Preliminary objection joined to merits and dismissed (non-exhaustion of domesic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 13+2;Pecuniary damage and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The first applicant was born in DATE . The second and third applicants were born in DATE and DATE , respectively . They live in the village of PERSON , LOC , in GPE .

The first applicant is the mother of Mr PERSON , born in DATE . PERSON is the father of the second and third applicants .

On TIME the first applicant , PERSON and Mr Z. , a police officer , were driving home in a ORG SUV vehicle . At some point they passed by the village of GPE , where the special task force units of GPE and the NORP federal troops had been carrying out a special “ sweeping ” operation .

At the military checkpoint near GPE NORP federal servicemen stopped the UAZ SUV car . Some of the servicemen were wearing masks and camouflage uniforms ; they all spoke NORP . The servicemen ordered the first applicant , PERSON and Mr Z. to get out of the car , searched them and tied PERSON and Mr Z. 's arms behind their backs .

The servicemen put the first applicant , PERSON and Mr PERSON in a UAZ minivan . The first applicant noticed that its registration number contained the digits “ CARDINAL ” . The minivan drove off in the direction of ORG . It was followed by a PERSON vehicle . While the minivan was moving , CARDINAL of the servicemen made a phone call . The first applicant overheard the words “ woman , woman ” . Shortly afterwards the servicemen pushed her out of the minivan .

The first applicant lost consciousness as a result of DATE . Some passers - by discovered her lying by the side of the road and took her home . TIME later the first applicant recovered her senses .

At some point Mr PERSON was thrown out of the ORG minivan .

The first applicant has not seen her son since .

At TIME on DATE in the vicinity of the village of NORP unidentified armed persons wearing camouflage uniforms abducted PERSON and took him away to an unknown destination .

At some point Mr NORP , PERSON uncle , suggested that the first applicant contact PERSON , the head of the special task force unit who had been in charge of the special “ sweeping ” operation of DATE in GPE NORP . PERSON promised to release PERSON , but then left for a business trip ; at some point he died . Later PERSON deputy denied that PERSON had been arrested .

On DATE the prosecutor 's office of LOC ( “ the district prosecutor 's office ” ) instituted an investigation in case no . DATE into the kidnapping of PERSON .

On DATE the first applicant complained about her son 's abduction to the prosecutor 's office of GPE and the military prosecutor 's office of ORG ( “ the ORG prosecutor 's office ” ) .

On DATE the prosecutor 's office of GPE forwarded the first applicant 's complaint to the district prosecutor 's office .

On DATE the ORG prosecutor 's office forwarded the first applicant 's complaint to the prosecutor 's office of ORG .

On DATE the district prosecutor 's office suspended the investigation in case no . CARDINAL for failure to identify those responsible .

On DATE the district prosecutor 's office issued a report stating the following . At TIME on DATE in the area of GPE NORP unidentified masked persons in camouflage uniforms armed with machine guns had arrested PERSON and taken him away to an unknown destination . The whereabouts of the missing person had not been established . On DATE the district prosecutor 's office had opened an investigation into the kidnapping in case no . DATE . PERSON PERSON 's wife had been granted victim status .

On DATE the prosecutor 's office of GPE forwarded a letter from the first applicant to the district prosecutor 's office and requested an update on progress in the investigation .

On DATE the district prosecutor 's office informed the first applicant that an investigation into PERSON kidnapping had been opened under the number DATE and that measures were being taken to establish her son 's whereabouts .

On DATE the first applicant wrote to the district prosecutor 's office describing the circumstances of her son 's abduction and asking for the incident to be investigated .

On DATE ORG , on the first applicant 's request , declared PERSON missing .

On DATE the first applicant was informed that her son had not been held in any of the penitentiary facilities of GPE .

On DATE the prosecutor 's office of GPE informed the first applicant that the investigation was pending with the district prosecutor 's office .

On DATE and DATE the prosecutor 's office of GPE forwarded the first applicant 's complaints to the district prosecutor 's office .

On DATE the district prosecutor 's office informed the first applicant that the investigation in case no . DATE into her son 's kidnapping had been commenced on DATE and had then been suspended on an unspecified date . However , measures were being taken to find PERSON and his kidnappers .

On DATE the first applicant requested the district prosecutor 's office to grant her victim status , to provide her with copies of the decisions on the institution and suspension of the investigation , to allow her access to the case file and to keep her updated on any progress in the proceedings .

On DATE the PERSON requested an update on case no . DATE from the district prosecutor 's office .

It is not clear whether the investigation in case no . DATE has been completed to date .

On DATE the district prosecutor 's office received a complaint from the first applicant about the disappearance of her son .

DATE requests were sent to the heads of law - enforcement units to establish whether any special operations had been carried out in NORP on DATE and whether PERSON had been arrested or involved in the activities of illegal armed groups .

On DATE the district prosecutor 's office instituted criminal proceedings in case no . CARDINAL under LAW of LAW ( aggravated kidnapping ) .

On DATE the first applicant was granted victim status and questioned .

On DATE the prosecutor 's office of GPE received a statement from the first applicant concerning her conversation with PERSON

On DATE the district prosecutor 's office ordered the police to establish Mr Z. 's whereabouts and to identify the owners of the ORG minivan and PERSON vehicle .

On DATE ORG of GPE received instructions to carry out an internal inquiry into the kidnapping of PERSON and the head of the NORP district department of ORG ( “ ORG ” ) was ordered to establish the identities of the kidnappers and witnesses to the crime . The replies , received on unspecified dates , indicated that there was no information concerning the first applicant 's son 's whereabouts and that no witnesses had been found .

On DATE the investigation in case no . DATE was suspended for failure to identify those responsible .

NORP On DATE the district prosecutor 's office quashed the decision of CARDINAL DATE and resumed the investigation .

On DATE ORG of GPE was ordered to establish the identity of PERSON and to carry out an internal inquiry into PERSON arrest .

NORP The district prosecutor 's office asked whether a UAZ minivan with registration number “ CARDINAL ” had been owned by ORG . The reply received was negative .

On DATE the district prosecutor 's office requested the heads of the task force unit of ORG and of the NORP district department of the ORG to establish whether PERSON had been arrested or involved in the activities of illegal armed groups . The replies received indicated that the first applicant 's son had not been arrested and there was no information on his involvement in illegal armed groups .

On DATE the first applicant was again questioned as a victim .

On DATE and DATE the district prosecutor 's office requested several law - enforcement agencies to submit information on the whereabouts of PERSON and Mr PERSON and to establish whether servicemen of the task force unit of ORG had been involved in the applicants ' relative 's kidnapping . It followed from the replies received that no such involvement had been established .

On DATE the district prosecutor 's office quashed the decision of DATE and resumed the investigation .

On DATE PERSON , the wife of PERSON and the mother of the second and third applicants , was granted victim status and questioned .

DATE . On DATE Mr V.G. , the head of the local authority of PERSON , was questioned as a witness . He submitted that in DATE , before New Year 's Eve , a special operation had been carried out by the task force unit of GPE in his village for some ten or DATE . Several villagers had been arrested but none of them had disappeared . Mr V.G. vaguely recollected that CARDINAL men had been kidnapped near GPE NORP on DATE but in his opinion servicemen of the task force unit had not been involved in the kidnapping .

Two police officers were questioned as witnesses in DATE . They stated that a special operation had been carried out in GPE in DATE by the task force unit and that they had heard about PERSON kidnapping but had not known anything about it .

On DATE and DATE the first applicant and PERSON were questioned again . They did not provide any new information .

DATE the district prosecutor 's office sent requests to a number of law - enforcement agencies to provide information on whether PERSON had been arrested , whether any special operations had been carried out in GPE NORP at the material time and whether any unidentified dead bodies resembling PERSON had been discovered , and to establish the whereabouts of PERSON and a certain Mr NORP It followed from the replies received that no criminal proceedings had been instituted against PERSON , that he had not been arrested by the task force unit or detained in a penitentiary institution ; Mr PERSON had been killed in DATE ; Mr NORP lived in GPE .

On DATE Mr M. , a police officer responsible for the applicants ' home village of PERSON , was questioned as a witness and stated that PERSON had been a member of an illegal armed group .

Five more people were questioned as witnesses in DATE . They did not report any new information .

On DATE the district prosecutor 's office ordered the police to check if PERSON had had any connections with illegal armed groups .

On DATE the district prosecutor 's office ordered the NORP district department of the ORG to check if PERSON had had any contact with any of the leaders of illegal armed groups . It followed from the reply received that since DATE PERSON had been a member of an illegal armed group .

On DATE the investigation was again suspended .

On DATE the first applicant requested the district prosecutor 's office to grant her victim status .

On DATE the first applicant was informed that she had been granted victim status on DATE .

On DATE the Groznenksiy inter - district investigating unit of the investigating department of ORG of ORG for GPE ( “ the investigating unit ” ) quashed the decision of DATE and notified the first applicant accordingly .

On DATE the investigating unit ordered the police to establish Mr D. 's place of residence and the circumstances surrounding the death of PERSON , as well as to take steps to establish the whereabouts of PERSON and find witnesses to his kidnapping .

On DATE the investigating unit requested the traffic police to establish whether registration numbers “ CARDINAL ” or “ CARDINAL ” had belonged to law - enforcement agencies . According to the replies received , CARDINAL vehicle with registration number “ CARDINAL ” and CARDINAL vehicles with registration numbers “ CARDINAL ” belonged to various branches of ORG . The types of those vehicles were not specified .

On DATE the investigating unit asked ORG of GPE if on DATE they had had a ORG minivan with registration numbers “ CARDINAL ” or “ CARDINAL ” . The reply was negative .

On DATE the investigating unit requested information concerning the death of Mr Z. It turned out that his dead body had been found on DATE and that an investigation into the murder was pending .

On DATE the investigating unit suspended the investigation .

On DATE the district prosecutor 's office pointed out that the investigation in case no . CARDINAL had been flawed because the following investigative steps had not been taken : Mr NORP , who had allegedly negotiated PERSON release with the task force unit , had not been questioned , PERSON car had not been found and documents concerning his death had not been included in the case file .

On DATE the investigation in case no . CARDINAL was resumed .

DATE . On DATE Mr NORP was questioned as a witness . He stated that on DATE he had been told that his nephew , PERSON , had been kidnapped . On DATE he had found out that Mr Z. had been released . The first applicant had asked Mr NORP to help find her son . Mr NORP had talked to the head of the task force unit who had said that his subordinates had not arrested PERSON .

Despite specific requests by ORG did not disclose most of the materials from the investigation file in case no . DATE . They submitted copies of the decisions to open , suspend and re - open the investigation , records of witnesses ' interviews and several replies by the authorities to the applicant and explained that they had provided the “ main case - file materials ” .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)

The applicant was born in DATE and is at present serving a prison sentence in GPE in GPE .

On DATE the applicant and his suspected accomplice NORP were arrested in GPE in GPE on suspicion of having murdered PERSON On DATE ORG ( ORG ) issued an arrest warrant against the applicant . As the applicant objected to being extradited to GPE , he remained in detention in GPE .

On DATE D. – the victim ’s adopted son – was extradited to GPE .

On DATE a chamber of ORG ( ORG ) , presided by judge ORG and also comprising judges PERSON and PERSON , convicted NORP of murder and of having committed robbery followed by death constituting CARDINAL single offence ( PERSON in GPE ) , and of attempted murder . NORP was found guilty of having murdered his adoptive mother PERSON , of having attempted to murder his adoptive father and of having robbed his adoptive GPE belongings . According to the findings of ORG , which were primarily based on the statements and admissions of the accused , these offences had been committed jointly with the applicant .

The passages of the judgment establishing the facts of the case which refer to the applicant read as follows :

“ PERSON , who was primarily interested in the loot , having been at first indifferent to the murder ... , consented to drive to GPE with the accused ... On the ground floor , GPE looked for an appropriate weapon . He removed the loose but stable handle from a big axe and handed it to the accused . Having in the meantime agreed to the murder , he did not want to run any risks . The accused could see that PERSON put a hammer weighing QUANTITY into his pocket in order to be prepared for any eventualities ... As PERSON and the accused feared the failure of their endeavour , the former approached PERSON , kept her mouth shut with a pillow and inflicted severe hammer blows on her head in order to kill her . The accused was aware of this because he knew that a human life counted for little with PERSON ... The accused credibly submitted to the court that he had informed GPE about his plan to murder his adoptive father , which left the latter indifferent because he was primarily interested in the loot . The chamber deduces from this submission that the accused knew that a human life counted for little with GPE ... Because of the blows inflicted by the accused , the chamber is convinced that the accused consented to PERSON ’s brutal actions , even if it meant her death , in order to reach his real aim to kill his adoptive father ... Because of the many heavy hammer blows on the victim ’s head , the accused was aware that PERSON wanted to kill the adoptive mother of the accused , at least in order to gain the prospected loot ... By following PERSON ’s request to keep PERSON at bay by dealing her a blow , the accused expressed his consent to PERSON ’s massive use of force and was willing to accept the action ... Cooperating with PERSON , the accused wanted to slay his sleeping victim , thus perfidiously exploiting his unsuspecting victim ’s defencelessness . Despite the accused ’s intention to commit the crime on his own , PERSON was so intensely involved in the planning and in the choice of a weapon that his actions did not merely constitute supportive measures , but an autonomous part of the action , the more so as the dominant PERSON pursued his own interest in the deed : to have access to the loot . ”

ORG further noted that this assessment of the facts followed essentially the accused ’s own submissions , who tried to place all responsibility on the applicant . Nevertheless , ORG found him guilty himself . It further considered whether it was necessary to hear the applicant – who remained at the time in detention in GPE – as a witness in the proceedings against NORP Having regard to the fact that the applicant had denied any involvement in the crime , the chamber did not expect that the applicant ’s testimony would yield any further information .

On DATE the applicant was extradited to GPE .

On DATE the main hearing was opened before a chamber of ORG presided by judge PERSON and including judge PERSON ; both had already sat in the chamber which had previously tried NORP

At the opening of the trial , the applicant objected to the participation of judges PERSON and PERSON on the ground of possible bias ( Ablehnung wegen LOC ) . He argued that the passages in the court ’s judgment against NORP , seen from his viewpoint , but also objectively , were susceptible of raising doubts about the impartiality of these judges . On being informed that a chamber presided by judge DATE who had presided over the trial against DATE would decide about the objection , the applicant raised an objection against PERSON on the same grounds .

On DATE judges PERSON and PERSON submitted their respective official statements ( dienstliche GPE ) on the objection . They pointed out that it would have been more satisfactory to try both NORP and the applicant in joint proceedings , as the same facts were concerned . However , this had not been possible as NORP had already been extradited on DATE and it could not be foreseen at the time when the extradition proceedings relating to the applicant would be terminated . Having regard to the necessity to expedite proceedings , the chamber found it appropriate to consider both cases in separate proceedings . During the main proceedings against NORP , the applicant had not been available to the court . The establishment of the facts of the case in the judgment against NORP were mainly founded on NORP ’s own submissions . In order to assess the extent of NORP ’s guilt , it had been essential to cast light on the applicant ’s involvement . As the chamber could only base its assessment on NORP ’s own submissions , they had been aware of the fact that their sources of knowledge were limited and that an assessment of the applicant ’s possible involvement had to be left to the main proceedings against the applicant . Both judges emphasised that they had neither reached a final opinion nor adopted an inner attitude which could negatively influence their impartiality towards the applicant .

On DATE the substitute chamber of ORG rejected the applicant ’s objection against the presiding judge PERSON It found that the simple fact that a judge had been previously dealing with the same facts in a case against another , subsequently convicted person did not suffice to justify an objection against that judge because an accused person would reasonably presume that a judge based his judgment exclusively on the outcome of the public hearing in the specific case . According to the court , an objection would have been justified only if the judgment of DATE had contained unjustified and degrading value judgments on the applicant . The court found this not to be the case , because it was clear from the judgment of DATE that the passages referring to the applicant were exclusively based on NORP ’s submissions , as the applicant himself , having objected to his extradition from GPE , had at the time not been available to the court .

On DATE the substitute chamber dismissed the applicant ’s objection against judges PERSON and PERSON for the same reasons .

On DATE ORG convicted the applicant , who had denied any involvement in the crimes , of murder and of having committed robbery followed by death constituting CARDINAL single offence and sentenced him to life imprisonment . According to ORG findings , the applicant had killed PERSON in order to cover up the robbery ; while NORP had approved of the applicant ’s actions . ORG based its judgment mainly on the applicant ’s own statements given both during preliminary investigations and during the main hearing , on incriminating testimony given by NORP , which the chamber followed only to a certain extent , and on corroborative evidence such as the analysis of traces found at the scene of the crime .

The applicant subsequently appealed on points of law , arguing that judges PERSON and PERSON should have been excluded from the trial . On DATE ORG ( ORG ) rejected the appeal as unfounded , following a statement of ORG ( ORG ) which confirmed ORG reasoning on the issue of the impartiality of the judges .

On DATE the applicant , who was represented by counsel , lodged a constitutional complaint in which he gave a complete account of the proceedings before the lower courts and alleged that the impugned decisions violated his right to a fair trial as guaranteed by the NORP Basic PERSON and by the LAW .

The relevant passages of the complaint read as follows :

“ LAW in conjunction with Articles CARDINAL and CARDINAL § CARDINAL of the German Basic PERSON , and LAW , guarantee that criminal cases shall be heard in a fair trial , without arbitrariness and , in particular , by an unbiased and impartial judge . According to section CARDINAL § CARDINAL of LAW , a judge can be challenged for fear of bias if there is a justifiable reason to doubt his impartiality . This is the case if the accused , taking into account the facts known to him , has reason to believe that a judge ’s attitude towards him might negatively influence his impartiality and neutrality . In general , this fear can not be based on the mere fact that a judge has previously convicted another person who participated in the same crime and , on that occasion , ruled on the involvement of the accused . However , a different approach is urgently needed if a judge ’s behaviour in the previous proceedings ( or , similarly , his reasoning in a previous judgment ) justifies the fear of bias . In particular , negative value judgments about the accused ’s personality , or about his actions before or after the crime , may induce the accused reasonably to fear that a judge might not be impartial towards him in the new proceedings . It has been said of the person accused in the present case , who has denied his involvement in the crime , that a human life counted for little to him , that he acted brutally and used massive violence , and that he , as a dominant actor , made an autonomous contribution to the attempted murder of the adoptive father . On the basis of such value judgments , the accused does indeed have reason to fear that the judges , who were deciding for a second time on the same crime , whether consciously or unconsciously , would maintain their previous opinions ... . Comparing this case with ( one ) published in volume CARDINAL of the collection of the decisions of ORG , it is clear that the applicant has been exposed to a high degree of value judgments on his person and his actions . If CARDINAL were to apply the ruling of ORG to the present case , there would no longer be any possibility of removing a judge for fear of bias due to the decision in a previous case ... . Such a result is unacceptable for the person concerned , as has been sufficiently demonstrated . LAW ( impartial , unbiased judge and fair trial ) has been violated for the same reasons . ”

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s complaint for adjudication .

The relevant passages of that court ’s decision read as follows :

“ The constitutional complaint is not accepted for adjudication because there are no grounds therefor . The constitutional complaint has no prospect of success , because it is inadmissible . Its reasoning does not meet the minimum requirements found in section CARDINAL § CARDINAL , second sentence , and section CARDINAL of the Rules of Procedure of ORG . The applicant has to describe the alleged violation of a Basic Right and the proceedings leading to its violation in a substantiated and conclusive way ( cf . the decisions of ORG published in the official collection BVerfGE CARDINAL , p. CARDINAL , [ at p. CARDINAL ] ; DATE , p. CARDINAL , [ at p. CARDINAL et seq . ] ) . The allegation that ORG rejected the objection against the competent judges on erroneous grounds does not meet these requirements , because not every rejection of an objection which is erroneous with respect to ordinary laws means that there is at the same time a violation of LAW . According to the consistent case - law of ORG , a violation of the right to a decision rendered by the legally competent judge ( ORG gesetzlichen Richter ) is only possible if the decision of the court on the objection is based on arbitrary considerations ( cf . BVerfGE CARDINAL , p. CARDINAL , [ at p. CARDINAL ] ; CARDINAL , p. CARDINAL , [ at p. CARDINAL et seq . ] ; CARDINAL , p. CARDINAL , [ CARDINAL ] ) , or if the court has fundamentally misjudged the meaning and implications of LAW , second sentence ( cf . BVerfGE DATE , CARDINAL , [ CARDINAL ] , CARDINAL , CARDINAL , [ CARDINAL ] ) . Accordingly , a mere allegation that the objections have been rejected in violation of the ordinary legal provision of section CARDINAL § CARDINAL of LAW will not suffice to substantiate an alleged violation of the constitution . “

The relevant provisions of LAW read as follows :

Section CARDINAL § CARDINAL

“ An objection can be raised on the ground of fear of bias if there is a reason which may justify doubts on the impartiality of a judge . ”

Section CARDINAL § CARDINAL

“ An appeal on points of law can only be based on the allegation that the judgment was based on a violation of the law . ”

Section CARDINAL

“ A judgment shall always be considered to be based on a violation of the law :

... CARDINAL . if a professional judge or lay judge participated in the drafting of a judgment after he has been challenged for bias and if the motion for challenge was either declared to be well - founded or erroneously rejected ... ”

Article CARDINAL , § CARDINAL , second sentence , of the German Basic Law ( Grundgesetz ) provides that no one shall be deprived of his right to a decision rendered by the legally competent judge ( gesetzlicher Richter ) . In its case - law , ORG has consistently dealt with the issue of whether a judge must be excluded for suspicion of bias as a problem of the right to a decision rendered by the legally competent judge .

The relevant provisions of the Rules of Procedure of ORG ( Bundesverfassungsgerichtsgesetz ) read as follows :

Section CARDINAL § CARDINAL

“ Applications for the institution of proceedings must be submitted in writing to ORG . The reasons must be stated ; the requisite evidence must be specified . ”

Section CARDINAL

“ The reasons for the complaint shall specify the allegedly violated right and the act or omission of the organ or authority by which the complainant claims to have been harmed . ”

According to the consistent case - law of ORG ( cf . the decision published in the official collection BVerfGE CARDINAL , p. CARDINAL , [ at p. CARDINAL ] ) , the applicant must not only identify the allegedly violated right , but also describe the proceedings which led to this violation in a substantiated and conclusive way ( schlüssig und substantiiert ) , in order to comply with the above - mentioned provisions .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by Mr P. GPE , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr J. GPE , of ORG .

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

The applicant suffers from severe dysfunction of the limbs and is confined to a wheelchair .

On DATE the applicant was driven by his mother to a polling station in GPE where he intended to vote in the elections to municipal and district councils and provincial assemblies ( wybory do rad gmin , rad powiatów i sejmików województw ) . The applicant ’s mother asked the Chairman of ORG to either show her how the applicant , who was waiting in his wheelchair outside the station , could enter it or hand a ballot paper to him . The chairman informed the applicant ’s mother that the applicant could not cast his vote because it was not permitted to take ballot papers outside the LOC of the polling station and the chairman was not going to carry the applicant inside the station . The applicant returned home without casting his vote .

At TIME on DATE , i.e. TIME before the polling stations closed , the applicant telephoned ORG ( PERSON ) and protested about the refusal to allow him to vote . He also asked for help in casting his vote . However , the applicant was informed that ORG acted in conformity with the PERSON of DATE on ORG , ORG ( ORG wyborcza do rad gmin , rad powiatów i sejmików województw ) ( “ the LAW ” ) and advised to arrange for assistance in entering the LOC of the polling station .

On DATE the applicant lodged an electoral complaint ( protest wyborczy ) with ORG ( Sąd Wojewódzki ) . He submitted that he had been unlawfully deprived of his right to vote . The applicant pointed out that getting to the polling station had required substantial effort on his part , the assistance of other persons and certain expenses . He ended his submissions with the following statement :

“ I would like to stress that the only way I could have been carried in was on a stretcher ( which was not available ) and anyway no handicapped person would have agreed to that because of the feeling of embarrassment . Carrying me upstairs in a wheelchair was also impossible as [ my ] battery - powered wheelchair weighed , together with myself , QUANTITY and was not portable .

As the number of physically handicapped persons in GPE is CARDINAL , one can assume that my case was not isolated and that making it impossible for handicapped persons to vote by not preparing polling stations for them could have had a fundamental impact on the turnout and the results of the elections . ”

In a letter of DATE ORG asked the applicant whether his complaint concerned the validity of the elections or whether he requested amendments to the relevant law .

On DATE the applicant informed ORG that his electoral complaint resulted from the fact that he had been deprived of his right to vote in the elections held on DATE . The applicant referred to section CARDINAL of LAW , which stated that every NORP citizen had a right to vote .

On DATE ORG refused to consider the applicant ’s electoral complaint . The court was of the view that it did not fall within “ the scope of the subject matter ” of an electoral complaint . On DATE the applicant appealed against that decision to ORG ( Sąd Apelacyjny ) .

On DATE ORG allowed the applicant ’s appeal , quashed the decision of DATE and remitted the case to ORG .

On DATE ORG dismissed the electoral complaint lodged by the applicant . The court observed that the applicant had assumed that a ballot paper would be handed to him and cast by his mother . However , he had been advised by the Chairman of ORG and ORG that this was not permissible under LAW . Moreover , the applicant had not considered the possibility of entering the polling station with the assistance of third persons on a stretcher or in a wheelchair as he had felt that it would have been embarrassing and degrading for him . The court further considered that :

“ The complainant ’s general claim that ‘ the organisers of the elections’ should have provided him with the possibility of entering the polling station ... does not fall within the legal scope of an electoral complaint ... since none of the provisions of LAW imposes such an obligation on the electoral commissions – on the contrary , section CARDINAL of the LAW excludes such help .

Each disability is in itself restricting in different fields of private and public life . It makes it difficult for a handicapped citizen to enjoy his rights . The public authorities are not in position to eliminate all those difficulties . [ There ] is no statutory or higher provision requiring such [ elimination ] – even if those provisions concern handicapped persons ( LAW and LAW ... which is part of our legal system , and LAW .

The complainant was aware of his disability and therefore had a special duty to acquaint himself with his rights and the restrictions under LAW before the date of the elections . Ignorance of DATE in particular one so important – can not excuse anybody . If the complainant had known the law , he would not have expected that it would be breached in order to allow him to vote . He would have taken steps to obtain the assistance of third persons in casting his vote .... As pointed out above , a disability is always a restriction . Therefore , the complainant ’s argument that he did not consider the possibility of being carried by third persons to the polling station because it would have been embarrassing for him can not justify his claim that he could not vote for reasons beyond his control . Since the complainant was put in DATE probably by third persons DATE he could have been carried by those persons , for instance in a chair .... ”

The applicant appealed to ORG against the decision of CARDINAL DATE . In his appeal the applicant submitted that :

“ Participation in the elections was the only purpose of my presence at the polling station .... I was not aware of the details of LAW , and I thought that I would be able to vote in the way I had done before ( i.e. ballot papers are handed to me under the stairs , I mark them and a member of my family puts them into the ballot box ) . However , this time it turned out that casting a vote by a disabled person would be considered as a violation of the electoral law . ...

ORG did not take into consideration my good will and my positive civic attitude and indicated several additional solutions that should have been undertaken by me . [ The court ] tried to establish that I could , and should , have solved all those problems by myself . ... Under section CARDINAL of LAW “ ... every NORP citizen has a right to vote ... ” . [ It ] does not impose on the disabled any additional obligations which should be fulfilled before ... entering a polling station .

I do not know of any institution that would offer “ election services ” with a stretcher . ... Using a stretcher in the way suggested by the court would make the voting grotesque .

In suggesting that the problem could have been solved with the assistance of third persons , the court did not take into account the fact that such persons could have refused help , or that they might not have managed to help ( even using a chair - because of the significant degree of my disability ... ) , or that there could have been a risk of injuries for those who helped and those who were being helped , or that there could have been no people around to help . The standard solution in similar cases is to provide a ramp or a lift .... Even in the case of the polling station in question , it would have been possible to prepare such a ramp at small ( when compared with the electoral campaign ) financial cost .

I have read several times with disbelief the reasoning of ORG judgment which states that ‘ each disability is in itself restricting in different fields of private and public life . It makes it difficult for a handicapped citizen to enjoy his rights’ . I think that this odd reasoning ... compromises the institution which protects social justice . By giving such reasoning ORG outlined the position of a disabled person in NORP society . With reasoning like this one can deprive disabled persons of several other civic rights . It contradicts the perception of disability in all other democratic countries . The question arises here : can criminal law , tax law or traffic regulations also be applied to a limited extent in the case of a disabled person ?

The NORP State imposes on its citizens a number of obligations .... In return it gives every citizen a right to vote and in this way the possibility of having an influence on public life . It is the fundamental right in democratic states and that is what democracy is all about . ... ”

On DATE ORG dismissed the applicant ’s appeal . The appellate court agreed with ORG conclusion that the applicant ’s case did not disclose a breach of LAW .

LAW provides :

“ CARDINAL . The system of government of GPE shall be based on the separation of and balance between the legislative , executive and judicial powers .

Legislative power shall be vested in the PERSON and the ORG , executive power shall be vested in the President of GPE and ORG , and judicial power shall be vested in the courts and tribunals . ”

LAW provides :

“ Public authorities shall provide , in accordance with statute , assistance to disabled persons to ensure their subsistence , adaptation to work and social communication . ”

LAW of the LAW , entitled “ Sources of Law ” , begins with LAW , which provides :

“ CARDINAL . The sources of the universally binding law of GPE shall be : the LAW , statutes , ratified international agreements , and regulations .

Local laws ( akty prawa miejscowego ) passed by the organs [ of local government ] shall be a source of universally binding law of GPE in the territory of the organ passing the laws . ”

The last provision in LAW is LAW , which provides :

“ On the basis of and within limits specified by statute , the organs of local government and territorial organs of government administration shall enact local laws applicable to their territorially defined areas of operation . The principles of and procedures for enacting local laws shall be specified by statute . ”

LAW , entitled “ The PERSON and the ORG ” , begins with LAW , which provides :

“ CARDINAL . Legislative power in GPE shall be exercised by the PERSON and the ORG .

The PERSON shall exercise control over the activities of ORG within the scope specified by the provisions of the LAW and statutes . ”

Chapter VII , entitled “ Local Government ” , contains the following provisions :

“ Article CARDINAL

Local government shall perform public tasks not reserved by the LAW or statutes to the organs of other public authorities .

Article CARDINAL

NORP The municipality ( gmina ) shall be the basic unit of local government .

Other units of regional and/or local government shall be specified by statute .

The municipality shall perform all tasks of local government not reserved to other units of local government .

Article CARDINAL

Units of local government shall possess legal personality . They shall have rights of ownership and other property rights .

NORP The independence of units of local government shall be protected by the courts .

Article CARDINAL

Units of local government shall have direct responsibility for performing public duties aimed at satisfying the needs of a self - governing community .

NORP If the fundamental needs of the State so require , units of local government may be required by statute to perform other public duties . The mode of transfer and manner of performance of the duties so allocated shall be specified by statute .

NORP The administrative courts shall settle jurisdictional disputes between units of local government and units of government administration .

Article CARDINAL

Units of local government shall be assured public funds adequate for the performance of the duties assigned to them .

NORP The revenues of units of local government shall consist of their own revenues and general subsidies and specific grants from the ORG budget .

NORP The sources of revenues for units of local government shall be specified by statute .

Any alterations of the scope of the duties or powers of units of local government shall be made in conjunction with appropriate alterations of their share of public revenues .

Article CARDINAL

To the extent established by statute , units of local government shall have the right to set the level of local taxes and charges .

Article CARDINAL

Units of local government shall perform their duties through law - making and executive organs .

Election to the law - making organs shall be by direct universal suffrage and shall be conducted by secret ballot . The principles and procedures for nominating candidates and for conducting the elections , and the requirements for the validity of the elections , shall be specified by statute .

The principles and procedures for the election and dismissal of executive organs of units of local government shall be specified by statute .

NORP The internal organizational structure of units of local government shall be specified , within statutory limits , by their law - making organs .

Article CARDINAL

Members of a self - governing community may decide , by means of a referendum , matters concerning their community , including the dismissal of an organ of local government established by direct election . The principles of and procedures for conducting a local referendum shall be specified by statute .

Article CARDINAL

NORP The legality of the actions of a local government shall be subject to review .

NORP The organs exercising review of the activity of units of local government shall be : the Prime Minister and provincial governors and , regarding financial matters , regional audit offices .

On a motion of the Prime Minister , the PERSON may dissolve a law - making organ of local government if it has flagrantly violated the LAW or statutes .

Article CARDINAL

Units of local government shall have the right of association .

A unit of local government shall have the right to join international associations of local and regional communities and to cooperate with local and regional communities of other states .

The principles governing the exercise by units of local government of the rights referred to in paragraphs CARDINAL and CARDINAL above shall be specified by statute . ”

A municipality ( gmina ) is the basic unit of local government in GPE .

Section CARDINAL ) of the PERSON of DATE provides :

“ A municipality is responsible for all local public matters which are not assigned by statutes to other bodies . ”

Section CARDINAL ) provides :

“ A municipal council ( rada gminy ) is responsible for all matters falling within the competence of a municipality unless statutes provide otherwise . ”

Under section CARDINAL(CARDINAL ) , the exclusive competence of a municipal council includes , inter alia , adopting a budget , a land - use plan , economic plans , taxes and resolutions concerning municipal finances .

A district ( powiat ) constitutes a second tier of local government . Section CARDINAL of the Law of CARDINAL DATE provides that a district is responsible for matters which are not within the competence of a municipality and which concern , inter alia , education , the public health service , social security , public transport , culture , protection of the environment , agriculture , public order , consumer protection and defence .

Under LAW , the exclusive competence of a district council ( rada powiatu ) includes , inter alia , enacting local laws and adopting a budget , taxes and resolutions concerning district finances .

There are CARDINAL regions ( wojewόdztwo ) in GPE . LAW of the PERSON of DATE provides that the regional government shall prepare a development strategy for the region . Under section CARDINAL , the exclusive competence of a regional assembly ( sejmik wojewόdztwa ) includes , inter alia , enacting local laws and adopting a land - use plan , a budget and resolutions concerning regional finances .

Section CARDINAL of the PERSON of DATE on ORG , ORG ( ORG wyborcza do rad gmin , rad powiatów i sejmików województw ) ( “ the LAW ” ) provided , in so far as relevant :

“ A disabled voter may , at his or her request , be assisted in voting by another person , other than members of the [ electoral ] commission and election monitors ( mężowie zaufania ) . ”

At the relevant time section CARDINAL of the LAW DATE on Elections to the PERSON of GPE ( PERSON wyborcza do PERSON ) provided :

“ A disabled voter may , at his or her request , be assisted in voting by another person , other than election monitors . ”

The subsequent LAW of DATE on Elections to the PERSON and the ORG of GPE ( ORG wyborcza do PERSON i do PERSON ) contains for the first time specific provisions regarding the exercise of the right to vote by disabled persons . Section CARDINAL(CARDINAL ) in fine states :

“ Premises designated as offices of the regional and local electoral commissions shall be easily accessible to disabled persons . ”

Section CARDINAL(CARDINAL ) reads as follows :

“ The mayor shall provide premises of local electoral commissions that are adapted to the needs of disabled voters . ”

It further provides that in each municipality there must be CARDINAL local electoral commission with premises adapted to the needs of disabled persons .

Section CARDINAL of the Law of DATE on Elections of the President of GPE ( ustawa o wyborze LOC ) contains a similar provision to section CARDINAL of LAW ( see above ) .

Section CARDINAL of LAW ( Prawo budowlane ) of DATE , which entered into force on DATE , requires , inter alia , that public buildings and blocks of flats constructed henceforth must secure the necessary conditions for their use by people with disabilities , in particular those in wheelchairs .

( a ) Recommendation No . R ( CARDINAL ) CARDINAL of ORG , of DATE , on a coherent policy for people with disabilities urges Member ORG to “ guarantee the right of people with disabilities to an independent life and full integration into society , and recognise society ’s duty to make this possible ” so as to ensure “ equality of opportunity ” for people with disabilities . The public authorities should aim , inter alia , to enable people with disabilities “ to have as much mobility as possible , and access to buildings and means of transport ” and “ to play a full role in society and take part in economic , social , leisure , recreational and cultural activities ” .

As regards social integration in particular , Recommendation No . R ( CARDINAL ) CARDINAL states :

“ Legislation should take account of the rights of people with disabilities and contribute , as far as possible , to their participation in civil life . When people with disabilities are not able to exercise their ORG rights fully , they should be helped to participate as far as possible in civil life , by means of appropriate assistance and measures . ”

( b ) Recommendation CARDINAL ( DATE ) , adopted by ORG of ORG DATE , on rehabilitation policies for the disabled , emphasises : “ ORG has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives . ” In furtherance of that aim , it calls on the governments and agencies concerned “ to strive for and encourage genuine active participation by disabled people ... in the community and society ” and , to that end , “ to guarantee ease of access to buildings ” .

( c ) The revised NORP Social Charter , adopted by ORG on DATE and opened for signature on DATE , provides in its LAW , entitled “ Right of persons with disabilities to independence , social integration and participation in the life of the community ” :

“ With a view to ensuring to persons with disabilities , irrespective of age and the nature and origin of their disabilities , the effective exercise of the right to independence , social integration and participation in the life of the community , the Parties undertake , in particular :

NORP to promote their full social integration and participation in the life of the community , in particular through measures , including technical aids , aiming to overcome barriers to communication and mobility and enabling access to transport , housing , cultural activities and leisure . ”

( d ) Recommendation No . Rec(CARDINAL)CARDINAL of ORG to promote the rights and full participation of people with disabilities in society identifies a comprehensive set of objectives and specific actions to be implemented by Member States in this area .

As regards participation in political and public life , Recommendation No . Rec(CARDINAL)CARDINAL states :

“ The participation of all citizens in political and public life and the democratic process is essential for the development of democratic societies . ORG needs to reflect the diversity of its citizens and benefit from their varied experience and knowledge . It is therefore important that people with disabilities can exercise their rights to vote and to participate in such activities . ”

It further recommends to Member GPE , among others , “ to ensure that voting procedures and facilities are appropriate and accessible to people with disabilities so that they are able to exercise their democratic rights , and allow , where necessary , the provision of assistance in voting . ”


MOURA CARREIRA and MARGARIDA LOURENCO CARREIRA v. PORTUGAL

The applicants [ Mr PERSON and PERSON ] are NORP nationals who were born in DATE and DATE respectively and live in GPE ( GPE ) . They were represented before the ORG by PERSON , of ORG . ] are NORP nationals

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

On DATE ORG issued a temporary injunction prohibiting the applicants from disposing of their shares in a private limited company , PERSON . , following an application for this protective measure ( providência cautelar ) by ORG , who were also members of the company . ORG had alleged that the applicants had failed to honour a promise to sell shares to them .

On DATE the applicants lodged an application to have that decision set aside ( embargos ) . They alleged , inter alia , that the document produced by GPE , containing the promise to sell the shares , was a forgery .

In an order of CARDINAL DATE , which was served on the applicants on DATE , the court invited them to bring interlocutory proceedings to challenge the authenticity of the document in question .

The applicants appealed against that order to ORG ) , but the outcome of the proceedings is not known . However , they also made an interlocutory application on DATE challenging the authenticity of the document , as the court had invited them to do .

In an order of CARDINAL DATE the court ruled that it could not entertain the application as it had been made out of time .

The applicants appealed against that order to ORG , which in a judgment of DATE quashed the impugned decision .

The case was remitted to ORG . On DATE that court decided that the proceedings to set aside the protective measure should be stayed pending the outcome of the proceedings to challenge the authenticity of the document .

In a judgment of DATE the court dismissed the interlocutory application . That decision was upheld by ORG in a judgment of DATE .

In a decision of CARDINAL DATE ORG permanently stayed the proceedings to set aside the protective measure , in the light of the decision taken in the main proceedings ( see below ) . The applicants were also ordered to pay costs and expenses .

The applicants appealed against that decision , but only in relation to the costs order . In a judgment of DATE ORG allowed the appeal and made an order for costs against GPE

On DATE PERSON and GPE brought an action for damages in LOC in respect of the applicants’ alleged failure to honour their promise to sell shares in PERSON .

In a judgment of DATE the court dismissed their claim .

ORG appealed to ORG . However , since they failed to file pleadings , the court declared the appeal invalid ( deserto ) in a decision of DATE . That decision was served on the applicants on DATE .

At the time when the proceedings in question were instituted , applications to set aside protective measures were governed by LAW . In such applications complainants could challenge the proceedings whereby a protective measure had been ordered by adducing evidence capable of casting doubt on the grounds for the measure or of curtailing its scope ( see LAW and LAW in the version applicable at the time , and ORG judgments of DATE , Boletim do PERSON ( “ ORG ” ) no . CARDINAL , p. CARDINAL , and DATE , ORG no . CARDINAL , p. CARDINAL ) .

Under LAW , a protective measure ceases to have effect if the claims of the party in whose favour it was made are dismissed in the main proceedings . In that event , the court must permanently stay the proceedings in respect of the protective measure ( LAW ) .


CASE OF E.L., R.L. AND J.O.-L. v. SWITZERLAND

Violation of Art. 6-2;Costs and expenses award - Convention proceedings

The applicants are all NORP nationals who live in GPE . They are the widow , the son and the daughter of the late Mr L.

Mr L. was the owner of a mail - order company . In DATE he declared certain moneys to the tax authorities ; he maintained that these were profits lawfully made in GPE from capital speculation and investments , and were not taxable in GPE .

Mr L. died on DATE .

The DATE period within which the applicants could have rejected the inheritance ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Swiss Civil Code ) expired on DATE .

On DATE ORG , having come to the conclusion – in the absence of vouchers supporting Mr L. 's allegations – that the moneys declared were in reality income generated by Mr L. 's mail - order firm which he had unlawfully failed to declare in GPE , initiated proceedings against the applicants for recovery of unpaid cantonal and federal taxes , and at the same time imposed fines for tax evasion .

It appears that the applicants cooperated with the tax authorities , enabling them to make a correct assessment of the taxes due .

The DATE 's file contains no information about any proceedings to contest the recovery of cantonal tax arrears or the related fine .

On DATE the applicants appealed to ORG against the decision of CARDINAL DATE in so far as it related to direct federal taxes .

On DATE ORG gave its decision . It considered that the tax authorities had failed to prove that the moneys in question were undeclared taxable income , but found it established that Mr L. had deliberately failed to declare the interest received from it . Accordingly , it partly upheld the applicants ' appeal , significantly reducing the amount of back tax to be paid . It also reduced the fine to CARDINAL of the additional amount normally due in view of the fact that Mr L. had himself reported the moneys concerned to the authorities .

ORG lodged an administrative - law appeal to ORG .

The applicants filed a written defence arguing , inter alia , that it was contrary to LAW to impose a fine on the heirs of a taxpayer for tax evasion committed by the latter .

ORG and ORG were invited to submit written comments pursuant to section CARDINAL of LAW .

ORG declined to do so . ORG expressed the opinion that the appeal should be dismissed .

In a judgment delivered on CARDINAL DATE ORG upheld the appeal .

It held that ORG had erred in imposing the burden of proof on the tax authorities . Since their investigations had revealed prima facie evidence that Mr L. had been guilty of tax evasion , it had been for the applicants to demonstrate that the moneys in question had not in fact been undeclared taxable income . Since the applicants had not done so , the assessment of back taxation should be allowed to stand .

ORG rejected the suggestion that the imposition of a tax fine on the heirs of the taxpayer for tax evasion committed by the latter was contrary to LAW . After referring to its case - law , it went on to hold :

“ [ In earlier cases ORG ] has held that although the tax fine constituted a real penalty , it was directed at the deceased personally and not at the heirs ; the heirs were required , under LAW § CARDINAL of the Ordinance on Direct Federal Tax , only to ensure that the fine was paid and only up to the value of their share of the estate . That the fine was not directed at the heirs also appeared from the fact that the fine was determined in principle [ grundsätzlich ] according to the guilt of the deceased and the heirs could escape their liability by renouncing the inheritance . As ORG has held , the effect of the arrangement laid down in LAW § CARDINAL of the Ordinance on Direct Federal Tax – according to which in pending proceedings the heirs take the place of the deceased , and [ new ] proceedings were to be initiated and pursued against the heirs if the evasion was discovered only after the death of the deceased – is only that all cases are dealt with in the same way , irrespective of the time factor . ”

However , as the fine had to be determined anew , the case was referred back to ORG .

The applicants applied to the ORG on DATE .

On DATE ORG gave a decision setting the fine at MONEY ( CHF ) , or PERCENT of the amount that would normally have been due , in view of the applicants ' basically cooperative attitude .

The applicants lodged an administrative - law appeal to ORG on DATE . They produced , inter alia , medical evidence from which it appeared that in DATE of his life Mr L. had not been wholly responsible for his actions and they suggested that a fine of not MONEY CARDINAL,CARDINAL would be more appropriate to reflect his guilt .

ORG and ORG and ORG were invited to submit written comments , and they asked ORG to dismiss the appeal .

In a judgment delivered on DATE ORG upheld the applicants ' appeal in so far as it was argued that the question of Mr L. 's diminished responsibility should have been considered and referred the case back to ORG for a second time .

On DATE ORG gave a decision in which it reduced the fine that would have been payable by Mr L. himself on the ground of his diminished responsibility , and in view of the applicants ' attitude set the final amount at PERCENT of that figure , or CHF CARDINAL,CARDINAL.CARDINAL .

At the relevant time , tax evasion was punishable by a fine of CARDINAL times the amount evaded , the fine being payable in addition to the amount due ( Article CARDINAL § CARDINAL of the Ordinance on Direct Federal Tax ) .

Article CARDINAL § CARDINAL provided , inter alia :

“ If the evasion is discovered only after the death of the taxpayer , proceedings shall be brought against his heirs . Irrespective of personal guilt , the heirs shall be jointly liable for the deceased person 's evaded taxes and the fine incurred by him up to an amount not exceeding their share in the estate . ”

According to Article CARDINAL § CARDINAL of the Swiss Civil Code , an inheritance passes upon the death of the deceased .

The relevant parts of LAW of the Swiss Civil Code provide :

“ CARDINAL . The heirs shall automatically acquire the entire estate as soon as it passes .

Subject to the statutory exceptions , all claims and actions , property rights and other rights in rem and possessions of the deceased shall automatically pass to them , and they shall become personally liable for the deceased 's debts . ”

Under LAW § CARDINAL of the Swiss Civil Code , the heirs have the right to renounce the inheritance which has devolved to them . The time - limit for so doing is DATE ( Article CARDINAL § CARDINAL ) .

It was open to the taxpayer to lodge an objection against an assessment of direct federal tax to the authority which had made it ( Article CARDINAL of the Ordinance on Direct Federal Tax ) .

An appeal against the decision given in the objection proceedings lay to ORG ( Article CARDINAL of the Ordinance on Direct Federal Tax ) . ORG of the canton and the federal tax authorities could also bring such an appeal ( Article CARDINAL ) .

An administrative - law appeal lies to ORG against the decision of ORG ( section CARDINAL ( e ) of LAW ) . Such an appeal may be lodged by both the tax debtor and the federal tax authorities ( LAW of the Ordinance on Direct Federal Tax ) .

If ORG orders an exchange of written pleadings , it asks the authority which gave the decision to forward the case file ( section CARDINAL ( CARDINAL ) of LAW ) , at the same time inviting it to submit its comments in writing ( section CARDINAL ( CARDINAL ) ) .

The cantonal authority which gave the last decision at cantonal level is also invited to comment ( section CARDINAL ( CARDINAL ) ) , as is the federal authority which would itself have been entitled to lodge an appeal ( section CARDINAL ( CARDINAL ) ) .

At the material time , section CARDINAL ( CARDINAL ) of ORG made it possible for a CARDINAL - judge ORG to dismiss an administrative - law appeal as manifestly ill - founded without a hearing , provided that its decision was unanimous .

Under Article CARDINAL § CARDINAL of LAW , the general provisions of the LAW apply to offences created by other federal laws unless the latter provide otherwise .

Article QUANTITY CARDINAL of the Criminal Code provides that a fine lapses if the convicted person dies .

However , pursuant to LAW , LAW see paragraph CARDINAL above ) derogates from this principle as a lex specialis .

Section CARDINAL ( CARDINAL ) of ORG of DATE , in force since DATE , provides for the liability of heirs , inter alia , for any fines determined with legal force . According to section CARDINAL ( CARDINAL ) , the heirs shall not be so liable if the tax evasion proceedings are concluded after the death of the taxpayer , provided that the heirs themselves are guiltless and do what they can to enable the tax authorities to make a correct assessment .


The applicant is a NORP national , born in DATE . At present he is resident in GPE to where he was returned by the NORP authorities . He is represented before the ORG by PERSON Bjørn ORG , a lawyer practising in GPE .

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

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

The applicant came to GPE in DATE and applied for asylum . In DATE he married a NORP citizen but the marriage only lasted DATE . In DATE he married another NORP citizen . His request for asylum was rejected by the NORP authorities but he received in DATE a residence permit due to the fact that he was married to a NORP citizen . No children have resulted from any of the marriages . His parents as well as QUANTITY sisters still live in GPE whereas other members of his family live in GPE and GPE . While living in GPE the applicant visited GPE CARDINAL times , most recently he spend DATE there in DATE . He experienced no problems while he was there . He received a new NORP passport in DATE .

In DATE the applicant was arrested and charged with narcotics offences , namely for having been in possession of QUANTITY of heroin and QUANTITY of cocaine , for the purpose of passing it on . He was detained on remand . On DATE an indictment was served and the trial commenced in ORG ( byretten ) on DATE . The applicant pleaded guilty to the charges brought against him whereas he opposed the prosecutor ’s request for an expulsion due to the fact that he had lived in GPE since DATE , had been married to a NORP citizen since DATE and since he allegedly risked CARDINAL years’ imprisonment according to NORP law , due to his conviction in GPE , in conditions which would be cruel and inhuman .

By judgment of DATE the applicant was found guilty of the charges brought against him and sentenced to ORG imprisonment . ORG also decided to expel the applicant from GPE for ever .

The applicant appealed against the judgment requesting a more lenient sentence and acquittal as regards the decision to expel him . On DATE the High Court of Eastern Denmark ( PERSON ) upheld ORG judgment in its entirety . As regards the expulsion order ORG stated :

“ Due to the character and extent of the criminal activity concerned ( ORG ) agrees that the requirements for expulsion pursuant to LAW ... are fulfilled . The allegations that ( the applicant ) might perhaps be sentenced to an additional term of imprisonment in GPE for the crimes committed and that serving a sentence in a NORP prison would run counter to the minimum standards of prison conditions acknowledged by GPE do not speak decisively against expulsion . Furthermore , there appears to be no other special reasons speaking in favour of refraining from expulsion pursuant to LAW ... ”

On DATE the applicant applied for leave to appeal to ORG ( Højesteret ) . This was refused on DATE . On DATE the deportation order was carried out .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The CARDINAL applicants are NORP nationals who live in the “ GPE ” ( “ GPE ” ) . The first applicant , PERSON , is the mother of the second , third and fourth applicants , Mr PERSON , PERSON and Mr PERSON . The fifth applicant , Mr PERSON , is the brother - in - law of the first applicant . The applicants were born in DATE , DATE , DATE , DATE and DATE respectively . The first CARDINAL applicants have lodged the application on their own behalf and on behalf of Mr PERSON , the husband of the first applicant and the father of the second , third and fourth applicant . The fifth applicant has lodged the application on his own behalf and on behalf of his brothers , Mr PERSON and PERSON . The applicants were represented before the ORG by Mr PERSON and PERSON , lawyers practising in the GPE .

The complaints raised in the present application concern events that took place during the second round of military operations by GPE in northern GPE in DATE .

Before the events of DATE , the applicants , Mr PERSON and PERSON lived in PERSON , in the district of GPE .

On DATE , the NORP quarter of PERSON was under heavy fire from units of ORG . ORG advised NORP - NORP residents , through loudspeakers , to remain in their houses and the PERSON family , including the applicants and PERSON and PERSON , gathered in the house of PERSON . At the time , the second , third and fourth applicants were children aged DATE respectively , PERSON was DATE and PERSON was DATE . Everyone in the house was in civilian clothes and unarmed . While they were in the house , members of the NORP - Cypriot forces fired at the door with automatic weapons . They subsequently kicked the door open while continuing to fire , shooting and wounding PERSON , who was close to the door . PERSON then entered from the adjacent room with his hands on his head pleading with the assailants not to shoot as there were women and children among them . He was taken outside and shot with an automatic weapon . He died immediately . The dead and wounded were taken outside while the women and children were kicked , humiliated , abused and struck with rifle butts before being pushed out of the house . PERSON , who was still alive at the time not having received fatal wounds , was taken away by the NORP - Cypriot forces , together with the dead body of PERSON .

All the remaining NORP Cypriots were taken from their houses to the football pitch in town . There they were divided into groups . A number of them , including the fifth applicant , were sent to a prisoners ' camp and the rest were sent back to their homes . The fifth applicant was detained in the prisoners ' camp for DATE .

On DATE , DATE after the killings , the dead bodies of GPE and PERSON were returned to their relatives by ORG . They were taken by their relatives to the courtyard of the local mosque for burial . PERSON jaw and ribs were broken and he had pinholes in his body .

ORG of the town , PERSON , identified by name QUANTITY persons he alleged were responsible for the crimes committed on DATE . According to the applicants , the NORP - Cypriot authorities also knew the identities of the persons concerned and the NORP - Cypriot President at the time announced that those responsible would be punished .

In DATE , the second applicant visited the tombs of his father and uncle in the NORP part of the island . He was approached by a NORP - Cypriot who informed him of the names of CARDINAL people responsible for their deaths ; all CARDINAL were among those previously accused by PERSON of the killings . The second applicant was also told that the massacre had been ordered by a NORP military chief commandant .

By letter dated DATE the applicants ' lawyer requested the Attorney - General of GPE to inform him , by DATE , whether the authorities had carried out any investigation into the killings of Mr PERSON and PERSON ; the result of any such an investigation ; and whether the persons involved in the commission of the crimes had been brought to justice .

By letter dated DATE the Attorney - General informed the applicants ' lawyer that the contents of his letter of DATE was under consideration and that he would contact him in due course . No further correspondence from the Attorney - General has been received by the applicants ' lawyer .