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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in FAC . He was represented before the ORG by Mr J. Brydak , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON of ORG .

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

On DATE the prosecution filed a bill of indictment against the applicant with ORG . He was charged with several financial offences .

The case was heard by the panel composed of Judge PERSON and CARDINAL lay judges . A hearing scheduled for DATE was cancelled due to the illness of CARDINAL of the lay judges . On DATE the lay judge died . In addition , Judge PERSON was due to leave ORG to take up a post at ORG on DATE .

As a result the applicant ’s case had to be heard de novo by a newly composed panel .

On DATE the Minister of ORG seconded Judge PERSON from ORG to serve as a judge of ORG from DATE to CARDINAL DATE .

On DATE Judge PERSON was put on a list of judges of ORG of ORG . On DATE the President of ORG assigned Judge PERSON to the applicant ’s case under LAW . He noted that the judge who had been previously assigned to the case was due to take up a different judicial post . Furthermore , it was necessary to divide work evenly between judges in the division .

On DATE Judge PERSON scheduled the first hearing in the applicant ’s case for DATE . It appears that subsequently Judge PERSON was appointed a regional court judge .

On DATE ORG , composed of Judge PERSON and CARDINAL lay judges , convicted the applicant of fraud . It sentenced him to DATE imprisonment and a fine . The applicant appealed .

On DATE ORG upheld the first - instance judgment .

The applicant lodged a cassation appeal , arguing that the panel of ORG had been composed in breach of LAW . He submitted that the President of ORG should have assigned his case to the next judge on the list of judges and not to Judge PERSON Since that was not the case , the composition of the court was decided in an administrative manner . The applicant further relied on LAW , arguing the lack of objective impartiality of ORG .

On DATE ORG requested the President of the CARDINALrd Criminal Section of the Wrocław ORG to provide a list of judges , referred to in LAW , which had been valid on DATE .

On DATE the requested list of judges together with an explanation as to the composition of the panel was received by ORG . The list of judges adjudicating in ORG of ORG valid on DATE included Judge PERSON The list contained CARDINAL judges listed in numerical order . Judge PERSON was fifth on the list and Judge PERSON was eleventh on the list . He was indicated as having been seconded to ORG by a decision of the Minister of ORG of CARDINAL DATE . It was further stated that on DATE the applicant ’s case was assigned to Judge PERSON The reasons for this decision were even distribution of work between judges in the division and the necessity to provide Judge PERSON , a newly - seconded judge , with cases to examine . ORG was further informed that PERSON , the judge previously assigned to the case , had been due to be transferred to ORG on DATE .

On DATE ORG held a hearing . It dismissed the applicant ’s cassation appeal as manifestly ill - founded and pronounced the most relevant reasons for its decision . ORG further informed the parties that due to the manifestly ill - founded character of the cassation appeal , it was not required to provide written grounds for its decision ( LAW ) .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure ( , , ORG ” ) stated at the material time as follows :

“ A judge ( ... ) is assigned [ to a case ] in the order in which the case was filed and by reference to a list of judges of a given court or division which is accessible to the parties . A departure from this rule is permissible only by way of omitting a judge on the ground of his / her illness or on other important grounds and [ that circumstance ] should be specified in a decision on holding a hearing ”

Article CARDINAL § CARDINAL of the ORG provides that in cases concerning the most serious charges the composition of a panel is decided DATE on request of a prosecutor or a defence counsel – by drawing lots .

In a decision of DATE ( case no . V KK CARDINAL/CARDINAL ) ORG held that the notion of “ other important grounds ” within the meaning of this provision comprised “ a heavy workload of a judge which made it impossible for him / her to decide on a case before the expiry of a limitation period ” . ORG noted that the rule established in LAW ORG was not absolute and could be subject to limitations which took account of practical necessities .

In a resolution of CARDINAL DATE ( case no . I ORG CARDINAL/CARDINAL ) ORG found that LAW ORG would be breached if a different judge than the judge next on the list of judges was assigned to hear a case and if no important ground had been invoked to justify the departure from the rule .

The Ordinance of the Minister of Justice of CARDINAL DATE on particular rules concerning assignment and drawing of judicial panels came into force on DATE . Paragraph CARDINAL ( CARDINAL ) of the LAW required that in each division there had to be a list of judges in alphabetical order . In addition , the list should include annotations about any circumstances constituting grounds for departure from the rules of assignment of judges specified in LAW ORG .


Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in DATE and lives in GPE .

On DATE the applicant was visiting her acquaintance M.

According to the applicant , she stayed TIME to study the Bible and share her religious opinions . On DATE , PERSON , offended by the applicant 's views , called an ambulance to escort her to a mental hospital . Confused by the arrival of the ambulance , the applicant asked PERSON for an explanation , but was ordered by the medical staff to follow them .

According to the Government , the acquaintance had met the applicant in the street DATE before and , perplexed by her unusual behaviour , took her home to take care of her . The applicant did not sleep TIME , cried , looked around , called for her mother ( who lived in GPE ) and hallucinated . The acquaintance therefore had to call an ambulance .

NORP The applicant was taken to ORG No . CARDINAL . The doctor on duty considered that she was suffering from a grave mental disorder , displaying symptoms of fear , anxiety and disorientation , which rendered the applicant a danger to herself and helpless . The applicant had cried and was uncooperative with the doctor .

On DATE the hospital applied to a court for approval of the applicant 's confinement .

DATE , on DATE , a medical commission diagnosed the applicant as suffering from paranoid schizophrenia and confirmed that she should be kept in hospital . According to the doctors , once in the hospital , the applicant remained suspicious and distrustful . She did not reveal her emotions or explain the behaviour which had led to her hospitalisation . She accused the medical staff of stealing her belongings . The applicant insisted that her detention had been inspired by her acquaintance who was a member of a religious sect and who had intended to lure her into the sect . Having no trust in the doctors , the applicant refused any treatment . She was untidy , wore CARDINAL jerseys at once and did not undress for bed . The applicant also refused to wash for fear of catching a cold , and wrote complaints which she hid in her underwear . All that time , according to the medical report , she remained emotionally cold and mannered , whilst repeating herself .

On DATE the ORG of PERSON , after a hearing at the hospital , confirmed that the detention had been necessary as the applicant had suffered from an acute attack of paranoid schizophrenia . In its findings , the court relied on assertions by the hospital that the applicant 's aggravated mental condition had put her physical integrity in danger and that she had been delirious . The hospital 's representatives also testified that the applicant had been taken to the hospital by the emergency services in a deranged state of mind and that she “ had remained awake throughout TIME studying the Bible and weeping ” . A work colleague of the applicant testified that the applicant “ had become uncooperative and filed frequent complaints about her co - workers ' alleged prejudices ” .

The applicant 's representative allegedly did not have any access to the report of the medical commission either before or after the hearing , despite his requests .

On DATE the applicant lodged an appeal against the decision of CARDINAL DATE . The applicant states that she was unable to file detailed points of appeal as , at that time , the final text of the court decision had not been served on her .

On DATE ORG dismissed the appeal and confirmed that the applicant 's detention had been necessary . However , the court established that the applicant no longer needed in - patient treatment as she had a job , was a single mother of a schoolboy and had already spent a considerable time in the hospital .

The basic principles of psychiatric medical care in GPE are governed by ORG , enacted in DATE ( “ LAW , “ the LAW ) .

Section CARDINAL of the PERSON sets out the grounds for an involuntary placement in a psychiatric hospital :

“ A mentally disturbed individual may be hospitalised in a psychiatric hospital against his will or the will of his legal representative and without a court decision having been taken , if the individual 's examination or treatment can only be carried out by in - patient care , and the mental disorder is severe enough to give rise to :

a ) a direct danger to the person or to others , or

b ) the individual 's helplessness , i.e. an inability to take care of himself , or

c ) a significant impairment in health as a result of a deteriorating mental condition , if the affected person were to be left without psychiatric care . ”

Section CARDINAL of the PERSON specifies the procedure for the examination of patients compulsorily confined in a hospital :

“ CARDINAL . A person placed in a psychiatric hospital on the grounds defined by section CARDINAL of the present Law shall be subject to compulsory examination within TIME by a commission of psychiatrists of the hospital , which commission shall take a decision as to the necessity of hospitalisation . If no reasons for hospitalisation are established and the hospitalised person expresses no intention of remaining in the hospital , the person shall be released immediately .

NORP If hospitalisation is considered necessary , the conclusion of the commission of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital , within TIME , for a decision as to the person 's further confinement in the hospital . ”

Sections DATE set out in detail the procedure for judicial review of applications for the compulsory treatment of mentally ill persons :

“ CARDINAL . Involuntary hospitalisation for in - patient psychiatric care on the grounds defined by LAW of the present PERSON shall be subject to review by the court having territorial jurisdiction over the hospital .

An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is detained .

The application containing the grounds for involuntary psychiatric hospitalisation shall be accompanied by a reasoned conclusion of a commission of psychiatrists as to the further necessity of the person 's in - patient treatment in a psychiatric hospital .

A judge who accepts the application for review shall simultaneously order the person 's detention in a psychiatric hospital for the term necessary for that review . ”

“ CARDINAL . An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge on the LOC of the court or hospital within DATE after receipt of the application .

NORP The person shall be allowed to participate personally in the hearing in order to determine whether he should be hospitalised . If , on the information provided by a representative of the psychiatric hospital , the person 's mental state does not allow him to participate personally in the hearing , the application shall be reviewed by the judge on the hospital 's LOC .

The presence at the hearing of a public prosecutor , a representative of the psychiatric institution requesting hospitalisation , and a representative of the person whom it is intended to detain , shall be mandatory . ”

“ CARDINAL . Upon examination of the application on the merits , the judge shall either grant or refuse it .

The judge 's grant of the application shall justify the person 's hospitalisation and further confinement in the hospital .

The judge 's decision shall be subject to appeal within DATE by the person placed in the psychiatric hospital , his representative , the head of the psychiatric hospital as well as by an organisation entitled by virtue of law or by its charter to protect citizens ' rights , or by a public prosecutor . The appeal shall be made in accordance with the rules established in the Code of Civil Procedure of the RSFSR . ”

Sections DATE and CARDINAL of the PERSON provide a patient with the right to complain about the unlawful actions of medical staff :

“ CARDINAL . Unlawful actions of medical , social , educational and other staff and of medical commissions involved in psychiatric care may be complained about ... to a court , a supervising authority or a public prosecutor ... ”

“ CARDINAL . The complaints [ defined in section CARDINAL - CARDINAL ] shall be considered by a court in accordance with chapter DATE of LAW ... ”

LAW outlines the procedure for the judicial review of administrative penalties .


The applicant , PERSON , is a NORP national who was born in the L’viv region on DATE and currently resides in L’viv , GPE .

In DATE the applicant instituted proceedings in the local court of the GPE district of L’viv against the local accommodation office and the ORG local authority , seeking an order for repairs to be carried out to her apartment . She also sought compensation for moral damage , since her living conditions were unsatisfactory . On DATE the ORG of L’viv allowed her claims in part . On DATE the applicant ’s claims for compensation for moral damage were rejected by the Shevchenkivsky ORG of L’viv . On DATE the L’viv ORG upheld this decision .

On DATE the applicant lodged complaints with ORG in accordance with the procedure prescribed by the PERSON of DATE on the Introduction of Changes to the Code of Civil Procedure . On DATE a panel of CARDINAL judges of ORG of GPE refused to transfer the applicant ’s appeal for consideration on the merits to a chamber of ORG .

“ ORG is ORG of GPE . ”

“ Parties and other persons who participate in court proceedings , and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations , may lodge a cassation appeal against judgments and rulings adopted by the court of first instance , only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court .

The basis for such an appeal is the incorrect application of the norms of substantive law or infringement of the norms of procedural law . ”

“ The deadline for lodging an application by the prosecutor is DATE from the date of delivery of the ruling or judgment of ORG , or DATE from the date of delivery of the ruling or judgment of the court of first instance , if these rulings or decisions have not been appealed against . ”

“ The issue of the transfer of the case for consideration by a judicial chamber is to be considered by a panel of CARDINAL judges , in camera , without the participation of the parties to the proceedings .

The case shall be transferred for a hearing by a judicial chamber if one of the judges of the court reaches that conclusion . ...

If the grounds for transfer of the case for consideration by the chamber are not satisfied , the court shall adopt a ruling refusing to allow the applicant ’s claims . ”

“ ORG has the power to :

CARDINAL ) adopt a ruling rejecting the application for annulment ;

CARDINAL ) adopt a ruling fully or partly annulling a judicial decision at issue and remitting the case for a re - hearing to the court of first instance or appellate court ;

CARDINAL ) adopt a ruling annulling the decision at issue and leaving in force a judgment that was quashed by an appeal court in error ;

CARDINAL ) adopt a ruling annulling a decisions at issue , terminating the proceedings in a civil case and refusing to allow an applicant ’s claims ;

CARDINAL ) change the decision on the merits of the case and not remit it for further consideration . ”

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

Laws and other normative acts adopted before this PERSON entered into force are effective in so far as their provisions do not conflict with LAW and this PERSON .

Appeals in civil cases lodged before DATE shall be considered in accordance with the procedure adopted for the examination of appeals against local courts’ decisions .

Protests against judicial decisions lodged before DATE shall be sent to ORG of GPE for consideration in accordance with the procedure for consideration of cassation appeals ( касаційних скарг ) .

Decisions that have been adopted and have entered into force before DATE can be appealed against within DATE in accordance with the procedure for consideration of cassation appeals ( to ORG ) . ”


WINKLEROVA AND 2 OTHERS v. THE SLOVAK REPUBLIC

The applicants are NORP nationals . Their particulars are set out in the list attached hereto . They were represented before the ORG by PERSON ORG , a lawyer practising in PERSON . The respondent Government was represented by PERSON , their Agent .

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

On DATE the applicants ( or their legal predecessors ) claimed ownership of real property before LOC . On DATE the plaintiffs complied with ORG request to submit their action in accordance with the formal requirements .

On DATE a hearing was held before ORG .

On DATE the plaintiffs asked the president of ORG to assign the case to another judge . The request was submitted to ORG which decided , on DATE , not to disqualify ORG judge dealing with the case .

On DATE the case was transferred to a different chamber of ORG .

On DATE the judge requested the plaintiffs to submit further information . The plaintiffs replied on DATE .

On DATE the case was assigned to a different chamber of ORG . On DATE and on DATE respectively the defendants were requested to submit further information .

On DATE ORG submitted the case file to ORG . The file was returned on DATE .

On DATE the case was transferred to another chamber of ORG .

On DATE ORG discontinued the proceedings on the ground that the plaintiffs had failed to substantiate their claim .

On DATE ORG upheld ORG decision to discontinue the proceedings .

On DATE the applicants filed an appeal on points of law . The proceedings are pending before ORG .

LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL/CARDINAL ( LAW ) , as amended with effect from DATE .

After DATE the ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred .


András Sajó;Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Giovanni Bonello;Guido Raimondi;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Mihai Poalelungi;Nicola Lettieri;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva

The first applicant and her CARDINAL sons , GPE and PERSON , also applicants , were born in DATE , DATE and DATE respectively . They are resident in GPE . In DATE PERSON and PERSON attended the Istituto comprensivo statale PERSON , a ORG school in GPE . A crucifix was fixed to the wall in each of the school 's classrooms .

On DATE , during a meeting of the school 's governors , the first applicant 's husband raised the question of the presence of religious symbols in the classrooms , particularly mentioning crucifixes , and asked whether they ought to be removed . On DATE , by CARDINAL votes to QUANTITY with CARDINAL abstention , the school 's governors decided to keep religious symbols in classrooms .

NORP On DATE the first applicant contested that decision in ORG , complaining of an infringement of the principle of secularism , relying in that connection on Articles CARDINAL ( principle of equality ) and CARDINAL ( religious freedom ) of LAW and LAW , and on the principle of the impartiality of public administrative authorities ( LAW ) .

On DATE the Minister of ORG , ORG adopted Directive no . DATE , instructing the competent services of his Ministry to take the necessary measures to see to it that school governors ensured the presence of crucifixes in classrooms ( see paragraph CARDINAL below ) .

On DATE the Minister joined the proceedings brought by the first applicant . He argued that her application was ill - founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article CARDINAL of royal decree no . CARDINAL of DATE ( internal regulations of middle schools ) and LAW no . CARDINAL of DATE ( approval of the general regulations governing primary education ; see paragraph CARDINAL below ) .

By a decision of DATE ORG referred to ORG the question of the constitutionality , with regard to the principle of the secular character of the ORG and ORG , DATE , DATE , DATE , DATE and DATE of the LAW , of ORG CARDINAL and CARDINAL of legislative decree no . CARDINAL of DATE ( approving the single text bringing together the legislative provisions in force regarding education and schools ) , in their “ specifications ” resulting from Articles CARDINAL and CARDINAL of the above - mentioned royal decrees , and of Article CARDINAL of the same legislative decree .

Articles CARDINAL and CARDINAL make municipalities responsible for purchasing and supplying the furniture of primary and middle schools . LAW specifies that each classroom must have a crucifix and LAW that each classroom must have a portrait of the king and a crucifix . Article CARDINAL of legislative decree no . CARDINAL stipulates that provisions not included in the single text remain in force , “ with the exception of provisions contrary to or incompatible with the single text , which are repealed ” .

By a decision of DATE ( no . CARDINAL ) , ORG declared the question as to constitutionality manifestly inadmissible , on the ground that it was in reality directed towards texts which , not having the status of law , but only that of regulations ( the above - mentioned ORG CARDINAL and CARDINAL ) , could not form the subject of a review of constitutionality .

On DATE ORG dismissed the application . After ruling that LAW of DATE and LAW of DATE were still in force and emphasising that “ the principle of the secular nature of the ORG [ was ] now part of the legal heritage of LOC and the western democracies ” , it held that the presence of crucifixes in ORG - school classrooms , regard being had to the meaning it should be understood to convey , did not offend against that principle . It took the view , in particular , that although the crucifix was undeniably a religious symbol , it was a symbol of NORP in general rather than of ORG alone , so that it served as a point of reference for other creeds . It went on to say that the crucifix was a historical and cultural symbol , possessing on that account an “ identity - linked value ” for the NORP people , in that it “ represent[ed ] in a way the historical and cultural development characteristic of [ GPE ] and in general of the whole of LOC , and [ was ] a good synthesis of that development ” . ORG further held that the crucifix should also be considered a symbol of a value system underpinning LAW . It gave the following reasons :

“ ... CARDINAL . At this stage , the ORG must observe , although it is aware that it is setting out along a rough and in places slippery path , that NORP , and its older brother PERSON – at least since PERSON and certainly in the ORG interpretation – have placed tolerance towards others and protection of human dignity at the centre of their faith .

Singularly , NORP – for example through the well - known and often misunderstood “ Render unto PERSON the things which are PERSON 's , and unto ... ” – through its strong emphasis placed on love for one 's neighbour , and even more through the explicit predominance given to charity over faith itself , contains in substance those ideas of tolerance , equality and liberty which form the basis of the modern secular ORG , and of the NORP ORG in particular .

CARDINAL Looking beyond appearances makes it possible to discern a thread linking the Christian revolution of DATE to the affirmation in LOC of the right to liberty of the person and to the key elements in the Enlightenment ( even though that movement , historically speaking , strongly opposed religion ) , namely the liberty and freedom of every person , the declaration of the rights of man , and ultimately the modern secular ORG . All the historic phenomena mentioned are based to a significant extent – though certainly not exclusively DATE on the NORP conception of the world . It has been observed – judiciously – that the rallying call “ liberty , equality , fraternity ” can easily be endorsed by a NORP , albeit with a clear emphasis on the third word .

In conclusion , it does not seem to be going too far to assert that , through the various twists and turns of NORP history , the secular nature of the modern ORG has been achieved at a high price , and was prompted in part , though of course not exclusively so , by a more or less conscious reference to the founding values of NORP . That explains why in LOC and in GPE many jurists belonging to the NORP faith have featured among the strongest supporters of the secular ORG . ...

CARDINAL The link between NORP and liberty implies a logical historical coherence which is not immediately obvious – like a river in a karst landscape which has only recently been explored , precisely because for most of its course it flows underground – partly because in the constantly changing relations between GPE it is much easier to see the numerous attempts by the Churches to meddle in matters of ORG , and vice versa , just like the frequent occasions on which NORP ideals have been abandoned , though officially proclaimed , in the quest for power , or on which governments and religious authorities have clashed , sometimes violently .

CARDINAL NORP Moreover , with the benefit of hindsight , it is easy to identify in the constant central core of NORP faith , despite the inquisition , despite anti - Semitism and despite the crusades , the principles of human dignity , tolerance and freedom , including religious freedom , and therefore , in the last analysis , the foundations of the secular ORG .

CARDINAL By studying history carefully , from a suitable distance , not from up close , we can clearly perceive an affinity between ( but not the identity of ) the “ hard core ” of NORP , which , placing charity above everything else , including faith , emphasises the acceptance of difference , and the “ hard core ” of LAW , which , in a spirit of solidarity , attaches value to the freedom of all , and therefore constitutes the legal guarantee of respect for others . The harmony remains , even though around those cores DATE both centred on human dignity – there have been numerous accretions of extraneous elements with the passage of time , some of them so thick as to obscure the core , particularly the core of NORP . ...

CARDINAL It can therefore be contended that in the present - day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development , and therefore of the identity of our people , but also as a symbol of a value system : liberty , equality , human dignity and religious toleration , and accordingly also of the secular nature of the State – principles which underpin our LAW .

In other words , the constitutional principles of freedom have many roots , which undeniably include NORP , in its very essence . It would therefore be something of a paradox to exclude a NORP sign from a public institution in the name of secularism , CARDINAL of whose distant sources is precisely the NORP religion .

CARDINAL NORP This court is admittedly not unaware of the fact that , in the past , other values have been attributed to the symbol of the crucifix , such as , at the time of LAW , the sign of NORP understood as the ORG religion , and therefore used to ORG and consolidate power and authority .

The court is well aware , moreover , that it is still possible DATE to give various interpretations of the sign of the cross , and above all a strictly religious meaning referring to NORP in general and ORG in particular . It is also aware that some pupils attending ORG schools might freely and legitimately attribute to the cross values which are different again , such as the sign of an unacceptable preference for CARDINAL religion in relation to others , or an infringement of individual freedom and accordingly of the secular nature of the ORG , or at the extreme limit a reference to temporal political control over a ORG religion , or the inquisition , or even a free catechism voucher tacitly distributed even to non - believers in an inappropriate place , or subliminal propaganda in favour of NORP creeds . Although all those points of view are respectable , they are ultimately irrelevant in the present case . ...

CARDINAL It must be emphasised that the symbol of the crucifix , thus understood , now possesses , through its references to the values of tolerance , a particular scope in consideration of the fact that at present NORP State schools are attended by numerous pupils from outside ORG , to whom it is relatively important to transmit the principles of openness to diversity and the refusal of any form of fundamentalism – whether religious or secular – which permeate our system . Our era is marked by the ferment resulting from the meeting of different cultures with our own , and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity , even symbolically , especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity . ...

CARDINAL In fact , religious symbols in general imply a logical exclusion mechanism , as the point of departure of any religious faith is precisely the belief in a superior entity , which is why its adherents , the faithful , see themselves by definition and by conviction as part of the truth . Consequently , and inevitably , the attitude of the believer , faced with someone who does not believe , and who is therefore implicitly opposed to the supreme being , is an attitude of exclusion . ...

CARDINAL NORP The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction , even if those concerned are not aware of it , the sole exception being NORP – where it is properly understood , which of course has not always been and still is not always the case , not even thanks to those who call themselves NORP . In NORP even the faith in an omniscient god is secondary in relation to charity , meaning respect for one 's fellow human beings . It follows that the rejection of a non - NORP by a NORP implies a radical negation of NORP itself , a substantive abjuration ; but that is not true of other religious faiths , for which such an attitude amounts at most to the infringement of an important precept .

CARDINAL NORP The cross , as the symbol of NORP , can therefore not exclude anyone without denying itself ; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such , irrespective of any belief , religious or other , which he or she may hold . ...

CARDINAL It is hardly necessary to add that the sign of the cross in a classroom , when correctly understood , is not concerned with the freely held convictions of anyone , excludes no one and of course does not impose or prescribe anything , but merely implies , in the heart of the aims set for education and teaching in a publicly run school , a reflection – necessarily guided by the teaching staff – on NORP history and the common values of our society legally retranscribed in the LAW , among which the secular nature of the ORG has pride of place . ... ”

The first applicant appealed to the Consiglio di Stato ( Supreme Administrative Court ) , which confirmed that the presence of crucifixes in ORG - school classrooms had its legal basis in LAW of DATE and LAW of DATE and , regard being had to the meaning that should be attached to it , was compatible with the principle of secularism . On that point it found in particular that in GPE the crucifix symbolised the religious origin of values ( tolerance , mutual respect , valorisation of the person , affirmation of one 's rights , consideration for one 's freedom , the autonomy of one 's moral conscience vis - à - vis authority , human solidarity and the refusal of any form of discrimination ) which characterised NORP civilisation . In that sense , when displayed in classrooms , the crucifix could fulfil DATE even in a “ secular ” perspective distinct from the religious perspective to which it specifically referred – a highly educational symbolic function , irrespective of the religion professed by the pupils . The PERSON held that the crucifix had to be seen as a symbol capable of reflecting the remarkable sources of the above - mentioned values , the values which defined secularism in the ORG 's present legal order .

In its judgment ( no . CARDINAL ) dated DATE the PERSON gave the following reasoning :

“ ... ORG has accepted on a number of occasions that secularism is a supreme principle of our constitutional order , capable of resolving certain questions of constitutional legitimacy ( among numerous judgments , see those which concern the provisions relating to the compulsory nature of religious teaching in school or the jurisdiction of the courts over cases concerning the validity of marriages contracted according to canon law and recorded in the registers of marriages ) .

This is a principle which is not proclaimed in express terms in our LAW , a principle which is rich with ideological resonances and has a history full of controversy , but one nevertheless which has a legal importance that can be deduced from the fundamental norms of our system . In reality the ORG derives this principle specifically from ORG , DATE , DATE , DATE , DATE and DATE of the LAW .

The principle uses a linguistic symbol ( “ secularism ” ) which indicates in abridged form certain significant aspects of the above - mentioned provisions , the content of which established the operating conditions under which this symbol should be understood and function . If these specific operating conditions had not been established , the principle of “ secularism ” would remain confined to ideological conflicts and could be used only with difficulty in a legal framework .

In that framework , the operating conditions are of course determined by reference to the cultural traditions and the customs of each people , in so far as these traditions and customs are reflected in the legal order , and this differs from CARDINAL nation to another . ...

In the context of this court and the problem placed before it , namely the legitimacy of displaying the crucifix in classrooms , on the part of the competent authorities acting pursuant to the regulations , what has to be done in practice is the simpler task of verifying whether that requirement does or does not infringe the content of the fundamental norms of our constitutional order , that give form and substance to the principle of “ secularism ” which now characterises the NORP ORG and to which ORG has referred on a number of occasions .

Quite clearly , the crucifix is in itself a symbol that may have various meanings and serve various purposes , above all for the place in which it has been displayed .

In a place of worship the crucifix is properly and exclusively a “ religious symbol ” , since it is intended to foster respectful adherence to the founder of the NORP religion .

In a non - religious context like a school , used for the education of young people , the crucifix may still convey the above - mentioned values to believers , but for them and for non - believers its display is justified and possesses a non - discriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner ( like any symbol ) values which are important for civil society , in particular the values which underpin and inspire our constitutional order , the foundation of our civil life . In that sense the crucifix can perform – even in a “ secular ” perspective distinct from the religious perspective specific to it – a highly educational symbolic function , irrespective of the religion professed by the pupils .

Now it is obvious that in GPE the crucifix is capable of expressing , symbolically of course , but appropriately , the religious origin of those values – tolerance , mutual respect , valorisation of the person , affirmation of one 's rights , consideration for one 's freedom , the autonomy of one 's moral conscience vis - à - vis authority , human solidarity and the refusal of any form of discrimination DATE which characterise NORP civilisation .

Those values , which have pervaded traditions , a way of life , the culture of the NORP people , form the basis for and spring from the fundamental norms of our founding charter – contained in the “ Fundamental Principles ” and the first part – and especially from those which ORG referred to and which delimit the form of secularism appropriate to ORG .

The reference , via the crucifix , to the religious origin of these values and their full and complete correspondence with NORP teachings accordingly makes plain the transcendent sources of the values concerned , without calling into question , rather indeed confirming the autonomy of the temporal power vis - à - vis the spiritual power ( but not their opposition , implicit in an ideological interpretation of secularism which has no equivalent in the LAW ) , and without taking anything away from their particular “ secular ” nature , adapted to the cultural context specific to the fundamental order of ORG and manifested by it . Those values are therefore experienced in civil society autonomously ( and not contradictorily ) in relation to religious society , so that they may be endorsed “ secularly ” by all , irrespective of adhesion to the creed which inspired and defended them .

As with any symbol , one can impose on or attribute to the crucifix various contrasting meanings ; one can even deny its symbolic value and make it a simple trinket having artistic value at the most . However , a crucifix displayed in a classroom can not be considered a trinket , a decorative feature , nor as an adjunct to worship . Rather , it should be seen as a symbol capable of reflecting the remarkable sources of the civil values referred to above , values which define secularism in the ORG 's present legal order . ... ”

The obligation to hang crucifixes in primary school classrooms was laid down in LAW no . DATE of DATE of GPE , promulgated in accordance with LAW no . CARDINAL of DATE , which provided : “ each school must without fail be equipped with ... a crucifix ” ( Article CARDINAL ) .

In DATE , DATE which saw the birth of the NORP ORG , LAW became LAW ; it provided in particular : “ the Roman Catholic Apostolic religion shall be the only religion of the State [ and ] other existing creeds shall be tolerated in conformity with the law ” .

The capture of GPE by the NORP army on DATE , following which the city was annexed and proclaimed capital of the new GPE , caused a crisis in relations between the ORG and ORG . By PERSON no . CARDINAL of CARDINAL DATE the NORP ORG unilaterally regulated relations with the ORG , granting the PERSON a number of privileges for the orderly conduct of religious activity . According to the applicants , the display of crucifixes in schools fell little by little into disuse .

During the fascist period the ORG took a series of measures aimed at ensuring compliance with the obligation to display the crucifix in classrooms .

For instance , on CARDINAL DATE ORG sent out a circular ( no . DATE ) with the following wording : “ ... in DATE in many of the GPE 's primary schools the image of GPE and the portrait of the King have been removed . That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the ORG and the unity of the Nation . We therefore order all municipal administrative authorities in the GPE to restore , to those schools which lack them , the CARDINAL sacred symbols of the faith and the consciousness of nationhood . ”

On DATE royal decree no . CARDINAL of DATE was adopted . This decree laid down the internal regulations governing middle schools ( ordinamento interno delle giunte e dei regi istituti di istruzione media ) . Article CARDINAL provided :

“ Each school must have the national flag and each classroom must have a crucifix and a portrait of the King ” .

Article CARDINAL of royal decree no . CARDINAL of DATE , approving the general regulations governing the provision of primary education ( approvazione del regolamento generale sui servizi dell'istruzione elementare ) , provides that the crucifix must form part of the “ necessary equipment and supplies in school classrooms ” .

The Lateran Pacts , signed on DATE , marked the “ Conciliation ” of ORG and ORG . ORG was confirmed as GPE 's official religion , LAW being worded as follows :

“ GPE recognizes and reaffirms the principle established in DATE Italian LAW dated DATE , according to which the Roman Catholic Apostolic religion is the only ORG religion . ”

NORP In DATE GPE adopted its LAW , Article CARDINAL of which provides : “ The ORG and ORG , each in its own order , shall be independent and sovereign ... their relations shall be regulated by FAC [ and ] amendments to the ORG accepted by both parties shall not require proceedings to revise the LAW . ” LAW provides : “ All religious creeds shall be equally free before the law ... religious creeds other than NORP shall have the right to organise in accordance with their own statutes , in so far as these are not incompatible with the NORP legal order [ and ] their relations with the ORG shall be determined by the law on the basis of agreements with their respective representatives ” .

The LAW to the new concordat , of DATE , ratified by PERSON no . CARDINAL of CARDINAL DATE , states that the principle laid down in LOC , that the NORP religion is the only ORG religion , is no longer in force .

In a judgment of CARDINAL DATE ( no . CARDINAL ) , rendered in a case which raised the question of the non - compulsory nature of NORP religious instruction in ORG schools , ORG held that the principle of secularism was derived from the LAW , ruling that it implied not that the ORG should be indifferent to religions but that it should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism .

Dealing in the present case with an application concerning the conformity of the presence of crucifixes in ORG - school classrooms with the principle of secularism , ORG ruled that it did not have jurisdiction , since the texts which required the presence of the crucifix were only regulations ( decision of DATE , no . CARDINAL ; see paragraph CARDINAL above ) . When called upon to examine this question , the Consiglio di Stato held that , regard being had to the meaning that should be attached to it , the presence of the crucifix in ORG - school classrooms was compatible with the principle of secularism ( judgment of DATE , no . CARDINAL ; see paragraph CARDINAL above ) .

In a different case , ORG had taken the contrary view to that of the PERSON in the context of a prosecution for refusing to serve as a scrutineer in a polling station on the ground that a crucifix was displayed there . In its judgment of DATE ( no . CARDINAL ) , it held that the presence of the crucifix infringed the principles of secularism and the impartiality of the ORG , and the principle of the freedom of conscience of those who did not accept any allegiance to that symbol . It expressly rejected the argument that displaying the crucifix was justified in that it was the symbol of “ an entire civilisation or the collective ethical conscience ” and – here ORG cited the terms used by the PERSON in an opinion of CARDINAL DATE ( no . CARDINAL ) – also symbolised “ a universal value independent of any specific religious creed ” .

On DATE the Minister of ORG , ORG issued the following instruction ( no . DATE ) :

“ ... The Minister

... Considering that the presence of crucifixes in classrooms is founded on the provisions in force , that it offends neither against religious pluralism nor against the objectives of multicultural education of NORP schools and that it can not be considered a limitation of the freedom of conscience guaranteed by the LAW , since it does not refer to a specific creed but constitutes only an expression of NORP civilisation and culture , and that it therefore forms part of the universal heritage of mankind ;

Having assessed , with respect for different allegiances , convictions and beliefs , the desirability of requiring all schools , within the limits of their own autonomy and by decision of their competent collegiate organs , to set aside part of their LOC to be used , without any obligation and without any fixed hours being appointed , for contemplation and meditation by those members of the school community who so wish ;

Issues the following instruction :

The ORG 's competent service ... shall take the necessary measures to see to it that :

CARDINAL ) school governors ensure the presence of crucifixes in classrooms ;

CARDINAL ) all schools , within the limits of their own autonomy , and by decision of the members of their collegiate organs , set aside part of their LOC to be used , without any obligation and without any fixed hours being appointed , for contemplation and meditation by those members of the school community who so wish ... ” .

Articles DATE , DATE and DATE of the LAW are worded as follows :

“ Everyone is entitled to freely profess their religious beliefs in any form , individually or with others , and to promote them and celebrate rites in public or in private , provided that they are not offensive to public morality . ”

“ The Republic guarantees the freedom of the arts and sciences , which may be freely taught .

The Republic lays down general rules for education and establishes State schools of all branches and grades . ... ”

“ Schools are open to everyone .

Elementary education , given for DATE , is compulsory and free . ... ”

In the great majority of member ORG the question of the presence of religious symbols in ORG schools is not governed by any specific regulations .

The presence of religious symbols in ORG schools is expressly forbidden only in a small number of member PERSON : the former GPE , GPE ( except in GPE and the département of GPE ) and GPE .

It is only expressly prescribed – in addition to GPE – in a few member GPE , namely : GPE , certain administrative regions of GPE ( ORG ) and GPE ( communes ) , and GPE . Nevertheless , such symbols are found in the ORG schools of some member GPE where the question is not specifically regulated , such as GPE , GPE , GPE , GPE , GPE and GPE .

The question has been brought before the supreme courts of a number of member GPE .

In GPE ORG has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in LAW , but without criticising such a presence in other parts of the school premises ( DATE ; ORG CARDINAL CARDINALa CARDINAL ) .

In GPE ORG has ruled that a similar NORP ordinance was contrary to the principle of the ORG 's neutrality and difficult to reconcile with the freedom of religion of children who were not NORP ( CARDINAL DATE ; BVerfGE GPE ) . The NORP parliament then issued a new ordinance maintaining the previous measure , but enabling parents to cite their religious or secular convictions in challenging the presence of crucifixes in the classrooms attended by their children and introducing a mechanism whereby , if necessary , a compromise or a personalised solution could be reached .

In GPE the ORG referred to ORG an ordinance of DATE issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in ORG - school classrooms . ORG ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of ORG and ORG guaranteed by LAW , given that it did not make such display compulsory ( DATE ; no . U CARDINAL ) .

In GPE ORG set aside a decision of ORG of DATE recommending to ORG that it should regulate the question of the presence of religious symbols in publicly run educational establishments and , in particular , authorise the display of such symbols only during religious studies lessons or in rooms used for religious instruction . ORG held in particular that the decision to display such symbols in educational establishments should be a matter for the community formed by teachers , pupils and pupils ' parents ( DATE ; no . CARDINAL ) .

In GPE ORG of Justice of GPE and PERSON , ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools , held that the schools concerned should remove them if they received an explicit request from the parents of a pupil ( DATE ; no . CARDINAL ) .


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

The respondent Government are represented by their Agent , PERSON of ORG .

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

In DATE a new concept called “ tax asset stripping cases ” ( selskabstømmersager ) came into existence in GPE . It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period , and for the sake of their own profit , “ stripping ” the companies for assets , including deposits earmarked for payment of corporation tax . Often the persons involved systematically acquired the inactive , solvent companies for the ORG own fund . The persons involved were usually intricately interconnected and collaborated about their economic criminal activities , which concerned very large amounts . According to surveys made by the customs and tax authorities , CARDINAL companies with a total tax debt exceeding MONEY ( ORG ) were stripped in the period from DATE until DATE . Following a number of legislative amendments , the trade in inactive , solvent companies largely ceased completely in DATE .

On DATE the tax authorities reported to the police that allegedly the applicant , who worked as an accountant , and a number of other named persons had committed tax asset stripping .

Unknown to the applicant , on DATE and CARDINAL DATE a ORG granted warrants to the police to search inter alia his LOC .

On the latter date the applicant was charged with tax asset stripping and the police carried out a search at his LOC , and at CARDINAL other localities , which led the attention to CARDINAL inactive solvent private limited companies .

It appeared that the largest group of companies were part of a corporate group owned by companies registered in LOC . Consequently , on DATE the authorities of the island were contacted in order to obtain information on the ownership of the group . The request was an informal letter as GPE has not signed ORG DATE . In DATE the authorities of LOC provided the material which showed that a large part of the funds of some of the groups was transferred to NORP banks .

In DATE the applicant and CARDINAL other persons lodged objections with Her Majesty ’s Attorney General of GPE , claiming that the letter of request had been executed without authority . The case was brought before ORG of PERSON on GPE , but was dismissed by a decision of DATE .

In the meantime , on DATE the police requested a court order for an international letter of request to GPE . By a ORG order of DATE , upheld on appeal by ORG of Eastern Denmark ( PERSON ) on DATE , the NORP authorities were requested to grant assistance to procure evidence for the police investigation . In DATE the NORP authorities requested more detailed information . This was submitted by ORG in GPE in DATE . By letter of DATE ORG in GPE ( ORG was notified of a decision from the NORP authorities according to which the letter of request could be substantially accommodated . Due to objections , the international letter of request was tried by CARDINAL judicial instances in GPE . Subsequently , on request of the NORP examining magistrate a supplement to the international letter of request was submitted in relation to some of the bank accounts concerned . Beforehand , since on DATE counsel for the applicant had objected to the supplement , it was approved by ORG in GPE on DATE and on appeal by ORG on DATE . During DATE numerous persons were interviewed in GPE by the NORP authorities . The NORP police , the prosecutor and counsel for some of the persons charged in the case were present during some of the interviews . In DATE the NORP authorities sent the investigation material obtained in the case to ORG in GPE , which forwarded it to the police in DATE .

In the meantime , investigations had been pursued in GPE , GPE and GPE . CARDINAL court orders were issued , including TIME discovery orders against NORP banks . A large number of the said court orders were tried by appeal instances . Furthermore , material was procured from company sellers , ORG ( Told- og PERSON ) and ORG ( Erhvervs- of GPE ) .

During the investigation , the police was assisted inter alia by a firm of accountants in order to untangle intricate corporate structures and ownership structures of companies and to enlighten tax technicalities as regards numerous financial and liquid transactions .

On DATE LAW issued an indictment against the applicant and CARDINAL co - accused , CARDINAL of whom died before the trial commenced . The indictment contained CARDINAL counts of tax assets stripping CARDINAL private limited companies , of which the applicant was indicted of CARDINAL counts involving CARDINAL private limited companies . The indictment was submitted to ORG ( PERSON ) to which , by a final ORG order of CARDINAL DATE , the case had been transferred from ORG in GPE on the latter ’s request of DATE after having been addressed by the police as to scheduling of court hearings in the case .

In DATE several procedural matters were determined by ORG that the prosecution was allowed to use the material received from the NORP authorities as evidence in the case , and that an accountant who had assisted the prosecutor was not disqualified from the case . The former issue was appealed against to ORG , which upheld the decision on DATE , and leave to appeal to ORG was refused on DATE .

On DATE a hearing was held in order to plan the course of the proceedings . It appears from the court records that ORG expected to have LOC available in DATE as it was necessary to lease LOC to accommodate the court sitting with lay judges and deputies , CARDINAL co - accused , counsel with deputies , and an archive room with space for CARDINAL sets of exhibits expected to take up CARDINAL ORG binders per set . Counsel requested that the trial be scheduled with CARDINAL DATE court DATE in consideration of those accused , who were living abroad .

On DATE ORG scheduled the case for trial DATE and DATE starting on DATE and ending in DATE .

Accordingly , in the period DATE , when the trial commenced , and DATE , when the case was set down for judgment , CARDINAL court hearings were held . The applicant , the CARDINAL coaccused , and a very large number of witnesses gave evidence . In addition , statements of accounts and a considerable amount of other documentary evidence were presented including outlines of corporate structures and money transactions . Each set of exhibits for the case took up CARDINAL ORG binders and the court records ran to approximately CARDINAL pages .

By judgment of DATE , which ran to CARDINAL pages , ORG convicted the applicant of tax assets stripping as to an amount evaded for tax purposes calculated at DKK MONEY ( equal to MONEY CARDINAL ) and attempted tax assets stripping as to DKK MONEY ( equal to MONEY CARDINAL ) . He was sentenced to CARDINAL years’ imprisonment and an amount of DKK CARDINAL was seized . In addition for an indefinite period , he was deprived of his right to establish or to become manager and/or member of a director ’s board in a private limited company , or in a company or an association which would require public approval , and of his right to practise as an accountant . The CARDINAL co - accused were convicted by the same judgment .

ORG rejected the applicant ’s complaint that the length of the proceedings had exceeded a reasonable time , finding among other things :

“ In count I , count II A and count IV a large number of companies have been traded . The structure included foreign companies with impenetrable ownership structures , and money transactions have mainly taken place in GPE . These circumstances are a good reason for a lengthy investigation . Thus , the right to a trial within a reasonable time ... has not been violated . ”

By notice of appeal of DATE the applicant appealed against the judgment to ORG of Eastern GPE . The co - accused also appealed against the judgment , and by notice of appeal of DATE the prosecution cross - appealed .

During pre - trial reviews held on CARDINAL and DATE the High ORG stated that the trial could start in DATE , however since several counsel were prevented by other trials until DATE , the trial was set to commence on DATE .

From that date and until DATE , CARDINAL court hearings were held .

During a hearing on DATE the applicant stated that he did not have the mental energy required to be present . Also , he wished that CARDINAL of his CARDINAL counsel be released . ORG stated that the medical certificate that had been submitted by the applicant was inadequate , and it thus requested that the applicant submitted a more detailed CARDINAL . The following day ORG assigned another attorney as co - counsel for the applicant . Hearings scheduled for CARDINAL and CARDINAL DATE , and CARDINAL , DATE , DATE and DATE were cancelled due to pleaded illness on the applicant ’s behalf , and his counsel requested an adjournment of the case for DATE . The issue of the applicant ’s illness was discussed , and a medical certificate was submitted to ORG ( Retslægerådet ) for an assessment . On the basis of the latter ’s opinion , on DATE , ORG found that the applicant had no lawful cause for being absent from the trial . Since then the applicant appeared before ORG .

Court hearings scheduled for CARDINAL , CARDINAL , DATE , DATE , DATE and DATE , and CARDINAL and DATE had to be cancelled in that in the period from CARDINAL DATE until DATE a claim by CARDINAL of the coaccused , joined by the applicant , had to be determined , namely as to whether the presiding judge in the High ORG should vacate his seat on the bench due to disqualification . The question was answered in the negative by ORG on DATE , and leave to appeal against this decision to ORG was refused by the Leave to Appeal Board ( Procesbevillingsnævnet ) on DATE .

During the following court hearing on DATE counsel for the same co - accused claimed an adjournment of the trial due to his client ’s illness . Thus , hearings scheduled for CARDINAL , DATE , DATE and DATE had to be cancelled . The court hearings ended in DATE . Before ORG the applicant , the CARDINAL co - accused , and CARDINAL witnesses were heard . Also , statements during ORG trial from CARDINAL witnesses were read out . In addition , statements of accounts and a considerable amount of other documentary evidence were presented , including outlines of corporate structures and money transactions . Each set of exhibits for the case took up CARDINAL ORG binders and the court records ran to CARDINAL pages . By judgment of DATE , which ran to CARDINAL pages , ORG upheld ORG judgment .

Also , ORG rejected the applicant ’s complaint that the length of the proceeding had exceeded a reasonable time . It stated inter alia :

“ Counsel have claimed , as [ they did ] before ORG , that LAW has been violated due to the extension of the trial ’s duration .

The prosecution has contested that there has been a violation of LAW .

As a starting point , a length of proceedings in a criminal trial , which DATE - from charges and searches in DATE presumably entails a breach of the requirement of a trial within a reasonable time as set out in LAW . Thus , it is incumbent on the authorities to prove that the duration was reasonable , and that the case proceeded with duly expedition without the existence of any “ dead periods ” . In this assessment , the nature of the case and its importance , its complexity , and the conduct of the accused and that of the authorities must be taken into account .

A chronological account of the proceedings has been submitted before the High ORG . ...

The case has necessitated investigation of entangled constructions of companies and group of companies with associations abroad . Furthermore , it has required an extremely comprehensive accountant work to go through the complex financial circumstances of the case and untangle the money transactions for each company . Thus and necessarily , it had to take some time to work up the investigation material and consider the matter of indictment in the case . The NORP authorities have had no influence on the proceedings in GPE as to the international letter of request , or on the process on LOC . The High Court finds that the general investigation ; the consideration of the case ; the work on accounting matters ; and the determination of procedural questions ; all have moved forward in parallel , thus avoiding any dead periods during the investigation , during the periods of scheduling of the trial or during the proceedings before ORG and ORG .

Accordingly , making an overall assessment , the High Court finds that the length of the proceedings does not entail a breach of the accused ’s rights under LAW . ”

On DATE the applicant requested that the Leave to ORG grant him leave to appeal against the ORG judgment to ORG ( Højesteret ) . The case is at present pending before the Leave to Appeal Board .


Violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant was detained on suspicion of having committed a crime punishable under LAW ( attempted kidnapping by a group ) . A report on his detention stated that eyewitnesses , including victims , had identified him as the perpetrator and that other grounds existed for suspecting him of having committed the crime .

On DATE an investigator ordered him to be detained pending trial pursuant to LAW . The investigator took into account the dangerousness and seriousness of the offence , the risk of the applicant ’s absconding and obstructing the investigation , and the need to examine his implication in other similar crimes . DATE , the order was upheld by the acting prosecutor of the north - east administrative district of GPE .

On DATE the applicant was charged on several counts , including the use of violence dangerous to life against a ORG official in the performance of his duties , attempted aggravated kidnapping by an organised group and conspiracy to murder . The investigation established that the applicant had entered into agreement with ORG , the head of an organised criminal group acting in GPE and LOC , and had commissioned him in DATE and then in DATE to beat F. and T. , who had occupied senior positions in the ORG office . F. had been beaten up by CARDINAL persons , the identity of CARDINAL of whom had not been established by the investigation , with baseball bats in the porch of his apartment block ; he had suffered open craniocerebral trauma as a result . T. had been beaten up and had received knife wounds . The investigation also established that later in DATE the applicant had commissioned the same organised group to kidnap PERSON . , for the purpose of blackmail . Each time the applicant had paid P. remuneration . He had allegedly acted on the instructions of a person whose identity had not been established by the investigation . As well as these CARDINAL criminal cases joined into CARDINAL case , the latter was joined with CARDINAL more case of infliction of bodily harm involving the same organised group .

On DATE and DATE the investigator ordered that the term of the applicant ’s pre - trial detention be extended . He stated , inter alia , that it was necessary to carry out a range of investigation measures in order to establish the identity of other persons involved in the kidnapping of Sh . and to ascertain the applicant ’s participation in that crime , to finalise the preparation of the charges and to enable the applicant to examine the materials of the case file . The requests contained the circumstances of the crimes , as established by the investigation , and the description of evidence collected by the investigation . On DATE the prosecutor of the north - east administrative circuit of GPE approved the order of DATE and extended the term of the applicant ’s pre - trial detention until DATE . The investigator ’s order of DATE was supported by the prosecutor of the north - east administrative circuit of GPE and the prosecutor of GPE and was approved , on DATE , by a deputy prosecutor general , who extended the term of the applicant ’s pre - trial detention until DATE .

The applicant ’s advocate challenged the detention as unlawful and unjustified . By a decision of CARDINAL DATE a judge of ORG of GPE dismissed the complaint . The judge found that the nature , seriousness and circumstances of the offences of which the applicant stood accused and their danger to the public warranted the detention orders . The applicant did not appeal .

On DATE the investigator ordered a further extension of the applicant ’s detention . The order reflected the state of investigation in the case against the applicant and CARDINAL other persons including what had been done since the last extension of the applicant ’s detention . Thus , CARDINAL more accomplice in the crime against F. had been identified and arrested ; evidence of participation by several other individuals in the crime against ORG had been examined ; the defendants had examined expert reports ; and more documentary evidence had been collected . The investigator submitted that it was necessary to finalise the charges against the applicant and for him to examine the voluminous case file , which would require additional time . On the basis of those considerations and having regard to the seriousness of the offences of which the applicant stood accused , the investigator ordered the applicant ’s detention to be extended until DATE . The prosecutor of the north - east administrative circuit of GPE and the GPE prosecutor supported the order and on DATE a deputy prosecutor general approved it .

On a further request by the investigator , approved by the regional and city prosecutor , a deputy prosecutor general of GPE extended , on DATE , the applicant ’s pre - trial detention further , until DATE , on the grounds that the applicant was liable to abscond , resume his criminal activity and obstruct the investigation and in view of the gravity of the offences of which the applicant stood accused and the need for him to examine the case file .

On DATE , after the investigation in the case had been completed and the indictment approved , the case against the applicant and his co - defendants was transferred to ORG for trial .

By a decision of a judge of ORG of DATE the hearing was set down for DATE and an order was made for the applicant ’s continued detention . The applicant did not appeal against the decision .

Between DATE and DATE the hearing was adjourned for reasons attributable to the applicant ’s co - defendants .

The trial commenced on DATE .

On DATE the lawyer of CARDINAL of the applicant ’s codefendants , PERSON PERSON , lodged an application seeking an order for his client to be made the subject of an outpatient psychiatric examination . The application was supported by all the other defendants and their lawyers . By a decision of CARDINAL DATE the court granted the application and adjourned the hearing , first until DATE and then until DATE .

On DATE , following a further application by PERSON PERSON ’s lawyer , supported by all the other defendants , the court ordered that PERSON PERSON be made the subject of an inpatient psychiatric examination with a view to determining whether he could be held responsible for the offences of which he stood accused . It also adjourned the hearing until the experts’ report was available and ordered that the applicant should remain in custody .

The experts’ report on PERSON PERSON ’s condition was issued on DATE and DATE Mr PERSON was brought back to his detention facility , of which the court was informed .

The trial recommenced on DATE and was then adjourned until DATE , owing to the illness of CARDINAL of the defendants and the need to summon witnesses . The hearing was held on CARDINAL , DATE , DATE , DATE and DATE .

On CARDINAL DATE the public prosecutor lodged an application , based on expert opinion , seeking an order for Mr PERSON to receive compulsory inpatient psychiatric treatment and requesting the postponement of the proceedings in consequence . On DATE the court granted the prosecutor ’s request and ordered that Mr Grachev undergo compulsory inpatient psychiatric treatment until his condition improved . The court further ruled that the examination of the case against the other defendants , separately from Mr PERSON ’s case , would undermine the thoroughness and objectivity of the trial . The court therefore adjourned examination of the case until PERSON health condition had improved . The court stated that it took into account PERSON diagnosis , which did not require lengthy inpatient treatment for him .

Submitting no objections to that decision , the applicant however requested to be released , subject to an undertaking not to leave his place of residence , referring to the uncertainty as to the duration of PERSON PERSON ’s treatment , his own lack of previous convictions , his permanent place of residence in GPE , the fact that he had a wife and small child dependent upon him for support and the fact that his state of health required regular examinations by specialists of a kind not available at the detention facility . In a decision of CARDINAL DATE ORG refused the request for release made by the applicant and his CARDINAL co - defendants on the ground of the seriousness of the offences of which they stood accused .

NORP The applicant ’s lawyers lodged an appeal against this decision , requesting that the applicant be released from custody and instead , as a preventive measure , be required to give an undertaking not to leave his place of residence . They pointed once again to the uncertainty as to the duration of Mr PERSON ’s treatment , during which time the case would lie dormant , and to the length of the applicant ’s pre - trial detention , which had begun in DATE .

Mr PERSON ’s lawyer also lodged an appeal against the decision of CARDINAL DATE . Relying on Articles CARDINAL and CARDINAL of the Convention , he complained that the unlimited extension of the pre - trial detention of his client and the other defendants in the case , including the applicant , constituted an unlawful and excessive restriction of their rights , which completely disregarded their right to liberty . In practice , the decision of CARDINAL DATE anticipated , by means of pre - trial detention , their future conviction and punishment , in breach of the principle of presumption of innocence . The lawyer also argued that the order extending the GPE pre - trial detention for an indefinite DATE until the as yet unknown date of Mr PERSON ’s recovery – exceeded permissible restrictions on human rights and freedoms .

DATE the appeals were not examined as one of the defence lawyers was on DATE leave . On DATE ORG of GPE dismissed both appeals and upheld the decision . It stated that the lower court had taken into account the experts’ opinion of the short - term character of PERSON PERSON ’s disease and ordered his compulsory treatment in accordance with the law , which provided that such treatment could be ordered if a person ’s mental state posed a danger to that person and others and required permanent and intensive observation . ORG held that the reasons given in support of the request for the applicant ’s release could not be considered cogent as the applicant stood accused of serious crimes .

On DATE , after the case file had been returned to the trial court , the hearing was set down for DATE , and then adjourned to DATE owing to the failure of the defence lawyers to appear .

On DATE the trial court , having heard evidence from the defence , who had requested the release of the applicant and his CARDINAL codefendants and substitution of the detention measure with another preventive measure not involving deprivation of liberty , granted the prosecutor ’s request and extended the pre - trial detention of the applicant and his co - defendants until DATE . The court gave as reasons for its decision the fact that the applicant and his co - defendants had been charged with a particularly serious offence ( conspiracy to murder by an organised group with aggravated circumstances ) and that there were no grounds for annulling or altering the preventive measure chosen . By a decision of DATE , at the prosecutor ’s request , a further extension in respect of the same persons was ordered until DATE , on the same ground . The court further referred to a decision of a medical committee of DATE to terminate PERSON PERSON ’s compulsory treatment . The applicant did not appeal against these decisions .

On DATE the trial resumed . On DATE the court , at the prosecutor ’s request , ordered Mr PERSON to be made the subject of an inpatient psychiatric expert examination with a view to determining whether he could be held responsible for the offences of which he stood accused , and extended the pre - trial detention of the applicant and CARDINAL other defendants until DATE on the ground of the seriousness of the offences of which they stood accused .

Mr PERSON ’s psychiatric expert examination was carried out on DATE .

On DATE ORG ordered that the hearing in the case be held on DATE . On that date it ordered that the pre - trial detention of the applicant and CARDINAL other defendants be extended from DATE until DATE inclusive , on the ground that they were accused of particularly serious offences and were liable to abscond and obstructir respective personalities . The court stated in its decision that it had had no opportunity to discuss the question of the preventive measure in respect of the applicant and the other defendants , whose pre - trial detention had previously been extended until DATE . The court noted that the case file had been kept throughout this period at the expert institution which had carried out Mr PERSON ’s psychiatric examination .

Between DATE and DATE and on DATE the hearing was adjourned for reasons imputable to the applicant ’s co - defendants . The hearing in the case ended on DATE and the court started its deliberations .

On DATE ORG delivered a judgment in the case against the applicant and CARDINAL other defendants . The applicant was convicted of attempted kidnapping as part of an organised group , inciting malfeasance in public office and aiding and abetting an assault on a ORG official . The prosecutor dropped some other charges against him , including conspiracy to murder by an organised group with aggravated circumstances . The applicant was acquitted on the remaining charges . He was sentenced to CARDINAL years’ imprisonment . The period of his pre - trial detention commencing on CARDINAL DATE was counted towards the term of his sentence .

No appeal was lodged against the judgment , which came into effect on DATE .

On DATE the ORG of GPE ordered the applicant ’s early conditional release .

Before DATE preventive measures in criminal proceedings were governed by LAW RSFSR of DATE . For its relevant provisions see the case of PERSON v. GPE ( no . CARDINAL , § CARDINAL , ORG CARDINALVI ) .

Since DATE preventive measures in criminal proceedings have been governed by LAW ( Law no . CARDINAL of DATE ) . Its relevant provisions are summarised in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) .


Violation of Art. 8;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicant was born in DATE and lives in GPE .

On DATE the NORP first - instance court of GPE pronounced the divorce of the applicant and his wife , PERSON , a NORP national . It granted the parents joint custody of their daughter , born in DATE , and placed her with the mother , regulating the applicant ’s access rights . At that time , the mother and the child lived in GPE . This decision was upheld by the second - instance NORP court on DATE .

Meanwhile , on DATE , PERSON filed a criminal complaint against the applicant with the NORP authorities , alleging that he had sexually abused their child . She further requested the suspension of the applicant ’s custody and access rights . However , in the absence of any evidence supporting her allegations , the complaint was dismissed on DATE .

On DATE , the mother took the child to GPE for DATE . The applicant was aware of this . However , in a letter dated DATE she informed the applicant that she had enrolled their daughter in a NORP school without his consent , with no intention to return her to GPE .

On DATE the applicant brought an action against the mother before the NORP Pest Central District Court . He requested the court to establish the abduction of their child by the mother and to order her to return the child to him , relying on ORG ( ORG ) no . DATE concerning GPE and ORG ( “ ORG on Recognition of Judgments ” ) and LAW ( “ LAW ” ) . ORG established that the habitual residence of the child was in GPE , because she had the centre of her life there . Moreover , it observed that having had joint custody over their daughter , neither parent could have decided on the habitual residence of the child without the approval of the other parent . ORG ordered a forensic expert examination of the parties and their daughter . The expert report concluded that abuse or indecency against the child had not been probable and therefore there were no reasons to disregard the obligation to order her return based on LAW b ) of LAW . Thus , on DATE this court established the abduction of the child and ordered the mother to take her back to GPE by DATE , or to hand her over to the applicant in GPE on DATE .

On DATE ORG upheld ORG decision , but established that the time - limit to return the child back to GPE was DATE , or DATE for handing her over in GPE . ( For the execution of this judgment , see heading CARDINAL below . )

The mother lodged a petition for review of the final decision with ORG , which shared ORG view that the legal conditions for the child ’s continued stay in GPE were absent . It assessed forensic psychology reports and concluded that the child was still emotionally attached to her father as well , thus her return to GPE would not cause her serious trauma . On DATE ORG therefore upheld ORG decision .

Following the final judgment delivered by ORG ( see paragraph CARDINAL above ) , ORG ordered the enforcement of the judgment for the return of the child on DATE .

On DATE and DATE the bailiff unsuccessfully called on PERSON to comply voluntarily with the court order .

On DATE the bailiff referred the case file to ORG in order for it to establish the method of enforcement .

On DATE the mother requested the suspension of the enforcement proceedings . The request was dismissed by the NORP ORG on DATE . It further ordered her to pay a fine of MONEY ( ORG ) ( MONEY ( ORG ) ) and warned her to comply with her obligations . It pointed out that the court could not review an enforceable decision . This decision was upheld by ORG on DATE .

Upon the bailiff ’s request , the mother ’s living conditions were examined by ORG . The attempts to promote the mother ’s voluntary compliance with her obligations were without success .

NORP Moreover , PERSON initiated an action before ORG to have the enforcement proceedings terminated . ORG dismissed her action on DATE .

On DATE ORG ordered the enforcement of the child ’s return with police assistance . The decision became final on DATE .

On DATE the bailiff invited the mother to ensure the child ’s return during the on - site proceedings to be effected on DATE .

In the meantime , on DATE the first - instance court of GPE had issued a NORP arrest warrant against PERSON for the offence of change of custody of a minor . On DATE she was arrested in GPE .

On DATE the mother was released by ORG , which refused to enforce the NORP arrest warrant . It observed that criminal proceedings were pending against PERSON before the NORP authorities for the same act ( see paragraphs CARDINAL–CARDINAL below ) , which rendered the NORP arrest warrant obsolete .

On DATE the bailiff attempted to hold on - site proceedings , which were unsuccessful as PERSON and her daughter had absconded . ORG declared them missing and issued a warrant .

On DATE the bailiff effected on - site proceedings at the primary school of the child and established that the child had not attended the classes during DATE .

On DATE the bailiff attempted to locate the mother and the child in PERSON . However , it was recognised that the address given was non - existent . With police assistance , he searched all potential buildings in the neighbourhood , without success .

NORP Moreover , the police authority carried out regular inspections at the mother ’s registered address ( on CARDINAL , CARDINAL , DATE , DATE , DATE and DATE ) in order to detect potential contact between the mother and her parents .

On DATE the bailiff ordered the stay of the enforcement proceedings as the mother and the child were staying at an unknown location .

In DATE , following a request for mutual legal assistance made by the investigating judge of the NORP appellate court , the authorities gathered information on the mother from telecommunication providers , contacted PERSON former employer , ORG of the registered place of her residence , and heard several witnesses .

ORG also monitored the database of ORG in order to obtain data as to any potential medical service provided for the mother or the child .

The child ’s school was also being monitored . Exemption from class attendance was granted by the school principal on DATE . It was established that the child failed to appear at exams scheduled for DATE and CARDINAL DATE .

The Eger Police Headquarters regularly ( on CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE and DATE ) checked the public areas and places as well as the mother ’s former address in PERSON as , according to certain information , the mother is allegedly residing in PERSON .

To date , these measures have not led to locating PERSON or her daughter .

On DATE ORG issued a certificate concerning the applicant ’s access rights established by the NORP decision of DATE ( see paragraph CARDINAL above ) based on Article CARDINAL ) of ORG .

The applicant thereafter requested the NORP ORG to enforce his access rights . The case was transferred to the competent guardianship authority on DATE . ORG dismissed his request on DATE . It established its lack of jurisdiction , relying on LAW , as proceedings concerning the child ’s abduction were pending before ORG ( see paragraph CARDINAL above ) .

On DATE ORG raised an objection against this decision , finding it unlawful . It relied on LAW , arguing that ORG not only had jurisdiction , but also a legal obligation to enforce the applicant ’s access rights . It therefore proposed that ORG decision be quashed .

The Gyöngyös District Guardianship Authority did not accept this proposal and submitted it for review to the North - Hungarian ORG , which shared ORG opinion establishing lack of jurisdiction . The applicant sought judicial review of this decision before ORG . On DATE the court dismissed the applicant ’s action , finding that it would legalise the child ’s unlawful retention in GPE by enforcing his access rights and would be contrary to LAW .

The applicant ’s access rights have not been respected ever since .

At the applicant ’s request , but in PERSON absence , the NORP first - instance court of ORG issued a preliminary injunction placing the child with the applicant and granting him exclusive custody rights on DATE .

In DATE the applicant initiated proceedings before ORG for the recognition of this judgment in GPE . Following a remittal , the case is currently pending before ORG .

On DATE the applicant filed a criminal complaint with ORG against the mother . Relying on section CARDINAL(CARDINAL ) of LAW , he considered that PERSON was guilty of endangering a minor due to not having complied with a final judgment obliging her to hand over their daughter to him .

ORG dismissed the complaint on DATE . It considered that the constitutive elements of the crime had not been fully present as the mother should have been fined for not respecting access rights . However , the fine imposed on her ( see paragraph CARDINAL ) served to enforce her obligation to hand over the child to the applicant .

In the meantime , in DATE the applicant had filed a criminal complaint with the NORP authorities for change of custody of a minor , based on section CARDINAL of LAW . On DATE ORG ordered investigations . However , finding that no enforceable decision existed concerning exclusive custody of the child , it terminated the investigations on DATE . The applicant ’s appeal was dismissed .

On DATE the applicant submitted a complaint to ORG , claiming a violation of the Regulation ( ORG ) no . CARDINAL/CARDINAL on the ORG in the Member ORG Extrajudicial Documents in Civil or Commercial Matters ( “ ORG of Documents ” ) , ORG and LAW . On DATE the ORG issued a letter of formal notice to the NORP authorities concerning the possible violation of ORG . Reply to the letter of formal notice was submitted by the Minister of ORG in DATE . The proceedings are still pending .

This Regulation entered into force on DATE ( with the exception of GPE ) and has direct effect in GPE ORG , including GPE .

“ CARDINAL . This Regulation shall apply , whatever the nature of the court or tribunal , in civil matters relating to :

( b ) the attribution , exercise , delegation , restriction or termination of parental responsibility .

The matters referred to in paragraph CARDINAL(b ) may , in particular , deal with :

( a ) rights of custody and rights of access ”

“ For the purposes of this Regulation :

the term " wrongful removal or retention " shall mean a child ’s removal or retention where :

( a ) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member ORG where the child was habitually resident immediately before the removal or retention ; and

( b ) provided that , at the time of removal or retention , the rights of custody were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . Custody shall be considered to be exercised jointly when , pursuant to a judgment or by operation of law , CARDINAL holder of parental responsibility can not decide on the child ’s place of residence without the consent of another holder of parental responsibility . ”

“ In case of wrongful removal or retention of the child , the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member ORG and :

( a ) each person , institution or other body having rights of custody has acquiesced in the removal or retention ;

or

( b ) the child has resided in that other Member ORG for a period of DATE after the person , institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and CARDINAL of the following conditions is met :

( i ) within DATE after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child , no request for return has been lodged before the competent authorities of the Member ORG where the child has been removed or is being retained ;

( ii ) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph ( i ) ;

( iii ) a case before the court in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to LAW ;

( iv ) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention . ”

“ CARDINAL . Where a person , institution or other body having rights of custody applies to the competent authorities in a Member ORG to deliver a judgment on the basis of LAW of DATE on ORG ( hereinafter " the DATE LAW " ) , in order to obtain the return of a child that has been wrongfully removed or retained in a Member ORG other than the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , paragraphs CARDINAL to CARDINAL shall apply . ...

A court to which an application for return of a child is made as mentioned in paragraph CARDINAL shall act expeditiously in proceedings on the application , using the most expeditious procedures available in national law .

Without prejudice to the first subparagraph , the court shall , except where exceptional circumstances make this impossible , issue its judgment DATE after the application is lodged . ...

Notwithstanding a judgment of non - return pursuant to LAW , any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with LAW below in order to secure the return of the child . ”

“ CARDINAL . A judgment given in a Member State shall be recognised in the other Member GPE without any special procedure being required . ”

“ A judgment relating to parental responsibility shall not be recognised :

( c ) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally ; ... ”

“ CARDINAL . This Section shall apply to :

( a ) rights of access ;

and

( b ) the return of a child entailed by a judgment given pursuant to LAW . ”

“ CARDINAL . The rights of access referred to in Article CARDINAL ) granted in an enforceable judgment given in a Member ORG shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member ORG of origin in accordance with paragraph CARDINAL .

Even if national law does not provide for enforceability by operation of law of a judgment granting access rights , the court of origin may declare that the judgment shall be enforceable , notwithstanding any appeal . ”

“ CARDINAL . The return of a child referred to in DATE ) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph CARDINAL .

Even if national law does not provide for enforceability by operation of law , notwithstanding any appeal , of a judgment requiring the return of the child mentioned in LAW ) , the court of origin may declare the judgment enforceable . ”

“ CARDINAL . The enforcement procedure is governed by the law of the Member State of enforcement .

Any judgment delivered by a court of another Member ORG and declared to be enforceable in accordance with LAW or certified in accordance with LAW shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member ORG . ”

“ In relations between Member GPE , this Regulation shall take precedence over the following LAW in so far as they concern matters governed by this Regulation :

( e ) LAW of DATE on ORG . ”

GPE acceded to this Convention on DATE , promulgating it in LAW no . DATE .

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

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

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

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

According to section CARDINAL ) of the LAW , the obligor is first called to voluntarily fulfil his or her obligation within a given deadline . In case of non - compliance , the bailiff immediately submits the case file to the competent court in order to determine the method of enforcement .

The possible methods of enforcement are governed by section CARDINAL of the LAW and include the possibility to impose a fine up to ORG CARDINAL,CARDINAL which may be renewed . Moreover , the court may order the enforcement with police assistance . In such cases , the bailiff sets a date for the on - site proceedings and informs the competent guardianship authority , the obligor , the applicant and the police . If the child to be returned can not be found at his or her place of residence , the bailiff orders a search warrant .