Violation of Art. 2 with State's liability for death of eleven missing persons;Violation of Art. 2 with regard to failure to conduct an effective investigation;Violation of Art. 3 with regard to the missing persons;No violation of Art. 3 with regard to the applicants;Violation of Art. 5-1;Violation of Art. 13;Failure to comply with obligations under Art. 34;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The facts of the case , particularly concerning events during DATE when security forces conducted an operation in the LOC in south - east GPE , were disputed by the parties . ORG , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .

The Commission Delegates ( PERSON , Mr PERSON and PERSON ) heard witnesses in GPE from DATE to DATE and on CARDINAL and CARDINAL DATE . These included the CARDINAL applicants ; PERSON , mother of the disappeared PERSON ; PERSON , brother of the disappeared PERSON ; PERSON , brother of the disappeared PERSON ; PERSON , a villager who witnessed events ; PERSON , NORP gendarme station commander ; PERSON , GPE district gendarme commander ; PERSON , ORG public prosecutor ; PERSON , chief public prosecutor at ORG ; PERSON , PERSON and PERSON , villagers called by the Government ; General PERSON , commander of the Bolu forces during the operation ; PERSON , wife of the disappeared PERSON and PERSON , the mother and sister - in - law of the disappeared PERSON and PERSON .

The DATE ’s findings of fact are set out in its report of CARDINAL October DATE and summarised below ( Section A ) . The applicants accept the ORG ’s findings of fact . The Government ’s submissions concerning the facts are summarised below ( Section B ) .

The applicants are close relatives of QUANTITY persons who went missing in DATE .

PERSON is the brother of PERSON and the uncle of PERSON .

PERSON is the son of PERSON .

PERSON is the father of PERSON and the brother of PERSON .

ORG is the brother of PERSON .

PERSON is the brother of PERSON .

PERSON is the brother of PERSON .

PERSON is the brother of PERSON .

PERSON is the brother of PERSON .

PERSON is the father of PERSON .

The CARDINAL men disappeared at the time the security forces were carrying out a massive operation around the LOC in the region between ORG .

Alaca village may be described as an area of dispersed hamlets and houses spread over mountainous terrain , which for administrative purposes was regarded as being in the GPE district . Its hamlets included PERSON ( where PERSON , PERSON and PERSON lived ) , PERSON ( where PERSON , his brother PERSON and son PERSON , PERSON and PERSON were said to live ) , PERSON ( where PERSON lived ) , GPE and ORG . Nearby but in the LOC was GPE , including GPE hamlet ( where PERSON and ORG stated that they lived with their brother PERSON ; PERSON also said he lived there with his father PERSON ; PERSON lived there ) .

Alaca village was not far from LOC ( NORP ) , where some people led a nomadic style of life and where there were fruit and walnut trees ( PERSON stated that he lived there and PERSON was stated to have pastures there , living a nomadic life with other members of his family ) . The nearest gendarme station was at PERSON , which was on the ORG . Many of the applicants and members of their families were also living in either ORG , the CARDINAL nearest large towns . Some distance to the south of Alaca was GPE of which PERSON was the muhtar .

In DATE , terrorist activity was a major concern in this area . There were several ORG bases in the vicinity of Alaca . PERSON , the commander of NORP station , stated that his station had been attacked several times . The GPE district gendarme commander Captain PERSON stated that there was intensive terrorist activity in the GPE area . General PERSON of the Bolu brigade described the area as being the backbone of the NORP activities , and explained that his forces were involved in many operations there . An undated final operation report ( Commission report , paragraphs CARDINAL - CARDINAL ) described the LOC as the largest training area for the ORG . According to this report , it had fortified defences and enjoyed the support of PERCENT of the hamlets and villages in the region , the villagers from which supplied the ORG with shelter and food . Villagers also used to go into the towns to buy food for the terrorists .

By DATE , many people from in and around LOC had left or were about to leave either due to the difficulty of life in the remote mountainous area or due to the security situation . The Commission rejected the evidence of the gendarme witnesses that the area had already been abandoned . The weight of the evidence showed that a significant number of families were still living there , while other villagers from this area continued to move to and from the mountains to the town seasonally . Some , like PERSON and PERSON , were nomadic herders .

From DATE , the Bolu brigade assisted by gendarmerie forces conducted a massive military operation . On the evidence of the commanding officer , General PERSON , this involved CARDINAL soldiers and helicopters . Its purpose was to converge soldiers from bases in the GPE and GPE districts on the NORP area to apprehend terrorists and locate their bases , stores and weapons dumps . The operation lasted until DATE . The Government and the applicants were at variance however as to the events which occurred concerning the villagers during the operation .

The Commission noted that the conflict lay between the ORG ’s assertion , supported by the security force witnesses , that the missing persons had been kidnapped by the ORG dressed as soldiers and that the families in introducing the applications were acting as the pawns of the ORG , motivated by fear or a desire to obtain financial gain ; and the assertion of the applicants and their families that their relatives had been detained by soldiers during the operation and last seen being taken away by helicopter . The credibility and reliability of the witnesses was the crucial issue .

The Commission , relying on its Delegates , found the applicants and the members of their family and the villager PERSON were honest and convincing in the way they gave their evidence . Some were confused about details , in particular about dates , which was not unexpected due to the lapse of time . Some of the women witnesses and PERSON were simple , unsophisticated individuals who were answering sincerely to the best of their ability . The Commission commented that all the applicants showed deep and abiding distress at the uncertainty which they had suffered after the disappearance of their relatives , several making appeals that they might at last be told the fate of their family members . Their evidence was strongly consistent with supporting documentary material , including petitions made by the families shortly after the events and the reliability of this considerable weight of evidence was confirmed as more witnesses were heard . In significant aspects , it was also substantiated by the villager witnesses brought forward by the Government .

Conversely , ORG received a negative impression from the gendarme witnesses , PERSON and PERSON . Their evidence , which included the denials that there was any operation in the area at the time , was shown to be unreliable when the General PERSON informed the Delegates that there was such an operation and indicated that both would have been aware . While ORG impressed as a forceful and competent witness , his evidence was given under circumstances which diminished its weight , as the ORG refused to allow the applicant ’s representatives to be present when he gave evidence to the Delegates . He showed reluctance to address the factual concerns of the ORG , avoiding precise answers . It found doubts arose as to the reliability of his evidence on the treatment of the villagers , the use of helicopters and the claim that no soldiers went into the villages or hamlets in the Alaca area . It examined the alleged points of inconsistency in the ORG versions of events put forward by the Government . It found that some differences in detail were explicable by the lapse of time and that they were not of such a nature as to undermine the applicants or the witnesses’ credibility . Their accounts were essentially consistent , credible and reliable .

On that basis , the ORG found as follows .

Soon after the operation started , the soldiers began collecting villagers together , for use as guides to show them the location of settlements and ORG shelters and stores , for questioning about involvement with the ORG and for possible transfer to detention elsewhere .

Villagers were first taken into custody on or near LOC on DATE , the soldiers arriving at ORG on CARDINAL October . Some villagers were looked for by name . Others were gathered generally for an identity check . The soldiers set up a camp at GPE , a hill close to the hamlet of PERSON , where helicopters landed , inter alia , to bring in supplies . There were other camps set up , CARDINAL or CARDINAL near GPE and GPE and another near the GPE district boundary , where villagers were held for DATE .

At the commencement of the operation , villagers who were living up on LOC witnessed planes carrying out bombardment . PERSON was taken by soldiers , apparently to act as guide . About a day or DATE , PERSON was being held by soldiers at the camp which had been set up at GPE .

On or about DATE , PERSON was apprehended by the soldiers . It was unclear exactly where this occurred between PERSON and PERSON . However , he was seen by a number of persons being held shortly afterwards under guard in GPE .

On or about DATE , soldiers arrived at the hamlet of GPE , TIME from PERSON . PERSON saw them take her brother - in - law PERSON out of his house . On DATE , PERSON was also picked up by the soldiers at PERSON , who had been asking for him by name . The soldiers told his family that PERSON would show them around and make a statement . PERSON , PERSON , PERSON and PERSON were also picked up at PERSON .

PERSON was apprehended at the beginning of the operation at GPE being taken to ORG , TIME away , where he was joined by PERSON , PERSON and PERSON . DATE , on or DATE , PERSON accompanied the soldiers who took PERSON , ORG and ORG from their homes at GPE , GPE and brought them back to ORG . DATE PERSON and PERSON were brought by soldiers to NORP , where a group of CARDINAL people were being held . They were kept TIME at a place variously described as being at the cemetery , or near ORG or ORG hamlet . They were questioned and tied up during TIME . TIME , on DATE , a helicopter landed and a person arrived with his face covered . Some of the villagers thought to have recognised this man when the wind blew his scarf aside . His identity was not established however . A selection process was carried out , with identity cards being handed in and inspected . All the villagers but CARDINAL were allowed to go . PERSON , PERSON , PERSON , PERSON , the CARDINAL PERSON brothers , PERSON and a young man , a stranger to the village said to be called PERSON , were placed on a helicopter and flown to GPE DATE .

PERSON and PERSON were apprehended by the soldiers in PERSON on their way to their village GPE from GPE , shortly after the operation started . PERSON and PERSON were with them , having come back from Muş on the same minibus . The date when they were detained was unclear . However , on an assessment of the varying accounts , the ORG found that the group of PERSON , PERSON , PERSON and PERSON were brought to GPE before the group from the cemetery at ORG , on or before DATE .

Shortly after the operation began , PERSON was detained with others near their village of GPE . These villagers were held on a plateau area near the village for DATE . During that time , checks were made on the radio as to whether any of them were wanted . During this time , they were tied up . On DATE , he and a relative were taken by helicopter to Muş where he was held in a basement with CARDINAL other people , including PERSON , who were villagers from GPE and other places in GPE . He was released after DATE .

At a time unspecified after the operation began , PERSON and several of his male relatives were at their home in GPE when the soldiers took them . They were held by soldiers for DATE in a wood near GPE before being released .

On or CARDINAL or DATE , PERSON was detained by soldiers in or near ORG . He was taken DATE to GPE by helicopter where he was detained for DATE . PERSON was also apprehended with several others when he arrived in PERSON on DATE . They were taken up to GPE and their ID cards collected . A man with his face covered seemed to inspect them . By DATE , the CARDINAL men who were later to go missing , were being held at GPE .

PERSON , who was DATE , was not from the Alaca village . He is known to have been detained by the police when he arrived in GPE on or DATE . His brother PERSON arrived in GPE , paying visits to him . According to the official documents provided , in particular a release statement of DATE apparently bearing PERSON thumbprint , he ceased to be in police custody at that date . According to the evidence of his father , the applicant PERSON , PERSON arrived to visit him but was told by the police that he had been released . When PERSON did not arrive home however , PERSON and then the applicant went back to GPE to discover what had happened to him .

The applicant alleges that in making enquiries he was told that his son had been handed over to the forces from Bolu who were on an operation . He also heard from nomads that his son had been seen tied up outside the NORP station and that from there he had been taken to PERSON . When he visited PERSON , people there told him that they had seen his son with the other detainees held at GPE .

The evidence before the Delegates concerning PERSON showed that he was not known by any of the applicants and witnesses . Several witnesses referred to seeing a person , not from the village , being detained with the other CARDINAL . Others only knew of the name PERSON when his father came looking for him after events . PERSON gave eye - witness evidence that he saw PERSON , detained with them TIME at ORG and taken with them to GPE . However , he did not talk to the young man himself . He stated that PERSON and PERSON who were with the young man , told him that his name was PERSON .

The Commission observed that there were difficulties in the evidence concerning the identification of PERSON , in particular the differing ages estimated by the persons who saw him . However this could be accounted for , inter alia , by the fact that ill - treatment or living rough over a period of time could change a person ’s appearance dramatically . In light of the firm identification of PERSON , supported by the evidence of ORG who had heard from his brother PERSON that PERSON was in the group of TIME and the written statement of DATE by PERSON naming PERSON as a young boy caught in GPE who had been held with him , the Commission was satisfied that these elements were sufficiently coherent and consistent to establish beyond reasonable doubt that he was the eleventh detainee .

At GPE , the villagers were held in different groups , to which different restrictions applied . CARDINAL of them ( the persons who later disappeared ) were kept in CARDINAL group . They were tied up , though they were untied for visits , or when they ate or relieved themselves . CARDINAL witnesses ( PERSON , PERSON , PERSON , PERSON ) however stated that PERSON , though of this group , was not tied up . Other detainees – PERSON , PERSON DATE were held in a group of CARDINAL villagers , who were not tied up . They were kept in the camp during DATE and sent to houses in PERSON to spend the night . PERSON and PERSON , who were tied up , were held with or near the group of TIME .

As concerning the way in which the QUANTITY men were treated at GPE , the ORG found that :

– the QUANTITY persons , save PERSON , were tied up ( PERSON described that her relatives’ toes were swollen as a result ) ;

– they were kept outside during DATE and at TIME ( PERSON was seen to be flushed , shaking , his lips chapped and to be affected by the cold ) ;

– they were questioned by the soldiers ;

– they were in a state of some distress and apprehension ( PERSON was described as hungry , thirsty and miserable ; PERSON told others that he was in a terrible state and feared that they were going to be killed ; PERSON evidence referred to the detainees being in a miserable state , having gone hungry and been tied up for DATE ) ;

– PERSON and PERSON were taken from the group by helicopter apparently to act as guides or show locations ;

– PERSON was taken away from the group for DATE or CARDINAL and on his return was seen to be limping and needing the support of soldiers to walk ;

– PERSON was also taken away to Şen pastures to act as a guide ;

– money ( CARDINAL GPE ) was taken from PERSON by the soldiers ;

There was insufficient evidence to establish that the CARDINAL men were subject to torture under interrogation . There was some evidence of beating of the detainees ( PERSON witnessed his brother PERSON being beaten ) , but the nature and extent of the beating was not apparent .

By a date about DATE , all the detainees at GPE , save CARDINAL , had been released . Descriptions were given of a selection process where names were called out and those persons released . Some of the remaining detainees were seen being placed in helicopters . The Commission observed that the timing of this event is problematic , the evidence of the principal witnesses being vague or confused on this point . The weight of the evidence placed the last sighting of the remaining CARDINAL detainees at CARDINAL October but this can only be regarded as approximate .

The eye - witness evidence as to whom was seen being taken away was also not clear . PERSON referred to seeing ORG and his friends being put on the helicopter but that it was too far to see . PERSON referred to QUANTITY persons . She did not know PERSON and if he was there she was not in a position to identify him . She stated specifically that she could see PERSON and PERSON being put on the helicopter . The Commission noted that the applicants and the other witnesses appeared to associate the placing of detainees on the helicopter with their missing relatives largely because some were identified by the women and also on the basis that these QUANTITY persons were the only detainees remaining at GPE after the others such as ORG and PERSON were released . They had also been held together as a distinct group and were no longer there after the operation ended . While this provided strong circumstantial evidence , the Commission was not satisfied that it could be established , to the necessary standard of proof , that the CARDINAL missing persons were all placed on the helicopters , in particular PERSON , though it was satisfied that at least some of the QUANTITY detainees were . There was no evidence that any of these persons were seen after the operation ended on or about DATE . The Commission found that when they were last seen they were detained under guard by security forces .

The applicants approached numerous authorities in the region , sometimes alone or in small and varying groups , seeking to find out what had happened to the CARDINAL missing men from GPE .

i. PERSON wrote a petition to ORG on CARDINAL and CARDINAL DATE . He went to the ORG public prosecutor on DATE , who spoke on the phone with a major . In ORG , he contacted PERSON a friend of the regiment commander . He also went to GPE where , on DATE , he saw the Prime Minister and the Minister for Human Rights . He contacted the Minister of the ORG and on DATE went back to see the Minister for Human Rights . He went to see the deputy regional governor with CARDINAL others . He went to GPE , submitting a petition to the prosecutor and enquiring at the prison .

ii . PERSON went to the police in PERSON , accompanied others to see the GPE district governor and petitioned the ORG public prosecutor .

iii . PERSON went to the ORG public prosecutor who sent him to ORG . He visited the ORG office . PERSON went to see the LOC Governor with PERSON and PERSON and to enquire at the ORG gendarmerie . He also went to see the ORG provincial governor and public prosecutor .

iv . PERSON went first to ORG and returned repeatedly with petitions . He checked the prisons regularly . He saw the Emergency Area Assistant Governor and went with PERSON and PERSON to the provincial gendarme headquarters , where they talked to a lieutenant colonel . On DATE , he went with PERSON and PERSON to GPE , where they saw the public prosecutor , the governor PERSON and then the GPE gendarme commander . In light of what the governor said about the involvement of the Bolu forces , he went to Bolu with PERSON in an attempt to see General PERSON .

v. PERSON approached the authorities in ORG .

vi . PERSON went to the ORG gendarmerie and to the Governor .

vii . PERSON went to the district governor , public prosecutor , police and gendarmes in GPE , the commando unit , police and public prosecutor in PERSON , and various authorities ( including prisons ) in ORG , GPE , GPE and NORP where a woman prosecutor suggested he try PERSON . He submitted CARDINAL petitions to the ORG public prosecutor .

viii . PERSON went to the public prosecutor in PERSON , ORG , the LOC in GPE ( with PERSON , PERSON and PERSON ) and to Bolu with GPE . He submitted CARDINAL petitions to ORG .

ix . PERSON visited the Governor ’s office in GPE and ORG . On DATE , he went to the Governor ’s office in GPE with GPE , PERSON and PERSON and also to the authorities in ORG .

As far as may be deduced from the documents , the official steps taken by the authorities were as follows :

In respect of the petition of CARDINAL DATE by PERSON concerning PERSON , the public prosecutor made enquiries from the GPE district gendarme command and to ORG , the latter of which indicated that PERSON had been released from their custody .

In respect of petitions of DATE by PERSON ( concerning PERSON ) , DATE and DATE by PERSON ( concerning PERSON and PERSON ) , DATE by PERSON ( concerning PERSON ) and DATE by ORG ( concerning PERSON ) to ORG ( “ ORG ” ) prosecution , manuscript notes indicated that the records had been checked and the names not discovered . PERSON petition of CARDINAL DATE ( concerning PERSON ) and PERSON of DATE ( concerning PERSON ) met the same response verbally .

In respect of a petition of CARDINAL DATE by PERSON concerning his father to the ORG chief public prosecutor , a hand - written note indicated that the public prosecutor had checked with the gendarmes and police but no record of the name was found .

In respect of a petition of DATE by PERSON and PERSON , which mentioned all CARDINAL missing persons , to ORG prosecutor , a manuscript note indicated that the public prosecutor made an enquiry of the GPE prison authorities .

Following PERSON visit to GPE where he complained to various ministers in or DATE , an enquiry was made by the Minister of ORG to ORG , to which , on DATE , the gendarme general command replied that PERSON and PERSON had not been detained by the provincial gendarme command .

Following a petition of DATE by PERSON to the ORG public prosecutor , which requested an investigation be carried out into PERSON whereabouts , the public prosecutor took a statement of DATE and a note on the petition indicates that enquiries were made of the district gendarmerie and ORG .

Following a petition of CARDINAL DATE from PERSON , the GPE district governor replied on DATE that PERSON , PERSON , PERSON , PERSON and PERSON had not been detained by ORG and referred to not having any information as the operation had concluded in the GPE .

In or DATE , the ORG SSC public prosecutor made a request to the ORG public prosecutor for information relevant to the complaints about the disappearance .

DATE . On the petitions submitted by PERSON and PERSON on DATE which both refer to their relatives and mention that CARDINAL other people were missing , it appears from the noted number CARDINAL/CARDINAL prel . that the ORG public prosecutor opened an investigation . PERSON , PERSON and PERSON made petitions at the same time . The following steps then ensued :

– On DATE , the ORG public prosecutor requested the ORG chief public prosecutor to provide information about the relatives of CARDINAL of the applicants’ missing relatives ( namely , the relatives of the CARDINAL applicants who have submitted petitions on DATE and PERSON ) ;

– The ORG SSC prosecutor replied on DATE that the CARDINAL ORG names were not in the records .

On DATE , the ORG public prosecutor issued a decision of withdrawal of duty in respect of the CARDINAL missing relatives , referring the case to ORG on the basis that they had been kidnapped by the ORG . The grounds for this conclusion were not apparent . The petitions in the file at this point , and the statement of PERSON , referred to the missing persons having disappeared while in the custody of the security forces . No step had been taken by the ORG public prosecutor beyond enquiring whether their names had been registered as detained by the ORG gendarmerie and police or appeared in the ORG SSC records .

From DATE , the investigation was transferred to the ORG prosecutor . The following steps were taken under investigation no . CARDINAL/CARDINAL :

– On DATE , ORG instructed the ORG public prosecutor , GPE district gendarme command , ORG and ORG provincial gendarme command to report on any information , documents or confession etc relevant to the investigation DATE ;

– The petitions dated DATE from PERSON , which referred to PERSON and CARDINAL other missing persons and from GPE , which referred to PERSON and QUANTITY other missing persons was added to the file .

– Enquiries were made to the local gendarme station at Panak . A report dated DATE was issued by gendarme sergeant PERSON referring to the disappearance of CARDINAL persons and stating that he had no information and that the search was ongoing . In his testimony to the Delegates , PERSON stated that since the area was not inhabited he had not needed to make any enquiries in order to answer the petition . The petition however was counter - signed by ORG , the muhtar of the village , who before the Delegates had confirmed that there was an operation in the village following which CARDINAL persons had disappeared .

– On DATE , the ORG provincial gendarme command requested an investigation into the alleged disappearance of CARDINAL named persons and for a report to be made urgently . The letter referred to complaints having been made to ORG . The ORG prosecutor replied on DATE that the men had not been detained .

– On DATE , a request was made by ORG ( ORG ) to the ORG prosecutor for an investigation to be made into allegations that CARDINAL named persons had disappeared . In response , the ORG prosecutor sent back on CARDINAL DATE a request for information from ORG as to whether the men had been detained under their jurisdiction and sent another brief enquiry to the GPE gendarme district command which received the same brief reply that the men had not been detained ( DATE ) . By letter dated DATE , the ORG prosecutor stated an investigation file had been opened no . CARDINAL/CARDINAL concerning the missing persons , though CARDINAL names were mentioned .

– On DATE , ORG requested , on prompting from GPE , that the ORG public prosecutor take statements from PERSON and PERSON , as well as any other witnesses . This request seemed to lead to further action by the ORG public prosecutor : a request on DATE yet again for information as to whether the men had been detained to be provided by the GPE district gendarme command , as well as a similar letter to ORG and widening the enquiry this time to the GPE district mechanised infantry battalion .

– On DATE , the ORG prosecution took statements from PERSON , PERSON and PERSON , which all maintained that the security forces were responsible for the disappearance of their relatives . PERSON named the Bolu forces .

– On CARDINAL(CARDINAL ) DATE , ORG provided information about PERSON detention in DATE .

– On DATE , a statement was taken from PERSON by a ORG public prosecutor . He referred to ORG and PERSON as having seen the CARDINAL missing persons being taken away . He also mentioned the Bolu forces .

– On DATE , the ORG public prosecutor sent a reminder to the ORG gendarme division command for information to be provided .

– On DATE , the GPE district gendarme command enclosed a further investigation report dated DATE from the PERSON commander PERSON which stated that an investigation had been carried out into the possibility of a kidnapping but no information had been obtained . However , as stated above , PERSON informed the Delegates that he in fact took no steps to investigate .

– On DATE , a statement was taken from PERSON by the ORG public prosecutor . He , inter alia , named a shepherd from PERSON called GPE as having given information that his son had been seen with the soldiers in the operation at Alaca .

– On DATE , a statement was taken from PERSON by a public prosecutor , which referred to his brother having been held by GPE gendarme commandos and then in Alaca .

– On a date unspecified a statement was taken from PERSON by the same public prosecutor that took the statements of PERSON and PERSON ( above ) . This statement refers to a possibility that the ORG kidnapped the missing persons though also said that the people went missing after an operation .

– On DATE , the ORG public prosecutor asked the ORG gendarmes for ORG and PERSON to be brought to make a statement . A reminder was sent on DATE .

– On DATE , the ORG public prosecutor asked for the gendarmes to make enquiries about GPE , a villager from GPE .

– On DATE , the ORG public prosecutor requested the ORG public prosecutor to summon PERSON , PERSON and PERSON for their statements to be taken . A request was made DATE to the security directorate for PERSON , PERSON and PERSON to be brought . On DATE , NORP public prosecutor was making similar requests in respect of PERSON and PERSON .

– On DATE , ORG provided information about certain of the applicants , and referred to the fact that PERSON and PERSON had been brought in to make statements .

– On DATE , the statement of PERSON was taken , which referred to the military operation which he had witnessed in the village .

– On DATE , the statement of PERSON was taken by the ORG SSC Chief Prosecutor .

– Following further requests for PERSON to be brought ( DATE ) , the ORG public prosecutor was informed DATE of information provided by the ORG gendarmes on DATE as regarded his address . A statement was then taken from him on DATE . It referred to the women as being eye - witnesses .

– On DATE , the ORG public prosecutor instructed that PERSON , PERSON and the shepherd Çesim be brought . At about the time , he was also making enquiries about PERSON the current muhtar of Alaca . He requested that ORG prosecution return the investigation file to enable him to pursue matters . The file was provided on DATE .

– On DATE , the ORG prosecutor made requests for PERSON , GPE , PERSON , PERSON , PERSON and PERSON to be brought . Further reminders were sent for PERSON on DATE and for the latter CARDINAL witnesses on DATE .

– On a date in DATE , a statement was taken from PERSON , who denied having witnessed any events . On DATE , a statement was taken from ORG in which she confirmed witnessing her husband being detained by soldiers during an operation . By a report of that date , it was indicated that PERSON had died .

– A statement was taken on DATE from PERSON which gave no substantial information .

– On DATE , a second statement was taken from PERSON , which this time referred to the operation and the Bolu forces taking his father as a guide . On DATE a statement was taken from PERSON .

On DATE , the ORG Chief Prosecutor issued a decision of withdrawal of jurisdiction , in which it concluded that there was an absence of evidence that the ORG kidnapped the missing persons , named the security forces as the defendants and noted that the complaints involved an alleged disappearance in custody . The file was accordingly sent back to the ORG public prosecutor , who on DATE joined it to the ongoing file at ORG . The only step taken by the ORG public prosecutor according to the documents provided to the ORG was on DATE to request the GPE police and gendarme authorities to provide information as to any developments and whether the missing persons had been found missing or dead .

The Commission observed that a number of reports were made to the authorities in GPE on the progress of the investigations . On DATE and CARDINAL DATE , PERSON , ORG Chief Prosecutor reported to ORG , that the missing persons had probably been kidnapped by the ORG and that no concrete evidence had been obtained . The second letter claimed also that the applicants had denied that they were eye - witnesses and failed to give the names of the women who were alleged to have witnessed events and that there was no evidence that an operation took place in Alaca or that people were detained . These CARDINAL letters ignored the fact that PERSON stated that he saw an operation take place , that the statements of PERSON , PERSON and PERSON gave details of an operation in the village and that in his statement of DATE PERSON had named GPE and PERSON as eye - witnesses .

The letter of DATE from ORG to ORG denied that any operation had occurred at LOC on DATE and omitted to refer to the operation conducted on the nearby LOC by the Bolu forces .

The authorities took steps to contact all the applicants concerning their applications , and did question all of them save PERSON .

In DATE , PERSON was summoned by ORG ( ORG ) Chief Public Prosecutor , being held in custody for DATE beforehand by the police . He described how the prosecutor claimed that it was other people bringing the application rather than himself and how the prosecutor was angry when he maintained that he had applied to LOC after applications in GPE had proved futile .

In DATE , PERSON was summoned by the ORG public prosecutor who asked if he had complained against the ORG and why he had applied to FAC .

In or DATE , Keleş PERSON was summoned by the public prosecutor in GPE , who asked him why he had applied to ORG .

In DATE , PERSON brother PERSON was summoned during his absence on military service and his statement taken by the GPE public prosecutor , who referred to documents from ORG and enclosed petitions .

On DATE , PERSON was questioned by ORG . He recalled that he was questioned about what had happened in the village . Though he did not remember being questioned about his application , he was asked to confirm his signature on his statement to ORG ( “ HRA ” ) which was part of his application . He had also given a statement to the ORG public prosecutor on CARDINAL DATE .

On DATE , PERSON was held TIME by the police and , after the documents relevant to his application were read out , questioned by ORG about whether he had applied to the ORG and to LOC .

PERSON made a statement to ORG on DATE , from which it appears that he was asked about his statement to the ORG and whether he had signed a power of attorney for the lawyers representing him in this application .

In or DATE , PERSON was summoned by the PERSON public prosecutor , who said that he had complained against the ORG and to whom he explained why he had made a petition to LOC .

ORG also recalled being summoned by a prosecutor who claimed that he had complained against the ORG , in or DATE .

In the statements recorded as taken from PERSON , PERSON , PERSON , PERSON and PERSON , there were references to correspondence and enclosures from ORG ( ORG ) or to documents from the Commission being read out . When questioned about this during the witness hearings before ORG , the ORG Chief Prosecutor stated that he did not have copies of the ORG petitions to show them but only correspondence from ORG . The Commission rejected this denial . It observed that he considered it his duty to verify the signatures on applications to the Commission . PERSON recalled being asked to do so . It found that these CARDINAL applicants , and , in the case of PERSON , his brother PERSON , were questioned about their applications on the basis of the documents submitted on their behalf to the Commission .

A military operation was carried out in DATE in ORG triangle of GPE . It was carried out by the Bolu brigade under General PERSON . No aeroplanes were used during the operation and only a limited number of UH-CARDINAL helicopters were made available , taking a maximum of QUANTITY persons . Persons detained during the operation were transported on QUANTITY to GPE .

The authorities carried out investigations promptly into the alleged disappearance of the QUANTITY persons . The applicant PERSON was informed that his son had been released . The petitions lodged by the other applicants asked only for information and did not contain denunciations . The petitions were only made in DATE in any event , without any explanation for why they waited so long to take action .

NORP The applicants’ assertions of security force involvement in the detention and disappearance of their relatives were totally unsubstantiated . If CARDINAL of soldiers were involved , it would have been expected that they would have talked about when leaving their military service .

All these factors indicated that it was probable that the persons were kidnapped by the ORG .

The Government provided a batch of documents relating to the investigation by the ORG public prosecutor from DATE , some of which were already provided to the Commission . They have not made any submissions as to the significance of these documents or as to whether they contradict any findings by ORG .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . It is also an offence for a government employee to subject CARDINAL to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) or to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) .

The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutor ’s offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants ( sometimes referred to as LAW ) , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor ’s authority .

DATE . If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person ’s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender ’s superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative act ” or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

The applicant was a civil servant working in the service of an administrative inspectorate . Applying Act no . LVIII of DATE on ORG Officials ( see below ) , her employer dismissed her from service on DATE without giving any reasons for that dismissal .

The applicant did not challenge this measure in court , considering that in the absence of reasons for her dismissal , she could not sue her former employer with any prospect of success . The statutory time - limit in this respect expired on DATE .

On DATE ORG annulled as unconstitutional the impugned section CARDINAL(CARDINAL ) of Act no . LVIII of DATE , as of CARDINAL DATE ( see paragraph CARDINAL below ) .

On DATE the Constitutional Court gave a decision ( see paragraph CARDINAL below ) concerning the non - applicability of laws , declared unconstitutional , in cases still pending before an ordinary court .

Act no . XX of DATE ( the LAW in force at the material time ) provided as follows :

“ ( CARDINAL ) In GPE , everyone shall be equal before the law and entitled to have any charges brought against him as well as his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law . ”

“ ( CARDINAL ) All NORP citizens shall have the right to hold a public office in accordance with their suitability , qualifications and professional knowledge . ”

Section CARDINAL(CARDINAL ) of Act no . LVIII of DATE on ORG Officials , as in force DATE and DATE , provided that a civil servant could be dismissed from service , with a notice period of DATE , without the employer giving any specific reasons for the dismissal .

Act no . CXXV of DATE on Equal Treatment and ORG provides as follows :

“ Provisions resulting in a situation where CARDINAL person or group is treated less favourably than another is , has been or would be treated in a comparable situation on account of their real or presumed

a ) sex , b ) racial origin , c ) colour , d ) nationality , e ) belonging to a national or ethnic minority , f ) mother tongue , g ) disability , h ) state of health , i ) religious or ideological conviction , j ) political or other opinion , k ) family status , l ) motherhood ( pregnancy ) or fatherhood , m ) sexual orientation , n ) sexual identity , o ) age , p ) social origin , q ) financial status , r ) the part - time nature of an employment or other work relationship , s ) membership in an interest representation organisation , t ) other status , attribute or characteristic ( hereinafter collectively : characteristics )

shall amount to direct negative discrimination . ”

“ ( CARDINAL ) In proceedings instituted on account of a violation of the equal treatment requirement , the injured party or the party entitled to assert public interest claims shall substantiate that :

a ) the injured person or group has suffered a disadvantage , or DATE in case of asserting public interest claims DATE an imminent danger thereof exists , and

b ) the injured party or group did at the time when the violation of law was committed DATE actually or according to the presumption of the violator – possess a characteristic specified in DATE .

( CARDINAL ) If the case described in subsection ( CARDINAL ) has been substantiated , the other party shall bear the burden of proving that :

a ) the circumstances substantiated by the injured party or the party entitled to assert public interest claims did not exist , or

b ) the party complied with the equal treatment requirement , or in respect of the given relationship he was not obliged to comply with the equal treatment requirement . ”

“ ( CARDINAL ) The following shall not amount to violation of the equal treatment requirement :

a ) proportionate discrimination justified by the nature or characteristic of the work and based on all the relevant and lawful conditions that are to be taken into consideration for the employment ,

b ) discrimination on the ground of religious or other ideological conviction or national and ethnic origin directly flowing from the spirit basically determining the nature of the organisation , justified in view of the content or nature of the occupational activity at issue , and amounting to genuine occupational requirement . ”

Act no . PERSON of DATE on LAW provides :

“ ( CARDINAL ) The exercise of a right shall , in particular , be construed improper if it is intended for or leads to the impairment of the rightful interests of other persons , the limitation of other ORG potential for interest assertion , their harassment , or the suppression of the expression of their opinion . ”

“ ( CARDINAL ) With the exceptions specified in subsection ( CARDINAL ) , employers shall be under a duty to give reasons for a dismissal . The reasons given shall clearly indicate the cause of dismissal . In case of dispute the genuineness and adequacy of the reasons given for the dismissal shall be proved by the employer .

( CARDINAL ) The employer shall be under no duty to give reasons for the ordinary dismissal of an employee if the employee is to be considered a pensioner within the meaning of section CARDINAL/A ( CARDINAL ) a)-g ) . ”

“ ( CARDINAL ) Employers shall not terminate an employment by ordinary dismissal during the periods specified below :

a ) incapacity for work due to illness ... ,

b ) for the period of sick leave granted for caring for a sick child ,

c ) unpaid leave taken for nursing or caring for a close relative ( section CARDINAL ) ,

d ) during a treatment related to a human reproduction procedure specified under a separate LAW , during pregnancy , for DATE after giving birth , and maternity leave [ subsection ( CARDINAL ) of section CARDINAL ] ,

e ) during unpaid leave taken for the purpose of nursing or caring for children [ subsection ( CARDINAL ) of section CARDINAL ] , until the child reaches DATE , during the period of eligibility for child - care allowance , irrespective of taking any unpaid leave ,

f ) during regular or reserve army service , from the date of receiving the enlistment orders or the notice for the performance of civil service ,

g ) the entire period of incapacity for work of persons receiving rehabilitation benefits under a separate ORG . ”

Act no . ORG of DATE on ORG ( as in force at the material time ) provided :

“ ( CARDINAL ) Observing the unconstitutionality of a law applicable in a case before him ... the judge shall ... submit a motion to ORG .

( CARDINAL ) Anyone alleging that a law applicable in his case pending before a court is unconstitutional may file a request initiating the judge ’s action specified under subsection ( CARDINAL ) . ”

“ ( CARDINAL ) Anyone who suffered a violation of law on account of the application of an unconstitutional law and has exhausted all other available legal remedies or no other legal remedy is provided for him may , on account of the violation of his rights enshrined in the LAW , file a constitutional complaint with ORG .

( CARDINAL ) The constitutional complaint shall be filed in writing within DATE from the service of the final decision . ”

Act no . III of DATE on the Code of Civil Procedure provides as follows :

“ According to the decision of ORG , a final judgment shall be subject to reopening if a constitutional complaint is sustained by ORG with retroactive exclusion , in the given case , of the applicability of the law declared unconstitutional . ”

Constitutional Court decision no . CARDINAL/CARDINAL . ( II.CARDINAL . ) ORG contains the following passages :

“ IV . CARDINAL . ... Within the confines of the LAW , the legislator enjoys great freedom in regulating public service relationships . ... In DATE in the public sector – where the legal positions of both the employers and the employees are determined by their dependence on the ORG budget – public - law regulations , basically corresponding to the characteristics of the closed public service system , were introduced . The legal status of the individuals who perform work in the service of the ORG was DATE according to the specific features of the activities performed DATE governed by the legislature in separate Acts of ORG . ... The basic feature of the closed public service system is that the content of the public service relationship and the rights and duties of the subjects of the legal relationship are governed not by the parties’ agreement but by statutes , by law . ... The content of the public service relationship is regulated under the law , regard being had to the fact that public servants carry out the tasks of the ORG , and , in performing their tasks , they exercise public powers , consequently DATE compared to other employees – additional statutory requirements must be imposed on them . The activity of public servants must serve the interest of the public , it must be professional , impartial , devoid of influence and bias , therefore public servants must meet up - to - date and high - standard professional requirements , must bear particular responsibility for their work and are subject to strict conflict - of - interest rules ; however , the incomes earned in the public service remain below the wages that can be obtained in the private sector , since the source of public PERSON remuneration is the ORG budget . The starting point for the closed public service system ... is that « additional requirements – compliance with which may and must be demanded from persons engaged in public service – may only be imposed in return for additional entitlements ORG . Such additional entitlements include the career system regulated and the salary guaranteed in an ORG , the predictable and safe ‘ public service life career’ system and the additional allowances . A basic characteristic of the closed public service system is the stability of public service relationship , namely that a public servant may be removed from office only where the conditions specified in an ORG are met . While until DATE the public service systems of various GPE were characterised by the gradual extension of the closed public service system , since then a strongly critical approach to the closed systems has become more and more dominant . As a consequence , in almost all GPE , public service reform processes have been launched in order to enhance the efficiency , performance and standards of the public administration . The direction of the reforms is to loosen the rigidity of the closed system , and to bring it closer to the regulation of private sector labour relations . The method generally applied for the loosening of the rigidity of the closed system is the loosening of the previously strictly interpreted concept of ‘ non - dismissibility’ and the widening of the grounds of dismissal .

LAW on the Legal Status of Public Servants ( “ Ktv . ” ) has never been based on the principle of ‘ non - dismissibility’ , as it has widely recognised the possibility of dismissing public servants from office and the grounds and conditions of dismissal have even been widened in the period having elapsed since DATE . ...

... The LAW on the Legal Status of Government Officials ( “ ORG . ” ) DATE with its rules on the termination of government official legal relationship – introduced essential changes in the system of public service as it had been created under the PERSON . and terminated the relative stability of the public service relationship guaranteed under the PERSON . ... PERSON . rules on the termination of the legal relationship by dismissal from office not being applicable ... the government officials’ legal relationship may be terminated by release from office by the employer without giving reasons . ...

... In the context of labour relations as regulated under LAW ( “ LOC ) ... ORG [ ... ] evaluated the duty of giving reasons – interpreted as a restriction on the employer ’s right freely to dismiss an employee – as a privilege providing additional protection for employees , to which protection no person had a constitutional right . The employer ’s right freely to dismiss an employee can only be interpreted in the context of employment relationships based on contract , not in the context of civil service relationship based on the ORG . In public service relationships the right of dismissal from office is based not on the freedoms of contract but an ORG ; in case of dismissal from office by the employer the duty to give reasons can not be regarded as a “ preference rule ” ; on the contrary , it is a guarantee flowing from the nature of the legal relationship . ... In public service relationships , the statutory regulations concerning the grounds of dismissal from office constitute an issue of constitutionality , it being a guarantee corresponding to the specific features of public service relationships . [ These ] regulations and , consequently , the obligation to give reasons for dismissal has ... been regarded by ORG ... as a guarantee having constitutional significance ...

... The special features of public - servant and government - official legal relationships ... are determined by the fact that ... officials hold public offices , perform ORG duties , adopt and prepare ORG decisions ... therefore those relationships are basically public - law relationships by their nature .

Article CARDINAL(CARDINAL ) regulates the right to hold a public office as ORG fundamental right . The protection of the right to hold a public office shall primarily mean that the ORG can not make employment to public offices dependent on conditions which exclude , without constitutional reasons , NORP citizens from the possibility of acquiring a public office or make it impossible for a citizen or a group of citizens to hold a public office . ... The constitutional protection flowing from the right to hold a public office does not mean that the holder of a public office can not be dismissed from office . ... Within the confines of the LAW , the legislature enjoys a wide margin of freedom in regulating the grounds for release from office ; this freedom , however ... shall not extend to granting free and unrestricted power to the person exercising the employer ’s rights to dismiss an incumbent from office . Free decisional power granted without any statutory limitation to the person exercising the employer ’s rights ... restricts , according to ORG , in an unconstitutional manner the right to hold a public office , provided for by LAW . [ It is required ] that the substantive - law framework of the employer ’s decision be determined in an ORG . ...

... As to government officials’ dismissal from office , the absence of grounds for dismissal and the lack of any statutory rules concerning the employer ’s obligation to give reasons endangers the ‘ party - neutrality’ , the independence from political influence , the impartiality and , therefore , the lawfulness of decisions of the public administration . Officials working in the organisation of public administration perform their tasks in a strictly hierarchical organisation . [ If ] government officials are not granted protection from dismissal from office , the person exercising the employer ’s rights may , at any time and without giving reasons , discontinue their employment , [ and ] they can not be expected openly to stand up for their professional and legal position , if they risk losing their jobs . ...

... The general judicial legal protection enshrined in Article ORG ) of the LAW is also guaranteed by LAW . In its recent case - law , ORG which has gradually extended the applicability of LAW to labour disputes concerning the service of civil servants ( PERSON v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALVII ; PERSON and Others v. GPE [ ORG ] , no . CARDINAL , ECHR CARDINALII ; PERSON and Others v. GPE , no . CARDINAL , DATE ) – considers the right to effective judicial review as part of the right to a fair trial included in the right to access to a court . For ORG , the judicial legal protection is not effective if there is a procedural or substantive obstacle to a genuine judicial examination of the parties’ claims on the merits ( GPE v. GPE , CARDINAL DATE , Series A no . CARDINAL ; GPE , ORG and GPE v. GPE , DATE , Series A no . CARDINAL ) . ...

ORG holds that by failing to regulate the statutory conditions of dismissal from office by the employer and by allowing for the possibility of not giving reasons for the decision , the legislature disproportionately restricted the right of government officials to judicial legal protection , guaranteed under Article ORG ) of the LAW . In the absence of an obligation to give reasons and of any rules providing guidance for the determination of the lawfulness of a dismissal , the scope of cases ( nullity of and barrier to dismissal , violation of equal treatment , misuse of rights ) in which a government official may turn to court with any prospect of success and in which the court can decide on the merits of a dismissal has become significantly reduced . Under the ORG . , in public service - related legal disputes the unlawfulness of a dismissal by the employer must be proved by the government official . An exception to this rule is made in cases when the legal dispute is based on a violation of the equal treatment requirement ; in such proceedings DATE under LAW no . CXXV of DATE on Equal Treatment and ORG the injured party needs only to substantiate the violation , and it is for the employer to prove that he complied with the equal treatment requirement . Public servants may also turn to court for improper use of rights , violating section CARDINAL of GPE

... As it can be concluded from the reasoning of the LAW , section CARDINAL ( CARDINAL ) of the ORG . allows – in the interest of simpler realisation of government endeavours DATE for the possibility of the termination by the employer of government officials’ legal relationship without any legal limits .

... ORG holds that this vulnerable position of government officials , their being treated as “ means ” for resolving ORG tasks , is contrary to human dignity . ”

Constitutional Court decision no . CARDINAL/CARDINAL . ( V.CARDINAL . ) ORG contains the following passages :

“ CARDINAL . ORG holds that it is a constitutional requirement that legal disputes put before a judge be determined on the basis of constitutional laws . If a judge perceives the unconstitutionality of a law applicable in the case pending before the court , he shall ... be obliged to initiate proceedings before ORG , under section LAW no . ORG of DATE on ORG ( “ Abtv . ” ) .

In the ‘ concrete norm control’ proceedings instituted upon a judge ’s initiative , ORG may pronounce a general prohibition of the application of the law found unconstitutional in all civil actions with identical factual basis , to be determined under the same law . If only specific , rather than general , prohibition of application has been ordered by ORG , the latter shall – upon a further initiative of the judge – conduct the proceedings motioned by the judge solely in respect of the prohibition of application of the law . The legal consequences of the ORG ruling on the general or specific prohibition of application shall be drawn by the judge in charge who shall deliver a decision in the action in compliance with the ruling .

An essential objective of the LAW - protecting tasks of ORG is to prevent the prevalence of unconstitutional norms in the legal system . The judge authorised to determine individual legal disputes ... is bound to adopt a decision on the basis of the constitutional interpretation of the applicable law . However , in case of unconstitutionality irresolvable by the interpretation of the law , the judge – lacking the power to set aside the law – shall necessarily cooperate with ORG , on the basis of his statutory obligation . To put it another way , in case of unconstitutionality irresolvable by the interpretation of the law , the litigant ’s right to a lawful judge shall only prevail in the course of the ORG proceedings . ... The judge turning to the Constitutional Court shall , on the basis of his obligation flowing from Article CARDINAL ) of the LAW , act in order to protect the individual rights of the parties concerned in the legal dispute , but he can only comply with this constitutional obligation upon ORG decision on the merits of the case . ...

Thus , the purpose of the institution of the judge ’s initiative is partly to enforce the litigant ’s fundamental right to a lawful judge , and DATE beyond the abstract protection of constitutionality DATE partly to prevent that any individual legal dispute be determined ... on the basis of an unconstitutional law .

Thus , when in a given litigation the judge – complying with his constitutional obligation – initiates an examination of the constitutionality of the applicable law , the scope of the unconstitutionality found by the Constitutional Court shall , as a rule , extend to all pending litigations having the same factual and legal basis as the CARDINAL giving rise to the ORG proceedings . The legal consequences of the unconstitutionality found and of the general prohibition of application imposed as a result of the examination of the constitutionality in the ‘ concrete norm control’ proceedings shall be drawn by the judges sitting in those pending legal actions which do not form part of the ORG proceedings but have arisen from an identical factual basis and have to be determined under the same law . .... ”

LAW provides as follows :

“ Every worker has the right to protection against unjustified dismissal , in accordance with ORG law and national laws and practices . ”

According to the Explanations relating to LAW [ DATE ) ] , LAW draws on LAW .

The revised NORP Social Charter provides as follows :

“ With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment , the Parties undertake to recognise :

a. the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking , establishment or service ;

b. the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief .

To this end the Parties undertake to ensure that a worker who considers that his employment has been terminated without a valid reason shall have the right to appeal to an impartial body . ”


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

On DATE the applicant company filed a claim against the Best - Sat company in the ORG ( FAC ) . The value of the claim was ORG CARDINAL,CARDINAL.CARDINAL . The claim resulted from ORG refusal to pay the applicant company ’s invoice issued on DATE for the construction of a TV cable network , in accordance with the contract concluded between the parties . The applicant company requested that its claim be considered in a summary procedure ( postępowanie nakazowe ) .

On DATE ORG decided that the case should be considered in the ordinary procedure as it did not fulfil the legal conditions for the summary procedure . On DATE the applicant company filed with the ORG an interlocutory appeal ( zażalenie ) against the decision of DATE . Subsequently , the court ordered the applicant company to pay a court fee of ORG for the consideration of its interlocutory appeal . On DATE the applicant filed with the ORG an application for an exemption from that fee . However , on DATE ORG dismissed that application . The applicant filed another , apparently unsuccessful , interlocutory appeal against the decision of DATE , claiming that the company was on the brink of insolvency as a result of its enforceable claims not having been satisfied by the Best - Sat company .

On an unspecified later date , the case was transmitted to the Bielsko - Biała Regional Court ( Sąd ORG ) in order to be considered in the ordinary proceedings . On DATE ORG ordered the applicant company to pay a court fee of ORG CARDINAL,CARDINAL.CARDINAL for lodging its claim .

On DATE the applicant company filed with the ORG an application for an exemption from the fee , pursuant to section CARDINAL § CARDINAL of LAW . It stated that the amount of the fee was considerably beyond its means . It also submitted that , for DATE , it had made net profits of CARDINAL , while the company ’s assets amounted to ORG CARDINAL,CARDINAL.CARDINAL , but consisted mostly of claims to be satisfied .

The applicant company stressed that it had no possibility to dispose of its assets promptly in order to secure funds to pay the court fee and , even if that were possible , it would lead to the winding up of the company . It further argued that the lack of funds to pay the court fee did not result from any fault in its activities or from a negligent failure to secure funds for the litigation . It also maintained that its claim resulted from work done over DATE which had dominated the activities of the company . Consequently , it did not have other possibilities to secure sufficient funds from other contracts .

On DATE ORG ordered the applicant company to produce a number of documents concerning its financial situation . The relevant documents were submitted to the court as enclosures to a letter of DATE . In the same letter the applicant supplemented its application for exemption from the court fees . It stated that it had CARDINAL enforceable claims , including CARDINAL against ORG which were the subject of the pending litigation . The third claim , although enforceable as of DATE , had not been satisfied . The applicant company stated that its fixed assets of ORG CARDINAL,CARDINAL.CARDINAL were necessary to continue the running of its business and , if disposed of , the company would have to be wound up . The plaintiff also submitted that in DATE it had made net profits of ORG , which were used to set off the losses made in DATE and DATE .

On DATE the ORG rejected the application . The court gave the following reasons for its decision :

“ At the request of the court , the plaintiff has submitted its balance sheets as of DATE and of CARDINAL DATE , as well as a bank statement regarding its accounts as of CARDINAL DATE . In the court ’s view the above documents prove unequivocally that the plaintiff makes profits from its business , as evidenced by the balance on its bank accounts for the period DATE . It should also be pointed out that the plaintiff has gross profits ( przychód ) from its business activity estimated at PLN CARDINAL,CARDINAL.CARDINAL , including gross profits from the sale of goods and materials in the amount of ORG CARDINAL,CARDINAL.CARDINAL .

Furthermore , according to the balance sheet of DATE , the plaintiff company has significant fixed assets ( majątek trwały ) in the amount of ORG CARDINAL,CARDINAL.CARDINAL , and current assets ( majątek obrotowy ) in the amount of ORG .

The examination of the above documents leads to the conclusion that the plaintiff can afford to pay the court fees because it has sufficient funds .

It should also be pointed out that , in case of a lack of such funds , the plaintiff could obtain them by means of ORG surcharges ( dopłaty ) since it is a limited liability company .

All the other expenses of the plaintiff should be treated by it on equal terms with the expenses which are necessary to pursue its claims ... ”

On DATE the applicant company filed an interlocutory appeal against the decision of CARDINAL DATE with ORG . It submitted that ORG had made a mistake in calculating the amounts of fixed and current assets because the figures relied on were from DATE , but the value of the assets had decreased since then . As of CARDINAL DATE the amount of fixed and current assets was estimated at ORG CARDINAL,CARDINAL.CARDINAL and ORG respectively . The applicant company argued that the combined value of all its assets only slightly exceeded the amount of the court fee , and that , if the latter had to be paid in that amount , the company would be forced to wind up .

The applicant company further pointed out that the fixed assets consisted of office equipment which was necessary to run the business , whereas its current assets consisted mostly of reserves of materials necessary to provide services to clients and claims which were the subject of separate litigation . Thus , even assuming that the value of current assets exceeded the amount of the court fee , it could not be presumed that the former could be disposed of in order to provide the funds necessary to pay that fee .

The applicant company also contested ORG view that all expenses should be treated equally , and pointed out that any surplus would be used to pay taxes since failure to do so could result in prosecution . Finally , the applicant observed that the unpaid invoice which gave rise to the present claim related to work done by the applicant company over a period of DATE , which had dominated the applicant ’s business during that period . That was , to a large extent , the reason why the applicant company had been unable to secure funds for possible litigation expenses . Lastly , the applicant company , in principle , agreed with ORG view as to the possibility of obtaining additional funds by means of ORG surcharges . However , relying on section CARDINAL § CARDINAL of LAW , it stressed that a legal person was entitled to exemption from court fees if it proved that it did not have sufficient funds .

On DATE ORG rejected the applicant ’s appeal as follows :

“ According to the plaintiff ’s documents , its financial situation deteriorated only in DATE . However , it emerges from the documents produced in support of the statement of claim that the plaintiff ’s claim results from work done DATE , since the notice to pay for that work is dated DATE . From that it unequivocally follows that the plaintiff could have secured the funds necessary for the pursuance of its claims prior to DATE when its financial situation deteriorated , and when , as it transpires from its balance sheets , its assets and gross profits from the sale of goods and materials had been at the level which had been referred to in the contested decision .

ORG also does not subscribe to the plaintiff ’s view that , if at the current moment the plaintiff does not have sufficient funds to pay the court fee , then it can successfully request to be exempted ... under section CARDINAL § CARDINAL of LAW .

As follows from the established case - law of ORG , and also the case - law of ORG , the possibilities of paying the court fees by a legal person should be assessed in the larger context not only of the funds currently held but also those that could possibly have been secured . When the plaintiff holds a current bank account , where its turnover is recorded , and that turnover still in DATE was of significant volume , then there are no reasons to assume that the plaintiff could not take out the necessary loan in order to obtain the funds needed to pursue claims of the very significant value of ORG . Obviously , interest will be charged on such a loan , but there are no grounds to hold that the cost of such a loan should be borne by the taxpayers , which would happen if exemption from court fees was granted ...

ORG also fully shares ORG argument that , since the plaintiff is a limited liability company , the obligation of the partners to make appropriate surcharges in order to secure funds to cover expenses related to the assertion of claims should be taken into consideration ... ”

The applicant company did not pay the required court fee . On an unspecified later date , the Bielsko - Biała Regional Court ordered that the applicant company ’s statement of claim be returned to it , which meant that its claim was of no legal effect .

According to the applicant company ’s tax return for DATE , in DATE it made net profits of ORG MONEY .

NORP Under NORP law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court . As the case proceeds , either party is obliged to pay further court fees at the time of lodging any appeal , unless granted exemption from such fees .

Court fees are based on a percentage ( if a fee is due for lodging a claim or an appeal ) or a fraction ( if a fee is due for lodging an interlocutory appeal ) of the value of the claim in question . The court fees incurred by either party can , depending on the outcome of the litigation , be finally repaid by the losing party ( who , in principle , is ordered to pay all the costs of litigation in a final judgment ) .

There are , however , categories of litigants who are exempted from court fees by virtue of statutory provisions . Some of those categories are listed in LAW . That provision , in the version applicable at the relevant time , exempted from court fees a party lodging a paternity action , a party seeking maintenance , a prosecutor , a court - appointed guardian and “ any party exempted from court fees by the competent court ” ( that is to say , a party who had been granted an exemption under LAW , cited below ) .

The other categories of exempted litigants are listed in , inter alia , sections CARDINAL and CARDINAL of the Law of DATE on Court Fees in Civil Cases ( PERSON o kosztach sądowych w sprawach cywilnych ) . Under section CARDINAL of the PERSON , ORG , municipalities and other public organs or institutions are not obliged to pay court fees , provided that the claim in question does not relate to their business activities .

In the case of a successful outcome of litigation initiated by a person exempted from court fees , the fees which would normally have been collected from that person for lodging and proceeding with the claim are awarded to ORG against the opponent .

The PERSON of DATE on Court Fees in Civil Cases ( as amended ) sets out general principles with respect to the collection of fees by courts . Section CARDINAL ) of the PERSON , in the version applicable at the material time , stipulated :

“ Unless otherwise provided by the law , a party who has submitted to a court a pleading which is subject to court fees , shall pay such fees . ”

The relevant part of section CARDINAL of the PERSON , in the version applicable at the material time , provided as follows :

“ CARDINAL . The court shall not take any action if the court fee due for lodging a given pleading is not paid . In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days , on pain of having the pleading returned . If the party does not comply with the time - limit , the pleading shall be returned to this party .

Any appeal , cassation appeal , interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [ above ] time - limit . ”

Section CARDINAL provided :

“ A pleading which has been returned to a party as a result of the fact that the court fee had not been paid , shall be of no legal effect . ”

Exemption from the payment of court fees was ( and still is ) a matter for the discretion of the court competent to deal with the case . According to LAW of LAW , the competent court may grant partial exemption from the fees .

Article CARDINAL § CARDINAL of the Code of Civil Procedure , in the version applicable at the material time , stipulated :

“ An individual may ask the competent court dealing with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family ’s standard of living . Such a declaration shall contain details concerning his family , assets and income . It falls within the court ’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested . ”

The grounds for exempting legal persons , companies and business enterprises from court fees were , however , formulated in a different way from the grounds applying to natural persons . LAW CARDINAL of the Code of Civil Procedure in the version applicable at the relevant time read :

“ A legal person , or an entity not possessing legal personality , which has demonstrated that it does not have sufficient financial means for court fees , may be granted an exemption from those fees . ”

Article CARDINAL § CARDINAL of LAW provides :

“ In case of doubt ... as to the real financial situation of the party requesting exemption from court fees , the court may order a verification of [ his / her ] declaration . ”

Article CARDINAL § CARDINAL of LAW reads :

“ The court shall refuse to grant a party [ to the proceedings ] exemption from court fees if [ his / her]claim or defence are of a manifestly ill - founded character . ”

The relevant part of LAW , in the version applicable at the material time , stated :

“ The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist . In either instance , the party concerned shall pay all court and/or legal fees due in the case ... ”

Fees collected by courts do not constitute , nor are they equivalent to , security for costs . The court fees are transferred by financial departments of the courts to ORG and are deemed to be part of its income .

On DATE ORG ( PERSON ) gave a decision in which it referred for the first time to the “ right to a court ” guaranteed under LAW in the context of the requirement to pay court fees for lodging a claim or appeal ( decision no . III ORG CARDINAL/CARDINAL , published in ORG . U. DATE , no . CARDINAL ) .

That ruling concerned an extraordinary appeal lodged by the First President of ORG with ORG . The appeal was directed against a decision of ORG , refusing to exempt a claimant in administrative proceedings from payment of court fees . ORG held as follows :

“ CARDINAL . From the date on which GPE became a member of ORG , the case - law of ORG in GPE may and should be taken into account in interpreting NORP law .

NORP If the subject matter of a case is the party ’s application for substantial financial assistance from the public authorities , particular diligence should be displayed in considering [ that party ’s ] parallel application for an exemption from court fees . [ Any decision ] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court ( as secured by LAW ) ... ”

Although the relevant decision related to court fees for lodging an appeal with ORG by a person who had requested financial assistance from the public authorities , it has been applied mutatis mutandis to civil cases .


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

In DATE the applicant and her parents had been persecuted by the communist authorities . Their property was confiscated and they were exiled to LOC . In DATE they were rehabilitated .

On an unspecified date in DATE the applicant brought an action against ORG , seeking compensation for the confiscated property .

On DATE ORG ruled in favour of the applicant and ordered the defendant to pay her CARDINAL NORP lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) . The judgment was not appealed against and after DATE it became final and enforceable .

On DATE a Bailiff received the enforcement warrant .

The judgment has not been enforced to date .

NORP The relevant domestic law was set out in GPE v. GPE , no . GPE , § DATE , ECHR CARDINAL ( extracts ) .


Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She is represented before ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON .

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

On DATE the applicant lodged a civil claim with the GPE - ORG ( “ the ORG ” ) against her CARDINAL daughters seeking their eviction from the flat where they were cohabiting and an order requiring them not to impede her use of the flat .

On DATE ORG , following a hearing which the applicant attended , partly allowed her civil claim and ordered her daughters not to impede her use of the flat .

The judgment became final on DATE , none of the parties to the proceedings having filed an appeal within the DATE statutory time - limit . It was served on the applicant on DATE .

According to LAW , a judgment must be publicly pronounced , either fully or in its introductory and operative parts , immediately after the hearing .

Article CARDINAL of the Code , in its relevant part , reads as follows :

“ CARDINAL . Copies of the judgment shall be issued to the parties , participating in the hearing , on their request , no later than within DATE following the pronouncement of the judgment .

The judgment shall be served on the parties , who did not attend the hearing , within DATE following its pronouncement [ ... ] .

Copies of judgments may be repeatedly issued to the parties at their expense . ”

In practice , written copies of judgments are issued to the parties , who participated in the hearing , only when explicitly requested for .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

The applicant received a notice of intended prosecution requiring him to name the driver of his car on DATE . The applicant declined to sign the form , maintaining that the car belonged to his employer .

On DATE , ORG convicted the applicant of an offence under section CARDINAL(CARDINAL ) of the Road Traffic Act DATE for failing to give information as to the identity of the driver of his car . He was fined GBP CARDINAL and ordered to pay GBP CARDINAL costs , with his licence to be endorsed with CARDINAL penalty points .

The applicant appealed to ORG , invoking Articles CARDINAL and CARDINAL of the Convention . It rejected his appeal after a hearing on DATE .

The relevant domestic law and practice are set out in O’Halloran and PERSON the GPE [ ORG ] , ORG . ORG , § § DATE , ORG DATE ...


Violation of Art. 6-1;Not necessary to examine Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

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

On DATE the applicant was taken into custody by the officers from ORG branch on suspicion of aiding and abetting an illegal terrorist organisation , the ORG .

On DATE the applicant was brought before the judge at ORG . Before the court she pleaded not guilty and maintained that she did not accept the statements that she had made at ORG . She further denied the testimony of a witness , PERSON , against her . Subsequently , the court ordered her release on account of insufficient evidence to remand her in custody .

On DATE the public prosecutor at ORG filed an indictment with the court charging the applicant under LAW of LAW and LAW no . ORG ( the Prevention of Terrorism Act DATE as amended ) with aiding and abetting the ORG .

On DATE ORG convicted the applicant as charged and sentenced her to DATE and DATE imprisonment . She was further debarred from public service for DATE . The court based its judgment on the following evidence : some ammunition found by the police , various weapons and the ballistics reports confirming the applicant 's use thereof , invoices , a notebook used for recording expenditures of the ORG , photos of the applicant taken with some ORG militants , the statements made by the applicant at ORG , the statements made by ORG , PERSON , PERSON and PERSON at ORG , ORG office and before the court and finally the testimonies of ORG , ORG , ORG , GPE and ORG , who were being tried by the same court for charges with other offences .

On DATE ORG upheld ORG judgment of DATE .

On DATE the GPE chief public prosecutor suspended the execution of the applicant 's sentence until DATE as she had given birth .

The ORG refers to the overview of the domestic law derived from previous submissions in other cases , in particular PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . MONEY , § § DATE , DATE ) .