Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicant was born in DATE and lives in GPE .

The applicant was arrested on DATE . In DATE he was convicted of conspiracy to murder and sentenced to CARDINAL years’ imprisonment in a strict - regime prison . Following the delivery of a non - final judgment , on DATE he was transferred to ORG , where he was placed in a special security cell . On DATE the applicant ’s defence counsel filed a request for transfer with ORG . On DATE the Head of ORG of ORG ( “ the Penitentiary Administration ” ) authorised the applicant ’s transfer to ORG .

Upon a subsequent decision of ORG ( “ the “ Committee ” ) , on DATE the applicant was transferred to ORG in order to be placed in a special security department . In this context the Government submitted that the prison authorities had been informed that his escape had been under preparation ; that under LAW ) of Act no . ORG of DATE on ORG this kind of information relating to the security of detention could not be communicated to the detainee ; that , besides , further criminal proceedings were being conducted against him ; and that these elements had warranted his placement in an appropriate , closed institution and his separation , as far as possible , from his accomplices . The applicant ’s placement in a special security department was also supported by information received from ORG , classified as a ORG secret . The information which served as the basis for the decision has never been revealed to the applicant . None of the applicant ’s accomplices were placed in a special security department .

DATE and DATE the applicant was detained as a “ Grade CARDINAL security ” inmate in GPE prison ’s special security department ( “ KBK ” ) , apart from the period DATE , which he spent in similar circumstances in FAC . His classification as a “ Grade CARDINAL security ” inmate and his placement in the “ KBK ” department were reviewed and prolonged at regular intervals , but without any reasoning . His complaints about the conditions of detention to the ORG Commander of Penitentiaries , the GPE - Abaúj - Zemplén County Public Prosecutor ’s Office and the Attorney ORG were to no avail . Upon the applicant ’s enquiry , on DATE ORG stated that “ decisions concerning placement in ORG departments falls within the jurisdiction of ORG , therefore ORG is not entitled to take measures in this regard . ” ORG found that all the measures taken by the prison authorities had a proper legal basis .

The rules pertaining to the conditions prevailing in the ORG departments are outlined in the chapter on Relevant domestic law ( see paragraphs CARDINAL to CARDINAL below ) . The applicant submitted that there was only artificial light in his cell , the ventilation was insufficient , the toilet had neither a seat nor a cover , and he had to endure full cavity searches on a DATE basis . Moreover , the range of objects he was allowed to possess in his cell was very restricted : no watch , pen , comb , plastic cutlery , teabag or stationery was allowed , and he could have only a limited number of books or newspapers .

Subsequently , the applicant was transferred to ORG . His detention continued under the “ Grade CARDINAL security ” regime , although he was no longer placed in a ORG department . He was accommodated in a special security cell located in the basement level of the institution .

Having served his sentence , the applicant was released on DATE .

“ ( CARDINAL ) NORP shall have the right to access , with the exceptions specified in subsection ( CARDINAL ) , all the data related to them and to request the rectification of any incorrect data and the deletion of unlawfully kept data . Such requests of the inmates shall be complied with .

( CARDINAL ) LOC relating to the security of detention and originating from an action which the detainee must tolerate under the law shall not be communicated to the inmate . On release , such data shall be communicated to the inmate upon request , unless they contain service or ORG secrets . ”

“ ( CARDINAL ) Unless provided otherwise under the law , matters relating to an inmate ’s detention shall be decided on – upon request or ex officio DATE by the head of the designated unit of the penitentiary institution in which the inmate is residing for the purpose of serving the punishment or measure imposed on him . In matters relating to his detention , the inmate may , without indicating the subject matter of his request ... , request the head of the unit or the governor of the penitentiary to hear him in person , or submit a written request .

( CARDINAL ) ORG may file a complaint to the governor against a ruling , measure , decision or omission occurring in the context of subsection ( CARDINAL ) . Where the decision has been taken by the governor ... , the complaint shall be examined by the national governor .

( CARDINAL ) Where , in cases specified under the law , the inmate ’s case was decided on ... by the national commander , the complaint shall be examined by the Minister ... ”

“ ( CARDINAL ) Inmates shall be classified by ORG ... as belonging to the ‘ Grade CARDINAL , CARDINAL , CARDINAL or CARDINAL security PERSON on the basis of the increasing threat level which their detentions pose .

( CARDINAL ) When assigning inmates into a security group , the following elements shall be taken into consideration :

a ) the offence committed ( its nature and circumstances ) , the duration of the imprisonment and the prison regime imposed , the portion of the sentence not yet served , and the date of parole ,

b ) the inmate ’s personality , previous record , health and physical state and contacts ,

c ) DATE if other criminal proceedings have been instituted against the detainee – the nature and circumstances of the act giving rise to those proceedings ,

d ) the characteristics of the penitentiary institution and the security aspects of the inmate ’s occupation .

( CARDINAL ) On the basis of the elements specified in subsection ( CARDINAL ) : ...

d ) ORG who are expected with good reason to commit an act severely violating the order of the penitentiary , to escape , or to endanger their own life or limb or that of others , or who have already committed such acts and whose safe detention may only be guaranteed by close guarding or DATE exceptionally – by strict surveillance shall be classified as “ Grade CARDINAL security ” prisoners .

( CARDINAL ) If the facts or data necessary for the security group classification are incomplete , inmates shall be classified as ‘ Grade CARDINAL security’ prisoners until the missing facts or data are obtained . ”

“ ( CARDINAL ) ... ‘ Grade CARDINAL security’ classification is to be reviewed by the reception committee DATE .

( CARDINAL ) If a change occurs in the circumstances underlying the inmate ’s classification , the reception committee ... shall modify it , irrespective of the time - limit[s ] specified in section ( CARDINAL ) . ”

“ ( CARDINAL ) Classification into security groups shall not affect statutory inmate rights ; the manner and order of exercising those rights under the various security regimes shall be regulated in the prison rules .

( CARDINAL ) The reasons underlying the classification of an inmate into a certain security group shall only be communicated to him if such communication does not endanger the security of detention . ”

“ ( CARDINAL ) An inmate classified as ‘ Grade CARDINAL security’ prisoner may be placed in a special security cell or department .

( CARDINAL ) An inmate may also be placed in a special security cell or department if the protection of his life or limb can not be secured otherwise .

( CARDINAL ) An inmate placed in a special security cell or department shall :

a ) be under constant surveillance ,

b ) move around on the premises of the institution only with permission and under supervision , and his cell shall be kept locked ,

c ) work only inside the special safety department or at a place designated by the governor ,

d ) not participate in inmates’ associations ,

e ) participate in educational , sport and spare - time group activities only inside the special security department or with the governor ’s permission ; he , however , may practice self - education ,

f ) not wear his own clothes – except for inmates placed in a special security cell or department pursuant to subsection ( CARDINAL ) ,

g ) possess only a limited range of personal objects .

( CARDINAL ) The implementing rules concerning inmates placed in special security cells or departments shall be laid down in the prison rules .

( CARDINAL ) Placement in a special security cell shall be ordered by the reception committee for a period of maximum DATE which can be prolonged twice , each time for a period of maximum DATE . Placement in a special security cell for a period exceeding these periods shall be ordered by a committee designated by the national commander ... The justification for continued placement shall be reviewed by the committee DATE .

( CARDINAL ) Placement in a special security department shall be ordered by the committee for a period of maximum DATE . This period can be prolonged if reasons for such placement continue to exist . The justification for placement in a special security department shall be reviewed by the committee DATE .

( CARDINAL ) Placement in a special security cell or department shall immediately be terminated when the underlying reasons cease to exist .

( CARDINAL) For the purposes of this Decree :

a ) ‘ special security PERSON means specially built and equipped LOC operating under special rules where inmates specified under subsections ( CARDINAL ) and ( CARDINAL ) shall be placed alone . The cells of the penitentiary institutions operating as special security cells shall be designated by the national governor ...

b ) ‘ special security ORG means a purpose - built , segregated part of the penitentiary institution designated by the national governor , which consists of special security cells and adjoining LOC , where inmates specified under subsections ( CARDINAL ) and ( CARDINAL ) can be placed irrespective of the prison regime imposed on them . ”

“ ( CARDINAL ) Inmates shall have the right : ...

g ) to submit a statement of public interest , a complaint , a request or a legal declaration to the penitentiary institution , or to another organ independent of the penitentiary service ; ”

The rules governing the conditions prevailing in “ KBK ” departments can be summarised as follows . Inmates under the “ KBK ” regime receive their visitors in special security rooms and have their meals on their own . They can exercise their right to periods in the open - air CARDINAL person at a time in a special area ; they may not participate in cultural or sport events together with other inmates ; they may only watch television , listen to the radio , read , practise sport or observe their religion alone in their cells . Before and after every removal from the cell , the inmate must be body - searched and stripped if necessary . Such inmates shall undergo medical examinations , shave and wash themselves in their cells .

Inmates under the “ KBK ” regime may be removed from the “ KBK ” department only if handcuffed and if it is ensured that they will not encounter other inmates . For medical examinations , such inmates must be handcuffed . At any given time , a maximum of CARDINAL such inmates can benefit simultaneously from open - air periods or sports ; however , they must not see or have contact with each other .

“ CARDINAL.CARDINAL The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody .

CARDINAL The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control .

CARDINAL As soon as possible after admission , prisoners shall be assessed to determine :

a. the risk that they would present to the community if they were to escape ;

b. the risk that they will try to escape either on their own or with external assistance .

CARDINAL Each prisoner shall then be held in security conditions appropriate to these levels of risk .

CARDINAL The level of security necessary shall be reviewed at regular intervals throughout a person ’s imprisonment . ”

“ CARDINAL.CARDINAL As soon as possible after admission , prisoners shall be assessed to determine whether they pose a safety risk to other prisoners , prison staff or other persons working in or visiting prison or whether they are likely to harm themselves .

CARDINAL Procedures shall be in place to ensure the safety of prisoners , prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety .

CARDINAL Every possible effort shall be made to allow all prisoners to take a full part in DATE activities in safety .

CARDINAL It shall be possible for prisoners to contact staff at all times , including during TIME .

CARDINAL National health and safety laws shall be observed in prisons . ”

“ CARDINAL Special high security or safety measures shall only be applied in exceptional circumstances .

CARDINAL.CARDINAL There shall be clear procedures to be followed when such measures are to be applied to any prisoner .

CARDINAL The nature of any such measures , their duration and the grounds on which they may be applied shall be determined by national law .

CARDINAL The application of the measures in each case shall be approved by the competent authority for a specified period of time .

CARDINAL Any decision to extend the approved period of time shall be subject to a new approval by the competent authority .

CARDINAL Such measures shall be applied to individuals and not to groups of prisoners .

CARDINAL.CARDINAL Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule DATE . ”

“ CARDINAL.CARDINAL Prisoners , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority .

CARDINAL If a request is denied or a complaint is rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority . ”

The Commentary to the draft Rule CARDINAL of the above Recommendation reads as follows :

“ This Rule does not attempt to prescribe an exclusive model of a complaints procedure but sets out the basic requirements such procedures should comply with lest they be considered to represent effective remedies in terms of LAW ORG ( see : PERSON The GPE ( appl . nr . DATE CARDINAL/CARDINAL/CARDINAL ) ) . What is important is that the complaint procedure ends with a final binding decision taken by an independent authority . The member states are free to designate the independent authority that has the power to handle complaints . This can be an ombudsman or a judge ( enforcement magistrate or executing or supervisory judge ) , supervising prosecutor , court , or a Public Defender ( ORG ( DATE ) DATE Visit to GPE in DATE ) . ”

“ CARDINAL . In every country there will be a number of so - called “ dangerous ” prisoners ( a notion which covers a variety of types of person ) in respect of whom special conditions of custody are required . This group of prisoners will ( or at least should , if the classification system is operating satisfactorily ) represent a very small proportion of the overall prison population . However , it is a group that is of particular concern to the ORG , in view of the fact that the need to take exceptional measures concerning such prisoners brings with it a greater risk of inhuman treatment than is the case with the average prisoner .

The dangers involved in this area are well described in the following extract from the Explanatory Memorandum to the Recommendation ( No . R(CARDINAL)CARDINAL ) on the custody and treatment of dangerous prisoners adopted by ORG on DATE : “ CARDINAL . Human dignity is to be respected notwithstanding criminality or dangerousness and if human persons have to be imprisoned in circumstances of greater severity than the conventional , every effort should be made , subject to the requirements of safe custody , good order and security and the requirements of community well - being , to ensure that living environment and conditions offset the deleterious effects – decreased mental efficiency , depression , anxiety , aggressiveness , neurosis , negative values , altered biorhythms – of the severer custodial situation . In the most serious instances prisoners regress to a merely vegetative life . Generally the impairment may be reversible but if imprisonment , especially in maximum security , is prolonged , perception of time and space and self can be permanently and seriously impaired – ‘ annihilation of personality’ . ”

... The status of Grade CARDINAL prisoners is reviewed DATE . However , it would appear that the reasons underlying the decision for placement / prolongation of a Grade CARDINAL measure are not disclosed to the prisoner concerned .

It is axiomatic that a prisoner should not be held in a special security regime any longer than the risk which he presents makes necessary . This calls for regular reviews of the placement decision . Further , prisoners should as far as possible be kept fully informed of the reasons for their placement and , if necessary , its renewal ; this will inter alia enable them to make effective use of avenues for challenging that measure .

Consequently , the ORG recommends that :

– a prisoner who is placed in a Grade CARDINAL regime by the judicial or prison authorities or whose placement in such a regime is renewed be informed in writing of the reasons for that measure ( it being understood that the reasons given could exclude information which security requirements reasonably justify withholding from the prisoner ) ;

– a prisoner in respect of whom such a measure is envisaged be given an opportunity to express his views on the matter ;

– the placement of a prisoner in such a regime should be as short as possible and reviewed DATE .

Firstly , the delegation observed at FAC that means of restraint ( such as handcuffs and/or anklecuffs ) were routinely applied to Grade CARDINAL prisoners . ... The practice of routinely handcuffing and/or anklecuffing prisoners when outside their cell is highly questionable , all the more so when it is applied over a prolonged period of time in a secure environment . ...

Secondly , some Grade CARDINAL prisoners were kept for some considerable time in isolation and had particular difficulties to receive visits and have access to a telephone , allegedly for security reasons . ”

“ CARDINAL . ... The ORG calls upon the NORP authorities to take steps to implement its previous recommendations concerning the provision to prisoners placed in a Grade CARDINAL regime of written information on the reasons for the measure as well as the opportunity to express their views on the matter . It is equally important to provide such prisoners with written information on the possibilities to contest the decision . More generally , the ORG recommends that the NORP authorities review and refine the system of classifying prisoners as Grade CARDINAL with a view to ensuring that this grade is only applied – and retained – vis - à - vis prisoners who genuinely require to be accorded such a status . ”

“ CARDINAL . ... The ORG must reiterate its view that there can be no justification for routinely handcuffing prisoners outside their cells , all the more so when this measure is applied in an already secure environment . The application of restraints while the prisoner is inside a secure exercise yard is clearly an unacceptable practice . As regards the handcuffing of prisoners during medical consultations , in the ORG ’s view , such a practice infringes upon the dignity of the prisoners concerned and prohibits the development of a proper doctor - patient relationship ( and is possibly detrimental to the establishment of an objective medical finding ) . The ORG calls upon the NORP authorities to review without further delay their current policy with regard to the application of means of restraint to prisoners placed under a special security regime ( Grade CARDINAL prisoners ) . ”


Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The applicant is an NORP national who was born in DATE . He was in FAC when he lodged his application .

Among other measures , he was held in pre - trial detention for his involvement in the murder of Judge PERSON and his escort on DATE . He was subsequently sentenced to life imprisonment by ORG . On DATE he was given a second life sentence , on other charges , by ORG . That sentence became final on DATE .

After his arrest on DATE the applicant was placed under the special prison regime provided for in CARDINAL bis of FAC , which derogates from the conditions for ordinary detention laid down in the LAW .

DATE and DATE the Minister of ORG issued CARDINAL decrees , each introducing restrictions for the following DATE periods : CARDINAL DATE to CARDINAL DATE ( decree no . CARDINAL ) ; CARDINAL DATE to CARDINAL DATE ( decree no . CARDINAL ) ; DATE to DATE ( decree no . CARDINAL ) ; CARDINAL DATE to CARDINAL DATE ( decree no . CARDINAL ) ; CARDINAL DATE to CARDINAL DATE ( decree no . CARDINAL ) ; CARDINAL DATE to CARDINAL DATE ( decree no . CARDINAL ) ; CARDINAL DATE to DATE ( decree no . CARDINAL ) ; DATE to DATE ( decree no . CARDINAL) ; and DATE to DATE ( decree no . CARDINAL ) .

The applicant indicated that he had remained under the same regime for the period following DATE , but did not provide any precise details .

Decrees QUANTITY . CARDINAL to CARDINAL were not formal extensions of the previous decree , but fresh decisions that nonetheless reiterated the earlier decision .

By virtue of the CARDINAL decrees , the following restrictions were imposed on the applicant :

( a ) limits on visits by family members , with a maximum of CARDINAL visit for TIME ;

( b ) no meetings with third parties ;

( c ) prohibition on using the telephone , except for CARDINAL call – to be recorded DATE to members of the family if the applicant had not had a visit ;

( d ) prohibition on receiving or sending out sums of money in excess of a specified amount , except for defence costs or fines ;

( e ) CARDINAL parcels of laundry per month ;

( f ) no organisation of cultural , recreational or sports activities ;

( g ) no right to vote in elections for prisoners ' representatives or to be elected as a representative ;

( h ) no handicrafts ;

( i ) TIME to be spent outdoors .

The applicant appealed against those decrees to the court responsible for the execution of sentences . The parties submitted the factual information set out below .

Decree no . DATE The applicant appealed on DATE . The GPE court responsible for the execution of sentences held a hearing on DATE . In an order of DATE , deposited with the registry on DATE , the court declared the appeal inadmissible in accordance with the restrictive case - law followed at the time to the effect that the court hearing the case did not have power to examine the merits of the restrictions imposed .

Decree no . DATE In an order of DATE , deposited with the registry on DATE , the ORG court responsible for the execution of sentences declared inoperative the restrictions referred to in ( a ) , ( e ) and ( f ) of the above list .

Decree no . DATE On an unknown date the applicant appealed to the GPE court responsible for the execution of sentences . The court held a hearing on DATE and dismissed the appeal in an order of DATE , which was deposited with the registry on DATE .

Decree no . DATE The applicant appealed on CARDINAL DATE . On DATE the ORG court responsible for the execution of sentences set the case down for hearing on DATE . On DATE the President of the court declared the appeal inadmissible . He noted that the period of validity of the decree had expired and that the applicant accordingly no longer had any interest in having it examined .

Decree no . CARDINAL – The applicant did not appeal against this decree .

Decree no . DATE The applicant appealed on DATE . On DATE the rehabilitation unit of FAC confirmed a report that had previously been made in connection with another appeal . In a request of CARDINAL DATE sent to the GPE court responsible for the execution of sentences , the applicant 's lawyer asked for the appeal to be heard . On DATE the President of the court declared the appeal inadmissible . He noted that the period of validity of the decree had expired and that the applicant accordingly no longer had any interest in having it examined .

Decree no . DATE The applicant appealed on DATE . On DATE the President of the FAC court responsible for the execution of sentences declared the appeal inadmissible . He noted that the period of validity of the decree had expired and that the applicant accordingly no longer had any interest in having it examined .

Decree no . DATE On DATE the President of the FAC court responsible for the execution of sentences granted the applicant legal aid . On DATE he set the case down for hearing on DATE . In an order of the same date , deposited with the registry on CARDINAL May , the court allowed the appeal regarding the restriction on the applicant 's right to receive parcels and dismissed the remainder .

Decree no . DATE The applicant appealed on DATE . On DATE the President of the FAC court responsible for the execution of sentences declared it inadmissible on the ground that the applicant no longer had any interest in having it examined since the period of validity of the decree had expired on DATE .

Section CARDINAL bis of LAW ( Law no . CARDINAL of CARDINAL DATE ) , as amended by LAW no . CARDINAL of CARDINAL DATE , gives the Minister of ORG the power to suspend application of the ordinary prison regime as laid down in Law no . CARDINAL of DATE in whole or in part , by means of a reasoned decision that is subject to judicial review , on grounds of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements .

Such a measure can only be applied to prisoners charged with , or sentenced for , the offences mentioned in LAW , which includes offences relating to ORG activities .

Section CARDINAL bis was enacted as a temporary provision . Its applicability was extended several times , until DATE ( Law no . CARDINAL of DATE ) . Law no . CARDINAL of DATE made it into a permanent provision .

Section CARDINAL bis does not contain a list of the restrictions that may be imposed . These must be determined by the Minister of ORG .

Under section QUANTITY , an appeal ( reclamo ) lies to the court responsible for the execution of sentences against a decree of the Minister of Justice imposing the special regime . The appeal must be lodged within DATE from the date on which the person concerned has been served with the decree . It does not have suspensive effect . Paragraph CARDINAL bis of section CARDINAL bis , introduced by Law no . CARDINAL of DATE , lays down the rules regarding territorial jurisdiction . It provides :

“ The court responsible for the execution of sentences that has jurisdiction for the prison in which the prisoner , detainee or defendant is being held has power to adjudicate appeals against decrees of the Minister of ORG issued under paragraph CARDINAL . That power shall not change , even in the event of removal for CARDINAL of the reasons listed in section CARDINAL . ”

The court must make a decision within DATE . An appeal to ORG lies against the decision of the court responsible for the execution of sentences .

Section CARDINAL of the aforementioned LAW no . CARDINAL of DATE ) governs the right of appeal of prisoners .

In judgment no . CARDINAL of DATE , ORG found that , regarding restrictions on rights guaranteed by LAW , this section was unconstitutional in so far as it did not provide for judicial protection against the restrictions imposed on prisoners . Since it could not indicate which legal avenue was available to prisoners , ORG asked the legislature to remedy the situation .


CASE OF BLACKSTOCK v. THE UNITED KINGDOM

Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was convicted of wounding ( the deliberate shooting of a police officer ) with intent to resist arrest , for which he was sentenced to life imprisonment . He was also sentenced to concurrent terms of DATE for attempted robbery and firearms offences . His tariff was set at DATE .

On DATE , upon the expiry of his tariff , the applicant ’s detention was reviewed by a “ Discretionary Lifer Panel ” ( “ DLP ” ) of ORG . At the time of his review , the applicant was a “ category B ” prisoner ( prisoners being given a security classification ranging from category A ( most serious ) to category D ) . Life prisoners are normally expected to pass through each of the categories prior to release . While he would therefore ordinarily have been expected to progress to a category C prison before being considered suitable for transfer to a category D ( “ open ” ) prison , the applicant applied to be transferred directly to an open prison . His legal representative at the review hearing made it clear that he was seeking a transfer only , not release on licence .

Among the material which the ORG had before it were CARDINAL reports ( from ORG , the prison probation officer , and PERSON , a psychiatrist commissioned on behalf of the applicant ) which recommended a transfer of the applicant to a category D prison . Those reports stated that the applicant needed to be tested with a view to preparing him and considering him for release on licence , and that such testing could not take place in a category C prison and needed to take place in category D conditions . They were of the view that the risk to the safety of the public of a transfer to category D was acceptable . The third report in front of the ORG from PERSON , a visiting consultant psychiatrist , was unfavourable to the applicant and neither recommended transferring him to category D nor directing his release . Mr PERSON and PERSON gave oral evidence to the ORG . Dr ORG did not . The conclusions of the latter were criticised by Dr PERSON as being unsupported by evidence or reasoning .

The ORG did not recommend that the applicant should be released . However , it recommended that he should be transferred from a category B to a category D prison . Were that recommendation not to be accepted by the Secretary of ORG , the ORG recommended an early review after DATE ( i.e. in DATE ) .

The decision letter of the ORG to the applicant of DATE stated , in relevant part :

“ CARDINAL . The Crime ( Sentences ) Act DATE requires ORG to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined . The panel of ORG who considered your case on DATE were not so satisfied and therefore have not directed your release at this stage . This decision is binding upon the Secretary of ORG .

NORP In reaching their decision that you are not yet suitable for release on licence , the panel took particular account of the contents of the reports which were before them , most of which did not recommend release and concluded that you remain a risk , at least until further work has been done on social skills and enhanced thinking . The panel noted the fact that your representative expressly stated that she did not ask for a recommendation for release at this stage .

NORP The panel recommended to the Secretary of ORG that you should be transferred to a category D prison . They made this recommendation on the basis of the opinions expressed by PERSON and Dr PERSON that while recognising the progress which you have made , and improved behaviour and attitude , further work remains to be done , but that this could more appropriately be carried out in open conditions , which would give an opportunity to test out your commitment in less structured conditions which are closer to the community . The panel concluded , on the basis of the opinions of these witnesses , that the risk of a transfer to category D conditions would be acceptable .

NORP The panel preferred the evidence and report of Dr PERSON to the report of PERSON . The panel felt that PERSON conclusions ( upon which the Secretary of ORG relied ) were not supported by evidence or by any reasoning which preceded them .

NORP The panel made no recommendation to the Secretary of State with regard to an early review . However , in the event of the Secretary of ORG not accepting the panel ’s recommendation for transfer to category D conditions , the panel would recommend an early review in DATE time , and would hope that consideration would be given to a transfer to less secure conditions meanwhile .

The decision not [ to ] release you is binding upon the Secretary of ORG but it is for him to decide whether to accept the recommendation to transfer to category D conditions . ”

On DATE the Secretary of ORG rejected ORG recommendation that the applicant should be transferred to a category D prison . He directed that the applicant should be moved to a category C prison . The reasons for his decision were set out as follows in a memorandum of CARDINAL DATE :

“ The Secretary of ORG has carefully considered all the papers which were prepared for your recent ORG review , including the reports from staff at both Full GPE and GPE , your own and your solicitor ’s representations and the recommendation of ORG . He is not prepared to accept ORG recommendation for your transfer to open conditions for the reasons set out below .

The Secretary of ORG notes the recommendations made by ORG and by report writers , the majority of whom support a progressive move . He notes in particular , your willingness to co - operate with offence - related treatment work and the progress you have made as a result , your improved behaviour and the remorse you have shown . However , he is concerned by references to your tendency , on occasions , to be aggressive , unwilling or unable to consider fully the likely consequences of your actions or behaviour or see how others perceive your behaviour .

In considering ORG recommendation for your transfer to open conditions , which is generally a time of final testing in more normal conditions as a prelude to release , the Secretary of ORG needs to be satisfied that you have made sufficient progress towards tackling your behavioural problems so as to minimise the risk of your reoffending , or risk to the public while in open conditions or when release takes place .

The Secretary of ORG notes that you have not been tested in category C conditions . Life sentenced prisoners are normally required to spend a period in the lower security conditions of a category C prison to enable them to adjust to , and experience , a less secure environment before eventually progressing to open conditions . He considers this to be all the more important in your case in view of the very long period you have spent in maximum security conditions , much of which has been spent in segregation units , and notes that you are still held in category B conditions .

He also considers that , although you have attended offending behaviour courses , and appear to have benefited from them , that work needs to be reinforced and tested in the lower security environment of category C conditions before consideration is given to your transfer to open conditions . In particular , further offence - related work needs to be tackled , together with continuing work to develop more mature , reflective styles of thinking and behaving and enhanced interpersonal skills .

You will therefore be transferred to a suitable category C establishment . However , in the light of the positive reports from staff at both Full GPE and GPE , your next review will begin DATE thereafter . ”

On DATE , transfer instructions were issued for the applicant ’s transfer to ORG , a Category C prison . This was endorsed as a " priority career move " in view of the need for a review of the applicant ’s continued detention to commence DATE after transfer .

On DATE , the applicant submitted a complaint / request form objecting to the transfer to ORG as inconvenient for social visits and stating his preferences for other category C prisons .

In DATE , it was decided to move the applicant to GPE ( category C ) and the applicant was informed that the other prisons which he had listed were either unsuitable or had long waiting lists . At this time no place at FAC was immediately available : he was fifth on the list .

On DATE , the applicant was moved to ORG .

On DATE the applicant ’s application for judicial review of the Secretary of ORG ’s decision not to reclassify him from a category B to a category D prisoner was dismissed by ORG . This was on the basis that there had not been any procedural irregularity in the decision - making process . During the course of his judgment , Mr Justice PERSON said the following :

“ It is clear that the decision which the Secretary of ORG had to make in this case was an important one . It was important because such a decision has a potential to affect the release date of a prisoner in that delay in transfer to category D has the potential to delay of release on parole . ”

Mr Justice PERSON also made , inter alia , the following observations :

( a ) there had not been any finding by the ORG that there would be a regression in the behaviour or the attitude of the applicant were he to be placed in a category C prison ;

( b ) the ORG had taken “ an unusual course ” in recommending that the applicant should be transferred from a category B to a category D prison , as , ordinarily , a life prisoner would pass through the categories from which he had started , therefore going through category C into category D ;

( c ) counsel for the applicant had not suggested that the decision of the Secretary of ORG not to accede to the recommendation of the ORG was open to attack other than on procedural grounds .

The applicant did not seek leave to appeal and was advised that he did not have any right of appeal against the judgment of ORG .

The applicant ’s subsequent review by the ORG took place at an oral hearing on DATE , over DATE after his arrival in category C conditions and over DATE after his previous review in DATE . On that occasion , the ORG decided not to direct his release , but recommended that he should be transferred to open conditions . Its decision letter to the applicant of CARDINAL DATE stated , inter alia , as follows :

“ CARDINAL . Until your arrival at FAC you had been in conditions of greater security . During your year at ORG the panel accepts that you have continued to make progress and your behaviour has been good . You have done all that has been required by your sentence plan and you have made sufficient progress towards tackling your offending behaviour to justify your move to open conditions . So far as risk is concerned , however , you have experienced testing only in closed conditions .

Having regard to your serious offending , your behaviour in prison DATE and the fact that you have never been tested in open conditions , the panel considers that your risk is not as yet sufficiently reduced to justify your immediate release .

NORP ... Most report writers recommended you for open conditions but not for release . Until you have been tested in open conditions the panel can not be satisfied that your risk is sufficiently reduced for your release .

Furthermore your release plan was not realistic or reasonable ...

Your move to open conditions is needed primarily to test further your motivation to remain of good behaviour and your ability to cope with stress and frustration and to enable you to be gradually reintroduced to life in the community outside prison . ... In view of the fact that in DATE you were recommended as suitable for release and your progress since then , the panel recommended that you should move to open conditions at the earliest opportunity . Although several report writers recommended a review after DATE from your arrival in open conditions the panel considered that this period was probably insufficient to enable you to complete the testing which you need and therefore made no recommendation for an early review . ”

The recommendation that the applicant be moved to open conditions was accepted by the Secretary of ORG on DATE .

At the applicant ’s subsequent review on DATE , the ORG was satisfied that it was no longer necessary for the protection of public that he be detained and therefore directed his release from prison .

A person convicted of certain serious offences may be sentenced to life imprisonment at the discretion of the trial judge . At the time of sentence , a “ tariff ” is imposed which represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence . A life prisoner will not be released on licence until after the tariff period has been completed .

Pursuant to section CARDINAL of ORG , after the tariff has expired , a discretionary life prisoner may require the Secretary of ORG to refer his case to ORG which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public .

ORG further has power , should it choose not to direct the release of a prisoner , to make recommendations to the Secretary of ORG concerning the detained person ’s future progress .

Following a review , a discretionary life prisoner has a statutory right to have his case reviewed again by ORG DATE after the previous review .

If ORG decides not to order release , it frequently gives a recommendation as to the timing of the next review . That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of ORG . If the prisoner seeks an earlier review , he can make representations to the Secretary of ORG , whose decision may be challenged by judicial review . The Secretary of ORG , of his own motion , can direct an earlier review .

The categorisation of prisoners is the function of the Secretary of ORG . There are CARDINAL categories of classification of prisoners , namely :

( i ) category A prisoners , whose escape would be highly dangerous to the public or to the police or to the security of the nation ;

( ii ) category B prisoners , for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult ;

( iii ) category C prisoners , who can not be trusted in open conditions , but who do not have the ability or the resources to make a determined escape attempt ;

( iv ) category D prisoners , who can be trusted in open conditions .

On DATE the Secretary of ORG stated :

“ In DATE , successive Secretaries of ORG have recognised that , for the majority of life sentenced prisoners , a period in open prison conditions is generally vital in terms of testing the prisoner ’s suitability for release and in preparing him for a successful return to the community . It is , therefore , now normally the practice to require the prisoner to spend some time in open conditions before release and to arrange a further review while the prisoner is in an open prison for a formal assessment of his or her progress . I intend to continue with this practice and the first ORG review will therefore normally serve the purpose of assessing the prisoner for open conditions . ”

On DATE the Secretary of ORG stated :

“ ... the first ORG review in the case of a life sentenced prisoner begins DATE before the expiry of tariff . The purpose of this review is normally to enable the prisoner to be assessed for , and , where appropriate , transferred to , open conditions ( category D ) where he or she may be tested in conditions of lower security , fully assessed by staff and prepared for release . A further ORG review is then held to determine whether the level of risk is low enough to enable the prisoner to be safely released on life licence . Where the level of risk is considered to be acceptable , the objective is to release the prisoner on or very shortly after tariff expiry . ”

A direction to ORG from the Secretary of ORG under section CARDINAL ) of LAW DATE ( which preceded ORG ) stated :

“ A period in open conditions is essential for most life sentence prisoners ( “ lifers ” ) . It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons . Lifers have the opportunity to take home leave from open prisons and , more generally , open conditions require them to take more responsibility for their actions . ”

On DATE , LAW DATE came into force , permitting the provisions of the Convention to be invoked in domestic proceedings in GPE .


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

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

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Remainder inadmissible;Violations of Art. 6-1;Violation of P1-1;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and resides in the village of GPE , the GPE region , GPE .

In DATE the applicant was dismissed from the military forces .

On DATE ORG ( “ the ORG ” ) ordered ORG to pay the applicant CARDINAL NORP hryvnyas ( ORG ) for his uniform expenses for the period up to DATE .

On DATE the enforcement proceedings were discontinued because of the debtor ’s lack of funds and because , according to LAW , the property of ORG could not be used to enforce a court decision .

According to the applicant , on DATE the decision was enforced in part by the debtor . At CARDINAL DATE the decision had not been enforced in full .

In DATE the applicant instituted proceedings in ORG against his former employer , the Akimovskiy ORG , claiming an allowance due to him for the period of DATE . The applicant stated that though he was officially dismissed on DATE , he had actually left the forces on DATE .

On DATE the court found for the applicant and awarded him UAH CARDINAL for the unpaid allowance to be paid by ORG .

On DATE ORG quashed that decision and remitted the case for a fresh consideration .

On DATE ORG found against the applicant .

On DATE ORG upheld that decision .

On DATE ORG quashed the decisions of DATE and DATE upon a protest , lodged by the President of ORG ( at the applicant ’s request ) , and remitted the case for a fresh consideration .

The applicant lodged an additional claim asking to change the date of his dismissal and requesting the payment of an insurance premium , compensation for pecuniary and non - pecuniary damage , and the enforcement of the decision of DATE .

On DATE ORG , considering the case in the applicant ’s presence , changed the date of his dismissal and ordered ORG to pay him UAH CARDINAL.CARDINAL for the unpaid allowance and other payments .

The applicant did not appeal against the decision .

In a letter of DATE , the applicant informed the ORG that the decision of DATE had been enforced in full , without specifying the date of enforcement .

NORP In DATE the applicant instituted proceedings in ORG against ORG and ORG with claims similar to those in the second set of proceedings .

On DATE the court returned the applicant ’s claim , stating that he had failed to pay the court fee and to enclose any evidence in support of his claim as required by the legislation .

The applicant neither appealed against that decision nor submitted his claim anew .

In DATE the applicant instituted proceedings in ORG against ORG contesting the lawfulness of his dismissal from the military service and seeking compensation for damage . The applicant also clamed that the defendant had been unlawfully ignoring the court decisions in his favour .

On DATE the court returned the applicant ’s claim for res judicata reasons , stating , in particular , that such a claim had already been considered by the courts .

On DATE ORG quashed that decision and remitted the case for a fresh consideration , finding that the applicant ’s claim had not been considered by the courts before .

On DATE ORG returned the applicant ’s claim for failure to indicate all the requisites of the claim , and to enclose any evidence in its support , as required by the legislation .

The applicant states that this decision was sent to him too late to enable him to appeal against it within the fixed time - limit . The applicant did not submit any request for an extension of the time - limit for appeal .

On DATE ORG rejected an appeal by the applicant against the decision of DATE under the extraordinary review procedure .

The relevant domestic law regarding enforcement of court decisions is summarised in the judgment of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE )

The relevant provisions of the LAW read as follows :

“ The independence and immunity of judges are guaranteed by LAW and the laws of GPE .

Influencing judges in any manner is prohibited ... ”

“ In the administration of justice , judges are independent and subject only to the law ... ”

Section CARDINAL of the Code provided that garrison military courts , as first - instance courts , had jurisdiction over civil cases where military servicemen challenged the lawfulness of acts or decisions taken by military officials or military bodies as well as over other civil cases where military servicemen ’s rights and freedoms were claimed to be violated , except for cases falling within the jurisdiction of the regional military courts . The regional military courts , as first - instance courts , had jurisdiction over civil cases where the lawfulness of acts or decisions taken by military officials or military bodies having the level of a military association or higher , were challenged .

In accordance with Sections CARDINAL and CARDINAL of the Code , appeals against decisions of military garrison courts were to be submitted to the military regional courts . Appeals against decisions of the military regional courts were to be submitted to ORG .

Sections CARDINAL , CARDINAL - CARDINAL , CARDINAL of the Act provided that the military courts were incorporated into the system of the general courts of GPE . They exercised judicial power in ORG and other military formations allowed by NORP legislation . The judges of the military courts were elected by the Verkhovna Rada of GPE for DATE . The candidates , on passing a competitive examination the first time , were elected for DATE . Only an acting officer in the army could become a judge of the military court .

Section CARDINAL of the Act envisaged that the financing , logistics , maintenance and archiving of the military courts and ORG of ORG were performed by entities of ORG at the expense of ORG and ORG , using part of ORG allocated specifically for those purposes .

According to LAW of the LAW the servicemen of the military courts were considered to be in military service and constituted a part of the staff of ORG . The judges of the military courts were awarded military ranks by the President of GPE upon the joint submission of ORG and the Chairman of ORG ( as regards the judges of the military garrison courts , military regional courts , and naval courts ) or upon the sole submission of the Chairman of ORG ( as regards the judges of the military chamber of ORG ) .

Section CARDINAL of the Act provided that a military chamber was incorporated into the structure of ORG . According to Section CARDINAL of the LAW the chambers of ORG could consider cases as , inter alia , the court of appeal instance .

The LAW was repealed on DATE .

According to LAW the independence of judges was guaranteed by the manner of their appointment , termination and suspension of their office ; by the special procedure of awarding military ranks to the military judges ; by the special procedure of administration of justice ; by the secrecy of the decision - making process ; by prohibition of interference with the administration of justice ; by the establishment of the legal responsibility for contempt of court ; by the judges’ right to resign ; by the judges’ inviolability ; by the provision of the technical and informational conditions necessary for the operation of the courts ; by the material support and social welfare programs provided for the judges ; by the special procedure of the ORG financing ; and by the system of judicial self - government .

Section CARDINAL of the LAW foresaw that judges of the military courts who needed to improve their living conditions were provided with an appropriate flat or house by ORG within the term of DATE from the date of their appointment .

Section CARDINAL of the Act provided that ORG were subordinate to ORG .


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

In the context of a real estate dispute , on CARDINAL DATE the applicant brought an action claiming partial ownership of a house .

After having held several hearings and obtained the opinions of CARDINAL experts , on CARDINAL DATE the applicant was granted CARDINAL of the property in question .

NORP On appeal , on DATE the ORG - ORG quashed this decision .

In the resumed proceedings , ORG held several hearings and obtained the opinion of an expert . On DATE it gave judgment , granting the applicant partial ownership . Simultaneously , it dissolved the common ownership thus created , gave the part allocated to the applicant to the respondent , and ordered the latter to compensate the former .

On appeal , on DATE ORG amended this decision and gave a final judgment .

The applicant filed a petition for review with ORG .

On DATE ORG dismissed the petition in preliminary proceedings . In a reasoned decision , it held that the applicant ’s petition was inadmissible because it did not disclose a breach of the relevant law , in particular the rules concerning the termination of common ownership . ORG order was served on him on DATE .


Violation of Art. 14+9;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

Upon his baptism on DATE he became a member of the Jehovah ’s Witnesses in GPE , within which he assumed the function of a preacher or “ regular pioneer ” ( Prediger , allgemeiner PERSON ) and , since DATE , a deacon or “ ministerial servant ” ( GPE , GPE ) . In this function he assisted the clerical work of elders of ORG .

On DATE ORG ( Militärkommando ) found that the applicant was fit to perform military service . On DATE the applicant started his military service ; however , on CARDINAL DATE he was discharged following a military medical expert opinion that had found him unfit for service .

On DATE ORG issued a conscription order ( NORP ) in respect of the applicant , ordering him to undergo another examination as to his ability to perform military service pursuant to section CARDINAL ) of LAW ( PERSON ) , as in force at the relevant time . As to the applicant ’s argument that he should be exempted from military service under section CARDINAL(CARDINAL ) of LAW , it noted that the applicant was not a member of a recognised religious society .

The applicant appealed against that order , claiming in particular that he should be dispensed from military service since he performed a function within the GPE ’s Witnesses which was equivalent to that of members of a recognised religious society who were exempted from military service under section CARDINAL(CARDINAL ) of LAW . To restrict such a privilege to members of recognised religious societies was not objectively justified and was therefore in breach of LAW .

On DATE the Federal Minister for Defence ( PERSON für GPE ) dismissed the applicant ’s appeal and confirmed the lower authority ’s decision .

On DATE the applicant lodged a complaint with ORG ) , requesting it to repeal the wording “ recognised religious societies ” in section CARDINAL(CARDINAL ) of LAW .

On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success . It referred to an earlier decision by which it had found that the obligation to perform military or civilian service raised no concerns as regards compliance with LAW .

On DATE ORG Verwaltungs - gerichtshof ) dismissed the applicant ’s complaint . It noted that the applicant had solely complained about section CARDINAL ) of the Military Service Act in conjunction with the DATE LAW die PERSON religiösen GPE – hereafter referred to as the “ DATE LAW ) , which had entered into force on DATE . However , ORG had to limit its examination of the legality of the drafting order to the legal situation at the time when the order had been issued . Referring to the case - law quoted by ORG , it found no concerns as regards the legality of the drafting order and therefore also no indication to institute proceedings to review constitutionality ( PERSON ) as proposed by the applicant .

On DATE ORG issued another conscription order for an examination of the applicant ’s fitness to perform military service .

On DATE the applicant lodged a complaint with ORG against the order . He submitted in particular that by virtue of LAW , the Jehovah ’s Witnesses had been granted the status of a “ registered religious community ” . However , the DATE period for a successful application for recognition under LAW ) , newly introduced by LAW , lacked objective justification . Furthermore , it precluded any recognition for DATE . Since section MONEY ) of the Military Service Act referred to “ recognised religious societies ” and restricted exemption from military service to members of recognised religious societies , the applicant again requested ORG to revoke this limitation and also to revoke the DATE period prescribed in LAW .

On DATE ORG refused to deal with the complaint for lack of prospects of success . It further held that the provision of LAW referred to was not directly applicable to the case at issue .

Subsequently , the applicant filed a request for recognition as a conscientious objector ( ORG ) , which was granted .

DATE and DATE he performed his civilian service in a social institution .

On DATE the applicant joined the “ Religious Order of the Jehovah ’s Witnesses ” ( ORG der PERSON ) , where he lived and worked as a preacher ( PERSON ) .

In DATE he left the order and continued to work as a preacher and deacon .

Article CARDINAL CARDINAL of LAW reads as follows :

“ Every male NORP citizen is liable for military service . Conscientious objectors who refuse to perform compulsory military service and who are dispensed from this requirement must perform alternative service . The details shall be regulated by ordinary law . ”

Section CARDINAL(CARDINAL ) of LAW , as in force at the relevant time , read as follows :

“ An exemption from the obligation to perform military service shall apply to the following members of recognised religious societies :

NORP ordained priests ,

NORP persons involved in spiritual welfare or in clerical teaching after graduating in theological studies ,

NORP members of a religious order who have made a solemn vow , and

NORP students of theology who are preparing to assume a clerical function . ”

Section CARDINAL(CARDINAL ) of LAW provided , inter alia , that persons whose fitness for military service , having initially been established , became questionable had to undergo another examination . However , the latest decision on fitness for performance of military service remained valid until the final conclusion of the fresh examination .

Section CARDINAL of the LAW provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the LAW , namely that their teaching , services and internal organisation , as well as the name they choose , do not contain anything unlawful or morally offensive and that the setting up and existence of CARDINAL community of worship ( GPE ) satisfying the statutory criteria is ensured .

Section CARDINAL provides that if the above conditions are met , recognition is granted by the Minister for Religious Affairs ( LOC ) . ORG has the effect that a religious society obtains legal personality under public law ( juristische Person öffentlichen PERSON ) and enjoys all rights which are granted under the legal order to such societies . Sections CARDINAL et seq . regulate the setting up of communities of worship , membership of them , delimitation of their territory , and their bodies and statutes . Sections CARDINAL deal with the nomination of religious ministers ( PERSON ) of religious societies , the qualifications such persons must have and how their nomination must be communicated to the authorities . Section CARDINAL provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the LAW .

NORP The legal personality of ORG is , on the one hand , regarded as historically recognised , and , on the other hand , explicitly recognised in an international treaty , the ORG between the Holy See and GPE , ORG , No . CARDINAL/CARDINAL ( ORG Heiligen DATE LOC , BGBl . PERSON . CARDINAL/CARDINAL ) .

The following are examples of special laws recognising religious societies :

( a ) Act on ORG , ORG of GPE , No . CARDINAL/CARDINAL ( PERSON über die äußeren PERSON , RGBl . Nr . CARDINAL ) ;

( b ) Act of DATE on the recognition of followers of ORG [ according to the NORP rite ] as a religious society , ORG of the NORP Empire No . CARDINAL ( Gesetz vom CARDINAL . DATE , betreffend die Anerkennung der Anhänger des NORP [ nach hanefitischen ORG ] als Religionsgesellschaft , RGBl . Nr . CARDINAL/CARDINAL ) ;

( c ) Federal Act on LAW , ORG . ORG PERSON CARDINAL . DATE über die äußeren PERSON , BGBl . Nr . ORG ) ;

( d ) Federal Act on LAW in GPE , ORG . DATE ( Bundesgesetz über die äußeren PERSON in PERSON , BGBl . PERSON . CARDINAL/CARDINAL ) ;

( e ) Federal Act on LAW in GPE , ORG . CARDINAL ( Bundesgesetz über äußere PERSON der PERSON in PERSON , BGBl . Nr . CARDINAL ) .

DATE the competent ministers recognised a further CARDINAL religious societies .

The Religious Communities Act entered into force on DATE . Pursuant to section CARDINAL(CARDINAL ) of the LAW , the Federal Minister for Education and ORG has to rule in a formal written decision ( Bescheid ) on the acquisition of legal personality by the religious community . In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned ( section CARDINAL(CARDINAL ) ) . The religious community has the right to call itself a “ publicly registered religious community ” .

Section CARDINAL specifies the necessary contents of the statutes of the religious community . Among other things , they must specify the community ’s name , which must be clearly distinguishable from the name of any existing religious community or society . They must further set out the main principles of the religious community ’s faith , the aims and duties deriving from it , the rights and duties of the community ’s adherents , including the conditions for terminating membership ( it is further specified that no fee for leaving the religious community may be charged ) , how its bodies are appointed , who represents the religious community externally and how the community ’s financial resources are raised . Lastly , the statutes must contain provisions on the liquidation of the religious community , ensuring that the assets acquired are not used for ends contrary to religious purposes .

Under LAW , the Federal Minister must refuse to grant legal personality to a religious community if , in view of its teachings or practice , this is necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights and freedom of others ; this is in particular the case if its activities involve incitement to commit criminal offences , obstruction of the psychological development of adolescents or undermining of people ’s mental integrity , or if the statutes do not comply with section CARDINAL .

Under LAW , the religious community must inform the Federal Minister for Education and ORG of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay . The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section CARDINAL .

Section CARDINAL specifies the reasons for termination of a community ’s legal personality . Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked . Reasons for revoking legal personality are set out in subsection ( CARDINAL ) : for example , if the reasons for granting legal personality no longer subsist or if for DATE no bodies representing the religious community externally have been appointed .

The Act only regulates the granting of legal personality . Once legal personality has been granted to a religious community , it may pursue the activities referred to in its statutes . There are no specific laws in GPE regulating the acquisition of assets by religious societies or communities , the establishment of places of worship or assembly , or the publication of religious material . However , provisions which contain explicit references to religious societies are spread over various statutory instruments ( see below ) .

Since the entry into force of LAW on DATE , non - recognised religious associations may be granted legal personality upon application . A previous application for recognition under LAW is to be dealt with as an application under LAW pursuant to section CARDINAL(CARDINAL ) .

Section CARDINAL(CARDINAL ) of the Religious Communities Act establishes additional criteria for a successful application under LAW , such as the existence of the religious association for DATE in GPE and for DATE as a registered religious community ; a minimum number of CARDINAL adherents per CARDINAL members of the NORP population ( at the moment , this means CARDINAL persons ) ; the use of income and other assets for religious purposes , including charity activities ; a positive attitude towards society and the ORG ; and no illegal interference as regards the community ’s relationship with recognised or other religious societies .

In various NORP laws specific reference is made to recognised religious societies . The following list , which is not exhaustive , sets out the main instances .

Under section CARDINAL of ORG ( ORG ) , representatives of recognised religious societies may sit ( without the right to vote ) on regional education boards .

Under LAW ( Privatschulgesetz ) , recognised religious societies , like public territorial entities , are presumed to possess the necessary qualifications to operate private schools , whereas other persons have to prove that they are qualified .

Under section CARDINAL(CARDINAL ) of LAW , ordained priests , persons involved in spiritual welfare or in religious teaching after graduating in theological studies , members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and , under LAW of LAW , are also exempt from alternative civilian service .

Under sections CARDINAL and CARDINAL of LAW ( ORG ) , ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians , and under section CARDINAL(CARDINAL ) of the DATE Act on Juries of ORG and ORG ( Geschworenen- und GPE ) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court .

Section CARDINAL(CARDINAL)(CARDINAL ) of LAW provides that contributions to recognised religious societies are deductible from income tax up to an amount of CARDINAL ( ORG ) per year .

Section CARDINAL of LAW ( ORG ) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real - estate tax .

Under section CARDINAL(CARDINAL)(a ) of the DATE LAW ( Erbschafts- und ORG ) , which was still in force at the relevant time , donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of PERCENT .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE ( GPE ) . He was represented before the ORG by Mr PERSON , a lawyer practising in ORG .

In DATE CARDINAL individuals brought an action for damages against the applicant in ORG . They claimed compensation for the loss resulting from a road traffic accident which had led to the death of a member of their family .

The judge summoned the applicant to appear before him . However , the applicant , who in the meantime had moved house , could not be traced at the address given by the plaintiffs . On CARDINAL DATE the police informed the court that the applicant ’s address was unknown .

By an order of CARDINAL DATE , the judge ordered that the applicant be summoned to appear by public notice ( citação edital ) . Notices were accordingly published in a national newspaper on CARDINAL and DATE , informing the applicant that an action for damages against him was pending before ORG .

In the absence of any intervention by the applicant in the proceedings , the judge appointed ORG as the applicant ’s representative by an order of DATE , in accordance with the legislation .

A hearing took place on DATE at which the applicant was not present .

By a judgment of CARDINAL DATE , the court granted the claim and ordered the applicant to pay the plaintiffs a sum equivalent to MONEY , plus interest . As ORG did not appeal against this judgment , the decision became final .

The applicant claimed not to have learnt of this judgment and the existence of these proceedings until DATE . He submitted that he had been served , at his current residence , with notice of proceedings against him in DATE in ORG to enforce the judgment concerned . He then instructed a lawyer , who consulted the case file of the proceedings on the above - mentioned date .

On DATE the applicant appealed against the judgment delivered by ORG on DATE . In particular , he alleged that he had never been aware of the existence of the proceedings complained of ; furthermore , the summons by public notice was null and void , the judge having neglected to ask the administrative authorities and the police beforehand for information regarding his address .

By an order of CARDINAL DATE , the judge at ORG declared the appeal inadmissible on the ground that the judgment in question was undoubtedly final and that , consequently , no appeal could lie against it . He emphasised that the applicant should lodge an application to reopen the proceedings under LAW of LAW .

The applicant lodged a complaint against this decision with the President of ORG , arguing that the appeal ought to have been declared admissible and examined on the merits .

By a decision of DATE , the President of ORG dismissed the complaint , referring to the reasons given in the order appealed against .

The applicant also lodged an application for interpretation of this decision , which was rejected by the President of ORG on DATE .

On DATE the applicant lodged an objection ( embargos ) to the application for enforcement submitted by the plaintiffs to ORG . In particular , he relied on the nullity of the summons in the main proceedings . The applicant argued that ORG ought to have contacted the administrative authorities , as had been the case regarding the enforcement proceedings , in which he had been lawfully summoned to appear . In this connection , he emphasised that , DATE , he had communicated his new address to the national tax authorities , the road traffic authorities and the GPE centre for civil and criminal identification . Finally , the notice had been published in a DATE newspaper with a limited circulation , which had , moreover , been declared bankrupt soon after DATE . The applicant also contested the amount of interest claimed by the opposing party .

By a decision of DATE , the court allowed the applicant ’s objection with regard to the interest sought by the plaintiffs but rejected the rest of the objection .

The applicant appealed to ORG which , by a judgment of DATE , dismissed the appeal .

The applicant appealed on points of law to ORG , alleging , in addition to the nullity of the summons , a breach of LAW concerning access to the courts and the principle of a fair trial .

The applicant then lodged a constitutional appeal with ORG .

By a judgment of DATE , ORG dismissed the appeal . It held in particular :

“ ... The legislation concerning civil proceedings contains detailed provisions regarding the summons of a defendant to appear before a court . It seeks to guarantee that recourse is had to a summons by public notice only when the court is satisfied that it is impossible to trace the person who is to be summoned . For the most part , there have been no substantial changes to the provisions . At the material time , the provisions stated that the court had power to seek information from the administrative authorities ... Nothing was stated regarding an alleged duty [ in bold in the original ] which would oblige the court to request such information from specific bodies , in particular those indicated by the [ applicant ] .

[ LAW ] required the court to be satisfied of the impossibility of tracing the defendant before ordering that he be summoned to appear by public notice ; the court had to be certain[CARDINAL ] of this impossibility and could to this end use those methods that it deemed necessary or appropriate . There was in this no gratuitous act of free will or unfettered discretion ; if a discretionary power was involved , it was limited to the court ’s choice of methods to be used or , more particularly , the choice of authorities to be contacted . However , once the court was certain that it was impossible to trace the defendant , the relevant provision obliged it – and indeed continues to oblige it – to pursue the proceedings by means of summons by public notice .

It is necessary to strike a balance between the various principles and interests at stake , particularly those relating to the adversarial principle and the obligatory presence of the defence and those of promptness and legal certainty , which are also protected by LAW .

Once the court has used all methods , in particular those that are found to be the most appropriate , in order to trace the defendant , and is satisfied [ that it is impossible to trace the defendant ] , it must pursue the proceedings but without allowing them to be prolonged indefinitely on account of long and exhaustive searches or allowing such searches to be repeated at any stage of the proceedings , which would have untoward consequences and might prevent justice being done .

Under LAW , in the wording in force at the material time , summons by public notice was ordered when the defendant could not be traced at the address indicated by the plaintiff . Under paragraph CARDINAL of this provision , the court had to be certain of the impossibility of locating the defendant and could , to this end , gather information from the administrative authorities and the police .

Notices containing basic information about the proceedings in question were to be published in a newspaper . In addition , CARDINAL other notices were to be posted , CARDINAL at the court dealing with the case , CARDINAL on the door of the defendant ’s last known residence , and CARDINAL at the town hall of the municipality in which this residence was located . From the expiry of a given period ( DATE in the present case ) , the defendant had DATE in which to file his submissions in reply . Failing this , the proceedings would continue and the defendant would be represented by ORG .

Article CARDINAL ( f ) of LAW provides for the possibility of requesting that the proceedings be reopened where a party has taken no part in them whatsoever . The interested party must then demonstrate that the summons to appear was not served in accordance with the law . However , LAW states that any such request to reopen the proceedings must be submitted within DATE of the date on which the decision in the proceedings in question becomes final .

Article CARDINAL ( d ) of LAW also enables the interested party to file an objection to the enforcement proceedings based on the nullity of the summons to appear served in the main proceedings .


Violation of Art. 6-1 (independent tribunal);No violation of Art. 6-1 (fair trial);Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

ORG The applicant is a GPE national born in DATE . He lives at GPE in the province of GPE - Brabant , where he is a dairy farmer .

ORG The applicant owned a cowshed in which there were originally CARDINAL stands for milch cows and cows in calf as well as CARDINAL stands for calves and heifers . In DATE , DATE and DATE the numbers of milch cows and cows in calf were CARDINAL , CARDINAL and CARDINAL , respectively ; the quantities of milk produced by the applicant in DATE were CARDINAL , CARDINAL and QUANTITY .

ORG After the Ordinance no . PERSON on FAC ( PERSON ) of DATE , ORG ) CARDINAL -"the DATE Ordinance"- was published on DATE , the applicant was allocated a reference quantity ( that is a quantity of milk in excess of which an additional levy is payable - see paragraph CARDINAL below ) of QUANTITY .

ORG On DATE the applicant filed a claim for a larger levy - free quantity of milk under LAW ( see paragraph CARDINAL below ) with the Head of ORG ( districtsbureauhouder PERSON ) of the province of GPE - Brabant . He stated that he had entered into obligations to invest in increasing the number of cow stands for milch cows and cows in calf DATE . These investments related to a new shed for heifers and bulls , the construction of which would release CARDINAL stands in the existing shed for milch cows and cows in calf . The number of such stands would thus be raised from QUANTITY , an increase of PERCENT .

The total cost of building the new shed and adapting the existing one came to MONEY .

ORG The Head of ORG forwarded the applicant ’s claim to ORG ( directeur voor de landbouw en voedselvoorziening ) of the province of GPE - Brabant ( see paragraph CARDINAL below ) . The latter rejected it on DATE , on the ground that the applicant had failed to show " that it had always been his intention to increase the number of stands for milch cows as stated in his claim " .

ORG On DATE the applicant filed an objection to this decision with the Minister of ORG ( see paragraph CARDINAL below ) , arguing at length that he had in fact been planning such an increase for a long time .

ORG The Minister of ORG dismissed the applicant ’s objection on DATE , on the ground that " it appeared from the facts and circumstances stated in the objection and from information obtained officially from other sources ( ambtelijk overig ingewonnen informatie ) " that the number of stands for milch cows and cows in calf had been increased from CARDINAL to CARDINAL ( i.e. by CARDINAL or PERCENT ) . The increase thus fell well short of the minimum of PERCENT required by the DATE Ordinance ( see paragraph CARDINAL below ) .

ORG The applicant appealed to ORG ( College van Beroep voor het GPE ) ( " the ORG " - see paragraph CARDINAL below ) on DATE . He maintained that the number of stands had been increased by CARDINAL and argued that the Minister had erred in considering that the cowshed had originally contained CARDINAL stands .

ORG In addition , by a letter which reached the registry of the ORG on DATE , PERSON applied to the President of the ORG ( see paragraph CARDINAL below ) for an interim measure to the effect that , pending the ORG ’s judgment , he should not be required to pay the additional levy for DATE and the following milk DATE and that he should be paid back the additional levy he had already paid in respect of milk production which had not exceeded the reference quantity claimed on the basis of CARDINAL new stands .

ORG After a public hearing , the President of the ORG , in a letter dated DATE , asked the Minister to indicate whether he was prepared to reconsider his decision . By a letter dated DATE the Minister replied that he saw no reason to do so and that the interim measure requested by the applicant should be refused . The Minister discussed the question of the increase in the number of stands and maintained his previous position . He submitted in the alternative that the applicant ’s investments referable to that increase fell short of the required minimum of NLG CARDINAL . The Minister estimated that the total investment had been worth ORG and the price per square metre of the new shed had been NLG MONEY ; calculating on the basis of the surface taken up in the old shed by the new stands for milch cows and cows in calf , he concluded that the amount involved in the increase had been NLG CARDINAL,CARDINAL.CARDINAL at the most .

ORG The applicant set out his objections in a letter dated CARDINAL DATE . He argued firstly that the Minister was estopped from using this argument , which had never been invoked as a reason for rejecting the applicant ’s original claim ; in the alternative , the Minister ’s calculations were wrong . He claimed , with reference to a list of the costs concerned drawn up by his accountant , that his total investment had in fact been NLG CARDINAL,CARDINAL.CARDINAL , and criticised the method of calculation used by the Minister . In his view , PERCENT of the total investment was referable to cow stands in the new shed for heifers , of which PERCENT replaced similar stands in the old shed that were now to be used for milch cows and cows in calf ; the sum relating to the relevant increase was therefore NLG CARDINAL,CARDINAL .

ORG On DATE the President of the ORG gave a decision refusing the interim measure requested , holding that it was not prima facie likely that the ORG itself would overturn the Minister ’s decision . In his view , the Minister had not erred in rejecting the applicant ’s claim . The President did not find it necessary to address the question of the increase in the number of stands for milch cows and cows in calf , since he accepted the Minister ’s alternative argument concerning the applicant ’s investment . He rejected the applicant ’s submission that the Minister was estopped from relying on that ground , holding that section CARDINAL of the DATE LAW ( LANGUAGE administratieve rechtspraak bedrijfsorganisatie , PERSON ( Official Bulletin ) DATE , CARDINAL , as amended - " LAW " ) entitled him to supplement his arguments while the applicant had not only had sufficient possibility of replying to the Minister ’s alternative submission but had in fact done so . Accepting the method of calculation used by the Minister and the total investment submitted by the applicant , the President arrived at a figure of NLG CARDINAL referable to the increase in the number of stands in the old cowshed , and that figure was insufficient .

ORG By a letter of CARDINAL DATE to the registrar of the ORG the applicant stated that he wished to continue the proceedings . Commenting on the President ’s decision , he discussed extensively his own method of calculation . Like the Minister , he took as his starting - point the investment involved in building the new shed for heifers . Starting from the figure which he gave before the President - NLG CARDINAL,CARDINAL.CARDINAL ( see paragraph CARDINAL above ) - he calculated a price per square QUANTITY of NLG CARDINAL . On that basis he arrived at a figure of NLG CARDINAL for the investment referable to the increase in the number of cow stands for milch cows and cows in calf in the existing cowshed . In the alternative , if the Minister ’s calculations were to be followed , he submitted that the Minister had based them on incorrect LOC ; if applied correctly , the Minister ’s method resulted in a figure referable to the extension of stands for milch cows and cows in calf of NLG CARDINAL,CARDINAL , which was sufficient since the applicant had carried out the physical work involved in building the new cowshed himself ( see paragraph CARDINAL below ) .

ORG The Minister filed a written statement in reply on DATE . A public hearing was held on DATE , during which the applicant again contested the Minister ’s method of calculation and argued that , should the ORG accept it nevertheless , the price per square metre calculated by the Minister was in any case too low ; it was not NLG CARDINAL - the Minister ’s figure - but NLG CARDINAL .

ORG The ORG delivered its judgment on the merits on DATE . Adopting the same approach as the President , it did not decide whether the increase in the number of cow stands had been sufficient ; indeed , it explicitly declined to address this point . It likewise accepted the Minister ’s method of calculation ; applying it to the figures submitted by the applicant in response to the decision of its President ( a price per square QUANTITY of NLG CARDINAL , the new stands covering a surface of QUANTITY ) , the ORG arrived at an investment of NLG CARDINAL referable to the increase in the number of stands . The ORG refused to consider the price per square metre put forward by the applicant at the hearing , on grounds of belatedness , holding :

" The applicant ’s statement first made at the hearing to the effect that the price per square metre is in reality NLG CARDINAL.CARDINAL will not be taken into account in reviewing the decision appealed against , in view of the rule laid down in LAW para . CARDINAL of the LAW , amongst other things . "

Accordingly , concluding that the applicant ’s investments fell short of the minimum required , the ORG rejected the applicant ’s appeal .

ORG There had been surpluses of milk and milk products for some considerable time . By DATE , according to the preamble of ORG ( ORG ) no . CARDINAL/CARDINAL , " quantities of milk delivered [ were ] increasing at a rate such that disposal of surpluses [ was ] imposing financial burdens and market difficulties which [ jeopardised ] the very future of the common agricultural policy " .

ORG Amending an earlier regulation which had not proved sufficiently effective , ORG ( ORG ) no . CARDINAL/CARDINAL ( ORG ( ORG ) no . L CARDINAL of DATE , p. CARDINAL ) was adopted by ORG in response to these structural surpluses .

ORG The Council of ORG decided that for an initial period of DATE the quantity of milk every dairy farmer would be allowed to produce should be limited to a fixed amount ( the " reference quantity " ) . To this end they introduced a system under which dairy farmers had to pay a penalty or " additional levy " on milk delivered in excess of their allotted quantities . It was left to the GPE themselves to share out their guaranteed quantities within their jurisdictions according to a formula prescribed by ORG ( ORG ) no . CARDINAL/CARDINAL ( ORG no . L CARDINAL of DATE , p. CARDINAL ) .

ORG Under LAW ( ORG ) no . CARDINAL/CARDINAL and ( ORG ) no . CARDINAL/CARDINAL were binding in their entirety and directly applicable in all member ORG . They entered into force on DATE .

ORG Under LAW paras . CARDINAL of LAW ( Landbouwwet ) , the Minister of Agriculture , ORG and ORG ( minister voor landbouw , natuurbeheer en visserij ) is empowered to issue an ordinance ( beschikking ) imposing a levy on the production , supply and processing of agricultural produce . Such an ordinance may be adopted , inter alia , to give effect to regulations , guidelines , decisions and recommendations of the ORG in so far as they relate to its common agricultural policy .

Council Regulations ( ORG ) no . CARDINAL/CARDINAL and ( ORG ) no . CARDINAL/CARDINAL were implemented by the DATE Ordinance . This Ordinance was given retroactive effect to DATE , that being the date of entry into force of LAW .

ORG Dairy farmers who had assumed obligations in connection with investments ( investeringsverplichtingen ) after DATE but before CARDINAL DATE could claim a larger reference quantity , calculated according to a formula given in the DATE Ordinance , if certain conditions were fulfilled . Such an increased reference quantity was available , inter alia , to dairy farmers who could prove that they had entered into financial obligations to increase the number of their cow stands ( for milch cows or cows in calf ) by PERCENT to CARDINAL ( LAW Ordinance ) . The amount required to be invested was MONEY , or PERCENT of that figure if the farmer could prove that he himself had contributed sufficiently to the physical work involved to make up the difference .

ORG A person claiming an increased reference quantity on the basis of LAW DATE Ordinance had until DATE to file his claim with the Head of ORG , who would forward it to the provincial Director of ORG ( Articles CARDINAL para . CARDINAL , CARDINAL para . CARDINAL of the DATE Ordinance ) . The Director gave a decision after consulting an advisory panel .

ORG Such a claim had to be accompanied by a statement setting out the arguments and documentary evidence . According to LAW CARDINAL of the DATE Ordinance :

" A claim as referred to in the first paragraph shall be reasoned . It shall include a statement supported by evidence as to the various grounds of the claim referred to in LAW , ORG , ORG , CARDINAL and CARDINAL .

The claim shall not be admissible if ... the rules laid down in this paragraph have not been complied with . "

ORG In the event of his claim being rejected , the claimant had DATE within which to file an objection ( bezwaarschrift ) to the Director ’s decision with the Minister ( Article CARDINAL paras . CARDINAL of the DATE Ordinance ) .

ORG An appeal against the decision of the Minister lay within DATE to the ORG ( section CARDINAL of LAW ) .

ORG The ORG is a judicial body set up under LAW . It was instituted initially to hear appeals against decisions and acts by various economic regulatory bodies , but gradually its jurisdiction has been extended to include certain decisions of central government and other independent government bodies under specialist legislation . According to LAW for making provision for appeals to ORG " ( PERSON voor het openstellen van beroep op het ORG van Beroep voor het GPE ) of CARDINAL DATE , Government Gazette DATE , CARDINAL , the ORG should in principle be the competent court with regard to " legislation of a socio - economic nature " .

Section CARDINAL of the CARDINAL Act gave the ORG competence to review such acts and decisions for compliance with legislation of a general nature and general principles of good governance ( algemene beginselen van behoorlijk bestuur ) , to check whether there had been any abuse of authority and to determine whether in weighing up the interests at stake , the government body concerned had acted reasonably in deciding as it had .

ORG The judges of the ORG are appointed for life by the ORG . They must have the same qualifications as ORG judges ( section CARDINAL of LAW ) . They take the same oath and receive the same salary as ORG judges and are subject to the same rules and procedure as regards supervision and dismissal ( sections CARDINAL and CARDINAL of the CARDINAL Act ) .

Tribunal judges may not have any other official position , nor may they hold any position in private enterprise or in any association of employers or employees ( section CARDINAL of the CARDINAL Act ) .

ORG The proceedings before the ORG are public . At the material time , they normally comprised written proceedings ( an application filed by an appellant , a memorial in reply submitted by the government body concerned , and possibly - if the President consented - additional memorials ) followed by an oral hearing ( sections CARDINAL et seq . of LAW ) .

Section CARDINAL allowed both the government body and the applicant to " alter their claim or their defence and the grounds advanced in support , until the close of the hearing , unless the ORG [ was ] of the opinion that such a change ORG ] the opponent at an unreasonable disadvantage " .

ORG Under LAW of the CARDINAL LAW the applicant could apply for interim measures to the President of the ORG . He could do so both before and after filing an appeal on the merits . The President would give a decision as soon as possible , having heard the government body concerned or at least offered it the opportunity to be heard .

ORG The ORG , against whose judgment there was no further appeal , was empowered to overrule the decision appealed against and to provide for the consequences of such reversal ; in particular , it could order the government body concerned to make , retract or alter a decision or to act or refrain from acting in a certain way . The judgment might include an order to pay a penalty in the event of non - compliance ( section CARDINAL of LAW ) . The ORG could also order the body to pay compensation for any damage suffered by the appellant as a result of the decision or act appealed against ( section CARDINAL ) . To the extent that the judgment ordered payment of a sum of money , it could be executed in accordance with the rules pertaining to the execution of judgments of the courts in civil cases ( section CARDINAL ) .

Sections DATE and CARDINAL of the CARDINAL Act provided as follows :

" CARDINAL . ORG If in Our opinion the consequences of a judgment [ i.e. of ORG ] are contrary to the general interest , We may , on the recommendation of those of Our ministers whom it concerns , decide that it shall not be followed or shall not be followed in its entirety .

Pending the taking of a decision under the preceding paragraph , We may , on the recommendation of those of Our ministers whom it concerns , suspend the judgment in whole or in part for a length of time to be determined by Us . Even after prolongation , suspension may not be for DATE .

ORG A decision as referred to in the first paragraph may only be taken within DATE of the judgment or , if the judgment is suspended within that period , within the length of time determined for the suspension . A decision as referred to in the second paragraph may only be taken within DATE of the judgment .

ORG Our decisions shall be published in the Official Bulletin .

ORG The first CARDINAL paragraphs shall not apply in so far as the decision awards compensation or partial compensation or orders the payment of costs .

ORG ... "

" CARDINAL . ORG If We decide that the judgment shall not be followed or shall not be followed in its entirety , ORG may , at the request of the person concerned , retry the case taking due notice of Our Decision or order the government body concerned to pay compensation for all or part of the damage suffered by the appellant as a consequence of the fact that the judgment is not followed or not followed in its entirety .

DATE . ... "

The expressions " We " , " Our " and " Us " in the above sections referred to the fact that the decisions under LAW took the form of a royal decree ( PERSON besluit ) , that is a decree signed by the ORG and the Minister responsible . Since such a decree can only be adopted on the initiative and the ( political ) responsibility of a Minister , it was effectively the Minister who had the power to issue a decision under section CARDINAL paras . CARDINAL . Following customary GPE terminology , the present judgment will refer to the ORG and the Minister together as " the Crown " .

No use was ever made of the powers under sections DATE and CARDINAL of the CARDINAL Act . The above - mentioned Guidelines ( see paragraph CARDINAL above ) stated explicitly that new laws conferring jurisdiction on the ORG should declare the LAW applicable except for sections CARDINAL . Before the Guidelines were drawn up , the Minister of ORG replied as follows to a question from ORG ( PERSON ) :

" In my opinion , it is in principle never necessary to declare sections CARDINAL and CARDINAL applicable by analogy . At the time , these CARDINAL provisions were included in the LAW as a matter of prudence , which may be explained by the circumstance that DATE the legislature had little idea of the way in which administrative judicial procedure would develop . No use has ever been made of the ORG ’s powers under LAW . One might even venture to suggest that the scheme of sections CARDINAL DATE has become a dead letter . " ( GPE ( Parliamentary Documents ) II DATE , DATE , A - C , p. CARDINAL )

ORG The CARDINAL Act remained in force until DATE . On DATE a General Administrative Code ( PERSON ) came into force , laying down new uniform rules of administrative - law procedure .

At the same time LAW was replaced by ORG ( GPE bestuursrechtspraak bedrijfsorganisatie ) . Under section CARDINAL of that Act , the new uniform rules laid down in LAW also govern the procedure of the ORG .

There is no provision in either the LAW or the LAW empowering any executive authority to interfere with the binding force of a judgment .