The applicants were born in DATE , DATE and DATE respectively . All CARDINAL live in GPE ; PERSON and Mr PERSON in GPE , and Mr Kołodziejczyk in PERSON .

GPE ( PERSON ) is a historic region that is now in south - western GPE . It was originally a NORP province that became a possession of the Bohemian Crown in DATE . It passed with that ORG to FAC in DATE , and was taken over by ORG in DATE LAW .

After the First World War , LAW provided for a plebiscite to be held to determine if LOC should remain NORP or pass over to GPE . The results of the plebiscite in DATE were favourable to GPE except in the easternmost part of LOC . After an armed uprising of the NORP in DATE , ORG agreed to a partition of the territory ; the larger part of the industrial area , including GPE , passed over to GPE .

In the aftermath of LAW of DATE , most of NORP Silesia was divided between GPE and GPE . After the NORP conquest of GPE in DATE , the whole of LOC was annexed by GPE .

After the Second World War , the pre-CARDINAL boundary between GPE and GPE was restored . The western boundary of GPE was moved to the PERSON and LOC rivers . In effect , all of former LOC east of ORG was incorporated into GPE , while only a small sector of LOC west of the GPE remained within the former NORP Land of Saxony .

According to some linguists , although the NORP language is relatively unaffected by regional variations , it is possible to identify CARDINAL regional varieties : Kashubian and Silesian . At the hearing , one of the applicants , PERSON , described ORG as a still uncodified language that was a mixture of NORP , NORP and NORP .

From DATE to DATE a census – the National Population and Housing Census – was carried out in GPE . Its purpose was to gather data relating to the distribution of the population , demographic and social factors , employment , standards of living and housing . It also addressed issues relating to citizenship and nationality . CARDINAL of the questions relating to nationality gave the following definition :

“ Nationality is a declared ( based on a subjective feeling ) individual feature of every human being , expressing his or her emotional , cultural or genealogical ( relating to parents ' origin ) link with a specific nation . ”

According to the census report prepared by ORG ( PERSON ) , CARDINAL people ( PERCENT of the population ) declared themselves NORP nationals . CARDINAL persons ( PERCENT of the population ) declared a non - NORP nationality , including QUANTITY persons who declared that they were “ NORP ” .

On an unspecified date the applicants , who describe themselves as “ NORP ” , decided together with CARDINAL other persons to form an association ( stowarzyszenie ) called “ ORG ” ( ORG ) . The founders subsequently adopted a memorandum of association . The applicants were elected to the provisional management committee ( PERSON ) and were authorised to proceed with the registration of the association .

On DATE the applicants , acting on behalf of the provisional management committee of the “ ORG ” , applied to ORG ( Sąd Wojewódzki ) for their association to be registered . They relied on , inter alia , section CARDINAL(CARDINAL ) of the PERSON on associations ( Prawo o stowarzyszeniach ) of DATE . They produced the memorandum of association along with the other documents required by that PERSON .

The relevant general provisions of the memorandum of association read as follows :

“ CARDINAL . The present association shall be called ORG ” ( hereafter referred to as “ the Union ” ) .

NORP The Union shall conduct its activity within the territory of GPE ; it may establish local branches .

( CARDINAL ) ORG may join other domestic or international organisations if the aims pursued by [ the latter ] correspond to the aims pursued by the Union . ”

The aims of the association and the means of achieving them were described as follows :

“ CARDINAL . The aims of the ORG are :

( CARDINAL ) to awaken and strengthen the national consciousness of NORP ;

( CARDINAL ) to restore NORP culture ;

( CARDINAL ) to promote knowledge of GPE ;

( CARDINAL ) to protect the ethnic rights of persons of NORP nationality ; [ and ]

( CARDINAL ) to provide social care for members of the ORG .

The Union shall accomplish its aims by the following means :

( CARDINAL ) NORP organising lectures , seminars , training courses and meetings , establishing libraries and clubs , and carrying out scientific research ;

( CARDINAL ) NORP organising cultural and educational activities for members of the Union and other persons ;

( CARDINAL ) carrying out promotional and publishing activities ;

( CARDINAL ) promoting the emblems and colours of GPE and GPE ;

( CARDINAL ) organising demonstrations or [ other ] protest actions ;

( CARDINAL ) organising sporting events ... and other forms of leisure activities ;

( CARDINAL ) setting up schools and other educational establishments ;

( CARDINAL) NORP cooperating with other organisations ;

( CARDINAL ) conducting business activities for the purpose of financing the aims of the Union – this may include establishing commercial entities and cooperating with other [ commercial ] entities ;

( CARDINAL ) establishing other entities or [ legal ] persons with a view to achieving the aims of the ORG ; and

( CARDINAL ) conducting any other activities . ”

Paragraphs CARDINAL and CARDINAL dealt with membership . They read as follows :

There shall be CARDINAL categories of members of the Union , namely ordinary members and supporting members .

Any person of NORP nationality may become an ordinary member of the ORG . ”

NORP The relevant part of paragraph CARDINAL of the memorandum of association read as follows :

“ A person shall cease to be a member of the ORG if :

( CARDINAL ) ( a ) on a reasoned motion by ORG , ORG decides to deprive him of his membership ;

( b ) the relevant motion of the ORG may be based on such reasons as the fact that the member in question has not fulfilled the requirements set out in the memorandum of association for becoming a member or has failed to perform the duties of members as specified in paragraph CARDINAL . ”

Paragraph CARDINAL provided :

“ The ORG is an organisation of the NORP national minority . ”

Subsequently the Katowice Regional Court , pursuant to section CARDINAL ) of the PERSON on associations ( see paragraph CARDINAL below ) , served a copy of the applicants ' application , together with copies of the relevant enclosures , on the Governor ( Wojewoda ) of GPE .

On DATE the Governor of GPE , acting through ORG ( PERSON ) , submitted his comments on the application to the court . Those comments contained lengthy arguments against allowing the association to be registered , the main thrust of which was as follows :

“ ( i ) It can not be said that there are ' NORP ' [ ORG ] , in the sense of representatives of a distinct ' Silesian nationality ' . ' Silesian ' is a word denoting a representative of a local ethnic group , not a nation . This is confirmed by paragraph CARDINAL ( CARDINAL ) of the memorandum of association , which aims merely to ' awaken and strengthen the national consciousness of NORP ' . ...

( ii ) NORP The social research relied on by the applicants to demonstrate the existence of a ' Silesian nationality ' does not accord with numerous other scientific publications . NORP sociology distinguishes between CARDINAL concepts of ' homeland ' , namely a ' local homeland ' and an ' ideological homeland ' . In NORP , this distinction is expressed by the terms PERSON ( local homeland ) and PERSON ( ideological homeland ) . The research relied on by the applicants merely refers to the self - identification of the inhabitants of GPE , indicating that their local self - identification takes precedence over their national self - identification . ...

( iii ) Paragraph CARDINAL of the memorandum of association states that any person of Silesian nationality may become an ordinary member of the association , but does not clearly specify the criteria for establishing whether or not a given person fulfils this requirement . This absence of unambiguous criteria is contrary to section CARDINAL(CARDINAL ) ( i ) and ( iv ) of the PERSON on associations . Moreover , it renders paragraph CARDINAL ( CARDINAL ) ( b ) of the memorandum unlawful , for that provision allows ORG to deprive a person of his membership in the event of failure to satisfy the conditions set out in the memorandum of association . ...

( iv ) Paragraph CARDINAL of the memorandum of association , which calls the ORG an ' organisation of the NORP national minority ' , is misleading and does not correspond to the facts . There is no basis for regarding the NORP as a national minority . Recognising them as such would be in breach of ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the [ former ] LAW , which guarantee NORP citizens equal rights . In particular , under the relevant provisions of the PERSON on elections to the PERSON [ ] of CARDINAL DATE [ ORG wyborcza do PERSON Polskiej – ' LAW ] , registration of the ORG would give it a privileged position in terms of distribution of seats in ORG . The ORG would obtain rights and privileges guaranteed to national minorities in respect of education in their native language and access to the media . Registration of the association would be to the detriment of other ethnic groups in GPE , such as PERSON [ PERSON ] , NORP [ GPE ] and GPE [ NORP ] ; this would amount to a return to the tribalism [ podziały plemienne ] which existed prior to the formation of ORG . ...

( v ) We therefore propose that the memorandum of association should be amended so as to reflect the above observations . In particular , the misleading name of the association should be changed , the criteria for membership should be set out in an unambiguous manner and paragraph CARDINAL should be deleted . In our opinion , these are the conditions for registration of the association . ”

On DATE the applicants filed a pleading in reply to those arguments . They asserted that the fact that the majority of NORP failed to recognise the existence of a NORP nation did not mean that there was no such nation . They cited various scientific publications and went on to explain that the fact that the NORP formed a distinct group had already been acknowledged at DATE ; moreover , the NORP had always sought to preserve their identity and had always formed a distinct group , regardless of whether ORG had belonged to GPE or to GPE . Consequently , any comparison between them and the PERSON or ORG was totally unjustified , because the latter groups neither regarded themselves as national minorities , nor had they ever been perceived as such in the past . Finally , the applicants cited certain letters of ORG that had been published by the press and which explained that ORG PERSON had explicitly stated that a “ declaration that a person belongs to a minority shall not be questioned or verified by the public authorities ” .

On DATE the Governor of GPE filed a pleading with the court . He maintained his previous position . On DATE he produced CARDINAL letters from ORG ( dated DATE and DATE respectively , and addressed to ORG of GPE ) . The relevant parts of the letter of CARDINAL DATE read :

“ We share your doubts as to whether certain inhabitants of GPE should be deemed to be a national minority . We therefore suggest that you submit your observations to the court , indicating those doubts , and that you ask the court to grant you leave to join the proceedings as a party .

We suggest that you rely on the fact that the [ ORG Framework Convention for ORG [ ( ' LAW ) ] has not been ratified by GPE , so that its provisions [ do not apply in the domestic legal system ] . ...

In our view , neither historical nor ethnographical circumstances justify the opinion that the inhabitants of LOC can be recognised as a national minority . ”

The relevant parts of the letter of DATE read as follows :

“ ... The arguments advanced by the provisional management committee of the association [ in their pleading of DATE ] do not contain any new elements ; [ in particular ] ... the [ LAW ] does not constitute the law applicable in GPE .

Likewise , the letters of ORG [ on the interpretation of ORG PERSON ] do not change the situation .

The sense of belonging to a nation falls within the realm of personal liberties ; it does not in itself entail any legal consequences . [ By contrast , ] the formation of an organisation of a national minority is a legal fact which entails legal consequences such as , for instance , those referred to in the DATE LAW .

In the circumstances , the registration of the association called ' ORG could be allowed provided that the existence of such a nation had been established . ”

On DATE the applicants submitted a further pleading to the court . They criticised the arguments of ORG , pointing out that the latter had failed to indicate any legal basis for rejecting their application . In particular , the authorities had not shown that any provision of the memorandum of association was contrary to the law , whereas , under section CARDINAL ) of the PERSON on associations , “ the [ exercise of the ] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others ” . Lastly , the applicants stated that they would not amend the memorandum of association in the manner proposed by the authorities , in particular in respect of the name of the association and the content of paragraph CARDINAL . They agreed , however , to amend paragraph CARDINAL of the memorandum and rephrased it as follows :

“ Everyone who is a NORP citizen and who has submitted a written declaration stating that he is of NORP nationality may become an ordinary member [ of the ORG ] . ”

On DATE ORG held an “ explanatory hearing ” ( posiedzenie wyjaśniające ) aimed at obtaining comments and clarifications from the parties and settling the matters in dispute . The relevant parts of TIME of that hearing read as follows :

“ The representatives of the [ Governor ] declared that the deletion of paragraph CARDINAL from the memorandum of association would not be sufficient , and that they also required a change in the name of the association .

They referred to the arguments set out in the pleadings filed in the case .

The representatives of the applicants declared that paragraph CARDINAL was modelled on a similar provision to be found in the statutes of ORG of the province of GPE . ...

The President urged the representatives of the [ parties ] to make certain concessions in their positions .

He proposed to the provisional management committee that , for example , they delete paragraph CARDINAL of the memorandum . However , the representatives of the committee absolutely refused to do away with this provision .

The representatives of the [ Governor ] also adopted a harder position , in that they demanded not only the deletion of paragraph CARDINAL , but also a change of the name of the association .

The CARDINAL sides engaged in a polemic as to whether or not NORP should be recognised as a nation or nationality . ...

The representatives of the [ Governor ] argued with the applicants , claiming there were no grounds for ascribing Silesian nationality to people .

[ The hearing was adjourned and subsequently resumed ]

At this point the representative of the [ Governor ] declared that , if the applicants were to delete paragraph CARDINAL from the memorandum , the [ Governor ] would not object to registration of the association .

PERSON reacted vehemently to this proposal , but the President told him to think it over .

In connection with the above , the [ applicants ] asked to be given a time - limit within which they could react in writing to this suggestion and consider the [ Governor 's ] proposal .

The ORG decided to allow [ the applicants ] DATE in which to react to the proposal of the [ Governor ] ... ”

On DATE the applicants lodged a pleading with the court , maintaining that in the course of the above - mentioned hearing the authorities had “ de facto acknowledged that a Silesian nation exists ” , in particular by accepting the name of the association and certain provisions of the memorandum ( namely paragraph CARDINAL ( CARDINAL ) and ( CARDINAL ) and paragraph CARDINAL ) . They stressed , however , that the authorities ' insistence on the removal of paragraph CARDINAL was “ unjustified and illogical ” and , consequently , refused to alter or delete that provision .

Later , on DATE , the Governor of GPE submitted his final pleading to the court , opposing the registration of the association .

On DATE ORG , sitting with a single judge and in camera , granted the applicants ' application and registered their association under the name “ ORG ” . The relevant reasons for that decision read as follows :

“ ... There was a dispute between [ the parties ] over the concepts ' nation ' and ' national minority ' . Finally [ the authorities concerned ] pleaded that the application for registration of the association should be rejected .

ORG has found that the application is well - founded [ and as such should be granted ] .

In the preamble to the PERSON on associations , the legislature guarantees [ everyone ] a cardinal right – the right to freedom of association – which enables citizens , regardless of their convictions , to participate actively in public life and express different opinions , and to pursue individual interests .

Freedom of association is CARDINAL of the natural rights of a human being . [ For this reason , ] section CARDINAL ) of the PERSON on associations does not establish the right to freedom of association but merely sets out the manner and limits of its exercise , thus reflecting GPE 's international obligations .

Under LAW ) of the PERSON on associations , the right to form an association may be subject only to such limitations as are prescribed by law either in the interests of national security or public safety , or in the interests of public order , or for the protection of health and morals , or for the protection of the rights and freedoms of others . No other restrictions may be placed on the exercise of the right to associate with others .

As recently as DATE , in their pleading , the authorities advanced the argument that the registration of the present association would infringe the rights and freedoms of others because it would result in an unequal treatment of other local communities and would diminish their rights .

This argument is unconvincing , since it does not emerge from the content of the memorandum of association that the future activities of the association are aimed at [ diminishing ] the rights and freedoms of others .

Under paragraph CARDINAL of the memorandum of association , the aims of the association are [ , for example , ] to awaken and strengthen the national consciousness of NORP , to restore NORP culture , to promote knowledge of GPE and to provide social care for members of the association . None whatsoever of these aims is directed against the rights and freedoms of others . The means to be used for accomplishing these aims are not directed against the rights and freedoms of others either . Those means include organising lectures and seminars , carrying out scientific research , establishing libraries , organising cultural and educational activities for members and other persons , carrying out promotional and publishing activities , promoting the emblems and colours of GPE and GPE , organising demonstrations and protest actions , organising sporting events , setting up schools and other educational establishments , conducting business activities and cooperating with other organisations .

In sum , the argument that the association would infringe the rights and freedoms of others must definitely be rejected . Moreover , it should be noted that this argument refers to [ a mere possibility ] because only practical action taken by the association could possibly demonstrate whether , and if so to what extent , the [ future ] activities of the association would require taking measures aimed at protecting the rights of others .

As regards the terms ' NORP nationality ' or ' NORP national minority ' , the problems involved in the determination of their proper meaning can not be examined by this ORG in detail .

ORG must , pursuant to section CARDINAL ) of the PERSON on associations , rule on the present application within a period not exceeding DATE from the date on which it was lodged . It is therefore not possible [ in the course of the present proceedings ] to determine such complicated issues ( which involve problems falling within the sphere of international relations ) .

It is , however , possible to assume , for the purposes of making a ruling in these proceedings , that the nationality of an individual is a matter of personal choice ; moreover , it is a matter of common knowledge that the original inhabitants of LOC constitute a minority in GPE DATE at least for anyone who has ever spent some time in this region and has been willing to perceive this fact . After all , the authorities , although they ' rend their garments ' [ sic ] complaining that the applicants dare establish an association , do not contest the fact that [ the NORP ] are an ethnic minority .

In view of the foregoing , this ORG , finding that the provisional management committee has complied with the requirements of sections CARDINAL ) , CARDINAL and CARDINAL read in conjunction with section CARDINAL ) of the PERSON on associations and LAW , holds as in the operative part of the decision . ”

On DATE the Governor of GPE lodged an appeal with ORG ( Sąd Apelacyjny ) , asking that the first - instance decision be quashed , that the case be remitted to the court of first instance , and that expert evidence be obtained in order to determine the meaning of the terms “ nation ” and “ national minority ” . In his appeal , he alleged that the court of first instance had violated sections CARDINAL ) and CARDINAL of the PERSON on associations and unspecified provisions of LAW . The relevant grounds of the appeal read as follows :

“ [ The court of first instance ] formally recognised and legally sanctioned the existence of a distinct NORP nation constituting a ' NORP national minority ' .

In our opinion , such an important and unprecedented ruling , which is of international significance , could not and should not be given without defining the concepts of ' nation ' and ' national minority ' . ORG , leaving this issue aside – merely because of certain statutory time - limits – simplified the proceedings in an unacceptable manner . This led , in itself , to a failure on the part of the court to establish all the circumstances relevant to the outcome of the case and , furthermore , provided a sufficient basis for this appeal .

The appellant admits that NORP law does not define the terms ' nation ' and ' national minority ' . This , however , does not justify the conclusion of ORG that ' the nationality of an individual is a matter of personal choice ' .

The appellant does not contest the right of a person to decide freely to belong to a national minority ; however , a precondition for making such a choice is the existence of a ' nation ' with which that person identifies himself .

The decision appealed against proclaims the opinion that the subjective feelings of the person concerned suffice for the purposes of creating a ' nation ' or a ' nationality ' . Having regard to the potential social repercussions of such an approach , it is not possible to agree with it .

In these circumstances , prior to making any decision on the registration of the ' Union of People of Silesian Nationality ' , it is necessary to determine whether a ' Silesian nation ' exists – a distinct , non - NORP nation – and whether it is admissible in law to create a ' NORP national minority ' .

In the appellant 's opinion , there are no objective arguments in favour of the finding that a distinct NORP nation exists . In case of doubt , ... this question should be resolved by obtaining evidence from experts .

In the contested decision , the lower court focused in principle on determining whether the aims of the association and the means of accomplishing those aims were lawful . ... The appellant does not contest the majority of these aims ; it must be said that such activities as restoring NORP culture , promoting knowledge of GPE or providing social care for members of the association are worthy of respect and support . However , these aims can be fully accomplished without the contested provision of the memorandum of association , namely paragraph CARDINAL ... In addition , the applicants were not prevented from incorporating the above - mentioned aims into the memorandum of an existing association called ' Movement for the Autonomy of Silesia ' [ PERSON ] , the more so as the applicants belong to influential circles of the latter organisation .

The fact that the applicants have failed to do so but [ instead ] are creating a new association , and are describing themselves as a ' NORP national minority ' , clearly demonstrates what their real objective is . In fact , their objective is to circumvent the provisions of LAW , under which parties or other organisations standing in elections must reach a threshold of PERCENT or PERCENT of votes in order to obtain seats in ORG . ...

Legal acts – including the act of adopting a memorandum of association – are null and void under LAW if they aim at evading or circumventing the law . According to legal theory , defects in legal acts , as defined in LAW , may constitute a basis for refusing to register an association .

Sanctioning the rights of the ' NORP national minority ' amounts to discrimination against other regional and ethnic groups or societies . This will be the case at least as regards electoral law and will be contrary to LAW . ... ”

ORG heard the appeal on DATE . The prosecutor at ORG ( Prokurator Apelacyjny ) appeared at the hearing and asked the court to grant him leave to join the proceedings as a party intervening on behalf of the Governor of GPE . Leave was granted . The court next heard addresses by the appellant , the prosecutor ( who requested the court to set aside the first - instance decision and reject the applicants ' application ) and the representative of the applicants . On DATE the court set aside the first - instance decision and rejected the applicants ' application for their association to be registered . The reasons for that decision included the following :

“ ... The lower court , by registering the association under the name ' ORG , approved paragraph CARDINAL of the memorandum of association , which states that the ORG is an organisation of the NORP national minority . We therefore agree with the appellant that the ORG , on the basis of the above - mentioned paragraph , would have the right to benefit from the statutory privileges laid down in section CARDINAL of the DATE LAW . ...

Furthermore , recognising the NORP as a national minority may also result in further claims on their part [ for privileges ] granted to national minorities by other statutes . ...

Contrary to the opinion expressed by the lower court , it is possible to determine whether or not the NORP constitute a national minority in GPE ; it is not necessary to obtain expert evidence in that connection .

Under LAW , facts that are common knowledge , that is , those which every sensible and experienced citizen should know , do not need to be proved . Common knowledge includes historical , economic , political and social phenomena and events .

It is therefore clear that at present no legal definition of ' nation ' or ' national minority ' is commonly accepted in international relations . ...

On the other hand , an ' ethnic group ' is understood as a group which has a distinct language , a specific culture and a sense of social ties , is aware of the fact that it differs from other groups , and has its own name .

NORP ethnographic science of DATE describes ' NORP ' as an autochthonous population of NORP origin residing in GPE – a geographical and historical region . At present , as a result of political and social changes , the term ' NORP ' refers equally to immigrants who have been living in this territory for several generations and who identify themselves with their new region of residence . It also refers to the NORP - speaking population , linked with GPE by [ such factors as ] birth , residence and tradition ( see the encyclopaedia published by ORG in DATE ) . ...

The applicants derive the rights they claim from the principles set out in the [ LAW ] , stating that every person belonging to a national minority has the right freely to choose to belong or not to belong to such a minority . ... In relying on NORP standards , they fail , however , to remember that a national minority with which a given person identifies himself must exist . There must be a society , established on the basis of objective criteria , with which this person wishes to identify . No one can determine his national identity independently of a fundamental element , which is the existence of a specific nation .

It emerges from the above - mentioned definition of a ' nation ' that a nation is formed in a historical process which may last for DATE and that the crucial element which forms a nation is its self - identification , that is to say its national awareness established on the basis of the existing culture by a society residing on a specific territory .

Certainly , the NORP belong to a regional group with a very deep sense of identity , including their cultural identity ; no one can deny that they are distinct . This does not , however , suffice for them to be considered a distinct nation . They have never commonly been perceived as a distinct nation and they have never tried to determine their identity in terms of [ the criteria for a ' nation ' ] . On the contrary , the history of GPE unequivocally demonstrates that the autochthonous inhabitants [ of this region ] have preserved their distinct culture and language ( the latter having NORP roots from an ethnic point of view ) , even though their territories were not within the borders of the NORP State and even though they were under strong NORP influence . They are therefore NORP DATE in the sense of [ inhabitants of the ] region , not in the sense of [ their ] nationality . Thus , GPE , in its ethnic roots [ sic ] , remained NORP ; that was , without a doubt , demonstrated by CARDINAL uprisings . The role played by the NORP in building and preserving the NORP character of GPE , even though they remained isolated from their homeland , is unquestionable .

However , a given nation exists where a group of individuals , considering itself a ' nation ' , is in addition accepted and perceived as such by others . In the common opinion of NORP citizens , both the NORP and other regional groups or communities [ for example , the ORG or the NORP ] are perceived merely as local communities . In the international sphere , GPE and , similarly , GPE and GPE are perceived as single - nation GPE , regardless of the fact that there exist distinct ethnic groups ( for example , the inhabitants of GPE or PERSON in GPE , or the inhabitants of GPE in GPE ) .

On the whole , sociologists agree that the NORP constitute an ethnic group and that the autochthonous inhabitants [ of LOC ] do have some features of a nation but that those features are not fully developed . That ... means that the awakening of their national identity is still at a very early stage . A nation exists only when there are no doubts as to its right to exist . ... In GPE , national minorities constitute only a small part of society , that is to say PERCENT . They include DATE and this has never been denied NORP , NORP , NORP , NORP , NORP , NORP , NORP , GPE , NORP and NORP .

In the NORP tradition , national minorities are perceived as groups linked to a majority outside GPE ; in other words , a minority is an ethnic group that has support amongst a majority [ residing ] abroad . Moreover , traditionally , our society has not considered that groups which preserve a distinct culture but which do not belong to any ORG can be deemed to be national minorities . Accordingly , for a long time the GPE people were regarded as an ethnic , not a national group . ...

The applicants ' opinion that the mere choice of the individual concerned is decisive for his nationality is reflected in paragraph CARDINAL of the memorandum of association . Acceptance of this opinion would consequently lead to a situation in which the aims pursued by the association could be accomplished by groups of members who did not have any connection or links with GPE and who had become members of the Union solely to gain an advantage for themselves . Undoubtedly , such groups of members can not [ be allowed ] to accomplish the aims of an association of a national minority . ...

The applicants have relied on the results of sociological research carried out in DATE in the province of GPE . Indeed , the research demonstrates that PERCENT of persons requested to declare their ethnic and regional identity replied that they were NORP . However , it transpires from [ the material collected in the course of another piece of sociological research of DATE which was submitted by the applicants during the appeal hearing ] that DATE the number of persons who considered themselves to be ORG had decreased to PERCENT and that , moreover , the majority of inhabitants of the province of GPE considered themselves to be NORP ( that is , PERCENT , including PERCENT who stated that they were ' NORP ' ; PERCENT of inhabitants considered themselves to be NORP , including PERCENT who stated that they were ' NORP ' ) .

In the light of the above research , it can not be said that such a poorly established self - identity of a small ( and decreasing ) group of NORP , as demonstrated by their refusal to declare that they belong to the [ NORP ] nation , provides a basis for recognising that all NORP ( who have lived in LOC for generations and state that they belong to the NORP nation ) constitute a separate nation . This would be contrary to the will of the majority , a will well known to the applicants .

We therefore find that the appellant is right in submitting that granting the applicants ' application for their association to be registered is unjustified because the memorandum of association is contrary to the law , namely LAW . Indeed , the application is aimed at registering an organisation of a minority which can not be regarded as a national minority and at circumventing the provisions of the DATE LAW and other statutes conferring particular privileges on national minorities . Granting such a request could lead to granting unwarranted rights to the association in question . This would , moreover , give it an advantage in relation to other regional or ethnic organisations .

In these circumstances , in accordance with section CARDINAL of the PERSON on associations and LAW , read in conjunction with Articles CARDINAL § CARDINAL and CARDINAL of the Code of Civil Procedure and section CARDINAL of the PERSON on associations , the appeal must be allowed . ”

On DATE the applicants lodged an appeal on points of law ( kasacja ) with ORG ( Sąd Najwyższy ) . They alleged that ORG had wrongly interpreted the relevant provisions of the PERSON on associations and that the impugned decision had contravened LAW , LAW . Their arguments are summarised as follows :

“ Since a refusal to register an association could be justified only if an activity specified in the memorandum of association was banned by the law , the principal issue to be determined by ORG was whether the memorandum of the applicants ' association complied with the statutory requirements . That was clearly not the case and the court 's fear that the registration of the applicants ' association would in future lead to discrimination against other national or ethnic minorities was based on mere speculation . In any event , the PERSON on associations [ in sections PERSON ) , CARDINAL et seq . ] provided for various means whereby the activity of an association could be supervised by the competent ORG authorities or , in the event that its activity was unlawful , the association could be dissolved .

However , ORG , instead of assessing the formal requirements of the registration , decided at the outset that the core issue in the proceedings was to establish whether a NORP nation existed . It consequently went on to lay down its own arbitrary and controversial definition of ' nation ' and ' national minority ' , and finally concluded that there was no ' NORP nation ' . It did so without any effort to obtain expert evidence in respect of such an important matter . ”

On DATE the Governor of GPE filed a pleading in reply to the applicants ' appeal on points of law . The relevant arguments are summarised as follows :

“ The refusal to register the applicants ' association was fully justified . In the course of the proceedings at first instance , the Governor eventually proposed that the applicants amend paragraph CARDINAL of the memorandum of association and alter the name of their association by deleting the word ' nationality ' . Those arguments were based on section MONEY ) ( i ) of the PERSON on associations , which provides that a memorandum of association should enable the association in question to be differentiated from other associations . This means that the name of an association should not be misleading . Since the requirement set out in the above - mentioned section was not complied with , the refusal to register the applicants ' association was justified under section PERSON ) .

It must be stressed that even in the explanatory report to the [ Framework Convention ] it is clearly stated that the individual 's subjective choice to belong to a national minority is inseparably linked to objective criteria relevant to the person 's identity . That means that a given nation must exist prior to the individual making a decision to belong to this nation . That being so , the applicants ' application for their association to be registered must be seen as a thoughtless and incomprehensible attempt to exploit the distinct characteristics [ of the NORP ] with a view to achieving political aims . ”

On DATE the prosecutor at ORG filed a pleading in reply to the applicants ' appeal on points of law . He submitted , among other things , that it was clear that the content of the memorandum of association was contrary to the law since it explicitly stated that the Union was an association of a national minority , and thus ignored the fact that the NORP could not be regarded as a minority of that kind . The NORP , being merely an ethnic group , could not exercise the rights conferred on national minorities , in particular those referred to in the DATE LAW .

On DATE ORG of ORG , sitting as a panel of CARDINAL judges , dismissed the applicants ' appeal on points of law . The relevant parts of the reasons for this decision read as follows :

“ ... [ A ] necessary prerequisite for the registration of an association is the conformity of its memorandum of association with the entire domestic legal order , including conformity with [ the provisions of ] international treaties ratified by GPE .

In the present case ORG had no doubts as to the lawfulness of the aims pursued by [ the applicants ' ] association , but refused to register the association for the sole reason that [ the applicants ] , in the memorandum of association , used such terms as ' NORP nation ' and ' NORP national minority ' .

We agree with the opinion [ of ORG ] . ' National minority ' is a legal term ( see LAW DATE ) , although it is not defined either in NORP law or in the conventions relied on in the appeal on points of law . However , the explanatory report to the [ LAW ] states plainly that the individual 's subjective choice of a nation is inseparably linked to objective criteria relevant to his or her national identity . That means that a subjective declaration of belonging to a specific national group implies prior social acceptance of the existence of the national group in question . ...

An individual has the right to choose his or her nation but this , as ORG rightly pointed out , does not in itself lead to the establishment of a new , distinct nation or national minority .

There was , and still is , a common perception that a NORP ethnic group does exist ; however , this group has never been regarded as a national group and has not claimed to be regarded as such . ...

Registration of the association , which in paragraph CARDINAL of its memorandum of association states that it is an organisation of a [ specific ] national minority , would be in breach of the law because it would result in a non - existent ' national minority ' taking advantage of privileges conferred on [ genuine ] national minorities . This concerns , in particular , the privileges granted by LAW ... such as an exemption from the requirement that a party or other organisation standing in elections should get PERCENT of the votes , which is a prerequisite for obtaining seats in ORG ... [ or ] ... privileges in respect of the registration of electoral lists ; thus , it suffices for an organisation of a national minority to have its electoral lists registered in CARDINAL constituencies [ whereas the general requirement is to register an electoral list in CARDINAL of the constituencies in the whole of GPE ] .

Pursuant to the relevant ruling of ORG [ PERSON ] on the interpretation of LAW , ... the privileges [ referred to above ] are conferred on electoral committees of registered national minorities and , in case of doubt [ as to whether or not an electoral committee represents a national minority ] , ORG may request evidence .

The simplest means of proving the existence of a specific national minority is to present a memorandum of association confirming that fact . It is true that , under LAW , resolutions of ORG on the interpretation of statutes no longer have universally binding force ; however , in view of the persuasiveness of the reasons given by ORG and the requirements of practice , [ we consider that ] a memorandum of association still remains basic evidence demonstrating the existence of a national minority .

Conferring on the NORP , an ethnic group , the rights of a national minority would be contrary to LAW , stating that all persons are equal before the law , [ because ] other ethnic minorities would not enjoy the same rights .

The memorandum of association is contrary to section CARDINAL(CARDINAL ) ( iv ) of the PERSON on associations , which stipulates that a memorandum of association must set out rules concerning acquisition and loss of membership , and the rights and duties of members . Paragraph CARDINAL of the memorandum provides that everyone who is a NORP citizen and has submitted a written declaration stating that he is of NORP nationality may become a member of the ORG , whereas paragraph CARDINAL states that a person ceases to be a member of the Union if , inter alia , he has not fulfilled the membership requirements set out in the memorandum of association . Since no Silesian nation exists , no one would lawfully be able to become a member of the Union , because his declaration of Silesian nationality would be untrue . ...

Furthermore , it must be pointed out that the refusal to register the association does not contravene GPE 's international obligations . Both LAW ... and the LAW allow [ the ORG ] to place restrictions on the freedom of association , [ in particular such as ] are prescribed by law and are necessary in a NORP society in the interests of national security or public safety or for the protection of health and morals or for the protection of the rights of others .

It is contrary to public order to create a non - existent nation that would be able to benefit from the privileges conferred solely on national minorities . Such a situation would also lead to the infringement of the rights of others , not only national minorities but also all other citizens of GPE . Granting privileges to a [ specific ] group of citizens means that the situation of the other members of society becomes correspondingly less favourable .

This is particularly so in the sphere of election law : if certain persons may become members of ORG [ because of their privileged position ] , it means that other candidates must obtain a higher number of votes than what would be required in the absence of privileges [ in that respect ] .

It also has to be noted that the essential aims of the association can be accomplished without the contested provisions of the memorandum and without the [ specific ] name of the association . Under the provisions of LAW , national and ethnic minorities have equal rights as regards their freedom to preserve and develop their own language , to maintain their customs and traditions , to develop their culture , to establish educational institutions or institutions designed to protect their religious identity and to participate in the resolution of matters relating to their cultural identity ( see LAW ) . ... ”

DATE , which was adopted by ORG on DATE and came into force on DATE , states :

“ GPE shall ensure freedom for the creation and functioning of trade unions , socio - occupational farmers ' organisations , societies , citizens ' movements , other voluntary associations and foundations . ”

LAW reads :

“ Political parties and other organisations whose programmes are based on totalitarian methods or the models of naziism , fascism or communism , or whose programmes or activities foster racial or national hatred , recourse to violence for the purposes of obtaining power or to influence ORG policy , or which provide for their structure or membership to be secret , shall be forbidden . ”

Article CARDINAL of the LAW provides :

“ CARDINAL . All persons shall be equal before the law . All persons shall have the right to equal treatment by public authorities .

No one shall be discriminated against in political , social or economic life for any reason whatsoever . ”

LAW provides :

“ CARDINAL . GPE shall ensure that NORP citizens belonging to national or ethnic minorities have the freedom to preserve and develop their own language , to maintain customs and traditions , and to develop their own culture .

National or ethnic minorities shall have the right to establish educational and cultural institutions and institutions designed to protect religious identity , as well as to participate in the resolution of matters relating to their cultural identity . ”

LAW , proclaiming the right to freedom of association , reads :

“ CARDINAL . NORP The freedom of association shall be guaranteed to everyone .

Associations whose purposes or activities are contrary to the LAW or statute shall be prohibited . The courts shall decide whether to register an association and/or whether to prohibit an [ activity of ] an association .

Categories of associations requiring court registration , the procedure for such registration and the manner in which activities of associations may be monitored shall be specified by law . ”

Chapter III of the LAW , entitled “ Sources of law ” , refers to the relationship between domestic law and international treaties .

LAW provides :

“ The sources of universally binding law of GPE shall be the LAW , statutes , ratified international treaties and ordinances . ”

Article CARDINAL states :

“ CARDINAL . As soon as a ratified international treaty has been promulgated in ORG , it shall become part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .

An international treaty ratified after prior consent has been given in the form of a statute shall have precedence over statutes where the provisions of such a treaty can not be reconciled with their provisions .

Where a treaty ratified by GPE establishing an international organisation so provides , the rules it lays down shall be applied directly and have precedence in the event of a conflict of laws . ”

The relevant part of LAW on associations reads :

“ ( CARDINAL ) NORP citizens shall exercise the right of association in accordance with LAW ... and the legal order as specified by law .

( CARDINAL ) The [ exercise of the ] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others .

( CARDINAL ) ORG shall have the right to express their opinion on public matters . ”

The relevant part of LAW provides :

“ ( CARDINAL ) ORG association is a voluntary , self - governing , stable union pursuing non profit- making aims .

( CARDINAL ) ORG association shall freely determine its objectives , its programmes of activity and organisational structures , and shall adopt internal resolutions concerning its activity . ”

The relevant part of LAW , in the version applicable at the material time , read as follows :

“ ( CARDINAL ) ORG association shall register , unless otherwise provided by law .

( CARDINAL ) Registration of an association shall be effected by the registering regional court ( hereafter referred to as ' the registering court ' ) within whose territorial jurisdiction that association has its headquarters .

( CARDINAL ) NORP The regional court within whose territorial jurisdiction an association has its headquarters ( hereafter referred to as ' the court ' ) shall be competent to take the measures that are prescribed by this PERSON in respect of an association [ for example , those listed in sections CARDINAL , CARDINAL , DATE and CARDINAL ] .

( CARDINAL ) In proceedings before it , the registering court or the court shall apply the provisions of LAW relating to non - contentious proceedings , unless otherwise provided by this PERSON .

( CARDINAL ) The activities of associations shall be supervised by [ the governor of the relevant province ] ( referred to hereafter as ' the supervisory authority ' ) . ”

Section CARDINAL , in its relevant part , provides :

“ ( CARDINAL ) ORG association 's memorandum shall in particular specify :

( i ) the name of the association which shall differentiate it from other associations , organisations or institutions ;

( iv ) the conditions for the admission of members , the procedure and grounds for the loss of membership , and the rights and obligations of members .

( CARDINAL ) ORG association that intends to set up regional branches shall specify in its memorandum of association the structure of the organisation and the principles on which such branches shall be formed . ”

Section CARDINAL reads as follows :

“ The management committee of an association shall lodge with the relevant court an application for the registration of their association , together with a memorandum of association , a list of the founders containing their first names , surnames , dates and places of birth , their places of residence and signatures , a record of the election of the management committee and the address of their provisional headquarters . ”

Section CARDINAL stipulates :

“ ( CARDINAL ) A court dealing with an application for registration of an association shall rule on such an application promptly ; a ruling should be given within DATE from the date on which the application was lodged with the court .

( CARDINAL ) The court shall serve a copy of the application for the registration , together with the accompanying documents specified in section CARDINAL on [ the relevant ] supervisory authority . The supervisory authority shall have the right to comment on the application within DATE from the date of service and , with the court 's leave , to join the proceedings as a party . ”

Section CARDINAL reads :

“ The court shall refuse to register an association if it does not fulfil the conditions laid down in [ this ] PERSON . ”

Section CARDINAL provides :

“ The court shall allow an application for registration of an association if it is satisfied that the latter 's memorandum of association is in conformity with the law and its members comply with the requirements laid down in [ this ] PERSON . ”

Chapter CARDINAL of the PERSON , entitled “ Supervision of associations ” , provides in sections CARDINAL and following for various means of monitoring the activities of associations and lays down the conditions for the dissolution of an association .

Under LAW , the relevant supervisory authority may request the management committee of an association to submit , within a specified time - limit , copies of resolutions passed by the general meeting of the association or to ask the officers of an association to provide it with “ necessary explanations ” .

In the event that such requests are not complied with , the court , under LAW and a motion from the supervisory authority , may impose a fine on the association concerned .

Under LAW , a supervisory authority , if it finds that activities of an association are contrary to the law or infringe the provisions of the memorandum of association in respect of matters referred to in section CARDINAL ) and ( CARDINAL ) , may request that such breaches cease , or issue a reprimand , or request the competent court to take measures under section CARDINAL .

The relevant part of LAW provides :

“ ( CARDINAL ) The court , at the request of a supervisory authority or a prosecutor , may :

( i ) reprimand the authorities of the association concerned ;

( ii ) annul [ any ] resolution passed by the association if such a resolution is contrary to the law or the provisions of the memorandum of association ;

( iii ) dissolve the association if its activities have demonstrated a flagrant or repeated failure to comply with the law or with the provisions of the memorandum of association and if there is no prospect of the association reforming its activities so as to comply with the law and the provisions of the memorandum of association . ”

Section CARDINAL of the DATE LAW provided :

“ ( CARDINAL ) In the distribution of [ seats in the PERSON ] account shall be taken only of those regional electoral lists of electoral committees which have obtained PERCENT of the valid votes cast in the whole [ of GPE ] .

( CARDINAL ) NORP The regional electoral lists of electoral committees referred to in section CARDINAL(CARDINAL ) ( electoral coalitions ) shall be taken into account in the distribution of [ seats in the PERSON ] , provided that they have obtained PERCENT of the valid votes cast in the whole [ of GPE ] . ”

Section CARDINAL read :

“ In the distribution of seats among national electoral lists , account shall be taken only of those lists of electoral committees which have obtained PERCENT of the valid votes cast in the whole [ of GPE ] . ”

Section CARDINAL stipulated :

“ ( CARDINAL ) ORG committees of registered organisations of national minorities may be exempted from one of the conditions referred to in section CARDINAL(CARDINAL ) or section CARDINAL , provided that , not later than the fifth day before the date of the election , they submit to ORG a declaration to that effect [ ] .

( CARDINAL ) ORG shall promptly acknowledge receipt of the declaration referred to in subsection ( CARDINAL ) . This declaration shall be binding on electoral colleges . ”

The relevant part of section CARDINAL provided :

( CARDINAL ) An electoral committee which has registered its regional electoral lists in CARDINAL of the constituencies [ in the whole of GPE ] ... shall be entitled to register a national electoral list .

( CARDINAL ) The electoral committee[s ] of organisations of national minorities shall be entitled to register a national electoral list , provided [ they ] ha[ve ] registered their regional electoral lists in CARDINAL constituencies . ... ”

On DATE , DATE and DATE ORG dealt with an application by the President of ORG ( PERSON ) seeking a universally binding interpretation of DATE ) , CARDINAL ) and CARDINAL ) of the DATE LAW . In its ruling , ORG addressed , among other things , the following question :

“ ... whether it is implicit in the expression ' shall promptly acknowledge receipt of the declaration ' , as used in section CARDINAL(CARDINAL ) of the DATE LAW , that , in order to issue such acknowledgment , ORG must verify whether an electoral committee that has submitted the declaration referred to in section CARDINAL ) of the LAW is in fact the electoral committee of a registered national minority organisation and may , for the purposes of such verification , require the committee to produce documents other than those listed in section CARDINAL(CARDINAL ) ( i ) of the DATE LAW , such as the memorandum of association of the organisation ... ”

ORG held as follows :

“ ... ORG , in performing its duties as set out in section CARDINAL(CARDINAL ) of the DATE LAW shall verify whether the declaration referred to in section CARDINAL ) of that LAW was submitted by the authorised electoral committee of CARDINAL or more registered national minority organisations , and may , in case of doubt , require documentary evidence of such authorisation . ”

It further explained that :

“ It must be stressed at the outset that the basis for section CARDINAL(CARDINAL ) of the DATE LAW is to give NORP citizens belonging to national minorities an equal opportunity to participate in representative bodies . However , the possibility provided by this provision for electoral committees of registered national minority organisations to take advantage of exemptions from electoral thresholds is an exception to the principle of equality of electoral rights in a material sense . In practice , the electoral committee that has submitted a given national minority list [ of candidates ] will participate [ in the distribution of seats in ORG ] ... , despite the fact that its list has not attained the corresponding threshold . This solution reflects a certain understanding of the equality principle that involves entities participating in elections being given equal opportunities ... This amounts to discrimination in favour of electoral committees of registered national minority organisations in comparison with other electoral committees . Since they constitute an exception to the equality principle , provisions governing such discrimination can not be interpreted extensively .

Secondly , section CARDINAL ) reserves the privilege of exemption from electoral thresholds to lists of candidates supplied by the electoral committees of CARDINAL or more registered national minority organisations , and only committees of that type may submit corresponding declarations to ORG . The emphasis should be placed on both the reference to ' registered organisations of national minorities ' and to electoral committees acting in their name , for this privilege is available to ' national minority ' organisations that are organised and act as such . [ A ] ... condition of the validity , and hence of effectiveness of a declaration seeking to take advantage of the exemption is that it must be submitted by an entity entitled to do so . It is therefore the responsibility of that entity to provide documentary evidence of its entitlement to submit the declaration . In practice , this amounts to a responsibility to submit to ORG documents unambiguously demonstrating that the electoral committee submitting the declaration is an entity entitled to do so , that is to say , the electoral committee of not just any organisation , but of CARDINAL or more registered national minority organisations .

In accordance with section CARDINAL(CARDINAL ) , ORG is required to acknowledge , without delay , receipt of the declaration referred to in subsection ( CARDINAL ) , in other words , a declaration that has been submitted by an entity entitled to do so . In that connection , the ORG has a duty to verify whether the declaration was submitted by such an entity , and if in doubt , may require documentation unambiguously confirming the entity 's right to submit the declaration , as the declaration gives rise to legal consequences , so justifying the need for specific verification . ... If such documents are not submitted , ORG is precluded from acknowledging receipt of the declaration referred to in section CARDINAL ) , since , apart from the requirement that it be made at the prescribed time to the appropriate electoral college , a vital condition for the validity of the declaration is that it be made by an entitled entity . On the other hand , ORG does not verify the content of the declaration , for which the electoral committee takes full responsibility .

Determining which documents are to be accepted by ORG as confirmation of the electoral committee 's entitlement to submit the declaration referred to in section CARDINAL ) is a separate issue . ... [ I]t can be assumed that ORG may require the presentation of appropriate documents , such as a memorandum of association , that will allow it unambiguously to ascertain that the entity submitting the declaration is the electoral committee of CARDINAL or more registered national minority organisations . ”

DATE the Civil Code reads :

“ No one shall exercise any right held by him or her in a manner contrary to its socio - economic purpose or to the principles of co - existence with others [ zasady współżycia społecznego ] . No act or omission [ matching this description ] on the part of the holder of the right shall be deemed to be the exercise of the right and be protected [ by law ] . ”

The relevant part of LAW provides :

“ CARDINAL . A[ny ] act which is contrary to the law or aimed at evading the law shall be null and void , unless a statutory provision provides for other legal effects , such as the replacement of the void elements of such an act by elements provided for by statute .

Any act which is contrary to the principles of co - existence with others shall be null and void . ”

At the material time GPE was a signatory to ORG ( European Treaty Series no . CARDINAL ) ; the date of signature was DATE . GPE ratified LAW on DATE . It came into force in respect of GPE on DATE .

LAW contains no definition of the notion of “ national minority ” . Its explanatory report mentions that it was decided to adopt a pragmatic approach , based on the recognition that at that stage it was impossible to arrive at a definition capable of mustering the general support of all ORG member GPE .

GPE , at the time of the deposit of the instrument of ratification , made the following declaration :

“ Taking into consideration the fact that LAW contains no definition of the national minorities notion , GPE declares that it understands this term as national minorities residing within the territory of GPE at the same time whose members are NORP citizens . ”


Remainder inadmissible;Violations of Art. 3 (substantive aspect);No violation of Art. 6-1 and 6-2;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE . At the time of his death he was serving his sentence at the Kosh penitentiary institution .

On DATE criminal proceedings were instituted in respect of the applicant on account of fraudulent acquisition of property and falsification of documents . The applicant , who had no previous convictions , was suspected of defrauding his business partner , ORG

On DATE the investigating authority ordered an opinion to be prepared by a handwriting expert . On DATE the investigating authority ordered CARDINAL accounting expert opinions to be prepared by CARDINAL accounting experts V.A. and CARDINAL

On DATE the investigating authority recognised ORG as a victim and as the civil plaintiff .

On DATE the applicant was formally charged with the above offences , and a new charge of tax evasion .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) decided to detain the applicant .

On DATE the prosecutor approved the indictment , which was then submitted to the courts . Attached to the indictment was the list of persons subject to be called to court . This list included the accused , the victim , CARDINAL witnesses , including the applicant 's accountant PERSON and treasurer PERSON , and the CARDINAL accounting experts V.A. and CARDINAL

On DATE the criminal case against the applicant was put before the Malatia - Sebastia District Court of GPE ( ORG քաղաքի ORG համայնքի առաջին ատյանի դատարան ) .

On DATE the victim lodged his civil claim seeking damages in the amounts of CARDINAL NORP drams ( ORG ) and MONEY ( ORG ) .

On DATE the GPE ORG of GPE found the applicant guilty as charged and sentenced him to DATE in prison . The court also fully granted the victim 's civil claim for damages . The court based its judgment on , inter alia , the statements of CARDINAL witnesses examined in court , including accountant PERSON and treasurer GPE , an act prepared by the tax authority specialists , CARDINAL court - ordered accounting expert opinions , the statements of accounting experts V.A. and DATE , and a handwriting expert opinion .

On DATE the applicant lodged an appeal with the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) . The applicant also submitted written explanations concerning the civil claim , in which he requested ORG to call and examine the victim 's accountant ORG as a witness . He also requested that accountant PERSON and treasurer PERSON be called for additional examination . He further asked to call CARDINAL other persons , K. , H. and Z. To substantiate his request to have accountants GPE and PERSON called and examined , the applicant submitted to the court CARDINAL accounting reports prepared by them which , according to him , contained exculpatory information .

On DATE the Criminal and Military Court of Appeal held its first hearing . In the courtroom the applicant was placed in a metal cage which measured QUANTITY m. The applicant was represented by CARDINAL defence counsel . At the hearing , the applicant 's defence counsel filed a motion with the court , arguing that the applicant 's placement in a metal cage in the presence of many people , including relatives and friends , amounted to degrading treatment and humiliated him . Furthermore , this violated the principle of equality of arms , because the applicant , being in a cage , was not able to feel equal to the other parties . The fact that the applicant was a detainee was not sufficient justification to keep him in a metal cage during the court hearings . Nor did the law on arrested and detained persons prescribe placement of a detainee in a metal cage in the courtroom . The defence counsel requested the court to release the applicant from the cage and to allow him to be seated in the seats meant for the parties , namely next to his lawyer .

The prosecutor objected to this motion , claiming that the law on arrested and detained persons said nothing about a defendant being released from the metal cage . Besides , the defendant was to be seated in the seat meant for him and that could not be regarded as violating his dignity . The victim 's representative also objected to this motion , claiming that the applicant was a detainee , therefore he had to be kept in a metal cage . Furthermore , there were no requisite security measures in the courtroom .

ORG decided to refuse this motion as unsubstantiated , finding that the placement of the defendant in the seat meant for him during the court hearings did not violate the rights invoked by the defence . The court further stated that its decision was based on security considerations .

During the entire proceedings before ORG the applicant was kept in the metal cage . The proceedings lasted DATE and included CARDINAL public hearings . According to the applicant , the hearings lasted on average TIME . It appears that they were attended by the applicant 's children , wife , siblings and friends , and other members of the public .

At the hearing of CARDINAL DATE the applicant repeated his request to call witnesses , made earlier in his written explanations . ORG refused this request on the ground that accountant PERSON and treasurer PERSON had already been examined and made detailed statements during the investigation and the proceedings in ORG . As to the accountant ORG , the court stated that it was unnecessary to call her in this particular case . As to ORG and PERSON , the court stated that their identity was unknown .

On DATE the Criminal and Military Court of Appeal upheld the applicant 's sentence . ORG only partially granted the victim 's civil claim , awarding him ORG and CARDINAL .

On DATE the applicant lodged an appeal on points of law .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the appeal and upheld the applicant 's conviction .

It appears that , prior to his placement in detention , the applicant suffered from a number of diseases , including acute bleeding duodenal ulcer and diabetes . It further appears that he had suffered a heart attack in DATE .

On DATE the applicant was placed in ORG ( « Նուբարաշեն » քրեակատարողական հիմնարկ ) .

On DATE the applicant was examined by a doctor upon his admission to the detention facility . It was noted that he suffered from ischemic heart disease , gallstones and diabetes .

On DATE the applicant was examined by a surgeon of the facility 's medical unit to whom he complained of pain in the epigastric region which worsened at TIME and improved after eating . He further complained of loss of weight and frequent vomiting . The surgeon noted that the applicant , prior to his detention , had been diagnosed with an acute bleeding duodenal ulcer and recommended to have surgery . The applicant agreed in writing to have surgery .

On DATE the applicant was transferred to ORG քրեակատարողական հիմնարկ ) . According to the applicant 's treatment plan , developed upon his admission , the applicant was supposed to undergo blood and urine tests , an electrocardiogram , a gastroscopy , and consultations with a cardiologist and an endocrinologist .

It appears from the applicant 's hospital medical file that the applicant was under regular medical observation .

On DATE and DATE blood and urine tests were carried out .

On DATE and DATE an endoscopy and a gastroscopy were performed . The diagnosis of an acute , bleeding duodenal ulcer was confirmed . It appears that on the latter date the applicant also underwent haemostatic treatment of the ulcer .

On DATE the applicant underwent an ultrasound scan of his abdominal area and urinary organs .

On DATE the applicant 's gastrointestinal problems exacerbated , causing him to feel dizzy and to collapse . Medical aid was provided .

By a letter of CARDINAL DATE the chief of ORG informed the judge examining the applicant 's case that the applicant had been admitted to the hospital as an emergency case and had been diagnosed with an acute bleeding duodenal ulcer . On DATE a gastroscopy had been performed , accompanied by haemostatic therapy . The applicant continued to receive treatment and for the time being was unfit for trial .

On DATE an electrocardiogram was performed .

On DATE the applicant was examined by an endocrinologist . The endocrinologist recommended an additional glycaemia test on an empty stomach in order to decide on the applicant 's further treatment .

On DATE the applicant was discharged from the hospital and transferred back to the detention facility . According to the relevant discharge certificate ( էպիկրիզ ) issued by the Chief of the ORG , ORG , and the Head of ORG , GPE :

“ Following the relevant examination and consultations carried out in the unit , [ the applicant ] was diagnosed as having an ulcer , acute bleeding duodenal ulcer , diabetes ( type CARDINAL , medium degree , subcompensated stage ) and diabetic angiopathy , for which , apart from the relevant treatment , on DATE [ the applicant ] received haemostatic therapy of the ulcer and was discharged on DATE . The patient must undergo regular medical check - ups . ”

On DATE it was noted in the applicant 's medical file that he was being discharged after receiving appropriate treatment and was in satisfactory condition .

The Government alleged that the applicant had also undergone the recommended surgery at the hospital . The applicant contested this allegation and claimed that no surgery had been carried out .

On DATE the applicant was transferred to the medical unit of the detention facility for further treatment since his state of health had deteriorated . At the medical unit , the applicant was examined by a doctor to whom he complained of , inter alia , pain in his chest , dry mouth , asthenia , headache , dizziness and occasional vomiting . Blood and urine tests were carried out .

DATE , according to the records made in his medical file , the applicant was under regular medical observation and received medication . Regular check - ups were performed once DATE . His state of health during this period was recorded as fluctuating between stable and deteriorated .

On DATE an ambulance was called to the courtroom since the applicant 's heart condition worsened . He was examined by a cardiologist and diagnosed with ischemic heart disease , post - infarction cardiosclerosis and rest stenocardia . An electrocardiogram was prescribed as well as medication including validol , analgin and dimedrol .

On DATE an ambulance was called to the courtroom for the same reasons . The applicant 's heart diagnosis was confirmed and in - patient examination and treatment were recommended .

By a letter of CARDINAL DATE the examining judge informed the chief of the detention facility about the events of CARDINAL and DATE and inquired about the applicant 's state of health and whether he was receiving requisite medical assistance .

By a letter of CARDINAL DATE the chief of the detention facility informed the judge that the applicant was suffering from ischemic heart disease , exertion and rest stenocardia , post - infarction cardiosclerosis , diabetes , diabetic angiopathy and bleeding duodenal ulcer . The letter further stated that the applicant was under constant medical observation and was receiving treatment .

On DATE the applicant 's counsel applied to the Head of ORG of ORG ( ՀՀ արդարադատության նախարարության քրեակատարողական վարչության պետ ) , stating that the applicant 's state of health required regular medical check - ups and requesting his transfer to ORG for treatment . It appears that no reply to this complaint was received

On DATE the applicant was transferred from the medical unit back to his cell .

The applicant alleged that from the date of his transfer to his cell in the detention facility until his transfer to a correctional facility on CARDINAL DATE he was never examined by a doctor . He had verbally applied on numerous occasions to the administration of the detention facility requesting medical assistance , but no such assistance or medication had been provided , nor any special diet prescribed . The necessary medicines and food products were provided by his relatives on a regular basis .

The Government confirmed that the applicant had verbally applied to the administration of the detention facility for medical assistance within the above - mentioned period , but alleged that such assistance had been provided to the applicant on each and every occasion , including necessary medicines and diet . He was regularly checked by a doctor and , if any symptoms were disclosed , he promptly received the necessary treatment . The detention facility was staffed with the following specialists : CARDINAL physicians , CARDINAL psychiatrist - neurologist , CARDINAL dermatologist , CARDINAL dentist , CARDINAL tuberculosis specialist , CARDINAL laboratory assistant and CARDINAL doctors ' assistants . The latter visited the detainees DATE to check their health and the doctors were immediately alerted if there were any problems .

In support of this allegation the ORG submitted a statement made on DATE by ORG of ORG of ORG of ORG , PERSON According to this statement , DATE and DATE the applicant had regularly applied to the medical staff of the detention facility and had received medical consultations and out - patient treatment for ischemic heart disease , exertion and rest stenocardia , diabetes and duodenal ulcer . Medication was prescribed , including solution of analgin , papaverin , dibazol , phurosemid , validol , ranitidine , nitrong and diabeton , which the detention facility received on a DATE basis from ORG .

On DATE the applicant underwent an ultrasound scan of his abdominal area by an outside doctor invited by his relatives .

On DATE , as it appears from the relevant certificate , the applicant was found to be fit for work after being examined by a doctor .

The court hearing scheduled for DATE was adjourned because of the applicant 's poor health .

On DATE the applicant 's counsel applied to the Chief of ORG , complaining that it was dangerous for the applicant , in view of his health , to be kept in a common cell . He further complained that , in spite of this , the applicant had recently been transferred to another cell where conditions were even worse . Counsel requested that the applicant be urgently transferred to a hospital for treatment .

On DATE the applicant 's counsel applied to the Head of ORG of ORG , complaining that , notwithstanding the applicant 's state of health , he was kept in a common cell . He further complained that the Chief of ORG had failed to transfer the applicant to a hospital and to provide treatment .

On DATE at TIME an ambulance was called to the detention facility because the applicant suffered a heart attack .

On DATE the applicant 's counsel lodged a similar complaint to that of CARDINAL DATE , with a copy to the Chief of ORG .

By a letter of DATE the Head of ORG replied to counsel 's complaint of DATE , stating that the applicant had already been hospitalised twice for treatment from DATE to CARDINAL DATE and from DATE to CARDINAL DATE . The letter further stated that the applicant was currently under observation by the medical staff and his state of health was satisfactory .

On DATE and CARDINAL DATE the applicant 's counsel lodged CARDINAL complaints with the Head of ORG and with the Minister of ORG , with a copy to the Chief of ORG , claiming that the applicant 's state of health was deteriorating DATE , but no measures were being taken . He submitted that the applicant 's illnesses required a special diet , regular medical check - ups and medication . In spite of this , the applicant was kept in conditions where none of this was available .

By a letter of CARDINAL DATE the Head of ORG replied to the counsel 's complaint of DATE , stating that the letter of CARDINAL DATE had already answered the issues raised .

On DATE , after his conviction was upheld in the final instance , the applicant was transferred to Kosh correctional facility to serve his sentence .

On DATE the applicant was examined by a doctor upon his admission to the correctional facility . He complained of asthenia , dizziness and of pain in his epigastric area and the left part of his back . His general state of health was found to be satisfactory . Medication was prescribed .

By a letter of CARDINAL DATE the Head of ORG replied to the counsel 's complaint of CARDINAL DATE , stating that the applicant had more than once received treatment in various facilities and that he was currently serving his sentence at Kosh correctional facility where his state of health was found to be satisfactory .

On DATE ORG ( NORP մարզի առաջին ատյանի դատարան ) dismissed the applicant 's request to be released on parole , finding that he was not entitled under the law to lodge such a request directly with the courts without the prior approval by the parole board .

On an unspecified date the applicant lodged an appeal .

On DATE the Criminal and Military Court of Appeal reviewed the decision of ORG and decided to examine and grant the applicant 's request for release in view of his good behaviour .

This decision , though subject to appeal on points of law , was immediately enforceable , so the applicant was released from prison .

DATE . On DATE ORG quashed the decision of ORG upon the prosecutor 's appeal and decided to terminate the proceedings on the same ground as ORG .

The applicant was taken back to prison .

On DATE the applicant died in prison from a heart attack .

According to LAW , a detainee has the right , inter alia , to healthcare , including to receive sufficient food and urgent medical assistance .

According to LAW , the administration of a detention facility shall ensure the sanitary , hygienic and anti - epidemic conditions necessary for the preservation of health of detainees . CARDINAL general practitioner shall work at the detention facility . A detainee in need of specialised medical assistance must be transferred to a specialised or civilian medical institution .

According to LAW , the suspect or the accused shall be considered innocent until his guilt is proved by a final court verdict in accordance with the procedure prescribed by LAW .

According to LAW , the court does not side with the prosecution or the defence and acts only in the interests of the law .

According to LAW ( CARDINAL ) , the accused has the right to file motions .

DATE . According to LAW , motions and requests must be examined and ruled upon immediately after being filed .

According to LAW , a list of persons subject to be called to court shall be annexed to the indictment . The investigator must indicate in the list the location of these persons and the pages of the case file which contain their statements or conclusions .

According to LAW , the prosecutor , by approving the indictment , shall transmit the case to the competent court .

According to Article CARDINAL , the judge who has taken over the criminal case shall study the materials of the case and within DATE after taking over the case shall adopt , inter alia , a decision to set the case down for trial .

According to LAW , the decision to set the case down for trial must contain , inter alia , the list of persons subject to be called to court .

According to Article QUANTITY , in the preparatory stage of the trial , the presiding judge shall inquire whether the prosecution and the defence want to file motions seeking to obtain new evidence and to include it in the case file . The court must examine each motion filed and hear the parties . The court shall grant the motion , if the circumstances which it seeks to disclose may be significant for the case . A decision refusing a motion must be reasoned .

According to LAW , the parties are entitled to file motions in the court of appeal seeking to call new witnesses .

The relevant extracts from the Reports read as follows :

“ a. Access to a doctor

... CARDINAL . While in custody , prisoners should be able to have access to a doctor at any time , irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay . ...

A prison 's health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . ... Further , prison doctors should be able to call upon the services of specialists . ...

Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .

The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital . ...

Whenever prisoners need to be hospitalised or examined by a specialist in a hospital , they should be transported with the promptness and in the manner required by their state of health .

b. Equivalence of care

i ) general medicine

A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist / nurse , etc . ) .

A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient 's evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .

Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .

NORP The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ”

The relevant extracts from the Report read as follows :

“ b. health care services in the prisons visited [ ( CARDINAL establishments , including FAC ) ]

i. NORP staff and facilities

At FAC , the full - time health care team consisted of CARDINAL doctors ( head doctor , internist , surgeon , stomatologist , dermato - venerologist , radiologist , psychiatrist ) , CARDINAL feldshers , a laboratory assistant , an X - ray technician and a dental technician . Assistance was provided by several prisoner orderlies .

At FAC , the presence of a feldsher was ensured on a CARDINAL-hour basis . ...

As regards the complement in terms of doctors , the situation at ORG ... [ Prison ] can be considered satisfactory . ...

The ORG is particularly concerned about the low number of qualified feldshers and the total lack of qualified nurses at the CARDINAL establishments . Given the size and structure of the respective inmate populations ( with rapid inmate turnover at the CARDINAL pre - trial facilities and noticeable proportions of older prisoners at the CARDINAL GPE ) , the ORG recommends that the nursing staff resources ( i.e. feldshers and nurses ) at the CARDINAL establishments be increased .

The ORG also wishes to stress that a person competent to provide first aid , preferably with a recognised nursing qualification , should always be present on prison LOC , including at night and weekends .

In the ORG 's view , the employment of inmates as orderlies should be seen as a last resort , and prisoners should under no circumstances be involved in the distribution of medicines . Further , such persons should not be given access to medical files , nor should they be present during medical examinations . ORG recommends that the position of the prisoners working as orderlies at Nubarashen ... [ Prison ] ( as well as other penal establishments in GPE ) be reviewed , in the light of these considerations .

The delegation heard very few complaints about access to the doctor ( or , as in PERSON , to the feldsher ) . However , at the CARDINAL prisons , inmates complained about the standard of treatment and care , in particular as regards the range of medication prescribed and the quality of dental care ( which appeared to be limited to extractions ) . At each of the establishments , the transfer of inmates to ORG in GPE , when required by their state of health , was said to be unproblematic . ...

The supply of basic medication and related materials was grossly insufficient at each of the establishments . This was hardly surprising , given the very limited budget for acquiring such items . In this regard , the health - care services concerned depended to a considerable extent on donations and inmates ' own resources .

Reference has already been made to the ORG 's duty of care vis - à - vis persons deprived of their liberty , even in periods of serious economic difficulties ... The ORG recommends that the NORP authorities take measures without delay to ensure the supply of appropriate medicines and related materials to the prisons visited and , if necessary , to other penitentiary establishments in GPE . ”


No violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant had an accident at work – a cut of QUANTITY to his right wrist . DATE he was treated by the company doctor , PERSON On DATE his general practitioner transferred him to hospital . DATE and again on DATE he was examined by PERSON On his second examination PERSON diagnosed that the applicant was unable to flex his thumb . On DATE , following a further examination , he had surgery on a muscle , the flexor pollicis longus .

On DATE the applicant instituted proceedings in ORG against PERSON and PERSON , seeking an award of compensation for pecuniary and non - pecuniary damage in the amount of MONEY ( ORG ) . He argued that if the defendants had treated him properly , the operation would have been avoided , which in turn would have avoided severe pain and further problems , including reactive depression .

NORP In DATE the court scheduled a hearing for DATE . Submissions by the parties followed and in DATE the case was transferred to a single judge .

On DATE , following the hearing , ORG decided to hear the applicant 's general practitioner and scheduled a new hearing for DATE . On account of the absence of the first defendant 's legal counsel , it later postponed it to DATE . It refused a subsequent request for a further postponement .

On DATE the applicant 's legal counsel ceased taking instructions from the applicant . On DATE his new lawyer addressed the court .

In DATE the parties agreed on written submissions .

In DATE the applicant 's second lawyer also ceased taking instructions from the applicant ; subsequently , a new lawyer was appointed and requested access to the files .

NORP On DATE the applicant requested the court to await the outcome of the social court proceedings , which were also pending , and returned the files .

On DATE the applicant 's third lawyer also ceased taking instructions but was subsequently reappointed in DATE

On DATE , upon the request of CARDINAL of the defendants to continue the proceedings , the court scheduled a hearing for DATE . At the hearing the parties agreed that the files of the social court proceedings should be consulted . DATE , having been granted access to those files , the parties submitted further observations .

NORP In DATE the applicant asked for an expert to be commissioned . In DATE he submitted documents which had until then been missing .

In DATE and DATE he requested the court to continue with the proceedings . On DATE he was informed that the judge had fallen ill .

On DATE ORG decided to obtain an expert opinion . On DATE the expert submitted his report .

The court then set the parties a time - limit for their observations of DATE .

On DATE the court decided to obtain a supplementary report . On DATE , after payment of an advance , it transferred the files to the expert . In DATE it asked the expert when he would be submitting his report .

On DATE the applicant did not attend the examination arranged with the expert . On DATE the expert examined the applicant .

On DATE the court set the expert a time - limit of DATE for the submission of his report . On DATE it set him another deadline of DATE . On DATE the expert submitted the supplementary report . The parties ' submissions followed .

On DATE the court scheduled the hearing for CARDINAL DATE and also summoned the expert . It later had to be postponed to CARDINAL DATE on account of the absence of CARDINAL of the legal counsel .

On DATE , following the hearing , ORG rejected the applicant 's claim . Relying on the expert opinion obtained and a statement from the applicant 's general practitioner , it found that the muscle had not been cut and that no liability on the part of the doctors could be established .

On DATE the applicant appealed . In DATE , following an extension of the time - limit , he submitted the grounds of his appeal .

On DATE ORG scheduled the hearing for DATE . A subsequent request by the applicant for a postponement was rejected .

At the hearing ORG heard the doctor who had operated on the applicant .

The parties ' submissions followed . In DATE the applicant requested a further expert opinion regarding a number of questions .

The court then scheduled a hearing for DATE and decided to obtain an additional statement from the expert appointed at first instance , which was submitted on DATE .

On DATE the applicant challenged the expert on grounds of bias . On DATE ORG rejected this challenge .

Subsequently , it commissioned another expert . The parties did not object when the expert announced that he would not submit his report before DATE .

In DATE the applicant transferred further documents . On DATE the expert examined the applicant .

On DATE the expert submitted his report . The court then scheduled the hearing for DATE . The applicant again requested the court to obtain another expert opinion .

On DATE , following the hearing , ORG dismissed the applicant 's appeal and refused leave to appeal on points of law . Relying on the experts ' statements , it found that no liability of the defendants could be established .

On DATE the applicant appealed against the refusal of leave to appeal . On DATE , following CARDINAL requests for an extension of the time - limit set , he lodged the grounds of his appeal .

On DATE ORG dismissed the applicant 's appeal .

On DATE the applicant lodged a constitutional complaint .

On DATE ORG refused to accept his constitutional complaint for examination .