Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - partial award

The applicant was born in DATE and lives in GPE .

On DATE ORG and Highways expropriated CARDINAL plots of land belonging to the applicant in GPE in order to build a motorway . A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicant when the expropriation took place .

Following the applicant ’s request for increased compensation , on DATE ORG of First - instance awarded him additional compensation of MONEY ( TRL ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from DATE , the date of the transfer of the title - deeds .

On DATE ORG upheld the judgment of ORG of First - instance .

On DATE ORG and Highways paid the applicant the amount of ORG , including interest .

The relevant domestic law and practice are set out in ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) .


Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

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

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

NORP The applicant is the son of ORG , the founder of ORG , who conducted “ Baťa , a.s . ve GPE , a substantial enterprise in former GPE ( hereinafter “ the company ” ) .

According to the applicant , on the death of his father in DATE , he and his mother inherited PERCENT and PERCENT respectively of the company 's shares . According to the Government , ownership of the shares did not pass to the applicant upon his father 's death . They refer to the agreement concluded between the applicant 's father and his step - uncle , PERSON , under which the shares had been sold by the former to the latter . This was confirmed by his father 's last will as interpreted by ORG ( okresní soud ) in inheritance proceedings , concluded on DATE , the outcome of which was contested neither by the applicant nor his mother .

Shortly before the beginning of the Second World War , the applicant moved to GPE . In DATE he acquired NORP citizenship . In DATE the applicant 's mother died and the applicant , together with a certain PERSON , were granted administration of her estate . The latter died on DATE and the applicant became the sole executor of his mother 's estate .

On DATE the then President of GPE issued Decree no . CARDINAL/CARDINAL on ORG and ORG ( dekret prezidenta republiky o znárodnění dolů a některých průmyslových podniků ) ( hereinafter “ the Decree ” ) .

Pursuant to LAW ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of the Decree , metalworking factories which had CARDINAL employees , certain chemical factories , enterprises producing tyres and synthetic rubber , knitting industry factories which had CARDINAL employees and factories producing hides which had CARDINAL employees were nationalised as from that date . ORG was authorised to declare , with reference to LAW , which companies were to be nationalised .

By ordinances ( vyhlášky ) nos . CARDINAL and CARDINAL of DATE , published in ORG , the former Minister of Industry declared the company nationalised as from DATE .

While LAW expressly provided for compensation , no such compensation was paid to the company 's owners . Under section CARDINAL(CARDINAL ) the Government were obliged to enact detailed rules governing compensation .

On DATE the applicant 's step - uncle was convicted by the former ORG ( národní soud ) of committing offences under LAW no . CARDINAL on the Security of the Republic ( zákon na ochranu republiky ) and under Presidential Decree no . CARDINAL on the Punishment of NORP Criminals , Traitors and Their Collaborators and on ORG ( dekret prezidenta republiky o potrestání nacistických zločinců , zrádců a jejich pomahačů a o mimořádných lidových soudech ) and his property confiscated .

On DATE the applicant applied under the Decree to ORG for compensation for the value of his shares in the company , together with other nationalised goods . No reply was given to him .

On DATE GPE and GPE concluded an agreement providing for compensation to settle claims of NORP nationals arising from nationalisation measures in GPE . According to letters exchanged on this occasion between the contracting Governments the agreement did not apply to the applicant 's claim with regard to the company despite his NORP citizenship .

NORP In DATE , after the collapse of the communist rule , the applicant visited former GPE and was assured by the new ORG that the past injustices towards him and his family would be remedied . The then Federal Deputy Prime Minister publicly stated in this respect :

“ The approach of the past regime to the PERSON family was based entirely on lies . It was based on the claim that [ the applicant 's step - uncle ] was a collaborator and that the heirs of [ the applicant 's father ] thus do not have any right to claim anything . We have to take a fair approach . It is necessary to apologise on behalf of the ORG and give the PERSON family full satisfaction and , furthermore , consider negotiations on damages . ”

On DATE ORG and ORG refused the applicant 's claims for compensation , stating that the applicant 's step - uncle had been the true owner of the company . A similar letter was sent to the applicant by PERSON on DATE .

The company went into liquidation on DATE .

On DATE the liquidator wrote to ORG , seeking compensation for the company 's nationalised property under LAW . On DATE the Minister of ORG replied , inter alia , in the following terms :

“ A decision granting the required compensation for the nationalised property can not be issued due to the lack of necessary regulations ; in other words , the Government have not yet adopted the regulation as provided for in LAW of [ LAW ] . ... Admittedly , the claim for compensation came into existence by virtue of the [ Presidential Decree ] which provided in its LAW that compensation has to be paid for nationalised property ; however the right to such compensation can only be executed once the terms and conditions set forth in the decree are enacted . ”

NORP The Minister further stated that no compensation could be provided to the applicant under the restitution legislation .

On DATE , in reply to the liquidator 's subsequent letter CARDINAL DATE , the Minister stated in particular :

“ [ Your objections ] are not substantiated . The [ previous ] position adopted by ORG ... is in conformity with the legal opinion of ORG acting as an administrative court when dismissing an administrative action seeking the payment of compensation for nationalised property under the [ Presidential Decree ] . The court expressed the following opinion :

' ... the duty to issue a decision must be in conformity with procedural and substantive law . However , there is no substantive law on the basis of which a decision granting or rejecting a compensation claim for nationalised property could be based . From ORG decision ( e.g. Pl . ÚS CARDINAL/CARDINAL ) concerning the Presidential Decrees issued in DATE it appears that these Decrees continue to be part of the national legal system , but can not serve as a basis for taking decisions . In those circumstances , ORG is not competent to deliver any decision under Decree no . CARDINAL/CARDINAL . The mere existence of the adjective law , Act no . TIME [ LAW ] is not sufficient to create the power of the administrative authority to decide . ' ... ”

In a letter of DATE sent to the applicant in the matter of his request for compensation under the Decree the Minister of Finance maintained that the applicant 's step - uncle had been the true owner of the company 's assets at the time of its nationalisation .

On DATE ORG quashed the judgment of ORG DATE by which the applicant 's step - uncle had been convicted , and remitted the case to the prosecutor for further consideration . Subsequently , on DATE , the prosecutor decided to discontinue these criminal proceedings .

Pursuant to section DATE ) of the Decree enterprises for the production of leather , artificial leather , leather products and their substitutes with CARDINAL employees according to the average number of employees as of DATE and DATE were nationalised as from that date . The former ORG was authorised to declare which companies had been nationalised .

Section CARDINAL(CARDINAL ) excludes from the right to compensation various categories of people , including , for example , those who had supported the NORP occupation . None of these exceptions is relevant to the present case . Paragraph CARDINAL provides , inter alia , that if a legal entity is not paid compensation for its property , pro rata compensation is to be paid to the shareholders .

In accordance with section CARDINAL(CARDINAL ) compensation is to be provided for nationalised property .

NORP Under section CARDINAL(CARDINAL ) the condition and liabilities of the nationalised property on DATE of its takeover by the national enterprise is decisive for the purpose of assessing compensation . The compensation was to be equal to the general price of the property calculated in accordance with official prices on DATE of nationalisation , or , should there be no such prices , prices ascertained by an official appraisal after deduction of liabilities . The Minister of Industry may , in agreement with the Minister of Finance , issue a regulation for assessment of the general price and evaluation of liabilities for the purposes of calculation of compensation in accordance with this provision .

Section CARDINAL(CARDINAL ) provides that compensation for nationalised property is provided ( a ) in the form of consideration similar to allowances from the national insurance system , ( b ) in the form of securities , ( c ) in cash or ( d ) in other assets . Under paragraph CARDINAL , the government shall adopt a regulation governing the provision of compensation pursuant to sub - paragraph ( a ) and shall lay down therein principles for providing compensation in cash and in other assets .

Section CARDINAL(CARDINAL ) establishes , in order to provide compensation , ORG , an independent legal entity with its registered office in GPE . Under paragraph CARDINAL , for the purposes of provision of the compensation in accordance with section CARDINAL(CARDINAL)(b ) , the ORG shall issue bonds guaranteed by the ORG . They shall bear interest and be redeemed by the ORG . They may be used for money deposits of infants and wards . The Government shall regulate the interest - rates and the redemption by secondary legislation . Paragraph CARDINAL holds that the Government shall regulate the organisation , administration and management of the ORG by a regulation .

Under section CARDINAL(CARDINAL ) the Minister of Finance , in agreement with the empowered minister , is to decide on the compensation and the manner of its provision . Under paragraph CARDINAL , the compensation is payable within DATE of the adoption of the decision . Under paragraph CARDINAL , the regulations on administrative procedure apply to compensation proceedings under LAW .

Under LAW approves Presidential Decrees issued on the basis of LAW on LAW of DATE . All Presidential Decrees are to be regarded ab initio as laws and constitutional Presidential Decrees are to be regarded as constitutional laws .

The Regulation was issued under section CARDINAL(CARDINAL ) of the LAW no . CARDINAL/CARDINAL on ORG .

Under section CARDINAL(b ) ORG exercises , inter alia , compensatory services under the Decree as amended . Under section CARDINAL(CARDINAL ) expenditures from the ORG include a ) amounts destined to pay interest and redemption of securities which the ORG delivers by virtue of section PERSON ) of the Decree , to recover those securities , b ) compensatory payments in cash under section CARDINAL(CARDINAL)(b ) of the Decree , c ) charges to compensate in other assets within the meaning of section CARDINAL(CARDINAL)(c ) of the Decree , d ) payments from ORG and e ) administrative fees of the compensatory services in accordance with the ORG budget .

Section CARDINAL(CARDINAL ) provides that from DATE ORG did not exercise the compensatory services which focused on concentration of means from enterprises and the ORG budget and financing of the enterprises . The Minister of Finance is charged with making adjustments to the organisation , administration and management of the Funds . Government Regulation no . CARDINAL ceased to be applicable on DATE on which this new regulation entered into force .

In the preamble , ORG of the NORP and GPE affirmed its intention to redress the consequences of certain infringements of property and other rights which occurred DATE .

Section CARDINAL(CARDINAL ) of the LAW provides that its aim is to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens , as enshrined in the LAW of ORG and LAW .

According to sections CARDINAL ) and CARDINAL ) , such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms , that is , an act in contradiction with the principles referred to in section CARDINAL ) of the LAW . When an entitled person was deprived of his or her property rights under nationalisation laws adopted DATE without appropriate compensation , the entitled person has a claim under this LAW , which he or she can raise under the particular law ( LAW ) .

Section CARDINAL(CARDINAL ) provides that , in order to be entitled to restitution of his or her property , a claimant must be a natural person and a citizen of the NORP and GPE whose property was ceded to the ORG in the circumstances listed in section CARDINAL of the Act . According to section CARDINAL(CARDINAL)(e ) , if the person whose property has been transferred to the ORG in cases specified in section CARDINAL died before the expiry of the period specified in section CARDINAL(CARDINAL ) , the entitled persons , provided they are citizens of the NORP and GPE , are his or her spouse and children , or in the case of the latter 's death , their children .

Under LAW , a person who has unsuccessfully exhausted all the measures that a procedural regulation applicable to proceedings before administrative authorities sets out for his protection against the administrative authority 's failure to act , may , in its action , request the court to lay an obligation upon that authority to deliver a decision on the merits , or a certificate . Second paragraph provides that subject to complying with all other statutory requirements an action may be successful if the administrative authority failed to deliver a decision although it was obligated by law to deliver one .

Under LAW the Government of GPE were to pay to ORG the sum of MONEY ( ORG ) in full and final settlement of NORP claims arising before DATE coming into force of that agreement against ORG and NORP natural and juridical persons in respect of property , rights and interests in GPE affected by NORP measures of nationalisation , expropriation , taking under administration or any other similar legislative or administrative measures .

Article II ( CARDINAL ) specified that for the purpose of this Agreement “ NORP claims ” meant claims of natural persons who were NORP citizens on the date of the coming into force of this Agreement and who were or whose legal predecessors were NORP citizens on the date of the coming into force of the measures referred to in Article I or on the date on which the relevant measures were first applied to their property , rights or interests .

ORG dismissed a constitutional appeal by Mr NORP NORP who had sought to have repealed Presidential Decree No . GPE . The court held , inter alia :

“ ... since the enemy occupation of NORP territory by the armed forces of the PERSON had made it impossible to assert the sovereign ORG power which stemmed from LAW of GPE , introduced by LAW no . CARDINAL , as well as from the whole NORP legal order , LAW , set up in GPE , must be regarded as the internationally recognised legitimate constitutional authority of the NORP State . In consequence thereof and as a result of their ratification by ORG . CARDINAL of DATE , all normative acts of LAW NORP ( NORP ) legislative power ... [ through which ] ... the constitutional and legal order of the Republic was achieved . ...

In view of the fact that [ the Decree ] has already accomplished its purposes and for a period of DATE has not created any further legal relations , so that it no longer has any constitutive character , its inconsistency with constitutional acts or international treaties ... can not , in the given situation , be reviewed DATE . ”

ORG stated , inter alia :

“ The ORG did not adopt the opinion that all injustices would be redressed , but only some injustices , and to the extent and under the conditions stipulated by law . It was the ORG 's sovereign decision whether at all , and to what extent , property injustices would be redressed . ”

ORG held , in particular :

“ [ T]he Act [ no . CARDINAL/CARDINAL ] does not intend to provide redress for the consequences of all injustices , but to mitigate the consequences of only some injustices , not all of them . From that it follows that injustices other that those included in the LAW can not be rehabilitated , nor can they be rehabilitated in any way other than specified in the LAW ; ... From these statutory provisions [ section DATE ) and section CARDINAL(CARDINAL ) second sentence of Act no . CARDINAL/CARDINAL ] it can be deduced that if the legislator wanted to compensate also for the cases of confiscation for which compensation was to be provided , but had not been paid , it would have stipulated this explicitly in section DATE ) of the LAW , or within this LAW in another provision it would have extended the opportunity to mitigate the consequences of property and other injustices to include also the cases of confiscation for which compensation had not been provided , although it should have been . The legislator , however , did not do that . ”

ORG held , in particular :

“ When formulating particular reasons for restitution , the legislator 's will have to be respected . If in section CARDINAL(CARDINAL ) second line of the Extra - Judicial Rehabilitation Act , the restitution ground is formulated as following : ' When an entitled person was deprived of his or her property rights under nationalisation laws adopted DATE without appropriate compensation , the entitled person has a claim under this LAW , which he or she can raise under the particular legislation ' , regardless of the fact that the nationalisation took place ex lege [ ; ] the right to compensation must be applied and not eliminated . It is clear that in case of section CARDINAL(CARDINAL ) second line of the Extra - Judicial Rehabilitation Act , the restitution ground is based on an act infringing generally recognised human rights [ section CARDINAL(CARDINAL)(c ) of the Extra - Judicial Rehabilitation Act ] , not because of the act of nationalisation , but due to the failure to provide compensation which is the element of irregularity which constitutes an infringement of generally recognised human rights as provided for in LAW .

Section CARDINAL(CARDINAL ) second line of the Extra - Judicial Rehabilitation Act provides for a specific restitution ground not only because it is exercisable under the particular law which is LAW , but also because of the fact that the legislator 's will to redress those injustices which occurred in consequence of the nationalisation without compensation as required by section CARDINAL et seq . of Presidential Decree no . CARDINAL/CARDINAL has to be respected . ”

In this judgment ORG expressed its opinion on the constitutionality of the specification of the decisive period in LAW . In its conclusions it referred to , inter alia , the opinion embodied in its judgment no . PERSON CARDINAL/CARDINAL , where it further held :

“ [ I]t is the ORG 's sovereign decision whether it allows restitution and to what extent property injustices are to be redressed . In ORG opinion , specifying the decisive period , and particularly its start date , as DATE , is based on rational and objective reasons , since the legislator was compelled to specify clearly a time threshold beyond which it is fundamentally impossible to go without the danger of causing compensations to build up to the time of the pre - GPE republic or even further into the past . ”

The Constitutional Court further noted that in dealing with the issue of what method the NORP State would choose to redress property and other injustices that had occurred in the previous period in consequence of non - democratic acts of the previous regime , it chose a method based on the principle of at least a partial mitigation of injustices caused . The court held the following as regards the chosen concept :

“ [ F]rom many concepts the legislator has chosen , in the restitution regulations , the one that does not explicitly repeal the legal regulations on the basis of which the ownership was lost , but that [ instead ] presumes , to the contrary , that in separate proceedings it should be ascertained whether all requirements stipulated by the legislator in special restitution regulation for redressing property injustice are met . ”

On DATE ORG dismissed a constitutional appeal against ORG failure to act upon a request to proceed under LAW . It held , inter alia :

“ At present , ORG is not authorised to act under Decree no . CARDINAL/CARDINAL . In ORG view that decree has already accomplished its purpose , since DATE it represents a closed group of problems and issues closely related to wartime events and the country 's economic recovery after the Second World War . For DATE it has not created any further legal relationships and it no longer has any constitutive character . Therefore , at present the respondent ORG is evidently not authorised to act pursuant to this Decree and thus it also can not decide on compensation for nationalised property under LAW seq . , regardless of the absence of an implementing regulation within the meaning of LAW , subsection CARDINAL of the Decree . ( ... ) ”

ORG expressed its opinion on the concept of the restitution laws and the time - limits for the restitution claims , stating in particular :

“ The restitution laws enacted after DATE enshrine the legislator 's will to redress injustices that occurred DATE , that is . in the period defined in LAW no . CARDINAL/CARDINAL as the period of lack of freedom , in the period of a totalitarian system , and not any other injustices . The ORG 's will is clearly defined in the restitution laws themselves and redress is permissible only in the factual and time scope defined by these laws . ...

Should the time - limits set for the restitution claims be challenged , there would be no certainty or limit , be it factual or , and above all , time - limit , that would prevent former owners of property or their descendants from claiming property they had lost at any time in the past , even a very long time ago . ”

In its opinion of CARDINAL DATE ORG plenary session stated , inter alia :

“ ( ... ) in its preamble LAW , which is the fundamental restitution law , explicitly excluded from restitution property which had passed to the ORG prior to the decisive date . Therefore , it is not true that the LAW does not deal with property other than property that passed to the ORG during the relevant period , but in fact it concerns all property that the ORG owned on DATE of the entry into force of the LAW ( DATE ) , and which it had acquired in the period prior to DATE . By excluding ... any redress for property injustices ' caused in periods even deeper in the past , including the injustices caused to citizens of NORP and NORP origin , the LAW provided that the ORG owned this property and that claims to it relying on the general laws could not be raised . ...

Although ORG established a tendency towards redressing injustices to the widest extent possible , it was always within the regulations passed with a view to mitigating the injustices which occurred DATE , ... and not other injustices . The ORG 's will is clearly defined by the restitution laws themselves and redress is permissible only to the factual and time extent defined by these laws . ...

To the question of whether it is possible to seek protection of an ownership right that ceased to exist prior to DATE applying the general civil law rather than by using the methods stipulated by the restitution regulations ... , ORG replies in the negative . ”

ORG held , in particular :

“ The restitution laws provided redress for nationalisation of property – in the relevant period – carried out in conformity with the then valid law but without compensation . It was section CARDINAL(CARDINAL ) of the Extra - Judicial Rehabilitation Act which , in regard of industrial enterprises , created a class of restitution beneficiaries whose claims were linked to privatisation settlement under LAW of LAW [ Act no . CARDINAL/CARDINAL ] . Undoubtedly , the aim of this legislation was to distinguish , from the massive group of the then owners of nationalised enterprises , natural persons who would be empowered for redress of property injustices suffered .

However , no further extension of the claims of the owners of the nationalised enterprises was planned . [ T]he extensive interpretation used by the plaintiff also lacks constitutional conformity ( see the finding of the Plenary of ORG , no . PERSON . ÚS CARDINAL/CARDINAL ) . Still less could approximately assessed compensation , as calculated of course without foundation , by the plaintiff , be accepted . In other words , [ granting ] such a claim for compensation would in general terms lead to a blanket compensation of natural persons for property nationalised under decrees adopted in DATE , those persons being entitled to calculate arbitrary amounts to be paid . Such a procedure can not be permitted , as it contravenes not only ordinary law but is also unconstitutional ( see finding of ORG DATE , ORG no . I. ÚS CARDINAL/CARDINAL ) . ”

ORG held , inter alia :

“ It is necessary to proceed in compliance with the principle of a broader application of fundamental rights and freedoms and to adopt an interpretation which observes the sense and substance of fundamental rights ... Any application or interpretation to the contrary would constitute a breach of LAW , under which the substance and sense of fundamental rights and freedoms must be observed in the course of the application of the provision specifying the restrictions imposed on them . Such restrictions may not be misused to serve any other purpose but those for which they were specified . ”

ORG decided in this landmark ruling in favour of an action challenging inactivity on the part of ORG , which had failed to pursue administrative proceedings upon the introduction of a request for compensation under the Decree . While emphasising that its present ruling did not deal with the question as to whether compensation should be granted , the court found that the request had triggered administrative proceedings and accordingly ordered the Ministry to adopt a formal decision .

It held , inter alia :

“ [ The court ] did not accept ... the obiter dictum opinion briefly articulated in ORG decision no . II . ÚS CARDINAL/CARDINAL , in accordance with which a request for compensation pursuant to this legislation [ the Decree ] , which no longer gives rise to rights and obligations , does not trigger administrative proceedings . ”


CASE OF TÜM HABER SEN AND ÇINAR v. TURKEY

Violation of Art. 11;Not necessary to examine Art. 13+11

Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych

Tüm PERSON is a trade union , now dissolved , which was active DATE . The application was lodged by its former president , PERSON , a NORP national who was born in DATE and lives in GPE .

On DATE Tüm PERSON was formed when its founding document was lodged with ORG , in application of LAW . Its statutes referred , inter alia , to the right to conclude collective - bargaining agreements . The founders of PERSON were CARDINAL public - sector contractual staff working in the communications field , in particular for the post office ( PTT ) and the telecommunications service ( ORG ) . When it was dissolved the trade union had CARDINAL members and CARDINAL local branches .

On DATE the GPE Governor 's ORG applied to the PERSON public prosecutor 's office , seeking the suspension of ORG activities and the trade union 's dissolution on the ground that ORG employees could not form trade unions . It referred in its complaint to LAW , section CARDINAL of LAW ( Law no . CARDINAL ) and sections DATE CARDINAL of LAW ( Law no . CARDINAL ) .

In a notice of CARDINAL DATE , ORG called on ORG of ORG to suspend the trade union 's activities and to order its dissolution on the ground that under the positive law ORG employees , who were subject to PERSON no . CARDINAL , were not entitled to form trade unions .

NORP In their written observations submitted to ORG on DATE , the trade union 's representatives argued that the legal provisions in force did not expressly prohibit the formation of trade unions by civil servants and that an obstacle to the exercise of trade - union rights would be in breach of GPE 's international commitments as a signatory to ORG , the conventions of ORG , and LAW .

On DATE ORG suspended the trade union 's activities and ordered that it be dissolved .

NORP The trade union 's representatives appealed to ORG .

On DATE ORG quashed ORG judgment and referred the case back to it . In its reasoning , it stated that the fact that the words “ trade union ” appeared in the association 's title did not make it a trade union in the technical sense , namely that it would be authorised to call strikes and to enter into collective agreements . At the most , the association could be considered as a professional organisation which aimed to protect the interests of its members , who worked in a specified sector .

Before ORG , the representatives of PERSON argued that it ought to be considered as a trade union which was authorised to call strikes and to enter into collective agreements . On DATE ORG , having examined the arguments submitted by the trade union 's representatives , upheld its initial judgment .

NORP The trade union 's representatives again submitted an appeal on points of law .

In a judgment of CARDINAL DATE , ORG , sitting as a full court and ruling at last instance , ordered the dissolution of PERSON It considered that implementation of the right to form trade unions , as set out in the LAW , required the enactment of a general principles act . In the absence of any statutory provisions governing the legal status of trade unions for civil servants or public - sector contractual workers , the applicant trade union could not claim to have any legal status . Nor could it be considered as an association or as some form of professional organisation , since its leaders expressly presented it as a full trade union . In spite of GPE 's ratification of ORG nos . CARDINAL ( on freedom of association and protection of the right to organise ) and CARDINAL ( on protection of the right to organise and the procedures for determining the conditions of employment in the civil service ) on DATE , ORG , sitting as a full court , considered that the trade union could not rely on the conventions in question , since they were not directly applicable in domestic law and the legislature had not yet enacted implementing legislation .

The judgment was served on the trade union 's representatives on DATE .

DATE and DATE , all of PERSON branches and sections were dissolved on the orders of ORG .

NORP The relevant provisions of the LAW read as follows :

“ Workers and employers have the right to form trade unions and employers ' associations and federations of unions , without prior permission , in order to safeguard and develop their economic and social rights and interests in their labour relations .

In order to form a union or a federation of unions , it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law . If it finds that this information and documentation is not in conformity with law , the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or the association of unions .

Everyone shall be free to become a member of or withdraw from membership of a union .

No one shall be compelled to become a member , remain a member , or withdraw from membership of a union .

Workers and employers can not hold concurrent memberships in CARDINAL trade union or employers ' association .

Employment in a given workplace shall not be made conditional on membership or lack of membership of a trade union .

In order to hold a leadership position in a trade union or federation of trades unions , it is necessary to have worked as an employee for DATE .

The status , administration , and functioning of trades unions and federations of trades unions should not be inconsistent with the characteristics of the LOC or with democratic principles as defined in the LAW . ”

“ Workers and employers have the right to form trade unions and employers ' associations and federations of unions , without prior permission , in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations , and to join and withdraw from such entities of their own free will . No one shall be compelled to become a member or withdraw from membership of a union .

The right to form a union may only be restricted by law and for the purposes of safeguarding national security and public order and preventing crime , and for the protection of public health and public morals and the rights and freedoms of others .

The formalities , conditions and procedures to be applied in exercising the right to form a union shall be established by law .

It is not permitted to hold membership of CARDINAL trade union simultaneously within the same sector of employment .

The scope of the rights in this area of civil servants who do not have the status of salaried employee , and the exceptions and limitations applicable to them , shall be established by law in line with the nature of the tasks entrusted to them .

The statutes , administration and functioning of trade unions and their higher bodies should not be inconsistent with the characteristics of the LOC or with democratic principles as defined in the LAW . ”

“ Workers and employers have the right to conclude collective - bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work .

The procedure to be followed in concluding collective - bargaining agreements shall be regulated by law .

It shall be forbidden to conclude or apply more than one collective - bargaining agreement in a single place of work for the same period . ”

The unions and federations of unions which the public employees mentioned in the first paragraph of Article CARDINAL will be entitled to found and which do not fall under the scope of the first and second paragraphs of the same LAW and also LAW , may appeal to judicial authorities on behalf of their members and may hold collective - bargaining meetings with the administration in accordance with their aims . If an agreement is reached as a result of collective bargaining , a text of the agreement shall be signed by the parties . This text shall be presented to ORG so that administrative or judicial arrangements can be made . If such a text can not be concluded by collective bargaining , the points of agreement and disagreement shall also be submitted by the relevant parties for consideration by ORG . The regulations for the execution of this Article shall be set out in legislation .

“ The fundamental and permanent functions required by the public services that the ORG , State economic enterprises and other public corporate bodies are assigned to perform , in accordance with principles of general administration , shall be carried out by public servants and other public employees .

The qualifications of public servants and other public employees , procedures governing their appointments , duties and powers , their rights and responsibilities , salaries and allowances , and other matters related to their status shall be regulated by law .

The procedure and principles governing the training of senior administrators shall be specially regulated by law . ”

Section CARDINAL of LAW ( Law no . CARDINAL ) of DATE , which was repealed by LAW no . CARDINAL of DATE , stated that civil servants were authorised to establish and join trade unions and professional organisations , in accordance with the procedures set out in special laws . Its second paragraph stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities .

Section CARDINAL of Law no . CARDINAL of DATE restored the above provision and supplemented it with a number of conditions . The text now provides :

“ Civil servants shall be authorised to establish trade unions and other federations of professional organisations and to join them in accordance with the procedures set out in the LAW and by special laws . ”

Section CARDINAL provides :

“ Civil servants are forbidden ... to organise , call or spread propaganda about strikes .

Civil servants may not take part in a strike ... may not support or encourage strike action . ”

LAW no . CARDINAL of DATE ( of ORG ) concerning ORG to Organise provides :

“ Workers and employers , without distinction whatsoever , shall have the right to establish and , subject only to the rules of the organisation concerned , to join organisations of their own choosing without previous authorisation . ”

DATE of the European Social Charter provides :

“ The right to organise

With a view to ensuring or promoting the freedom of workers and employers to form local , national or international organisations for the protection of their economic and social interests and to join those organisations , the Contracting Parties undertake that national law shall not be such as to impair , nor shall it be so applied as to impair , this freedom . The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations . The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations . ”


Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant claims that , while in GPE , he was accused of national security offences , namely having leaked information during his military service . The applicant left that country . He claims that he was subsequently found guilty of these offences and sentenced to death .

The Government claim that the applicant entered GPE surreptitiously , probably in DATE . The applicant claims that he entered GPE lawfully .

NORP In DATE the applicant was arrested by the NORP authorities for drug - related offences . In DATE he was found guilty by the threemember ORG of GPE , sitting as a first - instance court . The court , considering that the applicant was himself a drug user , sentenced him to DATE imprisonment . The applicant ’s conviction was upheld by the fivemember ORG of GPE in DATE .

NORP In DATE the applicant applied for refugee status to ORG High Commissioner for Refugees ( ORG ) and was recognised as a refugee under the ORG mandate . On that occasion he was issued by the NORP authorities with an alien ’s residence card .

According to the Government , his leave to remain in GPE expired on DATE . However , he remained illegally .

In the course of DATE , the applicant was arrested for theft and bearing arms without authorisation . He was placed in detention on remand . In DATE he was found guilty of these offences by ORG , composed of judges and jurors , and was sentenced to DATE imprisonment .

On DATE the applicant was released on licence . On DATE , the Chief of Police ordered his expulsion from GPE in the public interest .

On DATE the applicant applied to the NORP authorities for refugee status . On DATE the Minister of Public Order rejected his application , which was found to be abusive because “ it had been submitted DATE after the arrival of the applicant in GPE , obviously with the aim of avoiding his lawful expulsion after his release from prison where he had served long sentences for very serious crimes ” .

The Government claim that , following this decision , the applicant requested to be expelled to “ the Former GPE ” , and on DATE he was sent to that country , but thereafter he returned to GPE illegally . However , the applicant claims that he was never “ lawfully expelled ” to “ the Former GPE ” . He neither asked to go there , nor was he accepted by that country .

On DATE the applicant was arrested in GPE for drug - related offences . On DATE he was found guilty and sentenced to CARDINAL years’ imprisonment and a fine by the threemember ORG . In DATE the CARDINAL - member ORG upheld his conviction and sentence .

On DATE the applicant asked for his release on licence claiming , inter alia , that he could return to GPE because he had been granted a reprieve . ORG of ORG Instance examined the applicant ’s request in camera on DATE . Although the applicant was not allowed to attend the hearing , the prosecutor was present and was heard . The court decided that the applicant should be released on licence and expelled from GPE . It considered that the applicant ’s conduct during his detention indicated that he was not going to commit any further offences once released and that it was not necessary to prolong the detention .

Following this decision the applicant was released from prison on DATE and was placed in police detention pending his expulsion , on the basis of an opinion given by the deputy public prosecutor at ORG that decision no . CARDINAL of DATE applied by analogy in cases of expulsion ordered by courts ( see paragraph CARDINAL below ) . Initially the applicant was detained at a detention centre in GPE . He was issued with a temporary passport by the NORP authorities and on DATE was given leave to enter GPE by the NORP embassy in GPE .

The applicant claims that the PERSON detention centre consisted of CARDINAL cells . At times there were up to CARDINAL people detained there . The applicant ’s cell was overcrowded . The number of persons in his cell would increase tenfold depending on the detainee population each night . There were no beds and the detainees were not given any mattresses , sheets or blankets . Some detainees had to sleep in the corridor . The cells were dirty and the sanitary facilities insufficient , since they were supposed to cater for a much smaller number of persons . Hot water was scarce . For long periods of time there would not be any . There was no fresh air or natural daylight and no yard in which to exercise . The only area where the detainees could take a walk was the corridor leading to the toilets .

According to the applicant , there was no recreational or other activities at the PERSON detention centre . The applicant could not even read a book because his cell was so overcrowded . Detainees were served with a “ passable plate of food ” twice a day . No milk was ever provided while fruit , vegetables and cheese rarely appeared on the menu . Moreover , the detainees could not obtain any food from outside . The applicant had no access to a doctor or a chemist . Only family visits were allowed and , as a result , foreign detainees did not receive any visits at all . The applicant could not address himself to the social services or the public prosecutor . Although payphones existed , their number was clearly insufficient . Cases of ill - treatment by the guards were not uncommon .

The Government claim that hot water was available on a ORG basis at the PERSON detention centre . The food served to detainees was sufficient and of a very high quality . The police officers had the same menu . There was adequate natural light where the applicant was detained . The applicant was able to circulate freely in a wide corridor at regular intervals during DATE . The detention area was cleaned DATE by the staff of the centre and was regularly disinfected . There was medical care .

In DATE there was a hunger strike at the PERSON detention centre .

On DATE the applicant asked the Minister of Public Order to allow him to travel to a country other than GPE where he allegedly faced the death penalty .

On DATE the applicant applied for the order for his expulsion to be lifted , relying on , inter alia , ORG Treatment or Punishment and the fact that he had been recognised as a refugee by the ORG . He also claimed that his continued detention contravened LAW and that the expulsion order had been made in breach of national law .

In DATE there were QUANTITY people detained at the GPE centre .

NORP In DATE the applicant was transferred to the police headquarters in FAC in GPE . According to the applicant , the conditions were similar to those at PERSON , although there was natural light , air in the cells and adequate hot water . The Government described the conditions in FAC as being the same as those at GPE .

On DATE the ORG representative in GPE requested ORG not to expel the applicant to GPE as long as his case was under review .

On DATE ORG of ORG , sitting in camera , refused to lift the expulsion order recalling , inter alia , that in his application of DATE the applicant had claimed that he was no longer subject to persecution in GPE . The decision of the court did not contain any express ruling on the applicant ’s claim concerning his detention .

On DATE and DATE the applicant requested the Ministers of Justice and of Public Order to lift the expulsion order and , in any event , to release him .

On DATE the applicant was expelled to GPE . The Government claim that they had been informed by ORG that GPE had not asked for his extradition .

The applicant claims that upon his arrival in GPE he was placed in detention .

Article CARDINAL § CARDINAL of LAW provides as follows :

“ The court may order the expulsion of an alien who has been given a prison sentence under ORG DATE and CARDINAL of LAW , provided that the country ’s international obligations are respected . An alien lawfully present in GPE may only be expelled if given a sentence of CARDINAL months’ imprisonment . The expulsion takes place immediately after the alien has served his or her sentence or is released from prison . The same applies when the expulsion has been ordered by way of a secondary penalty . ”

Article CARDINAL of the Criminal Code provides for the release of prisoners on licence .

Article CARDINAL of the same Code provides that the court may impose on the person released on licence certain obligations concerning , inter alia , his place of residence .

On DATE the public prosecutor at ORG opined that , although persons released on licence could not leave the country , a court could order their expulsion under LAW .

Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL provides that the Minister of Public Order may , in the public interest and if the person to be expelled is dangerous or might abscond , order his detention until his deportation from GPE becomes feasible .

Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL provides that the details concerning the execution of deportation orders issued in accordance with the provisions of that PERSON , as well as those ordered by the criminal courts in accordance with LAW , will be fixed by a common decision of ORG , of ORG and of Public Order .

Decision no . CARDINAL of DATE of ORG , of ORG and of Public Order makes a number of provisions concerning the expulsion of aliens by administrative order . According to section CARDINAL of the decision , “ aliens subject to expulsion are detained in police detention centres or other appropriate places determined by the Minister of Public Order ” . On DATE the deputy public prosecutor at ORG opined that decision no . CARDINAL of DATE applied by analogy in cases of expulsion ordered by the courts .

NORP On DATE ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) published a report following its visit to GPE in DATE , which contains the following findings and recommendations concerning the GPE police headquarters in FAC :

“ DATE . The principal detention facilities at ORG were situated on the CARDINALth floor of the ORG building . They consisted of CARDINAL cells divided into CARDINAL sections . The cells measured CARDINAL mCARDINAL , and were equipped with fixed benches for rest / sleeping purposes ; the lighting was adequate , as would be the ventilation in the absence of overcrowding . In principle , the cellular accommodation could be considered as acceptable for persons obliged to remain in police custody for a relatively short period , on condition that the LOC are kept clean and those obliged to spend TIME in custody are provided with mattresses and blankets .

However , the delegation found that in addition to criminal suspects ( who might stay for a maximum of DATE ... ) , the ORG were being used to accommodate for lengthy periods persons held under the Aliens legislation . Many of these persons met by the delegation had been held in the ORG detention facilities for periods in excess of DATE , and a few had been there for DATE . Such a situation is not acceptable . The physical surroundings and the regime are quite unsuitable for such lengthy stays . There is not even the possibility of access to the open air : out of the cell “ exercise ” is taken in a corridor adjacent to the cells .

There were CARDINAL detained persons in the ORG at the time of the delegation ’s visit , PERCENT of whom were being held under the Aliens legislation . However , it was clear that shortly before the delegation ’s visit , the number of persons accommodated had been much higher . CARDINAL persons had been transferred DATE from the ORG to a new holding centre for aliens situated close to the airport ...

For the most part , the detainees were being held CARDINAL to a cell , though a cell reserved for women was accommodating CARDINAL detainees . The delegation was told by persons detained that in the very recent past , QUANTITY or more persons had been held per cell . Given the cells’ dimensions , such occupancy levels would be grossly excessive .

Police officers told the delegation that CARDINAL set of cells was reserved for criminal suspects , and the other for persons held under the Aliens legislation ; however , it was observed that , in practice , the separation between these QUANTITY very different types of detained persons was not assured .

Further , some persons detained under the Aliens legislation stated that they had received no information about the procedure applicable to them ( at least not in a language they understood ) . On the other hand , such detainees did have access to a telephone .

Persons detained had blankets at their disposal ( though the delegation heard allegations that they had only been made available DATE before the delegation ’s first visit ) , but not mattresses .

Toilet and shower facilities were situated alongside the cells , and no complaints were heard about access to those facilities ; however , detainees did complain that they had not been provided with towels or soap . The state of cleanliness and overall state of repair of the toilets / shower facilities was appalling , although an attempt to improve the situation was made between the delegation ’s different visits .

As regards the detention facilities on the CARDINALth floor of ORG , the ORG wishes to make the following recommendations :

– that no - one be held in these facilities for longer than is absolutely necessary ;

– that there be a maximum occupancy level of CARDINAL persons per cell ( with a possible exception as regards persons TIME in custody ) ;

– that persons detained overnight be provided with both blankets and mattresses ;

– that the toilet / shower facilities be renovated in a hygienic condition , and detained persons provided with the wherewithal to keep themselves clean ;

– that means be sought of enabling persons detained for TIME to be offered outdoor exercise on a DATE basis ;

– that persons detained under the Aliens legislation be strictly separated from criminal suspects ;

– than an information leaflet be given to persons detained under the Aliens legislation explaining the procedure applicable to them and their related rights ; this leaflet to be available in the languages most commonly spoken by such persons and , if necessary , the services of an interpreter provided . ”

In DATE and in DATE the ORG carried out CARDINAL more visits to the LOC police headquarters and the PERSON detention centre . The reports following these visits have not yet been made public .