No violation of Art. 6-1;No violation of Art. 6-3-d

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was arrested on DATE on suspicion of having committed armed robbery at the market place in GPE on CARDINAL DATE . On DATE he was heard as a suspect in the presence of an interpreter . On DATE a police officer issued a decision to institute an informed of the charges against him in the presence of an interpreter .

On DATE the applicant lodged an appeal , in LANGUAGE , against the decision to remand him in custody . It was translated into NORP and dismissed by ORG on DATE .

On DATE the applicant asked for “ the opportunity to see a legal - aid lawyer ” . On DATE the public prosecutor informed him that there was no legal basis for granting legal aid to suspects of foreign citizenship . On DATE the applicant requested , in NORP , to be released . His request was dismissed on DATE .

On an unspecified date during the investigation NORP , the victim of the offence , was questioned by the police . He submitted a detailed description of the applicant 's conduct during the material events .

The applicant was questioned during the investigation . He denied all the charges against him . He explained that PERSON had given him money and requested him to buy alcohol . Later on , PERSON wanted his money back . The latter exchange was seen by witnesses who had wrongly interpreted it as proof that he had previously exerted pressure with use of violence on PERSON in order to get money from him .

On DATE the prosecutor appointed an interpreter for the purposes of the final examination of the case file by the applicant . On DATE the applicant read the case file in the interpreter 's presence . On DATE the investigation was closed . On DATE a bill of indictment against the applicant was transmitted to ORG . The applicant was charged with armed robbery . On DATE the bill of indictment was remitted to the prosecuting authorities , the court having requested that it be translated into NORP . On DATE the bill of indictment together with its translation was again submitted to the court . On DATE the presiding judge ordered that the bill of indictment in NORP and NORP be served on the applicant .

On DATE the presiding judge fixed the date of the first hearing in the case and appointed a legal - aid lawyer for the applicant . The first hearing was held on DATE in the presence of the applicant , his legal - aid lawyer and the interpreter . During that hearing the applicant stated as follows : “ I have learned NORP by reading books and watching TV . I have good linguistic abilities . I also speak some NORP and some NORP ” .

In DATE , PERSON , the victim of the offence , who was also a NORP national , living at that time in GPE , declared in writing that “ he [ did ] not request that the prosecution be continued and [ did ] not intend to appear before the court in order to testify against the applicant ” .

On DATE the court held a second hearing in the case , in the presence of the applicant , his legal - aid lawyer and the interpreter . The court read out the testimony given by PERSON during the investigation , heard oral evidence from CARDINAL other eyewitnesses to the incident , PERSON and PERSON , who had also informed the police of it , and from QUANTITY police officers who had arrested the applicant .

By a judgment of CARDINAL DATE ORG in GPE found the applicant guilty as charged and sentenced him to DATE imprisonment . The judgment was delivered in the presence of the applicant , his legal - aid lawyer and the interpreter .

Following an appeal submitted by the applicant 's legal - aid lawyer , on DATE ORG held an appeal hearing in the presence of that lawyer . The court read out the written declaration of the victim , referred to above ( see paragraph CARDINAL ) and noted that the first - instance court had entirely failed to address it and to examine whether it could have been relevant for the finding of the applicant 's guilt . It further noted that the victim 's wife , who had seen the alleged robbery , had not been questioned . Moreover , her CARDINAL friends had also been present at the scene of the offence . The court further noted that another ground for appeal , namely that the applicant had been refused legal aid at the pre - trial stage of the proceedings , was ill - founded , as the applicant had not shown how it had influenced the outcome of the proceedings .

The appellate court quashed the first - instance judgment and remitted the case for re - examination to ORG .

By a decision of DATE ORG remitted the case to ORG . The prosecution was ordered to pursue an investigation in order to rectify the shortcomings of the investigation which had been conducted hitherto . In particular , the court ordered the prosecution to question the victim again , and to question the victim 's wife and her QUANTITY friends who were present tempore criminis at the market place . The court further ordered the prosecuting authorities to confront the victim and his wife with eyewitnesses PERSON and PERSON This decision was translated into NORP . On DATE the prosecuting authorities ' appeal against this decision was dismissed .

Subsequently , on DATE and DATE the applicant 's detention was extended . On DATE the applicant was released on bail . All the relevant decisions were translated into LANGUAGE .

On DATE the prosecutor appointed an interpreter in order to translate into LANGUAGE all evidence collected during the investigation conducted in DATE ( the witnesses ' testimonies and the decision to terminate the investigation ) . On DATE a new bill of indictment was submitted to ORG together with its NORP translation . The prosecuting authorities relied on the evidence given by the QUANTITY eyewitnesses , by QUANTITY police officers , and on the evidence given by PERSON during the first round of the investigation . They further noted that they had tried several times to contact PERSON and his wife with a view to questioning them , to no avail .

On DATE ORG summoned the applicant , the victim and his wife to a hearing to be held before that court . All summons were sent through the intermediary of ORG , by way of international judicial assistance . At a hearing fixed for DATE the applicant was present together with his legal - aid lawyer and the interpreter . The victim and his wife failed to attend the hearing . The court did not obtain any confirmation as to whether they had been properly summoned by the NORP authorities . As both parties to the proceedings requested that the victim be heard before the court , it adjourned the hearing until DATE . The victim and his wife , though properly summoned , failed to attend that hearing . The court adjourned the hearing until DATE .

On DATE , again faced with the absence of the victim and his wife , both parties to the proceedings requested that the victim and his wife be questioned by way of international judicial assistance by a court in Łuck in GPE . ORG allowed their request , adjourned the hearing and requested ORG for assistance in obtaining the testimony of the victim and his wife . In its request the court also emphasised that the applicant and his legal - aid lawyer should be informed by ORG date when the victim and his wife would be questioned before that court . It further indicated the addresses of the applicant and his defence counsel for the purpose of sending them summons for questioning . The applicant did not contest the list of questions put to PERSON and did not indicate that any further questions should be asked in order

A list of questions to be put to the witnesses was appended to the request , which was subsequently translated into NORP and sent to the NORP authorities through ORG .

On DATE the victim testified before ORG . The record of the hearing indicates that the NORP court had not summoned either the applicant or his legal - aid lawyer to that session . The victim upheld his initial statement , made during the investigation , that the applicant had robbed him ( see paragraph CARDINAL above ) . He further stated that he had withdrawn his previous incriminating statements ( see paragraph CARDINAL above ) at the applicant 's wife 's request . He further clarified by way of explanation that “ he did not want to ruin his relationship with the couple ” . ORG did not question other persons requested by ORG . The testimony of the victim was later forwarded to the NORP authorities and translated into NORP .

On DATE ORG stayed the proceedings and requested the NORP authorities to proceed with the examination of the case . On DATE the NORP authorities refused to continue the prosecution . On DATE ORG resumed the proceedings .

NORP The subsequent hearing was held on DATE in the presence of the applicant , his legal - aid lawyer and the interpreter . The parties again requested that the victim be examined at the hearing . The court adjourned the hearing and decided to summon once again the victim and his wife . The witnesses , duly summoned , failed to attend the subsequent hearings , held on DATE and DATE . PERSON attended the hearing on CARDINAL May and was questioned .

On DATE , the parties did not object to the victim 's testimony being read out from the investigation file . The court closed the hearings , having regard to the fact that all attempts to obtain direct evidence from the victim and his wife before that court had failed .

By a judgment of DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment and a fine .

The court established that on DATE the applicant and the victim , who did not know each other , had been selling merchandise at the marketplace in GPE . The written grounds of the judgment , in so far as relevant , read as follows :

After trading TIME had ended , when PERSON and the women who accompanied him were walking out of the market place , the accused came up and demanded that he give him PLZ CARDINAL,CARDINAL . PERSON refused saying that he did not have that amount of money ( PERSON testimony , pp . DATE , CARDINAL - CARDINAL ) . In reaction , the accused put a knife first to the victim 's neck and then to his stomach and told him that he would beat up him and his wife up . As the accused was under the influence of alcohol and behaved in a vulgar and aggressive manner , his threats made PERSON fear for his and his wife 's life . He gave PLZ CARDINAL,CARDINAL to him ( testimony of PERSON , page CARDINAL , of GPE , page CARDINAL , of GPE , page CARDINAL ) .

Later on that evening PERSON and his wife went to the train station and saw the accused there .

PERSON and a man named PERSON decided [ then ] to try to take the money from [ the accused ] . They approached him and started to talk to him . The discussion ended with [ the accused 's refusal ] and a scuffle ; [ the accused ] hit PERSON in the face . That incident was observed , from DATE , by PERSON and PERSON [ also present at the train station ] who decided to inform the police . After their intervention CARDINAL uniformed police officers arrived . Seeing them , the accused started to run away . He was apprehended after a while . He behaved aggressively and tried to get away . The police officers handcuffed him and took him to the police station ( testimony of PERSON , p. CARDINAL , CARDINAL - CARDINAL , CARDINAL ; PERSON p.CARDINAL , CARDINAL ; PERSON , p. CARDINAL , CARDINAL ; TIME , pp . DATE , CARDINAL ) .

The accused denied that he had committed the offence [ ... ] He explained that [ on the material date ] after selling spare parts , he had been drinking alcohol at the market place with other traders ( p. CARDINAL , CARDINAL CARDINAL - CARDINAL , CARDINAL ) . He had met PERSON there and had had a quarrel with him ; however , he had stated that they had not been involved in a scuffle and denied that he had threatened him at knifepoint ; he had only insulted him ( pp . CARDINAL , QUANTITY , CARDINAL ) . He also stated that he had proposed that they had a drink to smooth things over ( ... ) PERSON had not wanted to go for a drink but had given him money of his own free will for the purchase of alcohol . Some time later , at the train station , PERSON along with another man had demanded his money back , saying that if he refused things would turn bad for the accused ( pp . CARDINAL , CARDINAL ) . This demand had so annoyed the accused that he had caught PERSON 's shirt and shaken him violently , but , as he stated , he had had no intention of getting into a fight . ( p. CARDINAL ) . ...

The court refused to consider the explanations given by the accused as credible as they were incompatible with PERSON 's deposition made during the investigation . ... After the accused had been apprehended , PERSON had recognised him as the person who had attacked him and had identified some of the banknotes which he had had with him .

It is true that on DATE PERSON made a written statement that all charges against the accused were erroneous and were caused by a succession of misunderstandings and that the accused had neither threatened the victim nor his wife , nor used a knife against LANGUAGE ( pp . CARDINAL ) . However , when questioned before ORG , that witness had convincingly explained the motives which had prompted him to make this declaration , saying that he had made it at the request of the accused 's wife and his colleagues as he had not wanted to jeopardise his relationship with the couple ( p. CARDINAL ) . On the same occasion he made a deposition which had fully confirmed his deposition made on DATE ( pp . CARDINAL , CARDINAL - CARDINAL ) . [ NORP ] admitted that the accused had threatened him and his wife and that he had been using some sort of instrument at that time , but did not remember whether it had indeed been a knife . He emphasised that he had given money to the applicant under threat .

The court considers that PERSON 's statements were credible and is of the view that his declaration of DATE had been made as a result of pressure exerted on him by the family and friends of the accused . The testimony of that witness is clear , consistent and coherent . ( ... ) It should be emphasised that before the incident PERSON had never met the accused . He did not therefore have any grounds on which to make a false accusation against the accused because he had held a grudge against him .

PERSON recognised the accused immediately after his apprehension by the police ; he also identified some banknotes which the accused had on him as the same which the accused had previously taken from him . He tried to describe the material events in an objective manner , without over - dramatising or distorting them . It is also of relevance for the assessment of his credibility that the police were informed of the incident by objective by - standers .

The defence , in its final oral submissions to the court , disregarded these factors relating to PERSON 's credibility . The defence lawyer focused on the fact that PERSON had not been questioned by the trial court and on the procedural shortcoming committed by ORG in that it had failed to summon the applicant and his lawyer to the questioning before that court . Defence counsel stressed the level of education and post held by the accused which , in his view , indicated that he could not have committed the offence at issue .

The court went on to explain the grounds why it did not consider that the applicant 's denial of having committed the offence was credible . It went on to say :

The court considers that it is of paramount importance that testimony given by the victim has been confirmed by depositions made by the eyewitnesses to the incident , PERSON and PERSON was standing at the market place just CARDINAL – CARDINAL.CARDINAL metres away from the victim ( p. CARDINAL ) and he saw the incident clearly . He confirmed the fact that the accused had put a knife to the victim 's throat and demanded money from him , threatening him with murder and that he would rape his wife . PERSON saw the victim give PLZ CARDINAL,CARDINAL to the accused ( p. CARDINAL ) .

When PERSON was questioned at the hearing held at the previous trial ( p. CARDINAL ) , he had stated categorically and unequivocally : “ I did not have the slightest doubt as to who the perpetrator was and now , looking at the accused , I do n't have any doubt that it was him who had committed the offence in the circumstances which I have described ” ( p. CARDINAL ) .

When that witness [ PERSON ] was heard again , at the hearing of QUANTITY DATE , he did not , due to the lapse of time , remember the exact details of the incident ; however , he confirmed his earlier deposition .

Witness PERSON also confirmed the version of events given by the victim . Questioned immediately after the incident , he had stated that the accused had threatened the victim at knifepoint and with murdering him and raping his wife , and had demanded PLZ CARDINAL,CARDINAL from him . PERSON had given him PLZ CARDINAL and PERSON took the money ( p. CARDINAL ) . When [ that witness ] was questioned at the hearing held on DATE , he had confirmed the veracity of his earlier deposition , even though he did not remember on that occasion whether it had been the accused who had subsequently been apprehended by the police at the train station ( pp . CARDINAL - CARDINAL ) .

When the trial in the present case was conducted again , attempts to serve the summons on that witness [ PERSON ] so that he could be questioned again failed .

It should be stressed that it was as a result of the intervention of GPE and PERSON that the accused was apprehended by the police . Neither knew the accused or the victim before ; hence they could not have had any reasons for falsely accusing him .

Neither the accused nor his lawyer made any concrete objections as to the veracity of the depositions made by these CARDINAL witnesses .

The court concluded that the evidence in the case , seen as a whole , allowed the conclusion that the applicant was guilty as charged .

On DATE the applicant 's legal - aid lawyer lodged an appeal against this judgment . He submitted that the court had based its finding of guilt on testimony given by the victim PERSON , despite the fact that he had never been heard by the NORP court and the Łuck court had failed to summon the applicant and his lawyer to the questioning . It had also failed to question PERSON 's wife . This rendered the conviction unsafe .

A hearing before the appellate court was held on DATE in the presence of the applicant and his lawyer . The court upheld the firstinstance judgment . It stressed , inter alia , that ORG had expressly requested the NORP authorities to summon them to that hearing ( see paragraph CARDINAL above ) . The first - instance court could not be held responsible for the NORP authorities ' failure to summon the applicant and his lawyer for the questioning of witnesses before ORG , as requested . Moreover , ORG had afterwards summoned both PERSON and his wife to the hearings to be held on DATE and DATE , to no avail . Furthermore , the applicant 's lawyer had acquiesced to the prosecutor 's request that the depositions of witnesses who had not been questioned during the trial be read out from the file .

On DATE the applicant 's legal - aid lawyer lodged a cassation appeal with ORG . It was argued that the hearing before the appellate court was unfair in that the applicant had not been assisted by an interpreter . He further repeated the arguments submitted in his appeal against the first - instance judgment .

The appeal itself , a subsequent order by which it was accepted for examination , and the prosecutor 's response , were translated into NORP .

On DATE ORG held the cassation hearing in the presence of the applicant 's legal - aid lawyer . It quashed the judgment of DATE and remitted the case for re - examination to that court . It observed that the absence of an interpreter at the hearing held on DATE constituted a serious procedural shortcoming and limited the applicant 's procedural rights . It further noted that the remaining arguments submitted by the applicant were merely a re - statement of the grounds of appeal which had already been examined by the appellate court .

On DATE ORG held a hearing in the case in the presence of the applicant , his legal - aid lawyer and an interpreter . On DATE the court delivered its judgment in the presence of an interpreter . It upheld the first - instance judgment . The court stated that the failure of ORG to comply with the terms of the international judicial assistance request could not , by itself , justify the discontinuation of the criminal proceedings against the applicant . Nor should it have prevented ORG from reading out PERSON 's deposition before that court . The applicant had been aware of the questions to be put to PERSON before ORG . He had not contested them and had not requested that they be supplemented by any other questions . Under LAW , the parties had a right to participate in the taking of evidence carried out by a judge or court other than the one examining the merits of a case , but their participation was by no means mandatory . The first - instance court had repeatedly taken steps with a view to examining both PERSON and his wife in the applicant 's presence , in conformity with the recommendations formulated by ORG on DATE . However , as all these efforts had failed , that court was justified in considering that it had been ultimately impossible to have this evidence taken before that court in adversarial proceedings .

In so far as the applicant relied on lack of legal aid during the investigation held in DATE and DATE , ORG noted that it was only after DATE had entered into force that a grant of legal aid to a foreign citizen became possible . In any event , after the entry into force of that Code the case - law of ORG had already affirmed that lack of legal aid at the pre - trial stage of proceedings could serve as a basis for quashing a judgment only when it had not been subsequently rectified by a grant of legal aid at the judicial stage of the proceedings .

On DATE the applicant 's defence counsel lodged a cassation appeal against this judgment , essentially reiterating his previous arguments .

On DATE ORG held a hearing in the presence of the applicant 's legal - aid lawyer . It pronounced its decision to dismiss the cassation appeal as manifestly ill - founded at an open court session . Subsequently , the judge rapporteur orally presented the main reasons justifying that decision .

Until DATE LAW of DATE ( “ the DATE Code ” ) governed the conduct of criminal proceedings . It was replaced by a code adopted in DATE ( “ the DATE Code ” ) .

Under LAW to LAW , that Code was applicable to proceedings which had been instituted before its entry into force .

LAW DATE Code provided :

“ Judges shall rule on the basis of their conviction deriving from evidence obtained and founded on their free assessment of evidence [ and they shall ] draw on knowledge and life experience . ”

Article CARDINAL provided , in its relevant part :

“ CARDINAL . If a witness has without reason refused to testify , or has given testimony different from DATE , or has stated that he does not remember certain details , or if he is abroad , or a summons can not be served on him , or if he has not appeared on the ground of irremovable obstacles or if the president of the court has declined to summon him pursuant to LAW [ because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial ] , the records of his previous statements may be read out , [ regardless of whether they ] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law .

NORP In the circumstances referred to in paragraph CARDINAL , the records of evidence that a witness has given when heard as an accused may also be read out . ”

Article CARDINAL § CARDINAL of the DATE Code reads as follows :

“ If there is a risk that the witness can not be heard at the hearing , a party or the prosecutor or other body conducting proceedings may submit a request to have the witness heard by a court . ”

Article CARDINAL of the Code reads :

“ § CARDINAL . If the accused refuses to give his explanations to the court or if his explanations are manifestly different from his or her previous ones , or if he declares that he or she does not remember certain circumstances , TIME of the explanations given previously during the investigation or at the trial stage in the same or another criminal case can be read out [ by the court ] in their relevant parts .

§ CARDINAL . After TIME have been read out , the president shall request the accused to take a position in respect of their content and the contradictions between them and his or her later explanations . ”

Article CARDINAL of the DATE Code provides as follows :

“ CARDINAL . If a witness has without good reason refused to testify , or has given testimony different from DATE , or has stated that he does not remember certain details , or if he is abroad , or a summons can not be served on him , or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him pursuant to LAW [ because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial ] , and also when a witness has died , the records of his previous statements may be read out , [ regardless of whether they ] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law .

NORP In the circumstances referred to in paragraph CARDINAL [ ... ] the records of evidence that a witness has given when heard as an accused may also be read out . ”

Article CARDINAL of the LAW provides that the following documents can be read out at a trial : TIME of an on - the - spot examination and post - mortem , search and retaining of objects for evidentiary purposes ; opinions given by experts and institutions , criminal records and all official documents submitted to the file during the investigation and trial . Notes concerning measures in respect of which official TIME should have been prepared can not be so read out . A request that a criminal offence has been committed can be read out ; however , it can serve only as proof of who submitted this request , when and in respect of what offence .

Article CARDINAL of the Code governs the provision of international judicial assistance . It provides , in so far as relevant :

“ The measures necessary in criminal proceedings may be conducted by way of judicial assistance , particularly the following :

CARDINAL ) service of documents on persons abroad or on agencies having their headquarters abroad ,

CARDINAL ) taking depositions from persons as accused , witnesses , or experts ... ”

According to LAW

“ The official records of inspections , examinations of persons as accused persons , witnesses or experts , or records of other evidentiary measures prepared upon a request from a NORP court or ORG prosecutor , by the courts or ORG prosecutors of foreign countries or by agencies acting under their supervision , may be read aloud at the hearing according to the principles prescribed in ORG CARDINAL , CARDINAL and CARDINAL . This may be done provided that the manner of carrying these measures does not conflict with the principles of the legal order of GPE . ”

NORP Under LAW Code a party to criminal proceedings can lodge a cassation appeal with ORG against a final judgment of the appellate court which has terminated the proceedings . The cassation appeal has to be drafted and signed by a lawyer .

A cassation appeal can be lodged only on the grounds referred to in LAW . These grounds include certain procedural shortcomings which justify the quashing of a first - instance decision , regardless of whether they are invoked by the party challenging such a decision ( for example , wrong composition of the court , lack of legal assistance in cases where such assistance was compulsory , violation of the rules governing jurisdiction of criminal courts , certain breaches of defence rights ) . A cassation appeal can also be lodged on the ground of a flagrant breach of law if such a breach negatively affected the judicial decision under appeal .

Article CARDINAL of the LAW provides that the court which gave the decision appealed against is competent to decide whether the formal requirements for a cassation appeal are satisfied , and to refuse to accept the appeal if this is not the case . If the appeal is admissible , it is forwarded to ORG .

Pursuant to LAW , as amended on DATE to take effect from DATE , the ORG shall consider a cassation appeal against a judgment at a hearing . However , it is open to ORG to dismiss such an appeal at a session held in camera if it considers that it is manifestly ill - founded .


Violation of Art. 6-1;No violation of Art. 8

The applicant is a NORP citizen , born in DATE and resident in Čadca .

In DATE the applicant ’s legal capacity was restricted . In DATE ORG súd - “ the ORG ” ) deprived the applicant of legal capacity entirely on the ground that he suffered from an explosive and vexatious form of paranoid psychosis . ORG noted that the applicant had been undergoing out - patient psychiatric treatment for DATE and that his personality had been deteriorating due to an increased syndrome of dementia .

On DATE the ORG started , at the applicant ’s request of CARDINAL DATE , proceedings pursuant to LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) with a view to determining whether the applicant ’s legal capacity could be restored . The applicant refused to be examined by several experts and on DATE ORG decided that legal capacity could not be restored to him .

On DATE ORG ( Najvyšší súd ) quashed the judgment on the ground that ORG had not obtained an expert opinion as required by the law . ORG pointed out that ORG had failed to avail itself of its rights under LAW and that it had disregarded , inter alia , Sections CARDINAL , CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW in conjunction with LAW ( CARDINAL ) of LAW . It ordered ORG to examine the case again on the basis of a relevant expert opinion . ORG appointed an expert on DATE .

As the applicant refused to be examined as an out - patient , the expert informed ORG that an objective assessment of the applicant ’s health required an in - patient examination .

On DATE ORG ordered that the applicant should be examined in a mental hospital pursuant to LAW ) of LAW and appointed a new expert . The latter was asked to submit an opinion as to whether the applicant ’s health had changed to such an extent that legal capacity could be restored to him .

On DATE ORG invited the applicant to come to the mental hospital in GPE on DATE . The applicant was warned that he could be brought there pursuant to LAW ) of LAW if he failed to comply . The applicant did not come to the hospital .

On DATE the applicant lodged an appeal against ORG decision of DATE .

On DATE the Banská Bystrica Regional Court ( Krajský súd - “ the ORG ” ) informed ORG that the aforesaid decision was premature as it was first necessary to appoint a guardian to represent the applicant .

On DATE ORG appointed ORG ( ORG úrad ) as the applicant ’s guardian . The applicant ’s appeal against this decision was dismissed by ORG on DATE on the ground that he lacked capacity to lodge it .

On DATE ORG joined the applicant in the proceedings concerning the latter ’s legal capacity .

On DATE a representative of the authority appointed as the applicant ’s guardian and the public prosecutor informed ORG that they agreed with the applicant ’s examination in a hospital .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of DATE as the applicant lacked standing to lodge it . ORG held that an examination in a hospital was necessary within the meaning of LAW ( CARDINAL ) of LAW as the applicant had refused to be examined by an expert .

On DATE ORG informed ORG that it agreed to legal capacity being restored to the applicant .

On DATE ORG invited the applicant to come to the mental hospital in GPE on DATE . The applicant was informed that he could be brought to the hospital if he failed to appear . The applicant did not comply with the court ’s request .

On DATE CARDINAL policemen brought the applicant to the hospital in GPE under an order by the president of ORG . After a short period the applicant started co - operating with the expert . The examination was completed and the applicant was released from the hospital on DATE .

NORP In his opinion submitted on DATE the expert noted that the applicant , who had undergone a brain operation in DATE and had had several heart attacks , suffered from a vexatious form of paranoid psychosis , from an organic psychosyndrome and from a heart disease . The expert concluded that legal capacity could partially be restored to the applicant and recommended a re - examination after DATE .

On DATE ORG , following the expert ’s opinion , restricted the applicant ’s legal capacity in that he was not entitled to act before public authorities on his own , to conclude contracts , to assume obligations in writing and to work regularly .

In his appeal of CARDINAL DATE the applicant requested that legal capacity should be restored to him entirely . He supplemented his appeal on DATE , DATE , CARDINAL and DATE as well as on DATE and DATE . He also requested that his case should be dealt with by another court .

On DATE ORG dismissed the applicant ’s request to have his case transferred to another court . ORG returned the file to ORG and ordered it to establish whether the applicant challenged ORG judges .

On DATE ORG transmitted ORG enquiry to ORG which communicated it to ORG . On DATE the latter informed ORG that it was not in a position to provide an answer . On DATE ORG asked ORG for a reply . On DATE ORG addressed the request directly to ORG .

On DATE ORG sent the file to ORG with the explanation that it had not been possible to obtain the requested information . ORG expressed the view that the applicant had challenged all its judges .

On DATE ORG decided that ORG judges were not excluded .

On CARDINAL DATE ORG requested ORG to submit the case - file to it .

On DATE ORG quashed the first instance judgment of DATE on the ground that ORG had failed to comply with the obligation to hear the expert as required by LAW ( CARDINAL ) of LAW . In view of the time which had elapsed after the delivery of the first instance judgment , ORG considered it necessary to update the expert opinion .

On DATE ORG decided to obtain a second expert opinion on the applicant ’s mental health and adjourned the proceedings .

On DATE ORG requested ORG to indicate a medical authority which could prepare a second expert opinion . On DATE the Ministry suggested that the applicant be examined at the psychiatric clinic of ORG in GPE .

On DATE the head of ORG asked ORG to discharge ORG of the applicant ’s guardianship . On DATE ORG proposed that Mr J. Jašurek , a lawyer practising in Čadca , be appointed guardian instead . In a letter dated DATE the lawyer accepted the proposal .

On DATE ORG requested ORG , in the context of different proceedings , to submit the file concerning the guardianship of the applicant to it . ORG reiterated its request on DATE .

On DATE ORG ordered that the applicant be examined at the psychiatric clinic of ORG in GPE .

On DATE ORG appointed PERSON as the applicant ’s guardian .

On DATE the applicant informed the head of the psychiatric clinic of ORG in GPE that he disagreed with an examination .

On DATE ORG stayed the proceedings until the applicant ’s health permitted his examination in GPE .

In a report of CARDINAL DATE the doctor treating the applicant stated that the applicant was immobile and that he was not able to undergo an examination of his mental health in GPE .

On DATE ORG discharged PERSON , at his own request , of his duties as the applicant ’s guardian . It appointed ORG ( ORG úrad ) as the guardian .

Section CARDINAL of the Civil Code , so far as relevant , reads as follows :

“ CARDINAL . An individual who , because of a lasting mental disorder , is entirely incapable of carrying out legal acts shall be deprived of legal capacity by a court .

A court shall restrict the legal capacity of an individual who , because of a lasting mental disorder ... , is not capable of carrying out certain legal acts . The extent of the restriction shall be specified in the court ’s decision .

A court shall modify or quash the decision on deprivation or restriction of legal capacity when the reasons on which it was based no longer exist . ”

The relevant provisions are as follows :

“ A court shall proceed with a case in co - operation with the parties so that a speedy and effective protection of rights be ensured and that the facts in dispute be reliably established . ”

“ CARDINAL . When a person summoned to an examination or before an expert fails to appear without an excuse , the president of the court ’s chamber can order to bring him or her there subject to prior notice . ”

Section CARDINAL ( CARDINAL ) provides that in cases concerning , inter alia , a person ’s legal capacity courts may start proceedings ex officio even if no formal action was brought .

Under LAW ( CARDINAL ) a court shall , inter alia , appoint an expert after having heard the parties when the decision depends on an assessment of facts requiring special knowledge .

Pursuant to LAW ( CARDINAL ) , in proceedings concerning a person ’s legal capacity , a guardian is to be appointed to the person concerned by the president of the court ’s chamber . In such proceedings a court shall always hear an expert . Upon the latter ’s proposal a court can order an examination of the person concerned in a hospital for no longer than DATE if it is considered necessary for the determination of his or her state of health ( LAW ( CARDINAL ) ) .

When a court examines the question whether legal capacity can be restored to a person , it is not bound by the parties’ submissions . It may quash the original decision on deprivation or restriction of legal capacity . The court may also restrict a person ’s legal capacity to such an extent as it deems it necessary even if it was not requested in the action or , as the case may be , in the initiative upon which it started the proceedings ( Collection of judicial decisions and opinions , No . R CARDINAL/CARDINAL ) .

Courts should apply measures provided for , inter alia , in LAW rather than discontinue the proceedings when a participant remains inactive ( Collection of judicial decisions and opinions , No . R CARDINAL/CARDINAL ) .


CASE OF ZIELINSKI AND PRADAL & GONZALEZ AND OTHERS v. FRANCE

Violation of Art. 6-1 as regards the fairness of the proceedings;Violation of Art. 6-1 as regards the length of the proceedings;Not necessary to examine Art. 13;Damage - financial award;Costs and expenses partial award - Convention proceedings

A. Bacquet;Gaukur Jörundsson;Luzius Wildhaber

PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and Mr PERSON are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively . They live in the départements of Meurthe - et - GPE ( PERSON ) , GPE ( Mr PERSON ) , Bas - Rhin ( Ms Mary ) and ORG ( all the other applicants ) and work for social - security bodies in GPE - Moselle .

On DATE the representatives of the social - security offices of the GPE region signed an agreement with the regional representatives of the trade unions . Under the agreement , a “ special difficulties allowance ” ( indemnité de difficultés particulières – “ ORG ” ) was introduced for the staff of social - security bodies on the ground that applying the local law of the départements of ORG , ORG and GPE was a particularly complicated task . The agreement specified that the allowance was equal to CARDINAL times the value of CARDINAL salary “ point ” as laid down in the national agreement covering social - security staff .

The Minister of Employment and ORG approved the agreement in a letter of DATE . The agreement was accordingly implemented as expected .

Following CARDINAL amendments of DATE and CARDINAL DATE concerning the method of calculating salaries and the classification of jobs , changes which affected the value of the point , the boards of the socialsecurity bodies reduced the ORG , which was set at the equivalent of CARDINAL points in DATE and CARDINAL points in DATE , instead of CARDINAL points as provided in the DATE agreement . Further , the ORG was not taken into account for the purpose of calculating the DATE bonus ( treizième mois ) payable under the national collective agreement .

In DATE , however , several social - security bodies decided to incorporate the ORG into their basis for calculating DATE allowances , with CARDINAL years’ retrospective effect . ORG , the supervising authority for these public bodies , quashed the decisions authorising the transfer of the funds needed to make these payments to staff .

Applications were made to CARDINAL industrial tribunals by CARDINAL staff members of the social - security offices concerned , seeking to have the DATE agreement implemented strictly and to be paid the corresponding salaries backdated to CARDINAL DATE ( claims in respect of pay being statutebarred after DATE ) .

In judgments of CARDINAL DATE and DATE ( Sarrebourg industrial tribunal , miscellaneous activities division ) , DATE ( Sarrebourg industrial tribunal , executive staff division ) and DATE and DATE ( PERSON industrial tribunal , executive staff division ) the officials’ claim for back payment of the ORG on the basis of CARDINAL times the value of the point was dismissed .

In judgments of DATE and CARDINAL DATE ( PERSON industrial tribunal , miscellaneous activities division ) and DATE ( NORP industrial tribunal , executive staff division ) ORG ( ORG primaire d’assurance maladie – “ NORP ” ) was ordered to pay the officials the amounts sought in back payment of the ORG as calculated on the basis of CARDINAL points .

In CARDINAL judgments of CARDINAL DATE concerning CARDINAL officials , ORG gave judgment in their favour . The representatives of the State – the prefect of the region and , on the latter ’s authority , ORG appealed on points of law .

On DATE the Minister of ORG withdrew the ministerial approval given on DATE . On DATE the Minister of ORG revoked that withdrawal of approval .

In CARDINAL judgments of DATE ORG quashed in part the CARDINAL judgments given by ORG on CARDINAL DATE in the actions brought by the CARDINAL officials . The court considered that the change of classification in DATE had resulted in the disappearance of the reference index in the DATE agreement . It consequently remitted the cases to the court below to determine whether a practice had been established or , if none had been , to determine the value that the reference index would have reached had it been retained .

ORG directed that the case should be reheard by ORG .

ORG , with which appeals concerning the ORG had also been lodged , delivered judgments on DATE in which it held , having regard to the terms of ORG judgments of DATE , that the reference index had disappeared and that a practice had been established of paying the ORG at CARDINAL times the value of the point since the amendment of DATE .

In a judgment of CARDINAL DATE ORG , after rehearing the case pursuant to ORG decision , held that the agreement of CARDINAL DATE was lawful , that it had not lapsed and that no other practice had been established . It consequently ordered that the ORG should be calculated on the basis of PERCENT of the minimum wage , which percentage corresponded to the amount of the ORG as calculated on the basis of CARDINAL points at DATE . ORG said , in particular :

“ As the DATE agreement has not been denounced and the ORG must continue to be paid , the only issue to be resolved , after the partial quashing of the judgments delivered by ORG , is the new method of calculating the allowance in DATE , which may be based either on a practice or , failing that , on the determination of the value which the reference index would have reached on each due date of the allowance if that index had been retained .

… The unilateral change made in DATE to the method of calculating the ORG can not have given rise to a practice which , moreover , would itself have been unilaterally changed in DATE in breach of the relevant rules . …

If the reference index disappears , it is necessary to create a linking index in accordance with the contracting parties’ intention .

The method adopted by the social - security offices in DATE and DATE , whereby the amount of the ORG was regarded as being fixed and was divided by the new value of the point to obtain the number of points necessary for calculating the ORG , disregards the general growth of salaries and has resulted in a progressive erosion of the ORG , as is shown by studies of the progression of the ORG compared with basic pay which the plaintiffs adduced in evidence .

In order for the common intention of the parties to be carried out , the allowance must be the same for officials in the CARDINAL départements , irrespective of their category , and the benefits acquired by employees must be retained .

A comparison of the ORG with the minimum wage is revealing . … In DATE , for instance , the ORG as calculated on the basis of CARDINAL points , the point having a value of ORG , amounted to FRF CARDINAL.CARDINAL , whereas if it had been calculated on the basis of PERCENT of the statutory minimum wage ( SMPG ) , which was then set at ORG CARDINAL , the ORG would have been FRF CARDINAL.CARDINAL .

The Court of Appeal accordingly ordered a fresh hearing to enable the plaintiffs to calculate the amounts of back pay to which they were individually entitled .

During the passage through ORG of a bill on public health and social welfare , which began on DATE , the government took the initiative of tabling an amendment . The debates on that amendment , which became CARDINAL of the eventual Act , took place mainly on DATE in ORG and DATE in the ORG . Clause CARDINAL of the bill was adopted .

Section CARDINAL of the Act provided that , subject to any court judgment to the contrary that had become final on the merits , the amount of the ORG introduced by the agreement of CARDINAL DATE for staff of the socialsecurity bodies administering the general social - security scheme and their dependent institutions in the départements of ORG , ORG and GPE would , with effect from DATE , be set at CARDINAL times the value of the point as determined under the pay agreements and paid CARDINAL times a year , notwithstanding any provisions to the contrary in collective or individual agreements that were in force on the date of commencement of CARDINAL .

An application was made to ORG by a number of members of parliament who considered , in particular , that section CARDINAL of the Act contravened the principle of the separation of powers in that it represented an interference by the legislature with pending court proceedings and that , further , the section in issue , which related to employment law , was unconnected with the purpose of the Act .

In a decision of CARDINAL DATE ORG held that the legislative provisions complained of were not unconstitutional , on the following grounds :

“ In setting the amount of the ‘ special difficulties’ allowance at CARDINAL times the value of the point as determined by applying pay agreements of CARDINAL DATE , with retrospective effect from DATE , the legislature intended to stop further conflicting decisions being given by the courts and thereby prevent fresh disputes arising whose outcome might adversely affect the financial stability of the social - security schemes in issue .

The legislature expressly preserved the position of persons who had obtained a court decision that had become final on the merits . There is nothing in the LAW to warrant the inference that the legislature departed from the principle that criminal provisions must not have retrospective effect . The legislature was entitled , subject to compliance with the aforementioned principles , to make use , as it alone could do in the circumstances , of its power to make retrospective provisions in order to resolve , in the general interest , situations that had arisen from the conflicting court decisions mentioned above . That being so , the impugned provisions are not contrary to any rule , nor do they offend any constitutional principle . … ”

Section CARDINAL of the LAW no . CARDINAL ) was consequently held to be constitutional . The LAW was promulgated on DATE .

On DATE ORG , ruling on the appeal brought by the Sarreguemines CPAM , the prefect of the PERSON region and ORG against ORG judgment of CARDINAL DATE , quashed that judgment in part , without ordering a rehearing by another court of appeal , in the following terms :

“ ... However , LAW of the LAW of DATE sets the amount of the ORG , for each payment period , at CARDINAL times the value of the point resulting from the application of the pay agreements concluded in accordance with the national collective agreement of CARDINAL DATE covering the staff of social - security bodies . In that the judgment under appeal adopts a different method of calculation from the CARDINAL laid down in the aforementioned provision , it must be quashed .

In accordance with LAW , second paragraph , of LAW , the case should be disposed of by applying the appropriate rule of law .

For these reasons … :

Quashes the judgment delivered on DATE by ORG but only in so far as that court held that the ORG should be calculated on the basis of PERCENT of the statutory minimum wage ;

Holds that it is unnecessary to order a rehearing of the case ;

Holds that the amount of the ORG must be set , for each payment period , at CARDINAL times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of CARDINAL DATE covering the staff of social - security bodies ;

In a judgment of CARDINAL DATE ORG likewise dismissed , in similar terms , the appeals on points of law brought against ORG judgments of DATE .

On DATE and DATE PERSON and CARDINAL other officials , represented by an officer from ORG ( Confédération française démocratique du travail – “ ORG ” ) likewise applied to the industrial tribunal seeking payment of arrears of the ORG ( assessed at ORG for the applicant ) and an order that this allowance should in future be calculated on the basis of CARDINAL points as provided in the DATE agreement .

Before the Metz industrial tribunal the prefect of the region and ORG challenged the officials’ arguments and sought to have the proceedings stayed pending ORG ruling on the appeals in the identical cases that had given rise to ORG CARDINAL judgments of CARDINAL DATE .

On DATE and CARDINAL DATE the second applicant and CARDINAL other officials , represented by the ORG officer , lodged identical claims with the GPE industrial tribunal .

In judgments of CARDINAL DATE ( PERSON ) and DATE ( Mr Pradal ) the GPE industrial tribunal awarded the plaintiffs back payment of the allowance and found that the ORG should be calculated on the basis of CARDINAL DATE points , in accordance with the DATE agreement . It held , inter alia :

“ The agreement lays down that this allowance is equal to CARDINAL times the value of the point , set by the national agreement covering the staff of social - security bodies .

In the wake of changes made to the latter agreement in amendments of DATE and CARDINAL DATE concerning the method of calculating salaries and the classification of jobs and the effects of those changes on the value of the point , the boards of the bodies that signed the DATE agreement decided to keep the ORG at a constant value by means of adjustments .

It is established that those adjustments had the effect of reducing the ORG to the equivalent of CARDINAL and then CARDINAL points .

The terms of the DATE agreement are precise and the basis of CARDINAL points could not be changed unilaterally .

The social - security bodies should have denounced the agreement if they considered that the adjustments made in DATE and DATE resulted in an excessive burden .

Such a change must be disregarded unless the parties agreed it in advance , and the silence of the other signatories to the agreement can not be regarded as signifying their approval ( Article L. CARDINAL - CARDINAL of LAW ) ... ” ( wording of the judgment of DATE )

Acting on the authority of the prefect of the region , ORG appealed against those judgments .

In judgments of DATE ( Mr Pradal ) and DATE ( PERSON ) DATE ORG upheld the industrial tribunal ’s judgments , holding that the allowance had been changed unilaterally in breach of LAW of DATE , on the following grounds in particular :

“ In the final analysis , the calculation of this allowance must be based on the value of the point as determined under the amendments of DATE and CARDINAL DATE and those in force on each occasion when the allowance becomes payable .

By DATE LAW , lawfully concluded agreements are legally binding on those who have made them . They can only be revoked by common consent or on grounds permitted by law . Similarly , by LAW , collective employment agreements are binding on all those who have signed them .

There is no escaping the fact that the agreement of DATE has not been denounced by any of the parties . It must consequently continue to be implemented and the CARDINAL reductions in the multiplier were imposed in breach of both LAW and the provisions governing collective employment agreements .

The allowance must consequently be paid on the basis of CARDINAL points , as provided in the aforesaid agreement .

On DATE ORG gave judgment as follows on the appeal brought by the prefect and ORG against ORG judgments of CARDINAL and DATE ( in respect of PERSON and PERSON ) and also against CARDINAL other judgments , of DATE and DATE , CARDINAL officials being concerned in all .

“ As to the application of LAW of the LAW of DATE ( Law no . CARDINAL - CARDINAL ) on public health and social welfare :

Section CARDINAL of the Act of DATE ( Law no . CARDINAL - CARDINAL ) , however , which is applicable to pending proceedings , including those pending before ORG , is intended , in the absence of agreement between the parties , to remedy the disappearance of a reference index and thus enable the amount of an allowance to be calculated . This legislative provision , on whose application the parties were able to present argument , does not amount to an intervention by the ORG in proceedings between it and private individuals . It does not call in question final court decisions and has been declared to be constitutional by ORG . It follows that the provision is not contrary to LAW .

As to the ground , raised of the ORG ’s own motion , notice having been given to the parties :

Having regard to LAW of the LAW of DATE ( Law no . CARDINAL - CARDINAL ) on public health and social welfare ,

In reaching its decision that the amount of the so - called special difficulties allowance must be calculated on the basis of CARDINAL points as provided in the agreement of CARDINAL DATE and that the value of the point must be that adopted for the calculation of pay in the collective agreements in force , ORG held that there was no contractual provision which made the retention of the chosen index conditional upon retention of the classification in force at the time of the agreement and that to decide the contrary would be to add to the terms of the agreement , which were perfectly clear and precise , and to alter its nature . It added that the agreement in dispute did not exclude taking into account changes in the value of the point that resulted from the grading reorganisation and that accordingly the value of the point as determined under the amendments of DATE and CARDINAL DATE had to be adopted for calculating the ORG . It noted , further , that the new methods of calculating the ORG that had been adopted following the classification changes in DATE and DATE had not been agreed on by all the signatories to the agreement of CARDINAL DATE and that as the agreed index remained applicable , it was unnecessary to determine whether an alternative practice existed . Lastly , it noted that the agreement of CARDINAL DATE was a collective agreement which could be called in question only if it were revised or denounced , which it had not been .

Section CARDINAL of the Act of DATE ( Law no . CARDINAL - CARDINAL ) , however , lays down the amount of the so - called special difficulties allowance , for each payment period , at CARDINAL times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective agreement of CARDINAL DATE covering the staff of social - security bodies . In so far as they adopt a method of calculating the amount of this allowance that differs from the CARDINAL laid down in the aforementioned enactment , the judgments under appeal must be quashed .

In accordance with LAW , second paragraph , of LAW , the case should be disposed of by applying the appropriate rule of law .

For these reasons :

Quashes the judgments delivered in these cases on DATE and DATE by ORG but only in so far as that court held that the amount of the so - called special difficulties allowance must be calculated on the basis of CARDINAL points , the value of the point being that adopted for the calculation of pay in the collective agreements currently in force ;

Holds that it is unnecessary to order a rehearing of the cases ;

On DATE ( PERSON , PERSON , PERSON , PERSON PERSON , PERSON , PERSON , PERSON and PERSON ) and DATE ( PERSON ) the applicants applied to the industrial tribunal on the basis of the DATE agreement seeking payment of arrears of the ORG and calculation of that allowance on the basis of CARDINAL points in future . No compromise having been reached at the conciliation hearing on DATE , the case was referred to the adjudication panel on CARDINAL DATE .

In CARDINAL judgments of DATE the FAC industrial tribunal allowed the applications on the following grounds :

“ ... The agreement signed on DATE ... introducing the special difficulties allowance ( ORG ) of CARDINAL points is still in force and has acquired the force of law .

On DATE the ORG gave its approval to the agreement .

Following changes to the classification of the staff of social - security bodies in DATE and DATE , this allowance was reduced by decision of ORG .

This department , an advisory body which was not a signatory to the DATE agreement , took that unilateral decision and had it approved by the social - security regional head office and the boards of the local offices .

Those changes are consequently not binding [ on the plaintiffs ] , especially as in the letter of CARDINAL DATE ORG stated that the agreement must be fully implemented .

Apart from the changes in the value of the point that were made unilaterally , no subsequent changes were made to the DATE agreement by the signatory parties .

Clause CARDINAL of the national collective agreement – schedule DATE provides : ‘ This agreement can not in any circumstances constitute a ground for reducing benefits acquired by staff at the date of signature.’

The DATE agreement consequently remains applicable in its entirety .

The GPE and the prefect of the GPE region , who was represented by ORG , appealed against those judgments on DATE .

On DATE ORG set the case down for hearing on DATE . On DATE , after the appellants had filed submissions in which they relied on the Act of DATE , the applicants lodged their pleadings in reply .

In CARDINAL decisions of CARDINAL DATE ORG gave judgment against the applicants on the ground that :

“ ... pursuant to [ section CARDINAL of the Act of DATE ( Law no . CARDINAL - CARDINAL ) ] , the judgment appealed against must be set aside , as the claim covers a period after DATE . ... ”

On CARDINAL and DATE the applicants appealed on points of law to ORG . They filed their full pleadings on CARDINAL DATE and a supplementary pleading on DATE . Pleadings in reply were filed on DATE . The reporting judge , who was appointed on DATE , submitted his report on DATE .

In a judgment of DATE , after a hearing on DATE , ORG declared the applicants’ appeals inadmissible as follows :

“ ... in matters in respect of which the parties are not required to be represented by a member of the PERSON d’Etat and ORG the appeal on points of law and subsequent procedural steps must be made , taken , handed over or sent by the party himself or by any representative with special authority to act .

The notices of appeal submitted by the parties do not contain even a summary statement of the grounds of appeal , and the pleadings that do contain such a statement , which were dispatched within the DATE period laid down in LAW , were all drawn up by a representative who produced no special authority to act .

The appeals are accordingly inadmissible . ... ”

The national , regional and local health - insurance offices have a public - service mission ( ORG decision no . PERCENT of DATE ) , and this explains both why they are vested with special governmental powers and why they come under the supervision of the minister responsible for social security . They manage the compulsory social - security scheme , with a budget of their own distinct from that of the ORG .

The minister in charge of social security is responsible for overseeing them , a task in which he is assisted by departments of his ministry , namely a central department and regional departments of health and social affairs , together with a national inspectorate of social affairs . The minister is also represented by the prefects of the départements or regions in their capacity as persons exercising ORG authority and as delegates of the government , the direct representatives of the Prime Minister and each of the other ministers .

The power of supervision is exercised firstly over persons , it being possible , on certain grounds , to dissolve or suspend the entire board of a social - security office , dismiss or require the resignation of certain members of such a board , and give or withhold consent to the appointment of managerial staff , as well as draw up lists of suitable candidates . The power of supervision also extends to decisions , the regional ministerial departments having the power to quash or suspend , on certain grounds , decisions of boards or directors of local social - security bodies and also to oppose decisions of national bodies . Certain special decisions of socialsecurity offices are also subject to an approval procedure , namely constitutional and procedural rules and collective agreements laying down staff regulations and the rules governing retirement .

Lastly , social - security bodies are under the supervision of the Minister for ORG and ORG , being subject to monitoring by regional ORG officials and ORG and also to audits by the national ORG .

The relevant section of the LAW reads as follows :

“ Subject to any court decisions to the contrary that have become final on the merits , the amount of the so - called special difficulties allowance introduced by the agreement of CARDINAL DATE for staff of the social - security bodies administering the general social - security scheme and their dependent institutions in the départements of ORG , ORG and GPE shall , with effect from DATE and for each payment period , be set at CARDINAL times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of CARDINAL DATE covering the staff of social - security bodies , notwithstanding any provisions to the contrary in collective or individual agreements in force on the date of publication of this Act . It shall be paid CARDINAL times a year . With effect from the same period , the DATE bonus shall be increased so as to reflect the amount of the so - called special difficulties allowance awarded in respect of DATE . ”


CASE OF SIDDIK ASLAN AND OTHERS v. TURKEY

Preliminary objection allowed (non-exhaustion of domestic remedies)

The applicants were born in DATE respectively , and live in the city of GPE .

The facts of the case , particularly concerning the events which occurred DATE , are disputed by the parties .

The facts as presented by the applicants are set out in Section B below ( paragraphs CARDINAL ) . The Government ’s submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the parties is summarised in Section D ( paragraphs CARDINAL - CARDINAL ) .

Mr PERSON is the first applicant ’s elder brother and is the husband of the third applicant , PERSON . Mr PERSON is the second applicant ’s cousin and is the husband of the fourth applicant , PERSON .

On DATE PERSON and PERSON left their homes in GPE for GPE , a town within the administrative jurisdiction of the city of PERSON . Nothing was heard from them until DATE when PERSON , a relative , received an anonymous telephone call . The caller told PERSON that PERSON and PERSON had been killed in an operation conducted by village guards and soldiers in the NORP area ( PERSON ) near the Geçitli hamlet , within the boundaries of GPE . The person then hung up . After the call , the relatives of PERSON and PERSON went to the local branches of ORG in GPE and PERSON to ask for assistance .

A group of CARDINAL relatives went to the ORG ’s office in GPE . The Prosecutor confirmed what had been said by the anonymous caller . The Prosecutor further stated that the place where the incident had taken place was in a dangerous area and that he could not therefore hand the bodies over to them . He told the relatives to talk to the commander of ORG . The identity cards of the members of the group who subsequently went to the Regiment were taken by the soldiers and they were kept waiting at the barracks for the rest of DATE . The group was later escorted by soldiers to the outskirts of GPE and told not to return or they would suffer the same fate as their relatives .

On DATE the Diyarbakır Branch of ORG by letter informed ORG , ORG of ORG , the Governor of LOC , the Secretary of ORG , the Şırnak Governor , ORG in Şırnak , the offices of the Prosecutor and the Governor in GPE , of the deaths of PERSON and PERSON . They requested the authorities to investigate this incident and to find the perpetrators . They further requested that official identifications of the bodies and autopsies be carried out .

Amnesty International was also informed and requested to make an urgent appeal .

The applicants claim that neither PERSON , who was born in DATE , nor PERSON , who was born in DATE , had any connections with the ORG . Moreover , PERSON had been suffering from health problems .

On DATE a military operation was initiated by ORG Commander ( PERSON ) in the PERSON - Faraşin area .

At TIME on DATE , i.e. on DATE of the operation , the gendarme soldiers were confronted by a group of terrorists in the vicinity of Dereyatağı . When the terrorists refused to surrender an armed clash ensued .

A search was conducted in the area by the soldiers after the clash had ended . In the course of the search the bodies of CARDINAL terrorists were found together with a PERSON rifle , CARDINAL cartridges , CARDINAL rockets and CARDINAL empty bullet shells .

NORP The search of the vicinity continued TIME and during this search the body of a third terrorist was found . The booby trap on this third body was made safe by the soldiers .

It was established by the soldiers that the remaining terrorists had escaped towards the city of GPE .

According to a record of the operation drawn up by the soldiers , it had been impossible to transport the bodies of the terrorists since the area was very mountainous , the distance between the location of the bodies and the city centre too great , and the soldiers had no vehicles at their disposal . A decision had therefore been taken to leave the corpses in the area and they had been covered with stones to protect them from wild animals . It was also impossible for the soldiers to take photographs of the bodies since they had no cameras with them .

Following the incident , the weather conditions allowed the authorities to visit the site on DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and , finally , on DATE . On those dates the authorities visited the site in order to take photographs of the bodies and to carry out autopsies . However , despite extensive searches , the bodies , allegedly those of PERSON and PERSON , could not be found . It was assumed that the bodies had decomposed or been taken by terrorists .

It has not yet been established whether the bodies found after the operation on DATE were those of the applicants’ relatives . Furthermore , contrary to what was alleged by the applicants , ORG did not make any claim that it was not possible to hand over the bodies to the relatives .

The following information appears from the documents submitted by the parties .

According to the record of the operation drawn up on DATE by the gendarme soldiers who took part in an operation on DATE , the bodies of CARDINAL terrorists were found in the operation area . Quantities of food and ammunition were also found . The report further listed the amount of ammunition used by the soldiers . According to this list , the gendarme soldiers from ORG had used a total number of CARDINAL bullets , CARDINAL hand grenades and QUANTITY . The soldiers from LOC had used a total of CARDINAL bullets .

On DATE the ammunition left by the ORG was handed over to the ORG office .

On DATE this record of the operation was forwarded to the ORG ’s office in GPE , together with the ammunition that had been found .

On DATE PERSON , PERSON and PERSON submitted CARDINAL petitions to ORG office and informed the Prosecutor about the anonymous telephone call that had been received by PERSON , who had been told about the killing of PERSON and PERSON . They asked the Prosecutor to assist them in obtaining the bodies of their relatives . On DATE , ORG forwarded these petitions to the ORG office in whose jurisdiction the incident had taken place .

On DATE the Beytüşşebap Prosecutor asked the ORG office to clarify the accuracy of the allegations contained in the petitions .

On DATE the Beytüşşebap Prosecutor questioned PERSON , PERSON and PERSON in connection with their petitions . The CARDINAL men gave a description of their disappeared relatives and stated that neither Ebuzeyt nor Halit had ever been involved in any ORG activity . They also stated that GPE , where their relatives had allegedly been killed , had been evacuated and that no one was living there . PERSON further stated that his brother PERSON might have gone to that area to smuggle NORP and NORP persons into GPE .

On DATE the Beytüşşebap Prosecutor questioned PERSON , the gendarme captain in charge of the military operation , and PERSON , a sergeant - major who also took part in the operation . Captain PERSON stated that , as he and the soldiers under his command had approached the Geçitli hamlet on DATE , they had been informed by radio that an armed man was walking towards the lower part of the village . Captain PERSON had also seen an armed man near the NORP area . Captain PERSON stated , inter alia , the following :

“ I then ordered my soldiers to be quick and not to lose sight of the armed men . It was around TIME As far as I know , the village where these QUANTITY men were seen had been uninhabited DATE . The area is not suitable for grazing animals . It is an area used by the terrorist organisation . The firing began TIME after I alerted my soldiers . After the firing had stopped I saw CARDINAL of the bodies . There was a PERSON rifle next to the body . The body belonged to a man over DATE of age . There were no documents on the body to help identify the person . When I examined the rifle it became apparent that it had recently been fired . We also found CARDINAL empty cartridges in the area . I was informed by the soldiers that there was another body at the upper part [ of the village ] but I did not personally see that body . We aborted the search as it was getting dark and moved to a more secure area . When we resumed the search TIME , I saw the other body . It was that of a man of DATE . There were no weapons near the body . Also , there were no identification documents on the body . We then saw the third body of a man of DATE . His body had been badly damaged , possibly by a rocket missile . I thought it possible that he had killed himself . There was a booby trap on this body and we made it safe . We covered the bodies with stones as we did not have any equipment with which we could dig graves for them . The area where we left the bodies is QUANTITY from here . We did not have any vehicles at our disposal . There are also landmines on the roads in that area . ”

Sergeant - major PERSON gave a similar statement to the Prosecutor .

On DATE the Beytüşşebap Prosecutor asked the PERSON Governor to clarify whether anyone was living in the FAC area near the GPE and whether the area was being used by villagers to graze their animals .

On DATE the Prosecutor also asked for copies of registry documents relating to the CARDINAL disappeared persons to be forwarded to him .

Again on DATE , the Prosecutor asked the ORG office about the possibility of the bodies being brought down from the area where they had been killed . In the alternative , the ORG asked for body and hair samples to be obtained from the bodies for identification purposes .

On an unspecified date in DATE General PERSON instructed the forces under his command to find the bodies in order to obtain body samples .

Captain PERSON informed the Beytüşşebap Prosecutor on DATE of an attempt made by him and his soldiers DATE to recover the bodies . Their attempt to reach the area had been hampered by fog and heavy rain .

On DATE PERSON , a first lieutenant and commander of ORG , informed the Prosecutor that bringing the bodies back could only be achieved if the security forces organised an operation . Given the limited number of soldiers under his command , it was not possible for him to carry out such an operation alone . If it was not possible to organise such an operation , then it might be possible to obtain body and hair samples from the corpses .

On DATE the PERSON Governor informed the Prosecutor that the Geçitli hamlet of PERSON had been evacuated in DATE and that no one had lived there since . Furthermore , the villagers were not allowed to take their animals out to graze in the area .

On DATE the ORG asked the Prosecutor in the town of ORG , in whose jurisdiction the CARDINAL disappeared persons used to live , to establish the date on which the latter had left their homes . He also asked whether any official complaints had been lodged in relation to the disappearance . The Prosecutor finally asked his colleague in ORG to question PERSON , the son of the disappeared PERSON .

On DATE a statement was taken from PERSON by ORG . PERSON stated that his mother – that is the fourth applicant PERSON – had told him that his father and PERSON had left for PERSON where they had relatives . He thought that his father had possibly been shot by the soldiers for having entered a military area . He stated that his father had left the PERSON area because of his fear of the ORG and it was therefore improbable that his father was a terrorist or that he had carried weapons . His father had never been arrested in the past ; in fact , he had never set foot in a police station . Even assuming that his father was a terrorist , this would not justify the refusal of the gendarmerie to hand over his father ’s body . At the PERSON gendarmerie commander ’s office he had been told that the bodies could not be handed over because the deceased were terrorists . He had also been told that he would be shot if he attempted to recover the bodies himself .

On DATE the Beytüşşebap Prosecutor asked the CARDINALrd ORG Commander ’s office ( CARDINAL . ORG ) whether it would be possible to recover the bodies or , in the alternative , to obtain body samples from them .

According to a report drawn up on DATE by a gendarme sergeant - major , another attempt to recover the bodies had been made on DATE by CARDINAL fully equipped gendarme teams , joined by CARDINAL commando units . This operation had to be aborted the following day as it was too cold , foggy and wet .

On DATE the CARDINALrd ORG Commander ’s office replied to ORG request that the bodies could only be recovered by means of an operation conducted in the area . The Prosecutor was also informed in the same letter that work on the feasibility of such an operation had already begun .

On DATE PERSON , a relative of the CARDINAL disappeared men , said in a statement made to the police that the family had made applications to the Beytüşşebap Prosecutor ’s office as well as to the ORG Commander ’s office ( Şırnak PERSON ) .

According to a report drawn up on DATE by a gendarme major , a third attempt to recover the bodies had been made on DATE . It too had had to be aborted as the area was covered with snow .

Similar attempts were made on DATE , DATE and DATE and , finally , on DATE . The snow had by then reached a height of QUANTITY and there was also a risk of avalanches , with the result that these operations had to be aborted .

A meeting was held on DATE by ORG ( İnsan Hakları PERSON ) . The ORG , which was presided over by the provincial Governor , consisted of the local mayor , the provincial gendarmerie commander , the police chief of the province as well as a number of civil servants . According to the minutes of the meeting , the ORG , having examined the evidence in the file , reached the conclusion that no innocent civilians had been killed in the operation . The ORG further noted that the preliminary investigation was still continuing and that autopsies could not be carried out due to the lack of transportation facilities and geographic difficulties . The ORG stated that efforts to recover the bodies would continue .

On DATE PERSON , son of the disappeared PERSON , said in a statement made at ORG office that the family had not made any official complaints in relation to the disappearance of their relatives .

On DATE the Beytüşşebap Prosecutor asked the PERSON gendarmerie commander ’s office to forward him copies of the documents concerning the evacuation of the PERSON village . The ORG also asked whether it could have been possible for the CARDINAL disappeared men to have gone to the NORP area on foot . The Prosecutor finally asked for copies of documents concerning the clashes between the security forces , the village guards and terrorists in the area and also of documents concerning the cultivation of cannabis in the vicinity .

DATE the PERSON gendarmerie replied to the Prosecutor ’s request that the Geçitli hamlet had been evacuated due to the actions of the ORG and on the request of the villagers . There was no reason , therefore , for PERSON and PERSON to go to the area .

On DATE the PERSON gendarmerie commander ’s office further informed ORG that the villagers had left the village of their own free will because of ORG terrorist activities . The Prosecutor was also informed that the CARDINAL persons could have taken the bus from GPE to the town of GPE , but that there were no roads to the village and the area was not safe . The Prosecutor was finally informed that there had been DATE attacks by the ORG in the area DATE .

On DATE the ORG drew up a report ( fezleke ) in which he set out the developments in his investigation and forwarded it to ORG on DATE . The Prosecutor asked the ORG to grant authorisation for the prosecution of PERSON , the commander of ORG , for his alleged professional negligence in the failure to produce the bodies for an autopsy .

On DATE another attempt was made by the gendarmerie to reach the area in order to find the bodies . This time the soldiers were able to reach the area but , despite carrying out a search on CARDINAL and CARDINAL May , they were unable to find the bodies .

On DATE ORG granted the authorisation requested by ORG ( see paragraph CARDINAL above ) .

On CARDINAL DATE the Prosecutor in PERSON sent a letter to his colleague in PERSON , requesting him to ask the gendarmerie to make yet another attempt to find the bodies . ORG was also asked to summons PERSON to the ORG ’s office in GPE .

On DATE PERSON was served the summons to appear before ORG .

On DATE ORG drew the attention of his colleague in PERSON to PERSON failure to appear before him and urged his colleague to find him .

PERSON , who was found by ORG on DATE , informed the latter of his intention to go to ORG office as soon as possible .

On DATE ORG sent a letter to ORG , saying that he had carried out an investigation into the actions of PERSON and had concluded that PERSON had not been negligent in the failure to find the bodies . According to the Prosecutor , finding the bodies would have required a major operation and it was impossible for PERSON to carry out such an operation with the limited number of soldiers under his command . It appears from this letter that PERSON had been questioned by ORG .

On DATE the Beytüşşebap Prosecutor handed over the investigation file to his colleague in Şırnak .

On DATE ORG decided not to prosecute PERSON on the ground that an investigation had already been carried out and ORG had been informed .

On DATE ORG in GPE sent a letter to ORG setting out their answers to questions put by the ORG as to whether and what serious attempts had been made to recover the bodies during DATE and DATE and whether the ammunition recovered had been examined for fingerprints . According to ORG letter , CARDINAL attempts had been made DATE and DATE but the bodies had not been found . It was possible that the bodies had decomposed naturally or that they had been taken away by the terrorist organisation . The area where the bodies had been left was QUANTITY in altitude and , because of the weather conditions , it had not been possible to reach the area by helicopter . The distance to the area had rendered it difficult for the soldiers to bring back the ammunition that had been found , and an examination of the ammunition carried out at the military base had not revealed any prints .

The relevant part of LAW provides as follows :

“ An official examination of a corpse must be made in the presence of a physician . An autopsy shall be performed in the presence of a judge and , in those cases where it is necessary to avoid prejudicial delay , the autopsy shall be performed by CARDINAL physicians in the presence of the public prosecutor , CARDINAL of the physicians being a forensic practitioner . ...

When it is deemed necessary [ during a preliminary investigation ] to carry out an autopsy on a body which has already been buried , the permission of the public prosecutor is required and the necessary action will be taken by the [ prosecutor ] . ”

Article CARDINAL of LAW provides as follows :

“ Unless there are reasons requiring otherwise , the formal identification of a body is carried out prior to an autopsy by showing the body to the people who knew the deceased and , if a suspect has already been apprehended , the body is also shown to him or her . ”

DATE . Article CARDINAL of LAW provides as follows :

“ If there is evidence to suggest that a deceased has not died of natural causes , the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge . The body can only be buried after a written burial licence has been issued by the public prosecutor or by a criminal court judge . ”

A description of other relevant domestic law may be found in PERSON v. GPE ( judgment of DATE , Reports of judgments and Decisions CARDINAL-IV , pp . DATE , § § DATE ) .