Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant is a NORP citizen who was born in DATE and lives in PERSON , near GPE ( GPE ) .

The applicant married in DATE . She and her husband had CARDINAL children , born in DATE and DATE .

In DATE or DATE the applicant 's husband left the matrimonial home and moved in with his mistress . In DATE the applicant petitioned for divorce .

By a judgment of DATE , the NORP tribunal de grande instance ruled on the divorce petition . It found , firstly , that a reading of the submitted documents had not established that the applicant 's membership of the GPE 's Witnesses had been the cause of the break - down in the couple 's relationship , but that it had been attested that her husband had left the matrimonial home to live with his mistress , and had also prevented the applicant from working in the pizzeria they ran . Accordingly , it granted the divorce , attributing fault to the husband alone .

With regard to the children , the court decided that they would reside with their mother in GPE and that parental responsibility would be exercised jointly . The father was to have visiting and residence rights on an unrestricted basis and , in the absence of agreement , during the whole of the children 's school holidays , provided that he collected them himself and escorted them back to their mother 's home . It set the amount of the father 's maintenance payments at MONEY ( ORG ) per DATE and per child .

On DATE the applicant appealed against this judgment . She asked to be given access for DATE during the children 's DATE and DATE during the DATE and GPE holidays . She also renewed her request for a complementary allowance . In her pleadings in reply , the applicant complained that her ex - husband had not returned the children to her at DATE and had enrolled them in a school in FAC , where he lived with his new companion . She submitted that the father had influenced the children so that they would express a wish to live with him ; she filed statements and photographs intended to show that she was bringing up her children with great care and that they were allowed to take part freely in any activity that interested them . She requested that a social inquiry report be drawn up .

The Nîmes Court of Appeal delivered judgment on DATE . It upheld the judgment with regard to the divorce pronouncement and awarded the applicant a complementary allowance of ORG DATE for DATE . With regard to the children 's place of residence , the court found as follows :

“ The CARDINAL under - age children , C. , aged DATE , and PERSON , aged DATE , currently live with their father in GPE , where they attend school .

This is a de facto situation which has been brought about by the father , who , contrary to the provisions of the appealed judgment , failed to return the children to their mother 's home at DATE .

In justifying his behaviour , NORP claims that he has acted in the children 's interests , in order to remove them from the detrimental influence of their mother and her circle , who oblige them to practice the religion known as ' the Jehovah 's Witnesses ' .

Furthermore , NORP has submitted a letter from child C. , expressing the latter 's wish to remain with his father , together with a medical certificate drawn up by Doctor NORP , a psychiatrist , on DATE , which states that child C. ' experiences his mother 's prohibitions , via the NORP 's Witnesses , as distressing and frustrating ' and that ' child PERSON suffers from the religious constraints imposed on him and expressed a wish to live in GPE with his father as far back as DATE .

Finally , numerous other witness statements testified to the children 's expressed wish not to return to GPE .

ORG does not deny that she is a GPE 's Witness or that the CARDINAL children were being brought up in accordance with the precepts of this religion .

Admittedly , she has submitted numerous statements attesting to her affection for her children and showing that she provides for their well - being , and has filed group photographs in which her children appear happy .

Taken together , however , the submitted documents are not inconsistent with the arguments of NORP , who does not wish to deny the mother 's maternal attributes but restricts himself to criticising the strict upbringing received by the children on account of their mother 's religious convictions .

The rules regarding child - rearing imposed by the GPE 's Witnesses on their followers ' children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise .

It is in the children 's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect .

There is no reason to order a social inquiry report which , in the present circumstances , would serve only to unsettle the children .

In the light of the above analysis , the ORG considers that , contrary to the lower court 's decision , the CARDINAL under - age children 's place of residence should be their father 's home , but that parental responsibility should continue to be exercised jointly .

Should no agreement be reached [ between the parents ] , ORG will enjoy free right of access and the right to have the children to stay :

– for the whole of the DATE and All Saints holidays ;

– for DATE during DATE ;

– for CARDINAL of the LOC and DATE holidays , when it will be for the mother to collect the children from the father 's home and for the latter to collect them from the mother 's home ; ... ”

The applicant appealed on points of law . In particular , she complained that ORG had reversed the first - instance judgment on the central ground that the rules regarding child - rearing imposed by the GPE 's Witnesses on their followers ' children were open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise ; in so deciding , it had done no more than apply a general and abstract ground and had failed to investigate whether , in reality , the children 's upbringing was disrupted to an extent that justified changing their place of residence . She considered that this value judgment on the way in which she practised her religion , taken in abstracto , did not justify the court 's decision . She added that the manner in which the court had asserted that it was in the children 's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembled a sect had been just as abstract . She also complained that ORG had refused to grant her request for a social inquiry report . Referring to freedom of conscience and religion and to the rules of a fair hearing , she relied on Articles CARDINAL and CARDINAL of the Convention .

ORG delivered its judgment on DATE . After summarising the grounds of ORG judgment , it ruled as follows :

“ It is apparent from these findings and considerations that ORG , which replied to the submissions without inconsistency , was not obliged to order a social inquiry report and did not interfere with PERSON freedom of conscience , ruled , on the basis of the evidence which it alone is empowered to assess , that the children 's interests required that their father 's home be established as their habitual place of residence ; ... ”

The relevant provisions of LAW provide :

“ Parental responsibility shall be exercised jointly by both parents . Failing an agreement or where the court considers that such an agreement goes against the child 's interests , the court shall designate the parent with whom the children shall habitually reside .

Where it is necessary in the interests of the child , the court may confer parental responsibility on CARDINAL of the CARDINAL parents .

On their own initiative or at the court 's request , the parents may submit their observations on the arrangements for exercising parental responsibility . ”

“ Prior to any interlocutory or final decision setting out the arrangements for the exercise of parental responsibility and visiting rights , or entrusting the children to a third party , the court may instruct any qualified person to draw up a social inquiry report . The aim of this document is to gather information on the family 's material and moral situation , the conditions in which the children live and are brought up , and the measures which should be taken in their interests .

If CARDINAL of the spouses disputes the conclusions of the social inquiry report , he or she may request a second expert opinion .

The social inquiry report may not be used in the divorce proceedings . ”


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

The applicants are NORP nationals and at the time of lodging their applications they were serving their prison sentences in various establishments . The names and dates of birth of the applicants , as well as the names of their representatives , and the dates of introduction of the applications appear in the appendix .

All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they are held . Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences , various types of disciplinary sanctions were imposed on them . Their appeal requests were rejected respectively by ORG and ORG , on the basis of the case file , without hearing the applicants or their lawyers , pursuant to LAW . DATE on ORG , dated CARDINAL DATE .

The details of the applications as well as the complaints raised by the applicants appear in the table below .

A description of the relevant domestic law may be found in Gülmez v. GPE , no . CARDINAL , LAW , DATE and LOC and others ( DATE . ) , nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , GPE and CARDINAL , CARDINAL DATE .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On an unspecified date he married PERSON Their son , PERSON , was born on DATE . In DATE the applicant and PERSON divorced . The custody of PERSON was allocated to the applicant .

In TIME CARDINAL May CARDINAL PERSON went out to play with another boy , PERSON However , in the evening he did not return home . The applicant called the police and later visited a police station to report that his son had gone missing .

On DATE several police officers visited PERSON 's school and found PERSON The boy explained that in TIME DATE he and PERSON had played with a ball by a small lake in the neighbourhood and PERSON had fallen in the water . However , when the police visited the place , they found that there was very little water in the lake . After they questioned PERSON again , he explained that in fact he and PERSON had taken a bus and had gone to the city centre , in the area where a large market was located . There they had played with a ball alongside a small canal dividing the CARDINAL carriageways of a busy main road . PERSON had dropped the ball into the water and , in trying to retrieve it , had fallen into the water too . PERSON had tried to help , but PERSON had been carried away by the water current . PERSON had returned home .

A passer - by questioned subsequently said that in TIME CARDINAL DATE he had seen a ball floating in the canal .

On DATE the police searched the canal , which , at the place indicated by PERSON , was QUANTITY deep . The reservoir into which the canal emptied was searched by divers . All alluviums along the canal were also searched . No trace of PERSON 's body was found .

Hospital emergencies were also checked but PERSON had not been admitted to any of them .

NORP On DATE and CARDINAL May CARDINAL PERSON was officially declared missing . On CARDINAL DATE and DATE a photograph of him was shown on national television and published in other media .

In DATE the police gathered information on PERSON 's parents and on PERSON 's family . They visited PERSON 's mother , who was at the time living in PERSON . On DATE they questioned PERSON , a friend of the family , who alleged to have received an anonymous telephone call concerning PERSON . Later on , the police investigated CARDINAL other anonymous calls , which did not reveal anything as to PERSON 's whereabouts and were most likely hoaxes provoked by the wide publicity which the case had attracted .

On DATE a friend of B. 's explained that the latter had told him that PERSON had not drowned but had in fact been taken away by CARDINAL men in a yellow car . Apparently , PERSON had also mentioned this version earlier but it is unclear in what circumstances .

In DATE or DATE B. was questioned in the presence of psychiatrists and psychologists from ORG . The ORG has not been provided with the experts ' conclusions , which apparently stated that PERSON had lied when he had said that PERSON had fallen in the canal . However , on other occasions PERSON was examined in the presence of other experts who considered that he was telling the truth .

On DATE and DATE and on DATE PERSON was questioned in relation to the criminal proceedings concerning PERSON 's disappearance ( see paragraphs CARDINAL - CARDINAL below ) . He repeated that PERSON had fallen in the canal and admitted to having lied when he had said that his friend had been taken away by CARDINAL men in a yellow car .

On unspecified dates the police questioned PERSON 's mother and grandmother and the parents of other friends of PERSON . Apparently , PERSON 's mother and grandmother explained that everything the boy had shared with them indicated that PERSON had indeed fallen in the canal . Also , the police investigated but found untenable a theory that PERSON had been abducted by mistake , instead of PERSON , whose stepfather had had unpaid debts .

In DATE the NORP bureau of ORG initiated an international search for the applicant 's son and issued a description and photos of the boy . In DATE , at the applicant 's request , the description was amended .

On an unspecified date in DATE the police carried out an experiment aiming at establishing whether PERSON 's version that PERSON had fallen in the canal was tenable . Apparently , the experiment corroborated that version .

In DATE , by order of the Minister of ORG , ORG also investigated the case . Like the police initially , it considered that PERSON had most likely fallen in the canal .

Through the intermediary of ORG , an age - progression portrait of PERSON was prepared by ORG in DATE . It was published on the website of ORG . Through the intermediary of ORG , it was also published in some foreign media , apparently free of charge . However , other media refused to publish the image without payment .

On several occasions in DATE the applicant requested the Government to pay for the dissemination of the portrait by the foreign media . Although ORG and ORG considered that the finances could be provided as PERSON was “ a child in risk ” , in a letter of ORG dated DATE the applicant was informed that “ it was not practice ” for ORG to finance such campaigns . On an unspecified date a Government press officer also informed the applicant that it was not their practice to finance media campaigns and that , as concerns expenditure , the Government had to comply with their budget , which was set by ORG .

In DATE the police provided to the prosecuting authorities information concerning boys born DATE who had left GPE DATE and DATE and had not returned . Apparently , the data contained no clue as to PERSON 's whereabouts . On an unspecified date the police examined data concerning unidentified bodies found in GPE and abroad , but concluded that none of them had been PERSON 's . They investigated uncorroborated data that PERSON had been sighted in GPE .

The ORG has not been informed in more detail about the efforts of the police to establish PERSON 's fate . The boy has never been found .

A criminal investigation against unknown perpetrators for abduction was opened on DATE by the GPE city public prosecutor 's office . The prosecuting authorities questioned the applicant and some witnesses who had already been examined by the police .

In DATE the criminal proceedings were stayed . They were resumed in DATE for the questioning of a new witness and stayed again in DATE , apparently because the police investigation had not yielded any particular results .

In relation to the disappearance of his son , the applicant initiated several sets of civil proceedings .

On DATE the applicant brought an action before the ORG seeking damages from the prosecuting authorities , the police and ORG for failing to react in an adequate , timely and effective manner to his son 's disappearance .

DATE the Sofia City Court held QUANTITY hearings , scheduled at intervals of DATE . It examined several witnesses and admitted written evidence . On DATE it decided that the examination of the case was to continue behind closed doors , as it concerned classified information about operative methods of the police . However , this decision led to the almost complete blocking of the case because the applicant and the other parties ' representatives experienced difficulties in obtaining the relevant authorisations allowing them access to classified information ; most of the hearings scheduled after CARDINAL DATE were adjourned for that reason .

On DATE the applicant lodged a complaint about delays ( see paragraph CARDINAL below ) , arguing that the proceedings had been unnecessarily protracted . In a decision of CARDINAL DATE ORG , finding that the proceedings had indeed lasted too long , instructed GPE to accelerate them .

On DATE , finding that it was not competent to examine the case , ORG transferred it to GPE . At ORG the case was separated into CARDINAL . It appears that at least some of the evidence gathered by ORG was joined to the CARDINAL new cases . They were registered under nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL .

In those proceedings the GPE ORG examined under sections CARDINAL and CARDINAL of ORG ( see paragraph CARDINAL below ) a claim by the applicant against ORG and ORG . According to the applicant , ORG had failed to take timely action to investigate the disappearance of his son , had failed to identify any suspects and to gather the necessary evidence and had failed to cooperate effectively with the police . As to ORG , the applicant alleged that it had failed to open criminal proceedings immediately upon being informed of PERSON 's disappearance and had then failed to supervise duly those proceedings and to inform the applicant of their course .

In a judgment of DATE GPE allowed the applicant 's claim and awarded him the full amount of damages sought , which was MONEY ( ORG ) , the equivalent of MONEY ( ORG ) . It found that the defendants had failed to cooperate duly with the police and to take timely action to investigate PERSON 's disappearance and had not duly notified the applicant of the course of the criminal investigation . It considered that the defendants had not acted in accordance with their obligations under LAW on the Rights of the Child to have the best interests of the child as their primary consideration .

On appeals by the defendants , on DATE ORG upheld ORG judgment . In so far as the judgment concerned those appeals , it was final . Furthermore , ORG found inadmissible a request by the applicant to have the value of his claims increased . The applicant appealed on points of law against this part of the judgment but on DATE his appeal was dismissed by ORG .

In those proceedings the applicant 's claims were directed against ORG , ORG and ORG . GPE examined the claims under section CARDINAL of the State and Municipalities Responsibility for Damage Act ( see paragraph CARDINAL below ) . The applicant alleged that the police had not been sufficiently prepared to work on cases such as PERSON 's , had not reacted in a timely manner to the information that the boy had gone missing , and had failed to take necessary measures to find him , whereas the Minister of ORG had not adopted the secondary legislation necessary for the effective search of abducted children .

In a judgment of CARDINAL DATE ORG dismissed the claim . It found that the applicant had failed to establish that he had suffered damages as a direct result of the actions of the police and the Minister of ORG ; he had suffered as a result of the disappearance of his son , for which the defendants had not been responsible .

On an appeal by the applicant , on CARDINAL DATE ORG upheld GPE ORG judgment , finding , in addition , that the police had done “ with very small exceptions , everything within their powers ” to find PERSON .

In DATE the applicant lodged an appeal on points of law . On DATE ORG declared the appeal admissible . A hearing on the merits is scheduled for DATE .

In DATE the applicant brought an action for damages against the Government of GPE , ORG , ORG and ORG and ORG for ORG alleging that they had unlawfully failed to finance the publication of ORG 's age - progression portrait in the foreign media ( see paragraphs CARDINAL above ) .

NORP In DATE GPE allowed the applicant 's claim against the Government and dismissed his claims against the remaining defendants . Referring to the ORG 's obligations under LAW and LAW on the Rights of the Child , it found that the Government was under an obligation to ensure that PERSON was being afforded the necessary protection and care . Therefore , the Government had had to consider the applicant 's request to provide financing and to verify whether it had been possible to allow it . The Government had had the necessary financial resources and the procedural possibility to allot them . They had , moreover , been approached with numerous requests by the applicant . They had failed to react in a meaningful way , which had been unlawful .

On DATE and CARDINAL DATE the judgment of ORG was upheld respectively by ORG and ORG . The courts awarded the applicant ORG DATE , the equivalent of approximately ORG CARDINAL,CARDINAL .

State liability for damages is provided for in the ORG and ORG of DATE ( “ the ORG ” ) . LAW provides that the ORG is liable for damage suffered by private persons as a result of unlawful acts or omissions by ORG bodies or civil servants , committed in the course of or in connection with the performance of their duties .

In certain cases , where the domestic courts consider that the provisions of the ORG are inapplicable , they examine claims against ORG bodies under the general law of tort , laid down in LAW of DATE . LAW provides that everyone is to make good any damage which they have caused to another . By DATE , a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . CARDINAL of the prerequisites of liability in tort under those provisions is the wrongfulness of the impugned conduct .

Complaints about delays were provided for in Article CARDINALa of the Code of Civil Procedure of CARDINAL , in force until DATE . The provision was introduced in DATE . Complaints about delays were to be examined by the president of the higher court , who could order specific measures to be taken to speed up the proceedings .

Under Articles CARDINAL - CARDINAL of the Code of Civil Procedure of DATE , in force since DATE , parties to civil proceedings can lodge a request for fixing a timelimit in the event of delay . The request is to be examined by a judge from the respective higher court .


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

On DATE the applicant arrived in GPE and requested ORG ( Migrationsverket ) to grant him asylum . He claimed that he was persecuted for political reasons in GPE . ORG appointed a legal representative for the applicant and interviewed him about his reasons for asylum .

On DATE the NORP Secret Police ( PERSON referred to as “ NORP ” ) submitted certain information regarding the applicant to ORG and objected to his being granted asylum in GPE in light of that information . Following this , on DATE , ORG noted that it transpired from the information provided by ORG that the applicant had withheld important information and it decided to transfer the matter to the Government of GPE for DATE ) but that the assessment made by ORG , which ORG found no reason to question , pointed in a completely different direction . Thus , it considered that the balancing of these CARDINAL conflicting interests had to be made by the Government .

On DATE ORG ( Utlänningsnämnden ) , in a submission to the Government , stated that it shared the opinion of ORG that the ORG should decide on the application .

On DATE the ORG rejected the applicant 's request and ordered his immediate expulsion from GPE 's own statements , were such that he could be considered as a refugee according to LAW . However , relying on the information submitted by ORG , the ORG considered it established that he had held a leading position in an organisation which had been involved in terrorist acts and that he could be considered responsible for this organisation 's activities . Thus , for reasons of national security , he should be refused protection in GPE . Furthermore , ORG had received a guarantee from ORG of GPE that the applicant would be afforded a fair trial in GPE and that he would not be subjected to torture or inhuman treatment or punishment of any kind or be sentenced to death . For this reason , the Government found that the applicant could be expelled to GPE without facing the risk of being treated contrary to LAW or any other international treaty . It decided that the applicant should be expelled immediately and that ORG should be responsible for the implementation of this measure .

Consequently , on DATE , the expulsion was effectuated by ORG and , allegedly , with the help of NORP authorities who made available to ORG a small airplane to take the applicant to GPE , where he was handed over to the NORP authorities . The applicant claimed that he was wearing shackles and handcuffs for the duration of the expulsion , which were attached to a special harness in the plane .

Not until DATE , DATE , was the applicant 's lawyer informed about the decision and the expulsion . Moreover , it was only through the ORG 's decision that he became aware of ORG guarantee to ORG ( a copy of it was submitted to him , upon request , on DATE ) and the nature of the national security threat which the applicant was supposedly posing .

Apparently , upon return to GPE , the applicant was immediately imprisoned and he alleged that he was tortured and ill - treated . He remained in prison until DATE when the suspicion against him was disconfirmed and he was released . During his imprisonment , the NORP Ambassador to GPE visited him rather regularly , once DATE in DATE and then DATE in order to ensure that he was not ill - treated and to observe that the guarantee that ORG had given to ORG was adhered to . According the ORG 's reports on the visits , the applicant had not stated during any of the visits that he had been tortured or ill - treated .

During the Ambassador 's visit on DATE , he requested the prison authority to allow the applicant to sign the ORG 's power of attorney which the applicant 's lawyer had sent to the ORG in GPE . On DATE the Ambassador informed the applicant 's lawyer by fax that the applicant , since he was detained , did not have the right to sign the power of attorney .

In the meantime , the applicant 's lawyer in GPE repeatedly requested ORG , the ORG and ORG to grant him access to all documents concerning the case , even those classified as secret . It would appear that , now , he has been granted access to most of the material , though not to all of it .

On DATE , ORG adopted its concluding observations regarding GPE 's fifth periodic report to ORG ) . In paragraph CARDINAL of these observations , the ORG expressed concern at cases of expulsion of asylum seekers suspected of terrorism to their country of origin . In this respect the ORG requested additional information concerning the judicial procedures which the applicant and CARDINAL other person expelled at the same time to GPE were facing or might face . ORG replied to this request on DATE and submitted a further update on DATE in which the Government , inter alia , stated that ORG , although dismissing the allegation of torture as unfounded , had agreed to undertake an investigation into the matter . The modalities for such an investigation were being discussed . ORG also stated that they continued to have regular contact with the applicant although he had now been released .

Further , following a visit to GPE in DATE , ORG for Human Rights , in his report dated DATE , mentioned the circumstances of the applicant 's case and his expulsion from GPE , noting that it highlighted the challenges that the fight against terrorism had created for the protection of human rights ( GPE , § § DATE ) . He recommended ORG to “ [ a]dopt the necessary legislative and policy changes in order to ensure that the rights contained in LAW and CARDINAL of LAW are respected in relation to asylum - seekers who are considered to raise concerns of national security . ” ( ibid . , § DATE , point CARDINAL ) .

On DATE the applicant 's NORP lawyer faxed an incomplete application form to the ORG in which he briefly stated the reasons for lodging a complaint on behalf of his client against GPE . The application form was also sent by ordinary mail . In the form , the lawyer very briefly stated the facts of the case , adding that the account would be completed . Further , under part III , “ statements of alleged violations ” , he claimed that GPE had violated his client 's rights under LAW , DATE , DATE and CARDINAL of the Convention and under LAW No . CARDINAL , noting that the reasons for these allegations would be expanded upon in a separate document . He added that he requested respite to do so , within a reasonable time after ORG had delivered its decision , and that due to problems of secrecy ( because of the national security interest ) it was difficult for him to submit a complete application at that time ; the application form was submitted in order to comply with the DATE rule . Furthermore , under part LAW , V and VII of the form , he noted that “ it will be completed ” .

The Registry replied by letter of DATE , acknowledging receipt of the fax and the original of the application form and stated that the ORG “ awaits further documents in the matter ” . The case was assigned application number CARDINAL/CARDINAL but was not allocated to a decision body , as no copies of national decisions or documents had been submitted .

On DATE the file was destroyed as no further news had been received from the applicant 's lawyer for DATE .

Not until DATE , DATE and DATE after receipt of his first fax , did the ORG hear from the lawyer again . He then submitted a signed power of attorney and a request that he be granted respite until DATE to file further documents .

As the file had been destroyed , the ORG opened a new file under the current case number and , on DATE , sent an introductory letter to the lawyer .

On DATE the lawyer contacted the ORG , asking how it was possible that the case - file had been destroyed without his being informed about it beforehand and providing a brief explanation of the situation . After being requested to submit the reasons for his extensive silence in writing to the ORG , the lawyer , by letter of CARDINAL DATE , complied with this request .


Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;Flogaitis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Spyridon Flogaitis

The applicant was born in DATE and lives in GPE . He is a businessman , who married PERSON on DATE . At the time of their marriage PERSON was already a member of the NORP parliament ( MP ) . On DATE their son was born .

At DATE the applicant 's marriage broke down . It was pronounced dissolved by mutual consent by ORG on DATE .

The applicant and PERSON concluded an agreement on DATE resolving issues of custody and access in relation to their son . These arrangements were endorsed by a formal decision of ORG of DATE ( decision no . PERSON ) . In particular , PERSON was to have custody of the child until he came of age , and he was to live with her . The applicant was entitled to open access to his son , subject to the child 's needs , and certain minimum periods and DATE of contact were specified . In fact , he was entitled to see his son every day TIME

On a number of occasions the applicant was unable to have contact with his son in accordance with the provisions of the court 's order .

On DATE the applicant lodged an indictment with the prosecutor of ORG based on LAW . He requested the sum of CARDINAL by way of nominal compensation for the non - pecuniary damage which ORG 's breach of decision no . PERSON had caused him , reserving his right to seek further compensation before the civil courts .

On DATE the prosecutor of ORG referred the indictment to the prosecutor of ORG . The matter was referred to the Minister of Justice on DATE for onward transmission by him to the President of the NORP parliament , so that leave of ORG to bring the proceedings could be sought under LAW . The file was received by ORG on DATE .

On DATE the ORG 's ORG gave the opinion that ORG 's immunity should not be lifted . In its report ORG considered that “ one of the grounds provided for by LAW applied in this case ” .

On DATE , by a majority of CARDINAL votes to CARDINAL following a secret ballot , ORG , sitting in plenary session , refused to grant leave . No reasons were given for its decision .

In the meantime , on DATE , ORG had brought criminal proceedings against the applicant for placing a security guard outside her building after having allegedly received telephone calls threatening him and his family . These proceedings were subsequently dismissed both at first instance and on appeal .

On DATE ORG varied the custody arrangements . The court 's order made specific provision for the payment of a CARDINAL,CARDINAL-euro fine by ORG should she breach any of its provisions ( decision no . CARDINAL/CARDINAL ) . PERSON has allegedly consistently failed to comply with these revised arrangements . On DATE and CARDINAL DATE the applicant lodged CARDINAL further indictments with the prosecutor of ORG following alleged breaches of the court 's decision . The applicant again sought compensation for non - pecuniary damage .

On DATE the prosecutor of ORG referred the indictment dated DATE to the prosecutor of ORG . The matter was referred to the Minister of Justice on CARDINAL DATE for onward transmission by him to the President of ORG , so that leave of ORG could be sought under LAW . On DATE ORG decided that the request should be rejected without being placed before the full ORG for consideration , on the basis that the request for waiver of immunity was substantially the same as the first request .

The relevant parts of LAW provide :

“ CARDINAL . The members of parliament shall be elected for a term of DATE , commencing on DATE of the general elections ... ”

“ CARDINAL . A member of parliament shall not be prosecuted or in any way interrogated for an opinion expressed or a vote cast by him in the discharge of his parliamentary duties ...

A member of parliament may be prosecuted only for libel , under the relevant law , after leave has been granted by ORG ... ”

“ During the parliamentary term members of parliament shall not be prosecuted , arrested , imprisoned or otherwise confined without prior leave granted by ORG ...

... No leave is required when members of parliament are caught in the act of committing a felony ... ”

The relevant parts of LAW provide :

“ Persons who are entitled , under LAW , to compensation for damage for non - pecuniary harm and restoration of damage may join the criminal proceedings as civil parties ”

“ Anyone who intentionally fails to comply with a temporary order of a judge or court or with a provision of a court decision by which they are obliged to act or to refrain from acting ... may be punished by DATE imprisonment ... ”

The relevant parts of ORG provide :

“ Whoever unlawfully and culpably causes damage to another shall be bound to make reparation to the other for any damage thus caused ... ”

“ In the case of an unlawful act , the court may , irrespective of any award of compensation for pecuniary damages , award reasonable compensation ... for any non - pecuniary harm suffered ... ”

Articles CARDINAL and CARDINAL of ORG also enable a court to punish non - compliance with a judgment or order by imprisonment or by a fine of up to MONEY .

By virtue of LAW , a court may not order the imprisonment of a member of parliament during his or her mandate and for DATE after the mandate expires .

Article CARDINAL of ORG provides as follows :

“ CARDINAL . Petitions by public prosecutors for leave to commence criminal proceedings against an MP under LAW and LAW , having first been checked by ORG prosecutor , shall be submitted to ORG through the Minister of ORG and registered in a special book according to the order of their introduction ...

Having heard the MP in respect of whom the lifting of immunity is sought , if he or she wishes to be heard ... the relevant Committee shall examine , on the basis of the documents forming part of the request , whether the offence for which the lifting of the immunity is sought is related to the ORG 's political activity ; whether the prosecution is politically motivated ; or whether it is aimed at undermining the authority of ORG or of the MP , or at obstructing , to a significant extent , the exercise of their functions , or at influencing the operation of ORG or of the parliamentary group of which the ORG is a member .

Within a fixed period set by the President of the ORG , the ORG shall prepare a report without examining the veracity of the accusation ...

CARDINAL ... after the ORG submits its report on the issue concerned , the petition shall be entered in the agenda of the ORG in plenary session ...

Parliament shall decide on the petition by means of a show of hands ... The MP in respect of whom the lifting of immunity is sought , the presidents of the political parties or their substitutes if they wish , may give their opinion ... ORG may decide on the basis of a secret ballot if proposed by the President or by the president of the political party to which the MP belongs ... ”


Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

Mr PERSON , a GPE national , currently resides at GPE , GPE ( GPE ) .

On DATE , while completing his compulsory military service , despite being warned he repeatedly refused to obey an order that he should take receipt of a weapon and a uniform .

Accordingly he was arrested on DATE at TIME and then kept in custody , the measure being confirmed by the officer commanding his unit at TIME He was questioned by the military police ( ORG marechaussee ) at TIME

On DATE the applicant , assisted by a lawyer appointed to act for him , appeared before the investigating officer ( officier - commissaris ) assigned to the case .

Before ORG , which sat in private on DATE , Mr ORG lawyer pleaded that the length of his detention had exceeded the DATE limit which , he argued , derived from DATE . CARDINAL ( article CARDINAL ) of the Convention . He added that ORG did not have the necessary independence and impartiality to rule on questions of this nature .

However , ORG confirmed the earlier detention and extended it by DATE , in order , so it stated , to maintain military discipline . In its opinion , Article CARDINAL para . CARDINAL ( article CARDINAL ) did not lay down specific time - limits . The court had moreover sat as soon as possible , regard being had to the fact that its military members had been participating in DATE major manoeuvres at the time ; moreover , DATE following the arrest had been a DATE . In addition , ORG had recognised , in its opinion on the applications in the cases of PERSON ( no . CARDINAL/CARDINAL ) , PERSON ( no . CARDINAL/CARDINAL ) and PERSON ( no . CARDINAL/CARDINAL ) , that ORG were competent to rule on such questions .

On DATE ORG sentenced the applicant to a term of DATE imprisonment , from which was deducted the time which he had already spent in detention .

At the material time , criminal procedure for army and air force personnel , including in particular the matter of arrest and detention on remand , was governed by the ORG and Air Force Code of Procedure ( Rechtspleging bij de Land- en Luchtmacht - " LAW " ) , as last amended on DATE . It was repealed with effect from DATE .

Every officer and non - commissioned officer was empowered to arrest military personnel of lower rank suspected of a serious offence , provided the circumstances required immediate deprivation of liberty ( LAW ) . The resulting detention was not to exceed TIME , unless it was extended by the commanding officer in accordance with LAW .

The commanding officer had to deal with the matter without delay . He could order that the suspect be placed or kept in detention on remand , in particular if this proved necessary to maintain military discipline . He was to report to the commanding General any cases of detention DATE ( Article CARDINAL , first , second and sixth paragraphs ) .

The General ordered that the accused be brought for trial before ORG , if this was necessary ( LAW , first paragraph ) . That order was to be formulated in writing and indicate whether or not it was appropriate to release the accused , the grounds for keeping him in custody laid down in DATE being applicable by analogy ( LAW , first and second paragraphs ) .

Detention ordered or continued in the decision referring the serviceman for trial was not to exceed DATE unless extended , by terms of DATE , by ORG at the request of the auditeur - militair ( DATE ) . Every accused detained under the referral decision had to be heard by the officier - commissaris as speedily as possible and in any event within DATE of referral ; for this purpose , he could be assisted by an adviser ( Article CARDINAL , first paragraph ) . Before extending the detention , ORG was to give the accused and his adviser the opportunity to put forward their views ( Article CARDINAL , second paragraph ) .

A directive of CARDINAL DATE governed the bringing before a judicial authority of military personnel in custody . It provided as follows :

" In accordance with LAW CARDINAL ( article CARDINAL ) of LAW , where a serviceman is placed in custody , care is to be taken to ensure that , within DATE of his arrest , his case is brought before ORG , sitting in private , for confirmation or extension of the detention .

To this end , the following rules should be observed :

Every officer or non - commissioned officer who arrests a member of the military personnel suspected of an offence shall inform the officer commanding the serviceman ’s unit as soon as possible .

If , after having questioned the accused , the officer commanding considers that the detention should be continued or extended , he shall inform the prosecuting officer ( auditeur- militair / fiscaal ) by telephone not DATE after the arrest , either in person , or through a person delegated by him ( for example the officer commanding the relevant detachment of military police ) .

If the accused appears before the auditeur - militair , the latter shall fix , with the officer commanding or in his name , the time and place so as to ensure that under normal circumstances , within DATE of the arrest :

( a ) the accused can be brought before the auditeur - militair ;

( b ) the latter can communicate his opinion to the authority with competence to refer the case to ORG ;

( c ) that authority can make an order so referring the accused ( which shall also include a decision on the matter of the detention ) ;

( d ) the accused can be interviewed by the commanding officer ;

( e ) the auditeur - militair can raise the question of the confirmation / extension of the detention of the accused in ORG .

The different armed services shall adapt their regulations accordingly ( VSCARDINAL - CARDINAL and VVKM CARDINAL ) . "

By a ministerial decree of DATE this directive had been incorporated in the ORG on the application of military criminal and disciplinary law ( PERSON straf- en tuchtrecht KL / Flu ) .