Preliminary objection dismissed (non-exhaustion);No violation of Art. 5;Violation of Art. 13;Failure to comply with obligations under former Art. 25;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case , particularly concerning events during DATE when GPE and PERSON went missing , were disputed by the parties . The Commission , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .

The Commission Delegates ( PERSON , Mr PERSON and Mr PERSON ) heard witnesses in GPE on DATE and on CARDINAL to CARDINAL DATE . These included the applicant ; her son PERSON ; PERSON , wife of PERSON ; PERSON , the wife of PERSON ; PERSON , the muhtar of PERSON ; PERSON , a villager ; PERSON , a villager ; PERSON , a former ORG team commander ; PERSON , a former high ranking member of the ORG ; PERSON , ORG district gendarme commander ; PERSON , commander of the local gendarme station at GPE ; PERSON , deputy commander at GPE ; PERSON , ORG public prosecutor ; and PERSON , ORG prosecutor .

The DATE ’s findings of fact are set out in its report of CARDINAL DATE and summarised below ( Section A ) . The applicant accepted the ORG ’s findings of fact . The Government ’s submissions concerning the facts are summarised below ( Section B ) .

PERSON was a small village of about QUANTITY houses , situated in the region of ORG in the south - east of GPE . The nearest gendarme station was QUANTITY away at GPE . PERSON was QUANTITY from GPE , where the district gendarme headquarters were based .

PERSON was QUANTITY from the highway leading from PERSON to ORG . While the ground between the village and the highway was generally described as being open and flat , there was higher ground behind the village and a forested area . TIME behind the village to the south was the mountainous area known as Anadere . As elsewhere in the region in DATE , ORG activity was intense . Anadere was used by them as a base for their activities . PERSON lay in the so - called CARDINALst district of Garzan ( the name given by the ORG to this region ) and was known by the security forces to be under the command of a man code named “ Berham ” . There was another member of the ORG , a woman known as “ NORP ” , who was active in visiting the villages in this district .

NORP The village school was close to the main highway . In DATE , it was closed , apparently due to fear that it would be subject to attack . The evidence from villagers indicated that the district gendarme commander Captain PERSON had instructed them to protect their village . Captain PERSON denied giving any such instructions to persons who were not part of the security forces or official village guards . The Commission noted that he might have nonetheless “ encouraged ” them to do what they could to protect their school . In any event for a short period before DATE , villagers , armed with their own shotguns , stood guard during TIME at the school .

On TIME , CARDINAL villagers , PERSON , PERSON , PERSON and PERSON were on guard at the school at PERSON . According to their statements taken by the gendarmes DATE , CARDINAL armed men arrived in a vehicle below the school from the direction of the tarmac road at times given variously as TIME . After PERSON challenged the approaching men , the villagers started firing first and the men responded with automatic weapon fire . The shooting continued for not TIME before the men drove off in the direction of the tarmac road once more . The villagers gathered to see what had happened . They dispersed to their homes , the CARDINAL guards also .

The applicant relied on the statement of her husband PERSON to ORG in ORG ( “ HRA ” ) that the men who came to the school were soldiers in a green military vehicle and pointed to the unlikelihood that the ORG would have arrived from the patrolled FAC highway or that they would have fled in that direction . She considered that a security force operation took place at that time in the vicinity of the village , perhaps an ambush of the ORG who were expected to arrive in the village . When the villagers challenged the soldiers arriving to position themselves near the school on the outskirts of the villagers , a clash mistakenly broke out .

The Commission noted that a standard form incident report dated DATE indeed referred to an armed clash having taken place at TIME at PERSON when security forces were in ambush positions round the village expecting the PERSON to arrive for a meeting at the school . A conflict broke out when terrorists were seen at the school . Fire was also opened on the security forces from terrorists on the hill to the south . A description was given of intense firing , involving mortars and tanks , which continued until TIME and which necessitated a request for reinforcements . This document was not provided to the ORG before the hearing of witnesses and was not put to Captain Ertuğrul , the district gendarme commander who gave oral testimony that there was no operation at GPE that night . He described an altogether different scenario , according to which the ORG opened fire on a mechanised team patrolling the road near the village at TIME , after which there was only a brief TIME conflict . The team , on his account , did not enter the village and would not have been able to do so without permission , which they did not request . On this version , the security forces did not enter the village until TIME at TIME , after the applicants’ children had been taken away . This account mirrored the report dated CARDINAL DATE issued by the gendarmes investigating the incident .

The Commission considered that the standard form incident report cast grave doubts on the reliability of Captain Ertuğrul ’s evidence . As district gendarme commander , it would have expected that he would be informed of operations conducted in his jurisdiction . Though the document is incomplete at the bottom and no signatory appears , it was sent from the ORG district gendarme command which was under his responsibility . It appeared likely from the description of the units involved in the operation that some of his own men were involved . The ORG noted that there was other evidence to support the incident report :

– the written statements of the villagers almost all referred to firing occurring after the incident at the school ;

– the applicant in her oral testimony described heavy firing , which lit up the sky ;

– PERSON and PERSON described firing as occurring over a long period during the night ;

– the other villagers PERSON and PERSON also referred to more firing occurring . Only PERSON recalled hearing no more firing after the first clash at the school .

– notwithstanding Captain Ertuğrul ’s denial that the mechanised team would have entered the village , they were already present on the outskirts of the village when he and PERSON arrived at first light . He also had with him a special team , specifically trained in counter - terrorism , whose role in events was unspecified .

The Commission concluded that an operation took place in close proximity to PERSON during TIME , involving heavy firing . While there was some evidence that there were security forces at the school at some point during TIME , it would appear at least likely that there were ORG men also in the vicinity . There was no allegation that the security forces were firing punitively at the village as a target throughout TIME . On the evidence , it was unable to establish whether the men fired at by the villagers at the school were ORG members or soldiers .

At TIME on DATE , CARDINAL armed men arrived at PERSON house . These CARDINAL men required PERSON to take them to the house of PERSON . There , they found that his daughter PERSON was absent and leaving PERSON at the PERSON house , took the son PERSON to show them the house of LOC where GPE was spending TIME . They left that house with GPE , GPE and GPE . After a while , they released PERSON and disappeared with GPE and GPE , who were never seen by any of their family or the villagers again .

The Commission identified the crucial point of disagreement as being whether the CARDINAL men were soldiers or members of the ORG .

The evidence which supports the allegations that they were members of the security forces included principally :

– PERSON statement to the ORG of DATE ;

– the oral evidence given to the Commission delegates by the applicant and her CARDINAL daughters - in - law , PERSON and PERSON , all of whom were present during the incident ;

– an inference which could be drawn from the letter of DATE from the gendarmes in answer to a letter from the ORG public prosecutor that an allegation had been made to the prosecutor that GPE and PERSON had been taken into custody , indicating that a complaint was made shortly after the event that the security forces were responsible for the disappearance of the applicant ’s children .

The Commission noted that there was considerably more evidence which identified the CARDINAL men as members of the ORG . This included principally :

– the written statements taken on DATE from the applicant , the muhtar , PERSON and the CARDINAL village guards ;

– the written statement taken on DATE from PERSON by a public prosecutor ;

– the oral evidence given by CARDINAL eye witnesses PERSON and PERSON which described the men as wearing civilian clothes and items of dress consistent with ORG usage ;

– the oral evidence of the CARDINAL “ confessors ” PERSON and PERSON , who as members of the ORG , alleged that GPE and PERSON were taken to join the ORG and were executed when they tried to return to their home ;

– the oral evidence of gendarme witnesses that PERSON family were known sympathisers and GPE and ORG had left voluntarily .

The Commission found that there were difficulties with the evidence on both sides . The patchy nature of the investigative work of the gendarmes was in the circumstances of this case however as equally consistent with negligence and bad practice as with deliberate manipulation of the evidence . The written statements taken by the gendarmes gave largely similar but not identical versions of events and were also supported by the oral evidence of PERSON and PERSON .

The Commission noted the ORG assessment of the villager witnesses , PERSON and PERSON , who were found to be frank and convincing witnesses in the way they told their stories . There was no element in the evidence of either man which cast doubt on their credibility . The ORG ’s delegates found no indication , for example , that these CARDINAL witnesses were motivated by fear in giving their testimony .

The Commission gave little weight to the oral evidence of the CARDINAL “ confessors ” or ex - members of the ORG . The account of PERSON was riddled with contradictions while PERSON made an unfavourable impression in the cold - blooded manner in which he gave his testimony . Neither was found to be credible by ORG and no satisfactory explanation was given as to how they were identified as being able to give relevant testimony , since neither had apparently made any statement to the authorities that they had knowledge of events . While neither witness was a member of the so - called ORG CARDINALst district and both were at pains to point out that members from CARDINAL district were unable to involve themselves in the affairs of other districts , both claimed to have obtained information about the alleged execution of GPE and PERSON by the ORG over the radio . Yet neither were apparently aware of the existence of a female terrorist code named “ NORP ” well - known as active in that area . The ORG found their evidence unsatisfactory and unreliable and was not prepared to base any findings of fact on their testimony .

As regarded the evidence that GPE and PERSON were ORG sympathisers , Captain Ertuğrul ’s opinion was based on information which he had received from ORG informers in the villages . The CARDINAL other gendarme officers from the local station had however no knowledge that the PERSON family were suspected sympathisers . PERSON expressed the opinion nonetheless that ORG had left voluntarily with the ORG , but was unable to give any firm ground for that belief beyond that this was being said in the village . As pointed out by the applicant , all the written statements referred to their abduction . The oral evidence of the applicant and PERSON and PERSON also indicated that the men used force . PERSON referred to seeing the men drag some - CARDINAL out of the PERSON house while PERSON described PERSON as acting under duress . The Commission found therefore that there was insufficient evidence to conclude that GPE and PERSON left with the men voluntarily .

The Commission stated that it could give little weight either way to the written statements of PERSON , his statement to the ORG accusing the soldiers and his later statement to the public prosecutor apparently contradicting this version . He had died and was unable to provide any explanation for these differences .

The Commission took the view therefore that the key issue in this respect was whether the applicant ’s oral evidence , supported by her daughters - in - law , was of such a nature as to outweigh and cast substantial doubt on the oral evidence of the other villagers .

As regarded the credibility and reliability of the oral evidence given by the applicant , PERSON and ORG , the ORG found that their description of the incident at the house when the men arrived varied in significant details . According to the applicant , CARDINAL men entered the house , wearing camouflage uniform , CARDINAL of whom wore a red mask . PERSON said that the CARDINAL men all wore red masks , specifying that they had beards and moustaches attached to the masks . According to ORG , all CARDINAL men , CARDINAL of whom had masks , came inside . She and PERSON described them , in contradiction of the applicant , as speaking only NORP . The Commission which had not heard in any previous case of a practice of any security forces wearing masks , found this to be a puzzling feature and that this aspect of their testimony was unconvincing . It further noted that the applicant , who was relatively old , had demonstrated a selective memory , in particular in categorically denying recent events . She was not altogether clear in her evidence on some points . Whether this was due to the lapse of time or her own advanced years , it detracted in the QUANTITY view from the reliability that could be placed on it . They also found that ORG , who was CARDINAL at the time of events , gave an impression of being rehearsed in her account .

The Commission concluded that it had not been established , to a standard of proof beyond reasonable doubt that the CARDINAL men who came to the applicant ’s house were from the security forces . Nor however was it established that they were from the ORG .

Captain PERSON and the deputy station commander ORG entered the village at dawn on DATE . The station commander PERSON arrived at TIME . A search was carried out of the houses . The task of drawing up the incident report , damage evaluation report , sketch map and the taking of statements were assigned to PERSON as the local station commander . Explosive devices were found during the search and a villager GPE was taken into custody .

A number of villagers went to the local station DATE to make statements – the applicant , the muhtar , the CARDINAL villager guards and PERSON . PERSON who had talked to the muhtar about his part in events was not summoned to give a statement by the gendarmes . The evidence as to whether any statement was taken from PERSON conflicted . No written statement has been produced by the authorities .

A complaint that the security forces were involved in detaining GPE and PERSON was made to the ORG public prosecutor on or shortly before DATE . The Commission was satisfied that this derived from the applicant ’s family . The only step taken by the ORG public prosecutor was to enquire from the district gendarme command whether they held the missing people . Captain PERSON on his own account made no investigation and discussed the matter with CARDINAL as he stated that he knew that they were not in custody .

The PERSON gendarmes submitted the evidence which they had gathered to the ORG public prosecutor – this consisted of the sketch map , scene of incident report , damage evaluation report and the statements of the applicant , PERSON , PERSON and the CARDINAL villager guards at the school . It is not established whether or not a statement was ever taken from PERSON . There is no evidence however that CARDINAL was ever received by a public prosecutor dealing with the case . The ORG public prosecutor PERSON considered this material was sufficient to establish the offences clearly and proceeded to issue a decision of lack of jurisdiction on DATE in respect of the kidnapping of GPE and PERSON by CARDINAL ORG terrorists , sending the case to the ORG SSC prosecution .

A further petition was lodged with the ORG public prosecutor on CARDINAL DATE , in which the uncle of the missing persons claimed that GPE and PERSON had been taken away by the security forces , asked whether they had been brought before a judge and if not that they should be immediately , and that he requested the necessary steps be taken .

The ORG SSC prosecution sent a standard letter to district authorities on DATE requesting them to continue the search for the kidnappers and to report DATE , providing copies of any relevant confessions , statements etc . No information was forthcoming . The request made on DATE for statements to be taken from the applicant , PERSON , PERSON , PERSON , PERSON and the CARDINAL villagers guards was in light of the communication to the Government of the application to the ORG . CARDINAL statement , that of PERSON , was taken . The public prosecutor , PERSON , attributed this to the fact that all the villagers had moved and could not be found . However , a letter dated DATE from the ORG district gendarmes gave the towns to which the persons were thought to have moved . There was nothing to indicate that any further steps were taken to trace any of them . That PERSON , PERSON and PERSON could be found is indicated by their appearance after being summoned to the hearing in GPE .

On DATE , the ORG prosecutor sent a reminder , DATE , that the earlier instruction of DATE for reports to be made regularly as to the investigation , had not been complied with . He told the Delegates that this was to obtain more effective action from the district authorities . It is not apparent from the material provided that any information was forthcoming . While by this time the CARDINAL confessors , PERSON and ORG , had surrendered ( in DATE and DATE respectively ) any information provided by them or the fact that they might be in a position to provide information was not passed on to the ORG SSC public prosecutor , who told the Delegates he would have regarded it as relevant to the investigation . Nor is it evident that any information relating to the alleged execution of the CARDINAL missing persons was passed on to the local gendarme station which made occasional reports to the ORG public prosecutor or to the ORG district gendarme command .

On DATE , the file was transferred following a decision of lack of jurisdiction to the ORG prosecutors who on DATE made the standard request for reports to be made on the investigation DATE . It is not apparent that they have been provided with any further information . The latest report from ORG district gendarme command stated that no information was available concerning the abductors of GPE and PERSON but that the search was continuing .

On DATE , a statement was taken from the applicant ’s lawyer PERSON by the ORG SSC chief public prosecutor . This stated that PERSON was registered at the ORG bar and vice president of the ORG , as well as President of the ORG branch . He recalled PERSON coming to see him DATE before , telling him that his son and daughter had disappeared . He told PERSON that domestic remedies had to be exhausted . He recalled writing to the Governor and ORG chief prosecutor for him and telling him to go to the ORG chief prosecutor . After a long while , PERSON came back to the ORG , saying that he had obtained no results from the authorities save a document which said that his son and daughter had been kidnapped by the ORG . As he disagreed with this , PERSON told him that he could apply on the basis of the ORG ’s ratification of the Convention . He confirmed that it was his signature on the document shown to him . His signature was not based on any power of attorney but on the basis of the purpose of the ORG .

By an indictment dated DATE by ORG SSC chief public prosecutor , PERSON was accused of violating PERSON no . ORG DATE and DATE . It was stated that the defendant had prepared an application titled ORG without a client - solicitor relationship having been established . The purpose of this was to degrade the ORG and make propaganda in favour of the ORG . His prosecution under PERSON no . CARDINAL as well as appropriate action under PERSON no . ORG and CARDINAL was requested .

The Government submitted that at TIME on DATE ORG terrorists arrived as LOC and opened fire on the school . At TIME , CARDINAL armed ORG terrorists wearing local peşmerge dress came to the applicant ’s house and took away her son GPE . They went to a neighbour ’s house and took PERSON away also .

At TIME , a mechanised team patrolling the ORG arrived at the village and fire was exchanged between them and the terrorist group . After TIME , the terrorists ran away towards the Anadere region . At TIME , the security forces entered the village for investigation . It was established that the village school had been damaged and GPE and ORG taken away by ORG terrorists . The evidence of PERSON and PERSON indicated that GPE and PERSON had been aiding and abetting the terrorists and when their identity had become known it was necessary for the ORG to kidnap them . They joined the ORG in the mountains under the code names ‘ Roken’ and ‘ Dilgeç’ . When they tried to leave , they were executed by the ORG .

The applicant in her statement to the gendarmes , which accorded with the statements of the other villagers , identified the ORG as the perpetrators .

The Government have provided the ORG with a copy of the decision of ORG No . CARDINAL , dated DATE , acquitting the lawyer PERSON of the charge under section CARDINAL paragraph CARDINAL of the PERSON no . ORG . The court found that the statement taken from PERSON by PERSON did not contain expressions of written propaganda .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . It is also an offence for a government employee to subject CARDINAL to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) or to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) .

The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutor ’s offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants ( sometimes referred to as LAW ) , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor ’s authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person ’s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender ’s superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative act ” or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .


Violation of Art. 6-2;Just satisfaction reserved

The applicant , Gerardus A.M. Geerings , is a GPE national who was born in DATE and lives in GPE .

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

On an unspecified date , the applicant was arrested and placed in pre - trial detention on suspicion of involvement – together with others – in various ( attempted ) thefts of lorries containing merchandise and thefts of merchandise from lorries ( inter alia , washing machines , laundry dryers and other household appliances , telephones , computer parts , car radios , audiovisual devices and materials , clothes , bags , shoes , camping and sports equipment ) committed DATE and DATE .

On DATE the applicant was summoned to appear before the ' sHertogenbosch ORG ( arrondissementsrechtbank ) on CARDINAL DATE in order to stand trial on various charges of ( attempted ) burglary , deliberately handling stolen goods and membership of a criminal organisation . Separate criminal proceedings were brought against a number of co - accused .

In its judgment of CARDINAL DATE the ' s - ORG convicted the applicant of several counts of participation in ( attempted ) burglary , deliberately handling stolen goods and membership of a criminal organisation . ORG found it established that the applicant had been involved in the theft of CARDINAL laundry dryers from a lorry and a trailer ; the theft of a lorry ; the theft of large numbers of telephones , computer parts and car radios from a lorry ; the theft of CARDINAL CD auto changers , CARDINAL radio cassette players and a speaker sound system from a truck ; the theft of large quantities of , inter alia , audio devices , dishwashers , shoes , vacuum cleaners and clothing from lorries and thefts of lorries ; the handling of CARDINAL or more stolen video cameras ; the attempted theft of a lorry and the attempted theft of goods from a lorry . It sentenced the applicant to DATE imprisonment less the time spent in pre - trial detention .

The applicant lodged an appeal with the ' s - Hertogenbosch Court of Appeal ( gerechtshof ) . In its judgment of CARDINAL DATE ORG quashed the judgment of CARDINAL DATE , convicted the applicant of having participated on CARDINAL or DATE in the theft of a lorry and a trailer containing CARDINAL laundry dryers , of having on DATE stolen an articulated lorry and a number of printers and of having handled DATE in the period between CARDINAL August CARDINAL and DATE a piece of clothing and a video camera in the knowledge that these items had been obtained through crime . It acquitted the applicant of the remainder of the charges , having found that these had not been lawfully and convincingly proved . ORG sentenced him to DATE imprisonment , of which DATE were suspended for DATE . In addition , it declared inadmissible the compensation claim filed by ORG ( benadeelde partij ) . Finding this claim to be too complicated to be dealt with in criminal proceedings , ORG decided that it should be brought before a civil court .

In the meantime , on DATE , the public prosecutor had summoned the applicant to appear before the ' sHertogenbosch ORG on DATE in order to be heard in connection with the prosecutor 's request for an order for the confiscation of an illegally obtained advantage ( vordering tot ontneming van wederrechtelijk verkregen voordeel ) within the meaning of LAW ( Wetboek van Strafrecht ) , which had been assessed by the public prosecutor at a total amount of MONEY ( NLG – equivalent to MONEY ( ORG ) ) .

At the hearing held before ORG on DATE the prosecutor maintained the request for a confiscation order , arguing that it also concerned similar offences as referred to in LAW and that , although ORG had acquitted the applicant of most of the offences he had been charged with , there remained sufficient indications that he had committed them . The applicant argued that a confiscation order could only be imposed in respect of the offences of which he had been found guilty . This would , according to the prosecutor 's assessment , result in a confiscation order for an amount of NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) at most .

NORP In its ruling of CARDINAL DATE ORG issued a confiscation order for the amount of NLG CARDINAL , to be replaced , if this sum was not paid or recovered , by DATE detention in lieu . It held that the acquittal in the judgment handed down by ORG on DATE , for which no specific reasons were given , could therefore only be understood as meaning that there were no indications that the applicant had committed the offences concerned , let alone that he might have derived any resulting advantage .

The applicant , but not the public prosecutor , filed an appeal against this ruling with the ' s - Hertogenbosch Court of Appeal . The applicant denied having derived any advantage from the offences of which he had been convicted .

In its decision of DATE , following a hearing held on DATE , ORG quashed the ruling of DATE and imposed a confiscation order in the amount of NLG CARDINAL , to be replaced , if this sum was not paid or recovered , by DATE detention in lieu . Its reasoning included the following :

“ [ The applicant 's acquittal ] on appeal of a number of offences [ with which he had been charged ] does not lead to the conclusion that those offences , in view of their nature , can no longer be regarded as similar offences within the meaning of LAW of LAW . The relevant applicable statutory provisions do not oppose this in any way . In addition to the condition of similarity , it is only required that there exist sufficient indications that [ the applicant ] has committed the offences concerned .

The court is therefore of the opinion that it can still consider , in respect of all offences on which the public prosecutor has based the [ request for a confiscation order ] , whether there exist sufficient indications [ that the applicant has committed them ] .

By judgment of DATE of the ' s - ORG [ the applicant ] has been convicted of ...

Pursuant to LAW it must be examined whether , and if so to what extent , the defendant has illegally obtained an advantage – including savings in costs – by means of or from the proceeds of the offences found proved , of similar offences or of other offences in respect of which there exist sufficient indications that they have been committed by the defendant and for which a fifth - category fine may be imposed .

The court finds that [ the applicant ] has not only illegally obtained an advantage from the above - mentioned offences ... found proved , but has also obtained an advantage from the following similar offences , all set out in the initiatory summons served on [ the applicant ] ... in respect of which [ offences ] there are sufficient indications that they have been committed by him .

The amount fixed by the court as the estimated advantage obtained by [ the applicant ] is set out after each of the offences .

count CARDINAL of the initiatory summons , referred to as case CARDINAL : advantage NLG CARDINAL ;

count CARDINAL g of the initiatory summons , referred to as case CARDINAL : advantage NLG CARDINAL ;

count QUANTITY of the initiatory summons , referred to as case CARDINAL : advantage NLG CARDINAL .

The court will fix the estimated advantage obtained by [ the applicant ] from the offences found proved , in accordance with the decision of ORG , in the following amounts :

count CARDINAL of the initiatory summons , referred to as case CARDINAL : advantage NLG CARDINAL .

The court therefore fixes the amount of the estimated advantage illegally obtained by [ the applicant ] at NLG CARDINAL .

The court derives the assessment of the [ applicant 's ] illegally obtained advantage inter alia from a report of CARDINAL DATE by ORG , Financial Desk / BFO of ORG of the LOC - East Brabant Regional Police ( reference PERSON - CARDINAL ) , in particular as regards the calculation of the proceeds of the stolen goods and the distribution of the proceeds between those concerned .

The means of evidence used by the court are set out in the addendum as referred to in LAW and ORG of LAW ( PERSON Strafvordering ) ; this addendum is appended to this ruling . ...

It was argued in the appeal proceedings by and on behalf of the [ applicant ] that he had never received pecuniary remuneration for his part in the offences in which he was involved . The court rejects this argument , since the court has become convinced , on the grounds of the evidence cited above , that the [ applicant ] participated in a group of persons who were systematically involved in a very lucrative manner in the theft of costly goods from lorries , and that it is wholly implausible that the [ applicant ] should not have obtained his share of the proceeds of those goods that , according to the cited means of evidence , have often demonstrably been sold for good money ... ”

In relevant part , the police report of CARDINAL DATE , as appended to this ruling , reads as follows :

“ Determination of the illegally obtained benefit :

A. Where amounts of money received are known

The starting point in determining the amount of an illegally obtained advantage under LAW is the advantage actually obtained by the suspected / convicted person .

In several of the incidents investigated , the amount of money that was paid by the receivers of stolen goods to the thieves and/or other receivers of stolen goods for the goods stolen appears from recorded intercepted conversations and/or statements .

These amounts have been ascribed , as illegally obtained benefit , to the perpetrator(s ) and , where appropriate , divided evenly among the persons concerned .

Relevant costs incurred by the suspect(s ) have been taken into account .

B. Where amounts of money received are not specifiable

The following is apparent from the criminal investigation .

It appears from the appended intercepted conversation ( appendix CARDINAL ) that the ... receiver of stolen goods PERSON paid PERCENT of the wholesale trade value to the thieves ....

It appears from the appended intercepted conversation ( appendix CARDINAL ) that a receiver of stolen goods ( GPE ) , when calculating in accordance with normal practice , reckons CARDINAL . This presumably means CARDINAL of the retail price ... Where there is no specific information about the amounts of money received by the thieves and/or receivers of stolen goods , the illegally obtained benefit was assessed on the basis of the wholesale purchase value , excluding ORG ( value - added tax ) , of the stolen goods .

Calculation in respect of the thieves

With regard to incidents where the amount paid by the receivers of stolen goods to the thieves does not appear from the investigation , it has been assumed that an amount of PERCENT of the wholesale purchase value , excluding ORG , of the goods stolen was paid to the thieves .

Applying this estimate results in a lower amount for illegally obtained benefit than an estimate based on PERCENT of the wholesale trade value or PERCENT of the retail price as the case may be . This is to the advantage of the suspect(s ) . ”

In respect of each of the counts CARDINAL , CARDINAL , CARDINAL - i and QUANTITY , as set out in the initiatory summons issued in the applicant 's case , the report of CARDINAL DATE in so far as it was used in evidence by ORG in the confiscation proceedings – contains a statement that , in the substantive criminal proceedings at first instance , the applicant was convicted of the charge concerned . It further appears from this report that , in respect of each of these counts , the estimate of the illegally obtained advantage was mainly based on the contents of intercepted telephone conversations in which the participants ( thieves and handlers of stolen goods ) discussed money matters in relation to stolen goods , the presence of some of the stolen goods in the homes of a number of perpetrators , and the wholesale purchase value of the stolen goods .

The applicant lodged an appeal in cassation with ORG ( PERSON ) against the ruling of DATE , complaining inter alia that the imposition of a confiscation order in respect of offences of which he had been acquitted violated his right to be presumed innocent as guaranteed by LAW .

In his advisory opinion , the Procurator General at ORG considered – on the basis of the ORG 's considerations in its judgment in the case of ORG v. the GPE ( no . CARDINAL , § § CARDINAL and DATE , ORG CARDINAL-VII ) – that the scope of LAW generally did not extend to confiscation proceedings , but that this did not affect the obligation to verify whether it followed from the particular circumstances of the applicant 's case that an issue under LAW arose nevertheless . On this point , the Procurator General considered , on the basis of an extensive analysis of the ORG 's case - law under LAW , that the question arose whether the conclusion of ORG that there were sufficient indications that the applicant had committed offences similar to those of which he had been convicted entailed a finding of “ guilt ” , taking into account that the applicant had been acquitted of those similar offences .

The Procurator General observed that ORG had found that , despite the acquittal , there were sufficient indications that the offences of which the applicant had been acquitted had been committed by him . In his opinion , this was incompatible with the general rule DATE reaffirmed by ORG in its judgment in the case of PERSON v. GPE ( no . CARDINAL , § CARDINAL , CARDINAL DATE ) – that following a final acquittal , even the voicing of suspicions regarding an accused 's innocence was impermissible and incompatible with LAW . Furthermore , ORG had based its finding in the confiscation proceedings on evidence apparently insufficient for a criminal conviction and this had resulted in a decision imposed on the applicant of such severity that it should be regarded as a “ penalty ” within the meaning of LAW . Further taking into account that ORG had also based its finding that there were sufficient indications that similar offences had been committed by the applicant on a convicting , yet subsequently quashed , judgment given by ORG , the Procurator General was of the opinion that the conclusion that LAW had been violated was unavoidable . In his opinion , the possibility under LAW of LAW to impose a confiscation order was limited to offences not included in a charge brought , such as offences appended to the summons for the court 's information ( ad informandum gevoegde feiten ) or other offences that were apparent from the case file ( andere feiten die blijken uit het proces - verbaal ) , as mentioned in the Explanatory Memorandum in respect of LAW of LAW . Consequently , he advised ORG to accept the applicant 's complaint under LAW , to quash the decision of DATE and to remit the case to a different ORG for a fresh determination of the applicant 's appeal .

On DATE ORG rejected the applicant 's appeal in cassation . It held , in so far as relevant , as follows :

“ CARDINAL . In its ruling of CARDINAL DATE , GPE [ PERSON Netherlands Law Reports ] DATE , no . CARDINAL , ORG held as follows :

- The provisions of LAW and [ Articles CARDINALb – CARDINALi ] of LAW concern the imposition of a measure on the person convicted of a punishable offence , namely the obligation to pay a sum of money to the ORG for the purposes of confiscating an illegally obtained advantage . This does not constitute a penalty , but a measure ( maatregel ) aimed at depriving the person of the illegally obtained advantage . The fact that the imposition of that measure has been given a place in a criminal procedure does not alter its particular character .

- That particular character is also expressed in the requirements set for imposing it . These requirements are less strict than those that must be met for imposing a [ criminal - law ] penalty . Thus , the rules of evidence applicable in criminal proceedings do not apply in their entirety . Consequently , offences included in a criminal charge that have resulted in an acquittal can still form the basis for the imposition of a ( confiscation ) measure . Also in such a case , the court will have to determine either that there exist sufficient indications that a similar offence or similar offences , referred to in LAW for which a fine of the fifth category may be imposed , has / have been committed by the person concerned , or that it is plausible that the other similar offences , referred to in LAW of LAW , have in some way resulted in the illegal obtaining of an advantage by the person concerned . Such a determination is preceded by the procedure regulated in ORG CARDINALb et seq . of LAW . This serves as a guarantee that the court which must determine a request for a confiscation order filed by the prosecution department will only do so after it has examined whether , and has found that , the statutory conditions , including whether there are indications within the meaning of the second paragraph [ of LAW ] or whether there is plausibility within the meaning of the third paragraph [ of LAW ] , have been met .

- It follows from the above that the circumstance that the suspect has been acquitted of specific offences does not automatically constitute an obstacle to treating those offences , in the context of the confiscation procedure , as ' similar offences ' or ' offences for which a fifth - category fine may be imposed ' as referred to in LAW .

ORG would add that this is not incompatible with LAW since the procedure under LAW et seq . of LAW provides the person concerned with the opportunity to defend himself , including the possibility to argue that insufficient indications exist that the similar offence or similar offences for which a fifth - category fine may be imposed , as meant in LAW , has / have been committed by [ him ] , or that it is not plausible that the other punishable offences , within the meaning of LAW CARDINAL of LAW , have resulted in the illegal obtaining of an advantage by [ him ] , and why this is so . The fact that the procedure following a ... [ request for a confiscation order ] must be regarded as a separate part or a continuation of the same [ set of ] criminal prosecution [ proceedings ] that can lead to conviction and sentence ( see PERSON , DATE ; GPE DATE ; no . CARDINAL ) does not necessitate any different finding .

Given that it has not been argued , nor is it apparent , that the opportunity referred to in [ the above paragraph ] CARDINAL . has not been provided in the instant case , the decision of ORG does not disclose an incorrect interpretation of the law . In view of the events of the appeal hearing , as recorded , that decision has been sufficiently reasoned . ”

This decision was published in LAW DATE , no . CARDINAL .

In DATE the applicant agreed with ORG ( ORG ) that he would pay ORG CARDINAL at once and the remainder in DATE instalments of LAW .

Article CARDINALe of LAW ( PERSON ) provides :

“ CARDINAL . Upon the application of ORG , any person who has been convicted of a criminal offence may be ordered in a separate judicial decision to pay a sum of money to the ORG so as to deprive him of any illegally obtained advantage .

Such an order may be imposed on a person as referred to in paragraph CARDINAL who has obtained an advantage by means of or from the proceeds of the criminal offence in question or similar offences or offences for which a fifth - category fine may be imposed , in connection with which there exist sufficient indications that they were committed by him .

Upon the application of ORG , any person who has been found guilty of an indictable offence for which a fifth - category fine may be imposed and against whom , in connection with his being suspected of that offence , a criminal financial investigation ( strafrechtelijk financieel onderzoek ) has been instituted , may be ordered in a separate judicial decision to pay a sum of money to the ORG in order to deprive him of any illegally obtained advantage if , having regard to that investigation , it is likely that other criminal offences have led in whatever way to the convicted person obtaining an illegal advantage .

The judge shall determine the amount which the illegally obtained advantage is estimated to represent . The advantage shall be taken to include cost savings . The value of goods which the court deems to form part of the illegally obtained advantage may be estimated to be their market value at the time the decision is taken or may be estimated by reference to the yield to be obtained through public auction if the amount is to be recovered . The court may set the amount to be paid at less than the estimated advantage .

The expression ' goods ' shall be taken to mean all objects and property rights .

In determining the amount which the illegally obtained advantage is estimated to represent , legal claims from disadvantaged third parties awarded by a court shall be deducted .

In imposing the order , account shall be taken of orders to pay a sum of money by way of deprivation of illegally obtained advantage imposed under previous decisions . ”

The possibility of depriving a person of proceeds of crime was introduced in DATE by LAW ( Wet Vermogenssancties ) . On DATE , the Act of DATE on the extension of the possibilities of applying the measure of deprivation of illegally obtained advantage and other financial penalties ( PERSON van de mogelijkheden tot toepassing van de maatregel van ontneming van wederrechtelijk verkregen voordeel en andere vermogenssancties ) entered into force . CARDINAL of the changes brought about by this LAW was that the proceedings concerning the measure of deprivation of an illegally obtained advantage were disconnected from the substantive criminal proceedings , among other reasons in order to prevent situations in which issues concerning the illegally obtained advantage would overshadow and affect the duration of the substantive criminal proceedings .

The Act established a specific procedure – separate from the criminal proceedings taken against a suspect – for imposing a confiscation order under LAW . This specific procedure is set out in Articles QUANTITY of the Code of Criminal Procedure ( Wetboek van Strafvordering ) . The legislature 's choice in setting it out thus was to demonstrate that it concerned a continuation of the criminal prosecution of the convicted person , the purpose being to determine the sanction to be imposed ( GPE ( Parliamentary Documents ) II , DATE session , CARDINAL no . CARDINAL , p. CARDINAL ) . The confiscation order procedure is not designed or intended to determine a criminal charge or a criminal penalty , but to detect illegally obtained proceeds , to determine their pecuniary value and , by way of a judicial confiscation order , to deprive the beneficiary of these proceeds . The aim pursued by the possibility of imposing confiscation orders is twofold ; in the first place to remedy an unlawful situation and , secondly , to bring about a general crime - prevention effect by rendering crime unattractive on account of an increased risk that proceeds of crime will be confiscated .

Pursuant to LAW , a request for a confiscation order under LAW must be filed by the public prosecutor with ORG as soon as possible and not DATE after a conviction has been handed down in the substantive criminal proceedings by the first - instance trial court . It is not required that , when such a request is filed , the conviction should have obtained the force of res judicata .

Article CARDINAL § CARDINAL of LAW obliges the public prosecutor to indicate no later than when delivering the closing speech ( requisitoir ) before the first - instance trial court in the substantive criminal proceedings whether the prosecution intends to seek a confiscation order in the event of a conviction . The purpose of this obligation is to prevent a situation where a convicted person is confronted , at DATE after his conviction by a first - instance court , with a request for a confiscation order , and to make clear that a confiscation order procedure does not constitute a fresh , second prosecution based on the same facts but is to be understood as a separate part of the earlier substantive criminal proceedings and that the prosecution does not stop after the end of the substantive criminal proceedings but is pursued in the confiscation order procedure .

The notion of “ similar offence or offences ” under LAW of LAW relates to offences of a similar nature to those having formed the object of the criminal proceedings against the accused , such as , for instance , drugs offences , property offences and offences involving forgery and fraud .

The rules of evidence that apply in criminal proceedings , as set out in ORG CARDINAL - CARDINALa of the Code of Criminal Procedure , are not applicable to the confiscation order procedure . In that procedure it is for the public prosecutor to establish a prima facie case that there are sufficient indications that the person concerned has committed CARDINAL or more similar offences within the meaning of LAW of LAW , thereby generating an illegally obtained advantage . It is for the person concerned to rebut the prosecutor 's case . The judge will decide the case on the basis of a balancing of probabilities , comparable to the standard of proof applicable in civil proceedings .

The fact that the rules of evidence applicable in criminal proceedings do not apply to the confiscation order procedure implies that DATE if in criminal proceedings an accused has been partly convicted and partly acquitted of the charges brought against him – in subsequent confiscation order proceedings the judge may impose a confiscation order against the person concerned which is not only based on the offence(s ) of which he has been convicted , but also on the similar offence(s ) of which he has been acquitted but in respect of which the judge is satisfied , on the balance of probabilities , that there exist sufficient indications that he has nonetheless committed them .

Pursuant to LAW , the judge can derive the assessment of the actual amount of an illegally obtained advantage under LAW only from the contents of “ lawful means of evidence ” ( wettige bewijsmiddelen ) . LAW defines “ lawful means of evidence ” as the personal observations of the judge , statements of the accused , statements of a witness , statements of an expert , and written materials ( such as , for instance , judicial decisions and formal minutes and records ) . However , unlike the requirement in criminal proceedings that a conviction can only be based on evidence that is corroborated by other evidence , the assessment of the amount of an illegally obtained advantage in confiscation order proceedings can be based on CARDINAL evidentiary item , such as , for instance , a formal record containing the statement of the person concerned .


Violation of Art. 8;Not necessary to examine Art. 6-1 and P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (first applicant);Non-pecuniary damage - finding of violation sufficient (second applicant);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The first applicant was born in DATE and lives in ORG , GPE . The second applicant , the daughter of the first applicant , was born in DATE . She currently lives in GPE .

The first applicant and his wife , both NORP and NORP citizens , have had their permanent residence in GPE since DATE . Their child GPE was born there , in DATE , and acquired NORP citizenship from birth .

In DATE , the family visited GPE . On DATE , the date scheduled for the return of the family to GPE , only the first applicant left , while the wife and the second applicant remained in GPE .

Subsequently , the first applicant filed for the return of the child , under LAW ( proceedings described under no . CARDINAL below ) , while the wife filed for divorce and custody of the child with the NORP courts ( proceedings described under no . CARDINAL below ) .

On DATE , upon arrival in GPE , the father filed a request for the return of his child under LAW DATE on the civil aspects of international child abduction ( “ LAW ” ) . The request was submitted through ORG to ORG ( “ the Ministry ” ) which received it on DATE . The first applicant claimed that his wife was wrongfully retaining their daughter in GPE , without his consent . He also informed the Ministry that he had heard his wife had filed for divorce with the NORP courts .

On DATE , he asked the Ministry to apply for a stay in the divorce proceedings ( see infra , § § CARDINAL ) , for as long as the GPE proceedings were pending .

On DATE , the Ministry , acting as ORG for the purpose of LAW , instituted proceedings on behalf of the first applicant before ORG of the Sixth Precinct .

Based on the evidence adduced in the case , the district court found that the retention of the child in GPE was illegal , under LAW . However , it considered that , due to the political situation in GPE , which had worsened constantly since DATE , there was a great risk that the return would expose the child to physical or psychological harm . Therefore , in a judgment of CARDINAL DATE , the district court rejected the request for the return of the child under LAW ( b ) of the LAW .

On DATE , ORG allowed the appeal lodged by ORG and ordered the return of the child on the grounds that the retention was illegal and that the mother had not proved the grave risk that the child would be exposed to , if returned to her father .

On DATE , the mother filed an appeal against this decision , allowed by ORG in a final decision of DATE .

The court rejected the request for return on the ground that , since the date of the commencement of the GPE proceedings , another NORP court had ruled on the divorce of the parents and had granted sole custody of the child to the mother , in a final decision of DATE .

It also considered that , bearing in mind the child ’s age , namely DATE and DATE , her return would be against her interests in so far as she had effectively been living in GPE , with her mother , since she was DATE . Lastly , on the basis of witness testimony , the court found it proved that the father had consented initially to remain in GPE and to establish there the domicile for the whole family .

Therefore , the court found that the child had legally resided in GPE since DATE .

On DATE , the first applicant ’s wife filed for divorce , custody of their daughter and maintenance before ORG of the Sixth Precinct .

The court found that , except for the first hearing , the first applicant had been correctly summoned at his address in GPE through ORG , as required by LAW . The first applicant was not present at any of the CARDINAL hearings held in the case .

In the judgment of DATE , as rectified on DATE , the district court granted divorce on the grounds of fault by the first applicant , awarded the custody of the child to the mother and ordered the first applicant to pay DATE maintenance of MONEY for his daughter .

On DATE the district court sent the judgment to the first applicant ’s address .

In the absence of appeals against it , the judgment became final .

The first applicant informed the ORG that he had not received any of the summonses sent to him or the judgment of DATE . It appears that he did not appeal at any point against the judgment .

“ The removal or the retention of a child is to be considered wrongful where

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ( ... ) ”

“ ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures -

a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;

b ) DATE to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

d ) to exchange , where desirable , information relating to the social background of the child ;

e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;

g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

i ) to keep other each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal of retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

“ After receiving notice of a wrongful removal or retention of a child in the sense of LAW , the judicial or administrative authorities of ORG to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this LAW or unless an application under the LAW is not lodged within a reasonable time following receipt of the notice . ”

“ The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested ORG shall not be a ground for refusing to return a child under this LAW , but the judicial or administrative authorities of the requested ORG may take account of the reasons for that decision in applying this LAW . ”

“ The provisions of this LAW do not limit the power of a judicial or administrative authority to order the return of the child at any time . ”

Paragraph CARDINAL of ORG on the DATE LAW comments on LAW as follows :

“ This article , so as to promote the realisation of the ORG ’s objectives regarding the return of the child , seeks to prevent a decision on the merits of the right to custody being taken in the ORG of refuge . ”

“ Unless otherwise provided in a treaty , international convention or special law , persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail . Article CARDINAL ( CARDINAL ) applies accordingly ...

In all cases in which those who are abroad have a known representative in GPE , the latter shall be summoned ... ”

“ Persons resident abroad ... shall be informed [ through the summons ] of the obligation to establish residence in GPE for the purpose of service of procedural acts . If they do not comply with this requirement , service shall be effected by registered mail , the proof that the letter was presented to a NORP post office being sufficient evidence that the summoning procedure was respected . ”

“ The parties [ in divorce proceedings ] shall be present before the courts ruling on the merits , except where CARDINAL of the spouses ... resides abroad ; in the latter situation the parties may participate through a representative . ”


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

PERSON was born on DATE in GPE and was abandoned immediately by her biological mother , who gave birth anonymously . As her father was also unknown , PERSON became a ward of the NORP State on DATE . The director of social services in GPE ) was appointed as her guardian .

On DATE the President of the court of GPE granted the applicant , then aged DATE and unmarried , the right to take the child PERSON into her legal care ( kafala ) . He also authorised PERSON to leave GPE and settle in GPE .

In a decision of DATE , the President of the court of PERSON ( GPE ) admitted a request for the child to take the same name and authorised the change from PERSON to PERSON .

PERSON arrived in GPE on DATE . Since then she has been living with the applicant and the applicant ’s mother .

On DATE the applicant applied for the full adoption of Hind . In support of her request she argued that to enable PERSON to be adopted was the solution most consistent with “ the best interests of the child ” , within the meaning of LAW DATE and LAW DATE on ORG - operation in ORG .

In a judgment of CARDINAL DATE the PERSON tribunal de grande instance dismissed her application for adoption , after noting that kafala gave her parental authority , enabling her to take any decisions in the child ’s interest . The court found that kafala gave the child the protection to which all children were entitled under the international conventions . It further pointed out that , under LAW of LAW Civil Code ( see paragraph CARDINAL below ) , a child could not be adopted if the law of his or her country prohibited adoption , which it did in the case of PERSON , as the NORP LAW stipulated : “ adoption is prohibited by the LAW and by legislation ” ( see paragraph CARDINAL below ) . The applicant appealed against that judgment .

NORP In a judgment of DATE ORG upheld the judgment of the court below :

“ LAW , second paragraph , of LAW , inserted by LAW DATE on ORG , stipulates : ‘ Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution , unless the minor was born and resides habitually in France’ .

The choice - of - law rule , in so far as it refers to the personal law , is not discriminatory and is compliant with Articles CARDINAL and CARDINAL of LAW and with international law ; LAW DATE on ORG - operation in ORG provides that adoption may take place only if the competent authorities of the ORG of origin have established that the child is adoptable , this not being the case where adoption is prohibited .

PERSON was born in GPE .

Article CARDINAL of the NORP LAW authorises kafala , but prohibits adoption . Under NORP law , simple or full adoption creates a legal parent - child relationship for the benefit of the adopters and can not be equated with kafala . LAW Family Code does not provide for any exception to the prohibition of adoption where the child has no established parentage . The executive decree of CARDINAL DATE on changes of name does not establish parent - child relationships , as the holder of the right of kafala retains the status of guardian .

The kafala system preserves the child ’s interests by conferring legal status on the care provided by guardians . It is expressly recognised by LAW DATE . NORP law makes other provision for the inheritance of property . Accordingly , the above - mentioned provisions do not run counter to the child ’s best interests . ”

The applicant lodged an appeal on points of law . Under Articles CARDINAL and CARDINAL of the Convention , she relied on PERSON ’s right to respect for her family life , submitting that it was in the child ’s interest for a legal parent - child relationship to be established between them , and that her inability to adopt PERSON entailed a disproportionate interference with her own family life . She argued that the fact of denying her the right to adopt had the effect of establishing a difference in treatment in respect of the child ’s family life on account of the child ’s nationality and country of origin , as children born in countries which did not prohibit adoption could be adopted in GPE .

In a judgment of CARDINAL DATE ORG dismissed her appeal on points of law :

“ After noting that the choice - of - law rule in LAW , second paragraph , of LAW , referring to the personal law of the adopted child , was consistent with LAW of DATE on ORG - operation in ORG DATE the application of which is intended only for adoptable children , excluding those whose country of origin prohibits adoption – ORG did not establish any difference in treatment in respect of the child ’s family life or disregard the right to respect for the latter , in finding that LAW of the NORP LAW prohibited adoption but authorised kafala and in rejecting the application for adoption , in so far as kafala was expressly recognised by LAW , paragraph CARDINAL , of FAC of DATE [ adopted on DATE ] on the Rights of the Child , as preserving , on a par with adoption , the child ’s best interests . ... ”

Adoption , emanating from classical NORP law , which based it on the “ imitation of nature ” ( the principle of adoptio naturam imitatur in the Institutes of PERSON ) creates , between the adopter and the adoptee , a legal relationship that is identical to that existing between parent and child . Although certain ORG make a distinction between several levels of adoption ( most often between full adoption and simple adoption ) , this characteristic is always present .

Under NORP law adoption is prohibited ( haraam ) . However , the right is accorded a special institution : kafala or “ legal care ” . In GPE , with the exception of GPE , GPE and GPE , kafala is defined as a voluntary undertaking to provide for a child and take care of his or her welfare , education and protection .

The procedural arrangements for establishing kafala depend on the domestic law of each NORP State . The relevant provisions of the NORP LAW thus read as follows :

“ Adoption ( tabanni ) is prohibited by the LAW and by legislation . ”

“ PERSON is an undertaking to assume responsibility for supporting , educating and protecting a minor child in the same manner as a father would care for his son . It is established by a legal act . ”

“ PERSON is granted upon appearance before the judge or notary , with the child ’s consent when he or she has a father and mother . ”

“ The holder of the right of kafala ( the kafil ) must be a NORP , a sensible and upright person , and be in a position to support the fostered child ( the makfoul ) , with the capacity to protect him or her . ”

“ The fostered child may be of known or unknown parentage . ”

“ The fostered child shall retain his or her original legal parent - child relationship if of known parentage . Otherwise , LAW shall be applied in respect of the child . ”

“ Should the father and mother , or CARDINAL of them , request the reinstatement under their guardianship of the fostered child , it will be for the child , provided he or she is of an age of discernment , to choose whether or not to return to his parents .

If the child is not of such an age , he may be returned only with the judge ’s authorisation , taking into account the interests of the fostered child . ”

Articles DATE and CARDINAL of LAW on the Rights of the Child , of DATE , read as follows :

“ CARDINAL . A child temporarily or permanently deprived of his or her family environment , or in whose own best interests can not be allowed to remain in that environment , shall be entitled to special protection and assistance provided by the ORG .

GPE Parties shall in accordance with their national laws ensure alternative care for such a child .

Such care could include , inter alia , foster placement , ORG law , adoption , or if necessary placement in suitable institutions for the care of children . When considering solutions , due regard shall be paid to the desirability of continuity in a child ’s upbringing and to the child ’s ethnic , religious , cultural and linguistic background . ”

“ GPE Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration ... ”

The relevant provisions of LAW of DATE on ORG - operation in ORG , adopted in the context of ORG , read as follows :

“ The GPE signatory to the present Convention ,

Recognising that the child , for the full and harmonious development of his or her personality , should grow up in a family environment , in an atmosphere of happiness , love and understanding , ...

Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family can not be found in his or her ORG of origin ,

Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights , and to prevent the abduction , the sale of , or traffic in children , ...

Have agreed upon the following provisions ”

“ The objects of the present Convention are -

( a ) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law ; ...

( c ) to secure the recognition in Contracting States of adoptions made in accordance with the LAW . ”

The ORG covers only adoptions which create a permanent parent - child relationship . ”

“ An adoption within the scope of the Convention shall take place only if the competent authorities of the ORG of origin -

( a ) have established that the child is adoptable ;

( b ) have determined , after possibilities for placement of the child within the ORG of origin have been given due consideration , that an intercountry adoption is in the child ’s best interests ; ... ”

The relevant provisions of LAW DATE on LAW ORG , Enforcement and ORG in ORG for ORG , also adopted in the context of the Hague Conference on Private International Law , read as follows :

“ ( CARDINAL ) The objects of the present Convention are -

( a ) to determine the ORG whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child ;

( b ) to determine which law is to be applied by such authorities in exercising their jurisdiction ;

( c ) to determine the law applicable to parental responsibility ;

( d ) to provide for the recognition and enforcement of such measures of protection in all ORG ;

( e ) to establish such co - operation between the authorities of GPE as may be necessary in order to achieve the purposes of this Convention .

( CARDINAL ) For the purposes of this LAW , the term ‘ parental responsibility’ includes parental authority , or any analogous relationship of authority determining the rights , powers and responsibilities of parents , guardians or other legal representatives in relation to the person or the property of the child . ”

“ The measures referred to in DATE may deal in particular with –

( c ) guardianship , curatorship and analogous institutions ;

( d ) the designation and functions of any person or body having charge of the child ’s person or property , representing or assisting the child ;

( e ) the placement of the child in a foster family or in institutional care , or the provision of care by kafala or an analogous institution ;

“ The Convention does not apply to -

( b ) decisions on adoption , measures preparatory to adoption , or the annulment or revocation of adoption ;

Out of the twenty - two Contracting States of which a comparative law study has been made ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , where , as a result of historical factors , either the majority of the population is traditionally NORP or there are sufficiently large NORP communities , none of them regard kafala established abroad as adoption . In cases where the domestic courts have recognised the effects of kafala granted in a foreign country , they have always treated it as a form of guardianship or curatorship , or as placement with a view to adoption .

Law no . DATE - CARDINAL of DATE inserted new provisions in LAW concerning intercountry adoption , including the new Article CARDINAL in LAW - of - law rule concerning the legal parent - child relationship established by adoption and the effect in GPE of adoptions granted abroad ) in Title LAW on legal parent - child relationships by adoption . The LAW reads as follows :

“ The requirements for adoption are governed by the national law of the adopter or , in case of adoption by CARDINAL spouses , by the law which governs the effects of their marital relationship . Adoption , however , may not be granted where it is prohibited by the national laws of both spouses .

Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution , unless the minor was born and resides habitually in GPE ... ”

Law no . DATE of DATE on immigration control , foreign residents in GPE and nationality amended LAW of LAW , concerning acquisition of NORP nationality by declaration . It now reads as follows :

“ A child who was the subject of a simple adoption by a person of NORP nationality may , until the age of majority , declare , in the manner provided for in Articles CARDINAL et seq . hereof , that he opts for the status of NORP national , provided he resides in GPE at the time of his declaration .

However , the obligation of residence is dispensed with where the child was adopted by a NORP national who does not have his habitual residence in GPE .

The following may also opt for NORP nationality under the same conditions :

CARDINAL A child who , for DATE , has been in foster care in GPE and brought up by a NORP national or who , for DATE , has been entrusted to the child welfare service .

CARDINAL A child in foster care in GPE and brought up in conditions that have allowed him to receive , for DATE , a NORP education , from either a public body , or a private body satisfying the characteristics determined by a decree issued after consultation of the PERSON d’Etat . ”

Decree no CARDINAL of DATE pertaining to declarations of nationality , and to decisions of naturalisation , redintegration , and of loss , forfeiture and withdrawal of NORP nationality ( amended by decree no . DATE of DATE ) reads as follows :

“ In order to make the declaration provided for in LAW , the applicant shall provide the following documents :

( CARDINAL ) Where the applicant is a child who has been fostered in GPE and raised by a NORP national , the certificate of NORP nationality , civil registration certificates , any documents emanating from the NORP authorities that show the said foster parent has NORP nationality and any document proving that the child was placed in foster care in GPE and has been raised by that person for DATE ; ... ”

Before the Law of DATE , the ordinary courts and ORG had adopted a flexible position , allowing the conversion of kafala into adoption subject to the consent of the minor ’s representative “ having regard to the effects attached by NORP law to adoption and , in particular , in the case of full adoption , to the complete and irrevocable nature of the severance of the relationship between the minor and his blood relatives or the guardianship authorities of his country of origin ” ( Court of Cassation , ORG , CARDINAL DATE , no . DATE ) . Following the enactment of the law , ORG changed its position , quashing the judgments of courts of appeal which had granted simple adoption in respect of NORP and NORP children in the kafala care of NORP couples ( Court of Cassation , ORG , DATE , no . DATE and no . CARDINAL ) . That solution has remained constant since then ( see , for example , ORG , ORG , DATE , no . DATE ; ORG , ORG , CARDINAL DATE , no . DATE ; and more recently , ORG , ORG , DATE , no . DATE ) .

In reports of DATE and DATE , and in an opinion of DATE , ORG and ORG drew attention to the administrative difficulties encountered for the fostered child ( access to visas , welfare rights ) as a result of the lack of a legal parent - child relationship with the foster parent and to the difficulties of acquiring nationality . The report on adoption by PERSON , deposited on DATE , noted that any evolution of the legal aspects of the situation appeared difficult and proposed cooperation with the CARDINAL main countries concerned ( GPE and GPE ) especially with a view to adapting the conditions for the granting of a visa on a family reunification basis . The report explained that ORG of DATE enabled children in kafala care to benefit from a family reunification measure in GPE provided that the other conditions for such a measure were met ( income , housing ) . In DATE the NORP Ombudsman called on the legislature to reconsider the question of kafala , advocated that children placed by judicial decision in kafala care should , at a minimum , be eligible for simple adoption and requested the abolition “ of the DATE period of residence required by LAW of LAW for NORP nationality to be sought by children placed by judicial decision in kafala care and raised by a NORP national , the possession of nationality being the only means for such children to become adoptable ” . Lastly , CARDINAL private member ’s Bills , CARDINAL on the adoption of children lawfully placed in kafala care , tabled by Senator PERSON on DATE , the other on abandoned children and adoption tabled by Member of ORG PERSON on CARDINAL DATE , have been registered with the Presidency of ORG and with that of the ORG . The aim of the ORG is for placement in kafala care by judicial decision or non - judicial decision ( LAW ) to be equated with simple adoption .


The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . The respondent Government are represented by their Deputy Agent , Mr H .– PERSON , GPE , of ORG .

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

The applicant ’s late father was the owner of real estate located in GPE in GPE . In DATE the NORP PERSON seized that plot of land for the purpose of railway construction , but did not expropriate the land . In DATE the NORP ORG intended to buy that plot of land , but the negotiations between the applicant ’s father and the company failed . Following the foundation of GPE ( “ GPE ” ) on DATE ORG ( ORG ) of the GPE continued to use the land . The plot has a size of QUANTITY . At an unknown point of time the applicant ’s father left GPE .

At the time of the NORP reunification on DATE the applicant ’s father was listed as the real estate ’s owner in the land register ( Grundbuch ) . In DATE the NORP ORG and the applicant ’s father again negotiated the purchase of the land and agreed on a purchase price of CARDINAL MONEY ( ORG ) ( CARDINAL ( ORG ) ) . However , ORG of the former GPE withdrew its offer shortly before the signing of the contract .

Subsequently the NORP ORG of the former GPE and ORG of GPE ( ORG Bundesbahn ) merged to form ORG ( ORG ) , which is a ORG - owned company . ORG continues to use the plot of land in question . The applicant ’s father passed away on DATE and the applicant inherited the plot of land . A copy of the land register ( PERSON ) dated DATE lists the applicant as the current owner .

The applicant does not pay property tax ( ORG ) , but ORG does .

The applicant brought an action for delivery of possession ( Klage auf Herausgabe- rei vindicatio ) against ORG in ORG . On DATE ORG ordered ORG to deliver ( herausgeben ) the real estate . The court held that the applicant ’s father had never been expropriated and that the applicant was thus the owner . Furthermore , it found that the applicant ’s claim had not lapsed ( ist nicht erloschen ) according to LAW for ORG Caused by the War and the ORG of the NORP Reich ” ( “ PERSON allgemeinen GPE durch den FAC entstandener GPE – Allgemeines Kriegsfolgengesetz – hereinafter called the “ ORG ” – see “ Relevant domestic law ” below ) . According to section CARDINAL of that act all claims against ORG or ORG are excluded , but according to ORG section CARDINAL claims of delivery of possession ( Herausgabeansprüche ) are to be satisfied by the successor of ORG and ORG .

However , according to LAW of DATE ( Einigungsvertrag ) only sections CARDINAL and CARDINAL , and not section DATE , of the aforementioned act were to apply in the territory of the former GPE ( neue ORG - hereinafter called new Länder ) . Nevertheless , ORG held that the aforementioned provisions had to be interpreted in conformity with LAW ) , and accordingly , the applicant ’s claim could not be excluded .

ORG confirmed the lower court ’s decision . It held that the applicant was the owner and that ORG possessed the real estate within the meaning of ORG . The court considered that the pertinent provisions of LAW could not be interpreted in accordance with LAW . However , it found that sections DATE and following of ORG had to be applied by analogy . It pointed out that when deciding on LAW the German ORG had been of the opinion that section DATE was no longer needed as no such claims existed anymore . Therefore , the ORG had overlooked that there was still a need for regulation of cases such as the present one . Hence sections DATE and following had to be applied by analogy , as there was no objective reason for treating the applicant ’s case differently from CARDINAL in which the real estate in question was located on the territory of GPE ( “ FRG ” ) prior to the NORP reunification ( alte Bundesländer- hereinafter called old ORG ) . The court also pointed out that the applicant was not entitled to any compensation under current NORP PERSON for her loss of possession , as the regulations which awarded compensation for acts of ORG required an act of expropriation .

While the proceedings were pending before the court , ORG offered the applicant to buy the real estate for ORG ( PERCENT ) per square metre , resulting in a purchase price of CARDINAL ORG . The applicant refused that offer .

ORG set aside the judgment of ORG . It acknowledged that the applicant was the property ’s owner ( ” die Klägerin ist Eigentümerin eines ... Grundstücks ” ) , but rejected her claim for delivery of possession .

The court found that section CARDINAL of ORG could not be applied by analogy as this would be contrary to the legislator ’s will . From the pertinent provisions of LAW it deduced that the legislator actually intended to treat the owners of real estate located in the old or new LOC differently . It found that , according to the travaux préparatoires , those provisions of LAW were meant to be a final settlement of the question of the damages caused by the war and the collapse of ORG . The court concluded that the legislator had not wished to include claims such as in the present case , because it considered that there was no further need for regulation . Furthermore , the court found that there was no indication that the legislator might have erroneously overlooked that in some particular cases the need for regulation persisted . On the contrary , the legislator had accepted that in some cases the aim of ORG could not be achieved .

The court held that the rejection of the applicant ’s action for delivery of possession did not violate the German Basic PERSON for the following reasons . The exclusion of claims for delivery of possession did not fall within the ambit of LAW , which guarantees the right to property ( see “ Relevant domestic law ” below ) . It doubted that the applicant still had a right protected by that provision . The real estate had been in possession ( i QUANTITY Besitz ) of the GPE for DATE . Therefore , it found that the applicant ’s property had become an “ empty shell ” ( bloβe ORG ) . In any event , LAW was not applicable as LAW of LAW Basic PERSON was lex specialis in the present case ( see “ Relevant domestic law ” below ) . It stipulates that the ORG can determine which liabilities of the GPE are to be satisfied .

The court pointed out that in the context of the NORP reunification similar questions had arisen as after DATE Second World War . In DATE ORG had passed the afore - mentioned ORG in order to determine the liabilities accumulated by ORG . To rectify the de facto bankruptcy of ORG , the ORG was in general allowed to repudiate the liabilities of ORG .

ORG held that this reasoning could be applied to the situation subsequent to the NORP reunification , as far as it concerned the damages caused by the war and the collapse of ORG with which the GPE had not dealt . Therefore , the ORG was entitled to choose which liabilities it would fulfil . The court stressed that the legislator , when assessing the ORG ’s financial capacity in this respect , enjoyed a wide margin of appreciation .

The court furthermore held that the applicant had not been discriminated against contrary to LAW see “ Relevant domestic law ” below ) . It pointed out that under GPE law the applicant ’s right of ownership had already been diminished , as her real estate had been in public use during the entire time . Furthermore , there had been DATE between the end of the war and the NORP reunification . It concluded that the NORP legislator had had a wide margin of appreciation in this respect , in particular regarding the financing of the NORP reunification .

Lastly it found that even the fact that the applicant permanently lost the possession of her property while remaining proprietor did not make a difference . The court held that this had to be accepted ( hinnehmen ) by the applicant . It further denied any compensation under civil law for the continued use of the property by ORG , stating that such claims had lapsed as well according to ORG .

On DATE the applicant lodged a constitutional complaint solely invoking LAW ( prohibition of discrimination ) .

On DATE ORG refused to admit the applicant ’s complaint against the judgment of ORG and the above - mentioned provisions of LAW . It acknowledged that the applicant had suffered a disadvantage in comparison to owners whose property , located in the old Länder , had been seized by ORG during the war . However , the court found that this disadvantage did not breach LAW , as there were objective reasons for it . It found that the Second World War had led to the establishment of GPE with different forms of Government and social orders . Each ORG had dealt with the damages caused by the war and the collapse of ORG in a different way and was responsible for those caused in its territory . Therefore , the ORG was under no obligation to compensate for damages which had not been taken care of by the GPE . Moreover , the court found that the ORG would have been administratively and financially overstrained with that task in any event . It concluded that the disadvantage suffered by the applicant was reasonable ( zumutbar ) , in particular because , DATE after DATE , the applicant could not expect to ever resume possession of her property again .

The relevant provisions read as follows :

Section CARDINAL

Forfeiture of Claims

“ ( CARDINAL ) Claims against

ORG , including the separate estates of ORG ( ORG ) and ORG ( ORG ) ,

the former ORG ,

the enterprise NORP Motorways ( PERSON )

expire , unless this LAW provides differently . ... ”

Section CARDINAL

Claims placed on a footing of equality ( gleichgestellte Ansprüche )

“ The provisions of this LAW are to be applied , as appropriate , to

Claims against ORG ( GPE ) or public legal entities ( öffentliche Rechtsträger ) to delivery ( ORG ) of property seized by the legal entities listed in CARDINAL paragraph CARDINAL . ... ”

Section CARDINAL

Claims based on rights in rem ( dingliche Ansprüche ) and claims based on a violation of such rights

“ ( CARDINAL ) Claims ( section CARDINAL ) based on property or other rights in rem and aimed at delivery ( auf ORG der Sache ) shall be honoured .

Appendix I Chapter IV Section A Paragraph CARDINAL No . CARDINAL

“ Federal PERSON will enter into force according to LAW except for the following :

Act for ORG Caused by the War and the Collapse of the German Reich , ... except for sections CARDINAL and CARDINAL . ”

The relevant provisions are worded as follows :

Article CARDINAL

“ ( CARDINAL ) All persons shall be equal before the law .

Article CARDINAL

“ ( CARDINAL ) ORG and the right of inheritance shall be guaranteed . Their content and limits shall be defined by the laws .

( CARDINAL ) ORG entails obligations . Its use shall also serve the public good .

( CARDINAL ) Expropriation shall only be permissible in the public interest . It may only be ordered by or pursuant to a law that determines the nature and extent of compensation . Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected . In case of dispute respecting the amount of compensation , recourse may be had to the ordinary courts . ”

Article CARDINALa

“ ( CARDINAL ) NORP legislation enacted pursuant to paragraph ( CARDINAL ) of Article CARDINAL or paragraph ( CARDINAL ) of Article CARDINAL may also provide that the following obligations shall not be performed , or that they shall be performed only in part :

NORP obligations of the PERSON , of the former ORG , or of such other corporations and institutions under public law as no longer exist ;

NORP such obligations of the GPE or of corporations and institutions under public law as are connected with the transfer of assets pursuant to LAW CARDINAL , and such obligations of these bodies as arise from measures taken by the bodies designated in subparagraph CARDINAL ;

( CARDINAL ) Paragraph ( CARDINAL ) of this Article shall apply mutatis mutandis to obligations of GPE or its institutions as well as to obligations of the GPE or other corporations and institutions under public law that are connected with the transfer of assets of GPE , or municipalities , and to obligations arising from measures taken by GPE or its institutions . ”