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

The applicants , Mr PERSON and PERSON PERSON , are a married couple . They are NORP nationals , who were born in DATE and DATE , respectively . They live in ORG Pomorskie , GPE .

The proceedings summarised below have already been examined by ORG under LAW from the angle of the “ reasonable time ” requirement . In its judgment of DATE ( PERSON v. GPE appl . no . ORG ) the ORG ( former Fourth Section ) unanimously held that there had been a violation of LAW .

On DATE ORG ( ORG PERSON ) , submitting a bill of exchange payable to bearer which required the first applicant to pay on demand CARDINAL,CARDINAL,CARDINAL,CARDINAL old LANGUAGE zlotys ( PLZ ) , asked ORG ( Sąd Rejonowy ) to issue an order for payment against him .

On DATE the court granted the plaintiff ’s claim and ruled that the first applicant was to pay the sum in question within DATE from the date of service of the order or , alternatively , within the same time - limit , to lodge an appeal against the said order . The first applicant appealed .

On DATE , acting under a provisional writ of execution of DATE and on a request by the creditor , i.e. ORG , ORG ( PERSON ) made an order attaching the ORG shares in ORG ( ORG ) and an unknown sum of cash deposited in ORG of ORG ( ORG Banku ORG ) , by way of security for the creditor ’s claim for payment of PLZ CARDINAL pending in ORG .

On DATE the first applicant lodged an unsuccessful complaint against the actions taken by the bailiff ( skarga na czynności komornika ) , relying on Article CARDINAL of the Code of Civil Procedure and arguing that the attached shares constituted the matrimonial property of the applicants , whereas the execution was against the applicant alone .

On DATE ORG was taken over by ORG ) . ORG replaced the former bank as a plaintiff in the civil proceedings and as a creditor in the enforcement proceedings .

On DATE the ORG quashed the order for payment and awarded the plaintiff bank CARDINAL new NORP zlotys ( ORG ) [ approx . ORG CARDINAL,CARDINAL ] together with interests and costs of the proceedings . The plaintiff bank and the first applicant appealed against that judgment .

On DATE the ORG secured the plaintiff ’s already - awarded claim by attaching the ORG shares in ORG ( ORG ) , an amount of ORG CARDINAL,CARDINAL.CARDINAL in cash deposited in ORG of ORG ( ORG Banku ORG ) and shares in the former ORG ( ORG PERSON ) ( taken over by ORG ) deposited in LOC by ORG ( PERSON ) .

On DATE the ORG ( Sąd Apelacyjny ) dismissed the appeal lodged by the first applicant against the decision of CARDINAL DATE .

On DATE the ORG upheld the decision of DATE .

On DATE the Bailiff of ORG discontinued the enforcement proceedings instituted under the writ of execution of DATE . Nevertheless , the attachment of the applicants’ property made on CARDINAL DATE remained in force .

On DATE ORG dismissed the cassation appeal lodged by the first applicant .

On DATE ORG rejected the first applicant ’s request to reopen the proceedings .

On DATE the applicants sued ORG in ORG ( PERSON ) . They sought damages of LAW claiming that the attachment of their property , in particular the shares , made at ORG request on the basis of the quashed order for payment of DATE , deprived them of any future profit - making trade in shares at ORG .

On DATE the applicants informed the court that , on DATE , as a result of the ORG merger , ORG ) had been taken over by ORG . From DATE , ORG Bank Gdański SA replaced the former bank as a defendant in the proceedings . On an unknown date the court ordered the applicants to pay a court fee of LAW for lodging the claim .

On DATE the applicants asked ORG to exempt them from payment of that fee . They also submitted a declaration of means , pursuant to LAW . Their application read , in so far as relevant :

“ ... The plaintiffs ask for an exemption from the court fee on the ground that they can not pay that sum as it will entail a substantial reduction in their standard of living .

The GPE matrimonial property was seized by the Bailiff acting upon the decision of ORG of DATE .

[ in connection with that argument , the applicants produced a copy of that decision ]

Their income from a farm , which is the second applicant ’s personal property , does not suffice for the payment of ORG CARDINAL,CARDINAL.CARDINAL the plaintiffs owe in tax arrears .

[ in connection with this argument , the applicants produced a copy of a certificate issued by ORG ( PERSON ) stating the anticipated income and tax arrears ]

The plaintiffs declare that they are not deriving the anticipated income indicated in the presented certificate due to a shortage of funds for making investment outlays in the production .

The plaintiffs further state that , given that their other assets were attached , their only present income is that from the farm . In the circumstances , the plaintiffs are unable to pay the court fees .

Finally , the plaintiffs inform [ the court ] that in other civil proceedings , ORG , in its decision of DATE , exempted the first applicant from paying the full amount of fees .

[ in connection with that argument , the plaintiffs produced a copy of that decision ] ”

The declaration of means made by the first applicant read , in so far as relevant :

“ The plaintiff asks for an exemption from court fees on the ground that he can not pay the fee in question [ as it will ] entail a substantial reduction in his standard of living .

He has the following items of property :

CARDINAL ) no personal property ; the average anticipated DATE income from the agricultural farm is estimated at PLN CARDINAL,CARDINAL.CARDINAL ;

CARDINAL ) CARDINAL shares in ORG , CARDINAL shares in ORG and ORG CARDINAL,CARDINAL.CARDINAL in cash ( matrimonial property attached by the Bailiff ) ;

CARDINAL ) CARDINAL shares in ORG ;

CARDINAL ) NORP audio and television equipment ; furniture . ”

NORP The declaration of means made by the second applicant read , in so far as relevant :

“ The plaintiff asks for an exemption from court fees on the ground that she can not pay the fee in question [ as it will ] entail a substantial reduction in her standard of living .

She has the following items of property :

CARDINAL ) NORP agricultural farm , the average anticipated DATE income from which is estimated at PLN CARDINAL,CARDINAL.CARDINAL ;

CARDINAL ) NORP car ;

CARDINAL ) CARDINAL shares in ORG ;

On DATE the court rejected the applicants’ application . The reasons for that decision read , in so far as relevant :

“ ... As it emerges from the plaintiffs’ declarations of means , the second applicant is a sole owner of the farm of CARDINAL ha ... The annual anticipated income from the farm amounts to ORG CARDINAL,CARDINAL.CARDINAL and constitutes the only source of the plaintiffs’ income . Moreover , the plaintiffs are the owners of ORG CARDINAL,CARDINAL.CARDINAL in cash , CARDINAL shares in ORG and CARDINAL shares in ORG . It is true that their cash and shares have been attached by the decision of ORG , but the GPE real financial situation does not seem to be as bad as they present it . Taking into consideration their assets and income derived from the farm , the plaintiffs are able to pay the full amount of the court fees without any reduction in their family ’s standard of living . When deciding to bring the present claim , the plaintiffs should have taken into account the fact that it would involve the necessity of paying court fees . They should therefore have secured financial means in anticipation of the litigation ... ”

On DATE the applicants lodged an interlocutory appeal ( zażalenie ) against that decision . They alleged a breach of Article CARDINAL § CARDINAL of the Code of Civil Procedure and Article CARDINAL § CARDINAL of the Convention . The applicants maintained that it had clearly emerged from the documents produced by them , in particular the ORG decision to secure the plaintiff ’s claim for payment by attaching the ORG shares and the declaration setting out the average anticipated DATE income from the farm , that they were unable to pay the court fee of ORG imposed on them .

On DATE ORG ( Sąd Apelacyjny ) dismissed the appeal . The relevant part of that decision read :

“ ... The plaintiffs’ assets are of a considerable value and they several times exceed the average level of means . This conclusion can not be changed by the fact that part of their property is attached in other civil proceedings . The plaintiffs still remain the owners of their property and , consequently , should be able to take necessary measures to gather sufficient means to pay the court fees . The plaintiffs are involved in a number of proceedings concerning pecuniary and non - pecuniary rights to their shares in commercial companies and , in the past , they made a large number of transactions on the stock exchange market . These facts indicate that the plaintiffs ... can not be regarded as indigent and that the court fees for lodging their claim should not be borne by the ORG .

Their declaration of means is dubious because it is not complete . The plaintiffs did not indicate precisely whether they had title to their apartment . They did not reveal the real income derived from the farm . Nor did they produce any information concerning the type of activities in which they are engaged on their farm . Moreover , [ the first applicant ] failed to indicate his place of employment ; his being his wife ’s dependant seems doubtful .... Lastly , the plaintiffs did not supply any information concerning their house or the farm equipment . That information would have enabled the court to ascertain their real standard of living .

Assessing all the circumstances , the following conclusion can be drawn : the plaintiffs , who have failed to show their current financial situation and to reveal their income , can not successfully challenge the first - instance decision which rejected their application for an exemption from court fees . They can not therefore complain that they are deprived of access to a court .

In addition , it should be pointed out that the amount of the court fee is based on the value of the claim in question and that [ that value ] depended on the plaintiffs .... ”

On DATE ORG ordered the applicants to pay ORG CARDINAL for lodging their claim . The applicants did not pay that sum . As a consequence , on an unknown date , ORG ordered that the applicants’ statement of claim be returned to them ( zarządził zwrot pozwu ) , which meant that their claim was of no legal effect and that the relevant proceedings were , for all legal and practical purposes , regarded as having never been brought before the court .

NORP Under NORP law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court . As the case proceeds , either party is obliged to pay further court fees at the time of lodging any appeal or constitutional complaint , unless granted an exemption from such fees .

Court fees are based on a percentage ( if a fee is due for lodging a claim or an appeal ) or a fraction ( if a fee is due for lodging an interlocutory appeal ) of the value of the claim in question .

The court fees incurred by either party can , depending on the outcome of the litigation , be finally repaid by the losing party ( who , in principle , is ordered to pay all the costs of litigation in a final judgment ) .

There are , however , categories of litigants who are exempted from court fees by virtue of statutory provisions . Some of those categories are listed in LAW . That provision , in the version applicable at the relevant time , exempted from court fees a party lodging a paternity action , a party seeking maintenance , a prosecutor , a court - appointed guardian and “ any party exempted from court fees by the competent court ” ( that is to say , a party who had been granted an exemption under LAW , cited below ) .

The other categories of these exempted litigants are listed in , inter alia , sections CARDINAL and CARDINAL of the Law of DATE on Court Fees in Civil Cases ( PERSON o kosztach sądowych w sprawach cywilnych ) .

Under section CARDINAL of the PERSON , ORG , municipalities and other public organs or institutions are not obliged to pay court fees , provided that the claim in question does not relate to their business activity . Section CARDINAL authorises the Minister of ORG to exempt non - governmental organisations from court fees .

In case of a successful outcome of litigation initiated by a person exempted from court fees , the fees which would normally have been collected from that person for lodging and proceeding with his claim are awarded to ORG against his opponent .

The Law of DATE on Court Fees in Civil Cases ( as amended ) sets out general principles with respect to the collection of fees by courts .

Section CARDINAL ) of the PERSON , in the version applicable at the material time , stipulated :

“ Unless otherwise provided by the law , a party who has submitted to a court a pleading which is subject to court fees , shall pay such fees . ”

The relevant part of section CARDINAL of the PERSON , in the version applicable at the material time , provided as follows :

“ CARDINAL . The court shall not take any action if the court fee due for lodging a given pleading is not paid . In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days , on pain of having the pleading returned . If the party does not comply with the time - limit , the pleading shall be returned to this party .

Any appeal , cassation appeal , interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [ above ] time - limit . ”

Section CARDINAL provided :

“ A pleading which has been returned to a party as a result of the fact that the court fee had not been paid , shall be of no legal effect . ”

The relevant part of paragraph CARDINAL of the Ordinance of the Minister of Justice of CARDINAL DATE on ORG Fees in Civil Cases ( ORG w sprawie określania wysokości wpisów w sprawach cywilnych ) ( as amended ) , in the version applicable at the material time , stated :

“ ( CARDINAL ) Where the value of the claim exceeds ORG CARDINAL the court fee shall amount to ORG CARDINAL for the first PLN PERCENT of the remaining value of the claim . In any case the court fee due shall not exceed the sum of ORG CARDINAL . ”

Exemption from payment of court fees was ( and still is ) a matter for the discretion of the court competent to deal with the case .

Article CARDINAL § CARDINAL of the Code of Civil Procedure , in the version applicable at the material time , stipulated :

“ An individual may ask the court competent to deal with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family ’s standard of living . Such a declaration shall contain details concerning his family , assets and income . It falls within the court ’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested . ”

The grounds for exempting legal persons , companies and business enterprises from court fees were , however , formulated in a different way from the grounds applying to natural persons . LAW CARDINAL of the Code of Civil Procedure in the version applicable at the relevant time read :

“ A legal person , or an entity not possessing legal personality , which has demonstrated that it does not have sufficient financial means for court fees , may be granted an exemption from those fees . ”

Article CARDINAL § CARDINAL of LAW provides :

“ In case of doubt ... as to the real financial situation of the party requesting exemption from court fees , the court may order a verification of his declaration . ”

The relevant part of LAW , in the version applicable at the material time , stated :

“ The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist . In either instance the party concerned shall pay all court and/or legal fees due in his case ... ”

Fees collected by courts do not constitute , nor are they equivalent to , security for costs . The court fees are transferred by financial departments of the courts to ORG and are deemed to be part of its income .

On DATE ORG ( PERSON ) gave a decision in which it referred for the first time to the “ right to a court ” guaranteed under LAW in the context of the requirement to pay court fees for lodging a claim or appeal ( decision no . III ORG CARDINAL/CARDINAL , published in ORG . U. DATE , no . CARDINAL ) .

That ruling concerned an extraordinary appeal lodged by the First President of ORG with ORG . The appeal was directed against a decision of ORG , refusing to exempt a claimant in administrative proceedings from payment of court fees . ORG held as follows :

“ CARDINAL . From the date on which GPE became a member of ORG , the case - law of ORG in GPE may and should be taken into account in interpreting NORP law .

NORP If the subject matter of a case is the party ’s application for substantial financial assistance from the public authorities , particular diligence should be displayed in considering [ that party ’s ] parallel application for an exemption from court fees . [ Any decision ] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court ( as secured by LAW ) ... ”

Although the relevant decision related to court fees for lodging an appeal with ORG by a person who had requested financial assistance from the public authorities , it has been applied mutatis mutandis to civil cases .


Violation of Art. 2 (substantive aspect);Violation of Art. 3 (substantive aspect);Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

On DATE ORG found PERSON guilty of violating LAW because the trunks of unlawfully cut down trees were found in his garden . He was sentenced to DATE imprisonment . On DATE the PERSON prosecutor issued a warrant for his arrest . What followed , particularly the events which took place on DATE , is disputed by the parties .

The facts as presented by the applicants are set out in Section B below ( see paragraph CARDINAL ) . The ORG 's submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the applicant and the Government is summarised in Section D ( see paragraphs DATE ) .

Early in the morning of DATE the commander of ORG , first lieutenant PERSON , noncommissioned officer PERSON , PERSON prosecutor PERSON PERSON and a number of gendarme soldiers arrived at the applicants ' house to arrest PERSON . PERSON was then handcuffed and taken out of the house and into the garden . Other occupants of the house , who were not allowed to leave the house , then heard CARDINAL rounds of gunfire . When they looked out of the window , they saw the first lieutenant hitting PERSON on the head with the butt of his rifle . When PERSON asked the first lieutenant to stop , CARDINAL soldiers began kicking him and hitting him with the butts of their rifles . The first lieutenant then shouted “ kill him ” . When CARDINAL of the soldiers asked them to stop because “ otherwise they would kill ” PERSON , the first lieutenant told the soldier to shut up , before shooting PERSON in the back of the neck at close range . The soldiers then threw PERSON body over the fence surrounding the garden and dragged it down the slope . After the incident the soldiers cleaned up the blood in the garden and took the spent bullet cases with them .

On DATE first lieutenant PERSON put together a plan to arrest PERSON . The following day the first lieutenant , accompanied by his soldiers and the PERSON prosecutor PERSON , left for the applicants ' village . QUANTITY from the village one of the tyres of the vehicle carrying the prosecutor blew out . As a result , the prosecutor and his driver remained there . The rest of the group continued on their way .

The soldiers took positions in the form of CARDINAL circles around PERSON ORG 's house before the first lieutenant knocked on the door . PERSON opened the door , ran back inside the house and jumped from the window into the garden at the rear of the house . There he was met by expert sergeant PERSON , who was CARDINAL of the soldiers forming the first circle around the house . When PERSON managed to evade him , the expert sergeant gave chase but was unable to catch up . The expert sergeant then fired into the air at least twice .

Yılmaz Özcan ran down the slope surrounding the garden for QUANTITY but was caught by private PERSON , who was in the second circle and who had by then heard the gunfire and cocked his rifle . A scuffle then ensued between private PERSON and PERSON and they rolled down the slope , which was very steep . At some point , private PERSON was lying on his back when PERSON made an attempt to escape . ORG then fired his rifle at least twice . CARDINAL of the bullets entered the back of PERSON neck and exited his face , killing him instantly . According to the Government , medical reports revealed that , during their scuffle with PERSON , expert sergeant PERSON suffered injuries which prevented him from working for DATE , and private PERSON suffered injuries which prevented him from working for DATE .

The following information appears from the documents submitted by the parties .

According to CARDINAL incident reports prepared by the gendarme soldiers , the soldiers arrived at the village at TIME on DATE . PERSON jumped out of the window of his house , evaded the expert sergeant PERSON who had been waiting in the garden , and started running downhill until he was stopped by private PERSON . A scuffle then ensued between PERSON and private PERSON . During the scuffle PERSON attempted to take private PERSON 's rifle but the rifle went off . As a result , PERSON was shot in the neck and died on the spot .

At TIME DATE Mr PERSON , who was also a prosecutor in the town of PERSON , arrived at the scene . The relatives of the deceased complained to PERSON that PERSON had been shot and killed in the vicinity of the house and his body had then been dragged down the hill by the soldiers . When the applicants made that complaint to the prosecutor , the soldiers who had taken part in the operation examined the area between the house and the location of the body , and told the prosecutor that there were no bloodstains or MONEY to indicate that the body had been dragged along the ground . While examining the area the soldiers found CARDINAL spent bullet cases discharged from a PERSON type automatic rifle . It later turned out that the bullets had been fired from the expert sergeant PERSON rifle .

The prosecutor , with the assistance of a doctor , examined the body and observed a large number of injuries on the body as well as a single bullet entry hole on the back of the neck . The body was then taken to PERSON hospital for a full post - mortem examination .

On DATE the prosecutor PERSON began questioning the soldiers who had taken part in the operation .

In his statement of DATE private PERSON confirmed the version of events set out in the above - mentioned on - site reports , and added that he did not know how the rifle had come to be fired . ORG was then released by a judge who considered that the “ nature of the offence ” and the fact that private PERSON was “ performing his military service ” did not require him to be remanded in custody .

Expert sergeant PERSON told the prosecutor DATE that when PERSON had evaded him and started running down the hill , he had fired CARDINAL rounds into the air . He had then given chase and heard CARDINAL or CARDINAL rounds of gunfire emanating from the bottom of the hill . When he arrived at the scene PERSON was already dead .

The non - commissioned officer PERSON told the prosecutor DATE that he had heard the expert sergeant fire CARDINAL or CARDINAL rounds into the air . He had then started running downhill after PERSON and had heard CARDINAL rounds of gunfire coming from the bottom of the hill . On his arrival at the scene PERSON had already been killed .

On DATE private PERSON and expert sergeant PERSON were examined at ORG , where the doctors observed a number of bruises on their bodies ( see paragraph CARDINAL in fine above ) .

The prosecutor questioned first lieutenant PERSON on DATE . The first lieutenant told the prosecutor that on their arrival at his house PERSON had been outside the house and had lied , saying he was not PERSON and that PERSON was his father . He had then gone inside to call his father . The first lieutenant had then heard noises at the back of the house , then the gunfire , but he had not witnessed the incident himself .

CARDINAL gendarme soldiers questioned by the prosecutor on DATE stated that on their arrival PERSON had been outside the house . CARDINAL of the soldiers said that he had heard a single gunshot from the bottom of the hill , while another one told the prosecutor that he had heard CARDINAL gunshots from the same direction . The remaining QUANTITY soldiers were not sure how many gunshots they had heard .

On DATE and DATE the prosecutor questioned CARDINAL of the applicants , who are daughters of the deceased PERSON . They stated that a number of soldiers had arrived at their house and had taken their father into the garden . They had then heard their father begging the soldiers to release him but that the soldiers had shot and killed him .

In the meantime , on DATE a post - mortem examination was carried out on PERSON body at the NORP hospital . It was established that the large number of injuries on Mr NORP 's body had been caused before his death .

On DATE the ORG prosecutor filed an indictment with ORG and charged private PERSON with manslaughter .

On DATE members of ORG and an expert visited the area where the incident had taken place . Private Şenel NORP , who claimed to have been standing next to private PERSON at the time of the killing of PERSON , told the expert that at the time of the shooting PERSON back had been turned to private PERSON , who was kneeling down at the time . ORG told the expert , however , that at the time of the shooting he had been lying on his back and trying to push PERSON away . ORG also added that during the scuffle he and PERSON had rolled TIME - five metres down the hill .

The expert noted in his report that the wife , mother and CARDINAL daughters of the deceased had been consistent when they showed him the location in their garden as the place where they claimed PERSON was shot and killed . Having regard to the conflicting information with which he had been provided by privates PERSON and PERSON , the expert recommended that ORG opinion should be sought , to establish whether the trajectory travelled by the bullet in PERSON head had been compatible with private PERSON version of events .

On DATE prosecutor ORG decided not to prosecute the gendarmerie personnel – with the exception of private PERSON DATE or the prosecutor PERSON because , “ other than the family 's abstract allegations ” , there was no evidence implicating them in the killing .

On DATE the ORG prosecutor filed another indictment with ORG and charged the remaining gendarmerie personnel , with the exception of first - lieutenant PERSON , with manslaughter .

It appears from a report drawn up on DATE pursuant to ORG instructions , that the applicants had lodged a number of official complaints with that Ministry . The author of the report , PERSON PERSON , who was an inspector with ORG , stated in this report that on DATE the PERSON prosecutor PERSON ( see paragraph CARDINAL above ) had drawn up a letter addressed to PERSON inviting him to give himself up to serve his prison sentence . Nevertheless , even before that letter was posted , the same prosecutor had issued an arrest warrant on DATE ( see paragraph CARDINAL above ) and had then himself taken part in the operation to apprehend PERSON . According to the information provided to the inspector by the applicants , the prosecutor PERSON himself had been present when PERSON was allegedly shot and killed in his garden by the first lieutenant . According to the inspector 's report , the prosecutor PERSON defended himself by telling the inspector that the reason why he wanted to take part in the operation was because he wanted to visit the village , as he had never had the opportunity previously . He did not however go to PERSON house , and remained with the vehicle .

The inspector concluded that prosecutor PERSON , contrary to his denials , had been present during the operation and had neglected his duties by failing to prevent the incident and he had thus contributed to the death of PERSON .

The inspector also noted that the other prosecutor in PERSON , Mr PERSON ( see paragraph CARDINAL above ) , had given a decision not to prosecute first lieutenant PERSON or prosecutor PERSON without first examining the evidence and eyewitness statements which , in the opinion of the inspector , were credible and deserved further investigation .

It also appears from this report that when members of ORG visited the village on DATE ( see paragraph CARDINAL above ) , they were assisted by the soldiers who had taken part in the operation during which PERSON was killed . When the deceased PERSON father , wife and CARDINAL of his children DATE that is the applicants PERSON , PERSON , PERSON , PERSON and PERSON – told the prosecutor PERSON that they did not want the soldiers who had been involved in the killing of PERSON to take part in the investigation , criminal proceedings were initiated against them for obstructing the officials in the execution of their duties . When DATE these applicants went to make statements in relation to the charges against them , a judge ordered their detention on remand in a prison . They were subsequently released on bail .

The inspector also heard a number of eyewitnesses to the events who had not previously been questioned by the prosecutors . These eyewitnesses confirmed that they had seen bloodstains in the garden where the family claimed PERSON was killed . They also stated that they had seen a trail of blood all the way to the bottom of the hill where the soldiers claimed PERSON had been killed by mistake . The inspector also noted that first lieutenant PERSON , non - commissioned officer PERSON and expert sergeant PERSON had given a number of contradictory statements about their movements during the operation .

The inspector recommended that prosecutors PERSON and ORG be removed from their duties in the town of PERSON . He also recommended that criminal prosecutions be brought against first lieutenant PERSON and prosecutor PERSON in relation to the killing of PERSON .

On DATE CARDINAL forensic experts working for ORG , acting on a request from ORG , concluded that the large number of injuries on PERSON head , chest , back , arms and legs could not have been caused by jumping from a window or by falling down while running . According to these experts , the injuries had been caused close to the time of death or shortly before it , by hard objects such as stones , sticks , rifle butts or boots worn by military personnel , whereas the lesions on the back of the body had been caused by dragging the body on the floor . It was also established that PERSON had been shot at a range of QUANTITY .

On DATE the ORG prosecutor filed another indictment with ORG and charged a number of soldiers who had taken part in the operation with making false statements and destroying crucial evidence . On DATE the ORG joined all CARDINAL cases ( see paragraphs CARDINAL above ) .

On DATE the GPE prosecutor filed an indictment with ORG and charged first lieutenant PERSON and PERSON prosecutor PERSON with manslaughter . On DATE ORG decided that , on account of prosecutor PERSON 's seniority , ORG had the power to try him . All cases mentioned above were then joined and sent to ORG acting as a first instance court . Subsequently , all officers were acquitted , apart from private PERSON ( see paragraph CARDINAL below ) .

On DATE the First Section of the Court of Cassation 's Criminal Division , sitting as a first - instance court ( “ the trial court ” ) , adopted its judgment in relation to all defendants . According to the judgment , a fourth indictment had apparently also been filed against the defendants , charging them with ill - treatment .

It appears from the judgment that , immediately after the killing , a number of villagers had seen bloodstains in the garden where the applicants claimed PERSON was shot and killed . They had informed the prosecutor about this but the prosecutor had made no mention of it in his report . The judgment discloses that the applicants had told the investigating authorities that after the shooting the soldiers had collected bloodstained soil from their garden and put it in a box . CARDINAL villager told the investigating authorities that he had found the box with the bloodstained soil in it . This box was subsequently examined for fingerprints but no matching prints were found .

NORP The trial court noted that the first time the applicants had given evidence to the investigating authorities was DATE after the killing ( see paragraph CARDINAL above ) . In the opinion of the trial court , the applicants ' failure to make statements in the immediate aftermath of the events showed that the applicants had not witnessed the killing , but had made the allegations in order to blame the State for it . Thus , not only the statements made by the applicants but also the statements made by their witnesses were not to be relied on in evidence . On the other hand , there were no legal reasons to disregard the conclusions of the investigations carried out by the soldiers who had themselves had taken part in the investigation . It was “ impossible ” that the soldiers would collude in order to protect the first lieutenant by blaming private PERSON . The fact that the search carried out by those soldiers revealed no traces of bloodstains in the garden was sufficient to conclude that PERSON had not been killed as alleged by the applicants . According to the trial court , a lack of spent bullet cases discharged from private PERSON rifle did not necessarily show that the real perpetrator was somebody else .

The trial court also considered that ORG above - mentioned conclusion ( see paragraph CARDINAL ) discredited the applicants ' allegation that PERSON had been killed in the garden by the first lieutenant and that his body had then been dragged by the soldiers . According to the “ experience of the judiciary ” , the injuries could have been caused by PERSON falling down the hill while he was trying to escape and by soldiers who were trying to apprehend him . The fact that PERSON had been involved in a scuffle with the soldiers who tried to apprehend him was borne out by medical reports showing that the CARDINAL soldiers had suffered injuries ( see paragraph QUANTITY above ) .

With the exception of private PERSON who had been charged with manslaughter , the trial court acquitted all the defendants – that is prosecutor PERSON , first lieutenant PERSON , non - commissioned officer PERSON , expert sergeant PERSON and the privates who took part in the operation . The trial court considered that private PERSON had not acted with an intention to kill ; he had pulled the trigger with the aim of catching PERSON and had considered that it would only injure him and not kill him . The trial court sentenced private PERSON to DATE imprisonment but reduced it to DATE and DATE because it considered that private PERSON had killed PERSON in the execution of his duties as a soldier and had later regretted his actions . The trial court also concluded that there was no evidence to show that PERSON had been ill - treated , and acquitted all the defendants charged with that offence .

On DATE ORG of ORG ( “ the appeal court ” ) rejected the appeal lodged by the applicants . Like the trial court , the appeal court also considered that ORG conclusions discredited the applicants ' allegations .

According to a document submitted to the ORG by the applicants , the appeal court 's decision was served on the first applicant PERSON Hacı PERSON on DATE “ in accordance with the letter of ORG President ” .

In DATE the applicants brought proceedings against ORG and claimed compensation for the killing of PERSON . On DATE the ORG observed that Mr ORG had been killed by a soldier and there had thus been a connection between the killing and the compensation claim . It awarded the applicants the sum of MONEY ( ORG ) in compensation for their pecuniary and non - pecuniary damage . This decision became final following the dismissal by ORG on DATE of the appeals lodged by the applicants as well as by ORG .


Remainder inadmissible;Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

The applicant is a GPE ’s Witness . From DATE he attended various GPE ’s Witnesses religious services and was baptised on DATE at DATE .

On DATE the applicant was registered as a person liable for military service with ORG .

In DATE , when the applicant turned DATE , he advised the military commissariat by letter that he refused to serve in the military because of his religious beliefs . At that time , he also left home being afraid that he would be taken to the military by force .

During DATE , according to the applicant , military personnel harassed his family in an attempt to force him to join the military .

On DATE the applicant sent identical letters to ORG , ORG of GPE , the Military Commissioner of GPE , the LOC District Prosecutor ’s Office and ORG , stating that it was contrary to his conscience and religious beliefs to serve in the military and that he was willing to perform alternative civilian service .

By a letter of DATE the applicant was informed in writing by the LOC District Prosecutor ’s Office that no criminal proceedings would be brought against him , if he reported for military service . The letter also urged the applicant to fulfil his civic and filial duty to his motherland and to go through the school of maturity in the form of military service .

DATE after receiving the above letter , the applicant was contacted by assistant prosecutor PERSON The applicant went to meet PERSON in DATE . According to the applicant , he was told that a criminal case would not be initiated and that he would be forced to perform military service . The applicant was accused of being a traitor to his country , his religious beliefs were ridiculed , and he was mocked and cursed because he would not serve in the military .

On DATE the applicant sent another letter to the authorities once again explaining the reasons for his refusal to serve in the army .

On DATE criminal proceedings were instituted under LAW of LAW on account of the applicant ’s draft evasion .

On DATE a formal charge of draft evasion was brought against the applicant and a search was declared for him .

On DATE the LOC ORG of GPE ordered the applicant ’s detention on remand and authorised the monitoring of his correspondence .

On DATE the applicant , having learnt that a criminal case had been initiated against him , went to the Malatia - Sebastia District Prosecutor ’s Office where he was immediately placed under arrest .

On DATE the applicant was released after signing an undertaking not to leave his place of residence .

On DATE the ORG of GPE found the applicant guilty as charged and sentenced him to DATE in prison .

On an unspecified date the applicant appealed .

On CARDINAL DATE ORG upheld the judgment of ORG .

On DATE the applicant appealed , arguing , inter alia , that his conviction violated his rights guaranteed by LAW .

On CARDINAL DATE ORG upheld the applicant ’s conviction .

On DATE the applicant was imprisoned .

On DATE the applicant was released on parole after having served DATE of his sentence .

For a summary of the relevant domestic provisions see the judgment in the case of PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , DATE ) .


Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant was issued an occupancy voucher ( yaşayış orderi ) to an apartment in a recently constructed residential building in GPE on the basis of ORG order of DATE .

At the same time , the applicant became aware that the apartment was occupied by PERSON and his family , who were internally displaced persons ( “ ORG ” ) from ORG , a region under occupation of NORP military forces following the NORP - GPE conflict over GPE - Karabakh .

According to the applicant , despite her numerous demands , PERSON refused to vacate the apartment noting that he was an ORG and he had no other place to reside in .

On an unspecified date in DATE , the applicant lodged a lawsuit with ORG asking the court to order the eviction of PERSON and his family from the apartment .

On DATE the ORG granted the applicant 's request . The court held that the applicant was the sole lawful tenant of the apartment on the basis of the occupancy voucher of DATE and , therefore , the apartment was unlawfully occupied by PERSON and his family . No appeals were filed against this judgment and , pursuant to the domestic law in force at the material time , it became enforceable within DATE after its delivery .

According to the applicant , PERSON and his family refused to comply with the judgment and the competent authorities did not take any measures to enforce it .

It appears from the case file that in DATE the applicant lodged compensation proceedings against ORG claiming EUR CARDINAL for unlawful use of her flat by an ORG family . On DATE ORG dismissed the applicant 's claim as unsubstantiated . On DATE ORG and on DATE ORG upheld ORG judgment of DATE .

At the time of the latest communication with the applicant , the judgment of DATE in the applicant 's favour remained unenforced .

The relevant domestic law is summarised in PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


CASE OF CETVERTAKAS AND OTHERS v. LITHUANIA

Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The first applicant , Mr PERSON , was born in DATE . The second applicant , PERSON , was born in DATE . The third applicant , Mr PERSON , was born in DATE . The applicants live in GPE . The second and the third applicants are parents of the first applicant .

In DATE the first applicant bought part of a building , including a cellar and warehouse , and a plot of land adjacent to the building . The seller of the property , ORG , had purchased it from the local authorities .

In DATE the first applicant ’s neighbour , PERSON , bought another flat in the same building . The privatisation agreement concluded with the local authorities stipulated that PERSON had also acquired part of the warehouse and the cellar .

On DATE PERSON brought an action requesting annulment of the decisions whereby part of the land adjacent to the building had been sold to the first applicant .

On an unspecified date the parties brought new interlocutory claims regarding the ownership of the warehouse .

On DATE the GPE Third ORG granted the action of PERSON in part and ordered the local authorities to readjust the borders of the plot of land at issue .

On DATE ORG quashed the decision and returned the case for examination de novo . It was established that the lower court had ruled on claims which had not been put forward by the parties and that the court had not assessed whether the rights of PERSON had been breached . Moreover , the local authority should have been invited to join the proceedings as a third party .

On DATE several additional claims were brought by ORG .. The applicant submitted a new counterclaim , requesting non - pecuniary damages .

On DATE the Vilnius City Third ORG dismissed the action of PERSON , accepting the first applicant ’s claims in part . In particular , the court declared null and void the agreement whereby PERSON had acquired CARDINAL of the warehouse .

On CARDINAL DATE ORG quashed the decision due to various procedural flaws , in particular the failure to resolve the question of the amount of the court fee to be paid . It was also noted that the lower court had failed to request certain evidence and therefore had not established certain facts relating to the property at issue . It also failed to establish whether ORG had acquired the land from the local authority lawfully . The case was remitted to the Vilnius City Third ORG for a fresh examination .

On an unspecified date in DATE , PERSON brought several new claims . He requested , inter alia , that the first applicant be obliged to grant him access to the cellar in the building . On DATE the first applicant submitted a counterclaim .

On DATE the Vilnius City Third ORG granted the action of PERSON It was established that ORG had unlawfully obtained a bigger plot of land than the one she was entitled to , thereby breaching the rights of ORG had had no right to sell that plot to the first applicant , the court annulled the contract between the first applicant and ORG and ordered full restitution . The first applicant was also instructed not to obstruct access by PERSON to the cellar . The first applicant ’s counterclaims regarding the warehouse were dismissed as unsubstantiated . The local authority and the first applicant appealed .

On DATE ORG upheld the decision .

On DATE the first applicant lodged a cassation appeal asking ORG to quash the lower court ’s decision and to adopt a new decision without remitting the case for further examination .

On DATE ORG dismissed the first applicant ’s cassation appeal and left the lower courts’ decisions unchanged .

LAW stipulates :

“ The person whose constitutional rights or freedoms are violated shall have the right to apply to court . ”

The Civil Code , in force until DATE , provided :

“ The person who causes damage to a natural person or to his property ... must compensate it fully , except in cases prescribed by laws ...

A person who causes damage is exempted from liability if he proves that the damage was not caused through his fault .

Damage caused by lawful acts must be compensated only in cases established by law ... ”

Article QUANTITY of LAW , in force since DATE , provides :

“ CARDINAL . The ORG shall be liable to full compensation for the damage caused by unlawful actions of a judge or the court trying a civil case , where the damage is caused through the fault of the judge himself or that of any other court official .

In addition to pecuniary damage , the aggrieved person shall be entitled to non - pecuniary damage . ”

The ruling of ORG of DATE stipulates :

“ ... by virtue of the LAW , a person has the right to claim compensation for damage caused by the unlawful actions of ORG institutions and agents , even if such compensation is not foreseen by law ; the courts adjudicating such cases ... have the power to award appropriate compensation by directly applying the principles of the LAW ... as well as the general principles of law , while being guided inter alia by the principle of reasonableness , etc ” .


The applicants , Mr Cecil Pace and Mr PERSON , are CARDINAL NORP nationals who were born respectively in DATE and DATE and live in GPE ( GPE ) . They are represented before the ORG by Mr PERSON and PERSON , CARDINAL lawyers practising in GPE .

s , may be summarised as follows .

The applicants are principal shareholders of ORG ( hereinafter , the “ ORG ” ) .

On DATE the licence of ORG was temporarily suspended . Pursuant to LAW of LAW DATE and after consultation with ORG , ORG appointed a controller and charged him to assume all the powers of ORG and of the shareholders of ORG . The controller was requested to take care of the assets and liabilities of ORG and of its associated companies with a view to safeguarding the rights and interests of the depositors , creditors and shareholders and to liquidate the assets for eventual distribution .

DATE the applicants filed several lawsuits before ORG ( FAC ) against the controller , alleging that he was responsible for mismanagement and that his behaviour had been abusive and illegal . They claimed that the assets of ORG were being dissipated or sold for a derisory price , that debts were not being collected and recovered , that inventories were not being made and that proper documentation of the transactions was not being kept .

Several sittings took place before ORG and evidence started to be collected .

While the proceedings were pending , Act ORG of DATE ( Controlled Companies Act – Chapter CARDINAL of the Laws of Malta ) was enacted . It created a body called “ ORG ” . All the lawsuits and claims made by the applicants and pending before ORG were transferred to this body , which had become competent to hear and determine them .

ORG was to be composed of CARDINAL members , a Chairman and CARDINAL experts in banking or financial services appointed by ORG . The duration of their office , which would have been established in the Minister ’s letter of appointment , could not exceed DATE . An Appeal on points of law before ORG was available against the decisions of ORG .

According to LAW ORG of DATE no action lay against the controller , ORG or the Government for anything which had been done in accordance with the provisions of the LAW from the date of the appointment of the controller .

Under LAW ORG of DATE the controller had the power of striking off the names of a bank and of its associated companies from the register of companies . He could also decide to deliver documents to the registrar . These documents were to be destroyed after DATE .

In DATE the applicants introduced a claim ( no . CARDINAL/CARDINAL ) before ORG ( FAC ) in its constitutional jurisdiction . They alleged that the changes introduced by LAW of DATE were specifically aimed at depriving them of the possibility of having a fair trail .

The applicants submitted that , in view of its nature and composition , ORG could not be regarded as an impartial and independent tribunal .

In a judgment delivered on an unspecified date , ORG dismissed the ORG claim . It found that there had been no violation of LAW , since this provision did not require a body such as ORG to have the same level of independence and impartiality as a “ tribunal ” .

ORG held that ORG was objectively independent as its decisions were not based on directives issued by any authority . Furthermore , it was free from subjection to any other party . The fact that the members of ORG were appointed for DATE with a possibility of reappointment at the expiry of their term of office did not mean that they would not enjoy sufficient guarantees against outside pressures .

The applicants appealed to ORG .

In a judgment of DATE , ORG rejected the ORG appeal and confirmed ORG judgment . It noted that LAW referred to a court or other authority instituted by law , while the Convention referred to an “ impartial tribunal ” . Thus , civil rights might be determined by both these institutions .

In ORG view , there were no doubts as to the personal impartiality of the members of the board . As to the ORG argument that a lack of objective impartiality could be inferred from the fact that the members of the board were nominated by ORG , who was the defendant in the lawsuits they had introduced , ORG observed that the law applied equally to everybody and that the authority who appointed the board was of little relevance . In any case , the manner of appointment of the Chairman and of the members of ORG did not raise any objectively justified doubts as to their impartiality and independence , as they had no relationship of employment or dependence with ORG . The board was allowed to make its decisions freely and independently of any pressure or influence . Its members could not be arbitrarily dismissed . ORG also held that Act XVII of DATE guaranteed a fair trial .

In the meantime , the applicants had introduced another claim ( no . GPE ) before ORG ( FAC ) in its constitutional jurisdiction . They submitted that since the decisions of ORG were final in so far as they determined points of fact , the previous existing benefit of double examination had been lost . Furthermore , in view of the retroactive immunity granted by LAW XVII of DATE to the controller , to ORG and to the Government , nobody could be held legally responsible for the dissipation of their assets and negligent and illegal behaviour in administrating their financial interests . Therefore , even if their lawsuits were well - founded , the applicants could not obtain a judgment against the defendants or enforce it . In addition , they submitted that LAW ORG of DATE also provided for the removal of a company ’s name from the register of companies , which entailed the archiving and destruction of the company ’s files . This could result in the obliteration of evidence which the applicants might need to use .

In a judgment of CARDINAL DATE , ORG declared that Act XVII of DATE had breached the applicants’ right to continue their pending cases within a reasonable time and to have an effective remedy before a national authority . Therefore , it held that the lawsuits instituted by the applicants before the entry into force of this LAW should be decided by ORG in accordance with the pre - existing rules , and not by ORG .

ORG held that it was not competent to decide upon the alleged legal immunity of the controller . It also rejected the ORG complaint regarding the destruction of the documents as ordinary remedies were available to avoid such actions being taken .

The Attorney General appealed to ORG . The applicants lodged a cross appeal .

In a judgment of CARDINAL DATE , ORG confirmed ORG decision in so far as it concerned the finding of a violation of the applicants’ right to a trial within a reasonable time .

It observed that in its previous judgment of DATE , it had held that ORG had the necessary requirements of independence and impartiality . However , this did not mean that a transfer of cases from ORG to the board would have been licit and legal , especially since it might have diminished the rights and remedies enjoyed by the parties .

In particular , under LAW of DATE the parties were not entitled to an appeal on points of fact ( as guaranteed by the previous rules ) , but could only challenge the points of law decided by ORG before ORG . Therefore , the parties had lost pendente lite the right to a full appeal . This constituted a violation of LAW

ORG furthermore held that it was legitimate to grant immunity to the controller and to ORG . However , LAW could not be interpreted as conferring a general immunity . As no one could be considered to be above the law , the controller could have been protected against judicial actions only in so far as he had acted in good faith . He would still be liable if it was proved that he had acted in bad faith .

As to the powers given to the controller by LAW ORG of DATE , ORG observed that under domestic law the applicants could have made use of other ordinary remedies in order to obtain the production of any relevant document . It had not been shown that the applicants had been illegally denied this right .

In a fax of DATE , the applicants informed the ORG that they had not introduced any lawsuit after DATE . The lawsuits filed against the controller of ORG and against ORG before DATE were suspended awaiting the outcome of the applicants’ constitutional claims . They were resumed after the delivery of ORG judgment of DATE and were , on DATE , still pending .

The composition and the method of appointment of ORG are described in LAW ORG of DATE , which reads as follows :

“ ( CARDINAL ) For the purpose of this LAW there shall be constituted a ORG to be styled ORG which shall consist of a Chairman and CARDINAL other members appointed by the Minister .

( CARDINAL ) The members of the ORG shall , before entering upon their office , take before the Attorney General the oath to examine and decide any matter referred to them with equity and impartiality .

( CARDINAL ) The Chairman shall be an advocate with a minimum of CARDINAL years’ legal practice .

( CARDINAL ) The CARDINAL other members mentioned in sub article ( CARDINAL ) shall be persons who in the opinion of the Minister , possess the necessary expertise and experience in banking or financial services .

( CARDINAL ) The members of the ORG shall be appointed for such period that the minister may establish in the letter of appointment , which period shall not exceed DATE , and may only be removed by the Minister on the advice of ORG on the grounds of proved inability to perform the functions of their office whether arising from infirmity of body or mind or any other cause , or proved misbehaviour . ”

According to LAW ,

“ The decisions of the ORG shall be final except with respect to points of law decided by ORG from which an appeal shall lie to ORG . ”

Under LAW of DATE , ORG is required to appoint a controller in order to manage the assets and interests of a company whose licence has been restricted or revoked .

The controller is granted an immunity under LAW , which reads as follows :

“ No action shall lie against the ORG , ORG or the Government for anything done under the authority of this LAW or of LAW and this article shall apply from the date of appointment of the PERSON even if that date happens to be before DATE of the coming into force of this LAW . ”

The controller ’s power to strike off names of companies from the register of companies is provided for by LAW , according to which :

“ ( CARDINAL ) The ORG shall also , in accordance with LAW or any other provision of any other law substituting the said Ordinance , deliver to the Registrar for registration by him a notice of such approval , and the Registrar shall thereupon strike the name of the company or partnership off the register .

( CARDINAL ) The ORG shall , together with the aforesaid notice , deliver the books and other documents of the company to the Registrar , who shall keep them for DATE from the date at which the name of the company or partnership was struck off the register . ”


Violation of Art. 14+P1-1;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant is the divorced mother of CARDINAL children , born in DATE and DATE . Her children live mostly with their father ( the “ parent with care ” ) spending DATE with her ( the “ non - resident ” parent ) . Since DATE , the applicant has lived with a woman in what was described during the domestic proceedings as a “ close , loving and monogamous relationship characterised by long - term sexual intimacy ” . She and her partner own the house they live in as joint tenants . They purchased the property with a joint mortgage , and have held a joint bank account since DATE .

The applicant is required to contribute to the cost of her children 's upbringing in accordance with the applicable regulations on child maintenance ( see paragraph CARDINAL below ) . On DATE , the Secretary of ORG decided that the applicant 's maintenance payment should be ORG DATE , with effect from DATE . The applicant disputed that decision on a number of grounds , including that it did not make full allowance for her housing costs . On DATE , the Secretary of ORG declined to revise his decision . On DATE , the maintenance assessment was reduced to GBP CARDINAL per week , due to changed circumstances unrelated to the applicant 's complaint of discrimination . Her complaint thus relates to the period that began on CARDINAL DATE and ended on DATE .

The applicant appealed against the initial maintenance assessment . ORG allowed the appeal on DATE . The ORG considered it appropriate to compare the applicant 's situation to that of an individual who was part of a heterosexual couple ( married or unmarried ) , and that there clearly was a difference in treatment in the determination of the child maintenance obligation . It held that the situation came within the ambit of LAW No . CARDINAL , which was not confined to situations in which property was transferred to the ORG . The direct involvement of ORG in the process and its powers of enforcement meant that the responsibility of the ORG was engaged . The ORG found that the Government had not advanced any specific explanation or justification for the difference in treatment , which it therefore held to be discriminatory . It further found that it was possible to provide a remedy to the applicant by re - interpreting the definition of an “ unmarried couple ” in the applicable regulations so that it included samesex couples .

NORP The Secretary of ORG appealed against this decision to the Child Support Commissioner , who rejected the appeal on DATE . The Commissioner held that “ a gay relationship can be a family for the purpose of [ A]rticle CARDINAL ” . He saw no reason , in the context of child support legislation , to distinguish between families according to the sexual orientation of the partners . The purpose of the regulations was to determine the financial obligation of the absent parent , a matter on which his or her sexual orientation should have no bearing . Accordingly , the applicant 's situation was within the ambit of the right to respect for family life . He rejected , however , the applicant 's argument that the situation also came within the ambit of LAW No . CARDINAL . Turning to LAW , the Commissioner found that , in the context of child support payments , the applicant 's situation was analogous to that of an absent parent living with a heterosexual partner , who , all other things being equal , would have been required to pay around ORG DATE instead of almost GBP DATE . He considered that the Government had not advanced any justification for treating the applicant differently and therefore ruled that the child support scheme violated the applicant 's Convention right under LAW read in conjunction with LAW Concerning the remedy , he disagreed with the approach of ORG . Instead , since the regulations defined the various terms used by the regulations “ unless the context otherwise requires ” , he considered that , with the entry into force of LAW on DATE , the “ context ” now included the absent parent 's Convention rights . Therefore , the definition of an unmarried couple ( “ a man and a woman who are not married to each other but are living together as husband and wife ” ) did not apply in this situation .

NORP The Secretary of ORG appealed against this decision to ORG . By a judgment given on DATE , that court upheld the Commissioner 's decision . Lord Justice PERSON considered that the applicant 's previous family life ( i.e. the relationship between herself , her former husband and her children ) was not within the ambit of LAW . As for her relationship with her partner , he read the decision of ORG in PERSON v. GPE DATE . ) , no . CARDINAL , ORG ORG as establishing that the question whether same - sex relationships fall within Article CARDINAL is a matter of domestic law . Citing a number of domestic precedents which treated same - sex couples as no different from heterosexual couples in certain contexts , he considered that the applicant 's relationship constituted family life for the purposes of the case . Any discrimination against the applicant on the grounds of her sexual orientation called for compelling and proportionate justification . He found that the child support scheme impinged in some significant degree on the family life of the applicant and her partner , bringing their situation within the ambit of Article CARDINAL . As the scheme discriminated against the applicant on grounds of her sexual orientation , Article CARDINAL was engaged . He rejected the argument that the scheme came within the ambit of the applicant 's private life , since the scheme did not set out to recognise the applicant 's sexual orientation . Regarding Article CARDINAL of Protocol No . CARDINAL , he considered it unnecessary to decide if it too was engaged , although he doubted that it was . He found that the Government had not provided any acceptable justification for the discrimination against the applicant . He rejected the arguments advanced on behalf of the Secretary of ORG about the difficulty of correcting a problem that was but CARDINAL instance of a distinction applied throughout the wider social security system , observing that there was no doctrine of justification by the logistics of reform . As for a remedy , he considered that the appropriate course was to disapply ( in effect delete ) the definition in the regulations of an unmarried couple so as to eliminate the requirement of heterosexuality .

Lord Justice PERSON held that the child support regulations did , in principle , come within the ambit of LAW , since they were based on the relationship between the absent parent and his / her children . However , the applicant 's complaint concerned a wholly different family unit , i.e. her relationship with her partner . He too rejected the argument that the situation came within the ambit of the applicant 's private life , finding that this had not been interfered with . Regarding LAW No . CARDINAL , he accepted that the situation came within the scope of that provision since a possession of the applicant 's ( money ) was being taken away from her under rules that left her worse off than a person in a position identical to hers in all respects save for their sexual orientation . As for the applicant 's argument that her relationship came within the concept of family life , he took the view that , ORG having considered this issue to be within GPE ' margin of appreciation , it was open to the domestic courts to decide the point for GPE . His conclusion was that , having regard to the relevant ORG case - law , same - sex relationships should be treated in the same way as heterosexual relationships for the purpose of LAW . He further concluded that the relevant provision of LAW had been enacted out of respect for family life – in this case the relationship between the absent parent and his / her new partner . Accordingly , the applicant 's situation came within the ambit of LAW . He concurred with Lord Justice PERSON that the Government had not provided an adequate justification , and agreed with the proposed remedy .

Lord Justice PERSON reviewed both domestic and Convention caselaw and concluded that the applicant could not rely on the words “ family life ” in DATE in order to say that the facts of her case fell within the ambit of that Article . Nor did the situation come within the ambit of the applicant 's right to respect for her private life . Though her relationship with her partner was an aspect of her private life , the applicant had not been penalised on account of it . Her real complaint was that she was unable to take advantage of a benefit that was available to a category of absent parents since she did not come within that category . As regards LAW No . CARDINAL , he found that this provision was not engaged . The child support scheme was concerned with the allocation of assets to discharge an existing obligation . To hold that any situation in which there was a net adverse financial impact on an individual constituted a prima facie deprivation of possessions would be an unacceptably broad interpretation . There would be almost no limit to the circumstances in which that provision would be sufficiently engaged for the purposes of LAW .

NORP The decision of ORG was appealed by the Secretary of ORG to ORG which , in a judgment of DATE , allowed the appeal , by a majority of CARDINAL to one .

Addressing the question whether the application of the relevant regulations to the applicant came within the ambit of LAW , Lord PERSON ( with whom Lord GPE agreed ) observed that :

“ [ CARDINAL GPE case - law does not , and could not , spell out any simple bright - line test for determining how close must be the link between the alleged discrimination and the rights granted by the substantive article . ”

He rejected the contention that since the concept of respect for private and family life was so wide and multifaceted , any alleged act of discrimination would be within the ambit of LAW . He considered that , in relation to LAW , the GPE case - law revealed a more nuanced approach , reflecting the unique feature of DATE the duty of the ORG to accord respect . Some measures were so intrusive that they plainly failed to respect an individual 's private life , whereas less serious interferences would not merely not breach LAW , they would not fall within its ambit at all . He further noted that the case - law concerning alleged discrimination in relation to the family life limb of LAW had concerned measures very closely connected to family life . He was prepared to assume that the applicant , her new partner and their children from their previous marriages should be regarded as a family for the purposes of LAW . He also accepted that the regulations , inasmuch as they sought to strike a fair balance between the demands arising out of the raising of children and the running of the new household , were intended in a general sort of way to be a positive measure promoting family life . However , the link between them and respect for the applicant 's family life was too tenuous to bring the situation within the ambit of the family life limb of LAW . The link to respect for the applicant 's private life was even more remote , in his view . As regards LAW No . CARDINAL , he considered that the obligation to pay maintenance was very different to expropriation and therefore did not come within the ambit of this provision .

Lord PERSON then considered whether the difference in treatment in same - sex couples in such circumstances was discriminatory . He held that ORG had acted with reasonable promptness and within its margin of appreciation in the complex and time - consuming process of drafting , adopting and giving effect to LAW . GPE may have only followed the lead given by other Member States of ORG , but it had not been so far behind as to go outside its margin of appreciation . While it could not be argued DATE that discrimination against homosexuals had ever been justifiable , he thought this a “ deeply unrealistic ” approach to the issue . For DATE , homosexual couples living together were regarded as quite different to married or unmarried heterosexual couples . Profound cultural changes took time .

Lord PERSON described the applicant 's complaint about discrimination as “ anachronistic ” :

“ By that I mean that she is applying the standards of DATE to criticise a regime which when it was established represented the accepted values of our society , which has now been brought to an end because it no longer does so but which could not , with the support of the public , have been brought to an end very much earlier . ... If such a regime were to be established DATE , PERSON could with good reason stigmatise the regime as unjustifiably discriminatory . But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which , given the size of the overall task and the need to recruit the support of the public , could scarcely have been reformed sooner . ”

Lord PERSON took the view that , while this was not its primary purpose , the statutory scheme did demonstrate the respect of GPE for the non - resident parent 's new family life by means of the statutory scheme . It could therefore be said that this feature of the scheme was one of the modalities of the exercise of the right to respect for family life . This would be sufficient to bring the situation within the ambit of LAW . He then considered the position of same - sex couples . In certain contexts , domestic case - law had established that a same - sex couple was as much capable of constituting a family as a heterosexual couple . In the context of LAW , however , the concept of “ family life ” could only have one proper interpretation for all of GPE . The GPE case - law did not yet recognise that the guarantee of respect for family life applied to same - sex relationships and there was no good reason for the courts of GPE to depart from that position . He rejected the argument that the situation came within the ambit of respect for private life . The statutory formulae set out to respect the new family life of an absent parent who had entered into a heterosexual relationship , and not the private life of each party to that relationship . The statutory scheme was therefore not one of the modalities of the exercise of the guarantee of the right to respect for private life . The nature of the discrimination alleged was not sufficient to engage that provision ; otherwise , every case of discrimination on the ground of sexual orientation would be within the ambit of LAW . He further observed that the applicant had not pointed to any significant impact on her lifestyle . As regards LAW , he found that the statutory scheme was far outside this provision 's scope . The duty to pay child maintenance was very distant from the type of interference the provision was aimed at . While it was accordingly not necessary to consider the issue of justification , he indicated his agreement with the position of ORG and PERSON .

For Lord PERSON there were CARDINAL critical issues : whether the applicant 's same - sex relationship was to be regarded as family life for the purpose of DATE ; and whether the child support regime impinged sufficiently on that family life for it to be said to fall within its ambit . Regarding the latter issue , his view was that the regime did , “ though only just ” . The MASC regulations sought to avoid any unduly adverse impact on the absent parent 's new relationship and to achieve a fair balance between it and the children 's needs .

As for the first issue , ORG had made it clear in DATE that same - sex relationships did not fall within the scope of the right to respect for family life . As the applicant 's appeal related to a period shortly after that decision ( CARDINAL DATE ) , her relationship with her partner could not be regarded as a type of family life within the meaning of LAW . He added that he had little doubt that ORG would see the position in DATE as having changed very considerably , and that if the issue were to arise before it again , the applicant 's relationship could very well be regarded as involving family life for the purpose of LAW . Great change had taken place across LOC in the intervening time , of which any court would take most careful account . There was no basis for criticising GPE for delay either in reviewing the relevant laws or in moving to amend them in light of such review . Although from a moral viewpoint discrimination against same - sex couples had never been justified , it was the legal position that was at issue . Until quite recently neither ORG nor the domestic courts would have viewed such relationships as involving family life . It followed that discrimination between these and heterosexual couples did not contravene LAW taken with LAW . In relation to the applicant 's private life , he observed that the regulations were not directed at her private life . Any link between them would be as tenuous in the extreme . LAW No . CARDINAL , he considered it artificial to view child support payments as a deprivation of the absent parent 's possessions . The mere fact that there was a net adverse financial impact for the applicant was insufficient . While the scheme was undoubtedly introduced in pursuit of a legitimate social policy , there was no element of expropriation about it . The complaint did not fall within the ambit of LAW , therefore LAW was not engaged .

Baroness PERSON , dissenting , considered that the appeal should be rejected . She found that the child support scheme , which was CARDINAL aspect of the ORG 's support for family life , clearly fell within the ambit of the applicant 's right to respect for her family life with her children . The scheme was the ORG 's way of enforcing a parent 's duty to support their children , which was an obligation in both private and public law . There were many ways that the operation of the scheme could impact upon that family life . It did not have to have so severe an impact as to breach LAW , but she considered it clear that the scheme fell within the reach of the applicant 's right to respect for family life with her children . She observed that if , for example , the scheme treated absent mothers differently to absent fathers , this would be sufficient to engage LAW . The lack of respect manifested by the scheme for the applicant 's relationship did not have to reach such a level of severity as to constitute a breach of LAW CARDINAL to come into play . Although the Convention case - law had not yet recognised the relationship between CARDINAL adult homosexuals as a form of family life within the meaning of Article CARDINAL , in this case the applicant and her partner enjoyed family life when their children were with them , and this did not cease when they were apart from them . She further considered that the situation also came within the ambit of the applicant 's right to respect for her private life . It was therefore unnecessary to inquire whether LAW No . CARDINAL was engaged .

The only justification offered for the difference in treatment was the historical discrimination between the CARDINAL types of relationship by social security and child maintenance rules . It was now recognised that there was no objective justification . While it had been taken for granted that the protection of the institution of marriage could justify less favourable treatment of the unmarried , it still had to be shown that in order to achieve that aim it was necessary to exclude same - sex couples . This had not been shown . With LAW , GPE had moved ahead of many other GPE , but this was not an objective justification for not doing so sooner . Racial and sex discrimination had always been wrong , long before this was recognised in law . In the area of gender , the historical and systematic character of discrimination against women could justify some continuing small adjustments in their favour in the benefits system . But this could not apply to sexual orientation – it would mean relying on historical disadvantage and exclusion to justify continued disadvantage and exclusion of the excluded group . It was to be welcomed that ORG had legislated in this area , but that did not make right what had been done before . She concluded that the applicant had suffered discrimination in the enjoyment of the LAW right to respect for private and family life , and approved the remedy suggested by ORG .

LAW CARDINAL ( “ the DATE LAW ) introduced a system intended to improve the assessment , collection and enforcement of payments for the maintenance of children whose parents are living apart . Until DATE , the system was administered by ORG ( “ the CSA ” ) , which was part of ORG . All the relevant duties , powers and discretions were thus conferred on the Secretary of ORG responsible for this government department . The calculation of a parent 's child maintenance obligation is determined by LAW of and Schedule CARDINAL to the CARDINAL LAW , and by ORG Regulations DATE SI CARDINAL ( the “ MASC regulations ” ) , which have been subject to frequent and extensive amendment . In the domestic proceedings , the courts considered the regulations as they stood before DATE .

In ORG , Lord PERSON explained and cited the relevant provisions as follows :

“ The DATE LAW contain a multiplicity of special definitions : ' assessable income ' , ' net income ' , ' exempt income ' , ' disposable income ' and ' protected income ' . The non - resident parent 's liability depends primarily on his or her assessable income , which is net income less exempt income ( para CARDINAL of Schedule CARDINAL to the CARDINAL Act ) . There are complex provisions for determining net income ( Regulation CARDINAL of and Schedules CARDINAL and CARDINAL to the Regulations ) and exempt income , which includes an amount in respect of housing costs ( Regulations CARDINAL , DATE , DATE , DATE and DATE of and Schedule PERCENT ) . The higher the exempt income the smaller the maintenance assessment will be in respect of any particular level of assessable income . There is also a further mechanism ( described by the Child Support Commissioner as a kind of long stop ) securing that the non - resident parent 's disposable income does not fall below the level of his or her protected income ( para CARDINAL of Schedule CARDINAL to LAW and CARDINAL of the Regulations ) .

I now come to some definitions in regulation CARDINAL ) of the ORG which are of central importance to the appeal ( all applicable unless the context otherwise requires ) :

' ' family ' means—

( a ) a married or unmarried couple ... and any child or children living with them for whom CARDINAL member of DATE to day care ...

' married couple ' means a man and a woman who are married to each other and are members of the same household .

' partner ' means—

( a ) in relation to a member of a married or unmarried couple who are living together , the other member of that couple . . .

' unmarried couple ' means a man and a woman who are not married to each other but are living together as husband and wife . '

These definitions are closely similar to , but not identical with , definitions of the same expressions in the Social Security Contributions and Benefits Act DATE , section CARDINAL(CARDINAL ) .

Paragraph CARDINAL of Schedule CARDINAL to the DATE LAW as follows :

' ( CARDINAL ) The amount which is to be taken for the purposes of this paragraph as an absent parent 's disposable income shall be calculated , or estimated , in accordance with regulations made by the Secretary of ORG .

( CARDINAL ) Regulations made under sub - paragraph ( CARDINAL ) may , in particular , provide that , in such circumstances and to such extent as may be prescribed—

( a ) income of any child who is living in the same household with the absent parent ;

and

( b ) where the absent parent is living together in the same household with another adult of the opposite sex ( regardless of whether or not they are FAC of that other adult ,

is to be treated as the absent parent 's income for the purposes of calculating his disposable income . '

LAW ( made , the Child Support Commissioner observed , under regulation CARDINAL(CARDINAL ) ) deals with protected income . Under LAW ) it is material whether or not the non - resident parent has a partner . Under regulation ORG ) housing costs come into the calculation of protected income . Under regulation CARDINAL ) it is material whether there is a child who is a member of the family of the non - resident parent .

Regulation CARDINAL is one of the regulations dealing with housing costs . Regulation CARDINAL(CARDINAL ) , so far as now relevant , provides as follows :

' Where a parent has eligible housing costs and another person who is not a member of his family is also liable to make payments in respect of the home , the amount of the parent 's housing costs shall be his share of those costs ... '

Schedule CARDINAL of the Regulations also relates to housing costs . Paragraph CARDINAL , so far as now relevant , provides as follows :

' ( CARDINAL ) Subject to the following provisions of this paragraph the housing costs referred to in this Schedule shall be included as housing costs only where—

( b ) the parent or , if he is one of a family , he or a member of his family , is responsible for those costs ... '

The Government in their observations have also referred to ORG the “ LAW ” ) , the relevant provision of which reads as follows :

Partner 's contribution to housing costs

A case shall constitute a case for the purposes of paragraph CARDINAL ) of Schedule CARDINAL to the Act where a partner of the non - applicant occupies the home with him and the Secretary of ORG considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non - applicant .

Schedule CARDINAL of LAW CARDINAL amended paragraph CARDINAL(CARDINAL)(b ) of Schedule CARDINAL of the CARDINAL Act as follows :

" ( b ) where the absent parent—

( i ) is living together in the same household with another adult of the opposite sex ( regardless of whether or not they are married ) ,

( ii ) is living together in the same household with another adult of the same sex who is his civil partner , or

( iii ) is living together in the same household with another adult of the same sex as if they were civil partners ,

income of that other adult , " .


Violation of Art. 6-1;Non-pecuniary damage - award

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE , Cherkasy region .

In DATE the applicant instituted proceedings in ORG against her former employer , ORG , seeking reinstatement as an employee and recovery of salary arrears . In the proceedings , the applicant was represented by a lawyer .

On DATE the court allowed the applicant 's claims in full .

The defendant party appealed against that judgment . The applicant submitted comments on the appeal .

At a preliminary hearing on DATE ORG issued a ruling scheduling a hearing on the merits of the appeal for CARDINAL DATE .

According to the ORG , a copy of the ruling of DATE was delivered to the applicant in person on DATE . The ORG submitted a copy of the acknowledgment of receipt completed and signed by a postman and a copy of a report from ORG , indicating that the applicant had received a copy of the ruling in person . In that report the post office mentioned that the register of delivered mail containing the applicant 's signature in that connection had been destroyed and that a copy of it was not available .

The applicant stated that neither she nor her lawyer had been informed of the hearing on appeal in advance . According to her , the documents submitted by the Government could not prove that she had received a copy of the ruling of DATE , as the acknowledgment of receipt did not bear the post mark of ORG No . CARDINAL of Cherkasy , which normally delivered mail to her place of residence .

From DATE the applicant underwent treatment at ORG .

On DATE ORG of Appeal heard the case in the absence of the applicant and her lawyer . It found that the applicant 's dismissal had been lawful , quashed the judgment of the first - instance court and rejected the applicant 's claims in full . According to the judgment of ORG , it could be appealed against in cassation to ORG within DATE .

According to the applicant , on DATE her lawyer learned that ORG had decided on the case on CARDINAL DATE . On DATE he lodged with ORG a request for a copy of the decision on appeal .

On CARDINAL DATE the lawyer received a copy of the decision of CARDINAL DATE .

At the applicant 's request , a copy of that decision was also provided to her by ORG on DATE .

On DATE the applicant lodged an appeal in cassation with ORG , challenging the factual findings and application of law by ORG . The applicant also requested ORG to renew the time - limit for lodging her appeal in cassation , stating that she had not been informed of the decision of CARDINAL DATE in due time .

On DATE a judge of ORG dismissed the applicant 's appeal in cassation as lodged out of time , stating , without any further explanation , that the ground on which the applicant had relied in requesting the renewal of the impugned time - limit was not sufficient to justify the requested course of action .

The relevant extracts from LAW ( Procedural terms ) of LAW of DATE , as worded at the material time , read as follows :

“ The terms during which procedural acts are to be performed shall be set by the law or by the court . ”

“ ... Complaints and documents submitted after the expiry of procedural terms shall be left without consideration if the court does not find reasons for extension or renewal of the term . ”

A term [ expressed ] in DATE shall expire on the corresponding date of DATE of the term ...

DATE of the term shall run until [ TIME ] ...

The term shall not be considered to be missed if the complaint or other documents or money required by the court have been submitted to the post office before its expiry . ”

“ At the request of a party ... the court may renew or extend the terms set by the court .

The court may renew the term set by the law if it has been missed for reasons found by the court to be justifiable .

The question concerning renewal of the expired term shall be decided by the court ... to which a document was due to be submitted . [ T]he parties ... shall be summoned to a hearing [ on that question ] though their failure to appear shall not prevent the court from considering [ it ] ...

A document concerning which the request for renewal of the term has been lodged must be submitted together with the request .

A court 's ... ruling refusing to renew the missed term may be appealed against ... ”

The relevant extracts from LAW ( Court judgments ) of LAW of DATE , as worded at the material time , read as follows :

“ The court shall send to the parties ... who were not actually present at the court hearing ... copies of the judgment or of the rulings by which the proceedings were suspended or discontinued or the claim was left without consideration , within DATE of their pronouncement . ”

The relevant extracts from LAW ( Appeal procedure ) of the LAW , as worded at the material time , read as follows :

“ Cases shall be considered by a court of appeal under the rules set for consideration of cases by a court of first instance , with the exceptions envisaged in this LAW .

The relevant extracts from LAW ( Cassation procedure ) of the LAW , as worded at the material time , read as follows :

“ The court of cassation instance is ORG of GPE . ”

“ The parties and other persons taking part in the case ... have the right to challenge in cassation judgments and rulings adopted by the first - instance court which have been considered by the court of appeal , as well as rulings and judgments of the court of appeal .

The grounds for [ an appeal ] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law . ”

“ An appeal in cassation ... shall be lodged within DATE of the day of the pronouncement of the ruling or judgment of the appeal court .

If the time - limit ... has been missed for reasons which the court recognises as justified , the court may , at the request of the person who lodged the appeal ... renew that time - limit for a period not exceeding one year from DATE on which the right to an appeal in cassation arose ... ”

The relevant extracts from LAW ( Procedural terms ) of Section I ( General provisions ) of LAW , as worded at the material time , read as follows :

“ CARDINAL . The terms during which procedural acts are to be performed shall be set by the law , and if they have not been set by the law [ the terms shall be ] set by the court . ”

“ CARDINAL . A procedural term shall start running on DATE after the calendar date of the event [ to which the term is linked ] ... ”

A term [ expressed ] in DATE shall expire on DATE of the term ...

DATE of the term shall run until [ midnight ] ...

The term shall not be considered to be missed if the claim , complaint , other documents or materials , or money have been submitted to the post office or transferred by other means of communication before its expiry . ”

“ CARDINAL . The court shall renew or extend the term ... at the request of a party ... if it has been missed for justifiable reasons .

NORP The question concerning renewal or extension of the expired term shall be decided by the court ... to which a document or evidence was due to be submitted . The persons taking part in the proceedings shall be informed of the place and time of consideration of that question . The presence of those persons is not compulsory .

A document or evidence concerning which the request [ for renewal or extension of the term ] has been lodged may be submitted together with the request ... ”

The relevant extracts from LAW ORG decisions ) of Section III ( Procedure for consideration of claims ) of the LAW , as worded at the material time , read as follows :

At a request of a person who took part in the case copies of a court decision shall be given to him within DATE of its pronouncement .

Copies of a court decision shall be sent , within DATE of its pronouncement , by registered post with acknowledgment of receipt to persons who took part in the case , but who were not present at the court hearing .

The relevant extracts from LAW ( Appeal procedure ) of Section V ( Procedure for review of judicial decisions ) of the LAW , as worded at the material time , read as follows :

“ CARDINAL . Decisions of the court of appeal shall be issued ... in accordance with the procedure envisaged by LAW .

Copies of decisions of the court of appeal shall be re - issued by the court of first instance keeping the case - file . ”

The relevant extracts from LAW procedure ) of Section V ( Procedure for review of judicial decisions ) of the LAW , as worded at the material time , read as follows :

“ CARDINAL . The court of cassation instance in civil cases is the court which is envisaged by LAW as the court of cassation in such cases . ”

“ CARDINAL . The parties and other persons taking part in the case ... have the right to challenge in cassation :

CARDINAL ) NORP judgments of the court of first instance , after they have been reviewed on appeal , judgments and rulings of the appeal court adopted [ in the course of ] the consideration [ of the case ] on appeal ...

CARDINAL ) NORP rulings of the court of first instance ... after they have been reviewed on appeal and rulings of the appeal court if they obstruct further proceedings in the case .

“ CARDINAL . An appeal in cassation ... may be lodged within DATE on which the judgment ( ruling ) of the appeal court becomes final .

NORP If the term ... has been missed for reasons which the court recognised to be justifiable , the court of cassation instance may , at the request of the person who lodged the appeal , renew that term , though for a period not exceeding one year from DATE on which the right to an appeal in cassation arose .

An appeal in cassation lodged out of time ... shall be returned by the court of cassation to the person who lodged it , if that person does not raise the question of renewal of that term and also if the [ request for ] renewal is refused .

NORP The question of renewal of the term ... shall be determined by a ruling of the court of cassation instance . ”

“ CARDINAL . In the course of consideration of the case in cassation , the court shall verify , within the limits of the cassation appeal , the accuracy of the application of norms of substantive or procedural law by the courts of first or appeal instances , [ but it ] shall have no power to establish or to hold proven facts which were not established in the judgment or dismissed by it , [ or ] to decide on the question of reliability ... of [ particular ] evidence or of the weight to be given to certain evidence ...

NORP The court of cassation instance shall [ examine the question of ] the lawfulness of judicial decisions only within the limits of the claims raised before the court of first instance .

NORP The court shall not be limited by the arguments of the cassation appeal if , in the course of the consideration of the case , [ it ] discerns the wrongful application of norms of substantive law or a violation of the norms of procedural law , constituting grounds for the compulsory quashing of the decision . ”

“ CARDINAL . ... [ T]he court of cassation instance has the power to :

( CARDINAL ) adopt a ruling dismissing the cassation appeal and leaving the [ contested ] decision in force ;

( CARDINAL ) adopt a ruling fully or partly quashing the decision and referring the case back to the court of first instance or appeal for fresh consideration ;

( CARDINAL ) adopt a ruling quashing the decision of the court of appeal and leaving in force the judicial decision which was erroneously quashed by the court of appeal ;

( CARDINAL ) adopt a ruling quashing the judicial decisions and terminating the proceedings in the case or leaving the claim without consideration ;

( CARDINAL ) quash the judicial decisions and adopt a new judgment or vary the judgment [ on the merits of the case ] , without referring it back for fresh consideration ... ”

The relevant extracts from ORG ( Final and transitional provisions ) of the LAW , as worded at the material time , read as follows :

“ CARDINAL . This Code shall enter into force as from DATE ...

[ The following normative acts ] shall be repealed with the entry into force of this Code :

The Code of Civil Procedure of ... DATE ...

Decisions adopted by courts of appeal before the entry into force of this Code may be appealed against in cassation if the term for [ lodging ] an appeal in cassation has not expired under LAW of DATE . ”