David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , J.A.T. and DATE , are NORP nationals who were born in DATE and DATE respectively . The first applicant lives in GPE and the second applicant , who is the father of the first applicant , lives in GPE . They are represented before the ORG by Ms N. Mole of FAC , a non - governmental organisation based in GPE .

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

The second applicant married a NORP national ( “ the mother ” ) in DATE . In DATE the first applicant ( their only child ) was born . The second applicant separated from the mother in DATE and their divorce was finalised in DATE .

Following the separation , the second applicant and the mother established a fully - shared care arrangement . The first applicant spent equal amounts of time ( DATE per week ) with each parent and major events were celebrated jointly .

On DATE the mother applied to a ORG for permission to relocate to GPE with the first applicant . The second applicant opposed the application .

On DATE ORG asked ORG ( “ ORG ” ) to prepare a report on the question of relocation . The ORG officer filed her report on DATE .

NORP The report indicated that the motivation for the mother ’s return to GPE was disputed . The second applicant believed that the principal motivation for the mother ’s return to GPE was her desire to pursue a new relationship . He was concerned about the emotional harm that separation would cause to the first applicant . He also expressed concerns that the mother ’s plans appeared to be somewhat vague . The mother accepted that she had a new boyfriend ( “ X ” ) in GPE with whom she hoped to develop a relationship on her return . However , she claimed that she had no support network in GPE and no employment prospects . As a consequence , she was unable to fund an acceptable lifestyle for herself and the first applicant . She believed that in GPE she would have the support of her family and friends , who could also assist her in finding work .

The ORG officer noted that the first applicant would likely experience feelings of loss and bereavement were he to relocate to GPE and she suspected that he would regress severely , with the added danger of behavioural problems at home and at school . However , she believed that the good foundation he had gained from his parents should offer a reasonably good prognosis for recovery and the ability to adapt . She concluded :

“ Mrs [ T ] has set out her plans for herself and [ J ] in GPE . These are attuned to [ J ’s ] needs and appear reasonable . In my opinion , there are areas of uncertainty , i.e. settled living arrangements , her ability to earn and provide an appropriate lifestyle , especially within a privatised system , and child care arrangements ( apart from nursery ) . Mr [ T ] asserts that PERSON [ T ] is deeply committed to her relationship with [ X ] that her need to be with him will override her consideration of [ J ’s ] needs . If this is true , this raises considerable concern . Mr [ T ] does not accept that PERSON [ T ] is unable to fund herself or obtain a good home should she remain in the GPE He regards her as a resourceful and talented individual . He states that she has the ability to have frequent access to her friends and family in GPE .

Recommendation

In my opinion , [ J ] should not be removed from the jurisdiction unless there is a cogent reason for such a removal . The viability of such a move will have to be established by the ORG . ”

The relevant legal test with regard to international relocation was set out in ORG v. PERSON [ DATE ] DATE , in which ORG noted that such cases had consistently been decided upon the application of CARDINAL propositions : that the welfare of the child was of paramount consideration and that refusing the primary carer ’s reasonable proposals for relocation was likely to impact detrimentally on the welfare of her dependent children . Prior to reaching a conclusion , the court had to ask whether the mother ’s application was genuine and realistic . If it was , the court had to ask whether the father ’s proposal was motivated by a genuine concern for the child ’s well - being or by some ulterior motive . Finally , the court had to consider the impact on the mother of refusal before conducting an overriding review of the child ’s welfare . The test in ORG has been widely applied since DATE of the judgment . However , in the case of Re Y ( Leave to Remove from Jurisdiction ) [ DATE ] CARDINAL FLR CARDINAL a High Court Judge held that a case in which there was an equal shared care arrangement fell outside the ambit of ORG . He decided the case solely on the welfare checklist contained in section CARDINAL(CARDINAL ) of the DATE Act and this decision was affirmed by ORG in GPE v. ORG [ DATE ] EWCA Civ CARDINAL .

On DATE a District Judge granted the mother permission to relocate with the first applicant to GPE . The judge noted that in the present case there was no clear - cut primary carer . However , she observed that both parents had new partners and that the relationship between them had been becoming more strained . She further observed that while each parent had equal custody , the second applicant had largely left it to the mother to make important decisions , for example concerning the choice of nursery school for the first applicant . Consequently , the judge found it probable that the terms of the shared care arrangement would change in future even if the first applicant and the mother were to remain in GPE . The judge therefore distinguished the case of Re Y and gave weight to the factors in GPE .

With regard to the questions posed in ORG , the judge considered that both parents were motivated by genuine rather than improper concerns . Although the judge noted that the mother ’s plans were “ fluid ” and that there was an absence of any definite plans , she considered her application to have been researched and investigated . The judge accepted that relocation would have a huge impact on the second applicant , but stated that it was clear that the mother would be devastated if her application were to be refused , and that her distress would impact negatively on the first applicant . The judge also accepted that her distress would make it hard for her to obtain employment and improve her life .

Finally , the judge considered the first applicant ’s welfare as directed by the welfare checklist . Although she noted that the case was very finely balanced , she concluded that the balance of the first applicant ’s interests lay with relocation . In reaching this conclusion , she noted that she had considered the LAW interference with the second applicant ’s rights but considered it justified and proportionate .

With regard to contact , the judge ordered that the first applicant was to be brought to GPE at least twice per year and the mother was to make the first applicant available for contact up to a maximum of CARDINAL periods per year in GPE . Contact was to include DATE staying contact in DATE and CARDINAL nursery or school holidays either in GPE or elsewhere .

Counsel for the second applicant advised him that any appeal against this decision would have slim prospects of success . Nevertheless , the second applicant appealed to ORG of ORG . ORG could only overturn the findings of GPE if it considered them to be “ plainly wrong ” or if the judge had approached the matter in a plainly incorrect way . As ORG did not consider the findings of LOC to fall into either of these categories , it dismissed the second applicant ’s appeal in a decision dated DATE .

The mother and the first applicant moved to GPE in DATE . The second applicant submits that they currently live in a CARDINAL - room bedsit with no internet connection . As a consequence , the second applicant can only communicate with the first applicant through ORG when he visits his grandparents . The first applicant is attending a day care centre DATE a week and the mother remains unemployed .

NORP In DATE the mother brought the first applicant to GPE , where he spent DATE with the second applicant .

The principle statutory provision in cases concerning the care of children is LAW CARDINAL ( “ the DATE LAW ) . LAW sets out the welfare checklist . The welfare checklist provides that when a court determines any question with respect to the upbringing of a child , the child ’s welfare shall be its paramount consideration . In particular , the court shall have regard to the following factors :

“ ( a ) the ascertainable wishes and feelings of the child concerned ( considered in the light of his age and understanding ) ;

( b ) his physical , emotional and educational needs ;

( c ) the likely effect on him of any change in his circumstances ;

( d ) his age , sex , background and any characteristics of his which the court considers relevant ;

( e ) any harm which he has suffered or is at risk of suffering ;

( f ) how capable each of his parents , and any other person in relation to whom the court considers the question to be relevant , is of meeting his needs ;

( g ) the range of powers available to the court under LAW in the proceedings in question . ”

Section CARDINAL of the DATE Act concerns the removal of a child from the jurisdiction . It provides that where a residence order is in force with respect to a child , no person may remove him from GPE without either the written consent of every person who has parental responsibility for the child or the leave of the Court .

With regard to the question of relocation , the foundation of the current case - law is the case of NORP v. Poel [ DATE ] CARDINAL WLR CARDINAL . In that case ORG stated that :

“ When a marriage breaks up , then a situation normally arises when the child of that marriage , instead of being in the joint custody of both parents , must of necessity become one who is in the custody of a single parent . Once that position has arisen and the custody is working well , this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given . Any such interference may , as ORG has pointed out , produce considerable strains which would be unfair not only to the parent whose way of life is interfered with but also to any new marriage of that parent . In that way it might well in due course reflect on the welfare of the child . The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is CARDINAL of those things which the parent who has not been given custody may well have to bear , even though one has every sympathy with the latter on some of the results . ”

Following the adoption of the DATE LAW approach in NORP was reiterated in ORG v. ORG [ DATE ] DATE . Lord Justice PERSON stated that :

“ In summary a review of the decisions of this court over the course of DATE demonstrates that relocation cases have been consistently decided upon the application of the following CARDINAL propositions : ( a ) the welfare of the child is the paramount consideration ; and ( b ) refusing the primary carer ’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children . Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children . ”

However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent ’s rights not only under LAW but also his rights under LAW to a fair trial . To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother ’s proposals are necessarily compatible with the child ’s welfare I would suggest the following discipline as a prelude to conclusion :

( a ) Pose the question : is the mother ’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child ’s life ? Then ask is the mother ’s application realistic , by which I mean founded on practical proposals both well researched and investigated ? If the application fails either of these tests refusal will inevitably follow .

( b ) If however the application passes these tests then there must be a careful appraisal of the father ’s opposition : is it motivated by a genuine concern for the future of the child ’s welfare or is it driven by some ulterior motive ? What would be the extent of the detriment to him and his future relationship with the child were the application granted ? To what extent would that be offset by extension of the child ’s relationship with the maternal family and homeland ?

( c ) What would be the impact on the mother , either as the single parent or as a new wife , of a refusal of her realistic proposal ?

( d ) The outcome of the second and third appraisals must then be brought into an overriding review of the child ’s welfare as the paramount consideration , directed by the statutory checklist insofar as appropriate .

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well - being of the primary carer . In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor . ”

Later on in the judgment the President summed up the position as follows :

“ In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases . They are not and could not be exclusive of the other important matters which arise in the individual case to be decided . All the relevant factors need to be considered , including the points I make below , so far as they are relevant , and weighed in the balance . The points I make are obvious but in view of the arguments presented to us in this case , it may be worthwhile to repeat them .

( a ) The welfare of the child is always paramount .

( b ) There is no presumption created by section CARDINAL(CARDINAL)(b ) of LAW DATE in favour of the applicant parent .

( c ) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight .

( d ) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end .

( e ) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important .

( f ) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important .

( g ) The opportunity for continuing contact between the child and the parent left behind may be significant . ”

The test in ORG has been widely applied since DATE of the judgment . However , in the case of Re Y ( Leave to Remove from Jurisdiction ) [ DATE ] CARDINAL FLR CARDINAL a High Court Judge held that the facts of a case in which there was an equal shared care arrangement fell outside the ambit of well - settled authorities . He therefore decided the case solely on the welfare checklist contained in section CARDINAL(CARDINAL ) of the DATE Act . This decision was affirmed by ORG in GPE v. ORG [ DATE ] EWCA Civ CARDINAL , in which Lord Justice PERSON categorically stated that PERSON was based on the premise that the applicant was the primary carer and that it in no way set out the approach the court should take where there was no primary carer . In such cases the court stated that the judge should exercise his discretion to grant or refuse by applying the welfare checklist contained in section CARDINAL(CARDINAL ) of the DATE Act . Nevertheless , Lord Justice PERSON considered the test in ORG to be of continuing relevance in relocation cases . However , Lady Justice Black and Lord Justice PERSON appeared to suggest that the test in ORG was “ guidance ” rather than principles of law from which no departure was permitted . They further suggested that the welfare of the child should overbear all other considerations , however powerful or reasonable they might be .

The United Nations Convention on the Rights of the PERSON provides as follows :

DATE States Parties shall ensure that a child shall not be separated from his or her parents against their will , except when competent authorities subject to judicial review determine , in accordance with applicable law and procedures , that such separation is necessary for the best interests of the child . Such determination may be necessary in a particular case such as CARDINAL involving abuse or neglect of the child by the parents , or one where the parents are living separately and a decision must be made as to the child ’s place of residence .

NORP In any proceedings pursuant to paragraph CARDINAL of the present article , all interested parties shall be given an opportunity to participate in the proceedings and make their views known .

DATE States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis , except if it is contrary to the child ’s best interests .

A child whose parents reside in different GPE shall have the right to maintain on a regular basis , save in exceptional circumstances personal relations and direct contacts with both parents . Towards that end and in accordance with the obligation of GPE Parties under article CARDINAL , paragraph CARDINAL , GPE Parties shall respect the right of the child and his or her parents to leave any country , including their own , and to enter their own country . The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security , public order ( ordre public ) , public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention .

On DATE , CARDINAL judges and other experts from GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , including experts from ORG and ORG for Missing and LAW , met in GPE to discuss cross - border family relocation . The principles agreed on are known as LAW . LAW provides that :

NORP In all applications concerning international relocation the best interests of the child should be the paramount ( primary ) consideration . Therefore , determinations should be made without any presumptions for or against relocation .

NORP In order to identify more clearly cases in which relocation should be granted or refused , and to promote a more uniform approach internationally , the exercise of judicial discretion should be guided in particular , but not exclusively , by the following factors listed in no order of priority . The weight to be given to any CARDINAL factor will vary from case to case :

i ) the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child ’s development , except if the contact is contrary to the child ’s best interest ;

ii ) the views of the child having regard to the child ’s age and maturity ;

iii ) NORP the parties’ proposals for the practical arrangements for relocation , including accommodation , schooling and employment ;

iv ) where relevant to the determination of the outcome , the reasons for seeking or opposing the relocation ;

v ) any history of family violence or abuse , whether physical or psychological ;

vi ) the history of the family and particularly the continuity and quality of past and current care and contact arrangements ;

vii ) pre - existing custody and access determinations ;

viii ) the impact of grant or refusal on the child , in the context of his or her extended family , education and social life , and on the parties ;

ix ) the nature of the inter - parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation ;

x ) DATE whether the parties’ proposals for contact after relocation are realistic , having particular regard to the cost to the family and the burden to the child ;

xi ) the enforceability of contact provisions ordered as a condition of relocation in the ORG of destination ;

xii ) issues of mobility for family members ; and

xiii ) any other circumstances deemed to be relevant by the judge . ”


Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

On DATE the applicant 's ( now former ) husband , A. , attacked her both verbally and physically while they were in a public place . The applicant suffered a minor injury and feared for her life and safety . This led her and her children to move out of the family home and into the premises of a non - governmental organisation in PERSON .

On DATE and DATE A. repeatedly threatened the applicant , inter alia , to kill her and several other persons . Criminal proceedings were brought against him and he was remanded in custody .

On DATE a public prosecutor indicted PERSON before ORG ( “ the ORG ” ) . The indictment stated that the accused had been convicted CARDINAL times in DATE . CARDINAL of the offences had been committed in DATE and involved breaches of court or administrative orders .

In the course of the criminal proceedings , experts established that the accused suffered from a serious personality disorder . His treatment as an inpatient in a psychiatric hospital was recommended .

On DATE ORG convicted A. The court decided not to impose a prison sentence on him and held that he should undergo psychiatric treatment . At the same time , the court released him from detention on remand . A. was then transported to a hospital in PERSON . That hospital did not carry out the treatment which A. required , nor did the ORG order it to carry out such treatment . A. was released from the hospital on DATE .

After his release from hospital on DATE , PERSON verbally threatened the applicant and her lawyer . On CARDINAL and DATE , respectively , the applicant 's lawyer and the applicant herself filed criminal complaints against him . They also informed ORG ( which had convicted him on DATE ) about his behaviour and of the new criminal complaints they had filed .

On DATE visited the applicant 's lawyer again and threatened both her and her employee . On DATE he was arrested by the police and accused of a criminal offence .

On DATE ORG arranged for psychiatric treatment of A. in accordance with its decision of DATE ( see paragraph CARDINAL above ) . He was consequently transported to a hospital in GPE .

On DATE the applicant filed a complaint with ORG . She alleged a violation of LAW and CARDINAL of the LAW and of Articles CARDINAL ( § CARDINAL ) and CARDINAL ( § CARDINAL ) of LAW , in that ORG had failed to ensure that her husband be placed in a hospital for the purpose of psychiatric treatment immediately after his conviction on DATE .

ORG rejected the applicant 's complaint on DATE . In its decision it found that there had been no interference with the applicant 's rights under LAW , as interpreted by the Convention organs . As to the alleged violation of the applicant 's rights under LAW ( § CARDINAL ) and CARDINAL ( § CARDINAL ) of the LAW , the applicant should have pursued an action for the protection of her personal integrity before the ordinary courts . Reference was made to ORG decisions on cases nos . I. ÚS CARDINAL/CARDINAL and II . ÚS CARDINAL .

Article CARDINAL § CARDINAL of LAW guarantees to everyone the inviolability of his or her home and privacy .

Article CARDINAL § CARDINAL guarantees to everyone the right to protection from unjustified interference with his or her private and family life .

In a decision of DATE in case no . I. ÚS CARDINAL/CARDINAL ORG declared inadmissible a petition in which the plaintiff alleged a violation of LAW in that the public authorities had systematically requested that he should submit his higher education diploma to them . The decision stated that the plaintiff should have sought the protection of his rights under LAW by means of an action for protection of his personal integrity pursuant to LAW seq . of LAW .

In a decision of DATE in case no . II . ÚS CARDINAL/CARDINAL ORG rejected , for lack of jurisdiction , a petition in which the plaintiff had complained about a violation of his rights under LAW on the ground that the Minister of Justice had asked him to submit , as president of ORG , information about his financial situation . ORG held that the issue fell within the jurisdiction of the ordinary courts which had power to deal with it under LAW seq . of LAW .

Under LAW ( Law no . CARDINAL/CARDINAL Coll . , as applicable at the relevant time ) the president of the relevant chamber shall order the medical institution concerned to carry out the treatment of a person in accordance with the court 's decision . Where the person concerned represents a danger to his or her environment , the president of the chamber shall arrange for his or her immediate transfer to the medical institution ( paragraph CARDINAL of Article CARDINAL ) .

NORP In accordance with the practice of ORG ( R CARDINAL/CARDINAL ) the medical treatment of a person ordered by a court should , in principle , be arranged for immediately after the relevant decision has become executable .

The Civil Code reads as follows :

“ Every natural person shall have the right to protection of his or her personal integrity , in particular his or her life and health , civil and human dignity , privacy , reputation and expressions of a personal nature . ”

“ CARDINAL . Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity , an order cancelling out the effects of such interference and an award of appropriate compensation .

NORP If the satisfaction afforded under paragraph CARDINAL of this Article is insufficient , in particular because the injured party 's dignity or social standing has been considerably diminished , the injured party shall also be entitled to financial compensation for nonpecuniary damage .

When determining the amount of compensation payable under paragraph CARDINAL of this Article , the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred . ”

Act no . CARDINAL on ORG in the Context of Exercise of Public Authority ( PERSON o zodpovednosti za škodu spôsobenú pri výkone verejnej moci a zmene niektorých zákonov ) was adopted on DATE . It became operative on DATE and replaced , as from that date , LAW of DATE .

The explanatory report to Act No . DATE provides that the purpose of the LAW is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before ORG .

Section CARDINAL of the LAW provides for compensation for pecuniary damage including lost profit and , where appropriate , also for compensation for damage of a non - pecuniary nature .

For a more detailed analysis of the relevant domestic law , see also the ORG 's admissibility decision in the case of GPE v. GPE ( dec . ) , no . CARDINAL , DATE .

For a summary of relevant international material see the ORG 's judgment in PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ... , in particular ORG Recommendation Rec(CARDINAL)CARDINAL of DATE on the protection of women against violence .


STEPHENS v. CYPRUS, TURKEY AND THE UNITED NATIONS

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

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

The applicant owns a house which is located in the buffer zone , at CARDINAL FAC , in the NORP GPE district in GPE . The property was transferred to the applicant on DATE by way of a donation .

From DATE until DATE an exchange of correspondence concerning the above property took place mainly between the applicant 's husband , Mr PERSON , acting on behalf of the applicant , ORG in GPE ( ORG ) and ORG in GPE ( ORG ) . In particular , the following letters were exchanged :

By a letter dated DATE Mr PERSON submitted claim forms to the LOC in respect of losses from the property .

In a letter dated CARDINAL DATE the ORG informed Mr PERSON that the property appeared to be in ORG ( ORG ) buffer zone . They asked PERSON whether he had any information as to who might have been responsible for the loss of movables from the house , and in particular , whether it could have been ORG or ORG .

By a letter dated DATE the ORG forwarded the claim forms to the “ ORG ” of the “ GPE ” ( “ GPE ” ) .

In a letter to PERSON dated CARDINAL DATE the ORG confirmed that the property was within the ORG buffer zone , that it was inaccessible and that it would not be possible to reside in the house . They further informed Mr PERSON that the “ NORP ” had rejected his claim . In this connection they noted that :

“ ' NORP - Cypriot ' rejection of claims from people with NORP , NORP or NORP origins is not a situation in which we acquiesce and we are in regular contact with the NORP - Cypriot authorities concerning properties owned by NORP nationals in the northern part of GPE , including those with NORP , NORP or NORP connections . ”

In his reply dated CARDINAL DATE Mr PERSON asked the ORG whether a claim should be made against ORG . He stated , inter alia , that ORG had had a defence post in the garden of the house and had bunked down in the garage .

In a letter dated DATE the ORG suggested that the applicant and her husband seek the advice of a lawyer in GPE should they decide to make a claim against ORG . They further noted the following :

“ To the best of our knowledge there have been no successful claims for loss or damage to movable property allegedly resulting from ORG or ORG action , ' legal proof ' being difficult to produce . ”

In a letter dated DATE the ORG requested PERSON to provide them , inter alia , with more information about the property and the history of its ownership in order to establish the status of the house and see what could be done . They also informed him that they had made an application to the relevant authorities to allow him to inspect the property .

In a letter dated DATE to the LOC concerning the applicant 's property , Lieutenant Colonel PERSON , the Chief Humanitarian Officer of ORG of ORG in GPE , stated the following :

“ I regret to inform you that compensation of any kind will not be paid by ORG . Moreover , it is not feasible to authorise the return of the property for Mr PERSON to reside in , owing to the security implications and the severe damage to the property . ”

In a letter to Mr PERSON dated DATE , ORG stated the following :

“ I have read the file on your case . I have also spoken to the Office Manager of the Humanitarian Branch of ORG in GPE who are in command of LOC . His opinion is much the same as that of Lt Col J Tisi Bana in DATE . He corrected your assumption that you would be able to sell the property to a NORP . He said it would be impossible to sell to a NORP - Cypriot as there is no access from the north boundary of LOC .

If you are in possession of the Title Deeds you would be able to sell your property . As the property was dilapidated when visited by PERSON and PERSON in DATE it will have DATE wear without repairs . There is little chance of access to the property for habitation . ”

On an unknown date Mr PERSON wrote to the Office Manager of ORG of ORG .

In a letter dated DATE the ORG informed Mr PERSON that Major PERSON from ORG of ORG had informed them that if PERSON required assistance in showing the property to a prospective buyer the ORG would be able to accompany him provided that he applied for permission and that all the legalities were met . The new purchaser , however , would not be able to have access to the property .

In an e - mail sent by ORG of the LOC to Mr PERSON on DATE the following was stated :

“ I have written DATE to ORG at ORG to request an update on the condition of your wife 's property and I will contact you in due course with the information . I have also asked them to confirm whether access to the property is still denied . Should this be the case you may like to consider contacting either a lawyer in GPE or ORG to discover if you could claim for compensation for the loss of use of the property ... ”

Subsequently , by an e - mail sent on DATE , the Property Officer informed PERSON as follows ;

“ Further to my e - mail of DATE , I can confirm that permanent access to your property is still not permitted but short visits by members of the ORG forces are allowed periodically . Under ORG escort , I visited your wife 's property on DATE . As you are aware , unfortunately the house was severely damaged during the events of DATE and DATE have seen further deterioration in the condition of the property . It is little more than a shell with rampant vegetation obscuring the garden and parts of the building . All the houses in the immediate vicinity appear to have suffered the same fate . Sadly , there does not seem to be much action that you could take until there is a solution to the GPE problem . However , you may like to obtain some legal advice on your wife 's position and I can send you a list of lawyers upon request . You may also want to contact ORG to discover if it would be feasible to lodge a claim with them ... ” .

ORG was established through ORG ( ORG ) Resolution CARDINAL ( DATE ) of CARDINAL DATE to prevent a recurrence of fighting between the NORP - Cypriot and NORP - Cypriot communities and , as necessary , to contribute to the maintenance and restoration of law and order and a return to normal conditions . The ORG reads , in so far as relevant , as follows :

“ Noting that the present situation with regard to GPE is likely to threaten international peace and security and may further deteriorate unless additional measures are promptly taken to maintain peace and to seek out a durable solution ,

Having in mind the relevant provisions of the LAW of ORG and , in particular , its LAW , ...

Recommends the creation , with the consent of the Government of GPE , of ORG in GPE . The composition and the size of the ORG shall be established by the Secretary - General , in consultation with ORG , GPE , GPE and GPE and GPE . The Commander of the ORG shall be appointed by the Secretary - General and report to him . The Secretary - General , who shall keep the Government providing the ORG fully informed , shall report periodically to ORG on its operation ;

Recommends that the function of the ORG should be , in the interest of preserving international peace and security , to use its best efforts to prevent a recurrence of fighting and , as necessary , to contribute to the maintenance and restoration of law and order and a return to normal conditions ;

Recommends that the stationing of the ORG shall be for DATE ... ”

In his report of CARDINAL DATE the Secretary - General summarised the guiding principles of ORG , which remain in effect to DATE , as follows :

“ The ORG is under the exclusive control and command of ORG at all times . The Commander of the ORG is appointed by and responsible exclusively to the Secretary - General . The contingents comprising the ORG are integral parts of it and take their orders exclusively from the ORG Commander . The ORG undertakes no functions which are not consistent with the provisions of ORG resolution of CARDINAL DATE . The troops of the ORG carry arms which , however , are to be employed only for self - defense , should this become necessary in the discharge of its function , in the interest of preserving international peace and security , of seeking to prevent a recurrence of fighting , and contributing to the maintenance and restoration of law and order and a return to normal conditions . The personnel of the ORG must act with restraint and with complete impartiality towards the members of the NORP and NORP communities .

As regards the principle of self - defense , it is explained that the expression of self - defense includes the defense of ORG posts , LOC and vehicles under armed attack , as well as the support of other personnel of ORG under armed attack . When acting in self - defense , the principle of minimum force shall always be applied and armed force will be used only when all peaceful means of persuasion have failed . The decision as to when force may be used in these circumstances rests with the Commander on the spot . Examples in which troops may be authorized to use force include attempts by force to compel them to withdraw from a position which they occupy under orders from their commanders , attempts by force to disarm them , and attempts by force to prevent them from carrying out their responsibilities as ordered by their commanders . ”

ORG became operational on DATE .

Following the NORP invasion of DATE , the UNSC adopted a number of resolutions expanding the mandate of ORG to include , inter alia , supervising a de facto ceasefire which came into effect on DATE and maintaining a buffer zone ( between the ceasefire lines of ORG and of the NORP and NORP - Cypriot forces ) .

In DATE ORG reached an agreement with both sides , “ the Agreement on Unmanning of Positions in Sensitive Areas ” , whereby they unmanned their positions and ceased their patrols in certain sensitive locations .

In the absence of a political settlement , the mandate of ORG has been periodically extended by the ORG for periods of DATE .

ORG maintains the military status quo in the buffer zone area . It keeps constant surveillance over the buffer zone through a system of observation posts , and through air , vehicle and foot patrols .

Certain parts of the buffer zone are farmed or inhabited . There are several villages or special areas called ORG within the buffer zone where CARDINAL people live and/or work . NORP may enter these areas freely . Elsewhere in the buffer zone , civilian movement or activity require specific authorisation from the ORG .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Egbert Myjer;Luis López Guerra;Mihai Poalelungi

The details as to the subject matter of the cases , reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto .


The applicant is a NORP national born in DATE . He is represented before the ORG by Mr PERSON , PERSON .

The applicant met M , a NORP citizen , in GPE in DATE . In DATE their first daughter was born in GPE . The applicant went to GPE in DATE and married M. As he had been sentenced to CARDINAL years’ imprisonment and expulsion by a NORP court in DATE , his application for a residence permit in GPE was refused , however . He was expelled in DATE . M and the daughter followed the applicant to GPE but returned to GPE DATE . Later , the applicant was granted a visa to enter GPE . He arrived in DATE . As he was unable to find employment in GPE , the family decided to move to GPE . M was later granted a permanent residence permit in that country .

The family arrived in GPE in DATE . After the applicant had been refused a residence permit , he returned to GPE on DATE and applied anew for a residence permit . M and the daughter joined him in GPE for DATE in DATE . In DATE the applicant was granted a permit to reside in GPE for DATE , and so the family returned to GPE . The applicant ’s permit was renewed for DATE at a time until he was granted a permanent residence permit in DATE . In DATE the applicant ’s and M ’s son was born . In DATE they had a second daughter .

The applicant had started using hash and in DATE he sought treatment for his drug problems . In DATE the applicant and M were detained on remand , suspected of narcotics offences . On DATE ORG ( tingsrätten ) of GPE convicted the couple - and a few co - accused - of the offences and sentenced them to imprisonment , the applicant for DATE and M for DATE . Upon appeal , ORG ( PERSON hovrätt ) acquitted the applicant of some of the charges . However , by a judgment of CARDINAL DATE he was found guilty of an aggravated narcotics offence involving QUANTITY of heroin and of smuggling of goods . He was sentenced to DATE in prison . In addition , the court ordered his expulsion from GPE in accordance with LAW , LAW ( Utlänningslagen , CARDINAL ) and issued a prohibition on his return . Having regard to his family connections to GPE , this prohibition was limited to DATE , i.e. until DATE . M ’s involvement in the offence was considered to be less serious , and her sentence was accordingly reduced to CARDINAL months’ imprisonment . ORG later refused leave to appeal against ORG judgment .

In DATE the applicant requested the Government to exercise its power under LAW , LAW of LAW to annul the expulsion order . By a decision of DATE the ORG rejected the request .

On DATE the applicant was released on probation and expelled to GPE . Upon arrival he was allegedly arrested and detained for DATE . M and the CARDINAL children visited the applicant in GPE DATE and DATE .

On DATE the ORG rejected a further request for an annulment of the expulsion order .


The applicant was born in DATE and lives in GPE . He is a former manager of ORG ” ( the “ Company ” ; CARDINAL підприємство « Виробниче об'єднання « PERSON ) .

In DATE the applicant was convicted and sentenced for embezzlement of the Company funds and his conviction became final . Since then the applicant has unsuccessfully attempted to have the proceedings re - opened and the conviction repealed .

In DATE the Poltava Regional Prosecutors ' ORG , acting on behalf of the ORG , brought a civil claim against the applicant for compensation of damage caused by his offence .

The hearings began in DATE . Until DATE the court scheduled some CARDINAL hearings with intervals ranging from DATE to DATE . CARDINAL hearings were adjourned on account of the applicant 's absences or requests and QUANTITY hearings on account of the absence of both parties . According to the applicant , most of his absences were attributable to defective notifications about the date of a hearing . The Government did not comment on this issue .

On DATE ORG allowed the claim and awarded the Company CARDINAL hryvnyas against the applicant . The applicant appealed .

On DATE ORG returned the applicant 's appeal as “ not lodged ” on account of his failure to pay the court fee . The applicant appealed , seeking to be exempted from the payment .

On DATE the local municipal council exempted the applicant from paying the court fee and on DATE ORG declared his appeal admissible .

On DATE ORG quashed the judgment of CARDINAL DATE .

DATE and DATE ORG scheduled CARDINAL hearings ( in DATE ) . CARDINAL hearing was adjourned on account of the judge 's sickness and CARDINAL other hearings on account of the parties ' failure to appear .

On DATE ORG left the claim without consideration due to the parties ' second failure to appear for the hearings . This decision was not appealed against within the statutory time - limit and became final .

On DATE the ORG applied to ORG for leave to appeal out of time against the decision of CARDINAL DATE maintaining , that it had not been informed of this decision within the time - limit for lodging an appeal . The application was granted on CARDINAL DATE .

On DATE ORG allowed the appeal and re - opened the proceedings , having found that the parties had not appeared as ORG had not duly notified them about the dates of the hearings . The applicant lodged a cassation appeal against the decision to re - open the proceedings .

On DATE ORG rejected the applicant 's cassation appeal .

DATE and DATE ORG scheduled CARDINAL hearings ( one in DATE and CARDINAL in DATE ) .

In DATE the plaintiff dropped the claims and on DATE the proceedings were terminated .


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

The respondent Government were represented by their Agent , Ms M. Karadjova , of ORG .

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

On DATE the applicant entered into an employment agreement with a private insurance company ( “ the defendant ” ) under which she was appointed to the position of chief accountant of its branch office in the town of ORG .

On DATE the executive director of the company issued an order for terminating the applicant ’s employment agreement on the grounds that she did not meet the requirements for the position . The order was not immediately served on the applicant .

Despite the fact that the applicant was on sick leave between DATE and DATE , the order for terminating her employment agreement was served on her on DATE and , thus , her employment was terminated .

On DATE the applicant initiated an action against the defendant for unlawful dismissal and argued , inter alia , that she satisfied the requirements for the position and that her employment agreement could not have been terminated while she was on sick leave . She sought both reinstatement to her previous position and damages .

ORG conducted CARDINAL hearings between DATE and DATE during which time it obtained an expert ’s opinion in respect of the damages suffered by the applicant . At the hearings of CARDINAL DATE and DATE the defendant objected to the court ’s jurisdiction in the case . The first objection was rejected , but the second was upheld after the defendant presented evidence that its ORG branch office had in the meantime been closed on CARDINAL DATE . ORG found that the court at the seat of the defendant had jurisdiction following the said closure of the branch office and transferred the case to GPE .

In a decision of DATE GPE , in camera , found that it did not have jurisdiction in the case and forwarded the case file to ORG to make a final determination on the matter .

In a decision of DATE ORG , in camera , ruled that GPE had jurisdiction in the case and transferred the case file back to it . The parties to the proceedings were informed of the decision on DATE . The case was then transferred to GPE which received it on DATE .

The GPE ORG conducted CARDINAL hearings on DATE and CARDINAL DATE , the first of which was postponed due to the improper summoning of the applicant .

In a judgment of DATE the ORG found partially in favour of the applicant and declared her dismissal unlawful , but dismissed her claims for reinstatement and damages . The defendant and the applicant appealed against the judgment on DATE , respectively .

On DATE the defendant was instructed to deposit the corresponding court fees for its appeal , which it did on DATE . Its appeal and that of the applicant were then registered with ORG on DATE .

The first hearing of the parties’ appeals was scheduled for DATE , but ORG postponed it for unspecified reasons to DATE . At the hearing of that date , the court instructed the applicant to present the original of her work booklet so as to verify the accuracy of the certified photocopies presented to the court in respect of her subsequent employment and adjourned the hearing . The next hearing was conducted on DATE , when the case was declared ready for decision .

In a judgment of DATE the ORG quashed part of the first - instance court judgment in the case and instead reinstated the applicant to her former position and awarded her damages . The court ’s finding in favour of the applicant was based on the fact that she had been dismissed while she was on sick leave , which negated the need to examine in substance the grounds of her dismissal and whether she in fact met the requirements for the position . Neither party appealed against the judgment , so it entered into force on DATE , at the latest .


The applicant was born in DATE and lives in PERSON .

On CARDINAL DATE he lodged a claim with ORG of PERSON ( “ the ORG ” ) against ORG seeking damages for injuries caused to him by its employee Mr O.

From DATE to CARDINAL DATE and from DATE to CARDINAL DATE the proceedings were suspended pending the outcome of criminal proceedings against Mr O.

Following CARDINAL remittals of the case for fresh examination , on DATE ORG partly allowed the applicant ’s claim and awarded him certain amounts in damages .

On DATE and DATE respectively the ORG of Appeal and ORG ( the latter court acting as a court of cassation ) upheld the above judgment . The decision of DATE was served on the applicant on DATE .

According to the ORG , in the course of the proceedings the applicant CARDINAL times amended his claim . The courts adjourned QUANTITY hearings following the applicant ’s requests or due to his and other parties’ failure to attend them . The applicant disagreed stating that he had not been informed of the hearings which he had not attended . CARDINAL hearings were further adjourned following other parties’ requests , their failure to appear or for unspecified reasons .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi

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

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

On DATE the applicant was arrested on the charge of , inter alia , money laundering and attempted value added tax fraud .

On DATE the decision on presenting charges against the applicant was served on him and he was heard as a suspect . An interrogation report was prepared . On DATE the grounds for the decision were given . The prosecutor listed documents and other evidence , which supported the charges brought against the applicant . They were served on the applicant and his defence counsel on CARDINAL and DATE respectively .

On DATE the ORG held a hearing during which the applicant was questioned and a detention order was issued against him . In addition to such factors as the strong likelihood that the applicant had committed the offences he was charged with and the severity of the anticipated penalty , the court underlined that there were significant discrepancies in testimonies given by the applicant and CARDINAL other suspects . These differences were found in particular in those on the manner in which the company ’s transactions had been carried out . The court stressed that the detention of all co - accused was necessary to prevent them agreeing on CARDINAL version of the events , which could have impeded the investigation .

On DATE the applicant ’s defence counsel appealed . He challenged conclusions reached by the court and prosecutor and submitted several documents supporting the applicant ’s plea of innocence .

On DATE dates the applicant was again summoned to testify , inter alia , on DATE , DATE , CARDINAL and DATE and DATE . He refused however to answer any of the prosecutor ’s questions .

On DATE the ORG held a hearing concerning the applicant ’s detention during judicial proceedings , at which his defence counsel was present . The court upheld the detention order of DATE .

The applicant ’s detention was subsequently extended by orders of , inter alia , DATE and CARDINAL DATE , each time after a hearing at which the applicant ’s defence counsel was present . In the ORG reasoned grounds the courts referred to the strong probability that the applicant had committed the offences and to a risk of a severe sentence being imposed on him , in particular in view of the serious financial damage caused by the offences concerned . The courts further stressed contradictions in the testimonies of co - suspects .

The applicant ’s lawyer tried to challenge the applicant ’s detention by using different legal avenues . He lodged appeals against the detention orders on , inter alia , DATE and CARDINAL DATE . In addition , on DATE he lodged a request for release from detention . All his applications were unsuccessful . He also requested the application of another preventive measure in place of detention ( on DATE , DATE , CARDINAL DATE , and DATE ) . His requests were all refused .

On DATE , the applicant ’s lawyer allegedly requested the ORG to give him access to the case file . He further requested a copy of the report of the applicant ’s and CARDINAL other PERSON interrogations . The ORG submitted that such requests had never been lodged with the prosecutor ’s office . The applicant failed to submit any evidence thereof ; neither had he submitted observations in this respect .

On DATE the applicant ’s defence counsel ( by a letter dated DATE ) lodged requests for access to the case file and the copy of the record of interviews with the applicant . He further alleged that his request of DATE had never been examined and he had been denied contact with his client .

On DATE the ORG denied that the request for access to the case file of DATE had ever been lodged and called the defence counsel to provide the relevant copy . Further , he failed to answer requests dated DATE , since the prosecutor examined only the defence counsel ’s complaints that his previous request had not been replied to and that his contacts with his client had been impeded . Counsel was served with replies to his requests on CARDINAL and DATE respectively ( see below ) .

On DATE the ORG refused counsel ’s request of DATE for access to the case file , without referring to his other request for a copy of the interrogation report ( the prosecutor replied to the latter on DATE see below ) . He justified his decision by reference to the “ important interests of the investigation ” and referred to the need to carry out certain actions at the current stage of the proceedings , which made it impossible to grant the request .

On DATE the applicant ’s lawyer lodged an appeal dated DATE against the decision of DATE , arguing , inter alia , that the legal provision under which the authorities in charge of investigation authorised access to the case file , namely LAW , should not be interpreted in a way which allows for refusal of access to the case file , in particular with temporal restrictions .

On DATE the appeal was dismissed by ORG . He emphasised the need to secure the important interests of the investigation , in view of its “ character ” and “ the links between the suspects ” .

On DATE the counsel was informed by ORG , in reply to his request of DATE , that his request for a copy of the record of interview could not be satisfied as the case file had been transferred to the appellate court , together with the appeal . He was also informed that a requested copy would be sent to him as soon as the case file was returned by the court .

On DATE the applicant ’s defence counsel repeated his request for access to the case file and the copy of the applicant ’s record of interview . He relied on LAW CARDINAL § CARDINAL of the Code of Criminal Proceedings .

On DATE the ORG informed the defence counsel that his requests could not be examined as the case file had been transferred to ORG .

On DATE ORG having examined the counsel ’s request for access to the case file , dismissed it , relying on LAW . The decision was justified by reference to the “ important interests of the investigation ” . It was further stressed that since evidence proceedings were still pending it was not possible to grant the request .

On DATE the applicant ’s defence counsel appealed , arguing that he had been requesting access to the case file for a long time and it was indispensible for the defence rights of the applicant .

On DATE ORG dismissed the appeal on the ground that if the suspects were given access to the case file the proper conduct of the investigation could be influenced , especially since the collection of the evidence had not been completed .

On DATE ORG supplemented the charges against the applicant : he was also charged with acting in an organised criminal group .

On DATE the applicant ’s defence counsel was acquainted with the case file .

On DATE certified copies of the applicant ’s record of interview were sent to his defence counsel .

On DATE the investigation was closed .

On DATE ORG lodged a bill of indictment numbering CARDINAL pages with the LOC . The applicant was charged on CARDINAL counts , inter alia , money laundering , including participation in an organised criminal group . The bill listed CARDINAL witnesses to be summoned and CARDINAL pieces of documentary evidence collected in the investigation .

On DATE a hearing was held by the ORG in respect of the prosecutor ’s request for a further extension of the applicant ’s detention . In response , the applicant ’s defence counsel requested a decision on bail . He proposed to make a deposit of MONEY ( ORG ) . The court decided that the applicant could be released if he put up bail of ORG MONEY by DATE .

On DATE the ORG ordered the release of the applicant from detention and the application of another preventive measure in its place ( bail ) . The court considered , inter alia , that there was no longer a risk that the applicant would tamper with evidence .

The proceedings are currently pending before ORG .

Access to the file in the course of investigation is governed by Article CARDINAL § CARDINAL of LAW , which provides , in so far as relevant , that leave to consult the file and to make copies of the documents in the file is granted only with the consent of the authority conducting the investigation .


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

Mr PERSON , a NORP national residing at ORG ) , is a lawyer who currently practises at FAC .

On DATE he was elected provincial counsellor and thereupon tendered his resignation from the post of substitute district judge ( juge de paix suppléant ) which he had held since DATE , but which under LAW was incompatible with his new elected office .

On DATE he had appeared before ORG charged with forgery and using forged documents , the latter court having jurisdiction by virtue of the privileges which he enjoyed in this respect as a judicial officer . On DATE it imposed on him a suspended sentence of CARDINAL months’ imprisonment and fined him MONEY .

The applicant appealed to ORG on points of law . He argued that in its judgment convicting him ORG had failed to give an adequate statement of its reasons and to attach sufficient weight to the records of the investigating judge ’s examinations ; he contended further that the judgment had been delivered following a violation of the rights of the defence . In accordance with usual practice , the procureur général ’s department of ORG did not submit a memorial in reply .

On DATE ORG allowed the appeal and quashed the contested decision on the ground that an adequate statement of the reasons on which it was based had not been given . Previously , at the hearing , it had heard the report of the judge rapporteur , PERSON d’Haenens , and the concurring submissions ( conclusions ) of PERSON , the avocat général ( a member of the procureur général ’s department ) . The latter had also attended the deliberations in accordance with LAW ( see paragraph CARDINAL below ) .

ORG , to which the case had been remitted , convicted the applicant on DATE and imposed on him identical sanctions to those resulting from the earlier decision ( see paragraph CARDINAL above ) . PERSON again appealed to ORG ; he complained inter alia that the judgment in question had failed to state sufficient reasons and had misinterpreted the provisions of criminal law concerning forged documents and statutory limitation .

His appeal was dismissed on DATE , following a hearing at which the ORG heard the report of the judge rapporteur , PERSON d’Haenens , and the concurring submissions of PERSON , the avocat général , who had again participated in the deliberations ( see paragraph CARDINAL below ) .

According to LAW :

" The procureur général at ORG shall not act as prosecuting authority except where he has instituted proceedings in which the decision on the merits falls to ORG . "

This provision replaced LAW DATE , which was in issue in the GPE case ( already cited , see paragraph CARDINAL above ) and which was worded as follows :

" Even in criminal proceedings , the procureur général at the court can not be regarded as a party ; his role is only to make submissions ( conclusions ) , except where he has himself appealed . In the latter event , he shall put the prosecution case ( réquisitoire ) in pleadings which , filed with the registry , shall be forwarded without further formalities to the rapporteur appointed by the First President and then distributed with the report to the members of the procureur général ’s department . "

It is true that where ORG hears a case on its merits , the procureur général ’s department assumes the role of a party , but these instances are quite rare . They include the trial of ministers ( LAW ) , civil proceedings brought against a judge in his official capacity ( la prise à partie ) ( LAW , and Articles CARDINAL of the Judicial Code ) and disciplinary proceedings against certain judicial officers ( Articles CARDINAL , CARDINAL and CARDINAL of the same Code ) .

Apart from these exceptional circumstances , the procureur général ’s department at ORG carries out , with full independence , the duties of adviser to ORG . In this capacity , it is by no means unusual for it to express the opinion that the court should dismiss an appeal lodged by the prosecuting authorities of the lower court or should allow an appeal by an accused ; indeed it may even raise an argument against the conviction or sentence of its own motion .

On the procedure to be followed in ORG , whether for civil or criminal proceedings , the Judicial Code provides as follows :

" After the report has been read out , submissions are taken from the lawyers present at the hearing . Their pleadings shall relate exclusively to the issues of law raised in the grounds for appeal or to the pleas in bar put forward against the appeal .

The procureur général ’s department shall then make its submissions , whereafter no further documents shall be accepted . "

" The procureur général or a member of his department shall be entitled to attend the deliberations unless the appeal on a point of law has been lodged by the procureur général ’s department itself ; he shall not be entitled to vote in the deliberations . "

The procureur général ’s department may file an appeal on a point of law either " in the interests of the law " ( Articles CARDINAL and CARDINAL of the Judicial Code and LAW ) or following a complaint by the Minister of ORG ( Article CARDINAL of the Judicial Code and Article CARDINAL of the Code of Criminal Procedure ) .

The rule which , in such cases , requires the exclusion from the ORG ’s deliberations of the procureur général or his representative already applied under LAW of DATE ( see paragraph CARDINAL above ) , but it was not expressly laid down therein ( see the transcript of the hearing of DATE in the GPE case , Series B , no . CARDINAL , p. CARDINAL ) . It merely provided , in DATE :

" In cassation proceedings the procureur général or a member of his department shall have the right to be present , without voting , when the court retires to consider its decision . "

Under LAW the disciplinary hierarchy applying to the officials of the ministère public is as follows :

" The Minister of ORG shall exercise supervisory authority over all the officials of the ministère public , the procureur général at ORG over his counterparts at ORG and the latter over public prosecutors and their departments in their courts and the lower courts as well as over ORG counsel in ORG , the crown prosecutors and the ORG counsel in the industrial tribunals and their substitutes . "

The above provision replaced section CARDINAL of ORG , referred to in the GPE judgment ( cited above , Series A no . CARDINAL , p. CARDINAL , para . CARDINAL ) .

Article CARDINAL of the Judicial Code states as follows :

" The procureur général at ORG may impose on the subordinate officials of the ministère public the sanctions of a warning , a reprimand or a reprimand with suspension of salary .

The procureur général at ORG shall have the same powers in regard to persons holding the office of avocat général at that court and those holding the office of procureur général at ORG .

The Minister of ORG may likewise warn and reprimand all the officials of the ministère public or recommend to the King their suspension or their revocation . "

On the question of disciplinary proceedings against judges and the role in this matter of the procureur général at ORG , the following provisions of LAW may be cited :

" Only ORG may hear disciplinary proceedings to remove a judge from office . "

" Substitute judges " - such as Mr PERSON from DATE ( see paragraph CARDINAL above ) - " are , in that capacity , subject to the same disciplinary authorities as full judges . "

" [ ... ] disciplinary proceedings [ ... ] against judges [ ... ] shall be instituted by the competent authority of its own motion ; if their object is the issue of a warning , they shall be instituted by the authority empowered to order such a measure ; in other cases , they shall be instituted by the first president of the competent court . Disciplinary proceedings may always be instituted at the instance of officers of the ministère public . "


Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);No violation of Art. 5-3;Not necessary to examine Art. 6-2;Remainder inadmissible

Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant , Mr PERSON , was born in DATE in GPE . At the time of lodging his application , he was detained in GPE . He is currently living in GPE .

On DATE ORG issued an arrest warrant in respect of the applicant on the ground that he was strongly suspected of having murdered PERSON

On DATE ORG issued a further arrest warrant in respect of the applicant and CARDINAL other suspects , born in GPE , GPE or GPE . The court accused the applicant of having prepared , with others , a bomb attack at the “ FAC ” discotheque in GPE on DATE in order to kill as many members of the NORP armed forces as possible . During this terrorist attack , CARDINAL people had been killed and ORG seriously injured .

On DATE the applicant was arrested by the police in GPE and was subsequently taken into detention with a view to extradition .

On DATE a NORP court acquitted the applicant of PERSON ’s murder but convicted him of forgery and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE the applicant was extradited to GPE and subsequently held in detention on remand on account of the arrest warrant issued in DATE .

On DATE ORG ordered the applicant ’s continued detention on remand . It held that the reasonable suspicion that the applicant had committed the offences with which he had been charged resulted , among other things , from the confession of one of the other suspects . The danger of his absconding still persisted because the applicant had been extradited to GPE only in DATE and had neither a fixed dwelling nor social ties in GPE which would prevent him from absconding if released . The court moreover referred to the lifelong prison sentence the applicant faced and underlined that more lenient preventive measures would not be suitable . Lastly , there had been no breach of the obligation to proceed speedily ( PERSON ) .

On DATE the public prosecutor filed the bill of indictment . On DATE ORG opened the main proceedings against the applicant and CARDINAL other accused . DATE ORG repeatedly ordered the applicant ’s continued detention on remand .

On DATE ORG rejected a request by the applicant for release . It held that there was still a danger of his absconding . Furthermore , the reasonable suspicion that the applicant had committed the offences with which he had been charged persisted . The applicant ’s continued detention was also proportionate having regard to the serious nature of those offences , the prospective sentence , the importance of the case and the particular public interest in the prosecution of these offences . Furthermore , there had been no breach of the obligation to proceed speedily .

On DATE ORG upheld that decision . Concerning the suspicions as regards the applicant , the court pointed out that it was bound by the assessment of ORG . Furthermore , the danger of the applicant ’s absconding persisted in view of the lifelong prison sentence he faced . The objective of his detention on remand could accordingly not be accomplished by alternative , less radical , preventive measures . Although the applicant had been detained since as far back as DATE , his further detention remained proportionate having regard to the importance of the case , the character and seriousness of the offences and the particular public interest in the prosecution of these offences . Referring to the principle of proportionality , the court underlined that a detainee ’s right to liberty could outweigh the public interest in the prosecution as time passed , if there was , for instance , an imminent risk of irreparable damage to his health . In the present case , however , nothing suggested that the applicant ’s life or health were at risk . Moreover , given that ORG had continuously held CARDINAL hearings per week since DATE , the length of the proceedings could not be considered disproportionate .

On DATE ORG refused to admit a complaint by the applicant , without giving any reasons . Its decision was served on the applicant ’s lawyer on DATE .

On DATE ORG convicted the applicant on CARDINAL counts of aiding and abetting murder , on ORG counts of aiding and abetting attempted murder , and of aiding and abetting causing an explosion ( PERSON ) . The court alluded to the historical background of the case , in particular to the tensions between GPE and GPE which had arisen following terrorist attacks in DATE . In DATE the GPE government had imposed a trade embargo on GPE and had ordered the freezing of all NORP State assets in GPE banks . These measures had led to military intervention and to the planning by NORP nationals of terrorist attacks on GPE facilities in GPE . The court further pointed out that the applicant ’s crimes were punishable by imprisonment for DATE and sentenced him to CARDINAL years’ imprisonment . When determining the sentence , the court took into account , among other things , the fact that the applicant ’s detention on remand and the proceedings had lasted an unusually long time . It further determined that since DATE the applicant had been detained in GPE with a view to extradition in connection with the present case . This period of detention was to be deducted from his prison sentence at a ratio of CARDINAL until DATE and at a ratio of CARDINAL from DATE . The court moreover ordered the applicant ’s continued detention . The judgment , which ran to CARDINAL pages , was served on the applicant ’s lawyer on DATE .

The Berlin Regional Court delivered its judgment after holding CARDINAL hearings with an average of CARDINAL hearings per week and having heard CARDINAL witnesses . The hearings , which lasted on average TIME each , were regularly attended by the CARDINAL accused , their CARDINAL lawyers , CARDINAL joint plaintiffs , their CARDINAL lawyers and CARDINAL interpreters .

On DATE ORG dismissed appeals on points of law by the applicant and the public prosecutor .

On DATE the applicant was released .

Article CARDINAL of the Code of Criminal Procedure provides , inter alia :

“ As long as the accused is in detention on remand , he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with LAW . ”

LAW provides , inter alia :

“ No trial shall be held in respect of a person who is absent . ”


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

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

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

On DATE ORG based in GPE ( “ the ORG ” ) requested the expropriation of a plot of land belonging to the applicants in order to build a road .

On DATE the applicants requested that their house and the remainder of their land also be expropriated .

By DATE the planned road was built , passing through the plot in question .

On DATE ORG in GPE ( “ the GPE ” ) expropriated only the plot specified by the ORG , without considering the applicants’ request .

On DATE the applicants lodged an appeal , but by DATE this appeal had been rejected .

On DATE ORG ( PERSON ) quashed the above decisions .

By DATE , following CARDINAL remittals , the requests were still pending before the GPE .

DATE and DATE CARDINAL hearings were adjourned , as either the municipality ’s representative or the court ’s expert witnesses had failed to appear .

On DATE the applicants sought an “ inspection ” ( inspekcijski nadzor ) of the proceedings at issue . By DATE ORG had “ established irregularities ” in the proceedings and ordered that they be rectified ( otklanjanje utvrđenih nepravilnosti ) .

On DATE the GPE accepted both expropriation requests and on DATE this decision was confirmed on appeal .

On DATE ORG ( Upravni sud ) quashed the latter decision .

On DATE ORG ( “ the ORG ” ) quashed the GPE ’s decision of CARDINAL DATE .

Since the ORG had failed to render a decision thereafter , on DATE and DATE respectively the applicants lodged complaints with the ORG .

On DATE the applicants also initiated a dispute ( upravni spor ) before ORG .

On DATE the ORG accepted the ORG appeal and ordered the GPE to decide on the matter within DATE .

On DATE ORG stayed the administrative dispute .

On DATE the ORG accepted both expropriation requests , but on CARDINAL DATE the ORG quashed this decision on appeal .

On DATE the applicants re - instituted their dispute before ORG .

As of CARDINAL DATE the proceedings were still pending .

Article CARDINAL of the LAW provides that the ORG shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted .

This LAW entered into force on DATE .

Section CARDINAL provides that a constitutional appeal can be filed against an individual decision of a state body , an administrative body , local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by the LAW , after all other effective domestic remedies have been exhausted . Sections DATE provide additional details as regards the processing of constitutional appeals .

This Act entered into force in DATE .

This Act provides , under certain circumstances , for the possibility to have lengthy proceedings expedited by means of request for review ( kontrolni zahtjev ) , as well as an opportunity for the claimants to be awarded compensation therefor by means of an action for fair redress ( tužba za pravično zadovoljenje ) .

Section CARDINAL , in particular , provides that this Act shall be applied retroactively to all proceedings from DATE , but that the duration of proceedings before that date shall also be taken into account .

This Act entered into force on DATE , but contained no reference to applications involving procedural delay already lodged with the ORG .

Section CARDINAL § CARDINAL provides that in simple matters an administrative body is obliged to issue a decision within DATE of a party ’s lodging a request . In all other cases , the administrative body is obliged to issue a decision within DATE of the lodging of the request .

Section CARDINAL § CARDINAL enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal to the appellate body as if his request had been refused . If the appeal is not allowed , the applicant can directly initiate an administrative dispute before the court with jurisdiction .

Section CARDINAL provides that a party can institute administrative proceedings before ORG ( administrative dispute ) if the appellate body does not issue a decision within DATE nor within DATE ; or if the first - instance body does not issue a decision and there is no right to an appeal .

Section CARDINAL provides that ORG itself can rule on the merits if a decision has already been quashed in the same dispute and the relevant body has not acted fully in accordance with ORG judgment or if it has not issued a new decision within DATE . ORG can also rule on the merits if the appellate body , or the first - instance body where there is no right to an appeal , has not ruled within the envisaged time - limit .

Section CARDINAL of this Act provided that if during the expropriation of a part of one ’s real estate it is established that the owner can no longer normally use the remaining property , has no economic interest in using it or if his very means of support is thereby jeopardised , the remaining property shall also be expropriated if he requests it .

Section CARDINAL provides that anybody can request an administrative inspection .

Sections CARDINAL - CARDINAL specify the rights and duties of inspectors , which , inter alia , include their right to identify irregularities and order that adequate measures be undertaken , as well as adequate fines imposed .

DATE and DATE the courts in GPE considered CARDINAL requests for review pursuant to the Right to a Trial within QUANTITY . A further CARDINAL requests were withdrawn and CARDINAL were still being examined . Of the CARDINAL requests that had been considered in CARDINAL cases the applicants were notified that certain procedural measures would be undertaken within a specified period . There is no information in the documents provided as to whether these time - limits were complied with or not . CARDINAL requests were rejected as ill - founded .

In the same period , CARDINAL actions for fair redress were submitted , of which CARDINAL were dealt with and CARDINAL were still being examined . In CARDINAL case the courts awarded the plaintiff non - pecuniary damages for the length of civil proceedings . In DATE an additional CARDINAL actions for fair redress were examined , in CARDINAL of which the courts awarded damages .

Sections CARDINAL contained details concerning the right of persons who had suffered damage as a result of the wrongful acts of third parties to be compensated .

This Act entered into force on DATE thereby repealing LAW DATE . Sections CARDINAL - CARDINAL , however , correspond to sections CARDINAL of the previous Act .


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

The respondent Government were represented by their successive Agents , respectively Mr U. ORG and Mr PERSON , and by their successive co - Agents , respectively Mr PERSON and Mr PERSON .

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

The applicant is the owner of a flat in GPE , which he had let to GPE , ORG and PERSON

In a writ served on the tenant on DATE , the applicant informed the tenants of his intention to terminate the lease on expiry of the term on CARDINAL DATE and summoned them to appear before the GPE Magistrate .

By a decision of DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenants requiring them to vacate the premises .

On DATE , he informed the tenants that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .

Pursuant to LAW no . CARDINAL of DATE , all the enforcement proceedings were suspended until DATE .

Pursuant to LAW no CARDINAL of DATE , all the enforcement proceedings were suspended until DATE .

According to the last information provided by the applicant on DATE , he has not yet recovered possession of the flat due to PERSON n. CARDINAL of DATE which suspended all the enforcement proceedings until DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos

The applicant was born in DATE and lives in GPE .

On DATE he lodged an opposition ( ανακοπή ) with ORG challenging his arrest as compulsory enforcement measure regarding a decision of ORG issued against him for unpaid debt to an individual ( decision no . CARDINAL/CARDINAL ) .

On DATE the opposition was rejected ( judgment no . CARDINAL/CARDINAL ) .

On DATE the applicant filed an appeal before ORG of Appeal challenging the court ’s findings and its evaluation of the evidence .

By judgment dated DATE , the court accepted the applicant ’s appeal and the case was remitted to ORG in order to be retried ( judgment no . CARDINAL/CARDINAL ) .

On DATE a preliminary decision was issued partially rejecting the applicant ’s opposition and asking him to submit supplementary evidence regarding the remainder of his allegations ( judgment no . CARDINAL/CARDINAL ) .

On DATE the applicant filed an application asking for a hearing date to be set as soon as possible .

On DATE , after a subsequent re - hearing was held , ORG rejected the applicant ’s opposition ( judgment no . CARDINAL ) .

On DATE the applicant lodged an appeal challenging ORG decisions CARDINAL . DATE and GPE .

By judgment dated DATE , ORG accepted the applicant ’s appeal after quashing the ruling of the first instance court . Subsequently , after examining the applicant ’s opposition de novo , the court held that it was well founded ( judgment no . DATE ) .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicants are NORP nationals , except the applicant PERSON ( application no . CARDINAL/CARDINAL ) who is a non - citizen of GPE . Their names , dates of birth , places of residence and the dates of introduction of applications are listed in the appendix to this decision .

According to the amendments to ORG ( “ ORG maternitātes un slimības apdrošināšanu ” ) , from DATE the parental benefit ( vecāku pabalsts ) was allocated to socially insured persons ( to CARDINAL of the parents or a guardian ) who either did not gain income because s / he was on parental leave or , on the contrary , did not use the parental leave and continued working . The benefit was paid until the child reached the age of one .

NORP The applicants’ children were born in the period DATE and DATE , except CARDINAL applicants whose children were born shortly afterwards ( see the appended list ) .

By virtue of a decision of ORG ( “ ORG ” ) the applicants , whose children were born before DATE , were entitled to a parental benefit in the amount of PERCENT of the average salary calculated for the purposes of social insurance deductions . Until DATE the applicants received the parental benefit in full amount and continued working .

On DATE the ORG of GPE introduced changes to GPE which came into force on DATE and deleted , inter alia , the provision according to which the parental benefit could be allocated to a parent or a guardian who was not on a parental leave but continued working . LAW during DATE ( thereinafter – Law on Payments ) ( ORG valsts pensiju un valsts pabalstu izmaksu laika periodā no . DATE . gada līdz DATE . gadam ) , which was adopted on DATE , provided for a transitional period of the aforementioned amendments . In particular , it provided that starting from DATE to CARDINAL DATE the parents ( guardians ) who gained income during the maternity period should receive PERCENT of the parental benefit allocated to them .

Each applicant submitted a constitutional complaint seeking ORG to find that provision CARDINAL of the Law on Payments run contrary to Articles CARDINAL , CARDINAL and CARDINAL of the LAW . They argued that by virtue of the decision of the ORG they were entitled to a parental benefit , and that , therefore , the legislative changes infringed their legitimate expectations to receive the parental benefit in full amount until the child reached the age of one . The applicants whose children were born after DATE argued that they had the same legitimate expectations arising from the law in force at the time when they planned their family .

The Constitutional Court on DATE found that the contested provision was constitutional . Firstly , it concluded that the employed and unemployed parents were not in a comparable situation , therefore differentiated benefit rates did not lead to unequal treatment . Secondly , ORG recognised that even if the parents had had legitimate expectation to receive the parental benefit in full amount , the contested measure in the particular economic situation in GPE had a legitimate aim and it did strike a fair balance between the general interests and the applicants’ rights :

“ CARDINAL.CARDINAL ... [ The amendments to the social insurance benefits in force as from DATE ] caused a situation that families could choose to attribute parental benefit to the parent who received higher remuneration before the birth of a child . For instance , in a family where CARDINAL of the parents was unemployed before the birth of a child , whilst the other parent was employed , the benefit was allocated to the one who was employed and received a wage ... rather than the one who was not employed and was on a parental leave . However , in cases when both parents were employed before the birth of the child , the family asked to allocate the parental benefit to the one who received a higher salary , even thought de fact it was the other parent who was on the parental leave .... .

Such application of the parental benefit was in conflict with the conclusions made in the judgment no . DATE - CARDINAL - CARDINAL by ORG regarding the effective social insurance system of the ORG because in the result of this a group of persons was formed who were not socially insured during the childcare period . For instance , if parental benefit was allocated to an employed parent who had a higher wage , social insurance payments were made from the wage of this particular person . However , the other parent who was on childcare leave and did not receive parental benefit , was not socially insured since he or she received neither benefit , nor wage . Therefore persons could not receive any other social insurance services because they have not made social insurance payments for DATE .

Moreover , the newly established type of insurance , i.e. parental insurance did not provide for an additional social insurance payment rate , therefore it deteriorated the situation in the ORG social insurance budget . CARDINAL of the reasons of such a huge deficit in the social insurance budget was inconsiderate definition of parenting benefit as a type of social insurance . In DATE , CARDINAL lats were spent for the disbursement of this benefit ( when introducing this benefit , it was planned to use CARDINAL lats ) , and already CARDINAL lats were used for this purpose in DATE before the contested provision was adopted .

The contested provision was adopted during economic recession in GPE .... In DATE , GPE underwent the most rapid reduction of economic activities in the entire ORG . ... During this period , the financial deficit of the state consolidated budget reached CARDINAL lats or PERCENT from ORG , and it was estimated that the deficit may reach CARDINAL lats or PERCENT from ORG by DATE . As a result , both the functioning of the ORG and economic growth in the foreseeable future would be endangered ...

If amendment of legal regulatory framework serves for the benefit of the society , then restriction of the legal trust of persons is permitted . The contested norm has been adopted with the purpose to balance revenues and expenses of the ORG special budget of social insurance . Economic recession denied the possibility for the ORG to guarantee such amount of social security that was established during the period of economic growth of the ORG . If no measures were taken to solve the situation , this would have influenced the possibility of the ORG to ensure the right of persons to social security and to guarantee sustainability of social security system . This would not comply with the principle of a socially responsible ORG .

Consequently , restriction of the right of employed parents to receive parental benefit at full extent during the transitional period has been established with a view to ensure substantial interests of the society . In the result of this , a fair balance between restriction of legal security of a person and the right of the society to a sustainable State social insurance system and balanced ORG budget was ensured ” .

Finally , the court recognised that the reduced amount of the benefit to employed parents in the transitional period was a proportional measure in that the employed parents still continued to receive both the salary and PERCENT of the reduced parental benefit . Consequently , their family income increased in comparison to the unemployed parents who received only the benefit .

The dissenting opinion to the aforementioned judgment of ORG stated :

“ It has been concluded in the ORG that a transitional period of CARDINAL days has been observed , which guarantees protection of legitimate expectations , whilst the amount of benefit to be disbursed has only been reduced ( see : PERSON – CARDINAL of the Judgment ) . I do not share this point of view . Even based on the strictest criteria for assessing legitimate expectations , the above mentioned transitional period could only be applied to those persons who have not been calculated and allocated the benefit before coming into force of LAW . It would be more appropriate for a socially responsible ORG not to change the amount of the benefit regarding all children who were incepted before coming into force of LAW .

However , the amount of benefit for persons , to whom it has already been granted , was reduced in CARDINAL within the term of DATE ( the contested norm was adopted on DATE and came into force on DATE of DATE ) . In that short time , no one could change their life . For instance , those person who decided to take a child care leave because of the amendments to the legal regulatory framework , could not implement their intention because , pursuant to LAW ) of LAW , an employee has a duty to notify the employer in writing DATE in advance of the beginning and the length of the parental leave or parts thereof ” .

Pursuant to LAW ) , all human beings in GPE shall be equal before the law and the courts . Human rights shall be realised without discrimination of any kind .

Article CARDINAL provides that the State shall protect and support marriage – a union between a man and a woman , the family , the rights of parents and rights of the child . The ORG shall provide special support to disabled children , children left without parental care or who have suffered from violence .

The law defines the state social benefit as a ORG monetary support , such as , for instance , child - care benefit , to individuals belonging to certain categories in situations when they bear additional expenditures or when those individuals do not gain income , and the compensation is not provided from ORG social insurance scheme . It is paid from the ORG budget .

Section CARDINAL provided that parental benefits were allocated to socially insured persons ( to CARDINAL of the parent or a guardian ) who either did not gain income because s / he was on parental leave or , did not use the parental leave and continued working . The benefit was paid until the child reached the age of one .

NORP The travaux préparatoires to FAC , which introduced the aforementioned amendments of DATE ( see paragraph CARDINAL , above ) highlighted certain threats to the sustainability of the proposed model ( as cited by ORG in the judgment of DATE ) :

“ .... [ With the amendment ] it was planned to disburse parental benefit to employed persons without restrictions and at full extent , these persons also receiving labour incomes ; however this does not comply with the essence of social insurance . Second , introduction of parental benefit would be ensured in the frameworks of the present social insurance payment rate ; therefore this would negatively influence social insurance special budget in the long term . Consequently , according to the prognosis of the social insurance budget model , the reserve accumulated in the social insurance special budget would be used DATE , i.e. already in DATE after introduction of parental benefit and disbursing it from the state social insurance budget in the frameworks of the actual social insurance payment rate ” .

Paragraph CARDINAL of section CARDINAL provides that an employed or a self - employed person who was granted a parental benefit with respect to a child born until DATE shall receive the parental benefit in the amount of PERCENT of the amount of the benefit granted .

NORP The travaux préparatoires to the aforementioned law provided that it shall ensure functioning of the fundamental principle of state social insurance . Namely , the State social insurance substitutes certain income in a situation when a person loses earning from labour . If a person takes care for a child aged DATE and at the same time continues working , s / he does not lose the income from labour . Moreover , persons who receive both a wage and a parental benefit enjoy better circumstances when compared to those parents who are on a childcare leave and receive parental benefit only .

ORG ( revised ) of DATE ( ratified by GPE on DATE and came into force on DATE ) with respect to maternity benefits provides :

Article CARDINAL

Cash benefits shall be provided , in accordance with national laws and regulations , or in any other manner consistent with national practice , to women who are absent from work on leave referred to in ORG CARDINAL or CARDINAL .

Cash benefits shall be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living .

Where , under national law or practice , cash benefits paid with respect to leave referred to in DATE are based on previous earnings , the amount of such benefits shall not be CARDINAL of the woman ’s previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits .

Where , under national law or practice , other methods are used to determine the cash benefits paid with respect to leave referred to in DATE , the amount of such benefits shall be comparable to the amount resulting on average from the application of the preceding paragraph .

Each Member shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom this Convention applies .

Where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or in any other manner consistent with national practice , she shall be entitled to adequate benefits out of social assistance funds , subject to the means test required for such assistance .

Medical benefits shall be provided for the woman and her child in accordance with national laws and regulations or in any other manner consistent with national practice . Medical benefits shall include prenatal , childbirth and postnatal care , as well as hospitalization care when necessary .

In order to protect the situation of women in the labour market , benefits in respect of the leave referred to in DATE and CARDINAL shall be provided through compulsory social insurance or public funds , or in a manner determined by national law and practice ...