The applicant was born in DATE and lives in GPE .

On DATE the applicant and CARDINAL other persons were arrested by police officers from the anti - terror branch of ORG in the house of CARDINAL of the arrestees , GPE , in the course of a police operation carried out against the ORG .

DATE the applicant was detained in ORG . The applicant alleges that , while there , he was blindfolded and forced to listen to the cries of other detainees being tortured . He was threatened with torture and forced to admit that he was a member of the ORG . When he refused to do so , he was stripped naked , immersed in cold water and beaten with a truncheon on various parts of his body , including the soles of his feet . He was then forced to walk on a salt - strewn floor . His hands were tied with a blanket , he was strung up by his arms and subjected to a form of torture known as “ NORP hanging ” . In this position , electric shocks were administered to his genitals , his fingers and feet . He was subsequently coerced into signing a statement , of which he only signed the first CARDINAL pages . During his detention in police custody the applicant was kept in a cell , deprived of food and water and prevented from sleeping .

On DATE the applicant was examined by a medical expert from the GPE branch of ORG who observed CARDINAL ecchymosises of QUANTITY in diameter on both sides of the applicant 's hips and an allergic dermatitis on his right hand . The doctor concluded that the applicant 's life was not endangered and that the injuries rendered him unfit for work for DATE .

On DATE the applicant was brought before the public prosecutor and a single judge at ORG . On both occasions the applicant denied the accuracy of the statements that had been taken from him by the police . He contended that he had signed the statements under duress . The judge at ORG ordered the applicant 's detention on remand . The applicant was then transferred to NORP prison .

On DATE the applicant filed a petition with ORG . In his petition , the applicant reiterated that he had been tortured while in police custody and that his statements had been taken under duress . He finally requested to be released .

On DATE the applicant was examined by the director of the Eyüp branch of ORG . The medical expert observed the following :

“ ... presence of pain in the shoulders , the armpits and the neck , a yellow ecchymosis on the right armpit , an ecchymosis of QUANTITY on the upper part of the right arm , widespread ecchymotic area and abrasions on both arms and wrists , hyperaemic lesions of QUANTITY and QUANTITY on the upper part of the right hand and on the left hand , widespread pain in the hands , widespread ecchymotic area of yellow colour on both gluteal regions on the back , ecchymotic area on the groin , pain in the testicles , pain during defecation , swollen area on the right leg and foot , a yellow ecchymosis and swollen area on the sole of the right foot , pain in the left leg , a yellow ecchymosis on the malleolar region , a yellow ecchymosis and swollen area on the sole of the left foot , several old wounds on both wrists and ankles ... ”

The medical expert considered that the applicant 's life was not endangered and that the injuries rendered him unfit for work for DATE .

On DATE and CARDINAL DATE the applicant filed further petitions with the GPE public prosecutor 's office alleging that he had been subjected to illtreatment while in police custody .

On an unspecified date the GPE public prosecutor initiated an investigation into the applicant 's allegations of ill - treatment .

On DATE the public prosecutor issued a decision of nonprosecution with regard to PERSON , the director of the anti - terror branch of ORG , holding that there was insufficient evidence to bring criminal proceedings against him . The public prosecutor further noted that criminal proceedings had been brought against GPE and GPE , police officers from the anti - terror branch of ORG , under LAW . The police officers were accused of torturing the applicant in order to obtain a confession from him .

On DATE the applicant filed an objection against the decision of CARDINAL DATE .

On DATE ORG dismissed the applicant 's objection .

On DATE ORG acquitted the accused police officers , holding that there was insufficient evidence to conclude that the accused had ill - treated the applicant while in police custody .

The judgment of DATE became final as the public prosecutor did not lodge an appeal against it .

Following his arrest , the applicant surrendered a QUANTITY calibre pistol and CARDINAL bullets to the police officers . Furthermore , according to the official documents , several weapons and organisational documents were found and seized in the course of the police operation .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant , along with CARDINAL other persons . The public prosecutor charged the applicant under LAW of LAW and LAW no . ORG with membership of the ORG .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and DATE imprisonment .

In its judgment , the first - instance court noted that the applicant had been arrested in the house of GPE , along with other suspects and that he had subsequently surrendered a CARDINAL PERSON calibre pistol and CARDINAL bullets to the police . The court further stated that CARDINAL of the applicant 's co - accused , PERSON , had maintained before the public prosecutor that he had been involved in ORG activities together with the applicant . The court also took into account the statements of CARDINAL other accused , who had contended before the public prosecutor that the applicant had collected money on behalf of the ORG . ORG finally noted that the applicant had maintained during the hearings that he supported the ideology of the ORG and believed that the ORG was the legitimate representative of GPE . Basing its judgment on the aforementioned elements , ORG concluded that the applicant was a member of the ORG .

The judgment of CARDINAL DATE became final in respect of the applicant since he did not appeal against it .

On DATE the applicant was conditionally released from prison .

A description of the relevant domestic law at the material time can be found in GPE and Others v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-VII , § DATE ) , Elçi and Others v. GPE ( nos . CARDINAL/CARDINAL and CARDINAL , § § CARDINAL and CARDINAL , CARDINAL DATE ) and PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

CARDINAL .

In DATE the applicant , who was then DATE , arrived in GPE with his father , his brother and his CARDINAL sisters to join his mother , who had arrived DATE . The applicant ’s father claimed asylum . The claim was refused but the family were granted Exceptional Leave to Remain which was periodically extended . In DATE the applicant , his father and his other family members were granted Indefinite Leave to Remain . At an unspecified date his mother , father and CARDINAL of his sisters were granted NORP nationality . CARDINAL of the applicant ’s sisters left GPE for GPE in DATE and the family believe she may be in GPE . The applicant ’s father died in DATE . His mother , brother and CARDINAL of his sisters continue to reside in GPE .

The applicant stated that he had not returned to GPE since his departure in DATE but he could still speak LANGUAGE . It is not clear whether he received any education in GPE , although it appears that he received some schooling in GPE . He is a chef by profession although there is little information available regarding his employment history .

In DATE he commenced a relationship with a NORP citizen . The relationship lasted DATE , but during this time the applicant was convicted on CARDINAL occasions for a number of different offences . On DATE he was convicted for driving whilst disqualified and sentenced to CARDINAL ORG community service . DATE he was convicted of burglary and given an DATE probation order . DATE he was convicted of aggravated burglary and sentenced to DATE of youth custody . On DATE he was fined GBP CARDINAL following a conviction for possession of cannabis . On DATE he was again convicted of possession of cannabis and sentenced to DATE imprisonment . On DATE he was convicted of CARDINAL counts of burglary and sentenced to CARDINAL years’ imprisonment .

On DATE , the applicant pleaded guilty to robbery at ORG . The trial judge noted that the applicant had been one of the ringleaders of the robbery , during which CARDINAL of the CARDINAL robbers carried weapons . He imposed a sentence of DATE years’ imprisonment but made no recommendation regarding the applicant ’s deportation from GPE .

The applicant ’s relationship with his partner ended when he was imprisoned . Shortly afterwards , in DATE , his partner gave birth to a daughter . The applicant is not named as the father on the birth certificate although his mother cared for the child until she was DATE .

On DATE the Secretary of ORG for ORG wrote to the applicant to notify him that he was considering his immigration status and his liability to deportation in light of his conviction of DATE . The applicant was invited to make representations within DATE , but the representations made on his behalf were not answered and no further action was taken at that stage . Following the applicant ’s release on DATE , his solicitors wrote to ORG to seek clarification of his position , but still no formal action was taken .

On CARDINAL DATE the applicant was convicted of a road traffic offence and a failure to surrender to custody . He was given a sentence of CARDINAL days’ imprisonment , a fine of GBP CARDINAL and disqualified from driving for DATE .

NORP In DATE the Secretary of ORG for ORG admitted that CARDINAL foreign national criminals , who should have been considered for deportation or removal , had completed their prison sentences and were released without any consideration of deportation or removal action . The news was widely reported in the NORP media and resulted in urgent action being taken by ORG to improve performance and crack down on foreign national criminals .

NORP In DATE the applicant began a relationship with a NORP citizen . On DATE the couple entered into a non - legally binding marriage by NORP rite ( “ the marriage ” ) and their first child was born on DATE . A second child was born on DATE .

The applicant was served with an undated LAW on DATE . A letter entitled “ Reasons for Deportation ” had been prepared on DATE on behalf of ORG . It stated that in view of the applicant ’s conviction for robbery on DATE , the Secretary of ORG for ORG deemed it conducive to the public good to make a deportation order . The letter was signed and countersigned but it was not served on the applicant . On DATE it was amended and reprinted . This amended letter was served on the applicant on DATE together with LAW . The amended letter entitled “ Reasons for Deportation ” set out all of the applicant ’s convictions , including that of DATE . It concluded that :

“ Full consideration has been given to all the known facts of your case in line with paragraphs CARDINAL of ORG CARDINAL ( as amended ) . Your personal and domestic circumstances have been carefully balanced against the seriousness of your crime and need to protect the wider community . It is concluded that in your case it is appropriate to deport you to GPE . ”

The applicant appealed to ORG ( “ the ORG ” ) , relying , inter alia , on LAW . The Secretary of ORG requested an oral hearing . In the document setting out this request , the Secretary of ORG twice indicated that the decision to make a deportation order had been taken on DATE .

Before the ORG , the applicant argued , first , that the decision to deport him was not in accordance with the law . The relevant paragraph of ORG , paragraph CARDINAL , had changed on DATE . The earlier version of the rule required the Secretary of ORG to conduct a balancing exercise post-CARDINAL DATE version of the rule established a presumption that the public interest required deportation . The Secretary of ORG would consider all relevant factors in considering whether the presumption was outweighed in a particular case , but it would be only in exceptional circumstances that the public interest in deportation would be outweighed in a case where it would not be contrary to ORG to deport . The applicant argued that the decision to deport him had been taken on DATE and thus his case should have been considered under the old version of paragraph CARDINAL , which was more favourable to him .

Secondly , the applicant argued that in light of his extensive private and family life in GPE and the length of his stay there , the decision to deport him was a violation of LAW . He also submitted a report prepared by a consultant clinical psychologist who diagnosed him as having mild to moderate depression , panic disorder , mild mental retardation , borderline intellectual functioning and dyslexia .

In a determination dated DATE , the ORG dismissed the applicant ’s appeal . It found that the relevant date for the decision to deport was DATE , as the decision had remained incomplete until it was communicated to the applicant , and as a consequence his deportation fell to be considered under the later version of paragraph CARDINAL . In the alternative , the ORG found that if it was wrong in this conclusion and therefore had to conduct a balancing exercise pursuant to the earlier version of paragraph CARDINAL , it would have come to the same conclusion . The ORG also held that there had been no violation of LAW .

The applicant applied for reconsideration of the ORG ’s decision . On DATE a Senior Immigration Judge refused the application , holding that although the ORG had concluded that the decision to deport was made after paragraph CARDINAL was amended , it had also considered the alternative . All relevant matters were considered by the ORG and no material error of law was disclosed .

NORP The applicant ’s application for statutory review was dismissed by ORG on DATE . On DATE the deportation order in respect of the applicant was signed and it was served on him on DATE . On DATE the applicant lodged an application for judicial review of the ORG ’s decision not to make an order for reconsideration , and applied to have the deportation revoked . The applicant was deported to GPE on DATE .

On DATE the application to revoke the deportation order was refused by the Secretary of ORG . On DATE ORG dismissed the judicial review application . The applicant brought an out - of - country appeal against this decision but the appeal was dismissed under both ORG and LAW .

Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of the Immigration Act DATE provide for the making of Immigration Rules by the Secretary of ORG . Section CARDINAL ) of the same LAW ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good .

Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(a ) of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against a decision to deport , inter alia , on the grounds that the decision is incompatible with the LAW and that it was not in accordance with ORG .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .

The version of paragraph CARDINAL of ORG , which was in force prior to DATE , provided as follows :

( i ) age ;

( ii ) length of residence in GPE ;

( iii ) strength of connections with GPE ;

( iv ) personal history , including character , conduct and employment record ;

( v ) domestic circumstances ;

( vi ) previous criminal record and the nature of any offence of which the person has been convicted ;

( vii ) compassionate circumstances ;

( viii ) any representations received on the person ’s behalf . ”

The amended version of paragraph CARDINAL , in force since DATE , provides as follows :

“ Subject to paragraph CARDINAL , while each case will be considered on its merits , where a person is liable to deportation the presumption shall be that the public interest requires deportation . The Secretary of ORG will consider all relevant factors in considering whether the presumption is outweighed in any particular case , although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to LAW and the LAW relating to LAW to deport . The aim is an exercise of the power of deportation which is consistent and fair as between CARDINAL person and another , although CARDINAL case will rarely be identical with another in all material respects ... ”

In EO ( PERSON appeals : scope and process ) GPE [ DATE ] PERSON CARDINAL the ORG considered whether the amendment to paragraph CARDINAL substantively changed the rule . It concluded :

“ we have no doubt that the substantive meaning of paragraph CARDINAL after amendment by ORG CARDINAL is very different from that which it previously bore . The range of issues expressly falling for consideration in the exercise of the discretion to make a deportation decision in the old version is such as to suggest a general duty to look at the issues already considered in the evaluation of the human rights claim and to apply what might be termed a lower standard to them . That range of considerations does not feature in the new version , which instead introduces a presumption in favour of deportation . ”

Paragraph CARDINAL of ORG , referred to in both versions of paragraph CARDINAL , provides as follows :

“ A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to GPE obligations under LAW relating to ORG [ LAW ] . ”

The Rules relating to the revocation of a deportation order are contained in CARDINAL of ORG CARDINAL ( as amended ) , supplemented by LAW ( “ IDIs ” ) . There is no specific period after which revocation will be appropriate although ORG to LAW of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal . Cases which will normally be appropriate for revocation DATE after deportation include those of overstayers and persons who failed to observe a condition attached to their leave , persons who obtained leave by deception , and family members deported under LAW ) of LAW DATE . With regard to criminal conviction cases , the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “ spent ” under section CARDINAL(CARDINAL ) of the Rehabilitation of Offenders Act DATE . Paragraph CARDINAL of the Rules , however , indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course . This is expanded on in GPE A to LAW of the IDIs , which indicates that revocation would not normally be appropriate until DATE after departure for those convicted of serious offences such as violence against the person , sexual offences , burglary , robbery or theft , and other offences such as forgery and drug trafficking .


András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

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

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

On DATE the applicant filed a civil suit in GPE against her QUANTITY sisters , requesting the annulment of a contract according to which their late mother disposed of her property prior to her death , against the applicant ’s expectations from the inheritance . Following a remittal , on DATE ORG granted the applicant ’s claim . On DATE ORG quashed the judgment of DATE and returned the case to the first instance for a fresh examination .

On DATE the applicant lodged a constitutional appeal , complaining about the length of the above - mentioned civil proceedings and requesting ORG to quash the decision of DATE . The applicant did not request ORG to award her any compensation for damages suffered .

On CARDINAL DATE ORG adopted a decision finding that the applicant ’s right to have a hearing within a reasonable time had been violated and ordered the first and second instance courts to expedite the proceedings , while rejecting the request in relation to the decision of DATE . The court also ordered that its decision be published in ORG .

On DATE the decision of CARDINAL DATE was published in ORG .

On DATE ORG ( PERSON ) in GPE granted the applicant ’s request in its entirety . This judgment would appear to be pending on appeal .

On DATE the applicant filed another civil suit against CARDINAL of her sisters , claiming damages for the sister ’s sole use of the property in question .

The court held a number of hearings and in DATE appointed an expert to determine the damages . As the expert failed to submit his full expert report by DATE , the court fined him and by DATE appointed another expert to submit his opinion on the amount of damages .

On DATE the applicant filed a constitutional appeal complaining about the length of the said proceedings as well as the right to a fair trial and the right to property .

On DATE ORG found that there had been no violation of the applicant ’s right to have her civil right determined within a reasonable time , while the other complaints were rejected as premature .

It would appear that these civil proceedings are still pending at first instance .

LAW , in LAW and DATE , provides for the following :

“ When ORG finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by LAW , it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time .

The decision of ORG accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body , in accordance with the law . ”

Article CARDINAL of LAW provides that a person whose constitutional appeal had been adopted can request compensation for damages from ORG .

On DATE LAW was amended , inter alia to abolish ORG and provide that ORG would itself determine the compensation for damage ( LAW ) , under the condition that a request to that effect had been filed together with the constitutional appeal ( LAW ) .

Article CARDINAL of the Rules provided for the right of a person to file a request for compensation from the ORG should ORG find a violation in that person ’s case .

While it existed , it was a consistent practice of ORG only to award damages if ORG had determined one ’s right to compensation . ORG , in its turn , only awarded compensation for damages should a person claim compensation in the constitutional appeal ( see e.g. decisions of the Constitutional Court nos . Už-CARDINAL/CARDINAL of DATE , Už-CARDINAL/CARDINAL of DATE , ORG of CARDINAL DATE , Už-CARDINAL/CARDINAL of CARDINAL DATE , NORP and many others ; a contrario see e.g. decisions FAC . Už-CARDINAL/CARDINAL of DATE , Už-CARDINAL/CARDINAL of CARDINAL DATE , Už-CARDINAL/CARDINAL of DATE , Už-CARDINAL/CARDINAL of DATE and many others ) .


Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

On DATE , the applicant co - piloted a ORG flight from GPE to FAC outside GPE . There were CARDINAL other crew members on board , including PERSON ( CARDINALst Cabin Crew ) . All CARDINAL crew members were to stay TIME at an airport hotel before flying back to GPE DATE .

On DATE the ORG ( tingrett ) convicted the applicant of having raped C and sentenced him to DATE and CARDINAL months’ imprisonment and ordered him to pay her ORG CARDINAL for non - pecuniary damage and ORG CARDINAL for pecuniary damage .

On an appeal by the applicant , ORG ( lagmannsrett ) , sitting with a jury , held a fresh hearing in the case . The jury answered the questions relating to the charges in the negative ( no reasons are given by a jury).The professional judges decided to pass judgment on the basis of the jury ’s verdict and acquitted the applicant by a judgment of DATE .

PERSON maintained the claim that the applicant was civilly liable to pay compensation under LAW DATE . ORG , consisting of the professional judges , considered the claim DATE . By CARDINAL votes to CARDINAL ORG concluded , in the same judgment , that the applicant was liable and ordered him to pay ORG CARDINAL in compensation for pecuniary damage and ORG CARDINAL for non - pecuniary damage .

The High Court ’s judgment included the following account and reasoning :

“ ORG jury was asked CARDINAL main question , which concerned forcible coitus . The jury answered the question in the negative . Thereafter the jury was asked CARDINAL main question as to whether the accused was guilty of obtaining , by gross negligence , sexual relation by violence or threatening behaviour . There was additionally put a supplementary question as to whether the sexual relation mentioned in the main question constituted coitus . The jury answered the main question in the negative . The court bases the judgment on the jury ’s verdict .

[ The applicant ] is therefore acquitted of the indictment raised against him .

The victim ’s assistant counsel stated , after the jury ’s verdict had been made known , that the compensation claim for pecuniary and non - pecuniary damage would be maintained . The victim has claimed an amount up to ORG CARDINAL,CARDINAL in compensation for pecuniary damage and CARDINAL ORG for non - pecuniary damage . The accused has pleaded that he should be released from the claim .

Despite the fact that [ the applicant ] has been acquitted of having , with intent or gross negligence , raped [ Ms C. ] , under NORP law , she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place . Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act , an award of compensation for pecuniary / non - pecuniary damage would not in itself amount to setting aside the acquittal .

The compensation issue shall be determined under LAW DATE .

If the victim has been exposed to an infringement or misconduct as described inter alia in LAW , compensation for pecuniary damage resulting from the infringement or misconduct may be awarded under sections DATE and CARDINAL of LAW . In section CARDINAL it is further stipulated that a person who with intent or gross negligence has “ ... committed infringement or an act of misconduct as mentioned in section CARDINAL ” may be ordered to pay to the victim such a lump sum as the court deems would constitute reasonable compensation for the pain and suffering and other non - pecuniary caused thereby .

Because [ Ms C. ] alleges that the applicant has been guilty of an aggravated act against her in respect of which he has been acquitted of criminal liability , it is required in the assessment of the evidence that on the balance of probabilities it is clearly probable [ klar sannsynlighetsovervekt ] that the act has taken place . This means that considerably more than ordinary probability is required , albeit not the same strength of evidence being required as for establishing that the perpetrator is guilty in a criminal case .

[ The applicant ] and [ Ms C. ] spent TIME from TIME DATE at ORG at PERSON . [ ... ]

On the basis of [ Ms C. ] ’s evidence and the requirement of clear of probability on the balance of probabilities in order to fulfil the requirement of proof , the High Court finds it established for its decision on compensation that the applicant called her at her hotel room during TIME with the pretext that he needed to borrow or to get some drinks as he himself had ‘ gone dry’ . [ Ms C ] was lying asleep when the telephone rang and was irritated about the disturbance , but she replied that he could come and get something from her mini - bar . Immediately thereafter he knocked on the door . [ Ms C. ] who was not wearing TIME clothes did not have the time to get dressed , but covered herself with her quilt , opened the door and let the applicant into the room . She could see that he was intoxicated . He went to the mini - bar and fetched something to drink , but instead of leaving he sat down on her bed and started talking . After a short time he began pulling her quilt in order to remove it . She asked him to leave , but he did not follow her suggestion . At a certain point in time he managed to get the quilt off her , but she managed to get up and put it around her again .

[ The applicant ] continued to pull the quilt and drew her towards himself and also got himself undressed . In the end they were both in the bed .

The High Court unanimously finds that on the balance of probabilities it is clearly probable that [ the applicant ] during TIME had sexual intercourse with [ Ms C. ] and that this intercourse was not consensual on her part .

As to the question whether the remaining conditions for making an award of compensation have been fulfilled , ORG is divided in a majority and a minority .

The majority [ ... ] finds on the evidence that on the balance of probabilities it was clearly probable that [ the applicant ] understood that [ Ms C. ] did not want sexual relations with him , but nonetheless forced coitus upon her by exercising such a level of violence [ vold ] that the act could be accomplished . There was no question of serious use of violence [ alvorlig voldsbruk ] , only of overpowering by holding [ Ms C. ] ’s arms . Even though the victim had different alternatives for escaping the situation , which she for different reasons did not find that she could use , this does not alter the basic character of the act which was wilful violation by the use of violence [ vold ] .

Against the background of the majority ’s finding that it has been established that on the balance of probabilities it was clearly probable that [ the applicant ] , by the use of violence [ vold ] has gained [ tiltvunget seg ] sexual intercourse with [ Ms C. ] , the conditions for making an award of compensation have been fulfilled . [ ... ]

The minority , ... , has found that the conditions for ordering the accused to pay compensation have not been fulfilled .

The minority does not find it has been made sufficiently probable that [ the applicant ] understood that the sexual intercourse was not consensual on [ Ms C. ] ’s part or displayed gross negligence in this respect . ”

On DATE , on the basis of ORG judgment , the applicant ’s appeal within the company against his dismissal from his job as a pilot for ORG was refused .

The applicant appealed to ORG against ORG procedure , assessment of evidence and application of the law . The appeal on the latter point was on the ground that , contrary to LAW , ORG had failed in its judgment to make it sufficiently clear that the order to pay compensation did not affect his acquittal of the charges . By a decision of CARDINAL DATE ORG of ORG granted leave to appeal with respect to this ground of appeal , while refusing such leave for the remainder .

NORP In support of his appeal against ORG application of the law , the applicant argued , inter alia the following . For a judgment awarding compensation to be rendered after an acquittal , there was a requirement under ORG case law relating to LAW that the reasoning stated in the judgement be worded in such a way as not to cast doubt on the correctness of the acquittal . This entailed firstly that the judgment must make a clear distinction between the acquittal on the criminal charge and the decision on compensation . It ought to be made clear that the subject - matter for the CARDINAL issues , respectively criminal and civil liability , are different and that the award of compensation did not weaken the acquittal . In this case , ORG had failed to create the necessary distance between the CARDINAL issues , since the reasoning in the judgment went on immediately thereafter to deal with the subject of compensation . Moreover , no express reservation had been stated with regard to the acquittal .

Furthermore , the applicant argued , it was necessary to avoid the use of formulations that might serve to raise doubts about the acquittal . In several places , ORG had used such formulations , including the expressions “ guilty ” , “ the use of force ” and “ sexual intercourse by force ” . This came so close to establishing that the conditions for criminal sexual assault had been fulfilled that the presumption of innocence must be deemed to have been violated . Extra care ought to be exercised when formulating the reasoning in a judgment where the questions of criminal liability and civil liability to pay compensation are decided in the same case . In this connection the applicant relied on the ORG ’s judgment of CARDINAL DATE in NORP v. GPE ( no . CARDINAL , ECHR CARDINALII ) .

The applicant , again referring to the aforementioned Y v. GPE judgment and also to LAW , submitted that , if ORG were to find a breach of the Convention in the present case , it would have to quash the lower court ’s judgment . Where a decision suffered from such defects , due process required that there be an entirely fresh assessment of the evidence . If there was no basis for setting the impugned judgment aside , then at the very least a declaratory judgment ought to be rendered , stating a violation of the Convention .

On DATE the ORG unanimously rejected the applicant ’s appeal against ORG judgment on compensation , finding no breach of LAW .

The first voting judge , PERSON , gave the following reasons :

( CARDINAL ) I have concluded that the reasons given by ORG do not contravene the presumption of innocence in LAW [ ... ] and accordingly that the appeal will not succeed .

( CARDINAL ) With regard to the details of the provision applied in our case , it is in my view appropriate to base our assessment on the judgment rendered by ORG on DATE in Case No . CARDINAL/CARDINAL . This judgment was rendered after the guiding judgments by ORG of DATE in NORP v. GPE [ cited above ] and GPE v. GPE [ no . CARDINAL , ECHR CARDINALII ] . Reference is made to the thorough discussion of the decisions DATE and past case - law of ORG – contained therein . Therein it is stated that LAW protects any person suspected of a criminal offence against any affirmations being made in court decisions on other statements by public authorities that he is guilty of a criminal offence , without his having been convicted in a criminal case .

( CARDINAL ) It is accordingly clear – and undisputed – that it is not contrary to the presumption of innocence for a person who has been acquitted of a criminal charge to be ordered to pay compensation in a civil case , even if in terms of content the material facts upon which the claim for compensation is based correspond to the conditions for criminal liability . However , where a person who has been acquitted of a criminal charge is ordered to pay compensation , it is a requirement that the grounds on which the compensation order is based must not be formulated in such a way as to cast doubts over the correctness of the acquittal . Moreover , provided that the compensation order is not formulated in this way , LAW [ ... ] does not constitute an obstacle to the person acquitted of the criminal charge being ordered to pay compensation in the same case for the act to which the indictment related .

( CARDINAL ) According to LAW , ... a legal claim that the victim or other injured parties have against the accused may be adjudicated in the criminal case , provided that the claim derives from the same act as the criminal case . The possibility to review the claim for compensation in the criminal case has clear advantages from the point of view of procedural economy and saves the victim from the financial and emotional burden of undergoing CARDINAL trials . The evidentiary requirements in civil actions are less stringent than those that apply in criminal cases . An unavoidable consequence of this is that a person who has been acquitted of a criminal charge may be ordered to pay compensation in the same case , based on the finding that he committed the act in respect of which s / he had been acquitted . In order to enable this without creating doubts about the acquittal , strict requirements should apply to the reasoning contained in the judgment awarding compensation .

( CARDINAL ) The ground for the appeal is that the reasons given in ORG judgment on this point violated the presumption of innocence . In its judgment of CARDINAL DATE , ORG found that an appeal lodged on this basis must be regarded as an appeal on the ground of procedural error . This too is my finding .

( CARDINAL ) Under LAW ) of LAW , the reasoning in a judgment in a civil case must ‘ state precisely and exhaustively the facts on which the ORG bases its decision ... ’ . In our case the basis for compensation for pecuniary and non - pecuniary damage is sections CARDINAL and CARDINAL - CARDINAL(CARDINAL)(b)of LAW DATE . It is a condition in both of these provisions that the tortfeasor has inflicted on the victim a violation of the type provided for in LAW . The court must therefore make it clear that it has found proven a fact which from an objective point of view constitutes a breach of this provision . The subjective conditions for liability also coincide to some extent , namely that compensation for pecuniary and non - pecuniary damage requires intent or gross negligence and that LAW also makes sexual assault by gross negligence a criminal offence .

( CARDINAL ) Given the manner the conditions for compensation have been formulated , it is not possible to avoid coming close to a criminal- law assessment . In order to do this , without casting doubt on the acquittal , the court must in my view take as a starting point what inter alia distinguishes the legal consequences , i.e. the requirement of proof that the conditions have been fulfilled . The finding that , in objective terms , a breach of LAW has occurred can not be avoided . The same applies to the subjective conditions for compensation . What must be avoided is casting doubt over the correctness of the acquittal , in view of the strict evidentiary requirements that apply in criminal cases .

( CARDINAL ) The High Court opens the section of the judgment in which the compensation issue is decided by stating that notwithstanding the acquittal of [ the applicant ] , under NORP law [ Ms C. ] has not forfeited her right to claim compensation for pecuniary and non - pecuniary damage under the rules on civil compensation for the tortuous act which she says has taken place . The ORG continues :

‘ Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act , an award of compensation for pecuniary / non - pecuniary damage would not in itself amount to setting aside the acquittal.’

( CARDINAL ) The defence has argued that the interjection ‘ in itself’ constitutes a reservation that opens the way for the conclusion that doubt is cast on the judgment . I do not agree with this , nor that ORG , when providing in a subsequent paragraph a further description of the evidentiary requirements , refers to [ PERSON ] ’s claim that [ the applicant ] was ‘ guilty’ of an aggravated act towards her for which he has been acquitted in terms of criminal law . The expression ‘ guilty’ , which in fact was a quote from PERSON submissions , must be viewed with reference to the evidentiary requirements applicable in compensation cases of this nature and to the other conditions .

( CARDINAL ) After having outlined the chain of events that it has found established , ORG concluded that ‘ it is clear on the balance of probabilities that on TIME [ the applicant ] had sexual intercourse with [ Ms C. ] and that this intercourse was not voluntary on her ORG . This can not in my view be regarded as an attack on the acquittal . Nor does it go any further than what is necessary in order to establish that the conditions for compensation are present . The same applies when the majority of ORG states that on the balance of probabilities it was clearly probable that [ the applicant ] realised that PERSON did not want sexual intercourse with him and that ‘ [ the applicant ] by the use of violence has gained sexual intercourse with [ Ms C.].’

( CARDINAL ) To sum up , I note that ORG provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation . Moreover , the assessment of the conditions for compensation took place on an independent basis without any reference to the indictment or the written list of questions put to the jury . Furthermore , as I have already noted , I do not find that expressions of a typically criminal- law character were used . Factors of this nature were found to be decisive when ORG ruled on DATE that the presumption of innocence had been violated in that case , see paragraphs CARDINAL and CARDINAL of the decision . In our case , I am accordingly of the view that ORG marked the necessary distance to the criminal case and that it did not cast doubt on the acquittal in other ways .

( CARDINAL ) I have concluded on this basis that the appeal must be rejected . ”

The CARDINAL other judges agreed with the first voting judge “ in the main and the conclusion ” .

The applicant has submitted a letter of DATE from ORG ( Kontoret for voldsoffererstatning ) . It states that by a decision of CARDINAL May CARDINAL the ORG had granted PERSON CARDINAL in compensation , “ having found it shown on the balance of probabilities it was clearly probable that she had been inflicted personal injury as a result of a criminal act . ” It further notified the applicant that the ORG might seek restitution of ORG CARDINAL from him .

In so far as relevant , LAW read :

“ Any person who

a ) NORP engages in sexual activity by means of violence or threats , [ ... ]

shall be guilty of rape and liable to imprisonment for a term not exceeding DATE . In deciding whether the offender made use of violence or threats or whether the aggrieved person was incapable of resisting the act , importance shall be attached to whether the aggrieved person was DATE .

A penalty of imprisonment for not DATE shall be imposed if

a ) the said activity was sexual intercourse , or [ ... ]

A person who , due to gross negligence , is guilty of rape according to the first paragraph above shall be punished with minimum CARDINAL years’ imprisonment . ... ”

NORP Under NORP criminal law there are CARDINAL basic conditions that must be met in order to establish criminal liability :

( CARDINAL ) the accused has committed the proscribed act or omission ( actus reus ) which is contrary to a provision of LAW or to a special statutory penal provision in force at the time when the act was committed ;

( CARDINAL ) there are no exonerating circumstances ( e.g. self - defence ) ;

( CARDINAL ) the accused has acted with intent ( mens rea ) , unless otherwise expressly stated in the relevant penal provision ; and

( CARDINAL ) the accused was of sound mind at the time of the commission of the offence .

As a general rule , the prosecution has to prove these CARDINAL elements beyond reasonable doubt . Any reasonable doubt shall benefit the accused ( in dubio pro reo ) .

In so far as is relevant , LAW reads :

“ If the jury ’s verdict is that the person is not guilty , but the court finds that he is undoubtedly guilty , the court may unanimously decide that the case shall be retried before other judges . At the new trial the High Court shall be constituted as a composite court ( meddomsrett ) ... ”

Article CARDINAL of the same Code provides :

“ If the jury ’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to LAW , it shall render a judgement of acquittal . ”

No reasons are given for an acquittal .

Under LAW Procedure DATE , a civil claim may be pursued in connection with a criminal trial , provided that the claim arises from the same set of facts . The claim is decided by the CARDINAL professional judges who have taken part in the criminal case , without the participation of the jury .

Article CARDINAL reads :

“ Any legal claim that the aggrieved person or any other injured person has against the person charged may , in accordance with the provisions of LAW , be pursued in connection with such cases as are mentioned in LAW , provided that the said claim arises from the same act that the case is concerned with ...

The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of LAW ... ” .

The court will determine the claim on the basis of the evidence adduced during the trial . However , it may receive further evidence . Article CARDINAL of the Code of Civil Procedure , then in force , ( tvistemålsloven- LAW DATE no . CARDINAL ; replaced with effect from DATE by a new Code ) required that the professional judges , precisely and exhaustively , state the facts on which they base their decision on the alleged victim ’s civil claim .

Other provisions concerning civil compensation claims may be found in LAW of LAW , notably the following :

Article CARDINAL

“ In a public prosecution , the prosecuting authority may on application pursue such civil legal claims as are specified in LAW . ...

When civil claims are pursued against a person other than the person charged , the person concerned assumes the position of a party to the case in so far as this issue is concerned . ... ”

Article CARDINAL

“ Any person who has any such civil claim as is specified in LAW may himself pursue it in connection with a public prosecution if a main hearing is held . ... ”

Article CARDINAL

“ A separate appeal against a decision of civil claims shall be brought in accordance with the provisions of LAW . The same shall apply to a reopening of the case . ”

Under LAW DATE , the alleged victim may , regardless of the outcome of the criminal proceedings , claim compensation for pecuniary and non - pecuniary damage .

Section DATE , as in force at the relevant time , read as follows :

“ Anyone who , with intent or gross negligence has

a. Caused personal injury or

b. Committed an infringement or an act of misconduct as mentioned in section CARDINAL , may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation ( oppreisning ) for the pain and suffering and other non - pecuniary damage caused thereby . ...

A person who with intent or gross negligence has caused the death of another person , may be ordered to pay such compensation to the deceased ’s ... parents . ”

Section CARDINAL , referred to in the above provision , expressly applies to misconduct mentioned in , amongst others , LAW .

A claim for compensation for nonpecuniary damage submitted by a victim under section CARDINAL of the LAW is subject to his or her showing that the alleged perpetrator , with intent or gross negligence , committed the wrongful act . The test is normally the balance of probabilities and the burden of proof lies with the claimant . However , in a landmark ruling of DATE concerning civil liability for forced sexual intercourse ( PERSON , p. CARDINAL , at p. CARDINAL ; GPE v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINALII ) ORG held that the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities , bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation . In a case of the kind under consideration , the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed ( “ klar sannsynlighetsovervekt ” ) . This burden was heavier where liability may have serious consequences for the respondent ’s reputation , though it was less than for criminal liability .

The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same . The subjective constitutive elements in principle differ : normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence . There may be exonerating circumstances – such as self - defence , necessity , provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation ( see PERSON GPE ORG ) CARDINAL “ Erstatning til ofrene hvor tiltalte frifinnes for straff ” ( Compensation to Victims in Cases where the Accused has been Acquitted of ORG ) , study by Mr PERSON , Professor of LAW , sub - chapter CARDINAL.CARDINAL.CARDINAL ) .

The purposes of the criminal law and the law on compensation are not identical . While deterrence and restoration are important considerations in both areas of law , the former places emphasis on retribution and the latter on the spreading of financial loss . The CARDINAL systems also supplement one another in important respects . While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences , those of the law of compensation are particularly designed to meet the aggrieved person ’s need for economic redress ( ibid . , LAW , subchapter CARDINAL ) .

The above - mentioned study identified several justifications for maintaining the possibility to award compensation in connection with criminal proceedings even after an acquittal . It may serve the interests of economy of procedure and also psychological stress may be saved by treating criminal charges and compensation claims in joint proceedings . In comparison with civil proceedings , such joint proceedings were cheap both for the accused and for the victim who would be able to benefit from free legal aid for the handling of the civil claims . If the compensation proceedings had to await a final outcome in the criminal case ( at CARDINAL levels of jurisdiction ) , it could take DATE before they could start . For the victim , and also for the acquitted , this could involve a considerable extra psychological burden . Moreover , in joint proceedings , the demands for thoroughness that were inherent in the criminal process would contribute to increasing the quality of the examination of the civil claim . Furthermore , the exonerating effect of an acquittal was not likely to be greater in split proceedings than in joint ones . On the contrary , in view of the problems related to examining the criminal evidence twice , the effect would tend to be more consistent under the latter . Finally , in criminal cases giving rise to CARDINAL civil claim , deciding them all at the same time in connection with the criminal process would ensure a greater degree of “ procedural equality ” and coherence ( ibidem , LAW , sub - chapter CARDINAL.CARDINAL.CARDINAL and CARDINAL.CARDINAL.CARDINAL ) .


Violation of P1-1;Violation of Art. 13+P1-1

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE a plot of land measuring QUANTITY belonging to the applicant was expropriated for public needs in order to build an administrative and cultural centre and a road . The applicant received compensation of CARDINAL old NORP levs .

On DATE , after the entry into force of the DATE PERSON ( see paragraph CARDINAL below ) , the applicant made a request to the mayor of GPE in GPE ( “ the mayor ” ) for the revocation of the expropriation because neither of the public works for the purposes of which it had been expropriated had commenced .

On DATE the applicant paid back the compensation he had received in DATE at the time of the expropriation .

In a decision of CARDINAL DATE the mayor revoked the expropriation . Because of administrative omissions in that decision , on DATE the mayor issued a new one to the same effect .

It appears that for a certain period of time the applicant was able to use and to benefit from the whole property or at least from part of it ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE , DATE and DATE the applicant requested the mayor to modify the land register in order to include the returned land . A procedure to that effect commenced in DATE .

As by DATE the mayor had not yet ordered the modification of the land register , the applicant lodged an appeal against his tacit refusal to do so .

On DATE the mayor approved the modification and on CARDINAL DATE the applicant 's son in his capacity as owner of a neighbouring plot was officially informed about it .

According to the applicant on DATE an administrative sanction was imposed on him for having used the land after the expropriation . He appealed against the sanction to the domestic courts . It appears that the appeal was granted and the sanction was quashed on an unspecified date not DATE .

On an unspecified date the applicant found out that in the land register as modified in DATE the area of the returned land had been reduced to QUANTITY and a note had been added indicating that QUANTITY were part of a road the construction of which had already started .

On an unspecified date in DATE the applicant asked the court to declare the order of CARDINAL DATE null and void as it did not comply with the restitution orders .

In a judgment of DATE ORG declared the mayor 's order of DATE null and void as not being in compliance with the orders of CARDINAL DATE and DATE and thus being in violation of paragraph CARDINAL ) of the additional provisions of the DATE PERSON ( see paragraph CARDINAL below ) . This judgment was not appealed against and entered into force on DATE .

Subsequently , on DATE , the mayor approved the modification of the land register to include the whole area of the land .

In DATE the applicant initiated an action for damages under the ORG and ORG ( “ the ORG ” ) against ORG . Relying on the LAW and on LAW No . CARDINAL he alleged that due to the problems with the inclusion of the whole surface of the property in the land register , he had been unable “ to enter into possession , use and dispose of the returned land in the period DATE ” . He claimed potentially lost earnings and presented calculations from an expert based on the growing of certain types of agricultural products on the whole surface of the land for the period in question . The applicant also sought non - pecuniary damage for the anguish and suffering sustained .

At the hearing of DATE the applicant 's son testified that the applicant had used the whole area for DATE , but thereafter the municipal authorities had forbidden him to use part of it claiming that it had been allocated for the construction of a new road . He also testified that the applicant had been involved in court proceedings over that question and that because of these problems with the land the applicant had suffered anguish and frustration .

In a judgment of DATE ORG dismissed the claim as manifestly ill - founded , as did ORG in a final judgment of DATE .

On the one hand the courts admitted that there had been certain omissions on the part of the municipal authorities and that there had been obstacles preventing the applicant from using his land . On the other hand they held that registration in the land register was not decisive for ownership of the land , nor could it affect the right to use it . Furthermore , the applicant had not presented the order of DATE by which an administrative sanction had been imposed on him . Therefore , he had failed to prove the reasons and the extent of the alleged interference and that there had been a causal connection between the refusal to register the whole surface of the land in the land register and the damage allegedly sustained . He had also failed to prove that as a result of the actions or omissions of the municipal authorities he had sustained financial loss . The witness testimony had not clearly established what kind of anguish and suffering the applicant had experienced and there had been no medical evidence that he had suffered from a physical illness as a result of the alleged interference with his right of property . The courts did not specifically address the applicant 's arguments that he could not obtain an up - to - date plan view of the property and hence to dispose of the whole of this property .

In DATE the PERSON on ORG ( ORG за възстановяване на собствеността върху някои отчуждени имоти по ORG , ORG , ORG , ORG и ЗС , “ the DATE LAW ) was adopted . It provided for the restitution of expropriated property where specific conditions were met . The request for restitution had to be lodged with the mayor of the municipality , whose refusal could be appealed to the regional court . The mayor 's decision was binding on all ORG authorities ( paragraph CARDINAL(CARDINAL ) of the additional provisions ) . Owners who had received compensation for the expropriation had to return the compensation in order for the restitution order to enter into force ( section CARDINAL ) .

The land register is a land survey information system which consists of registers and cadastral maps .

At the relevant time the adoption and modification of the land register were governed by LAW of DATE ( “ the ORG ” ) and the Regulations on its implementation ( “ the Regulations ” ) .

The ORG and the Regulations provided that the land register should contain information , inter alia , about the boundaries , the area and the type of plots of land , the constructions on these plots and the ownership rights over them . Most of this information had to be mentioned in the deeds and contracts concerning immovable property , such as notary deeds , sales contracts , superficio contracts , etc . All of these deeds and contracts had to be accompanied by a plan view issued by the regional land register service ( section CARDINAL of the Regulations ) . The state authorities and the domestic courts were under the obligation to inform the land register officials , inter alia , of all changes in the ownership and the boundaries of private properties which had come to their knowledge . These changes had to be duly entered in the land registers and maps ( sections CARDINAL and CARDINAL of the ORG ) .

As of DATE the ORG was replaced by ORG ( “ the CPRA ” ) . It clarified and expanded the provisions in respect of the land register . LAW b , in force as of DATE , provided that for the issuance of notary deeds and other acts concerning the rights over immovable property a plan view , i.e. a copy taken from the cadastral maps was necessary . The same was provided in section CARDINAL(CARDINAL ) of Ordinance No . CARDINAL of DATE ( Наредба № CARDINAL от CARDINAL г. за съдържанието , създаването и поддържането на кадастралната карта и кадастралните регистри ) , which governed the keeping of the cadastral maps and registers .


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

The first applicant , PERSON , was born in DATE and lives in LOC . The second and third applicants , PERSON and PERSON , were born in DATE and DATE respectively and live in LOC . The fourth applicant , PERSON , was born in DATE and lives in GPE . All the applicants are NORP nationals and were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON of ORG .

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

By virtue of a binding judgment of ORG dated DATE , ORG of GPE , ORG and several private persons were ordered to pay the applicants pecuniary and non - pecuniary damages for the harm caused by the deaths of their husbands , who had drowned in a shipwreck on DATE .

The judgment debt consisted of payments in the form of a lump sum and DATE allowances , the latter obligation arising with effect from DATE . The practical arrangements for payment of the judgment debt were not specified .

On DATE and CARDINAL DATE the applicants complained to ORG of ORG that they had not received their allowance for DATE ; the corresponding arrears amounted to CARDINAL United States dollars ( ORG ) ( CARDINAL euros ( ORG ) ) .

In a reply of CARDINAL DATE ORG , officially classifying the applicants’ case as of high importance , pledged to undertake specific enforcement measures with the aim of paying the above - mentioned arrears without delay .


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

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

On DATE the applicant was committed to ORG and then continuously detained in several penitentiary facilities . On DATE he was released .

The applicant submitted that throughout his detention he had been held in overcrowded cells in conditions which did not comply with the basic standards of hygiene .

The Government submitted that they could not confirm whether during his stay in ORG the applicant had been detained in cells with a surface area of CARDINAL m² per person . However , they acknowledged that during the applicant ’s detention , the remand centre had been overcrowded . The Government did not comment on the conditions of the applicant ’s detention in the remaining penitentiary facilities .

The applicant lodged several complaints with the penitentiary authorities regarding the conditions of his detention . None of them was considered well - founded .

On DATE the applicant brought a civil action in tort against ORG to seek compensation for the infringement of his personal rights . However , he failed to submit any information as to its outcome .

A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in GPE and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the ORG ’s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE and § § CARDINAL respectively ) . More recent developments are described in the ORG ’s decision in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE ) .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants are siblings . The first applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The second applicant , PERSON , is a NORP national who was born in DATE and lives in GPE ( NORP Republic ) . The third applicant , ORG , was born in DATE and died in DATE . She was a NORP national . The first and the second applicants as her exclusive heirs expressed the wish to continue the application in the third applicant 's stead .

In DATE the first and second applicants appointed Mr PERSON , a lawyer practising in GPE , to represent them in the proceedings before the ORG .

The Government of GPE ( “ the Government ” ) were represented by their successive Agents , PERSON and PERSON .

Proceedings for recovery of the applicants ' property

The applicants ' parents owned a plot of land of QUANTITY which had been allocated to them in DATE . The plot was used as an orchard .

In DATE the applicants ' father joined an agricultural cooperative . He put the above plot of land at the cooperative 's disposal . The cooperative thereby obtained the right of “ cooperative use ” in respect of the land . The owners retained the ownership title in the form of nuda proprietas .

In DATE the applicants ' father terminated his membership of the cooperative which , however , continued using the plot . Following a restructuring of ORG and exchanges of land between them , the plot was transferred to the GPE cooperative , which later merged with the GPE cooperative .

In DATE the GPE cooperative put the land at the disposal of ORG ( Slovenský zväz záhradkárov DATE “ the Union ” ) , free of charge , for a period of DATE . The area where the plot is located was turned into garden allotments consisting of individual gardens which were placed at the disposal of members of the Union . The land has since then been used by the gardeners .

In DATE the GPE ORG and the Union concluded a contract extending the ORG 's right to use the plot until DATE .

After their parents ' death the applicants acquired ownership of the plot by succession .

In a letter of DATE the president of the NORP cooperative expressed the view that , as the cooperative had acquired the applicants ' plot by exchange , the “ cooperative use ” regime did not apply to that land . In any event , the land could not be restored to the applicants as it was being used by gardeners in allotments . The ORG offered to put a different plot of land at the applicants ' disposal or , alternatively , to conclude a rent contract with them .

In DATE the applicants brought an action against the ORG claiming payment of rent for the use of the plot .

On DATE the ORG asked the applicants to indicate whether they maintained their claim . In DATE the applicants informed the court that they wished to claim compensation for unjustified use of their land by the gardeners . The applicants submitted no further information in respect of the proceedings concerning that claim .

On DATE the applicants sued the ORG and representatives of the CARDINAL allotments concerned . They claimed that the land should be returned to them .

On DATE ORG dismissed the action . ORG quashed that judgment and instructed the first - instance court to take further evidence . The case was transferred to ORG .

On DATE the applicants provided further particulars and explained that under LAW they sought a court ruling ordering the defendants to vacate their land .

On DATE ORG dismissed the action .

In the reasons for its judgment ORG , with reference to documentary evidence and witness statements , established that the above contract of DATE extending the gardeners ' right to use the land until DATE was void as it had not been duly signed by the parties ' representatives . However , that shortcoming had not affected the cooperative 's right to use the property . After the entry into force of LAW CARDINAL that right had been converted into a lease pursuant to LAW . The judgment further stated that as the applicants had not terminated the lease in respect of the defendants , their application for the land to be vacated could not be granted .

The applicants appealed . They argued that ORG had incorrectly found that the GPE cooperative had maintained the right of cooperative use of their plot . The applicants also alleged that they had given notice to the representatives of the gardeners ' allotments concerned in DATE and had requested them to vacate the property in DATE .

On DATE ORG upheld the first - instance judgment . While summing up the conclusions reached by ORG , ORG stated that , in the absence of any other agreement between the applicants and the cooperative , the latter was to be considered as renting the land from the applicants with effect from the entry into force of LAW DATE . It had not been shown that the applicants had put an end to that legal relationship .

In its judgment the court of appeal confirmed that the provisions of LAW DATE were applicable to the applicants ' land . They should have sought redress in accordance with that LAW , which was a lex specialis in respect of the general protection of ownership rights under LAW . The applicants ' action under the latter provision could therefore not be granted . In the judgment reference was made , inter alia , to sections DATE , DATE and DATE of LAW DATE .

On DATE the applicants brought an action before ORG against the CARDINAL allotments as an entity and their representatives . They claimed that the defendants should be obliged to refrain from any interference with the plaintiffs ' ownership rights . On DATE the ORG discontinued the proceedings as the applicants had failed to rectify formal shortcomings in their action , despite prior warnings and indications as to how to do so .

In the meantime , in DATE , the applicants gave notice to the representatives of the allotments of their intention to terminate the lease of their land as from DATE .

In DATE the applicants lodged a complaint under LAW in respect of the above judgments of DATE and DATE . They contended that the ordinary courts ' decisions had been arbitrary as the courts had disregarded the relevant evidence . In particular , the courts had overlooked the fact that the applicants had given notice to the defendants in DATE and DATE and that in the above letter of DATE the president of the GPE cooperative had confirmed that the latter had not acquired the right of cooperative use of the land . The applicants relied on the constitutional equivalents of LAW No . CARDINAL .

On DATE ORG declared the complaint inadmissible . It found no indication that the way in which the proceedings before the ordinary courts had been conducted and the conclusions reached by those courts were contrary to the applicants ' constitutional rights in issue .

On DATE the first and second applicants issued notice to the individual gardeners using their land , requesting them to vacate the land .

On DATE the first and second applicants informed the ORG that the gardeners were continuing to use their land .

Proceedings under LAW .

On DATE the gardeners in the allotments requested that the tenancy and ownership relationship in respect of their gardens be settled by means of a land consolidation procedure under LAW . ( see “ Relevant domestic law ” below ) .

On DATE ORG rejected the request . On DATE ORG upheld that decision . The authorities found that the applicants ' land used by gardeners in the allotments did not fall under LAW . , as the gardeners had not shown that a valid contract entitled them to use the land . In particular , the DATE contract allowing the gardeners to continue using the land until DATE was void due to formal shortcomings . Reference was made to ORG judgment of DATE .

The decision became final on DATE .

Administrative proceedings concerning gardeners ' huts

CARDINAL gardeners in CARDINAL of the allotments applied to the PERSON municipality for retrospective planning permission in respect of the huts they had built in the gardens .

The applicants objected , arguing that the gardeners had no rights of use over the land .

The municipal authority noted that the applicants ' objection related to their proprietary rights in respect of the relevant plots . In accordance with section CARDINALa of LAW DATE , read in conjunction with Article CARDINALc of LAW , such issues fell to be determined by a court . For that reason the PERSON municipality , on DATE , stayed the administrative proceedings pending the outcome of the judicial proceedings which the applicants were required to bring .

On DATE , on a request lodged by the first applicant , the PERSON municipality ordered the removal of several huts in a different allotment . The authority noted that the construction of the huts in issue had been permitted only temporarily until DATE on the condition that after that date the gardeners concerned would remove them at their own expense . On CARDINAL and CARDINAL DATE ORG dismissed the appeals lodged by the gardeners .

CARDINAL of the gardeners sought a judicial review of the above administrative decision of CARDINAL DATE . The proceedings are pending before ORG which , on that ground , issued an injunction preventing the decision in question from being enforced .

Under LAW , owners have the right to protection against unjustified interference with their ownership rights by others . In particular , they are entitled to claim restitution of the property from those who hold it without any valid legal ground .

Article ORG entitles courts to determine landowners ' claims against persons who have constructed a building without permission on their plots . The courts can order the removal of such buildings at the expense of their owners ( paragraph CARDINAL ) , grant ownership of such buildings to the landowners against compensation ( paragraph CARDINAL ) or settle the relationship between the persons involved in a different way , in particular by granting an easement ( paragraph CARDINAL ) .

Article CARDINAL § CARDINAL provides that every person is liable for any damage he or she causes by breaching an obligation resulting from law .

LAW CARDINAL entered into force on DATE .

Paragraphs CARDINAL ( a ) , ( b ) and CARDINAL of section CARDINAL provide that , as from the entry into force of the LAW , ORG ' right to use other persons ' land is revoked and , unless a different agreement is reached with the owners , the user of the land acquires tenancy rights thereto . This lease relationship can be terminated by notice given by DATE .

Under LAW ( CARDINAL ) , as in force until DATE , in cases where the land was used by individual gardeners in an allotment , the tenancy could not be terminated before the date until which the land was originally put at the users ' disposal . Unless the parties otherwise agreed , the gardeners had the right to have the tenancy extended by DATE .

Section CARDINAL ( CARDINAL ) entitled the owners of land used by gardeners in allotments to request , within DATE from the entry into force of the LAW , that the land in question be exchanged for a different plot of land owned by the ORG .

The principal purpose of the LAW is to arrange for the return to the categories of persons referred to therein of agricultural property the ownership of which was transferred to the ORG or other legal persons in the circumstances specified in the LAW DATE and DATE . Section CARDINAL obliges the persons holding such land to return it to the original owners within DATE of the latter 's request . It also provides for a procedure in the event of refusal by the former to return the property . Under LAW ( CARDINAL ) ( d ) , land on which an allotment has been established can not be returned to the original owner .

Act PERSON . governs the use of land within allotments and the transfer of ownership rights in respect of such land . It repealed section CARDINAL ( CARDINAL ) of LAW DATE with effect from DATE .

Section CARDINAL ( CARDINAL ) of the LAW provides that the users of land in allotments acquire the right to lease it as from the entry into force of the LAW .

The main purpose of the LAW is to permit the transfer of ownership of the land to gardeners in allotments where the majority of gardeners so request and where the owners oppose the transfer ( further details concerning the relevant provisions and the domestic practice are set out in GPE obec PERSON v. GPE , no . FAC , § § DATE and CARDINAL - CARDINAL , ORG DATE ... ( extracts ) ) .

Section CARDINALa governs proceedings concerning the approval of buildings constructed without permission . Where the owner of such a building can not prove that he owns the relevant plot or otherwise has title to it and where the owner of the plot disagrees with the construction being authorised , the administrative authority must refer the landowner 's claim to a court and stay the proceedings under LAW DATE pending the outcome of the judicial proceedings .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , PERSON , PERSON and PERSON PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) did not designate an Agent for the purposes of the proceedings before the ORG .

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

On DATE at TIME a group of police officers from the Anti - Terrorism Branch of ORG surrounded the applicant ’s house in PERSON . The applicant alleges that the police officers entered the house , carried out a search and asked the applicant ’s daughter , PERSON , to show them the cellar which was in the basement of the house . PERSON resisted going down with them ; however the officers forced her to . The applicant then heard the police officers ask PERSON whether there were any ORG terrorists in the house . When PERSON replied that there was no one else in the house , she was beaten and insulted . After TIME , the applicant heard gun shots . The firing continued for TIME . When the firing stopped , the applicant and the other family members were taken out and they saw that PERSON , who was badly wounded , was lying in the street . The applicant tried to help his daughter , but the police officers prevented him by pointing a gun at his head . No medical assistance was requested and PERSON was left in the street for a long time . The police officers told PERSON that they would only take her to the hospital if she accepted that there were other terrorists in the house . After some time , PERSON was taken to ORG , where she died .

On DATE , a classical autopsy was performed on PERSON ’s body at ORG in the presence of the PERSON public prosecutor . The report indicates that a bullet which had entered the body from the left of the chest damaged the spleen , stomach , and the left part of the liver , and the cause of death was internal bleeding .

On DATE , the police officers drew up an incident and arrest report . In the report , it was stated that , upon receipt of intelligence that armed ORG terrorists had been hiding in the applicant ’s house , an operation was conducted to arrest the terrorists . The incident report states that , upon arrival at the scene at TIME , the house was surrounded by the security forces . At that time , CARDINAL persons tried to leave the house by the back door . The security forces ordered them to surrender but CARDINAL of the terrorists threw a hand grenade towards the officers . The officers then fired warning shots into the air and the terrorists responded with gun shots . A clash broke out , during which CARDINAL terrorists died and CARDINAL of them was wounded . CARDINAL police officers were also wounded during the clash . The wounded terrorist ( PERSON ) was taken to ORG . The police then secured the area and conducted a search . They found CARDINAL hand grenades and a PERSON pistol on the first terrorist , ORG , and CARDINAL hand grenades and an Astra model gun on the second terrorist , S.R , a NORP national . They also found another hand grenade which was ready to explode near the CARDINAL bodies . PERSON ( the applicant ) , PERSON and PERSON were taken into custody for aiding and abetting the ORG .

Also on DATE , FAC issued a public statement and announced that , in the course of an operation conducted against the ORG , CARDINAL terrorists had been killed and QUANTITY police officers had been wounded .

On DATE ORG delivered a ballistics report . It established that there were gunpowder traces on the hands of ORG and ORG No evidence of any gunpowder residue was found on PERSON ’s hands . The ballistics report further confirmed the existence of an explosive material in the earth sample which had been brought for analysis from the scene of the incident where the hand grenade had exploded .

For the purpose of the proceedings before the domestic courts , the applicant instructed CARDINAL lawyers who worked at the same law office , namely PERSON and Mr PERSON .

On DATE the applicant ’s representatives lodged a petition with the PERSON public prosecutor , stating that the applicant ’s daughter had been unlawfully killed by the police . Maintaining that PERSON was not connected to any illegal organisation , they requested the prosecutor to conduct an investigation into her death .

On DATE , pursuant to Law No . DATE on the prosecution of civil servants , the PERSON prosecutor sent the file to ORG office to obtain authorisation to initiate criminal proceedings against the CARDINAL police officers who had been involved in the operation .

On DATE the Governor appointed a police officer as rapporteur to investigate the allegations . On DATE , basing himself on the rapporteur ’s report , the Governor decided that there was no need to prosecute the accused police officers .

This decision was challenged before ORG . However , the challenge was rejected .

On DATE , referring to the decision of ORG , the PERSON public prosecutor delivered a decision of non - prosecution in respect of the police officers .

On DATE the applicant ’s representatives appealed .

On DATE ORG rejected the applicant ’s appeal . This decision was notified to PERSON on DATE and to Mr PERSON on DATE .


Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Ms S. Singer , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Ambassador H. PERSON , Head of ORG at ORG .

The applicant fled GPE in DATE . She applied for asylum in GPE on DATE , stating that she comes from a village in GPE and belongs to the ORG group . Her mother still lives in that village , her father died when she was DATE .

In DATE she should have undergone ORG ( female genital mutilation ) , as according to the custom in her village , DATE the unmarried women were to undergo ORG . The applicant ’s sister had died because of the consequences of ORG and the applicant had told her mother she did not want to undergo ORG , but was told that she would have to accept it . The applicant submitted that police would not interfere in what they saw as a tradition and that the other villagers might kill her if she refused ORG .

The applicant fled from her village and stayed with a friend in a neighbouring village for DATE but had to leave due to fights that broke out in the village . The applicant then travelled to GPE on an unknown route .

ORG ( Bundesasylamt ) rejected the applicant ’s request for asylum on DATE and stated that her expulsion to GPE was permissible . It held that the applicant , whose statements were credible , disposed of an internal flight alternative . She could for instance live in another province or in one of the big cities . Consequently , she could not be considered to be in danger of treatment contrary to LAW . It stated that no national legal prohibition of ORG was in force in GPE , but several federal states had such provisions in force . ORG concluded that the reasons for fear could not be imputed to the state . As the state could not be deemed unable or unwilling to offer protection , the applicant was expected to avail herself on the protection offered by the state .

The applicant , represented by counsel , lodged a complaint against the decision before ORG ( Asylgerichtshof ) .

By decision of DATE ORG rejected the complaint , finding that ORG had not erred when assessing the evidence and no new circumstances had come to light to necessitate re - assessing the evidence . With regard to ORG , ORG held that the practise was declining , but still existed . However , state authorities might have afforded protection to the applicant , and the applicant disposed of an internal flight alternative . Since the applicant had stated to have attended school for DATE and having gained CARDINAL years’ working experience as a seamstress , it was reasonable to assume that the applicant would find work .

The applicant complained to ORG and applied for legal aid . She argued that ORG had not sufficiently taken into consideration that she was a single woman without any family relations except for her mother , who lives in the village she had to flee to avoid ORG . In her situation , it was almost impossible that she could move to another area in GPE and make a living there , as single women were still viewed with suspicion and faced hardships e.g. when trying to rent a flat . The applicant further argued that the fact that she had to flee her family because of the threat of ORG and was expected to start a new life on her own in a different part of GPE , with the risk of ending up in poverty and in degrading circumstances , already amounted to a violation of LAW .

By decision of DATE , ORG refused legal aid and refused to deal with the complaint , holding that the complaint did not raise any issue of constitutional law and thus had no prospects of success . The decision was served on the applicant ’s counsel on DATE .

The ORG reiterates that in the case GPE and others v. GPE ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE , it noted the following with regard to ORG in GPE :

“ [ CARDINAL . ] General

FGM comprises all procedures that involve partial or total removal of the external female genitalia or other injury to the female genital organs for non - medical reasons . ORG ( “ WHO ” ) noted the following key facts about ORG in its Fact Sheet No . CARDINAL ( DATE ) : CARDINAL girls and women worldwide live with the consequences of ORG . It is mostly carried out on young girls some time between infancy and DATE and in LOC QUANTITY girls from DATE and above have undergone ORG .

There are different forms of ORG ( see Eliminating Female Genital Mutilation : An Interagency Statement DATE of various international organisations including the ORG , the ORG High Commissioner for Refugees ( “ ORG ” ) , ORG ( “ ORG ” ) and ORG ( “ UNIFEM ” ) ) . These include Clitoridectomy , Excision and Infibulation .

The same ORG statement described ORG as a violation of , inter alia , the right to freedom from torture , inhuman and degrading treatment so that protection from ORG was provided for by various international treaties ( Convention on the Rights of LAW ) , by regional treaties ( LAW to LAW , “ LAW ” ) as well as by consensus documents of several international organisations . ORG on Torture and other Cruel , Inhuman or Degrading Treatment or Punishment considers that ORG amounts to torture even if it is legal and/or medicalised ( Report to ORG , DATE . See also joint Global strategy to stop health - care providers from performing female genital mutilation DATE of , inter alia , the WHO , ORG , ORG and ORG ) .

[ CARDINAL . ] Legal position as regards ORG in GPE

Nigeria is a federal republic of CARDINAL states with a population of MONEY . LANGUAGE is one of its official languages .

In DATE GPE ratified LAW , LAW to legislate to prohibit ORG . LAW prohibits “ torture or inhuman or degrading treatment ” . A PERSON banning PERSON was introduced at federal level in GPE and it was withdrawn when ORG stepped down in DATE . Since this PERSON has not been re - introduced , there is currently no general federal law against the practice of ORG in GPE . However , CARDINAL of GPE in GPE have adopted laws specifically prohibiting ORG , including GPE ( CARDINAL of which is LOC ) and almost the whole of the south - west . The federal LAW DATE provides that causing ORG is a punishable offence and that federal LAW has been enacted in CARDINAL of GPE . “


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

He was represented before the ORG by Mr PERSON , of ORG .

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

The applicant was originally from GPE ( FRG ) , where he had first worked as a chartered accountant and later managed an office for a firm of tax consultants . In DATE he set up his own business , specialising in advising and rescuing companies in difficulty . In DATE , before GPE ’s reunification , which came into effect on DATE , he moved to GPE in GPE ( GDR ) with the intention of setting up a tax consultancy there although he had not taken the examination required in the FRG for carrying on the occupation of a tax consultant ( PERSON ) . Also in DATE the applicant acquired NORP citizenship so as to be able to set up his tax consultancy in the GPE .

In a decision taken on DATE ORG ( Finanzministerium ) of the GPE , acting through the Director of ORG ( PERSON Besitz- PERSON ) , granted the appointment ( PERSON ) of tax consultant to the applicant although he had not taken the examination likewise normally required in the GPE for the practice of that profession .

The applicant then set up his tax consultancy , which was quite successful . In DATE he had CARDINAL employees and an DATE turnover of MONEY ( DEM ) .

After reunification , the GPE tax authorities ( GPE für PERSON ) stated in a note ( NORP ) of CARDINAL DATE that the applicant ’s appointment had been lawful and that none of the grounds for revocation referred to in section CARDINAL(CARDINAL ) of the ORG ’s Tax Consultants Act DATE ( Steuerberatungsgesetz DATE see Relevant domestic law and practice below ) existed .

In a decision of DATE the tax authorities of ORG ( PERSON ) revoked the appointment pursuant to section CARDINAL(CARDINAL ) as amended in LAW DATE ( Steuer- beratungsgesetz DATE see Relevant domestic law and practice below ) on the ground that the appointment had been made in breach of the statutory provisions then in force in the GPE . They said that conditions of appointment at the relevant time , DATE namely , the requirement of DATE previous experience as a tax consultant in the GPE – as set out in LAW ( PERSON – see Relevant domestic law and practice below ) had not been satisfied . According to the tax authorities , that Order did not take into account experience gained as a tax consultant in the ORG . The purpose of the Order was , in fact , to facilitate access to the occupation of tax consultant by citizens of the GPE who had the knowledge of the subject required in the GPE , not to allow citizens of the ORG to use it as a roundabout way of gaining appointment without taking the requisite examination .

The applicant appealed against that decision . According to him , his appointment as a tax consultant by ORG of the GPE was permanent and lawful . By virtue of section CARDINALa(CARDINAL ) of LAW DATE ( see Relevant domestic law and practice below ) , tax consultants appointed between DATE and DATE had been granted provisional appointments until DATE ; and the subsequent amendment of the Act in DATE was unconstitutional because in section CARDINAL a new ground for revocation had been added , CARDINAL not mentioned in the previous LAW ( see Relevant domestic law and practice below ) . Moreover , he had acted in good faith since he had given all the requisite details to ORG , which in full knowledge of the facts had appointed him as a tax consultant . He had then , he said , made substantial investments in the running of his firm and he could not at the time foresee that his appointment would be revoked following subsequent legislative amendments .

In a judgment of DATE ORG ( ORG ) dismissed the applicant ’s appeal and upheld the decision of the tax authorities on the same grounds . It stated , inter alia , that the provisions of LAW of the GPE ’s Tax Consultants Order were clear , as was apparent from the settled case - law of ORG ( ORG ) in similar cases , and that the provisions excluded any experience gained in the ORG . At the time of the applicant ’s appointment in DATE , there might have been isolated instances of NORP civil servants who , given the general “ end - of - an - era ” state of the regime , had made appointments based on their own interpretations of the relevant statutory provisions , but that had not in any way reflected a general practice .

In a decision of DATE ORG refused to allow an appeal on points of law by the applicant , on the ground that it did not raise a new question of law .

In a decision of CARDINAL DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , refused to stay execution of the decisions of the lower courts . It held that neither the interpretation nor the application of the relevant legislative provisions by ORG , which had relied on settled case - law of ORG , infringed the applicant ’s fundamental rights . That applied both to ORG analysis of the initial conditions to be met for the applicant ’s appointment and to its belief that the applicant must , in view of section CARDINAL ) of LAW , have known why his appointment was illegal .

In a decision of DATE ORG refused to consider the merits of the applicant ’s appeal .

In DATE , as a result of those decisions and in accordance with section CARDINAL ) of the DATE LAW ( see Relevant domestic law and practice below ) , the applicant had to close his firm of tax consultants . He subsequently sold his firm and his good will .

The GPE ’s Tax Consultants Order ( Steuerberatungsordnung ) was issued by the ORG ( ORG ) in GPE final DATE . It was dated DATE and came into force on DATE .

In LAW it provided that in order to be appointed as a tax consultant , a candidate had to have taken an examination for tax consultants or have been granted an exemption .

Under LAW , CARDINAL of the conditions for being appointed as a tax consultant were that the candidate was a citizen of the GPE and resided there .

Article CARDINAL provided :

“ Conditions of exemption from the examination

( CARDINAL ) Candidates shall be exempted from the examination for tax consultants if they satisfy the conditions set out in LAW and

NORP ...

NORP ...

NORP establish that they have TIME years’ experience as a ‘ skilled worker’ in the area of tax consultancy as their main occupation .

( CARDINAL ) The following shall be deemed to be carrying on their main occupation in the area of tax consultancy :

ORG assistant accountants admitted under LAW ,

NORP former directors and executives of ‘ people ’s LANGUAGE in accountancy and business consultancy and of the financial bodies ,

NORP authorised tax agents , in accordance with LAW .

( CARDINAL ) ...

( CARDINAL ) ORG from the examination shall be subject to the consent of the supervisory authority . ”

( “ Voraussetzungen für die PERSON

( CARDINAL ) PERSON die Bewerber zu befreien , die die ORG gemäß § CARDINAL NORP CARDINAL erfüllen und

NORP ...

NORP ...

NORP als GPE QUANTITY fünfzehnjährige hauptberufliche GPE nachweisen .

( CARDINAL ) Eine hauptberufliche ORG üben aus :

NORP praktizierende PERSON in GPE , die über eine GPE gemäß § CARDINALa der Abgabenordnung ( ORG . CARDINAL des Gesetzblattes ) verfügen ,

NORP ehemalige verantwortliche und leitende Mitarbeiter der VEB Rechnungsführung und Wirtschaftsberatung sowie der Finanzorgane ,

Steuerbevollmächtigte gemäß § CARDINAL PERSON .

( CARDINAL ) ...

( CARDINAL ) Die PERSON bedarf der GPE durch die PERSON . ” )

As a result of LAW ( Einigungsvertrag ) of CARDINAL DATE , all the ORG ’s legislation was extended to cover the territory of the GPE . This was also true of the ORG ’s Tax Consultants Act whose provisions applied to the former GPE from DATE . Reunification itself took effect on DATE .

After the treaty had been signed , the DATE version of the FRG ’s Tax Consultants Act ( Steuerberatungsgesetz ) was twice amended : once in DATE and once in DATE .

In the DATE version section CARDINALa(CARDINAL ) , first paragraph , was worded as follows :

“ A tax consultant shall be regarded as having been appointed provisionally ( vorläufige PERSON ) if he was appointed in the former GPE after DATE and before DATE in accordance with the legislative provisions then in force . This provisional appointment shall allow him to practise his profession in the district in which he was appointed . After DATE the highest Land authority shall decide on his permanent appointment after consulting with the relevant ORG ( Steuerberaterkammer ) . Permanent appointment can not be refused if the candidate has successfully completed a training course . ... ”

( “ Als vorläufig bestellt ORG , die nach dem CARDINAL . DATE FAC . DATE bestellt worden sind . PERSON haben mit der vorläufigen PERSON GPE uneingeschränkten ORG in GPE für das NORP des Bezirks , in dem sie bestellt worden sind . Über die endgültige Bestellung entscheidet die zuständige oberste ORG i m LOC zuständigen Steuerberaterkammer nach DATE . DATE . Die endgültige PERSON nicht versagt werden , wenn PERSON an einem Übergangsseminar erfolgreich teilgenommen hat . ... ” )

In the DATE version the following CARDINAL sentences were added to section CARDINAL ) :

“ ... Permanent appointment also presupposes that none of the grounds set out in section CARDINAL(CARDINAL ) , second sentence , for revoking a provisional appointment exists . Provisional appointments shall expire on DATE at the latest . ... ”

( “ ... Die endgültige GPE setzt ferner voraus , daß PERSON für eine NORP der vorläufigen GPE nach § QUANTITY . CARDINAL PERSON . PERSON vorläufige PERSON erlischt QUANTITY . DATE . ... ” )

In the DATE version section CARDINAL(CARDINAL ) read :

“ The appointment shall be revoked if the tax consultant secured it by means of intentional deception , threat or bribery or by supplying information that was incorrect or incomplete in a material respect . ”

( “ PERSON ist zurückzunehmen , wenn PERSON ... die GPE durch arglistige GPE , ORG oder PERSON oder durch ORG erwirkt hat , die in wesentlicher LOC unrichtig oder unvollständig waren . ” )

In the DATE version a second sentence was also inserted in section CARDINAL(CARDINAL ) which provided :

“ ... A provisional appointment of a tax consultant ( section DATE ) shall be revoked if it was unlawful ( rechtswidrig ) and the person knew or should have known the circumstances giving rise to the unlawfulness ... ”

( “ ... PERSON vorläufige PERSON ( § CARDINALa ) ist zurückzunehmen , wenn sie rechtswidrig war und der Begünstigte die LOC oder CARDINAL mußte , die die PERSON begründen ... ” )

In DATE the finance ministries of the various ORG carried out a general check on the provisional appointments made during the transitional period .