Violation of Art. 3;Violation of Art. 8+P1-1;Violation of Art. 13;No violation of Art. 14 or 18;Failure to comply with obligations under former Art. 25-1 (Art. 34);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP citizen who was born in DATE and is at present living in Batman ( GPE ) . At the time of the events giving rise to his application , he was living in GPE , a hamlet attached to the village of GPE in GPE ( south - east GPE ) . The application concerns the applicant ’s allegations that his house and other possessions in GPE were destroyed by security forces .

The facts concerning the destruction of the applicant ’s possessions are disputed between the parties .

The facts as presented by the applicant are set out in paragraphs CARDINAL to CARDINAL below . In his memorial to the ORG , the applicant relied on the facts as established by the ORG in its report adopted on DATE . The facts as presented by the Government are set out in paragraphs CARDINAL below .

A description of the material submitted to the ORG is found in DATE to CARDINAL below . A description of the proceedings before the domestic authorities regarding the destruction of the applicant ’s possessions is set out in DATE below .

The Commission , in order to establish the facts disputed between the parties , conducted an investigation in accordance with former LAW § CARDINAL ( a ) of the LAW . To this end , the ORG examined documents submitted by both the applicant and the respondent Government in support of their respective assertions and appointed CARDINAL delegates to take the evidence of witnesses at a hearing conducted in GPE on CARDINAL and DATE . The ORG ’s evaluation of the evidence and its findings are summarised in CARDINAL below .

On DATE a large number of gendarmes arrived in GPE , a hamlet attached to the village of GPE . They were probably looking for PERSON , who lived there and who was suspected of ORG related activities . The gendarmes ordered him and the other inhabitants of GPE to remove the harvested tobacco leaves from their houses and to pile them up in front of the houses . The gendarmes then set fire to the tobacco . On DATE the gendarmes apprehended CARDINAL persons in GPE , including the CARDINAL sons of PERSON and a son of PERSON , and placed them in detention .

Although the applicant had no precise recollection whether this occurred on DATE , the gendarmes further damaged and broke the furnishings , windows and various household goods in his house . The applicant took photographs of the burned mound of tobacco and the damage caused to his possessions in his house .

In DATE or fall of DATE , on DATE when the applicant was in Batman , the gendarmes returned to GPE . The applicant ’s family was the only household to have remained in the hamlet , all other inhabitants having moved away in the meantime . After the gendarmes had gathered the applicant ’s family and a visiting guest at the water tower in the hamlet , the gendarmes set fire to the houses in the hamlet . The applicant returned to GPE in TIME of the following day . After the burning of his house , the applicant and his family left GPE .

The burning of the harvested tobacco and the destruction of the applicant ’s house and other possessions was conducted by the gendarmes under the orders and responsibility of the Commander of the ORG gendarmerie station and the Commander of the LOC gendarmerie station . The gendarmes of both units were engaged in a series of raids and operations in DATE and DATE in both GPE and ORG culminating in the burning down of GPE . The purpose of this series of attacks was to force its inhabitants , including the applicant , to leave .

The Government stated that at the relevant time there were many ORG activities in the region and the area was regularly patrolled by gendarmes for military , administrative , judicial and civil purposes .

According to the military authorities no operation had been conducted in or around PERSON at the material time .

The Government further stated that , as the applicant had not filed an official complaint with the domestic authorities , a preliminary investigation was opened and conducted once the application had been brought to the notice of ORG . The case was transferred to ORG for a decision whether or not to prosecute those allegedly responsible , i.e. PERSON ( Commander of the PERSON gendarmerie station ) , PERSON ( Commander of a commando unit of the LOC gendarmerie station ) and ORG ( Commander of the ORG gendarmerie station ) . In its decision of CARDINAL DATE , ORG found that there was insufficient evidence in support of the allegations made against PERSON , PERSON and ORG .

In the proceedings before the ORG , the applicant and the ORG submitted a number of statements made by the applicant to ORG in GPE ( ORG ) and to the domestic authorities .

The DATE ’s submissions included a statement taken from the applicant on CARDINAL DATE by a gendarme of the ORG gendarmerie station . According to this statement , the applicant told this gendarme that on DATE , when he was absent from his home , his house and his possessions in his house had been destroyed by unknown persons and that , around that time , a group of CARDINAL persons from ORG had come to PERSON and had interviewed him . He denied having applied to the ORG and stated that , if any application had been made , it had been made without his knowledge and that he did not wish to pursue it .

According to a statement made by the applicant on CARDINAL DATE to the ORG , he had been taken by soldiers on DATE to the ORG gendarmerie station , where he was questioned about a complaint that he had filed against the ORG . The station commander had insisted that some villages had been burned down by the ORG and wanted the applicant to admit that he had received material aid . The applicant maintained that his village had been burned by ORG forces and denied that the ORG had been involved in any way . He was further made to sign a statement .

NORP The applicant further submitted statements made to the ORG by PERSON , CARDINAL petitions filed with domestic authorities by ORG and PERSON ; an undated damage report by the muhtar and ORG , and CARDINAL photographs . CARDINAL photographs show burned remains of alleged farm produce and CARDINAL show ransacked and damaged interiors of homes .

The Government also submitted a statement made by the applicant on DATE to the public prosecutor at PERSON , official reports about incidents having taken place in the area , custody records of the PERSON gendarmerie station indicating that on DATE TIME persons from GPE had been taken into detention on suspicion of aiding and abetting the ORG , a total of CARDINAL DATE duty ledgers of the ORG gendarmerie station and documents relating to the investigation carried out by the authorities into the allegations , including statements taken from PERSON , PERSON , PERSON , PERSON GPE , PERSON , ORG , PERSON and PERSON .

The Commission requested the Government to provide it with all planning agendas , duty ledgers , operation reports and incident reports of the ORG gendarmerie station from DATE in relation to GPE . Apart from the DATE duty ledgers for CARDINAL different dates , CARDINAL incident report of DATE in relation to ORG and CARDINAL incident reports of CARDINAL DATE and DATE respectively in relation to the ORG area , the Government did not provide the ORG with the DATE duty ledgers of the remaining dates nor with the requested planning agendas and operation reports or with any further incident reports .

In an incident report of CARDINAL DATE signed by ORG and a joint statement of CARDINAL DATE signed by ORG and CARDINAL other gendarmes – it is stated that a group of CARDINAL NORP terrorists held up CARDINAL cars on the ORG road on DATE , set fire to CARDINAL official cars and robbed several drivers of their money . The body of a man shot dead was found near the scene of the incident .

According to an incident report of DATE signed by PERSON DATE and a scene of incident report of DATE signed by ORG , CARDINAL other gendarmes and CARDINAL civilians – unknown persons had thrown a molotov cocktail in the telephone exchange building in GPE . According to the incident report this act occurred on DATE and the perpetrators were apparently members of the ORG or persons harbouring ORG members .

In an incident report , dated DATE , and a scene of incident report of the same date and signed jointly by ORG , his Deputy , CARDINAL other gendarmes and the CARDINAL civilian victims , it is recorded that CARDINAL masked and armed unknown persons had held up a vehicle on the Çatakköprü - Silvan road at the turnoff to GPE and robbed the CARDINAL passengers of a substantial amount of money they were transporting to a bank and locked them in the boot of the car .

It appears from the custody records of the PERSON gendarmerie station that CARDINAL persons were taken into detention on DATE on suspicion of aiding and abetting the ORG . Amongst them were QUANTITY persons from GPE , including PERSON , son of A. Kerim ; PERSON , son of GPE ; PERSON , son of GPE ; PERSON , son of PERSON ; and PERSON , son of A. ORG .

It further appears from a report of ORG of DATE signed by inter alia the ORG Commander and the GPE Governor that , apart from PERSON , all persons from PERSON apprehended on DATE had been taken into detention on the basis of an arrest warrant of DATE . PERSON had been apprehended on the basis of an arrest warrant of DATE .

This report further states that CARDINAL PERSON rifles , CARDINAL cartridge clip and CARDINAL bullets had been found on indications provided by PERSON and PERSON ( son of PERSON ) , who were both from PERSON .

According to this report , ORG had declared that on DATE , “ with members of the organisation ” ( “ örgüt mensupları ile ” ) , they had taken part in the commission of arson at the FAC building site on DATE , and that PERSON , ORG had confessed that on DATE , “ with members of the organisation ” , they had taken part in a hold - up at ORG on the PERSON - Batman road , the burning of a vehicle and the killing of a civilian . It further states that PERSON had confessed to having taken part in the burning of a passenger bus on the road from PERSON to ORG and that PERSON , PERSON and PERSON had confessed to having taken part in the commission of arson at the ORG depot in PERSON and the theft of weapons .

According to the CARDINAL DATE duty ledgers of the ORG gendarme station made available by the ORG , the ORG gendarmerie station Commander PERSON , together with CARDINAL other gendarmes and CARDINAL ORG ( “ ZPT ” ) team were , on DATE < number illegible > DATE , assigned village patrol duty in GPE and CARDINAL other nearby villages . Their duties were described as the gathering of intelligence and execution of documentation duties .

On DATE , ORG and CARDINAL other gendarmes were assigned the duty of searching for suspects and wanted persons in GPE ( a nearby village to the south of GPE ) .

On DATE , CARDINAL gendarmes of the ORG gendarme station and CARDINAL ORG were assigned the duty of conducting house searches in GPE and apprehending wanted persons .

On DATE , ORG and CARDINAL other gendarmes were assigned the duty of conducting house searches and apprehending suspected persons in the GPE hamlet of ORG .

On DATE , ORG and CARDINAL other gendarmes and CARDINAL ZPT teams were assigned the duty of village patrol , described as the gathering of intelligence , execution of documentation duties and apprehension of wanted persons , in GPE and CARDINAL other nearby villages .

On DATE , ORG and CARDINAL other gendarmes were assigned village patrol duty , described as the gathering of intelligence , execution of documentation duties and apprehension of wanted persons , in GPE and CARDINAL other villages .

On DATE , ORG and CARDINAL other gendarmes and CARDINAL ZPT team were assigned village patrol duty , described as the gathering of intelligence , execution of documentation duties and apprehension of wanted persons , in GPE , GPE and CARDINAL other nearby villages and hamlets .

On DATE , ORG and CARDINAL other gendarmes and CARDINAL ZPT team were assigned village patrol duty , describes as the gathering of intelligence , execution of documentation duties and apprehension of wanted persons , in GPE and CARDINAL other villages .

On DATE , ORG and CARDINAL other gendarmes and CARDINAL ZPT team were assigned village patrol duty , described as the gathering of intelligence and apprehension of wanted persons , in GPE .

On DATE , ORG and CARDINAL other gendarmes and in co - operation with one < illegible > team were assigned village patrol duty in GPE and CARDINAL other villages . The duties assigned are illegible on the copy of the duty ledger submitted .

On DATE , ORG and CARDINAL other gendarmes and CARDINAL ZPT team were assigned village patrol duty , described as the gathering of intelligence and apprehension of wanted persons , in GPE and CARDINAL other villages .

On DATE , ORG and CARDINAL other gendarmes were assigned village patrol duty , described as the gathering of intelligence and apprehension of wanted persons , in GPE and CARDINAL other villages .

On DATE illegible > DATE , ORG and CARDINAL other gendarmes were assigned village patrol duty , described as the gathering of intelligence and apprehension of wanted persons , in GPE and CARDINAL other villages .

On DATE , the ORG gendarmerie station commander PERSON and CARDINAL other gendarmes were assigned village patrol duty , described as the gathering of intelligence and apprehension of wanted persons , in GPE and CARDINAL other villages .

On DATE , the Deputy Commander of the ORG gendarmerie station and CARDINAL other gendarmes , accompanied by an unspecified number of GPE gendarme teams and other gendarme teams , were assigned village patrol duty , described as carrying out village search , confirming received intelligence reports , securing the supply of provisions and apprehension of wanted persons , in GPE .

On DATE , the Deputy Commander of the ORG gendarmerie station and CARDINAL other gendarmes were assigned village patrol duty , described as apprehension of deserters and execution of documentation duties , in GPE and CARDINAL other villages .

In an undated document with the heading “ Record ” ( “ PERSON ” ) , PERSON and the applicant state that soldiers had raided ORG on DATE and had damaged their house . This document specifies that “ in my house all the pots and pans , the television set , refrigerator , the doors , the windows , the blankets , the pillows , CARDINAL water dynamo , CARDINAL radio cassette player , CARDINAL stove , CARDINAL GPE cabinet , CARDINAL wardrobe and all my furniture were damaged ” . It is further stated that the record was determined by the muhtar and ORG . It is signed by PERSON and the applicant under the mention “ requesting determination ” ; by PERSON , PERSON , PERSON and PERSON under the mention “ expert ” ; and by ORG under the mention of GPE village muhtar . The muhtar ’s signature is officially stamped .

In an undated petition to the Silvan Magistrate Court , PERSON stated that on DATE soldiers had raided the house of his son ORG in the course of which all his son ’s household goods had been destroyed . The petition contains a detailed description of the damage . PERSON requested a judicial determination of the damage for use in evidence in proceedings that he wished to institute .

In a petition dated DATE , PERSON informed the office of the public prosecutor at ORG in ORG that his son and CARDINAL others had been taken away during a military raid on GPE on DATE . He requested to be informed whether , and if so where , his son was being detained . In his reply dated DATE , handwritten at the bottom of this petition , the public prosecutor to ORG stated that , “ He has been taken into custody at FAC . ”

In an article , published on DATE in the ORG newspaper , it is reported that a delegation consisting of CARDINAL NORP Parliamentarians , Lord PERSON , PERSON and PERSON , and CARDINAL NORP Parliamentarians , PERSON , PERSON and PERSON , visited LOC GPE in order to report on human rights violations and evacuated villages . According to this article , the delegation met with villagers from CARDINAL villages and hamlets in ORG , who related that ORG forces had burned their crops and DATE supplies . These villagers , whose identity was not disclosed in the article , further told the delegation that many villagers had been taken into detention and that PERSON and his sons PERSON and PERSON from PERSON had been taken into detention by ORG forces . The villagers further told the delegation that they lived in villages of LOC and that soldiers had raided DATE . Some of the soldiers had gone into their houses and had smashed up household goods and had mixed up foodstuffs so that these would become unusable . The soldiers had then set fire to the villagers’ tobacco and grain and had demanded that the villagers leave their village .

Following the communication of the application to the ORG , a preliminary investigation of the applicant ’s allegations was conducted by the public prosecutor at PERSON .

NORP In a letter of CARDINAL DATE from ORG to the PERSON public prosecutor it is denied that a petition had been filed by ORG in relation to the burning of a house in GPE .

According to a statement taken on DATE from PERSON , the GPE muhtar , the alleged operations of CARDINAL DATE , DATE and DATE by security forces in ORG had not given rise to any complaints by residents of GPE .

In a statement signed by the ORG gendarmerie station commander , CARDINAL gendarmes and PERSON , it is declared that , upon the request to establish whether the security forces had carried out operations in GPE on DATE , CARDINAL DATE and DATE , the ORG station records of routine services had been examined and that according to these records no forces had gone to ORG on DATE and DATE and that , on CARDINAL DATE , a village patrol had gone to ORG . The statement does not mention why the gendarme patrol had gone there on DATE . Without referring to any particular date or dates the statement further mentions that , according to the records , no operation had been conducted .

On DATE , the PERSON public prosecutor took a statement from PERSON , who declared that the applicant had left GPE DATE previously and that , on DATE , soldiers had conducted a search in GPE in the course of which CARDINAL persons – including his son Ercan – had been taken into detention and that charges of aiding and abetting the ORG had been brought against them . He further stated that , in the course of this search , the soldiers had damaged some of his property in his house , but denied that they had burned houses or belongings . Although he could not remember the exact dates , he stated that CARDINAL or CARDINAL further searches had been carried out in GPE on later dates . He denied that any damage had been inflicted by the soldiers to the villagers’ houses or belongings during the subsequent searches .

On DATE , the PERSON public prosecutor took a statement from PERSON , who confirmed the account of PERSON . He told the public prosecutor that , during the search of his house conducted on DATE , soldiers had damaged his belongings and that he wished to file a complaint against them . He further confirmed that there had been subsequent searches and that the searches of GPE included GPE . He denied that the soldiers had burned any houses during these searches .

According to a statement taken by the PERSON public prosecutor from PERSON on DATE , the latter told the prosecutor that in DATE gendarmes had taken CARDINAL persons from GPE , including PERSON son PERSON , in detention and that they had destroyed the household goods of those taken into detention . After the gendarmes’ departure from the village , he had noticed that some windows and wardrobes had been damaged . He denied that the soldiers had burned any household goods . He explained that the applicant did not live in GPE but in GPE . He denied that the signature under his name on the undated “ record ” ( see § CARDINAL above ) was his .

On DATE the public prosecutor at PERSON took a statement from the applicant . According to this statement the applicant told the public prosecutor that , DATE previously , gendarmes had come to GPE asking the villagers to show them ORG shelters . When the villagers denied knowledge of such shelters , the soldiers became angry and burned CARDINAL [ metric ] tonnes of tobacco belonging to the villagers . The applicant further told the prosecutor that on DATE , as stated in an undated report that was put to him , soldiers had destroyed his household goods . According to the applicant , the soldiers had returned to GPE on several occasions and on CARDINAL of those occasions DATE on DATE when he was not in GPE – the soldiers had burned his house . After his house had been burned , he and his family had moved to Batman . The applicant further told the public prosecutor that out of fear for the soldiers he had not filed any complaint to any authority and that , insofar as he knew , no one had done so out of fear for the soldiers .

On DATE the PERSON public prosecutor took a statement from PERSON , who declared that he lived in GPE . He denied having signed a report about the burning of household goods belonging to PERSON and the applicant by soldiers on DATE . He had not been in the village on DATE . Upon his return to the village , he had seen that belongings and the applicant ’s house had been burned . The applicant had told him that soldiers had done the burning . The soldiers had carried out CARDINAL more ambushes in the village . He had been in the village on those occasions . During CARDINAL of these ambushes , the soldiers apprehended CARDINAL persons , including his daughter PERSON . The soldiers had then damaged his household goods by hitting them with hard objects . The second time , the soldiers had taken out and burned QUANTITY of his tobacco . The soldiers had damaged property of those persons who had been apprehended . There had been a Major amongst the soldiers . He had not filed a complaint of this matter and had moved to GPE as a result of these incidents . He did not wish to file any charges or complaints .

By letter of CARDINAL DATE , ORG informed ORG that the allegations made by the applicant before the Commission had been investigated and that , contrary to his assertions , no operation had taken place in GPE or GPE on DATE .

In the context of the preliminary investigation of the applicant ’s complaint to ORG , the PERSON public prosecutor visited GPE in person . The report on this visit of DATE , insofar as relevant , reads :

“ … PERSON , ORG , was directly appointed as the indicating witness of the location . … The witness was asked to indicate the house belonging to the complainant PERSON . The indicated house was seen . It was observed that the single floor house was of mud brick with a concrete flat roof . Roof columns , window and door frames were absent . The roof and walls were covered with soot indicating fire . Walls separating rooms were partially demolished without traces of bullets either in or outside the house . The house in its present state was observed to be uninhabitable . The hamlet consists of CARDINAL houses . It is understood that the hamlet is totally uninhabited . The complainant ’s house did not contain any belongings … ”

By letter of DATE , ORG of ORG informed ORG that the applicant ’s complaints to the Commission had been investigated . An examination of the records had revealed that no operation by security forces had been carried out on DATE . It was concluded that the applicant ’s claims were unfounded and that the applicant had not made any application to the security forces .

On DATE , the ORG gendarme station Commander , who had replaced ORG in the meantime , took a statement from PERSON , a former ORG resident . PERSON stated that in DATE or DATE , early in TIME , the applicant ’s house had been burned by unknown persons . After having woken up , he had gone to the applicant ’s house that had still been burning . The applicant had been unable to take any of his belongings from his house and they were totally burned together with the house . The applicant had not received any financial aid from the State for his losses . Insofar as he knew , the applicant was in no way involved with illegal organisations . He and other villagers suspected the terrorists of the arson attack on the applicant ’s house .

Also on CARDINAL DATE a statement was taken from the applicant at the ORG gendarmerie station ( see § CARDINAL above ) .

On DATE , after several unsuccessful attempts to locate his new place of duty , a statement was taken by the ORG public prosecutor from ORG , the commanding officer of the ORG gendarme station at the material time . PERSON declared that the gendarmes used to carry out joint operations with ORG and that they had gone to ORG several times . In DATE , terrorist incidents had been at their peak and gendarmes continually went on operations . The gendarme forces used to search villages on the basis of gathered intelligence . Such searches were perceived as ambushes by villagers . He did not remember the applicant . He had gone to the applicant ’s village several times but could not recall exact dates . He confirmed that the gendarmes had been searching for a person named PERSON , who was wanted for ORG membership , and that they had searched houses in the village . During searches , gendarmes would also verify the identities of other persons . They had apprehended CARDINAL persons , including the GPE ’s son , who had been handed over to the prosecution authorities . After the search he and his men had returned to their base . It was not true that the gendarmes had assembled the villagers in the village square , had ill - treated them , had burned their tobacco or damaged their possessions . He denied that he or soldiers under his command had burned the applicant ’s village . He did not know whether or not it had been burned and if it had , the ORG must have done it . As stated by the village muhtar PERSON , he had attended both village searches .

The PERSON public prosecutor took a further statement from the applicant on DATE . According to this statement , the applicant provided the public prosecutor with information about his financial situation . He further stated that , DATE after the burning of his house , a van with CARDINAL persons arrived in GPE who questioned him about the incident . He had thought that they were journalists and informed them of the incident . His application had been written by them and he had signed it . After this , he had gone to ORG > Association in ORG from time to time .

On DATE , the PERSON public prosecutor , issued a decision of lack of jurisdiction . The decision named the applicant and PERSON as the complainants , PERSON and PERSON as injured parties and PERSON and Abdulkerim Uğurlu as witnesses . The defendants named were PERSON , PERSON and ORG . The offences were described as arson , damage to property , intimidation and ill - treatment committed on DATE , CARDINAL DATE and DATE .

The decision noted that the applicant had filed an application with ORG via representatives and that the applicant claimed that on DATE armed forces had carried out a raid on GPE and had destroyed the ORG household goods . It further stated that the applicant had extended his allegations by adding that his house and tobacco stock had also been burned by the security forces . It was further found established that PERSON had also filed a complaint about the destruction of his household goods and burning of his tobacco by the security forces .

The decision noted that ORG had confirmed the incident in part , that PERSON claimed that his household goods had also been destroyed by the military and his tobacco burned , and that PERSON had also claimed that his belongings had been destroyed by the military . The then muhtar of GPE , PERSON ORG , had confirmed the incidents in part but had also stated that the incidents stemmed from the fact that certain illiterate persons in the hamlet had been supporting the ORG .

Since the alleged offences had been committed in the course of the GPE exercise of duties , the public prosecutor decided , pursuant to LAW , to transfer the case to ORG .

On DATE , the PERSON public prosecutor took CARDINAL further statements from FAC , who maintained his previous statement ( see § CARDINAL above ) . He stated , inter alia , that after the incident in the village , persons from ORG had arrived in a jeep . They had taken pictures and statements from villagers . He had not been in the village at that time . He had heard about it later . The applicant had moved some of his household goods to Batman prior to the military operation in the village . The applicant had become frightened after his brother PERSON had been apprehended . The applicant had only kept basic essentials for his DATE needs . He did not remember whether the applicant had been in the village or in Batman during the incident .

On DATE the commanding officer of the LOC gendarme station DATE , PERSON , gave a statement to the PERSON public prosecutor . He stated that in the period DATE there had been terrorist incidents in the PERSON region and that various operations had been carried out . He had no clear recollection of an operation carried out in GPE . He doubted the veracity of the applicant ’s allegations .

On DATE , PERSON , the Commander of a commando unit of ORG at the relevant time , gave a statement to a superior gendarmerie officer . Insofar as he remembered , the inhabitants of GPE supported the ORG . The village fell within the jurisdiction of ORG gendarme station . PERSON was used by ORG frontliners and held an important position in supplying food , personnel and money to the ORG . The ORG used it as a meeting point , particularly for the robberies that had taken place between PERSON and ORG . At DATE or DATE , a female ORG commander in the area between Bismil and PERSON had given herself up to the security forces . On the basis of information provided by her , a number of ORG activists and fighters had been captured by the gendarme forces . Among these ORG supporters were a large number of ORG residents . He denied that the gendarme forces or he himself , as Commander of a commando team , had ill - treated persons or had damaged any property . In his view , the applicant ’s complaint had been arranged by ORG activists in order to denigrate the gendarme forces’ work and to take revenge .

In its decision of CARDINAL DATE , ORG DATE to which the case had been referred by order of ORG of DATE – found that there was insufficient evidence in support of the allegations made against the defendants PERSON , PERSON and ORG about offences allegedly committed on DATE , DATE and DATE and that , therefore , the case did not warrant the institution of criminal proceedings .

On instructions dated DATE issued by the PERSON public prosecutor , an inspection team went to GPE . This team consisted of a gendarme of ORG , an official of ORG , an official of ORG , an official of ORG and CARDINAL inhabitants of the village of PERSON . Their joint report dated DATE states , inter alia , that the surface of the applicant ’s collapsed house was QUANTITY , that it was in ruins , that it had not been burned or destroyed by the use of force but that the cause of the collapse was neglect and natural forces , that the applicant ’s barn measured QUANTITY and , like the house , had collapsed as a result of neglect and natural forces , and that the applicant ’s sheepfold measured QUANTITY and was in the same condition as the barn .

The facts of the case being in dispute between the parties , the ORG conducted an investigation , with the assistance of the parties , and accepted documentary evidence , including written statements and oral evidence taken on CARDINAL and DATE by CARDINAL Delegates of the Commission from CARDINAL witnesses : the applicant ; PERSON ; PERSON ; PERSON ; ORG ; PERSON , public prosecutor at PERSON from DATE ; and PERSON , senior public prosecutor at PERSON from DATE .

A further CARDINAL witnesses had been summoned but did not appear : the villagers FAC and Abdulkerim Uğurlu had died , CARDINAL other villagers were said to be too scared to give evidence and CARDINAL villager could not attend for reasons of ill - health .

In his testimony to ORG , the applicant stated that , although he could not read , he was able to recognise his signature . Although he was unable to give any precise indication of the dates of the alleged events , he maintained that , in DATE , soldiers had burned his tobacco and household goods and that , DATE , soldiers had burned his house . He further stated that he had gone to the ORG to complain and that he wished to pursue his application to ORG . ORG Delegates found the applicant a modest , simple and sincere man , whose world appeared to be mainly confined to his agricultural activities , his wife and children , and the need to provide for them . Despite his stout appearance , he struck the Delegates as a vulnerable man deeply affected by the loss of his house and material possessions , which was all he was concerned about in his life as this had secured his family ’s livelihood . Although his testimony was confused and lacked precision as to particular dates , times and number of incidents , the general tenure of his account was found to be sincere , convincing and supported by the evidence given by other villagers both in the domestic investigation and before the Delegates .

The general tenure of the applicant ’s account was confirmed by the testimonies of the villager witnesses PERSON , PERSON and PERSON . ORG Delegates found PERSON and PERSON GPE to be credible witnesses , but considered that PERSON evidence was to be treated with caution .

Hüdaverdi Tunç confirmed that the gendarmes under his command had gone to ORG regularly on village patrol duty , i.e. to carry out routine duties of a military , civil and judicial nature . Such duties would be recorded in the gendarmerie station ’s duty ledgers . In gendarme terminology an “ operation ” might consist of a substantial number of gendarmes , possibly from CARDINAL gendarmerie station , going to a village for a search , the gathering of intelligence and apprehending suspects .

He recalled that gendarmes had conducted a search in GPE in the DATE and that they had apprehended QUANTITY persons there , but denied that on that occasion gendarmes had burned tobacco of villagers or had damaged household goods . He had never heard of allegations of widespread destruction of villages in the region and no such thing had happened during his term of office there . He had heard about the allegations against him in relation with the burning of GPE for the first time on DATE , when he gave his statement to the public prosecutor .

ORG found his evidence on general issues credible , but considered that his evidence on specific events was to be assessed with caution . They were further not convinced by his unconditional denial that gendarmes had ever caused any damage , even when conducting house searches .

The PERSON public prosecutors PERSON and PERSON gave evidence in relation to their investigation of the applicant ’s allegations , which respective accounts ORG considered credible . The Delegates were , however , not convinced by their evidence that they had never , or only once , been confronted with allegations that security forces had damaged private property .

In relation to the oral evidence , the ORG was aware of the difficulties attached to assessing evidence obtained orally through interpreters . It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates .

In a case where there were contradictory and conflicting factual accounts of events , the Commission particularly regretted the absence of a thorough domestic judicial examination . It was aware of its own limitations as a first - instance tribunal of fact . In addition to the problem of language adverted to above , there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region . The Commission ’s findings may be summarised as follows .

DATE and DATE , gendarme forces regularly patrolled ORG and its hamlets . On CARDINAL and DATE and on DATE , more important gendarme operations took place in GPE and/or GPE . Although – apart from the gendarme operation carried out on DATE the documents submitted in relation to activities by the gendarmes of the ORG station did not explicitly mention GPE , the ORG considered it likely , on the basis of the testimony given by the witnesses , that when an important gendarme operation took place in the main village of ORG involving gendarmes from other stations than ORG , such an operation also embraced the GPE hamlet attached to ORG .

DATE . The Commission accepted that the inconsistencies in the evidence submitted as to the date or dates on which the belongings of the applicant and other villagers had allegedly been damaged by security forces could be explained by the regularity of gendarme village patrols and more important operations during the relevant period and by witnesses’ problems in recalling events having taken place DATE . Noting the Delegates’ impressions of the witnesses heard , it did not find that this materially undermined the credibility and reliability of the applicant and the other villager witnesses .

On the basis of the evidence submitted , the ORG found it established that on DATE gendarme forces from ORG and PERSON had apprehended a number of persons from GPE and GPE and that , on or around that date , gendarme forces from ORG and PERSON had damaged the fittings , furniture and household goods in the applicant ’s home , including a refrigerator , television , cassette player , washing machine , kitchenware , stove , household goods , furniture , bedding , curtains , doors and windows . It further accepted that on or around CARDINAL DATE , and in any event in DATE , the applicant ’s tobacco produce had been burned by gendarmes .

In the light of the evidence before it , the ORG further found no grounds for doubting the veracity of the evidence given that on or around DATE , and in any event in the DATE , gendarme forces from ORG and PERSON were responsible for the deliberate burning of the applicant ’s house , thus forcing him and his family to leave GPE .

On DATE , the Government submitted a number of further documents not submitted previously . These included various judgments of NORP administrative courts in unrelated cases in which compensation was granted to individuals for damage incurred as a result of acts of terrorism . The other judicial decisions submitted were convictions by NORP criminal courts in unrelated cases of soldiers and police officers for manslaughter , torture and assault . The further submission also contained the daily duty ledger of the ORG gendarmerie station for DATE ; CARDINAL reports of the ORG gendarmerie station and further reports of the PERSON gendarmerie station reporting CARDINAL incidents having taken place in the area on DATE , DATE , CARDINAL and DATE and DATE respectively ; a letter dated CARDINAL DATE by ORG to the PERSON public prosecutor concerning the applicant ’s whereabouts , and a letter of DATE from ORG to the PERSON public prosecutor stating that the applicant had moved to Batman DATE and that his new address could not be established .

In their memorial , the ORG also mentioned statements taken by the authorities from PERSON ( DATE ) , PERSON ( CARDINAL DATE ) , PERSON ( DATE ) and the applicant ( DATE ) . These statements have , however , not been submitted to either the ORG or the ORG .

The ORG refers to the overview of domestic law derived from previous submissions in other cases , in particular the ORG and Others v. GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL , § § DATE , the Menteş and Others v. GPE judgment of DATE , Reports CARDINAL , § § CARDINAL ; the PERSON and PERSON v. GPE judgment of DATE , Reports CARDINAL-II , § § DATE ; and the GPE v. GPE judgment of CARDINAL DATE , Reports CARDINAL , § § DATE .

Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has claimed the lives of CARDINAL of civilians and members of the security forces .

CARDINAL principal decrees relating to the south - eastern region have been made under the PERSON on ORG ( Law no . CARDINAL , DATE ) . The first , Decree no . CARDINAL ( DATE ) , established a regional governorship of the state of emergency in CARDINAL of the CARDINAL provinces of south - eastern GPE . Under LAW b ) and ( d ) of the decree , all private and public security forces and ORG are at the disposal of the regional governor .

DATE . The second , Decree no . CARDINAL ( DATE ) , reinforced the powers of the regional governor , for example to order transfers out of the region of public officials and employees , including judges and prosecutors , and provided in LAW

“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”

Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :

“ 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 . ”

This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

LAW makes it a criminal offence :

– to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;

– to issue threats ( LAW ) ;

- to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL )

– to subject an individual to torture or ill - treatment ( Articles CARDINAL in respect of torture , and Article CARDINAL in respect of ill - treatment , inflicted by civil servants ) ; and

– to damage another ’s property intentionally ( Articles CARDINAL et seq . ) .

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . 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 to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . In these circumstances proceedings may be initiated by the ( non - military ) persons concerned before the competent authority under LAW , or before the suspected persons ' hierarchical superior ( Articles CARDINAL and CARDINAL of Law CARDINAL on the LAW and the Procedure of Military Courts ) .

If , at the relevant time , the alleged author of a crime is a ORG official or civil servant , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to Article CARDINAL of LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages awarded under LAW . Damage caused by terrorist violence may be compensated out of ORG .

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

The public prosecutor is also deprived of jurisdiction with regard to offences allegedly committed by members of the security forces in the state of emergency region . Decree no . CARDINAL , LAW , provides that all security forces under the command of the regional governor ( see paragraph CARDINAL above ) shall be subject , in respect of acts performed in the course of their duties , to the Law of DATE on the prosecution of civil servants . The Law of DATE has been replaced by another law in the meantime . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non - jurisdiction and transfer the file to ORG . These councils are made up of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .


Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the Court by Mr M. GPE , an advocate practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant concluded a loan agreement whereby she as a lender lent a sum of MONEY ( ORG ) to company A. in return for DATE interest at PERCENT . The company also agreed to return the money , together with the accrued interest , upon the applicant ’s demand .

In DATE the applicant brought a civil action in ORG ( PERSON ) against company ORG , seeking repayment of the loan . In DATE the court ruled in her favour and ordered the company to pay her CARDINAL NORP kunas ( HRK ) together with the accrued statutory default interest . However , the applicant was unable to enforce that judgment because company A. had no assets . In DATE ORG ( PERSON ) instituted summary liquidation proceedings against company A.

Meanwhile , in DATE the applicant , together with CARDINAL other plaintiffs ( who also deposited their savings with company A. ) , brought a civil action in ORG against the directors ( and only shareholders ) of the company A. , PERSON and PERSON , seeking pecuniary damages . In DATE the court ruled for the plaintiffs . In particular , it ordered ORG to pay the applicant GPE euros ( ORG ) .

In DATE ORG Attorney indicted ORG , before ORG on several counts of fraud and a number of other criminal offences . They were eventually found guilty as charged and sentenced to DATE and CARDINAL months’ and DATE and CARDINAL months’ imprisonment , respectively . The applicant participated in those proceedings as an injured party ( oštećenik ) .

On DATE the applicant was assaulted in the street by Mr PERSON , who punched her once in the face , as a result of which she sustained injuries ( a bruised nose and cracked nose cartilage ) .

On DATE the applicant submitted a motion to indict ( optužni prijedlog ) PERSON , accusing him of inflicting minor bodily injury , to ORG .

On DATE ORG found PERSON guilty and sentenced him to CARDINAL days’ imprisonment .

On DATE the applicant appealed against the first - instance judgment . In her appeal she wrote , inter alia :

“ From the very beginning of these proceedings the bias of Judge PERSON was obvious , which I will explain in my appeal .

... in the judgment Judge PERSON gave credence to the statement of the accused because his statement was ‘ logical and PERSON . ... Such a view on the part of the judge I can only qualify as an obvious bias .

Only then did I realise why the judge was simply [ giving vent to her instincts and ] harassing my witnesses [ when examining them ] regarding the injury the accused PERSON had inflicted on me by punching me .

That statement was given by my husband PERSON on DATE ... and all this is the result of him being provoked by the judge .

On DATE the main hearing started anew because of a deliberate lapse of the DATE time - limit . ... PERSON ... suggests that the witness [ PERSON ] be summoned and examined at the hearing . Of course this proposal from PERSON was accepted , even though the judge knew why PERSON had not attended the hearing when PERSON and PERSON had testified , but PERSON has a statutory right to dictate the pace of the court proceedings . ... When my husband had to testify again on DATE he was so upset that he ... exaggerated my injuries in order to express his rage [ as regards ] such conduct – the protraction of these criminal proceedings . Is it then really surprising that there are so many unsolved cases if for such simple criminal proceedings CARDINAL or maybe even more hearings have to be scheduled ? Anyway , by then I already had the impression that the judge had already reached a decision , so I was not surprised when on DATE I received the judgment as it stands . The fact that my husband was obviously upset was noticed by other lenders [ observers , namely , individuals who had lent money to PERSON ’s company ] who were present in the courtroom and followed the trial ... , who were appalled by such conduct of the proceedings , in which the judge ’s bias could not be hidden .

The finding of the judge ... in which she gives credence to the statement of the accused , because his statement is ‘ logical and convincing’ ... is regrettable but even more biased . What is important is that the accused gained the trust of the court .

In ... the judgment the judge again incorrectly states that ‘ the plaintiff , PERSON and PERSON are all investors in the company of the injured party’ ( instead of ‘ the injured party’ it should be ‘ the accused’ ) . First of all PERSON and I are lenders , which is very different from investors , and the judge should know that difference , given her job description .

In the ... judgment the evident bias of the judge is visible because it can not be said that she is inexperienced or incompetent when she assesses my behaviour towards the accused with bias ...

The accused PERSON is lucky that he found understanding and protection in the judge . How wisely cited my husband ’s statement was in the judgment and its intention , but the judge did not indicate when this statement had been given because my husband had had to testify twice ...

It is visible that in that part of the judgment the judge again ruled with certain intent against me ...

I am asking ORG to assign my appeal to the members of the panel who did not decide on the appeal of married couple NORP on CARDINAL DATE in the criminal proceedings no . K-CARDINAL/CARDINAL , and these are judges GPE , GPE and GPE , because their protection of married couple NORP and bias in delivering the judgment was obvious . As I was present at the [ hearing ] , I witnessed that myself .

Having regard to these protracted court proceedings , the unwarranted scheduling of CARDINAL hearings and the biased judgment , which in a way justifies the act of physical violence of the accused against me , as well as the deliberate failure to record his statement that he was not sorry for having punched me , it is not surprising that , because of certain judges , other citizens and I think the judiciary is corrupt ... it is no wonder that in our country the legal order does not function and that every day crime and violence are burgeoning . ”

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal and upheld the first - instance judgment .

After it had completed the preliminary examination of the applicant ’s appeal of DATE in the above criminal proceedings , on DATE the panel of ORG , composed of judges GPE , PERSON and ORG , issued a decision whereby it fined the applicant CARDINAL NORP kunas ( HRK ) for contempt of court . The decision , which was served on the applicant on DATE read , in its relevant part , as follows :

“ I. Pursuant to section CARDINAL(CARDINAL ) of LAW ... the private prosecutor PERSON ... is hereby fined CARDINAL [ NORP ] kunas for insulting the court in her appeal lodged against the judgment of ORG of DATE ...

II . NORP The private prosecutor PERSON shall pay the above fine within DATE of this decision becoming final .

III . If the private prosecutor does not pay the above fine of HRK CARDINAL,CARDINAL in full or in part within DATE of this decision becoming final , the fine shall , on the basis of section CARDINAL of LAW , be converted into a prison sentence , which shall be imposed by applying the provisions of LAW , mutatis mutandis .

Reasons

Apart from the accused PERSON , the private prosecutor PERSON also lodged an appeal against the judgment of ORG of DATE ...

While deciding on the appeal of the private prosecutor ... on DATE , this [ court ] found that the private prosecutor in her appeal against the above - mentioned judgment of ORG had insulted the court . Since the provision of section CARDINAL of LAW is mandatory as it provides that ‘ the court shall impose a fine of CARDINAL [ NORP ] kunas ... DATE which means that the court is obliged to fine a person if he or she insults the court in his or her written submissions – this [ court ] , finding that the private prosecutor had insulted the court , fined [ her ] as indicated in the operative provisions of this decision .

Namely , in her appeal the private prosecutor makes , inter alia , [ the following ] insulting incriminations : ‘ From the very beginning of the proceedings the bias of Judge PERSON was obvious.’ ... ‘ Such an attitude on the part of the judge I can only qualify as an obvious bias.’ ... ‘ Only then did I realise why the judge was simply harassing my witnesses.’ ... ‘ All this is a result of my husband being provoked by the judge.’ ... ‘ Because of the deliberate lapse of the DATE time - limit.’ ‘ ... Mr NORP has a statutory right to dictate the pace of the court GPE ... ‘ expressed his rage [ as regards ] such conduct – protraction of these criminal GPE ... ‘ Anyway , by then I already had the impression that the judge had already reached a decision , so I was not surprised when on DATE I received the judgment as it stands.’ ... ‘ I am appalled by such conduct of the proceedings in which the bias of the judge could not be hidden.’ ... ‘ The finding of the judge ... is regrettable but even more biased.’ ... ‘ The only important thing is that the accused gained the trust of the court.’ ... ‘ The judge should know that difference given her job description.’ ... ‘ The evident bias of the judge is visible because it can not be said that she is inexperienced or incompetent when she assesses my behaviour.’ ... ‘ The accused PERSON is lucky that he found understanding and protection in the judge.’ ... ‘ How wisely cited was the statement of my husband in the judgment and its intention’ ... ‘ The judge again ruled with a certain intent against me.’ ... ‘ I am asking ORG to assign my appeal to the members of the panel who did not decide on the appeal of married couple NORP on CARDINAL DATE in the criminal proceedings no . K-CARDINAL/CARDINAL , and these are judges GPE , GPE and GPE , because their protection of married couple NORP and bias in delivering the judgment was obvious . As I was present at the [ hearing ] , I witnessed that myself.’ ... ‘ Deliberate failure to record his statement.’ ... ‘ It is not surprising that , because of certain judges , other citizens and I think the judiciary is ORG ... ‘ it is no wonder that in our country the legal order does not function and that every day crime and violence are burgeoning.’

This [ court ] finds that the above - mentioned words [ made bold for emphasis ] from the private prosecutor ’s appeal are insulting in their content and contain insulting allusions ... questioning the professional qualities of Judge PERSON as well as the judges GPE , GPE and ORG , whose withdrawal the private prosecutor in fact requested in her appeal as [ they were ] , in [ her ] view , obviously biased ...

In this [ court ’s ] view , the appeal of the private prosecutor is insulting and demeaning as a whole , which is particularly exemplified in the above - cited passages from her appeal , where [ she ] displays blatant arrogance towards the judges and judiciary in general . Her belittling attitude and desire to give lessons to everyone is apparent . She seeks to demean the judges , which is particularly exemplified when the private prosecutor dares to say that Judge PERSON was harassing her witnesses ... that the public was appalled by the way in which the judge conducted the proceedings , that the finding of the judge was regrettable but even more biased , that the judge should have known what investment is , that the judge was neither inexperienced nor incompetent when she assessed the behaviour of the private prosecutor towards the accused with bias . Therefore , in this [ court ’s ] view , there is no doubt that the private prosecutor in her appeal insults and belittles the court by the above - mentioned incriminations . This is the case especially since the above - mentioned allegations are not necessary for the elucidation of the arguments raised in the appeal , as the incriminations in question also contain insulting allusions concerning the professional qualities of Judge PERSON and other judges of this court , through which the private prosecutor objectively tarnishes the reputation of the court .

Having regard to the list of incriminations in the private prosecutor ’s appeal , by which she insults the judges and singles some [ of them ] out while expressing her opinions as regards the bias and corruption of certain judges and the judiciary as a whole , there is no doubt that this [ court ] was obliged , within the meaning of section CARDINAL ) of LAW , to fine [ her ] .

The above fine appears adequate given the incriminations in the appeal and their number and severity . The private prosecutor will be able to pay this fine ... even though she refused to indicate the amount of her pension . However , it is evident [ from the case file ] that she owns a flat , so her refusal to indicate the amount of her pension – which she is otherwise obliged [ to do ] – only shows her arrogance and demeaning attitude towards certain judges and the court as a whole .

This [ court ] , however , [ established ] that her pension amounts to HRK CARDINAL,CARDINAL , and took [ it ] into account when determining the amount of the fine . The court therefore considers that she will be able to pay the fine of HRK CARDINAL within the DATE time - limit . [ It is to be noted ] that if the above fine is not paid in full or in part within [ that ] time - limit , it will be converted into an appropriate prison sentence on the basis of section CARDINAL of LAW by applying the provisions of LAW , mutatis mutandis . ”

On DATE the applicant lodged an appeal against that decision , arguing , inter alia , that the remarks made in her appeal of CARDINAL October CARDINAL had been taken out of context and that their aim had not been to insult , but to undermine the lawfulness of the appealed first - instance judgment of CARDINAL DATE . By making those remarks she had been expressing her opinion and had had reason to believe that it was valid . However , she had been fined only because she had dared to doubt the impartiality of Judge PERSON and to complain about judges who were considered to be infallible .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal and upheld the first - instance decision . ORG decision , which was served on the applicant on DATE read , in its relevant part , as follows :

“ The [ ORG ] correctly found that the private prosecutor PERSON , in her appeal lodged against the judgment of ORG of DATE , expressed disrespect for judicial office and thereby insulted the court .

Namely , the fact is that by the remarks made in the appeal at issue , which are highlighted in the contested decision , the court is being insulted and belittled . [ This is so ] because those incriminating remarks were obviously not necessary for the elucidation of the grounds for the appeal . By their content [ they ] represent demeaning and insulting allusions and expressions , which groundlessly question the professional qualities of judges , insult the court as a whole , show arrogance in respect of judges and the judiciary in general and thereby objectively tarnish the reputation of the court .

As the court is , on the basis of the mandatory statutory provision of section CARDINAL ) of LAW , obliged to impose a fine when it finds that the conditions set forth in that provision have been met , the imposition of a fine on the private prosecutor – as a measure to secure [ procedural ] discipline of the parties – in order to prevent her possible such or similar behaviour in DATE was well - founded .

Therefore , the private prosecutor ’s appeal in which she does not actually deny having made insulting remarks , is unfounded .

Contrary to the arguments raised in the appeal , the amount of the imposed fine of HRK CARDINAL,CARDINAL [ NORP ] kunas , which under section CARDINAL ) of LAW , may be up to HRK CARDINAL,CARDINAL , is appropriate to the number , gravity and severity of the insults , the income and the general behaviour of the private prosecutor so far , where regard should be had to the fact ... that the fine was ordered to be paid within DATE . ”

On DATE the applicant lodged a constitutional complaint under section CARDINAL of LAW against ORG decision . On DATE ORG declared the applicant ’s constitutional complaint inadmissible and served its decision on her on DATE . It held that the impugned decision did not concern the merits of the case and , as such , was not susceptible to constitutional review .

The applicant paid the fine on DATE .

The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of DATE – “ the LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :

“ CARDINAL . Any person may lodge a constitutional complaint with ORG if he or she deems that the decision of a state authority , local or regional selfgovernment , or a legal person vested with public authority , concerning his or her rights or obligations , or about a suspicion or an accusation of his or her having committed a criminal offence , has violated his or her human rights or fundamental freedoms , or right to local or regional self - government , guaranteed by LAW ( hereinafter : constitutional rights ) ...

NORP If another legal remedy is allowed against the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .

NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] are allowed , remedies shall be considered to have been exhausted only after the decision on these legal remedies has been given . ”

LAW of DATE ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE ( corrigendum ) , CARDINAL , CARDINAL , CARDINAL , CARDINAL ( corrigendum ) , CARDINAL ( consolidated text ) and DATE ) , in its relevant part , provided as follows :

“ CARDINAL . The court shall impose a fine of CARDINAL [ NORP ] kunas on defence counsel , a legal representative , legal guardian , injured party or private or subsidiary prosecutor , witness or expert who insults the court or another participant in the proceedings [ either ] orally or in his or her written submissions . The decision as regards the fine to be imposed shall be rendered by the investigating judge or the panel before which the insulting remark was made or , if such a remark was made in a written submission , the decision shall be rendered by the court which has to decide on that submission . An appeal lies against this decision . ...

NORP The fine imposed pursuant to paragraph CARDINAL of this section shall have no effect on the prosecution or the imposition of a [ criminal ] sanction for the criminal offence committed by the insult . ”

“ When a fine imposed in accordance with the provisions of this LAW is not paid in full or in part within the fixed time - limit , the court may convert it into a prison sentence which shall be imposed by applying the provisions of LAW , mutatis mutandis . ”

LAW ( Kazneni zakon , ORG no . CARDINAL , with subsequent amendments ) reads as follows :

“ A fine shall be converted into a prison sentence so that CARDINAL DATE income is converted into DATE of imprisonment , where the maximum duration of imprisonment into which the fine was converted shall not exceed DATE . ”

According to the practice of the domestic courts , before taking a decision to convert the fine into a prison sentence , a court has to summon and hear the person fined . An appeal always lies against such a decision ( see , for example , the ORG decision no . Kž CARDINAL/CARDINAL - CARDINAL of DATE ) .


Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (six month period);Violation of Art. 8;Not necessary to examine Art. 3;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

C. Russo;John Freeland;N. Valticos;R. Pekkanen

The applicant , who is a NORP citizen , was born in DATE at GPE , GPE , and was registered with the civil status registrar as of male sex , with the forenames PERSON .

PERSON , the eldest of CARDINAL children , adopted female behaviour from DATE . She was considered as a girl by her brothers and sisters and is said to have had difficulty coping with a wholly segregated scholastic environment .

She completed her military service in GPE , as a man , and her behaviour at the time was noticeably homosexual .

After spending DATE teaching reading and writing to young persons from ORG , she left GPE in DATE and settled in GPE , working in a cabaret under an assumed name .

Distressed by her feminine character , she suffered from attacks of nervous depression until DATE , when she was treated in hospital for DATE . The doctor who treated her from DATE observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy , which rapidly brought about development of the breasts and feminisation of her appearance . The applicant adopted female dress from then on . She underwent a surgical operation in GPE in DATE , consisting of the removal of the external genital organs and the creation of a vaginal cavity ( see paragraph CARDINAL below ) .

Miss PERSON is now living with a man whom she met shortly before her operation and whom she at once informed of her situation . She is no longer working on the stage , and is said to have been unable to find employment because of the hostile reactions she aroused .

PERSON , wishing to marry her friend , brought proceedings against the GPE public prosecutor ( procureur de la PERSON ) on DATE , asking the court

" to hold that , registered in the civil status register of [ her ] place of birth as of male sex , [ she was ] in reality of feminine constitution ; to declare that [ she was ] of female sex ; to order rectification of [ her ] birth certificate ; to declare that [ she should ] henceforth bear the forenames PERSON " .

On DATE the GPE tribunal de grande instance dismissed her action for the following reasons :

Whereas it is clear from the PERSON report and is moreover not contested that [ B. ] , correctly registered at birth as of male sex , developed towards female morphology , appearance and behaviour , apparently because of congenital hypogenesis ... and psychological tendencies following hormone treatment and surgical operations ;

Whereas it is thus apparent that the change of sex was intentionally brought about by artificial processes ;

Whereas the application of PERSON [ B. ] can not be granted without attacking the principle of the inalienability of the status of individuals ;

The applicant appealed , but on CARDINAL DATE ORG upheld the judgment of the lower court . The court said inter alia :

" ... contrary ... to Mr [ B. ’s ] contention , his present state is not ‘ the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic ORG , nor can it be considered that the treatment voluntarily undergone by Mr [ B. ] led to the disclosure of his hidden true sex , but on the contrary it indicates a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [ B. ’s ] biological development .

Miss PERSON appealed to ORG . Her single ground of appeal was as follows :

" This appeal complains that the challenged judgment dismissed the appellant ’s application for rectification of civil status ,

On the grounds that if , notwithstanding the principle of the inalienability of the status of individuals , an amendment can be made where ‘ irreversible necessity , independent of the individual , compels GPE , which may be the case with real transsexuals , such amendment can be approved only after a long period of observation and reflection prior to the operation stage , during which a qualified medical team can ‘ gradually reach the conclusion that the situation is genuine and PERSON ; that in this case ... ‘ no form of psychological or psychiatric treatment was tried’ ; that ‘ the first doctor who prescribed hormone treatment did not carry out any protracted observation , no guarantee of such observation was given before the surgical operation carried out abroad’ ; that ‘ the apparent change of sex was brought about solely by PERSON [ B. ’s ] intention and it is clear that even after the hormone treatment and surgical operation he still shows the characteristics of a person of male sex whose external appearance has been altered thanks to cosmetic plastic surgery’ ; that , therefore , far from having led to the ‘ disclosure of his hidden true sex’ , the treatment undergone by him indicates a ‘ deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [ B. ’s ] biological development’ ... ;

Whereas sexual identity , which is a fundamental right of the individual , is constituted not only by biological components but also by psychological ones ; that by considering surgery undergone by a transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept his male genetic and chromosomal characteristics , and by not undertaking any investigation of his contradictory psychological history - investigation which was not prevented by the lack of psychotherapy of the patient before the operation , bearing in mind the expert report produced for the court - the Court of Appeal deprived its decision of any legal foundation with respect to LAW .

The applicant ’s supplementary pleadings opened with the following " introduction " :

" The Court of Cassation now has a fresh chance to let transsexuals enter into normality , by allowing them rectification of their civil status .

The solution is legally possible since ORG has stated sexual identity to be a fundamental right of the individual .

It is humanly necessary in order for people who are not medically perverted but are merely victims of aberrations of nature finally to be able to live in harmony with themselves and with the whole of society . "

It also included an argument relating to the Convention :

" VI . In the NORP legal system this argument [ accepting the transsexual ’s right to recognition of his true identity ] has been entirely accepted , thus making up for the absence of a NORP statutory provision on the point .

ORG , when applied to by a transsexual whose request had been dismissed by a final judgment of ORG , considered that by refusing to take account of changes which had occurred lawfully GPE had failed to observe the respect due to the applicant ’s private life within the meaning of Article CARDINAL para . CARDINAL ( article LAW of LAW ; and that by refusing to take into account ‘ his sexual identity resulting from his change of physical form , his psychical make - up and his social role ... GPE had treated the applicant as an ambiguous being , an appearance’ ...

This follows from a report dated DATE , which recognises that sexual identity is a fundamental right of the individual .

GPE has expressly subscribed thereto by issuing a declaration [ recognising ] the right of individual petition to ORG ... "

The appeal was dismissed by ORG of ORG on DATE for the following reasons :

" Whereas , according to the findings of the court below , PERSON [ B. ] submitted an application to the tribunal de grande instance for a declaration that he was of female sex , that his birth certificate should consequently be amended , and for authorisation henceforth to bear the forenames PERSON ; whereas his application was dismissed by the confirmatory judgment under appeal ;

Whereas Norbert [ B. ] complains that ORG ( GPE , CARDINAL DATE ) so decided despite the fact that sexual identity is constituted not only by biological components but also by psychological ones , so that by taking a decision without carrying out any investigation of his psychological history it deprived its decision of any legal foundation ;

Whereas , however , the court of second instance found that even after the hormone treatment and surgical operation which he underwent PERSON [ B. ] continued to show the characteristics of a person of male sex ; whereas it considered that , contrary to the contentions of the person in question , his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned ; whereas it thus justified its decision in law ; whereas the ground of appeal can therefore not be upheld ;

... " ( Bulletin des arrêts de la Cour de cassation , chambres civiles ( ORG . civ . ) I , DATE , no . CARDINAL , p. CARDINAL )

No legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have acknowledged .

It has been possible for surgical operations to take place in GPE since DATE subject to medical control ; before then they were carried out abroad . There is no objection by ORG , and the costs of some of these operations are borne by the social security service .

Persons who commit intentional attacks on the physical integrity of a human being are criminally liable , as are their accomplices , but although prosecutions are possible , they are exceptional in cases of transsexualism .

Events which take place during the lives of individuals and affect their status give rise to a marginal note on the birth certificate or are transcribed on to the certificate : acknowledgement of an illegitimate child ( LAW ) , adoption ( LAW ) , marriage ( LAW ) , divorce ( LAW ) , and death ( LAW ) . Civil status registrars are asked to leave sufficient space for these purposes ( LAW no . CARDINAL - CARDINAL of CARDINAL DATE amending various regulations relating to civil status ) .

Under the first paragraph of section CARDINAL of the Decree of DATE ,

" Civil status registers dating DATE back may be consulted directly only by public officials authorised to do so and persons with the written permission of the procureur de la République " .

However , " the public nature of civil status documents shall be ensured by the issue of full copies or extracts " ( same section , second paragraph ) .

Full copies of a birth certificate can be issued only to the person concerned , his ascendants or descendants , his spouse , his legal representative , the procureur de la PERSON or any person authorised by him ( section CARDINAL , first and third paragraphs ) . However , any person can obtain an extract of another person ’s birth certificate ( section CARDINAL ) .

The information which appears on an extract of birth certificate is subject to certain restrictions . Thus in the case of legal adoption , such an extract must not include any reference to the adoption order or the family of origin ( section CARDINAL ) .

In addition , the Decree of DATE on the simplification of administrative formalities provides that in the case of procedures and investigations carried out by public bodies , services and offices or by undertakings , organisations and health insurance institutions under ORG supervision , extracts of civil status documents shall be replaced by production of a civil status certificate . Such a certificate does not indicate sex .

The following provisions govern the rectification of civil status documents :

" The birth certificate shall state DATE , time and place of birth , the sex of the child and the forenames given , the forenames , surnames , ages , occupations and addresses of the father and mother and , if appropriate , those of the person reporting the birth . If either or both of the father and mother of an illegitimate child are not named to the civil status registrar , no mention relating thereto shall be made in the registers .

If the certificate drawn up relates to an illegitimate child , the registrar shall within DATE give notice thereof to the judge of the tribunal GPE for the district of the birth .

The forenames of a child appearing on his birth certificate may in the case of a legitimate interest ( intérêt légitime ) be amended by an order of the tribunal de grande instance made on application by the child or , during his minority , on application by his legal representative . The order shall be made and published subject to the conditions provided for in Articles CARDINAL and CARDINAL of this Code . The addition of forenames may likewise be ordered . "

" Rectification of civil status documents shall be ordered by the president of the court .

Rectification of declaratory or supplementary judgments relating to civil status documents shall be ordered by the court .

An application for rectification may be brought by any person concerned or by the procureur de la PERSON ; the latter shall be obliged to act ex officio where the error or omission relates to an essential indication in the document or in the decision taking its place .

The procureur de la PERSON having local jurisdiction may carry out administrative rectification of merely material errors and omissions in civil status documents ; for this purpose he shall give the relevant instructions directly to those having custody of the registers . "

" No citizen may bear a surname or forename other than those stated in his birth certificate ; those who have abandoned them shall be obliged to resume them . "

A large number of NORP tribunaux de grande instance ( T.G.I. ) and courts of appeal ( C.A. ) have granted applications for amendment of entries in civil status registers relating to sex and forenames ( see inter alia T.G.I. ORG , CARDINAL ; ORG , CARDINAL.CARDINAL.CARDINAL ; GPE , CARDINAL ; GPE , ORG ; ORG , DATE ; PERSON , CARDINAL and CARDINAL ; ORG , DATE ; GPE , GPE , CARDINAL , CARDINAL and CARDINAL ; ORG , CARDINAL.CARDINAL.CARDINAL ; PERSON , CARDINAL.CARDINAL.CARDINAL ; GPE , GPE ; ORG , CARDINAL ; ORG , CARDINAL.CARDINAL.CARDINAL ; ORG , DATE ; GPE , CARDINAL.CARDINAL.CARDINAL and CARDINAL ; ORG , CARDINAL.CARDINAL.CARDINAL ; GPE , GPE ; ORG , CARDINAL.CARDINAL.CARDINAL ; GPE , CARDINAL ) or relating to forenames only ( T.G.I. GPE , DATE ; PERSON , CARDINAL.CARDINAL.CARDINAL ; GPE , CARDINAL.CARDINAL.CARDINAL ; PERSON , DATE ; PERSON , CARDINAL.CARDINAL.CARDINAL ) . Some of these decisions specified that the amendment of civil status should not have retroactive effect , in order not to affect earlier legal acts or situations . The great majority of them have become final and binding , the prosecutor ’s office not having exercised its right to appeal .

Contrary rulings have , however , been given by other courts ( see inter alia T.G.I. ORG , DATE ; GPE , DATE ; PERSON , CARDINAL.CARDINAL.CARDINAL and CARDINAL.CARDINAL.CARDINAL ; GPE , PERSON ; PERSON , CARDINAL , CARDINAL and CARDINAL ; ORG , DATE , CARDINAL.CARDINAL.CARDINAL , CARDINAL.CARDINAL.CARDINAL and CARDINAL.CARDINAL.CARDINAL ; ORG , DATE and FAC ) .

ORG has had occasion to give decisions on this point CARDINAL times from DATE to CARDINAL DATE .

In CARDINAL judgments of DATE ( ORG . civ . I , no . CARDINAL , p. CARDINAL , and no . CARDINAL , p. CARDINAL ; PERSON ( ORG ) DATE , p. CARDINAL , note GPE ; LAW périodique ( J.C.P. ) DATE , II , DATE , note Penneau ) it ruled out any possibility of taking into account a change of sexual attributes following hormone treatment and surgery which the person concerned had voluntarily undergone ( first judgment ) , but indicated that the courts could take into account involuntary morphological changes following treatment carried out in a concentration camp during the second world war ( second judgment ) .

On DATE ( ORG . civ . I , no . CARDINAL , p. CARDINAL ; ORG , p. CARDINAL , note ORG ; J.C.P. DATE , II , DATE , submissions of Mr Advocate General PERSON ) it dismissed an appeal which had been brought against a judgment refusing to allow a change of sex despite a favourable medical report , as " ORG [ had ] found that despite the operations undergone by her , PERSON was not of male sex " .

CARDINAL further judgments were given by ORG on DATE ( ORG . civ . I , no . CARDINAL , p. CARDINAL , and no . CARDINAL , p. CARDINAL ; PERSON , p. CARDINAL , note ORG ) . The latter judgment relates to the present case ( see paragraph CARDINAL above ) . In the former , the court had to rule on the position of a transsexual who was married and the father of a child . While acknowledging that genetically he was still a man , ORG had on DATE ordered rectification of his birth certificate and change of forenames . On appeal by the procureur ’s office ORG quashed the judgment on the grounds that its findings of fact did not show that there was a change of sex caused by a factor extraneous to the will of the person concerned .

On DATE ( ORG . civ . I , no . CARDINAL , p. CARDINAL ) , DATE ( ORG ( FAC ) DATE , jurisprudence , p. CARDINAL ) and CARDINAL DATE ( ORG . civ . I , no . CARDINAL , p. CARDINAL ) the court dismissed appeals by transsexuals who had voluntarily undergone hormone treatment only , on the grounds that ORG had found that the said treatment was of voluntary nature and had been entitled to regard as insufficient the psychological and social factors relied on .

On DATE ORG dealt in the same way with CARDINAL appeals ( J.C.P. DATE , II , DATE , with report by PERSON and submissions of Mrs Advocate General Flipo ) . It stated in particular that :

" ... transsexualism , even where medically acknowledged , can not be regarded as a true change of sex , as the transsexual , although having lost certain characteristics of his original sex , has not thereby acquired those of the opposite sex ; ... "

In the fourth of these appeals ORG was criticised for " not having investigated further to see if , in default of rectification of sex , at the very least the substitution of forenames requested ought to have been allowed " . ORG response was that the applicant had " before ORG requested a change of forenames only as a consequence of the change of sex she was claiming " and that she had " not shown that she had a legitimate interest within the meaning of the third paragraph of LAW in her forenames being amended even if the change of sex were not allowed " . The ground of appeal was therefore rejected , as it had not been argued before the court below .

As a general rule , sex is not indicated on administrative documents issued to natural persons , such as traditional national identity cards , classic style passports , driving licences , voting cards , certificates of nationality , etc .

However , the new computerised identity cards do mention sex in order to enable an individual to be identified by machine and to take account of the existence of ambiguous forenames . This also applies to ORG " style passports which are gradually replacing " national " passports .

ORG ( NORP national de la statistique et des études économiques , INSEE ) allocates everyone a number . The first digit of the number indicates sex ( CARDINAL for male sex , CARDINAL for female sex ) . The number appears in the national identification register of natural persons ; the social security bodies use it with additional digits for each person insured .

The right to make use of this number is governed by PERSON no . CARDINAL - CARDINAL of DATE on data processing , files and civil liberties . Under section CARDINAL of this PERSON access to the register for the purpose of processing data involving names is subject to authorisation by a decree in the PERSON d’Etat issued after consultation with ORG on ORG nationale de l’informatique et des libertés , ORG ) . Decree no . CARDINAL - CARDINAL of CARDINAL DATE relating to the said register provides that " with the exception of the cases specifically provided for by law , the register may not be used for the purpose of tracing individuals " ( section CARDINAL ) .

In an opinion of DATE the ORG defined in broad terms the principles which it intended to follow in supervising the use of the register and the registration numbers in it . Since then it has recommended against use of the number or had its use withdrawn in numerous cases relating inter alia to taxation and public education . On the other hand , it approved its use for checking personal identities in connection with the computerisation of criminal records and the central data file of cheques of ORG . A decree of DATE likewise authorised social security institutions to make use of the registration number . The ORG has also , when various rules were being drawn up relating to employees’ pay , allowed the number to be used as a means of correspondence with social security bodies .

There is no provision of law which makes it compulsory for banking and postal institutions to include the prefix " Madame " , " Mademoiselle " or " Monsieur " on cheques , but in practice they are usually included . However , anyone may require that his surname and forenames only be used .

Invoices must include the surnames of the persons they concern but need not indicate their sex ( section CARDINAL of Order no . CARDINAL - CARDINAL of DATE ) .


The applicant company Voyager Ltd. ( hereinafter the applicant ) is a limited liability company incorporated under the laws of LOC . It is represented before the ORG by PERSON , a firm of solicitors in GPE .

The applicant is a subsidiary company of ORG ( “ PPI ” ) . Mr PERSON was the director of PPI from DATE until he was declared bankrupt in DATE . In DATE , the applicant owned CARDINAL of the CARDINAL shares in ORG , a company registered in GPE and incorporated in accordance with NORP law .

On DATE , a meeting of the applicant ’s ORG was held in GPE . ORG of the applicant provided that the quorum for a board of ORG meeting is CARDINAL . However , this meeting was only attended by PERSON , a director of the applicant , and PERSON Nevzat , a former director of the applicant , who had formally resigned from his post a day before the meeting . The other CARDINAL directors of the applicant were not informed about this meeting . At this meeting a decision was taken to appoint PERSON as director of Voyager . On DATE another ORG of ORG meeting was held in GPE , this time in the presence of PERSON and Mr PERSON . At this meeting , the transfer of CARDINAL shares held by the applicant in ORG to PERSON for a payment of ORG was ratified . Consequently , the applicant ’s CARDINAL shares in ORG were registered in the share register in the name of PERSON .

On DATE an Administrative Order was made by the NORP courts in respect of PPI whereby CARDINAL administrators were appointed to act as the company ’s officers .

On DATE Mr Nadir was made bankrupt in accordance with LANGUAGE law .

On DATE ORG of GPE declared that the meetings of the applicant ’s Board of Directors held respectively on DATE and CARDINAL DATE were inquorate and therefore null and void .

The applicant accused Mr Nadir of wrongful transfer of shares with the intention of transferring them outside ORG to ensure that they remained under his personal control after ORG became effective on DATE . Consequently several proceedings were brought before the NORP courts against ORG and PERSON .

On DATE the applicant initiated legal proceedings before ORG for a declaration that CARDINAL of its shares in ORG had been unlawfully transferred into the name of PERSON .

On DATE , after having examined all the evidence and the arguments submitted by the parties , the court found that there was no dispute between the parties concerning the nullity of the Board meetings held on DATE and DATE . Accordingly , the ORG held that the transfer of CARDINAL shares into the name of PERSON was null and therefore void . The court further ruled that the restoration of the shares in the applicant ’s name was dependent on the payment of ORG to PERSON , this sum being fixed in the light of TIME of the meeting of ORG held on DATE .

The applicant appealed . On DATE ORG upheld the decision of the first instance court as regards the nullity of the share transfer . However , it quashed the remainder of the judgment concerning the obligation to pay back GBP CARDINAL to PERSON to restore the shares , on the ground that PERSON had not made such a claim before the first instance court .

Subsequently , PERSON requested the rectification of the decision dated DATE . On DATE ORG found that ORG decision , dated DATE , was in fact in line with the established case - law of ORG , which provides that first instance courts are entitled , ex officio , to establish a lien even though the parties do not make such a claim . Thus , ORG concluded that the first instance court had acted in accordance with domestic law in establishing a lien over the shares in favour of the defendant . Accordingly , it ruled that the reasoning of ORG decision dated DATE was erroneous . However , the court further held that , as there was a dispute between the parties about the payment of ORG , the first instance court should have first examined in detail whether the defendant had really paid the sum in question before ruling on a lien in respect of the shares . In view of its findings , the court remitted the case to the first instance court for a detailed examination .

On DATE ORG decided to apply ORG decision of DATE . Recalling that under NORP law the conditions which apply to share transfer are regulated by the provisions governing the contract of sale in LAW , the court placed the burden of proof on the applicant to show that it had not received any consideration from the defendant in return for the shares . The court granted DATE to the applicant to submit any evidence in support of its allegations . However , the applicant stated before the court that it did not have any proof . Accordingly , on DATE ORG held that pursuant to LAW , the vendor and the purchaser should fulfil their contractual obligations at the same time unless there was an agreement to the contrary . The court observed that the defendant claimed to have paid the sum in question to the applicant in return for the shares and that , according to NORP domestic law , the burden of proof was on the applicant to show that its allegations were true . Accordingly , the court accepted that the defendant had paid GBP QUANTITY in return for the shares and was therefore entitled to a lien on the shares until this sum was paid back to him .

On DATE , finding the reasoning and the cogency of the first instance court in line with domestic law , ORG rejected the applicant ’s appeal .

On DATE ORG dismissed the applicant ’s request for rectification . It held that the transfer of limited liability company shares was governed by LAW and therefore the burden of proof was on the applicant to show that it had not received any consideration in return for the shares . As the applicant failed to do so , ORG held that the decisions of ORG and ORG were in line with domestic law . This decision was served on the applicant on DATE .

On DATE the applicant filed a further application with ORG for a declaration that CARDINAL of its shares in ORG had been unlawfully transferred into the name of PERSON .

On DATE ORG ruled that the transfer of CARDINAL shares to Mr Nadir by the applicant was null and void . The court further held that pursuant to LAW , the burden of proof was on the applicant to show that no consideration had been received from the defendant in return for the shares . As the applicant failed to adduce any evidence in support of its allegations , ORG granted the defendant a lien over the shares and made the restoration of shares dependent on the payment of ORG .

On DATE ORG , finding the cogency and reasoning of the first instance court in line with domestic law , upheld the judgment dated DATE .

On DATE the applicant requested the rectification of this decision . Subsequently , on DATE ORG dismissed the applicant ’s requests , stating that the transfer of shares was governed by LAW and the national courts had acted in accordance with this provision .

On DATE the Isle of Man High Court granted a declaration that the applicant had never received payment from PERSON for the transfer of CARDINAL shares in ORG .

In addition to the principal proceedings described in subsection ( a ) and ( b ) above , the applicant also initiated an action to establish and enforce its rights as a shareholder in ORG including its right to participate in NORP meetings . On DATE ORG dismissed the case . It recalled that pursuant to LAW , only the persons whose names are registered in the share register could be considered shareholders . The court observed that the applicant ’s name was not registered in the share register and that no proceedings had been brought to amend the share register . Accordingly , the court ruled that the applicant was not entitled to convene a ORG meeting . This decision was upheld by ORG on DATE . The applicant asked for rectification of this decision . During these proceedings , the applicant also requested disqualification of CARDINAL of the members of ORG . The applicant maintained that these CARDINAL judges had previously sat in the proceedings concerning the establishment of the applicant ’s ownership to the CARDINAL shares in ORG , and had acted in favour of PERSON . On DATE the ORG refused the applicant ’s request basing itself on DATE of ORG , which provides that motions for disqualification will not be heard where disqualification can result in the loss of quorum . On DATE , the court also refused the applicant ’s request for rectification .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

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

On DATE the applicant instituted civil proceedings before ORG ( PERSON ) seeking non - pecuniary damages for injuries he had suffered in a traffic accident .

On DATE ORG gave judgment awarding part of the damages sought .

NORP On appeal , on DATE ORG ( Županijski sud u GPE ) quashed the first - instance judgment and remitted the case .

In the resumed proceedings , the court held CARDINAL hearings and gave another judgment on DATE . It again awarded part of the damages sought . The judgment was served on the applicant on DATE .

Meanwhile , on DATE the applicant filed a constitutional complaint with ORG ( Ustavni sud PERSON ) , complaining about the length of the proceedings . On DATE ORG declared the applicant ’s complaint inadmissible , since ORG had given its judgment in the case .

On the respondent ’s appeal , on DATE ORG again quashed the first - instance judgment and remitted the case .

In the resumed proceedings , the court held QUANTITY hearings and concluded the main hearing on DATE . However , since the presiding judge had been dismissed from office , the main hearing was reopened and , subsequently , a judgment given on DATE .

NORP The proceedings are currently pending before ORG , following an appeal against the above judgment .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL , of CARDINAL DATE ; “ the LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the court with jurisdiction must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”