No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE , at TIME , the applicant was arrested and taken to the NORP police station on suspicion of using explosives during a demonstration .

According to the arrest and seizure report , at TIME , the police had been informed of a gathering which needed to be monitored . Upon their arrival , they had noticed a group of people who had gathered in the middle of the street , holding Molotov cocktails . The group had dispersed when they saw the officers . The report further indicated that the applicant , who had been among the group , had started to run away , threatened to throw a Molotov cocktail at the officers and resisted when the police tried to arrest him . According to the report , the police had used gradual force within legal limits in order to keep the applicant under control and had finally handcuffed him . They had also seized the Molotov cocktail which was ready to explode and had found a piece of fabric in his pocket which could be used as a fuse for the Molotov cocktail .

At TIME the applicant underwent a medical examination at ORG . The report drawn up afterwards indicated no sign of physical violence on his body .

Following the examination , the applicant was taken back to the LOC police station . In the meantime , the GPE public prosecutor ordered that he should be handed over to ORG of ORG .

The applicant underwent a second medical examination at ORG before he was taken to the AntiTerrorist Branch . The second report issued there on DATE , at CARDINAL a.m. , noted once again that there was no sign of ill - treatment on his body .

Upon his arrival at FAC , the applicant was transferred to ORG and was examined by a doctor at TIME Before the examination , he claimed that he had been sworn at , stripped naked , and punched on the chin and shoulders at the NORP police station . The interim forensic medical report issued afterwards noted that the applicant ’s general health condition was good and that he was conscious . It stated that beside a bleeding scratch on his left hand , which he noted had occurred before his arrest , the applicant had CARDINAL scratches of QUANTITY and QUANTITY and a lightly bleeding bruise of QUANTITY on his right elbow , hyperaemia on both his wrists probably caused by the use of handcuffs and some other small scratches on his elbows , chest and shoulders . The report further noted that the movement of the applicant ’s chin was found to be normal . It concluded that the applicant had several soft - tissue lesions , which did not put his life at risk and could be treated with simple medical attention .

Another medical report drawn up at TIME indicated that the applicant had CARDINAL scratches of QUANTITY on both elbows , had difficulty in opening his jaw and pain on the frontal area of his head . This report concluded that the applicant needed to be examined by orthopaedic and neurosurgical departments in a hospital for more accurate results .

Subsequently , at TIME , the applicant was examined by doctors in the orthopaedics and general surgery departments of ORG . The doctors reported that he had QUANTITY scratches on his left shoulder and right elbow and a scratch measuring CARDINAL x QUANTITY on his left side . They further stated that no urgent orthopaedic or osseous pathology could be determined .

After that examination , ORG issued a final report , stating that as there was no orthopaedic or neurosurgical pathology , the superficial scratches and bruises on the applicant ’s body did not put his life at risk and could be cured with simple medical attention .

Finally , on DATE the applicant underwent CARDINAL examinations at the Beşiktaş Branch of ORG . The medical report repeated the findings of the first examination performed in ORG . It also referred to a dental report , made on DATE on account of the applicant ’s allegations of having been punched on the chin , which stated that there was no indication that such external force had been applied to his mouth . Consequently , the applicant was diagnosed as suffering from a soft - tissue lesion which could be cured with simple medical attention .

On DATE , following the medical examinations , the applicant made his submissions before the GPE public prosecutor , to whom he complained that he had been ill - treated while in police custody . He also denied the contents of the arrest and seizure report and stated that when the police had arrested him , he had been on his way to inform his employees’ families that the employees would stay TIME .

Later on , the applicant was questioned by the investigating judge at ORG . Repeating the statements he had given before the public prosecutor , he maintained that he had been walking along with CARDINAL of his employees when the police had pushed him to the ground and handcuffed him . He added that the piece of fabric found in his pocket , which the police claimed was a fuse , was merely a sample he had carried with him for an order , as he worked in the textile business . The investigating judge decided to remand the applicant in custody on suspicion of being a member of an illegal organisation , namely the ORG ( ORG ) , and of threatening to cause fear and panic .

On DATE the GPE public prosecutor separated the investigation into the applicant ’s allegation of ill - treatment from that regarding the applicant .

On DATE the GPE public prosecutor invited CARDINAL police officers from the LOC police station to attend within DATE at the prosecutor ’s office , in order to give their statements on the matter .

On DATE the GPE public prosecutor questioned the applicant once again . The applicant submitted that he had been punched , slapped and pushed against the wall by CARDINAL officers for TIME during his time at the LOC police station . He added that he had not been subjected to ill - treatment during his arrest and while at FAC .

On CARDINAL and DATE respectively , CARDINAL police officers , who had carried out the applicant ’s arrest , were questioned by the GPE public prosecutor . Denying the applicant ’s allegations , they maintained that they had arrested the applicant using gradual force and had taken him to the police station in order to draw up an arrest report . They added that subsequently they had taken the applicant for a medical examination , brought him back to the police station and left . The other officers , who had been at the station while the applicant had been there , denied the allegations as well and maintained that no one at the station had inflicted physical violence on the applicant . CARDINAL of them further referred to the second medical examination , performed right before the applicant had been transferred to ORG , and maintained that the second report did not indicate any sign of ill - treatment on the applicant either . The officers noted , lastly , that the injuries to the applicant must have occurred during his arrest as he had resisted the officers .

On DATE the applicant checked photographs of some of the police officers before the NORP public prosecutor . He maintained that he could not identify the officers who had beaten him from the photographs that were shown to him . He added that he still suffered from pain in his ear as a result of the ill - treatment .

On DATE the GPE public prosecutor ’s office asked the director of the LOC police station to provide him with the names and photographs of all officers on duty at the police station on DATE TIME . The prosecutor ’s office further wrote to various security headquarters in other cities , to which some of the police officers had been assigned , and requested their photographs .

Subsequently , on an unspecified date and on CARDINAL DATE respectively , the applicant was taken twice to the NORP public prosecutor ’s office with a view to checking the photographs of all the officers on duty at the time of the alleged incident . The applicant maintained that he had failed to identify the officers who had ill - treated him from their photographs on account of the passage of time but that he was certain that some , with whom he had been acquainted before his arrest , had not been among them . He added that he would have been able to identify the officers who had beaten him , in person , through an identification parade .

On DATE and DATE respectively , CARDINAL officers from the GPE Anti - Terrorist Branch gave their statements before the public prosecutor . They indicated that before the applicant had been handed over to them , they had asked the police officers from the LOC police station to obtain a medical report and had placed the applicant in custody only after that report had been provided .

On DATE another police officer from ORG was questioned by the public prosecutor , in order to clarify why the applicant had undergone several medical examinations in DATE . The officer claimed that the applicant must have been taken to the doctor several times because of his requests to that effect .

On DATE the GPE public prosecutor asked ORG to explain whether the injuries to the applicant could have occurred as a result of the use of handcuffs during his arrest and whether they might have become visible DATE on , so that the doctors at ORG , who had conducted the initial examinations , could not have noticed them .

NORP In response to the public prosecutor ’s request , on DATE ORG assessed all the medical reports and concluded that the lesions on the applicant ’s body could not have occurred merely from the use of handcuffs and that he must have been subjected to trauma . The report also noted that such lesions might have been unnoticeable during the initial medical examinations as it was usual for them to become visible only after TIME .

After having examined the last report , the GPE public prosecutor requested further clarification from ORG , maintaining that its conclusion referring to trauma conflicted with the previous findings , which indicated that the lesions on the applicant ’s body merely necessitated simple medical attention . Subsequently , on DATE ORG reported that the lesions must have resulted from injuries which had occurred before the applicant ’s police custody and that such lesions might not have been immediately visible . ORG also added that the last medical reports issued in respect of the applicant noted a reduced number of lesions .

On DATE the GPE public prosecutor issued a decision not to prosecute . He stated that the police officers had denied the accusations and that the applicant had not been able to identify any of the officers involved even though he had been shown pictures of all the suspects along with several other officers from the LOC police station . He further indicated that the applicant ’s injury must have been caused by force lawfully employed by the officers during his arrest , which was within the scope of their duties and proportionate to the danger caused by the applicant as he was threatening to throw a Molotov cocktail at the officers . The public prosecutor concluded that the evidence obtained was not sufficient to conclude that members of the security forces had ill - treated the applicant .

The applicant lodged an objection with ORG against the decision of the public prosecutor .

On DATE ORG rejected the objection . The final decision was served on the applicant on DATE .


Violation of Art. 8;Non-pecuniary damage - financial award

The applicant was born in DATE and is currently detained in FAC .

In DATE , there were a series of armed robberies of mini - cab drivers in and around GPE . Each robbery was carried out in the same way by a person posing as a passenger at TIME . Each involved violence . The first robbery was committed on DATE ( for which the applicant was later acquitted ) . On DATE , the applicant was arrested and agreed to an identification parade on DATE . He was released pending the parade .

On DATE , a second robbery , later alleged in count CARDINAL of the indictment against the applicant , was committed . On DATE , the applicant was arrested in relation to that offence . The applicant again agreed to participate in an identification parade to be held on CARDINAL May and was then released . However , on that date , the applicant did not appear for the identification parade but instead sent a doctor 's note stating that he was too ill to go to work . A subsequent identification parade was set for DATE . Notice to that effect was sent to the applicant 's residence . He did not appear for identification on the specified date , stating later that he did not receive such notification as he had changed address .

On DATE , the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent .

On DATE , a robbery , for which the applicant was charged in count CARDINAL of his indictment , occurred . The applicant was arrested on DATE and later acquitted on this count . The applicant agreed to stand on an identification parade scheduled to take place on DATE . On DATE , the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on CARDINAL DATE . On DATE , he did not in fact attend .

On DATE , the robbery alleged in count CARDINAL occurred , while a further robbery alleged in count CARDINAL took place on DATE .

An important part of the prosecution 's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator . For this reason , submitting the applicant to an identification parade was of great importance for the prosecution . Given the failure of the applicant to attend the arranged identification parades , the police decided to arrange a video identification parade . Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under ORG on ORG in Police Surveillance Operations DATE .

On DATE , the applicant was taken from FAC ( where he was being detained on another matter ) to the LOC police station . The prison , and the applicant , had been informed that this was for identification purposes and further interviews concerning the armed robberies . On arrival at the police station , he was asked to participate in an identification parade . He refused .

Meanwhile , on his arrival at the police station , he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went . An engineer had adjusted the camera to ensure that it took clear pictures during his visit . A compilation tape was prepared in which QUANTITY volunteers imitated the actions of the applicant as captured on the covert video . This video was shown to various witnesses of the armed robberies , of whom CARDINAL positively identified the applicant as involved in the second and fourth robberies . Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use .

The applicant 's trial commenced in DATE .

At the outset , the applicant 's counsel made an application pursuant to section CARDINAL of ORG that evidence of the video identification should not be admitted . The judge heard submissions from the prosecution and defence during a preliminary hearing ( “ voir dire ” ) on DATE . On DATE , the trial judge ruled that the evidence should be admitted . When shortly afterwards this judge became unable to sit , the new trial judge heard the matter afresh . In his ruling of CARDINAL DATE , he found that the police had failed to comply with paragraphs DATE , D.CARDINAL.CARDINAL and PERSON of the Code of Practice , inter alia with regard to their failure to ask the applicant for his consent to the video , to inform him of its creation , to inform him of its use in an identification parade , and of his own rights in that respect ( namely , to give him an opportunity to view the video , object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape ) . However , the judge concluded that there had been no unfairness arising from the use of the video . CARDINAL persons had been filmed for comparison purposes rather than the required CARDINAL and were all within comparative height , age and appearance . Even though the applicant 's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos , the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated . The judge ruled that the evidence was therefore admissible .

The trial lasted DATE , the applicant and CARDINAL witnesses giving live evidence . During the course of it , the applicant discharged all his legal representatives ( leading and junior counsel and solicitors ) and conducted his own defence as he was dissatisfied with the way his defence was being conducted . In his summing - up to the jury , the trial judge warned the jury at considerable length about the “ special need for caution ” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker , telling them that if it was not a fair test they should not give much , if any weight , to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage , they could not rely safely on the video identification evidence . The jury were also made aware of the applicant 's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code .

On DATE , the jury convicted the applicant of CARDINAL counts of robbery and acquitted him of CARDINAL others . The judge sentenced him to DATE imprisonment .

The applicant applied for leave to appeal against conviction , inter alia , alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades . Leave was granted by a single judge of ORG .

On DATE , after a hearing at which the applicant was represented by counsel , ORG rejected his appeal , finding that the trial judge had dealt with the matter in a full and careful ruling , that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair . It refused leave to appeal to ORG .

On DATE , the applicant applied to ORG . It rejected the application . The solicitors claimed that they were informed on DATE .

Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices . The Guidelines are available in the library of ORG and are disclosed by ORG on application .

NORP In each case , the authorising officer should satisfy himself that the following criteria are met : ( a ) the investigation concerns serious crime ; ( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , be unlikely to succeed if tried ; ( c ) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism and ( d ) the use of equipment must be operationally feasible . The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence .

Section CARDINAL(CARDINAL ) of PACE provides as follows :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

In NORP v. PERSON [ DATE ] CARDINAL All ER CARDINAL , ORG held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of LAW was relevant to , but not determinative of , the judge 's discretion to admit or exclude such evidence under section CARDINAL of PACE . The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of LAW was admitted in that case .

The Code of Practice was issued under sections CARDINAL of PACE , laid before ORG and then made a statutory instrument . It provided as relevant :

“ D:CARDINAL.CARDINAL

The police may hold a parade other than an identification parade if the suspect refuses , or having agreed to attend , fails to attend an identification parade .

D:CARDINAL.CARDINAL

The identification officer may show a witness a video film of a suspect if the investigating officer considers , whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons , that this would in the circumstances be the most satisfactory course of action .

GPE

The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs CARDINAL and CARDINAL . However , where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so .

ORG

A video identification must be carried out in accordance with PERSON ...

D:CARDINAL.CARDINAL

Before a parade takes place or a group identification or video identification is arranged , the identification officer shall explain to the suspect :

( i ) the purposes of the parade or group identification or video identification ;

( ii ) that he is entitled to free legal advice ( see paragraph CARDINAL of Code C ) ;

( iii ) the procedures for holding it ( including the right to have a solicitor or friend present ) ; ...

( vi ) that he does not have to take part in a parade , or co - operate in a group identification , or with the making of a video film and , if it is proposed to hold a group identification or video identification , his entitlement to a parade if this can practicably be arranged ;

( vii ) if he does not consent to take part in a parade or co - operate in a group identification or with the making of a video film , his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him ; ...

D:CARDINAL.CARDINAL

This information must also be contained in a written notice which must be handed to the suspect . The identification officer shall give the suspect a reasonable opportunity to read the notice , after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co - operate with the making of a video film . The signed copy shall be retained by the identification officer . ”

Annex B set out the details for arranging a video identification , including how , the number and appearance of participants etc .


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Director ORG , and Mr PERSON , Director , both of ORG .

On DATE ORG ( valtiokonttori , statskontoret ) of ORG awarded the applicant a full state pension based on his public service . The pension amount would be reviewed DATE by ORG with reference to an index based on the national salary and price level . Such index adjustments took place up to and including DATE .

On DATE the applicant was awarded , as from DATE , a national old - age pension with a supplementary award for his war - time service .

In DATE and DATE ORG exceptionally amended the legislation on the index - based protection of pension benefits ( Acts nos . DATE and CARDINAL/CARDINAL ) . With these amendments the index figure to be used for DATE and DATE was DATE , as opposed to the respective figures fixed by ministerial order ( DATE and DATE ) .

On DATE ORG refused the applicant 's demand that the amount of his state pension be adjusted with reference to the index fixed by ORG . Reference was made to the exceptional legislation enacted in DATE . According to the notice of appeal attached to the decision , it could be challenged before ORG ( valtion eläkelautakunta , statens pensionsnämnd ) . The applicant 's appeal was refused on DATE . ORG considered that the notice of appeal had been incorrect but nonetheless examined the merits of the appeal , finding that ORG had correctly applied the exceptional legislation in force . On the applicant 's further appeal ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , on DATE , quashed and nullified the decision of ORG to which the applicant had incorrectly been advised to appeal . ORG nevertheless found that ORG had had to refuse the applicant 's demand on the grounds stated in its decision and with reference to the legal provisions invoked therein . ORG was furthermore of the view that the decision in question could not be considered to violate provisions of the LAW . The applicant was later informed by the legal secretary on his case that , in DATE , an opinion on his appeal had been obtained from ORG .

On DATE ORG , relying on the exceptional legislation enacted in DATE , refused the applicant 's demand that the amount of his state pension be based on the index figure fixed by ORG for DATE . On DATE his appeal was refused by ORG essentially for the same reasons as those stated in its decision of the same date with regard to the requested index adjustment for DATE . The applicant was later informed that , in DATE , an opinion on his appeal had been obtained from ORG .

In DATE the applicant requested ORG ( verotuksen oikaisulautakunta , skatterättelsenämnden ) to review the imposition on him of a national social insurance fee for DATE . He argued that no such fee had been provided by the DATE decision to grant him old - age pension . The imposition of the fee was upheld on DATE . The applicant 's appeal was refused by ORG ( lääninoikeus , länsrätten ) of PERSON on DATE with reference to Act no . CARDINAL/CARDINAL which had temporarily amended LAW ( kansaneläkelaki , folkpensionslagen CARDINAL ) by no longer excluding pensioners from the imposition of a national insurance fee . The applicant sought leave to appeal to ORG , arguing , inter alia , that his DATE fee was higher than his old - age pension . The imposition of the fee , taken together with the exceptional legislation blocking index - based increases in his state pension , was effectively depriving him of yet further property to which he had a legitimate claim . Having granted leave to appeal , ORG , on DATE , refused the appeal , considering that the DATE pension decision had been silent as to the conditions for imposing a national social insurance fee on a pensioner who had reached DATE . Act no . CARDINAL/CARDINAL , which provided for such imposition , had been enacted on DATE and had been applied during DATE . Its wording had not been ambiguous and its application could not be affected by the constitutional provisions protecting private property and prohibiting discrimination . Nor did LAW No . CARDINAL to the Convention have any impact on the collection of a fee with the character of a tax .

On DATE ORG refused the applicant 's demand that the national social insurance fee imposed on him for DATE be lifted as being unconstitutional . On DATE his appeal was refused by ORG with reference to Act no . DATE , which had prolonged the temporary amendment to LAW no . CARDINAL/CARDINAL ) , and on the grounds of principle relied on by ORG in its decision of DATE concerning the imposition of the insurance fee for DATE . On DATE ORG refused the applicant leave to appeal .

In DATE LAW was amended to the effect that , in DATE , the national pension ( e.g. , the old - age pension ) was to be replaced by a pension calculated with reference to new criteria . Those whose total income in the form of other pensions and various compensations exceeded certain ceilings would no longer be entitled to a national pension . In such a case the so - called basic amount ( pohja - osa , basdel ) of their national pension would be reduced by MONEY annually DATE ( Act no . CARDINAL/CARDINAL ) .

On DATE ORG ( kansaneläkelaitos , folkpensionsanstalten ) refused the applicant 's demand that he should continue receiving the basic amount of his old - age pension as adjusted in accordance with the relevant index figure to be applied according to the provisions in force when the pension was granted . On DATE ORG ( tarkastuslautakunta , prövningsnämnden ) dismissed his appeal with reference to LAW . The decision further referred to an opinion obtained from ORG . This opinion was not communicated to the applicant for possible comments . No further appeal lay open .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant was born in DATE and lives in PERSON ( GPE ) .

He and his sister are the owners of a flat in PERSON ( GPE ) , which they had let to PERSON

In a writ served on the tenant on DATE , the applicant informed the tenant of his intention to terminate the lease on expiry of the term on DATE and summoned the tenant to appear before the Cava De ' Tirreni Magistrate ( LOC ) .

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

On DATE , the applicant served notice on the tenant requiring her to vacate the premises .

On DATE , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

On DATE , the bailiff made CARDINAL attempt to recover possession , which proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order of possession .

The tenant asked the Cava De ' PERSON to suspend the eviction proceedings .

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

Pursuant to Law no . CARDINAL , the enforcement proceedings were suspended until DATE .

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .

NORP The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , LAW provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

On DATE the applicant ’s father was convicted of keeping , contrary to the regulations then in force , CARDINAL gold coins and CARDINAL silver coins of numismatic value . He was sentenced to DATE imprisonment . He was also fined , and the coins were confiscated .

On DATE , in the context of judicial rehabilitation provided for by LAW DATE , ORG of GPE ( Najvyšší súd ) quashed the judgment of CARDINAL DATE and all consequential decisions , and discharged the applicant ’s late father .

On DATE the applicant claimed the restitution of his father ’s coins under LAW DATE ( “ the DATE LAW ) .

On DATE ORG Okresný súd ) granted the action and ordered ORG to restore the coins to the applicant . The court established , with reference to the relevant records , that the coins had been taken away from the applicant ’s father on DATE and transmitted to ORG in GPE on DATE . On DATE the coins had been examined by an expert and inventoried on the premises of ORG in GPE .

“ It is true that the law requires that a person claiming restitution of movable property should indicate and show where such property is . However , in the present case the plaintiff undoubtedly has no possibility of inspecting the LOC or safes of the former ORG in GPE as he is not allowed to enter those LOC . By insisting that the applicant should show that the coins are at the last known place , the ORG would impose a burden of proof on him which it is practically impossible to fulfil . On the contrary ... ORG neither showed that the former ORG in GPE had transferred the coins to a different authority nor did it propose to take evidence to that effect ...

The ORG has established that the last time [ their exact location was known ] the coins ... had been held on the premises of ORG in GPE to which ORG is a successor , and it has not been shown that the coins were not on those LOC when FAC became operative , that is , on DATE . ”

On DATE ORG appealed . Its representative argued that all relevant documents had been destroyed and that the onus of proof as to where the coins had been deposited lay on the applicant .

On DATE ORG ( Krajský súd ) ruled in favour of ORG . It found , with reference to sections PERSON ) , CARDINAL ) and CARDINAL ) of the CARDINAL Act , that the applicant had failed to show where the coins had been deposited when that LAW had become operative on DATE .

In the judgment , ORG admitted that the applicant had limited possibilities of locating his father ’s property . It had therefore taken further evidence on its own initiative . In particular , ORG noted that , in accordance with the relevant practice , the confiscated property should have been handed over to the public prosecutor and , after the relevant judgment had became final , to the financial department of the competent local government authority . ORG therefore examined the criminal file concerning the case of the applicant ’s father . It further established that the archives of ORG , ORG , ORG and ORG in GPE contained no document relating to the coins in question . ORG also heard a witness who had worked at ORG in DATE ; the latter had no knowledge of the case , however . It did not consider it necessary to hear CARDINAL other persons , CARDINAL of whom had been present when the coins were inventoried and taken over by ORG , as those persons had been dismissed from service in DATE and in DATE respectively . Their statements would not , therefore , make it possible to establish the relevant facts of the case .

On DATE ORG dismissed the applicant ’s appeal on points of law . It shared ORG view that the applicant had failed to produce evidence that the defendant Ministry was in possession of the coins , as required by section CARDINAL ) of the CARDINAL Act .

In the judgment , ORG further stated :

“ The allegation that the movable property in question had been taken over by an employee of ORG in GPE on CARDINAL DATE and that ... it had been examined there by an expert on DATE can not suffice . Since then , a considerable period has lapsed , during which the gold and silver coins in question could have been alienated , destroyed or lost . The legislator , however , explicitly included in section CARDINAL ) of LAW the obligation to show where the movable property in question was at the time of the entry into force of that Act .

... It follows from a logical and systematic interpretation of section CARDINAL(CARDINAL ) of LAW that a restitution claim can only concern the same property which was taken over by the ORG and not a different object of the same kind . Only movable property which can be individually identified by specific features which mean that it can not be confused with other objects is therefore liable to restitution ... ”

Law no . CARDINAL on judicial rehabilitation ( PERSON o súdnej rehabilitácii ) came into force on DATE . The relevant provisions read as follows :

“ The aim of the LAW is to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the LAW and set out in international instruments , ... to ensure social rehabilitation and adequate material compensation for the persons [ so ] convicted ... ”

( CARDINAL ) The conditions under which the provisions of this LAW shall apply to claims resulting from the quashing of confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law . ”

Law no . CARDINAL/CARDINAL on extra - judicial rehabilitations ( PERSON o mimosúdnych rehabilitáciách – “ the CARDINAL LAW ) came into force on DATE . Its preamble states that it was enacted with the aim of mitigating the consequences of certain infringements of property and other rights which occurred between CARDINAL DATE and DATE . The relevant provisions of the DATE Act read as follows :

“ ( CARDINAL ) This Act aims at the mitigation of the consequences of certain infringements ... which occurred between CARDINAL DATE and DATE ... and which are incompatible with the principles of a NORP society respecting the rights of citizens as enshrined in the Charter of ORG , LAW and the ensuing international covenants on civil , political , economic , social and cultural rights .

( CARDINAL ) This Act also lays down the conditions for submitting claims resulting from the quashing of convictions by which property was confiscated ... as well as the manner of redress and the scope of such claims . ”

“ ( CARDINAL ) ORG persons [ namely , persons entitled to file a claim under this LAW ] are all natural persons whose property passed into ORG ownership in the circumstances referred to in section CARDINAL provided that they are nationals of the NORP and GPE and have their permanent residence within its territory .

( CARDINAL ) NORP In cases where the person whose property passed into ORG ownership in the circumstances referred to in section CARDINAL has died ... the following natural persons are entitled [ to claim restitution ] provided that they are nationals of the NORP and GPE and have their permanent residence within its territory ...

( a ) the testamentary heir ... who has acquired the whole estate ;

“ ( CARDINAL ) Persons obliged [ to restore the property ] shall comprise the ORG or legal persons having confiscated property in their possession on the date of entry into force of this LAW ...

( CARDINAL ) Any natural person who [ unlawfully ] acquired property from the ORG shall also be obliged to restore such property ... ”

“ ( CARDINAL ) A person obliged [ to make restitution ] shall restore the property upon a written request provided that the person [ claiming the property ] proves that he or she is entitled to have the property restored and shows the manner in which it was taken by the ORG . When claiming restitution of movable property [ the person concerned ] is further required to show where the property is ... ”

“ ( CARDINAL ) ORG compensation may be granted to the person concerned only in respect of real property which can not be restored ...

( CARDINAL ) Where the ORG acquired , on the basis of a judicial decision which was quashed under LAW ( Law no . CARDINAL/CARDINAL ) ... , the entire property of a citizen and where such property did not comprise real property , the person concerned is entitled to compensation in the amount of CARDINAL NORP korunas ... ”

“ ( CARDINAL ) ORG persons are persons who were rehabilitated under PERSON no . CARDINAL/CARDINAL who meet the conditions set out in section CARDINAL(CARDINAL ) or , where such persons are dead ... , persons set out in section CARDINAL(CARDINAL ) [ of LAW DATE ] . ”

“ ( CARDINAL ) The persons obliged [ to restore confiscated property ] shall comprise any legal person referred to in section CARDINAL ) , any natural person referred to in section CARDINAL ) who acquired such property from the ORG where the ORG itself obtained it as a result of a judicial decision , and the competent central government authority .

( CARDINAL ) The persons obliged to restore confiscated property shall do so in accordance with sections CARDINAL , ... of the LAW ; where it is impossible to restore the property the persons concerned are entitled to claim compensation in accordance with LAW of [ this ] Act . ”

NORP In judgment no . QUANTITY of CARDINAL DATE , ORG upheld the lower courts’ conclusion that movable property which could not be individually identified could not be restored under LAW . In the proceedings in question , the plaintiffs claimed restitution of a gold brick , several gold coins and banknotes which had been transferred to the ORG in DATE . The relevant part of ORG judgment reads as follows :

“ ... on the basis of a logical and systematic interpretation of section LANGUAGE of LAW , as amended , and after comparing that provision with other provisions [ of that LAW ] , ORG concluded that only movable property which can be individually identified by specific features which mean that it can not be confused with other objects is liable to restitution ... The appellants’ view that objects identified by their kind but not individually may also be restored is incorrect as it is contrary to the nature and purpose of the Extra - Judicial Rehabilitations Act , the aim of which is to mitigate the consequences of certain ( that is , not all ) infringements of property and other rights ... ”


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

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

They are the owners of a flat in GPE , which they had let to NORP

In a registered letter of CARDINAL DATE , the applicants informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .

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

On DATE , the applicants served notice on the tenant requiring him to vacate the premises .

On DATE , they served notice on the tenant informing him 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 applicants were not entitled to police assistance in enforcing the order for possession .

On DATE , the applicants recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of CARDINAL DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages ” .

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


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

The applicant used to work as a bank employee . Since her retirement at DATE on DATE , she receives a pension under the statutory old - age insurance scheme ( gesetzliche GPE ) , an additional pension under a supplementary insurance scheme for bank employees ( GPE ) and an additional DATE allowance granted by her former employer ( PERSON ) .

On DATE the applicant married a retired civil servant of DATE who - since DATE - received a pension under the old - age pension scheme for civil servants ( PERSON ) .

On DATE the applicant 's husband died . According to Articles CARDINAL and CARDINAL of ORG Pension Act ( Beamtenversorgungsgesetz , see relevant domestic law below ) a civil servant 's widow , whose marriage has been celebrated after the civil servant has entered retirement , is not allowed to a regular survivor 's pension ( PERSON ) , but to a maintenance allowance ( Unterhaltsbeitrag ) , which is meant to ensure that her overall DATE income reaches at least the amount of the regular survivor 's pension . It is calculated as follows : From the amount of the regular survivor 's pension the competent authorities deduce the widow 's own earned income ( ORG ) and income replacements ( Erwerbsersatzeinkommen ) , with the exception of an allowance ( Freibetrag ) which amounts to PERCENT of the minimum survivor 's pension .

In the applicant 's case the competent authority deduced the applicant 's whole other income , including her pension , her supplementary pension and the additional payments from the original widow 's allowance . After adding the above - mentioned allowance , this resulted in a remaining DATE payment of CARDINAL DEM [ CARDINAL ORG ] .

On DATE , following administrative proceedings , the applicant lodged a claim with ORG ( Verwaltungsgericht ) with the aim to be awarded a higher maintenance allowance . She argued that her own supplementary pension and additional payments could not be regarded as income replacements within the meaning of LAW and could therefore not be taken into account when calculating her DATE allowance as a widow . She further pointed out that under the statutory old - age insurance scheme , additional payments deriving from a private insurance scheme did not diminish the survivor 's pension , and that the same should apply under ORG Pension Act .

On DATE ORG rejected her claim .

On DATE , following the applicant 's appeal , ORG ( Oberverwaltungsgericht ) quashed ORG judgment and fully granted the applicant 's claim , finding that the term “ income replacement ” had to be interpreted in the same way as in the relevant provisions on the statutory old - age insurance scheme and therefore did not include the additional payments received under a private pension scheme .

On DATE ORG ) quashed ORG judgment and rejected the applicant 's claim . According to that court , the relevant provisions had to be interpreted autonomously , because they differed considerably . The statutory old - age insurance only pays pensions and no allowances to widows . Considering the wording as well as the aim of the provision , which was to secure that the widow 's overall income did reach at least the amount of the regular survivor 's pension , that court found that all of the applicant 's DATE income , including her claims under private pension schemes , had to be taken into account . ORG pointed out that the widow 's allowance was merely meant to prevent hardships arising from the fact that the applicant was not entitled to a regular survivor 's pension . It would be in contradiction to this aim not to take payments under a private pension scheme into account .

On DATE the applicant lodged a constitutional complaint . She argued that ORG had misinterpreted the relevant provisions and that its judgment violated her property rights and her right to equal treatment under LAW . On DATE the applicant requested ORG to seek a preliminary ruling by ORG of ORG as to whether the national legal practice on the assessment of income replacements complied with Community law , in particular with the law on equal treatment .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to entertain the applicant 's complaint , finding that it was up to the lower instance courts to interpret the law and that the decision in question did not violate any of the applicant 's rights under LAW . This decision was served on the applicant on DATE .

Pensions of civil servants and their surviving spouses are governed by ORG , the relevant provisions of which at the material time read as follows :

Article CARDINAL

“ A civil servant 's widow ... receives a survivor 's pension . This does not apply , if

... CARDINAL . the marriage was celebrated after the civil servant had entered retirement and had reached DATE ... ”

Article CARDINAL

“ If LAW No . CARDINAL applies ... the widow has to be granted a maintenance allowance amounting to the survivor 's pension . Earned income and income replacements have to be taken into account to an appropriate degree ... ”

The administrative regulations for implementing ORG Pension Act ( Verwaltungsvorschriften ) provide that an amount of PERCENT of the minimum widow 's pension has to be deduced from the widow 's other income when calculating the maintenance allowance .

According to LAW volume of the Social Law book ( ORG ) - which provides the general definitions for pensions under the statutory old - age insurance scheme - pensions paid under a private insurance scheme are not to be regarded as income replacements and are therefore not to be taken into account when assessing a survivor 's pension under the statutory old - age insurance scheme .


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

The applicant was born in DATE and lives in the town of PERSON in GPE of GPE .

On DATE the applicant sued his employer , a mining company , for payment of royalties . The first hearing , fixed for DATE , was adjourned due to the applicant 's absence . The following hearings of DATE and DATE were also postponed upon his requests .

On DATE the ORG found for the applicant . However , that judgment was quashed on appeal on DATE and re - examination was ordered . The applicant amended his claims .

On DATE ORG ordered an expert study . The proceedings were stayed until DATE when ORG received the expert report . In DATE another expert study was ordered . The applicant again amended his claims .

On DATE ORG dismissed the action . That judgment was quashed on appeal on DATE and the case was remitted for a fresh examination .

A judge was assigned to the case in DATE and the first hearing was listed for CARDINAL DATE . However , that hearing was adjourned because the parties defaulted . The following hearing of DATE was postponed upon the parties ' request for provision of additional evidence .

On DATE ORG ordered an expert examination . The proceedings were resumed on DATE after the expert report had been submitted to ORG .

QUANTITY hearings , fixed DATE and DATE , were adjourned because the defendant defaulted and the court wanted to call an expert .

On DATE ORG ordered an expert study . The proceedings were resumed DATE .

On DATE the ORG found for the applicant . The judgment was quashed on appeal and the case was remitted for re - examination on DATE .

A judge was assigned to the case on DATE . In DATE and DATE the presiding judge inquired several expert organisations about a possibility to perform expert studies . A hearing was fixed for DATE . However , it was adjourned for provision of additional evidence by the defendant . The following hearing was fixed for DATE .

On DATE ORG ordered another expert examination . The applicant appealed against that decision , but on DATE his appeal was dismissed .

In DATE ORG sent the case - file to an expert bureau . DATE the experts asked ORG for additional documents . The documents were submitted to the experts in DATE . In DATE and DATE the experts inquired ORG about the fees for their work .

In DATE ORG asked ORG of GPE to bear the costs of the expert examination . It appears that the expert fees were paid in DATE .

In DATE and DATE ORG inquired the experts about the progress in their work . On DATE the experts informed ORG that the expert report had been submitted to it on DATE .

In DATE the experts once again sent the report to ORG . The report contained certain procedural defects and ORG asked for corrections . In DATE and DATE ORG repeated its request . No response followed .

From DATE to CARDINAL DATE the applicant lived in GPE .

On DATE ORG received the corrected expert report . DATE the proceedings were resumed and a hearing was fixed for DATE . The parties were summoned . The summonses to the applicant were sent to all known addresses , including CARDINAL in GPE .

The hearing of DATE was postponed because the applicant defaulted . The advice of receipt concerning the applicant 's summonses returned from GPE with the note indicating that the applicant had refused to accept them . The following hearing was fixed for DATE . ORG sent summonses to all known addresses of the applicant , including CARDINAL in GPE . It also unsuccessfully attempted to summon the applicant by phone .

On DATE ORG disallowed the applicant 's action because he had failed to attend CARDINAL hearings and had not notified of the reasons for his absence .

NORP The applicant applied to ORG for annulment of the decision of DATE . On DATE ORG dismissed the request . The court held that the applicant had been properly summoned . Moreover , there was evidence that he had refused to accept the summonses for the hearing of DATE . The applicant did not appeal against the decision of DATE to ORG of GPE .


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

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

The applicant is the father of CARDINAL children born in wedlock : a son PERSON , born on DATE , and CARDINAL daughters born in DATE and DATE .

In DATE the applicant ’s wife left the joint household together with the CARDINAL children and denied the applicant contact with them .

On DATE the applicant requested ORG ( ORG ) to grant him rights of contact with his CARDINAL children .

On DATE ORG , having heard expert opinion , suspended the applicant ’s rights of contact .

On DATE ORG ( Oberlandesgericht ) limited the suspension of rights of contact until DATE .

On DATE , during a court hearing , the parents agreed on CARDINAL contact visits , to take place on DATE and DATE within the LOC of ORG . Following these visits , the mother refused to consent to further contact visits .

On DATE , in the proceedings relating to the GPE divorce , the parents agreed that the applicant should enjoy supervised contact visits with his son PERSON on a DATE basis .

Following CARDINAL contact between the applicant and PERSON , which took place on DATE , the child ’s mother refused to grant the applicant further rights of contact .

The applicant ’s marriage was dissolved on DATE without a decision on the applicant ’s rights of contact having been taken .

On DATE the applicant , who was represented by counsel , having regard to the fact that the mother did not comply with the access agreement concluded on DATE , requested ORG to grant him rights of contact with his son PERSON by interim order .

On DATE ORG held a hearing .

On DATE ORG refused the applicant ’s request for an interim contact order on the ground that it deemed it necessary to examine further whether a regulation of rights of contact was in PERSON ’s best interests . It noted that PERSON , when heard by the court , had objected to contact with his father and that the tensions and conflicts between the parents were known to the court through a multitude of judicial proceedings pending between them .

ORG further ordered both parents to contact a municipal family counselling centre and to make use of the counselling offered to them . It further appointed a curator ad litem to represent the child ’s interests .

On DATE ORG held a hearing in the main proceedings .

On DATE ORG refused the applicant ’s request in the main proceedings , on the ground that fixed DATE contact visits would jeopardise the child ’s welfare . It noted that PERSON , who was DATE , had repeatedly declared that he refused contact with his father . According to ORG opinion , PERSON should not be forced into contact with the applicant . According to the curator ’s submissions , PERSON did not refuse contact with his father capriciously . Apparently , the hurt he had sustained in DATE had been so serious that he now did not wish to agree to personal contact with his father . There was no indication that PERSON had been influenced by his mother in this respect . The judicial conflicts concerning custody and rights of contact and the confrontations had led to the adolescent ’s seeking psychotherapeutic treatment . Having regard to these circumstances , ORG considered that it was in the child ’s best interests to refuse the applicant ’s request for rights of contact . The applicant remained , however , free to stay in touch with his son by mail .

On DATE the applicant lodged an appeal with ORG .

On DATE the applicant ’s counsel submitted reasons for his appeal . He alleged , in particular , that F. had been influenced by his mother against him and that a prohibition on contact visits would jeopardise the child ’s welfare . The mother contested these submissions .

On DATE ORG held a hearing in the presence of the applicant , PERSON ’s mother , PERSON , his curator ad litem and a ORG representative . The applicant alleged that F. suffered from parental alienation syndrome ( ORG ) and requested the court to hear expert opinion in this respect .

On DATE ORG ordered the preparation of an expert opinion by psychological expert O. as to whether the exercise of rights of contact was contrary to F. ’s welfare .

On DATE the applicant requested ORG to rectify the record of its hearing and to include the applicant ’s request to hear an expert opinion on ORG . The applicant further objected to the commission of expert ORG , on the ground that the latter was not licensed as a psychologist for children and adolescents , but only for adults . Furthermore , the question put to the expert did not sufficiently take into account the problems relating to ORG .

On DATE ORG refused the applicant ’s request for rectification of its record . It further appointed psychological expert PERSON to replace PERSON , who had been prevented by illness from accepting the commission .

On DATE the applicant named CARDINAL witnesses to demonstrate that PERSON had been manipulated by his mother and submitted a written witness statement . He further requested ORG to allow him contact with his son by interim order .

On DATE ORG asked the applicant whether the request for an interim order could be suspended , having regard to ORG efforts . In reply , the applicant declared on DATE that the matter did not allow for any further delay , taking into account the fact that F. would soon reach the age of majority .

On DATE the applicant alleged that ORG had delayed the proceedings and complained about the length of the proceedings on access rights . He further expressed doubts as to the competency of the court - appointed expert . Additionally , he named a further witness .

On DATE the applicant rejected expert PERSON , alleging that she lacked the necessary qualifications .

On DATE ORG refused the applicant ’s request for an interim contact order . Having regard to F. ’s own statements when heard by the court and to ORG submissions , that court considered that there were serious indications that court - ordered visits would lead to a deterioration of the relationship between father and son .

On DATE the ORG released expert PERSON from her duties at her own request and decided to commission an expert , to be named by the psychological institute of ORG .

On DATE the applicant accepted the nomination of Professor PERSON as an expert .

On DATE ORG commissioned the expert Professor PERSON , who submitted his expert opinion on DATE . The expert considered that there was no indication that the applicant presented a danger to the child ’s welfare . However , the severe conflicts between their parents prevented all CARDINAL children from maintaining an emotional relationship with them . In this respect , both parents were seriously harming their children .

The expert further considered that F. could be rather easily influenced by third persons . He did not , however , meet all the criteria defining parental alienation syndrome . Having regard to F. ’s age and his strong resistance to contact visits , the expert urgently advised the court not to order forced contact visits . Such an order would not only jeopardise F. ’s welfare , but would also complicate the instigation of voluntary contact after PERSON had reached adult age .

In DATE ORG scheduled a hearing for DATE , which was postponed at defence counsel ’s request to DATE .

On DATE the applicant submitted CARDINAL comments in reply to the expert opinion prepared by CARDINAL psychological experts . He further repeated his request to summon the nominated witnesses to the hearing .

On DATE ORG held a hearing in the presence of both parents , PERSON , the curator ad litem , the expert Professor PERSON and another psychological expert summoned by the applicant . Following deliberations , PERSON declared that he was ready to meet the applicant on a DATE basis as from DATE . The applicant declared that he would not pursue the proceedings further as long as the meetings took place .

On DATE a meeting took place between the applicant and F.

On DATE F. informed ORG that he did not wish to continue the meetings because his father had failed to show personal interest and , in particular , because his father had taken enforcement measures against him .

On DATE the applicant , through his counsel , contested these submissions and urgently requested ORG to render a decision without a further hearing .

On DATE ORG served the applicant ’s submissions on the defendant , the curator and ORG for comments within DATE . ORG further considered that the applicant had not pursued his original request to hear the expert Professor PERSON in person .

On DATE the applicant stated that rights of contact should be granted in accordance with the agreement made during the hearing on CARDINAL March CARDINAL . Alternatively , he requested to be granted an interim contact order for DATE . As a further alternative , he requested ORG to hold a hearing without further delay and to hear the expert Professor P.

On DATE the applicant ’s counsel submitted a personal letter dated CARDINAL DATE from the applicant to his son and requested the court to render a decision without further delay .

On DATE the applicant ’s counsel submitted further comments .

On DATE ORG dismissed the applicant ’s appeal . That court accepted that the applicant wished to exercise rights of contact in accordance with his son ’s best interests . It considered , however , that the exercise of rights of contact would jeopardise PERSON ’s welfare . ORG , having heard F. personally , was firmly convinced that PERSON had formed his own strong opinion on the question of contact with his father which could be only marginally influenced by his mother ’s wishes . Under these circumstances , the court did not consider it necessary to examine whether PERSON had been negatively influenced by his mother or to hear further expert opinion .

ORG further noted that PERSON , during the hearing held on CARDINAL March CARDINAL , and under the influence of the expert ’s and the court ’s submissions that the exercise of rights of contact would not be harmful to him , had agreed to see his father once a month if the applicant refrained from instituting judicial proceedings . Accordingly , CARDINAL meeting took place , on DATE . Having learned that the applicant had taken enforcement measures against him by attempting to execute costs orders obtained against him in separate proceedings , PERSON refused to agree to further contact . Even taking into account the explanations given by the applicant for taking these enforcement measures , according to which the enforcement measures were aimed at the mother and were addressed to the son for purely formal reasons , ORG considered that PERSON ’s reaction was understandable , at least on an emotional level . Having regard to the fact that PERSON had almost reached the age of majority , his firmly established will had to be respected . ORG further considered that forced contact visits were not likely to contribute to establishing a stable relationship with his father .

This decision was served on the applicant ’s counsel on DATE .

On DATE the applicant lodged an extraordinary appeal ( GPE ) against ORG decision . He complained , in particular , that ORG had given its decision without having heard the witnesses named by the applicant and without a further oral hearing . He further complained about the length of the proceedings before ORG .

On DATE the applicant extended the scope of his extraordinary appeal and requested ORG to reopen the proceedings because of an infringement of his right to a fair hearing .

On DATE the curator ad litem requested the court to grant an extension of the time - limit for comments on the applicant ’s submissions until DATE .

On DATE the applicant lodged a complaint with ORG ( Bundesverfassungsgericht ) .

On DATE ORG informed the curator that the time - limit could only be extended until DATE , having regard to the urgency of the matter .

On DATE ORG dismissed the applicant ’s extraordinary appeal . ORG pointed out that it had referred to the written expert opinion submitted by Professor PERSON only in support of the assumption that contact with the applicant would not in principle jeopardise the child ’s welfare . This assumption was in the applicant ’s favour and induced the court to propose contact visits . Under these circumstances , it had not been necessary personally to hear the expert . Based on its own impression during the hearing held on DATE , ORG confirmed that it had no doubt that PERSON ’s refusal further to see the applicant was based on an autonomous decision . Under these circumstances , it was out of the question to impose contact visits on the adolescent , who was at the time DATE .

This decision was served on the applicant ’s counsel on CARDINAL DATE .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s constitutional complaint for adjudication pursuant to the relevant provisions of its Rules of Procedure without giving any further reasons . This decision ( file no . CARDINAL BvR CARDINAL/CARDINAL ) was served on the applicant on DATE .

According to LAW , a child is entitled to have contact with its parents ; each parent is obliged to have contact with , and is entitled to such contact with , the child .

Pursuant to subsection CARDINAL , each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child .

The family courts can restrict or suspend a parent ’s rights of contact if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s welfare would be jeopardised ( LAW ) .


CASE OF WESSELS-BERGERVOET v. THE NETHERLANDS

Violation of Art. 14+P1-1;Just satisfaction reserved

The applicant and her husband have always lived in the GPE . By a decision of DATE , the applicant 's husband was granted a married man 's old - age pension under LAW ( PERSON ) commencing on DATE . However , pursuant to the then section CARDINAL of the Act , his pension was reduced by PERCENT as neither he nor the applicant had been insured under LAW during CARDINAL periods DATE and DATE when he had worked in GPE and had an old - age insurance under the NORP social - security legislation . These CARDINAL periods amounted in total to DATE . No appeal was filed against this decision .

After the applicant reached DATE , ORG ) , by a decision of DATE , granted the applicant an old - age pension under LAW commencing on DATE . As had occurred with her husband 's pension , her pension was also reduced by PERCENT . The applicant filed an appeal with ORG ( PERSON ) , as it was then known , complaining that this reduction in her old - age pension constituted discriminatory treatment .

In its decision of CARDINAL DATE ORG noted that , under sections DATE CARDINAL of the General Old Age Pensions Act , a married person DATE like the applicant – who had been insured under this LAW and had reached DATE was entitled to an old - age pension amounting to PERCENT of the net minimum wage per month .

NORP However , under the terms of CARDINAL of the LAW , this amount could be reduced by PERCENT for DATE in which the person concerned had not been insured DATE . ORG further noted that , according to section DATE ) of the LAW , those insured were persons DATE who were either resident in the GPE or , if not , were liable to payment of salaries tax ( loonbelasting ) in respect of work carried out in the GPE under a contract of employment . Under the present subsection CARDINAL of section CARDINAL of the LAW , it was possible , by way of an Order in Council ( Algemene Maatregel van Bestuur ) , to extend or limit the group of insured persons as an exception to the general rule contained in section CARDINAL(CARDINAL ) .

ORG referred to the case - law of ORG ( ORG ) to the effect that the question whether or not a person was insured under LAW fell to be determined on the basis of the rules in force at the relevant time .

It further noted that , by virtue of CARDINAL consecutive royal decrees on the extension and limitation of the group of insured persons ( Koninklijke Besluiten Uitbreiding en Beperking van de kring der verzekerden ) that had been issued under section CARDINAL ) of the LAW and had remained in force until DATE , persons residing in the GPE but working abroad under a contract of employment and insured under a foreign social - security scheme by virtue of that employment were not insured under LAW . That limitation also applied to a woman married to a person who , pursuant to those royal decrees , was not insured under LAW .

ORG noted that it was not in dispute that , during the relevant periods , the applicant 's husband had been working in GPE and had been subject to NORP social - security legislation in accordance with Ordinance no . CARDINAL of ORG ( until DATE ) and subsequently LAW .

It found that , in these circumstances , ORG had correctly concluded that the applicant was not insured under LAW for the period her husband had worked in GPE .

However , as regards the question whether that situation was compatible with the principle of equality , in particular the prohibition on discrimination between men and women , ORG noted that there was a provision in the royal decrees which rendered the insurance of married women under LAW dependent on their husbands being insured , whereas the decrees did not contain a comparable provision in respect of married men .

ORG examined the applicant 's situation in the light of LAW ( ORG ) . It referred to the case - law of ORG according to which , from DATE , this provision was also directly applicable in the GPE legal order in the field of social security . ORG found that this implied that rights could be derived directly from this provision in so far as an application , after DATE , of statutory rules created a difference in treatment between men and women without any objective and reasonable justification , and led to a more unfavourable result than would have existed had there not been such a difference . It considered that the applicant had found herself in that situation as she had been awarded an old - age pension on DATE from which PERCENT was deducted on the basis of rules which made an unjustified distinction between married men and women .

ORG noted that , from DATE , the principle of equal treatment between men and women had been incorporated in ORG , and that this had resulted in the introduction of a system in which the entitlement to full benefits was made solely dependent on the question whether or not the person concerned had personally completed DATE under the Act . It concluded , therefore , that married women , like the applicant , who had fully complied with the conditions for insurance under the LAW , could not be regarded as having been uninsured during a certain period solely on grounds of marital status .

Consequently , ORG quashed the decision of DATE , in so far as the applicant 's pension was reduced by PERCENT , upheld the remainder of the decision and ruled that the applicant was entitled to a full pension under LAW . ORG filed an appeal with ORG .

In its judgment of CARDINAL DATE , following a hearing held on DATE , ORG quashed the decision of DATE and dismissed the applicant 's appeal as ill - founded .

ORG noted at the outset that it was not in dispute between the parties that the applicant did not belong to the group of persons as defined in LAW on the gradual implementation of the principle of equal treatment of men and women in the field of social security . It considered that view to be correct and , consequently , held that the question of the reduction in the applicant 's pension could not be examined in the light of the prohibition on discrimination set out in LAW of this directive .

As regards the question whether the reduction in the applicant 's pension was compatible with LAW ORG , ORG considered that , from DATE , that provision could also be directly relied on in the field of social security . It also referred to the case - law according to which this implied that ORG to the ORG were obliged to ensure that their statutory rules were free of any form of discrimination prohibited by that provision . However , it said that a difference in treatment was not contrary to that provision where there were objective and reasonable grounds for the difference .

In the light of those considerations , ORG held that LAW ORG could not deprive a national statutory rule of its effect , according to which the level of benefits under a statutory insurance scheme – like ORG – was made dependent on the question of whether the periods of insurance had been completed . It held that this was no different where it could be established that the disqualification of certain periods of insurance before DATE was based on a domestic rule which made a difference in treatment on the basis of sex , as that rule had been in operation during a period in which LAW ORG was not yet directly applicable and could not , therefore , deprive the domestic rule of its earlier effect .

The applicant 's subsequent appeal on points of law to ORG ( PERSON ) was dismissed on DATE . As to the applicant 's argument that ORG had failed to examine whether or not there was an objective and reasonable justification for the difference in treatment , ORG held that ORG had correctly found that , as regards the periods in which the applicant had not been insured under LAW , she could not rely on LAW ORG , as those periods predated the entry into force of that international instrument .

In so far as the applicant complained that ORG had unjustly failed to deprive the discriminatory rule at issue of its effect on grounds of incompatibility with the prohibition on discrimination contained in LAW ( PERSON ) , ORG held that the periods during which the applicant had not been insured under LAW predated the entry into force of LAW .

In so far as the applicant relied on unwritten general principles of law ( algemene rechtsbeginselen ) , in particular the principle of equality , ORG considered that , according to the explanatory memorandum ( Nota van Toelichting ) to the first royal decree on the extension and limitation of the group of insured persons of DATE , the exclusion was aimed at preventing an undesirable accumulation of benefits . According to the explanatory memorandum , the pension rights accrued by the man abroad were also considered to be intended to benefit his spouse .

ORG held that in view of the social attitudes prevailing at the relevant time , that is to say the periods during which the applicant had not been insured under the General Old Age Pensions Act , the government of the time could have taken the view that in practically all cases it was the man who was the “ breadwinner ” so that it could , accordingly , exclude married women and did not have to make a separate provision for cases where the woman was the “ breadwinner ” . ORG held , therefore , that there was an objective and reasonable justification for the difference in treatment on grounds of sex which the exclusion entailed .

ORG further rejected the applicant 's argument based on the principle of equality contained in LAW on the gradual implementation of the principle of equal treatment of men and women in the field of social security , as the applicant fell outside the scope of LAW directive , which defined the group of persons to whom the directive applied .

The General Old Age Pensions Act establishes a general old - age pension scheme for persons who have attained DATE . Under this scheme , all persons DATE who reside in the GPE are insured . Contributions to the scheme are paid by all persons who are gainfully employed in the GPE .

Entitlement to benefits under LAW is not dependent on the level of contributions paid as , contrary to a social - security scheme based on employment ( werknemersverzekering ) , it is a general social - security scheme ( volksverzekering ) . The level of benefits is , however , linked to the period of insurance under LAW . Pursuant to LAW before DATE ) of the LAW , the pension entitlement is reduced by PERCENT for DATE , DATE , that the person concerned was not insured under LAW on grounds of , inter alia , residence abroad . A person who has been insured under LAW for DATE is entitled to a full pension .

On DATE ORG issued Directive CARDINAL/CARDINAL/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security , allowing member GPE a period of DATE until DATE within which to make any amendments to legislation which might be necessary in order to bring it into conformity with the directive .

Until DATE a married man was entitled to a pension under LAW for a married couple equal to PERCENT of the minimum wage in force in the GPE . Unmarried persons of either sex were entitled to PERCENT of the minimum wage . A married woman had no entitlement in her own right . According to the royal decree on the extension and limitation of the group of insured persons , as amended on several occasions , a married woman residing in the GPE DATE whose husband was employed abroad and insured under the social - security system in the foreign country of employment – was not insured under the General Old Age Pensions Act .

On DATE married women became entitled in their own right to a pension under LAW . Each spouse became entitled to a pension equal to PERCENT of the minimum wage . The position for unmarried persons remained unchanged . As a result of this change , married women are no longer excluded from insurance under LAW for periods when their husbands were employed abroad , provided that they themselves have continuously resided in the GPE or have paid contributions on the basis of gainful employment in the GPE .