Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and is currently serving a sentence of life imprisonment in the town of GPE .

In DATE there were incidents in GPE in which many elderly and sick people were attacked in their homes by a criminal posing as a doctor .

On DATE the applicant , a doctor working for an emergency service , was caught on the spot while trying to enter an elderly person ’s apartment . He was arrested on charges of multiple robbery and murder and has remained in detention since that date . The applicant submits that he was ill - treated during his arrest .

On DATE GPE examined the applicant ’s criminal case and convicted him on multiple charges of murder , attempted murder and robbery . The applicant was sentenced to life imprisonment .

The court established that the applicant had posed as a doctor and , having entered his GPE flats , injected them with soporifics , sometimes in lethal quantities , and then robbed them , killing some of them . In total , there were CARDINAL victims in the case who either died or could have died as a result of the applicant ’s criminal activity .

The conviction was based on several pieces of evidence , including the applicant ’s bag with needles and prepared soporific materials , expert examinations of these materials , oral evidence given by numerous witnesses , including a pawnshop owner who had bought various items from the applicant on numerous occasions , the surviving victims , the applicant ’s own statements and the autopsy reports on the victims .

During the proceedings the applicant complained that his lawyer had failed to take some investigative actions . The court examined this grievance , questioned both the applicant and his lawyer , and concluded that the lawyer ’s lack of action had been due to the applicant ’s own deliberate decision .

NORP The applicant also tried to retract his self - incriminating statements given at the pre - trial stage of proceedings , with reference to torture and coercion . The court examined this argument in detail , having , among other things , ordered an additional investigation in the matter , and explicitly rejected it as unsubstantiated . The decisions to discontinue the investigation with reference to the lack of indication that any crime had been committed were taken by the relevant prosecutor ’s office on DATE and CARDINAL DATE .

They established that the applicant had actively resisted arrest and the police officers had therefore had to apply physical force . The decisions also concluded that the officers had only applied physical force in so far as it was rendered unavoidable by the applicant ’s own conduct .

The applicant did not appeal against the prosecutor ’s decisions to discontinue the investigation in court .

The applicant ’s sentence was upheld by ORG on appeal on DATE .

It appears that the applicant was , among other things , dissatisfied with the fact that the first - instance court had consisted of a single judge . Having examined this argument , the appeal court noted that the applicant had been given a choice between the single judge composition and the composition consisting of a professional judge and CARDINAL lay assessors . The applicant had explicitly chosen the former option .

It does not appear that the applicant brought any court proceedings in respect of the detention orders in his case .

Following his arrest on DATE the applicant was placed in the Inter - district Temporary ORG of ORG in GPE ( the Detention Centre , PERSON изолятор временного содержания PERSON ) . He remained there until DATE .

The applicant submits that the conditions in the centre were terrible . The overcrowded cell measured QUANTITY without windows or ventilation . There were CARDINAL inmates in the cell . They were not provided with blankets or bed linen or with any opportunity to exercise or even walk . They were QUANTITY of drinking water per day . There were no proper washing arrangements in the cells , the light was on all the time and there was an exceptionally high humidity level .

On DATE the applicant was transferred to remand prison IZ-CARDINAL/CARDINAL in GPE ( later renumbered IZCARDINAL/CARDINAL ) . It appears that he was transported back to ORG from time to time during the investigation stage of the proceedings . His stay in the centre usually lasted for DATE .

According to the applicant , all the prison cells were severely overcrowded , exceeding their design capacity at least twofold . The cells measured QUANTITY and contained CARDINAL inmates . Until he was transferred to a solitary cell on DATE , he had to take turns to sleep . There was no proper ventilation and the toilet facilities were not partitioned off from the rest of the cell . The light was constantly on , the food was of poor quality , and the heating system was either lacking or out of order .

The Government submitted the following information concerning the applicant ’s detention in the ORG . The applicant was held in this detention facility DATE and DATE , when he was transferred to penal facility IK-CARDINAL .

In remand facility IZ-CARDINAL/CARDINAL the applicant was held in cells CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL . Apart from cell no . CARDINAL , which measured QUANTITY , had CARDINAL window and held CARDINAL inmates , including the applicant , the rest of the cells were identical . They all measured QUANTITY , had CARDINAL window and contained CARDINAL inmates .

DATE and DATE the applicant was detained in cell no . CARDINAL . From DATE to CARDINAL DATE the cell contained a total of CARDINAL inmates . The rest of the time there were CARDINAL inmates in the cell .

DATE and DATE the applicant was detained in cell no . CARDINAL . From DATE to DATE the cell contained a total of CARDINAL inmates , whilst the rest of the time this number was CARDINAL .

DATE the applicant was held in cell no . CARDINAL . From DATE there were CARDINAL inmates in the cell in total and the rest of the time it contained CARDINAL inmates .

From DATE to DATE the applicant was held in cell no . CARDINAL . The cell contained a total of CARDINAL inmates DATE and DATE and CARDINAL inmates for the rest of the time .

The applicant was held in the same cell also DATE and DATE . DATE and DATE he was held in the cell with CARDINAL other inmates , whilst the rest of the time the cell contained CARDINAL inmates .

DATE the applicant was held in cell no . CARDINAL . On CARDINAL and DATE there were CARDINAL inmates in the cell , whilst the rest of the time there were CARDINAL .

From DATE the applicant was again detained in cell no . CARDINAL . DATE and DATE there were CARDINAL inmates in the cell . The rest of the time it held CARDINAL inmates .

The applicant was moved to cell no . CARDINAL on DATE , until DATE . From DATE to DATE there were CARDINAL inmates in the cell , whilst the rest of the time there were CARDINAL .

The applicant was held in the same cell from DATE to DATE . DATE and DATE the cell held CARDINAL inmates and the rest of the time it held CARDINAL inmates .

The applicant was moved to cell no . CARDINAL on DATE , until DATE . DATE and DATE there were CARDINAL inmates in the cell . The rest of the time there were CARDINAL inmates in the cell .

The applicant was transferred to cell no . CARDINAL on DATE , and thereafter was held in solitary confinement .

The Government admitted that the detention facility was overcrowded , but denied that there had been any problems or issues with any other conditions of the applicant ’s detention such as ventilation , toilets , food arrangements and so on . In particular , the Government referred to various certificates issued by the prison administration confirming that the prison at issue was equipped with a proper ventilation system , had appropriate washing arrangements and that proper measures to control rats and insects had been in place .

The Government also referred to certificate no . CARDINAL dated DATE , issued by the prison administration , which specifically admitted that there was a lack of precise information about the number of inmates during the applicant ’s stay in IZ-CARDINAL/CARDINAL . It referred to records confirming the destruction of the relevant prison logs on DATE , CARDINAL DATE and DATE and DATE .

The applicant agreed with the Government concerning the surface area of the cells , but disputed the numbers of the inmates . He also specified that DATE he was constantly being transferred from FAC to the remand prison , staying in both intermittently .

The applicant submitted that the conditions of his transportation to and from the court hearings had been appalling .

According to him , on DATE he was usually taken out of his cell at TIME and placed in a preliminary reception cell , which measured QUANTITY and usually contained CARDINAL inmates . TIME , the inmates were placed in a prison van , which was originally designed for CARDINAL or CARDINAL passengers but which in reality contained no fewer than thirty . Given the length of the journey and frequent traffic jams , each return trip took TIME . On DATE the inmates did not receive any food between TIME

The Government relied on prison certificate no . DATE dated DATE issued by ORG of ORG , which confirmed that during his stay in IZ-CARDINAL/CARDINAL the applicant had made a total of CARDINAL trips . The trips took place on DATE , DATE , CARDINAL and DATE , DATE and CARDINAL and DATE , and CARDINAL DATE , DATE , DATE and DATE , CARDINAL and DATE , DATE , DATE and DATE , CARDINAL and DATE , CARDINAL , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and DATE , and DATE and DATE .

The Government submitted that the applicant had received a hot breakfast before leaving and a hot supper after his return to prison . In addition , he was allowed to take food with him to the hearings . The ORG stated that a CARDINAL - way trip lasted TIME and the prison vans were never overcrowded . They did not rely on any original documentation to confirm these submissions .

According to the certificate issued by the prison administration no . CARDINAL dated DATE , the original documentation recording the number of inmates transported on each such occasion with the exact routes and durations of the respective trips could not be submitted because transportation was carried out by ORG of ORG .

The Government submitted a copy of the record from ORG of ORG dated DATE and confirming the destruction of some logs concerning the period from DATE to DATE . According to the Government , these were the logs concerning the applicant ’s trips .

The applicant agreed with the dates of the trips and their overall number . He maintained on his initial account of the events as regards the rest of the details .

On an unspecified date after his transfer to a penal establishment the applicant sued ORG for damages in connection with the allegedly appalling conditions of detention and transportation in prison . Among other things , he relied on LAW case - law .

By a judgment of DATE the ORG ( GPE ) rejected his claim in full as unsubstantiated . The court considered that the applicant had failed to submit sufficient evidence in support of his allegations . Given that the prison administration denied the applicant ’s allegations , his claim was rejected as unsubstantiated .

The first - instance judgment was upheld on appeal by GPE on DATE .

The applicant ’s case received country - wide media coverage both before his arrest , pending the criminal investigation and court proceedings as well as after the trial .

DATE . On DATE a local newspaper , PERSON published an article ‘ A killer in the city with a GPE describing robberies and murders , involving a person yet uncaught posing as a doctor . The article reported the deaths of CARDINAL elderly people and then stated :

“ ... According to the police , it would seem that both [ deceased ] persons became victims of a criminal posing as a medical officer . A series of such crimes began in GPE DATE ... ”

On DATE a local newspaper , ORG , reported that “ DATE a maniac was captured in GPE ” . It also published a photofit picture of the wanted person with a description : “ a doctor , whose photofit you can see here , killed CARDINAL old people ” . The newspaper also published a map of the city on which the locations of the applicant ’s activities were marked , and interviews with surviving victims .

On DATE a national newspaper , PERSON , published an article headed ‘ Doctor killed old women for smoked GPE , describing episodes of the applicant ’s alleged criminal activity and disguising his name .

It appears that during DATE some reports were broadcast on various television channels reporting on the applicant ’s criminal case .

On DATE the Moskovskiy Komsomolets newspaper published an article headed ‘ Did you call a butcher?’ and describing the charges against the applicant . The article gave an overview of the case and then quoted police comments on the applicant ’s actions and personality :

“ ... police officer PERSON says : ‘ What repentance [ by the applicant ] ? ... What are you talking about ? He killed old ladies , stole their pasta and the same evening was eating this pasta with his family’ .

... All the victims in this case have already been questioned , the evidence studied . But the verdict will not be delivered very soon – the judge has yet to check all the applicant ’s arguments . So let us not run ahead of the train with suppositions about the possible verdict ... ”

On DATE the ORG newspaper published an article “ Murderous doctor in the dock ” which , in its relevant parts , read as follows :

“ ... DATE , in our issue ... of QUANTITY DATE , we wrote about the arrest of the murderous doctor who paid visits to elderly people , injected them with soporifics , and when they fell asleep robbed them of their personal belongings . Overall , his personal score is over QUANTITY attacks and QUANTITY murders . PERSON , accused of these cruel crimes , was apprehended by police officers of ORG of the Interior in DATE , and only on DATE the first hearing took place at ORG in what is being called the doctor ’s case .

... Police officers of ORG of the Interior in charge of the investigation concluded that this was a case of a serial killer . At the same time , they learned that the criminal found his future victims by using fluorographic pictures stolen from a district polyclinic .

... ‘ We had to find a potential victim of the GPE , says PERSON , the head of the department in charge of homicide investigations in LOC of the ORG . [ He then continued : ] ‘ We seized the registration books from the polyclinic and composed a carefully checked list of retired people , each of whom could be subject to an attack of the doctor . The first list contained CARDINAL names , the next list CARDINAL and , as a result , we ended up with CARDINAL addresses which could be visited by the maniac .

... PERSON , the head of the department in charge of investigations of homicides in LOC of the ORG , hopes that the doctor - maniac gets a life sentence , because he is responsible for over QUANTITY murders and over QUANTITY robbery episodes . ... ”

An article published in GPE Pravda ( in GPE ) newspaper on DATE and headed “ How many [ years in prison ] will they give to Doctor PERSON ? ” gave the background of the applicant ’s case and some details about the ongoing trial proceedings . It then stated :

“ ... our journalist managed to meet the police agents who had arrested PERSON . Now that the verdict is close , they agreed for the first time to tell us about the operation , which was later called ‘ Medical Brother’ . So the cast ( with their offices during the operation ) : PERSON . NORP , senior police agent of ORG of ORG , PERSON . PERSON . , senior police agent of the [ same department ] , PERSON , head of [ that ] department and of the special operation itself ...

... ’He is the scariest person I ’ve ever seen during my time in the criminal police’ PERSON . NORP shared his thoughts [ He then continued : ]

‘ We in our city have never had , or not at least since DATE and the gang syndicate of ORG , such a killer who has knowingly and in such cold blood killed so many people . Over CARDINAL killings proven ! And how many others have there been ? Not known ! He is a dreadful maniac ! Look at this : he has killed some of our parents for a dime . I only regret CARDINAL thing – that when we arrested him we were not PERCENT certain that he was the killer . Had I known this for sure , I would not have taken him alive . A skunk like that deserves only death!’ ... ”

On DATE the PERSON newspaper , in its issue no . CARDINAL , reported on the applicant ’s case and trial , mentioning that during the trial the applicant denied the charges against him .

In DATE the applicant made a pleading before the trial court , mentioning the disclosure of investigation materials by the police officers before the delivery of the verdict in his criminal case . He also mentioned this issue in his appeal arguments . These arguments remained unanswered .

Rule DATE provided that all suspects and accused persons in detention had to be given , among other things : a sleeping place , bedding , including CARDINAL mattress , a pillow and one blanket ; bed linen , including CARDINAL sheets and a pillow case ; a towel ; tableware and cutlery , including a bowl , a mug and a spoon ; and seasonal clothes ( if the inmate has no clothes of his own ) .

Rule CARDINAL stated that cells in pre - trial detention centres were to be equipped , among other things , with a table and benches with a number of seating places corresponding to the number of inmates , sanitation facilities , tap water and lamps to provide TIME and TIME - time illumination .

Rule CARDINAL provided that prisoners were to be given CARDINAL hot meals a day , in accordance with the norms laid down by the Government of GPE .

Under Rule CARDINAL inmates had the right to have a shower at least once DATE for TIME . They were to receive fresh bed linen after taking their shower .

Rule CARDINAL provided that inmates could be visited by their lawyer , family members or other persons , with the written permission of an investigator or an investigative body . The number of visits was limited to CARDINAL per month .

Order no . CARDINAL of ORG for the Execution of Sentences of DATE deals with implementation of the “ ORG - trial detention centres DATE ” programme .

NORP The programme is aimed at improving the functioning of pre - trial detention centres so as to ensure their compliance with the requirements of NORP legislation . It expressly acknowledges the issue of overcrowding in pre - trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem .

The programme mentions detention centre IZ-CARDINAL/CARDINAL in GPE among those affected , with a number of detainees which seriously exceeded capacity ( by PERCENT ) . The other remand prisons in and around GPE , IZ-CARDINAL/CARDINAL ( the town of PERSON of the Leningrad Region ) , IZCARDINAL/CARDINAL ( the town of FAC of GPE ) , GPE ( GPE ) , IZ-CARDINAL/CARDINAL ( GPE ) and PERSON ( the town of PERSON of the Leningrad Region ) , are all mentioned as affected to various degrees by the same problem .

DATE Russian Federation provides that everyone accused of committing a crime shall be considered innocent until proven guilty according to the rules fixed by the federal law and confirmed by the sentence of a court which has come into legal force .

The relevant extracts from ORG of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps signiﬁcantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Speciﬁc mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it ﬁnds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Largecapacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates ﬁtted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant , PERSON , is a NORP national who was born in DATE and lives in Náchod . He was represented before the ORG by Mr F. Kollman , a lawyer practising in DATE . On DATE the applicant died . By a letter of DATE the late applicant ’s lawyer informed the ORG that his late client ’s wife PERSON wished to pursue the application in his stead . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

On DATE the applicant lodged a restitution action with ORG ( okresní soud ) .

By a judgment of DATE , ORG dismissed the applicant ’s action . On DATE the ORG ( krajský soud ) partly upheld and partly modified the first instance judgment .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal on points of law ( dovolání ) .

On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) through ORG . However , the constitutional appeal never reached ORG .

On DATE the applicant died .

On DATE the late applicant ’s wife applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended . She claimed CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) in respect of pecuniary damage , CZK MONEY ( ORG CARDINAL ) in respect of non - pecuniary damage and CZK MONEY ( EUR CARDINAL ) in respect of fees incurred in the proceedings before the national courts .

In a letter of DATE ORG informed the deceased applicant ’s widow that her compensation claim for non - pecuniary damage was statute - barred , the proceedings having terminated in the High Court ’s decision of DATE . ORG specified that under section CARDINAL(CARDINAL ) of LAW , the proceedings before the ORG commence on DATE on which the constitutional appeal is submitted to the court . Having regard to the fact that her late husband had filed his constitutional appeal through ORG , the constitutional proceedings had never been instituted and , therefore , could not be pending before ORG as she argued . Moreover , the ORG found unsubstantiated the widow ’s compensation claims in respect of pecuniary damage and court fees .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


Preliminary objection joined to merits (victim);Preliminary objection dismissed;Violation of Art. 9

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

Mr GPE was born in DATE and lives in GPE . He is a member of the Alevi religious community , which is deeply rooted in NORP society and history . Their faith , which is influenced , in particular , by Sufism and certain pre - NORP beliefs , is regarded by some Alevi scholars as a separate religion and by others as the “ essence ” or “ original form ” of ORG . Its religious practices differ from those of the NORP schools of law in certain aspects such as prayer , fasting and pilgrimage ( see PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .

The applicant stated that his identity card , issued by the registrar of births , marriages and deaths , contained a “ religion ” box which indicated “ NORP ” , even though he was not a follower of that religion .

On DATE he applied to the GPE ORG seeking to have his identity card feature the word “ Alevi ” rather than the word “ NORP ” . The relevant parts of his application read as follows :

“ ... the word ‘ Islam’ featuring on my identity card does not reflect the true situation . As an Alevi citizen of GPE , I thought , on the basis of my knowledge and beliefs , that a person could not be at once ‘ Alevi’ and ‘ Islam’ ( sic ! ) . As a citizen of the secular Republic of Turkey , which , under its LAW , protects freedom of religion and conscience , I refuse to continue to bear the weight of this injustice and this contradiction stemming from the desire to offset a fear , which is wholly unfounded and deeply offensive . ”

On DATE , following a request by that court , the legal adviser to ORG issued his opinion on the applicant ’s request . He considered in particular that to indicate religious interpretations or subcultures in the religion box on identity cards was incompatible with national unity , NORP principles and the principle of secularism . He argued in particular that the word “ Alevi ” , designating a sub - group within ORG , could not be considered to be a separate religion or a branch ( mezhep ) of ORG . It was an interpretation of NORP influenced by NORP and having specific cultural features .

On DATE the court dismissed the applicant ’s request on the basis of the following considerations :

“ CARDINAL . ... the religion box on identity cards contains general information about ORG religion . It is accordingly appropriate to examine whether the Alevi faith ( PERSON ) constitutes a separate religion or an interpretation of ORG . It is clear from the opinion issued by the Presidency of ORG that the Alevi faith is an interpretation of ORG which is influenced by Sufism and which has specific cultural features ... Accordingly , that faith constitutes an interpretation of ORG and not a religion as such , in accordance with the general principles laid down in this regard . Furthermore , only religions in general are indicated on identity cards and not an interpretation or branch of any particular religion . No error has therefore been made in indicating ‘ Islam’ on the identity card of the applicant , who claims to be ‘ Alevi’ .

Books and articles submitted by the applicant reveal that AliCARDINAL is described as the ‘ lion of ORG or similar . The fact that certain poems contain different expressions does not mean that the Alevi faith is not part of ORG . Since PERSON is CARDINAL of the CARDINAL caliphs of ORG and the son - in - law of PERSON , he must be considered to be CARDINAL of ORG ’s eminent personalities ...

NORP For example , in NORP too , there are sub - groups such as NORP and NORP , which nonetheless have their basis in NORP . That is to say that when someone adheres to a particular interpretation of ORG , it does not mean that that interpretation is not part of NORP ... ”

On an unspecified date the applicant appealed to ORG . He complained that he had been obliged to disclose his beliefs because it was mandatory to indicate his religion on his identity card , without his consent and in breach of the right to freedom of religion and conscience within the meaning of LAW . He further alleged that the indication at issue , deriving from LAW ( Law no . CARDINAL ) , could not be considered to be compatible with LAW , which provided that “ no one shall be compelled ... to reveal his or her religious beliefs and convictions ” . He also stated that he had lodged CARDINAL applications , the first to have the word “ NORP ” describing his religion on his identity card deleted , and the second , to have the word “ Alevi ” inserted into the relevant box . He stated that the court of first instance had been able to examine the CARDINAL requests separately , allowing the first and rejecting the second , finding that the indication at issue was not compatible with LAW . Lastly , he challenged the proceedings rejecting his application , in which ORG had described his faith as an interpretation of ORG .

On DATE ORG upheld the judgment of the court below without giving any other reasoning .

NORP The relevant parts of LAW provide as follows :

“ All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds .

State bodies and administrative authorities shall act in compliance with the principle of equality before the law in all circumstances . ”

The relevant parts of LAW as follows :

“ Everyone shall have the right to freedom of conscience , belief and religious conviction .

No one shall be compelled to participate in prayers , worship or religious services or to reveal his or her religious beliefs and convictions ; no one shall be censured or prosecuted for his or her religious beliefs or convictions . ... ”

Article CARDINAL provides :

“ ORG , which is part of the general administration , shall perform the duties entrusted to it by virtue of the specific law which governs it , in accordance with the principle of secularism , and shall be removed from all political views or ideas , with a view to national solidarity and integrity . ”

The relevant passages of section CARDINAL of LAW ( ORG ) , as in force at the material time , read as follows :

“ The civil registers shall contain the following information concerning individuals and families ...

( a ) ORG concerning civil status :

( CARDINAL ) PERSON and surname , gender , forenames and surnames of parents , maiden name ;

( CARDINAL ) Place and date of birth and date of registration DATE ) ;

( CARDINAL ) Corrections ...

( b ) Other information :

( CARDINAL ) Religion ;

By a judgment of DATE , published in ORG on DATE , ORG declared section CARDINAL of LAW to be in conformity with LAW secularism ) and LAW ( freedom of religion ) of the LAW . The judges of ORG held , in particular :

“ The ORG must be aware of the characteristics of its citizens . That information is required for the purposes of public policy , the general interest , and economic , political and social imperatives ...

The secular ORG must remain neutral in terms of religion . Accordingly , the indication of religion on identity cards must not engender inequality among citizens ... In a secular ORG , all religions rank equally . No one may interfere in the beliefs or lack of beliefs of another . Furthermore , the rule at issue applies to all beliefs and can not therefore give rise to discrimination ...

The rule that ‘ [ n]o one shall be compelled ... to reveal his or her religious beliefs and GPE can not be interpreted as a prohibition on indicating that person ’s religion in official registers . The LAW forbids compulsion .

Compulsion concerns the disclosure of religious beliefs and convictions . The notion of ‘ religious beliefs and GPE is not limited by the provision of information concerning each individual ’s religion in the ORG ’s civil registers for demographic purposes . That notion is wide - ranging and covers many factors relating to religion and belief .

The rule that ‘ [ n]o one shall be compelled ... to reveal his or her religious beliefs and GPE must be read in conjunction with the rule that ‘ no one shall be censured or prosecuted for his or her religious beliefs or GPE . In no circumstances does this amount to compulsion , censure or prosecution .

Furthermore , under LAW , ‘ a person of legal age shall be free to choose his or her religion’ . Consequently , anyone wishing to change his or her religion as indicated in the civil register may submit a request to that effect to the registration authorities . The amendment will be made on the instruction of the decentralised authority . Likewise , anyone wishing to have that information deleted or to record another belief which can not be accepted as a religion may apply to the civil courts ...

To conclude , LAW can not be considered to entail compulsion . It relates to information concerning a person ’s religion which is provided to the civil registry for the purposes of public policy , general interest and social need ... ”

CARDINAL of the CARDINAL ORG judges did not share the majority opinion , finding that the indication of religion in the ORG ’s civil registers and on identity cards was incompatible with LAW . One of the judges in the minority considered in particular that :

“ Under LAW , the parents or legal representatives of children are obliged to declare the religion of their children , failing which no entry will be made . The inclusion of religion in the family record and on identity cards , before the child reaches the age of majority and without his or her consent , constitutes de facto mandatory disclosure of religion in daily life ... That disclosure obligation , stemming from the indication of religion on a document confirming civil status , and the presentation of that document when registering at a school or when carrying out military service formalities , does indeed amount , in my view , to ‘ GPE . ”

The relevant passages of sections CARDINAL and CARDINAL of ORG ( ORG ) , which came into force on DATE ( repealing the above - mentioned LAW ) , read as follows :

“ ( CARDINAL ) A civil register is established for each district or village . The civil registers shall contain the following information :

( e ) Religion .

“ ( CARDINAL ) No entry in the civil registers may be corrected without a final judicial decision ...

( CARDINAL ) ORG relating to a person ’s religion shall be entered or amended in accordance with the written statements of the person concerned ; the box for this purpose may be left blank or the information may be deleted . ”

The relevant parts of section CARDINAL of the implementing provisions of ORG , adopted on DATE , read as follows :

“ Any information concerning an individual ’s religion shall be entered , amended , deleted or omitted in accordance with that individual ’s written statements . Requests for amendment or deletion of data relating to religion shall be subject to no restrictions whatsoever . ”

ORG was created by PERSON no . CARDINAL of DATE on ORG of the Presidency of Religious Affairs , published in ORG . LAW thereof provides that the Presidency of ORG , reporting to the Prime Minister , is responsible for dealing with matters of belief , worship and moral principles of NORP and administering places of worship . Within the ORG , ORG constitutes the supreme decision - making and consultative authority . It is made up of CARDINAL members appointed by the ORG president . It is competent to answer questions concerning religion ( section CARDINAL of Law no . CARDINAL ) .

The relevant parts of the document entitled “ Guidelines for the review of legislation pertaining to religion or belief ” adopted by ORG at its CARDINALth plenary session ( GPE , DATE and DATE ) , read as follows :

“ II . Substantive issues that typically arise in legislation

NORP The definition of ‘ religion’ . Legislation often includes the understandable attempt to define religion or related terms ( ‘ PERSON , ‘ ORG , ‘ traditional religions’ etc . ) . There is no generally accepted definition for such terms in international law , and many ORG have had difficulty in defining these terms . It has been argued that such terms can not be defined in a legal sense because of the inherent ambiguity of the concept of religion . A common definitional mistake is to require that a belief in God be necessary for something to be considered a religion . The most obvious counter - examples are classical Buddhism , which is not theistic , and NORP , which is polytheistic . ...

Religion or belief . International standards do not speak of religion in an isolated sense , but of ‘ ORG or ‘ ORG . The ‘ ORG aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world . Thus , atheism and agnosticism , for example , are generally held to be entitled to the same protection as religious beliefs . It is very common for legislation not to protect adequately ( or to not refer at all to ) rights of non - believers . ...

B. Basic values underlying international standards for freedom of religion or belief

Broad consensus has emerged within the OSCE [ Organization for Security and Co - operation in LOC ] region on the contours of the right of freedom of religion or belief as formulated in the applicable international human rights instruments . Fundamental points that should be borne in mind in addressing legislation in this area include the following major issues .

Internal freedom ( forum internum ) . The key international instruments confirm that ‘ [ e]veryone has the right to freedom of thought , conscience and religion’ . In contrast to manifestations of religion , the right to freedom of thought , conscience and religion within the forum internum is absolute and may not be subjected to limitations of any kind . Thus , for example , legal requirements mandating involuntary disclosure of religious beliefs are impermissible . ... ”


Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The first applicant , PERSON , is a NORP national who was born in DATE . The second applicant is the first applicant ’s daughter , Miss GPE PERSON , a NORP and NORP national who was born out of wedlock on DATE in GPE . They both live in GPE and are represented before the ORG by PERSON , a lawyer practising in Donaueschingen .

s , may be summarised as follows .

In DATE , in GPE , the first applicant met the father of the second applicant , their daughter . From DATE until DATE the first applicant lived some of the time in GPE and some of the time with the father in GPE . After the birth of the second applicant in DATE in GPE , she returned with the child to GPE in DATE . DATE and from DATE she lived with the child in GPE again . After the GPE separation in DATE , the applicants lived in a women ’s refuge in GPE . The father deposited the applicants’ passports with an NORP court and introduced custody proceedings with ORG . On DATE ORG provisionally ordered joint legal custody and allowed the first applicant to leave GPE with her daughter for a journey to GPE on or CARDINAL June CARDINAL but ordered them to return not later than DATE . On DATE the applicants left to GPE and did not return to GPE . At first , the first applicant submitted sickness certificates , the last of which was valid until DATE . The custody proceedings in GPE are still pending .

On DATE the father made an application to ORG for the return of the second applicant under LAW on the Civil Aspects of International Child Abduction of DATE ( “ the LAW ” ) .

The father argued in particular that according to NORP law and the provisional order of CARDINAL DATE of ORG of GPE they had joint legal custody rights and that he had agreed to the ORG leaving GPE only until DATE . The second applicant had been habitually resident in GPE since DATE , when the applicants had come to GPE to live there and there had always been merely temporary reasons for the first applicant to return to GPE with their daughter . After their separation and according to the decision of CARDINAL DATE the second applicant had lived DATE a week with him and the rest of DATE with her mother . He claimed that the first applicant ’s allegations that he had violence and drug problems were wrong . They had only had frequent relationship problems and had therefore started couple therapy . His relationship with the second applicant was good and no psychological harm for the child was to be expected in the event of a relocation to GPE .

The first applicant opposed the father ’s application and claimed that she had sole custody of the second applicant and that NORP law was applicable . She argued in particular that she and her daughter had never been habitually resident in GPE in the sense of LAW . From the child ’s birth until DATE the child had lived DATE in GPE and only CARDINAL days in GPE . She had in fact only returned CARDINAL times to GPE , to give them another chance as a family and due to empty promises by the father . In the end this had not worked out , inter alia due to his serious drug problems . He had also massively threatened her in front of their daughter . After their separation she had only remained in GPE because she was forced to , as the father had taken away their passports . The father had also never exercised any custody rights , nor had he bonded with the child . The child refused to return and was afraid of her father . An obligation to return would thus be detrimental to the child ’s wellbeing and would destroy her emotionally . Finally , she put forward that the child ’s therapist was also opposed to contact between the father and the child as long as the child refused such contact .

ORG heard the parents , ORG and the child ’s curator ad litem ( PERSON ) . ORG and the curator ad litem both reported that the child had fears in connection with the father and a possible relocation to GPE . The curator ad litem held that a relocation of the second applicant to GPE without the mother would endanger the child ’s well - being .

On DATE ORG ordered the first applicant to immediately return her daughter to GPE . In the event of noncompliance by DATE , the first applicant or any other person with responsibility for the child would be obliged to hand over the child to the father or to a person named by him for the return of the child . Moreover , it allowed direct enforcement ( unmittelbarer PERSON ) , access to and search of the house in which the child would remain and the support of the police for the enforcement of the decision . It also threatened the first applicant with the payment of a coercive fine of MONEY ( ORG ) or with coercive detention of DATE .

In application of Articles CARDINAL and CARDINAL of LAW , ORG found that a ) even if the applicants had spent a bit more time in GPE up to DATE , the child had been “ habitually resident ” in GPE at that time , that b ) under NORP law the parents had joint custody , which followed from LAW DATE and from the decision of the Cairns Federal Magistrate Court of Australia of CARDINAL DATE , and that c ) the first applicant had breached the father ’s custody rights in DATE by retaining their daughter in GPE and that therefore the first applicant was to be ordered to return the child to GPE . It also held that the first applicant had not established that there was a grave risk that her daughter ’s return would “ expose the child to physical or psychological harm or otherwise place the child in an intolerable situation ” in the sense of LAW of LAW . Firstly , the first applicant ’s allegation that the father had been violent and aggressive and that the daughter was afraid of him would not collide with the obligation to return the child as she could be expected to accompany her daughter , take care of her in GPE and await the outcome of the pending custody proceedings there . Secondly , the fact that in the meantime the child had settled very well in GPE could not be decisive , as taking such factors into account would render LAW futile . Thirdly , the fact that the first applicant could not make a living in GPE and would be dependent on social welfare would not conflict with the obligation to return either , as she was on social welfare in GPE as well .

The first applicant appealed against the decision of ORG . She argued in particular that LAW was not applicable , as she and her daughter had never been habitually resident in GPE in the sense of that ORG , and submitted further details regarding the conditions and the reasons for their stays in GPE and GPE during the relevant time . Moreover , she argued that as she had left GPE in DATE with the intention of never coming back , DATE had elapsed before the father made his application for the return of the child pursuant to LAW . Therefore , LAW CARDINAL and not § CARDINAL of LAW was applicable . She also requested ORG to obtain an expert opinion on the question whether it would harm the child ’s well - being if the child was forced to relocate to GPE . Furthermore , the applicant stressed that the father was still addicted to drugs and that he had already spent DATE in jail for drug trafficking . After she had pressed charges against him in DATE for taking away her passports , drugs were found in his house again and he received a further conviction . Finally , the first applicant argued that in the meantime she had been diagnosed with multiple sclerosis ( GPE ) and that it was therefore impossible for her to live in tropical countries .

The father argued , inter alia , that the time - limit of DATE according to LAW only started to run on DATE , the date the first applicant did not return to GPE as stipulated . He claimed that the first applicant ’s allegations that he had drug problems were false . It was true that he had been convicted for using drugs in DATE , but he had been rehabilitated in DATE . Voluntary drug use screenings in DATE and DATE had been negative .

The second applicant ’s curator ad litem pointed out that the child was well integrated in GPE . The curator ad litem also referred to an expert opinion that had been obtained by the NORP court in DATE , which reported social isolation , the lack of a stable framework and lack of support from the father as regards integration . In this expert opinion it had been found that DATE the development of the second applicant was at risk . In addition to these aspects it was the clear wish of the second applicant to remain in GPE . The father and the possible relocation to GPE caused anxiety to the second applicant . However , the curator ad litem was not sure if these aspects were sufficient to speak of a grave risk of harm in the sense of LAW of LAW . Having regard to the warm relationship between the second applicant and the father , as described in the expert opinion , it would be in the interests of the child to re - establish contact .

On DATE ORG , after hearing the parents , the curator ad litem and the second applicant on DATE and having obtained an expert opinion on the applicant ’s ability to return to GPE with regard to her illness , rejected the applicant ’s appeal and confirmed the ORG decision .

ORG firstly held that the second applicant had had “ habitual residence ” in GPE when the applicants left for GPE in DATE . It pointed out that it was decisive where a person actually lived the central part of their life , and that habitual residence was in general established after a stay of DATE . It found that it could not be said that the second applicant had been habitually resident in GPE before the applicants came back to GPE in DATE . However , after the separation in DATE , when the first applicant realised that she was unable to leave GPE because the father was in possession of the passports , she abandoned her apartment and domicile in GPE on DATE and registered in GPE . Thereafter , regular contact took place between the father and the second applicant and the child was socially integrated through the father . Although the applicants had initially planned to stay in GPE only temporarily , they established a habitual residence there after DATE in DATE . The fact that the applicant only remained in GPE because she was forced to do so was not decisive , because after abandoning her residence in GPE she no longer had any other home and she was also free to move and choose her residence within GPE .

ORG secondly found that the first applicant had breached the father ’s custody rights by not returning to GPE with their daughter on DATE . It referred to LAW of LAW to LAW ( see relevant domestic law ) and to ORG decision of DATE provisionally ordering joint custody upon approval by both parties .

ORG thirdly held that LAW was not applicable as the applicants’ leaving GPE on DATE was still covered by ORG permission to leave “ on or CARDINAL June CARDINAL ” . The wrongful retention thus only began in DATE when the applicants did not return to GPE as stipulated .

ORG fourthly found that the requirements for an exception according to LAW had not been met in the instant case . Contrary to the first applicant ’s allegations , the father had not tacitly agreed to the second applicant ’s staying in GPE . The mere fact that he initially kept up contact with the second applicant until he requested them to return to GPE for the first time explicitly in DATE could not be interpreted as approval . As regards LAW § CARDINAL b ) of LAW and the alleged existence of 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 ” , ORG held that with regard to the purpose of that LAW this provision required a narrow interpretation . Referring to the expert opinion ORG held that even if a rapid deterioration of the first applicant ’s state of health did happen , there were no grounds which made a return impossible . There was also no indication that it was not possible to adequately treat her condition in GPE . Hence , she was able to accompany her daughter and could thus not claim that the return of the second applicant to GPE would be harmful to the child ’s well - being .

Finally , with regard to the fact that one of the judges who had taken part in the oral hearing of CARDINAL DATE had been replaced by a new judge , ORG referred to LAW ) and in particular to the relevant case - law . It underlined that its decision had to be taken by those judges who were competent to do so at the time of the decision and not at the time of the oral hearing .

On DATE ORG refused to admit the ORG constitutional complaint for adjudication , in which they had complained about their obligation to relocate to GPE , the first applicant ’s possible coercive detention and ORG judge ’s non - attendance at the oral hearing . It also rejected their request for an interim injunction . It held that there was no appearance of a violation of the applicants’ fundamental rights . These NORP decisions were based on an arguable interpretation of LAW , in so far as they found that the provision allowed the person who has wrongfully removed or retained the child to be obliged to return the child personally . The hardships of such an interpretation for the parent being ordered to return the child had to be accepted as the consequence of the illegal abduction or retention .

On DATE ORG after hearing the parents , the child ’s curator ad litem and ORG , again pointed out to the first applicant the possible consequences of non - compliance , namely the imposition of a coercive fine or coercive detention or the direct enforcement of the obligation . Referring to LAW of GPE in Family Matters and in Matters of Non - contentious LOC ( see Relevant domestic law ) , ORG underlined that direct enforcement could be ordered in an explicit court decision , but that direct enforcement in respect of a child would be admissible only where this was justifiable with a view to the child ’s well - being and where no less restrictive measures were available to enforce the obligation .

According to LAW to the German Civil Code ( Einführungsgesetz zum PERSON ) “ the legal relationship between a child and its parents is governed by the law of the country in which the child has his or her habitual residence ” .

According to LAW ) “ a judgment may be delivered only by those judges who were present at the proceedings upon which the judgment is based ” .

According to LAW and in ORG ( ORG über PERSON in GPE und in den Angelegenheiten der freiwilligen PERSON ) the court may order direct enforcement in an explicit court decision , if CARDINAL ) compulsory measures remained unsuccessful ; CARDINAL ) compulsory measures have no prospects of success ; CARDINAL ) the immediate enforcement of a decision is imperatively necessary . Under LAW CARDINAL § CARDINAL direct enforcement in respect of a child shall not be allowed , where the order is aimed at delivery of the child for the purpose of contact . Moreover , direct enforcement in respect of a child shall be admissible only where this is justifiable in due consideration of the child ’s well - being and where less restrictive measures are not available to enforce the obligation .

The relevant parts of LAW ( ORG über die ORG der freiwilligen PERSON ) are set out in the case of GPE v. GPE ( dec . ) ( no . CARDINAL , DATE ) .

As regards LAW the relevant provisions are described in the ORG ’s judgment in the case of ORG and GPE v. GPE [ ORG ] , no . ORG , § CARDINAL , DATE .


Violation of Art. 6-1;Violation of P1-1;Just satisfaction partially reserved;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in DATE and currently lives in GPE , in GPE .

He owned a house located at DATE FAC in GPE , in GPE ( “ the AAR ” ) , GPE . The house and its adjacent premises were located on a plot of land of QUANTITY .

Under a contract of DATE ( “ the contract of sale ” ) , the applicant ceded to PERSON , by then the PERSON Deputy Minister of the ORG , CARDINAL of his house ( “ the PERSON estate ” ) for the price of CARDINAL coupons ( the provisional NORP currency introduced at DATE for purposes of monetary reform ) . According to the case file , the purchasing power of that sum corresponded to MONEY ( ORG ) at the material time . The contract of sale was certified by a notary . As further disclosed by a written statement of a witness to that transaction , after the signing of the contract PERSON gave the applicant MONEY ( ORG CARDINAL,CARDINAL ) in cash . Shortly after the sale of the PERSON estate , the applicant left PERSON and settled , together with his family , in GPE . Allegedly , a reason for that hasty departure was PERSON continuous pressure on the applicant to cede the remaining part of the house .

As a result of tensions between the central and local authorities ( see ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) , members of the PERSON government , including PERSON , fled the country in DATE .

On DATE the applicant brought a civil action against PERSON , requesting that the contract of sale be declared null and void for having been entered into under duress ( “ the civil case ” ) . In particular , the applicant , referring to the relevant factual circumstances , claimed that the respondent , by then an extremely powerful person in the ORG , had forced him to cede the PERSON estate for a ludicrously small price under threats to his person and family . The applicant also sought an injunction to have the estate attached until after the final resolution of the dispute .

In a decision of DATE , ORG granted the injunction and ordered the attachment of the PERSON estate . ORG transmitted its decision , describing the facts of the dispute , to ORG for enforcement . In the absence of an appeal , the decision became final after DATE , and , as disclosed by the case file , the relevant attachment record was duly entered in ORG .

On DATE ORG opened a criminal case against PERSON for various offences committed in public office . On the basis of those criminal proceedings , the prosecutor requested the Ajarian High Court to confiscate the movable and immovable property of the accused , including the PERSON estate , under LAW ( “ the ORG ” , “ the confiscation proceedings ” ) . According to the prosecutor 's submissions , the PERSON estate measured QUANTITY and was valued at GEL MONEY ( EUR CARDINAL ) .

On DATE the ORG partially allowed the prosecutor 's request , ordering the confiscation of some of PERSON property , including the PERSON estate . The prosecutor appealed against that partial confiscation to ORG of GPE .

On DATE ORG , in the absence of the respondent PERSON , allowed the applicant 's action of DATE . The court annulled the contract of sale , confirmed the applicant 's title to the PERSON estate and ordered ORG , which formed part of ORG , to proceed with the necessary registration formalities . The decision further noted that it would become final DATE after being served on the respondent . There being no appeal within that statutory period , the decision became final on an unspecified date .

On DATE the applicant , relying on the already binding decision of CARDINAL DATE , requested ORG of GPE to discontinue the confiscation proceedings with respect to the PERSON estate .

Either on DATE or DATE ORG recorded the applicant 's title to the PERSON estate , amounting to QUANTITY , on the basis of the final decision of CARDINAL DATE ( the case file contains a copy of that official record which bears QUANTITY different dates ) . On DATE the Registry issued another certificate , confirming the applicant 's title to the real estate .

On DATE ORG of GPE , after having conducted a hearing in the presence of representatives of both ORG ( “ the ORG ” ) and PERSON , overturned the decision of DATE in the part concerning the confiscation of the PERSON estate , and upheld the remainder . The court acknowledged that the estate , valued at GEL MONEY ( EUR CARDINAL ) , represented the applicant 's property by virtue of the binding decision of DATE . ORG instructed the Ajarian High Court to examine the issue of discontinuation of the confiscation proceedings concerning the PERSON estate .

On DATE ORG addressed a letter to the PERSON prosecutor , demanding clarification with respect to the situation of the PERSON estate . The ORG appeared to be confused by the fact that the estate represented both the applicant 's property by virtue of the binding decision of CARDINAL DATE and yet was an object of the pending confiscation proceedings . Furthermore , contrary to what had been confirmed by the record of DATE and the certificate of CARDINAL DATE ( see paragraph CARDINAL above ) , the Registry informed the prosecutor that the applicant 's title to the PERSON estate had not yet been formally recorded .

In a letter dated DATE , the Deputy Minister of ORG confirmed that the applicant was the owner of the PERSON estate on the basis of the final decision of DATE , adding that the process of registration of his property title had been suspended .

On DATE the PERSON prosecutor filed with ORG a request to quash the final decision of DATE and to reopen the civil case , under LAW ( b ) of LAW ( “ the ORG ” ) . The prosecutor stated that the confiscation of the PERSON estate , indicated by ORG decision of DATE , had already been confirmed by ORG of GPE . However , the enforcement of the confiscation was impossible owing to the existence of the conflicting decision of DATE . The prosecutor complained that ORG should have involved him CARDINAL party in the civil case which , moreover , should have been suspended pending the outcome of the confiscation proceedings .

On DATE and DATE , the applicant submitted written comments in reply to the PERSON prosecutor 's request for quashing . He argued that the prosecution authority , being a party to the confiscation proceedings , had learnt of the decision of DATE in the course of ORG hearing of DATE at the latest . Consequently , the PERSON prosecutor 's request for quashing was belated , as provided by LAW and CARDINAL of the ORG . He further noted that the PERSON estate had never been ORG property and , consequently , ORG could not have been expected to join the prosecutor as CARDINAL party to the civil case . If the PERSON prosecutor had acted with minimum diligence , by having consulted , for instance , ORG prior to the institution of the confiscation proceedings against Mr PERSON on DATE , he would have learnt that the PERSON estate had already been attached , by virtue of the injunction of DATE , in the course of the civil case . The applicant also challenged the prosecutor 's misleading assertion that the confiscation of the PERSON estate had been confirmed by ORG of GPE .

Reiterating the above arguments , the applicant also requested the ORG , on DATE , to open a criminal case against the PERSON prosecutor for abuse of power .

On DATE Judge PERSON of ORG summoned the applicant , who was residing in ORG , by telegram to appear on DATE as a respondent in the quashing proceedings brought by the PERSON prosecutor . The applicant telegraphed back on DATE to request adjournment of the hearing in view of his health problems .

On DATE Judge PERSON summoned the applicant by telegram to appear on DATE “ as a respondent in the proceedings brought by a notary public of GPE . The telegram noted that the claimant 's submissions were being dispatched by registered post .

On DATE ORG replied to the applicant 's criminal complaint of DATE in the following terms :

“ As you already know , ORG has granted the PERSON prosecutor 's request and reopened the case . Consequently , your allegations of abuse of power by the prosecutor are ill - founded , ... and you have the right to plead before the court as a respondent ” .

On DATE the applicant notified Judge PERSON by telegram of his inability to travel from GPE to GPE for the forthcoming hearing on DATE in view of his health problems . He noted that he was sending the supporting medical documentation by post and that the notary public 's submissions had not reached him so far .

On DATE the applicant received ORG dispatch of CARDINAL DATE ( see paragraph CARDINAL above ) . He learnt that the notary public who had certified the contract of sale on DATE had requested , on DATE , the quashing of the binding decision of DATE under LAW ( b ) of the ORG . The notary complained that she should have been involved in the civil case as a respondent , in so far as , pursuant to LAW of DATE , she had been personally responsible for the validity of the contract in question . As to compliance with the statutory time - limit of DATE , the notary claimed that she had first learnt of the existence of the decision of DATE from a local newspaper , PERSON , on DATE . The relevant article , published on the latter date , had described the details of the confiscation proceedings and the civil case , noting the existence of the conflicting interests of the applicant and of the PERSON prosecutor over the PERSON estate .

On DATE Judge PERSON summoned the applicant by telegram to appear on DATE as a respondent “ in the proceedings brought by the notary public . ” The applicant telegraphed back on DATE , requesting an adjournment of the hearing in view of his state of health . He also informed Judge PERSON that he was dispatching by post his comments on the notary 's request for quashing . As disclosed by those comments , received at ORG on DATE , the applicant denounced the notary as lacking the requisite locus standi to call into question the outcome of the terminated civil case .

On DATE the applicant requested the initiation of disciplinary proceedings against Judge PERSON He complained that , by summoning him by telegraph DATE before the scheduled hearings , without giving him an opportunity to obtain knowledge of and comment on the claimant 's submissions , the judge had breached the principle of the equality of arms .

On DATE Judge PERSON once again requested the applicant to appear at a hearing on DATE in the reopening proceedings brought by the notary public . Another request for an adjournment followed from the applicant on DATE .

On DATE the applicant received by parcel CARDINAL decisions of ORG dated DATE and DATE . As shown by the postmark on the envelope , the parcel had been dispatched by Judge GPE on DATE .

In a decision of DATE , Judge PERSON ruled that the notary public 's request for quashing of DATE was well - founded and that the decision of CARDINAL DATE ought to be annulled and the civil case reopened under LAW ( b ) of the ORG . The judge based her decision on the notary 's written and oral pleadings only and did not explain the reason for having dispensed with the need for submissions from the applicant . Without giving any additional reasons , the judge endorsed the notary 's procedural and substantive arguments , in particular that the request for quashing had been lodged in due time and that the notary should indeed have been involved in the civil case . The operative part of the decision noted that no appeal lay against it .

As to the decision of DATE , it concerned the request for quashing of CARDINAL DATE from the PERSON prosecutor . Judge PERSON first noted that , despite having been properly summoned to the oral hearing , the applicant had failed to appear and that his explanation in that regard – the reference to health problems – was not substantiated by medical documentation . However , the judge took into account the applicant 's written submissions ( see paragraph CARDINAL above ) , and concluded that the prosecutor 's request for quashing should be rejected as time - barred .

On DATE Judge PERSON summoned the applicant by telegram to appear as a claimant in the reopened civil case . The judge specified that Mr PERSON and the notary were co - respondents in the case , whilst the PERSON prosecutor had been admitted CARDINAL party . In a telegram dated DATE , the applicant requested an adjournment in view of his persistent health problems . He noted that the supporting medical documents as well as his request for the replacement of Judge PERSON were being dispatched by post .

On DATE the applicant lodged with ORG an appeal against the decision of DATE . Referring to the fact that Judge PERSON had summoned him to the relevant quashing proceedings even after DATE , the applicant accused her of having forged the decision in question by backdating it . On DATE he also requested ORG to send him a copy of the ruling by which the notary and the PERSON prosecutor had been permitted to participate in the reopened civil case . As disclosed by the case file , no reply was forthcoming from either court .

DATE , the applicant filed numerous letters with the ORG and the judicial and other authorities , complaining that the quashing of the final decision of CARDINAL DATE had violated his property rights . He also requested that Judge PERSON and the notary be prosecuted for abuse of power or that , at least , the judge be removed from further examination of his civil case . Those letters were either left unanswered or , in so far as the criminal complaints were concerned , rejected by the ORG as ill - founded .

In DATE , the applicant learnt from his sister , who lived in GPE and had frequent contacts with ORG , that Judge PERSON had ruled , on an unknown date , to leave his reopened civil case without examination . On DATE he requested ORG and ORG of GPE to provide him with a copy of that ruling . According to the case file , the courts did not reply .

In a letter of CARDINAL DATE , ORG informed the applicant that the PERSON estate had been registered as ORG property on the basis of a writ of enforcement issued by the Ajarian High Court on DATE . The applicant then requested , on DATE , additional clarification with respect to that writ , but no reply followed .

By a letter of DATE , ORG , contrary to the information contained in its previous letter ( see the preceding paragraph ) informed the applicant 's sister that , according to the available records , the PERSON estate had been registered as PERSON property on the basis of the contract of sale .

The relevant provisions of the LAW concerning the quashing of final and enforceable decisions and the reopening of civil cases , read as follows :

“ Proceedings terminated by a final judgment ( decision ) may be reopened only if there are grounds for bringing either a request to render the final judgment null and void ( LAW ) or a request to reopen the proceedings in view of newly discovered circumstances ( LAW ) . ”

“ CARDINAL . A final and binding judgment ( decision ) may be quashed at the request of the interested party , if :

( a ) A judge who participated in the deliberations in the case was barred from doing so by operation of law ;

( b ) One of the parties , or its representative in law , had not been invited to participate in the examination of the case .

The request to render a final judgment null and void on the above - mentioned grounds shall not be entertained if the requesting party could have referred to those grounds during the proceedings , before the first instance , appeal or cassation courts . ”

Pursuant to LAW ORG , a request for reopening of proceedings should be lodged within DATE after the party concerned learns of the grounds which might either render the final decision null and void or represent newly discovered circumstances within the meaning of LAW . That period was not extendable . LAW CARDINAL further specified that , in a situation envisaged by LAW ( b ) , the period of DATE started to run following the formal notification of the decision to the party to the proceedings or , if appropriate , its representative in law .

Article CARDINAL § CARDINAL of the ORG stated that an appeal lay against a decision dismissing a request for quashing . However , neither that Article nor any other provision in the Code provided for the possibility of appealing against a decision granting such a request . Pursuant to LAW , the merits of a request for quashing must be examined at an oral hearing .

Article CARDINAL(CARDINAL ) , inserted into LAW on DATE , stated that , if there was a reasonable suspicion about the origins of property of a person charged with misconduct in public office , a prosecutor was entitled to bring an action for confiscation of that property .

Pursuant to sections CARDINAL and CARDINAL of LAW , notaries public formed a public - law institution which was directed by ORG .

According to section QUANTITY , a notary public , whilst being an independent professional , exercised ORG authority . However , the ORG could not be held liable for any harm caused by a notary 's actions .

Pursuant to sections CARDINAL § CARDINAL and CARDINAL , all notaries public were obliged to be members of ORG , a public - law association , created for the purposes of protecting its members ' interests and coordinating their activities , and which had its own legal personality .

Section CARDINAL described the system of supervision of the professional activities of individual notaries public by the Minister of Justice , through ORG .


No violation of Art. 6-1;No violation of Art. 13

The applicant was born in DATE . He died on DATE . He lived in PERSON , GPE .

NORP In DATE the applicant and his wife concluded a contract with PERSON and PERSON , the owners of a company PERSON Under that contract the company was to carry out building work on the applicant ’s house . On DATE the applicant , considering that the company was in breach of the contract , withdrew from it .

On DATE the applicant and his wife ( “ the plaintiffs ” ) sued PERSON and PERSON in the Zielona ORG ( Sąd Wojewódzki ) , seeking compensation for the serious damage to the house allegedly caused by the defendants .

On DATE and DATE the court held hearings and heard evidence from witnesses .

On DATE the court instructed ORG PERSON ) to prepare an expert report . The report was submitted to the court on DATE . The defendants challenged the report on DATE .

At a hearing on DATE ORG ordered the experts to revise their report . On DATE they upheld their original conclusions .

On DATE the plaintiffs modified their claim .

The court held a hearing on DATE .

On DATE the court ordered the experts to supplement their report .

The parties filed their pleadings in DATE , DATE .

On DATE the court held a hearing . The ORG maintained that in the course of the hearing the plaintiffs had modified their claim . The applicant contested this .

On DATE the court gave judgment and dismissed the claim . The plaintiffs appealed .

On DATE the ORG ( Sąd Apelacyjny ) quashed the first - instance judgment and remitted the case to ORG .

On DATE ORG held a hearing . It decided to obtain a fresh expert report . In the meantime , the applicant had made CARDINAL unsuccessful applications for his claim to be secured .

On DATE the expert report was submitted to the court .

At the hearing held on CARDINAL DATE the court heard evidence from the expert .

The Government submitted that on CARDINAL DATE the plaintiffs had altered the amount of the damages they had sought . Subsequently , they applied for an exemption from the court fee due for the increased claim . On DATE the court refused their application . That decision was later upheld by ORG . The applicant denied that they had altered their claim .

On DATE the plaintiffs again unsuccessfully applied for an exemption from payment of the court fee for the increased claim . Eventually , on DATE , the particulars of that claim were returned to them on account of their failure to pay the fee .

The Government maintained that at the hearing held on DATE the plaintiffs had increased their claim and had stated that they would not seek an exemption from the court fee . However , on DATE the particulars of the amended claim were again returned to them on account of their failure to pay the fee in question .

The applicant stated that this was not true . He maintained that , in a pleading of CARDINAL DATE , after the experts had again revised their valuation of the damage sustained , he had indeed extended the amount of the damages sought to MONEY ( ORG ) , mostly because he had been forced to do so by the court . He had also sought an exemption from court fees since to do otherwise would have been illogical .

A hearing scheduled for DATE was adjourned at the GPE request . A subsequent hearing was held on DATE .

On DATE the court heard evidence from the parties and closed the trial . On DATE it gave judgment , awarding the applicant PLN CARDINAL,CARDINAL plus statutory interest .

On DATE the applicant appealed against the judgment . Shortly afterwards , on DATE , ORG ordered him to rectify the formal shortcomings in his appeal .

On DATE the applicant applied for an exemption from the court fees for lodging the appeal . ORG rejected his application on DATE . The applicant unsuccessfully appealed against the refusal ; eventually , he paid the court fees on DATE .

On DATE the ORG of Appeal heard , and dismissed , the applicant ’s appeal . Since the applicant refrained from lodging a cassation appeal ( kasacja ) with ORG , the judgment became final on DATE .

Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . ”

Article CARDINAL of LAW , as applicable until DATE ( see paragraphs CARDINAL - CARDINAL below ) , provided for the following exception in cases where damage resulted from the issuing of a decision or order :

“ CARDINAL . If , in consequence of the issuing of a decision or order , a ORG official has caused damage , the ORG shall be liable only if a breach of the law has been involved in the issuing of the decision or order and if that breach is the subject of a criminal prosecution or a disciplinary investigation , and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the person ’s superior .

NORP The fact that such guilt has not been established by means of a criminal conviction or a decision given in disciplinary proceedings shall not exclude ORG liability for damage if such proceedings can not be instituted in view of a [ statutory ] bar to prosecution or disciplinary action . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . While the relevant amendments were in essence aimed at enlarging the scope of ORG liability for tort under LAW of LAW including the addition of a new LAW being made for the ORG ’s tortious liability for its omission to enact legislation , a concept known as “ legislative omission ” ( zaniedbanie legislacyjne ) – they are also to be seen in the context of the operation of a new statute introducing remedies in respect of the unreasonable length of judicial proceedings ( see paragraphs CARDINAL - CARDINAL below ) .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to give a ruling [ orzeczenie ] or decision [ decyzja ] where there is a statutory duty to do so , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless other specific provisions provide otherwise . ”

However , under the transitional provisions of LAW , LAW as applicable before DATE ( see paragraph CARDINAL above ) applies to all events and legal situations that subsisted before that date .

On DATE ORG ( PERSON ) dealt with CARDINAL constitutional complaints in which the applicants challenged the constitutionality of Article CARDINAL and CARDINAL of LAW . They alleged , in particular , that those provisions were incompatible with LAW ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE the court gave judgment ( no . ORG CARDINAL/CARDINAL ) and held that LAW was compatible with LAW in so far as it provided that ORG was liable for damage caused by the unlawful actions of ORG officials in the performance of their duties . It further held that even though LAW was compatible with LAW , it was contrary to LAW since it linked the award of compensation for such damage to the personal culpability , established in criminal or disciplinary proceedings , of the ORG official concerned .

On DATE , the date on which ORG judgment took effect , Article CARDINAL was repealed . ORG opinion on the consequences of the repeal read , in so far as relevant :

“ The elimination of LAW from the legal system ... means that ORG liability for the actions of a public authority consisting in the issuing of unlawful decisions or orders will follow from the general principles on ORG liability as laid down in LAW . This , however , does not rule out the application in the present legal system of other principles on ORG liability , as laid down in specific statutes , and not necessarily only those listed in LAW . ”

Article CARDINAL § CARDINAL of the LAW states :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ”

Article CARDINAL of the LAW reads :

“ CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .

Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession .

The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right . ”

Article CARDINAL § CARDINAL of the LAW reads :

“ Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law . ”

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with section CARDINAL ) of LAW .

Section CARDINAL , in so far as relevant , reads as follows :

“ CARDINAL . NORP Parties ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision ( unreasonable length of proceedings ) . ”

Section CARDINAL provides , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL refers to proceedings that have been terminated and that do not fall under the transitional provision of section CARDINAL ( see paragraph CARDINAL below ) in the following terms :

“ A party which has not lodged a complaint about the unreasonable length of the proceedings under section CARDINAL ) may claim DATE under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended . ”

Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and of the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage occurred . ”

Section CARDINAL of LAW lays down the following transitional rules in relation to applications already pending before the Court :

“ CARDINAL . Within DATE after the date of entry into force of this law , persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time , as guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”