Violation of Article 2 - Right to life (Procedural aspect)

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicants were born in DATE and currently live in GPE .

In DATE the applicants paid PERSON and PERSON ORG the purchase price of a house located at NORP street in GPE and moved into it . Instead of registering the transaction in accordance with the applicable law , however , the applicants had the nominal house owners issue an authorization to Mr B. , to whom the first applicant owed a debt , allowing him to perform any transactions relating to the house . As a result of the first applicant defaulting on his debt , in DATE Mr B. signed this house over as a gift to his daughter , although the applicants continued to live in it .

In DATE Mr B. instituted civil proceedings against the applicants seeking repayment of the debt and various compensatory payments . The applicants lodged a counterclaim , seeking to confirm the validity of their unregistered purchase of the house . By the final decision of CARDINAL DATE the claims of both parties were dismissed .

Since DATE the applicants also lodged numerous complaints with law enforcement authorities alleging that they had been deprived of their house and money by gang members and that their lives were in danger on account of threats from Mr B. In support of their allegations , the applicants submitted tapes of their telephone conversations with Mr B. , in which he had referred to his organized crime connections .

Criminal proceedings were instituted , in which Mr A.Kh . , the first applicant ’s cousin and a member of the applicants’ household , born in DATE , acted as CARDINAL of the witnesses .

On DATE the applicants’ family was provided with police bodyguards to secure their safety in connection with these proceedings . On DATE the measure was lifted with reference to the first applicant ’s inappropriate behaviour towards the guards . By the final decision of DATE ORG upheld the earlier decisions finding the lifting of the measure lawful . The applicants subsequently made unsuccessful attempts to have the matter reopened .

Mr B. was eventually tried , but acquitted of extortion , as the applicants’ tapes were not admitted as permissible evidence . However the applicants insisted on bringing various other criminal actions against him , some of which appear to be currently pending .

At TIME on DATE the applicants informed LOC that they had found Mr A.Kh . dead in his bed in the annex to their house at NORP street .

On DATE several police officers and medical experts in presence of lay witnesses broke into the annex which was purportedly locked from the inside . A decomposing corpse was found in the bed on its back , with the head on the pillow . The group recorded no traces of a struggle or other evidence suggesting homicide . Pictures of the site were taken ; however , they could not be developed on account of a defect in the film . The body was taken to the mortuary . However , as DATE was a national holiday , the autopsy was not carried out until DATE . According to the applicants , no precautions were taken to prevent decomposition of the body in the mortuary .

Following the autopsy of CARDINAL DATE , the experts found it impossible to establish the cause of the death as the body had significantly decomposed . They further noted that no broken bones or other visible injuries could be found on the body . Finally , they suggested that the death , which must have occurred on or around DATE , was likely to have been caused by atherosclerosis of brain and heart vessels .

On DATE the police decided not to institute a criminal investigation in relation to the death having found no appearance of a homicide .

The applicants appealed maintaining that Mr A.Kh . could have been killed DATE by a gang in which PERSON was involved or by other members of organized crime groups who feared him as an important witness in criminal proceedings , in which the applicants were the aggrieved parties . They noted , in particular , that they had found rubber gloves and a hammer of an unknown origin on the table in his room , which could have been used to murder Mr A.Kh . Furthermore , Mr A.Kh . ’s height according to his records had been QUANTITY , while the height of the autopsied corpse was recorded as being QUANTITY . Finally , Mr A.Kh . had no record of atherosclerosis or any other life - threatening illness .

On DATE the GPE ORG remitted the case for additional investigation . It found , in particular , that in light of the second applicant ’s report about having seeing Mr A.Kh . alive on TIME DATE , it was strange that his body had decomposed so rapidly . It further noted that a photographic record of the site had not been prepared , the deceased ’s medical record had not been checked and the applicants’ assertion that he could have been killed by individuals involved in organized crime had not been investigated .

Subsequently on numerous occasions ( DATE , DATE , CARDINAL DATE , DATE and DATE ) the law enforcement authorities refused to initiate criminal proceedings having found no evidence of a homicide . All of these decisions were subsequently annulled by the ORG office ( on DATE , DATE , DATE , CARDINAL DATE and CARDINAL October DATE ) as having been based on only superficial inquiries .

On DATE the Zhovtnevyy District ORG refused to initiate criminal proceedings . Following additional questioning , it found , in particular , that the difference in height could have been due to a clerical error by mortuary personnel . As regards the gloves and the hammer , although certain witnesses had recalled seeing them , these objects were no longer available and it was not possible to determine their origin . Furthermore , although no mention of atherosclerosis or any other life - threatening illness had been found in Mr A.Kh ’s medical records , regard being had to the fact that the annex had been locked from inside , no traces of any struggle or disorder had been noticed in the room and no injuries had been found on the body , there was no reason to suspect a homicide .

On DATE ORG annulled this decision and remitted the case for additional investigation . It referred to several omissions in the preliminary inquiries , such as the failure to measure the body at the site , failure to establish a probable cause of death against the absence of any record concerning atherosclerosis and the superficial examination of the door to the annex . In particular , the results of the investigation stated that the door could only be locked from the inside , while , according to a photographic record of the scene , the door had both a lock and a padlock .

On DATE the law enforcement authorities refused to institute criminal proceedings .

On DATE the General Prosecutors’ Office annulled this decision , having found that the’ Office .

On DATE the ORG discontinued the criminal proceedings having found no evidence of a homicide . It noted , in particular , that due to the lapse of time witnesses could not accurately recall certain details . On the other hand , the witnesses clearly recalled having seen no traces of a struggle or other signs of a homicide . Mr B. , implicated by the applicants as being involved in the murder , could not be interviewed as he had moved abroad . His son - in - law denied any family involvement in Mr A.Kh . ’s death . The discrepancy in the records concerning Mr A.Kh . ’s height appeared to be due to a typographical error by the mortuary registrar . The gloves on the table had been left by CARDINAL of the medical experts . As regards the hammer , the first applicant had mentioned having taken it together with the gloves and Mr A.Kh . ’s linen , but its existence was doubtful as he had refused to surrender these objects without explanation . The investigation further found that the applicants’ hypothesis that Mr A.Kh . had been killed late on DATE was improbable , in particular , as the case file records contained a certificate from Mr A.Kh . ’s employer that he had undergone a medical test on TIME of CARDINAL DATE .

NORP In DATE the first applicant offered the family ’s other house , located at V. street in GPE , as collateral for a bank loan of CARDINAL hryvnyas ( ORG ) . In DATE the house at V. street was sold in default at a public auction to PERSON PERSON In DATE Mr PERSON leased it out to PERSON PERSON , who moved in with his family .

The applicants unsuccessfully attempted to secure the criminal conviction of the individuals implicated in the sale and instituted civil proceedings , claiming back the house . As appears from scarce documents presented by the applicants , these proceedings are currently still pending .

Pending examination of their proceedings for annulment of the sale , on DATE the applicants broke the lock on the door and entered the house with their CARDINAL acquaintances PERSON Ch . , PERSON and Mr ORG They refused to leave the house at the tenants’ request . An argument and a fight between the tenants and the applicants broke out . The police were allegedly called , but the applicants explained that they were the owners of the house and the police left . TIME Mrs Ch . and PERSON left , while the applicants and PERSON ORG remained for the night .

At QUANTITY on DATE the tenants called the police again , complaining about the applicants’ and PERSON ORG ’s obnoxious behaviour : smoking inside the house , putting pressure on them to leave , threatening them and swearing at them . Several police officers from the special detachment responsible for keeping order in courts entered the premises and ordered the applicants and PERSON GPE to follow them out of the house . The applicants and PERSON ORG protested . The first applicant and PERSON ORG were eventually restrained and handcuffed and the group was brought to the police station . According to the police records , the applicants stayed in the police station from CARDINAL a.m. to CARDINAL p.m. pending the drawing up of a report about an administrative offence . According to the applicants , they stayed in the police station for TIME .

On DATE first applicant and PERSON PERSON stood trial before ORG accused of “ malicious resistance to the lawful demands of law - enforcement officers ” ( an administrative offence ) . They were accused , in particular , of grabbing the officers by their uniforms , pushing them , threatening and swearing at them in response to their demands to cease disorderly conduct . The court discontinued the administrative proceedings having found that the GPE conduct at the house warranted a criminal investigation on account of the possible trespass of the dwelling . The case was remitted to LOC . Subsequently ( on DATE ) ORG decided not to press charges in relation to the trespass . They found that the GPE actions could potentially qualify as infliction of minor bodily injuries on PERSON PERSON and vigilantism , which could be prosecuted privately by the aggrieved party .

At the same time , following the first applicant ’s medical examination of CARDINAL October CARDINAL , he was certified as having sustained light bodily injuries ( several bruises and a scratch on a finger ) , which could have been inflicted on or around DATE . On DATE the second applicant was certified as having sustained in the same period light bodily injuries resulting in short - term health problems ( cerebral concussion , for which she had undergone out - patient treatment ) .

The applicants sought to institute criminal proceedings against the police officers for assault and battery , infliction of bodily injuries , disorder , racketeering , abuse of office and premeditated unlawful apprehension and detention .

On DATE and DATE their requests were rejected following preliminary inquiries and the interviews of the parties involved for lack of any evidence suggesting criminal conduct on the ORG behalf .

On DATE ORG remitted the case for additional investigation . The court found , in particular , that the investigation had only established that the applicants were apprehended for good cause ,

On DATE the Dnipropetrovsk Regional Court of Appeal upheld this decision .

On DATE the ORG refused to initiate criminal proceedings . It found , in particular , that the cerebral concussion as well as other injuries had been sustained in the course of the fight with the tenants on DATE and that the force used by the police officers to restrain and arrest the applicants had not been disproportionate . The investigation referred , primarily , to the testimonies of the police officers and other parties involved . In particular , the applicants testified that they had been battered by the tenants on DATE ; the tenants complained that they had been forced to defend themselves against the applicants , who had beaten them ; PERSON . and PERSON reported having seeing PERSON PERSON ’s wife beating the second applicant with a slipper on the head and banging her head against the wall . Several other witnesses reported having seen the police officers taking the first applicant and PERSON GPE handcuffed out of the house , while the latter were resisting and swearing .

On DATE ORG upheld this decision following contested proceedings . On DATE the ORG rejected the applicants’ appeal .

In DATE the applicant lent ORG CARDINAL,CARDINAL to PERSON ORG and NORP , who were leaders of local NGOs . They had requested the loan allegedly for the arrangement of transportation of humanitarian aid ( clothes and shoes ) donated by a GPE .- based foundation , although according to relevant documentation the donor was responsible for all transportation costs . Subsequently the first applicant was repaid CARDINAL of the loan and given QUANTITY of goods from the humanitarian aid cargo , which he stored in the house at D. Street and subsequently surrendered to the police .

In DATE the applicants lodged various criminal complaints about having been allegedly defrauded by PERSON ORG and NORP , who had never repaid the sum loaned to them for the transportation of humanitarian aid . Eventually , on DATE the Dnipropetrovsk Prosecutor instituted a criminal investigation into the circumstances surrounding the transportation and distribution of the cargo . The alleged perpetrators were questioned in these proceedings as witnesses .

Although it appears that no formal charges were brought against PERSON ORG and NORP , on DATE the first applicant was admitted in the proceedings as an aggrieved party and eventually ( in DATE ) as a civil claimant . The second applicant appears to have been questioned only as a witness .

On DATE the proceedings were discontinued for lack of evidence of criminal conduct towards the aggrieved party .

On DATE ORG ordered the resumption of the proceedings .

DATE and DATE the investigative authorities interviewed numerous recipients of the aid and officials involved in its distribution ; ordered several financial expert assessments , commissioned the collection of information from the GPE donor organization and examined several volumes of documents concerning the distribution of the aid .

Messrs ORG and NORP acknowledged having received the money from the first applicant . However , they alleged that a portion of it had been repaid in cash . The remaining amount was , in their opinion , the price paid by the first applicant for purchasing part of the cargo . The first applicant intended to sell it for profit , in spite of the fact that he had been aware of the statutory ban on selling humanitarian aid and about the official undertaking of the GPE donor to pay all transportation costs . The applicant had received his part of the cargo in DATE , so PERSON ORG and NORP had discharged their civil obligation in his respect .

The first applicant , for his own part , disputed the exact amount of cash repaid to him and contended that he had never intended to sell the goods . He had merely agreed to store a portion of the cargo as a guarantee for repayment of the remainder debt .

DATE ’s and NORP ’s possible abuse of office in handling humanitarian aid . As regards their involvement in defrauding the first applicant , on DATE the proceedings were discontinued for lack of evidence of criminal conduct and in view of the private - law nature of the dispute between the parties . Both applicants appealed against this decision . Their appeals were dismissed by the courts of CARDINAL levels of jurisdiction on DATE and DATE and CARDINAL DATE respectively .

In the meantime , on DATE the proceedings were re - opened pursuant to an order of ORG and finally discontinued on DATE , essentially on the same grounds as before . The ORG appeals against the decision to discontinue the proceedings were rejected by the courts of CARDINAL levels of jurisdiction .

In DATE the applicants instituted civil proceedings in ORG seeking various compensatory payments from PERSON ORG and NORP

On DATE ORG left their action without consideration referring to the applicants’ numerous failures to appear at the hearings . The court noted , in particular , that the second applicant had appeared only once ( on DATE ) . Neither applicant had appeared at the hearings scheduled for CARDINAL October , CARDINAL DATE and CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE , having presented either unsatisfactory or no excuses . In light of all of the above , the court concluded that the applicants had no genuine interest in pursuing their case and left their action without consideration .

The applicants appealed . They have not informed the ORG about the outcome of the appeal .

In DATE Mr NORP was hospitalised with cerebral concussion and bruises all over his body . On CARDINAL DATE a criminal investigation of the incident was discontinued in view of the probability that Mr NORP , being heavily intoxicated , had fallen from an elevated surface . The applicants demanded the resumption of the investigation , alleging that Mr NORP had been battered by gang members in order to prevent his testifying in criminal proceedings related to their property interests . Their appeals were ultimately dismissed by the courts as lacking locus standi .

The applicants further contended that the gang members made several attempts to kill them , in particular in DATE by way of instigating a traffic accident .

The relevant provisions of the LAW and LAW can be found in the judgments in the cases of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) , and PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) .

According to Article CARDINAL of the Code of Civil Procedure of CARDINAL DATE , the courts were obliged to suspend civil proceedings in the event of the impossibility of determining the case pending determination of a criminal case . LAW , adopted on DATE , reflected the same obligation in LAW .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

András Sajó;Guido Raimondi;Helen Keller;Peer Lorenzen

The applicant was born in DATE and currently lives in GPE . He was married to PERSON and they had a son , PERSON , born in DATE in GPE , GPE .

Following A. ’s birth , PERSON occasionally worked in GPE for short periods of time , in order to ensure an income for the family . In DATE , after PERSON had obtained a regular job , the applicant agreed for A. to travel to GPE with his mother . A formal notarial deed of DATE , submitted to the ORG , states that PERSON , residing in GPE , gave his consent that his under - age son , PERSON , born in DATE , residing at the above - mentioned address , travel to GPE and GPE , in the course of DATE , accompanied by his mother , PERSON The applicant submitted that such agreement had only been given for a limited period of time in order to allow ongoing contact with PERSON The case file shows that PERSON challenged this statement , alleging that she had taken the child with her because of the adverse effect that living with his father was having on A. ’s development .

NORP In DATE the applicant travelled to GPE in order to bring PERSON back to GPE . He claimed that he had found the child living in very poor conditions . PERSON had resisted the applicant ’s requests to take the child back to GPE or alternatively for all of them to move to GPE , where he had found a job .

Once the applicant had returned to GPE , he filed a criminal complaint under LAW , alleging that his wife was detaining GPE in GPE without his consent .

On an unspecified date , the applicant moved to GPE . On DATE he travelled to GPE to visit his son . He alleged that A. ’s health and social conditions had worsened . On DATE father and son travelled together to GPE . On DATE joined them . On DATE they all travelled to GPE to pay a visit to PERSON ’s family . On DATE , M. and A. “ disappeared ” . The applicant eventually found out that they had returned to GPE .

On DATE , ORG decided not to institute criminal proceedings against PERSON , as there was insufficient evidence to establish a punishable offence . The applicant contested the afore - mentioned decision on DATE . It appears that a district court dismissed the challenge as unfounded on DATE . The applicant filed an appeal with a higher court . No further information has been provided in relation to these proceedings .

On DATE the applicant applied to the Minister of ORG , designated by GPE as ORG responsible for discharging the duties imposed on GPE by LAW of DATE on ORG ( “ LAW ) . He asked the Minister to assist him in securing the return of his son , whom the child ’s mother had , he alleged , wrongfully removed to GPE on DATE .

Following the steps undertaken by the NORP and NORP authorities in accordance with the provisions of LAW , ORG initiated return proceedings before ORG ( Tribunale per i minorenni ) .

On DATE a hearing took place in the applicant ’s presence .

The following appears from the hand - written procès - verbal submitted by the Government .

Following statements by the applicant and PERSON , the president of the court noted the existence of divorce proceedings brought by PERSON in GPE , together with an application for custody of the child ( objected to by the applicant ) , which were still pending . He further noted that while the couple had cohabited from DATE until DATE , the applicant had often been absent during DATE as he had been working in GPE .

PERSON submitted that until DATE the parents had been in agreement on the whereabouts of the child , particularly in view of her employment in GPE and the fact that the child had obtained a residence permit there , started attending school and was being seen by the social and community health services . PERSON argued that according to changes in NORP law she had not needed to extend the [ validity of the ] notarial deed ( mentioned above ) to subsequent DATE . She claimed that the child had previously had health problems and that his father had always known where they were . PERSON asked the court to admit in evidence a psychologist ’s report on the child ’s conditions and submitted written pleadings accompanied by evidence substantiating her claim .

The applicant submitted that the notarial deed between him and PERSON had only given consent to A. travelling to GPE for tourist purposes for the period DATE and thus he had not consented to the child ’s removal after that . In the absence of a custody decision the child could have lived with him in GPE , instead of in GPE with his mother without his consent . However , PERSON had failed to consent to this , despite the fact that he could give the child a better standard of living . He explained that he had tried to reach a friendly settlement , but when this had appeared impossible he had pressed charges against PERSON and those proceedings were still pending . Only at DATE had PERSON agreed to take the child back to GPE following a medical visit , which the applicant had insisted upon and which had found that the child was in poor health .

ORG asked the court to accept the return application , noting that the child had possibly been in GPE for DATE and making reference to LAW . He further asked the court to order a report on the child ’s psychological condition .

On DATE the applicant wrote to the NORP Minister of Justice , informing him of the conduct of the hearing . The applicant explained that he had not been given the opportunity to challenge the statements made by his wife ’s attorney , in particular regarding : ( i ) the time it had taken the applicant to institute proceedings after the date of the wrongful removal or retention of the child , which according to the applicant had been DATE and not – as the court had assumed DATE ; the result of the court using the latter date was that LAW came into play , to the effect that after a period of DATE a child may not be returned if he has integrated into society ; ( ii ) the contention that the child ’s health and psychological problems were imputable to the time he had spent with his father before moving to GPE , which finding had been based on medical documents to which the applicant had had no access ; ( iii ) the allegation that PERSON had had his consent up to CARDINAL DATE , the date on which such consent was no longer necessary ( GPE having joined ORG ) , thus ignoring the notarial deed , which had stated a specific period of consent ; and ( iv ) the fact that PERSON had changed their son ’s residence without his father ’s consent , as required by law . The applicant further explained that ORG was considering custody issues in violation of its competence under LAW , custody issues being within the exclusive competence of the courts of the country of domicile , GPE . It would , moreover , not decide the case until the NORP courts had made a decision in the divorce and custody proceedings . He further contested the evaluation of the potential harm for the child in the event of his return to GPE which had been made by the social services , stating that it had only made reference to the biased account of the child ’s mother , without any direct evaluation of the relationship between father and son and of the social environment if A. were to live in GPE . The applicant asked the Minister to forward his letter to the competent authority in GPE and to ORG .

By a decision of DATE , filed with the court registry on DATE , ORG refused the application for return . It noted that divorce and custody proceedings were still pending in GPE ; that PERSON had claimed that she and the child had lived in GPE since DATE ; and that since DATE had been known to ORG ( “ NPI ” ) of ORG ( “ GPE ” ) . Moreover , it noted that PERSON had claimed to have had the required permission from her husband to keep the child in GPE in accordance with a notarial deed of DATE and that the applicant had contested this on the basis that he had only given permission for A. to travel to GPE for tourist purposes , and that , albeit he had moved to GPE in DATE , he wanted the child to be with him . In that light , the court considered that there were no grounds for returning PERSON and that , in view of the relevant international law , it could not be held that the mother had arbitrarily taken PERSON away from his father as legitimate custodian of the child . ORG noted that the NORP authorities had not yet taken a decision on custody , thus the parents had joint custody , and therefore the applicant did not have exclusive custody rights . Moreover , the applicant had consented to ORG ’s transfer to GPE and had eventually moved to GPE . Furthermore , ORG observed that the child had been in GPE for DATE and was integrated into NORP society , albeit with some problems . In this light , the court considered that psychological harm would ensue as a result of his return . Thus it was not obliged , according to LAW , to order his return . Indeed , from the social services report ordered by the court , it appeared that A. had arrived at the ORG ’s premises , accompanied by his mother , on the advice of his general practitioner and that since then A. had been subject to psychotherapy which included joint interviews with his mother . The doctor entrusted with the report had noted that the need for ORG ’s psychotherapeutic treatment was due to early and prolonged periods of separation from his parents , frequent changes of residence , and continuous parental conflict . It was therefore necessary to give NORP reference points and DATE routines . Overall , his psychological condition had been improving , save for a worrying regression following his return from GPE and GPE in DATE , from which he had recovered .

The decision was notified to ORG on DATE .

On DATE the NORP authorities informed the NORP authorities about ORG decision of DATE , filed with the court registry on DATE .

On DATE ORG informed the applicant of the decision and told him that it had also requested information from ORG about the available remedies with which to challenge the decision .

By letter of CARDINAL DATE , ORG informed ORG that the decision could be appealed against through an appeal on points of law to ORG , to be lodged within DATE of the date of the decision – if such rejection was pronounced during a hearing at which the requesting party was present ( according to LAW no . CARDINAL of DATE ) DATE through an advocate qualified to plead before that court . Alternatively , he could bring an action in accordance with LAW ( “ Brussels II bis ” ) .

The following day , ORG informed the applicant of the above and that it had requested further information on the final date to lodge the appeal on points of law and on the applicant ’s ability to obtain legal aid .

NORP The applicant repeatedly contacted ORG to obtain the response to those queries , together with the documents which would have allowed him to appeal .

On DATE ORG forwarded to its NORP counterpart the applicant ’s application for legal aid in order to file an appeal on points of law . The application for legal aid was filed on DATE .

On DATE ORG granted the applicant legal aid to file an appeal , indicating ORG as the competent court and not ORG . It further noted that it was not sure that an appeal was still possible – it being unknown whether the decision had been served , the relevant time - limit could not be calculated . On DATE the decision was sent to ORG .

NORP By letter of CARDINAL DATE , the applicant was informed by the NORP authorities that his application had been received on DATE and forwarded to ORG . No mention was made of the decision of CARDINAL DATE .

According to the documents produced , on DATE the decision granting the applicant legal aid was forwarded to ORG , together with an invitation to inform the applicant , as well as to adduce proof that he had received the decision . It is unknown whether this notification ever reached ORG , and the information was not transferred to the applicant .

On DATE upon the applicant ’s complaint that he had not been informed of any decision on his application , ORG urged the NORP authorities to provide an answer .

In the absence of a reply , on DATE the applicant sent an e - mail to ORG in GPE asking for support in obtaining information on the matter . By letter of DATE , ORG of ORG informed the applicant that a favourable decision on his application had been taken on DATE and that it had been communicated to ORG on DATE .

On DATE the applicant wrote to ORG again confirming that to date he had not received a copy of the decision and asking it to ascertain who had sent it on behalf of GPE and who had received it at ORG . On DATE ORG forwarded a copy of the correspondence pertaining to his file to the applicant .

On DATE the NORP ORG asked ORG to provide , urgently , a list of the advocates qualified to plead the applicant ’s appeal within the legal aid scheme . On DATE such a list was sent by the NORP authorities to ORG , which forwarded it to the applicant on DATE . On DATE the applicant wrote to ORG and to ORG indicating his choice .

On DATE the appointed legal aid lawyer ( ORG ) made a request to the registry of ORG to view the relevant files . By letter dated DATE , addressed to the applicant and the NORP and NORP authorities ( apparently faxed on CARDINAL or DATE to the NORP authorities , receipt date for all recipients unknown ) , ORG indicated that she was not in a position to represent the applicant as she was not qualified to plead before ORG and , contrary to the indication given by ORG , the only available remedy was an appeal to ORG under LAW no . CARDINAL of DATE , such appeal to be lodged within DATE of notification . She also mentioned that , as it did not appear that the applicant had been notified of the impugned decision , the time - limit to appeal in his case would expire DATE and DATE after the date of the lodging of the decision with the court registry and , therefore , she advised the applicant to appoint an advocate qualified to plead before ORG as soon as possible in order to be able to file the appeal .

On DATE , the applicant wrote to ORG asking for a list of advocates qualified to plead in cassation proceedings . On DATE , the applicant received such a list by e - mail and replied indicating the name of his chosen lawyer .

On DATE , the applicant wrote again to ORG requesting further contact details ( telephone numbers and e - mail address ) for his chosen lawyer . He alleged that the information contained in the list was inaccurate and that he had not been able to establish any contact with the lawyer . No reply was received .

The applicant eventually obtained the relevant information from personal contacts and on DATE , he wrote an e - mail to the lawyer , explaining the situation , and asking whether she had been informed of her appointment . The same day , the lawyer replied stating that she had not been informed and requesting the case documents and a copy of the decision granting legal aid , in order for her to decide whether to take up the appointment . DATE after , the applicant reached the lawyer by phone and replied to her by e - mail , giving the information and documents requested .

On DATE the lawyer informed the applicant that the time - limit of DATE and DATE to appeal against the decision of DATE had expired and that , consequently , she was not in a position to assist him .

According to LAW no . DATE , an appeal against a decree of a ORG regarding the repatriation of a minor is to be lodged with ORG .

According to LAW ( “ ORG ” ) , as applicable at the time of the facts of the present case , an appeal to ORG was to be lodged within DATE of notification . In so far as relevant , according to LAW mentioned in Article CARDINAL starts to run from DATE on which the decision is served / notified . According to LAW ORG , as applicable at the time of the present case , in the event that the decision was not served / notified , the appeal is required to be introduced not DATE from the filing of the decision in the relevant court registry .

LAW no . CARDINAL of CARDINAL DATE regarding the suspension of time - limits during holiday periods reads as follows :

“ Time - limits for ordinary and administrative proceedings are legally suspended from DATE to DATE and start to run again at the end of the suspension period . Where the time - limit is to start to run during DATE , the relevant time - limit shall start to run from DATE . ”

According to NORP jurisprudence ( see for example ORG judgment no . CARDINAL of DATE ) , when , after a first suspension , the original term has not entirely come to an end before the start of DATE , a double computation of the suspension is applied .

LAW no . CARDINAL of CARDINAL DATE reads as follows :

“ In civil matters , DATE does not apply to causes and proceedings mentioned in LAW no . DATE ) on the judicial system and controversies arising under LAW ( labour cases ) and CARDINAL ( welfare benefits ) of the Code of Civil Procedure . ”

LAW no . DATE ) reads as follows :

“ During DATE period courts of appeal and ordinary courts deal with cases regarding alimony / maintenance , labour law , interim measures , adoptions , temporary interdiction , interdiction , incapacitation , restraining orders for protection against a family member , eviction and oppositions to enforcement , bankruptcy , and other cases in respect of which a delay could cause prejudice to the parties in the proceedings . In the latter case , a declaration of urgency is made by the president at the bottom of the application , by final decree , and for causes already being heard by order of a judge . ”

According to ORG judgments no . CARDINAL of DATE and no . CARDINAL of DATE , the suspension of time - limits for holiday periods applies to both adoption and paternity proceedings before ORG .

Legal aid is provided for by PERSON no . CARDINAL of DATE . The relevant Articles read as follows :

“ ( CARDINAL ) Free legal assistance is also available in respect of civil , administrative , fiscal and tax proceedings , as well as matters related to voluntary jurisdiction , for the defence of a poor citizen when the claims at issue are not manifestly ill - founded . ”

“ An application [ for legal aid ] must be submitted to ORG by the applicant or his lawyer , by means of a registered letter .

The competent ORG is that of the place within which the magistrate of the pending case has his or her seat . If the proceedings are not pending , it is that of the place holding the seat of the magistrate competent to hear the case on the merits . In the event that it relates to ORG , ORG , or ( ... ) ORG , the competent ORG is that of the seat of the magistrate who has delivered the impugned decision . ”

NORP The relevant articles of LAW of DATE on ORG , ratified by GPE and GPE , read as follows :

“ The removal or the retention of a child is to be considered wrongful where DATE

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . ”

“ A Contracting State shall designate ORG to discharge the duties which are imposed by the LAW upon such authorities . [ .. ] ”

“ ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective ORG to secure the prompt return of children and to achieve the other objects of this Convention .

In particular , either directly or through any intermediary , they shall take all appropriate measures – [ ... ]

f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ; [ ... ] ”

“ Any person , institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to ORG of the child ’s habitual residence or to ORG of any other ORG for assistance in securing the return of the child . [ ... ] . ”

“ If ORG which receives an application referred to in DATE has reason to believe that the child is in another Contracting State , it shall directly and without delay transmit the application to ORG of that ORG and inform the requesting ORG , or the applicant , as the case may be . ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that –

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

“ The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested ORG shall not be a ground for refusing to return a child under this LAW , but the judicial or administrative authorities of the requested ORG may take account of the reasons for that decision in applying this LAW . ”

“ This Convention shall not preclude any person , institution or body who claims that there has been a breach of custody or access rights within the meaning of LAW from applying directly to the judicial or administrative authorities of a Contracting State , whether or not under the provisions of this LAW . ”

The provisions of LAW are enforceable in the NORP courts by virtue of PERSON no . CARDINAL of DATE .


Preliminary objection joined to merits (ratione temporis);Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 6-1;No violation of P1-1

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

Following the financial crisis in the former ORG , as well as the collapse of the banking system in GPE in DATE , in DATE and DATE the respondent ORG adopted specific legislation accepting the conversion of foreign currency deposits in certain banks , including Vojvođanska banka , into a public debt . The legislation set the time - frame ( DATE ) and the amounts , including interest , to be paid back to the banks ' former clients . It also explicitly provided , inter alia , that any foreign currency - related judicial proceedings were to be discontinued ( for details concerning the relevant domestic law see paragraphs DATE below ) .

The applicant was born in DATE and lives in GPE , GPE . He is retired and receives a pension in the net amount of MONEY ( “ NORP ” ) DATE .

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

On a number of separate occasions , the applicant deposited a certain amount of his foreign currency savings with the LOC branch of GPE , a bank based in ORG .

In DATE the said bank refused to release the applicant 's funds .

On DATE the applicant filed a civil claim , seeking the release of his foreign currency deposits with the interest stipulated .

On DATE ORG in GPE ruled partly in favour of the applicant and ordered the bank to pay him : ( i ) NORP PERSON ( “ DEM ” ) , on account of his foreign currency savings ; ( ii ) MONEY ( “ YUD ” ) , for his legal costs ; and ( iii ) the statutory interest due in respect of the latter as of DATE .

On DATE ORG in GPE upheld this judgment , adding that the respondent bank should also pay interest on the sum of ORG which had been awarded . In particular , this interest was to be paid as of DATE , based on the ORG sight deposit rate ( kamata na štedne uloge po viđenju ) .

On DATE ORG rejected the respondent 's appeal on points of law ( revizija ) and confirmed ORG judgment .

On DATE and DATE , respectively , the applicant filed CARDINAL separate requests with ORG in GPE , seeking enforcement of the above judgment by means of a bank account transfer .

On DATE ORG rejected those requests , stating that , under the relevant domestic legislation , all judicial enforcement proceedings aimed at the collection of foreign currency deposits had to be discontinued .

On DATE the bank confirmed that the applicant 's foreign currency savings had been converted into a public debt in the amount of ORG CARDINAL,CARDINAL.CARDINAL .

As of CARDINAL DATE the applicant was still owed ORG CARDINAL,CARDINAL , having in the meantime , in several instalments and on various grounds , been reimbursed a total of ORG .

There is no information in the case file whether the applicant received any payments thereafter .

Articles CARDINAL , CARDINAL , DATE and CARDINAL provided that all foreign currency savings deposited with “ authorised banks ” before DATE , including explicitly the deposits held by the bank at issue in the present case , were to become a public debt .

Under LAW , the ORG 's responsibility in that respect was to be fully honoured by DATE through the payment of specified amounts , plus interest , and according to a certain time - frame .

Article CARDINAL provided that , as of the date of this LAW 's entry into force ( DATE ) , “ all pending lawsuits , including judicial enforcement proceedings , aimed at the collection of the foreign currency covered by this Act shall be discontinued . ”

This Act repeals the LAW described above . In so doing , however , it explicitly acknowledges as part of the public debt all deposits previously recognised as such ( in the total amount of MONEY as of DATE ) . It modifies the time - frame for honouring the debt in question ( from DATE to DATE ) and specifies amended amounts , plus interest , to be paid DATE .

Pursuant to LAW , the banks ' clients can make use of their deposits converted into Government bonds in order to pay taxes or indeed , under LAW and DATE , in advance of the said time - frame , for a number of purposes such as buying ORG property , taking part in the privatisation of ORG - owned businesses and banks , as well as , under certain conditions and up to a specified amount , the payment of medical treatment , medication and funeral costs .

In accordance with ORG CARDINAL and CARDINAL , former clients of the banks in question may sell the said bonds on the stock exchange or to other banks or individuals . Such trading is exempt from all taxation .

Article CARDINAL reaffirms that “ all lawsuits aimed at the collection of the foreign currency savings covered by this LAW , including the judicial enforcement proceedings , shall be discontinued . ”

This Act has been in force since DATE . It was subsequently amended on CARDINAL occasions , but these amendments concerned peripheral issues unrelated to the savers above - described status .

Articles CARDINAL and CARDINAL provide , inter alia , that anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of “ personal rights ” ( prava ličnosti ) may , depending on its duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .

Article CARDINAL § CARDINAL provides , inter alia , that all claims recognised by a final court decision shall become time - barred within DATE , including those claims which would otherwise have become time - barred within a shorter period of time .

Article CARDINAL § CARDINAL provides that courts shall not take into account whether a given claim is time - barred unless and until there is a specific objection by the debtor to this effect .

Article CARDINAL provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim in ORG until the date of its settlement ( which includes awards granted by final court judgments ) .

Article CARDINAL states that such interest shall be calculated on the basis of the official retail price index ( mesečna stopa rasta cena na malo ) plus another PERCENT DATE ( mesečna fiksna stopa ) .


Giovanni Bonello;Ján Šikuta;Lech Garlicki

The applicant was born in DATE and lives in PERSON .

On DATE the applicant 's former husband lodged an action against the applicant for distribution of matrimonial property .

On DATE ORG found that GPE had violated the applicant 's right to a hearing within a reasonable time . It awarded the applicant the equivalent of CARDINAL euros ( at that time ) as just satisfaction in respect of non - pecuniary damage , ordered ORG to proceed and to reimburse the applicant 's legal costs .

On DATE it rejected the applicant 's fresh complaint about the length of these proceedings as being manifestly ill - founded .

On DATE the ORG delivered a judgment in the case . The applicant appealed and the proceedings are still pending .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

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

On DATE the applicant was dismissed from work . Subsequently , and before DATE , he filed an action with ORG to have the dismissal decision annulled .

On DATE ORG rejected his action . On DATE ORG dismissed his appeal .

In the course of subsequent review proceedings , ORG quashed ORG decision on DATE and remitted the case to the latter court . ORG held in its ruling that the taking of evidence in the case had been insufficient .

In the resumed proceedings , ORG , on DATE , gave an interim judgment . It amended ORG judgment and held that the applicant 's dismissal had been unlawful .

The proceedings concerning the applicant 's pecuniary claims were resumed before ORG . On DATE ORG awarded the applicant MONEY ( ORG ) plus accrued interest by way of severance pay and ORG CARDINAL accrued interest for outstanding wages . The judgment was served on the applicant on DATE . In the absence of any appeal , the judgment became final on DATE .

The Government have submitted the avis de réception attached to the letter containing the decision . They maintain that the handwritten date of service on the avis de réception is DATE .


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

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

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

The applicants are cohabitees who have CARDINAL children together , born in DATE and DATE .

On DATE the second applicant gave birth to A. , who died DATE in ORG .

On DATE the birth of A. was registered at ORG and the second applicant was registered as A. ’s mother , while data about the child ’s father were not registered .

In DATE the first applicant went to ORG asking to be registered as PERSON ’s father , but was told that it was not possible to recognise paternity of a deceased child .

On DATE the applicants contacted ORG through their representative , seeking registration of the first applicant ’s paternity .

On DATE the applicants’ counsel was informed by letter that registration of the first applicant ’s paternity was not possible because the child was deceased .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows :

“ Everyone in GPE shall enjoy rights and freedoms regardless of their race , colour , sex , language , religion , political or other belief , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law . ”

“ Everyone has the right to respect for and legal protection of his or her private and family life , dignity , reputation and honour . ”

“ International agreements in force which have been concluded and ratified in accordance with the LAW and made public shall be part of the internal legal order of GPE and shall have precedence in terms of their legal effects over the [ domestic ] statutes . ... ”

In its decisions ORG . U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL/CARDINAL ) and U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL ) ORG held that all rights guaranteed in the LAW and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of LAW .

Section CARDINAL(CARDINAL ) of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) reads :

“ CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that a decision ( pojedinačni akt ) of a ORG body , a body of local or regional self - government , or a legal person with public authority , which has decided on his or her rights and obligations , or on a suspicion or accusation in respect of a criminal act , has violated his or her human rights or fundamental freedoms , ... guaranteed by LAW ( hereinafter : ‘ constitutional right’ ) ... ”

The relevant part of LAW ( Zakon o sudovima , ORG no . CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , and CARDINAL ) , as in force at the material time , provided as follows :

“ CARDINAL . The courts adjudicate cases on the basis of the LAW and statutes .

The courts adjudicate cases also on the basis of the international agreements which are the part of the [ internal ] legal order of GPE ... ”

The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG no . CARDINAL of CARDINAL DATE ) are as follows :

Section CARDINAL ( CARDINAL ) provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative authority shall give a decision and serve it on a party within DATE following the submission of an application . In all other , more complex cases , the authority shall give a decision and serve it on a party within DATE .

Section CARDINAL ( CARDINAL ) provides that a party whose application has not been decided and served within the time - limits set out in paragraph ( CARDINAL ) may lodge an appeal ( appeal for failure to respond , žalba zbog šutnje administracije ) as if his or her application had been dismissed .

Section CARDINAL ( CARDINAL ) provides that a decision on an appeal shall be given and served on a party as soon as possible , but at the latest within DATE following the submission of the appeal .

Section CARDINAL ( CARDINAL ) provides that the second - instance administrative authority deciding on an appeal for failure to respond shall request the firstinstance authority to give reasons for its omission . If it finds that the failure to respond was attributable to the party , or that the reasons for such an omission were otherwise justified , the second - instance authority shall order the first - instance authority to give a decision within DATE . If it finds that the omission was not justified , it shall request the case file .

Section CARDINAL ( CARDINAL ) provides that if the case file contains sufficient information , the second - instance administrative authority shall decide the case . Otherwise , it shall first hear the case and take evidence , and then give a decision . Exceptionally , if it considers that such a procedure would save time and costs , it shall order the first - instance authority to hear the case and take evidence within a specified time - limit , whereupon it shall decide the case itself . That decision shall be final .

The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL/CARDINAL , DATE and CARDINAL ) are as follows :

Section CARDINAL ( CARDINAL ) provides that if the appellate administrative authority fails to give a decision on a party ’s appeal against a first - instance decision within DATE , and fails to do so upon a repeated request within a further period of DATE , the party may bring an action in ORG ( action for failure to respond , tužba zbog šutnje administracije ) , as if his or her appeal had been dismissed .

Section CARDINAL ( CARDINAL ) provides that when the first - instance administrative authority fails to give a decision against which no appeal lies , the party may directly bring an action in ORG .

Section CARDINAL ( CARDINAL ) provides that , in matters where the right of appeal exists , if a first - instance administrative authority fails to give a decision on a party ’s application within DATE , that party may submit his or her application to the appellate administrative authority . Against the latter authority ’s decision the party may bring an action in ORG , and if the authority fails to give a decision the party may bring an administrative action under the conditions set out in paragraph CARDINAL .

Section CARDINAL ( CARDINAL ) provides that when ORG , following an action for failure to respond , finds for the plaintiff , it shall either instruct the respondent administrative authority as to how to decide the case on points of law , or shall itself rule on the application ( acting as a court of full jurisdiction under paragraph CARDINAL of section CARDINAL ) .

Section CARDINAL ( CARDINAL ) provides that , in execution of the judgment rendered under LAW ( CARDINAL ) , the administrative authority shall issue its decision immediately , but at the latest within DATE . Otherwise , a party may make a special submission requesting it to do so . If the authority does not issue a decision within DATE following such a submission , that party may apply to ORG .

Section CARDINAL ( CARDINAL ) provides that if such an application is made , the ORG shall first ask the administrative authority to give reasons for its omission . The authority shall reply immediately , but at the latest within DATE . If the authority fails to do so , or if the reasons given do not justify the failure to decide , the ORG shall give a decision which will substitute the decision of the administrative authority .

The relevant provisions of LAW ( Obiteljski zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL and DATE ) , which entered into force on DATE , read as follows :

“ Maternity and paternity can not be recognised after a child ’s death , save where a child has descendants . ”

The relevant part of LAW ( Zakon o suzbijanju diskriminacije , Official Gazette no . CARDINAL/CARDINAL ) reads as follows :

“ ( CARDINAL ) This Act ensures protection and promotion of equality as the highest value of the constitutional order of GPE ; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour , gender , language , religion , political or other conviction , national or social origin , state of wealth , membership of a trade union , education , social status , marital or family status , age , health condition , invalidity , genetic inheritance , gender identity , expression or sexual orientation .

( CARDINAL ) Discrimination within the meaning of this LAW means putting any person in a disadvantageous position on any of the grounds under subsection CARDINAL of this section , as well as his or her close relatives ... ”

“ This Act shall be applied in respect of all ORG bodies ... legal entities and natural persons ... ”

“ Anyone who considers that , owing to discrimination , any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue , and may also seek protection in separate proceedings under LAW of this LAW . ”

“ A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this LAW may bring a claim and seek :

a ruling that the defendant has violated the plaintiff ’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff ’s right to equal treatment ( claim for an acknowledgment of discrimination ) ;

a ban on ( the defendant ’s ) taking actions which violate or may violate the plaintiff ’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken ( claim for a ban or for removal of discrimination ) ;

compensation for pecuniary and non - pecuniary damage caused by violation of the rights protected by LAW ( claim for damages ) ;

an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant ’s expense ... ”


Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON was born in DATE and lives in PERSON .

On DATE ORG and Highways expropriated CARDINAL plots of land belonging to the applicant . A committee of experts assessed the value of the plots and the relevant amount was paid to him on CARDINAL and DATE .

On DATE the applicant initiated proceedings for additional compensation . Following the applicant ’s request for increased compensation , on DATE ORG of FirstInstance awarded him additional compensation of MONEY ( GPE ) plus interest at the statutory rate applicable at the date of the court ’s decision , running from DATE .

On DATE ORG upheld the judgment of the first - instance court .

According to the order of ORG and GPE , the amount due was paid to the applicant on DATE . The applicant claimed that he was paid on DATE . He received a total of GPE CARDINAL .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant is a medical practitioner whose contract with ORG ) was terminated by the latter on DATE . Subsequently the applicant was practising without a contract with ORG and is meanwhile retired . He complains CARDINAL sets of proceedings .

On DATE the applicant instituted proceedings against ORG . He claimed that the defendant had to pay an additional amount of CARDINAL NORP schillings ( ORG ) for doctor ’s fees .

On DATE ORG ( Paritätische Schiedskommission ) dismissed the applicant ’s claim . The applicant appealed against this decision .

On DATE ORG Landesberufungskommission ) dismissed the appeal .

On DATE the applicant lodged a complaint with ORG . He alleged , inter alia , that the general agreement between ORG ( Hauptverband der PERSON ) and ORG ( PERSON ) on which his doctor ’s fees were based violated his constitutional right to non - discrimination ( ORG ) .

On DATE he amended his complaint and alleged that ORG was no independent and impartial tribunal within the meaning of LAW by virtue of its composition .

On DATE ORG dismissed the complaint . It did not accept that ORG decision had violated the applicant ’s constitutional rights . As regards the composition of ORG , ORG noted that the applicant ’s complaint had been lodged out of the statutory DATE time - limit . However , referring to its constant case - law , it found that the applicant ’s constitutional rights were not violated .

On DATE the applicant instituted proceedings against ORG . He claimed that it had to pay some ORG CARDINAL ( QUANTITY ) as the doctor ’s fees provided for in the general agreement between ORG and ORG were far too low and , therefore , his contract with ORG was null and void .

On DATE the applicant made a request for transfer of jurisdiction ( Devolutionsantrag ) as ORG failed to decide within the statutory DATE .

On DATE ORG , after having held a hearing , dismissed the applicant ’s claim .

On DATE the applicant lodged a complaint with ORG . He alleged that the contract between ORG and ORG on which his doctor ’s fees were based violated his constitutional right to non - discrimination . Further , he complained that ORG was no independent and impartial tribunal within the meaning of LAW by virtue of its composition and submitted that ORG had provided CARDINAL deputy directors of ORG as assessors .

On DATE ORG dismissed the complaint . Referring to its constant case law , ORG found that ORG in general may be considered as an independent and impartial tribunal because of the term of office of the members and because members were not bound by any instructions . Further it found that ...

“ It is true that the assessors of ORG are representatives of CARDINAL conflicting spheres of interest . However , these members are not bound by instructions from the sending organisation ... and they are by no means spokespersons of these organisations . Their task is rather to bring their experience to bear in the proceedings . ... A violation of the required impartiality could , thus , ... be due to specific circumstances in the individual case resulting , for example from an official or organisational dependence of the appointed member of ORG . ...

Such official or organisational dependence does , however , in ORG view , not arise from the mere fact that the parties of the general agreement provide the assessors of ORG . ... In view of the legally guaranteed freedom from instructions of the members of ORG , a constellation affecting the appearance of independence and impartiality could - also in the light of the case PERSON v. GPE ( cited above ) - only exist if the appointed assessors had been involved in the preparation of the general agreement or if there were other specific reasons raising legitimate doubts about their independence and impartiality in determining certain legal matters . ... ”

In conclusion , ORG found no indication that the members of ORG lacked independence or impartiality .

Pursuant to Sections CARDINAL ff . of LAW ( Allgemeines Sozialversicherungsgesetz ) ORG ( Hauptverband der PERSON ) on behalf of ORG ) concludes with the respective ORG a general agreement ( Gesamtvertrag ) . ORG concerned has to consent to the general agreement which is the basis of individual contracts ( ORG ) between the respective ORG and medical practitioners . It regulates , inter alia , the doctor ’s fees for medical treatments effected by practitioners under contract .

The Social Insurance Act , in the version in force at the material time , provided as follows :

" CARDINAL ( CARDINAL ) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract , a ORG shall be established in each Land ...

( CARDINAL ) ORG shall consist of CARDINAL members , CARDINAL of whom shall be appointed by ORG and CARDINAL by ORG , which is party to the individual contract . ...

( CARDINAL ) An appeal can be lodged with ORG against a decision given by ORG . ....

CARDINAL ( CARDINAL ) For each Land , a permanent ORG shall be established . It shall consist of a professional judge as Chairman and of CARDINAL assessors . The Chairman shall be appointed by the Federal Minister of ORG . The Chairman must be a judge who , at the time of his appointment , is working at a court trying cases under labour and social insurance legislation . ORG and ORG each provide CARDINAL assessors . "

The non - judicial members of ORG are appointed for a renewable period of DATE and not subject to the hierarchical authority of the bodies which sent them ( LAW of LAW ) . They may only be recalled , if they do not anymore fulfil the professional requirements to be appointed or if they violate or neglect their official duties . Moreover , they may be recalled upon request of the sending organisation for important personal reasons by the Federal Minister of ORG .

Decisions of ORG are excluded from the competence of ORG ( Verwaltungsgerichtshof ) by LAW .

On DATE an amendment of ORG , modifying the manner of appointment of the assessors , entered into force . The amended version of LAW , in so far as relevant , provides as follows :

“ ... The Federal Minister of ORG shall appoint CARDINAL assessors upon proposal of ORG respectively and CARDINAL upon proposal of ORG Representatives and employees of ORG and members and employees of ORG who are parties to the general agreement on which the individual contract subject to the dispute is based , must not be assessors in the respective proceedings . ”