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

The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE .

The applicant is a master builder and is a member of ORG ( “ the MBA ” ) . Under LAW ( Law no . DATE “ the DATE LAW ) , he was under an obligation to pay a levy known as the “ industry charge ” to ORG ( “ the ORG ” ) , an organisation of which the applicant was not a member and to which the MBA was not affiliated . LAW provided that a charge of PERCENT should be levied on all industrial activities in GPE as defined in the LAW . The definition included all activities coming under activity code numbers enumerated in an appendix to the LAW . Private - sector enterprises not covered by the code numbers were not subject to the industry charge . This was the case , for example , for enterprises in the meat - processing , milk - processing and fish - processing industries . Other enterprises in the food and drink industry were covered . Enterprises entirely under public ownership or established by special statute were not covered ( section CARDINAL ) . Revenues from the industry charge were to be transferred to the ORG , and were to be used for the promotion and development of industry in GPE ( section CARDINAL ) . ORG was to receive PERCENT of the charge collected in order to cover the costs of its collection ( section CARDINAL ) .

CARDINAL persons ( legal persons and self - employed individuals ) paid the industry charge . The ORG had CARDINAL members ( enterprises and self - employed individuals ) .

The Government supplied copies of the ORG ’s reports to ORG regarding the disbursement of the industry charge for DATE , DATE and DATE .

The ORG ’s report for DATE ( dated DATE ) stated :

“ The GPE ’s accounts have not indicated whether particular operational items are paid for with funds from membership fees , capital income or the industry charge , because an overwhelming proportion of its work benefits industrial companies whether they are members of the ORG or not . ORG has not expressed any reservation regarding this arrangement , and legislation concerning the industry charge imposes no other requirements .

The Federation and ORG are , however , in agreement about the requirement for a more detailed account of how the industry charge is disbursed , and that has been done in this report . ”

Under the title “ Disbursement of the industry charge in DATE according to the ORG ’s accounts ” , the report included a table showing the “ Income and expenditure according to ORG audited accounts for DATE ” . In a separate column the table indicated the percentage of funds originating from the industry charge in relation to each item and sub - item . This included the following items : “ Operating profits ” and “ Operating expenses ” . It also detailed “ Further itemisation of disbursement of the industry charge according to the accounts ” , namely : ( CARDINAL ) “ Wages and related expenses ” ; ( CARDINAL ) “ Meetings and conferences ” ; ( CARDINAL ) “ Promotional activities ” ; ( CARDINAL ) “ Publications ” ; ( CARDINAL ) “ Branches and special projects ” ; and ( CARDINAL ) “ General and administrative expenses ” .

For each of these sub - items the report contained explanatory notes , providing information on the treatment of members as compared with non - members . For example , under sub - item ( CARDINAL ) it was stated that CARDINAL of the CARDINAL DATE concerned work that benefited members only . With reference to sub - item ( CARDINAL ) it was stated that ORG exhibitions were open to everyone and that ORG members enjoyed a discount on participation fees . Under sub - item ( CARDINAL ) it was stated that non - members could access the quality management project but would be charged a higher fee than members .

From the table it appears that in DATE the ORG ’s operating revenues totalled CARDINAL NORP krónur ( ORG ) , of which ORG CARDINAL had originated from the industry charge transferred to the ORG by ORG ; ORG CARDINAL from membership fees ; and ORG CARDINAL,CARDINAL,CARDINAL from other income . DATE , the operating expenses had totalled ORG CARDINAL , of which ISK CARDINAL ( PERCENT ) had been spent on public projects ( comprising ORG CARDINAL derived from the industry charge and ISK CARDINAL from membership fees and other income ) .

The Government explained that in fulfilling its role and objectives of promoting NORP industry pursuant to section CARDINAL of LAW , the ORG notably worked to develop and protect the image of the industry , allocated large amounts of the funds obtained though the industry charge to training , gave opinions on behalf of the business community on draft legislation and regulations in the sphere of environmental affairs , and instilled in public authorities the need to observe restraint in public procurement and to observe clear and transparent tender rules .

At the material time , the applicant paid the following amounts in industry charge for DATE indicated : for DATE ORG CARDINAL ( CARDINAL ( ORG ) ) ; for DATE ORG CARDINAL ( EUR CARDINAL ) ; for DATE ORG CARDINAL ( EUR CARDINAL ) ; and for DATE ISK CARDINAL ( EUR CARDINAL ) .

On DATE the applicant lodged proceedings against the ORG with ORG , requesting an order to exempt him from the charges imposed on him in respect of DATE .

By a judgment of DATE , ORG found in favour of the ORG and dismissed the applicant ’s action .

The applicant appealed to ORG , arguing , inter alia , that section CARDINAL of the DATE Act meant that all individuals and companies engaged in particular business activities had to pay membership fees to the ORG , irrespective of whether they were members or not . The applicant considered that LAW , which provided for the membership charge , clearly reflected its nature in that , as was provided therein , ORG members paying an industry charge which was transferred to the ORG should have that part deducted from their membership fees . Thus , by the levy and collection of the charge , membership of the ORG was in fact made compulsory for others , although they enjoyed no rights vis - à - vis the ORG . Consequently , the industry charge was merely a membership fee to the ORG . The applicant submitted that he was a member of the MBA , to which he paid his fees and through which he considered his interests to be best served , and he had no wish to be a member of the ORG . The latter pursued policies with which he disagreed and which were contrary to his own interests . The compulsory membership of the ORG was incompatible with his right to freedom of association as protected by LAW . The applicant also argued that by virtue of LAW , he was unjustifiably taxed in excess of other taxes and that , under the LAW , a limited group was being taxed “ for the benefit of another limited group or the restricted interests of others ” . Finally , he submitted that the imposition of the charge amounted to discrimination in breach of LAW , as the taxation was dependent upon the ownership structure of an enterprise , and the enumeration of activity code numbers , on which the taxation was based , was haphazard in nature .

The ORG disputed the applicant ’s submission that the industry charge constituted a membership fee to the ORG . They argued that by law it was a tax levied by the ORG on particular groups of individuals and legal persons , in accordance with general and applicable standards , without anything being required in return . By the same LAW , the decision had been taken to have the charge transferred to the ORG , which was to use it for the promotion and development of NORP industry . Such an allocation of tax revenues to an association provided for by law did not mean that those who paid the relevant tax were thereby obliged by law to become members of it . The charge was not expected to be used for the benefit of the members alone , but for the benefit of all industries and industrial development in GPE , under the supervision of ORG . Any discounts on membership fees were decided unilaterally by the ORG , without any connection to the assessment and collection of the charge . The ORG also denied that the DATE Act involved discrimination between persons who were in the appellant ’s situation and those who enjoyed an exemption from the charge . It was a reasonable and objective arrangement to exempt public enterprises from the charge , and it was in the nature of things that the considerations that applied to companies under public ownership were different from those relating to private enterprises . The ORG also argued that public support for industry and industrial development sometimes took the form of launching industrial activities that others were not capable of initiating . Finally , the number of publicly owned industrial enterprises had been greatly reduced in DATE . The ORG also disputed the allegation that the enumeration of activity code numbers governing the taxation had been haphazard .

By a judgment of DATE , ORG , by CARDINAL votes to one , rejected the applicant ’s appeal and upheld ORG judgment . It held as follows :

“ As mentioned in ORG judgment , ORG rendered a judgment on DATE in case no . CARDINAL , PERSON v. GPE , published at page CARDINAL of the ORG ’s Reports for DATE . The appellant in that case requested an exemption from his liability to pay the industry loan fund charge and the industry charge for DATE . He based his case on arguments that are to a significant degree identical to those invoked by the appellant in the present case . ORG accepts the view of the respondent in that the above - mentioned case must be regarded as the precedent in the case now to be determined , to the extent that the issues raised by the appellant in support of his present claim were determined in that case .

In the earlier case the appellant , as here , maintained that as a result of his liability to pay the industry charge , which is to be transferred to ORG , he was obliged to be a member of ORG . ORG mentioned in its judgment that although the charge was transferred to the Federation , it was to be used for a certain purpose ( see section CARDINAL of the DATE Act ) , and did not constitute a grant to ORG . The use of the revenues was subject to the supervision of ORG . The ORG accepted that this arrangement did not involve obligatory membership of ORG in breach of the LAW and LAW [ on Human Rights ] . It also noted that even if ORG had exceeded the boundaries laid down in the [ DATE ] Act , this could not have the effect of exempting the appellant from paying the charge . With this in mind , and in other respects by reference to the grounds stated in the contested judgment , the ORG must reject the conclusion that the appellant ’s arguments in this regard may lead to a granting of his request . Bearing in mind that ORG is under a legal duty to use the revenues from the industry charge for promoting NORP industries and industrial development , and consequently for the benefit of the activities being taxed , the ORG can not accept that the legislature thus exceeded its powers .

The appellant submits that equality was not respected , since enterprises under public ownership may be exempted from the charge . As regards this argument , it must be noted that various factors distinguish enterprises under public ownership from privately owned enterprises , and in various fields their taxation is governed by different considerations , as seen in NORP tax legislation in general . In his written submissions , the appellant did not present a comparison of his situation vis - à - vis any particular public enterprises . It has not been established that any discrimination has taken place between the appellant and the parties to whom the exemptions of the [ DATE ] Act apply . Finally , the appellant bases his request on the assertion that the activity code enumeration , by reference to which taxation under section CARDINAL(CARDINAL ) of the DATE Act takes place , is haphazard in nature . The charge is levied on industry , subsequently defined as any activity coming under the activity code numbers enumerated in the classification of NORP business activities in an appendix to LAW , as amended by LAW no . CARDINAL/CARDINAL . Industry , thus defined , does not only cover manufacturing industry , but also processing and services , including the construction industry . This defines the activities to be included under the term ‘ industry’ within the meaning of the [ CARDINAL ] Act , distinguishing them from other fields of economic activity , including activities that have developed within the fields of agriculture and fishing . Such classification of economic activity has furthermore been recognised as a basis for other forms of taxation other than the industry charge . The appellant ’s claim can not be granted on the basis of the arguments presented . ”

The dissenting member of ORG , Mr Justice PERSON , gave a separate opinion containing , inter alia , the following reasons :

“ I

The original LAW was Law no . CARDINAL . It was stated in the explanatory notes to the draft law that it had been submitted in accordance with a recommendation of the ORG , ORG , and ORG . These provided a detailed report , which apparently was adopted verbatim in the explanatory notes . It included the observation that ‘ ... it may be noted that industrial enterprises and self - employed persons in industry collect various taxes for public authorities , both from their employees and from the consumers . The tax collection they carry out and are responsible for amounts to CARDINAL DATE , entirely without remuneration . It therefore seems reasonable that the ORG should undertake to collect , by way of compensation for these parties , a charge which amounts to only a small fraction of what they collect for the ORG . This source of revenue should create a financial basis for more active participation by professional federations within NORP industry in shaping future industrial development’ . The LAW also contained a provision similar to that of the LAW now in effect , that ORG should be sent an DATE report on the use of the revenues derived from the charge . In this context , it was mentioned in the explanatory notes that this was a ‘ provision intended to ensure that public authorities will be given a reasonable account of how the industry charge is PERSON .

Law no . CARDINAL was superseded by the present PERSON no . CARDINAL/CARDINAL . It was stated in the explanatory notes to the [ DATE ] Act that those liable for the charge would be the same as before , but a system of reference to activity code numbers in accordance with the business activity classification of ORG was adopted in order to ‘ remove any doubt as to who are liable for this ORG . It was furthermore provided that the revenues derived from the charge should be transferred to the ORG in their entirety , whereas under LAW they had been distributed between ORG , ORG , ORG and ORG . At the same time the tax base was changed , since the municipal business tax , on which the level of tax had previously been determined , had been abolished .

II

According to the Articles of its Statute , the ORG is a federation of enterprises , self - employed persons , trades and master builders’ associations , who jointly wish to pursue common goals as enumerated in LAW . This LAW states the purpose and role of the Federation in QUANTITY points , as involving the promotion of NORP industries in various ways and supporting the members by all the means which are detailed therein . According to the documents submitted , the association involves itself with political issues , for example as regards membership of ORG and taxation in various fields . Pursuant to Article CARDINAL , each member of the Federation enjoys voting rights at its meetings in proportion to his paid membership fees . It is provided in Article CARDINAL that the membership fees are a maximum of PERCENT of DATE turnover , but the board of ORG may decide to collect lower membership fees . The provision goes on to state that ‘ [ p]arties paying an industry charge that is transferred to the Federation shall have that part recognised , and deducted when their membership fees to ORG are calculated . If the industry charge is no longer levied , this deduction shall automatically be abolished . The voting right of each member shall be calculated on the basis of his paid membership fee . Management and decision - making within the Federation is , as generally within associations , the responsibility of its board and the managing director’ .

Documents submitted from the ORG relating to the period to which the [ applicant ’s ] requests pertain do not contain a clear breakdown of how the industry charge is used . It also appears from a comment in the GPE ’s reports on the use of the charge for DATE and DATE that the ORG does ‘ not keep separate accounts of whether the individual elements of the GPE ’s operations are financed by monies derived from membership fees , capital income , or the industry ORG . A similar declaration on this point is found in the report to the Minister in respect of DATE , but a report for DATE is not in the case file . The Federation ’s reports to the Minister are also in other respects similar from DATE . In fact the case file seems to permit the inference that part of the charge is used for the general management of ORG . It can not be seen from the submissions in this case that ORG has made any observations concerning the use of the charge , and in a letter to ORG of DATE , following complaints relating to the use of the charge , he expresses the following opinion : ‘ As can be clearly seen from LAW , the ORG has the unrestricted power to decide how the charge is allocated , and ORG can not interfere with this as long as it remains within the framework of the law.’ It can be seen from the submitted reports of the ORG for the periods to which this case relates that the arrangement has been used for granting those members of ORG who pay the industry charge a discount on their membership fees equal to the amount of the charge . As an example , the following comment in the GPE ’s report to ORG for DATE may be quoted : ‘ It may be pointed out that members who pay the industry charge have it deducted in full from their membership fees to ORG . It would not be considered proper that companies within the Federation that are liable to the industry charge should pay more to the Federation ’s activities than companies that are members , but not liable to the charge . In this way all the member companies of the Federation make equal payments to the Federation , irrespective of whether they are liable to the industry charge or not . On the other hand other companies , remaining outside , only pay the industry charge and thus make a contribution to the general protection of the interests of NORP industries.’

III

Provisions on freedom of association are found in LAW ... They contain more detailed rules on freedom of association than those directly expressed in LAW Article CARDINAL § CARDINAL of the LAW provides : ‘ No one may be obliged to be a member of any association . Membership of an association may , however , be made obligatory by law if this is necessary in order to enable an association to discharge its functions in the public interest or on account of the rights of others.’

As noted above , the purpose of the industry charge is , according to LAW , the promotion of NORP industry , but it is also expressly provided that only the part of the charge corresponding to the cost of its collection is to be transferred to ORG . The remainder is transferred to the ORG , to be used as the GPE decides . It also seems that an unspecified proportion of the charge is used for the general activities of the ORG as its board may decide . It can furthermore not be seen from the provisions of LAW that the Minister of Industry is adequately empowered to ensure that the charge is used in the manner provided for in the LAW ; in this regard , the Minister simply receives the reports of the ORG . For these reasons the provisions of the DATE Act can not be regarded as ensuring that the charge will be used for the activities the LAW requires .

The payment of membership fees to an association is generally a chief obligation of the members of an association that requires such payments . The applicant is a member of ORG . Neither he nor his association is a member of the ORG . The applicant does not agree with the GPE ’s objectives in various fields , considering , as mentioned in the contested judgment , that the GPE acts contrary to his interests , and indeed also contrary to those of many others within industry who also pay the industry charge without being members of ORG . Nevertheless , by virtue of LAW , the [ applicant ] is bound by a duty to pay the charge , which , as described , is transferred to a free association with the purpose of protecting the interests of those active in NORP industries and those of its members , as these interests are assessed at any particular time by a decision of the managing director and the board , without any significant involvement of public authorities .

When considering the above and the history of LAW , and in view of the use of the charge , without objection , for the general activities of the Federation , the arrangement provided for in the LAW must be seen as involving , in fact , a duty on the part of the appellant to take a significant part in the Federation ’s activities without his agreement . The above provisions of LAW , concerning people ’s rights to remain outside associations , must be interpreted as prohibiting an arrangement such as provided for by LAW , unless that arrangement fulfils the requirements laid down in the second paragraph of the LAW . The ORG is not an association engaged in activities of the kind referred to therein . For this reason in itself , the appellant ’s request for an exemption from his liability to pay the industry charge for DATE should be granted , and the respondent should be ordered to pay the appellant the costs of the case in ORG as well as before ORG . ”

Article QUANTITY of LAW provide :

“ Associations may be formed without prior permission for any lawful purpose , including political associations and trade unions . An association may not be dissolved by administrative decision . The activities of an association found to be in furtherance of unlawful objectives may , however , be enjoined , in which case legal action shall be brought without undue delay for a judgment dissolving the association .

No one may be obliged to be a member of any association . Membership of an association may , however , be made obligatory by law if this is necessary in order to enable an association to discharge its functions in the public interest or on account of the rights of others . ”

NORP The relevant provisions of LAW ( Law no . CARDINAL/CARDINAL ) read :

“ A charge of PERCENT , the industry charge , shall be levied on all NORP industries as defined in section CARDINAL . The charge shall be based on the turnover as provided for in LAW of ORG , plus any revenue exempted from value - added tax pursuant to section CARDINAL of that Act .

The assessment and collection of the industry charge shall be governed by the provisions of Chapters VII - XIV of the Income and LAW , as applicable .

The State ORG shall receive PERCENT of the industry charge collected in accordance with the first paragraph to cover the cost of its collection .

The amounts paid under the industry charge are deductible from the revenue of DATE on which the level of tax is based . ”

“ Any activity coming under the activity code numbers enumerated in the appendix to this Act shall be included in the term ‘ industry’ .

Enterprises entirely under public ownership , and enterprises formed under particular acts of law to be under public ownership to a significant extent , shall be exempt from the charge , unless a provision to the contrary is made in the LAW in question . ”

“ Revenues derived from the industry charge shall be transferred to ORG . The revenues shall be used to promote industry and industrial development in GPE . The Federation shall provide an DATE report to ORG on the use of the revenues . ”

“ ORG may demand accounts from institutions , associations , funds and other parties that receive funding or guarantees from the ORG , and they shall be obliged to provide ORG with the materials requested . Furthermore , ORG shall be permitted access to , and shall have the right to examine , the original materials or reports that are created as well as invoices issued to the ORG or ORG bodies for work or services that are to be paid for , entirely or to a substantial extent , by ORG in accordance with the law or contracts or labour agreements on the basis of tariffs that have been agreed with individuals or legal entities , in order to verify the contents of invoices and the payment obligation borne by ORG . ...

In the event of a dispute regarding the right of ORG to carry out audit work in accordance with this section , ORG may seek a ruling by ORG . ”

ORG has addressed the issue of trade - union fees and contributions from the angle of Article CARDINAL of LAW on several occasions , notably those referred to below :

“ DATE . The ORG observes firstly that the fees deducted from the wages of workers pursuant to a collective agreement concluded between ORG and ORG are , according to the collective agreement , for the service of wage monitoring . ORG considers that the system of wage monitoring may , depending upon national traditions , be assumed either by public authorities , or , on the explicit or implicit authorisation of the legislator , by professional associations or trade unions . In the latter case this could legitimately require the payment of a fee .

Consequently , the ORG considers that the payment of a fee to the trade union for financing its activity of wage monitoring can not be regarded in itself as unjustified . It also considers that it can not be regarded as an interference with the freedom of a worker to join a trade union as the payment of the fee does not automatically lead to membership of the ORG and in addition is not required from workers members [ who are members ] of trade unions other than ORG .

However , the ORG considers that doubts exist as to the real use of the fees and that , in the present case , if they were to finance activities other than wage monitoring , these fees would , on the grounds indicated in paragraph CARDINAL , be deducted , at least for a part , in violation of LAW .

In the present case , the ORG is not in a position to verify the use of the fees and in particular to verify to what extent the fees are proportional to the cost of the service carried out and to the benefits wage monitoring confers on the workers . These are decisive factors in determining a violation of LAW with reference to paragraphs DATE and DATE or CARDINAL . ORG considers therefore that it is for the national courts to decide the matter in the light of the principles the ORG has laid down on this subject or , as the case may be , for the legislator to enable the courts to draw the consequences as regards the conformity with the [ NORP Social ] Charter and the legality of the provisions at issue .

The ORG reserves the right to supervise the situation in practice through the reporting procedure and , as the case may be , the collective complaints procedure .

“ ... According to the report , it is common for trade unions to impose the payment of a fee and ‘ the filling [ out ] of an application form or of an engagement’ on non - members within the enterprise in consideration for negotiating a collective agreement . Supplementary information received from the government at the ORG ’s request indicates that the basis for this practice is the single national collective agreement DATE , according to which the amount of the deduction should be PERCENT of salary and no more than the amount of union dues . ORG observes that by virtue of section CARDINAL of [ Law ] no . CARDINAL on collective labour agreements , collective agreements apply to all workers in the enterprise , irrespective of their length of service or trade - union membership . In these circumstances , the imposition of a fee on workers who are not members of a trade union constitutes a union security practice that is contrary to the right to organise .

The ORG asks that the next report indicate clearly whether , in addition to paying a fee to the union , non - members are also required , as the report would seem to suggest , to apply for membership . ... ”

“ ... ORG previously concluded that the situation in GPE was not in conformity with LAW obligation on non - unionised workers to pay a fee to the trade union that had negotiated the applicable collective agreement , even though such agreements applied by law to all workers independently of whether or not they were members of a trade union ( the situation is described in DATE , p. CARDINAL ) .

The ORG has re - examined the situation in the light of the explanations in the report and of the principles it has laid down in Complaint No . CARDINAL/CARDINAL ( ORG v. GPE , decision on the merits of CARDINAL DATE , § § DATE ) . It notes firstly that the contribution helps to finance an activity that benefits all employees : negotiating collective agreements . Secondly , under the single national collective agreement for DATE , on which the practice is based , the contribution is not obligatory and is not earmarked for a trade union . Finally there is no statutory provision for automatic affiliation to a trade union . The ORG therefore considers that the payment of this sum can not in itself be regarded as an infringement of employees’ right to join or not to join a trade union . ”

“ ... In its previous conclusion , the ORG asked if automatic deductions from all workers’ wages , including those who were not unionised , were forbidden under the present legislation . The report states that according to rules on deducting trade - union dues , union dues are paid only by persons who are mandated to pay such dues , which means that they must be trade - union members .

Union dues can be paid in CARDINAL ways . Union members may either pay their dues directly into the union account or ask their employers to deduct the dues from their wages , in which case the employer is required to comply . In DATE , parliament adopted legislation , with the support of the unions , requiring employers to deduct and transfer dues . Prior to that , deductions were only possible with the agreement of both employer and employee . ORG considers that the procedure for deducting trade union contributions from wages at source may not be prohibited or made obligatory by national legislation . It must be made a criminal offence to use such a procedure for illegitimate purposes , for example to secure information on trade - union membership . ... ”

Information on the right of workers and employers to establish and join organisations of their own choosing may be found in LAW and Principles of ORG of ORG of the ORG .

Under the subheading “ Trade union unity and pluralism ” , it is pointed out , inter alia , that the fact that workers and employers generally find it in their interest to avoid a multiplication of the number of competing organisations would not be sufficient to justify direct or indirect intervention by ORG , DATE , paragraph CARDINAL ) . A monopoly situation imposed by law would be at variance with the principle of free choice of workers’ and ORG organisations ( ibid . , paragraph CARDINAL ) . A government should neither support nor obstruct a legal attempt by a trade union to displace an existing organisation . Workers should be free to choose the union which , in their opinion , will best promote their occupational interests without interference by the authorities ( ibid . , paragraph CARDINAL ) . The imposition of an obligation on all the workers in the category concerned to pay contributions to a single national trade union , the establishment of which is permitted by branch of industry and by region , would not be compatible with the principle that workers should have the right to join organisations “ of their own choosing ” ( ibid . , paragraph CARDINAL ) .

NORP Under the subheading “ Favouritism or discrimination in respect of particular organisations ” , it is stated , inter alia ( references in ORG and Principles added after each paragraph have been omitted here ) :

“ CARDINAL . Considering the limited functions which , in CARDINAL case , were by law open to certain categories of trade unions , the ORG felt that the distinction made between trade unions under the national legislation could have the indirect consequence of restricting the freedom of workers to belong to the organisations of their choosing . The reasons which led the ORG to adopt this position are as follows . As a general rule , when a government can grant an advantage to CARDINAL particular organisation or withdraw that advantage from CARDINAL organisation in favour of another , there is a risk , even if such is not the government ’s intention , that CARDINAL trade union will be placed at an unfair advantage or disadvantage in relation to the others , which would thereby constitute an act of discrimination . More precisely , by placing CARDINAL organisation at an advantage or at a disadvantage in relation to the others , a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong , since they will undeniably want to belong to the union best able to serve them , even if their natural preference would have led them to join another organisation for occupational , religious , political or other reasons . The freedom of the parties to choose is a right expressly laid down in [ ORG ] Convention No . CARDINAL [ concerning freedom of association and the right to organise ] .

By according favourable or unfavourable treatment to a given organisation as compared with others , a government may be able to influence the choice of workers as to the organisation which they intend to join . In addition , a government which deliberately acts in this manner violates the principle laid down in [ ORG ] Convention No . CARDINAL that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise ; more indirectly , it would also violate the principle that the law of the land shall not be such as to impair , nor shall it be so applied as to impair , the guarantees provided for in the LAW . It would seem desirable that , if a government wishes to make certain facilities available to trade - union organisations , these organisations should enjoy equal treatment in this respect .

In a case in which there was at the very least a close working relationship between a trade union and the labour and other authorities , the ORG emphasised the importance it attaches to the resolution of DATE concerning the independence of the trade - union movement and urged the government to refrain from showing favouritism towards , or discriminating against , any given trade union , and requested it to adopt a neutral attitude in its dealings with all workers’ and ORG organisations , so that they are all placed on an equal footing .

On CARDINAL occasion , the ORG has examined cases in which allegations were made that the public authorities had , by their attitude , favoured or discriminated against CARDINAL or more trade union organisations :

( CARDINAL ) ...

( CARDINAL ) unequal distribution of subsidies among unions ...

( CARDINAL ) ...

Discrimination by such methods , or by others , may be an informal way of influencing the trade - union membership of workers . It is therefore sometimes difficult to prove . The fact , nevertheless , remains that any discrimination of this kind jeopardises the right of workers set out in [ ORG ] Convention No . CARDINAL , LAW , to establish and join organisations of their own choosing . ”

Chapter CARDINAL of ORG and Principles contained the following principles regarding public financing and control of trade unions ( references in the text added after each paragraph have been omitted here ) :

“ CARDINAL . The right of workers to establish organisations of their own choosing and the right of such organisations to draw up their own constitutions and internal rules and to organise their administration and activities presuppose financial independence . Such independence implies that workers’ organisations should not be financed in such a way as to allow the public authorities to enjoy discretionary powers over them .

With regard to systems of financing the trade - union movement which made trade unions financially dependent on a public body , the ORG considered that any form of ORG control is incompatible with the principles of freedom of association and should be abolished since it permitted interference by the authorities in the financial management of trade unions .

A system in which workers are bound to pay contributions to a public organisation which , in turn , finances trade union organisations , constitutes a serious threat to the independence of these organisations .

Questions concerning the financing of trade union and ORG organisations , as regards both their own budgets and those of federations and confederations , should be governed by the by - laws of the organisations , federations and confederations themselves , and therefore , constitutional or legal provisions which require contributions are incompatible with the principles of freedom of association . ”


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

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

On DATE , a building society ( “ the plaintiff ” ) lodged civil action no . CARDINAL in ORG of GPE against the applicant ’s mother claiming an amount of QUANTITY ( “ ORG ” ) for work done and for which the applicant ’s mother had refused to pay on the ground that the plaintiff had failed to produce a certificate from the architect that the work had in fact been carried out .

The Government submit that the plaintiff had made the applicant a party to the action , naming him as defendant CARDINAL in the relevant writ of summons and serving him with the writ , not in his personal capacity , but in his capacity as representative of his mother , PERSON , and of PERSON . According to the power of attorney , the applicant was duly authorised to act on their behalf in the proceedings . As from DATE , following the death of PERSON and in accordance with a court order made in pursuance of an application filed by the plaintiff , the title of the action was amended and the applicant was made a defendant in his capacity as administrator of the estate of the deceased PERSON as well as in his capacity as representative of PERSON .

The applicant filed his defence on DATE , after having applied CARDINAL times for an extension of the time - limit . These extensions were granted with the plaintiff ’s consent .

On DATE the applicant ’s mother submitted a counterclaim for the sum of ORG CARDINAL for building defects and delays .

The pleadings were completed on DATE . On DATE ORG set down the case for directions for DATE .

The hearing fixed for DATE was adjourned by ORG to DATE . An interim application filed by the applicant on DATE was adjourned CARDINAL times with the consent of the parties and then granted on DATE .

The hearing was fixed for DATE . However , on that date it was adjourned first until DATE and then until DATE . On that last date the applicant proposed a further adjournment in order to modify his defence . He filed the modified defence on DATE . On CARDINAL DATE and CARDINAL DATE ORG adjourned the hearing for want of time .

On DATE both parties requested the adjournment of the hearing fixed for that date in order to refer the case to arbitration . However , on DATE the applicant changed his mind and the court set down the action for a hearing on CARDINAL DATE . On DATE the hearing commenced , but it was again adjourned at the applicant ’s request in order to prepare the defence in the light of the testimony given by a witness for the plaintiff .

The hearing was fixed for DATE . However , it was adjourned twice at the applicant ’s request until DATE . In the meantime , there had been a change to the composition of ORG and the action , already heard in part , was fixed for a hearing de novo for CARDINAL DATE . Subsequently , the hearing was again adjourned at the request of the applicant ’s lawyer or the plaintiff ’s lawyer .

On DATE the hearing was adjourned owing to the death of PERSON , which necessitated the filing of an application by the plaintiff to amend the title of the action . The pleadings with the amended title were closed on DATE . On DATE the applicant wrote to the court asking it to schedule the hearing for a date sometime after DATE . He gave as his reason that he would be abroad up until that time . The court set down the case for directions on DATE and fixed the date of the hearing for DATE . The hearing commenced on DATE , but was adjourned until DATE upon the plaintiff ’s request . It had to be again adjourned until DATE owing to pressure of business of ORG . It was further adjourned until DATE upon the joint request of the parties and again until DATE . On that last date the court adjourned the action for directions following the applicant ’s request that the case be scheduled to be heard after the DATE recess as the appointed referee was absent abroad and was not expected to return within DATE .

The action was again adjourned twice for directions until DATE and DATE on the joint application of the parties in order to enable the referee to complete his report . The report was eventually prepared on DATE . On DATE , the date on which the directions hearings was to take place , the applicant failed to appear before ORG . On DATE he filed an application seeking a court order to set aside the referee ’s report . The action was again adjourned twice pending the outcome of this application . The hearing on the application was held on DATE . Following this hearing , the parties agreed to set aside the referee ’s report and to appoint an arbitrator by agreement . On DATE ORG of its own motion fixed the case for directions for DATE and gave notice to the parties to appear before it on that date .

On DATE ORG stated that , in view of the fact that the applicant had failed over the course of DATE to make an application to have the action set down for hearing and that the parties had failed to fulfil their undertaking of CARDINAL DATE to appoint an arbitrator , it had to determine whether to dismiss both the action and counterclaim . On DATE ORG decided to set down the action for trial in view of the applicant ’s declared wish not to have recourse to arbitration .

ORG accordingly fixed the action to be heard de novo on DATE , having regard to the parties’ proposal of DATE to have the hearing date fixed for DATE . However , the hearing was adjourned until DATE and again until DATE at the request of the parties . On that last date the hearing was adjourned again as a result of the withdrawal of the plaintiff ’s lawyer . On DATE the court fixed the hearing for DATE . However , on CARDINAL DATE the parties agreed to submit the dispute to arbitration and designated an arbitrator by agreement .

On DATE the decision of the arbitrator was delivered and confirmed by ORG .


The applicant is a NORP national , born in DATE and living in PERSON . He is represented before the ORG by PERSON , a lawyer practising in PERSON . The respondent Government are represented by PERSON , their Agent .

On DATE , while he was serving a prison term in the PERSON - Šaca prison , the applicant sent an envelope by registered mail . The address on the envelope read as follows :

“ Head of ORG

POST OFFICE

PERSON

GPE CARDINAL “ .

The envelope had registration number R CARDINAL . It contained another envelope . The latter was addressed to the applicant ’s parents and contained a letter which the applicant wanted to be sent to ORG .

The main envelope also contained an accompanying letter for the head of the PERSON CARDINAL post office . In the letter the applicant addressed the head of the PERSON CARDINAL post office “ Dear Madam ” and requested her to deliver the enclosed envelope to his parents at their expenses . The applicant explained that he was serving a prison sentence and that he could not send letters to certain addresses .

On DATE the applicant ’s registered mail arrived at the PERSON CARDINAL post office which is the main post office in the city . An employee in charge of correspondence addressed to ORG opened the main envelope . After having read the applicant ’s request addressed to the head of the PERSON CARDINAL post office , she re - directed the applicant ’s mail , in the original envelope , to the head of the PERSON CARDINAL post office which is in charge of delivering mail in DATE where the applicant ’s parents live . The PERSON CARDINAL post office is situated in DATE , but it is not charged with delivering mail to addressees .

The applicant ’s registered letter R CARDINAL arrived at the PERSON CARDINAL post office on DATE . Its head could not comply with the applicant ’s request that the enclosed envelope be delivered to his parents at their expenses as postal regulations require that the postage be paid in advance .

On DATE the applicant was released from prison . He complained to the post that his registered mail had not been delivered .

Following the applicant ’s complaint the head of the PERSON CARDINAL post office sent the envelope addressed to the applicant ’s parents back at the applicant ’s address in the PERSON - Šaca prison by ordinary mail in accordance with the relevant regulation . On DATE the head of the PERSON CARDINAL post office informed the applicant accordingly .

On DATE the director of the PERSON prison administration informed the applicant that according to the register of ORG mail his registered letter R CARDINAL had not been returned to the prison .

On DATE the head of ORG of ORG informed the applicant that his registered letter had been delivered to the addressee , i.e. the head of the post office concerned , and that he had therefore no right to compensation for its loss . The applicant was further informed that the head of the post office had not been entitled to deliver the enclosed envelope to the applicant ’s parents at their expenses as requested by the applicant since ORG did not provide such a service .

The letter by the head of ORG also stated that the head of the PERSON CARDINAL post office had sent the envelope in question back at the applicant ’s address in the PERSON - Šaca prison by non - registered mail . Since ORG kept no records of the distribution of such mail , it was impossible to establish where the letter had been lost .

On DATE the applicant complained about the interference with his correspondence to ORG ( Ústavný súd ) . On DATE the applicant was requested to submit documentary evidence . He was further informed that in the proceedings before ORG he had to be represented by a lawyer .

On DATE the applicant supplemented his submissions to ORG . He stated that he was indigent and requested that a lawyer be appointed to represent him .

On DATE a judge of ORG requested that the applicant appoint , within DATE , a lawyer representing him in the proceedings . The letter further stated that ORG lacked jurisdiction to appoint a lawyer ex officio .

On DATE the applicant requested ORG that a lawyer be appointed to represent him before ORG . He explained that several lawyers had refused to represent him and that he was indigent .

On DATE the applicant informed ORG that he was detained and that ORG had not yet appointed a lawyer to him .

On DATE ORG rejected the applicant ’s petition . It held that the applicant ’s submissions were not sufficient for proceedings before ORG to be started . The decision stated that the applicant had not been deprived of his liberty throughout the time during which his petition had been prepared for a preliminary examination . In ORG view , the applicant had had enough time to specify , possibly with the assistance of a lawyer , the evidence which he proposed to take and the decision which he sought to obtain .

At the relevant time the indication of addresses on mail was governed by LAW of ORG of DATE ( PERSON o právach a povinnostiach pošty a jej používateľov ) . The relevant provisions read as follows :

Paragraph CARDINAL provides that the address must be indicated accurately with a view to preventing any doubts as to the place and person to whom the mail is to be delivered . Post offices charged with the delivery of mail are authorised to determine whether an address is indicated correctly and accurately .

Pursuant to paragraph CARDINAL , mail with inaccurate or incomplete address shall be returned to the sender .

Paragraph CARDINAL ( a ) provides that address on mail which is to be delivered within the country shall indicate , in the first place , the addressee , i.e. the first name and surname of a person or the name of a company or organisation .


CASE OF HÅKANSSON AND STURESSON v. SWEDEN

Violation of Art. 6-1;No violation of P1-1 and 14+P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr PERSON is resident at PERSON and a police officer by profession , and Mr PERSON is resident at PERSON and a farmer by profession .

ORG On DATE the applicants bought for CARDINAL NORP crowns ( SEK ) at a compulsory sale by auction ( exekutiv auktion ; " the DATE auction " ) an agricultural estate called Risböke CARDINAL:CARDINAL in the municipality of ORG . Their main competitors at the auction , Mr PERSON and Mr PERSON , bid CARDINAL and CARDINAL SEK , respectively . The property had been seized in DATE in order to secure the payment of the previous ORG debts to CARDINAL banks . According to a valuation made public before the auction , the market value ( saluvärde ) of the property was estimated at QUANTITY .

ORG At the auction the public was , according to TIME drafted by the representative of ORG ( länsstyrelsen ) of GPE , informed of the regulations contained in LAW , sub - section CARDINAL , and LAW CARDINAL of LAW DATE ( jordförvärvslagen CARDINAL ; " the DATE LAW ) , whereby a purchaser would have to resell the property within DATE unless he had obtained in the meantime from ORG ( lantbruksnämnden ) of the same County a permit to retain it or fell under one of the listed exceptions from the permit requirement ( see CARDINAL and DATE below ) .

The applicants maintained that a representative of ORG had stated , at the public viewing of the property on DATE , that , in this case , the requisite permit would certainly be granted speedily ; they further claimed that this had been confirmed by ORG at the auction . In support of these allegations , the applicants submitted CARDINAL affidavits , each of which was signed in DATE by a person who had been present either at the auction or at the public viewing .

ORG On DATE ORG drew up a sale contract ( köpebrev ) in which the applicants were reminded of the wording of section CARDINAL para . CARDINAL of the CARDINAL Act . On DATE the applicants submitted a request to ORG for a permit to retain the estate LAW .

ORG By letter of CARDINAL DATE , ORG informed the applicants that the estate had , in view of its size , situation and nature , to be considered as a " rationalisation unit " ( rationaliseringsfastighet ) which ought to be used for the purpose of consolidating other properties in the area that were capable of further development . It added that , as neighbours were interested in acquiring the property , the request might be refused under section CARDINAL para . CARDINAL , sub - section CARDINAL , of LAW ( see paragraph CARDINAL below ) . ORG also indicated that there were reasons to believe that the price paid was too high for redemption ( inlösen - see paragraph CARDINAL below ) .

On DATE ORG rejected the ORG request on the ground that the estate was a " rationalisation unit " .

ORG The applicants appealed to ORG ( lantbruksstyrelsen ) , which rejected the appeal on DATE .

In its decision ORG noted the following . Risböke CARDINAL:CARDINAL had an area of CARDINAL hectares of which QUANTITY were forest and QUANTITY pasture . There were no buildings on the property . PERSON estate , which comprised QUANTITY of forest and CARDINAL of pasture , was QUANTITY away . Through their purchase the applicants had intended to build up units which would , in the short run , create opportunities for employment and , in the long run , become financially sound properties to be exploited by their children . ORG noted however that in the opinion of ORG , there was only room for CARDINAL active farmer in the region . Finally , Mr PERSON , who leased CARDINAL neighbouring properties , CARDINAL of which was owned by his father , had shown a great interest in acquiring the applicants’ property . ORG concluded :

" ORG finds , as did ORG , that the real estate at issue lacks the prerequisites for remaining as a separate cultivation unit . Moreover , ORG considers that a new establishment on the property would be likely to make it more difficult for the active farmer in the area to develop his business . "

ORG The applicants appealed to ORG ) , which rejected the appeal on DATE .

ORG A new request , dated DATE , for a permit to retain PERSON was rejected by ORG on DATE . ORG stated that the estate was considered to be a unit suitable for rationalisation purposes , which ought to be used to consolidate properties within the area that were capable of further development . It furthermore stated that it was not prepared to redeem the estate at the price of CARDINAL SEK .

ORG The applicants appealed to ORG . After inspecting the property , it rejected the appeal on DATE , on the ground that there were no new circumstances justifying a departure from its previous decision .

ORG The applicants’ further appeal to the Government was dismissed on DATE .

ORG In a letter of CARDINAL DATE the applicants requested the Government to reconsider their decision of CARDINAL DATE . ORG , recalling that the case had been finally settled by them on DATE , decided on DATE not to take any further action in respect of the request .

ORG The applicants brought proceedings before ORG ( fastighetsdomstolen ) of PERSON requesting that the ORG redeem the Risböke CARDINAL:CARDINAL in accordance with section DATE CARDINAL Act ( see paragraph CARDINAL below ) . In a judgment of DATE the court rejected the claim , stating that in view of the clear wording of section CARDINAL this provision could not be applied by analogy to the applicants’ situation . The applicants appealed to ORG ( PERSON hovrätt ) , which on DATE confirmed the judgment of ORG . On DATE ORG ( högsta domstolen ) refused leave to appeal .

ORG At the request of ORG , ORG ordered , on DATE , the compulsory resale by auction of GPE CARDINAL:CARDINAL in accordance with the provisions of sections DATE LAW ( see paragraphs QUANTITY below ) . ORG ( kronofogdemyndigheten ) in GPE was responsible for arranging the auction .

ORG In DATE and DATE ORG ( skogsvårdsstyrelsen ) assessed the value of the property in accordance with the price - control regulations ( that is , in principle , by reference to its yield ) at CARDINAL SEK and its market value as not exceeding QUANTITY . In DATE the Senior PERSON ( överlantmätaren ) of GPE made a new valuation of the property , resulting in an estimated market value of CARDINAL SEK .

ORG On DATE ORG determined that the estate had a value of MONEY . The applicants challenged this before ORG but the court dismissed the action on DATE , stating that it was not possible to appeal against such a determination as it was only a preparatory step for a subsequent decision on the sale of the estate ( see paragraph CARDINAL below ) . The applicants appealed against this decision to ORG , which on DATE refused leave to appeal .

On DATE , at the ORG request , ORG appointed CARDINAL special valuers ( see paragraph CARDINAL below ) . In their report of DATE , the valuers concluded that the property had an estimated market value of CARDINAL SEK , taking into account certain expenditure deemed necessary for thinning out trees ( mainly DATE trees ) that had been newly planted by the applicants .

ORG The auction took place on DATE ( " the DATE auction " ) . ORG noted that the estate had an estimated market value of CARDINAL SEK and a taxable value of CARDINAL SEK . It decided that the lowest bid which could be accepted would be QUANTITY . At the auction , there was , in fact , CARDINAL bid . It was an offer of CARDINAL SEK made by ORG and it was accepted by ORG . After the costs of the valuation and the auction had been deducted the applicants received PERSON .

ORG Prior to the auction in DATE , CARDINAL requests for advance permits ( förhandstillstånd ) to acquire the property had been filed with ORG ( see paragraph CARDINAL below ) . On DATE the ORG granted the request filed by Mr PERSON and Mr PERSON on condition that they applied , within DATE from the public auction , for a merger of GPE CARDINAL:CARDINAL and the CARDINAL neighbouring properties which they now owned ( cf . paragraph CARDINAL above ) . The other requests were rejected by ORG DATE .

ORG On DATE the applicants appealed to ORG requesting that the compulsory sale be annulled . They argued that the property had not been sold at the market price , as required by law , since the valuation which had arrived at the figure of CARDINAL SEK had been based only on an assessment of the yield from the property . The applicants stated that they intended to submit to the court a new valuation report . However , on DATE ORG dismissed the appeal .

ORG The applicants filed a further appeal with ORG , in which they also challenged the impartiality of the CARDINAL special valuers on the ground that they had had a duty , under section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) , to consult with ORG - which had in the event been the buyer of the estate - when making their valuation . They did not raise any complaint in respect of the absence of any public hearing before ORG . On DATE ORG refused to grant leave to appeal .

ORG On DATE ORG sold the property to Mr PERSON and Mr PERSON for QUANTITY . On DATE they applied for its merger with their CARDINAL properties as required in their acquisition permit ( see paragraph CARDINAL above ) and on DATE the merger was accepted by the local property formation agency ( fastighetsbildningsmyndigheten ) .

ORG LAW DATE was enacted in order to implement the agricultural guidelines adopted by the PERSON in DATE and also to meet the policy goals of forestry and regional planning . Among the aims to be specially furthered by the LAW are the creation and preservation of viable family holdings so as to strengthen the connection between cultivation and ownership , and also the promotion of a continuous structural rationalisation of agriculture and forestry .

ORG Under LAW , a permit is required for the acquisition of real estate assessed for tax purposes as an agricultural holding . Section CARDINAL lists a number of exceptions : for example , no permit is required when the property is acquired by a ORG authority other than a commercial undertaking ( sub - section CARDINAL ) or at a compulsory sale by auction ( sub - section CARDINAL ) other than such as take place in accordance with section CARDINAL of the Act ( see paragraph CARDINAL below ) .

ORG When deciding on an application for a permit , the authorities shall take into account that the setting up and development of rational enterprises in agriculture , forestry and horticulture should be promoted ( section CARDINAL ) .

Section CARDINAL para . CARDINAL provides that a permit to acquire a property shall be refused , inter alia :

" CARDINAL . If the price or other consideration exceeds , to an extent which is not insignificant , the value of the property in view of its yield and other circumstances ,

if it can be assumed that the acquisition is effected mainly as an investment ,

if the property is required for the rationalisation of agriculture or forestry ,

Paragraph CARDINAL of this section provides inter alia that sub - section CARDINAL of the first paragraph does not apply to the acquisition of real estate at a compulsory sale by auction under section CARDINAL of the Act ( see paragraph CARDINAL below ) .

ORG LAW specifies that the acquisition permit shall , in principle , be applied for within DATE of the purchase . Under this section the question whether or not to grant the permit may not be examined before the acquisition , except in certain circumstances , none of which obtained at the DATE auction .

However , in the case of a public auction under LAW ( see paragraph CARDINAL below ) , such as the one held in DATE , the acquisition permit shall be issued before the auction .

ORG Under section CARDINAL para . CARDINAL , a property acquired at a compulsory auction in circumstances which , in case of an ordinary purchase ( see paragraph CARDINAL above ) , would have required a permit shall be re - sold within DATE , unless the said circumstances have by then ceased to exist or unless the purchaser has obtained a permit from ORG to retain the property . The granting of such a permit is subject inter alia to the provisions of sections DATE , with the exception of section CARDINAL , sub - section CARDINAL .

The sale contract issued after the compulsory auction shall contain a note recalling the regulations laid down in LAW .

ORG A decision by ORG not to grant permission to retain property acquired at a compulsory auction may be appealed to ORG and ultimately to the Government .

ORG " If a purchase becomes invalid because the necessary permit is refused as a result of the application of section CARDINAL para . CARDINAL , sub - section CARDINAL " , i.e. on the ground that the property is required for the rationalisation of agriculture or forestry , the ORG is , according to section DATE , " obliged to redeem the property at the agreed purchase price if the seller so requests " . However , under the same section , no such obligation exists if the purchase price exceeds , to an extent which is not insignificant , the value of the property in view of its yield and other circumstances , or if the terms are unreasonable in other respects .

There is no obligation on the ORG to redeem property acquired at a compulsory auction as in such a case a permit is not required for a valid acquisition of the property ( see paragraphs CARDINAL above ) .

ORG Under section CARDINAL para . CARDINAL , applications for redemption shall be filed with ORG , whose decisions may be appealed to a ORG and ultimately , if leave to appeal is granted , to ORG .

ORG If , in a case where this is required under LAW ( see paragraph CARDINAL above ) , the property has not been re - sold within the prescribed time - limit , ORG shall , according to the same section and on application by ORG , order that the property be sold at a compulsory auction by ORG in accordance with the provisions of section CARDINAL . At such an auction the property may only be sold to someone who has received an acquisition permit ( see paragraph CARDINAL above ) or who is , like ORG , exempted from the permit requirement by virtue of section CARDINAL of LAW ( see paragraph CARDINAL above ) .

ORG LAW specifies that no sale at a compulsory auction may take place unless the purchase price offered amounts at least to the value to be attributed to the property in accordance with the provisions of LAW of LAW ( utsökningsbalken , see in particular section CARDINAL ) . Under LAW of LAW this estimated value is to be fixed by ORG or , if the owner of the property makes a timely request for a special valuation , by valuers appointed by ORG . In both cases the valuation shall be made in consultation with ORG ( section CARDINAL of LAW DATE , jordförvärvsförordningen CARDINAL , enacted by the Government ) .

Section CARDINAL also provides that , if the property is not sold at the auction , ORG may , within DATE , request ORG to hold a new auction . If no such request is made , or if no acceptable bid is made at the second auction , the owners are no longer required to sell the property .

ORG decisions in respect of a compulsory auction may , according to LAW , section CARDINAL , of LAW , be brought before a ORG and ultimately , with leave to appeal , before ORG . However , according to section CARDINAL ( CARDINAL ) of the same LAW , an appeal against a decision that is merely a preparatory step for a final decision may , in general , be lodged only in connection with an appeal against the latter .

Appeals follow the rules of LAW ( rättegångsbalken ) , as far as these are relevant ( LAW , LAW ) . LAW , LAW , of LAW specifies that :

" Where it is necessary for the purposes of the investigation of a case that a party or other person be heard orally by ORG , ORG shall decide on such a hearing as it finds appropriate . "

If ORG decides to hold such a hearing , the hearing is open to the public under LAW , LAW .


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

The applicants , all GPE nationals , are :

NORP , born in DATE and living in GPE ;

GPE , born in DATE and AK born in DATE , husband and wife who live in GPE .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

The applicant gave birth to her son PERSON on DATE . From birth he suffered from severe allergy problems , including an allergic reaction to bottled milk within TIME of birth .

In DATE was seen by a consultant paediatrician who diagnosed him as suffering from allergies .

At DATE and DATE reacted to his first and second immunisations .

In DATE , PERSON was seen by Professor PERSON at ORG . It was noted that he had severe allergic reactions including urticaria , severe reactions after vaccinations and anphylactic reaction to cow ’s milk .

On DATE Professor PERSON reviewed PERSON , confirming the diagnosis of atopy and food allergic disease .

On DATE , PERSON was admitted as an emergency to hospital having had a convulsion and suffering from pyrexia .

On DATE was admitted to hospital after a febrile convulsion .

On DATE , he was admitted to ORG for introduction of foods on an inpatient basis . He was noted to have urticarial reactions and episodes where his behaviour became uncontrollable for TIME or so after eating .

Further admissions to hospital took place on DATE ( problems in tolerating wheat ) , on DATE ( anaphylactic attack after eating chocolate ) , DATE ( for treatment for eczema ) , CARDINAL DATE ( multi - allergy syndrome and asthma ) , DATE ( for his third immunisations , developing urticaria , oedema and itching ) and DATE ( concerns about hypothermia ) . PERSON was described by CARDINAL doctor as the most allergic patient he had had ever known .

On DATE , while PERSON was still in hospital , he was seen by Professor PERSON who made the diagnosis that NORP was fabricating PERSON ’s illness . NORP was not told this or invited to discuss the possibility .

Although PERSON was discharged from hospital , the social services were contacted and concerns expressed that NORP could be exhibiting ORG ( fabricated or induced illness ) . It was requested that NORP not be told of this .

On DATE the social services held a strategy meeting attended by Professor PERSON , the police , representatives of the hospital and social services . Following the meeting , Professor PERSON referred PERSON to Professor PERSON for blood samples and testing , stating that in his view factitious illness was being imposed on top of real illness . Professor PERSON wrote to Professor PERSON considering that the wording was too strong and that there was no doubt that PERSON was atopic and food allergic in general .

In DATE Professor PERSON proposed that PERSON be admitted to ORG , going home only on the weekends . NORP was given no explanation as to the reasons why this was being suggested and was concerned that PERSON would be unable to cope . She refused to agree to the admission . Professor PERSON contacted the social services suggesting that a child protection conference be convened .

On DATE , with NORP ’s agreement , PERSON was admitted to ORG on the suggestion of Professor PERSON for food challenges to be undertaken and for treatment of eczema .

On DATE a meeting was held at the hospital attended by various professionals but not NORP Concerns about possible exaggerated reporting by the mother were raised .

NORP found out about the meeting later and was noted to be upset , believing that she was no longer believed or trusted .

Further admissions followed during DATE , following reactions to various foodstuffs . A social work summary dated DATE indicated that there were no incidents of fabrication of symptoms but that there were concerns about the mother ’s exaggerated or dramatic reporting of symptoms .

On DATE , PERSON took over as community paediatrician for ORG and she concluded after CARDINAL meeting with NORP and PERSON had only minor allergies and was at risk from the mother . She contacted Professor PERSON , who had not seen PERSON for DATE ; they agreed that a ORG meeting should be called .

On DATE , a ORG meeting took place in hospital , without the parents . There was a conflict of view as to whether the parents should be informed of concerns . A meeting took place on DATE with the parents at which concerns were expressed about the degree of M. ’s allergies and the need for independent assessment . PERSON ’s parents considered that he was doing well at the moment . While they would not agree to admission to Professor ORG ’s unit , NORP accepted that he be admitted to ORG and that she leave him during DATE . Shortly afterwards , on reading a letter in PERSON ’s medical records , NORP became aware that she was suspected of ORG .

On DATE , NORP visited the GPE unit but continued to refuse to agree to M.’ s admission as in her view it did not have facilities to cope with a full anaphylactic reaction and she was concerned for his safety .

In DATE the parents were warned that a care order was being considered . D. at her request was referred to a psychiatrist . This psychiatrist found no indication of any personality disorder but considered that important questions arose , including the extent to which NORP misrepresented or colluded in symptoms .

A child protection conference was held on DATE , after which PERSON was placed on the at risk register under the category of emotional abuse . NORP and PERSON ’s father were present at the meeting .

On DATE NORP visited Professor PERSON and agreed to medical assessment on an acute ward .

Following PERSON ’s admission to hospital , Professor PERSON gave his opinion on DATE that PERSON suffered from extensive and severe allergies , including episodes of acute angio oedema urticaria and anaphylaxis . PERSON was removed from the at risk register on DATE .

On DATE , Professor ORG confirmed the diagnosis of extreme acute allergies and that the mother had not been fabricating his condition .

According to a medical report dated , DATE , NORP had experienced a lengthy period of extreme anxiety and stress concerning her son because of his chronic ill health and life threatening condition , and that in addition she had been subject to the stress of accusations and investigations concerning the causes of his condition . It was noted that NORP had been depressed , with loss of weight , sleep disturbance , tearfulness , withdrawal , loss of energy brief suicidal thoughts . Recommendations were made that she be helped by supportive counselling .

The applicant claimed that she had also been unable to return to her nursing career due to destroyed confidence and fear that accusations would resurface if anything went wrong . She depended on income support as a result .

On DATE , the applicant issued proceedings in negligence alleging a breach of duty by the various ORG trusts involved in the case and claiming compensation for personal injury and financial loss .

On DATE , the judge struck out the claim finding that public policy militated against any duty of care to NORP The applicant appealed to ORG .

These applicants had a daughter PERSON born on DATE .

On DATE , PERSON screamed with pain when picked up by the maternal grandmother . The parents and grandmother took PERSON to the hospital . The triage nurse made a note of information given by the family . That note stated that the mother , rather than the grandmother , had “ yanked ” M.

An x - ray showed a displaced slightly - comminuted fracture of the midshaft of the femur . While it was noted that there was no history of metabolic bone disease in the family , it was not noted that the parents were first cousins , an incident relevant to a possible genetic condition . Neither the mother nor grandmother spoke much LANGUAGE ; no PERSON interpreter was provided . A consultant paediatrician , PERSON interviewed the parents and grandmother early in the morning DATE , again without an interpreter . He noted that none of them appeared to know how the injury had occurred . He concluded that it was an inflicted injury and told the parents this .

The police were informed . The parents were interviewed on DATE by a social worker . He was unable to communicate with the mother due to language difficulties .

On DATE the health visitor for the family was interviewed and stated that she had had no concerns with the family .

On DATE the police interviewed the parents with an interpreter present .

On DATE , a social worker interviewed the family again and indicated that medical opinion was clear that PERSON could not have been injured by being picked up in the manner described by the grandmother . She warned that without a convincing explanation for the injury a child protection conference would have to be called .

On DATE , in light of the doctor ’s conclusion of non - accidental injury ( ORG ) , ORG decided to seek a second opinion but that meanwhile an interim care order should be obtained . Such care order was issued and parental responsibility given to the local authority on DATE .

On DATE , PERSON was discharged from hospital into the care of her aunt . The parents were allowed supervised contact .

The parents obtained legal advice and jointly instructed an expert , with PERSON ’s guardian , inter alia , to clarify whether tests had been carried out to exclude brittle bone disease . However no further tests were carried out at this stage .

On DATE , ORG judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal ( they had given evidence through an interpreter which they allege was suspect ) and that as the father was convinced of the innocence of his wife , he was disqualified as a person capable of protecting PERSON ordered PERSON to be placed in care . PERSON remained with her aunt who lived QUANTITY from the family home .

On DATE , PERSON sustained a second injury in her aunt ’s care . Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta ( “ OI ” , commonly known as brittle bone disease ) . Professor PERSON and Dr PERSON were consulted at this time by PERSON and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non - accidental injury at the time of the first injury .

After discharge from hospital , M returned home in DATE .

On DATE , the care order was discharged and PERSON returned to her parents .

The entire local community were aware that the family had been suspected of harming PERSON and the family had been extremely shocked and shamed . Rumours spread to GPE that the mother had been put in prison . The GPE relationship with PERSON and with the grandmother have been severely affected and disrupted as a result of events .

On DATE the parents brought claims for negligence and breach of their LAW against the hospital trust and the consultant paediatrician .

On DATE , ORG found no duty of care was owed to the parents and that LAW DATE ( “ HRA DATE ” ) did not apply to events before it came into force on DATE . The parents appealed .

Leave to appeal to ORG was granted in both cases .

On DATE , concerning the GPE claims , ORG held as regards allegations under LAW that no violation of this provision was involved , referring to GPE judgments ( PERSON and Others v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALV and ORG and PERSON v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALV ) . It found that while domestic law now recognised that there was a duty of care in relation to children , whose best interests were always paramount , there was a potential conflict of interest between the child and the parents , as it would always be in the GPE best interests for the child not to be removed . Where consideration was being given to whether child abuse justified measures , a duty of care could be owed to the child but not to the parents . It upheld the rulings of the various ORG judges as a result .

After a hearing on DATE and CARDINAL and DATE , ORG gave judgment on DATE . They affirmed the orders made by the first instance judges and ORG . Lord PERSON , in his judgment with which the majority agreed , found inter alia :

" DATE . There are CARDINAL cardinal features in these cases . CARDINAL feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child ’s medical condition . The other feature , which is to be assumed , is that the ensuing investigation by the doctors was conducted negligently . In consequence , the suspected parent ’s life was disrupted , to a greater or lesser extent , and the suspected parent suffered psychiatric injury .

It is the combination of these features which creates the difficult problem now before the ORG . In the ordinary course the interest of parent and child are congruent . This is not so where a parent wilfully harms his child . Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child . So the liability of doctors and social workers in these cases calls into consideration CARDINAL countervailing interests , each of high social importance : the need to safeguard children from abuse by their own parents , and the need to protect parents from unnecessary interference with their family life .

The first of these interests involves protection of children as the victims of crime . Child abuse is criminal conduct of a particularly reprehensible character : children are highly vulnerable members of society . Child abuse is also a form of criminal conduct peculiarly hard to combat , because its existence is difficult to discover . Babies and young children are unable to complain , older children too frightened . If the source of the abuse is the parent , the child is at risk from his primary and natural protector within the privacy of his home . This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life , with the added complication that the parent who is responsible for the abuse will give a false account of the child ’s history .

The other , countervailing interest is the deep interest of the parent in his or her family life . ... Interference with family life requires cogent justification , for the sake of children and parents alike . So public authorities , should , so far as possible , cooperate with the parents when making decisions about their children . Public authorities should disclose matters relied upon by them as justifying interference with family life . Parents should be involved in the decision - making process to whatever extent is appropriate to protect their interests adequately .

The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child . Public confidence in the child protection system can only be maintained if a proper balance is struck , avoiding unnecessary intrusion in families while protecting children at risk of significant harm ... Clearly health professionals must act in good faith . They must not act recklessly , that is without caring whether an allegation of abuse is well - founded or not . Acting recklessly is not acting in good faith . But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances ? Are they exposed to claims by the parents for professional negligence ? ...

In considering these questions the starting point is to note that in each of these CARDINAL cases ... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question . The doctors were entitled , indeed bound to consider this possibility . Further , having become suspicious , the doctors rightly communicated their suspicions to the statutory services responsible for child protection . That is the essential next step in child protection ...

DATE . In each case the suspected parent was eventually cleared of suspicion . In CARDINAL case this was after DATE , in the other cases after much longer periods . The second point to note is that , essentially , the GPE complaints related to the periods for which they remained under suspicion . In each case the parent ’s complaint concerns the conduct of the clinical investigation during these periods ; the investigation , it is said , was unnecessarily protracted . The doctors failed to carry out the necessary tests with appropriate expedition . Had due care and skill been realised from the outset , the ORG suspicions would have been allayed at once or much more speedily than occurred , and , in consequence , the parents would have been spared the trauma to which they were subjected . Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions , a duty sounding in damages if they act in good faith but carelessly .

Stated in this broad form , this is a surprising proposition . In this area of the law , concerned with the reporting and investigation of suspected crime , the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith ...

DATE . This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested . The existence of such a duty would fundamentally alter the balance in this area of the law . It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child , the doctor would owe a duty of care to the suspect ...

CARDINAL ... < Counsel > did not contend for such a broad proposition ... His submission was more restricted .... That the health professionals’ duty to exercise due professional skill and care is owed only to the child ’s primary carers , usually the parents , as well as the child himself . ...

My initial difficulty ... is that the distinction between primary carers , to whom the duty would be owed , and other suspects to whom it would not , is not altogether convincing . It is difficult to see why , if a health professional owes no duty to a childminder or teacher suspected of abuse , he should nonetheless owe such a duty to a parent suspected of abuse . An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her . ...

There is , however , CARDINAL major difference between parents and childminders or school teachers , . In the case of a parent suspicion may disrupt the parent ’s family life . ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected ...

In my view the Court of Appeal reached the right conclusion on the issue ... Ultimately the factor which persuaded me that , at common law , interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘ conflict of interest’ . A doctor is obliged to act in the best interests of his patient . In these cases the child is his patient . The doctor is charged with the protection of the child , not with the protection of the parent . The best interests of a child and his parent normally march hand - in - hand . But when considering whether something does not feel ‘ quite right’ , a doctor must be able to act single - mindedly in the interests of the child . He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent .

... the seriousness of child abuse as a social problem demands that health professionals , acting in good faith in what they believe are the best interests of the child , should not be subject to potentially conflicting duties when deciding whether a child may have been abused , or when deciding whether their doubts should be communicated to others , or when deciding what further investigatory or protective steps should be taken . The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child . ... "


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza

The applicant owns a house situated on plot no . CARDINAL/CARDINAL in PERSON , a suburb of PERSON , where there is dense development of family houses built on individual plots . Before DATE the applicant ’s neighbour , who owned a plot directly adjacent to the applicant ’s house , had a small pigsty on her plot .

Beginning in DATE the neighbour started to develop substantially the running of a pig farm on her property . To that end , she applied for permission to renovate an old building located QUANTITY from the applicant ’s house .

On DATE the Mayor of Piątnica ( PERSON ) granted the applicant ’s neighbour initial approval for a development project to be carried out on her land ( decyzja o warunkach zabudowy ) . The project provided for the overhaul and renovation of the building situated on the plot for the purposes of animal husbandry for up to CARDINAL husbandry stalls . The Mayor fixed the conditions to be met by the project : inter alia the renovated building was not to exceed the borders of the owner ’s land , it was to comply with the technical requirements set out in the applicable provisions of the relevant construction laws , in particular these applicable to buildings designated for animal husbandry purposes . The Mayor observed that the operation of the farm of the size concerned did not make the farm fall with the ambit of those projects which , under the Minister of Agriculture , could cause environmental harm and nuisance to the neighbouring properties and had therefore comply with specially stringent requirements .

The applicant and CARDINAL other neighbours appealed , submitting that the operation of the pigsty would cause serious nuisance to the adjacent properties . The second - instance authority upheld the challenged decision , essentially reiterating the arguments relied on by the first - instance authority . Ultimately , on DATE ORG dismissed the applicant ’s and other ORG appeal against the Governor ’s decision , finding that the initial construction permit was in compliance with the provisions of the local land development plan .

The applicant ’s neighbour obtained on DATE a final construction permit ( zezwolenie na budowę ) from the Mayor . The permit covered the renovation of a building of QUANTITY and QUANTITY , on the basis of a finding that the project submitted by the owner and providing for the operation of an animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements . In particular , the project included such details which were specially designated to limit any nuisance which the operation of the farm could cause to the neighbours ( installation of ventilating channels , new windows , concrete floor and foundations ) . The size of the building was not to be altered . Hence , the objections of the neighbours could not be allowed .

The applicant and CARDINAL other neighbours filed an appeal against this decision , again arguing that the operation of the farm would be to the detriment of the quality of the environment and would deteriorate the conditions of their everyday life .

On DATE the Podlasie Governor dismissed their appeal . He observed that , following the applicant ’s appeal , an additional inquiry had been instituted , including on - site inspection . Following this , certain amendments had been brought to the project in order to accommodate certain objections raised by the neighbours . It was reiterated that the project submitted by the owner and providing for the operation of the animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements . If implemented , the project would substantially ameliorate the technical condition of the building , in particular in making the animal husbandry cause less nuisance to the neighbouring properties . It was further stated that it had been prepared by persons having requisite professional qualifications . It was further stressed that , following the appeals brought by the neighbours , the examination of the case had been particularly meticulous and that their objections had been duly taken into consideration . It has not been shown that the planned reconstruction would deteriorate the conditions in which the owners of the neighbouring properties would exercise their ownership . Consequently , there were no grounds on which to refuse the permit under the relevant provisions of LAW .

The applicant and other neighbours appealed to ORG , submitting that the project , if implemented , would breach their right to the peaceful enjoyment of their possessions .

On DATE ORG dismissed the applicant ’s and other ORG appeal against the Governor ’s decision . The court found that the decision under appeal was lawful in terms of substantive law and that the proceedings in which it had been given respected the applicable norms of administrative procedure . In particular , the administrative bodies had taken into account the technical requirements set out in the relevant ordinance . Moreover , the project was compatible with the local land development plan . On the whole , the reconstruction did not overstep the limits of the owner ’s discretion in the exercise of her ownership .

Under the provisions of land planning legislation as applicable at the relevant time , land development plans were adopted by organs of local government . A decision to prepare a new plan was taken by a local council . Subsequently , the local mayor prepared , with the assistance of the local administration , a draft land development plan . The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than DATE . All members of the public were entitled to submit objections and comments on the draft plan .

A final plan was adopted by way of a resolution of a local council . The council , when voting on the draft plan , also decided whether and , if so , in what manner , objections and comments submitted by the local public were to be considered .


CASE OF GILLOW v. THE UNITED KINGDOM (ARTICLE 50)

Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

ORG The case was referred to the ORG by ORG ( " the Commission " ) on DATE . The case originated in an application ( no . CARDINAL ) against GPE and GPE lodged with the ORG in DATE by Mr. PERSON and Mrs. PERSON , NORP citizens .

ORG By judgment of CARDINAL DATE , ORG held , inter alia , that there had been a breach of LAW article CARDINAL) of the LAW by reason of the way in which LAW were applied in the applicants’ case ( Series A no . CARDINAL , paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL and CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , reference should be made to paragraphs CARDINAL - CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL - CARDINAL ) .

ORG The applicants had reserved their position on the application of LAW ) until after having knowledge of the ORG ’s judgment on the merits . In these conditions , neither the Government of GPE ( " the Government " ) nor the Commission were able to take any stand on the issue .

In its judgment of CARDINAL DATE , the ORG accordingly reserved the question , and invited the applicants , duly represented by a lawyer in accordance with LAW , to file within DATE any claim for just satisfaction that they might have ( ibid . , paragraph CARDINAL of the reasons and point CARDINAL of the operative provisions , p. CARDINAL ) .

ORG Having duly appointed a lawyer , Mr. and Mrs. PERSON , in a memorial of CARDINAL DATE , claimed just satisfaction in respect of material and moral damage , as well as costs and expenses .

In accordance with the President ’s directions , the ORG filed a memorial on DATE . On DATE , the Secretary to ORG informed the Registrar that its ORG did not intend to submit any observations .

ORG On CARDINAL DATE , ORG decided that , in the particular circumstances , there was no need to hold oral hearings and directed the Registrar to ask the applicants for particulars of the costs and expenses claimed . This information was received on DATE and CARDINAL DATE . ORG and the Commission commented thereon on CARDINAL and CARDINAL DATE , respectively .

ORG On DATE , Mrs. PERSON informed the ORG that her husband had died on DATE .

ORG Subsequently , Mr. PERSON , Mr. PERSON , Mr. PERSON and Mr. PERSON , substitute judges , replaced Mr. PERSON , Mr. PERSON , Mr. PERSON and Mr. PERSON , who were prevented from taking part in the final deliberation on CARDINAL and CARDINAL DATE ( Rules CARDINAL § CARDINAL and CARDINAL § CARDINAL ) .