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

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

The applicants are journalists . At the material time they were working for the newspaper PERSON .

On DATE the GPE police commenced a judicial investigation concerning a number of articles the applicants had published in PERSON . According to the police , certain statements made about the then NORP President , PERSON , amounted to an insult to authority , an offence punishable under LAW .

At their trial in ORG , the applicants pleaded that LAW was unconstitutional . ORG dismissed their objection in a decision of DATE , noting that the purpose of LAW of LAW was to uphold the authority of the ORG and that it was necessary to punish such an offence as the authority of the ORG was a prerequisite for the exercise of ORG power . The offence therefore involved an insult aimed at authority , not an individual . Furthermore , whether the offence had taken place or not depended on the status of the victim , who had to be someone holding high office within the ORG . Article CARDINAL was necessary to create an ideal climate of order and perfect security for people entrusted with important duties under the ORG ’s programme . The crucial requirement for the charge of insult to authority to be made out was that the offence committed should have been such as to undermine authority , for if that condition was not satisfied , the offence did not constitute an insult to authority but an offence against an individual , even if it had been committed against a person holding high office within the ORG .

The applicants appealed against ORG decision .

On DATE ORG Instance found the applicants guilty of the offence of insult to authority provided for in LAW on the ground that in articles published from CARDINAL DATE in PERSON they had denigrated or even insulted the NORP President , PERSON , through tendentious or false statements . The court noted , in particular , that in an article published on CARDINAL DATE , the first applicant had called the NORP President , Mr GPE , a murderer , accusing him of having ordered the distribution of arms on CARDINAL DATE and hence of having deliberately triggered off the ensuing “ genocide ” . ORG also noted that the applicants had stated in an article published on CARDINAL DATE that Mr PERSON had been recruited by the ORG while he was studying in GPE .

The court sentenced the first applicant to DATE imprisonment and the second to CARDINAL years’ imprisonment .

The applicants appealed against that decision .

On DATE ORG dismissed the ORG appeal against its decision of DATE , holding that LAW of LAW was compatible with LAW and LAW .

The appeal against the judgment of DATE was allowed by ORG in a decision of DATE against which no further appeal lay . ORG acquitted the applicants , holding that the provisions of LAW were not applicable to the press , as the statements in question related to political matters , for which the freedom of expression as safeguarded by LAW was broader . Lastly , ORG considered that the applicants could not be punished otherwise than by the application of rules of professional conduct .

The relevant provisions of LAW are the following :

OFFENCES AGAINST DIGNITY

“ Anyone who disparages the reputation or honour of another through words , gestures or any other means , or by exposing him to mockery , shall be liable to imprisonment for DATE or to a fine . ...

The prosecuting authorities are seised of the case on a complaint by the victim . ... ”

“ Anyone who makes any statement or allegation in public concerning a particular person which , if true , would render that person liable to a criminal , administrative or disciplinary penalty or expose them to public opprobrium , shall be liable to imprisonment for DATE or to a fine . ”

“ Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest . Where the truth of the statement or allegation is proved , no offence of insult or defamation will have been committed . ”

OFFENCES AGAINST AUTHORITY

“ Public disparagement of or threats against a person belonging to CARDINAL of the categories referred to in LAW in connection with their activity and of a nature to undermine authority shall be punished by imprisonment for DATE . ... ”

“ Insults , defamation or threats uttered directly or by direct means of communication against a civil servant holding an office which involves the exercise of ORG authority in the performance of his duties or on account of acts carried out in the performance of his duties shall be punished by imprisonment for DATE .

Assault or any other act of violence together with infliction of bodily harm on the persons referred to in the first paragraph during the performance of their duties or on account of acts carried out in the performance of their duties shall be punished by imprisonment for DATE and , in the case of serious bodily harm , by imprisonment for DATE .

Where the offences referred to in the preceding paragraphs have been committed against a member of the national legal service , police officer , gendarme or other member of the military , the maximum sentence shall be increased by DATE ” .


No violation of Art. 5-1;No violation of Art. 8 as regards the right to respect for family life;Violation of Art. 8 as regards the right to respect for private life;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

In a dispute with her neighbours about a right of way , she was a party to various sets of legal proceedings , as detailed below .

The applicant 's neighbours accused her of preventing them on DATE from taking the track leading to the housing estate . On DATE the ORG ( FAC ) made a summary order ( nakaz karny ) requiring the applicant and her husband to pay a fine . On DATE the same court , taking into account the low level of the disturbance to public order caused by the offence , made a discontinuation order ( postanowienie o umorzeniu postepowania ) , coupled with a probationary period of DATE .

On DATE it found the accused not guilty ( wyrok uniewinniający ) . Having compared the evidence given by the victims and the witnesses they had asked to be called , it noted differences which undermined the credibility of their version of the facts . On DATE ORG ( Sąd Wojewódzki ) dismissed an appeal by the prosecution .

In DATE the applicant was prosecuted under LAW ( see “ Relevant domestic law ” below ) for an offence committed on DATE . On DATE the ORG asked for the applicant to be examined by CARDINAL psychiatrists in order to determine whether , at the material time , she had been in full possession of her mental faculties . The court grounded this request on the fact that the applicant was under treatment as an outpatient of the neurology centre and the fact that she had also been required to undergo a psychiatric examination in connection with another case . The examination was arranged for DATE . The applicant was duly informed of the appointment but did not attend .

On DATE the consultation was put back to CARDINAL DATE , but did not take place on DATE because the applicant announced that she was seriously ill .

On DATE ORG informed the applicant in an ordinary letter that the consultation had been put back to DATE and made it clear that her attendance was compulsory and that if she did not comply with the order it would be obliged to have her arrested .

On DATE ORG issued a warrant for the applicant 's arrest , if required , in order to enforce her attendance at the psychiatric examination on DATE .

The applicant was arrested at her home on DATE at TIME At CARDINAL she signed the arrest report and wrote on it that she had heart problems , that she intended to complain about the arrest and that she did not want anyone in her family to be informed .

Initially ( in her observations of DATE ) , the applicant submitted that she had sent a medical certificate to explain why she could not attend the appointment with the psychiatrist .

The Government asserted that no certificate had been received by the court , which had ordered the applicant to be escorted to her medical examination , and that a certificate could not have been mislaid by ORG registry .

In reply the applicant submitted that , not having received a summons , she did not find out about the court 's decision until the police arrived . It was then that she had informed them that she had been unable to attend the appointment and had given them a medical certificate dated CARDINAL DATE showing that she had been admitted to hospital with a heart condition .

The Government then asserted that no medical certificate dated CARDINAL DATE mentioning that the applicant had to be treated in hospital had been received by ORG .

The applicant insisted that she had handed over such a certificate to the police , pointing out that she could not be held responsible if the police officers had omitted to send it on to the court .

According to the applicant , her daughter , then aged DATE , had been present when she was arrested . CARDINAL of the police officers had snatched the child out of her arms , as a result of which the girl had been traumatised . She alleged that the police made her get into the van , leaving the child at home unsupervised . She produced a certificate drawn up on DATE by a psychologist , stating that her CARDINAL daughters were receiving treatment for sleep disorders , namely nightmares and sudden panic attacks .

As regards the presence of the applicant 's daughter when she was being arrested , the Government asserted that they were unable to say whether or not the child had been left alone . The arrest report contained no information of that kind and the applicant had not at any time asked to be allowed to contact a member of her family . The ORG submitted a letter dated DATE in which the commander of the local police stated that , when he interviewed the officer responsible for the arrest , the latter had informed him that he no longer remembered the exact circumstances but that if the child had been present he would have taken the normal steps to ensure that there was someone to look after her . The Government also pointed out that the medical examination had taken TIME and that the applicant had soon been able to go home .

The applicant , on the other hand , said that the police had forbidden her to contact a member of her family or her doctor . She also presented an affidavit signed by CARDINAL party who had been in the same police van , certifying that when the vehicle broke down they had been obliged to wait in it on the road without any concern being shown by the police as to whether they were correctly dressed to protect themselves from the cold .

On DATE the applicant complained about being arrested . On DATE the President of ORG refused to entertain her application , since there was no provision for such a remedy . On DATE that decision was upheld on appeal by ORG .

According to the information noted by ORG in its decision of DATE concerning another case in which the applicant was involved ( see Section C of this statement of the facts ) , the report on the examination on DATE said that the applicant had not been in full possession of her mental faculties at the material time . The doctors also pointed out that since DATE she had been receiving treatment for epilepsy .

On DATE the family affairs judge ( sędzia rodzinny ) brought proceedings against the applicant 's CARDINAL minor daughters to establish whether or not on DATE , as alleged , they had thrown stones at their neighbour and insulted her , in the presence of and encouraged by their mother .

On DATE the applicant protested against that measure .

On DATE the ORG issued a warning ( upomnienie ) to the girls and noted that CARDINAL of them had partly lost her moral bearings . It found that the incident had formed part of the ongoing dispute between the victim and the children 's parents . It further noted that the QUANTITY girls were model pupils and had never been convicted of similar offences .

On DATE ORG dismissed an appeal by the applicant . It found that a warning was not only the least severe correctional measure but also the most appropriate one in the circumstances . On DATE the Minister of ORG refused leave to appeal on points of law to ORG .

On DATE the PERSON district prosecutor 's office ( GPE ) preferred an indictment against the applicant . She was prosecuted for inciting her daughters on CARDINAL DATE to attack their neighbour physically and verbally , as a result of which the victim had sustained numerous lesions .

On DATE the applicant was also charged under Article CARDINAL § CARDINAL of LAW for having , on DATE , threatened her neighbour with a shovel handle and prevented her using the track to the housing estate .

On DATE the ORG decided to require the applicant to undergo a psychiatric examination . On DATE the GPE - Kobierzyn neuropsychiatric hospital asked the applicant to go for an examination on DATE . On DATE the same court decided to place the applicant in the GPE - Kobierzyn psychiatric hospital for observation . It noted that the report produced after the medical examination of DATE revealed a risk that the applicant might be suffering from delusions ( psychoza urojeniowa ) . As it found the consultation inconclusive , the court accepted the doctors ' opinion that a longer period of observation was necessary . It concluded that , if the applicant 's state of health could be known with certainty , it would be possible to decide what provisional measures should be taken .

On DATE the applicant appealed against the decision of DATE . She said that on DATE she had already been required to undergo a psychiatric examination in PERSON in connection with another case . She also complained that she had not been informed of the doctors ' findings .

On DATE the ORG again ordered the applicant to undergo a psychiatric examination . It noted that psychiatric reports had been ordered twice in quick succession . As views on the applicant 's state of health were divided , it considered that a fresh consultation was required . That took place on DATE .

On DATE ORG decided to send the file back to the prosecutor for further investigation . It pointed out that the applicant had been required to undergo a psychiatric examination in a similar case before the same court ( see Section B above ) and that the prosecutor was therefore under an obligation to provide all the useful information about her in his possession . The court also pointed out that on DATE a criminal - law reform was due to come into force in GPE and that that might have a bearing on how the further proceedings would be organised .

On DATE the applicant appealed against the decision to transfer the file . She argued that the doubts expressed by the judge about her mental health were unfounded , especially as the findings of the psychiatric examination referred to by the court had been favourable .

On a date which has not been specified the district prosecutor appealed against the same decision , arguing that the prosecution had not been aware either that another similar case was pending before ORG or that the applicant had already been required to undergo a psychiatric examination .

On DATE ORG dismissed the appeals by the applicant and the district prosecutor . It noted that , since the psychiatric report of DATE ( see Section B above ) had stated that the applicant was not in full possession of her mental faculties at the material time , a further expert report was necessary . The main aim of the new examination should be to establish whether the applicant was still in the same condition as she had been at the material time . The court also pointed out that the district prosecutor had taken part in the DATE proceedings .

On DATE the PERSON district prosecutor decided to order the applicant to undergo a psychiatric examination at the FAC Targ hospital with a view to establishing whether she was suffering from a mental illness , whether at the material time she had been in full possession of her mental faculties and whether the fact that she was still at liberty posed a threat to public order . On DATE the applicant complained about the prosecutor 's decision . She contended , among other arguments , that ordering a consultation on the ground that she had already been examined in a similar case was an abuse of the legal means placed at the judicial authorities ' disposal .

On DATE the Rabka police summoned the applicant to attend a consultation at the hospital in PERSON on DATE . On DATE , for a reason not explained in the file , the PERSON police again summoned the applicant to attend a consultation arranged for DATE .

The report on the consultation of DATE stated that the applicant 's mental health was good .

On DATE the Rabka police summoned the applicant for the third time , to a consultation on DATE . On the date specified the applicant went to the hospital . The doctor discovered that she had been examined on DATE and explained that the local police must have made a mistake .

On DATE the Nowy Targ District Court found the applicant guilty of inciting her children on DATE to insult and throw stones at their neighbour and of threatening the neighbour on CARDINAL DATE with a shovel handle , thereby preventing her from taking the track leading to the housing estate . It sentenced the applicant to a fine , together with a term of imprisonment in default of payment within the time allowed .

On DATE ORG dismissed an appeal against ORG judgment . It held that , as regards the assault on DATE , the applicant had not been in full possession of her powers of discernment so that she was unable to understand the significance of what she had done . It noted that CARDINAL medical reports of DATE and DATE had established that the applicant was not in full possession of the mental faculties she needed to be able to understand the consequences of her conduct .

On DATE the PERSON district prosecutor preferred an indictment against the applicant and her husband , accusing them of carrying out unauthorised renovation work on a roof supported on wooden props previously built with planning permission .

On DATE the district prosecutor had ordered the applicant to undergo a psychiatric examination . On DATE the doctors reported that the applicant was not suffering from any mental disorder . At the interview she explained that the purpose of the roof was to protect her family from the smells given off by the neighbours ' septic tank . She also said that she had not known such a structure required planning permission .

On DATE the ORG found the applicant and her husband guilty of the offence as charged and ordered them to pay a fine .

Article CARDINAL § CARDINAL of the Criminal Code formerly provided :

“ It shall be an offence , punishable by DATE imprisonment , a restriction of liberty or a fine , to use violence or threats to compel another to behave in a particular way . ”

LAW authorised a court , exceptionally , to reduce the sentence if the offender had not been in full possession of his or her mental faculties at the time of the offence .

DATE placed all defendants under the obligation to submit to any medical examination made necessary by the investigation of the case , surgery excepted .

Article CARDINAL created an obligation to comply with a summons from a prosecutor or court . In the event of refusal without a valid reason , the person concerned could be brought by force .

Article CARDINAL § CARDINAL empowered a court to require a person to undergo an examination by a scientific or research institute , a specific centre , or any other institution or person . It made it clear that the consultation should not be ordered for any purpose other than obtaining specific information about the person concerned .

Article CARDINAL § CARDINAL provided that the court or prosecutor was empowered to order the arrest of a suspect or compel his or her appearance before them .


Violation of P7-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the city of GPE , GPE , GPE .

In the course of civil proceedings for defamation brought by a Member of ORG in which the applicant was a co - defendant , the applicant was summoned to a court hearing in DATE ( exact date unknown ) . According to the applicant , the summons was never served on him properly , and the postman later confirmed this .

On DATE the court imposed a fine of UAH CARDINAL on the applicant for his failure to appear . The court also indicated in its decision that the applicant could appeal within DATE . According to the applicant , he received this decision on DATE .

On DATE the applicant lodged an appeal against the decision of CARDINAL DATE . In his appeal the applicant did not indicate the reasons for lodging it outside the time - limit and did not request its extension . On DATE ORG of PERSON rejected the appeal as having been submitted too late .

On DATE the applicant lodged with ORG of GPE ( hereinafter the “ HCARC ” ) an appeal against the decision of DATE together with a request for the composition of the first instance court to be changed . In DATE the applicant was informed that the HCARC had only received the request but not the appeal .

Within the framework of the same set of civil proceedings , the applicant was summoned to appear before the court on DATE . The applicant maintains that he informed the court in advance that he would not be able to attend because of his holiday plans . On DATE the applicant requested PERSON to inform the judge that he could not attend the hearings due to his illness . According to PERSON , he did so on DATE . The court nevertheless decided to institute administrative proceedings against the applicant for his repeated failure to appear before the court .

On DATE the court decided in the applicant 's presence to impose DATE administrative detention on him for contempt of court , as manifested by his repeated failure to appear . The court found that the applicant was at his place of work on DATE of the hearings , as confirmed by his employer – ORG of GPE ( hereinafter the “ POARC ” ) . The court found no evidence in the case file indicating that the applicant had officially informed the court of any good reason for his absence . It disregarded the sick leave certificate produced by the applicant for the date in question .

DATE the applicant was arrested and placed in a cell , which he described as cold .

NORP The applicant 's arrest was covered by the local press in DATE .

On DATE the POARC lodged an extraordinary appeal ( protest ) with the HCARC . This appeal suspended the enforcement of the decision of DATE and the applicant was released after spending TIME in detention .

In its appeal the POARC did not dispute the fact that the applicant had committed an administrative offence , but considered that the applicant had to be sanctioned under LAW rather than under administrative proceedings .

On DATE the President of the HCARC rejected this appeal .

From DATE the applicant was in hospital suffering from an acute form of chronic urological disease . According to the applicant , this illness was caused by his detention in the cold cell on DATE .

On DATE the applicant lodged a request with the HCARC for an extraordinary review of the decisions of CARDINAL May , CARDINAL DATE and DATE . This request was rejected on CARDINAL DATE by the President of the HCARC .

From DATE the applicant served the remainder of the administrative detention .

On DATE the applicant was dismissed from his position as a prosecutor attached to the POARC .

On DATE the applicant lodged a further request with ORG of GPE for an extraordinary review of the decisions of CARDINAL May , CARDINAL DATE and DATE . This request was rejected on DATE .

NORP In DATE the applicant was diagnosed with Hepatitis C , which he believed he could have contracted in the prison or in the hospital in DATE .

In DATE , the former Prosecutor of GPE , PERSON , lodged a claim with the Simferopolskiy District Court of GPE against the applicant for defamation . On DATE the court found against the applicant and ordered him to pay UAH CARDINAL in compensation for moral damage . The applicant was not present at the final court hearing .

On DATE the ORG rejected the applicant 's cassation appeal as having been submitted too late .

NORP In DATE the applicant lodged a request for extraordinary review with the President of the HCARC . The Deputy President of the court allowed this request and lodged an extraordinary appeal with the court .

On DATE the plenary of the HCARC allowed the appeal . The decision of DATE was quashed in part on the ground that some of the matters covered by that decision had been finally decided within the framework of other proceedings . The court also reduced the amount of the fine to be paid by the applicant to ORG CARDINAL .

On DATE the panel of CARDINAL judges of ORG rejected the applicant 's request for leave to appeal under the new cassation procedure .

Paragraph CARDINAL of Article CARDINAL of the PERSON foresaw that , in the event of a failure of a party to the proceedings to appear before a court without valid reasons , and if such failure led to the postponement of court hearings , the court could impose on the person a fine of CARDINAL instalment of the “ minimum non - taxable income ” ( UAH CARDINAL ) .

Article CARDINAL of the Code provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of DATE .

Paragraph CARDINAL of LAW foresaw punishment by a fine or administrative detention for DATE for contempt of court , manifested , inter alia , by a repeated failure to comply with a summons to appear .

Article CARDINAL of the Code provided that the decision imposing an administrative sanction could be appealed , except for the decisions given by the first instance court . The latter were final and were not subject to the ordinary administrative appeal procedure , unless the legislation provided otherwise .

Article CARDINAL of the Code provided that the prosecutor could lodge an extraordinary appeal ( a “ protest ” ) against a decision imposing an administrative sanction .

Article CARDINAL of the Code provided that a court decision on an administrative offence could be reviewed by the judge of the same court upon an extraordinary appeal lodged by a prosecutor , or by a judge of a higher court on his or her own motion .


Violation of Art. 6-1;No violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE , the applicant was arrested by police officers from the anti - terrorism branch of ORG on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the ORG ( ORG , an illegal organisation ) . The applicant was also accused of hanging an illegal placard on a bridge in GPE on DATE .

On CARDINAL DATE the police officers took a statement from the applicant in which he admitted the charges .

On DATE the applicant was brought before the public prosecutor and then the investigating judge . Before both officials , the applicant denied the content of his police statement , alleging that it had been extracted from him under duress . DATE , the investigating judge remanded the applicant in custody .

On DATE the public prosecutor at ORG filed an indictment with the same court , accusing the applicant of aiding and abetting the ORG , an offence under LAW no . ORG ( the anti - terrorism law ) .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment . This sentence was then reduced to DATE imprisonment as the applicant had been DATE at the time of the offence .

When delivering its judgment , ORG had taken into consideration the statements which the applicant had made to the police , the public prosecutor and the investigating judge , as well as his co - defendants’ testimony before the public prosecutor . The court noted that the latter had given evidence that the applicant had organised them to participate in the demonstration . The court further took note of the expert report which suggested that the applicant ’s handwriting was identical to that on the placard . The court also noted that , according to the arrest report drawn up by the police , the applicant had been among the people who dispersed after the demonstration .

On DATE , ORG at ORG submitted his written opinion to ORG , in which he had argued that the ORG should uphold the judgment of ORG .

On DATE the CARDINALth Chamber of ORG confirmed that judgment .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

A summary account of historical events in which the present application originated can be found in the ORG ’s decision in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE , ECHR CARDINAL- ... ) .

In DATE the applicant ’s family , in view of ORG approach , had to flee Willenberg ( at present PERSON in GPE ) . This region before and during the Second World War belonged to ORG . After the defeat of GPE at the end of the war , when the border between GPE and GPE was drawn along the PERSON - Neisse line , it was included in the territory of GPE ( see ORG . PERSON , cited above , § CARDINAL ) .

When escaping ORG , the Marrek family were stopped by NORP and NORP militiamen . The applicant maintains that his father was arrested and first taken to a camp in GPE and then to the GPE ghetto where he died in DATE .

The applicant ’s grandmother decided to return with her family to their farm . In DATE the applicant ’s family , after having experienced several hostile attacks from local militiamen , left their house . DATE CARDINAL NORP families moved in .

The applicant further submits that they were arrested several times , treated as an easily available workforce and not allowed to join the rest of the family living in GPE . In DATE the applicant obtained an engineering degree . This also prompted the authorities to refuse him permission to leave GPE .

In DATE , after mediation by ORG , he was finally granted permission to leave GPE .

The applicant has still not been allowed to return to his home and has been refused restitution of his family ’s property .

A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) .


Remainder inadmissible;No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in GPE .

In DATE and DATE a presidential election was held in GPE , during which the applicant was involved as an authorised election assistant ( վստահված անձ ) for the candidate representing ORG of GPE ( ORG ) , who was the main opposition candidate in the election . Following his defeat by the incumbent President , the ORG candidate challenged the election results in ORG , which on DATE recommended that a referendum of confidence in the re - elected President be held in GPE within DATE .

As the April CARDINAL DATE deadline approached , the opposition stepped up its campaign to challenge the legitimacy of the re - elected President . At DATE CARDINAL main opposition groups – ORG , consisting of CARDINAL parties , including the ORG and ORG – announced their intention to start a series of demonstrations demanding the resignation of the re - elected President .

NORP The applicant alleges that from DATE until his arrest in DATE he was repeatedly harassed because of his political activity . In particular , the police frequently called him to the police station without any reasons and demanded that he stop his political activities and support for the opposition .

On DATE criminal proceedings no . DATE were instituted under LAW ( ORG ) against representatives of ORG on account of making calls for a violent overthrow of the government and change of the NORP constitutional order and of publicly insulting government representatives .

On DATE the applicant was handing out leaflets to people at a marketplace in GPE , inciting them to attend a demonstration to be held in the capital on DATE . The leaflets had the following content :

“ Fellow countrymen

It is not possible any more to continue this way .

On DATE at TIME in FAC we will start our struggle which aims to establish a lawful government in GPE . The future of our homeland depends on the participation of each of us .

ORG Justice Alliance ”

The applicant was stopped by QUANTITY police officers , ORG , who demanded that he accompany them to a police station . It appears that this happened at TIME

According to the applicant , they arrived at the police station at TIME At the police station he was placed in a waiting room with a glass wall next to the corridor , where he spent TIME . During this period he noticed several people behind the glass wall pointing at him as if to identify him . He had no access to a lawyer during this period .

It appears that at some point the applicant was transferred to a prosecutor ’s office where from CARDINAL to TIME and from TIME p.m. two confrontations were held between him and CARDINAL witnesses , GPE and GPE , respectively , who worked at the marketplace . The relevant records stated at the outset that there had been substantial contradictions between the statements of these witnesses and the applicant , who at this stage was also involved as a witness .

Witness PERSON stated during the confrontation that DATE , at TIME , he had noticed the applicant handing out leaflets and saying something to people at the marketplace . Then the applicant had approached him and given him a leaflet , saying that “ DATE after it would be the end of the government and the government would be changed and that they would put an end to the government and sort them out ” .

Witness GPE stated that the applicant had approached him at TIME and given him a leaflet , saying that he should “ come to the demonstration where they would crush and overcome ” , after which the applicant left .

The applicant denied having handed out any leaflets or made any such statements .

At TIME an arrest record was drawn up which noted that eye - witnesses had stated that the applicant had handed out leaflets and made calls for a violent overthrow of the government . The applicant again denied these allegations .

On DATE the GPE and ORG of GPE granted the investigator ’s motion to have the applicant ’s flat searched . This decision stated that there were sufficient grounds to believe that written calls , leaflets , plans and projects to overthrow the government and change the constitutional order violently and to insult representatives of the government publicly , as well as firearms , ammunition and other objects and documents relevant to the case , could be found in the applicant ’s flat .

On DATE the investigator invited a legal aid lawyer , GPE , to represent the applicant ’s interests . According to the relevant record , the applicant agreed that his interests be represented by lawyer GPE

On DATE from TIME the applicant ’s flat was searched in the presence of CARDINAL attesting witnesses but no items were found .

From TIME the applicant was questioned as a suspect in the presence of lawyer GPE The applicant again denied all the allegations .

On DATE the applicant was formally charged within the scope of criminal proceedings no . DATE under LAW . This decision stated :

“ ... [ the applicant ] , having received from [ the district office ] of ORG leaflets concerning the demonstration to be held on DATE at TIME on FAC with the aim of “ establishing a lawful government in GPE ” , distributed these leaflets to citizens and made calls to overthrow the government and change the constitutional order violently .

On DATE at TIME [ the applicant ] was caught by police officers while he was handing out the leaflets and a total of CARDINAL leaflets were confiscated from him .

Thus , [ the applicant ] has made calls to overthrow the government and change the constitutional order violently , namely he has committed an offence envisaged under LAW [ ORG ] . ”

The applicant and his lawyer signed this decision which , inter alia , stated that the nature of the charge had been explained to the applicant . The applicant once again gave his consent to be represented by lawyer GPE He was then questioned as an accused in the presence of his lawyer . The applicant submitted that the nature of the charge was clear to him but denied having distributed leaflets or made any calls at the marketplace .

On DATE the GPE and ORG of GPE granted the investigator ’s motion , dated DATE , to have the applicant detained .

On DATE a confrontation was held between the applicant and another witness , ORG , who apparently also worked at the marketplace . He identified the applicant as the person who had approached him on DATE , handed him a leaflet and told him to attend a demonstration on DATE during which a struggle to change the government would begin and that the authorities were unlawful and had to be changed . The applicant again denied having distributed leaflets or made any calls and submitted that witness ORG had been forced by the police to make false submissions . This confrontation was held in the presence of lawyer GPE

On DATE another confrontation was held between the applicant and arresting police officer PERSON who submitted that on DATE at TIME , having noticed that the applicant was distributing leaflets at the marketplace , they had approached him and asked to have a look at the leaflets . Having read what the leaflets said , they asked the applicant to come with them to the police station for clarification . The applicant denied these allegations . This confrontation was held in the presence of lawyer GPE

On DATE another confrontation was held between the applicant and the second arresting police officer , PERSON , who made submissions similar to those made by police officer PERSON The applicant submitted in reply that police officer PERSON ’s statement was true and that he had not told the entire truth in his previous submissions . The applicant admitted that he had distributed the leaflets at the marketplace but denied having said anything or made any calls for a violent overthrow of the government . He submitted that he regretted his actions and requested to be released from detention . This confrontation was held in the presence of lawyer GPE

On DATE the applicant was again questioned as an accused in the presence of lawyer GPE , during which he made similar submissions and pleaded partly guilty .

Later that day lawyer GPE filed a motion with ORG , seeking to have the applicant released from detention . He submitted that the applicant was known to be of good character , had a permanent place of residence , was a pensioner and would not abscond or obstruct the proceedings if freed . Furthermore , he had no criminal record , had pleaded guilty and regretted his actions .

It appears that on unspecified dates CARDINAL other witnesses , GPE and GPE , were also questioned in connection with the applicant ’s case . Witness PERSON stated that a tall person had been distributing leaflets at the marketplace on DATE . When handing him a leaflet , he said that a struggle aimed at establishing a lawful government in GPE would begin at the demonstration of DATE . He further incited everybody to participate in the struggle , topple the government and make a coup . Witness PERSON stated that a tall elderly person had handed him a leaflet at the marketplace on DATE and incited him to join the struggle , eliminate the current government , topple them by force and establish a new order .

The applicant alleged , which the Government did not dispute , that throughout the entire investigation his lawyer had never met or spoken with him in private , while in detention , to provide legal advice . Furthermore , the lawyer even failed to satisfy his request to be provided with a copy of LAW .

On an unspecified date the applicant ’s case was brought before the PERSON and Nor ORG of GPE which started its examination on DATE . The applicant submitted before ORG that he wished to be represented by lawyer GPE

The examining judge noted at the outset that the witnesses had been duly notified but had failed to appear and inquired about the opinion of the parties . The prosecutor submitted that they had to be compelled to appear . The lawyer made a similar submission on the ground that it was impossible to examine the case without the witnesses . The judge agreed and adjourned the hearing until DATE .

At the hearing of DATE CARDINAL witnesses appeared , witnesses GPE and GPE and police officers PERSON and GPE ..

Witness GPE admitted that he was seeing the applicant for the second time , the first time being on DATE at the prosecutor ’s office . He further submitted that DATE before he was at work at the marketplace when somebody had approached and given him a leaflet , adding that “ DATE at TIME there would be a demonstration on FAC ” . The person handing out the leaflets was tall and had grey hair . He gave the leaflet and said “ come at TIME , we will crush , shatter and conquer ” . Witness GPE submitted that he had understood from these statements that the demonstrators wanted to change the government . In reply to the applicant ’s lawyer ’s questions , witness GPE submitted that he was not familiar with that person and he could not say for sure if it was the applicant who had given the leaflet and made the statements . He was sure though that he had seen the applicant at the prosecutor ’s office . Witness PERSON explained that he had stated at the prosecutor ’s office that he had not seen who was distributing the leaflets , to which they replied that it had been the applicant . In reply to the judge ’s question as to why he had stated unequivocally during the investigation that it was the applicant who had distributed the leaflets and made the above statements , witness GPE submitted that he had said so because he had been told at the prosecutor ’s office that it was the applicant who was distributing leaflets in the area of the marketplace . He further submitted that he could not remember who it was , but people around him said that it was the applicant , so he said the same .

Witness PERSON submitted that at some point in DATE he was at the marketplace when the applicant , who was distributing leaflets , approached him and invited him to a demonstration in order to “ turn over ” the government . The applicant then left . Witness PERSON further confirmed his pre - trial statement and asked to rely on it . He also confirmed that the person distributing the leaflets , like the applicant , had grey hair and a white shirt and was tall .

Police officer ORG submitted that he was on duty at the marketplace with police officer G.A. where they noticed a person who was handing out leaflets . They approached him and brought to the police station , where he was identified as the applicant . They could not hear what he was saying to the vendors . In reply to the applicant ’s lawyer ’s questions , police officer PERSON said that he personally did not hear any calls from the applicant . Nor did any of the vendors tell him that the applicant had made calls .

Police officer G.A. made similar submissions .

The examining judge then announced that he had received an official letter from the police stating that witness PERSON had not been found at his place of residence , that witness PERSON was absent from his place of residence and lived elsewhere , and that the court ’s decision ordering the appearance of these witnesses , in its part concerning witness GPE , had not been executed for reasons not communicated to the court . The prosecutor requested that the pre - trial statements of these witnesses be read out . The applicant and his lawyer consented , after which the statements were read out .

The applicant was then examined , during which he admitted that he had distributed leaflets but denied having made any calls for a violent overthrow of the government .

Thereafter the trial entered its final stage of pleadings . The prosecutor made a speech , followed by the applicant ’s lawyer and the applicant himself . The lawyer , in particular , made the following speech : “ I find that the defendant must be acquitted ” .

On DATE ORG found the applicant guilty as charged and imposed DATE suspended sentence , ordering at the same time the applicant ’s release from detention under a written undertaking not to leave his place of residence . ORG found , in particular , that :

“ On DATE [ the applicant ] received leaflets from the PERSON and Nor PERSON district office of ORG concerning a rally to be held on DATE at TIME on FAC , distributed them to persons working and involved in trade in the area of the seventh market situated in [ ORG ] and made public calls inciting to a violent overthrow of the government and the constitutional order . In particular , when handing out leaflets to [ GPE , GPE , GPE , GPE and PERSON , he incited them to participate in the rally telling them ‘ You must come by all means , we will crush , overcome , put an end to the government and sort them out , we will make a coup , we will violently overthrow the current government and establish a new ORG ”

In support of its findings ORG relied on the statements of witnesses GPE , GPE , GPE , GPE and PERSON As regards , in particular , the statements made by witness GPE in court , ORG dismissed them as unreliable and admitted his statements made during the confrontation of DATE . ORG justified this decision by the fact that the statements made by witness GPE during the confrontation had been unequivocal . Thus , according to the entirety of the witness statements relied on by ORG , the applicant had made the following calls while handing out the leaflets and inciting people to attend the demonstration : “ we will crush and overcome ” ( witness GPE ) , “ the government will be changed and we will put an end to the government and sort them out ” ( witness FAC ) , “ a struggle will start at the demonstration aimed at changing the government and establishing a lawful CARDINAL ” , “ the current government will be overthrown and a new one will be established ” , “ the current government is unlawful and has to be changed ” ( witness ORG ) , “ the government has to be overthrown and a coup has to be made ” ( witness ORG ) and “ the current government has to be eliminated and violently overthrown and a new order has to be established ” ( witness PERSON ) .

On DATE the applicant lodged an appeal , which he apparently drafted himself . In his appeal the applicant submitted that during the investigation he had pleaded guilty only to distributing leaflets , which in any event was not an offence , but he had never made any calls for a violent overthrow of the government . He was not a member of any political party , had never participated in demonstrations or had links with the parties organising them . The applicant further complained about the fact that the statements made by witnesses GPE and FAC in court , which were favourable for him , had been considered unreliable , while other witnesses , being ashamed of their false statements , had failed to appear in court . He argued that the statements of those witnesses who had not been examined in court should not have served as a basis for his conviction . The applicant lastly stated that the arresting police officers had not heard him make any calls . Thus , he had been convicted on the basis of statements of CARDINAL or CARDINAL witnesses who had seen him for the first time at the prosecutor ’s office .

On DATE the proceedings commenced before the Criminal and Military Court of Appeal . The applicant submitted before ORG that he wished to be represented by lawyer GPE and pleaded not guilty . Lawyer PERSON also claimed that the applicant was not guilty and asked the court to acquit him .

At the hearing of DATE , following the applicant ’s examination , the presiding judge announced that it was necessary to summon and examine witnesses GPE , GPE and PERSON He further stated that he had telephoned all CARDINAL witnesses on DATE . PERSON ’s wife replied that DATE before he had gone to GPE for work and his whereabouts were unknown . PERSON ’s wife replied that he had gone to another region for work and that she had no further information about him . PERSON ’s relatives replied that he had left GPE for work . ORG decided , taking into account that the attendance of the above witnesses was indispensable , that they be compelled to appear . This task was assigned to the local police department . The hearing was adjourned until DATE .

At the hearing of DATE the presiding judge announced that , according to the police , the witnesses were absent from their places of residence . The police had promised to provide further information in writing . In reply to the presiding judge ’s question , the parties did not object to proceeding with the hearing and requested that measures be taken to ensure the attendance of the witnesses at the next hearing .

At the hearing of DATE the presiding judge informed the parties that an official letter had been received from the police informing that witnesses GPE , GPE and PERSON were absent from their places of residence . While reading out that letter , the presiding judge noticed that the police had visited the wrong address as far as witness ORG was concerned . The prosecutor then requested that their statements be read out . Lawyer GPE submitted that the witnesses in question had made defamatory statements against the applicant during the investigation which lacked credibility and it was therefore necessary to bring them to court with the help of the police . The applicant joined his lawyer ’s request and asked that the witnesses in question appear in court and also present their identity documents . ORG decided that , since a wrong address had been indicated in the decision ordering ORG ’s appearance in court , it was necessary to inform the police of the correct address . As regards witnesses PERSON and GPE , the former was in GPE , while the latter was out of town . This was also confirmed by the telephone calls made by the presiding judge . ORG found that , in such circumstances , there were no reasons to doubt the veracity of the police information and announced that it would read out and examine the pre - trial statements of those witnesses . The statements would then be analysed in the deliberation room and an assessment would be made as to their credibility , since the evidence examined in court was sufficient to allow such an assessment . ORG then proceeded to read out the statements in question . The applicant submitted that their statements did not concern him since there had been many tall , grey - haired men at the marketplace . The investigating authority had never arranged his identification by those witnesses and their statements were therefore false .

At the hearing of DATE the presiding judge announced that an official letter had been received from the police , according to which witness ORG indeed resided at the correct address but nobody answered the door during their visit . The presiding judge announced that , not being satisfied by the information contained in the police letter , he personally called ORG home and became convinced that nobody was there because nobody answered the telephone . The prosecutor requested that the statement of witness ORG be read out in court , while both the applicant and his lawyer submitted that the statement of witness ORG lacked credibility and requested that it be disregarded . The court then proceeded to read out the statement .

DATE . At the same hearing the applicant filed a motion with ORG dispensing with the services of lawyer GPE He submitted that the lawyer had not taken any steps to defend his interests and to prove his innocence . The lawyer had never come to visit him in detention despite the requests he had made to the administration of the detention facility . Furthermore the lawyer , without his knowledge , had filed a motion on DATE seeking his release , in which the lawyer stated that he had pleaded guilty despite the fact that he had never pleaded fully guilty , thereby acting to his detriment and assisting the prosecution in substantiating the charge against him . The applicant claimed that he had found out about this motion only during the appeal proceedings . He further claimed in his motion that he had pleaded guilty to distributing leaflets because he was not aware that such act did not constitute an offence . He realised this only following his release from detention because no copy of LAW had been provided to him by either the investigator or his lawyer while in detention , despite his numerous requests . The applicant lastly claimed that the case against him had been fabricated . He submitted that , while sitting behind a glass wall at the police station , he was shown to some people who later became witnesses and made false statements against him . Some of them he was not able to examine and CARDINAL of them appeared in court . CARDINAL of those CARDINAL retracted his pre - trial statement , while the second one , because of giving a false statement , was even ashamed to look him in the eyes and was only able to mumble a confirmation of his pretrial statement .

The applicant stated at the same time that it was his personal choice to dispense with the services of his lawyer . ORG decided to grant the applicant ’s motion and to allow him to defend himself in person . The lawyer was then asked to leave the courtroom .

On DATE the Criminal and Military Court of Appeal adopted its judgment upholding the applicant ’s conviction . In doing so , ORG referred to the statements of witnesses GPE , GPE , GPE and GPE and of police officers PERSON and G.A. As regards the statement of witness GPE , ORG found that it should not have formed a basis for the applicant ’s conviction because that witness had failed to appear in court despite a court order . ORG further rejected the applicant ’s claim that he had only distributed leaflets but not made any calls for a violent overthrow of the government . In doing so , ORG stated that CARDINAL witnesses had testified that the applicant had made such calls . Furthermore , the police officers had arrested him while he was handing out the leaflets . In the light of the overall sufficiency of evidence , the fact that witnesses PERSON and PERSON had failed to appear in court could not put into doubt the applicant ’s involvement in the act and his guilt . The criminal element in his actions lay in the making of calls inciting violent seizure of power and change of the constitutional order . Those calls were public and aimed at a big group of people . Since he made such calls at a marketplace during the daytime , they were audible to the public . The fact that they were perceived as calls inciting to a violent overthrow of the government was confirmed by the witness statements .

ORG further dismissed the applicant ’s complaint about lawyer PERSON , stating that the applicant ’s right to defence had been ensured by the investigating authority , he had chosen his position regarding the charge against him without any outside pressure and he had not previously made any complaints about the lawyer . Furthermore , the fact that the nature of the charge was clear to the applicant was evident from the records of investigative measures . He had certified this with his signature in the presence of his lawyer .

On DATE the applicant lodged an appeal on points of law in which he raised arguments concerning the witnesses against him and the alleged failure of lawyer GPE to provide effective legal assistance , similar to those raised in his complaint of DATE . He also added that the witness statements against him had been fabricated under police pressure . The witnesses in question were people trying to make a living by working at the market , so if they had refused to follow police orders they would have been immediately expelled from the market .

On DATE ORG dismissed the applicant ’s appeal . In doing so , ORG found that both witnesses PERSON and GPE had made statements implicating the applicant . As regards the legal representation , the applicant had agreed that lawyer GPE defend his interests and the lawyer had properly done so .

By a letter of CARDINAL DATE the head of staff of ORG informed the applicant , in reply to his complaint , that lawyer PERSON had lawfully carried out the applicant ’s defence and had not done anything illegal . The motion of DATE had been filed upon the applicant ’s and his relatives’ request .

The relevant provisions of the ORG provide :

“ Public calls inciting to a violent seizure of ORG power and violent change of the constitutional order of GPE shall be punishable by a fine of CARDINAL times the minimum wage or by detention of DATE or by imprisonment for a period not exceeding DATE . ”

The relevant provisions of LAW provide :

“ CARDINAL . A suspect is the person ... who has been arrested on suspicion of having committed an offence ... ”

“ CARDINAL . The suspect has the right to defence . The investigating authority shall allow the suspect to implement his right to defence by all lawful means .

NORP The suspect , in accordance with a procedure prescribed by this Code , has the right ... to have a defence counsel or to dispense with a defence counsel and defend himself in person from the moment when he is presented with the investigating authority ’s decision on arrest , the record of arrest or the decision on choosing a preventive measure ... ”

“ CARDINAL . A witness is obliged ... to appear upon the summons of the authority dealing with the case in order to give testimonies or to participate in investigative and other procedural measures ...

The failure of a witness to comply with his obligations shall lead to sanctions prescribed by law . ”

“ CARDINAL . [ A ] witness ... may be compelled to appear by a reasoned decision of ... the court if he fails to appear upon summons without valid reasons . [ A ] witness ... is obliged to inform the summoning authority if there are valid reasons preventing his appearance within the time - limit fixed in the summons . ”

“ CARDINAL . The investigator is entitled to carry out a confrontation of CARDINAL persons who have been questioned previously and whose statements contain substantial contradictions . The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person .

NORP In cases envisaged by this Code , a defence counsel , an interpreter and the lawful representative of the person being questioned can participate in the confrontation and shall also sign the record . ”

“ CARDINAL . If any of the witnesses ...

“ CARDINAL . Reading out at the trial of witness statements made during the inquiry , the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court , if there is substantial contradiction between those statements and the statements made by that witness in court , and in other cases prescribed by this Code . ”

“ CARDINAL . Only final acts are subject to review on the ground of newly discovered or new circumstances .

NORP On the ground of newly discovered or new circumstances a judicial act of the court of first instance shall be review by the appeal court , while the judicial acts of the appeal court and ORG shall be reviewed by ORG . ”

“ CARDINAL . Judicial acts may be reviewed on the ground of new circumstances [ if ] ... a violation of a right guaranteed by an international convention to which GPE is a party has been found by a final judgment or decision of an international court ... ”


Eckart Klein;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych

The applicant , Mr PERSON , is a NORP national who was born in DATE in GPE and lives in GPE . In his everyday life the applicant uses the compound name LOC . The application was originally filed by his parents , PERSON and PERSON PERSON ORG . Having reached legal age , the applicant informed ORG in DATE that he wished to pursue the application himself . He is represented by his father , PERSON .

ORG ( “ the Government ” ) are represented by their Agent , PERSON , PERSON , of ORG .

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

According to the initial regulation of LAW ( Bürgerliches Gesetzbuch ) of CARDINAL DATE , a child born in wedlock would obtain the surname of the father , which was also the common family name . With the introduction of the LAW on the Reform of the Marital and Family Law ( Erstes Gesetz zur Reform des Ehe- und GPE ) of DATE , a married couple could choose any of the spouses’ surnames as the family name . Their children would then obtain the same family name . If the parents were unable to choose a family name , the husband ’s name would automatically become the family name according to the then applicable version of LAW of LAW . That provision was held to be unconstitutional and incompatible with the prohibition of discrimination ( LAW of LAW ) by ORG on DATE . ORG ordered that , until the legislator had formulated a new regulation , couples who married after DATE of the delivery of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames . In such an instance , their children were provisionally able to obtain a compound name composed of both surnames of the parents , in order to leave to the legislator the option to introduce the possibility to obtain such names .

On DATE , the Act on the Regulation of the Law of Family Names ( Gesetz zur Neuordnung des Familiennamensrechts ) came into force which corrected the above constitutional flaws . Article CARDINAL of LAW was amended by giving both spouses the possibility to keep their surnames . According to the henceforth relevant LAW ( replaced in DATE by CARDINAL § CARDINAL ) of LAW , a child would either obtain the surname of the father or the mother . A compound name for the child was not provided for by LAW .

The applicant ’s parents married in DATE . While the applicant ’s father kept his surname , “ PERSON ” , the applicant ’s mother adopted the compound name “ Heidecker - Tiemann ” . The applicant was born in DATE in GPE where he was subsequently registered by ORG as “ PERSON ” , bearing a surname composed of both his GPE original surnames ( “ Heidecker ” and “ PERSON ” ) . The applicant was registered under the surname “ PERSON ” in ORG ) at ORG , where the family resided at the time . The applicant ’s birth was not registered within the meaning of ORG , Deaths and Marriages Act ( Personenstandsgesetz ) .

After the LAW on the Regulation of the Law of Family Names entered into force on DATE , the applicant ’s mother changed her surname back to her original maiden name ( “ Heidecker ” ) in DATE . Subsequently , the applicant ’s parents declared before ORG that the applicant ’s surname should be “ Heidecker - Tiemann ” . When the Registry officer refused the registration because compound names were not permitted by LAW , the parents opted for the registration of the name “ Heidecker ” and instituted proceedings in order to be able to register a compound name .

On DATE , ORG dismissed the GPE claim and found that ORG was not compelled to authenticate ( öffentliche GPE ) the applicant ’s GPE declaration and register the applicant with a compound name .

The appeal was dismissed by ORG on DATE . The court found that the claimants had not demanded the authentication and the certification of their declaration , but the registration of the requested surname of the applicant .

Upon the applicant ’s immediate appeal , that decision was quashed by ORG on DATE . The latter ordered ORG to authenticate the declaration of the applicant ’s parents . It also found that ORG was not competent to register the applicant ’s surname . As the applicant had been born abroad , the competent authority was ORG . The application had been given the file number “ III CARDINAL ” by ORG , which was subsequently quoted by ORG and ORG .

On DATE , ORG authenticated the declaration of the applicant ’s parents ( that is , that the applicant ’s last name should be “ LOC ) of CARDINAL DATE and forwarded a verified copy to ORG which received it on DATE . ORG did however not receive the original .

On DATE , ORG refused to certify the validity of the declaration . It found that the application was ill - founded for formal reasons , because section CARDINAL(CARDINAL ) of the Act on the Regulation of the Law of Family Names provided that a declaration had to be issued within DATE after CARDINAL parent changed his or her last name . Thus , the time - limit had already expired with the receipt of the declaration in DATE .

On DATE , ORG dismissed the motion of the applicant ’s parents to register the applicant under a compound name . The court found that , irrespective of formal requirements , the applicable law did not provide for the possibility to obtain compound names .

The GPE appeal was dismissed by ORG on DATE .

On DATE , ORG ( GPE ) dismissed the GPE further appeal ( PERSON ) . The application had been given the file number “ QUANTITY CARDINAL ” by ORG , which was subsequently quoted by ORG and ORG .

On DATE , ORG refused to admit the applicant and his GPE constitutional complaint against the above decisions because the complaint was inadmissible .

The applicant ’s parents subsequently obtained a required permit of their declaration of CARDINAL DATE by the guardianship court ( vormundschaftliche GPE ) by order of ORG of DATE . The original copy of the declaration was subsequently sent to ORG on DATE .

On DATE , ORG issued a statement to the applicant to the effect that he was registered under the last name “ Heidecker ” as from DATE . The applicant ’s parents argued that the above - mentioned permit would satisfy the procedural requirements for the registration of the applicant ’s surname as “ Heidecker - Tiemann ” . ORG however refused to register the compound name .

On DATE , ORG dismissed the applicant and his GPE motion against the refusal because the applicable law did not provide for compound names and did not violate fundamental rights . The court found it therefore unnecessary to rule whether or not the certified declaration of DATE was introduced out of time .

On DATE , ORG dismissed the applicant and his GPE appeal . On DATE , their further appeal was dismissed by ORG ( GPE ) . The application had been given the file number “ QUANTITY ” by ORG , which was subsequently quoted by ORG and ORG .

On DATE , ORG refused to admit the applicant and his GPE constitutional complaint against the decision by ORG ( GPE ) of DATE by referring to a leading judgment of DATE ( see “ Relevant domestic law and practice ” below ) in which the constitutionality of LAW had been confirmed .

Article CARDINAL of the Civil Code provides :

“ § CARDINAL Spouses should designate a common family name ( marital name ) . The spouses shall use the marital name which they have designated . If the spouses do not designate a family name , they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage .

§ CARDINAL By declaration to the registrar , the spouses may designate , as their marital name , the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name . ( ... )

§ CARDINAL A spouse whose name does not become the marital name may , by declaration to the registrar , attach , before or after the marital name , his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name . This shall not apply if the marital name consists of CARDINAL name . If the name of CARDINAL of the spouses consists of CARDINAL name , CARDINAL of these names may be attached . ( ... ) ”

DATE of the Civil Code provides :

“ § CARDINAL If the parents do not have a marital name but if they have joint parental responsibility , they shall , by declaration to the registrar , designate the surname that the father or the mother has at the time of the declaration as the birth name of the child . ( ... )

§ CARDINAL If parents make no designation within DATE of the birth of the child , the family court shall transfer the right of designation to CARDINAL of the parents . Subsection ( CARDINAL ) applies mutatis mutandis . The court may impose a time - limit on the parent for the exercise of the right of designation . If , after the time - limit has expired , the right of designation had not been exercised , the child shall be given the name of the parent to whom the right of designation was transferred . ”

Under NORP law , authentic compound names are permitted only in very specific circumstances . For example , compound names may be retained if they were used prior to ORG regulation of the law governing names . Moreover , pursuant to LAW PERSON , compound names may come into being when persons with surnames which are highly common in GPE such as “ PERSON ” or “ PERSON ” ( so - called PERSON ) add another name to render their family name easier to distinguish . Compound names created in this way may be passed on to children .

Under LAW of LAW ( Einführungsgesetz zum PERSON ) , a person ’s name falls to be decided by the law of the State of his or her nationality .

In a leading judgment of DATE , ORG held , by CARDINAL votes to CARDINAL , the former version of LAW of LAW ( which is identical to LAW of the current version of LAW ) to be constitutional . In particular , ORG found that the provision neither constituted a violation of the right to a family ( LAW ) , the right to educate one ’s own children ( LAW ) nor the children ’s right to protection of their personality rights as guaranteed by LAW and CARDINAL § CARDINAL of LAW .

ORG considered that , once children would be allowed to obtain compound names , the number of surnames could exponentiate with each future generation . The next generation would already be able to obtain a last name comprised of CARDINAL names . Such growing “ chains of surnames ” would not only be impracticable , they would also be to the detriment of future generations whose last names would be at risk of losing their function as a means of identification . LAW would not prohibit the legislator from reducing the number of possible last names to avoid such “ name chains ” in order to secure the function of the surnames of future generations .

ORG considered that a different way of avoiding “ name chains ” would have been to allow compound names , but to restrict the number of last names to CARDINAL . This method , however , would prevent parents who already bore a compound name from giving their children a compound name comprised of both GPE last names , ORG or obtaining such a last name themselves . A person with a compound name could no longer keep his or her last name after marriage and add the last name of his or her partner , as currently provided for by LAW . Therefore , the introduction of an option to let one ’s children obtain compound names would at the same time reduce the choice of last names for those who already bore a compound name . Such a situation , in which CARDINAL fundamental right restricted another , would consequently require a balancing of interests , which the legislator had done when introducing the former version of LAW of LAW ( now LAW ) . ORG stated that the legislator had had several options to balance the above interests . The option which the legislator chose was thereby neither required nor prohibited by LAW .

Lastly , ORG found that the former version of LAW of LAW did not violate the prohibition of discrimination on grounds of sex as guaranteed in LAW . If each spouse kept his or her last name after marriage , married couples could choose CARDINAL of their last names as the surname for their children . LAW CARDINAL of the NORP Civil Code reduced the possible options to give their children a last name , but this concerned spouses of both sexes alike . The fact that married couples with different last names were in practice more likely to choose the husband ’s last name for their children was not considered to suggest a different finding . Even though this could possibly indicate a widespread affirmation of traditional marriage patterns , LAW could not be interpreted as containing a positive obligation on the ORG to introduce the GPE right to choose a compound name for their children . In any case , such a regulation had only minor effects on the ORG ’s positive obligation to secure equality of the sexes as contained in the second sentence of LAW of LAW .

That children could still obtain a compound name in cases in which CARDINAL parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name . In both instances , children were only allowed to obtain either the last name of the mother or the father .

In the case of PERSON v. PERSON , Dorothee PERSON ( C-CARDINAL/CARDINAL ; ORG of ORG of DATE ) , ORG made a reference for a preliminary ruling under LAW regarding the interpretation of LAW ( “ EGBGB ” , see “ Relevant domestic law and practice ” above ) in the light of LAW ( prohibition of discrimination on grounds of nationality ) and LAW ( freedom of movement ) . That case concerned a married couple of NORP origin who had kept their surnames and whose son ( who also had NORP citizenship ) was born in GPE , where he was subsequently registered with a compound name composed of the surnames of his parents in the NORP birth register . The NORP authorities refused to recognise the compound name because of section CARDINAL ) of the Law Introducing LAW , according to which a person ’s name falls to be decided by the law of the State of his or her nationality . Under NORP law , the son was not entitled to bear a compound name composed of the surnames of his parents . The GPE appeal against that decision and their subsequent constitutional complaint with ORG were to no avail .

When the parents , who in the meantime divorced , refused to make a declaration before the Registry Officer regarding the surname of their child , ORG had to refer the right to determination to CARDINAL parent pursuant to LAW and CARDINAL of LAW . ORG subsequently referred the matter to ORG pursuant to LAW with the following question : “ In light of the prohibition on discrimination set out in LAW ORG and having regard to the right to the freedom of movement for every citizen of the Union laid down in LAW ORG , is the provision on the conflict of laws contained in LAW valid , in so far as it provides that the right to bear a name is governed by nationality alone ? ” . ORG ( ORG ) decided on DATE that it had no jurisdiction to answer the question referred by ORG because the latter , when making a decision pursuant to LAW and CARDINAL of LAW , exercised administrative authority , without at the same time being called on to decide a dispute . Therefore , ORG could not be regarded as exercising judicial function .

On DATE the parents lodged a fresh request to register the compound surname . Following ORG refusal to grant the request , the parents lodged a complaint with ORG which referred the matter with the same question to ORG . The case is currently pending before the latter court ( C-CARDINAL/CARDINAL ) .