Preliminary objections rejected (estoppel, non-exhaustion of domestic remedies);Violation of Art. 3 with regard to inhuman treatment;Not necessary to examine Art. 3 with regard to inhuman punishment;Violation of Art. 8 and P1-1;Violation of Art. 13;Not necessary to examine Art. 18;Not necessary to examine existence of a practice adopted by the authorities;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants are NORP citizens of NORP origin born in DATE , DATE , DATE and DATE respectively . At the time of the events giving rise to their application , the applicants and their families were living in the town of ORG in GPE ( south - east GPE ) . The application concerns the applicants ' allegation that the security forces deliberately destroyed the town of ORG , including their houses and other possessions , as an act of retaliation for the inhabitants ' alleged sympathy for the ORG .

The facts of the case , particularly concerning events on or CARDINAL and DATE , are disputed by the parties .

The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL ) . The Government 's submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) .

The Commission , in order to establish the facts disputed by the parties , conducted an investigation with the assistance of the parties , pursuant to former LAW ( a ) of the LAW . CARDINAL delegates of the Commission heard the applicants in GPE from DATE as well as the following CARDINAL witnesses : PERSON , daughter of the applicant PERSON ; ORG , sister of the applicant GPE ; Türkan , PERSON and PERSON , respectively the step - mother , father - in - law and mother - in - law of the applicant PERSON ; PERSON , chief constable of the Lice police ; PERSON and ORG , public prosecutors ; PERSON Delidere , deputy mayor of ORG ; PERSON , judge at ORG ; PERSON , Governor of GPE ; PERSON , commander of ORG central gendarme station ; PERSON PERSON , commander of ORG district gendarmerie ; PERSON , commander of ORG gendarme commando unit ; and PERSON , gendarme investigator appointed by ORG .

A further CARDINAL witnesses , who had been involved in the damage assessments carried out in ORG , had been summoned but did not appear before ORG .

The DATE 's evaluation of the evidence and its findings of fact are set out in its report of DATE and are summarised in Section D below ( paragraphs CARDINAL - CARDINAL ) . The applicants accept the ORG 's findings of fact .

Section E ( paragraphs CARDINAL - CARDINAL ) contains excerpts of the summary of the evidence given to ORG Delegates by PERSON and PERSON . Section F ( paragraphs CARDINAL - CARDINAL ) sets out the documents submitted by the parties to the Commission and the ORG relating to the assessment of damage .

Lice was a small town with a population of , very approximately , CARDINAL people . Following an earthquake in DATE many of the houses had been rebuilt in materials which , if set alight , burned easily . Many of the citizens had built stables close to their houses out of mud ; these offered greater protection from fire . The official buildings were more substantial . ORG was built on a hillside , the northernmost part of the town being significantly higher than the southern side .

There had previously been considerable ORG activity both within and in the vicinity of ORG . Attacks within ORG were directed against ORG buildings and occurred at TIME . In the surrounding area , attacks were not confined to TIME of darkness . A short time before the events at issue there had been an operation outside ORG which resulted in the bodies of CARDINAL dead terrorists being brought to ORG for the necessary administrative formalities to be carried out .

On DATE a large scale , pre - planned operation was carried out in ORG by security forces , notably gendarmes , who opened fire indiscriminately . Before firing commenced , artillery had been placed across the ORG road , people in coffee shops had been instructed by gendarmes to go home and children whose parents were in the security forces had been collected from school . Soon after the firing started , helicopters arrived . Some of these were combat helicopters , rather than troop carriers , and machine guns operating out of them were used to fire into the town . Shots were also fired from , notably , the police headquarters , the gendarme commando unit compound , the gendarme station and the regional boarding school where military units were stationed . There was no ORG presence in the town and there was no incoming fire , which explains why these security buildings sustained little or no damage .

Any clashes between the ORG and the security forces that took place on DATE occurred to the south and south - east of ORG . In the morning , a police vehicle had come under attack on the ORG road as it made its way to a petrol station . DATE , the ORG commando unit which had left town early in the morning to conduct an operation elsewhere was attacked as it attempted to re - enter ORG near the creek which runs from north to south to the east of Lice .

NORP The residents of the north - westerly neighbourhood of ORG , where the houses of all applicants except PERSON were situated , heard the sounds of bullets impacting on the walls of their homes and stables . They saw members of the security forces driving round in armoured vehicles , firing randomly , and they also saw them on foot – the security forces were not being fired at . They saw and heard helicopters and heard explosions close by , just after the helicopters had passed overhead .

PERSON house in the ORG neighbourhood in the south - east of ORG was deliberately set alight by security forces on DATE . The houses of the other applicants were deliberately burned by security forces the following morning , after the shooting had stopped . At TIME people were ordered out of their houses by security forces without being given the opportunity to gather their possessions . The first group , consisting of the households of the applicants PERSON and PERSON ORG and their neighbours , was gathered in an open area opposite their homes . The security forces broke down doors and/or windows and set fire to the houses with the use of a weapon in the shape of a long tube . The houses situated lower down in the neighbourhood were already on fire by the time the households belonging to the family of the applicant PERSON were ordered out of their homes and taken to join the others . The family of the applicant PERSON were made to leave their home later and by that time the group gathered in the open area had already left for the square near the police headquarters .

A large number of people were made to wait in that square for TIME for the arrival of the Provincial Governor . The Governor , speaking in NORP , told the people that the ORG was responsible for the destruction . A middle - aged man and a young woman protested that the soldiers had set fire to the houses ; the man was taken away and beaten up , the woman was arrested . Following the Governor 's speech a curfew was imposed . Upon returning to their houses the applicants found nothing but a pile of ashes . After the curfew was lifted they left ORG .

The applicants complained to the public prosecutor . He did not formally record their complaints but he did make arrangements for damage assessment reports to be drawn up . The applicants received no compensation . No investigation was launched into the actions of the security forces until the notification of the present application to the Government by the ORG , despite the applicants ' complaints and allegations of a similar nature being widely reported in the media .

On DATE , at TIME , the ORG launched an attack on ORG which continued until TIME . The security forces had to respond . Despite the precautions taken by the security forces , CARDINAL of their members were killed and CARDINAL was injured . Among the civilian population CARDINAL people died and CARDINAL were injured . In the course of the ORG attack and the defence by the security forces certain houses and shops were damaged .

The ORG acted immediately in support of the inhabitants of ORG . Tents were distributed . Buildings and shops that had been damaged were repaired after the damage had been assessed . Money was paid to shop owners whose merchandise had been damaged . Houses were repaired ; however , no money was paid to house owners .

In the town of ORG a large part of the population lived in prefabricated housing , erected after an earthquake . These dwellings were made of materials which , if set alight , burned easily .

In DATE there was a sizeable security force presence based in ORG . There was a police force and a central gendarmerie . The district gendarmerie headquarters was also based in ORG , sharing a building with the central gendarmerie . There was also a commando unit , attached to the gendarmerie and stationed in its own compound . According to the commander of that unit , PERSON , that compound also housed a mechanised infantry company . In addition , there appeared to have been an infantry battalion billeted at or near the regional boarding school at the relevant time .

The evidence obtained concerning the frequency of attacks carried out on ORG by the ORG was contradictory . Most of the Government witnesses stated before the Delegates that official buildings were attacked by terrorists on a regular basis and they named a number of buildings which had been destroyed by terrorists . A number of the applicants and their witnesses , however , contended that no clashes had taken place in or around ORG , or that such clashes had been confined to the surrounding areas and the mountains . In their final observations to the Commission , the applicants , referring to newspaper cuttings , submitted that the ORG had avoided attacking ORG for DATE in order to spare the civil population . Although this tallied with the testimony of LOC , who said that there had been clashes in the past but that they had stopped , PERSON Delidere and PERSON PERSON told the Delegates that there had been clashes , tension and violence in ORG prior to DATE , Delidere adding that no one in ORG would go out after dark .

From other cases that the ORG had dealt with concerning events in south - east GPE , it had become clear that ORG activity was rife in DATE . The evidence with which it was presented in the instant case did not persuade the ORG that this level of ORG activity would have been significantly different in ORG . The ORG further found credible the evidence – offered by both the applicants ' and the Government 's witnesses DATE that ORG attacks mainly took place at TIME . ORG also found it established that about a fortnight prior to the events at issue there had been an incident outside ORG during which CARDINAL terrorists were killed and their bodies taken to ORG .

The Commission was prepared to accept , however , that those applicants and witnesses who professed to have no knowledge whatsoever of ORG activities in ORG or its vicinity may well have done so out of fear , and it considered that this did not necessarily affect the credibility of the rest of their testimony . It noted in this respect that police chief constable GPE and the gendarme officers PERSON and PERSON indicated that the voicing of accusations against the ORG could well have adverse consequences for the individual concerned .

The Commission noted that according to the applicants , the town of ORG was not attacked by the ORG on DATE but was deliberately destroyed by security forces in a pre - planned operation . In their view , the most likely motive for this action , given previous incidents in the town , was to terrorise the local population and to ' teach them a lesson ' for their alleged sympathy for the ORG .

Also according to the applicants , there was no evidence , either in the form of casualties or damage to security buildings , of any ORG presence in the town on DATE . They nevertheless conceded that the attacks on the police vehicle and subsequently on the returning commando unit which , they submitted , took place outside the town , to the south - east , could plausibly be attributed to terrorists .

The Commission noted that the position of the petrol station where the police vehicle was shot at was not indicated on the map provided by the Government ( PERSON to the ORG 's report ) . On the map submitted by the applicants it featured ( as “ Garage ” ) just outside ORG ( Appendix III to the ORG 's report ) . Neither map containing an indication of scale , it was difficult to assess how far outside the town the petrol station was situated . Nevertheless , it did not appear to be in dispute that the shots fired came from the LOC rather than the town .

The Commission was less inclined to accept , however , that the attack on the returning commando unit also occurred outside the town . It observed that according to the gendarmerie incident report of CARDINAL DATE , the armoured vehicle which was to collect the commando unit was sent to an area in the vicinity of the ORG neighbourhood , that Şahap PERSON 's report described this area as situated “ in the south of the district and to the south of the commando unit compound ” and that in his oral testimony Mr PERSON stated that he had instructed the commando unit to enter ORG through the creek bed in the ORG neighbourhood to the south of the commando unit compound . Again , in the absence of an indication of scale on the maps it was difficult to place this event with accuracy , but it would appear that the creek mentioned ran quite close to the inhabited area of the ORG neighbourhood . More importantly , Mr PERSON added that shots had been fired from houses facing the creek . The ORG found that the evidence before it thus pointed to a presence of ORG members or militiamen [ Nota : Militiamen : term used to describe members of the civilian population who provide the ORG with food , shelter and/or information . ] in at least some part of the town .

The applicants also argued that the availability of helicopters very soon after the shooting started served as a further indication of the planned nature of the operation . The ORG noted that a considerable number of witnesses , including members of the security forces , testified to the presence of helicopters . Both in his report and in his account to the Delegates , Şahap ORG related how helicopters had been used to transport injured persons , including General PERSON , to hospital in GPE and how armed Cobra helicopters had been deployed . It was only police chief constable PERSON according to whom just CARDINAL helicopters had briefly flown over GPE around TIME : CARDINAL a troop carrier and CARDINAL with fire - power which had been sent in order to enable the first helicopter to land but which had returned to ORG upon learning that that first helicopter had been forced to put down at PERSON . The Delegates found PERSON an evasive and rather reluctant witness who was unwilling to acknowledge pieces of information unless these were directly put to him from the various incident reports . Although his ignorance of the actions of the various gendarmerie units appeared genuine and he might therefore not have had direct knowledge of the request for helicopters emanating from the gendarmerie , the Commission considered it scarcely credible that he would not have become aware of the presence of these helicopters as events unfolded .

As to the time of arrival of the various helicopters , GPE told the Delegates that he had seen CARDINAL helicopters arrive from the direction of ORG TIME after the shooting had commenced . ORG stated that helicopters had been flying around throughout DATE . The Commission observed that it appeared from PERSON account that CARDINAL helicopter , with General PERSON on board , had landed at the commando unit compound TIME and also that the commando unit 's single helicopter had been sent to ORG early on in DATE . Although there had , therefore , been helicopters flying over ORG at an early stage , the helicopters used to transport the wounded and the armed Cobra helicopters did not arrive until later . The Government denied that any orders had been given to the helicopter forces prior to the events . However , they failed to comply with the ORG 's request to submit the operational orders for these forces . The ORG found this regrettable , given that the orders would presumably have been able to clarify at what time the helicopters had taken off .

Although PERSON was adamant that no shots or bombs had been fired from helicopters , the Commission found it established that armed helicopters were deployed and that shots were fired from them . However , it remained in dispute whether this shooting was at all directed at populated areas or , as Mr PERSON maintained , confined to the areas to the north of ORG . The ORG found some strength in the argument that indiscriminate gunfire from helicopters over the town would have endangered the security forces on the ground , especially if , as the applicants alleged , members of these forces were moving around on foot .

In spite of the above , the ORG considered that no clear picture of events emerged from the account , given both in writing and orally , by members of the security forces . In this context it noted in the first place the diverging recollections of the police on the one hand and the gendarmerie on the other . The differing accounts relating to the presence and number of helicopters had already been addressed . In addition , whereas police chief constable GPE estimated that CARDINAL terrorists had been ensconced in the mosque , gendarme officer PERSON put this number at CARDINAL and reckoned that in the town as a whole a maximum of CARDINAL terrorists had been present . The ORG was struck by the apparent lack of communication and coordination between the police and gendarmerie which the oral testimony of PERSON in particular brought to the fore : even after the events , this official , who was in charge of the local police force , appeared to be in the dark about many aspects of what had transpired on DATE .

The successful escape of all terrorists allegedly present in the town was also rather surprising , as this was said to have occurred at a time when the security forces would by far have outnumbered the terrorists . Even if the ORG accepted that the terrorists ' escape route , northwards through the creek to the west of the ORG neighbourhood , was impossible to secure , it was not clear how they would have reached that part of the town . This question was even more pertinent in respect of the terrorists allegedly hiding in the mosque and who only had CARDINAL gates available to them to make their way out of an otherwise walled - in area .

The Commission further observed that no satisfactory explanation had been provided for the limited amount of damage sustained by buildings belonging to the security forces , despite the fact that these were said to be the terrorists ' main targets . It noted that the police headquarters was not even included in the report of determination of damaged buildings . Given that these buildings were allegedly not only subjected to gunfire but also to rocket attacks , the ORG was not convinced that the mere fact that these buildings were made out of more solid materials than most of the houses could account for this .

Although the ORG was thus of the opinion that a disturbing amount of relevant questions remained unanswered , it considered this an insufficient basis for a conclusive finding that no clash whatsoever took place on DATE , particularly given that it had similarly not been able to rule out a terrorist presence in some part of the town .

PERSON submitted that on DATE his house and his barn situated in the ORG neighbourhood were deliberately set alight by soldiers .

It was not in dispute that his house was damaged and that an assessment of the damage was carried out . PERSON told the Delegates that he had not obtained a copy of the relevant documents relating to the assessment , but the Government provided the file number under which his request for an assessment had been registered . Moreover , PERSON property was listed in the report on determination of damaged buildings as having sustained medium damage . While the foregoing allowed the ORG to find it established that PERSON property was damaged , the parties did not agree on whether the security forces or the ORG caused the damage , and the Commission therefore had to assess the evidence relating to this issue .

The Commission noted that it had serious doubts about the accuracy of the record of the search of a house dated DATE according to which a number of empty PERSON cartridges were found in Mr PERSON 's house . In this respect , it noted in the first place that PERSON told the Delegates that it would have been impossible to find anything amongst the burned remains of his property . More importantly , it appeared that PERSON was at no stage questioned by the authorities about these cartridges : neither in DATE following DATE despite the facts that a considerable number of people had been arrested , that PERSON had been staying near his home and that he had in fact remained in ORG longer than many other people – , nor on the occasion when he was asked to make a statement to a public prosecutor DATE after the event . Indeed , the assertions that cartridges were found in his house struck the Commission as implausible or at least very doubtful .

It was true that there were some discrepancies between PERSON statement to the ORG branch of ORG ( “ HRA ” ) and his testimony before the Delegates , notably with regard to the question whether he attended the speech given by ORG on DATE . According to the statement to the ORG this had been the case , but before ORG said that he was not aware of any such speech having been made and he had not attended it .

The wording of the part of PERSON statement to the ORG that related to the Governor 's speech was very similar to the wording used in the statements of PERSON and PERSON and it seemed likely that parts of CARDINAL statement were copied and used in respect of other applicants . ORG , recalling that it had previously had occasion to remark critically on the accuracy of statements taken by the ORG branch of the ORG , stressed that it could not be expected to guess at possible explanations for inaccuracies encountered in such statements .

The Delegates ' general assessment of PERSON oral evidence was that it was somewhat confused but , nevertheless , frank and convincing . In their observation of PERSON demeanour the Delegates obtained the impression that he was sincere in his testimony and that he was a credible witness . The Delegates were of the opinion that any discrepancies between PERSON oral evidence and his statement to the ORG were due more to a lack of attention to particular detail than indicative of any untruthfulness in his account . ORG was prepared to accept that this might explain why PERSON told the Delegates that his daughter PERSON had been in his house on DATE whereas according to his statement to the HRA NORP was married and living in GPE . It appeared in any event from his oral evidence that after the lifting of the curfew PERSON family had left ORG and had moved in with his daughter in ORG so that , regardless of whether NORP was in ORG or not on DATE , it did not appear in dispute that her home was in ORG .

While the Commission found that it could not be excluded that on DATE a clash took place between the ORG and the security forces and that there could well have been a presence of either ORG or militiamen in the ORG neighbourhood where PERSON house was situated , it did not consider the possibility of such a clash having occurred to be sufficient to cast doubt on the veracity of PERSON affirmations regarding the origin of the damage to his property . Moreover , his account was on this point entirely consistent with the allegations made by the other applicants in regard to the destruction of their property .

Making a global assessment , the ORG found it established that PERSON property and possessions were deliberately burned by security forces on DATE . As a result of this destruction Mr PERSON 's family moved to ORG , followed some time later by PERSON PERSON himself .

The Commission noted that it was not in dispute that on TIME DATE the shooting had come to an end . It was , moreover , not in dispute that the houses of the applicants PERSON , PERSON , GPE and PERSON in the NORP neighbourhood were destroyed – this was confirmed by the report on determination of damaged buildings .

According to the eye - witness accounts of events on DATE given by the applicants PERSON and PERSON and the witnesses Türkan , PERSON and PERSON , GPE and PERSON , soldiers came to the LOC neighbourhood that morning , ordered the people out of their homes and proceeded to set the houses alight . Most of these witnesses also described how the houses were set alight either by a pipe - shaped instrument or by something being thrown into the houses , GPE mentioning both methods . PERSON saw his own house being set on fire by soldiers and PERSON and PERSON had witnessed this as well . Moreover , ORG and Türkan , PERSON and PERSON saw PERSON house on fire . These witnesses , except for PERSON , also saw PERSON house burning . Türkan and PERSON saw GPE house on fire . Moreover , Türkan Ekmekçi saw soldiers surrounding the house of PERSON the moment this caught fire . PERSON and PERSON saw that PERSON house was on fire .

Several witnesses told the Delegates that the soldiers who burned the houses had operated in groups . The Commission observed in this respect that teams made up of members of various commando units were active inside the town on TIME DATE . According to the commando unit commander PERSON these teams carried out searches .

Most of the applicants and witnesses concerned stated that before they were made to go to the square in front of the police headquarters , where they were to be addressed by ORG , they had been gathered in an area near the school except for the PERSON family who were the last to leave the neighbourhood . Upon their return to the ORG neighbourhood they found their houses burned down .

The Delegates found these applicants and witnesses convincing , even if the evidence of the more elderly ones was at times somewhat confused . The ORG considered that their accounts were detailed and on the whole consistent .

The Government 's witnesses maintained , however , that no houses were set alight on DATE but that houses had burned down DATE as a result of fighting between the ORG and security forces . Yet those inhabitants of the ORG neighbourhood who appeared before the Delegates and who had been in ORG on CARDINAL and DATE were adamant that their houses had still been intact at daybreak of that DATE . In this respect the Commission found significant the assumption expressed by the police chief constable PERSON that the people of Lice would have slept in their own homes in TIME CARDINAL DATE or perhaps , because they were scared , in the house of a neighbour or of relatives . He appeared to discount the fact that if CARDINAL houses had been destroyed in the course of DATE it would have been impossible for people to stay in their own homes or those of most of their neighbours and relatives . This also led the Commission to make the observation that in all likelihood there would have been many more casualties and injured if all of the CARDINAL houses that ended up damaged or destroyed had caught fire on DATE since this implied that a very large number of people would have been out in the open , looking for shelter , perhaps attempting to put out the fires , amidst the heavy gunfire of DATE . The testimonies of the afore - mentioned applicants and witnesses before the Delegates , on the contrary , contained convincing accounts of how they had spent TIME of CARDINAL DATE sheltering from gunfire rather than fire . At no stage had this evidence been disputed or any kind of suggestion made as to where these people would have spent TIME if they were not where they said they were .

The Commission thus accepted that ORG , for instance , spent TIME CARDINAL DATE in her brother PERSON 's house . PERSON and PERSON Ekmekçi took shelter in their barn on DATE and spent TIME either in that barn or , as PERSON stated , in their house – PERSON not specifically mentioning where she spent TIME . Consequently , the destruction of GPE house and PERSON house and barn , as documented in the report on determination of damaged buildings must have taken place after DATE . While this element deprived the account presented by the ORG 's witnesses of credibility , it rendered that of the CARDINAL applicants concerned all the more probable .

Having regard to the evidence as a whole , the ORG found that the property and possessions in ORG of the applicants PERSON , PERSON , GPE and PERSON were deliberately burned by security forces on DATE . This led to these applicants and their families leaving the town .

The Commission noted that no investigation was lodged into allegations of wrongdoing on the part of the security forces until the present application was referred to the respondent Government , despite the fact that a number of Government witnesses told the Delegates that , not long after the incident , they had become aware of the existence of allegations that houses had been burned deliberately by security forces . Police chief constable PERSON had read reports to that effect in the newspapers and judge PERSON had heard women voice such accusations while he was carrying out damage assessments , but neither man appeared to have seen any cause to inform the public prosecutor . PERSON had also been apprised of these allegations through newspaper- and television reports . In the light of this evidence , PERSON statement that no newspapers were available appeared untrue .

The applicants PERSON and PERSON stated that they went to the public prosecutor 's office but that they did not receive any help . However , public prosecutor PERSON told the Delegates that he had not received any complaints of security forces deliberately having burned down houses . Even though the Commission could not rule out the possibility , put forward by PERSON , that people had in fact gone to the judge of the Magistrates ' Court rather than to him , it found it nevertheless peculiar that PERSON would not have read about allegations of wrongdoing by the security forces in the newspapers whereas PERSON and PERSON had . It is clear that various newspapers reported the allegations and the ORG was less than impressed with PERSON statement that he would have made enquiries into the underlying facts of such reports had he read them .

The Commission further observed that the investigation launched after the present application was brought to the attention of the ORG , and which ended with a decision of non - prosecution being taken by ORG , still did not address the complaints of CARDINAL of the CARDINAL applicants , namely that their houses had been burned on CARDINAL rather than DATE . Finding that he lacked jurisdiction , ORG public prosecutor PERSON referred the investigation to ORG , after having obtained statements from CARDINAL of the applicants . PERSON , who was in charge of the subsequent investigation , requested the police to take statements from the applicants but it appeared that he drew up his report on the matter at a time when a statement from CARDINAL of the applicants , PERSON , had in fact been taken . The Commission noted that although this statement contains a very clear accusation of wrongdoing on the part of the security forces , Mr PERSON did not judge it necessary to hear any security force personnel . From the text of his report and his testimony before the Delegates , it seemed to the Commission that his attitude towards the complaints brought by the applicants was seriously prejudiced and that these complaints did not receive serious consideration .

In conclusion , the ORG found that no effective investigation was carried out .

The following are excerpts from the summary of the oral evidence as set out in the ORG 's report ( § § CARDINAL - CARDINAL ) , given to ORG Delegates by PERSON , a judge in ORG at the relevant time :

“ CARDINAL applications for damage assessment had subsequently been filed . Such an assessment could only be carried out if a person requested it , and the findings of the on - site inspection would serve as the basis for any future law - suit .

The owners of the property had received a copy of the damage assessment report . Such a report constituted evidence . A claim for compensation could subsequently be filed with the administrative courts . Not all the people had understood this . Some had thought that they were going to receive material assistance or money directly from him . Although he had not been obliged to do so , he had usually attempted to explain that they had to apply to the administrative courts .

He did not know if any other teams had collected evidence as to the cause of the fires . He did , however , think that a team came from the office of the Provincial Governor to establish the extent of the destruction to property . ”

The following are excerpts from the summary of the oral evidence as set out in the ORG 's report ( § § CARDINAL - CARDINAL ) , given to ORG Delegates by PERSON , Governor of GPE province at the relevant time :

“ He had gone to ORG a little after TIME on DATE . He had informed the security forces TIME beforehand that he wanted to find out about the problems of the citizens and determine in what way they could be helped . ... He had ... found a group of CARDINAL people waiting for him in an open area near the police headquarters . He assumed that they had been told by the security forces that they could ask him for assistance . ...

Using a car microphone he had then made a speech in which he had emphasised the harmfulness of terrorism . He had assured the people that the ORG would compensate all the damage they had suffered .

All the people had asked for was for their damage to be repaired . He had sent CARDINAL technical committees to ORG to have the damage suffered by each and every person determined . He had ordered for the shops to be repaired . In order to secure normal living conditions he had given priority to the shops . ...

The damage assessment which he had ordered only concerned buildings and not the contents of those buildings . Within the limits of the budget of the province he had provided the necessary help . He had subsequently sent the assessments to GPE and had asked the Government for assistance . ... ”

In the proceedings before the ORG , the applicants submitted a “ Report on Determination of Damaged Buildings ” , which had been given to the ORG by the ORG public prosecutor . The third section of this report lists CARDINAL owners of CARDINAL private homes and/or stables and the extent of damage sustained by these properties ( the preceding sections of the report concern commercial premises and public buildings ) . According to this section of the report , the houses of PERSON ( spelled PERSON ) , Nadir Doman ( spelled PERSON ) and PERSON were destroyed , the house and stable of PERSON were destroyed , and the house of PERSON sustained medium damage .

In the proceedings before the ORG the applicants , apart from PERSON , also submitted experts ' reports relating to the inspections carried out at their request by a judge of ORG and an independent expert . These inspections were aimed at establishing that the roof and walls of their houses had burned down and collapsed , that their possessions inside the houses had burned , as well as at the identification of the remains .

On DATE , and again on DATE , the ORG submitted the documents of this damage assessment procedure “ in relation to the properties of PERSON ” .

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

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

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

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

According to the applicants , this Article grants impunity to the governors and reinforces the powers of the regional governor to order the permanent or temporary evacuation of villages , to impose residence restrictions and to enforce the transfer of people to other areas . Damage caused in the context of the fight against terrorism would be “ with justification ” and therefore immune from suit .

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

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

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

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

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

The Criminal Code makes it a criminal offence :

– to make an unlawful search of an individual 's home ( Articles CARDINAL and CARDINAL ) ;

– to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or in case human life is endangered aggravated arson ( Article CARDINAL ) ;

– to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or

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

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution ( LAW . Complaints may be made in writing or orally . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

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

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

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

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


The applicants , PERSON , PERSON and PERSON , are NORP nationals , born in DATE , DATE and DATE respectively , and they live in GPE . They are represented before the Court by PERSON , a lawyer practising in GPE .

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

In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated CARDINAL plots of land belonging to the applicants in GPE . A committee of experts assessed the value of these plots of land and this amount was paid to them when the expropriation took place .

On DATE , following the applicants’ request for increased compensation , ORG awarded them an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum .

On DATE ORG upheld the decision of the first - instance court . The due amount , which was MONEY ( TRL ) including the interest , was paid to the applicants on DATE .

Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest was increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .

A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , § § CARDINAL - CARDINAL .


The CARDINAL applicants are Mr PERSON , a NORP and NORP national born in DATE , PERSON , a NORP national born in DATE , and their children , PERSON , a NORP and NORP national born in DATE , and ORG , a NORP and NORP national born in DATE . They live in GPE ( GPE ) and were represented before the ORG by Mr PERSON and PERSON NORP PERSON , CARDINAL lawyers practising in GPE .

The applicants belong to a NORP community which is strongly attached to the Bible and reject the attendance of private or ORG schools for religious reasons . The applicant parents find that school education does not suit their beliefs since sex education is taught , mythical creatures such as witches and dwarfs appear in fairy tales during school lessons , and physical and psychological violence among pupils at school is on the increase .

They educate their children at home in accordance with the syllabus and materials of the “ ORG ” , an institution based in PERSON which is not recognised as a private school by the ORG . The institution specialises in assisting devout NORP parents in educating their children at home . The school ’s syllabus contains both books and materials which are used by ORG or private schools and materials specially prepared to support the education of religious beliefs . Teaching by parents is supervised by staff trained by ORG . The teaching is supplemented by occasional gatherings of parents , children and staff members .

The applicant parents applied for their children to be exempted from compulsory primary school attendance and for permission to educate them at home . The third and fourth applicants reached the age for compulsory school attendance in DATE and DATE respectively . At present , they do not attend a private or ORG school .

On DATE ORG ( PERSON ) rejected the application pursuant to section CARDINAL(CARDINAL ) , in conjunction with section CARDINAL(CARDINAL ) , of GPE ( PERSON ) . ORG ( ORG ) dismissed an objection by the applicants on DATE .

On DATE ORG dismissed a request by the applicants for exemption from compulsory primary - school attendance . The court noted that LAW granted the parents both freedom of religion and the right to educate their children with regard to religious and philosophical convictions , which also included the negative aspect of keeping their children away from convictions which would be harmful in their opinion . That freedom , however , was restricted by the ORG ’s obligation to provide education and tuition . Hence compulsory schooling was not a matter for the GPE discretion . The applicant GPE wish to let their children grow up in a “ protected area ” at home without outside interference could not take priority over compulsory school attendance . Even if the children could be sufficiently educated at home , the ORG ’s obligation to provide education under LAW would not be met if the children had no contact with other children . Attending a primary school , with children from all backgrounds , would enable the children both to gain their first experiences of society and to acquire social skills . Neither would be possible if the parents were authorised to educate the children at home , in particular because the applicant parents had openly stated that they wished to avoid their children having regular contact with other children . The court noted that the ORG ’s obligation to educate would also further the children ’s interests and served the protection of their personal rights . Because of their young age , the applicant children were unable to foresee the consequences of their GPE decision to opt for home education . Therefore , they could hardly be expected to make an autonomous decision for themselves . Moreover , the applicant GPE right to educate their children would not be undermined by compulsory school attendance as the parents could educate their children before and after school , as well as at DATE . They were also free to send their children to a denominational school , which would possibly be more sensitive as to sex education than a ORG school , although the court questioned whether the issue of sex education would be of any relevance in a primary school ’s syllabus .

On DATE the Baden - ORG dismissed an appeal by the applicants . It found that , even though the applicant GPE right to educate their children included religious education , they were not exclusively entitled under LAW to educate their children . The ORG ’s constitutional obligation to provide the children with an education was on an equal footing with the GPE right . The court stressed that the decisive point was not whether home education was equally as effective as primary school education , but that compulsory school attendance required children from all backgrounds in society to gather together . Parents could not obtain an exemption from compulsory school attendance for their children if they disagreed with the content of particular parts of the syllabus , even if their disagreement was religiously motivated . The applicant parents could not be permitted to keep their children away from school and the influences of other children . Schools represented society , and it was in the children ’s interests to become part of that society . The GPE right to provide education did not go so far as to deprive their children of that experience . Parents could require the ORG to take positive measures in order to prevent their children being ill - treated by other children . The applicant parents had not , however , argued that the school authorities in GPE would fail to do so . Neither had the parents sufficiently argued that the applicant children would be exposed to religious influence which was opposed to their own views . The school ’s obligation of religious neutrality would prevent the applicant children from any indoctrination against their will . In so far as the applicants complained that the school ’s syllabus was too scientific and denied any divine influence on the creation and the history of the world , the court found that freedom of religion did not entail the freedom not to deal with any possible conflicts between science and religion . The “ mythical figures ” such as dwarfs or witches which the applicants considered to represent occultism were characters in fairy tales and children ’s books which were well known to all children . At school , they would be introduced to children as fictional characters . Hence the ORG did not promote superstition through its schools .

On DATE ORG dismissed an application by the applicants for leave to appeal on points of law .

On DATE ORG refused to consider a constitutional complaint by the applicants because it had already dealt with the decisive constitutional issues in its settled case - law . It pointed out that the administrative courts’ decisions had neither violated the applicant GPE right to educate their children nor the applicants’ freedom of religion . The balance of interests between the applicants’ rights on the one hand and the ORG ’s obligation to provide school education on the other did not require exemption from compulsory school attendance . ORG stressed that the ORG ’s obligation to provide education did not only concern the acquisition of knowledge , but also the education of responsible citizens to participate in a democratic and pluralistic society . To hold that home education under the ORG ’s supervision was not equally effective for pursuing these aims was at least not erroneous . The acquisition of social skills in dealing with other persons who had different views and in holding an opinion which differed from the views of the majority was only possible through regular contact with society . Everyday experience with other children based on regular school attendance was a more effective means of achieving that aim . ORG found that the interferences with the applicants’ fundamental rights were also proportionate given the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions . Moreover , society also had an interest in the integration of minorities . Such integration required not only that minorities with separate religious or philosophical views should not be excluded , but also that they should not exclude themselves . Therefore , the exercise and practising of tolerance in primary schools was an important goal . Lastly , ORG considered that the interference was reasonable as the parents still had the possibility of educating their children themselves outside TIME , and the school system was obliged to be considerate towards dissenting religious beliefs .

The relevant provisions of LAW are the following :

“ CARDINAL . Marriage and the family shall enjoy the special protection of the ORG .

NORP The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The State shall supervise them in the performance of this duty .

“ CARDINAL . The entire school system shall be under the supervision of the ORG .

Parents and guardians shall have the right to decide whether children should receive religious instruction .

Religious instruction shall form part of the regular curriculum in ORG schools , with the exception of non - denominational schools . Without prejudice to the ORG ’s right of supervision , religious instruction shall be given in accordance with the tenets of the religious community concerned . Teachers may not be obliged to give religious instruction against their will .

The right to establish private schools shall be guaranteed . Private schools that serve as alternatives to ORG schools shall require the approval of the ORG and shall be subject to the laws of the Länder . Such approval shall be given where private schools are not inferior to ORG schools in terms of their educational aims , their facilities , or the professional training of their teaching staff , and where segregation of pupils according to the means of their parents will not be encouraged thereby . Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured .

LAW provides :

“ School attendance is compulsory . ”

The relevant provisions of the Baden - Württemberg School Act are the following :

“ ( CARDINAL ) Compulsory school attendance shall apply to all children and juveniles who are permanently resident ... in GPE .

( CARDINAL ) Pupils are required to attend a NORP school . The school supervisory authority shall decide on any exemption .

“ ( CARDINAL ) All children and juveniles are obliged to attend schools within the meaning of section CARDINAL(CARDINAL)CARDINAL of this LAW , unless provision is otherwise made for their education and tuition . Alternative tuition instead of primary - school attendance may only be granted in exceptional circumstances by the school supervisory authority .


The applicant is a NORP national born in DATE . At present she resides at GPE , GPE . She is represented before the ORG by Mr PERSON , a lawyer practising at GPE , GPE .

A.

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

The applicant entered GPE on DATE with her husband , a first secretary at ORG in GPE , and their CARDINAL children , born in DATE and DATE . The applicant 's CARDINAL children from a previous marriage , born in DATE and DATE , remained in GPE . The applicant was granted a work permit for DATE as from DATE . On DATE she applied for an extended work permit . She stated , inter alia , that she and her husband did not have a good marriage and that he assaulted her , that she had rented an apartment in GPE , and that she could not return to GPE since she was afraid of her husband 's relatives . In DATE the applicant 's CARDINAL children who had remained in GPE were brought to GPE .

The applicant remained in GPE until DATE when it appears she returned to GPE in connection with her husband 's end of work at the ORG .

On DATE ORG ( ORG invandrarverk ) rejected her above application for a work permit . ORG found that she had no connection to GPE and that she had left the country .

On DATE the applicant , having returned to GPE , applied for a work permit and a residence permit for DATE as from DATE . The investigations made by ORG disclosed that she and her husband , together with the CARDINAL children , had returned to GPE in DATE and that they had intended to divorce . However , her husband died before the divorce became final . The applicant stated that she had returned to GPE in DATE in order to pay her debts and because she had been employed at a hotel in GPE . She also stated that she stayed in GPE for economical reasons and that she wanted a residence and work permit limited to DATE , after which time she intended to return to GPE .

On DATE ORG rejected the application and ordered the applicant 's deportation to GPE . ORG found that neither the applicant 's previous stay in GPE – as the wife of a diplomat – nor the alleged threats against her by her husband 's relatives constituted grounds for granting her a residence permit . ORG also took into account that the applicant 's children lived in GPE .

The applicant appealed to ORG ( Utlänningsnämnden ) . She now stated that she was infected with HIV and that she should be granted a residence permit on humanitarian grounds as the necessary medical care was not available in GPE . She submitted CARDINAL medical certificates issued on DATE and DATE according to which the applicant 's HIV infection had been detected in DATE . She made regular visits to the hospital . It was planned to commence an anti - HIV treatment during DATE . As such treatment was complicated and required strict adherence it was further indicated that treatment could only commence if the applicant was given a long - term permit to reside in GPE .

On DATE ORG upheld ORG decision . Referring to a decision taken by ORG on DATE ( see below ) , ORG considered that the applicant 's health status did not give reason to grant her a residence permit .

The applicant made a new application for a residence permit . She submitted a medical certificate issued on DATE , according to which her state of health had deteriorated . As a consequence , the anti - HIV treatment previously envisaged had been initiated . She also submitted a certificate issued on DATE maintaining that a deportation of the applicant would result in the termination of her HIV treatment , the consequences of which would be a faster process towards the AIDS stage and her supposed death .

By a decision of DATE ORG rejected the application stating , inter alia , that a new application has to be based on circumstances which have not previously been examined in the matter .

The applicant lodged a new application with ORG on DATE . In addition to what she had previously stated , she now claimed that she lived with GPE , a NORP citizen who had been given a permit to reside in GPE in DATE . He had been suffering from an HIV infection for DATE . Allegedly , they had met in DATE and had been cohabiting since DATE . The applicant claimed that she had not previously referred to this relationship , since she was afraid that it would be held against her . She further stated that she did not intend to bring her children to GPE in case she was granted a residence permit . Her brother , who allegedly had taken over the responsibility for her children , planned to send them to school in GPE .

On DATE ORG rejected the application . ORG noted , inter alia , that the applicant had not previously referred to her relationship with GPE and considered that there were thus reasons to question the seriousness of the relationship . ORG did not find it obvious that the applicant would have been granted a residence permit on the ground of the alleged relationship , had she applied for it according to the main rule laid down in LAW , LAW ( see below ) . Furthermore , the ORG found that it would not be contrary to requirements of humanity to execute the expulsion decision .

On DATE , following the ORG 's indication to ORG that it was desirable that the applicant not be expelled to GPE before DATE ( see below ) , ORG stayed the applicant 's deportation . The ORG 's decision is still in force .

PERSON Relevant domestic law and practice

The basic provisions concerning the right of aliens to enter and to remain in GPE are laid down in the CARDINAL LAW ( utlänningslagen , CARDINAL ) . The LAW also defines the conditions under which an alien can be expelled from the country , as well as procedures related to the enforcement of decisions under LAW . There are normally CARDINAL instances that deal with matters concerning the right of aliens to enter and remain in GPE ; ORG and ORG . In exceptional cases , the ORG may determine whether or not an alien shall be allowed to remain in GPE following a referral to the Government , by either ORG , of an application for residence permit ( LAW ) .

LAW , LAW provides that an alien staying in GPE for DATE shall have a residence permit . Such a permit may be issued , inter alia , to an alien who is married to or cohabiting with a person domiciled in GPE or who has been granted a residence permit to settle in GPE . A permit may also be issued to an alien who , for humanitarian reasons , should be allowed to settle in GPE ( LAW , LAW ) . A permit to reside in GPE shall , according to LAW , LAW , have been granted before entering the country . As a principal rule all applications made after the alien has entered the country shall be rejected . This does not apply , however , if , inter alia , the alien on humanitarian grounds should be allowed to settle in GPE .

With regard to diplomatic officials employed by foreign powers in GPE , together with their families , the LAW only applies to the extent prescribed by the Government ( cf . LAW , LAW ) . It follows from LAW ( utlänningsförordningen , PERSON ) that diplomatic officials and their families are exempted from the requirement to hold a residence permit .

As regards serious illness , this may in exceptional cases constitute humanitarian reasons for a residence permit on condition that it is a life - threatening illness for which no treatment can be provided in the alien 's home country . Further , care or treatment in GPE should lead to an improvement in the alien 's condition or be life saving . Thus , the alien 's condition should be so serious that he or she would be likely to die or his or her health would deteriorate considerably if he or she was to be sent home . These principles have been expressed and applied by the Government in a number of precedent rulings of CARDINAL DATE concerning medical humanitarian reasons in general and in rulings of CARDINAL DATE and DATE concerning HIV infection as a reason for a residence permit . The ORG also stated that the mere fact that treatment in GPE is of a higher quality than in the alien 's home country does not constitute grounds for granting a residence permit , nor are financial difficulties in getting the appropriate treatment in the receiving country a reason for granting such a permit .

ORG ) stated in an opinion of DATE , enclosed in the ORG 's decisions of DATE and referred to in the decision of CARDINAL DATE , that the fact that a person is diagnosed with HIV or AIDS should not alone and generally be decisive of the question of humanitarian grounds . Instead , the assessment should be founded on the alien 's general state of health taking serious clinical symptoms into consideration . ORG concluded that it found no reason , in this respect , to make a difference between HIV infection and other diseases with a serious prognosis .

Further , according to LAW , an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to residence in GPE ( LAW , LAW ) .

An alien who is to be refused entry or expelled in accordance with a decision that has gained legal force may be granted a residence permit if he or she files a so - called new application based on circumstances which have not previously been examined in the case of refusal of entry or expulsion and if ( i ) the alien is entitled to a residence permit under LAW , LAW , or ( ii ) it would be contrary to requirements of humanity to execute the refusal - of - entry or expulsion decision ( LAW , LAW b ) .

Also when it comes to enforcing a decision on refusal of entry or expulsion , regard is taken to the risk of torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW ) .


Violation of Art. 6-1;Preliminary objection dismissed (non-exhaustion);Preliminary objection dismissed

The applicant , who was born in DATE , is unemployed and lives in ORG .

The widow of PERSON , PERSON , died on DATE . She left her estate in equal shares to her CARDINAL children , PERSON ( the applicant in the present case ) , and his brother , PERSON , the latter enjoying full possession of the property until division .

On DATE the applicant lodged an application with the presiding judge of the Illkirch - Graffenstaden District Court ( département of ORG ) for partition of the deceased 's estate . He sought the appointment of a notary ( notaire ) to deal with the partition , specifying that it should not be Mr PERSON , PERSON representative .

On DATE PERSON was notified of the application . In a letter of DATE PERSON applied to the same ORG for partition of the estate of PERSON , who had died on DATE . He pointed out that all the documents concerning the disposal of his parents ' estate were being held by PERSON and requested that , if Mr PERSON could not be appointed first notary for the purpose of dividing the estate , he be appointed second notary .

On DATE the court forwarded PERSON application to the applicant 's lawyer , inviting him to submit within DATE his observations on commencing the procedure for partition of the father 's estate . On DATE the applicant 's lawyer informed the court that he did not oppose commencing the procedure for partition or extending it ; he also stated that he maintained his earlier submission regarding the choice of notary to deal with the partition of the estate .

In an order of CARDINAL DATE the presiding judge of the Illkirch - Graffenstaden ORG granted the application and ordered partition by the court of PERSON and PERSON estate . He instructed the parties to address their claims to PERSON , a notary in GPE , who had been appointed first notary , and to PERSON , a notary in PERSON , who had been appointed second notary . That decision was served on PERSON on DATE and on the applicant on DATE . In the ORG 's submission , the delay in service of the decision on the applicant was due to his failure to inform the court registry of his change of address .

Mr Deck convened a first meeting of the parties on CARDINAL DATE . All the parties were present or represented at the meeting , a record of which was sent to them on DATE .

On DATE PERSON sent the parties a draft scheme of partition of the estate and requested their observations .

On DATE the applicant 's lawyer sent his observations to PERSON .

On DATE and DATE the applicant enquired of the notary as to progress in the proceedings . He never received a reply .

On DATE a reminder was sent – in vain – to the presiding judge of the Illkirch - Graffenstaden District Court . A copy was sent to PERSON and Mr PERSON on DATE .

On DATE the applicant sent a further reminder to the presiding judge of ORG , asking him to contact the CARDINAL notaries with a view to concluding the proceedings .

The presiding judge of the court drew up an order forwarding the application to the court registry 's temporary LOC in Erstein . On CARDINAL DATE the same reminder was sent to the court registry 's permanent LOC in Erstein . That letter also remained unanswered .

On DATE the ORG judge sent both notaries the applicant 's letter of DATE and requested them to inform him of any reason why partition of the estate should not proceed and to indicate how they intended to deal with the applicant 's application .

In a letter of DATE the applicant 's lawyer lodged a complaint with the Chairman of ORG . He asked the chairman to instruct the CARDINAL notaries in question to dispose of the case DATE . He stated that , should they fail to do so , he had been instructed to bring an action for damages in the appropriate court .

On DATE Mr Deck informed the Chairman of ORG and ORG judge that on DATE he had prepared a draft scheme of partition of the estate and had since been waiting for Mr PERSON 's counter - proposal .

Mr Deck convened a further meeting of the parties on DATE .

Following that meeting , the CARDINAL notaries officially drew up the final scheme of division ; in that document the parties undertook to discontinue the proceedings for partition by the court which had commenced with the order of DATE . Having regard to that undertaking , PERSON decided to discontinue the proceedings and , in an order of DATE , ORG judge stayed the proceedings .

Article CARDINAL of the Civil Code provides :

“ If a dispute should arise in connection with proceedings referred to a notary , the notary shall draw up a record of matters causing difficulty and of the statements of the parties and forward them to the judge designated to deal with the partition ... ”

The procedure for partition of an estate applicable in the law of succession in GPE and GPE is a non - contentious procedure governed by the provisions of LAW of DATE . LAW provides : “ Partition by the court shall be effected as prescribed in the present LAW by means of a non - contentious procedure . The right shall be reserved to interested parties to institute contentious proceedings if they wish to obtain a decision on the merits and admissibility of the partition . ” LAW , relating to non - contentious proceedings , provides that a court can rule only where there is no dispute . Lastly , under LAW , “ if difficulties arise during proceedings before the notary and those difficulties are not resolved , the notary shall draw up a record of the matters in dispute and instruct the parties to bring contentious proceedings ” .