No violation of Art. 8;No violation of Art. 12

ORG The applicant , who is a NORP citizen , was born in DATE and registered in the birth register as a male , under the male NORP names of PERSON .

ORG At DATE the applicant realised that she was unlike other boys and , by DATE , she understood that , although she had male external genitalia , she was psychologically of the female sex .

In DATE she abandoned her male NORP names and assumed the female NORP name of PERSON , a change which she confirmed by deed poll ( see paragraph CARDINAL below ) in DATE . Since DATE she has been known under that name for all purposes , has dressed as a woman and has adopted a female role .

ORG In DATE the applicant , who had previously taken female hormones and had had an operation for breast augmentation involving implants , underwent gender reassignment surgery in a GPE hospital , to render the external anatomy nearer that of the female gender .

A medical report dated DATE describes Miss PERSON as a pleasant young woman , states that she has lived a full life as a female , both psychologically and physically , since the surgery and records that a genital examination showed her to have the external genitalia and vagina of a female . As a post - operative female transsexual , she is able to have sexual intercourse with a man .

ORG In DATE the applicant was issued with a GPE passport as a female ( see paragraphs CARDINAL below ) . From DATE she was a successful fashion model , featuring regularly in newspapers , magazines and advertisements .

ORG In DATE Miss PERSON and PERSON , an NORP national whom she had known for DATE , wished to marry each other .

By letter of CARDINAL DATE , ORG informed the applicant that such a marriage would be void as a matter of LANGUAGE law , because it would classify her as male notwithstanding her anatomical and psychological status . Her Member of ORG advised her in a letter of CARDINAL DATE that a change in the law would be required to enable her to marry . A reply on behalf of ORG , dated DATE , to a further enquiry by the applicant stated that she could not be granted a birth certificate showing her sex as female , since such a certificate records details as at the date of birth ( see paragraphs CARDINAL below ) .

In DATE - after the date of her application to the Commission - Miss PERSON and PERSON ceased to be engaged to be married , though they remained good friends .

ORG On DATE the applicant purported to marry a PERSON , at a ceremony conducted at a GPE synagogue . However , their relationship terminated on DATE of DATE .

Following a petition filed by PERSON , who had been advised that this was her only means of obtaining financial relief , the marriage was , by decree nisi made by ORG on DATE , pronounced to have been by law void by reason of the parties not being respectively male and female ( see paragraphs CARDINAL - CARDINAL below ) . That decree was made final on CARDINAL DATE .

ORG In the GPE gender reassignment operations are permitted without legal formalities . The operations and treatment may be carried out under ORG .

ORG Under LANGUAGE law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities , except in connection with the practice of some professions where the use of the new names may be subject to certain formalities ( see , inter alia , GPE ’s ORG , CARDINALth ed . , vol . CARDINAL , paras . DATE ) . For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve , the person concerned very frequently makes a declaration in the form of a " deed poll " which may be enrolled with ORG .

The new names are valid for purposes of legal identification and may be used in documents such as passports , driving licences , car registration books , national insurance cards , medical cards , tax codings and social security papers . The new names are also entered on the electoral roll .

ORG Civil status certificates or equivalent current identity documents are not in use or required in GPE . Where some form of identification is needed , this is normally met by the production of a driving licence or a passport . These and other identity documents may , according to the prevailing practice , be issued in the adopted names of the person in question with a minimum of formality . In the case of transsexuals , the documents are also issued so as to be in all respects consistent with the new identity . Thus , the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix " Mr " , " Mrs " , " Ms " or " Miss " , as appropriate , before his or her adopted names .

ORG The system of civil registration of births , deaths and marriages was established by statute in GPE and GPE in DATE . Registration of births is at present governed by ORG " the CARDINAL LAW " ) , which requires that the birth of every child be registered by ORG for the area in which the child is born . The particulars to be entered are prescribed in regulations made under LAW .

A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register . A certificate of the latter kind , known as a " short certificate of birth " , is in a form prescribed and contains such particulars as are prescribed by regulations made under LAW , that is the name and surname , sex , date of birth and place of birth of the individual . It omits , notably , any particulars relating to parentage or adoption contained in the register .

An entry in a birth register and the certificate derived therefrom are records of facts at the time of birth . Thus , in GPE and GPE the birth certificate constitutes a document revealing not current identity , but historical facts . The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession , legitimate descent and distribution of property . The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth , medical and fertility research and the like .

ORG The DATE LAW provides for the correction , by the registrar or superintendent registrar , of clerical errors , such as the incorrect statement or omission of DATE of the birth , and for the correction of factual errors ; however , in the latter case , an amendment can be made only if the error occurred when the birth was registered . The birth register may also , within DATE from the date of registration , be altered to give or change the name of a child .

Statutory provision is made for the re - registration of the birth of a child who has been legitimated by the subsequent marriage of his parents . Thereafter birth certificates supplied concerning him take the form of a certified copy of the entry of re - registration ; no copy of the previous entry may be given except under the direction of ORG .

Under LAW DATE , where a child is adopted , an entry ( not including the names of the natural parents ) will be made in a separate register known as LAW . In addition , the original entry in the register of births will be marked with the word " Adopted " . The Registrar General keeps books to make traceable the connection between the entries in the CARDINAL registers but these books are not accessible to the public , save on application by the adopted person himself or by order of a court . It is open to anyone to obtain a certified copy of the entry in LAW or a short certificate which contains no particulars relating to parentage .

ORG The criteria for determining the sex of the person to be registered are not laid down in the DATE Act nor in any of the regulations made under it . However , the practice of ORG is to use exclusively the biological criteria : chromosomal , gonadal and genital sex . The fact that it becomes evident later in life that the person ’s " psychological sex " is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and , accordingly , any request to have the initial entry changed on this ground will be refused . Only in cases of a clerical error , or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex , i.e. cases in which the biological criteria are not congruent , will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect . However , no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex .

ORG Indexes are maintained of all entries in birth registers . It is open to any member of the public to search the indexes ( but not the registers themselves ) and obtain a certified copy of any such entry . However , identification of the index reference requires prior knowledge not only of the name under which the person concerned was registered , but also of the approximate date and place of birth and the registration district .

ORG The law does not require that the birth certificate be produced for any particular purpose , although a certificate may in practice be requested by certain institutions and employers .

A birth certificate has in general to accompany a first application for a passport , but is not needed for its renewal or replacement or for an application for a driving licence . A birth certificate is also usually ( though not invariably ) required by insurance companies when issuing pension or annuity policies , but not for the issue of motor or household policies nor , as a rule , for the issue of a life insurance policy . It may also be required when enrolling at a university and when applying for employment , inter alia , with the Government . In the case of a religious marriage ceremony , the celebrant is not obliged nor is there any statutory power under LANGUAGE law to ask the parties to produce copies of their birth certificates ( see also paragraph CARDINAL below ) .

ORG In LANGUAGE law , marriage is defined as a voluntary union for life of CARDINAL man and CARDINAL woman to the exclusion of all others ( per Lord GPE in PERSON ( DATE ) Law Reports CARDINAL Probate and Divorce CARDINAL , CARDINAL ) . LAW DATE gives statutory effect to the common - law provision that a marriage is void ab initio if the parties are not respectively male and female .

Under LAW of the same LAW , a marriage which is not consummated owing to the incapacity or wilful refusal of CARDINAL of the parties to consummate it , is voidable .

ORG According to the decision of ORG in PERSON v. PERSON [ DATE ] Probate Reports CARDINAL , sex , for the purpose of contracting a valid marriage , is to be determined by the chromosomal , gonadal and genital tests where these are congruent , and without regard to any operative intervention . The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies . The entry in the birth register is prima facie evidence of the person ’s sex . It may , however , be rebutted if evidence of sufficient weight to the contrary is adduced .

ORG If , for the purpose of procuring a marriage or a certificate or licence for marriage , any person knowingly and wilfully makes a false oath or makes or signs a false declaration , notice or certificate required under LAW relating to marriage , he or she is guilty of an offence under section CARDINAL(CARDINAL ) of LAW . However , a person contracting a marriage abroad is not liable to prosecution under LAW .

ORG The biological definition of sex laid down in PERSON v. PERSON has been followed by LANGUAGE courts and tribunals on a number of occasions and for purposes other than marriage .

In CARDINAL case concerning prostitution , a male - to - female transsexual , who had undergone both hormone and surgical treatment , was nevertheless treated as a male by ORG for the purposes of CARDINAL of LAW DATE and section CARDINAL of LAW ( GPE v. PERSON and Others [ DATE ] CARDINAL All England Law Reports CARDINAL ) . In CARDINAL cases concerning social security legislation , male - to - female transsexuals were considered by ORG Commissioner as males for the purposes of retirement age ; in the first case the person in question had only received hormone therapy , in the second she had involuntarily begun to develop female secondary characteristics at DATE , which developments were followed by surgery and adoption of a female social role DATE ( cases R ( P ) CARDINAL and R ( P ) CARDINAL in the DATE Volume of ORG ) . Lastly , in a case before an ORG a female - to - male transsexual , who had not undergone any sex - change treatment , was treated as a female by the ORG for the purposes of LAW DATE ; the person in question had sought and received employment in a position reserved for men under LAW , but was dismissed after discovery of her biological sex ( NORP v. ORG [ DATE ] ORG CARDINAL ) .


No violation of Art. 3 (in case of expulsion to Colombia)

H.L.R. , who is a NORP national and was born in DATE , is currently in GPE subject to a compulsory residence order .

ORG On DATE the applicant , who was travelling from GPE to GPE , was arrested while in transit at FAC in possession of a package containing QUANTITY of cocaine .

According to the record of the interviews that took place on DATE , whilst he was in police custody H.L.R. supplied information on the instigators of the traffic and on PERSON , by whom he had been recruited . That information subsequently enabled ORG to identify PERSON , who appeared in their records under CARDINAL different names and had been arrested on CARDINAL DATE at GPE - on - FAC in possession of QUANTITY of cocaine . PERSON was convicted and on DATE was sentenced by the GPE - on - ORG to DATE and CARDINAL months’ imprisonment ; he was deported to GPE pursuant to an order issued on DATE by ORG ( PERSON ) of the district ( PERSON ) of ORG - Dieking .

ORG In the meantime , on DATE , ORG had convicted the applicant of an offence under the misuse of drugs legislation and sentenced him to DATE imprisonment . It also made an order permanently excluding him from NORP territory .

ORG On DATE ORG upheld both that judgment and the judgment of DATE of the same court whereby his application to have the permanent exclusion order cancelled was dismissed .

ORG On DATE the applicant , arguing in particular that he had assisted the judicial authorities , petitioned the President of the Republic to have the exclusion order rescinded . His petition was dismissed on DATE .

ORG On DATE the ORG public prosecutor , who had initially instructed the Prefect of the LOC département to enforce the exclusion order on DATE , the date of the applicant ’s release , ordered that his deportation be stayed .

ORG After serving his sentence , the applicant was given accommodation , at the home of one of his prison visitors .

Notwithstanding that the petition to the President was pending , the Minister of the ORG directed that the applicant ’s file be submitted to ORG for an opinion in accordance with section CARDINAL of the Ordinance of DATE as amended ( see paragraph CARDINAL below ) .

ORG On DATE , having been informed of the risks the applicant would run if he were deported to GPE , ORG expressed the following opinion :

" ORG is of the opinion that [ H.L.R. ] should not be deported as his presence in GPE does not constitute a serious threat to public order and there are in addition good reasons for believing that his integration in the national community is possible . "

ORG On DATE the Minister of the Interior nonetheless issued an order for the applicant ’s deportation . He relied on the following reasons :

PERSON , a NORP national , ... , committed a drugs offence in DATE by illegally importing QUANTITY of heroin [ sic ] ;

Whereas on account of his general behaviour the presence of this foreign national in NORP territory represents a serious threat to public order ;

Having regard to the opinion issued on DATE by ORG referred to in section CARDINAL of the Ordinance [ no . CARDINAL - CARDINAL of DATE , as amended , concerning the conditions of entry and residence of aliens in GPE ] . "

ORG The Prefect of the LOC département served the deportation order on the applicant by a letter of CARDINAL DATE , which the applicant received on DATE He stated that the applicant was to be deported to GPE , unless he was accepted by another country , within DATE of the date of receipt of the letter . On DATE the ORG granted the applicant a final extension of DATE in which to find a host country .

ORG On DATE the applicant applied to the Minister of the Interior to have the deportation order rescinded . His application was rejected on CARDINAL DATE on the following grounds :

" I regret [ to have ] to inform you that , at the present time , in spite of the various considerations you cite in your client ’s favour , it is impossible for me to grant your application because the acts which gave rise to the order for your client ’s deportation occurred recently and were serious . In DATE he was involved in the trafficking of QUANTITY of heroin [ sic ] .

Consequently his presence in GPE continues to constitute a serious threat to public order . "

ORG At the same time , by applications lodged with ORG and registered on DATE the applicant sought judicial review of the deportation order and of the refusal to rescind it .

ORG In its judgment of DATE served on DATE , the court joined and then dismissed the applications . It gave the following reasons :

" Under the final paragraph of LAW bis of the LAW of DATE , ` an alien shall not be sent to a country if he shows that he is in danger of losing his life or his liberty there or that he will be exposed there to treatment contrary to LAW DATE ; by virtue of the provisions of LAW ) of ORG , ` CARDINAL . Everyone ’s right to life shall be protected by law ... ’ and of LAW ( article CARDINAL ) : ` No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ ; the impugned deportation order of DATE did no more than enjoin [ Mr H.L.R. ] to leave NORP territory ; it follows that , in any event , the submission that his return to GPE would infringe the provisions cited above ( article CARDINAL , article CARDINAL ) is ineffective .

... [ Mr H.L.R. ] is single , has no children and no family life in GPE ; it follows that the submission that the provisions [ of LAW article CARDINAL) of ORG ] have been infringed can not be accepted . "

ORG On DATE the applicant appealed against that judgment to ORG . The outcome of the appeal is not known .

ORG In the meantime , the Minister of the ORG had issued a compulsory residence order on DATE pursuant to LAW . CARDINAL - CARDINAL of DATE as amended ( see paragraph CARDINAL below ) . Considering that it had been established that the applicant was unable to leave GPE at that time , the Minister ordered him to reside in a designated location " until such time as he [ was ] in a position to comply with the deportation order against him " . That position has remained unchanged .

ORG The applicant ’s deportation is governed by Ordinance no . CARDINAL - CARDINAL of DATE " on the conditions of entry and residence [ of aliens ] in GPE " , as amended by PERSON no . CARDINAL of DATE . The relevant provisions , in the wording applicable at the date of the impugned decision , are as follows :

" Subject to the provisions of LAW , deportation may be decided by order of the Minister of the ORG if an alien ’s presence on NORP territory constitutes a serious threat to public order .

The deportation order may at any time be rescinded by the Minister of the ORG . Where the application for an order to be rescinded is made on the expiry of a period of DATE from the actual execution of the deportation order , it may be rejected only after the opinion of the board provided for in section DATE , before which the applicant may be represented , has been obtained .

" PERSON as provided for in section CARDINAL may be ordered only where the following conditions are satisfied :

( CARDINAL ) The alien must be given advance notice in accordance with the conditions laid down in a decree of the ORG d’Etat ;

( CARDINAL ) The alien shall be summoned to be interviewed by a board convened by the prefect and composed as follows :

the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him , chairman ;

a judicial officer ( magistrat ) designated by the general assembly of the tribunal de grande instance of the administrative capital of the département ; and

an administrative court judge .

The head of the GPE department at the prefecture shall act as rapporteur ; the director of health and social affairs of the département or his representative shall be heard by the board . They shall not attend the board ’s deliberations .

The summons , which must be served on the alien DATE before the board ’s meeting , shall inform him that he has the right to be assisted by a lawyer or by any other person of his choice and to be heard with the help of an interpreter .

The alien may request legal aid in accordance with Law no . CARDINAL of DATE on legal aid . Reference shall be made to this possibility in the summons . A provisional grant of legal aid may be decided by the chairman of the board .

The board ’s hearing shall be public . The chairman shall ensure the proper conduct of the proceedings . All orders made by him to that end must be executed immediately . Before the board the alien may put forward all the reasons that militate against his deportation . A report recording the alien ’s statements shall be transmitted , together with the board ’s opinion , to the Minister of the ORG , who shall give a decision . The board ’s opinion shall also be communicated to the person concerned . "

" A deportation order made under LAW may not be issued against the following persons :

( CARDINAL ) a minor alien DATE ;

( CARDINAL ) an alien who proves by any means that he has habitually resided in GPE since DATE or younger ;

( CARDINAL ) an alien who proves by any means that he has habitually resided in GPE for DATE or an alien who has lawfully resided in GPE for DATE , unless for the whole of this period he has been in possession of a temporary residence permit bearing the word ‘ ORG ;

( CARDINAL ) an alien , who has been married for DATE and whose spouse is a NORP national provided that they have not ceased to live together and that the spouse has kept his or her NORP nationality ;

( CARDINAL ) an alien who is the father or the mother of a NORP child residing in GPE provided that he or she exercises parental rights , even only on a partial basis , in respect of the child or actually provides for him or her ;

( CARDINAL ) an alien who is in receipt of an industrial accident or occupational disability pension paid by a NORP institution where his or her permanent disability is PERCENT ;

( CARDINAL ) an alien residing lawfully in GPE by virtue of CARDINAL of the residence permits provided for in this Ordinance or in the international agreements , who has not been sentenced with final effect to a non - suspended term of imprisonment of DATE or more .

However , by way of derogation to ( CARDINAL ) above , an alien may be expelled if he has been sentenced with final effect to a non - suspended term of imprisonment for an offence under LAW of this GPE , sections CARDINAL and CARDINAL of Law no . CARDINAL - CARDINAL of DATE on multiple occupation , ORG L-CARDINAL - CARDINAL , L-CARDINAL - CARDINAL - CARDINAL , CARDINAL and CARDINAL of the Labour Code or Articles CARDINAL - CARDINAL to CARDINAL - CARDINAL of LAW .

The aliens referred to in sub - paragraphs ( CARDINAL ) to ( CARDINAL ) may not be the subject of a removal order made under LAW of this GPE .

By way of derogation from the provisions of this section , a deportation order under sections CARDINAL and DATE may be made against an alien falling within CARDINAL of the categories listed in sub - paragraphs ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) if he or she has been sentenced with final effect to a non - suspended term of imprisonment of DATE . "

" An alien who is the subject of a deportation order or who has to be removed from GPE shall be sent to :

( CARDINAL ) the country of which he is a national unless ORG or ORG has granted him refugee status or has not yet ruled on his application for asylum ; or

( CARDINAL ) a country which has delivered him a travel document which is currently valid ; or

( CARDINAL ) a country which he may lawfully enter .

An alien shall not be sent to a country in which he shows that there is a danger that he will lose his life or liberty or that he will there be exposed to treatment contrary to LAW DATE . "

" An alien subject to a deportation order or required to leave GPE who proves that it is impossible for him to leave GPE by showing that he can neither return to his country of origin nor travel to any other country may , by way of derogation from section QUANTITY bis , be ordered to reside in a designated location where he must report to the police and the gendarmerie at regular intervals . "


Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial awards;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , DATE , DATE and DATE respectively and live in ORG and PERSON respectively .

In DATE the applicants ' plots of land in ORG were expropriated by ORG and Highways . A committee of experts assessed the value of these lands and the determined amounts were paid to them when the expropriation took place .

On DATE , DATE and DATE respectively , the applicants filed separate actions for compensation with ORG .

On DATE the first - instance court ordered the administration to pay ORG Ateş MONEY ( TRL ) plus interest at the statutory rate , running from DATE , the date on which the ownership of the property was transferred to ORG .

On DATE the first - instance court ordered the administration to pay PERSON TRL CARDINAL plus interest at the statutory rate , running from DATE , the date on which the ownership of the property was transferred to ORG .

On DATE , the first - instance court ordered the administration to pay ORG GPE CARDINAL plus interest at the statutory rate , running from DATE , the date on which the ownership of the property was transferred to ORG .

On DATE the first - instance court ordered the administration to pay FAC CARDINAL,CARDINAL,CARDINAL,CARDINAL plus interest at the statutory rate , running from DATE , the date on which the ownership of the property was transferred to ORG .

ORG upheld the above - mentioned judgments of ORG on DATE , DATE and CARDINAL DATE respectively .

On DATE , DATE , CARDINAL May and DATE respectively , the administration paid the applicants the amounts due together with interest .

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


The applicant was born in DATE and lives in LOC .

In DATE he brought a court action against ORG of GPE . He sought to recover the monetary value of the state - issued promissory notes for the purchase of a NORP - made car .

By judgment of DATE the ORG of the Tyumen Region awarded the applicant MONEY ( RUR ) and recovered in his favour RUR CARDINAL in compensation for court fee . ORG specified that those amounts had to be paid by ORG at the expenses of the ORG of GPE . The judgment was upheld on appeal by ORG on DATE .

On an unspecified date the President of ORG granted ORG request to file a motion for supervisory review with the Presidium of ORG .

On DATE the Presidium of ORG , by way of supervisory review , upheld the judgment of DATE .

The judgment of DATE , as upheld on DATE , remains unenforced to date .


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

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

On DATE the applicant acquired the right to a long - term lease of a flat ( spółdzielcze lokatorskie prawo do lokalu ) in a building owned by ORG - operative ( PERSON ) .

On DATE the co - operative sued the applicant in ORG ( Sąd Rejonowy ) , seeking payment . On DATE the court gave judgment and granted the claim . The applicant appealed against this judgment . On DATE ORG ( Sąd Wojewódzki ) amended the first - instance judgment .

Subsequently , the applicant twice requested the Minister of ORG to grant her leave to file an extraordinary appeal with ORG ( Sąd Najwyższy ) . Her first request was rejected on DATE .

NORP On DATE , upon the applicant ’s second request , the Minister of ORG filed a cassation appeal on the applicant ’s behalf , contesting the judgment of ORG of DATE .

On DATE ORG quashed both judgments given in the applicant ’s case and remitted the case to the court of first instance . It held that the lower courts had committed serious errors of fact and law .

On DATE ORG joined the applicant ’s case with similar proceedings against CARDINAL other members of the cooperative .

On DATE the court held a hearing .

On DATE the court ordered that expert evidence be obtained .

On DATE the court exempted the applicant from CARDINAL of the court fees due . The applicant appealed . On DATE ORG rejected her appeal .

On DATE the trial court ordered that further expert evidence be obtained . On DATE the expert submitted his report to the court . On DATE the applicant challenged the expert ’s opinion of CARDINAL DATE .

On DATE the court held a hearing and listed the next hearing for DATE .

On DATE the ORG gave judgment . On DATE the applicant appealed against this judgment .

It appears that the proceedings are pending .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE and CARDINAL DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


CASE OF ALIŠIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA, CROATIA, SERBIA, SLOVENIA AND "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Serbia);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Slovenia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Serbia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Slovenia);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Non-pecuniary damage - award

Lech Garlicki;Mirjana Lazarova Trajkovska;Nicolas Bratza

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

NORP Before the dissolution of ORG ( “ the SFRY ” ) , PERSON and PERSON deposited foreign currency in the then GPE and PERSON in the ORG branch of ORG . It would appear that the balance in their accounts is MONEY ( ORG ) , DEM CARDINAL,CARDINAL.CARDINAL and DEM CARDINAL,CARDINAL.CARDINAL , respectively . PERSON also has MONEY ( ORG ) and CARDINAL NORP schillings in his accounts .

Until the DATE economic reforms , the commercial banking system consisted of basic and associated banks . Basic banks were as a rule founded and controlled by socially owned companies based in the same territorial unit ( that is , in CARDINAL of GPE , GPE , GPE , GPE , GPE and GPE DATE or ORG and GPE ) . The founders of GPE were thus CARDINAL socially owned companies from GPE ( such as GPE , Gorenje Bira Bihać , GPE , GPE , PERSON ) and Pamučni kombinat Vranje from GPE . CARDINAL basic banks could form an associated bank , while preserving their separate legal personality . In DATE Ljubljanska Banka Sarajevo , GPE , GPE and some other basic banks thus founded an associated bank – PERSON . Similarly , in DATE GPE and a number of other basic banks founded GPE udružena Banka GPE . In the SFRY there were CARDINAL basic and CARDINAL associated banks ( GPE , PERSON , PERSON , GPE , GPE , PERSON GPE , GPE , PERSON and PERSON ) .

Being hard - pressed for hard currency , the SFRY made it attractive for its expatriates and other citizens to deposit foreign currency with its banks . Such deposits earned high interest ( the DATE interest rate often exceeded PERCENT ) . Moreover , they were guaranteed by the ORG ( see section CARDINAL(CARDINAL ) of ORG DATE and section CARDINAL(CARDINAL ) of the PERSON and Other Financial Institutions Act DATE ) . The ORG guarantee was to be activated in case of the bankruptcy or “ manifest insolvency ” of a bank at the request of the bank ( section CARDINAL of the Banks and Other Financial Institutions Insolvency Act DATE and the relevant secondary legislation ) . None of the banks under consideration in the present case made such a request . It should be emphasised that savers could not request the activation of the guarantee on their own . They were nevertheless entitled , in accordance with LAW DATE , to collect their deposits at any time , together with accrued interest , from basic banks ( see sections CARDINAL and CARDINAL of that Act ) .

Beginning in DATE , the commercial banks incurred foreignexchange losses because the dinar exchange rate depreciated . In response , the SFRY set up a system for “ redepositing ” of foreign currency , allowing commercial banks to transfer ORG foreign - currency deposits to ORG ( “ the ORG ” ) , which assumed the currency risk ( see section CARDINAL(CARDINAL ) of ORG DATE ) . Although the system was optional , commercial banks did not have another option as they were not allowed to maintain foreign - currency accounts with foreign banks , as was necessary to make payments abroad , nor were they allowed to grant foreign - currency loans . Virtually all foreign currency was therefore redeposited with the ORG . It should be emphasised , however , that only a fraction of that money was physically transferred to the ORG ( see PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL/CARDINAL , CARDINAL and CARDINAL , § § DATE and DATE , DATE ; see also decision ORG CARDINAL of ORG DATE , § CARDINAL ) .

With regard to GPE , the redepositing scheme functioned as follows . Pursuant to a series of agreements between that bank , GPE , ORG and ORG , GPE had to ship on a DATE basis any difference between foreign currency deposited and foreign currency withdrawn to ORG . The foreign currency so shipped was recorded as a claim of GPE against the ORG . ORG maintained in the present case that ORG then shipped all those funds to the ORG , but they failed to provide any proof in that regard . They proved only that a part of those funds had been shipped back to GPE at the request of that bank to meet its liquidity needs ( in the period when more foreign currency was withdrawn than deposited ) . The exact figures are : in DATE DEM CARDINAL,CARDINAL , CARDINAL was shipped to GPE and DEM CARDINAL,CARDINAL back to GPE ; in DATE DEM CARDINAL,CARDINAL,CARDINAL was shipped to GPE and DEM CARDINAL,CARDINAL back to GPE , in DATE DEM CARDINAL,CARDINAL,CARDINAL was shipped to GPE and DEM CARDINAL,CARDINAL,CARDINAL back to GPE , and so on . In total , DATE DEM CARDINAL,CARDINAL,CARDINAL was shipped to GPE and DEM CARDINAL,CARDINAL,CARDINAL ( that is , PERCENT ) back to GPE .

Another relevant factor is that basic banks were granted dinar loans ( initially , interest - free ) by the ORG in return for the value of the redeposited foreign currency . The dinars so received were used by basic banks to give credits , at interest rates below the rate of inflation , to companies based , as a rule , in the same territorial unit ( for instance , in the case of FAC , such credits were given to PERSON , PERSON , Šipad Šator Glamoč , PERSON , ORG , PERSON , PERSON , PERSON , and so on ) .

In DATE the redepositing system was brought to an end ( by virtue of section CARDINAL of ORG DATE , as amended on DATE ) . Banks were given permission to open foreign - currency accounts with foreign banks . GPE , like other banks , seized that opportunity and deposited in total MONEY with foreign banks in the period from DATE until DATE .

Within the framework of the DATE reforms , the SFRY abolished the system of basic and associated banks described above . This shift in the banking regulations allowed some basic banks to opt for an independent status , while other basic banks became branches ( without legal personality ) of the former associated banks to which they had formerly belonged . On DATE Ljubljanska Banka GPE thus became a branch ( without legal personality ) of PERSON and the latter took over the former ’s rights , assets and liabilities . By contrast , ORG became an independent bank with its headquarters in GPE and a number of branches in GPE ( including the GPE branch at which PERSON had accounts ) . Moreover , the convertibility of the dinar was declared and very favourable exchange rates were fixed by the ORG . It led to a massive withdrawal of foreign currency from commercial banks . The SFRY therefore resorted to emergency measures restricting to a large extent the withdrawals of foreign - currency deposits . For example , as of DATE , when section CARDINAL of ORG DATE was amended , savers could use their savings only to pay for imported goods or services for their own or close relatives’ needs , to purchase foreign - currency bonds , to make testamentary gifts for scientific or humanitarian purposes , or to pay for life insurance with a local insurance company ( before , they could use their deposits also to pay for goods and services abroad ) . In addition , section CARDINAL of a decision of ORG of DATE , which was in force until DATE , and section DATE of a decision of the ORG of DATE , which ORG declared unconstitutional on DATE , limited the amount which savers could withdraw or use for the above purposes to DEM CARDINAL at a time , but not more than DEM CARDINAL,CARDINAL per month .

The SFRY disintegrated in DATE . In the successor GPE , foreign currency deposited beforehand is customarily referred to as “ old ” or “ frozen ” foreign - currency savings .

NORP In DATE GPE took over the statutory guarantee for “ old ” foreign - currency savings from ORG ( see section CARDINAL of LAW DATE ) . Although the relevant statutory provisions were not clear in that regard , ORG held that the guarantee covered “ old ” foreign - currency savings in domestic banks only ( see its report CARDINAL of CARDINAL DATE ) .

While during the war all “ old ” foreign - currency savings remained frozen , withdrawals were exceptionally allowed on humanitarian grounds and in some other special cases ( see the relevant secondary legislation ) .

After the DATE - CARDINAL war , each of ORG the ORG ” – and ORG ) enacted its own legislation on “ old ” foreign - currency savings . Only the PERSON legislation is relevant in the present case , given that the branches in issue are situated in that Entity . In DATE the PERSON assumed liability for “ old ” foreign - currency savings in banks and branches placed in its territory ( see section CARDINAL(CARDINAL ) of LAW DATE and ORG ) . Such savings remained frozen , but they could be used to purchase ORG - owned flats and companies under certain conditions ( section CARDINAL of LAW CARDINAL , as amended in DATE ) .

In DATE the PERSON enacted new legislation . It undertook to repay “ old ” foreign - currency savings in domestic banks in that Entity , regardless of the citizenship of the depositor concerned . Its liability for such savings in the branches of ORG and GPE were expressly excluded ( see section CARDINAL(CARDINAL ) of ORG ) .

In DATE the liability for “ old ” foreign - currency savings in domestic banks passed from the Entities to the ORG . Liability for such savings at the local branches of ORG and GPE are again expressly excluded , but the ORG must help the clients of those branches to obtain the payment of their savings from GPE and GPE , respectively ( see section CARDINAL of ORG DATE ) . In addition , all proceedings concerning “ old ” foreign - currency savings ceased by virtue of law ( see section CARDINAL of that Act ; that provision was declared constitutional by decision U CARDINAL/CARDINAL of ORG DATE , § CARDINAL ) . ORG has examined numerous individual complaints about the failure of GPE and its Entities to pay back “ old ” foreign - currency savings at the domestic branches of GPE and GPE : it held that neither GPE nor its Entities were liable and ordered instead the ORG to help the clients of those branches to recover their savings from GPE and GPE , respectively ( see , for example , decisions ORG CARDINAL of DATE , ORG CARDINAL of DATE and ORG CARDINAL of DATE ) .

NORP In DATE Ljubljanska Banka Sarajevo became a branch , without legal personality , of GPE and the latter took over the former ’s rights , assets and liabilities . Pursuant to the companies register , the GPE branch acted on behalf and for the account of the parent bank . On DATE the amount of foreign - currency savings at the GPE branch was MONEY , but it would appear that CARDINAL was in the vault of the GPE branch on DATE . While it is unclear what happened with the remaining sum , it is likely that most of it ended up in GPE ( see paragraph CARDINAL above ) .

A domestic bank , GPE , was set up in DATE . It assumed PERSON liability for “ old ” foreign - currency savings at the GPE branch . In DATE ORG GPE carried out an inspection and noted many shortcomings . First of all , its management had not been properly appointed and it was not clear who its shareholders were . ORG therefore appointed a director of GPE . Secondly , as a domestic bank , GPE could not have assumed a foreign bank ’s liability for “ old ” foreign - currency savings , as this would impose new financial obligations on the ORG ( as the ORG was the statutory guarantor for “ old ” foreign - currency savings in all domestic banks ) . ORG ordered that a closing balance sheet for the GPE branch of ORG as at DATE be drawn up urgently and that its relations with the parent bank be defined . However , according to the companies register , ORG had remained liable for “ old ” foreign - currency savings at ORG GPE branch until DATE ( see paragraph CARDINAL below ) . Accordingly , it continued to administer the savings of clients of the GPE branch ; those savings were used in the privatisation process in the PERSON ( see paragraph CARDINAL above ) ; and a domestic court ordered GPE to pay those savings in CARDINAL case ( see ORG v. GPE ( dec . ) , no . CARDINAL , DATE ) .

In DATE the ORG placed that domestic bank under its provisional administration for the reason that it had undefined relations with the foreign PERSON .

By virtue of an amendment to LAW , in DATE ORG extended the statutory time - limit for the deletion of war - time entries in the companies register until DATE . Shortly thereafter , in DATE ORG decided that the domestic GPE was not the successor of the GPE branch of the foreign PERSON ; that it was not liable for “ old ” foreign - currency savings in that branch ; and that , as a result , the DATE entry in the companies register stating otherwise must be deleted .

In DATE the domestic GPE sold its assets and let out LOC and equipment belonging to ORG GPE branch to a NORP company which , in return , undertook to pay debts of GPE . While endorsing that agreement , the ORG emphasised that all premises and archives of ORG GPE branch remained under the care of the ORG pending the final determination of the status of that branch .

In DATE the competent court started bankruptcy proceedings against the domestic GPE . They are still pending .

The GPE branch of GPE has at all times had the status of a branch without legal personality . The size of “ old ” foreign - currency savings at that branch was MONEY ( MONEY ) on DATE . The branch closed on DATE and it has never resumed its activities . It is unclear what happened with its funds , but given the manner in which the redepositing scheme was administered ( see paragraph CARDINAL above ) , it is likely that most of them ended up in GPE .

In DATE the competent court in GPE made a bankruptcy order against GPE . The NORP authorities then sold the premises of the ORG branches of ORG ( those in ORG had been sold in DATE ) . The bankruptcy proceedings are still pending .

In DATE ORG placed the LOC and archives of the ORG branches of ORG under its care , but it would appear that ORG no longer has any LOC or archives in the PERSON .

NORP In DATE , at the request of the ORG authorities , the NORP authorities started a criminal investigation into the manner in which the archives of the GPE branch had been transferred to the NORP territory in DATE .

ORG argued that they had repaid “ old ” foreign - currency savings in domestic banks and their foreign branches , regardless of the citizenship of the depositor concerned . Indeed , it is clear that they repaid such savings of NORP - Herzegovinian citizens in NORP - Herzegovinian branches of NORP banks . However , ORG provided decisions of ORG ( PERSON CARDINAL/CARDINAL - DATE , PERSON CARDINAL/CARDINAL - CARDINAL of CARDINAL and PERSON ORG ) holding that the term used in that legislation ( građanin ) meant a NORP citizen and argued that it was not excluded that the NORP - Herzegovinian citizens in issue were also NORP citizens or that an ad hoc agreement had been concluded .

GPE also repaid its ORG “ old ” foreign - currency savings which had been transferred from ORG GPE branch to domestic banks at the request of the depositors concerned ( see section CARDINAL of ORG DATE and the relevant secondary legislation ) . Apparently , CARDINAL of all clients of that branch used that possibility . As to its remaining clients , whose “ old ” foreign - currency savings allegedly amount to MONEY , some of them have pursued civil proceedings in the NORP courts and CARDINAL of them have obtained their “ old ” foreign - currency savings from a forced sale of assets of that branch located in GPE ( decisions of ORG of DATE and DATE ) . Some others are pursuing civil proceedings in the NORP courts ( see paragraph CARDINAL below ) .

In the direct aftermath of the dissolution of the SFRY , “ old ” foreigncurrency savings in domestic banks remained frozen , but withdrawals were exceptionally allowed on humanitarian grounds regardless of the citizenship of the depositor concerned ( see the relevant secondary legislation ) .

In DATE and then again in DATE GPE agreed to repay “ old ” foreign - currency savings in domestic branches of domestic banks of its citizens and of citizens of all GPE other than the successor LAW of the SFRY . All savings of citizens of ORG and all savings in domestic NORP branches located in those GPE remained frozen pending succession negotiations . Moreover , all proceedings concerning “ old ” foreign - currency savings ceased by virtue of law in accordance with sections CARDINAL and CARDINAL of ORG Act DATE and sections CARDINAL and CARDINAL of ORG .

NORP In DATE the competent court in GPE made a bankruptcy order against GPE . As a result , the ORG guarantee on “ old ” foreigncurrency savings was activated ( section CARDINAL of the Banks and Other Financial Institutions Insolvency Act DATE and LAW . CARDINAL clients of ORG branches of ORG unsuccessfully applied to be paid back within the context of the bankruptcy proceedings ; CARDINAL of them then pursued civil proceedings against GPE , but to no avail . The bankruptcy proceedings are still pending .

In DATE GPE assumed the statutory guarantee from the SFRY for “ old ” foreign - currency savings in domestic branches of all banks , regardless of the citizenship of the depositor concerned ( see LAW of LAW DATE and LAW DATE ) . While , as a rule , anyone who shows legal interest may petition that abstract constitutionality review proceedings be initiated ( section CARDINAL of LAW DATE ) , ORG held that LAW DATE was not subject to such a review ( see its decisions nos . U - I-CARDINAL/CARDINAL of DATE and U - I-CARDINAL/CARDINAL of DATE ) .

After futile attempts to register the GPE branch of ORG as a separate bank ( see the correspondence between the ORG and ORG of DATE stressing the unlawfulness of such proposals as GPE had meanwhile become an independent ORG and PERSON a foreign bank ) , GPE nationalised and then , in DATE , restructured ORG itself . A new bank , PERSON , took over GPE domestic assets and liabilities . The old bank retained the liability for “ old ” foreign - currency savings in its branches in the other successor GPE and the related claims against the ORG .

In DATE all proceedings concerning “ old ” foreign - currency savings in the old Ljubljanska Banka ’s branches in the other successor GPE were stayed pending the outcome of the succession negotiations . In DATE ORG , upon a constitutional petition of CARDINAL NORP savers , declared that measure unconstitutional . ORG has thereafter rendered numerous judgments ordering the old Ljubljanska Banka to pay “ old ” foreign - currency savings in its GPE and GPE branches together with interest . It held that the relationship between the old Ljubljanska Banka and its clients at those branches was of a privatelaw nature . The fact that some foreign currency had allegedly been shipped to the ORG and that succession negotiations were pending was considered irrelevant . Similarly , it considered irrelevant the decisions regarding the status of the GPE branch set out in paragraphs CARDINAL - CARDINAL above . CARDINAL such judgment , concerning the GPE branch , has become final ( judgment P CARDINAL of DATE ) . A number of clients of the GPE and GPE branches have pursued civil proceedings also against GPE , but in vain . ORG has rejected such claims in CARDINAL cases ( as no appeals have been lodged , those decisions have become final ) . CARDINAL similar cases are apparently still pending .

It paid back “ old ” foreign - currency savings in domestic banks and local branches of foreign banks , such as the GPE branch of ORG , regardless of the citizenship of the depositor concerned .

NORP The matter of State succession is regulated by customary rules , partly codified in the DATE LAW in respect of Treaties and the DATE LAW in respect of ORG , ORG and GPE . Although the latter treaty is not yet in force and CARDINAL respondent GPE are parties to it as of DATE ( GPE , GPE and the former GPE ) , it is a well - established principle of international law that , even if a ORG has not ratified a treaty , it may be bound by one of its provisions in so far as that provision reflects customary international law , either codifying it or forming a new customary rule ( see PERSON v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR DATE , and judgment of ORG in the LOC Cases of DATE , § CARDINAL ) .

The fundamental rule is that GPE must together settle all aspects of succession by agreement ( see Opinion No . CARDINAL of ORG of ORG on the Former GPE , and LAW ) . If CARDINAL of the GPE refused to cooperate , it would be in breach of that obligation and would be liable internationally ( Opinion No . CARDINAL of ORG ) . While it is not required that each category of property and debts of a predecessor ORG be divided in equitable proportions , an overall outcome must be an equitable division ( LAW ; Opinion No . CARDINAL of ORG ; Articles CARDINAL , CARDINAL and DATE of ORG ) .

This Agreement was the result of DATE of negotiations under the auspices of ORG on the former GPE and ORG ( an international administrator appointed under LAW to ORG for Peace in GPE ) . It was signed on DATE and entered into force between GPE , GPE , GPE and GPE ( later succeeded by GPE ) , GPE and the former GPE on DATE .

The issue of “ old ” foreign - currency savings was a contentious one . The successor ORG had different views as to whether that issue should be dealt with as a liability of the SFRY under Annex C ( Financial Assets and ORG ) or as a private - law issue under ORG ) . Neither could those GPE agree whether the guarantees of the SFRY of “ old ” foreign - currency savings should be taken over by the ORG in which the parent bank in issue had its head office or by the ORG in which the deposit had actually been made . The following provisions were eventually included in ORG to the Agreement :

“ Other financial liabilities [ of the SFRY ] include :

( a ) guarantees by the SFRY or its ORG of hard currency savings deposited in a commercial bank and any of its branches in any successor ORG before the date on which it proclaimed independence ; ... ”

“ Guarantees by the SFRY or its ORG of hard currency savings deposited in a commercial bank and any of its branches in any successor ORG before the date on which it proclaimed its independence shall be negotiated without delay taking into account in particular the necessity of protecting the hard currency savings of individuals . This negotiation shall take place under the auspices of ORG . ”

In CARDINAL/CARDINAL CARDINAL rounds of negotiations regarding the distribution of the SFRY ’s guarantees of “ old ” foreign - currency savings were held . As the successor States could not reach an agreement , in DATE ORG ( “ the BIS ” ) informed them that the expert , Mr PERSON , had decided to terminate his involvement in the matter and that the PERSON had no further role to play in this regard . It concluded as follows :

“ If , however , all CARDINAL successor GPE were to decide at a later stage to enter into new negotiations about guarantees of hard currency savings deposits and were to seek the ORG assistance in this regard , the ORG would be prepared to give consideration to providing such assistance , under conditions to be agreed . ”

It appears that CARDINAL successor GPE ( all but GPE ) notified the ORG of their willingness to continue the negotiations shortly thereafter . GPE did so in DATE and received a response in DATE which , in so far as relevant , reads as follows :

“ ... the ORG did recently reconsider this issue and believes that its contribution to any new round of negotiations , as part of a good offices role , could not bring added value , also bearing in mind the amount of time which lapsed since the last round of negotiations , as well as its current priorities in the field of monetary and financial stability . However , we would like to emphasise that the organisation of the DATE meetings in GPE offers the practical opportunity for the governors of the successor GPE to discuss this matter between them on an informal basis at the ORG . ”

It should be noted that a comparable issue of the SFRY ’s guarantees of savings deposited with ORG and its branches had been settled outside the negotiations of ORG , in that each of the States had taken over the guarantees as to the branches in its territory .

In accordance with LAW , a ORG of senior representatives of the successor GPE was established to monitor the effective implementation of the LAW and to serve as a forum in which issues arising in the course of its implementation could be discussed . It has so far met CARDINAL times : in DATE , in DATE and in DATE .

The following provisions of this Agreement are also relevant in this case :

“ ( CARDINAL ) Differences which may arise over the interpretation and application of this Agreement shall , in the first place , be resolved in discussion among the GPE concerned .

( CARDINAL ) If the differences can not be resolved in such discussions within DATE of the first communication in the discussion the GPE concerned shall either

( a ) refer the matter to an independent person of their choice , with a view to obtaining a speedy and authoritative determination of the matter which shall be respected and which may , as appropriate , indicate specific time - limits for actions to be taken ; or

( b ) refer the matter to ORG established by LAW for resolution .

( CARDINAL ) Differences which may arise in practice over the interpretation of the terms used in this LAW or in any subsequent agreement called for in implementation of the LOC to this Agreement may , additionally , be referred at the initiative of any ORG concerned to binding expert solution , conducted by a single expert ( who shall not be a national of any party to this Agreement ) to be appointed by agreement between the parties in dispute or , in the absence of agreement , by the President of ORG within the LOC . The expert shall determine all questions of procedure , after consulting the parties seeking such expert solution if the expert considers it appropriate to do so , with the firm intention of securing a speedy and effective resolution of the difference .

( CARDINAL ) The procedure provided for in paragraph ( CARDINAL ) of this Article shall be strictly limited to the interpretation of terms used in the agreements in question and shall in no circumstances permit the expert to determine the practical application of any of those agreements . In particular the procedure referred to shall not apply to

( a ) The Appendix to this Agreement ;

( b ) Articles CARDINAL , CARDINAL and CARDINAL of Annex B ;

( c ) Articles CARDINAL and CARDINAL ) of ORG ;

( d ) LAW

( CARDINAL ) Nothing in the preceding paragraphs of this Article shall affect the rights or obligations of the Parties to the present Agreement under any provision in force binding them with regard to the settlement of disputes . ”

“ This Agreement shall be implemented by the successor ORG in good faith in conformity with the LAW of ORG and in accordance with international law . ”

The obligation flowing from a pactum de negotiando , to negotiate with a view to concluding an agreement , must be fulfilled in good faith according to the fundamental principle pacta sunt servanda .

ORG stated in its judgment of CARDINAL DATE in LOC ) :

“ ... the parties are under an obligation to enter into negotiations with a view to arriving at an agreement , and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement ; they are under an obligation so to conduct themselves that the negotiations are meaningful , which will not be the case when either of them insists upon its own position without contemplating any modifications of it ... ”

The decision of ORG on ORG in the case of GPE v. GPE of DATE reads , in so far as relevant , as follows ( § § DATE ) :

“ However , a pactum de negotiando is also not without legal consequences . It means that both sides would make an effort , in good faith , to bring about a mutually satisfactory solution by way of a compromise , even if that meant the relinquishment of strongly held positions earlier taken . It implies a willingness for the purpose of negotiation to abandon earlier positions and to meet the other side part way . The language of the Agreement can not be construed to mean that either side intends to adhere to its previous stand and to insist upon the complete capitulation of the other side . Such a concept would be inconsistent with the term ‘ ORG . It would be the very opposite of what was intended . An undertaking to negotiate involves an understanding to deal with the other side with a view to coming to terms . Though the ORG does not conclude that LAW in connection with paragraph II of Annex I absolutely obligates either side to reach an agreement , it is of the opinion that the terms of these provisions require the parties to negotiate , bargain , and in good faith attempt to reach a result acceptable to both parties and thus bring an end to this long drawn out controversy ...

The agreement to negotiate the disputed monetary claims , in this case , necessarily involves a willingness to consider a settlement . This is true , even though the dispute extends not only to the amount of the claims but to their existence as well . The principle of settlement is not thereby affected . Article CARDINAL does not necessarily require that the parties resolve the various legal questions on which they have disagreed . For example , it does not contemplate that both sides are expected to see eye to eye on certain points separating them , such as whether the disputed claims legally exist or not , or whether they are government or private claims . As to these points , the parties , in effect , have agreed to disagree but , notwithstanding their contentions with regard to them , they did commit themselves to pursue negotiations as far as possible with a view to concluding an agreement on a settlement ...

The ORG considers that the underlying principle of the LOC Cases is pertinent to the present dispute . As enunciated by ORG , it confirms and gives substance to the ordinary meaning of ‘ ORG . To be meaningful , negotiations have to be entered into with a view to arriving at an agreement . Though , as we have pointed out , an agreement to negotiate does not necessarily imply an obligation to reach an agreement , it does imply that serious efforts towards that end will be made . ”


No violation of Art. 3 (material aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE .

According to the police report , at TIME on DATE the applicant , who was drunk , grabbed a bag out of Ms C. ’s hands and attempted to run away . CARDINAL uniformed police officers , Mr M. and PERSON , who were patrolling the area , heard PERSON cry for help and saw the applicant running with the bag in his hands . They chased the applicant , caught him in the street , restrained him and took him to the nearby police station .

The applicant alleged that when passing PERSON in the street he had slipped on the ground and grabbed her bag unintentionally . After that he stood up and moved away . Shortly afterwards he had been knocked down by a heavy blow to the head , lost consciousness and regained it only at the police station .

According to the applicant , some QUANTITY police officers at the police station handcuffed him to the window frame and demanded that he confess . When he refused to do so he was beaten . The applicant states that he was allowed to phone his sister only after he had signed a confession . He also alleges that his sister and mother had to bribe a police officer to ensure that he was not detained pending trial .

On DATE the applicant was released from the police station .

On DATE the ORG of Donetsk convicted the applicant of an attempted robbery on CARDINAL DATE and fined him CARDINAL NORP hryvnas ( ORG ) . The applicant did not appeal against that judgment .

On DATE a forensic medicine expert examined the applicant , on whom he found bruises on the body , abrasion of the left wrist joint and established that the applicant was suffering from concussion . The expert further concluded that these injuries , taken together , were minor .

According to a certificate issued on DATE by a doctor at the local hospital , the applicant was suffering kidney pain as a post - traumatic effect of blows to his back .

DATE and DATE the applicant underwent medical treatment at the local hospital for the effects of concussion . According to his medical records , he was suffering from headache , general weakness and nausea . On admission to the hospital he alleged that he had been beaten by unknown persons .

On DATE the applicant complained to ORG of GPE ( “ ORG Office ” ) about the ill - treatment allegedly suffered by him .

On DATE ORG refused to institute criminal proceedings against police officers for the lack of any corpus delicti in their acts .

On DATE ORG Office quashed the decision of DATE as unfounded and remitted the materials for further inquiry .

On DATE ORG refused to open criminal proceedings against the police officers , finding that there was nothing to suggest that they had committed any crime .

On DATE ORG overruled the decision of DATE , stating that the inquiry had been conducted unsatisfactorily and remitted the case for further examination .

On DATE the forensic medical expert issued an additional report in which he repeated his previous conclusion that the applicant had received bruises to the body , abrasion of the left wrist joint and had suffered concussion , which amounted to minor bodily injuries , and assumed that they could have probably been caused as alleged by the applicant .

On DATE ORG refused to institute criminal proceedings against police officers due to the lack of any corpus delicti . This finding was based on the discrepancies in the applicant ’s testimonies as to the number of police officers involved and the exact place where the beating had allegedly taken place . The fact that the applicant on admission to the local hospital had not indicated the police officers as the source of his injuries had also been mentioned .

On DATE ORG of Donetsk found that the inquiry was flawed , quashed the decision of DATE and ordered a further inquiry . The court indicated , inter alia , that the investigative authorities had failed to establish or question persons who had seen the applicant before and after his detention in the police station and to scrutinise the circumstances surrounding the infliction of bodily injuries on the applicant .

On DATE ORG decided not to institute criminal proceedings against the police officers , stating , inter alia , that the applicant ’s allegations were inconsistent and unfounded .

On DATE the ORG of Donetsk quashed the decision of DATE and ordered further inquiry . The court specified , inter alia , that the authorities had failed to make a proper assessment of the testimonies of Ms C. , who had seen the applicant on his arrival at the police station on CARDINAL DATE , bearing no noticeable signs of beating , and to the usher of the police station and Mr L. , who had talked with the applicant DATE when he was released .

On DATE ORG refused to open criminal proceedings against the police officers , finding that the applicant ’s allegations about ill - treatment at the police station had been inconsistent and that the injuries complained of could have been sustained at the scene of crime .

On DATE ORG quashed the decision of DATE and remitted the case for further inquiry into the circumstances in which the applicant received his injuries .

On DATE ORG Office further questioned Mr PERSON and Mr M. , who explained in detail , as far as they could remember , how they had arrested the applicant on DATE and the injuries they might have inflicted on him . They admitted that when catching the applicant they had knocked him to the ground , inflicted several blows to restrain him and then handcuffed him .

On DATE the forensic medical expert issued a supplementary report , in which he concluded on the basis of the additional material that the bodily injuries referred to could have been inflicted on the applicant by Mr PERSON and Mr M. on DATE in the course of his detention at the scene of crime . He stated , in particular , that the bruises on the body as well as the concussion could have been received by the applicant when he was knocked to the ground and restrained by the officers ; the abrasion of the wrist joint could have been caused by his being handcuffed .

On DATE ORG refused to institute criminal proceedings against the police officers , stating in particular that the bodily injuries could have been caused to the applicant by Mr PERSON and Mr M. when catching him at the scene of crime but not at the police station .

On DATE the prosecutor of ORG quashed the decision of DATE , finding that the inquiry had been flawed , and remitted the case for further examination . He stated , inter alia , that the investigatory authorities had failed to question all the witnesses who saw the applicant on DATE . He further ordered that the relevant room of the police station be inspected with the participation of the applicant and a medical expert be appointed , who would be able to carry out an additional medical examination and clarify thereby the way the applicant received his bodily injuries .

On DATE ORG instituted criminal proceedings against the police officers for exceeding their powers combined with the ill - treatment of the applicant . It admitted that the inquiry into the applicant ’s complaints about ill - treatment had not been conducted thoroughly , and that the instructions given by the courts and the higher prosecutors had not been followed .

By a letter of CARDINAL DATE ORG informed the applicant that on DATE the criminal proceedings against the police officers had been closed for lack of corpus delicti in their acts .

The relevant provision of the LAW reads as follows :

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

The relevant provisions of LAW read as follows :

“ The court , prosecutor or investigator must , to the extent that it is within their power to do so , institute criminal proceedings in every case where evidence of a crime has been discovered , take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them . ”

“ Criminal proceedings shall be instituted on the following grounds :

( CARDINAL ) applications or communications from ... individuals ;

( CARDINAL ) direct detection of signs of a crime by a body of inquiry or investigation , a prosecutor or a court .

A case may be instituted only when there is sufficient evidence that a crime has been committed . ”


Violations of Art. 3;No violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in the village of GPE . According to him , he was ill - treated by police on CARDINAL occasions , in DATE and in DATE .

The applicant was suspected of theft of farm animals in his village . On DATE he was arrested by QUANTITY police officers ( GPE , ORG , GPE , GPE , GPE and GPE ) at his home . It does not appear from the submissions of the parties that the applicant had any injury on his body before his arrest or that he was injured in any way during the arrest .

According to the applicant , he was taken to the office of the village police inspector , in the ORG building , and severely beaten by police officers GPE and GPE He was punched , kicked and beaten with a wooden baton on his body and on his head until he lost consciousness . Later he was taken by car to NORP police station where he was handcuffed to a radiator . After regaining consciousness he managed to open the handcuffs and escape .

The Government contested the applicant 's account of events and submitted that after his arrest , he had been taken by car to the NORP police station . However , he jumped out of the car as it was moving and sustained injuries from the impact with the road . He later escaped from the NORP police station .

DATE the applicant went to a hospital where he was admitted for treatment . A medical report of DATE stated inter alia that :

“ [ The applicant ] has a yellowish bruise of QUANTITY around his left eye ; swelling of the base of his nose ; a scratch of QUANTITY on the left side of his nose ; a scratch of QUANTITY on his left cheek ; a wound of QUANTITY on his skull ; a bruise of QUANTITY on his back ; painful chest and ribs ; a scratch of QUANTITY on his shoulder ; paralysis of the left side of his face ; head trauma and head concussion ; perforation of the left tympanic membrane as a result of a barotrauma [ an injury caused by rapid and extreme changes in pressure ] . The injuries were inflicted by blows with blunt objects , possibly on DATE . They correspond to light corporal injuries and hospitalisation is recommended . ”

The applicant was in hiding from the police until DATE , when he was arrested ( see paragraph CARDINAL below ) .

On DATE the applicant complained to ORG about the alleged ill - treatment and annexed to his complaint a copy of the medical certificate of DATE . His complaint was forwarded to ORG ( PERSON Judeţului GPE ) .

On DATE ORG dismissed the complaint without having conducted any investigation . The applicant challenged the dismissal before ORG .

On DATE ORG ordered a re - examination of the applicant 's complaints .

On DATE ORG Office heard police officers GPE and ORG , who had been involved in the arrest of the applicant on DATE .

According to PERSON , who was one of the officers accused by the applicant of having ill - treated him , the applicant resisted arrest and jumped out of the car on the way to the NORP police station . Since nobody had beaten him up , his injuries must have been caused during his arrest or when he jumped out of the car .

According to ORG , the applicant resisted arrest and later ran away from the NORP police station . He had not seen anybody beat him up .

On DATE ORG dismissed the applicant 's complaint about ill - treatment , finding that he had resisted arrest and had attempted to run away by jumping from the car . Nobody had ill - treated him and there was no evidence to the contrary . The applicant challenged this decision before ORG .

On DATE ORG quashed the decision of DATE , finding it to be unfounded and the investigation superficial and incomplete . It ordered a second investigation during which all the police officers who had participated in the applicant 's arrest were to be heard . The applicant 's lawyer , relatives and co - detainees were also to be heard in relation to the complaints about ill - treatment , and also , if necessary , the applicant himself .

DATE a prosecutor interrogated inter alia CARDINAL of the police officers who had participated in the applicant 's arrest on DATE and the applicant 's wife . The sixth police officer , ORG , and the applicant were not interrogated .

NORP The police officers stated that after the arrest the applicant was taken first to the office of the village police inspector , in ORG building . They all declared that he had not been subjected to any form of violence , except at the time of the arrest when his hands had been tied behind his back because he had allegedly resisted arrest . Police officer ORG stated that during his detention in the ORG building , the applicant confessed to having committed a theft .

While in the ORG building , the police officers had called the GPE police station and asked for a police car to take the applicant there ; however , since no car was available they used one of their own cars .

Police officers G.A. , GPE and PERSON stated that the applicant was accompanied by CARDINAL police officers in the car : GPE , GPE and ORG , who was driving . PERSON was in the front seat and the applicant and GPE were in the back .

Police officer ORG , however , stated that the applicant was accompanied by CARDINAL police officers in the car , namely GPE , ORG , GPE and GPE

CARDINAL of the CARDINAL police officers interrogated , GPE , declared that he did not know anything about the applicant 's transportation to the NORP police station . The other QUANTITY police officers stated that the applicant had attempted to jump from the car . CARDINAL of them , G.A. and C.V. , had been told that by their colleagues .

The police officers accused of ill - treating the applicant , GPE and GPE , made almost identical declarations , according to which the applicant was in the back seat of the car with GPE At CARDINAL moment , he managed to untie his hands , which were secured with GPE 's belt , and to jump out of the car which was travelling at DATE . They had stopped the car and picked him up and noted that he was bleeding from his head . They took him to the NORP police station and left him there .

The applicant 's wife declared that nobody had beaten her husband during the arrest at their home . She had protested against the manner in which the policemen entered their house and had been kicked and punched by PERSON , notwithstanding that she was pregnant at the time . TIME , at CARDINAL TIME , her husband had called her outside . He was in a very bad state with injuries to his face . He had told her that he had been beaten up by GPE and GPE during his detention at the ORG building and had run away .

On DATE a prosecutor dismissed the applicant 's complaint about ill - treatment on the ground that he had sustained his injuries when jumping out of the car and that there was no evidence that he had been ill - treated .

On DATE between TIME the applicant together with an accomplice entered an apartment situated on the third floor ( that is second from ground level ) of an apartment building and , using force , stole money from its occupant . After the victim started shouting for help , the applicant and his accomplice attempted to run away by jumping off the balcony . The accomplice was able to escape , but the applicant was caught by the police and taken to ORG .

According to the applicant , after falling from the third floor he felt pain in his left leg and he could not therefore run away . At the police station , he had been subjected to torture . While he had confessed about the theft that led to his arrest , the police officers insisted that he also confessed to another CARDINAL thefts which he had not committed . He had been suspended on a metal bar and beaten with a baton on his legs , body and neck .

The Government contested the applicant 's account of the events and submitted that all his injuries had been sustained by his jumping from the third floor .

On DATE at TIME an ambulance was called to ORG and at TIME the applicant was hospitalised at FAC . He could not walk and he was transported on a stretcher . A medical report dated DATE stated inter alia that :

“ [ The applicant ] has a head trauma with head concussion , an injured lip , bruises and injuries on his face , chest trauma with a fracture of ribs nos . CARDINAL , DATE and DATE on the right side , fracture of the tibia of his left foot , contusion of the soft tissues on the back of his neck , contusion of the soft tissues on his knees , fracture of the second finger of his left hand ... ”

On DATE the applicant complained to ORG about his alleged ill - treatment on DATE .

The applicant 's complaint was re - directed to ORG . The latter heard police officers GPE and GPE , who had been involved in the arrest of the applicant on DATE and a neighbour of the victim of the theft committed by the applicant .

According to the police officer ORG , the applicant had jumped from the third floor and had broken his legs , hand and neck as a result .

According to the police officer GPE , the applicant had jumped from the third floor and injured his legs . No force was applied to him because he had lost consciousness at the moment of arrest .

According to the neighbour GPE , the applicant was hanging from the victim 's balcony and did not want to jump because there were people on the ground waiting for him . Then he , GPE , started hitting his hands to make him jump . Finally , the applicant jumped and was caught by the police .

On DATE ORG dismissed the applicant 's complaint about ill - treatment while finding that his injuries had been caused by his jumping from the third floor . The applicant challenged this decision before ORG .

On DATE ORG quashed the decision of DATE and ordered a second investigation during which witnesses present at the time of the applicant 's arrest were to be heard . In particular , it ordered that the witnesses be asked about the circumstances of the arrest and about the applicant 's state at that very moment . ORG also pointed to an inconsistency in the decision of DATE . It noted that while it was found that the applicant had sustained his injuries on TIME DATE , when he had jumped from the third floor , an ambulance was called for him only on DATE at TIME

DATE a prosecutor from ORG interrogated the applicant , QUANTITY police officers present at his arrest , the victim of the theft committed by the applicant , QUANTITY of the victim 's neighbours and a paramedic from the ambulance which took the applicant to the hospital on DATE .

The applicant reiterated his complaints about ill - treatment at the hands of police .

Police officer ORG stated that the applicant had jumped from the third floor and that he was brought to ORG . Later an ambulance was called and the applicant was taken to the hospital . He denied having assaulted the applicant in any way .

Officer PERSON declared that he had not been present at the applicant 's arrest ; however , he had been told by his colleagues that the applicant had jumped from the third floor and had started running away . He was caught by police officer GPE After arrest , the applicant spent TIME at FAC , where he was interrogated . Nobody had ill - treated him . In TIME he had told the police officers that he had pain in his legs and an ambulance was called .

The victim of the theft , GPE , declared inter alia that the applicant had attempted to pass from his balcony to a neighbouring balcony but that he had fallen down when the window which he was holding had broken . He had seen him lying on the ground encircled by his neighbours who would not let him run away .

The victim 's neighbour , C.J. , declared that he had seen the applicant falling from the third floor as the window broke . He had tried to run away but was stopped by the neighbours .

A similar declaration was made by another neighbour , C.E.

The paramedic declared that he had seen the applicant at TIME The applicant had told him that he had fallen from the third floor and that he had headaches and pain in his leg . He did not complain of having been beaten up and he had no visible injuries on his face or body .

The prosecutor also requested information from ORG about the exact time when the applicant was brought there . According to the custody records , the applicant was brought there only on DATE at TIME and was taken away by ambulance at TIME on DATE .

The prosecutor finally ordered a forensic investigation of the applicant 's state and particularly of the manner in which his injuries had been caused . On DATE a forensic report was completed by a specialised institution of ORG . It stated inter alia that :

“ The [ applicant 's ] injuries were inflicted by blows with blunt objects ( au fost produse prin acţiunea corpurilor contondente ) ...

All the injuries ... could have been caused as a result of DATE from the third floor , if the [ applicant 's ] body had hit hard objects . ”

On DATE a prosecutor dismissed the applicant 's complaint about ill - treatment on the ground that he had sustained his injuries when jumping from the third floor of an apartment building . The prosecutor relied mainly on the declarations of the police officers that no violence had been inflicted on the applicant during his detention and on the forensic report dated DATE , which , in his view , confirmed that the applicant 's injuries were caused by DATE .

The relevant domestic law has been set out in the ORG 's judgment GPE v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Preliminary objection dismissed (victim);Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

PERSON was born in DATE , Mr PERSON was born in DATE , Ms GPE was born in DATE and Mr PERSON was born in DATE . They live in LOC .

On DATE Mr Ichin , Mr PERSON and another individual PERSON , all of them minors , stole food supplies and kitchen appliances from a school canteen .

On DATE they were questioned by the police and confessed to the theft . They returned some of the stolen goods .

On DATE the investigator instituted criminal proceedings into the theft , after having noted that , DATE and DATE , unknown persons had broken into a school canteen and stolen food supplies and kitchen appliances .

On DATE the investigator , with the approval of ORG , lodged requests with ORG ( “ the ORG ” ) to place Mr GPE and Mr PERSON in a juvenile holding facility in accordance with LAW . The investigator noted that Mr PERSON and Mr PERSON had committed deliberate actions that could be classified as a crime under part CARDINAL of LAW , that both of them came from big families with low incomes , had contact with criminals , had poor references from school , had a tendency to take part in illegal activities and could not be influenced by their parents . The investigator noted that , in view of the above considerations , there were sufficient grounds to believe that Mr PERSON and Mr PERSON could commit socially dangerous acts ( суспільно небезпечні діяння ) again .

DATE the applicants were summoned by the investigator to appear before the court on DATE as witnesses , with their lawful representatives , for having committed socially dangerous acts foreseen by part CARDINAL of LAW .

On DATE ORG examined the requests in the presence of the applicants and the prosecutor . By CARDINAL decisions of DATE , the court ordered Mr PERSON and Mr PERSON to be placed in a juvenile holding facility . The court noted that Mr PERSON and Mr PERSON were accused of socially - dangerous acts and that criminal proceedings had been instigated against them on DATE . With regard to the reasons given in the investigator 's requests ( see paragraph CARDINAL above ) , the court concluded that there were sufficient grounds to believe that Mr PERSON and PERSON PERSON could evade the investigation and the course of justice and could continue their criminal activities . The court 's decision was final and not subject to appeal .

Mr GPE and Mr PERSON remained in the juvenile holding facility until CARDINAL DATE .

On DATE the investigator instituted criminal proceedings against Mr PERSON and Mr PERSON for stealing food supplies and kitchen appliances from the school canteen .

On DATE respectively , PERSON and PERSON wrote to the President of ORG complaining of degrading treatment of their sons by the personnel of the juvenile holding facility . In his reply of DATE the President of that court informed them that he lacked the power to instigate criminal proceedings against the personnel of the holding facility .

According to PERSON , her complaints to the prosecutor alleging degrading treatment of Mr PERSON in the juvenile holding facility were answered only by a letter from the prosecutor informing her that there were no grounds for a criminal investigation regarding the personnel of the holding facility .

According to PERSON , her complaints to the prosecutor alleging the degrading treatment of Mr PERSON in the holding facility remained unanswered .

On DATE the investigator decided that the criminal proceedings against Mr PERSON and Mr PERSON should be terminated as they were under the age of criminal liability and the case should be referred to a court for the application of compulsory educational measures .

On DATE ORG approved the decision of DATE .

On DATE ORG examined the materials concerning the application of compulsory educational measures with respect to Mr PERSON and Mr PERSON and decided to limit the punishment to a warning to both of them . There is no evidence that this decision was appealed against .

Relevant provisions of the LAW as in force at the material time provide as follows :

Article CARDINAL

Procedure for consideration of cases involving socially dangerous acts committed by persons who have not yet reached the age of criminal responsibility

“ Where an investigator establishes in a criminal case that the socially dangerous act in question was committed by a person between the age of DATE and the age of criminal responsibility , he or she shall give a reasoned decision for terminating the case and applying compulsory educational measures to the minor . The case shall then be sent to the prosecutor together with the decision .

If it has been established that a person aged DATE who has committed a socially dangerous act resembling an act punishable under LAW of GPE by DATE imprisonment requires urgent removal from society , then upon the decision of the investigator or the inquiry body , and with the consent of the prosecutor and by a reasoned decision of the court , he or she may be placed in a juvenile holding facility for a period of DATE . The participation of the defence counsel in such a measure shall be ensured from the time of the placing of the minor in the juvenile holding facility ... ”

Article CARDINAL

Procedure for the application of compulsory educational measures to a minor

“ When in the course of the criminal case examination the court finds that the young offender , who had committed a minor offence or an offence of medium severity , can be corrected , it may issue a decision , by resolution of the judge , terminating the case and imposing on the minor CARDINAL of the compulsory educational measures mentioned in LAW of GPE .

The judge or the president of the court shall , within DATE , schedule the hearing of the case transferred by the prosecutor under the procedure prescribed by Articles CARDINAL or CARDINAL of this Code if he / she agrees with the decision reached by the prosecutor or investigator . In the event of disagreement , the case shall be returned to the prosecutor with the reasoned decision .

The examination of the case mentioned in paragraph CARDINAL of this Article shall be held in public with the compulsory presence of a prosecutor and a defence counsel . In the course of examination , the minor and his / her defence counsel may argue their case and evidence substantiating or disproving the commitment of the offence by the person concerned is examined also . The court also examines other aspects of the circumstances which are essential for the purpose of making a decision as to the application of the compulsory education measures . Minutes shall be taken during the court hearing . After the court 's examination is completed , the prosecutor and then the counsel for the defence may express their opinions .

If there are sufficient grounds to consider that the person , who , by the court 's decision , is to be transferred to the special educational support institution , will take part in illegal activity , then as well as with the aim of ensuring the execution of its decision , the court can , for a temporary period of DATE , place this person in a juvenile holding facility which may transfer him or her afterwards to a special educational support institution . ”

CARDINAL.The relevant provisions of the PERSON provided as follows :

Article CARDINAL Courts

“ The courts examine cases :

concerning minors who have committed a crime ;

concerning detention of minor - offenders in a juvenile holding facility ...

Cases referred to in the first part of this article shall be examined by the specifically authorised judges ( the panel of judges ) with the participation of juvenile services , unless otherwise provided by law . ”

Article CARDINAL Juvenile holding facility

“ ... Minors aged DATE may be sent to the juvenile holding facilities for DATE where they :

have committed an offence before reaching the age of criminal responsibility for such offence if it is considered necessary to isolate them from society ( by a resolution of the body of inquiry and the investigator sanctioned by the prosecutor or by a resolution of the court ) ;

are transferred to the special institutions for minors by a decision of the court ;

are absent without official leave from the special educational support institution in which they were staying ... ”

Relevant provisions of the Regulations read as follows :

“ CARDINAL . Juvenile holding facilities ( hereinafter ORG ) are special institutions of the bodies of the ORG for minors , which are designed for temporary detention of certain categories of minors that need to be isolated .

Juvenile holding facilities ( ORG ) are created for temporary detention of minors under the age of CARDINAL ...

The main tasks of the holding facilities are :

prevention of the juvenile offenses ;

conducting preventive and educational work with them ;

identification of the causes and conditions which lead to delinquency among the teenagers ;

ensure appropriate conditions of their detention .

Preventive and education work in the holding facilities :

Preventive and education work with minors , who are held in the holding facilities , shall be conducted taking into consideration the age , degree of pedagogical neglect , social danger of the previously committed offenses and other circumstances that are important for effective preventive measures of influence .

In order to prevent juvenile delinquency , identifying and eliminating causes and conditions that contribute to it , the officials of the holding facilities :

CARDINAL.CARDINAL.CARDINAL . Shall identify the living conditions and education of minors in the family , their personal qualities , interests , reasons for absence without leave from the special educational institution , deficiencies in the activity of enterprises , institutions and educational institutions that contributed to the commission of offenses ; reasons for committing crimes , persons participating in them , those places on the list of wanted persons , as well as those who are missing ; places of selling stolen goods , the cases of involving minors in criminal and other antisocial activities .

Shall immediately notify the local departments of the ORG in GPE , GPE , GPE Region , Regional Departments and ORG of Sevastopol and the departments on transport about the identification of persons who have committed crimes or other circumstances that are important for their successful investigation .

CARDINAL.CARDINAL.CARDINAL . Shall carry out individual educational activities with minors who are held in the holding facilities , focusing on the development of positive predispositions and interests , elimination of behavioural deficiencies , involving them in education and work .

ORG . Shall inform the interested government agencies and NGOs on the causes of juvenile offences , make proposals for elimination of such causes and conditions , as well as on improving the organization of education and labour education of minors , who are held in the holding facilities . ”