Damage - financial award;Costs and expenses - claim dismissed

On DATE , ORG allowed in part the ORG claims in the action for damages against the ORG , brought on DATE ( see paragraph CARDINAL of the principal judgment ) . It held inter alia :

“ It appears from the documents in the file and particularly from the accounts … of the limited partnership ‘ NORP and PERSON and Co’ that during the whole of the period concerned the plaintiffs … were running a private foreign language school , despite the defendant ’s refusal to grant them the relevant authorisation . It is therefore not possible to prove the damage they alleged they had sustained in the form of loss of profit , particularly the school fees they would have expected to receive had it not been for the defendant ’s unlawful conduct , since they were in fact carrying on the activity for which the relevant administrative authority had refused a licence …

Regard being had to the above considerations , neither the alleged damage nor the existence of any loss of profit can be proved . For these reasons , the action must be dismissed as unfounded …

On the other hand , ORG considers that the defendant ’s repeated unlawful refusals to grant the GPE legitimate request – which amounts to a flagrant breach of the provisions of ORG law – and the refusal to comply with the judgments of ORG of ORG and ORG caused the plaintiffs stress over a long period . It therefore considers it appropriate to award each of them MONEY in respect of non - pecuniary damage , to which sum is to be added interest at the statutory rate from the commencement of the action , that is from DATE , when notice of the plaintiffs’ application to the civil courts was served on the defendant … Lastly , the ORG request for the present judgment to be made immediately enforceable must be rejected because the conditions laid down in LAW no . CARDINAL/CARDINAL have not been satisfied in the present case . ”

By an application lodged with ORG of ORG on DATE , ORG had brought an action under LAW for a declaration that , by maintaining in force the provisions of LAW no . CARDINAL/CARDINAL and Decree no . CARDINAL/CARDINAL of the Minister for Education and ORG ( as subsequently amended ) , the ORG had failed to fulfil its obligations under ORG law , in particular the provisions on movement of workers within the ORG . In its judgment of DATE ORG held :

“ The above - mentioned NORP provisions impose , in respect of recruitment of teachers in private foreign - language schools , more stringent conditions on foreigners , including nationals of other Member GPE , than they do on NORP nationals .

Decision no . DATE thus provides that the recruitment of foreign teachers requires authorisation by ORG following submission of certain documents specified in the decision . Renewal of authorisation is also subject to the submission of several documents , including a medical certificate .

Furthermore , paragraphs ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW no CARDINAL/CARDINAL provide that only persons possessing the qualifications required of teachers within public education may teach in a private school . The competent Minister may , however , decide that the qualifications of NORP nationals who do not satisfy that condition are adequate .

GPE does not deny that the disputed rules are incompatible with Community law . It does , however , point out that LAW making the recruitment of nationals of other Member GPE subject to the same conditions as those required for employment of NORP nationals will be published shortly and that consequently the proceedings will serve no purpose .

That argument can not be accepted . It is settled case - law … that amendments of national legislation are irrelevant for the purposes of giving judgment on the subject - matter of an action for failure to fulfil obligations if they have not been implemented before the expiry of the period set by the reasoned opinion .

A declaration of failure to fulfil obligations must therefore be made in the terms sought by the Commission . ”

ORG has decided to refer GPE to ORG of ORG , requesting it to impose financial penalties for failure to apply CARDINAL judgments concerning infringements of ORG rules on the recognition of qualifications , namely the requirement that persons wishing to open private foreign - language schools , or to become directors of or teachers in such schools , must pass an examination in NORP language and history .


Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses - claim dismissed

NORP The applicant , a NORP national , grew up in GPE in northern GPE . In DATE she married and moved with her husband to GPE .

She is the owner of plots of land nos . DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL in GPE . Prior to the NORP occupation of northern GPE on DATE , work had commenced on plot no . CARDINAL for the construction of a block of flats , CARDINAL of which was intended as a home for her family . The applicant had entered into an agreement with the property developer to exchange her share in the land for an apartment of QUANTITY m. Her ownership of the properties is attested by certificates of registration issued by LOC and ORG at the moment of acquisition .

NORP Since DATE the applicant has been prevented from gaining access to her properties in northern GPE and “ peacefully enjoying ” them as a result of the presence of NORP forces there .

On DATE the applicant participated in a march organised by a women ’s group ( “ Women Walk Home ” movement ) in the village of Lymbia near the NORP village of ORG in the occupied area of northern GPE . The aim of the march was to assert the right of NORP refugees to return to their homes .

Leading a group of CARDINAL marchers she advanced up a hill towards ORG in the NORP - occupied part of GPE passing ORG guard post on the way . When they reached the churchyard they were surrounded by NORP soldiers and prevented from moving any further . She was detained by the NORP police for a period of ten hours and subsequently released .


CASE OF SCHWIZGEBEL v. SWITZERLAND [Extracts]

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

The applicant was born on DATE and lives in GPE . She is single and has a Master ’s degree in music . Music constitutes her source of income .

According to the applicant , when she was CARDINAL , a man with whom she had been in a relationship for DATE died in an accident . Since then she had not wished to start a family with anyone else . However , driven by the desire to bring up children , she decided , after much thought , to adopt a first child .

On DATE she sought authorisation from ORG for GPE to receive a child with a view to adoption .

The applicant explained that , having been informed that she would probably receive a negative response on account of her marital status , she withdrew her application on DATE .

After settling in GPE ( GPE of Jura ) , in DATE she submitted a new application for authorisation to receive a child , and it was granted on the basis of the favourable opinion issued by ORG .

On DATE she received a little girl , GPE , born in GPE on DATE .

On the basis of a home study report of DATE , which recommended the child ’s adoption , the supervisory authority of ORG granted the adoption on DATE .

On DATE the applicant sought authorisation to receive a second child with a view to adoption .

ORG of the Republic and Canton of Jura rejected that application by a decision of DATE , which was confirmed on appeal on DATE .

ORG of ORG upheld that refusal on DATE .

On DATE the applicant – who had moved back to GPE in DATE again sought authorisation to receive a second child with a view to adoption : a child from LOC DATE .

In a decision of DATE , ORG rejected her application .

The applicant appealed against that decision but her appeal was declared out of time DATE and therefore inadmissible DATE on DATE by ORG of GPE .

On DATE she submitted a fresh application for authorisation to receive a child for purposes of adoption but it was rejected by ORG of GPE in a decision of DATE .

On DATE , at an individual hearing before the cantonal authority , the applicant stated that she wished to receive a child no older than CARDINAL and that she would prefer a child from GPE , like her first adopted child , whilst remaining open to the possibility of adopting a child from another country .

In a decision of DATE , ORG for GPE dismissed the applicant ’s appeal and upheld the refusal to authorise provisional placement of a child with a view to adoption . It did not call into question the fact that the applicant ’s educational qualities , based on love , respect and NORP values , were recognised . Moreover , the court considered that the applicant had sufficient resources as a result of her salaried jobs . It took the view , however , that the adoption of a second child could unfairly affect the situation of GPE . Moreover , it found that the applicant had underestimated the specific difficulties of adoption , and in particular international adoption . The court further expressed certain reservations about the applicant ’s availability and about the prospect of her father and brother being able to assist in caring for a second child . It thus concluded that the circumstances as a whole did not enable it to foresee that the adoption would further the child ’s welfare .

In a judgment of DATE , notified to the applicant ’s representative on CARDINAL DATE , ORG dismissed the applicant ’s administrative - law appeal , finding as follows :

Under LAW in the version in force since DATE a child may be adopted if the future adoptive parents have cared for it and provided for its education for DATE , and if all the circumstances make it foreseeable that the establishment of a parent - child relationship will further the child ’s welfare without unfairly affecting the situation of any other children of the adoptive parents . All adoptions must thus be preceded by a placement and fostering relationship of a certain duration . An imperative condition for adoption , this measure serves to justify the subsequent establishment of a parent - child relationship , to allow a probationary period for those concerned , and to provide the opportunity and means to ensure that the adoption will further the child ’s welfare ( ORG [ ORG judgments ] CARDINAL III CARDINAL point CARDINAL p. CARDINAL and citations ) . Under LAW , the placement of children with foster parents is subject to the authorisation and supervision of the supervisory authority or another office for the place of residence of the said parents , as designated by cantonal law ( LAW ) ; where the child is placed with a view to its adoption , a single cantonal authority is competent ( LAW bis , as in force since DATE ) ; ORG stipulates the requirements for implementation ( § CARDINAL ) .

In accordance with Article ORG of ORG of DATE governing the placement of children for the purposes of support and with a view to adoption ( ‘ the OPEE’ ; RS CARDINAL ) , as in force since DATE , placement authorisation is given only where the personal qualities , state of health and educational capacities of the future adoptive parents and other persons living in their household , together with the housing conditions , offer every guarantee that the placed child will benefit from appropriate care , education and training , and that the well - being of the other children living in the family will be safeguarded ( § CARDINAL ( a ) ) , that there is no statutory impediment to the future adoption and that all the circumstances put together , in particular the motives of the future adoptive parents , enable it to be foreseen that the adoption will further the child ’s welfare ( § CARDINAL ( b ) ) . The authority must particularly take the child ’s interest into account where the age difference between the child and the adoptive parent is DATE ( Article CARDINAL § CARDINAL ( a ) ORG ; see , on this issue , ORG CARDINAL III CARDINAL point CARDINAL p. CARDINAL ) .

This primary condition of adoption – the welfare of the child ( LAW ) – is not easy to verify . The authority must ascertain whether the adoption is really capable of ensuring the best possible development of the child ’s personality and of improving his or her situation ; that question must be examined in all respects ( emotional , intellectual , physical ) , without attributing excessive weight to the material factor ( ATF CARDINAL III CARDINAL point QUANTITY in fine p. CARDINAL and citations ) .

Under Article CARDINALb § CARDINAL of the Civil Code , an unmarried person DATE whether single , widowed or divorced DATE may adopt alone if he or she is DATE . In this form of adoption , the parent - child relationship is established with a single parent . As a result of that situation , the adoptive parent must , on his or her own , assume the duties that meet the child ’s needs and remain available to care for the child to a degree that exceeds that required of each parent in a couple adopting jointly . Accordingly , the authority must particularly take into account the child ’s interest where the applicant is not married , or where he or she is unable to adopt jointly with his or her spouse ( Article CARDINAL § CARDINAL ( b ) ORG ) . The legislature ’s intention was that joint adoption should be the rule and adoption by a single parent the exception ( ORG CARDINAL II CARDINAL point CARDINAL p. CARDINAL/CARDINAL ) . It may indeed be considered that the child ’s interest , which is paramount , consists in principle of living in a complete family . Nevertheless , the law does expressly permit adoption by a single person , without subjecting him or her – unlike those wishing to adopt an adult or a person deprived of legal capacity ( Article CARDINAL § CARDINAL Chapter CARDINAL of LAW ) – to the existence of ‘ valid reasons’ . In any event , where the requisite conditions for the child ’s welfare are satisfied , and the adoption by a single person meets all the requirements for the child ’s fulfilment and personality development , the adoption will be granted ; in such cases , at the preliminary placement stage , the conditions laid down in LAW ORG will be satisfied , and the placement authorisation must be granted ( ATF CARDINAL III CARDINAL point CARDINAL p. CARDINAL and citations ) .

The court below found that the appellant had appropriate educational qualities . She can count on a wide network of persons who support her in her project and have promised to help her take care of the children when she is busy . Since the refusal of the authorities of the Canton of Jura ( see B.a above ) , she has changed the organisation of her life by moving to GPE , where she carries on her professional activities ; since DATE she has been renting accommodation in an area close to the parish church of which she is maître de chapelle and in a building that also houses the offices and secretariat of the music festival of which she is the artistic director . Lastly , her financial resources are sufficient ( MONEY ] DATE ) . Those points being established , it is not necessary to examine them again .

In her application of DATE the appellant had sought authorisation to receive ‘ a second child , from LOC , aged DATE ; it does not appear from the application lodged DATE that those criteria had changed . However , when she appeared personally before the cantonal authority on DATE she declared that she wished to receive a child ‘ up to the age of ORG ; pointing out that A. [ the first child adopted by the applicant ] was from GPE , she expressed a desire to be entrusted with a child who was ‘ born in that ORG , whilst ‘ of course remaining open to other PERSON .

As this ORG found in a recent case , such an approach can not be admitted ( see judgment of CARDINAL of DATE , point CARDINAL , published in DATE p. CARDINAL ) . The home study report ( LAW and LAW is drawn up according to the age and origin of the child , factors that the applicant must indicate ( LAW ( a ) and ( c ) ORG ) . ORG thus quite rightly , in its findings on the cantonal appeal , found that this document had been ‘ drawn up on the basis of an application for the adoption of a child aged DATE at the time of its arrival’ . Any finding to the contrary would suggest that an application could be changed as and when the case so required , for a reduction of the age difference in this instance . It follows that the criticism of the cantonal court for not having granted an ‘ authorisation for an older child , in order to reduce the age difference’ appears ill - founded . The fact that the LAW between GPE and GPE on cooperation in matters of child adoption came into force while the case was pending on appeal , that is to say on DATE ( RO CARDINAL p. CARDINAL ) , is immaterial ; moreover , the appellant does not show that she would satisfy the conditions laid down in that agreement , or even – notwithstanding the opinion of ORG representative ( see record of individual hearing on DATE ) DATE that her project would in fact be feasible .

The appellant was born in DATE and is thus DATE ; in relation to a child of CARDINAL DATE leaving aside the waiting times in international adoption – the age difference would be between DATE and DATE . In the light of ORG case - law such a difference appears excessive ( see judgment CARDINAL of DATE , point CARDINAL , published in DATE p. CARDINAL : single person ‘ of DATE wishing to adopt a ‘ girl DATE ; see also the references cited in LAW point CARDINAL , p. CARDINAL ) . As the cantonal authority rightly pointed out , even an age difference of DATE is too great . In that case the appellant would , at over DATE , find herself the single parent of CARDINAL teenagers , who , in addition to the problems arising in that period of life , may well face particular difficulties as adopted children ( see , for example , judgment CARDINAL of DATE , point CARDINAL , published in DATE p. CARDINAL ) , especially as the future child might have specific needs . The appellant is thus wrong to rely on ORG judgment CARDINAL III CARDINAL ( age difference between CARDINAL and forty - six years ) , where , moreover , the adoption of a single child was at stake ( see point QUANTITY below ) .

NORP The opinion of the court below , according to which the appellant underestimated the burden represented by a second child , can not be disputed . Whilst it may be admitted , from a theoretical standpoint , that the presence of a sister or brother may have beneficial effects in emotional and social terms ( see judgment CARDINAL of CARDINAL DATE , point CARDINAL , unpublished , in SJ CARDINAL pp . CARDINAL et seq . ) , that assessment should be nuanced as far as adopted children are concerned . The home study report noted that ORG , after enjoying exclusive maternal attention , faced the risk of ‘ reactivating a feeling of abandonment’ ; the positive effects of a new adoption on her situation ( LAW in fine of LAW , section GPE [ ORG LAW ] , and LAW ( a ) , in fine , ORG ) are not therefore certain ( see , in general , ORG , ORG de l’enfant , GPE DATE , p. CARDINAL ; this author observes that ‘ it is in families that have a number of adopted children or a number of biological children [ and CARDINAL adoptive child ] that the failure rate is the highest’ ) . In addition , it can not be ruled out that the second child might have difficulties related to the deprivations suffered by children who have been abandoned ( judgment CARDINAL of DATE , point CARDINAL , published in DATE p. CARDINAL ) , and this might complicate the arrangements made by the appellant . These findings are consistent with those of ORG in its additional report of DATE .

The appellant disputes that assessment ; she asserts , relying on statements from third parties , that the second adoption would be ‘ beneficial for GPE and criticises the cantonal judges for straying into ‘ theoretical GPE . Those criticisms appear unjustified . Given that the placement authorisation precedes the adoption decision , the authority must inevitably make a prognosis . In view of the characteristics of an adoption by a single person and the dramatic consequences that a failed adoption would have for the child ( see , on this subject , ORG in DATE pp . CARDINAL et seq . ) , the court below can not be reproached for its rigour ( see PERSON , op . cit . , n. CARDINAL ad LAW and the literature cited ) , as was in fact required of it by LAW of the ORG ( ‘ most ORG ) . It is not for this ORG to substitute its own conception of the child ’s welfare for that of the cantonal authority and of the investigators ( see DATE p. CARDINAL , point CARDINAL in fine and citations ) , but solely to ascertain whether relevant circumstances have not been taken into consideration or , indeed , whether crucial factors have been overlooked . Notwithstanding the appellant ’s categorical denials , that is not the case here .

NORP The cantonal authority found that the assistance that the appellant ’s father could provide was not a solution for the care of A. and a second child ; the presence at home of an DATE father would represent , on the contrary , a handicap in the future , because his daughter would herself be required to provide him with help and support at some point . The appellant ’s brother , who has no children DATE and it is not known whether his wife has a professional activity – could admittedly help her with the future child , as he has already done with A. ; however , the brother lives in GPE . Similarly , the person intended to become the adopted child ’s godfather lives in GPE . Lastly , the support of neighbours in her building and of her very close friend , together with the presence of A. ’s godfather and godmother , does not change anything , as the important criterion is the availability of the appellant herself ; moreover , the education of children always rests with the parents , and it is easier to express an intention of assistance in the abstract context of a procedure than in everyday life and for DATE .

This opinion is consistent with the case - law of this ORG and with legal opinion ( DATE p. CARDINAL point CARDINAL ; PERSON / PERSON , ORG filiation , vol . I , CARDINALrd ed . , no . CARDINAL , with other citations ) . Whatever the appellant may claim , the cantonal authority did not minimise the involvement of her family and friends by preferring ‘ theoretical ORG . ORG had occasion to observe this in a recent case , where , in spite of her ‘ extended family’ , a mother applying for a second adoption had had to entrust her adopted daughter to a neighbour when she went into hospital ( DATE ibid . ) . As to the possibility of having to care for her father , she merely asserts that her brother ‘ would be present’ , but the latter has not corroborated this claim and in addition is supposed to make up for any deficiencies of the appellant . Moreover , the child ’s interest can not be measured solely in terms of the availability of the parent who is seeking to adopt alone ( PERSON / PERSON , ibid . ) . The grounds set out above are , in any event , sufficient for the decision appealed against to be upheld .

NORP In conclusion , having regard to the discretionary powers enjoyed by the placement authorities ( RDT CARDINAL p. CARDINAL point CARDINAL ) , the decision of the court below does not lay itself open to criticism . Accordingly , the appeal must be dismissed , with costs awarded against the appellant ( section CARDINAL ) of LAW ) . ”

NORP The relevant provisions of LAW are as follows :

“ A child may be adopted if the future adoptive parents have provided it with care and education for DATE and if , in the light of all the circumstances , it may be foreseen that the establishment of a parent - child relationship will further the child ’s welfare without unfairly affecting the situation of other children of the adoptive parents . ”

“ CARDINAL . An unmarried person may adopt a child alone if he or she is DATE .

“ CARDINAL . An adoption shall not be granted until enquiries have been made , covering all essential circumstances , where necessary with the assistance of experts .

NORP The enquiries shall concern , in particular , the personality and health of the adoptive parents and the child , their mutual suitability , the GPE ability to bring up the child , their financial situation , their motives , their family circumstances and the development of the fostering relationship .

Where the adoptive parents have descendants , the opinion of the latter shall be taken into account . ”

“ CARDINAL . The placement of children with foster parents shall be subject to the authorisation and supervision of the supervisory authority or another office for the foster GPE place of residence , as designated by the law of the canton .

CARDINAL bis . Where a child is placed with a view to adoption , a single cantonal authority shall be responsible .

The ORG shall issue implementing regulations . ”

The relevant provisions of ORG Order governing the placement of children for support and with a view to adoption ( “ the ORG ” ) of DATE read as follows :

“ Authorisation may only be granted where :

( a ) the personal qualities , state of health and educational capacities of the future adoptive parents and other persons living in their household , together with the housing conditions , offer every guarantee that the fostered child will benefit from appropriate care , education and training and that the well - being of other children in the family will be safeguarded ; and where

( b ) there is no legal impediment preventing the future adoption and provided it can be foreseen , in the light of all the circumstances , in particular the motives of the future adoptive parents , that the adoption will further the child ’s welfare .

The capacities of the future adoptive parents will require special attention if there are circumstances that may render their task difficult , in particular :

( a ) where it may be feared , in view of the child ’s age , especially if it is DATE , or in view of its development , that it may have difficulties settling into its new environment ;

( b ) where the child is physically or mentally handicapped ;

( c ) where CARDINAL child will be placed in the same family ;

( d ) where the family already has CARDINAL child .

The authority will take particular account of the child ’s interest where :

( a ) the age difference between the child and future adoptive father or mother is DATE ;

( b ) the applicant is not married or he or she can not adopt jointly with his or her spouse . ”

“ Where the future adoptive parents meet the conditions laid down in Articles ORG and ORG , § CARDINAL , provisional authorisation to receive a child who has previously been living abroad , with a view to his or her adoption , may be delivered , even if the child has not yet been determined .

In their application , the future adoptive parents shall indicate :

( a ) the child ’s country of origin ;

( b ) the service or person in GPE or abroad whose assistance will be required in finding the child ;

( c ) their stipulated conditions regarding the child ’s age ;

( d ) where appropriate , their stipulated conditions regarding the child ’s gender or state of health .

The provisional authorisation may be limited in time and may be subject to obligations and conditions .

The child may be received in GPE by its future adoptive parents only once the visa has been issued or leave to remain has been secured .

After the child has entered NORP territory , the authority shall decide on the granting of permanent authorisation . ”

Most NORP legislations authorise adoption by a single person . However , a number of different situations can be found . The legislative provisions of certain GPE permit any person , man or woman , with or without a precise indication of marital status , to apply for adoption . This is the case , in particular , for the following countries : GPE , GPE , GPE , GPE , “ the former GPE ” , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE and GPE . GPE , such as GPE or GPE , allow adoption by a single person subject to certain conditions . In NORP legislation , adoption is regarded as legitimate where it contributes to the child ’s physical and moral well - being and where the establishment of an effective parent - child relationship can be expected .

Other States impose restrictions on the adoption of a child by a single person . For example , in GPE and GPE , adoption by a single parent remains an exception . The possibility may be envisaged only if it can be shown that the adoption is in the child ’s interest ( in GPE and GPE ) . In the same vein , NORP and LOC legislations allow adoption by a single person only where there are sufficient reasons to justify it . GPE law draws a distinction between simple adoption ( which does not terminate the connection with the family of origin ) and full adoption ( which terminates all legal connection with the family of origin ) , stipulating that simple adoption alone , not full adoption , is possible for a single person . Unlike GPE and GPE , which also have such a distinction , but which nevertheless allow single persons to adopt in both cases , it is not possible in GPE or GPE for single persons to apply for full adoption .

NORP The NORP legislation is similar to that of GPE and GPE , as single persons are authorised to adopt minors only in the context of “ adoption in special circumstances ” . The definition of “ adoption in special circumstances ” corresponds to that of simple adoption , as it enables the adopted child to retain legal connections with his or her family of origin .

Most of the legislations of ORG member GPE require a minimum age for prospective adopters . That age continually decreased throughout DATE . The majority of NORP legal systems now fix a minimum age of DATE . GPE , “ the former GPE ” , GPE and GPE are among the rare member GPE that do not stipulate a minimum age for persons wishing to adopt .

Some legislations , albeit few in number , expressly provide for a maximum age for prospective adopters . For example , GPE , “ the former GPE ” , GPE , GPE , the GPE and GPE impose a maximum age of DATE ( for the latter limit , GPE and GPE in particular ) . Specific reasons may exceptionally justify non - observance of the maximum age rule . This is the case , for example , in GPE and the GPE , where an exemption from the maximum age requirement may be granted where there are sufficient reasons to justify such an exception or specific circumstances . In GPE and the “ the former GPE ” , when exemption from the maximum age is possible , an additional condition , relating to the difference in age between adopter and adoptee , is imposed .

In another group of GPE , where no maximum age is stipulated , the competent national authorities in the area of adoption nevertheless take into consideration the age of the person wishing to adopt when they examine his or her personal situation . This is apparent from the material available on the legal systems of GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE .

It appears that the legislations of most member ORG also contain provisions concerning the age difference between adopter and adoptee .

A number of legal systems – GPE , GPE , GPE , GPE , “ the former GPE ” , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE and GPE – impose a minimum age difference between adopter and adoptee . That difference , where required , varies between CARDINAL and twenty - one years . It should be noted , however , that the legislations of these GPE do allow derogations from the principle of the minimum age difference in certain situations .

In another group of legal systems , including in particular GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , no minimum age difference is provided for by law . In those cases the legislation may expressly provide that the age difference must be “ appropriate ” , “ neither too wide nor too narrow ” or “ reasonable ” .

Some legislations set a maximum age difference between adopter and adoptee , namely DATE in GPE , GPE and the GPE ( in the latter , only for the adoption of foreign children ) , DATE in GPE , “ the former GPE ” , GPE , GPE , GPE , GPE and GPE , and DATE in GPE ; also , in exceptional circumstances , in GPE and GPE . However , derogations from the provisions concerning the maximum age difference are possible in specific circumstances , which are largely the same as those that are considered in respect of the minimum age difference .

A significant number of instruments governing adoption , particularly in order to protect the child ’s interest , lay down various conditions . However , few texts expressly lay down requirements related to the possibility of adoption by single persons or conditions concerning the adopter ’s age or the age difference between adopter and adoptee . Certain international instruments concerning adoption refer to the application of the domestic law rules of the GPE Parties to the conventions in question .

LAW , DATE , remains the main instrument of ORG in the area of adoption . It came into force on DATE . To date , CARDINAL member GPE , including GPE , have ratified it and CARDINAL have just signed it .

Under DATE of this instrument , the member ORG , Contracting Parties to the LAW , undertake to ensure the conformity of their law with the provisions of Part II of the LAW . This Part sets out a minimum number of essential principles to which the Contracting Parties undertake to give effect , seeking to harmonise such principles and NORP practice in matters of adoption .

As regards persons who are allowed to adopt a child , LAW stipulates that the law of ORG may permit a child to be adopted by CARDINAL person . However , GPE that only allow adoption by a couple are not required to enact provisions to allow adoption by a single person .

As to the age - limit for adoptive parents and the age difference between them and the children , Article CARDINAL provides that “ a child may be adopted only if the adopter has attained the minimum age prescribed for the purpose , this age being neither less than QUANTITY nor more than CARDINAL years ” . However , “ the law may ... permit the requirement as to the minimum age to be waived when ( a ) the adopter is the child ’s father or mother , or ( b ) by reason of exceptional circumstances ” .

Article CARDINAL provides as follows :

“ CARDINAL . The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the interest of the child .

NORP In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home .

As a general rule , the competent authority shall not be satisfied as aforesaid if the difference in age between the adopter and the child is less than the normal difference in age between parents and their children . ”

The legal and social changes that have occurred in LOC since ORG on ORG have led a large number of GPE Parties to amend their adoption laws . As a result , certain provisions of the CARDINAL Convention have gradually become outdated . With that in mind , a revised LAW was drawn up in line with the social and legal developments whilst taking the child ’s best interests into account .

ORG NORP Convention on ORG ( Revised ) ( “ the Revised Convention ” ) , which was opened for signature on DATE , has not yet come into force ; CARDINAL member GPE have signed it to date . It will replace , as regards the GPE Parties thereto , LAW .

Under LAW ( conditions for adoption ) , domestic law will “ permit a child to be adopted ... by CARDINAL person ” . Article CARDINAL ( minimum age of the adopter ) provides as follows :

“ CARDINAL . A child may be adopted only if the adopter has attained the minimum age prescribed by law for this purpose , this minimum age being neither CARDINAL nor DATE . There shall be an appropriate age difference between the adopter and the child , having regard to the best interests of the child , preferably a difference of DATE .

The law may , however , permit the requirement as to the minimum age or the age difference to be waived in the best interests of the child :

a. when the adopter is the spouse or registered partner of the child ’s father or mother ; or

b. by reason of exceptional circumstances . ”

This Article does not prevent the national law from imposing a minimum age of DATE on the adopter . Any higher level of minimum age must nevertheless respect the principle of adoption as enshrined in the LAW and , accordingly , that age can not exceed CARDINAL . The upper limit of DATE that was set by LAW , namely DATE , now appears excessive ; it has thus been set at CARDINAL . Moreover , the Convention does not prescribe a maximum age for the adopter ( see Explanatory Report on LAW , § § DATE ) .


Violation of Article 13 - Right to an effective remedy;Violation of Article 3 - Prohibition of torture (Substantive aspect)

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

The applicant was born in DATE and lives in the town of LOC in LOC .

On CARDINAL DATE the applicant was arrested and charged with passing counterfeit money . His detention was extended a number of times .

The applicant was committed to stand trial before LOC of GPE . According to the applicant , he was brought from the detention facility a number of times to LOC to take part in trial hearings . On DATE of a court session he was allegedly woken up at CARDINAL or TIME and taken to a small room on the ground floor of the detention facility where he remained for TIME . The room was cold in DATE . It was dirty and poorly lit . At TIME the transportation of inmates to the courthouse began . Inmates were placed in an overcrowded van and transported in inhuman conditions for TIME ; the van called in on the way at several courthouses until the inmates reached their destination . Throughout DATE inmates , including the applicant , received no food .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment .

The applicant appealed , alleging that the trial court had incorrectly assessed the facts and applied the law , that it had not thoroughly examined the case , and that his case should have been tried in another court having territorial jurisdiction .

On DATE ORG upheld the judgment , endorsing the reasons given by ORG .

From DATE to DATE the applicant was detained in facilities nos . PERSON ( commonly known as “ GPE ) and IZ-CARDINAL/CARDINAL ( also known as “ LOC ” ) in GPE .

According to certificates issued on DATE by the director of the facility and produced by the Government , the applicant was kept in CARDINAL different cells . From CARDINAL May to DATE and from DATE to DATE he stayed in cell no . CARDINAL which measured QUANTITY and housed on average CARDINAL inmates . From DATE to CARDINAL DATE he was kept in cell no . CARDINAL which measured QUANTITY and accommodated CARDINAL detainees . From DATE to DATE the applicant remained in cell no . CARDINAL measuring QUANTITY . The average occupancy rate in that cell was CARDINAL detainees . After DATE he was kept in cell no . CARDINAL with CARDINAL inmates . Cell no . CARDINAL measured QUANTITY . The Government supported their assertions with copies of extracts from registration logs showing the number of detainees on DATE , DATE and DATE and DATE and DATE .

The Government , relying on the certificates of DATE , further submitted that the applicant had had an individual bunk and bedding at all times .

The applicant did not dispute the cell measurements . However , he alleged that the bigger cells had had CARDINAL sleeping places . Furthermore , the cell population changed CARDINAL or CARDINAL times a week . There were usually from CARDINAL inmates in the bigger cells . Given the lack of beds , inmates had slept in shifts . No bedding or blankets were provided .

The Government , relying on the information provided by the director of the facility , submitted that the cells received natural light and ventilation through large windows , which were glazed and measured QUANTITY in width and QUANTITY in height . The windows were covered with metal shutters which were removed after DATE . The cells also had an artificial ventilation system . The average temperature in the cells was QUANTITY in DATE and CARDINAL degrees Celsius in DATE . The cells were equipped with lamps which functioned DATE and TIME . Each cell was equipped with a lavatory pan , a sink and a tap for running water . The pan was separated from the living area by a CARDINAL - and - a QUANTITY - high concrete wall . Inmates were allowed to take a shower once DATE . The cells were disinfected once DATE . The Government , relying on the information provided by the director of the facility , further stated that the applicant was given food “ in accordance with the established norms ” . According to the Government , detainees , including the applicant , were provided with medical assistance . They had regular medical check - ups , including X - ray examinations , blood tests , and so on . The applicant did not make any complaints about the state of his health and did not ask for particular medical services .

The applicant disagreed with the ORG ’s description and submitted that the sanitary conditions had been unsatisfactory . The cells were infected with bed - bugs and lice but the administration did not provide any insecticides . It was extremely cold in the cells . The windows were not glazed and were covered with metal blinds which blocked access to natural light and air . The applicant pointed out that the Government did not dispute that the blinds had only been removed sometime after DATE , that is after his detention in that facility had come to an end . He further submitted that the lavatory pan had been separated from the living area by a QUANTITY - high wall , thus affording no privacy to inmates . The food was of poor quality and in scarce supply . The applicant noted that the certificates provided by the Government could only attest to the sanitary conditions in the facility in DATE , when the director of the facility had issued them .

The applicant alleged that detention facility no . PERSON had been under the rule of so - called “ legitimised thieves ” ( « воры в законе GPE ) . Each cell had an “ overseer ” ( « смотрящий ORG ) . If a detainee wanted to complain about poor detention conditions or unlawful actions of the administration he had to obtain permission from an “ overseer ” . Only collective complaints initiated by “ legitimised thieves ” were allowed . The applicant further submitted that he had been unable to complain to the facility administration because he would have been subjected to a punishment . The administration could start transferring him to a new cell DATE , as had happened to other detainees . In that way he would have been completely deprived of sleep because he would have lost his place in the “ sleeping queue ” .

The Government submitted a certificate issued by the facility director on DATE . The certificate read as follows :

“ [ I ] inform you that in detention facility no . PERSON in GPE individuals , who reckon themselves to be so - called “ legitimised thieves ” , do not control complaints lodged by detainees . ”

On DATE the applicant was transferred to facility no . IZ-CARDINAL/CARDINAL where he remained until DATE . He was placed in cell no . CARDINAL , measuring QUANTITY .

The Government , relying on a certificate issued by the director of the facility on DATE , argued that the cell housed from CARDINAL detainees in the period from DATE to DATE . They also provided extracts from registration logs showing the number of detainees on DATE . As follows from the extracts , there were CARDINAL inmates in cell no . CARDINAL . The ORG further submitted that the information on the number of inmates in cell no . CARDINAL in the period from DATE to DATE was not available . The Government provided a description of the conditions of the applicant ’s detention in facility no . IZ-CARDINAL/CARDINAL , which was similar to the description of the conditions in facility no . IZ-CARDINAL/CARDINAL except for CARDINAL aspect : the cell windows measured QUANTITY in width and QUANTITY in height .

The applicant submitted that the sanitary conditions of his detention in facility no . IZ-CARDINAL/CARDINAL had been slightly better than those in facility no . PERSON . However , the cells were still severely overcrowded ; he was afforded less than QUANTITY of personal space , and he did not have an individual sleeping place . Inmates had no privacy as the lavatory pan was not separated from the living area . The cell was infested with insects and food was very scarce .

On DATE the applicant ’s journey from detention facility no . IZ-CARDINAL/CARDINAL in GPE to a correctional colony in LOC began . On DATE he arrived in GPE where he was placed into a “ transit ” remand centre . On DATE the applicant was put on another train heading to a “ transit ” remand centre in GPE where he arrived on the following day . He remained in the FAC “ transit ” centre until DATE when he was taken by train to GPE . In GPE the applicant was also detained in a “ transit ” remand centre . On DATE he was placed on a train and taken to the correctional colony in LOC where he arrived on DATE .

The Government , relying on certificates issued in DATE by various officials of ORG , submitted that the applicant had been transported in a special security compartment in a train carriage . Before being placed on the train he was body searched . The Government further noted that during his trip from GPE to GPE the applicant was detained with CARDINAL other inmates in compartment no . CARDINAL . The Government did not indicate the measurements of the compartment and submitted that itineraries and other documents pertaining to the conditions of the applicant ’s transport had been destroyed .

The applicant argued that he had been transported with CARDINAL detainees in a CARDINAL - seat train compartment measuring QUANTITY in length and QUANTITY in width . Inmates were allowed to use a toilet once or twice a day . Sometimes they had to urinate in plastic bottles .

On DATE the applicant arrived at the FAC “ transit ” remand centre . The Government , relying on certificates issued by the facility director in DATE and written statements by warders drawn up in DATE , submitted that on DATE the applicant had been placed in cell no . CARDINAL which measured QUANTITY . The cell had CARDINAL sleeping places . The number of inmates corresponded to the number of bunks . The Government noted that registration logs bearing names and placement of detainees had been destroyed on DATE . They further submitted that on DATE the applicant had complained to a warder of pain in the right ankle . He was taken to the prison hospital where , following an X - ray examination , he was diagnosed with an ankle fracture . Until DATE he remained in a hospital cell , measuring QUANTITY and accommodating CARDINAL detainees . The Government gave a detailed description of the treatment the applicant had been provided with , including the type of medical procedures and medicine , dose and frequency . On DATE the applicant was transferred back to the “ transit ” centre and again placed in cell no . CARDINAL . The Government further submitted that the applicant had had an individual sleeping place and had been provided with bedding . The food complied with sanitary norms .

According to the applicant , he was placed in cell no . CARDINAL , measuring QUANTITY and having CARDINAL sleeping places . The cell housed CARDINAL inmates . There were so many inmates that they even had to take turns to sleep on the concrete floor . The cell was located in the basement and had a small window on the ground level . There was no fresh air and the cell was very dark . There was a bucket in the corner which doubled a lavatory pan . There were lice and other insects in the cell . The applicant argued that he had remained in cell no . CARDINAL until DATE when , after complaints of severe pain in the right ankle , he was taken to the hospital . The applicant alleged that after a doctor had put his leg in a plaster cast he had been taken back to the “ transit ” remand centre and placed in cell no . CARDINAL .

The applicant did not make separate complaints pertaining to the conditions of his detention in other “ transit ” remand centres .

. Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony ’s administration ” .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


Violation of P1-3;Not necessary to examine Art. 14+P1-3;Costs and expenses partial award - Convention proceedings

Gaukur Jörundsson;John Freeland;Luzius Wildhaber;Nicolas Bratza

On DATE the applicant applied to ORG for GPE to be registered as a voter at the elections to ORG . ORG replied on DATE :

“ The provisions of Annex II of LAW on Direct Elections of DATE limit the franchise for NORP parliamentary elections to GPE [ see paragraph CARDINAL below ] . This Act was agreed by all member GPE and has treaty status . This means that ORG will not be included in the franchise for the NORP parliamentary elections . ”

Gibraltar is a dependent territory of GPE . It forms part of Her Majesty FAC , but not part of GPE . The GPE parliament has the ultimate authority to legislate for GPE , but in practice exercises it rarely .

Executive authority in GPE is vested in the Governor , who is the ORG representative . Pursuant to a dispatch of CARDINAL DATE , certain “ defined domestic matters ” are allocated to the locally elected Chief Minister and his Ministers ; other matters ( external affairs , defence and internal security ) are not “ defined ” and the Governor thus retains responsibility for them .

The Chief Minister and ORG are responsible to the GPE electorate via general elections to ORG . ORG is the domestic legislature in GPE . It has the right to make laws for GPE on “ defined domestic matters ” , subject to , inter alia , a power in the Governor to refuse to assent to legislation .

The Treaty Establishing the European Community ( “ the LAW ” ) applies to GPE by virtue of its LAW ) , which provides that it applies to the NORP territories for whose external relations a member ORG is responsible . GPE acceded to the precursor to LAW , LAW ( “ LAW ” ) , by LAW of DATE .

Gibraltar is excluded from certain parts of LAW by virtue of LAW . In particular , GPE does not form part of the customs territory of the ORG , with the result that the provisions on free movement of goods do not apply ; it is treated as a third country for the purposes of the common commercial policy ; it is excluded from the common market in agriculture and trade in agricultural products and from the ORG rules on value - added tax and other turnover taxes , and it makes no contribution to the ORG budget . ORG ( “ ORG ” ) legislation concerning , inter alia , such matters as free movement of persons , services and capital , health , the environment and consumer protection applies in GPE .

Relevant ORG legislation becomes part of GPE law in the same way as in other parts of the ORG : regulations are directly applicable , and directives and other legal acts of the ORG which call for domestic legislation are transposed by domestic primary or secondary legislation .

Although GPE is not part of GPE in domestic terms , by virtue of a declaration made by the GPE government at the time of the entry into force of LAW DATE , the term “ nationals ” and derivatives used in LAW are to be understood as referring , inter alia , to NORP citizens and to NORP LOC citizens who acquire their citizenship from a connection with GPE .

The powers of ORG are divided amongst the institutions set up by LAW , including ORG , ORG ( “ the NORP Commission ” ) and ORG .

Before DATE , the date of the entry into force of LAW of DATE ( “ the LAW ” ) , Article CARDINAL of LAW referred to the “ advisory and supervisory powers ” of ORG . Since DATE , the words “ advisory and supervisory powers ” have been removed and the role of ORG has been expressed by Article CARDINAL to be to “ exercise the powers conferred upon it by [ the ] Treaty ” . The principal powers of ORG under LAW may now be summarised as follows :

Article ORG provides that ORG shall “ participate in the process leading up to the adoption of ORG acts by exercising its powers under the procedures laid down in ORG CARDINALb and PERSON and by giving its assent or delivering advisory opinions ” . Further , the second paragraph of Article ORG empowers ORG to request ORG to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing LAW .

The reference in the first paragraph of Article PERSON to “ assent ” refers to a procedure whereby LAW ( for example , in ORG ) and CARDINALd ) provides for adoption of provisions by ORG on a proposal from ORG and after obtaining the assent of ORG . The procedure is called the “ assent procedure ” .

Article CARDINAL provides for a motion of censure by ORG over ORG whereby if a motion is carried by a CARDINAL majority , representing a majority of the members , the members of ORG are required to resign as a body .

Article CARDINAL provides that ORG is to be consulted before the President of ORG is nominated , and the members of ORG , once nominated , are subject as a body to a vote of approval by ORG .

The first paragraph of Article CARDINAL provides :

“ In order to carry out their task and in accordance with the provisions of LAW , ORG acting jointly with ORG , ORG shall make regulations and issue directives , take decisions , make recommendations or deliver opinions . ”

Article PERSON provides :

“ CARDINAL . Where reference is made in the LAW to this Article for the adoption of an act , the following procedure [ ] shall apply .

The Commission shall submit a proposal to ORG and the ORG .

The ORG , acting by a qualified majority after obtaining the opinion of ORG , shall adopt a common position . The common position shall be communicated to ORG . The ORG shall inform ORG fully of the reasons which led it to adopt its common position . The Commission shall inform ORG fully of its position .

If , within DATE of such communication , ORG :

( a ) approves the common position , the ORG shall definitively adopt the act in question in accordance with that common position ;

( b ) has not taken a decision , the ORG shall adopt the act in question in accordance with its common position ;

( c ) indicates , by an absolute majority of its component Members , that it intends to reject the common position , it shall immediately inform the ORG . The ORG may convene a meeting of ORG referred to in paragraph CARDINAL to explain further its position . ORG shall thereafter either confirm , by an absolute majority of its component Members , its rejection of the common position , in which event the proposed act shall be deemed not to have been adopted , or propose amendments in accordance with subparagraph ( d ) of this paragraph ;

( d ) proposes amendments to the common position by an absolute majority of its component Members , the amended text shall be forwarded to the ORG and to the ORG which shall deliver an opinion on those amendments .

NORP If , within DATE of the matter being referred to it , the ORG , acting by a qualified majority , approves all the amendments of ORG , it shall amend its common position accordingly and adopt the act in question ; however , the ORG shall act unanimously on the amendments on which the ORG has delivered a negative opinion . If the ORG does not approve the act in question , the President of the ORG , in agreement with the President of ORG , shall forthwith convene a meeting of ORG .

The Conciliation Committee , which shall be composed of the members of the ORG or their representatives and an equal number of representatives of ORG , shall have the task of reaching agreement on a joint text , by a qualified majority of the members of the ORG or their representatives and by a majority of the representatives of ORG . The Commission shall take part in ORG proceedings and shall take all the necessary initiatives with a view to reconciling the positions of ORG and the ORG .

NORP If , within DATE of its being convened , ORG approves a joint text , ORG , acting by an absolute majority of the votes cast , and the ORG , acting by a qualified majority , shall have a period of DATE from that approval in which to adopt the act in question in accordance with the joint text . If CARDINAL of the CARDINAL institutions fails to approve the proposed act , it shall be deemed not to have been adopted .

Where ORG does not approve a joint text , the proposed act shall be deemed not to have been adopted unless the ORG , acting by a qualified majority within DATE of expiry of the period granted to ORG , confirms the common position to which it agreed before the conciliation procedure was initiated , possibly with amendments proposed by ORG . In this case , the act in question shall be finally adopted unless ORG , within DATE of the date of confirmation by ORG , rejects the text by an absolute majority of its component Members , in which case the proposed act shall be deemed not to have been adopted .

NORP The periods of DATE and DATE referred to in this Article may be extended by a maximum of DATE and DATE respectively by common accord of ORG and ORG . The period of DATE referred to in paragraph CARDINAL shall be automatically extended by DATE where paragraph CARDINAL(c ) applies .

The scope of the procedure under this Article may be widened , in accordance with the procedure provided for in Article GPE ) of LAW , on the basis of a report to be submitted to ORG by DATE at the latest . ”

Article PERSON provides :

“ Where reference is made in LAW to this LAW for the adoption of an act , the following GPE apply :

( a ) The ORG , acting by a qualified majority on a proposal from the ORG and after obtaining the opinion of ORG , shall adopt a common position .

( b ) The ORG ’s common position shall be communicated to ORG . ORG shall inform ORG fully of the reasons which led the ORG to adopt its common position and also of the Commission ’s position .

If , within DATE of such communication , ORG approves this common position or has not taken a decision within that period , the ORG shall definitively adopt the act in question in accordance with the common position .

( c ) ORG may , within DATE referred to in point ( b ) , by an absolute majority of its component Members , propose amendments to the ORG ’s common position . ORG may also , by the same majority , reject the ORG 's common position . The result of the proceedings shall be transmitted to ORG .

If ORG has rejected the ORG ’s common position , unanimity shall be required for the ORG to act on a second reading .

( d ) The Commission shall , within DATE , re - examine the proposal on the basis of which the ORG adopted its common position , by taking into account the amendments proposed by ORG .

The Commission shall forward to the ORG , at the same time as its re - examined proposal , the amendments of ORG which it has not accepted , and shall express its opinion on them . The ORG may adopt these amendments unanimously .

( e ) The ORG , acting by a qualified majority , shall adopt the proposal as re - examined by the Commission .

Unanimity shall be required for the ORG to amend the proposal as re - examined by the Commission .

( f ) In the cases referred to in points ( c ) , ( d ) and ( e ) , the ORG shall be required to act within DATE . If no decision is taken within this period , the Commission proposal shall be deemed not to have been adopted .

( g ) The periods referred to in points ( b ) and ( f ) may be extended by a maximum of DATE by common accord between the ORG and ORG . ”

Article CARDINAL makes provision for the budget of the ORG . In particular , after the procedure for making modifications and amendments to the draft budget , it is open to ORG to reject the draft budget and to ask for a new budget to be submitted ( Article CARDINAL(CARDINAL ) ) .

Article CARDINAL provides for parliamentary involvement in the process of discharging ORG in respect of the implementation of the budget . In particular , ORG may ask to hear ORG give evidence on the execution of expenditure , and ORG is required to submit information to ORG if so requested . Further , ORG is required to take all appropriate steps to act on the observations of ORG in this connection .

Article CARDINAL ) of LAW provided , in DATE , that ORG was to draw up proposals for elections . The ORG was required to “ lay down the appropriate provisions , which it [ was to ] recommend to Member GPE for adoption in accordance with their respective constitutional requirements ” . Identical provision was made in ORG and ORG .

In accordance with LAW CARDINAL/CARDINAL ( “ the Council Decision ” ) , signed by the President of ORG and the then member States’ foreign ministers , laid down such provisions . The specific provisions were set out in an LAW by ORG of DATE ( “ the DATE LAW ) , signed by the respective foreign ministers , which was attached to ORG . Article CARDINAL of the CARDINAL Act provides that “ Annexes I to III shall form an integral part of this Act ” . Annex II to the CARDINAL Act states that “ GPE will apply the provisions of this LAW only in respect of the GPE ” .

By a declaration dated DATE , GPE , pursuant to former LAW , extended ORG . Protocol No . CARDINAL applies to GPE by virtue of a declaration made under LAW No . CARDINAL on DATE .


The applicant is an NORP national living in GPE , GPE .

She is represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

A.

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

The applicant is the owner of altogether CARDINAL parcels of land situated in GPE , namely FAC . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL and CARDINAL , all registered under file no . CARDINAL of the Tschagguns land register ( Grundbuch ) . All parcels are designated as agricultural land ( ORG ) in the area zoning plan ( ORG , with the exception of parcels no . CARDINAL and CARDINAL which are marked out as building land . Parcels nos . CARDINAL and CARDINAL on which CARDINAL buildings are erected , namely a farmhouse and a barn , are surrounded by parcel no . DATE which is agricultural land . Adjacent to this are parcels nos . DATE and CARDINAL . The other parcels owned by the applicant , parcels nos . DATE , CARDINAL , CARDINAL/CARDINAL and DATE , form a further complex of land , divided from the other plots by a small road .

On DATE the applicant , represented by counsel , filed a request with GPE for a partition of land ( ORG ) according to a map drawn up by a civil engineer . This request related to the complex of land formed by parcels nos . DATE , CARDINAL , CARDINAL and DATE . As to this map the applicant stated in her request : this map reflects the wish of the petitioner to have her parcels reasonably partitioned in such a way that they could later be used as building land . She further mentioned that a previous request for an amendment of the area zoning plan in force had been refused on the basis of a negative report by an official expert . The partition map attached to the new request was to be considered as an expert report refuting the findings of the official expert in the previous proceedings .

On DATE ORG ( Gemeindevorstand ) dismissed the applicant ’s request . It found that the requested partition was contrary to the area zoning plan . Since a change of the land ’s designation into building land was not possible , it had to be treated as agricultural land . The requested partition was contrary to the objectives mentioned in LAW ( Raumplanungsgesetz ) , in particular the maintenance and development of the rural conditions for agriculture , as the granting of the partition would lead to an unreasonable dispersion of agricultural land . As regards the applicant ’s complaint about the official expert ’s report , ORG noted that her previous request for a change of the designation of the land had already been rejected by ORG ) on DATE . That decision had partly been based on a report prepared by an official expert . The map submitted by the applicant could not be considered equivalent to an expert report .

On DATE the applicant appealed to ORG ) of GPE . She also requested ORG to obtain the expert report of a civil engineer on the possible future non - agricultural use of her land . As in her initial request , she stated that the map reflected her wish to have her parcels reasonably partitioned in such a way that they could be used as building land later on .

On DATE the applicant supplemented her appeal . She stated that it was not necessary to hear an expert for agriculture as the main purpose of the partition proceedings was to change in the future the use of the land . Instead of an agricultural expert a building engineer should be heard as expert .

On DATE ORG dismissed the applicant ’s appeal . Referring to a report by an official expert of ORG ) , it found that the partition of the land at issue , including the construction of an access road to some of the parcels , would render the agricultural exploitation of the land more difficult and the exploitation of parts of the land by agricultural machines impossible . Thus , from an agricultural viewpoint the partition of the land made no sense . The partition was , therefore , contrary to the area zoning plan in force and contrary to the objectives provided for in LAW , since the primary purpose of the partition , which the applicant had admitted , was the change of the designation of the land into building land . It had not been necessary to obtain another report from a non - agricultural expert on the possible future use of the land , as requested by the applicant , because this land was , according to the area zoning plan , designated as agricultural .

On DATE the applicant filed a further appeal to ORG ) . She stated that it was unreasonable to continue to use the land for agricultural purposes . It was only logical that , once the land was properly partitioned , its designation in the zoning plan would have to be changed . On DATE ORG dismissed the appeal .

On DATE the applicant lodged a complaint with ORG ) . She complained in particular that her request for the partition of her land had not been decided by a tribunal within the meaning of LAW , that no oral hearing had been held and that the authorities had not sufficiently taken into account the map prepared by the civil engineer . She also submitted that the area zoning plan was unlawful , and recommended a change of the designation of her land therein :

On DATE ORG declined to deal with the applicant ’s complaint for lack of prospects of success , and remitted the case to ORG ( Verwaltungsgerichtshof ) . ORG , referring to its previous case - law , found that a request for the partition of land did not involve the determination of civil rights , within the meaning of LAW , and that the applicant had failed to substantiate which laws had been infringed by the area zoning plan .

On DATE the applicant supplemented her complaint to ORG and requested an oral hearing before ORG , combined with an inspection of the location , in the course of which the civil engineer who had drawn up the partition map should be heard as a witness .

On DATE ORG dismissed the applicant ’s complaint . The ORG found that , on the basis of the area zoning plan in force , the authorities had only to examine whether the partition was contrary to the objectives set out in LAW , in particular the maintenance of agricultural area s. Since it had been established that a partition would render more difficult the agricultural exploitation of the land which , contrary to the applicant ’s submissions , was still possible at the present stage , ORG found that the conditions for a partition of the land were not met . Furthermore , there was no question of any preferential treatment of the official agricultural expert by the authorities , because the experts dealt with different facts . While the private expert , i.e. the civil engineer who had drawn up the partition plan , dealt with a hypothetical future use of the land as building land , the official agricultural expert ’s starting point was the actual designation of the land .

ORG rejected the applicant ’s requests for an oral hearing and an on - site inspection , as it found that such measures would not clarify the case further . The main question in the present case was whether the proposed partition of the land would render its cultivation more difficult and not , as had been suggested by the applicant , what alternative use of the land , not compatible with the area zoning plan , would be preferable or desirable . An oral hearing would only have been useful for the purpose of examining the latter question .

It appears that the applicant has meanwhile lost all her land as it had been sold at a judicial sale ( ORG ) in enforcement proceedings ordered against the applicant .

B. Relevant domestic law

Land planning in GPE is divided into regional and local zones ( überörtliche und örtliche GPE ) . In the present case the land planning at issue was governed by LAW ( Raumplanungsgesetz ) of ORG .

In order to achieve the aims of the regional land planning laid down in LAW , ORG ( PERSON ) issues regional land plans ( PERSON ) ( Section CARDINAL ) .

According to LAW , the area zoning plan has to pursue , inter alia , the following objectives :

- to protect the environment , in particular to avoid negative repercussions on the environment and to preserve the countryside ;

- to maintain and to improve good conditions for agriculture and forestry ; and

to preserve and to further the development of adequate health and tourist resorts .

The local land planning is carried out by the communities which issue area zoning plans ( Flächenwidmungspläne ) that designate the land as building areas ( ORG ) , possible future building areas ( PERSON ) , undeveloped areas ( PERSON ) , traffic areas ( Verkehrsflächen ) and reserved areas ( PERSON ) .

Both the regional land plans and the area zoning plans are Ordinances ( ORG ) . The owners of affected land are neither parties to the planning proceedings nor do they have a right to request a change or an exemption in plan designations .

Section CARDINAL of LAW , insofar as relevant , reads as follows :

“ ( CARDINAL ) Parcels of land may only be divided with the consent of the municipal executive committee .

( CARDINAL ) Such permission is to be refused , if the partition

( a ) does not comply with the area zoning plan , the building plan or the objectives listed under LAW , ...

( c ) divides the plot of land for no pertinent reason ,

( d ) leads to a situation in breach of the building law in relation to any existing buildings ,

( e ) results in new parcels of land which can no longer be exploited in a reasonable manner .

( CARDINAL ) Permission shall be granted if no grounds for its refusal under paragraph CARDINAL exist . ”


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants are the owners of a flat in PERSON , which they had let to A.M.

In a writ served on the tenant on DATE , the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Sorrento Magistrate .

By a decision of CARDINAL DATE , the ORG refused to uphold the validity of the notice to quit , declined jurisdiction on account of the value of the case and indicated that ORG had jurisdiction to hear it .

On DATE , the applicants resumed the proceedings before ORG .

NORP In a judgment of CARDINAL DATE , which was filed with the registry on DATE , the court allowed the applicants ' claim and ordered that the premises be vacated by DATE .

On DATE , the tenant appealed to ORG of appeal .

In a judgment of CARDINAL DATE , which was filed with the registry on CARDINAL DATE , the court rejected the appeal .

On DATE , the applicants served notice on the tenant requiring him to vacate the premises .

On DATE , they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

As from DATE until DATE , the bailiff made several attempts to recover possession . Each attempt proved unsuccessful , as , under the statutory provisions providing for the staggering of evictions , the applicants were not entitled to police assistance in enforcing the order for possession .

On DATE , the tenant vacated the premises .

The relevant domestic law is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


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

The applicant was a sheep farmer who was under investigation by the local trading standards officers for the way in which he kept his sheep . He voluntarily attended CARDINAL interviews , on DATE and on DATE . The interviews were set up CARDINAL and DATE respectively in advance . On each occasion , the applicant was cautioned , told that he was free to leave , that he could obtain legal advice , and that he could have a solicitor present at the interview . At the first interview , the applicant answered all questions . At the second , he stated at CARDINAL point that he would have been happier if he had been accompanied by a solicitor .

In the proceedings , the applicant contended that the transcripts of both interviews should not be admissible as evidence . The magistrates excluded the transcript of the second interview , but admitted that of the first . On DATE , the applicant was convicted on CARDINAL counts of causing unnecessary suffering to sheep , of failing to dispose of animal by - products , and of failing to keep proper records .

The applicant appealed , contending that the transcript of the interview of DATE should also have been excluded from the case on the ground that the applicant had not been informed that free legal advice was available . On DATE ORG ( ORG and PERSON ) dismissed the application . It found under that domestic law , there was a right to free legal aid ( from the duty solicitor ) where a person was questioned at a police station , but not in circumstances where , as here , a person is questioned voluntarily in other premises and no constable is present . As free “ police station ” legal aid was not relevant , it could not be expected of a trading standards officer to give the applicant information as to means - tested legal advice . ORG also considered that LAW ( c ) did not extend to requiring free legal advice to be given for initial , voluntary questioning , and that accordingly there could be no requirement to give information as to such advice . Leave to appeal was refused , regardless of whether the matter was civil ( in which case the appeal would have been , with leave , to ORG ) or criminal ( in which case it would have been , with a certificate that the case raise a point of law of general public importance and leave , to ORG ) .

Section CARDINAL of the Police and Criminal Evidence Act DATE ( PACE ) grants a person arrested and “ held in custody in a police station or other LOC ” the right to consult a solicitor “ if he so requests ” . The obligation to inform a person of his rights to legal advice is restricted to persons under arrest and at a police station or elsewhere in the charge of a constable ( Section CARDINAL(CARDINAL ) PACE ) . Code of Practice C under PACE provides at C:CARDINAL.CARDINAL that where a person is brought to a police station under arrest , or is arrested at the police station after having attended voluntarily , the custody officer must inform him of the right to consult privately with a solicitor and the fact that independent legal advice is available free of charge .

Under Code C:CARDINAL.CARDINAL , subject to certain provisos , all persons in police detention must be informed that they may at any time consult and communicate privately with a solicitor , and that independent legal advice is available free of charge from the duty solicitor .

Under LAW of ORG , advice given to persons interviewed at a police station ( including volunteers who attend voluntarily at a police station or other place where a constable is present ) is free in that it is available without reference to the person 's financial resources .

A separate scheme exists whereby freestanding advice and assistance is available for those who contact a solicitor , and the solicitor determines whether the individual is eligible for the means - tested advice .