Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Not necessary to examine Art. 6-3;Not necessary to examine Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP citizen born in DATE , is retired and lives at his female companion ’s home in GPE . At the material time he was chairman and managing director of ORG , a wholesale wine firm , whose head office is in GPE .

In DATE , in the course of an investigation into the ORG company , customs officers seized documents relating to business transactions between ORG and foreign firms .

Thereafter , from DATE to CARDINAL DATE , the customs authorities carried out CARDINAL investigative operations in the form of interviews and of raids on ORG ’s head office , on the applicant ’s home and at other addresses of his and on the homes of other people , during which further items were seized .

Each of the house searches was made under LAW and CARDINAL of LAW ( see paragraphs CARDINAL below ) . They were conducted by officials from ORG ( " the ORG " ) in the presence of a senior police officer ( officier de police judiciaire ) ; a report was made on each of them and they all led to PERSON being subsequently interviewed .

Several such searches were made on DATE .

CARDINAL of them began at TIME at the applicant ’s GPE home , in his absence . The customs officers were received by Mr ORG ’s son ; they inspected the office and took away CARDINAL documents , some of which , according to PERSON , had no connection with the customs investigation . The son initialled the inventory of documents . The applicant , who had arrived at TIME , signed the report together with his son ; he denied having been able , as the ORG maintained , to go through the documents .

Another search began at TIME at the home of PERSON female companion , whom , the applicant claimed , the ORG officials had followed into the bathroom when she said she wanted to put on a dressing - gown . Numerous personal papers were seized .

Searches were also made of the homes of other people , who had business relations with the applicant and his company .

On DATE and CARDINAL DATE Mr ORG was questioned by customs officers .

On DATE they opened the private strongbox he had at ORG ’s head office and took CARDINAL documents from it .

On a complaint by ORG , the NORP public prosecutor ’s office began a judicial investigation in respect of PERSON and CARDINAL other people and passed the case to a local investigating judge on DATE .

On DATE this judge charged the CARDINAL with offences against the legislation and regulations governing financial dealings with foreign countries .

The customs agreed to compound with those charged ( see paragraph CARDINAL below ) - Mr Crémieux was to pay MONEY ( ORG ) and ORG FRF CARDINAL - and the judge accordingly issued a discharge order on DATE .

On DATE and CARDINAL and DATE Mr ORG applied to the GPE investigating judge for a declaration that the customs ORG reports on the facts and on the seizures were null and void .

On DATE the judge made an order that the file on the investigation in respect of PERSON and those charged with him should be sent to the GPE public prosecutor for an opinion .

The customs authorities and the public prosecutor ’s office submitted that the relevant reports were valid and the house searches lawful .

On DATE the investigating judge made an order whereby the case was referred directly to ORG of the Aix - en - Provence Court of Appeal for a decision on the lawfulness of the proceedings ( Article CARDINAL of LAW ) .

On DATE ORG held that all the impugned reports were valid .

In the terms set out below , it dismissed an application by PERSON for a declaration that ORG CARDINAL and CARDINAL of LAW had ceased to have effect in the light of the principles laid down in ORG decision of CARDINAL DATE ( ORG ) , DATE , p. CARDINAL ) :

" PERSON relied on the fact that in this decision ORG held that ‘ in order expressly to satisfy the requirements not only of the liberty of the individual and the inviolability of the home but also of the fight against customs evasion , the provisions of LAW DATE should have been accompanied by provisions and clarifications precluding any improper interpretation or practice and , accordingly , could not , as they stood , be held to be constitutional’ .

ORG , however , can not rule on the constitutionality of Articles CARDINAL and CARDINAL of LAW in whatever form or context such unconstitutionality is pleaded .

This is because LAW provides that ‘ any judge ... who stays or suspends the application of a statute ... ’ shall be guilty of criminal malfeasance in public office . "

ORG did not rule on the issue - raised by the applicant before the investigating judge - whether the disputed customs measures were compatible with LAW article CARDINAL) of the LAW .

Mr ORG appealed on points of law . In the first of his CARDINAL grounds he relied on , inter alia , the Convention :

" Violation on account of the refusal to apply Articles DATE and CARDINAL of the LAW of CARDINAL DATE and LAW ... , violation through improper application of ORG CARDINAL and CARDINAL of the Customs Code and of LAW ;

In that ORG in the judgment appealed against upheld the validity of the house searches made by customs officers accompanied by a senior police officer ( officier de police judiciaire ) DATE and CARDINAL DATE under ORG CARDINAL and CARDINAL of the Customs Code , and in particular the one made on DATE at the applicant ’s home ;

On the grounds that ORG can not rule on the constitutionality of Articles CARDINAL and CARDINAL of LAW in whatever form or context such unconstitutionality is pleaded and that LAW indeed provides that ‘ any judge ... who stays or suspends the application of a statute’ shall be guilty of criminal malfeasance in public office ;

Whereas , firstly , LAW DATE makes the right of ORG officials to search the home of an offender subject to prior judicial leave , and ORG CARDINAL and CARDINAL of the Customs Code , which did not provide for any such safeguard , before the promulgation of the LAW of CARDINAL DATE , were thus implicitly but necessarily abrogated by LAW , which , by DATE , is directly binding on the courts without that entailing any review of the constitutionality of legislation ; and ORG therefore contravened the aforementioned provisions ;

Whereas , secondly , the provisions of ORG CARDINAL and CARDINAL of the Customs Code are incompatible with those of LAW article CARDINAL) of the LAW ... , which are directly binding on national courts , LAW article CARDINAL) providing for the inviolability of the home ; and ORG thus also contravened the provisions of that treaty ;

Whereas , in the alternative , Articles CARDINAL and CARDINAL of the Customs Code , assuming that they remained in force after the promulgation of the LAW of CARDINAL DATE , require , in accordance with the provisions of the LAW , that when administrative officials search a person ’s home they must have sought and obtained prior judicial leave ; and that the report on the house search is null and void unless it mentions that this formality was complied with ; on this account likewise ORG infringed the aforementioned provisions . "

ORG dismissed the appeal on DATE . In relation to the foregoing ground it held :

" Articles CARDINAL and CARDINAL of LAW , as enacted by LAW of DATE , are legislative in nature and have never been repealed . It is accordingly not within the jurisdiction of the ordinary courts to review their constitutionality . Furthermore , the provisions they contain satisfy the requirements of LAW article CARDINAL) of the LAW ... , paragraph CARDINAL ( article CARDINAL - CARDINAL ) of which allows interference by a public authority with an individual ’s home where such interference is , inter alia , ‘ in accordance with the law and is necessary in a NORP society in the interests of national security , public safety or the economic well - being of the country , [ and ] for the prevention of disorder or crime’ . "

The criminal provisions of customs law in GPE are treated as a special body of criminal law .

CARDINAL provisions of LAW are relevant as regards these officials :

" The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries :

customs officers ;

other officials of ORG with the rank of at least inspector ;

senior police officers ( officiers de police judiciaire ) .

The reports made by senior police officers shall be forwarded to the Minister for ORG and Finance , who shall refer cases to the prosecuting authorities if he thinks fit . "

" The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in LAW code . "

When the house search was made ( DATE ) , LAW was worded as follows :

" CARDINAL . When searching for goods held unlawfully within the customs territory , except for built - up areas with a population of CARDINAL , and when searching in any place for goods subject to the provisions of LAW hereinafter , customs officers may make house searches if accompanied by a local municipal officer or a senior police officer ( officier de police judiciaire ) .

In no case may such searches be made during TIME .

ORG officers may act without the assistance of a local municipal officer or a senior police officer

( a ) in order to make searches , livestock counts , and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and

( b ) in order to look for goods which , having been followed and kept under uninterrupted surveillance as provided in LAW hereinafter , have been taken into a house or other building , even if situated outside the customs zone .

If entry is refused , customs officials may force an entry in the presence of a local municipal officer or a senior police officer . "

ORG DATE ( section CARDINAL and II ) and DATE ( section CARDINAL-III , CARDINAL ) amended LAW , which now provides :

" CARDINAL . In order to investigate and establish the customs offences referred to in ORG CARDINAL - CARDINAL and CARDINAL of this code , customs officers authorised for the purpose by the Director- General of ORG and Excise may make searches of all LOC , even private ones , where goods and documents relating to such offences are likely to be held and may seize them . They shall be accompanied by a senior police officer ( officier de police judiciaire ) .

( a ) Other than in the case of a flagrant offence ( flagrant délit ) , every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated , or a judge delegated by him .

Against such an order there shall lie only an appeal on points of law as provided in LAW ; such an appeal shall not have a suspensive effect . The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order .

The order shall contain :

( i ) where applicable , a mention of the delegation by the President of the tribunal de grande instance ;

( ii ) the address of the premises to be searched ;

( iii ) the name and position of the authorised official who has sought and obtained leave to make the searches .

The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought .

If , during the search , the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the LOC searched and in which documents , goods or other items relating to the activities referred to in paragraph CARDINAL above are likely to be found , they may , with leave given by any means by the judge who made the original order , immediately search the strongbox . Such leave shall be mentioned in the report provided for in paragraph CARDINAL(b ) below .

The judge shall take practical steps to check that each application for leave made to him is well - founded ; each application shall contain all information in the possession of the customs authorities that may justify the search .

He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress .

The search shall be carried out under the supervision of the judge who has authorised it . Where it takes place outside the territorial jurisdiction of his tribunal de grande instance , he shall issue a rogatory letter , for the purposes of such supervision , to the President of the tribunal de grande instance in the jurisdiction of which the search is being made .

The judge may go to the scene during the operation .

He may decide at any time to suspend or halt the search .

The judicial order shall be notified orally to the occupier of the LOC or his representative on the spot at the time of the search , who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph CARDINAL(b ) below . If the occupier of the LOC or his representative is absent , the judicial order shall be notified after the search by means of a registered letter with recorded delivery . Notification shall be deemed to have been made on the date of receipt entered in the record of delivery .

Failing receipt , the order shall be served as provided in Articles CARDINAL et seq . of LAW .

The time - limits and procedures for appeal shall be indicated on notification and service documents .

( b ) Searches may not be commenced before TIME or after TIME They shall be made in the presence of the occupier of the LOC or his representative ; if this is impossible , the senior police officer shall requisition CARDINAL witnesses chosen from persons not under his authority or that of the customs .

Only the customs officers mentioned in paragraph CARDINAL above , the occupier of the LOC or his representative and the senior police officer may inspect documents before they are seized .

The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of LAW ; LAW of that code shall apply .

The report , to which shall be appended an inventory of the goods and documents seized , shall be signed by the customs officers , the senior police officer and the persons mentioned in the first sub - paragraph of this section ( b ) ; in the event of a refusal to sign , mention of that fact shall be made in the report .

Where an on - the - spot inventory presents difficulties , the documents seized shall be placed under seal . The occupier of the LOC or his representative shall be informed that he may be present at the removal of the seals , which shall take place in the presence of the senior police officer ; the inventory shall then be made .

A copy of the report and of the inventory shall be given to the occupier of the LOC or his representative .

A copy of the report and the inventory shall be sent to the judge who made the order within DATE of its being drawn up .

ORG officers may act without the assistance of a senior police officer

( a ) in order to make searches , livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and

If entry is refused , customs officers may force an entry in the presence of a senior police officer . "

Article CARDINAL of the ORG Code provides :

" Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for ORG and ORG or CARDINAL of his representatives authorised for the purpose . "

The customs authorities may , in certain circumstances , compound with persons being prosecuted for customs offences or for offences against the legislation and regulations governing financial dealings with foreign countries ( LAW ) .


CASE OF CARSON AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Art. 14+P1-1

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Simon Brown

PERSON was born in DATE . She spent most of her working life in GPE , paying ORG in full , before emigrating to GPE in DATE , where she has been resident since DATE . From DATE to DATE she paid further ORG on a voluntary basis to maintain her entitlement to a full ORG retirement pension .

In DATE she became eligible for a State pension and an additional pension under LAW ( “ SERPS ” ) . She receives a total of GBP CARDINAL per week , comprising GBP CARDINAL basic State pension , GBP CARDINAL SERPS and GBP CARDINAL graduated pension . Her pension has remained fixed at this rate since DATE . Had her basic pension benefited from up - rating in line with inflation , it would now be worth GBP CARDINAL per week .

There is no State social security system in GPE . PERSON therefore contends that she is dependent on her NORP pension to support her in retirement , having no other resources other than some earnings as a writer .

PERSON brought domestic proceedings challenging the refusal to up - rate her pension : see paragraphs CARDINAL - CARDINAL below .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying ORG in full . He emigrated to GPE on his retirement in DATE and became eligible for a State pension in DATE . His basic State pension was then ORG CARDINAL.CARDINAL a week , and it has remained fixed at that level since DATE . Had his State pension benefited from up - rating since DATE it would now be worth GBP CARDINAL a week .

PERSON was born in DATE . She spent DATE working in GPE , paying ORG in full , before emigrating to GPE in DATE . She became eligible for a State pension in DATE . Her basic State pension was then GBP CARDINAL per week , and it has remained fixed at that level since DATE . Had her State pension benefited from up - rating , it would now be worth approximately ORG CARDINAL.CARDINAL per week .

PERSON was born in DATE . She spent DATE working in GPE , paying ORG in full , before retiring in DATE . She became eligible for a State pension in DATE , and emigrated to GPE in DATE , at which point her ORG pension had increased to GBP DATE . It has remained fixed at that level . Had it benefited from up - rating , it would now be worth MONEY CARDINAL a week .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying ORG in full , before retiring in DATE . He became eligible for a State pension in DATE , and emigrated to GPE in DATE , when his DATE State pension was GBP CARDINAL . It has remained fixed at that level since DATE . Had it benefited from up - rating , it would now be worth approximately GBP CARDINAL per week .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying all applicable ORG in full , before emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level since DATE . Had his State pension benefited from up - rating , it would now be worth approximately GBP CARDINAL per week .

Mr Doyle was born in DATE . He spent DATE working in GPE , paying ORG in full , before retiring in DATE and emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP CARDINAL per week , and it has remained fixed at that level since then . Had it benefited from up - rating , it would now be worth approximately GBP CARDINAL per week .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying ORG in full , before retiring and emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level since then . Had his State pension benefited from up - rating , it would now be worth MONEY CARDINAL per week .

Mr Dancer was born in DATE . He spent DATE working in GPE , paying ORG in full , before emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level . Had it benefited from up - rating , it would now be worth approximately GBP CARDINAL per week .

PERSON was born in GPE in DATE ; it appears that she remains an NORP national . She lived and worked in GPE DATE , paying ORG in full , before returning to GPE in DATE . She made further ORG for DATE , and became eligible for a GPE pension in DATE . Her basic State pension was then GBP CARDINAL per week .

DATE and DATE she spent CARDINAL her time in GPE . During this period , her pension was increased to GBP CARDINAL , which included an up - rating of the basic State pension . When she returned to GPE , her pension returned to the previous level , including a basic State pension of GBP CARDINAL . Her pension has remained at this level subsequently . Had her State pension benefited from up - rating , it would now be worth approximately GBP DATE .

Mr PERSON was born in DATE . His contributions record in the GPE qualified him for a full basic ORG pension in DATE . He emigrated to GPE in DATE , at which point his State pension had increased to GBP CARDINAL . Save for a period of DATE when he returned to GPE ( during which time his pension was increased to take into account DATE up - ratings ) , his State pension has remained fixed at that level since DATE . Had his State pension benefited from up - rating , it would now be worth approximately GBP CARDINAL per week .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying ORG in full , and became eligible for a State pension in DATE . In DATE he emigrated to GPE . His basic ORG pension was then worth ORG CARDINAL a week , and it has remained fixed at that level . Had it benefited from up - rating , it would now be worth approximately GBP CARDINAL per week .

PERSON was born in DATE . She spent DATE working in GPE DATE , paying ORG in full , before emigrating to GPE in DATE . She became eligible for a State pension in DATE . Her basic State pension was then GBP CARDINAL per week , and it has remained fixed at that level . Had it benefited from up - rating , it would now be worth approximately GBP CARDINAL per week . PERSON contends that she is ineligible for any old age security benefits from ORG , and is thus dependent on her GPE pension as a source of income .

In DATE , PERSON brought proceedings by way of judicial review to challenge the failure to index - link her pension . At first instance she was supported by ORG as an intervening party , but ORG withdrew from the proceedings before ORG and ORG .

Before ORG , PERSON based her argument on LAW No . CARDINAL taken alone and in conjunction with LAW . PERSON , in a judgment handed down on DATE ( R ( Carson ) v Secretary of ORG for Work and Pensions [ DATE ] EWHC CARDINAL ( Admin ) ) , dismissed her application for judicial review .

Applying the principles he drew from the case - law of the ORG , the judge found that the pecuniary right that fell to be protected by LAW had to be defined by the domestic legislation that created it . He found that , by the operation of the domestic legislation , PERSON had never been entitled to an up - rated pension , so that there could be no breach of LAW No . CARDINAL taken in isolation .

The matter nonetheless fell within the ambit of LAW No . CARDINAL , such that the judge had to consider whether PERSON had suffered discrimination contrary to the provisions of LAW . He held that residence , applied as a criterion for the differential treatment of citizens , was a ground within the scope of LAW ; like domicile and nationality , it was an aspect of personal status . This was not contested by the Secretary of ORG . PERSON went on , however , to dismiss the claim following the reasoning of ORG in JW and ORG v GPE ( no . CARDINAL , decision of CARDINAL DATE , Decisions and Reports ( GPE ) DATE , p. CARDINAL ) and Corner v GPE ( no . CARDINAL/CARDINAL , decision of CARDINAL DATE , unpublished ) , holding that the applicant was not in a comparable position to pensioners in countries attracting up - rating . The differing economic conditions in each country , including local social security provision and taxation , made it impossible simply to compare the amount in sterling received by pensioners .

PERSON found that , in the alternative , even if the applicant could claim to be in an analogous position to a pensioner in GPE or a country where up - rating was paid subject to a bi - lateral agreement , the difference in treatment could be justified . He considered that the Government had a considerable margin of appreciation , that there was a lack of consistency in ORG practice , and that the limitation had been publicised for some time . He declined to accept that the payment of an up - rated pension in CARDINAL country ( or several ) meant that there was an obligation under LAW to pay up - rated pensions to all pensioners living abroad . He found that the illogicality in the scope of bilateral agreements reflected their political nature , the relative complexity of the issue , and historical factors . He therefore concluded that the “ remedy of the expatriate GPE pensioners who do not receive up - rated pensions is political , not judicial . The decision to pay them up - rated pensions must be made by ORG . ”

PERSON appealed to ORG , which dismissed her appeal on DATE ( R ( Carson and PERSON ) v Secretary of ORG for Work and Pensions [ DATE ] EWCA Civ CARDINAL ) . For similar reasons to ORG , ORG Justice PERSON , Laws and PERSON ) found that , since LAW No . CARDINAL conferred no right to acquire property , the failure to up - rate PERSON pension gave rise to no violation of that provision .

As to the complaint under LAW in conjunction with LAW , ORG noted that the Secretary of ORG accepted that place of residence constituted a “ status ” for the purposes of the LAW . However , it found that the applicant was in a materially different position to those she contended were her comparators . In this connection it was significant that the legislative scheme was entirely geared toward the impact of price inflation in GPE , such that it would be “ inescapable that [ an annual up - rate ] being awarded across the board to all ... pensioners [ in PERSON position ] would have random effects . ”

ORG also considered , in the alternative , the question of justification and found that the “ true ” justification of the refusal to pay the up - rate was that PERSON and those in her position “ had chosen to live in societies , more pointedly economies , outside GPE where the specific rationale for the uplift may by no means necessarily apply . ” ORG thus considered the decision to be objectively justified without reference to what they accepted would be the “ daunting cost ” of extending the up - rate to those in PERSON position . Moreover , the cost implications were “ in the context of this case a legitimate factor going in justification for the Secretary of ORG 's position , ” because to accept PERSON arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by LAW DATE , the jurisprudence of this ORG or by a “ legal imperative ” which was sufficiently pressing to justify confining and circumscribing the elected Government 's macro - economic policies .

PERSON appealed to ORG , relying on LAW read together with LAW . Her appeal was dismissed on DATE by a majority of CARDINAL ( R ( Carson and PERSON ) v. NORP Secretary of ORG [ DATE ] ORG CARDINAL ) .

The majority ( Lords PERSON of GPE , PERSON , PERSON of PERSON and PERSON of Gestinghope ) accepted that a retirement pension fell within the scope of LAW No . CARDINAL and that LAW was thus applicable . They further assumed that a place of residence was a personal characteristic and amounted to “ any other status ” within the meaning of LAW , and was thus a prohibited ground of discrimination . However , because a person could choose where to live , less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic , such as race or sex .

The majority observed that in certain cases it was artificial to treat separately the questions , first , whether an individual complaining of discrimination was in an analogous position to a person treated more favourably and , secondly , whether the difference in treatment was reasonably and objectively justified . In the present case , the applicant was not in an analogous , or comparable position , to a pensioner resident in GPE or resident in a country with a bilateral agreement with GPE . GPE pension was CARDINAL element in an interconnected system of taxation and social security benefits , designed to provide a basic standard of living for the inhabitants of GPE . It was funded partly from ORG of those currently in employment and their employers , and partly out of general taxation . The pension was not means tested , but pensioners with a high income from other sources paid some of it back to the ORG in income tax . Those with low incomes might receive other benefits , such as income support . The provision for index - linking was intended to preserve the value of the pension in the light of economic conditions , such as the cost of living and the rate of inflation , within GPE . Quite different economic conditions applied in other countries : for example , in GPE , where PERSON lived , although there was virtually no social security , the cost of living was much lower , and the value of the rand had dropped in DATE compared to sterling .

Lord PERSON , who gave one of the majority opinions , put the arguments as follows :

“ CARDINAL . The denial of a social security benefit to PERSON on the ground that she lives abroad can not possibly be equated with discrimination on grounds of race or sex . It is not a denial of respect for her as an individual . She was under no obligation to move to GPE . She did so voluntarily and no doubt for good reasons . But in doing so , she put herself outside the primary scope and purpose of the GPE social security system . Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country . They are an expression of what has been called social solidarity or fraternité ; the duty of any community to help those of its members who are in need . But that duty is generally recognised to be national in character . It does not extend to the inhabitants of foreign countries . That is recognised in treaties such as ORG ( Minimum Standards ) Convention DATE ( article CARDINAL ) and LAW .

Mr PERSON , who appeared for PERSON , accepted the force of this argument . He agreed in reply that she could have no complaint if GPE had rigorously applied the principle that GPE social security is for GPE residents and paid no pensions whatever to people who had gone to live abroad . And he makes no complaint about the fact that she is not entitled to other social security benefits like jobseeker 's allowance and income support . But he said that it was irrational to recognise that she had an entitlement to a pension by virtue of her contributions to ORG and then not to pay her the same pension as GPE residents who had made the same contributions .

The one feature upon which PERSON seizes as the basis of her claim to equal treatment ( but only in respect of a pension ) is that she has paid the same national insurance contributions . That is really the long and the short of her case . In my opinion , however , concentration on this single feature is an over - simplification of the comparison . The situation of the beneficiaries of GPE social security is , to quote ORG in PERSON ( DATE ) CARDINAL EHRR CARDINAL , CARDINAL , para . CARDINAL , ' characterised by a corpus of rights and obligations of which it would be artificial to isolate CARDINAL specific aspect ' .

In effect PERSON argument is that because contributions are a necessary condition for the retirement pension paid to GPE residents , they ought to be a sufficient condition . No other matters , like whether one lives in GPE and participates in the rest of its arrangements for taxation and social security , ought to be taken into account . But that in my opinion is an obvious fallacy . National insurance contributions have no exclusive link to retirement pensions , comparable with contributions to a private pension scheme . In fact the link is a rather tenuous one . National insurance contributions form a source of part of the revenue which pays for all social security benefits and ORG ( the rest comes from ordinary taxation ) . If payment of contributions is a sufficient condition for being entitled to a contributory benefit , PERSON should be entitled to all contributory benefits , like maternity benefit and job - seekers allowance . But she does not suggest that she is .

The interlocking nature of the system makes it impossible to extract CARDINAL element for special treatment . The main reason for the provision of state pensions is the recognition that the majority of people of pensionable age will need the money . They are not means - tested , but that is only because means - testing is expensive and discourages take - up of the benefit even by people who need it . So state pensions are paid to everyone whether they have adequate income from other sources or not . On the other hand , they are subject to tax . So the state will recover part of the pension from people who have enough income to pay tax and thereby reduce the net cost of the pension . On the other hand , those people who are entirely destitute would be entitled to income support , a non - contributory benefit . So the net cost of paying a retirement pension to such people takes into account the fact that the pension will be set off against their claim to income support .

None of these interlocking features can be applied to a non - resident such as PERSON . She pays no GPE income tax , so the state would not be able to recover anything even if she had substantial additional income . ( Of course I do not suggest that this is the case ; I have no idea what other income she has , but there will be expatriate pensioners who do have other income ) . Likewise , if she were destitute , there would be no saving in income support . On the contrary , the pension would go to reduce the social security benefits ( if any ) to which she is entitled in her new country .

ORG and private pensions

It is , I suppose , the words ' insurance ' and ' contributions ' which suggest an analogy with a private pension scheme . But , from the point of view of the citizens who contribute , national insurance contributions are little different from general taxation which disappears into the communal pot of the consolidated fund . The difference is only a matter of public accounting . And although retirement pensions are presently linked to contributions , there is no particular reason why they should be . In fact ( mainly because the present system severely disadvantages women who have spent time in the unremunerated work of caring for a family rather than earning a salary ) there are proposals for change . Contributory pensions may be replaced with a non - contributory ' citizen 's pension ' payable to all inhabitants of this country of pensionable age . But there is no reason why this should mean any change in the collection of national insurance contributions to fund the citizen 's pension like all the other non - contributory benefits . On PERSON argument , however , a change to a non - contributory pension would make all the difference . Once the retirement pension was non - contributory , the foundation of her argument that she had ' earned ' the right to equal treatment would disappear . But she would have paid exactly the same national insurance contributions while she was working here and her contributions would have had as much ( or as little ) causal relationship to her pension entitlement as they have DATE .

For these reasons it seems to me that the position of a non - resident is materially and relevantly different from that of a GPE resident . I do not think , with all respect to my noble and learned friend , Lord PERSON , that the reasons are subtle and arcane . They are practical and fair . Furthermore , I think that this is very much a case in which ORG is entitled to decide whether the differences justify a difference in treatment . It can not be the law that GPE is prohibited from treating expatriate pensioners generously unless it treats them in precisely the same way as pensioners at home . Once it is accepted that the position of PERSON is relevantly different from that of a GPE resident and that she therefore can not claim equality of treatment , the amount ( if any ) which she receives must be a matter for ORG . It must be possible to recognise that her past contributions gave her a claim in equity to some pension without having to abandon the reasons why she can not claim to be treated equally . And in deciding what expatriate pensioners should be paid , ORG must be entitled to take into account competing claims on public funds . To say that the reason why expatriate pensioners are not paid the DATE increases is to save money is true but only in a trivial sense : every decision not to spend more on something is to save money to reduce taxes or spend it on something else .

I think it is unfortunate that the argument for the Secretary of ORG placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad . It is unnecessary for the Secretary of ORG to try to justify the sums paid with such nice calculations . It distracts attention from the main argument . Once it is conceded , as PERSON accepts , that people resident outside the GPE are relevantly different and could be denied any pension at all , ORG does not have to justify to the courts the reasons why they are paid CARDINAL sum rather than another . Generosity does not have to have a logical explanation . It is enough for the Secretary of ORG to say that , all things considered , ORG considered the present system of payments to be a fair allocation of available resources .

The comparison with residents in treaty countries seems to me to fail for similar reasons . PERSON was able to point to government statements to the effect that there was no logical scheme in the arrangements with treaty countries . They represented whatever the GPE had from time to time been able to negotiate without placing itself at an undue economic disadvantage . But that seems to me an entirely rational basis for differences in treatment . The situation of a GPE expatriate pensioner who lives in a country which has been willing to enter into suitable reciprocal social security arrangements is relevantly different from that of a pensioner who lives in a country which has not . The treaty enables the government to improve the social security benefits of GPE nationals in the foreign country on terms which it considers to be favourable , or at least not unduly burdensome . It would be very strange if the government was prohibited from entering into such reciprocal arrangements with any country ( for example , as it has with the ORG countries ) unless it paid the same benefits to all expatriates in every part of the world . ”

Lord PERSON , dissenting , found that PERSON could properly be compared to other contributing pensioners living in GPE or other countries where their pensions were up - rated . He continued :

“ How persons spend their income and where they do so are matters for their own choice . Some may choose to live in a country where the cost of living is low or the exchange rate favourable , a course not uncommon in previous generations , which may or may not carry with it disadvantages , but that is a matter for their personal choice . The common factor for purposes of comparison is that all of the pensioners , in whichever country they may reside , have duly paid the contributions required to qualify for their pensions . If some of them are not paid pensions at the same rate as others , that in my opinion constitutes discrimination for the purposes of LAW

Lord PERSON therefore considered that the appeal turned on the question of justification . He accepted that the courts should be slow to intervene in questions of macro - economic policy . He further accepted that , had the Government put forward sufficient reasons of economic or ORG policy to justify the difference in treatment , he should have been properly ready to yield to its decision - making power in those fields . However , in the present case the difference in treatment was not justified : as ORG itself accepted , the reason all pensions were not up - rated was simply to save money , and it was not fair to target the applicant and others in her position .

In GPE , GPE pension is a contributory benefit payable from pensionable age to an individual who , for a requisite number of DATE during his or her “ working life ” , has paid or been credited with contributions to ORG ( see ORG DATE : “ the DATE LAW ) . ORG , payable by earners , employers and others under LAW , together with taxation , provide funds for the payment of a number of benefits , including the state retirement pension , job - seekers ' allowance , incapacity benefit , maternity allowance and survivors ' benefits . Contributions also part - fund ORG .

Section CARDINAL(CARDINAL ) of the DATE Act set the DATE rate of the basic pension at GBP CARDINAL . In DATE the Secretary of ORG is obliged by virtue of CARDINAL of ORG DATE to review the sum specified in section CARDINAL ) of the DATE Act in order to determine whether it has retained its value “ in relation to the general level of prices obtaining in GPE ” and to lay an up - rating order before ORG where it appears to him that the general level of prices has risen . The draft order must increase the sum specified in section CARDINAL ) by a percentage which is no less than the increase in general inflation . Provided that ORG approves the draft order , then by virtue of section CARDINAL ) of the DATE Act , the basic State pension is up - rated DATE in line with GPE inflation .

Section CARDINAL(CARDINAL ) of the DATE LAW creates a general rule withholding benefits , including pensions , from all expatriates :

“ Except where regulations otherwise provide , a person shall be disqualified for receiving [ benefits including the ORG pension ] for any period during which the person –

is absent from GPE ; ... ”

NORP However , section CARDINAL(CARDINAL ) of the DATE LAW provides that the Secretary of ORG may adopt secondary legislation allowing for a person resident overseas to receive any benefit to which he or she would be entitled if living in GPE . Regulation CARDINAL(CARDINAL ) of ORG Regulations DATE ( SI DATE No . CARDINAL : “ the DATE Regulations ” ) , made under a similar provision in earlier legislation , provides , so far as material :

“ Subject to the provisions of this regulation and of regulation CARDINAL below , a person shall not be disqualified for receiving ... a retirement pension of any category ... by reason of being absent from GPE . ”

Regulation CARDINAL of LAW , however , provides that a person not ordinarily resident in GPE shall , unless or until he or she becomes resident there again , be disqualified from receiving up - rated benefits .

The Regulations applicable at the time that PERSON started her claim before the GPE courts were ORG Up - rating Regulations DATE , SI CARDINAL ( “ the DATE Regulations ” ) . Regulation DATE Regulations provided for the application of the disqualification to the additional benefit payable by virtue of ORG Up - rating ( No CARDINAL ) Order CARDINAL , SI DATE No . CARDINAL including the up - rating of the retirement pension introduced by DATE order with effect from DATE :

“ Regulation CARDINAL of ORG Regulations DATE ( application of disqualification in respect of up - rating of benefit ) shall apply to any additional benefit payable by virtue of the Up - rating Order . ”

The Regulations were publicised in a series of leaflets produced by ORG and routinely sent to GPE residents and former residents who , for example , applied to pay voluntary ORG from abroad .

By section CARDINAL(CARDINAL ) of ORG DATE , the Queen is empowered by ORG to make provision for modifying or adapting the relevant legislation in its application to cases affected by an agreement with a country outside GPE which provides for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of the CARDINAL Act . The purpose of a reciprocal agreement is to provide a reciprocal basis for wider social security cover to workers and their families moving between ORG than is available under national legislation alone . Reciprocal agreements are not entered into solely to allow for payment of DATE up - rating increases to recipients of GPE pensions resident abroad . Cover under reciprocal agreements varies . Each results from negotiations between GPE and the partner ORG , taking into account the scope for reciprocity between the CARDINAL social security schemes .

DATE GPE entered into bilateral agreements , or reciprocal social security agreements , with a number of foreign States , principally GPE , GPE , GPE , GPE , GPE , GPE and GPE . With CARDINAL minor exception , the agreements entered into force after DATE fulfilled earlier commitments given by ORG . Agreements with GPE , GPE and GPE , where the majority of NORP expatriate pensioners live , came into force in DATE , DATE and DATE respectively ; however they did not require payment of up - rated pensions . The agreement with GPE was terminated by GPE with effect from DATE , because of the refusal of ORG to pay up - rated pensions to its pensioners living in GPE . Up - rating has never been applied to those living in GPE , GPE , GPE and GPE .

The EC Regulations on social security for migrant workers ( Regulation ( ORG ) No CARDINAL/CARDINAL , as updated ) require up - rating of benefits throughout ORG .

The existence of a bilateral agreement is not necessary for the uprate to be paid , as the question is regulated purely by domestic legislation . However , it is the case that up - rating is not applied for nonresident pensioners save where a bilateral agreement is in place .

In ORG ( DATE ) of ORG ( Up - rating of ORG to ORG ; ORG Paper CARDINAL ) , the ORG reported that :

“ It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for up - rating . ”

On DATE the Minister of State ( Mr PERSON ) in a statement in ORG ( CARDINAL ORG Official Report ( CARDINALth Series ) col CARDINAL ) concluded as follows :

“ I have already said I am not prepared to defend the logic of the present situation . It is illogical . There is no consistent pattern . It does not matter whether a country is in the ORG or outside it . We have arrangements with some ORG countries and not with others . Indeed , there are differences among NORP countries . This is an historical issue and the situation has existed for DATE . It would cost MONEY to change the policy for all concerned . ”

ORG ( Minimum Standards ) Convention DATE , provides in LAW :

Article CARDINAL

“ A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Convention may be suspended to such extent as may be prescribed –

( a ) as long as the person concerned is absent from the territory of the Member ; ... ”

The above provision is echoed in LAW , DATE , which is CARDINAL of the basic standard - setting instruments of ORG in the field of social security :

“ A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Code may be suspended to such extent as may be prescribed :

as long as the person concerned is absent from the territory of ORG concerned ; ... ”

Many GPE impose some restriction on payment of benefits outside their territory . It appears , however , that GPE is unique in continuing to pay a pension to expatriates while restricting the extent to which expatriates living in certain countries can benefit from index - linking .

The applicants have also annexed to their application witness statements from civil servants working for the NORP and ORG . The former was produced in the context of the domestic proceedings brought by PERSON ; the latter has been produced in the context of the current application to this ORG . The NORP statement is to the effect that : ( CARDINAL ) the approach of ORG has a detrimental effect on most of the CARDINAL GPE pensioners resident in GPE ; ( CARDINAL ) the formal view of ORG is that the approach of GPE does amount to unlawful discrimination ; ( CARDINAL ) in DATE GPE terminated its ORG with GPE because of ORG refusal to provide up - rating of pensions to its nationals residing in GPE ; and ( CARDINAL ) NORP pensioners resident in GPE enjoy the same DATE indexation of their pensions as those resident in GPE .

The NORP statement is to the effect that : ( CARDINAL ) ORG approach directly affects virtually all the CARDINAL NORP pensioners resident in GPE ; ( CARDINAL ) indexation is a universal feature of social security systems and GPE policy of arbitrarily restricting its application in respect of certain individuals is clearly discriminatory and contrary to acceptable international practice in the realm of public pensions ; and ( CARDINAL ) GPE failure to index pensions into GPE is the reason why no arrangements on benefits or removal of barriers of exportability are contained in the GPE / ORG .


CASE OF VgT VEREIN GEGEN TIERFABRIKEN v. SWITZERLAND

Preliminary objection rejected (abuse of right of petition);Violation of Art. 10;No violation of Art. 13;No violation of Art. 14;Costs and expenses partial award

The aim of the applicant association is the protection of animals , with particular emphasis on animal experiments and industrial animal production .

As a reaction to various television commercials of the meat industry , the applicant association prepared a television commercial lasting TIME and consisting of CARDINAL scenes .

The first scene of the film showed a sow building a shelter for her piglets in the forest . Soft orchestrated music was played in the background , and the accompanying voice referred , inter alia , to the sense of family which sows had . The second scene showed a noisy hall with pigs in small pens , gnawing nervously at the iron bars . The accompanying voice stated , inter alia , that the rearing of pigs in such circumstances resembled concentration camps , and that the animals were pumped full of medicaments . The film concluded with the exhortation : “ Eat less meat , for the sake of your health , the animals and the environment ! ”

On DATE the applicant association , wishing this film to be broadcast in the programmes of ORG ( Schweizerische Radio- und Fernsehgesellschaft ) , sent a videocassette to ORG für das Werbefernsehen , now called GPE ) responsible for television advertising .

On DATE ORG informed the applicant association that it would not broadcast the commercial in view of its “ clear political character ” . The company pointed out that an alternative solution would be a film showing the merits of a decent rearing of animals and informing viewers that they were free to enquire into the origin of the meat which they were buying .

By a letter of DATE the applicant association requested a decision against which it could file an appeal . On DATE ORG replied that it was not an official authority giving decisions which could be contested . Nevertheless , it would be willing to convene a meeting to discuss other possibilities in the presence of a legal adviser .

By a letter of DATE the applicant association stated that it was not prepared to accept changes to its commercial . It requested a statement of the reasons for the decision and information as to the supervisory authority with which an appeal could be filed .

By a letter of DATE ORG declined the applicant association ’s requests as follows :

“ As you have refused the discussion which we have proposed , we see no reason to enter into your propositions as set out in your letters of CARDINAL and DATE . We regret this development as it serves neither you nor us . We confirm that we can not broadcast your commercial in the proposed form as it breaches section CARDINAL of ORG [ Radio- und ORG ] as well as our general conditions of business [ PERSON ] . In addition , ORG can not be obliged to broadcast commercials which damage its business interests and involve its editorial rights . ”

On DATE the applicant association filed a complaint with ORG ( PERSON für ORG ) , complaining of the refusal to broadcast the commercial . The latter informed the applicant association on DATE that it could only deal with appeals complaining about programmes which had already been broadcast , but that it would transmit the complaint to ORG ( GPE für GPE ) . ORG informed the applicant association on DATE that within the framework of the broadcasting provisions ORG was free to purchase commercials and choose its contractual partners as it wished . It further stated that it considered the complaint to be a disciplinary report , and that it saw no reason to take proceedings against ORG .

On DATE the applicant association filed a complaint with ORG and ORG ( Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement ) , which was dismissed on DATE . In its decision , it found , inter alia , that ORG was the sole institution to provide information in respect of home news ( Inlandsberichterstattung ) . In respect of commercial broadcasts , however , the company was in competition with local , regional and foreign broadcasters , and the applicant association was not obliged to have its commercial broadcast over the channels of the company . Moreover , the company acted in matters of advertising as a private entity and did not fulfil a duty of public law when it broadcast commercials . ORG concluded that ORG could not be ordered to broadcast the commercial at issue .

The applicant association ’s administrative - law appeal ( PERSON ) , filed by a lawyer and dated DATE , was dismissed by ORG ( Bundesgericht ) on DATE . The court noted , with reference to LAW , that ORG should have formally afforded the applicant association the opportunity to institute complaints proceedings which , if necessary , could have remedied the matter . As the case was ready for decision , ORG undertook the decision itself . It then balanced the various issues at stake .

The judgment proceeded to explain the position of ORG in NORP law . The company no longer enjoyed a monopoly and was increasingly subject to foreign competition . However , this did not alter the fact that , according to the applicable law , ORG continued to operate in the area of programming within the framework of public - law duties with which it was entrusted . The law itself granted it a licence for the broadcasting of national and linguistic regional programmes .

ORG further considered that LAW ) ; in the version applicable at the relevant time , ensured the independence of radio and television broadcasting as well as autonomy in programming . However , advertising fell outside the programming obligations of ORG , the programming activity presupposing an assessment of the informative content by an editor . Only programming activities were covered by LAW bis of LAW and section CARDINAL of ORG ( Bundesgesetz über ORG ) . Viewers should not be influenced in their opinions by CARDINAL - sided , unobjective or insufficiently varied contributions which disregarded journalistic obligations . Commercials , on the other hand , were by their very nature CARDINAL - sided as they were in the interest of the advertiser , and were by definition excluded from a critical assessment . For this reason , pursuant to section CARDINAL ) of ORG , they had to be clearly separated from programmes and recognisable as such . Indeed , ORG dealt with advertising and financing , rather than with programming . Furthermore , no right to broadcast a commercial could be derived from the principle of the diversity of programmes or the fact that a competitor ’s commercial had already been authorised . The judgment continued :

“ Until DATE [ advertising ] was completely prohibited on radio and television . Subsequently , it was allowed on television , although it was subject to restrictions in the interests of an optimal implementation of programming duties and to protect other important public interests ( youth , health , diversity of the press ) . Section CARDINAL of ORG DATE assumes in principle that advertising is admissible but subject to certain limitations . Thus , section PERSON ) of ORG prohibits religious and political advertising as well as advertising for alcoholic beverages , tobacco and medicaments . ORG may enact further advertising prohibitions for the protection of juveniles and the environment ... On this basis , section CARDINAL of ORG was given a more concrete form in sections CARDINAL et seq . of ORG . These provisions contain no obligation whatsoever to broadcast commercials , and do not declare that advertising is a public - law duty of the broadcaster . ”

In respect of the applicant association ’s complaint under LAW , ORG found that the prohibition of political advertising laid down in section PERSON ) of ORG served various purposes :

“ It should prevent financially powerful groups from obtaining a competitive political advantage . In the interest of the democratic process it is designed to protect the formation of public opinion from undue commercial influence and to bring about a certain equality of opportunity among the different forces of society . The prohibition contributes towards the independence of the radio and television broadcasters in editorial matters , which could be endangered by powerful political advertising sponsors . According to the NORP law on communication the press remains the most important means for paid political advertising . Already , financially powerful groups are in a position to secure themselves more space ; admitting political advertising on radio and television would reinforce this tendency and substantially influence the democratic process of opinion - forming – all the more so as it is established that with its dissemination and its immediacy television will have a stronger effect on the public than the other means of communication ... Reserving political advertising to the print media secures for them a certain part of the advertising market and thereby contributes to their financing ; this in turn counteracts an undesirable concentration of the press and thus indirectly contributes to the pluralistic system of media required under LAW ... ”

ORG observed that the applicant association had other means of disseminating its political ideas , for instance in foreign programmes which were broadcast in GPE , or in the cinema and the press . ORG had offered the applicant association other possibilities and was also willing to convene a meeting to discuss them with it in the presence of a legal adviser .

In respect of the applicant association ’s complaint about discrimination , ORG found that it was complaining of CARDINAL situations which were not comparable with each other . Promotions by the meat industry were economic in nature in that they aimed at increasing turnover and were not related to animal protection . On the other hand , the applicant association ’s commercial , exhorting reduced meat consumption and containing shocking pictures , was directed against industrial animal production . The applicant association was frequently active in the media in order to pursue its aims . In DATE it had filed a disciplinary complaint in this respect with ORG . The matter became a political issue early in DATE when ORG commented on the matter .

Article CARDINAL bis of LAW , in the version applicable at the relevant time , provided :

“ CARDINAL . Legislation on radio and television ... comes within the jurisdiction of the ORG .

Radio and television shall contribute to cultural development and the free expression of opinions as well as to the entertainment of the audience . They shall consider the particularities of the country and the requirements of the cantons . They shall describe facts objectively and fairly reflect the variety of views .

Within the framework of paragraph CARDINAL , the impartiality of radio and television as well as autonomy in the creation of programmes shall be guaranteed . ... ”

These provisions have been enshrined in LAW currently in force .

ORG , referring to LAW , in principle requires a licence to broadcast radio and television programmes . LAW grants the licence for national and linguistic regional programmes to ORG . LAW stipulates that the programmes shall be objective and fairly reflect the plurality of events and opinions .

ORG has transferred all aspects of the acquisition and organisation of television advertising to ORG ( now called GPE ) , which is a company established under private law whose activities do not depend on a licence .

Commercials are broadcast between programmes at various times of DATE . In respect of advertising , ORG provides as follows :

“ Section CARDINAL Advertising

Advertising shall be clearly separated from the rest of the programme and shall be clearly recognisable as such . The permanent programme staff of the broadcaster shall not participate in the broadcasting of commercials ...

Religious and political advertising is prohibited , as is advertising for alcoholic beverages , tobacco and medicaments . To protect juveniles and the environment , ORG may ban other advertisements . ”

In its message ( PERSON ) of CARDINAL DATE to ORG , ORG explained that the prohibition of political advertising “ should prevent financially powerful groups from obtaining a competitive political advantage ” ( PERSON , vol . III , p. CARDINAL ) .

Section CARDINAL of ORG provides as follows :

“ LAW advertising

The following shall be prohibited :

( a ) NORP religious and political advertising ;

( b ) advertising for alcoholic beverages and tobacco ;

( c ) advertising for medicaments in respect of which public advertising is not authorised by medical law ;

( d ) untrue or misleading advertising or advertising which constitutes unfair competition ;

( e ) advertising which profits from the natural credulity of children or the lack of experience of youth or abuses their feelings of attachment ;

( f ) subliminal advertising ... ”


András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE . He explained that he sought in all of his work to promote a rapprochement between NORP and NORP .

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

In its issue of CARDINAL DATE , the newspaper ORG published an article written by the applicant , entitled “ The obscurity of error ” concerning the papal encyclical “ The Splendour of Truth ” ( “ PERSON ” ) , which had been published at DATE .

On DATE the association ORG against Racism and for PERSON for the NORP and ORG ( ORG générale contre le racisme et pour le respect de l'identité française et chrétienne ( AGRIF ) ) brought proceedings before ORG against Mr P. Tesson , publishing director of the newspaper , the applicant and the newspaper ORG , as author , accomplice and the entity civilly liable respectively , alleging that , through publication of the above - mentioned article , they had made racially defamatory statements against the NORP community , an offence punishable under section DATE , second paragraph , of the Freedom of the Press Act of DATE . In particular , they referred to the following passages :

“ ORG sets itself up as the sole keeper of divine truth ... It strongly proclaims the fulfilment of FAC in the New , and the superiority of the latter ...

... Many NORP have acknowledged that scriptural anti - Judaism and the doctrine of the ' fulfilment ' [ accomplissement ] of LAW in the New led to anti - Semitism and prepared the ground in which the idea and implementation [ accomplissement ] of FAC took seed . ”

By a judgment of DATE , ORG dismissed the objections of invalidity raised by the applicant and , inter alia , committed the case for trial . By a judgment of DATE , ORG found established the offence of publicly defaming a group of persons on the ground of membership of a religion , in this case the NORP community . The publishing director and the applicant were both ordered to pay a fine of MONEY ( ORG ) .

ORG found the ORG 's civil application admissible and ordered the publishing director and the applicant , jointly and severally , to pay the association MONEY in damages and FRF CARDINAL in application of LAW . In addition , the court ordered that its decision be published , at the defendants ' expense up to ORG CARDINAL , in a national newspaper . In its judgment , it stated , inter alia :

“ ORG , which is described as holding , exclusively and in error , divine truth , is accused of proclaiming its attachment to the doctrine of the fulfilment of FAC in LAW , a doctrine that was reaffirmed in the encyclical ' The Splendour of Truth ' . It is also stated that anti - Judaism in the Scriptures and this doctrine of fulfilment ' led to anti - Semitism and prepared the ground in which the idea and implementation of FAC took seed ' .

Thus , according to the author of the text , not only the idea , but even the implementation of the massacres and horrors committed at FAC , the symbol of the NORP extermination camps , was a direct extension of CARDINAL of the core doctrines of the NORP faith , namely the doctrine of the fulfilment of LAW in the New , and thus directly engages the responsibility of NORP and , more generally , NORP .

Such a statement clearly undermines the honour and character of NORP and , more specifically , the NORP community , and is covered by the provisions of section CARDINAL , second paragraph , of the [ Freedom of the Press Act ] of CARDINAL DATE .

... the causal link between membership of a religion and the events imputed by the impugned remarks is certainly present in this case : it is because they adhere to a religion that has allegedly displayed anti - Semitism in its past and because they acknowledge the status of the papal encyclical and the doctrine of fulfilment asserted in it that NORP and NORP are accused of bearing some responsibility for the FAC massacres .

... Even if the defendant was entitled to condemn ORG 's historical NORP and to alert the reader to any new expression or resurgence of that sentiment , by pointing out that , historically , the various NORP churches have sometimes accepted or even encouraged the idea of ' the teaching of contempt ' with regard to the NORP people , who are described as deicidal , he nevertheless had no right , when the new papal encyclical was published reaffirming the doctrine of ' fulfilment ' , to use extreme terms and , through a process of generalisation , to hold the NORP community responsible for the NORP massacres at FAC .

The witnesses questioned at the hearing , at the defendant 's request and in support of his allegation of good faith , all claimed that NORP , a racist and biological doctrine , was totally unconnected to the historical anti - NORP of NORP and the doctrine of ' fulfilment ' , which concerns the full realisation of the law of God 's old alliance with his people in the new alliance born of GPE 's sacrifice .

Finally , the confusion made between , on the CARDINAL hand , NORP anti - NORP and the encyclical ' The Splendour of Truth ' , which Mr PERSON furthermore refrained from commenting on during the hearing , and , on the other hand , the persecution of the NORP in FAC , reflects personal animosity on the part of the defendant and resentment towards the NORP community which lack good faith , since the disputed statements go well beyond theoretical and theological discussion .

In this regard , the ORG notes the deliberate use of the same word ' accomplissement ' to describe the organisation of the massacres in FAC and the doctrine reaffirmed by the Pope in his encyclical .

It follows from these elements as a whole that proof of the defendant 's good faith has not been provided . ”

The applicant appealed . In a judgment of CARDINAL DATE , ORG upheld , in so far as it concerned the applicant , the judgment of DATE and overturned the judgment of CARDINAL DATE . ORG acquitted the applicant and dismissed the civil party 's claims against him . In particular , it held that :

“ ... in his article , PERSON criticises the encyclical ' The Splendour of Truth ' for , in essence , enshrining within the body of theological principles the doctrine of the ' fulfilment ' of LAW in the New , a doctrine he considered to contain the seeds of anti - Semitism ; this criticism is expressed unambiguously in the penultimate paragraph of the article ... ;

... the contention in PERSON statements may be summarised as follows : certain principles of the NORP religion are tainted with anti - Semitism and contributed to the Holocaust ;

... the ORG is fully aware of the reactions such an article could evoke within the NORP community , even if the author claims to be reflecting the opinion of ' many NORP ' ;

... nonetheless , ... in criticising the encyclical ' The Splendour of Truth ' so strongly , PERSON opened a discussion that was both theological and historical on the scope of certain religious principles and on the origins of the Holocaust ; given that it concerns exclusively doctrinal debate , the argument put forward by this author is not , as a matter of law , a specific fact that could amount to defamation ... ”

The ORG appealed on points of law . In a judgment of DATE , ORG quashed the judgment of ORG , “ but only in so far as it concerned the civil action , all other provisions being expressly upheld ” . It remitted the case to ORG . ORG stated :

“ ... by ruling in this way , although the impugned statements imputed incitement to anti - Semitism and responsibility for the massacres committed at FAC to the NORP community , ORG did not give a legal basis to its decision ;

The judgment falls to be quashed , but only in respect of the civil action ... ”

In a judgment of DATE , ORG , ruling on the civil claims and following ORG analysis , upheld the judgments of DATE and CARDINAL DATE in so far as they concerned the applicant . ORG made a new award of ORG CARDINAL to the AGRIF on the basis of LAW . It also ordered that the following statement be published , at the defendant 's expense , in a national newspaper of the civil party 's choice :

“ By a judgment of DATE , ORG ordered PERSON , journalist , to pay ORG and for Respect for the NORP and ORG ( ORG ) CARDINAL FRANC ( CARDINAL ) in damages , on the ground that he had committed the offence of public defamation against a group of persons on account of their membership of a religion , in the instant case the NORP community , through his publication of ... an article entitled ' As regards the PERSON “ The Splendour of Truth ” , The obscurity of error ... ' ” .

NORP In its judgment , ORG noted , inter alia :

“ ... The defendant is wrong in denying that he accused NORP and , more generally , NORP of being responsible for the NORP massacres ; it is of little importance that this responsibility is viewed in a more or less long - term perspective , given the use of the expression ' prepared the ground ' ;

It emerges , after analysis of the documents submitted , that neither the PERSON nor the [ NORP ] Church of GPE alleges the direct responsibility of NORP in the extermination at FAC ;

Thus , on account of their membership of a religion , NORP are indeed victims of the offence of defamation ;

... the virulence of the article 's general tone , the parallel made between the ' doctrine of fulfilment ' and the ' implementation of Auschwitz ' and even the use of this last word , which is sufficient in itself to evoke both genocide and the extermination of opponents of the NORP regime , rule out the possibility of the author 's good faith ... ”

NORP The applicant appealed on points of law . As part of the single argument set out in support of his appeal , he referred to LAW and claimed that his objective and sincere statements had not been unnecessarily polemical and malicious and that they had not therefore failed to meet the requirements of good faith .

On DATE ORG dismissed the appeal on points of law on the following grounds :

“ ... ORG is satisfied from the wording of the judgment appealed against and analysis of the evidence in the case file that ORG , in ruling that the defendant was excluded from the benefit of a finding of good faith , relied on grounds which were sufficient and free of contradictions , answered the submissions made to it and analysed the particular circumstances relied on by the defendant ... ”

The published article read :

“ As regards the encyclical ' The Splendour of Truth '

The obscurity of error ...

PERSON new encyclical , ' ORG , concerns the basis of moral theology from the perspective of NORP teaching . It is intended to provide the faithful with answers to the questions put to PERSON by a young man in a New Testament parable : What good thing shall I do , that I may have eternal life ?

Unfortunately , from the point of view of other religions and from the NORP perspective , the PERSON 's text is based on CARDINAL types of assertion :

ORG sets itself up as the sole keeper of divine truth and assumes the ' duty ' of disseminating its doctrine as the sole universal teaching .

It strongly proclaims the fulfilment of LAW in the New and the superiority of the latter , a doctrine which propagates ' the teaching of contempt ' for the NORP , long since condemned by PERSON as an element in the development of anti - Semitism .

According to PERSON , ' the task of authentically interpreting the word of God ... has been entrusted only to those charged with the ORG 's living PERSON ' , which is consequently empowered to state that some theological and even philosophical affirmations are ' incompatible with revealed truth ' . ORG is said to possess ' a light and a power capable of answering even the most controversial and complex questions ' .

Non - NORP are viewed with disdain : ' ... whatever goodness and truth is found in them is considered by the ORG as a preparation for the Gospel . '

The passing away of NORP religious tradition is asserted with the same arrogance .

The PERSON , which the ORG labels ' old ' , merely prefigures NORP perfection . The Mosaic Decalogue is ' a promise and sign of LAW . PERSON is the ' new PERSON ' . The Law of PERSON is only a ' figure of the true law ' , ' an image of the truth ' . PERSON came down from GPE carrying ' tablets of stone ' in his hands . The apostles carried ' the Holy Spirit in their hearts ' . NORP law is ' written not with ink but with the Spirit of the living God , not on tablets of stone but on tablets of human hearts ' . The prescriptions imparted by God in LAW attained their perfection in the New ' .

For the old law was incomplete . Admittedly , it had a pedagogical function . But it was unable to give the ' righteousness ' it demanded : only the new law gives grace , it ' is not content to say what must be done ' , but also gives the power to ' do what is true ' .

We find here ideas which were already explored in the voluminous ' Catechism of the Catholic Church ' of DATE . As in that unfortunate catechism , a few arrows are also fired , in line with NORP tradition , at the ORG . The faithful are called to take ' great care ... not to allow themselves to be tainted by the attitude of the Pharisee ' , which , in DATE , is expressed in adapting the moral norm to one 's own capacities and personal interests , that is , in rejecting the very idea of a moral norm .

One must wonder how NORP and the NORP religious authorities would ' appreciate ' an equivalent NORP attack on LAW .

CARDINAL must also wonder how the NORP pontiff reconciles his encyclical with the exhortation in the ' CARDINAL Points of PERSON ' and with the requirement envisaged in the first draft of the declaration on the NORP at FAC II , calling on NORP not to teach anything that would vilify the NORP and their doctrine .

No consideration is given to this by ORG in DATE . In proclaiming the splendour of truth , it perseveres in obscurity and error . ”

NORP The applicant 's statements contribute to a recurrent debate of ideas between historians , theologians and religious authorities . The CARDINAL most recent Popes , PERSON and PERSON , as well as the hierarchy of ORG , have discussed the possibility that the manner in which the NORP are presented in the New Testament contributed to creating hostility against them . In particular , reference is made to LAW of DATE , which emphasises ORG historical responsibility towards the NORP people ; the speech given on DATE by PERSON during a colloquy on the “ Roots of Anti - Judaism in the LOC ” ; or , more recently , the book The NORP People and their ORG in the Christian Bible , published in DATE by ORG under the direction of Cardinal PERSON – in its preface , the latter writes with regard to the PERSON that “ in the light of what has happened , what ought to emerge now is a new respect for the NORP interpretation of the Old Testament ” .

The relevant sections of the Freedom of the Press Act of DATE provide as follows :

“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged . The direct publication or reproduction of such a statement or allegation shall be an offence , even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches , shouts , threats , written or printed matter , placards or posters .

It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact . ”

“ Defamation of an individual by CARDINAL of the means set forth in section CARDINAL shall be punishable by a fine of FRF CARDINAL,CARDINAL .

Defamation by the same means of a person or group of people on the ground of their origin or their membership or non - membership of a specific ethnic group , nation , race or religion shall be punishable by a term of imprisonment of DATE and a fine of ORG CARDINAL,CARDINAL or one of those penalties only .

Where a conviction is secured for CARDINAL of the offences listed in the preceding paragraph the court may also order :

NORP the decision to be posted up or displayed in accordance with LAW . ”


Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The person stated as the applicant in the application form , Mr PERSON , was a NORP national who was born in DATE . Mr J. Janković and PERSON , advocates practising in PERSON , claimed to have represented him before the ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The application was lodged with the ORG on DATE in the name of Mr PERSON . Enclosed with the application form was the power of attorney dated DATE and signed “ GPE Vladimir ” authorising Mr PERSON and PERSON to represent him before ORG . The power of attorney was also signed by PERSON and PERSON and stamped with their stamp .

By a letter of DATE the Registry informed the ORG and Mr PERSON ’s representatives that on DATE the President of ORG had decided to give notice of the application to the Government .

On DATE the Government submitted their observations . On DATE Mr J. Janković submitted observations in reply in the name of Mr PERSON .

By a letter dated DATE Mr PERSON ’s wife PERSON Milka GPE submitted claims for just satisfaction in the case . The letter was signed “ For the NORP family : PERSON ” . On DATE the Government submitted their comments on the claims for just satisfaction .

In her further letter dated DATE , PERSON mentioned , inter alia , that her husband had “ passed away DATE ” .

By a letter dated DATE the Government informed the ORG that Mr PERSON had died on DATE , that is , before the application had been lodged with the ORG on DATE . As proof , the Government enclosed his death certificate with their letter .

In his reply of CARDINAL DATE , Mr PERSON , an advocate practising in GPE , acting on behalf of PERSON , informed the ORG that she , as Mr PERSON ’s universal legal heir , intended to take over the proceedings instituted before it by her late husband . The power of attorney authorising PERSON to represent her in the proceedings before the ORG as well as the decision of ORG of DATE naming her as Mr PERSON ’s sole heir , were enclosed with the letter .

Section CARDINAL of the former LAW of DATE ( Zakon o osnovnim vlasničkopravnim odnosima , ORG of the former GPE nos . CARDINAL and DATE “ the DATE LAW ” ) prohibited the acquisition of ownership of socially - owned ( društveno vlasništvo ) property by adverse possession ( dosjelost ) .

When incorporating the DATE LAW into the NORP legal system on DATE CARDINAL(Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima , ORG no . CARDINAL of CARDINAL DATE ) , ORG repealed that provision .

Subsequently , the new Ownership and Other Rights In GPE ( Zakon o vlasništvu i drugim stvarnim pravima , ORG no . CARDINAL/CARDINAL of DATE , which entered into force on DATE – “ the DATE LAW ” ) provided in section CARDINAL ) that the period prior to CARDINAL DATE was to be included in calculating the period for acquisition of ownership by adverse possession of socially - owned immovable property .

Following several petitions for constitutional review ( prijedlog za ocjenu ustavnosti ) , on DATE ORG ( Ustavni sud PERSON ) abrogated section CARDINAL ) of the DATE LAW as unconstitutional ( decision FAC . ORG , U - I-CARDINAL/CARDINAL , PERSON , U - I-CARDINAL/CARDINAL and LAW of CARDINAL DATE , ORG no . CARDINAL/CARDINAL of DATE ) .

On DATE Mr PERSON brought a civil action against the ORG in ORG ( PERSON ) , seeking a declaration of his ownership of a certain plot of land and its registration in his name in the land register . He submitted that the property at issue had been in his possession and the possession of his family since DATE . Relying on section CARDINAL ) of the DATE LAW , he claimed that he had ex lege become its owner by adverse possession despite the fact that the land was socially owned .

On DATE ORG gave judgment for the plaintiff . It held that he had proved that he and his predecessors had possessed the land in question at least since DATE . However , having regard to ORG decision of CARDINAL DATE abrogating section CARDINAL(CARDINAL ) of the DATE LAW , ORG did not take into account the period DATE and DATE when calculating the statutory prescribed period for acquiring ownership by adverse possession . Thus , it held that the statutory time - limit had been running DATE and DATE as well as after DATE . Given that in the first - mentioned period the plaintiff had been in possession of the land in question for DATE , the court concluded that in that period he had , through his predecessors , already become the owner of the land by adverse possession .

Following an appeal by the respondent , on DATE ORG ( Županijski sud u Karlovcu ) reversed the first - instance judgment by dismissing the action . It held that ORG had established the facts correctly ( continuous possession of the land since DATE ) but had erred in its application of the substantive law . In particular , the first - instance court should have applied the law applicable in the relevant period , i.e. paragraph CARDINAL of LAW of DATE , which was applicable in GPE from DATE until DATE . As that provision provided that immovable property in ORG ownership could be acquired by adverse possession DATE , the plaintiff ’s claim should have been dismissed .

On DATE ORG dismissed Mr PERSON constitutional complaint lodged against the second - instance judgment and served its decision on his representatives on CARDINAL DATE .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE .

DATE and DATE the applicant and her minor son born in DATE were officially registered as residents in a municipal hostel rented by ORG , the applicant ’s employer , for its employees . Throughout this period , ORG , in fact , never provided the applicant with a room in this hostel , citing lack of available LOC . The applicant and her son were allowed to occupy CARDINAL beds in a hostel for single individuals managed by “ FAC , another company . After the expiration of the residency registration , in DATE the applicant found an unoccupied room in ORG hostel and moved there with her son .

On DATE ORG brought eviction proceedings against the applicant ( and her minor son ) before ORG of Kyiv ( ORG районний суд PERSON PERSON ) .

On DATE ORG of Kyiv , citing the lack of territorial jurisdiction , referred the case to ORG of Kyiv ( ORG районний суд м. PERSON ) . The latter , in turn , on DATE , transmitted the case to the ORG of GPE ( “ the ORG ” PERSON районний суд PERSON PERSON ) .

On DATE the applicant lodged a counter - claim , asserting her right to occupy the room in ORG hostel .

In DATE ORG decided to convert ORG hostel into a municipal apartment building enabling its occupants to apply for life - long tenancies .

On DATE ORG ordered the applicant ’s and her son ’s removal to the “ ORG ’s ” hostel and dismissed her counterclaim . The court found , in particular , that the applicant had never obtained proper authorisation to occupy the room in ORG hostel . On DATE ORG ( “ the ORG ” ; GPE міський суд ) upheld this judgment on the applicant ’s appeal in cassation , it became final and enforcement proceedings were instituted .

On DATE ORG ordered suspension of the enforcement proceedings .

On DATE the ORG of ORG quashed the previous judgments following the protest introduced by ORG and remitted the case to ORG for a fresh consideration . The court found , in particular , that “ FAC ” should have been summoned to the proceedings , as it was unclear whether the applicant had any right to reside in its hostel .

On DATE ORG rejected ORG eviction claim , at the same time having refused to recognize the applicant ’s right to occupy the room in its former hostel . It found that , although the applicant had no proper authorisation to move into the room at issue , she could not be evicted , as her status of a “ FAC ” hostel resident had never been regularized and she had no alternative lodging . Both parties appealed .

On DATE ORG quashed this judgment and remitted the case for a fresh consideration , having found , in particular , that the first - instance court had failed to instruct the applicant that , in view of ORG decision to convert the hostel into an apartment building , she could request to be issued with an authorisation for life - long tenancy .

On DATE the applicant amended her claims , seeking , in particular , to obtain authorisation of tenancy . Her son , having reached the age of majority , joined the proceedings .

On DATE ORG dismissed ORG eviction claim and ordered ORG to issue the applicant with tenancy authorisation . The court found , in particular , that , having been registered as a resident in ORG hostel , the applicant had acquired the right to occupy a room in it as early as in DATE . ORG , however , had unlawfully failed to provide her with a room . ORG appealed .

On DATE ORG quashed this judgment and remitted the case for a fresh consideration . It found , in particular , that ORG conclusions concerning the applicant ’s right to reside in ORG hostel were insufficiently reasoned . The applicant appealed in cassation against this ruling .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

On DATE ORG rejected ORG eviction claim and upheld the applicant ’s right to occupy the room . This judgment was not appealed against .

In the course of the proceedings ORG scheduled CARDINAL hearings . CARDINAL of these hearings were adjourned on account of the applicant ’s or her representative ’s absences in court ; TIME on account of the plaintiff ’s absences or requests ; and CARDINAL on account of judges’ vacations and various other court matters .

NORP The applicant also maintained , without providing details , that her employer was deliberately processing data on her family life in violation of the law , that the bailiffs had unlawfully interfered with her possessions during the enforcement proceedings and that her son had been unable for a prolonged period of time to receive a passport and to obtain access to professional education on account of lack of residency registration . The applicant did not raise any relevant complaints before the domestic judicial authorities .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award

On DATE the applicant ’s parents requested a court to declare that they had acquired by prescription ownership of a plot of land which had been in their possession for DATE . It appears that they were summoned by the court to identify the successors of the original owners and to indicate their addresses . The participation of these persons in the proceedings was necessary to preclude them from invoking their rights after the matter had been decided upon .

As the applicant ’s parents had failed to establish the addresses of all the persons potentially concerned , the proceedings were stayed on DATE . The number of persons potentially affected by the outcome of the proceedings amounted at that time to CARDINAL , some of whom resided abroad .

On unspecified dates in DATE the applicant ’s parents died and the applicant and her sister inherited their estate .

DATE , some of the original owners of the property or their successors died and the number of persons potentially affected by the outcome of the proceedings ( as further successors of the original owners ) increased .

On DATE the applicant , being unable to identify all the successors of the original owners or to indicate their addresses , requested PERSON to publish a press notice summoning persons potentially interested in the outcome of the case and to resume the proceedings .

On DATE the court decided to appoint a court officer ( curator absenti ) to represent persons potentially affected by the proceedings but whose addresses were unknown . The court also ordered the publication of a press notice to summon other persons potentially concerned .

At a hearing held on DATE the court found that some of the other persons already involved in the proceedings had died . The court again instructed the applicant to indicate the addresses of their successors . The applicant failed to do so and by a decision of CARDINAL DATE the court refused to resume the proceedings .

On DATE the applicant again requested the court to resume the proceedings on the merits . Apparently , by that stage CARDINAL persons were potentially interested in the outcome of the proceedings .

On DATE the ORG refused to resume the proceedings in view of the applicant ’s failure to submit the addresses of all persons potentially affected . The court also decided to discontinue the proceedings , finding that DATE had elapsed since the date of the last procedural step in the case .

On DATE the applicant appealed against this decision and on DATE ORG partly allowed her appeal . In particular , the court found that there were no grounds to discontinue the proceedings as some procedural steps had been taken during DATE even though technically the proceedings had been stayed . Nevertheless , the court decided that the proceedings should remain stayed in view of the applicant ’s failure to comply with the court order .

On DATE the ORG again summoned the applicant to indicate the current address of CARDINAL of the potential litigants and the legal successors of another .

It appears that the applicant did not file with the court the addresses requested and on DATE the trial court rendered a decision discontinuing the proceedings . The applicant appealed . On an unspecified date her appeal was allowed .

On DATE the applicant was again summoned to submit the names and addresses of potential litigants , including CARDINAL allegedly living in GPE , on pain of a stay of the proceedings . On DATE the court stayed the proceedings , having regard to the applicant ’s failure to indicate the legal successors of CARDINAL litigants and to give the current addresses of a further CARDINAL litigants .

On DATE the court discontinued the proceedings , having regard to the fact that the applicant had failed to request , within DATE , that the stayed proceedings be resumed .

On DATE the applicant appealed and objected to the obligation to identify and find the legal successors of former owners and to indicate their addresses . She submitted that the case would have been terminated long ago had the appointment of the curator absenti and the publication of press notice been properly used by the court . She requested the court to publish a press notice or appoint a curator again .

On DATE the court summoned her to pay ORG MONEY by way or a court fee for the appeal , to identify the legal successors of another CARDINAL parties who had died and to submit CARDINAL copies of her appeal . The applicant refused to pay the fee , arguing that she had paid this amount several times , but that this had not led to any progress in the resolution of the merits of the case . She also refused to identify the legal successors or addresses of QUANTITY persons referred to in the decision of QUANTITY DATE and the summons of CARDINAL DATE and reiterated that she had already repeatedly informed the court that she was unable to do so . She referred to her request to publish a press notice to summon potential parties to join the proceedings by way of a press notice .

On DATE the court refused to entertain her appeal on the ground that she had refused to pay the court fee and refused to submit CARDINAL copies of the appeal .

The applicant appealed against this decision , submitting that in the absence of the addresses of all potential litigants the requirement to submit CARDINAL copies of her appeal was unreasonable because in any event these copies could not be served on them .

On DATE the court summoned her to rectify her appeal by paying ORG CARDINAL , by submitting CARDINAL copies of the appeal , by indicating the legal successors of CARDINAL deceased litigants and by giving the addresses of CARDINAL further litigants .

In her pleadings of CARDINAL DATE the applicant again submitted that publication of a press notice and the appointment of curator absenti provided for in LAW were specifically designated to address situations such as this which had arisen in her case .

On DATE the court rejected her appeal against the decision of DATE , having regard to her failure to comply with the summons of CARDINAL DATE .

The applicant appealed against this decision , again submitting that she was unable to identify the names and addresses of the persons concerned .

On DATE the court rejected her appeal on the ground that she had failed to pay a court fee in the amount of PLN CARDINAL and to submit CARDINAL copies of her appeal .

NORP Under NORP law , a request for a declaration that property had been acquired by prescription is examined in the so - called “ non - litigious procedure ” . However , the claimant is obliged to identify persons who are potentially affected by these proceedings , notably the original owners or their successors . Should these persons express their interest in the proceedings , they may be granted the status of a “ party ” .

If a claimant is objectively unable to identify persons who could be affected by the outcome of the proceedings , the court orders the publication of a press notice , summoning such persons to join the proceedings . If the identity of the persons is known but their current addresses can not be established , the court shall appoint a court officer ( curator absenti ) to represent such persons .

Article CARDINAL of LAW on : Non - litigious proceedings : general provisions ) provides as follows :

§ CARDINAL . Any person , whose rights and obligations are affected by the outcome of the proceedings , is an interested person ; he or she may participate in the proceedings at any stage . If the person decides to participate , he or she becomes a party to the proceedings . An appeal is available against a refusal to be admitted as a party to the proceedings .

§ CARDINAL . If it turns out that a person concerned is not a party to the proceedings , the court will summon him or her to participate in them . Following the summons , a person becomes a party to the proceedings . If a need arises to appoint a court officer ( curator absentis ) to represent a party whose address is unknown , such appointment is made ex officio .

Article CARDINAL § CARDINAL of the Code of Civil Procedure ( Non - litigious proceedings : general provisions ) provides as follows :

An interested person who has not participated in the proceedings terminated by a final decision on the merits , may request that these proceedings be reopened . Provisions on the reopening on the grounds of being deprived of the possibility to act shall apply .

Article CARDINAL § CARDINAL of the Code of Civil Procedure ( Acquiring property by prescription ) provides as follows :

If a person who files a motion ( for a declaration that property has been acquired by prescription ) fails to indicate other interested persons , the decision ( on the merits ) may only be rendered after such persons are summoned by a press notice . A press notice may also be published in other circumstances where the court finds this necessary .