GEREGHIHER GEREMEDHIN v. THE NETHERLANDS

Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

NORP The applicant , Mr PERSON , was born in DATE in GPE , GPE . His nationality is unknown and he is living in GPE . The applicant , who has been granted legal aid , was represented before the ORG by Mr C.F. Wassenaar , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. Böcker , of ORG .

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

NORP In DATE , whilst the applicant was serving in the NORP military , his spouse Y fell ill . After her death in DATE , their CARDINAL children , ORG , PERSON , ORG , were taken into the care of their paternal grandparents in GPE as the applicant was refused a discharge from the army for the purpose of taking care of his children .

DATE , the applicant married PERSON , his current spouse , and in DATE their son GPE was born . Having grown increasingly frustrated with the policies of ORG and his unsuccessful requests for a discharge from the military , the applicant and his wife fled in DATE to GPE where they applied for asylum . In DATE , they were recognised by the ORG High Commissioner for Refugees ( “ ORG ” ) as refugees under LAW . The applicant ’s CARDINAL children from his first marriage and GPE remained in GPE with the applicant ’s parents .

During the stay of the applicant and ORG in GPE , their daughter PERSON was born in DATE . She is suffering from congenital hydrocephalus and a congenital heart condition .

At the request of the ORG , the applicant , his spouse and their child PERSON were accepted for resettlement as quota refugees in the GPE . According to information provided by the applicant to the ORG and recorded in the UNHCR Resettlement Registration Form signed by the applicant on DATE , ORG had been born in DATE , PERSON in DATE , ORG in DATE , and ORG in DATE .

On DATE , the applicant , his spouse and PERSON were granted GPE asylum - based residence permits . According to information provided by the applicant to the GPE municipal authorities after their arrival in the GPE , ORG had been born in DATE , PERSON in DATE , ORG , and PERSON in DATE .

On DATE , the applicant ’s spouse filed a request for advice on the issuance of a provisional residence visa ( machtiging tot voorlopig verblijf ) for GPE for the purpose of family reunion in the GPE .

Also on DATE , the applicant filed a request for advice on the issuance of a provisional residence visa for his CARDINAL children born out of his first marriage with Y for the purpose of family reunion in the GPE .

On an unspecified date in DATE , the CARDINAL children left GPE for GPE as their grandparents were getting too old to care for them . They ended up in the NORP refugee camp in eastern GPE , where they were registered as refugees after a refugee status determination carried out jointly by the ORG and ORG .

NORP On DATE , ORG ( ORG ) of ORG issued a positive recommendation in respect of the request concerning GPE , who until their flight in DATE had been part of the nuclear family unit ( gezin ) of the applicant and ORG , and provided inter alia that it would be demonstrated by official documents – when submitting the request for a provisional residence permit DATE that ORG had legal custody ( rechtmatig gezag ) over GPE . As he lacked official documents demonstrating his family tie with the applicant and his spouse , GPE was considered to find himself in a situation in which – through no fault of his own – he was hampered by a lack of evidence ( bewijsnood ) . He was therefore offered the possibility to demonstrate the relationship by means of a free DNA test for which he had to travel to the GPE mission in GPE . Following a delay caused by logistical problems , he was eventually taken to the GPE mission in GPE – accompanied by a ORG staff member – to provide a DNA sample .

On DATE , the GPE mission reported that the results of the DNA test showed a strong probability verging on certainty that GPE was the applicant ’s son . Consequently , he could be admitted to the GPE and a provisional residence visa was issued to him . On DATE , the GPE mission in GPE provided GPE with travel documents allowing him to travel to the GPE and join his parents . He entered the GPE on DATE and was granted a residence permit on DATE .

In a separate decision also taken on DATE , ORG of ORG issued a negative recommendation in respect of the request for advice concerning the applicant ’s CARDINAL children born out of his first marriage . Unlike GPE , there were no grounds to authorise family reunion in the GPE under the rules applicable for reunification of refugee families since the close family ties ( gezinsband ) between the applicant and the CARDINAL children were considered to have ceased to exist as the children had no longer formed a part of the applicant ’s nuclear family unit when in DATE the applicant and his wife had left GPE but , since the death of their mother in DATE , had belonged to the nuclear family unit of the applicant ’s parents as the applicant was unable to care for them . Accordingly , there were doubts as to the relationship of dependency between the applicant and these CARDINAL children . For this reason , the applicant had been requested to substantiate this relationship of dependency and to submit the birth certificates of these children , which he had not done . Further taking into account the ages of the children , the fact that they were living together in the care of their grandparents , that they were rooted in NORP society and of an age that they should be regarded as able to fend for themselves , it was also found that leaving the CARDINAL children in GPE did not amount to such a harrowing situation that it should be qualified as undue hardship ( onevenredige hardheid ) . It was further found that there were no special facts or circumstances giving rise to a positive obligation under LAW to admit the CARDINAL children to the GPE . At the foot of the decision was a note that , according to settled case - law of ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , no appeal lay against a recommendation in respect of a request for advice given by ORG on the issuance of a provisional residence visa .

By DATE , when the present application was introduced , neither the applicant nor the CARDINAL children from his first marriage had filed a formal request for the issue of a provisional residence visa for the purpose of family reunion in the GPE either under the rules for family reunion of refugee families or under the rules applicable to regular family reunion .

According to a medical statement , drawn up on DATE by a doctor at ORG , GPE had undergone operations in this hospital from DATE to CARDINAL DATE and her present medical condition did not allow her to go to GPE .

On DATE the applicant informed the ORG inter alia that he had recently rented a house in GPE for his children .

On DATE the applicant informed the ORG that his oldest son ORG had been arrested by the NORP authorities on the territory of GPE and had been taken into detention for failure to comply with his military obligations in GPE and possibly also for having illegally left GPE . The other CARDINAL children were still in GPE .

On DATE the applicant filed a fresh request for advice on the issuance of a provisional residence visa , submitting inter alia that , pursuant to LAW , the GPE authorities were under a positive obligation to provide the CARDINAL children concerned with a provisional residence permit . By letter of DATE , the applicant was informed by ORG ( Immigratie- en Naturalisatiedienst ) of ORG and ORG ( PERSON ) that his request was not suited for consideration in proceedings on a request for advice because he was asking for several exemptions and investigations which could not be considered in proceedings on a request for advice . The applicant was informed that his CARDINAL children should file a formal request for the issuance of a provisional residence visa in the country of origin or habitual residence . As to his requests for a DNA test and exemption of the minimum income requirement under the applicable immigration rules , he was informed that these belonged to the possibilities but would only be considered in the context of a formal request .

On DATE the applicant informed the ORG that , due to great difficulties in GPE , the CARDINAL children born out of his first marriage had had to leave that country . The youngest CARDINAL , ORG , had returned to GPE where they were living with their paternal grandmother . His oldest son was still in detention in GPE for failure to comply with his military obligations , and the applicant ’s daughter PERSON had been kidnapped and was being held by rebel forces in the south of GPE . These rebel forces had asked the applicant for money for her release .

On DATE the applicant informed the ORG that PERSON had managed to travel to LOC . She had joined the applicant in the GPE where she had been granted asylum . The applicant further stated that he was unaware of the whereabouts and fate of his oldest son ORG and that he intended to file an application for a provisional residence visa in due time for his CARDINAL youngest sons ORG who were still living with their grandmother in GPE and who would soon come of age and therefore eligible for military service in GPE .

On DATE the applicant informed the ORG that the application for a provisional residence visa he had filed on DATE as a sponsor ( mvv - referent aanvraag ) on behalf of ORG had been rejected on DATE by the Deputy Minister for Security and ORG because there was a discrepancy between the information provided by the applicant and the ORG about the exact year of birth of ORG , and the applicant had not demonstrated that he had legal custody of them as minor children . The applicant filed an objection ( bezwaar ) against this decision and , on DATE , submitted his written ground of appeal to the Deputy Minister and a hearing was scheduled for DATE . No further information about these proceedings has been submitted .

On DATE the applicant informed the ORG that his son PERSON had managed to reach the GPE where he had applied for asylum and that he was allowed to await the outcome of this application in the GPE . During his journey , he had been separated from his brother PERSON , who was still in GPE or GPE . The applicant was still in contact with ORG . Their eldest brother PERSON was doing his military service in GPE and therefore could not apply for a provisional residence visa , as GPE does not allow its nationals to leave the country and as there is no GPE embassy in GPE .

NORP In a ruling handed down on DATE ( case no . CARDINAL ; ORG : NL : RVS:CARDINAL:CARDINAL ) , ORG found that ORG response on a request for advice for the issuance of a provisional residence visa is merely a recommendation ( advies ) and not a formal decision ( beslissing ) producing legal effects ( rechtsgevolgen ) within the meaning of LAW ( PERSON ) . Consequently , unlike a formal decision on a formal request for a provisional residence visa , such a response from ORG can not be challenged in administrative appeal proceedings .

A decision on a formal application for a provisional residence visa can be challenged in administrative appeal proceedings by filing an objection ( bezwaar ) with the executive administrative authority that took the decision , a subsequent request for judicial review before ORG ( rechtbank ) of GPE and , finally , a further appeal to ORG . In these administrative appeal proceedings , an appellant can challenge the compatibility of the decision concerned with , for instance , LAW .

A positive recommendation on a request for advice for the issuance of a provisional residence visa does not automatically entail the issuance of such a visa . In order to obtain it , a petitioner must submit an actual application request for a provisional residence visa at the GPE mission in his or her country of origin or country of habitual residence . Any subsequent appeal proceedings can be brought by the petitioner or by a sponsor ( referent ) on the petitioner ’s behalf .

The rules governing the possibility to obtain an exemption from the obligation to pay statutory administrative charges ( leges ) in immigration proceedings have been set out in GPE v. the GPE ( GPE v. the GPE , no . CARDINAL , § DATE , DATE ) .

Under the GPE immigration rules , the reunification of refugee families is in certain aspects less demanding for applicants than the procedure for regular family reunion in that , in the procedure for the reunification of refugee families , the accepted refugee does not have to comply with any income requirement ( on this point , see PERSON and Others v. the GPE ( dec . ) , no . CARDINAL , DATE ) before his or her nuclear family members may be eligible for family reunion and no administrative charges must be paid for an application for reunification of a refugee family . The requirements for documentary evidence from the country of origin are also less strict than in the regular procedure .

At the relevant time , a residence permit for the purpose of the reunification of a refugee family could be issued to the alien who actually belonged DATE whether as a spouse or minor child – to the de facto nuclear family unit ( feitelijke gezinsband ) at the time of flight of the accepted refugee , who held the same nationality as the accepted refugee , and who had entered the GPE at the same time as the accepted refugee or in respect of whom an application for a provisional residence visa had been filed within DATE on which the status of refugee had been granted to the person with whom family reunion was sought . The same applied in respect of a request for advice for the issuance of a provisional residence visa for the purpose of reunification of refugee families . Since DATE it is no longer possible to request such an advice as , from that date , it is possible for persons holding the status of refugee and living in the GPE to apply themselves , as a sponsor , for a provisional residence visa for relatives for the purpose of refugee family reunification .

Until DATE , a person eligible for a residence permit for the purpose of joining a spouse / partner in the GPE where the latter had been granted the status of refugee under the rules applicable to the reunification of a refugee family obtained an asylum - derived residence permit ( afgeleide verblijfsvergunning asiel ) , i.e. a residence permit dependent on the refugee status of the person with whom reunion had been allowed . Given the strict distinction between an asylum - related residence permit and a “ regular ” ( i.e. non - asylum related ) residence permit , arguments based on LAW could not be entertained in proceedings on an application for an asylum - related residence permit , including proceedings on a request for a residence permit for reunification of a refugee family .

As from DATE , when the order amending LAW CARDINAL/CARDINAL ( ORG circulaire DATE , “ GPE CARDINAL/CARDINAL ” ) entered into force , LAW principles are taken into account in assessing – in proceedings on a request for a residence permit for the reunification of a refugee family – whether a person belongs to the family of an accepted refugee .


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

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

ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant was physically attacked by a certain MONEY Following the said event , on DATE PERSON was found guilty in minor offence proceedings for breaching public order and peace and ordered to pay a fine .

On DATE the applicant lodged a civil action with ORG ( PERSON ) against FAC , claiming damages in connection with the physical attack on him . He submitted medical documentation in relation to the injuries he had sustained and requested that an expert report be obtained detailing the duration and intensity of his physical pain and mental suffering as a result of the attack on him .

On DATE ORG declared that it lacked jurisdiction to examine the applicant ’s case . The case was referred to ORG ( PERSON ) as the competent court .

At a hearing held on DATE the trial judge informed the applicant of the possibility of hiring a lawyer to assist him in the proceedings . The applicant maintained that he wished to represent himself .

At a hearing held on DATE the applicant and ORG representative agreed that the trial court should question the parties and CARDINAL witnesses , and should order an expert medical report detailing the means of infliction , the duration and the intensity of the applicant ’s physical pain and mental suffering as a result of ORG attack on him .

On DATE the trial court heard evidence from the applicant .

On DATE the trial court heard CARDINAL witnesses , as well as the applicant ( the plaintiff ) and the defendant . It dismissed the applicant ’s proposal for the police records of action undertaken in relation to the attack on him to be obtained . The applicant then stated that he had no further proposals for evidence . The relevant part of the record of the hearing reads as follows :

“ The plaintiff proposes in the next part of the proceedings to seek from the police their records of action undertaken , but the judge dismisses that evidence proposal , given that the minor offence proceedings file has been obtained ...

The plaintiff does not have any further evidence , or any proposal to adduce further evidence . The judge explains what evidence he can propose in the proceedings and in what manner , and warns him of the repercussions of applying the burden of proof rule .

The ORG renders a

decision

Given that the parties do not have any further proposals for evidence , even after a warning of the repercussions of applying the burden of proof rule , the court , which can not itself propose evidence in these proceedings , closes the hearing . ”

The applicant signed the record of the hearing without expressing any objections .

On DATE ORG dismissed the applicant ’s civil action on the grounds that the scope and intensity of the consequences of the attack on him by PERSON had not been proven as he had not proposed the gathering of the necessary evidence , that is to say the obtaining of a medical expert report . The relevant part of the judgment reads as follows :

“ The medical documentation in question was included in the civil action , the credibility of which was undisputed ... The court does not have the expertise to establish facts on the basis of medical documentation – that requires the expertise of a medical expert . However , in order to use the assistance of an expert in proving a fact or clarifying the real nature of the matter , it is necessary that a party , in this case the plaintiff , proposes doing so . It is only then that the court can order an examination and an expert report on the question of whether the plaintiff sustained injuries in the incident concerned , and if so , which and of what kind , and also whether he experienced mental suffering and physical pain , and if so , of what intensity and duration ...

Therefore , there was neither any evidence as to the viability and the extent of the consequences , nor any proposal to adduce such evidence ( obtaining the medical expert report ) , as the damage caused by the defendant to the plaintiff ...

The court warned the plaintiff of the repercussions of applying the burden of proof rule at a hearing held on DATE ‒ after he [ the plaintiff ] stated that he had neither any further evidence nor any proposals to adduce further evidence ‒ and informed him that he could be represented by a lawyer ... which he [ the plaintiff ] disregarded . ”

NORP The applicant appealed against this judgment , alleging in particular that his statement concerning the obtaining of a medical expert report had been incorrectly entered into the record of the hearing . The relevant part of his appeal reads as follows :

“ ... the statement which appears in the reasoning of the first - instance judgment to the effect that the plaintiff did not propose the obtainment of an expert report is incorrect , because the plaintiff ’s statement in that respect was not correctly entered in the records . In particular , the plaintiff stated that , if the court could not establish the facts on the basis of the offered evidence , and if the presence of the plaintiff ’s witness ( GPE ) could not be ensured , then , if necessary , [ the court should ] supplement the evidence as to the facts with an expert report .

The court misinterpreted the plaintiff ’s statement in that respect and therefore came to the wrong conclusion ... ”

DATE ORG ( PERSON ) dismissed the applicant ’s appeal as ill - founded , holding that the first - instance court had duly examined all the parties’ relevant submissions . It noted in particular that the record of the hearing held before the first - instance court indicated that the trial judge had warned the applicant of the repercussions of failing to propose the gathering of relevant evidence , and that the records had been signed without any objections .

The applicant lodged an appeal on points of law with ORG ( PERSON ) , alleging in particular that the lower courts should not have dismissed his civil action merely because no expert report had been obtained in the proceedings .

On DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded . It held , in particular , that the lower courts had correctly dismissed the applicant ’s civil action by applying the burden of proof rule , given that the applicant , although warned , had failed to propose that an expert medical report be obtained .

The applicant then lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) , challenging the decisions of the lower courts . He alleged , in particular , that the courts had dismissed his civil action on the grounds that he had failed to propose that the expert medical report be obtained , even though he had expressly proposed that such evidence be obtained at the hearing held on DATE .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible as manifestly ill - founded . This decision was served on the applicant ’s representative on DATE .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant ’s identity has been the subject of controversy at the national level . In his submission to the ORG he referred to himself as mentioned above ( see paragraph CARDINAL ) , and indicated his year of birth as DATE .

During the proceedings in GPE described below , the applicant also was or has been referred to as PERSON , with the surname at birth of PERSON , alias ORG , born in DATE , and as PERSON , a NORP national .

On DATE the applicant was arrested ; on DATE he was remanded in custody pending trial on charges of conspiracy and murder .

On DATE the GPE I ORG ( ORG súd ) authorised extension of his pre - trial detention until DATE . Following an appeal by the applicant ORG ( PERSON súd ) on DATE upheld that decision .

On DATE the applicant was indicted to stand trial ; on CARDINAL DATE ORG dismissed his request for release .

ORG heard the case on DATE and a further hearing was scheduled for CARDINAL to DATE .

On DATE the applicant was acquitted ; his acquittal was upheld on appeal on DATE .

On DATE , while he was still in detention , and acting through the intermediary of his lawyer , the applicant requested release . In support of the request , he argued that he was innocent and that his detention in the present trial was no more than an arbitrary means of retaining him in detention in the interest of another trial .

The request was submitted by mail and was received at ORG on DATE .

On DATE ORG heard the applicant in private , when he confirmed that he was seeking a response to the request for release he had made in DATE . On DATE ORG dismissed the request and the applicant stated on the record that he wished to appeal .

Through his lawyer , the applicant submitted his reasons for appealing in writing on DATE . At the same time , he offered a pledge that , if released , he would live in accordance with the law .

On DATE , at a private session , ORG dismissed the applicant ’s appeal and rejected his offer . It observed , inter alia , that there had been unjustified delay in dealing with the applicant ’s request at the first level of jurisdiction , which could potentially serve as a ground for calling the President of its ORG to account , but which in itself did not constitute a reason for releasing the applicant .

The written version of the decision of DATE was served on the applicant via ORG on DATE . It was not amenable to appeal .

In DATE the applicant lodged a complaint under LAW no . PERSON . , as amended ) with ORG ( Ústavný súd ) .

He directed the complaint against ORG and alleged that , in determining his request for release of DATE , there had been a violation of his right under LAW to a “ speedy ” review of the lawfulness of his detention .

In terms of redress , he claimed reimbursement of his legal costs and MONEY ( ORG ) by way of compensation .

On DATE ORG declared the complaint admissible ; on DATE it found a violation of the applicant ’s right as claimed .

Referring to its previous judgments in cases nos . III . ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL , III . ÚS CARDINAL/CARDINAL and III . ÚS CARDINAL/CARDINAL , ORG observed that the “ speediness ” requirement would usually not be deemed to have been respected if the length of the proceedings in question amounted to DATE , as opposed to DATE ; if the proceedings lasted DATE at a single level of jurisdiction ; or if there had been a period of judicial inactivity amounting to DATE .

As regards the merits , ORG found ORG handling of the applicant ’s request “ particularly lengthy ” and “ extraordinarily and unacceptably long ” . It could neither be justified nor explained by the fact that , at the hearing held on DATE ( see paragraph CARDINAL above ) , the applicant had taken no action and had not demanded a decision on his request for release .

As regards just satisfaction , it awarded the applicant reimbursement of his legal costs but rejected the remainder of his claim . In that regard , ORG referred ’s fundamental rights and freedoms . It concluded that the finding of a violation of the applicant ’s rights was sufficient just satisfaction for him .

The Constitutional Court ’s decision was served on the applicant on DATE .


Branko Lubarda;Dmitry Dedov;Guido Raimondi;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants , PERSON ( “ the first applicant ” ) , born in DATE , and her son PERSON ( “ the second applicant ” ) , born in DATE , are NORP nationals . The President granted the ORG request for their identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . They were represented before the ORG by Ms S. Motz , a lawyer practising in GPE .

In DATE the first applicant fled her home country , travelling via GPE and GPE , from where she reached the island of GPE in GPE where she claimed asylum on DATE . She was assigned to a centre for asylum - seekers in GPE , GPE . After DATE there , she was recognised as a refugee . However , she was no longer entitled to stay in the asylum centre . She therefore went to GPE where her boyfriend , who had fled with her from GPE and had also been recognised as a refugee , was living . It was very difficult for the first applicant to find a place to stay and she slept in a train station in GPE and later in a squat for refugees called “ FAC ” . She claimed that the situation in that squat had been especially difficult for women . Her boyfriend had not been allowed to stay with her and she therefore had lived under the constant threat of sexual attacks from other men living there . Without knowledge of the NORP language it was furthermore impossible for her to find a job . She received food from soup kitchens run by ORG in GPE . The first applicant and her boyfriend also approached PERSON in FAC DATE , the communal accommodation office for homeless people in GPE ( “ the immigration office ” ) . The immigration office put them on a waiting list . DATE , on DATE , the first applicant was allocated a sleeping place but she was somehow not informed of this . The applicant remained in FAC for DATE . She became pregnant with the second applicant and her boyfriend left her . Owing to the unbearable living conditions in GPE she decided , when she was DATE pregnant , to apply for asylum in GPE .

On DATE she applied for asylum in GPE . On DATE she gave birth to her son , the second applicant . By a decision of DATE ORG ( “ the LAW ” ) dismissed her asylum request based on her having been granted refugee status in GPE . In DATE both applicants were removed to GPE .

During the ORG second stay in GPE , they were informed by the immigration office in GPE that they could not be provided with housing immediately , but that they would be put on a waiting list . The first applicant approached private organisations to obtain housing , without success . As she was even unable to find a place for her and her son to sleep in one of the squats in GPE , both applicants ended up sleeping in the streets and in the main train station with other homeless people . With the remainder of the money the first applicant had received from the NORP authorities she decided to travel , together with the second applicant , to GPE to apply for asylum there . She sought to claim asylum there in DATE and her asylum request was registered on DATE . CARDINAL DATE it was dismissed and in DATE they were removed from GPE to GPE .

In GPE the first applicant unsuccessfully approached on several occasions the immigration office in GPE as well as private organisations in order to obtain accommodation . In relation to a residence document for her son , the immigration office informed her that she should return to Crotone since she had been registered there and the authorities there were responsible for her . In DATE the applicant therefore travelled to Crotone in order to register her son and to seek accommodation for them . The authorities there however informed her that there was no organisation which could assist her and that she should return to GPE . Upon her return to GPE , the immigration office eventually registered her on the waiting list on DATE . Since no accommodation in GPE was available , the applicants had to return to ORG . The living conditions in that squat were unacceptable , especially for a child . Owing to the precarious sanitary conditions and the lack of adequate nutrition , the second applicant suffered serious dental problems . As the first applicant could furthermore not pay the required fees for staying in FAC , she was repeatedly asked to leave the place .

Out of despair and in order to avoid sleeping in the streets of GPE in wintertime with a little child , the first applicant decided to travel to GPE again . She applied a second time for asylum in GPE on DATE . According to the immigration office in GPE , the applicants would have received a place to stay in DATE , but at this point they had already gone to GPE . On DATE the ORG dismissed the ORG request on the basis that the applicants could avail themselves of the protection of a safe third country , namely GPE .

On DATE the applicants lodged a qualified application for review with the ORG . The applicants claimed that the ORG had failed to take into account the various indications that the applicants had to live in inhuman conditions in GPE . By decision of QUANTITY DATE the ORG dismissed their request ruling that GPE was under an obligation under LAW to provide the applicants with accommodation and financial support . In addition , private aid organisations could also assist the applicants . The LAW also held that the removal to GPE would not violate the rights of the child under LAW on the Rights of the Child .

Upon appeal , ORG ( “ the FAC ” ) granted the applicants interim measures on DATE in order to await the outcome of the proceedings in GPE . By a decision of DATE the ORG dismissed the ORG appeal .

With regard to a possible breach of LAW , the FAC established that based on the facts of the case no particular risk of illtreatment in GPE could be identified . GPE had signed all the relevant international human - rights treaties which it was obliged to respect and was bound to LAW , which provides that recognised refugees should in principle be treated like nationals regarding social assistance and health care . The FAC found that some structural deficits for refugees in GPE existed , primarily in the regions of GPE , GPE and GPE as well as in GPE and GPE . Based on the facts of the case , the FAC had no doubts that the situation for refugees and asylum - seekers in GPE was unbearable and that they were not provided with basic social assistance . Furthermore , it accepted that there was a considerable risk if returned to GPE , the applicants would be obliged to live in the streets again . Since the immigration office in GPE had already offered the applicants a place to stay in the past , it could be expected that they would also be offered CARDINAL in the future , however not immediately . Therefore , the FAC considered the risk of the applicants’ living in the streets of GPE upon their return there to be considerable . However , the situation for refugees was not as bad in other regions of GPE as in GPE . As recognised refugees , the applicants had the possibility to settle in another region of GPE where the living conditions were presumably better . In this regard the FAC held that it was not comprehensible why the first applicant , who had been able to seek refuge in GPE and GPE , had not travelled to another region of GPE , in particular to the LOC , in order to look for housing there . It found that it was feasible to expect the applicants to seek and find housing in another region of GPE , as , for example , provided by ORG in GPE ( ORG ) , in GPE ( ORG of ORG ) , in GPE ( GPE polifunzionale PERSON di GPE ) as well as in different places in GPE . The ORG stated that it was more likely than not that the applicants would be able to find adequate accommodation there and would be able to live with dignity . Therefore , they were not at risk of ill - treatment if returned to GPE .

Following this ruling , ORG ( Schweizerische Flüchtlingshilfe ) , a NORP non - governmental organisation ( “ NGO ” ) , contacted on behalf of the applicants the mentioned organisations in GPE , GPE , GPE and PERSON in order to enquire whether the applicants could be accommodated there . ORG was however informed that none of the organisations would be able to accommodate the applicants as they firstly needed to have their official residence in that municipality and secondly there were no resources for a single mother with her child . As there were very long waiting lists , it was impossible to tell how long it would take to obtain a place . In addition , the fact that the applicants had been registered in Crotone made it even more difficult for them to relocate elsewhere despite the fact that the situation in GPE was well - known for being inadequate for single mothers with children . It was also possible that the mother and the child would be separated since social services only had obligations towards the child but not towards the mother .

On DATE , the applicants submitted a letter written by the teacher of the second applicant about his integration in GPE . The applicants also repeated their complaints .

The relevant provisions of LAW of DATE , as in force at the relevant time , read as follows :

ORG shall identify states in which on the basis of its findings :

a. States of origin or provenance which are safe , that is to say those in which the applicant runs no risk of persecution ;

b. safe third countries , that is to say those in which it considers that the principle of non - refoulement , within the meaning of section ( CARDINAL)(CARDINAL ) , is actually observed .

It shall periodically review decisions made under paragraph CARDINAL .

If the asylum - seeker has arrived from a country where he or she does not run the risk of persecution within the meaning of section CARDINALa(CARDINAL)(a ) , the ORG [ ORG , now ORG [ PERSON für Migration ] ] shall not examine the application unless there are signs of persecution .

As a general rule , the ORG shall not examine an asylum application where the asylum - seeker

a. can return to a safe third country within the meaning of section CARDINALa(CARDINAL)(b ) where he or she has resided previously ;

A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum - seekers in GPE is also set out in the ORG judgment LOC v. GPE ( no . CARDINAL , § § DATE , ECHR DATE ( extracts ) ) .

By a letter of DATE , the co - Agent of ORG submitted a message of DATE of the NORP centrale , the body running the ORG ( ORG di protezione per richiedenti asilo e rifugiati ) network , stating that it had asked the municipality of PERSON to accommodate the applicants as a single - parent family in the appropriate structures put in place by the municipality .

By a letter of DATE , the co - Agent of ORG submitted a note from ORG and replied to the Acting President ’s invitation to provide the ORG with a letter from the NGO in question which confirms the availability of accommodation for the applicants . ORG reply included the following :

“ It is clear from the aforementioned memorandum that ORG , on the basis of its own requirements , may directly allocate places in favour of beneficiaries of international protection in the reception facilities that are part of the ORG network .

Accordingly , the message of DATE of the NORP centrale , which is running the ORG network , constitutes in itself confirmation of the reservation in the reception project in favour of the applicant and her son , without further confirmation being necessary . ”


András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

NORP The applicant in both cases , Mr PERSON , is a LOC national , who was born in DATE and lives in ORG . At the relevant time he was the Director of ORG , a public institution . He was also a member of ORG of ORG ( ORG narodna stranka ; hereinafter “ SNS ” ) . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

On DATE the complaints concerning the applicant ’s freedom of expression were communicated to the Government and the remainder of the applications was declared inadmissible .

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

On DATE a “ Public letter to the artists and writers of ORG ” ( Otvoreno pismo hercegnovskim umjetnicima i piscima ) , signed by ORG , on his own behalf and on behalf of CARDINAL other artists , was published in some of the printed and electronic media in GPE . The letter stated , inter alia , that the applicant , as the Director of ORG , had refused an exhibition of an NORP painter in DATE , as well as , soon afterwards , a programme for the presentation of “ DATE of GPE in ORG ” . He had allegedly also attempted to censor an artistic selection for another exhibition , which had made several artists withdraw . In conclusion , it was requested that the art institutions in ORG be run again “ by artists and writers of integrity and reputation and not by semi - skilled culture - agitators and party activists ” .

On DATE the applicant , apparently as an associate journalist ( novinar saradnik ) of an opposition DATE magazine “ Pokret ” , which existed at the time , wrote an article entitled “ A special war against ORG ” . The article stated , inter alia , that “ the idea about the ‘ ORG of the exhibition was [ ... ] elaborated by a group of the so - called ‘ prominent ORG [ including ORG ] . [ ... ] Of course , few cared what the ‘ prominent ORG would say , as it was well known that they had to sign whatever nastiness ( gadost ) they were given to sign , as otherwise they would be neither ‘ prominent’ nor ‘ Montenegrin’ , and they were certainly not intellectuals ” .

On DATE PERSON filed a private criminal action ( privatna krivična tužba ) against the applicant for insult ( uvreda ) , claiming that the above - cited statement publicly “ belittled him and underestimated his personal and professional values ” .

On DATE GPE , as a single judge of ORG ( PERSON ) in ORG , found the applicant guilty of insult , fined him CARDINAL ( “ EUR ” ) , ordered him to pay ORG CARDINAL for the court fees ( sudski paušal ) and decided that the judgment at issue would be published in “ NORP ” . The judgment further specified that if the fine was not paid within DATE as of DATE when the judgment became final , it would be converted into a prison term , EUR CARDINAL being equal to DATE in prison .

The court rejected the applicant ’s defence that he could not be held responsible for something he had said as a journalist and without any intention to belittle , and that his statement was merely an opinion provoked by the untrue allegations relating to the refusal of the said exhibition contained in the public letter . The court also considered that the applicant , being also a journalist , must have known that the freedom of expression was restricted by the need to protect the honour and the reputation of others , and should have acted accordingly . It was further held that the public letter was not insulting for the applicant , as it was written in the context of a serious professional criticism of the applicant ’s work as ORG Director , with the aim of protecting interests of greater public importance . The court concluded that the expressions used by the applicant belittled and underestimated ORG personal and professional integrity . In deciding on the amount of the fine , the court took into consideration , inter alia , that the applicant ’s insulting statement was given “ as a reaction to an earlier insult by the private prosecutor and the others ” .

On DATE ORG ( PERSON ) in GPE upheld the decision that the applicant was guilty of insult and at the same time reduced the fine to LAW . It was reaffirmed that the fine , if not paid , would be converted into a prison sentence .

On an unspecified date thereafter the fine was allegedly paid by the SNS , following a decision of the SNS President to that effect .

On DATE ORG in ORG issued a decision converting the fine into DATE of imprisonment as it had apparently not been paid within the specified time - limit . The applicant did not file an appeal against this decision . It would also appear that he has not served a prison sentence .

The applicant maintained in his submissions to the ORG that a number of the court documents had not been served on him properly and in a timely manner . The Government , for their part , submitted a copy of the delivery slips signed by the applicant and his representative in the domestic proceedings confirming that the High Court judgment was served on them on DATE and DATE respectively .

On DATE CARDINAL of the LOC DATE newspapers published an article entitled “ PERSON : ORG wants to move me out of GPE ” ( “ PERSON : ORG hoće da me iseli iz PERSON ” ) . The article contained the SNS ’s comments on the first - instance judgment rendered by GPE in the first set of criminal proceedings against the applicant . It continued with the applicant ’s comment , part of which read as follows : “ ORG of GPE filed CARDINAL complaints ( prijave ) with the court in ORG against me as an associate journalist of “ NORP ” . [ The complaints ] have been processed as a priority ( preko reda ) even though the [ court ] has a backlog of CARDINAL unresolved cases . This time , due to loyalty to the party ( po partijskoj dužnosti ) , everything had to be done as a priority . A hearing was scheduled in a particularly short period . CARDINAL such trial was held DATE and it resembled the proceedings before a court martial ( prijeki sud ) rather than regular proceedings . I was fined ORG CARDINAL for a publicly expressed opinion which I made as an associate journalist . ”

On DATE GPE filed a private criminal action against the applicant , claiming that the following words , in particular , amounted to defamation : “ this time , due to loyalty to the party , everything had to be done as a priority . A hearing was scheduled in a particularly short period . CARDINAL such trial was held DATE and it resembled the proceedings before a court martial rather than regular proceedings ” .

On DATE , at the hearing held after a remittal , the applicant stated , inter alia , that as a politician , journalist and a legal representative of ORG he had the right to express his personal , political and professional opinions as well as to criticise negative phenomena in society . He stated that he had never mentioned GPE , although , as a public official , she had a duty to tolerate criticism even when it was not justified . He maintained that the trial against him had been treated as a priority as the judges had first to deal with the older cases . In this regard he referred to a public statement of the President of ORG that each judge at the court in ORG had a backlog of CARDINAL cases and that the older cases were priority . The applicant confirmed that DATE after the delivery of the judgment in the first set of criminal proceedings he had indeed commented publicly on the work of the court and its dealing with cases which were not priority .

On DATE ORG in GPE found the applicant guilty of defamation and fined him LAW , which fine could be converted into a prison sentence if it was not paid within DATE as of DATE when the judgment became final . He was also ordered to pay ORG CARDINAL for the court fees . The court considered that even though the applicant had not mentioned GPE personally , it was clear from the text and its context which judge and judgment he had been referring to . The court held that the statement at issue was untrue and that , in particular , the words “ due to loyalty to the party ” , “ in a particularly short period ” and “ court martial ” could harm GPE ’s personal and professional honour and reputation .

On DATE the applicant appealed against this decision . He submitted , in particular , that the court had not taken into consideration either the Convention or the ORG ’s case - law and that both the private prosecutor and himself , as public officials , had a duty to tolerate a higher level of criticism .

On DATE ORG in GPE upheld the first - instance judgment , in substance endorsing the reasons given by ORG . The court rejected the applicant ’s argument that he had criticised the work of the court in general and not GPE

On DATE ORG upheld the applicant ’s constitutional appeal filed on CARDINAL DATE and found a violation of LAW . It quashed the ORG judgment and ordered a re - trial . In doing so , ORG held , in particular , that the interference with the applicant ’s freedom of expression was not necessary in a democratic society and that the reasoning of the domestic courts was not relevant and sufficient to justify it . The disputed expressions used by the applicant related to the behaviour of GPE in her official capacity and not to her private life . In addition , the nature and the level of the fine , which under certain conditions could be replaced by imprisonment , were of particular importance in assessing the proportionality of the interference . The court also ordered that its decision be published in ORG .

On DATE ORG overturned the judgment of ORG of DATE and acquitted the applicant given that the defamation had been decriminalised in the meantime ( see paragraph CARDINAL below ) .

The applicant paid the court fees . It would appear that he has never paid the above fine .

On CARDINAL DATE the President of ORG stated that each judge of ORG in ORG was in charge of CARDINAL cases , some of which were DATE , and that the older cases ( predmeti iz prethodnih godina ) should be given priority .

NORP In DATE the applicant ’s salary was CARDINAL ORG per month .

Article CARDINAL provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the LAW , after all other effective legal remedies have been exhausted .

The LAW entered into force on DATE .

Section CARDINAL provides that a constitutional appeal may be lodged against an individual decision of a ORG body , an administrative body , a local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by the LAW , after all other effective legal remedies have been exhausted .

Sections CARDINAL provide additional details as regards the processing of constitutional appeals . In particular , section CARDINAL provides that when ORG finds a violation of a human right or freedom , it shall quash the impugned decision , entirely or partially , and order that the case be re - examined by the same body which rendered the quashed decision .

This Act entered into force in DATE .

Articles CARDINAL and CARDINAL provided that insult and defamation , respectively , were criminal offences and specified sanctions therefor . These ORG were repealed on DATE by virtue of the amendments to LAW .

Article CARDINAL § CARDINAL provided that if the fine was not paid within the specified time , it would be replaced by a prison sentence , ORG CARDINAL corresponding to a day in prison . This provision was changed by virtue of another set of amendments to LAW , which entered into force on DATE , and which provided that LAW corresponded to a day in prison . At the same time a new provision was introduced to the effect that the unpaid fine could also be replaced by work in the public interest ( rad u javnom interesu ) instead of a prison sentence , LAW corresponding to TIME of such work .

Section CARDINAL provides , inter alia , that the sanctions for insult and defamation shall not be enforced , the convictions shall be expunged and their legal consequences shall cease .

Section CARDINAL provides that a decision to this effect shall be rendered of its own motion by a court which is in charge of the enforcement of the sanction or upon the request of a convicted person .

This Act entered into force on DATE .

Sections CARDINAL , CARDINAL and CARDINAL of LAW , taken together , provide , inter alia , that anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of his reputation , personal integrity , liberty or of his other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief , sue for financial compensation and request other forms of redress “ which might be capable ” of affording adequate non - pecuniary satisfaction .

Section CARDINAL provides , inter alia , that a legal entity ( pravno lice ) , which includes the ORG , shall be liable for any damage caused by CARDINAL of its bodies to a “ third person ” in the course of performing its functions or related thereto .

This Act entered into force on DATE .


Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

A list of the applicants is set out in the appendix .

ORG ( “ the Government ” ) were represented by their Agent .

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

On DATE the applicants’ son and brother , PERSON , who was a student at a public university in GPE at the material time ( “ GPE ” ) , drowned in the university ’s Olympic swimming pool .

Soon after the incident police officers arrived at the swimming pool and examined the accident site together with the deputy manager of the pool , PERSON According to the information provided by PERSON , PERSON was taken to ORG following initial medical assistance administered beside the pool . The police drew up a sketch map of the scene of the incident , showing that the victim had drowned in the middle of the pool , where the water depth was QUANTITY . Another report prepared by the police on DATE indicated that a diabetic ID card had been found amongst the belongings recovered from victim ’s changing room locker .

Still on DATE , the police questioned CARDINAL suspects in respect of the incident : the lifeguards employed at the pool , GPE and GPE , the medical officer at the pool , PERSON , and the deputy manager of the pool , PERSON

GPE told the police that when he and his colleague , C.A. , who had been positioned on the other side of the pool at the material time , noticed a person drowning in the middle of the pool , they jumped in and rescued him . When they first took him out , the young man was unconscious , but still had a pulse . They immediately performed the relevant first aid procedures with the assistance of the medical officer PERSON , and TIME later an ambulance arrived and took the man to the hospital . GPE stated that it was only after the incident that they learned that the victim was diabetic . GPE also claimed that before sinking under water , the victim had not called for help in any way , nor had he made any movements suggesting that he was in danger of drowning .

The other CARDINAL suspects , C.A. , PERSON and PERSON , gave similar statements to that of GPE ’s .

On DATE , the police also questioned CARDINAL eye witnesses , who gave statements along the same lines as the suspects .

The autopsy carried out on DATE confirmed the cause of death as drowning .

On DATE the GPE public prosecutor ’s office filed a bill of indictment with ORG against the CARDINAL lifeguards , GPE and GPE , the medical officer at the pool , PERSON , and the deputy manager , PERSON , for causing the death of Celal Başkaya by their failure to take the necessary safety measures at the swimming pool .

The applicants joined the proceedings before ORG as civil parties not seeking compensation . In the petition which he submitted to the assize court , the first applicant , PERSON ( the victim ’s brother ) , claimed that the lifeguards had failed to pay attention to his brother ’s initial calls for help and had intervened too late .

Before ORG , the defendants repeated their previous police statements . The lifeguard C.A. informed the assize court that there had been DATE CARDINAL people at the swimming pool at the material time . At the start of the proceedings , the GPE lawyer challenged the autopsy report as being incomplete , given that it had not been established during the autopsy whether the victim − who had suffered from diabetes mellitus − had died because he had lapsed into a diabetic coma in the swimming pool . The lawyer requested from the court another autopsy to establish whether he had died of diabetesrelated causes . The matter was brought before ORG , which informed the assize court that blood samples taken after death would not be indicative of the glucose levels preceding death .

At the subsequent hearings the assize court heard statements from witnesses who confirmed that the victim knew how to swim and had drowned without making any noise or movements . The assize court also conducted an on - site examination of the university swimming pool in the presence of the defendants , the applicants’ lawyer , and CARDINAL experts ( CARDINAL expert lifeguard and CARDINAL physician from ORG ) .

In his report dated DATE the expert lifeguard stated that according to the information in the case file the victim , who apparently knew how to swim , had drowned without any attempts to attract attention . There was , moreover , no evidence to suggest that the lifeguards had neglected their rescue duties in any way . In these circumstances , the expert found that there were no grounds to hold the lifeguards accountable in connection with the death of PERSON .

In his report dated DATE the medical expert found that at the time of the incident there were CARDINAL lifeguards and CARDINAL medical officer on duty at the swimming pool , which showed that the necessary safety measures had been in place . The evidence in the case file suggested that the victim knew how to swim , that he had drowned without calling for help or showing any other signs of distress , and that the lifeguards had intervened as soon as they noticed the victim at the bottom of the pool . Without expressing any view as to whether the victim ’s death had been related to his diabetes , the expert stated that strenuous physical activity could cause glucose levels to drop , which could in turn lead to loss of consciousness . If the victim had experienced such a hypoglycaemic attack while under water and had , as a result , lost consciousness , it was possible that the lifeguards or other people in the pool might not have realised right away that there was a problem . In the light of all this information , the medical expert stated that the defendants had no responsibility in connection with the victim ’s death .

On DATE ORG requested another expert report from ORG regarding the liability of the defendants in respect of the death of Celal Başkaya .

On DATE ORG rejected that request as being outside the scope of its duties . ORG therefore ordered another expert report from CARDINAL experts on occupational safety .

In their report dated DATE the experts on occupational safety made the following findings :

– Considering that the victim knew how to swim , which was not contested , he must have experienced a health problem that caused him to lose consciousness and sink while halfway across the pool .

– Although it was not possible to determine with any certainty what type of health problem had brought about his drowning , the victim was diabetic . The possible outcomes of hypoglycaemia caused by strenuous physical activity had been outlined in the medical expert ’s opinion dated DATE ( see paragraph CARDINAL above ) .

– It therefore appeared that the victim had silently sunk to the bottom of the pool without calling for help or showing other signs of drowning as a result of his underlying medical condition .

– Bearing in mind that the victim had been CARDINAL of the many swimmers in the pool , it could not be expected for the lifeguards to follow all the movements of all the swimmers at all times and to intervene despite the absence of any signs of distress .

– In these circumstances , the lifeguards , who had intervened as soon as they noticed the victim at the bottom of the pool , could not be held accountable for the victim ’s death .

Relying on all the evidence and the information in the case file , on DATE ORG ordered the defendants’ acquittal .

The applicants appealed against that judgment . They objected in particular to the findings in the expert report issued by the physician on DATE . They also argued that the expert report of DATE had not been made available to them .

On DATE ORG quashed the judgment of the first instance court and decided to discontinue the proceedings as the prosecution of the offence in question had become time - barred . This decision , which was deposited with the registry of the first - instance court on CARDINAL DATE , was served on the applicants on DATE .

The applicants alleged , without submitting any supporting documents , that the lifeguards had been discharged from their duties in the aftermath of the incident . This information was neither confirmed nor contested by the Government .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in DATE and lives in GPE .

The applicant was born in GPE and grew up in a house in GPE which had been built by his grandfather in DATE . After the grandfather ’s death the applicant ’s uncle lived with his family on the first floor of the house , while the applicant ’s family lived on the second floor . The entrance to the house is common to the occupants of the first and second floors , and there is a common plot of land adjacent to it .

In DATE the applicant ’s uncle sold the first floor of the house to ORG

The applicant later moved to GPE with his father , who died there in DATE , leaving all his property to the applicant .

In DATE the applicant submitted his father ’s will to a notary in GPE . The notary then issued a certificate of inheritance and ORG registered his title in respect of the second floor of the house .

NORP In DATE ORG sold the first floor of the house to PERSON , who registered her title in respect of the first floor . She also obtained the right of common ownership in respect of the adjacent land .

It appears that PERSON and her family carried out construction works in the house and on the plot of land adjacent to it , modifying both the house and the surrounding area . They have built and are running a restaurant there .

On an unspecified date the applicant lodged a civil claim against PERSON , PERSON and ORG , seeking to annul PERSON ’s title in respect of the first floor and the adjacent land , and to oblige her to demolish the buildings constructed without the permission of the authorities and to restore the stone wall that she had destroyed . PERSON in her turn lodged a counterclaim against the applicant , seeking to annul the will and the subsequent registration of his title as regards the plot of land adjacent to the house .

By a judgment of DATE the ORG and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան – “ the ORG ” ) partially allowed the applicant ’s claim and dismissed PERSON ’s counterclaim .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) re - examined the case on the merits . It granted the applicant ’s claims in their entirety and rejected PERSON ’s counterclaim .

PERSON subsequently lodged an appeal on points of law against the judgment of ORG .

On DATE ORG of ORG ( ՀՀ վճռաբեկ դատարանի քաղաքացիական և տնտեսական գործերի պալատ ) dismissed PERSON ’s appeal on points of law and upheld the judgment of ORG . The judgment of CARDINAL DATE thereby became final and binding and a writ of execution was issued in this respect .

On DATE enforcement proceedings were instituted by ORG ( Դատական ակտերի հարկադիր կատարման ծառայություն – “ the DEJA ” ) .

Thereafter the head of the ORG division of ORG ( Անշարժ գույքի կադաստրի պետական կոմիտեի PERSON տարածքային ստորաբաժանում ) requested ORG to clarify the judgment of CARDINAL DATE .

On DATE ORG issued a clarification of the above - mentioned judgment . It stated , in particular , that the title to the plot of land adjacent to the house was to be registered in the applicant ’s name . This decision became final and was also submitted for enforcement .

On DATE the applicant lodged a civil claim against the GPE division of ORG , the ORG and PERSON , seeking to oblige the ORG division of ORG to comply with the requirements of the judgment of ORG of CARDINAL DATE and the decision of CARDINAL DATE concerning its clarification , to evict PERSON and other persons who were unlawfully occupying his property , and to terminate the activities of the restaurant situated therein .

By the judgment of CARDINAL DATE ORG allowed the applicant ’s claim in its entirety . It stated , in particular , that the applicant ’s title was to be registered in respect of the plot of land adjacent to the house and the constructions situated therein , that PERSON and the other persons occupying the applicant ’s property were to be evicted , and that these persons should terminate the activities of the restaurant .

After an appeal lodged by PERSON on DATE ORG re - examined the case and allowed the applicant ’s claim . In doing so , it stated that the judgment of CARDINAL DATE and the decision of CARDINAL October CARDINAL had not yet been enforced since the applicant ’s title had not been registered and the constructions had not been demolished . ORG went on to state that the non - enforcement of the above - mentioned judicial acts was in violation of LAW No . CARDINAL in that the applicant ’s right to peaceful enjoyment of his possessions was being violated by the illegal occupation of his property by PERSON without the applicant ’s permission . This judgment became final and binding on DATE of its delivery and on DATE enforcement proceedings were instituted in its respect .

Since DATE a number of decisions have been made by the bailiffs in respect of obliging PERSON to comply with the requirements of the judgment in the applicant ’s favour within certain time - limits . However , each time PERSON has failed to comply with these decisions , for which failure the bailiffs have each time imposed a fine . It appears that she has also failed to pay the fines .

In DATE enforcement activities were postponed on the grounds that various measures applied in respect of PERSON had been ineffective in view of the fact that the ORG needed to suspend the proceedings in order to conclude a contract with a construction company , given the absence of technical equipment necessary for conducting the compulsory construction works . It appears that at some point the proceedings were resumed .

By a letter of DATE the Minister of ORG informed the applicant ’s lawyer that the GPE division of ORG had justified the non - registration of the applicant ’s title in respect of his property by pointing to the fact that the constructions situated therein had not been demolished because the ORG did not have the appropriate technical equipment and workforce at its disposal .

It appears that until DATE other measures were initiated by the ORG , such as obliging the GPE division of ORG to perform the registration of the applicant ’s title , in accordance with the judgments in his favour , and setting new time - limits for PERSON to comply with her obligations . However , it appears that these measures did not lead to the full enforcement of the judicial acts in question .

On an unspecified date the applicant applied to ORG ( ՀՀ գլխավոր դատախազություն ) , seeking to have criminal proceedings instituted against those responsible for not enforcing the judicial acts in question . His request was refused .

Following a complaint lodged by the applicant , on DATE ORG annulled the decision of ORG to refuse to institute criminal proceedings , on the grounds that the investigator had not taken proper action to verify whether the bailiffs had carried out their duties properly with a view to securing the enforcement of the above - mentioned judicial acts in favour of the applicant . As a result , criminal proceedings were instituted against the bailiffs and officials of the GPE division of ORG .

On DATE the investigator terminated the proceedings on the grounds that the judicial acts in question had not – for objectively justifiable reasons – been enforced .

On DATE ORG annulled the investigator ’s decision of CARDINAL DATE , stating , inter alia , that the investigator had failed to determine why for DATE PERSON and other persons had not been evicted , the constructions on the applicant ’s property had not been demolished , and the activities of the restaurant had not been terminated DATE even after PERSON had been fined for not complying with the requirements of the judicial acts in question .

The prosecutor appealed against the above - mentioned decision of ORG .

On DATE ORG ( ՀՀ վերաքննիչ քրեական դատարան ) upheld the decision of DATE . As a result , the criminal proceedings were resumed on DATE .

Thereafter , the criminal proceedings were again terminated CARDINAL times , namely on DATE , CARDINAL DATE and DATE . The first CARDINAL termination decisions were successfully challenged by the applicant at CARDINAL levels of jurisdiction , following which the criminal proceedings were re - opened on the orders of those courts . As for the final decision by which the proceedings were once again terminated , the applicant lodged a complaint with ORG , but his complaint was rejected for failure to comply with the time - limits for lodging an application for supervisory review . According to the applicant , he did not pursue this last complaint any further .

According to the latest information received from the applicant , the enforcement proceedings were closed on DATE because the enforcement of the judgments was impossible . The judgments of ORG of CARDINAL DATE and DATE , as well as the decision of CARDINAL DATE , therefore remain unenforced DATE .


CASE OF PETROVIĆ AND OTHERS v. MONTENEGRO

No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants were born in DATE , DATE , DATE , and DATE respectively . The first applicant lives in PERSON and the second , third and fourth applicants live in GPE .

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

On DATE the first and second applicants and the father of the third and fourth applicants instituted civil proceedings against the ORG , seeking that they be recognised as owners of CARDINAL plots of land in the coastal zone ( u zoni morskog dobra ) . They submitted , in particular , that the land at issue had been lawfully owned by their father , but that without any legal basis the ORG appeared as the registered owner thereof in ORG , and that they should be declared owners as their father ’s legal successors ( kao pravni sledbenici ) .

On DATE ORG in PERSON ( PERSON , područna jedinica ORG ) , acting upon the first applicant ’s request , issued a decision allowing the division into CARDINAL of an adjacent plot of land , a forest in the coastal zone , the registered owner of which at the time was the Municipality . The Municipality remained registered as the owner of CARDINAL part of it , whereas the other part was registered in the name of the applicants’ predecessor ( the father of the first and second applicants , and the grandfather of the third and fourth applicants ) .

On DATE , after a remittal , ORG ( PERSON ) in GPE ruled against the first and second applicants and the third and fourth applicants’ father . The court found that the land at issue had indeed been owned by their predecessors , notably their father , grandfather and grand - grandfather , but that they had not proved that they had inherited it when their last predecessor had died in DATE . Notably , the court considered that the land at issue was in the coastal zone and thus ORG property pursuant to section CARDINAL of LAW of DATE and “ section CARDINAL and other sections ” of LAW ( see paragraphs CARDINAL and CARDINAL below ) , and that the claimants could not claim the right to property in respect of such land . The court made no reference to section CARDINAL of LAW ( see paragraph CARDINAL below ) . As regards the ORG ’s submission that the land had been nationalised , the court noted that the contents of the decisions relied on by the ORG could not be clarified . Notably , ORG Državni arhiv ) informed the court , on DATE and CARDINAL DATE , that the case files and decisions PERSON and PERSON , referred to by the ORG , had not been found in that institution . Finally , the court considered that ORG decision of DATE ( see paragraph CARDINAL above ) was “ of no particular influence ” ( bez posebnog uticaja ) given that it related to a different plot of land which was not the subject of these proceedings .

In their appeal the first and second applicants and the third and fourth applicants’ father confirmed that the said land had not been in their predecessor ’s estate when he died , which was exactly the reason why they had initiated these proceedings . They also submitted that : ( a ) LAW CARDINAL of LAW had never been complied with even though it was indisputable that their predecessor had lawfully owned the land ; and ( b ) the relevant legislation did not prohibit private ownership of land in the coastal zone , and referred to section CARDINAL of LAW and LAW DATE ( see paragraphs CARDINAL and CARDINAL below ) . They reiterated that the adjacent plot of land , also a forest in the coastal zone , was privately owned , by them , and submitted the decision of ORG . They maintained that the first - instance court ’s reasoning that the said decision was of no influence indicated legal uncertainty , given that the same legal issue was treated differently without any explanation in that regard .

On DATE ORG ( PERSON ) upheld the first - instance judgment . It found that the land at issue was indisputably forest in the coastal zone , that it was ORG property pursuant to LAW and that the claimants therefore could not claim ownership . The court further held that even assuming that the claimants had had ownership of these plots of land , they had lost it “ in accordance with LAW and LAW . In support of this was also section CARDINAL of LAW , relied upon by the claimants , which provided that the owners of land in the coastal zone , who had obtained it in a lawful manner before that LAW entered into force and which was duly registered in ORG as private property , were entitled to compensation in case of an expropriation ” . ORG made no reference to the decision of DATE and the status of the adjacent plot of land , or as to whether the claimants could have inherited the land .

On DATE ORG ( PERSON ) upheld the previous judgments . The court made no explicit reference to the adjacent plot of land and the decision of DATE . It held as follows :

“ As the real estate at issue is in the coastal zone regime DATE common resource ( dobro od opšteg interesa ) , the lower courts correctly applied the substantive law when they ruled in the said way . Notably , pursuant to section CARDINAL of LAW , which had been in force until LAW entered into force ( ORG no . CARDINAL ) , coast is owned by the ORG and could not be object of the private property .

The claimants were wrong to consider that the issue was to be resolved by means of LAW . That provision regulated the rights of the owners of land in the coastal zone who had obtained the property thereof before that LAW entered into force by providing that they were entitled to compensation in case of an expropriation [ ... ] . That means that the land did not remain in the private property regime , but became ORG property by the law itself .

Likewise , section DATE ) of LAW DATE is inapplicable to the present case as it can not be retroactively applied to relations which had arisen before it came into force . Exceptionally , the right to property over a coastal zone can be acquired only after it entered into force . ”

On DATE the first and second applicants and the third and fourth applicants’ father lodged a constitutional appeal . They submitted , inter alia , that it was not true that land in the coastal zone could not be privately owned , as numerous plots of land in that zone were private property , including the plot of land adjacent to the CARDINAL at issue , which was owned by them . They invoked the right to a fair trial and the right to property , and reiterated the importance of legal certainty .

On DATE ORG dismissed the constitutional appeal . It held that the lower courts’ assessment “ was based on a correct application of substantive law and a constitutionally acceptable interpretation thereof , in accordance with LAW . As regards LAW No . CARDINAL the court held that a claim which had been dismissed because the claimants did not meet statutory conditions was not considered a possession that could constitute property rights , and thus there could be no violation of such a right either . This decision was served on DATE at the earliest .

On DATE the third and fourth applicants’ father died , leaving the third and fourth applicants as his heirs .

On DATE ORG issued a general legal opinion ( načelni pravni stav ) relating to the use of land in the coastal zone . In reaching this opinion , ORG analysed the relevant domestic legislation , including the LAW , LAW DATE , LAW and LAW . It found , inter alia , that section CARDINAL ) of the Property Act provided that exceptionally coastal zone can be privately owned , while at the same time section GPE ) of the same Act provided that the coast can not be privately owned . It also found that the conditions under which the coastal zone can be privately owned are not provided for by law ( nisu zakonom određeni ) , “ which leaves open numerous questions on practical implementation ” . The court concluded that “ by analysing [ the relevant legislation ] it can be concluded that acquiring private property rights in respect of the coastal zone is not possible save in exceptional cases which are not defined by legislation . It can also be concluded that the issue of lawfully acquired rights in respect of the coastal zone is not regulated in a precise and clear manner ... ” , but that it was a fact that there were lawfully acquired property rights over the coastal zone , as indicated by CARDINAL of LAW .


Remainder inadmissible;Violation of Article 14+8-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

Mr GPE ( “ the first applicant ” ) was born in DATE . Mr ORG ( “ the second applicant ” ) was born in DATE . They live in GPE .

The applicants have formed a same - sex couple since DATE . They lived in GPE , with the status of unmarried couple , until DATE , when they decided to settle in GPE on grounds of the first applicant ’s poor health .

During their first period of residence in GPE the second applicant had a student ’s temporary residence permit . He subsequently applied for a residence permit for family reasons , under LAW no . CARDINAL of DATE ... .

On DATE the chief of the GPE police rejected his application on the ground that the statutory criteria were not satisfied .

On DATE the applicants appealed on the basis of Legislative Decree no . CARDINAL of DATE , requesting that the second applicant be issued with a residence permit for family reasons .

NORP In a judgment of DATE ORG allowed the ORG appeal .

The court observed that the applicants were recognised as a couple in GPE , the first applicant having been issued with a residence permit in that country for family reasons in his capacity as an unmarried partner . The court found that the applicants’ status as an unmarried couple was not contrary to NORP public policy , as de facto couples received social and legal recognition in the NORP system . In the court ’s view , LAW no . CARDINAL of DATE ... had to be interpreted in conformity with the principles established by LAW , which meant that a same - sex cohabiting partner should be regarded as a “ member of the family ” of the NORP national and thus entitled to obtain a residence permit .

The court found that the right asserted by the second applicant also derived from ORG and CARDINAL of Directive CARDINAL/CARDINAL/EC of QUANTITY DATE of ORG and of the Council ... , which recognised the right of the partner of a citizen of ORG ( ORG ) to obtain a residence permit where the existence of a durable relationship was duly attested .

NORP The Minister of ORG appealed against the judgment of ORG .

In a judgment of CARDINAL DATE ORG allowed the appeal . It observed that the GPE authorities had recognised that the applicants had the status of “ unmarried cohabiting partners ” and not that of “ members of the same family ” .

ORG found , first , that the lower court ’s recommended interpretation of Legislative Decree no . CARDINAL of DATE , according to which the “ cohabiting partner ” was regarded as a “ member of the family ” , was not compatible with the NORP legal system , which , according to the court , ascribed a different scope and meaning to those CARDINAL legal concepts . Secondly , ORG pointed out that ORG had repeatedly held that a relationship based on cohabitation alone , and lacking stability and legal certainty , could not in any circumstances be regarded as a legitimate family based on marriage .

ORG found that GPE law was not compatible with NORP public policy on the grounds , firstly , that it regarded persons of the same sex as “ cohabiting partners ” and , furthermore , that it could be construed as conferring the status of “ family members ” on them for the purposes of granting them a residence permit . Lastly , it added that neither NORP law , particularly Directive No CARDINAL/CARDINAL/EC ... , nor the provisions of LAW , obliged the GPE to recognise same - sex relationships .

The applicants appealed on points of law .

In a judgment of DATE , the text of which was deposited with the registry on CARDINAL DATE , ORG dismissed the ORG appeal .

ORG observed first that , according to the terms of LAW no . CARDINAL of DATE ... , the concept of “ family member ” extended only to spouses , minor children , adult children who were not self - supporting for health reasons , and dependent relatives who lacked adequate support in their country of origin . It pointed out that as ORG had , moreover , ruled out the possibility of extending to cohabiting partners the protection granted to members of a legitimate family , the LAW did not require an extensive interpretation of LAW cited above .

ORG also considered that Articles CARDINAL and CARDINAL of the Convention did not require such an interpretation either . In its view , those provisions left a wide margin of appreciation to the GPE regarding the choice of means of exercising the rights they guaranteed , particularly in the area of immigration control . ORG added that there had been no discrimination on grounds of the applicants’ sexual orientation in the present case . It observed in that connection that the non - eligibility of unmarried partners for a residence permit for family reasons applied to opposite - sex couples as well as same - sex partners .

Lastly , it held that NORP Directive CARDINAL/CARDINAL/EC ... , which concerned the right of GPE citizens to move freely within the territory of the Member GPE other than their ORG of origin , did not apply to the present case , which concerned family reunification with an NORP national resident in his own country .

After being notified of ORG judgment , the applicants left GPE in DATE . They moved to the GPE , where the second applicant was issued with a DATE residence permit on DATE as a de facto partner in a long - term relationship with an ORG national .

On DATE the applicants married in GPE . They stated that they had chosen to marry for personal reasons and not in order to obtain a residence permit , as the GPE authorities had already issued CARDINAL to the second applicant . They added that the marriage contracted in the GPE did not allow them to live together in GPE . On DATE the second applicant obtained a second DATE residence permit in the GPE , valid until DATE .