORG judgment in principle the citizen will have to appeal to the ORG first ; thereafter he can address himself to the civil courts " ( GPE DATE , no . CARDINAL , para . CARDINAL ) .

ORG considered that the ORG judgment was immaterial because the case concerned interlocutory proceedings which did not involve a " determination " of the plaintiff ’s civil rights . It added :

" It is true , however , that it would be difficult to accept the aforementioned exclusion of the President as kort geding judge if it were open to an interested party in cases concerning a determination of civil rights within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW to take the case as to the merits directly to the civil courts . The system in force at the moment should , in order to avoid procedural complications , however , be understood as enabling the interested party to bring his case to the civil courts only after a decision on his appeal to the ORG . "

In his annotation to the judgment Professor PERSON pointed out that the conclusions drawn by ORG were to be expected in the light of its case - law :

" the appeal to the ORG is no longer to be considered as offering sufficient guarantees ; consequently , until LAW on ORG has made ORG a tribunal in most cases , there is a role for the civil courts . "

The above interpretation was endorsed by a judgment of ORG of DATE ( GPE DATE , no . CARDINAL ) . In that case the plaintiff ( PERSON ) had asked for a new licence under LAW DATE in view of plans to extend and modify a filling station . In anticipation of the granting of this licence the company had in DATE - with the full knowledge and approval of the head of the municipal " Nuisance - Act- department " - reconstructed its installations in the station . However , in DATE the muncipal authorities refused to grant the licence requested and at the same time closed down all of the company ’s installations . Upon appeal the ORG annulled the decisions of the municipal authorities and issued the requested licence . PERSON thereupon instituted a claim for damages in a civil court . ORG held that the commune had committed a tort and ordered it to pay damages . ORG dismissed the commune ’s appeal .

In its appeal the commune complained that ORG had considered itself bound by the decision of the ORG . ORG recalled the doctrine referred to above ( in DATE ) . It held that the appeal to the ORG was , as far as the domestic law of the GPE was concerned , to be considered as an administrative procedure which offered sufficient guarantees . Consequently , in principle , the civil courts were bound by the ORG ’s decision . However , ORG added :

" In view of the judgment of ORG DATE , GPE DATE , CARDINAL ( the PERSON case ) an exception to that principle must , however , be made if ‘ the licencee or the person who exploits the ORG pleads that the ORG can not be deemed to be a ‘ tribunal’ which meets the requirements of LAW para . CARDINAL ( article CARDINAL ) of LAW : in that case the aforementioned principle is not to be applied and it is the duty of the civil courts also to deal fully and independently with the issue already decided by the ORG . It has , however , not been established that PERSON has made such a plea based on the above - mentioned treaty provision and the commune can not make such a plea . "

This ruling was further confirmed by ORG judgment of DATE ( GPE DATE , no . CARDINAL ) .

Under LAW the King or Queen is inviolable . The Sovereign takes decisions on the responsibility of a Minister , who must countersign them .

In ordinary language , the expression " the ORG " means the Sovereign and Minister or Ministers exercising their decision - making powers .

The ORG rules on administrative disputes brought before it on appeal . It decides only after ORG of the Raad van State has investigated the case and prepared a draft decision ( section CARDINAL para . CARDINAL of the LAW on the Raad van State ) .

The members of the ORG , whose number is fixed by the ORG but must be CARDINAL including the President , are chosen by the ORG from among the members of the PERSON and on its recommendation . ORG should not be confused with ORG which itself examines cases within its jurisdiction .

The President of the ORG calls for the necessary official reports and informs the Minister concerned accordingly ( section CARDINAL ( c ) para . CARDINAL ) . The parties may submit such documentary evidence as they consider necessary ( section CARDINAL ) . A public hearing gives them an opportunity to argue their cases if they so wish ( section CARDINAL ) . They have the right , as does the President of the ORG , to call witnesses and experts , put questions to them and comment on any evidence given ( section CARDINAL para . CARDINAL , section CARDINAL paras . CARDINAL and CARDINAL and section DATE ) .

The ORG deliberates in camera ( section CARDINAL ) . It can carry out an inspection of the LOC ( section CARDINAL ) , obtain additional official reports , which the parties are able to comment on ( section CARDINAL ) , and hold further hearings ( section CARDINAL ) .

It then draws up a draft LAW which it submits to the ORG together with its opinion ( section CARDINAL ) . The relevant Minister has DATE to inform the ORG of any objections he may have and ask it to reconsider the case ( section CARDINAL ) .

DATE . After receiving the ORG ’s opinion or additional opinion the ORG issues LAW within DATE . This time - limit may be extended by DATE ( section CARDINAL para . CARDINAL ) . Once it has expired the ORG must follow the ORG ’s opinion ( section CARDINAL ( a ) ) ; prior thereto it may depart from the opinion , but only if the Minister concerned has first consulted the Minister of ORG or , if the latter is himself concerned , the Prime Minister ( section CARDINAL and section CARDINAL para . CARDINAL ( a ) and ( b ) ) . In practice this happens only very rarely .

The ORG ’s decision may be based on considerations of law or expediency ; subject to the jurisdiction of the civil court ( see paragraphs CARDINAL above ) no appeal may be brought against it .

The reasoned Decree is sent immediately to the parties and the ORG , and is then made available to the public for DATE at the ORG of the Raad van State ( section CARDINAL para . CARDINAL ) . If it goes against the ORG ’s opinion it is published in ORG ) together with the Minister ’s report , which contains the ORG ’s draft and the Minister ’s correspondence with the ORG and with the Minister of ORG or Prime Minister ( section CARDINAL para . CARDINAL ) .

LAW on ORG was passed on DATE in order to give effect to the ORG judgment . The LAW came into force on DATE and will expire DATE after that date ( section CARDINAL ) . Following the expiry of the Act it is envisaged to create within ORG an administrative division with jurisdiction to decide any administrative appeal and to introduce administrative chambers in regional courts .

Under section CARDINAL para . CARDINAL of the Act ORG of ORG is to decide all disputes which formerly were to be decided by the ORG . LAW para . CARDINAL , however , provides , inter alia , that this amendment shall not apply to " decisions of a general character " .

ORG has held that a designation order made under LAW is not a " decision of a general character " within the meaning of section CARDINAL para . CARDINAL of LAW . Consequently an appeal against a section CARDINAL designation order is at present decided by ORG ( decision of CARDINAL DATE in the case of the " Limitische Heide " ( unpublished ) ; decision of CARDINAL DATE in the case of the " Tafelberg - en Blaricummerheide ( ORG FAC DATE , no . CARDINAL ; Milieu en Recht DATE , p. CARDINAL ) ; decision of CARDINAL DATE in the case of the " Busummer- en Westerheide " - unpublished ) . In its decision of CARDINAL DATE the Minister ’s order was quashed ; in the other CARDINAL cases the appeal was dismissed .


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

The applicants , PERSON , PERSON GPE and PERSON , are NORP nationals who were born in DATE , respectively , and live in the town of ORG in FAC of GPE .

On DATE the Government adopted regulations on ORG ( the “ Register ” ) . Information on taxpayers was to be entered in the ORG on the basis of taxpayer 's individual identification numbers ( индивидуальный номер налогоплательщика ( ИНН ) , the “ taxpayer 's number ” ) . The taxpayer 's number was a CARDINAL - digit sequence which included DATE for the regional tax inspectorate , the taxpayer 's sequential number , and the check value .

On an unspecified date the applicants submitted applications to district tax inspectorate no . CARDINAL of FAC to have their taxpayers ' numbers cancelled on the ground that the numbers “ had been assigned to them through ignorance ... because that number is a forerunner of the mark of the PERSON as it is said in the Apocalypse , Revelation , CARDINAL:CARDINAL - CARDINAL:CARDINAL ” . They claimed that they did not refuse to pay taxes but merely sought an opportunity “ to exercise freely the rights of a NORP citizen without the taxpayer 's identification number ” .

On DATE , DATE and other dates the tax inspectorate responded to their applications in the following terms :

“ An individual interacting with the tax authority is not assigned a number , he is merely issued with a certificate showing his status as a taxpayer and the taxpayer 's number . And there is an important distinction ; the number does not replace the person 's NORP name and it does not contain information on the person 's family status or relationships with parents , friends or other persons ... In any event , the taxpayer 's number is , in essence , nothing more than the number of his personal account at the tax authority . Similar numbers were introduced for accounting of payers by ORG and ORG ...

In the final document of the CARDINALth Plenary Session of ORG of ORG held in GPE on DATE the following conclusion , in particular , was made : acceptance or non - acceptance of individual numbers is not , by any means , a religious question or a sinful deed . This is a matter of personal choice that has no religious significance ... ”

The tax inspectorate informed the applicant that ORG had prepared for NORP believers a special questionnaire approved by ORG ( ORG ) on CARDINAL - CARDINAL DATE , and invited them to their offices for a discussion . It is unclear whether the applicants attended the discussion and what its outcome was .

In DATE the applicants complained to a court , claiming that the taxpayer 's number had been “ imposed on them contrary to their religious convictions ” . They submitted that the interference with their right to freedom of religion was not absolutely necessary , because their demands did not violate other citizens ' rights and because before DATE the tax system had operated without any personal numbers .

On DATE the NORP ORG of FAC gave a judgment on their complaint . Referring to ORG decision of DATE ( see below ) , ORG found that the tax inspectorate had lawfully acted within its competence and that the allocation of the taxpayer 's number did not interfere with the claimants ' private life or their right to act in accordance with their religious beliefs .

The applicants lodged a statement of appeal . They claimed that the ORG had violated their right to follow their beliefs by imposing on them a “ mark of sin ” in the form of the taxpayer 's number .

On DATE ORG upheld the judgment on appeal . It emphasised that :

“ ... the identification number does not replace the person 's name and may be used , alongside with other tax accounting data , solely for the purposes of taxation ; it does not encroach on the citizen 's person or rights . ”

On DATE ORG declared inadmissible a complaint by a group of individuals who claimed that attribution of a taxpayer 's number without the taxpayer 's consent violated their constitutional rights to respect for their private life and to freedom of religion and belief . It found , in particular , as follows :

“ The taxpayer 's number is a numerical code consisting of CARDINAL sequential digits ... Thus , any appearance in the taxpayer 's number of a certain number that might hurt the taxpayer 's religious feelings is fortuitous ; the taxpayer 's number does not replace the person 's name and shall be used , alongside with other tax data , solely for the purposes of tax accounting . Accordingly , there is no reason to assert that [ LAW ] violates the right to freedom of religion or the prohibition on collecting , storing , using and disseminating information about an individual without his or her consent . Besides , LAW does not prevent the taxpayer 's number from being changed in cases where the taxpayer 's religious convictions so require ...

Since [ LAW ] does not encroach , as such , on the claimants ' constitutional rights and freedoms , the present complaint is inadmissible ... ”

LAW of LAW ( Federal Law no . CARDINAL-FZ of DATE ) provides :

“ Every taxpayer ... shall be assigned a unique identification taxpayer 's number .

The tax authorities shall mention the taxpayer 's number in all documents sent to the taxpayer .

Every taxpayer shall mention his taxpayer 's number in all declarations , reports , statements and other documents submitted to the tax authorities ... ”

By Federal Law no . CARDINAL of DATE , the following paragraph was added to LAW :

“ Individuals who are not registered as self - employed entrepreneurs shall have the right not to mention their taxpayer 's numbers in the submitted documents on the condition that they have listed their personal data enumerated in paragraph CARDINAL of LAW [ name , date and place of birth , address , passport and citizenship ] . ”

On DATE ORG of ORG adopted an appeal to believers concerning taxpayer 's identification numbers . It held , in particular , as follows :

“ We want to state clearly : fear not the external symbols and signs , for no delusion created by the enemy to human souls may prevail the God 's grace that abounds in ORG ...

To those who attempt to link the identification numbers with the ' antichrist 's mark ' we remind that the tradition of the holy fathers understood the marks as a sign certifying deliberate repudiation of NORP ... In spite of that tradition it is occasionally claimed that a technological act allegedly may , by itself , create turmoil in the innermost depths of the human soul leading to NORP 's oblivion . Such a superstition is at variance with the NORP interpretation of the Revelation of St John the Divine , according to which the ' mark of the Beast ' will be received by those who deliberately put faith in him ' solely for the sake of his false miracles ' ( PERSON ) . No external mark may harm the spiritual health of the person unless it is a consequence of deliberate treason of GPE and profanation of faith ... ”

In DATE , ORG issued a judgment in the case of PERSON v. PERSON , CARDINAL GPE CARDINAL ( DATE ) , in which the parents of a DATE child contended that using a social security number to identify their daughter would “ steal her soul ” and violate their native NORP religious beliefs . By a majority , ORG found against the parents , holding as follows :

“ Our cases have long recognized a distinction between the freedom of individual belief , which is absolute , and the freedom of individual conduct , which is not absolute . This case implicates only the latter concern ... Never to our knowledge has the ORG interpreted LAW to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family . ORG simply can not be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens . Just as the Government may not insist that appellees engage in any set form of religious observance , so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter .

As a result , PERSON may no more prevail on his religious objection to the ORG 's use of a ORG number for his daughter than he could on a sincere religious objection to the size or color of the ORG 's filing cabinets . ORG affords an individual protection from certain forms of governmental compulsion ; it does not afford an individual a right to dictate the conduct of the ORG 's internal procedures ...

The statutory requirement that applicants provide a ORG number is wholly neutral in religious terms , and uniformly applicable . There is no claim that there is any attempt by ORG to discriminate invidiously , or any covert suppression of particular religious beliefs ...

We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons ... In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching CARDINAL of people , the Government is entitled to wide latitude ... Absent proof of an intent to discriminate against particular religious beliefs or against religion in general , the Government meets its burden [ of proof ] when it demonstrates that a challenged requirement for governmental benefits , neutral and uniform in its application , is a reasonable means of promoting a legitimate public interest ... ”

A subsequent case before ORG , Employment Div . v. PERSON , CARDINAL GPE CARDINAL ( DATE ) , concerned CARDINAL individuals who were fired from their job for ingesting peyote for sacramental purposes at a ceremony of their ORG . ORG affirmed its approach , finding as follows :

“ Although a ORG would be ' prohibiting the free exercise [ of religion ] ' in violation of the ORG if it sought to ban the performance of ( or abstention from ) physical acts solely because of their religious motivation , the ORG does not relieve an individual of the obligation to comply with a law that incidentally forbids ( or requires ) the performance of an act that his religious belief requires ( or forbids ) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons ...

The government 's ability to enforce generally applicable prohibitions of socially harmful conduct , like its ability to carry out other aspects of public policy , ' can not depend on measuring the effects of a governmental action on a religious objector 's spiritual development . ' ... To make an individual 's obligation to obey such a law contingent upon the law 's coincidence with his religious beliefs , except where the ORG 's interest is ' compelling ' – permitting him , by virtue of his beliefs , ' to become a law unto himself , ' ... – contradicts both constitutional tradition and common sense . ”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

The applicant ’s wife died on DATE leaving CARDINAL children born in DATE and DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE , on the ground that he was not entitled to widows’ benefits because he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and PERSON v. the GPE nos . CARDINAL and CARDINAL , DATE .