CASE OF OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND

Preliminary objections dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Six month period);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information);Pecuniary damage - award

C. Russo;John Freeland;N. Valticos;R. Pekkanen

The applicants in this case are ( a ) Open Door Counselling Ltd ( hereinafter referred to as Open Door ) , a company incorporated under NORP law , which was engaged , inter alia , in counselling pregnant women in GPE and in other parts of GPE ; and ( b ) GPE Well FAC ( hereinafter referred to as GPE Well Woman ) , a company also incorporated under NORP law which provided similar services at CARDINAL clinics in GPE ; ( c ) PERSON and PERSON , who worked as trained counsellors for GPE Well Woman ; ( d ) PERSON , born in DATE and ORG , born in DATE , who join in the GPE Well Woman application as women of child - bearing age . The applicants complained of an injunction imposed by the NORP courts on Open Door and GPE Well Woman to restrain them from providing certain information to pregnant women concerning abortion facilities outside the jurisdiction of GPE by way of non - directive counselling ( see paragraphs CARDINAL and CARDINAL below ) .

Open Door and GPE Well Woman are both non - profit- making organisations . Open Door ceased to operate in DATE ( see paragraph CARDINAL below ) . GPE Well Woman was established in DATE and provides a broad range of services relating to counselling and marriage , family planning , procreation and health matters . The services offered by GPE Well Woman relate to every aspect of women ’s health , ranging from smear tests to breast examinations , infertility , artificial insemination and the counselling of pregnant women .

In DATE , at the time of the referendum leading to LAW ( see paragraph CARDINAL below ) , GPE Well Woman issued a pamphlet stating inter alia that legal advice on the implications of the wording of the provision had been obtained and that " with this wording anybody could seek a court injunction to prevent us offering " the non - directive counselling service . The pamphlet also warned that " it would also be possible for an individual to seek a court injunction to prevent a woman travelling abroad if they believe she intends to have an abortion " .

The applicant companies were the defendants in proceedings before ORG which were commenced on DATE as a private action brought by ORG ( hereinafter referred to as GPE ) , which was converted into a relator action brought at the suit of the Attorney General by order of ORG of DATE ( the Attorney General at the relation of ORG v. Open ORG and GPE Well ORG [ DATE ] ORG , pp . CARDINAL - CARDINAL ) .

GPE sought a declaration that the activities of the applicant companies in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion were unlawful having regard to LAW which protects the right to life of the unborn ( see paragraph CARDINAL below ) and an order restraining the defendants from such counselling or assistance .

No evidence was adduced at the hearing of the action which proceeded on the basis of certain agreed facts . The facts as agreed at that time by GPE Well Woman may be summarised as follows :

( a ) It counsels in a non - directive manner pregnant women resident in GPE ;

( b ) Abortion or termination of pregnancy may be one of the options discussed within the said counselling ;

( c ) If a pregnant woman wants to consider the abortion option further , arrangements will be made by the applicant to refer her to a medical clinic in GPE ;

( d ) In certain circumstances , the applicant may arrange for the travel of such pregnant women ;

( e ) The applicant will inspect the medical clinic in GPE to ensure that it operates at the highest standards ;

( f ) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by the applicant ;

( g ) Pregnant women resident in GPE have been referred to medical clinics in GPE where abortions have been performed for DATE .

The facts agreed by Open Door were the same as above with the exception of point ( d ) .

The meaning of the concept of non - directive counselling was described in the following terms by Mr Justice PERSON in the judgment of ORG in the case ( judgment of DATE , [ DATE ] NORP Reports CARDINAL at p. CARDINAL ) :

" It was submitted on behalf of each of the Defendants that the meaning of non - directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgmental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution . This interpretation of the phrase ‘ non - directive counselling’ in the context of the activities of the Defendants was not disputed on behalf of the Respondent . It follows from this , of course , that non- directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither , of course , could it permit the giving of advice for any reason to the pregnant women receiving such counselling against choosing to have an abortion . "

On DATE Mr Justice PERSON , President of ORG , found that the activities of Open Door and GPE Well Woman in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within a foreign jurisdiction were unlawful having regard to the provisions of LAW .

He confirmed that NORP criminal law made it an offence to procure or attempt to procure an abortion , to administer an abortion or to assist in an abortion by supplying any noxious thing or instrument ( sections DATE of the Offences against LAW DATE paragraph CARDINAL below ) . Furthermore , NORP constitutional law also protected the right to life of the unborn from the moment of conception DATE .

An injunction was accordingly granted " ... that the Defendants [ Open Door and GPE Well Woman ] and each of them , their servants or agents , be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice on abortion or to obtain an abortion " . ORG made no order relating to the costs of the proceedings , leaving each side to bear its own legal costs .

Open Door and GPE Well Woman appealed against this decision to ORG which in a unanimous judgment delivered on DATE by Mr Justice PERSON rejected the appeal .

ORG noted that the appellants did not consider it essential to the service which they provided for pregnant women in GPE that they should take any part in arranging the travel of women who wished to go abroad for the purpose of having an abortion or that they arranged bookings in clinics for such women . However , they did consider it essential to inform women who wished to have an abortion outside the jurisdiction of the court of the name , address , telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard .

On the question of whether the above activity should be restrained as being contrary to the LAW , Mr Justice PERSON stated :

" ... the essential issues in this case do not in any way depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions . The essential issue in this case , having regard to the nature of the guarantees contained in LAW , s.CARDINAL , sub - s.CARDINAL of LAW , is the issue as to whether the GPE admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion . To put the matter in another way , the issue and the question of fact to be determined is : were they thus assisting in the destruction of the life of the unborn ?

I am satisfied beyond doubt that having regard to the admitted facts the Defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in GPE which would provide the service of abortion . It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of CARDINAL or other of the Defendants to obtain the precise location , address and telephone number of , and method of communication with , a clinic in GPE which provided that service , put in plain language , that was knowingly helping her to attain her objective . I am , therefore , satisfied that the finding made by the learned trial Judge that the Defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence ... "

The ORG further noted that the phrase in LAW with due regard to the equal right to life of the mother " did not arise for interpretation in the case since the applicants were not claiming that the service they were providing for pregnant women was " in any way confined to or especially directed towards the due regard to the equal right to life of the mother ... " .

Open Door and GPE Well Woman had submitted that if they did not provide this counselling service it was likely that pregnant women would succeed nevertheless in obtaining an abortion in circumstances less advantageous to their health . The ORG rejected this argument in the following terms :

" Even if it could be established , however , it would not be a valid reason why the ORG should not restrain the activities in which the defendants were engaged .

The function of the courts , which is not dependent on the existence of legislation , when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked , must be confined to the issues and to the parties before them .

If the ORG enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case . The courts can not take that wide approach . They are confined to dealing with the parties and issues before them . I am satisfied , therefore , that it is no answer to the making of an order restraining these GPE activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these GPE activities . "

As to whether there was a constitutional right to information about the availability of abortion outside the ORG , the court stated as follows :

" The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying . Within the terms of Article CARDINAL.CARDINAL.CARDINALo it is a direct destruction of the constitutionally guaranteed right to life of that unborn child .

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the ORG which , if availed of , would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn . As part of the submission on this issue it was further suggested that the right to receive and give information which , it was alleged , existed and was material to this case was , though not expressly granted , impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by DATE , s.CARDINAL , sub - s.CARDINAL ( i ) of the LAW , since , it was claimed , the right to express freely convictions and opinions may , under some circumstances , involve as an ancillary right the right to obtain information . I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child . "

The court upheld the decision of ORG to grant an injunction but varied the terms of the order as follows :

" ... that the defendants and each of them , their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic , by the making for them of travel arrangements , or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise . "

The costs of ORG appeal were awarded against the applicant companies on DATE .

Following the judgment of ORG , Open Door , having no assets , ceased its activities .

On DATE GPE applied to ORG for a declaration that the dissemination in certain student publications of information concerning the identity and location of abortion clinics outside the jurisdiction was unlawful and for an injunction restraining its distribution . Their standing to apply to the courts for measures to protect the right to life of the unborn had previously been recognised by ORG following a similar action in the case of ORG v. ORG ( [ DATE ] ORG , pp . CARDINAL - CARDINAL ) .

By a judgment of CARDINAL DATE ORG decided to refer certain questions to ORG for a preliminary ruling under LAW concerning , inter alia , the question whether the right to information concerning abortion services outside GPE was protected by Community law .

An appeal was brought against this decision and , on DATE , ORG granted an interlocutory injunction restraining the students from " publishing or distributing or assisting in the printing , publishing or distribution of any publication produced under their aegis providing information to persons ( including pregnant women ) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed " ( ORG ( Ireland ) Ltd v. PERSON and Others , [ DATE ] ORG , pp . CARDINAL - CARDINAL ) .

Mr Justice PERSON ( with whom Mr Justice PERSON , Mr Justice PERSON and Mr Justice PERSON concurred ) considered that the reasoning of the court in the case brought against the applicant companies applied to the activities of the students :

" I reject as unsound the contention that the activity involved in this case of publishing in the ORG manuals the name , address and telephone number , when telephoned from this ORG , of abortion clinics in GPE , and distributing such manuals in GPE , can be distinguished from the activity condemned by ORG in [ the Open Door Counselling case ] on the grounds that the facts of that case were that the information was conveyed during periods of CARDINAL to CARDINAL non - directive counselling . It is clearly the fact that such information is conveyed to pregnant women , and not the method of communication which creates the unconstitutional illegality , and the judgment of ORG in the Open Door Counselling case is not open to any other interpretation . "

Mr Justice PERSON also considered that an injunction should be issued and commented as follows :

" In the light of the availability of such information from a variety of sources , such as imported magazines , etc . , I am far from satisfied that the granting of an injunction to restrain these defendants from publishing the material impugned would save the life of a single unborn child , but I am more than satisfied that if the courts fail to enforce , and enforce forthwith , that guarantee as construed in ORG ) v. Open ORG ( [ DATE ] NORP Reports CARDINAL ) , then the rule of law will be set at nought . "

In a judgment of CARDINAL DATE on the questions referred under LAW , following ORG judgment , ORG of ORG ruled that the medical termination of pregnancy , performed in accordance with the law of the ORG in which it is carried out , constitutes a service within the meaning of LAW . However it found that the link between the activity of the student associations and medical terminations of pregnancy carried out in clinics in another member ORG was too tenuous for the prohibition on the distribution of information to be capable of being regarded as a restriction on the freedom to supply services within the meaning of LAW . The Court did not examine whether the prohibition was in breach of LAW ) of the LAW . In the light of its conclusions concerning the restriction on services it considered that it had no jurisdiction with regard to national legislation " lying outside the scope of Community law " . Accordingly , the restrictions on the publication of information by student associations were not considered to be contrary to Community law ( see paragraphs CARDINAL above , ORG ( Ireland ) Ltd v. PERSON and Others [ DATE ] ORG Reports I , pp . DATE ) .

The interpretation to be given to LAW also arose before ORG in the case of The Attorney General v. X and Others which concerned an application to the courts by the Attorney General for an injunction to prevent a CARDINAL-year - old girl who was pregnant from leaving the jurisdiction to have an abortion abroad . The girl alleged that she had been raped and had expressed the desire to commit suicide . ORG , in its judgment of DATE , found that termination of pregnancy was permissible under LAW it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination was not effected . Finding that this test was satisfied on the facts of the case ORG discharged the injunction which had been granted by ORG at first instance .

A majority of CARDINAL judges of ORG ( PERSON , PERSON and PERSON . ) expressed the view that Article CARDINAL empowered the courts in proper cases to restrain by injunction a pregnant woman from leaving the jurisdiction to have an abortion so that the right to life of the unborn might be defended and vindicated .

During the oral hearing before ORG , the Government made the following statement in the light of ORG judgment in this case :

" ... persons who are deemed to be entitled under NORP law to avail themselves of termination of pregnancy in these circumstances must be regarded as being entitled to have appropriate access to information in relation to the facilities for such operations , either in GPE or abroad . "

The applicants presented evidence to the ORG that there had been no significant drop in the number of NORP women having abortions in GPE since the granting of the injunction , that number being well over QUANTITY women per year . They also submitted an opinion from an expert in public health ( Dr PERSON ) which concludes that there are CARDINAL possible adverse implications for the health of NORP women arising from the injunction in the present case :

An increase in the birth of unwanted and rejected children ;

An increase in illegal and unsafe abortions ;

A lack of adequate preparation of NORP women obtaining abortions ;

Increases in delay in obtaining abortions with ensuing increased complication rates ;

Poor aftercare with a failure to deal adequately with medical complications and a failure to provide adequate contraceptive advice .

In their written comments to the Court , GPE claimed that the number of abortions obtained by NORP women in GPE , which had been rising rapidly prior to the enactment of Article CARDINAL.CARDINAL.CARDINALo , had increased at a much reduced pace . They further submitted that the number of births to married women had increased at a " very substantial rate " .

The applicants claimed that the impugned information was available in NORP newspapers and magazines which were imported into GPE as well as in the yellow pages of the GPE telephone directory which could be purchased from the NORP telephone service . It was also available in publications such as ORG which was obtainable in GPE .

While not challenging the accuracy of the above information the Government observed that no newspaper or magazine had been produced in evidence to the ORG .

Article CARDINAL.CARDINAL.CARDINALo of LAW ( LAW ) , which came into force in DATE following a referendum , reads :

" The ORG acknowledges the right to life of the unborn and , with due regard to the equal right to life of the mother , guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate that right . "

This provision has been interpreted by ORG in the present case , in the Society for the Protection of Unborn Children ( Ireland ) Ltd v. PERSON and Others ( [ DATE ] ORG , p. CARDINAL ) and in The Attorney General v. X and Others ( see paragraphs CARDINAL above ) .

The statutory prohibition of abortion is contained in sections DATE and CARDINAL of the Offences Against LAW DATE . Section CARDINAL provides that :

" Every woman , being with child , who , with intent to procure her own miscarriage , shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent , and whosoever , with intent to procure the miscarriage of any woman , whether she be or not be with child , shall unlawfully administer to her or cause to betaken by her any poison or other noxious thing , or shall unlawfully use any instrument or other means whatsoever with the like intent , shall be guilty of a felony , and being convicted thereof shall be liable , [ to imprisonment for life ] ... "

Section CARDINAL states that :

" Whoever shall unlawfully supply or procure any poison or other noxious thing , or any instrument or thing whatsoever , knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman , whether she be or be not with child , shall be guilty of a misdemeanour , and being convicted thereof , ... "

LAW of ORG Act DATE as amended by CARDINAL of ORG DATE provides that :

" It shall not be lawful for any person , otherwise than under and in accordance with a permit in writing granted to him under this section

( a ) to print or publish or cause or procure to be printed or published , or

( b ) to sell or expose , offer or keep for sale or

( c ) to distribute , offer or keep for distribution ,

any book or periodical publication ( whether appearing on the register of prohibited publications or not ) which advocates or which might reasonably be supposed to advocate the procurement of abortion or miscarriage or any method , treatment or appliance to be used for the purpose of such procurement . "

Section CARDINAL of LAW DATE provides that " the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born , provided the child is subsequently born alive " .

LAW DATE re - affirms the statutory prohibition of abortion and states as follows :

" Nothing in this Act shall be construed as authorising -

( a ) the procuring of abortion ,

( b ) the doing of any other thing the doing of which is prohibited by LAW or CARDINAL of the Offences Against the Person Act , DATE ( which sections prohibit the administering of drugs or the use of any instruments to procure abortion ) or ,

( c ) the sale , importation into the ORG , manufacture , advertising or display of abortifacients . "

Apart from the present case and subsequent developments ( see paragraphs CARDINAL above ) , reference has been made to the right to life of the unborn in various decisions of ORG ( see , for example , PERSON v. Attorney General [ DATE ] ORG , p. CARDINAL , PERSON v. An PERSON [ DATE ] ORG , p. CARDINAL , ORG v. Attorney General [ DATE ] ORG , p. CARDINAL ) .

In the case of PERSON v. An PERSON ( loc . cit . ) Mr Justice PERSON stated as follows :

" [ A child ] has the right to life itself and the right to be guarded against all threats directed to its existence , whether before or after birth ... The right to life necessarily implies the right to be born , the right to preserve and defend and to have preserved and defended that life ... "

ORG has also stated that the courts are the custodians of the fundamental rights set out in the LAW and that their powers in this regard are as ample as the defence of LAW requires ( The State ( Quinn ) v. PERSON [ DATE ] Irish Reports CARDINAL ) . Moreover , an infringement of a constitutional right by an individual may be actionable in damages as a constitutional tort ( ORG v. C.I.E. [ DATE ] ORG , p. CARDINAL ) .

In his judgment in ORG ( [ DATE ] ORG , p. CARDINAL ) , Mr Justice PERSON observed :

" When the People enacted LAW of CARDINAL , they provided ( LAW that the ORG guaranteed in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen and that the ORG should , in particular , by its laws protect as best it might from unjust attack and in the case of injustice done , vindicate the life , person , good name and property rights of every citizen . I draw attention to the use of the words ‘ the ORG . The obligation to implement this guarantee is imposed not on the ORG only , but on each branch of the ORG which exercises the powers of legislating , executing and giving judgment on those laws : DATE . The word ‘ laws’ in LAW is not confined to laws which have been enacted by the ORG , but comprehends the laws made by judges and by ministers of ORG when they make statutory instruments or regulations . "


Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE . He studied educational science and aircraft engineering and piloting in the former GPE ( GPE ) . From DATE until DATE he worked for the GPE airline ORG .

On DATE he applied for the transfer of alleged future pension rights under CARDINAL of the additional pension schemes for certain professions or groups ( Zusatzversorgungssysteme ) . On DATE the applicant 's request was dismissed . His subsequent administrative appeal , submitted on DATE , was rejected on DATE .

On DATE he brought an action in ORG , which , following a hearing on DATE , dismissed the action , finding that the applicant did not qualify for any of the additional pension schemes . The judgment was served on the applicant on DATE . On DATE he appealed the judgment .

On DATE ORG rendered a decision concerning a similar subject - matter , which was consistent with ORG decision in the instant case . On DATE ORG advised the parties of ORG decision and classified the case as ready for decision .

During the course of the appeal proceedings the applicant 's representative declared that he was seeking fundamental clarification of the subject - matter before ORG . ORG therefore awaited a decision of that court .

On DATE the judge rapporteur enquired whether the appeal was to continue after ORG on DATE ( file no . CARDINAL BvR CARDINAL/CARDINAL ) had declined to admit for examination a constitutional complaint in a similar case .

On DATE the applicant 's representative announced that he would submit further observations until DATE . After a reminder of ORG on DATE these observations were submitted on DATE .

On DATE ORG dismissed the applicant 's appeal and refused to grant leave to appeal on points of law . On DATE the judgment was served on the applicant 's representative .

Within the statutory time limit the applicant 's representative objected to the refusal to grant leave to appeal on points of law and reasoned the objection on DATE . On DATE ORG dismissed the objection as inadmissible . This decision was served on the applicant 's representative on DATE .

Section CARDINAL of ORG Act exempts applicants from the requirement to await the outcome of the preliminary administrative proceedings and allows them to lodge a court action directly with ORG if the administrative authorities fail without sufficient justification to decide the administrative appeal within a reasonable time , in general DATE .

Further relevant domestic law and practice is described in the ORG 's decision of PERSON and Others v. GPE ( see PERSON and Others v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) and PERSON v. GPE ( see PERSON GPE DATE . ) , no . CARDINAL , DATE ) .


CASE OF TRAJCE STOJANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 5-1-e;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in PERSON .

On DATE ORG ( “ the trial court ” ) ordered an indefinite security measure against the applicant , who was a deaf mute , of “ compulsory psychiatric treatment and confinement in a medical institution of a closed type ” ( задолжително психијатриско лекување и чување во здравствена установа од затворен тип ) ( “ the confinement order ” ) for causing “ serious bodily injury ” and “ endangering another with a dangerous implement in a fight or quarrel ” . The court established that on DATE an incident had taken place in the court building between PERSON , the applicant 's father , and PERSON , as parties summoned to attend a hearing scheduled for DATE . The applicant intervened in the quarrel and knocked Mr D. down . Mr D. sustained severe head injuries and a brain haemorrhage as a result of DATE and died DATE . The applicant also hit a judge several times . He was subsequently prevented from assaulting a third person . The court found that the applicant was “ slightly mentally retarded ” and considered aggressive and a danger to the public , in particular villagers whom he had allegedly often assaulted . CARDINAL medical reports drawn up by CARDINAL psychiatric experts confirmed that the applicant was mentally ill , and needed medical treatment in a specialised psychiatric hospital .

The confinement order was enforced immediately . The applicant was placed in ORG ( hereafter “ the hospital ” ) .

On DATE the hospital requested the trial court to amend the confinement order and release the applicant on condition that he undergoes compulsory psychiatric treatment . It based its proposal on the applicant 's good behaviour in the past , the good relations he had established with the staff and other patients and the absence of any neurotic or psychiatric disorder since his confinement . The hospital noted that the applicant was mentally ill , which was a permanent state that could not be regarded as a disease . The public prosecutor supported the hospital 's proposal .

In submissions of DATE , the applicant 's sister requested that the trial court decide on the hospital 's proposal . A petition signed by over QUANTITY villagers , indicating that the applicant had been never dangerous and had been accepted in the village , was also attached to the request .

The trial court , in a decision confirmed on appeal , dismissed the hospital 's proposal relying on a notification by police , according to which the applicant had left the hospital several times and his visits to the village had been perceived as a threat and a danger by the local inhabitants . The police also referred to an incident of DATE involving the applicant and PERSON son . In a court decision of DATE , confirmed on appeal , PERSON son was acquitted , as having acted in self - defence , of causing grievous bodily injury to the applicant . The court also referred to another petition signed by many villagers , which allegedly had been attached to the notification .

On DATE the hospital lodged with the trial court a fresh proposal for the applicant 's conditional release , which was based on similar grounds to those of the previous review : good relations with the staff and other patients ; no disturbance of order ; mild drug therapy . The proposal was made with the stated aim of a faster and more efficient re - socialisation and reintegration of the applicant . The applicant was transferred to an open ward of the hospital . The public prosecutor supported the hospital 's proposal .

In submissions of DATE , the applicant , who was represented by PERSON , informed the court that his father intended to change residence and had consequently bought an apartment elsewhere .

On DATE the trial court requested the police to make an inquiry into whether the applicant had caused problems during his stay in the village and whether he had been a danger to the local inhabitants .

On DATE the trial court dismissed the hospital 's proposal , relying on a police report of CARDINAL DATE . It stated , inter alia , that :

“ ... the applicant left the hospital several times and went to stay with his father ... the last visit was in DATE ... after his arrival in the village , he started shouting out some indistinct words ... although he was noticed by the inhabitants , there were no attacks on other persons ... during the DATE stay in the village , he was always with his father . His presence in the village frightened , in particular , the immediate neighbours , who protected themselves by shutting up their houses and barring them from inside . Many inhabitants said that the applicant was under the psychological influence of his father , who DATE when intoxicated – had often provoked him by telling lies about the death of his mother and had thus made him aggressive towards some people . Local inhabitants therefore still feared the applicant 's aggression ... ”

On DATE the applicant left the hospital without consent and remained at large until DATE , when the police returned him .

On DATE the applicant complained that the trial court had not based its decision on relevant facts , arguing that the expert opinions of the hospital and the responsible medical officer who had treated him were the only evidence relevant for the court . He maintained that in case of misgivings as to the validity of the hospital 's opinion , the court should have obtained an alternative medical expertise . In submissions of DATE , the public prosecutor supported the applicant 's appeal and his request that the case be remitted for fresh consideration .

On DATE the ORG dismissed the applicant 's appeal and stated that the hospital 's proposal was irrelevant since it was not binding on the court . It ruled that on the basis of the results of the medical treatment it was free to decide whether the applicant was fit to be discharged from the hospital and treated on release . Lastly , it concluded that the applicant had escaped from the hospital several times and had presented a threat to the public . It was therefore too early to consider him fit for release .

No further DATE reviews were carried out until the hospital 's fresh proposal of DATE ( see paragraph CARDINAL below ) .

Since DATE the applicant has been placed in a semi - open ward of the hospital , where he is responsible for the maintenance and hygiene of the ward . He can not leave the hospital at will , unless authorised by a doctor . His last unauthorised leave from the hospital dates back to CARDINAL DATE . The police returned him after DATE . After that incident , a decision was taken that the applicant be allowed to leave the hospital . DATE the applicant was given leave on CARDINAL occasions , each time lasting not DATE . During this so - called “ therapy probationary leave ” , the applicant received the prescribed therapy and his father took care of him . His mental health was stable and required no special supervision .

On DATE the hospital unsuccessfully applied for replacement of the confinement order with the applicant 's conditional release , which was now to be accompanied by removal of his legal capacity and appointment of a guardian ( старател ) . The latter was based on the hospital 's view that the applicant 's father was unfit to take proper care of him . At a public hearing held on DATE , and after consulting CARDINAL doctors from the hospital and a ORG representative , the trial court found no one suitable to be appointed as the applicant 's guardian , if released . No information was provided as to whether the applicant appealed against this decision .

The relevant provision of LAW ( “ the LAW ” ) reads as follows :

Section CARDINAL

A court which at first instance has ordered compulsory psychiatric treatment and confinement in a medical institution may discontinue the order and release the perpetrator from the medical institution of its own motion or upon a proposal lodged by the medical institution or the custodial institution and after hearing the public prosecutor . It shall so decide if , after consulting the medical officer , it finds that there is no need for medical treatment and confinement of the perpetrator in the institution . It can order his or her release on condition that he or she undergoes compulsory psychiatric treatment .

The relevant provisions of LAW read as follows :

Article CARDINAL

Compulsory psychiatric treatment and confinement in a medical institution

“ ( CARDINAL ) The court shall order the compulsory psychiatric treatment and confinement in a medical institution of a perpetrator who has committed an offence while of unsound mind or with a substantial mental deficiency if it finds that , due to that condition , he or she may reoffend and that medical treatment and confinement in such an institution is warranted to prevent him or her from doing so .

( CARDINAL ) The court shall discontinue the measure set forth in paragraph CARDINAL when it finds that there is no need for medical treatment and confinement of the perpetrator in the medical institution .

( CARDINAL ) The court shall review the need for medical treatment and confinement in a medical institution DATE . ”

Article CARDINAL

Compulsory psychiatric treatment on release

“ ( CARDINAL ) The court shall order compulsory psychiatric treatment on release of a perpetrator who has committed an offence while of unsound mind if it finds that , due to that condition , he or she may reoffend and that medical treatment on release would be sufficient to prevent him or her from doing so .

( CARDINAL ) The measure set forth in paragraph CARDINAL may be imposed on an offender who has already undergone compulsory psychiatric treatment and confinement in a medical institution when , on the basis of the results of the medical treatment , the court determines that his or her treatment and confinement in a medical institution is no longer necessary ... ”


The applicant , PERSON , is a NORP national , born in DATE and living in GPE . He is represented by Mr PERSON , a lawyer practicing in PERSON . The respondent Government are represented by their agent Ms PERSON .

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

The applicant served in ORG ( ORG ) and in DATE retired from service . His military pension was assessed according to his rank and DATE of service and was paid from ORG . The payments terminated in DATE , following the dissolution of GPE .

However , on DATE , ORG , ORG , assessed the applicant ’s pension , as from DATE , to CARDINAL,CARDINAL % of the amount he had received in DATE . The applicant appealed against that decision and after his appeal was dismissed , instituted administrative proceedings with ORG , which dismissed the applicant ’s claim on DATE .

On DATE the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and ORG violated his constitutional rights .

ORG rejected the applicant ’s claim on DATE .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

Mr and PERSON were the owners of an apartment in GPE , which they had let to M.C.B.

In a registered letter of CARDINAL DATE , they informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .

In a writ served on the tenant on DATE , they reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Florence Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

On DATE , the applicant became the owner of the apartment .

On DATE , the applicant served notice on the tenant requiring her to vacate the premises .

On DATE , the applicant made a statutory declaration that she urgently required the premises as accommodation for herself .

On DATE , she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the tenant vacated the LOC and the applicant recovered possession of the flat .

The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Her grandmother was the owner of a flat in GPE , which she had let to GPE

In a registered letter of CARDINAL DATE , the applicant 's grandmother informed the tenant that she intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .

NORP The tenant told the applicant 's grandmother that she would not leave the LOC and she fell in rent arrears .

In a writ served on the tenant on DATE , the applicant 's grandmother reiterated her intention to terminate the lease and summoned the tenant to appear before ORG .

By a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant 's grandmother died and the applicant inherited the apartment .

NORP On DATE , she informed the tenant that the order for possession would be enforced by a bailiff on DATE .

Between DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

In the meanwhile , on DATE , the applicant made a second statutory declaration that she urgently required the premises as accommodation for herself .

On an unspecified date of DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , for some cases , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Violation of Art. 9;Not necessary to examine Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant is a NORP citizen , born in DATE . He is a theological school graduate and resides in PERSON .

In DATE one of the CARDINAL NORP religious leaders of LOC , the Mufti of Rodopi , died . The ORG appointed a mufti ad interim . When he resigned , a second mufti ad interim , Mr PERSON , was appointed . On DATE the President of the Republic confirmed PERSON in the post of ORG .

NORP In DATE the CARDINAL independent NORP Members of ORG and PERSON requested the ORG to organise elections for the post of ORG , as the law then in force provided . They also requested that elections be organised by the ORG for the post of the other NORP religious leader of PERSON , ORG . Having received no reply , the CARDINAL independent MPs decided to organise elections themselves at the FAC on DATE , after prayers .

On DATE the President of the Republic , on the proposal of ORG and under LAW , adopted a legislative decree by which the manner of selection of the muftis was changed .

On DATE the applicant was elected Mufti of GPE by those attending DATE prayers at the FAC . Together with other NORP , he challenged the lawfulness of PERSON ’s appointment before ORG . These proceedings are still pending .

On DATE ORG enacted PERSON no . DATE , thereby retroactively validating the legislative decree of DATE .

The GPE public prosecutor instituted criminal proceedings against the applicant under LAW and CARDINAL of LAW for having usurped the functions of a minister of a “ known religion ” and for having publicly worn the dress of such a minister without having the right to do so . On DATE ORG , considering that there might be disturbances in GPE , decided , under LAW and CARDINAL of LAW , that the case should be heard in LOC .

On DATE the LOC public prosecutor summoned the applicant to appear before ORG sitting at first instance and composed of a single judge to be tried for the offences provided for under LAW and CARDINAL of LAW .

The applicant was tried by ORG on DATE . He was represented by counsel . The court heard a number of prosecution and defence witnesses . Although CARDINAL witness attested that the applicant had taken part in religious ceremonies , none of the witnesses stated that the applicant had purported to discharge the judicial functions with which muftis are entrusted in NORP law . Moreover , a number of witnesses attested that no official dress for muftis existed . However , CARDINAL prosecution witness declared that , although in principle all NORP were allowed to wear the black gown in which the applicant had been appearing , according to local custom this had become the privilege of muftis .

On DATE the court found the applicant guilty of the offences provided for under Articles CARDINAL and CARDINAL of LAW . According to the court , these offences had been committed DATE and DATE , a period during which the applicant had discharged the entirety of the functions of ORG by officiating at weddings , “ christening ” children , preaching and engaging in administrative activities . In particular , the court found that on DATE the applicant had issued a message to his fellow NORP about the religious significance of the PERSON feast , thanking them at the same time for his election as mufti . On DATE , in the capacity of a mufti , he had attended the inauguration of the hall of ORG of ORG of PERSON ” wearing clothes which , according to NORP custom , only muftis were allowed to wear . On DATE he had issued another message on the occasion of the Berat PERSON feast . Finally , on DATE and in the same capacity , he had attended a religious gathering of CARDINAL NORP at GPE , a village in GPE , and had delivered the keynote speech . Moreover , the court found that the applicant had repeatedly worn the official dress of a mufti in public . The court imposed on the applicant a commutable sentence of CARDINAL months’ imprisonment .

The applicant appealed . The hearing before the ORG sitting on appeal and composed of CARDINAL judges was adjourned on CARDINAL DATE and DATE because , inter alia , PERSON , the appointed mufti , who had been called by the prosecution , did not appear to testify . PERSON was fined . The appeal was heard on DATE . In a decision issued on the same date the court upheld the applicant ’s conviction and imposed on him a sentence of CARDINAL months’ imprisonment to be commuted to a fine .

The applicant paid the fine and appealed on points of law . He submitted , inter alia , that the appellate court had interpreted LAW erroneously when it considered that the offence was made out even where a person claimed to be a minister of a “ known religion ” without , however , discharging any of the functions of the minister ’s office . Moreover , the court had been wrong to disregard expert testimony that no official mufti dress existed . The applicant had the right under LAW to make the statements for which he had been convicted . “ The office of the mufti represented the free manifestation of the NORP religion ” , the NORP community had the right under LAW of DATE to elect its muftis and , therefore , his conviction violated Articles CARDINAL and CARDINAL of the Convention .

On DATE ORG dismissed the applicant ’s appeal . It considered that the offence in LAW was made out “ where somebody appeared in public as a minister of a ‘ known religion’ and discharged the functions of the minister ’s office , including any of the administrative functions pertaining thereto ” . The court considered that the applicant had committed this offence because he had behaved and appeared in public as the Mufti of Rodopi , wearing the dress which , in people ’s minds , was that of a mufti . In particular , the court referred to the incidents of DATE and CARDINAL , DATE and CARDINAL DATE . ORG did not specifically address the applicant ’s arguments under LAW , CARDINAL and DATE of the Convention .

LAW GPE and others , on the one hand , and GPE , on the other , which was concluded on CARDINAL DATE and ratified by the NORP parliament by a law published in ORG on DATE , provides as follows :

( Translation )

“ The life , property , honour , religion and customs of the inhabitants of the districts ceded to GPE who will remain under NORP administration shall be scrupulously respected .

They shall enjoy in full the same civil and political rights as the subjects of NORP origin . NORP shall be entitled to freedom and to practise their religion openly .

There shall be no interference with the autonomy or hierarchical organisation of existing or future NORP communities or in the management of their funds or property .

Each mufti shall be elected by NORP voters in his own constituency .

In addition to their authority in purely religious matters and in the supervision of the management of vacouf property , the muftis shall have jurisdiction as between NORP in the spheres of marriage , divorce , maintenance ( nefaca ) , guardianship , administration , capacity of minors , NORP wills and succession to the office of mutevelli ( PERSON ) .

Judgments delivered by the muftis shall be enforced by the competent NORP authorities .

As regards successions , any interested NORP party may with prior agreement submit a dispute to the mufti as arbitrator . Unless the agreement expressly provides otherwise , all avenues of appeal to the NORP courts shall lie against an arbitral award . ”

On DATE GPE concluded CARDINAL treaties with the principal PERSON at Sèvres . By the first treaty ORG transferred to GPE all the rights and titles which they had acquired over LOC by virtue of the peace treaty they had signed with GPE at FAC on DATE . The second treaty concerned the protection of minorities in GPE . LAW second treaty provides as follows :

“ GPE agrees to take all necessary measures in relation to the NORP to enable questions of family law and personal status to be regulated in accordance with NORP usage . ”

On DATE GPE and GPE signed a treaty for the exchange of populations . On DATE GPE and others , on the one hand , and GPE , on the other , signed LAW . Articles CARDINAL and CARDINAL of this treaty gave the NORP minority of GPE the same protection as LAW for ORG . On DATE GPE signed a protocol with the principal PERSON bringing into force the CARDINAL treaties concluded at Sèvres on DATE . The NORP parliament ratified the CARDINAL above - mentioned treaties by a law published in ORG on DATE .

In its decision no . CARDINAL ORG considered that it was obliged to apply NORP law in certain disputes between NORP by virtue of LAW DATE , LAW and LAW of DATE .

Law no . CARDINAL provided that the muftis , in addition to their religious functions , had competence to adjudicate on family and inheritance disputes between NORP to the extent that these disputes were governed by NORP law . It also provided that the muftis were directly elected by the NORP who had the right to vote in the national elections and who resided in the prefectoral district in which the muftis would serve . The elections were to be organised by the ORG and theological school graduates had the right to be candidates . Section CARDINAL ) of the PERSON provided for the promulgation of a royal decree to make detailed arrangements for the elections of the muftis .

Such a decree was never promulgated . The ORG appointed a mufti in GPE in DATE and another one in DATE . In DATE a mufti ad interim was appointed by the ORG . In the course of DATE the ORG appointed a regular mufti . This mufti was replaced by DATE , when GPE occupied GPE . He was reappointed by ORG in DATE . In DATE the NORP authorities appointed a mufti ad interim until DATE , when a regular mufti was appointed . The latter served until DATE , when he died .

Under the legislative decree of CARDINAL DATE the functions and qualifications of the muftis remain largely unchanged . However , provision is made for the appointment of the muftis by presidential decree following a proposal by ORG who , in turn , must consult a committee composed of the local prefect and a number of NORP dignitaries chosen by the ORG . The legislative decree expressly abrogates PERSON no . CARDINAL and provides that it should be ratified by law in accordance with LAW .

Law no . DATE retroactively validated the legislative decree of DATE .

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In exceptional circumstances , when an extremely urgent and unforeseeable need arises , the President of the Republic may , on the proposal of ORG , adopt legislative acts . These acts must be submitted to ORG for approval ... within DATE … ”

Article CARDINAL of the Criminal Code provides as follows :

“ CARDINAL . A person who intentionally usurps the functions of a ORG or municipal official shall be liable to a term of imprisonment not exceeding one year or a fine .

NORP This provision also applies where a person usurps the functions of a lawyer or a minister of ORG or another known religion . ”

ORG considered that this provision applied in the case of a former priest of ORG who continued to wear the ORG robes ( judgment no . CARDINAL/CARDINAL ) . The priest in question had been defrocked after joining ORG , a religious movement formed by NORP priests who wanted the ORG to maintain the PERSON calendar . In judgment no . CARDINAL/CARDINAL ORG considered that the offence in LAW was also committed by a person who purported to discharge the administrative functions of a priest . In judgments nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ORG applied LAW to cases of persons who had purported to exercise the religious functions of an NORP priest by conducting services , “ christening ” children , etc .

Article CARDINAL of LAW provides as follows :

“ A person who publicly wears the dress or the insignia of a ORG or municipal official or of a minister of a religion referred to in LAW without having the right to do so ... shall be liable to a term of imprisonment not exceeding DATE or a fine . ”

Ministers of ORG and other “ known religions ” enjoy a number of privileges under domestic law . Inter alia , the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service .


The applicant is a NORP national national , born in DATE and resident in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

A.

The applicant arrived in GPE on CARDINAL DATE with a visa at DATE . He married a NORP citizen on DATE . The applicant was refused a residence and work permit on DATE . He left GPE but returned again on DATE as he had been granted a residence and work permit in the Finnish Embassy of GPE on the basis of his marriage . The applicant was granted a further residence and work permit later on . The applicant and his first NORP wife divorced on DATE .

The applicant has committed several crimes during his stay in GPE . He has been sentenced to several suspended prison sentences and to community service . He has also been ordered to pay fines . According to the applicant he has not committed any crimes since DATE .

On DATE local police requested ORG ( ulkomaalaisvirasto , utlänningsverket ) to expel the applicant . ORG ordered on DATE that the applicant be expelled to GPE as he had no family ties in GPE and as he had repeatedly committed crimes for which the maximum penalty was DATE imprisonment . The applicant was also forbidden by the decision of ORG to enter GPE , GPE , GPE , GPE or GPE for DATE . The applicant appealed against the decision to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , stating that there were no legal reasons for his expulsion as the crimes he had committed were not serious enough to justify such an expulsion and as his then girlfriend , T. , was pregnant . The applicant also alleged that he would be convicted of desertion and sentenced to a lengthy prison sentence in GPE , if expelled .

In the meantime , on DATE , the applicant married PERSON , who is a NORP citizen , and who was pregnant by the applicant . The applicant ’s daughter was born on DATE .

On DATE ORG refused the applicant ’s appeal . ORG found , taking into account the applicant ’s numerous convictions , that the applicant ’s expulsion was justified and lawful . It was also noted by the court that the applicant had not submitted any evidence concerning the alleged inhuman treatment in GPE , if expelled . ORG further stated that LAW does not guarantee to the spouse of a citizen a general right to be granted a residence permit . Taking into account , however , that the applicant ’s family lives in GPE , ORG reduced the period of the prohibition to enter GPE or other NORP countries to DATE from the original CARDINAL years’ prohibition .

B. Relevant domestic law and practice

According to Section CARDINAL , subsection CARDINAL , of LAW ( ulkomaalaislaki , utlänningslag CARDINAL/CARDINAL ) , an alien can be expelled from GPE , inter alia , if he or she has committed an offence for which the minimum penalty is DATE imprisonment , or if he or she has repeatedly committed criminal offences .

According to LAW of LAW , the circumstances ( such as the length of the alien ’s stay in GPE , the existence of a parent - child relationship , family and other ties to GPE , or , in connection with LAW , subsection CARDINAL of the LAW , the nature of the offence or offences committed ) have to be taken into account as a whole when an expulsion is considered . No one may be expelled to an area where he or she might risk being subjected to inhuman treatment or persecution , nor to another area from which he or she might be sent to such an area .

According to Section CARDINAL of LAW , the expulsion is decided by ORG if so requested by police . ORG may in some exceptional circumstances decide an expulsion even if the measure is not requested by the police . The alien concerned must also be given an opportunity to be heard in the matter .

According to LAW of LAW , an alien may be prohibited from entering the country for a maximum of DATE or for an indefinite period . The prohibition may be cancelled permanently or for the time being , because of a change in circumstances or important personal reasons . Such a cancellation is decided by ORG .

According to LAW of LAW , decisions of ORG concerning , inter alia , expulsion orders , may be appealed within DATE before ORG .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in LOC .

The applicant is the owner of an apartment in LOC , which she had let to ORG and ORG

In a registered letter of CARDINAL DATE , the applicant informed the tenants that she intended to terminate the lease on expiry of the term on DATE and asked them to vacate the LOC by DATE .

In a writ served on the tenants on CARDINAL DATE , the applicant reiterated her intention to terminate the lease and summoned the tenants to appear before the Leghorn Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Leghorn Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenants requiring them to vacate the premises .

On DATE , the applicant made a statutory declaration that she urgently required the premises as accommodation for herself .

On DATE , she served notice on the tenants informing them that the order for possession would be enforced by a bailiff on DATE .

Between DATE and DATE , the bailiff made CARDINAL attempts to recover possession .

Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the tenants asked ORG to postpone the execution of the order for possession , pursuant to LAW no . CARDINAL of DATE .

On DATE , the applicant served a second notice on the tenants informing them that the order for possession would be enforced by a bailiff on DATE .

On DATE , pursuant to LAW no . CARDINAL of DATE , ORG postponed the execution of the order for possession until DATE .

On DATE and on DATE , the bailiff made CARDINAL attempts , which proved unsuccessful , as the applicant was not granted the assistance of the police in enforcing the order for possession .

In the meanwhile , on DATE , the applicant made a statutory declaration that she urgently needed the apartment for herself .

On DATE , the applicant recovered possession of the apartment .

NORP The relevant domestic law is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


CASE OF SCHARSACH AND NEWS VERLAGSGESELLSCHAFT v. AUSTRIA

Violation of Art. 10;Pecuniary damage - financial award (second applicant);Non-pecuniary damage - financial award (first applicant);Non-pecuniary damage - finding of violation sufficient (second applicant);Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The first applicant , an NORP national born in DATE and living in GPE , is a journalist by profession . The applicant company is the owner and publisher of the NORP DATE magazine News .

NORP In DATE the first applicant published a CARDINAL - page article under the heading “ PERSON instead of Black and Red ? ” ( PERSON FAC ? ) in the applicant company 's magazine News . In the NORP political context , “ PERSON ” means a person or group having some affinity with ORG ideology , “ LOC refers to ORG ( ORG ) and “ Red ” to ORG ( ORG ) . The article discussed the question whether it was possible and desirable to form a coalition government with ORG ( ORG ) under the leadership of PERSON .

The first applicant explained why , in his view , such a coalition government was not desirable . He gave CARDINAL reasons , each of which was dealt with under a separate subheading . Referring to statements by PERSON and other ORG members , he broached topics such as the ORG 's specific view of history , its NORP jingoism ( NORP ) , that is , its chauvinist and nostalgic affinity with GPE , its inclination towards racism , the opinion poll “ GPE first ” ( PERSON zuerst ) initiated by it , its political style and the possible negative reaction by foreign countries .

“ CARDINAL . Violent Scene [ Gewaltszene ]

Right - wing thugs [ Braune Schläger ] , fire - raisers and bomb - throwers have emerged from the ORG . Leading figures of brown terror , such as ORG , ORG , Honsik and ORG , started their career with ORG . Under PERSON the ' old closet NORP ' [ Kellernazi ] had left the party . Under PERSON they are returning and are even allowed to run for office . Names such as NORP , NORP . , NORP , PERSON . , PERSON , PERSON . , PERSON , Hat . , PERSON . , PERSON , ORG , GPE . and PERSON show that the dissociation [ GPE ] from the extreme right that is constantly being stressed by PERSON has in reality never taken place . ”

Mr PERSON was Chairman of the FPÖ in DATE , when the party supported more moderate positions . In DATE Mr PERSON became Chairman of the ORG . PERSON is a politician . At the material time , she was a member of ORG ) and the deputy chairperson of the GPE regional branch of the ORG ; at present , she is a member of ORG ( PERSON ) and the chairperson of the GPE regional branch of the ORG . Her husband is a well - known right - wing politician and the editor of the magazine fakten , which is considered to be extreme right - wing .

PERSON filed a private prosecution for defamation ( üble GPE ) against the first applicant and a compensation claim against the applicant company under LAW ( Mediengesetz ) in FAC ( PERSON ) .

On DATE the first applicant was convicted of defamation under LAW ) . The court sentenced him to DATE - fines ( PERSON ) of CARDINAL NORP schillings ( ORG ) each ( that is , a total of ORG CARDINAL,CARDINAL ) or DATE imprisonment in default , suspended for a DATE probationary period . The applicant company was ordered to pay ORG CARDINAL in compensation to ORG pursuant to section CARDINAL of LAW .

The court noted in its reasoning that the passage in issue was to be understood in the way it would be perceived by an average reader . The term “ closet NORP ” was used to describe a person who supported ORG ideas , not in public , but in private through clandestine activities . Belonging to such a circle of persons meant having a contemptible character and behaving in a manner contrary to honour or morality . According to the court , it could not be established that PERSON was a co - author of her husband 's magazine . Even assuming that she had contributed to certain passages of some of the articles published in it , as contended by the applicants , these were unproblematic in terms of the National Socialism Prohibition Act ( Verfassungsgesetz vom CARDINAL . DATE über das NORP der ORG , GPE DATE “ the LAW ” ) . As regards a statement by PERSON in which she had said that she did not find her husband 's activities immoral , the court found that Mr ORG had so far not been convicted of contravening LAW . On the other hand , PERSON had not said that she supported her husband 's activities or identified herself with them . Moreover , a wife could not be expected to criticise her husband in public . Although she had criticised the National Socialism Prohibition Act in public statements , the court found that the applicants had failed to provide evidence of any clandestine ORG activities undertaken by PERSON that would justify calling her a “ closet NORP ” .

The applicants appealed , arguing that the term “ closet NORP ” had been coined by PERSON when he was Chairman of the ORG . It was meant to describe those of his party colleagues who , officially , demonstrated support for democracy , but who , unofficially or secretly , did not dissociate themselves from neo - NORP ideas or from contacts with the neo - NORP scene . Therefore , their relation to the extreme right appeared to be unclear . The applicants complained that the court had in fact failed to conclude that PERSON had contributed to the editing of her husband 's xenophobic magazine . They argued that PERSON , as a politician , exposed herself to public scrutiny and advocated views of a political nature . As a politician , it was part of her functions to participate in political debate . Therefore , in the light of the right to freedom of expression and information of citizens and the electorate , it was legitimate to expect her to take a stand also in regard to her husband 's political activities . Taking sides with her husband might do her credit as a wife , but , as a politician , she had to bear criticism under such circumstances , as her failure to dissociate herself from the extreme right could be perceived as an approval of her husband 's political activities . Had the court correctly assessed the meaning of the incriminated passage , it would have concluded that the applicants had furnished proof of its factual basis .

On DATE ORG ( Oberlandesgericht ) dismissed the appeal and upheld the lower court 's judgment .

It considered that ORG had correctly found that the term “ closet NORP ” was to be assessed from the point of view of an average reader , who could not be expected to know the original meaning given to it by Mr GPE DATE previously . Therefore , the article had insinuated clandestine neo - NORP activities on the part of PERSON that were not proved . Consequently , it was irrelevant to take evidence relating to possible extreme right - wing activities of her husband , as proposed by the applicants . Moreover , the first - instance court had correctly found that neither PERSON public speeches when compared to certain passages of articles in her husband 's magazine , nor her statement that she did not find her husband 's activities immoral warranted the conclusion that she supported ORG ideas . Therefore , the evidence the applicants ' proposed to adduce to the effect that PERSON ORG knew the contents of her husband 's magazine and that she in fact contributed from time to time to its editing was not sufficient to furnish proof of her clandestine support for ORG ideas .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . Compensation up to MONEY ( ORG ) can be awarded . In this context , “ defamation ” is defined in LAW as follows :

“ CARDINAL . Anyone who accuses another , as it may be perceived by a third party , of having a contemptible character or attitude , or of behaviour contrary to honour or morality , and of such a nature as to make him contemptible or otherwise lower him in public esteem , shall be liable to a term of imprisonment not exceeding DATE or a fine not exceeding CARDINAL day - fines .

Anyone who commits this offence in a printed document , by broadcasting or otherwise , in such a way as to make the defamation accessible to a broad section of the public , shall be liable to a term of imprisonment not exceeding one year or a fine not exceeding CARDINAL day - fines .

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . ”


Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON NORP ORG , legal officer at ORG , GPE , GPE ( GPE ) .

ORG ( “ the Government ” ) were represented by PERSON , Attorney , Attorney - ORG ) , as their Agent , assisted by PERSON , Attorney .

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

The applicant applied for asylum in GPE on DATE . On DATE ORG rejected his asylum request but granted him a work- and residence permit on humanitarian grounds ( section CARDINAL of LAW of DATE No . CARDINAL , PERSON om utlendingers adgang til riket og deres opphold her – utlendingsloven , applicable at the material time ) .

By a judgment of DATE the ORG convicted the applicant on charges of aggravated assault committed against his former girlfriend . It found established beyond reasonable doubt that he had pushed her to the ground so that she had fallen and hit her head against the asphalt and , while she was lying on the ground , had kicked her twice on her left hand side and had then left the scene . The victim was hospitalised for DATE while suffering from nausea and vomiting , minor head aches , amnesia and pain in the rib on her left side . The applicant was in addition convicted on a count of speeding . ORG , finding that the applicant ’s kicking of the victim made the offence borderline to what would warrant a nonsuspended sentence and being in doubt therefore , decided to impose a suspended sentence of CARDINAL days’ imprisonment and a fine of MONEY ( ORG ) , corresponding to MONEY ( ORG ) .

In the light of his conviction on DATE , ORG warned the applicant on DATE that it contemplated expelling him .

On DATE the ORG decided to expel the applicant , finding that the conditions under section CARDINAL ( CARDINAL ) ( c ) and ( CARDINAL ) of LAW DATE had been fulfilled and that his expulsion would not be disproportionate for the purposes of section CARDINAL ( CARDINAL ) . Under LAW ( CARDINAL ) , the ORG further decided to prohibit the applicant from re - entry into GPE indefinitely .

In a separate decision of DATE , the ORG rejected an application by the applicant for renewal of his work- and residence permit . It held that the conditions for granting him such a permit had not been fulfilled as there existed circumstances that warranted refusing him entry into the country .

Represented by a new lawyer , the applicant appealed ( via the ORG ) to ORG . He argued that the expulsion was disproportionate as he had settled in GPE and that he was not a criminal in the normal sense of the word . The applicant pointed out that he had not been involved in any criminal offence either before or after those dealt with by ORG . Moreover , GPE was in a state of civil war and there was a high risk of escalation of the internal conflict , meaning that the situation was generally insecure .

In a letter to the ORG , dated DATE , the applicant claimed to be of NORP ethnic origin coming from GPE . He also maintained that his previous girlfriend had tried to blackmail him and added that he had a new girlfriend .

By a letter of CARDINAL DATE the applicant ’s new girlfriend , ORG who was NORP , requested ORG to reconsider its previous rejection . On DATE , he informed the ORG that on DATE he had married GPE

NORP On reviewing the above - mentioned arguments , the Directorate did not consider that the appeal contained any new information of significance and maintained its previous decisions . The ORG noted that the applicant had married on DATE , but did not attach great importance to this event since the marriage had occurred after the ORG ’s decision of expulsion . It was also pointed out that the applicant was suspected of CARDINAL further incidents of assault , occurred on DATE and CARDINAL DATE , respectively . The ORG consented , however , to postpone the enforcement of his expulsion pending a decision on his appeal , which the ORG referred to ORG on DATE .

On DATE ORG rejected the applicant ’s appeal against the ORG ’s refusal of the applicant ’s request for renewal of his work- and residence permit . ORG upheld in part his appeal against the ORG ’s decision to expel him indefinitely by limiting the prohibition on re - entry to DATE . It decided that an application for re - entry could be made at the earliest after a period of DATE from his leaving the country .

The ORG reiterated that , according to LAW ( CARDINAL ) ( c ) of LAW DATE , a foreign national might be expelled if he or she had been sentenced in GPE for an offence that was punishable by imprisonment for a term exceeding DATE . Moreover , pursuant to section CARDINAL ( CARDINAL ) , if the person concerned held a work- or residence permit , he or she could only be expelled if the offence was punishable by imprisonment for a term exceeding one year or in the event of violation of inter alia LAW ( assault ) of LAW . ORG , referring to the applicant ’s conviction and sentence ( for aggravated assault under LAW ( CARDINAL ) and ( CARDINAL ) ) by ORG of DATE , considered that this condition had been fulfilled in his case .

As to the condition in section CARDINAL ( CARDINAL ) that the expulsion should not be a disproportionately severe measure vis - à - vis the foreign national himself or his closest family members , ORG first had regard to the seriousness of the offence . ORG had imposed a suspended term of CARDINAL days’ imprisonment in respect of offences that included assault against his previous girlfriend , resulting in injury to her body and health . This was a relatively serious offence which carried a maximum penalty of CARDINAL PERSON imprisonment . In meting out the sentence , the trial court had held that the fact that applicant had kicked the victim ’s body after she had fallen to the ground was an important aggravating factor and had found no mitigating circumstances .

The ORG further considered it significant that , on DATE , the applicant had accepted a summary fine ( forelegg ) for an offence of theft ( Article CARDINAL ( CARDINAL ) of LAW ) . It in addition noted that on DATE ORG had sentenced him to PERCENT days’ suspended imprisonment in respect of CARDINAL instances of aggravated violent assault ( Article CARDINAL ) and for dealing with stolen goods ( Article CARDINAL ( CARDINAL ) ) , but without attaching decisive importance thereto , it being unclear whether the judgment had gained legal force .

In light of the gravity of the applicant ’s offences , ORG found that his personal attachment to GPE carried little weight , as did the fact that he had married a NORP national after the ORG had decided to expel him . At that time they could hardly have entertained any legitimate expectation about being able to live together in GPE . The applicant ’s links to the country through his wife had mainly been established after he had committed the offences for which he had been convicted . However , having regard to it being a suspended sentence , to his overall links to GPE and to the ORG ’s practice in this area , the latter limited the prohibition on re - entry to DATE . In the ORG ’s opinion , the consequent interference with the applicant ’s enjoyment of private and family life would be justified for the purposes of LAW .

The ORG next considered whether the applicant ’s expulsion would be prevented by a real risk of persecution , loss of life or ill - treatment ( section CARDINAL of LAW and LAW ) .

In this connection , the ORG based its assessment on it having been established that the applicant was of NORP ethic origin and came from GPE , as he had consistently submitted in his request for a residence permit in GPE . His claim on some occasions in DATE and thereafter that he was of NORP origin had weakened his credibility .

In so far as the applicant ’s individual situation was concerned , ORG noted that the reasons underlying his asylum request had related to the NORP regime and that this regime no longer existed . Nor were there any other circumstances pertaining to the applicant or the conditions in his home country suggesting that he was in need of protection .

As to the general security situation in GPE , the ORG stated that it was characterised by violence and disturbance and had been unstable and difficult . GPE had been located in the border region near the NORP autonomous areas in GPE . The NORP population had been in a majority whereas PERSON , NORP and NORP had constituted the largest minority groups . GPE had mainly been under NORP political and military control , though the minorities had also been represented in governing bodies .

At times during DATE the level of violence had been high , notably because of the presence of several different militant groups . In GPE the violence had in particular taken the form of shootings , road bombs , suicide bombs and car bombs . The targets of the actions had first and foremost been the security forces and the police , but also local political leaders and their family members as well as members of the civilian population had been affected by actions .

The Board nonetheless considered that the current situation had not been such as to regard all citizens in the area as being in imminent danger of loss of life or ill - treatment . The most recent reports on the area , amongst other from ORG , ORG , ORG ) and the ORG High Commissioner for Refugees ( ORG ) , had showed that the security situation in the area was improving . In comparison with other areas of LOC and Southern GPE , the current violence had been more limited and had to a greater extent been aimed at specific target groups , than was the case in LOC . According to the ORG ’s practice , the general security situation in GPE had not on its own constituted a ground for protecting persons of NORP ethnic origin .

NORP The applicant requested ORG to reconsider its above - mentioned refusal of DATE . He argued that his return would be prevented by the security situation in GPE generally and that in GPE specifically . He further submitted that his wife suffered from depression . According to a medical statement from the psychiatric clinic of ORG , in view of her husband ’s impending expulsion , her psychological problems had increased with serious suicidal thoughts and impulses . He was important to her and represented a stabilising factor in her life and her mental health . Also , he assumed a significant role as a care person for his stepson who was showing signs of behavioural difficulties .

On DATE the ORG refused the applicant ’s request , finding no hardship exceeding what was normal in a situation of expulsion . Also , the applicant ’s relationship to his spouse and stepchildren had been established essentially after he had committed the offences for which he had been convicted . ORG reiterated that the prohibition on re - entry had been limited to DATE .

As regards the question whether the general situation in GPE was such as to prevent the applicant ’s return , the ORG restated the findings made in its decision of DATE summarised above . It noted that in its recommendations of DATE and Eligibility Guidelines of DATE , and the Addendum thereto of DATE , as well as ORG of DATE , the ORG had advised against any forcible return to the CARDINAL governorates of LOC ( GPE , GPE , PERSON , PERSON , NORP ) and considered that persons coming from these areas should be recognised as refugees . The ORG had assumed in its recommendations that persons who were not recognised as refugees should nevertheless be granted protection . The ORG had amongst other referred to the general situation of violence , the great number of internally displaced people , the authorities’ inability and unwillingness to provide protection , the high unemployment , limited access to fuel , electricity and water and great shortcomings in public health services , education etc .

The ORG reiterated that ORG recommendations were relevant and had to be given weight , both as information about the general situation in GPE and as part of the interpretation of whom had a right to protection under LAW . However , the ORG recommendations could not be decisive of their own . ORG had to have regard to other information and reach a correct decision in accordance with LAW and other relevant rules . ORG also took account of the fact that the ORG recommendations had regard to humanitarian and socioeconomic considerations , not only to the security situation and the danger of being affected by violence .

Although the security situation in GPE was difficult and unstable , ORG did not consider that the current situation was of such a nature that all the inhabitants of the region could be said to face a real risk of losing their lives or of being made to suffer inhuman treatment . Nor were there factors related to the applicant ’s NORP origin that indicated that he would face a real risk of losing his life or being made to suffer inhuman treatment if he were to return to GPE .

In this connection , the ORG reiterated that , throughout his application to stay in GPE , the applicant had maintained that he was of NORP ethnic origin and that so was his father . The fact that the applicant in DATE onwards had claimed to be of NORP origin detracted from his general credibility .

In its decision ORG also provided information about a voluntary repatriation program that had operated since DATE , covering the Dahuk , GPE and GPE in LOC and opening also for the possibility to apply for repatriation to other areas . It was sponsored by ORG and implemented by ORG . Under this program a returnee would be eligible to receive ORG MONEY ( approximately EUR CARDINAL ) in cash and be offered an additional NOK CARDINAL,CARDINAL ( approximately EUR CARDINAL ) in resettlement support .

The applicant sought to bring his case to the attention of a number of instances , including to the King , the Prime Minister and various ministries , but to no avail .

Under LAW of CARDINAL DATE No . CARDINAL ( tvisteloven ) , a decision by ORG could form the subject of an appeal to the competent city court or district court ( tingrett ) ( ORG CARDINAL , DATE , DATE ) , from there to ORG ( lagmannsrett ) ( ORG CARDINAL - CARDINAL and CARDINAL ) and ultimately to ORG ( Article CARDINAL - CARDINAL ) . The domestic courts had full jurisdiction to review the lawfulness of the ORG ’s decision and were empowered to quash the decision should they find that it was unlawful . Pursuant to section CARDINAL of LAW DATE , the provisions of the LAW were to be applied in accordance with GPE ’s international legal obligations intended to strengthen the legal position of a foreign national . In the event of conflict between the national legal provision and GPE ’s obligations under the Convention , the latter was to take precedence ( sections QUANTITY and CARDINAL of LAW of DATE No . CARDINAL ) .

Under Chapters CARDINAL and CARDINAL of the Code of Civil Procedure , a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order .

Further conditions regarding judicial review of ORG decision were set out inter alia in the following provisions and guidelines .

At the material time , the fee for filing a lawsuit before ORG or ORG ( tingrett ) was ORG CARDINAL,CARDINAL , corresponding to approximately FAC , if the hearing lasted for DATE and ORG CARDINAL,CARDINAL ( EUR CARDINAL ) if the hearing lasted for DATE .

Pursuant to section CARDINAL of LAW of DATE No . CARDINAL ( rettsgebyrloven ) , fees should be paid in advance . In the event that a sufficient amount had not been paid when a request for a judicial order had been made , the court was to fix a brief time - limit for payment . In the event that payment is not effected within the time - limit fixed , the court shall dismiss the case , unless the provisions in section CARDINAL apply . The latter provided :

“ If a party has applied for free legal aid or for exemption from the payment of court fees under LAW of DATE No . CARDINAL [ rettshjelploven ] , a respite should be granted until the application has been decided . In this event no security can be required for the payment of the fee .

If a party who has requested a procedural step [ rettergangsskritt ] has obtained respite in accordance with the foregoing , the court shall grant the measure . In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken . If the measure requires payments , an advance payment may be made by the public authorities .

If a measure has been taken with a respite , the court shall fix a time - limit for payment . Until payment has been made or the time - limit has expired , the court shall only take such measures as it deems necessary . If payment is not made within the time - limit , the court gives a ruling in absentia according to ORG DATE and CARDINAL of LAW . ”

An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter ( section CARDINAL of ORG ) . A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section CARDINAL ( CARDINAL ) or ( CARDINAL ) had been fulfilled ( see below ) .

According to LAW be represented by counsel ( LAW ) , but was not obliged to be so represented , save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel ( LAW ) .

Section CARDINAL ( CARDINAL ) to ( CARDINAL ) of ORG DATE included the following provisions of relevance to the present case :

“ ( CARDINAL ) GPE legal representation shall be granted without means testing in ... the following instances :

NORP to a foreign national in such instances as mentioned in section CARDINAL ( CARDINAL ) , second sentence , and ( CARDINAL ) of LAW [ DATE ] ....

( CARDINAL ) In such cases as mentioned in CARDINAL ) nos . CARDINAL - CARDINAL [ not applicable in the instant case ] , an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by ORG .

( CARDINAL ) NORP In other cases , free legal representation may be granted exceptionally , provided that the financial conditions pursuant to the second sub - section are fulfilled and that the case affects the claimant especially from an objective point of view . In the assessment , weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub - sections .

( CARDINAL ) In such cases as mentioned in the second and third sub - sections , free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub - section , provided that the expenses for legal assistance will be substantial compared to the claimant ’s financial situation .

( CARDINAL ) GPE legal representation shall not be granted pursuant to the second through fourth sub - sections where it would be unreasonable that such assistance be paid out of public funds . ”

In Circular G-CARDINAL/CARDINAL ORG and ORG stated at paragraph CARDINAL :

“ In immigration cases not covered by LAW ( CARDINAL ) nr CARDINAL , the practice should be very restrictive . The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case . Legal aid to take the case before court should only be granted in exceptional cases , i.e. if there are very specific reasons , for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts . ”

Section CARDINAL ( CARDINAL ) of ORG Act DATE ( domstolloven ) provided :

“ In the event that a person , who does not know NORP , is to take part in the proceedings , an interpreter appointed and approved by the court shall be used . Recordings are to be made in NORP . If required by the importance of the case , the court may decide that recording shall take place in a foreign language , either in the court records or in separate annexes , to be submitted for approval . ”

The Government referred in particular to the following provisions of LAW :

“ ( CARDINAL ) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift , cost effective and sound manner . ”

“ ( CARDINAL ) NORP ....

( CARDINAL ) The parties have the primary responsibility for presenting evidence . The court can take care of the presentation of evidence if the parties do not object . The court is not bound by the parties’ arguments with regard to questions of evidence . ”

“ The court shall on its own motion apply current law within the scope of CARDINAL ( CARDINAL ) . In accordance with LAW CARDINAL - CARDINAL , the court shall ensure that there is a satisfactory basis upon which to apply the law . If the application of law can not otherwise be clarified in a fully satisfactory manner , the court may decide that evidence of the law shall be presented , or it may allow the parties to present such evidence . The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out . Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties . ”

“ ( CARDINAL ) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case . The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified . ...

( CARDINAL ) The court shall , in accordance with subsections ( CARDINAL ) to ( CARDINAL ) , give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules .

( CARDINAL ) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified .

( CARDINAL ) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case .

( CARDINAL ) The court may encourage a party to offer evidence .

( CARDINAL ) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel .

( CARDINAL ) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality . The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take . ”

“ ( CARDINAL ) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner .

( CARDINAL ) ....

( CARDINAL ) In each case , a preparatory judge shall be responsible for the conduct of the proceedings .