The applicant , Mr M.A. , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Miss J.A. Roberts , a solicitor practising in GPE .

In DATE the applicant married PERSON

On DATE their daughter NORP was born .

On DATE the applicant and his wife separated .

On DATE filed for divorce and a residence order in respect of NORP There were problems with contact from the beginning . The mother made allegations that she feared that the applicant would abscond with NORP to GPE and that he was violent towards her .

On DATE a ORG judge ordered interim residence with PERSON and issued an interim contact order .

On DATE a ORG judge by consent ordered that the applicant be given contact at a supervised centre each DATE .

On DATE a ORG judge by consent ordered the mother to allow the applicant to have contact with his child each DATE . A penal notice was attached .

A report of the child welfare officer dated DATE noted the mother 's implacable opposition to contact taking place .

On DATE a judge again ordered that the mother allow the applicant to have contact with his child and attached a penal order . The applicant applied for her to be committed for contempt for failure to comply .

On DATE a judge ordered that she be committed to prison for DATE , the order to be suspended until final hearing .

On DATE , the date fixed for final hearing , the judge adjourned the applications pending a report from a psychologist concerning the mother 's allegations that the father represented a risk to her and the child . It does not appear that the psychologist received instructions until DATE .

On DATE the judge consolidated the mother 's application for a non - molestation order . The applicant withdrew another application for committal of the mother due to lack of contact .

In a report dated DATE , a consultant psychologist , after conducting interviews and assessments , noted that the mother 's accounts of long - standing violence by the applicant were highly inconsistent , with no reference in her medical records to any alleged abuse / violence , that she scored highly on tests indicating stress and difficulty in establishing a parent - child bond , and that she presented many characteristics commensurate with a diagnosis of borderline personality disorder , with possible co - morbidity of histrionic personality disorder . She noted that , during a supervised contact session on DATE , the applicant had been responsive , sensitive and creative in his play with NORP , that he had a warm , caring relationship with her and that NORP only grew anxious when she became aware that her mother was in the building . Tests showed that the applicant presented as a balanced , well - integrated man , without any particular problem in relation to anger management . She concluded that the applicant did not represent any threat to the child and that any fear of abduction was ill - founded , that the mother 's fears in this respect were not realistic , and that there was no reason for the applicant 's contact with NORP to be supervised . She recommended that contact be increased to contexts outside a contact centre and that such regular contact with her father be actively promoted and facilitated . It was not , however , in NORP 's interests for residence to be changed in favour of the applicant .

On DATE ORG judge found the mother in flagrant breach of contact orders and committed her to prison for DATE and ordered a section CARDINAL report to be prepared by the local authority . After being sent to prison for DATE , the mother began to comply with contact orders .

On DATE ORG judge found as a fact that the applicant , settled in GPE , had no intention of moving NORP unlawfully to GPE . He noted that the mother had constantly disobeyed contact orders from the court , while the section CARDINAL report showed that NORP enjoyed and benefited from contact . While he accepted that the mother was genuinely anxious about NORP , he ordered that contact be increased to DATE TIME stays . He made a final residence order in favour of the mother .

The mother failed to make NORP available for the first CARDINAL planned sessions , alleging continued concern that the applicant had not handed in his passport . Following another application for committal by the applicant , the mother complied , allowing TIME contact visits at the applicant 's home which took place in DATE . NORP then refused to attend further visits . The independent social worker reported that the mother was saying little to reassure NORP or to encourage her to go , failing , in particular , to counter NORP 's guilt about leaving her alone . An agreement was reached in court that the mother would make NORP available for contact outside GPE police station . An incident appears to have taken place on or around DATE outside the police station , where NORP witnessed her parents ' hostility to each other and her mother crying . Contact visits were again discontinued , apparently as NORP was objecting . The applicant issued a further notice of application for committal proceedings against the mother . On unspecified dates he also made further applications for contact and renewed applications for residence .

On DATE the judge ordered the case to be transferred to ORG .

On DATE a ORG judge made directions for the proceedings , ordering indirect contact with the child by DATE cards and letters .

On DATE the consultant psychologist recommended that the mother receive therapy to cope with her anxiety and parenting attitudes and that a ORG ( Children and ORG ) officer be appointed to mediate and work constructively with the parties on NORP 's behalf .

On DATE , a ORG judge drew up a schedule of contact and directed that a consultant family therapist be instructed to undertake systemic family therapy with the parties , with emphasis on contact issues . It was later reported that the therapist concerned stated that he was unable to undertake the work required and that there were difficulties in finding any other service that could .

CARDINAL attempts were made in DATE to facilitate contact between the applicant and NORP , but NORP refused to accompany the independent social worker . No contact visits took place .

On DATE the ORG appointed a guardian for the child .

On DATE the independent social worker reported that NORP was settled with her mother and had not suffered any emotional or psychological damage and that residence should not be changed . She noted that NORP was refusing to see the applicant now and considered that attempts at enforcing direct contact would place her in danger of significant emotional harm , since she now viewed the applicant negatively and with fear . Any contact would have to be indirect for the near future .

On DATE a ORG judge ordered indirect contact and a psychiatric report on the mother . A programme of indirect contact facilitated by the independent social worker commenced on DATE . This involved a session of TIME a fortnight in which the social worker met with NORP and the mother and a letter from the applicant was delivered . CARDINAL out of CARDINAL planned sessions occurred due to the mother 's unavailability . The independent social worker withdrew as she believed the mother was not committed .

On DATE the psychiatrist reported that the mother was not suffering from any personality disorder or current depression , and that her current stress and anxiety symptoms would benefit from a course of anxiety / stress management , but that these did not pose a problem to her meeting NORP 's needs .

In a report dated DATE , the consultant psychologist reported that NORP now showed signs of having suffered emotional harm . She had now become aware that she was the centre of her parents ' battle , was increasingly distressed by attempts to encourage contact and was demonstrating anxiety . She also noted that the applicant 's position had become as entrenched as the mother 's and he had shown limited insight into NORP 's feelings . The applicant 's relationship with NORP had been seriously jeopardised by the incident in DATE and NORP 's image of him was negative ( angry , aggressive and potentially threatening and anxiety - provoking ) . Consequently , she was likely to continue to resist direct contact , and indirect contact was the only option , with a view to initiating possible interest in future direct contact .

On DATE the High Court judge ordered fortnightly indirect contact to be facilitated by the guardian who reported that the parents cooperated with her proposals and suggestions .

On DATE the guardian reported that NORP was adamant that she did not wish to see the applicant , that her physical needs were well met by her mother but her emotional needs had not been met due to her mother 's failure to promote regular and consistent contact , that NORP 's responses to the attempts to promote contact demonstrated an escalation of her resistance to contact and increasing distress , and that it was apparent that she had internalised the feelings of hostility that the adults had displayed to each other and did not feel secure enough to see her father despite support and encouragement . The guardian did not consider that anything could be done in the short term to alleviate the level of anxiety and distrust displayed by NORP when her father was discussed . She concluded that NORP should remain with her mother , as any change in residence would cause her considerable disruption and further emotional harm .

On DATE Mr ORG considered the prospects of contact . He noted that the last contact visit had been in DATE and that the applicant had last seen NORP in DATE and that it had to be said , clearly and firmly , that the blame for the present unhappy situation lay primarily , indeed overwhelmingly , at the mother 's door . Reviewing the breakdown of visits in DATE , he found that the mother had sabotaged the sessions which had previously been successful . It was obvious that , even if she was not actively poisoning NORP 's mind , she was wholly unable to conceal her own antipathy and hostility to the idea of contact . As regards the incident on DATE , where the applicant had behaved most foolishly , he considered that it was the mother 's constant sabotage of contact that had goaded him beyond endurance and that she had behaved no better than he had . The mother had also conspicuously failed to cooperate in the indirect contact attempts , professing herself unable to persuade NORP to write even the shortest card to her father : the judge did not think that she had even tried . It was also clear that NORP had regularly been subjected to negative statements about her father by the mother and other members of the mother 's family . He concluded that NORP had suffered emotional harm due to the mother 's failure to allow her to develop a proper relationship with the applicant but , although she had not yet suffered significant harm , she probably would in the future . This harm was caused by the mother . He had no doubt that NORP 's best interests required her to go on living with her mother but at the same time enjoying a proper and rewarding relationship with her father .

“ It is a tragedy for NORP that she can not have such a relationship with her father . If she does not have a proper relationship with her father – a father who it is obvious has much to offer his daughter and whose company she thoroughly enjoys – then NORP is likely to grow up as a damaged child , a damaged adolescent and , in time , a damaged adult .

There are times when a judge ... has to speak plainly , indeed brutally , if his message is to be understood . The tragedy which lies ahead for NORP is that mother may , although of course without any intention of doing so , end up wrecking her daughter 's life . The tragedy which lies ahead for mother is that the time may come when NORP blames mother for denying her a relationship with her father and turns against mother ... ”

He decided to adjourn the applicant 's application for residence so that CARDINAL final attempt could be made to establish contact , both indirect and direct . He warned the mother that , if she still could not facilitate contact , the applicant would inevitably restore his application for residence and she should realise that there was a very real chance that the court would be compelled to remove NORP from her care , as in the applicant 's care NORP would be able to continue to see both her parents . He considered that the mother had shown herself largely impervious to the threat of imprisonment and appeared willing to pay that price ; however , her avowed fear of losing her daughter would become a horrible reality if she did not promote contact in the future . He ordered that the burden be lifted from NORP 's shoulders ; that NORP be informed that contact would take place and that a tightly structured approach to contact leading to direct contact within DATE be adopted . The parties agreed to the detailed order , which provided for review in DATE .

The case was reviewed by the court on DATE .

On DATE the guardian reported on the progress of work . The mother , despite initial reluctance , had attended CARDINAL sessions on the subject of contact and had been following advice on reintroducing the subject of contact with NORP , delivering gifts and reading out letters , and maintaining a firm approach when NORP was negative . A first direct contact visit was planned to take place in the presence of the mother and her new partner and other children in a bowling alley . However , on DATE concerned , CARDINAL DATE , when the social worker arrived , NORP remained in her room , screaming and refusing to dress or come down . The contact was cancelled . NORP later refused to see the social worker .

On DATE the case was reviewed by the court . Mr ORG ordered that the applicant 's application for contact and restored application for residence be listed for final hearing in DATE .

In her report of DATE , the guardian reported that NORP had refused to talk to her but that it was clear that she was distressed when the issue of contact was raised and that she had stated that she did not wish to have contact . She was unable to make any further suggestions regarding the promoting of contact and was of the view that the mother had , this time , attempted to promote contact to the best of her ability . She did not recommend any change in residence .

On DATE the case came back before Mr ORG , who reviewed the attempts at renewing contact and approved a consent order . He had no doubt that the guardian and the independent social worker had done everything possible to resume contact , though it was now impossible to say if they could have achieved more if they had been brought in earlier . The situation was now all too clear and the experts were unanimous that there was no alternative to leaving NORP with the mother . As a result , he noted that the applicant “ bravely but realistically ” withdrew his applications for residence and direct contact . He approved the consent order drawn up by the parties , which contained , inter alia , the mother 's undertaking to promote a positive image of the applicant and provided for indirect contact as specified in the appendix and allowed such direct contact as might be later agreed between the parties or as the child wished . He made remarks urging the applicant to persevere with indirect contact as in time NORP would need him , warning the mother that she had not won a victory but stored up terrible problems for herself in the future . He agreed that the applicant , who had nothing to reproach himself for , was entitled to feel let down by the system and stated that there were lessons to be learned from this : in the public interest he intended to give a judgment dealing with the wider aspects .

His full judgment on this occasion does not appear to have been delivered until DATE .

On DATE Mr ORG issued a further judgment dealing with the wider issues of procedure highlighted by the case . In his judgment of CARDINAL pages , he noted that the case could be seen as exemplifying everything that was wrong with the system . He handed down this judgment in public , with names anonymised , to deal with the failings revealed .

Among other things he emphasised the importance that both parents , residential and non - residential , played in a child 's life and acknowledged that there were cases where mothers deliberately alienated children to prevent contact taking place and where the court process had not proved successful in dealing with them . While mothers and fathers had equal rights before the courts , there were , however , more non - resident fathers than non - resident mothers and when the system failed , as it did , it was disproportionately fathers not mothers who found themselves , as well as the children , victims of that failure . In this case , he criticised : the length of the proceedings ( DATE ) ; the large number of hearings and astonishing number of different judges involved ( namely CARDINAL hearings by CARDINAL different judges ) ; the vast bulk of evidence filed over DATE , CARDINAL pages , a ceaseless proliferation of paper which was the product of delay , as with every adjournment fresh reports were needed in order to keep the case file up to date ; the fact that the final hearing for residence was listed on CARDINAL different occasions in DATE but adjourned , and that CARDINAL dates in DATE and DATE were also adjourned until the final order was made on DATE ; the great delay in the courts making findings in relation to the mother 's wholly groundless allegations which could have been made earlier and some allegations of domestic violence which were never subject to any findings ; the great delay in seeking expert assistance other than the court welfare officer ( the independent social worker had not been involved until DATE , the guardian on DATE ) ; and the characteristic judicial response when difficulties with contact emerged to reduce the amount of contact and replace direct contact with indirect contact . He summarised the problems as being :

( i ) the appalling delays in the court system , exacerbated by the absence of any judicial continuity , seemingly endless directions hearings , the lack of any overall timetable and the failure of the court to adhere to such timetable as had been set ;

( ii ) the court 's failure to get to grips with the mother 's ( groundless ) allegations ; and

( iii ) the court 's failure to get to grips with the mother 's defiance of its orders , and the court 's failure to enforce its own orders .

After reviewing GPE jurisprudence concerning the obligation on authorities to facilitate or enforce access arrangements , he considered that it could not be assumed that conventional domestic approaches met the standards required by ORG CARDINAL and CARDINAL of the LAW , in particular noting that it was almost impossible to see how a DATE timescale as in this case could be compatible with the Convention . He recommended taking steps to divert parents into a non - court process including parent education and contact - focused mediation , concentrating court time and resources on serious cases which required greater judicial input . He also recommended improving court procedures , including a fast - track procedure , the highest practical level of judicial continuity ( not CARDINAL judges at the most ) and case management , the timetabling of cases to final hearing at the earliest practical stage , with not CARDINAL intermediate hearings , to ensure conclusion within DATE rather than DATE and the fixing of a judicial strategy for each case . He also identified the immense value of children 's guardians and the need for skilled social - work intervention , in particular an independent social worker , and recommended that allegations of misconduct be speedily investigated and resolved , not left to fester and cause continuing friction and dispute , and that once findings had been made , the questions were not to be reopened . PERSON , efficient enforcement of court orders was also called for , with direct judicial supervision of contact and the imposition of imprisonment for CARDINAL or DATE could suffice to deter the mother without significantly impairing her ability to look after her children .

“ There are no simple solutions . And it is idle to imagine that even the best system can overcome all problems . The bitter truth is that there will always be some contact cases so intractable that they will defeat even the best and most committed attempts of judges . But that is no reason for not taking steps – urgent steps – to improve the system as best we can .

Whether an improved system would have provided a better outcome for this child and this father is now almost impossible to know . Perhaps it would . Perhaps not . But they were denied the chance of a better outcome and for that they deserve a public , albeit necessarily anonymous , apology . We failed them . The system failed them . ”


Violation of Art. 5-1-e;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is homosexual . In DATE it was discovered that he was infected with the HIV virus and that he had transmitted the virus to a CARDINAL-year - old man with whom he had first had sexual contact in DATE .

In this context , on DATE a county medical officer ( smittskyddsläkaren ) issued the following instructions to the applicant pursuant to the DATE LAW ( smittskyddslagen – “ the DATE LAW ) .

“ [ The applicant ] is not allowed to have sexual intercourse without first informing his partner about his HIV infection . He is required to use a condom . He is to abstain from consuming such an amount of alcohol that his judgment would thereby be impaired and others put at risk of being infected with HIV . If the applicant is to have a physical examination , an operation , a vaccination or a blood test or is bleeding for any reason , he must tell the relevant medical staff about his infection . He must also tell his dentist [ about it ] . Moreover , the applicant is prohibited from giving blood and donating organs or sperm . Finally , he is to visit his consulting physician again and to keep appointments fixed by the county medical officer . ”

It appears to be in dispute whether the instructions were included in the applicant 's medical record as prescribed by LAW . It is not in dispute , however , that the applicant was informed of the instructions , which were issued to him on DATE , both orally and in writing .

The applicant kept CARDINAL appointments with the county medical officer in DATE and CARDINAL in DATE . He also received CARDINAL home visits by the county medical officer . He failed to appear as summoned CARDINAL times during DATE and DATE .

On DATE the county medical officer petitioned ORG ( länsrätten ) for a court order that the applicant be kept in compulsory isolation in a hospital for DATE pursuant to section CARDINAL of LAW .

The court 's record of the applicant 's statement reads , inter alia , as follows :

“ After learning about his HIV infection he had hardly had any sexual relationships . Henceforward he would only have sexual relations with other HIV infected persons . The applicant did not wish to visit the county medical officer or a psychiatrist , but finding his communication with his consulting physician satisfactory he intended to pay the latter DATE visits . ”

The county medical officer stated , among other things :

“ [ The applicant ] may not be sexually active at present , but experience has shown that when the opportunity arises he is likely to have sexual relations , preferably with younger men and without thinking of the consequences . [ The applicant ] refuses to face his situation , does not want to change his conduct and distorts reality in such a way that he is never to blame for anything . In order for [ the applicant 's ] behaviour to change it is necessary for him to consult a psychiatrist . Having regard to his [ resistance thereto ] , the risk of him spreading the disease is obvious . ”

A statement of CARDINAL DATE was submitted to ORG by a deputy chief physician and specialist in psychiatry , ORG , who had met the applicant twice in a psychiatric ward at an infection clinic . He found , inter alia :

“ Having learnt that he was HIV - positive , the applicant reacted with a high level of anxiety , which he attempted to alleviate with alcohol . He has maintained that he drinks CARDINAL strong beers at TIME in order to be able to sleep . He has had periods of extensive [ alcohol ] abuse as a consequence of learning that he was infected with HIV but also when he lost his job . [ The applicant 's ] lack of social contact and his feeling of being an outsider , in combination with possible alcohol abuse , could increase the risk of destructive sexual relations . ”

In a judgment of CARDINAL DATE , finding that the applicant had failed to comply with the measures prescribed by the county medical officer , aimed at preventing him from spreading the HIV infection , ORG ordered that the applicant should be kept in compulsory isolation for DATE pursuant to section CARDINAL of LAW .

The order took effect immediately , but the applicant failed to report to the hospital ; the police accordingly took him there on DATE .

It appears that the order and others subsequently issued by ORG were upheld on appeal by ORG ( kammarrätten ) , so that the applicant 's compulsory confinement was repeatedly prolonged by periods of DATE at a time .

While being isolated the applicant had the opportunity to go outdoors every day together with members of the hospital staff , but not on his own . Also , he was able to accompany staff members on different activities outside the hospital grounds .

The applicant absconded from the hospital several times , first on DATE . The police , whom he had contacted voluntarily , returned him to the hospital on DATE . On DATE he ran away again and was at large until the police found him on CARDINAL DATE . The applicant absconded for a third time on DATE but returned of his own accord on DATE . He ran away for the fourth time on DATE and was not returned until DATE .

During the period from DATE until DATE the applicant was detained in his room .

On DATE the county medical officer petitioned ORG anew for an extension of the applicant 's compulsory isolation . According to the record of a hearing held in camera on DATE , the applicant explained , among other things , the following :

“ ... DATE he had had CARDINAL sexual relations per year . His partners were partly old acquaintances , partly new ones , whom he met in parks and so on . The boy , who was DATE when they met , took the initiative both emotionally and sexually . DATE [ the applicant ] realises that he infected the boy , which he finds very regrettable . A relative with psychiatric problems , with whom [ the applicant ] had had a longer sexual relationship , was likewise the initiator . While he was on the run from [ DATE until [ DATE , he had had no sexual relations . He had taken precautions against spreading the disease and , having had to visit physicians twice during his period at large , on both occasions he had informed them about his HIV infection . Mostly he had kept to himself . From DATE until DATE and from DATE until DATE , he had lived at a farm hostel and , during the periods in between , when the hostel was full , he had camped . He had spent his time shopping , cooking , watching TV , spending money on lottery games and drinking beer . He had drunk approximately CARDINAL strong beers DATE and never got drunk . He dreamt of living on his own in a flat , supporting himself on sickness benefit . He had lost all sexual desire and would in future have to decline all sexual relations . If he were to be exempted from compulsory isolation he would follow the instructions issued by the county medical officer . ”

The owner of the farm hostel gave evidence on the applicant 's behalf . The record of his statement reads , inter alia , as follows :

“ [ The applicant ] , under a pseudonym , had stayed at his farm hostel from DATE until DATE and from DATE until DATE . [ The owner ] had talked briefly with him DATE during those periods . [ The applicant ] had not bothered anybody and had not formed any personal relationships . He used to go shopping once a day , usually for beer , and [ the witness ] would estimate that he had drunk CARDINAL cans of beer every day ... [ The applicant ] had gone to GPE or GPE on a few occasions in order to deal with money matters ... However , in GPE he had primarily gone to the liquor store ... [ The witness ] could hardly imagine that [ the applicant ] had had any sexual relations while living at the hostel ... ”

Also on the applicant 's behalf , an opinion was submitted by a chief physician , PERSON , on DATE regarding the applicant 's alcohol consumption . Having examined various laboratory tests performed since DATE in order to check the applicant 's liver , he found no divergent results . The most recent laboratory test , carried out on DATE , indicated that the applicant had a healthy liver .

It was noted that subsequent to his return the applicant had been in contact with a chief physician and specialist in psychiatry , PERSON , who was not connected to the hospital .

A statement was submitted to the court by a consulting psychiatric chief physician , ORG , connected to the special care facility at the hospital to which the applicant had been admitted . After the applicant 's involuntary return , ORG had attempted to establish contact with him CARDINAL times , but in vain . He claimed that on the latest occasion , in DATE , the applicant had made a lunge at him . In PERSON 's view , the applicant had not made any positive progress since DATE , the date of ORG 's most recent official opinion regarding the applicant 's condition , in which he had , inter alia , made the following assessment :

“ The applicant suffers from a paranoid personality disorder and from alcohol abuse . He is considered to be completely devoid of any sense of being ill and also lacks awareness . The combination of a sexual leaning towards younger men and a possible alcohol - related neuro - psychological functional impairment with , from time to time , a probably paranoid personality disorder , close to psychosis , and previous dangerous behaviour from the infection - spreading viewpoint , is deemed unfavourable . The chances of eliminating or limiting the continuous risk of the infection being spread by means of a prolonged placement in isolation in accordance with the LAW are deemed – all facts considered – to have not yet completely vanished . ”

Also submitted was a statement of DATE by ORG , a psychologist at the special care facility at the hospital who had met the applicant once . ORG found that the applicant was intellectually above average and that he appeared immature and fragile and showed signs of being suspicious and distrustful .

NORP The statement of the county medical officer , who gave evidence before the court , is recorded , inter alia , as follows :

“ During DATE when he was on the run , [ the applicant ] sought medical treatment twice and it has been established that both times he said that he had the HIV virus [ as opposed to the period when he absconded between DATE and DATE , during which he failed CARDINAL times to inform medical staff about his condition ] . Moreover , [ the applicant ] has [ finally ] accepted that he infected the young man with whom he had a long - lasting relationship from DATE , thus admitting that it was not the other way around . Also , he has agreed to sign a treatment plan and to consult CARDINAL physicians of his own choice ... These circumstances suggest the beginning of an improvement in [ the applicant 's ] attitude towards treatment . Nevertheless , it has not been established that [ the applicant ] has materially changed his attitude regarding the risk that he may spread the disease . He continues to show himself unable to accept the aid and support measures he is entitled to receive ; he has refused to consult the psychiatrist PERSON and the psychologist PERSON Moreover , having been in touch with the physicians whom [ the applicant ] has [ recently ] contacted voluntarily [ GPE and GPE ] , the county medical officer considers that these consultations were partly economically motivated [ on account of the fact that the applicant needed medical certificates in order to continue to receive sickness benefit ] , partly motivated by his wish to be declared mentally healthy , but [ not motivated ] by any willingness to commence treatment . During [ the applicant 's ] contact with the doctors in question , they did not discuss the risk of spreading the disease at all . A treatment plan was not formally signed [ by the applicant ] . In conclusion , in the county medical officer 's opinion , [ if released the applicant ] will not voluntarily comply with the instructions given or limit the spreading of the disease . ”

As regards the laboratory tests concerning the applicant 's liver , the county medical officer found these to be of doubtful value , since they had been performed in connection with the compulsory isolation of the applicant at the hospital , but never in connection with a period of intoxication .

On DATE ORG delivered its judgment , finding against the applicant for the following reasons :

“ [ The applicant ] is HIV - positive and thus carries the HIV infection . He has been subjected to compulsory isolation since DATE and has during this period absconded from the hospital on several occasions – on the latest occasion for DATE . During DATE he did not have any contact with the county medical officer or the consulting physician . Periodically he has used a false name and has been living a very secluded life , obviously owing to the risk of being discovered . A life at liberty makes great demands upon the person carrying the infection . During the time preceding his compulsory isolation , [ the applicant ] was not able to follow the practical instructions issued . Subsequently , he has consistently declined the help offered by the consulting physician and the psychiatrist at the special care facility at the hospital and has instead responded with aversion and mistrust – and by escaping . [ The ORG ] finds that it has been difficult for [ the applicant ] to accept the information regarding the HIV infection and that he needs help in dealing with this critical situation . It appears from the evidence that [ the applicant ] still shows aversion to the treatment offered and that he is considered likely to abscond . [ The ORG ] has not been convinced that [ the applicant ] is not misusing alcohol and finds that , especially in connection with alcohol consumption , [ the applicant ] is likely to be unable to control his sexual behaviour . Against this background , [ the ORG ] finds that there is good reason to suppose that , if he remains free , [ the applicant ] will not comply with the practical instructions issued and that this entails a risk of the infection spreading . ”

On DATE the applicant again absconded , leaving his whereabouts unknown . In the meantime , he had appealed against the above judgment to ORG , before which he relied on an opinion of CARDINAL DATE by the aforementioned chief physician and specialist in psychiatry , GPE , which stated , inter alia , the following :

“ The opinions [ by other psychiatrists and CARDINAL psychologist ] resulting from previous examinations were fairly unanimous in their conclusion that [ the applicant ] was a man with a paranoid personality disorder , who misused alcohol . ' ORG ' in psychiatric terms is defined as a maladaptive use of substances ... This diagnosis is to be distinguished from alcohol dependency , which means a compulsive use of alcohol with abstinence and social complications , and is more difficult to master . The diagnosis ' paranoid personality disorder ' is defined as a pervading suspiciousness and lack of trust in other people , whose motives are consistently perceived as malicious . It follows from the definition of ' paranoid personality disorder ' itself that this is manifest in the patient 's personality from the time he or she becomes an adult . Owing to the fact that the person in question perceives the disorder as part of his or her own self , the motivation for change is usually insufficient . It is not correct to talk in terms of lack of awareness of a disease , since it is not considered that a disease is involved but rather a variation in personality , although the latter may well cause complications in relations with other individuals and society . When such complications occur , an individual with a personality disorder may display different symptoms such as depression , anxiety , etc . In [ my ] interview with [ the applicant ] , the latter was fairly open and talkative . When he talked about experiences from his time at school , he displayed different emotions . He also showed empathy as far as other people from DATE were concerned . He was also partly able to shoulder responsibility for his own mistakes , without blaming others . However , he was very rigid in his interpretation of what had occurred in his adult life and particularly the events of DATE after he had been informed that he had the HIV virus in DATE . His attitude towards the county medical officer and the staff at the infection ward , whom he believed had kept harassing him unjustly , was almost hateful . [ The applicant ] felt that he had been subjected to persecution DATE . This could possibly be interpreted as a symptom of delusion . From DATE , he had not experienced feelings of persecution , inter alia since he had secured his own liberty . With regard to sexual relations , [ the applicant ] has stated that he preferred sexual contact with boys around DATE . He was not interested in pre - pubescent boys . He had been celibate since DATE and had no longer any particular sexual desires or fantasies . He was fully aware that he was carrying the HIV virus and was careful to stress that he was not afraid to die . His attitude towards medication against the HIV infection was negative . The reasons for this were that such medication could have side effects and perhaps , above all , because it would entail limitations on his freedom since he would be subjected to various check - ups . [ The applicant ] spontaneously expressed a wish to have further talks on a voluntary basis . When asked whether such talks could be part of a treatment plan in cooperation with the county medical officer and the staff at the infection ward , he answered ' no ' , the reason being that he would feel ashamed of himself if he were to give up this fight . ”

In conclusion , PERSON , found that the applicant fulfilled the criteria for a paranoid personality disorder , and that , judging from previous information , the applicant suffered from misuse of alcohol but not from alcohol dependency . According to PERSON the applicant could be described in everyday terms as an odd person , but not as mentally ill . With regard to the risk that the applicant might pass on the HIV infection to other persons , PERSON believed that neither he nor anyone else could do anything but guess . The weightiest indications in this regard , however , ought to be deduced from the applicant 's behaviour during DATE he had spent at large .

NORP In a judgment of DATE , ORG found against the applicant . Leave to appeal against the judgment was refused by ORG ( Regeringsrätten ) on DATE .

Several applications for an extension of the applicant 's compulsory isolation were submitted by the county medical officer after DATE and granted , until on DATE an application was turned down by ORG , which referred to the fact that the applicant 's whereabouts were unknown and that therefore no information was available regarding his behaviour , state of health and so on .

It appears that DATE the applicant 's whereabouts have been known , but that the competent county medical officer has made the assessment that there are no grounds for the applicant 's further involuntary placement in isolation .

The DATE LAW ( “ the DATE LAW ) divides infectious diseases into diseases dangerous to society and other infectious diseases . CARDINAL of the diseases described as dangerous to society is the infection by the human immunodeficiency virus ( HIV ) . The relevant provisions of LAW read as follows :

“ Each county council [ landsting ] shall be responsible for ensuring that the necessary measures for the prevention of infectious diseases are taken within its area ... ”

“ Every county council shall have a county medical officer ... ”

“ It shall be the duty of any person having reason to suspect that he has been infected with a disease dangerous to society to consult a physician without delay and to allow the physician to carry out examinations and to take any specimens needed in order to establish whether he has been infected with such a disease . It shall also be his duty to comply with the practical instructions issued to him by the physician . The same shall apply when a person , having been infected with a disease dangerous to society , states that he has been in contact with some other person in such a way that the infection may have been transmitted . ”

“ Any person infected with a disease dangerous to society must supply the consulting physician with information concerning the person or persons from whom the infection may have come or to whom it may have been passed on , and must supply general particulars concerning the possible source of the infection and where it may have been spread further . ”

“ The consulting physician shall issue to a person being examined for a disease dangerous to society any practical instructions needed to prevent the spread of the infection . These instructions may refer to that person 's contact with the physician , hygiene , isolation in the home , employment and attendance at educational establishments , as well as his general way of life . The instructions shall be included in the infected person 's medical record . The physician must as far as possible see to it that the instructions are complied with . ”

“ At the request of the individual concerned or of his own motion , the county medical officer may alter the instructions in the manner he finds most appropriate . ”

“ A consulting physician having reason to believe that a patient infected or suspected of being infected with a disease dangerous to society will not comply , or is not complying with the practical instructions issued , must promptly notify the county medical officer . This shall also apply when such a patient discontinues his current treatment without the consent of the consulting physician . ”

“ ... Before resorting to any coercive measure , the county medical officer must try to obtain voluntary compliance if this can be done without the risk of the infection being spread . ”

“ A county medical officer who has been informed by a consulting physician that a patient carrying the HIV infection has not complied , or is suspected of not complying , with the practical instructions issued shall notify the social welfare committee , the police authority and the principal probation officer . In doing so he shall supply particulars concerning the identity of the person to whom the practical instructions apply and the implications of those instructions . No information shall be supplied if the county medical officer believes this unnecessary in order to secure compliance with the practical instructions or otherwise finds it immaterial with regard to the prevention of communicable disease . ”

“ ORG , on being petitioned by the county medical officer , shall make an order for the compulsory isolation of a person infected with a disease dangerous to society if that person does not voluntarily comply with the measures needed in order to prevent the infection from spreading . An order of this kind shall also be made if there is reasonable cause to suppose that the infected person is not complying with the practical instructions issued and this omission entails a manifest risk of the infection being spread . Compulsory isolation shall take place in a hospital run by a county council . ”

“ If a compulsory isolation order by ORG can not be awaited without danger , the county medical officer shall issue an order of the kind referred to in DATE . The order issued shall thus be submitted immediately to ORG for approval . ”

“ Compulsory isolation may continue for DATE from the day on which the infected person was admitted to hospital under the isolation order . ”

“ Following a petition from the county medical officer , ORG may order the continuation of compulsory isolation beyond the maximum period indicated in section CARDINAL . An order of this kind may not exceed DATE at a time . ”

“ When there is no longer cause for compulsory isolation , the county medical officer shall order its termination immediately ... ”

“ A person in compulsory isolation shall be properly cared for . He shall be offered the support and help needed , and shall be encouraged to change his attitude and way of life in order to terminate his involuntary confinement . Subject to the provisions of this LAW , a person in compulsory isolation may not be subjected to any other restriction of his liberty . A person in compulsory care shall be offered employment and physical training suitable for his age and state of health . Unless there are exceptional circumstances , he must have an opportunity to be outdoors every day for TIME . ”

“ A person in compulsory isolation may be prevented from leaving the hospital LOC or that part of the hospital to which he is admitted , and may in other respects be subjected to such constraints on his liberty of movement as are necessary to ensure his compulsory isolation . His freedom of movement may also be restricted when considerations of his own safety or that of other persons so demand . ”

“ Appeals against a decision by the county medical officer under LAW may be lodged with ORG if the decision concerns :

practical instructions under LAW ;

NORP temporary detention under section CARDINAL ;

rejection of a request for the termination of compulsory isolation ;

There is no particular provision in the LAW concerning criminal sanctions against a person who transmits a dangerous disease . Certain types of behaviour , however , are considered to be criminal and therefore fall under LAW .

In DATE a parliamentary committee entrusted with the task of reviewing the present legislation concerning infectious diseases submitted its report ( ORG ) . The committee expressed the view that compulsory isolation should take place only in very particular and exceptional circumstances . The committee proposed , having regard , among other things , to LAW , a fixed time - limit permanently ending any compulsory isolation after a maximum of DATE . So far , no government bill has been presented to ORG .

Numerous charters and declarations which specifically or generally recognise the human rights of people living with HIV / Aids have been adopted at national and international conferences . A few of these are mentioned below .

In DATE ORG ( ORG ) and ORG Programme on HIV / Aids ( UNAIDS ) issued “ International Guidelines on HIV / Aids and Human Rights ” . These guidelines built on expert advice to integrate the principles and standards of international human rights law into the HIV / Aids response . Under the heading “ III . International human rights obligations and HIV / Aids ” ( subheading “ C. The application of specific human rights in the context of the HIV / Aids epidemic ” ) , several examples of the application of specific human rights to HIV / Aids are illustrated . For example , Section CARDINAL , “ Right to liberty and security of person ” reads as follows :

“ CARDINAL . Article CARDINAL of LAW provides that ' Everyone has the right to liberty and security of person . No one shall be subjected to arbitrary arrest or detention . No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law ' .

The right to liberty and security of person should , therefore , never be arbitrarily interfered with , based merely on HIV status by using measures such as quarantine , detention in special GPE , or isolation . There is no public health justification for such deprivation of liberty . Indeed , it has been shown that public health interests are served by integrating people living with HIV / Aids within communities and benefiting from their participation in economic and public life .

NORP In exceptional cases involving objective judgments concerning deliberate and dangerous behaviour , restrictions on liberty may be imposed . Such exceptional cases should be handled under ordinary provisions of public heath , or criminal laws , with appropriate due process protection .

Compulsory HIV testing can constitute a deprivation of liberty and a violation of the right to security of person . This coercive measure is often utilised with regard to groups least able to protect themselves because they are within the ambit of government institutions or the criminal law , e.g. soldiers , prisoners , sex workers , injecting drug users and men who have sex with men . There is no public health justification for such compulsory HIV testing . Respect for the right to physical integrity requires that testing be voluntary and that no testing be carried out without informed consent . ”

In order to reflect new standards in HIV treatment as regards the international law on health rights , Guideline CARDINAL concerning “ Access to prevention , treatment , care and support ” was revised following ORG on HIV / Aids and Human Rights in GPE on DATE .

In its Recommendation on the ethical issues of HIV infection in the health care and social settings , ORG recommended the following with regard to health controls ( Appendix to Recommendation No . R ( CARDINAL ) CARDINAL , ORG heath policy , ORG controls ) :

“ Public health authorities are recommended to :

– refrain from introducing restrictions on freedom of movement through ineffective and costly border procedures , for travellers of all kinds , including migrant workers ;

– not resort to coercive measures such as quarantine and isolation for people infected with HIV or those who have developed Aids . ”

When this recommendation was adopted on DATE , ORG , referring to LAW of the meetings of ORG , recorded her abstention and , in an explanatory statement , said that her government would not consider itself bound by the recommendation .


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

The respondent Government are represented by their Agent , PERSON of ORG .

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

In DATE a new concept called “ tax asset stripping cases ” ( selskabstømmersager ) came into existence in GPE . It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period , and for the sake of their own profit , “ stripping ” the companies for assets , including deposits earmarked for payment of corporation tax . Often the persons involved systematically acquired the inactive , solvent companies for the companies ' own fund . The persons involved were usually intricately interconnected and collaborated about their economic criminal activities , which concerned very large amounts . According to surveys made by the customs and tax authorities , CARDINAL companies with a total tax debt exceeding MONEY ( ORG ) were stripped in the period from DATE until DATE . Following a number of legislative amendments , the trade in inactive , solvent companies largely ceased in DATE .

On DATE the tax authorities sent a letter to the police in GPE and requested assistance to investigate a case of tax asset stripping involving CARDINAL NORP nationals . The preliminary investigation , which was undertaken in secret , began in DATE and revealed that the applicant and many other NORP nationals were also involved .

Behind closed doors and thus unknown to the applicant , on DATE ORG in GPE ) , henceforth referred to as ORG , granted warrants to the police to search the premises of the applicant , but also those of a number of banks , accountants ' firms , law firms and companies that had been used by the applicant and others in relation to the tax asset stripping .

On DATE the applicant was arrested and charged with tax asset stripping of CARDINAL companies in the period DATE . At the same time the police carried out a search at his LOC in accordance with the above court order . The applicant was released DATE .

ORG issued a discovery order on DATE with regard to a specified bank and its documents relating among others to the applicant .

Subsequently , on DATE the applicant was arrested anew , still charged with tax asset stripping relating to CARDINAL companies . Also , his premises were searched anew . Subject to court orders , the applicant was detained on remand in the period from DATE until DATE when , on appeal , ORG of Eastern Denmark ( PERSON Landsret ) , henceforth referred to as ORG , released him stating that there was no reason to suspect that he would be able to hamper the on - going investigation if set free .

In the period from DATE until DATE ORG issued numerous search warrants and discovery orders concerning banks , lawyers , state - authorised public accountants , credit card companies and other companies .

Thus , court orders relating to the above residing in GPE were issued by ORG on DATE , DATE and DATE ; on DATE , DATE and CARDINAL DATE ; on DATE and CARDINAL DATE ; and on DATE .

Court orders relating to the above residing outside GPE and corresponding international letters of request were issued by ORG on DATE as to a number of companies on GPE and in GPE ; on DATE as to a credit card company in GPE ; on CARDINAL DATE as to CARDINAL banks in GPE in LOC ; on DATE as to a bank and a company in GPE ; and on DATE as to a bank in GPE .

In the same period , as part of their investigation , the NORP police also required assistance from various individuals and institutions in GPE , GPE , GPE , GPE and GPE .

Furthermore , in order to assist the police in processing the material obtained from the searches and the discovery orders a firm of stateauthorised public accountants was hired to untangle the intricate corporation structures and ownership structures of the companies , as well as the problems of tax technicalities posed by the case and the CARDINAL of financial transactions . Hence , in the period from DATE until DATE audit reports were drawn up for each of the CARDINAL companies that had been stripped of their assets as well as an additional number of companies that had been used as intermediaries and buyers and a seemingly fictitious bank registered in GPE . The accountants also made a statement on financial transactions concerning the companies involved .

In the meantime , by judgment of CARDINAL DATE ORG convicted the CARDINAL NORP nationals , who in DATE had been reported to the police by the tax authorities . They were both convicted in accordance with their confessions and sentenced respectively to DATE imprisonment .

In DATE the public prosecution informed ORG that an indictment in the applicant 's case was expected to be ready in DATE . At the same time it was emphasised that the CARDINAL NORP nationals , who had been convicted by ORG , were to be heard as witnesses on the prosecution 's behalf . Accordingly , in order to avoid issues of impartiality , the presiding judge of ORG in a letter of CARDINAL DATE requested the President of ORG to appoint a substitute judge in the case against the applicants and the co - charged . The presiding judge of ORG pointed out that dates for the hearings needed to be scheduled as soon as possible , and that it should be taken into account in this respect that each of the CARDINAL defendants had their own chosen counsel , some of whom were already busy with other cases in DATE to come .

In DATE , ORG ( with a substitute judge appointed ) , the public prosecutor , counsel for the applicant and counsel for the CARDINAL cocharged agreed on provisional dates for scheduling court hearings .

As the trial would take up a lot of space , ORG had to rent suitable facilities to accommodate all the persons involved and all the documents . In DATE ORG signed a lease contract for appropriate facilities which , however , needed to be refurbished before the trial could begin .

By indictment of DATE , submitted to ORG , the applicant was indicted inter alia pursuant to section CARDINAL , subsection CARDINAL ( CARDINAL ) cf . section CARDINAL , subsection CARDINAL , and cf . section CARDINAL of seventytwo counts of fraudulent preference of a particularly aggravated nature involving tax asset stripping of CARDINAL companies , having been committed in collaboration with the CARDINAL coaccused and others .

Pre - trial reviews were held on DATE , DATE and DATE , during which it was decided inter alia that the trial commence on DATE and that DATE each week should be scheduled for the trial . CARDINAL court hearings were fixed for the period from DATE until DATE ; CARDINAL hearings were fixed for DATE ; and CARDINAL hearings were fixed for the period from DATE until DATE , reserving DATE for closing speeches . Also , ORG appointed back - up counsel for the applicant and the co - accused .

Another pre - trial review was held on DATE . Furthermore , during DATE and DATE , procedural questions were determined e.g. as to whether CARDINAL audit reports and various other reports concerning the financial transactions of the companies and persons involved were admissible as evidence during the trial . This was answered in the affirmative by ORG on DATE , a decision that was upheld on appeal by ORG on DATE , and by ORG ( Højesteret ) on DATE . A decision of CARDINAL DATE , according to which ORG judge did not have to vacate his seat on the bench due to disqualification , was upheld on appeal by ORG on DATE .

The proceedings began as planned before ORG on DATE .

Thereafter approximately CARDINAL court hearings took place DATE , except from DATE when the parties involved took DATE . Altogether , CARDINAL whole court days were used before ORG for the trial , including DATE of pre - trial review .

In DATE additional dates for hearings to be held during DATE were scheduled . On DATE dates for CARDINAL additional hearings were scheduled for DATE , and DATE additional hearings for DATE .

In DATE , ORG allowed that CARDINAL of the co - accused change counsel , provided that such would not entail any delay of the trial . Also , ORG stated that the trial had to be brought to an end within the dates previously scheduled and that no extension would be permitted .

In the period from DATE until DATE , the applicant , the CARDINAL coaccused , and CARDINAL witnesses were heard , including CARDINAL state - authorised public accountants , who gave evidence over DATE in which they collaborated on the audit reports , etc . In addition , statements of accounts and a considerable amount of other documentary evidence were presented about e.g. corporate structures involving NORP and foreign companies and money transactions in NORP and foreign banks .

Each exhibit for the case took up CARDINAL ACARDINAL binders and contained MONEY pages of documentary evidence , including the CARDINAL audit reports concerning the solvent companies that had been stripped of their tax assets and CARDINAL audit reports concerning companies used for emptying the solvent companies and a statement of financial transaction .

On CARDINAL , DATE And DATE the public prosecutor gave his closing speech . Counsel for the applicant gave his closing speech on CARDINAL DATE . Counsel for the CARDINAL co - accused gave their closing speeches on CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE .

On DATE a hearing was held at which the applicant and the coaccused were given an opportunity to make a statement . The proceedings were then adjourned pending ORG deliberations .

The court records of the proceedings ran to CARDINAL and CARDINAL pages .

By judgment of DATE , which ran to CARDINAL pages , ORG convicted the applicant of inter alia tax assets stripping in respect of the said CARDINAL counts of the indictment . The court found that the applicant was CARDINAL of the principal offenders and that he had been involved with tax asset stripping concerning an amount of MONEY equal to MONEY CARDINAL . He was sentenced to DATE imprisonment . In addition , for an indefinite period , he was deprived of his right to establish or to become manager and/or member of a director 's board in a private limited company , or in a company or an association which would require public approval .

By the same judgment CARDINAL of the coaccused were convicted and CARDINAL of them acquitted .

As to the length of the proceedings ORG stated as follows :

“ The [ applicant and the co - accused ] were charged in the period from DATE , and prosecution was initiated by indictment of DATE . The trial started in DATE .

There is no basis for establishing that the investigation has been unnecessarily inactive during any period , nor is there any reason to criticise the scope or length of the investigation in view of the nature and magnitude of the case . Thus , there is no violation of LAW .

However , when imposing the sentence ORG stated :

“ Although the public prosecution can not be blamed for the length of the proceedings , nevertheless , in metering out the sentence the court has taken into consideration the strain inflicted on [ the applicant and the co - accused ] , due to the fact that the proceedings have extended over so many years ” .

On DATE the applicant appealed against the judgment to ORG and LAW cross - appealed on DATE . The judgment was also appealed against by CARDINAL of the co - accused , in respect of whom the public prosecution served a cross - appeal during DATE and DATE .

On DATE the ORG appointed back - up counsel for the applicant and the co - accused during the appeal proceedings and in agreement with the parties scheduled a pre - trial review to take place on DATE . According to the court records of DATE , ORG tried to commence the hearings in DATE , but that this was not possible as several of the counsel chosen by the co - accused had to appear as counsel in other prolonged proceedings . They were therefore unable to attend the appeal proceedings until DATE . This also applied to CARDINAL of the applicant 's counsel , who could not attend the appeal proceedings because he had to appear for the defence in CARDINAL other comprehensive criminal proceedings which would take up DATE in the period from DATE until DATE . In addition , he had to attend a number of hearings in other less comprehensive cases in the same period . Thus , the proceedings were scheduled to begin on DATE and , at the request of the parties involved , ORG fixed CARDINAL hearings to take place . In the meantime practical and procedural matters were dealt with e.g. , in respect of the latter , ORG intention to lift a prohibition against disclosure of names .

The trial commenced on DATE , and thereafter CARDINAL court hearings took place DATE .

On DATE ORG requested that the proceedings against CARDINAL of the co - accused be separated for a special hearing and that a judgment to acquit him be passed immediately because some conditions of ORG relating to the indictment had not been satisfied . ORG passed judgment accordingly .

On DATE CARDINAL of the co - accused withdrew his appeal . As ORG withdrew his cross - appeal ORG dismissed the case as to this co - accused .

On DATE the prosecution submitted an amended indictment of DATE . Notably , the description of the time of the alleged crime was changed from periods into exact dates in each count of the indictment , and CARDINAL sentence was inserted as to the counts concerning aggravated debtor fraud so that not only the loss actually caused by the applicant was included , but also the obvious risk of a loss that he had inflicted the private limited companies . Furthermore , the prosecution withdrew CARDINAL counts of the indictment . Counsel for the applicant and the co - accused claimed dismissal or further corrections of the amended indictment , which was dismissed by ORG on DATE .

In the period DATE and DATE the proceedings were adjourned due to illness on behalf of CARDINAL of the co - accused .

On DATE the case was set down for judgment .

In the period DATE and DATE , altogether CARDINAL court hearings were held , during which the applicant , the coaccused and witnesses were heard , including CARDINAL of the stateauthorised public accountants . In addition , audit reports , statements of accounts and a considerable amount of other documentary evidence were presented .

By judgment of DATE , which ran to CARDINAL pages , the applicant was convicted in accordance with the indictment of DATE , but for CARDINAL counts , including the CARDINAL counts that the prosecution had already withdrawn . Thus , the applicant was found guilty of CARDINAL counts , in which the total sum of unpaid taxes amounted to approximately DKK CARDINAL equal to CARDINAL .

The sentence was increased to DATE imprisonment and the deprivation of his right to become manager etc . was confirmed . As to the length of the proceedings ORG stated :

“ The acquisitions of the CARDINAL companies originally comprised by the indictment took place from DATE until DATE . In DATE [ the applicant ] and [ CARDINAL of the co - accused ] were charged with fraudulent preference in relation to the acquisition of CARDINAL inactive , solvent companies which had made claims against the tax authorities for payments of tax compensation of just over DKK MONEY . A report was lodged with the police in DATE . The indictment was drafted in DATE , ORG trial commenced in DATE , and judgment was passed on DATE . ORG trial commenced in DATE after a pre - trial review had been held with the then CARDINAL counsel in DATE .

Although proceedings lasting DATE in a criminal case must be considered , in principle , as a violation of the right to a “ hearing within a reasonable time ” afforded by LAW , no violation is found to have occurred in this case in respect of any of the defendants . [ When reaching this ] decision it has been found of importance that the case turned out to involve a far larger number of company acquisitions than originally assumed , that the company acquisitions took place by means of a large number of companies , both as intermediaries and as buyers , that the various tax elimination initiatives made it necessary for ORG to gather [ information on ] and elucidate a large number of intricate corporate structures , several of which were domiciled in or connected with foreign , sometimes exotic tax havens where investigation had to be made , and that consequently extremely comprehensive audit work was required to elucidate each individual company 's money transactions , which were normally pure book entries without any real content . It can not be attached importance that the ORG proceedings lasted DATE and at that time concerned CARDINAL defendants , as the relevant crime was a new form of complex economic crime involving examination of a considerable number of witnesses and production of substantial documentary evidence , and each defendant 's role in the group had to be clarified . Moreover , no inactive periods are found to have occurred during the proceedings ” .

When metering out the sentence ORG stated :

“ ORG ... has taken into account that [ the case ] concerns aggravated and systematic offences against property involving very substantial amounts and committed by several offenders jointly under cover of highly non - transparent transactions . The length of the time elapsed since the offences were committed has also been taken into account . In view of the nature and the scope of the offences , ORG has found no basis for suspending the sentences imposed in full or in part . ”

The applicant 's request of DATE for leave to appeal against the judgment to ORG was refused by the Leave to Appeal Board ( Procesbevillingsnævnet ) on DATE .


Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON in LOC of GPE .

NORP In DATE the applicant , formerly an engineer in a public company , was made redundant . On DATE she was registered in FAC .

As the unemployment allowances were paid to the applicant after a substantial delay and , as she believed , their calculation was not correct , in DATE she sued ORG for the allowance arrears , adjusted for inflation , and interest thereon .

On DATE the Norilsk ORG of the Krasnoyarsk Region allowed the applicant 's claims in part . It awarded her MONEY ( RUR ) for arrears and ORG for the indexation of the arrears to take account of inflation . Basing its award on LAW of GPE the court also granted the applicant ORG as interest on belated payments .

On DATE the applicant lodged an appeal , arguing that the claims rejected by the first - instance court should have been granted .

On DATE FAC lodged an appeal . It claimed that labour legislation did not provide for an interest on unemployment allowances and therefore requested that the judgment in this part be quashed .

On DATE the Norilsk ORG filed an appeal ( protest ) against the judgment , exercising his power under LAW . He submitted that the first - instance court had erroneously applied provisions of civil law to labour law relations and therefore unlawfully granted interest on belated payments in the applicant 's favour . In his view , no interest was payable in respect of belated unemployment allowances , thus he requested ORG to quash the judgment in this part . The Prosecutor also supported the part of the judgment which rejected the remainder of the applicant 's claims .

A copy of the prosecutor 's protest was served on the applicant on DATE , and she submitted her objections on DATE .

Having examined the appeals and the prosecutor 's protest and having heard the judge - rapporteur and the prosecutor , on DATE ORG upheld the arguments made by ORG and the prosecutor . Finding that LAW was not applicable in the sphere of unemployment benefits , it quashed the first - instance court 's judgment in the part granting the applicant FAC as interest on belated payments .

The applicant 's attempts to institute supervisory review proceedings proved to be unsuccessful .

The Civil Code of GPE provides that for the use of monetary assets belonging to another person , as a result of their unlawful withholding , or the failure to pay them back ... [ statutory ] interest should be paid .... The amount of that interest is defined as the refinancing rate [ of ORG ] ... applicable in the place of residence of the creditor ... on DATE of the execution of the monetary obligation ( Article CARDINAL ) .

The RSFSR Code of Civil Procedure ( in force at the material time ) reads as follows :

“ A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage , if it is required for the protection of ORG or public interests or rights and lawfully protected interests of citizens ...

The prosecutor who participates in the proceedings may study the case materials , bring challenges , produce evidence , take part in the examination of evidence , lodge applications , state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole , as well as perform other procedural actions provided for by law ... ”

“ Judgments of all courts in the ORG may be appealed against to the court of cassation by the parties and other persons who took part in the litigation .

A prosecutor or his or her deputy lodges an appeal against an unlawful or unjustified judicial decision , irrespective of whether he or she took part in the case ... ”

The Prosecutor 's Offices Act ( Федеральный закон " О прокуратуре Российской Федерации " ) , no . CARDINAL-I of CARDINAL DATE , as in force at the material time , provides :

“ ... CARDINAL . In accordance with the procedural legislation of GPE , prosecutors shall participate in the hearing of cases by courts of law and commercial courts ( hereinafter referred to as the “ courts ” ) and shall challenge any court decisions , sentences and rulings which are contrary to the law ... ”

“ CARDINAL . The prosecutor shall take part in court hearings in the cases provided for by the procedural legislation of GPE and other federal laws ...

The prosecutor , in accordance with the procedural legislation of GPE , shall be entitled to make an application to the court or to enter the case at any stage of the proceedings , if the protection of civil rights and lawful interests of society or the state so requires ... ”

“ CARDINAL . Prosecutors or their deputies , within the scope of their powers , shall lodge cassation or private appeals or appeals in exercise of supervisory power with higher courts , and appeals or applications for reviews or appeals in exercise of supervisory power against an unlawful or unfounded court decision , sentence or ruling with commercial courts . Prosecutor 's assistants and prosecutors of directorates or divisions may lodge appeals only in cases in the hearing of which they themselves have participated ... ”

The relevant part of ORG Resolution CARDINAL ( DATE ) On ORG in ORG by LAW reads as follows :

“ it is essential :

a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights ;

b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors , with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government ; and

c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system , with separate , appropriately located and effective bodies established to discharge any other functions ... ”

ORG ) at its CARDINALrd plenary session ( DATE ) adopted an Opinion on the [ Prosecutor 's Offices Act ] of GPE . Its relevant provisions provide as follows :

“ ... DATE ... It is , of course , clear that ORG is among those Offices which does not conform to the model which ORG considered to be essential . Moreover , in respect of the ORG 's predominant role in the NORP administration , which can hardly be described as limited or exceptional , ORG does not seem to conform to the tests ... which are as follows :

In addition to the essential role played by prosecutors in the criminal justice system , some member states of ORG provide for the participation of the prosecutor in the civil and administrative sectors for historical , efficiency and economic reasons but their role should always be exceptional ( principle of exceptionality ) .

The role of the prosecutor in civil and administrative procedures should not be predominant ; the intervention of the prosecutor can only be accepted when the objective of this procedure can not , or hardly be ensured otherwise ( principle of subsidiarity ) .

The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well - founded , recognisable aim ( principle of speciality ) .

GPE can entitle prosecutors to defend the interest of the state ( principle of protection of state interest ) .

Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality ( principle of legality ) .

In case it is required for reasons of public interest and/or the legality of decisions ( e.g. in cases of protection of the environment , insolvency etc . ) the participation of the prosecutor can be justified ( principle of public interest ) .

Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor ( principle of protection of human rights ) ...

Prosecutors should have no decision - making powers outside the criminal field or be given more rights than other parties before courts ( principle of equality of arms ) .

Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well - grounded reasons ( principle of non - discrimination ) ...

There have been undoubted reforms in the NORP system of ORG , notably the limitations on the prosecutor 's powers of supervisory review of court decisions ... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned ” .


Violation of Art. 6-1;Violation of Art. 13

Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON , GPE .

On DATE the applicant lodged a claim with ORG against ORG and ORG for recovery of a DATE allowance , compensation for non - pecuniary damage and for re - calculation of her pension .

On DATE ORG rejected the applicant ’s claims as unsubstantiated . On DATE ORG rejected the applicant ’s request for interpretation of the judgment .

On DATE ORG quashed the judgment of DATE and remitted the case for new consideration .

On DATE the parties appealed in cassation . The applicant had to re - lodge her appeal in cassation as she had initially failed to comply with procedural requirements .

On DATE ORG transferred the case for consideration to ORG .

On DATE ORG dismissed the parties’ appeals in cassation .

On DATE ORG rejected the applicant ’s request for extraordinary review of the decision of CARDINAL DATE .

NORP The case is currently pending before the first - instance court .

In the course of the proceedings before the first - instance court and court of appeal there were CARDINAL hearings held . The applicant supplemented her claims on QUANTITY occasions . She lodged requests for rectification of the hearing records , for studying the case - file , for obtaining additional evidence and for interpretation of the judgment .

NORP In DATE the applicant and her daughter instituted defamation proceedings before ORG against ORG and S. , a private person .

On DATE ORG left the claim without examination for the PERSON failure to substantiate it and to pay the court fee .

On DATE and DATE , respectively , ORG and ORG ( acting as a court of cassation ) upheld the decision of DATE .

In DATE the applicant and CARDINAL other persons lodged with ORG an administrative claim against ORG , alleging incorrect calculation of their pension and unlawfulness of the claim for debts issued by the local gas supplying company .

On DATE the ORG found that the claim did not fall to be examined in the framework of the administrative procedure and was to be dealt under the rules of civil procedure . Accordingly , it dismissed the claim .

On DATE and DATE ORG and ORG , respectively , upheld the decision of DATE .

On DATE ORG rejected the applicant ’s request for extraordinary review of the ruling of DATE .

NORP In DATE the applicant and her daughter instituted defamation proceedings in ORG against ORG and S. , a private person .

On DATE ORG left the claim without examination for the PERSON failure to pay the court fee .


CASE OF CENTRAL MEDITERRANEAN DEVELOPMENT CORPORATION LIMITED v. MALTA (No. 2)

David Scicluna;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

On an unspecified date the applicant company was sued in relation to its failure to honour a contractual obligation , namely to construct roads and keep them in a good state of repair . On DATE the first - instance court found against the applicant company and gave it DATE to execute the works . The decision was confirmed , in part ( in relation to certain roads ) , on appeal on DATE by ORG sitting in a CARDINAL judge formation .

On DATE the applicant company lodged a request for retrial under Article CARDINAL(e ) of ORG ( “ COCP ” ) ( see Relevant domestic law below ) , and a request for a stay of execution of the judgment under LAW , pending the decision on the retrial request .

On DATE ORG , sitting in the same composition as in the appeal on the main proceedings , rejected the request for a stay of execution . It considered that the bank guarantee of MONEY ( “ MTL ” ) offered by the applicant company was not a sufficient guarantee for the execution of a judgment which might involve expenses amounting to ORG CARDINAL , CARDINAL . A further request by the applicant company to be allowed to lodge the sum of ORG CARDINAL , CARDINAL was also rejected on DATE .

On DATE the applicant company requested ORG to reconsider the said decision and asked for its revocation . It invoked LAW see Relevant domestic law below ) . The matter , yet again , fell to be heard before the same composition of ORG which gave the decision appealed against . The applicant company therefore lodged a request for the withdrawal of the CARDINAL judges , under LAW ( CARDINAL ) ( d ) ( ii ) of the COCP , on the basis that they could not be considered impartial since they had determined the merits of the claim subject to “ appeal ” .

On DATE , ORG , in the same composition , dismissed the applicant company ’s request for withdrawal and declared the appeal null and void . It held that a request for reconsideration under LAW did not require the said judges to withdraw . On the contrary , it implied that the case had to be reconsidered by precisely the same judges , and the claim was therefore frivolous and vexatious . As to the appeal , it considered that the decision of DATE amounted to a final judgment against which no appeal lay , it being covered by LAW and not CARDINAL of the COCP ( see Relevant domestic law below ) .

On DATE the applicant company instituted constitutional redress proceedings , claiming that its appeal proceedings culminating in the decision of DATE had not been heard by an impartial tribunal .

On DATE ORG in its constitutional jurisdiction found against the applicant company . It considered that , while it was true that the provisions of Articles CARDINAL and CARDINAL ( CARDINAL ) of the ORG appeared contradictory , the logical interpretation of the provisions was that an appeal for dismissal of a request for a stay of execution was available only if the decision had been taken by a court other than ORG . Had this not been the case , the applicant company would have had reason to question ORG impartiality . However , the latter court had not reconsidered its decision of DATE , but abstained from taking cognisance of the request on the basis that it was null and void . Thus , the applicant company ’s claim was unfounded .

The Constitutional Court on DATE confirmed ORG judgment . Noting that it had not been necessary for ORG to enter into the interpretation given by ORG , it held that on DATE ORG had not assessed its own previous conduct . It delivered a decision on a new legal question , namely the legal and procedural question of whether the appeal application was null and void , viz , whether the method of appeal used by the applicant company was one envisaged and allowed according to the COCP . It therefore did not decide on the merits of its previous decision . Moreover , it found that it had not been sufficiently proved that there was a real risk that the relevant judges had been biased . Indeed , the applicant company had not contested the impartiality of ORG at the beginning of the proceedings , namely on the basis that the appeal in respect of the decision of DATE had also been decided by the same formation of ORG . Furthermore , the judicial code of ethics , the judicial oath and the relevant law provisions in respect of withdrawal and abstention of judges offered a sufficient guarantee of impartiality .

The pertinent provisions of the ORG , in so far as relevant , read as follows :

“ Judgments delivered by ORG are not appealable . ”

“ ( CARDINAL ) An appeal from the decrees mentioned hereunder shall only lie after the final judgment and together with an appeal from such judgment , and such decrees may not be challenged before the final judgment is delivered : ...

( m ) a decree disallowing a request for stay of proceedings .

( CARDINAL ) A decision of the court in the cause listed hereunder shall be given by a decree to be read out in open court on DATE duly notified to the parties , and an appeal from such decree may be entered before the final judgment subject to the procedure laid down in sub - article ( CARDINAL ) and ( CARDINAL ) : ...

( e ) a decree ordering the stay of proceedings .

( CARDINAL ) Save as otherwise specifically provided for in this LAW an appeal from any other interlocutory decree not included in subarticles ( CARDINAL ) and ( CARDINAL ) may be entered before the definitive judgment only by special leave of the court hearing the case , to be requested by an application to be filed within DATE from the date on which the decree is read out in open court . The court , after hearing the parties , may grant such leave of appeal if it deems it expedient and fair that the matter be brought before ORG before the definitive judgment and the time limit for the filing of such an appeal shall commence to run from the date of the said decree .

( CARDINAL ) In the case of any decree under subarticles ( CARDINAL ) and ( CARDINAL ) , provided that any application for an appeal has not been filed , the aggrieved party may file an application within DATE from the date on which the decree is read out in open court , requesting the court which delivered the decree to reconsider its decision .

( CARDINAL ) The court shall decide , as expeditiously as possible by decree to be read out in open court , the application for special leave to appeal in terms of sub - article ( CARDINAL ) or the application to reconsider its decision in terms of sub - article ( CARDINAL ) , expounding fully therein the reasons for the decision . ”

“ ( CARDINAL ) A judge may be challenged or abstain from sitting in a cause -

( d ) ( ii ) if he had previously taken cognisance of the cause as a judge or as an arbitrator :

Provided that this shall not apply to any decision delivered by the judge which did not finally dispose of the merits in issue or to any judgment of non - suit of the plaintiff ; ”

“ A new trial of a cause decided by a judgment given in second instance or by ORG , ORG , in its GPE , may be demanded by any of the parties concerned , such judgment being first set aside , in any of the following cases :

( e ) where the judgment contains a wrong application of the law ;

For the purposes of this paragraph there shall be deemed to be a wrong application of the law only where the decision , assuming the fact to be as established in the judgment which it is sought to set aside , is not in accordance with the law , provided the issue was not in reference to an interpretation of the law expressly dealt with in the judgment ; ”

“ ( CARDINAL ) The demand for a new trial shall not operate so as to stay the execution of the judgment sought to be set aside .

( CARDINAL ) Notwithstanding the provisions of sub - article ( CARDINAL ) , the court before which a new trial is demanded may , at the instance , by application both before ORG and before the court of first instance , of the party making such demand , order a stay of execution of the judgment if -

( a ) together with his demand such party gives sufficient security for the execution of the judgment , if it is not set aside , including such security as is mentioned in LAW ) ; and

( b ) it is shown to the satisfaction of the court that the execution of the judgment is likely to cause greater prejudice to such party than the stay of execution would cause to the opposite party .

( CARDINAL ) Where the enforcement of a judgment has been authorised by the judgment sought to be set aside the provisions of sub - articles ( CARDINAL ) , ... shall not apply .

( CARDINAL ) An appeal from a judgment disallowing the demand for the stay of execution of the judgment sought to be set aside shall in no case operate as a stay of execution of the latter judgment . ”


The first applicant was born in DATE and the second applicant in DATE ; they both live in LOC ( Germany ) .

Under a purchase agreement dated CARDINAL DATE , the applicants purchased a dwelling house in GPE , on the territory of GPE ( GDR ) for MONEY . The house was built on land belonging to the ORG ( volkseigenes ORG ) over which the applicants obtained a usufruct ( dingliches ORG ) under Articles CARDINAL et seq . of LAW ( PERSON ) of the GPE .

On DATE the applicants made an official request for permission to leave the GPE , as they believed that they had been discriminated against on political grounds in their work .

The applicants say that they were informed by ORG ( GPE innere ORG ) in GPE that to obtain permission to leave the GPE permanently they would have to transfer ( veräussern ) their property by sale or gift .

On DATE the applicants purported to transfer the property to a couple , PERSON and PERSON , by a notarial deed of gift in which the dwelling house was stated to be worth MONEY . In reality , PERSON and PERSON paid the applicants MONEY ( ORG ) into a NORP bank account .

The applicants say that the true value of their house and land would DATE be CARDINAL .

That figure is disputed by the Government , who say that the applicants had possessed only a usufruct over the land .

NORP Following NORP reunification , the applicants attempted to recover their house and their usufruct over the land , firstly from the purchasers and subsequently in proceedings in the civil and administrative courts of GPE ( FRG ) .

On DATE the applicants applied to ORG ( GPE ) for an order for restitution of their house and rectification of the entry in the land register ( Grundbuch ) .

ORG Instance rejected that application on DATE .

In a judgment of CARDINAL DATE , ORG ( Bezirksgericht ) dismissed an appeal by the applicants , holding that they had no right to restitution . It pointed out that no transfer of property had in fact taken place , as both the gift and the sale in the GPE were null and void . However , the applicants were not entitled to rely on that nullity , as they had opted for that form of contract in full knowledge of the facts and the purchasers had not taken advantage of any coercion ( GPE ) to which the applicants may have been subject at the time . The application for restitution accordingly failed under the principle of good faith and fair dealing ( PERSON ) .

The applicants then lodged an administrative appeal with ORG requesting the restitution of their property . They relied on LAW .

NORP In a decision of DATE , ORG turned down their request on the grounds that the conditions set out in section CARDINAL(CARDINAL ) of LAW ( see “ Relevant domestic law and practice ” below ) were not satisfied , as the applicants had not shown that they had acted under duress ( GPE ) . Duress linked to a departure from the GPE could only have existed prior to the opening of the border on DATE . Thereafter , it was clear that all restrictions on leaving the GPE had been lifted .

The applicants appealed against that decision to ORG for ORG ( Landesamt zur Regelung offener Vermögensfragen ) of ORG , which dismissed their appeal , again on the grounds that the applicants had not acted under duress following the opening of the border on DATE , and in particular following ORG see “ Relevant domestic law and practice ” below ) of CARDINAL DATE and its publication on DATE .

In a judgment of DATE , ORG ( Verwaltungsgericht ) found against the applicants following a hearing .

It found that they were not entitled to restitution ( Rücküber - tragungsanspruch ) in the absence of any unfair dealings ( unlautere GPE ) within the meaning of section CARDINAL(CARDINAL ) of LAW . The border had been opened on DATE , with the result that all citizens of the GPE had been free to leave the country , while ORG DATE stipulated that they were no longer required to transfer their property prior to their departure . However , the deed of transfer was only executed on DATE . It added that there had not been any deception ( PERSON ) within the meaning of section CARDINAL(CARDINAL ) of LAW .

ORG also found that even if the previous position had remained unchanged , the conditions set out in section CARDINAL(CARDINAL ) of LAW would not in any event have been satisfied , as the applicants did not own the land but merely had a usufruct over it . Under GPE legislation – ORG Act of DATE ( ORG über die PERSON an einem volkseigenen ORG ) – persons entitled to a usufruct were required to use the land themselves . Even if the applicants had moved house within the GPE , the land would have reverted to the ORG and the applicants ' only entitlement would have been to compensation . The applicants had been aware of that situation , which is why they had sought to transfer their property .

By CARDINAL decisions of DATE and DATE , ORG ( ORG ) declined to examine an application for review by the applicants .

It referred to its leading judgment of DATE in which it had stated that instances of unfair dealings between CARDINAL DATE ( the date of publication of ORG in ORG ( Gesetzblatt ) of the GPE ) and DATE ( when ORG the GPE dated DATE was revoked ) would be rare . ORG had conducted a thorough review of the facts of the case and concluded that there had been no duress or deception within the meaning of section CARDINAL(CARDINAL ) of LAW .

ORG also referred to its leading judgment of CARDINAL DATE , in which it stated that there would not be unfair dealing within the meaning of section CARDINAL(CARDINAL ) of LAW in cases in which the obligation to transfer property had arisen under LAW of DATE of the GPE .

In CARDINAL decisions of DATE , ORG ( Bundesverfassungsgericht ) declined to hear constitutional appeals by the applicants against either the civil courts ' or the administrative courts ' decisions .

It referred , inter alia , to its leading judgment of DATE in which it had held that it was not unconstitutional for civil rights to be supplanted ( verdrängt ) by the provisions of LAW in cases involving the departure of GPE citizens for the ORG . Accordingly , ORG interpretation in the instant case was consistent with that authority .

During the reunification process in DATE , the CARDINAL NORP governments began negotiations on the many property issues arising and subsequently issued the Joint Statement of GPE and GPE on ORG Bundesrepublik GPE und der GPE zur GPE offener Vermögensfragen ) , which became an integral part of LAW ( Einigungsvertrag ) of DATE . The negotiations covered both the questions of restitution of property that had been expropriated in the GPE to its owners and the transfer of property by citizens of the GPE on leaving the country .

In the statement , the CARDINAL governments said that in seeking solutions to the contentious property issues , they needed to find a socially acceptable balance ( sozial verträglicher Ausgleich ) between the competing interests , while taking into account the need for legal certainty and clarity and to protect the right of property .

ORG DATE , also known as LAW , entered into force on DATE and was also a part of LAW . Under the terms of the LAW , LAW was to continue to subsist in the reunified GPE after the reunification of the two GPE on DATE . The aim of the LAW was to resolve disputes over property in the territory of the GPE in a way that was socially acceptable , in order to achieve permanent legal order in GPE .

Section CARDINAL(CARDINAL ) of LAW provides :

“ This Act shall also apply to rights in or over immovable property and usufructary rights acquired by unfair dealings , such as abuse of power , corruption , duress or deception by the purchaser , the ORG authorities or third parties . ”

LAW established the principle of a right to restitution for citizens of the GPE who had been forced to transfer their property in order to leave the country legally , save where restitution was precluded , as for instance if the purchasers had acted in good faith ( redlicher GPE ) ( section CARDINAL(CARDINAL ) of the LAW ) . In such cases , the former owners had a right to compensation under ORG of DATE ( ORG über die Entschädigung nach dem ORG zur GPE offener Vermögensfragen ) .

NORP However , the rule set out in section CARDINAL(CARDINAL ) of LAW does not apply in principle if the transfer was made after DATE of DATE ( when Mr PERSON , President of ORG ( PERSON ) of the GPE , resigned ) and without the parties ' agreement ( however , see below for the decisions of ORG on this point ) .

The legislature deliberately chose to give the administrative courts jurisdiction for the interpretation of LAW in litigation concerning the transfer of property by citizens wishing to leave the GPE , in order to avoid direct confrontation between former owners and new owners in the civil courts . To that end , it set up offices for the resolution of outstanding property issues which were responsible for deciding the disputes by carrying out investigations of their own motion ( GPE ) , while also having regard to the general interest .

In CARDINAL further leading judgments of DATE and CARDINAL DATE ( ORG , ORG . CARDINAL and CARDINAL ) , ORG held that LAW could apply to legal transactions entered into after the transitional date of DATE if the factors vitiating consent would have resulted in the transfer being null and void in the light of the new situation obtaining in the GPE , both on the facts and in law .