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

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

The applicant has a long history of serious psychiatric illness . According to the applicant , he was treated as an in - patient at ORG in GPE in DATE where he was diagnosed as a paranoid schizophrenic . There would appear to be no records of the periods of the applicant ’s hospitalisation and the diagnosis .

The applicant returned to GPE sometime in DATE . DATE he received psychiatric treatment at a large number of hospitals in the GPE area . He was detained and treated on a number of occasions under the provisions of LAW DATE ( “ the DATE LAW ) . The applicant was first diagnosed in GPE as a paranoid schizophrenic on DATE during his detention in FAC .

On TIME DATE the applicant attacked a fellow resident at ORG in GPE . He was remanded to ORG and then transferred to a secure unit at ORG under sections DATE of the DATE Act . Following assessment and treatment at FAC , he was transferred under section CARDINAL of the DATE Act to ORG ( “ PERSON ’s ” ) in DATE .

On DATE the order under section CARDINAL of the DATE Act detaining the applicant was rescinded and he was discharged from ORG . PERSON , a psychiatrist at ORG , sought to make arrangements for the applicant to be seen as an out - patient by the general as well as the forensic psychiatric services at ORG ( “ NORP ” ) , a hospital now closed but then under the management and control of the GPE and ORG ( “ GPE ” ) .

PERSON telephoned PERSON , an ORG at Friern , and fixed an out - patient appointment . PERSON then telephoned PERSON , a forensic psychiatrist at PERSON , and told her that an appointment had been made for an out - patient appointment for the applicant with PERSON Sergeant and that he also wished to make a referral to the forensic psychiatric services . Following discussion with a senior colleague , PERSON DATE telephoned PERSON and said that the applicant should attend Dr Sergeant ’s out - patient appointment and that he would be referred to the forensic team if necessary . At the time of making the appointment PERSON Sergeant did not know that she had been or was to be appointed as the applicant ’s “ key worker ” .

An appointment was made for the applicant to be seen by Dr Sergeant on DATE . He did not attend the appointment on DATE . He was sent another appointment for DATE , which was later changed to CARDINAL DATE . The applicant failed to attend the appointment on CARDINAL DATE .

Sometime at the beginning of DATE , PERSON received CARDINAL section CARDINAL forms which stated that the applicant was supposed to have after - care arrangements made under section CARDINAL of the DATE Act and that Dr Sergeant was to be the “ key worker ” . No such arrangement had been agreed with Dr Sergeant or with Friern . The out - patient appointment for CARDINAL DATE had not been made by PERSON in pursuance of any responsibilities under section CARDINAL of the DATE Act .

After the applicant failed to attend his out - patient appointment on CARDINAL DATE , PERSON telephoned the applicant ’s General Practitioner , PERSON , who told her that the applicant had been removed from his list of patients because of his aggressive and threatening behaviour . She then telephoned PERSON ’s and spoke to PERSON who advised her that the police should accompany her on any mental health assessment visit and added that the applicant had not been in touch with PERSON ’s since his discharge . After that conversation PERSON contacted ORG and requested that a mental health assessment visit be arranged on a planned non - urgent basis and that this should be attended by the police . It was arranged that this should take place at the applicant ’s address on DATE at TIME It appears that the applicant was not informed of this arrangement .

On DATE ORG informed PERSON that the applicant had been off medication for DATE and that his behaviour was threatening . She was reminded that the applicant had stabbed someone in the past . The start of the mental health assessment visit on DATE was slightly delayed . The applicant left the premises without being recognised by anyone in the assessment team and without being approached to ascertain if he was PERSON . No arrangements were made for a further assessment and PERSON said that she would try to see the applicant informally in order to gain his goodwill .

On DATE the applicant went to the offices of ORG and a member of their staff contacted PERSON who arranged an appointment to see the applicant on DATE . She asked that a duty social worker attend the meeting but said that there was no need for an approved social worker ( as defined in LAW ) to attend . The applicant did not attend his out - patient appointment on DATE . Although the applicant states that PERSON took no positive step in the face of this failure to attend , the Government observe , with reference to the findings contained in an official report ( “ the PERSON Report ” ) drawn up following a public inquiry into the handling of the applicant ’s treatment ( “ the Clunis Inquiry ” ) , that the social worker who had attended for the appointment with the applicant “ discussed the way forward with Dr Sergeant ” after the applicant failed to appear . PERSON appears to have said that the alternatives were ORG visit or an attempt to persuade the applicant to visit the social services department again and then to give him another outpatient appointment . The applicant was eventually invited by letter to attend an appointment on DATE . When told of the date , PERSON apparently expressed her dissatisfaction that it was so far in advance .

According to ORG , it would seem that attempts were made to contact the applicant DATE , but without success . On DATE PERSON spoke to an official in ORG and expressed concern that the applicant had been discharged so quickly from ORG in view of his violent past . The official ’s colleague made enquiries as to the availability of space in a residential hostel for the applicant . The residential hostel indicated that it would get in touch with the applicant with a view to assessing his suitability for a place and then decide whether to offer him CARDINAL .

On DATE ORG telephoned Dr Sergeant but was unable to speak to her . When she returned their call she was told that there had been a message from the local police that the applicant was “ waving screwdrivers and knives and talking about devils ” . PERSON advised that ORG should assess the applicant as soon as possible but that she first wished to check which social services authority was responsible for the applicant .

DATE at TIME Dr Sergeant questioned PERSON , the duty approved social worker , as to which social services authority was responsible for the applicant and whether PERSON or ORG should be dealing with the applicant . By TIME she had persuaded ORG to accept responsibility for the applicant in place of Friern . However , following further discussions with PERSON , PERSON reversed that position and agreed that PERSON would continue with the applicant ’s care . PERSON visited the applicant ’s flat but there was no reply . At TIME she returned with a letter asking him to call her DATE .

At TIME on DATE the applicant killed PERSON , who was a complete stranger to him , in an unprovoked attack at FAC in GPE . The applicant seems to have believed without any justification whatsoever that PERSON was about to attack him .

On DATE PERSON waited at the applicant ’s address for the applicant to return . She was informed later that day that he had been arrested for murder .

On DATE the applicant pleaded guilty to PERSON manslaughter on the basis of diminished responsibility . The plea was accepted by the ORG . The trial judge , Mr Justice PERSON , ordered that the applicant be detained pursuant to sections DATE ( hospital order ) and CARDINAL ( restriction order whereby discharge from hospital requires the consent of the Home Secretary ) of LAW . The restriction order was expressed to be without limit of time .

On DATE the LOC and LOC Authorities instituted an inquiry into the treatment and care of the applicant which was chaired by Miss PERSON . The ORG received evidence from CARDINAL witnesses over a DATE period and extended its investigation back to DATE . ORG reported in DATE and in its report concluded , inter alia :

( a ) There were significant deficiencies in the care given to the applicant . “ As will have been clear from our comments throughout the narrative we are of the view on the evidence we have heard , that PERSON Clunis’ care and treatment was a catalogue of failure and missed opportunity ... In our view the problem was cumulative ; it was CARDINAL failure or missed opportunity on top of another ” ( pp . CARDINAL - CARDINAL ) .

( b ) The Mental Health Assessment Team should have been arranged more quickly , and PERSON should have ensured that an earlier date was fixed ( p. CARDINAL ) .

( c ) The gap between the first request for ORG on DATE and the visit that was arranged for DATE was far too long . There was plenty of time to prepare preliminary information about PERSON so that alternative responses following his assessment could be planned ( p. CARDINAL ) .

( d ) “ Indecision and procrastination is the hall mark of the failure of ORG to have any responsible person making decisions and monitoring decisions that had been made . ” Equally Dr Sergeant left too much to the ORG department when she should have been taking an active role . She did not involve her consultant , PERSON , in managing this difficult case . As the person named as key worker under the section CARDINAL Mental Health Act DATE aftercare plan , PERSON knew that if she did not do so , no one else would ( p. CARDINAL ) .

The Inquiry made a total of CARDINAL recommendations designed to ensure that the duties under section CARDINAL of the DATE Act were properly fulfilled ( Section V of the Report ) . Further recommendations were made in respect of matters such as key workers , monitoring , the assessment of dangerous and mental illness and offending .

On DATE the applicant issued a writ claiming damages for injury , loss and damage sustained by him as a consequence of GPE ’s negligence . On DATE GPE issued a summons in ORG seeking to strike out the applicant ’s Statement of Claim on the sole ground that it disclosed no reasonable cause of action in that the principle of ex turpi causa non oritur actio or an analogous principle of public policy prevented the applicant from recovering damages . Although GPE expressly conceded for the purposes of the summons that it owed the applicant a common law duty of care at the material time and that the Statement of Claim disclosed breaches of that duty , it argued that to establish the injury and loss asserted the applicant had to rely on his own criminal act and public policy prevented this .

On DATE Mr PERSON , sitting as a deputy ORG judge , dismissed GPE ’s summons on the basis that :

( a ) the absolute rule of ex turpi causa non oritur actio set out in GPE v. PERSON [ DATE ] I AC CARDINAL had no application in tort cases but that there was a rule of public policy analogous to the ex turpi causa rule in contract law that a court can exclude a tortuous claim by a person who , in order to assert it , has to rely on a crime committed by him ;

( b ) in applying the public policy rule the court had to make a judgment on a pragmatic basis as to whether it would be offensive to the public conscience for the claimant to base his claim on his own criminal activity or more offensive for him to be deprived of what would otherwise be his normal remedy ;

( c ) where a claimant brings a negligence claim based on an allegation that the defendant either caused or failed properly to treat severe mental disorder , he can in principle recover as a head of claim damages for personal injury ( including mental deterioration ) resulting from self - inflicted harm . If this harm itself results from harming others in a criminal manner , public policy does not preclude him from recovering damages for the harm to him even though he is guilty of crime ;

( d ) it would not offend the public conscience for the applicant ’s claim to proceed .

On DATE GPE appealed on the grounds that the judge was wrong in law in holding that the applicant was not precluded from recovering damages consequent on his criminal act , and that the judge ought to have held that the applicant was precluded from recovering such damages on grounds of public policy . When the appeal was heard , the applicant and GPE were invited at the commencement of the hearing to address the ORG on the question of whether a duty of care was owed by GPE to the applicant . On DATE of the hearing GPE advanced an argument wholly inconsistent with its concession at first instance that whilst a duty of care was owed to the applicant , such a duty could only be owed pursuant to section CARDINAL of the Act and that breach of that duty was not actionable in private law .

In delivering the judgment of ORG , Lord Justice PERSON stated with respect to the applicant ’s argument that GPE owed him a duty of care at common law that the public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act is not confined to particular causes of action . Whether a claim is founded in contract or tort , public policy only required the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts . Lord Justice PERSON did not accept the applicant ’s contention that the test to be applied should be aimed at ascertaining whether the result in a particular case would be acceptable to “ the public conscience ” . He cited with approval the decision of ORG in GPE v. PERSON ( [ DATE ] ) CARDINAL A.C. CARDINAL ) as authority for the proposition that , in so far as the maxim ex turpi causa non oritur actio is directed at deterrence , the force of the deterrent effect was in the existence of the known rule and its stern application . He continued :

“ In the present case we consider that [ GPE ] has made out its plea that the [ applicant ’s ] claim is essentially based on his illegal act of manslaughter ; he must be taken to have known what he was doing and that it was wrong , notwithstanding that the degree of his culpability was reduced by reason of mental disorder . The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the [ applicant ’s ] own criminal act and we would therefore allow the appeal on that ground . ”

Lord Justice PERSON subsequently considered whether GPE owed a duty to the applicant under section CARDINAL of the DATE Act and , in the affirmative , whether a breach of that duty could give rise to a claim for damages . With reference to the wording of that provision and to the terms of section CARDINAL of the same Act , Lord Justice Beldam found that the primary method of enforcement of the after - care obligations under section CARDINAL was by complaint to the Secretary of ORG . He continued :

“ The character of the duties created seem to us closely analogous to those described by Lord PERSON in X ( Minors ) v. ORG ( [ DATE ] CARDINAL A.C. CARDINAL , CARDINAL ) as requiring :

‘ exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if , on subsequent investigation with the benefit of hindsight , it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.’

In our view the wording of the section is not apposite to create a private law cause of action for failure to carry out the duties under the statute . ”

Lord Justice PERSON then addressed the applicant ’s argument that the relationship of doctor and patient which existed between the district health authority and the applicant while he was in hospital continued after discharge , so that a common law duty of care was owed by the defendant to continue the applicant ’s treatment . In the opinion of Lord Justice PERSON , it was difficult to conclude that it was in the circumstances just and reasonable to superimpose such a common law duty in relation to the performance of its statutory duties to provide after - care . He considered , bearing in mind the ambit of the obligations under section CARDINAL of the DATE Act and their repercussions on a wide spectrum of health and social services , including voluntary services , that ORG could not have intended so wide - spread a liability as that canvassed by the applicant . Lord Justice PERSON found that GPE ’s actions through Dr Sergeant were essentially in the sphere of administrative activities in pursuance of a scheme of social welfare in the community . He concluded :

“ ... the statutory framework must be a major consideration in deciding whether it is fair and reasonable for the local health authority to be held responsible for errors and omissions of the kind alleged . The duties of care are , it seems to us , different in nature from those owed by a doctor to a patient whom he is treating and for whose lack of care in the course of treatment the local health authority may be liable . .... We have no doubt that it would not be right to hold PERSON or [ GPE ] liable to the [ applicant ] for failure to arrange the [ applicant ’s ] assessment for the purposes of section CARDINAL more speedily than she did . ... For these reasons we do not think that the [ applicant ] can establish a cause of action from a failure by [ GPE ] or PERSON to carry out their functions under section CARDINAL of LAW DATE . Nor do we think that it would be fair or reasonable to hold [ GPE ] responsible for the consequences of the [ applicant ’s ] criminal act . ”

The applicant was refused leave to appeal to ORG by ORG .

The applicant ’s petition for leave to appeal to ORG was refused by ORG on DATE .

A statutory duty on public authorities to provide for the care of the mentally ill after discharge from hospital was first provided for in section CARDINAL of ORG . LAW DATE expanded the after - care function to include the provision of residential accommodation and the appointment of mental welfare officers . Following further enactments , ORG DATE was eventually passed . Section CARDINAL of the DATE Act provides :

“ CARDINAL . A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this LAW in pursuance of an application ( in this LAW referred to as “ an application for admission for treatment ” ) made in accordance with this section .

An application for admission for treatment may be made in respect of a patient on the grounds that -

( a ) he is suffering from mental illness , severe mental impairment , psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital ; and

( b ) in the case of psychopathic disorder or mental impairment , such treatment is likely to alleviate or prevent a deterioration of his condition ; and

( c ) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it can not be provided unless he is detained under this section . ”

“ CARDINAL . This section applies to persons who are detained under section CARDINAL above , or admitted to a hospital in pursuance of a hospital order made under LAW above , or transferred to a hospital in pursuance of a transfer direction made under LAW or DATE above , and then cease to be detained and leave hospital .

It shall be the duty of the district health authority and of the local social services authority to provide , in co - operation with relevant voluntary agencies after - care services for any person to whom this section applies until such time as the district health authority and the local social services authority are satisfied that the person concerned is no longer in need of such services . ”

The section places a duty to consider the after - care needs of each individual to whom the section applies and is therefore quite distinct from other statutory duties to provide for the after - care of the generality of mentally disordered persons . LAW DATE , issued by the Secretary of ORG under the provisions of section CARDINAL of the CARDINAL Act , explains that the purpose of after - care is “ to enable a patient to return to his home or accommodation other than a hospital or nursing home , and to minimise the chances of him needing any further in - patient hospital care . ”

The Code of Practice requires that a key worker be appointed from either the district health authority or social services authorities to be responsible for the discharged patient . The key worker is responsible for monitoring the implementation of the patient ’s care plan and liasing and co - ordinating where necessary between the individuals and agencies involved in the care plan . After - care services are not defined in the LAW but could include social work support , the provision of domicilary services , the use of residential or day centre facilities . An essential component is continuing psychiatric treatment and care if the declared objective of minimising the chances of the patient returning to hospital is to be achieved .

The Government in the instant case have highlighted the various measures that have been adopted to ensure improvements in the care of the mentally ill following the recommendations made in the Ritchie Report .

There are several means by which individuals or their representatives can have complaints regarding their discharge by a local authority of its duties under section CARDINAL of the DATE Act investigated : a complaint to ORG Commissioner , a complaint to ORG or a complaint to the Commissioner for ORG .

According to the applicant , his relationship with GPE was one governed by both common law principles and by statute . A common law duty of care was owed to him inasmuch as a doctor - patient relationship existed between Dr Sergeant ( for whose acts or omissions GPE are vicariously liable ) and the applicant . Once Dr Sergeant had accepted that she and/or PERSON would provide him with out - patient treatment , a duty of care arose ( see PERSON v. ORG [ DATE ] CARDINAL All GPE CARDINAL per ORG ) .

The applicant states that a duty of care was also owed to him pursuant to the duties owed under section CARDINAL of the CARDINAL Act . ORG in his case characterised these duties as being closely analogous to those described by Lord PERSON in X ( Minors ) v. PERSON ( [ DATE ] CARDINAL AC CARDINAL at CARDINAL ) as requiring “ exceptionally clear statutory language ” to indicate a parliamentary intention that the breach of such duties would give rise to an actionable claim for damages . It determined that the wording of section CARDINAL of the DATE Act was not apposite to create a private law cause of action for failure to carry out the duties under LAW . It also rejected the argument that a common law duty of care should be superimposed in relation to the performance of its statutory duties to provide after - care , on the basis that the duty of providing after - care services was different in nature from that owed by a doctor to a patient whom he is treating . The court held that it would not be just and reasonable to superimpose a common law duty of care on GPE in relation to the performance of its statutory duties to provide after - care .

Prior to ORG determination , the rule of public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act was confined to particular causes of action . It has its origins in contractual claims . The principle was modified in relation to tortuous claims by the application of “ the public conscience test ” . This was applied in a line of cases in ORG DATE where it was held to be right “ to adopt a pragmatic approach to these problems seeking where possible to see that genuine wrongs are righted so long as the ORG does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn . ” ( PERSON v. PERSON [ DATE ] CARDINAL WLR CARDINAL per ORG ) .

In PERSON v. Commissioner of Police for the Metropolis ( [ DATE ] CARDINAL WLR CARDINAL ) , ORG applied the “ public conscience test ” to determine whether ex turpi causa , or an analogous rule of public policy , would prevent the estate of a detainee who had committed suicide whilst in custody from recovering damages . In doing so the court was aware that the test had been disapproved by ORG in GPE v. PERSON which was , however , a contractual claim , being the locus classicus for the application of the maxim .

In PERSON v. PERSON ( No . CARDINAL ) ( [ DATE ] CARDINAL All ER CARDINAL ) substantial damages were awarded to a plaintiff who had suffered head injuries in a road accident and who claimed that , but for the consequent personality change , he would not have committed the offences of sexually assaulting and maliciously wounding CARDINAL women and raping and maliciously wounding a third woman for which he was sentenced to life imprisonment . In PERSON ( No . CARDINAL ) ( [ DATE ] CARDINAL All ER CARDINAL ) the plaintiff ’s action to recover damages , which had been awarded against him to CARDINAL of the victims of his crimes , was dismissed on the grounds that the damages awarded to the victims were too remote to be recoverable and that such an award would be contrary to public policy . PERSON rejected the contention that such an argument would have affected the award of damages he had made in PERSON ( No . CARDINAL ) .

The offence of manslaughter is a crime which varies infinitely in its seriousness and the underlying intentionality of the act . Public policy must reflect the variety in degree of culpability . Such a principle was endorsed by ORG in Gray v. PERSON ( [ DATE ] CARDINAL QB CARDINAL ) when it considered the application of the forfeiture rule in relation to the rights of inheritance , and by ORG in NORP v. Chief ORG Commissioner ex parte PERSON ( [ DATE ] LAW ) . In the case of forfeiture ORG intervened by passing the LAW DATE to prohibit the inflexible application of public policy . In GPE v. Plant , ORG observed that :

“ the harshness of applying the forfeiture rule inflexibly to all classes of manslaughter in all circumstances is such that I do not consider that , absent the statutory intervention which occurred , the rule could have survived unvaried to the present day ... Furthermore , it seems to me that the only way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability , or such a high degree of mitigation , that the sanction of forfeiture , far from giving effect to the public interest , would have been contrary to it . Alternative suggestions that the rule should be restricted to cases of deliberate killing , or deliberate violence leading to death , do not cater for cases of diminished responsibility or provocation , where the mitigating features may be such as to render it particularly harsh to apply the forfeiture rule . ”

Under the rules set out in M’Naghten ’s Case ( [ CARDINAL]CARDINAL ORG . & F. CARDINAL ) . ( “ the M’Naghten ” rules ) , the accused must prove on the balance of probabilities ( or to counter his claim of diminished responsibility the prosecution may prove , but beyond reasonable doubt ) that at the time of the act he was “ labouring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing , or , if he did know it , that he did not know it was wrong ” .

The sentence for manslaughter by reason of diminished responsibility is at large unlike murder where the penalty is fixed by statute as being a life sentence . LAW DATE provides that the accused must be suffering from such abnormality of mind ( whether arising from a condition of arrested or retarded development of mind , or any inherent cause , or induced by disease or injury ) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing .

According to the applicant , the distinction between conviction of guilty of manslaughter by reason of diminished responsibility and acquittal of murder by reason of insanity can , in practice , be artificial . The applicant observes that , until recently , the consequences of a verdict of insanity were so unattractive that an accused would very rarely accede to such a verdict or enter such a plea . In the applicant ’s view , this was because , until the Criminal Procedure ( Insanity and Unfitness to Plead ) Act DATE , a court would be required to admit such an individual to a hospital subject to a restriction order without limit of time and with no flexibility or discretion given to the sentencing judge .


CASE OF VISKUPOVA AND OTHERS v. SLOVAKIA

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicants , PERSON , PERSON , PERSON and PERSON , were born in DATE and DATE respectively . They are siblings . The applicants live in GPE ( GPE ) , and Ms Hermansová also lives in PERSON ( the GPE ) .

The applicant PERSON owns a share in a plot of land . The applicants each have a share in the estate of their late mother , who owned the remaining share in that plot . The proceedings for the division and distribution of the estate would appear to be still pending .

The plot has been de facto occupied by the ORG in the guise of a ORG - owned enterprise ( “ the defendant ” ) ; the applicants have been seeking compensation for this occupation ( see below ) .

The status and functioning of the defendant were regulated by the ORG - owned Enterprises Act ( Law no . ORG . , as amended ) .

On DATE the defendant went into liquidation . According to a publicly available official source , the liquidation process is ongoing .

On DATE and DATE amendments ( Laws nos . ORG . and PERSON . respectively ) to the ORG - owned Enterprises Act entered into force .

They provide , inter alia , that the liquidator of a liquidated ORG - owned enterprise has an obligation to publish in ORG ( PERSON vestník ) an announcement on commencement of the liquidation process and to invite those concerned to register their claims within DATE , on pain of extinction of those claims .

They also provide that , by virtue of the commencement of the liquidation process , any enforcement proceedings against the ORG - owned enterprise in question are stayed .

For details , see paragraphs CARDINAL in the “ Relevant domestic law ” below .

On DATE ORG súd ) ruled that the defendant was to pay a sum of money to PERSON and to the applicants’ mother ’s estate by way of compensation for unjustified enrichment arising from the defendant ’s use of the property without valid title .

NORP The defendant ’s appeal having been declared inadmissible , the judgment became final and binding ( právoplatnosť ) on DATE .

DATE the applicants contacted the liquidator of the defendant , the municipality where the defendant has its seat and the mayor of that municipality , ORG , ORG , ORG , ORG , ORG , the police and other public institutions with numerous requests and complaints , seeking to recover the adjudicated amounts .

These efforts included , in particular , a letter of DATE to the liquidator , formulated as a final warning prior to a petition for enforcement , demanding compliance with the judgment in the applicants’ favour ( see paragraph CARDINAL above ) . However , they met with no success .

The applicants also made several submissions to the courts seeking judicial enforcement of the judgment .

These resulted , first , in a decision ( uznesenie ) of ORG of DATE to reject the ORG claim , on the ground that it was unclear and , despite the court ’s written request , the applicants had failed to provide further and more specific details .

NORP The applicants’ subsequent motion of DATE resulted in the opening of enforcement proceedings against the defendant .

ORG took a number of steps to establish the nature and details of the applicants’ motion . The applicants’ challenge to all of judges of ORG , alleging bias , was also examined and dismissed .

As established by ORG in its decision of DATE ( see paragraph CARDINAL below ) , there are file - notes in ORG case file , dated CARDINAL and CARDINAL DATE , indicating ( i ) that the case file was to be submitted to the judge for determination as to whether the proceedings could continue in view of the provision in the amendments referred to in paragraph CARDINAL above that the proceedings be stayed , and ( ii ) that the proceedings were to be stayed as they interfered with the functions of the liquidator .

On DATE , however , ORG invited the liquidator to report on the progress of the liquidation .

The proceedings were eventually discontinued on DATE , in the procedural form of a decision ( uznesenie ) , on the ground that , despite the court ’s written request , the applicants had failed to request the transfer of the proceedings to a judicial enforcement officer ( exekútor ) following the entry into force on DATE of an amendment ( Law no . PERSON . ) to LAW ( Law no . PERSON . , as amended – “ the ORG ” ) , under which enforcement of ordinary claims could no longer be carried out by either the courts or judicial enforcement officers , but only by the latter ( for details see paragraphs CARDINAL and CARDINAL in the “ Relevant domestic law ” below ) .

No appeal lay against the decision .

Meanwhile , on DATE , the applicants had filed a complaint under LAW no . PERSON . , as amended ) ( see paragraph CARDINAL below ) with ORG ( Ústavný súd ) . They contested the length of the proceedings in their enforcement petitions and also invoked , in substance , their right of access to a court .

NORP The applicants’ complaint was directed against ORG ; its President filed observations in reply on DATE .

It was submitted that under the amendments referred to in paragraph CARDINAL above , there was a statutory bar on the enforcement proceedings , on account of which ORG could not have taken any action at all in the matter .

On DATE ORG declared the applicants’ complaint inadmissible as being manifestly ill - founded .

ORG observed that , pursuant to section CARDINAL ) of the State - owned Enterprises Act , proceedings for the enforcement of financial claims against ORG - owned enterprises in liquidation were stayed by operation of law . This provision also applied , by way of implication , to enforcement proceedings under the ORG . Creditors of such claims should pursue their claims in the liquidation procedure under LAW ) of that LAW and it was the liquidator ’s responsibility under section CARDINALc(CARDINAL)(g ) to settle their claims .

The applicants had thus chosen an incorrect course of action by seeking enforcement of the judgment of DATE as opposed to registering their claim under that judgment with the defendant ’s liquidator . The applicants ought to have known the applicable rules .

ORG concluded that , for the above - mentioned reasons , there had not been any undue delays in the proceedings before ORG and that there had been no infringement of the applicants’ right of access to a court .

Article CARDINAL provides :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such a decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated . ”

NORP Until DATE , if a judgment debtor failed to comply with his or her adjudicated obligation , the creditor had CARDINAL essentially equipollent options of seeking enforcement , by a court under the ORG and by a judicial enforcement officer under LAW ( Law no . ORG . , as amended ) .

With effect from DATE , Article CARDINAL and other related provisions of the ORG were amended by PERSON no . CARDINAL/CARDINAL Coll . in that , with certain exceptions that are not relevant to the present case , enforcement of adjudicated claims was henceforth to take place under LAW .

Under Article QUANTITY of the CPP , as amended by Law no . CARDINAL Coll . , creditors seeking enforcement of their claims before courts had DATE from the entry into force of the amendment to initiate enforcement proceedings under LAW and to inform the enforcement court accordingly . Should they fail to do so , enforcement before the courts was to be discontinued .

The status of judicial enforcement officers and the procedures for enforcement by judicial enforcement officers are governed by LAW . Under its LAW , a judicial enforcement officer is a person designated and entrusted by the ORG with obtaining forcible compliance with judicial and other decisions .

The Act regulates the status and functioning of ORG - owned enterprises ( section CARDINAL ) .

Law no . PERSON . amended the LAW with effect from DATE . It introduced , inter alia , sections CARDINALa to GPE , providing for detailed rules concerning the liquidation of ORG - owned enterprises .

Section CARDINALc(CARDINAL)(a ) of the amended LAW provides :

“ In the course of liquidation the liquidator has an obligation to publish in ORG a notice on commencement of the entry of the [ ORG - owned ] enterprise into liquidation , together with a call for all creditors and other persons and bodies which are concerned by the enterprise ’s entry into liquidation , to register their claims or other rights within a period which can not be shorter than DATE from the enterprise ’s entry into liquidation , failing which [ such claims or rights ] become extinct ” .

Under Section CARDINALc(CARDINAL)(g ) of the amended Act :

“ In the course of liquidation the liquidator has a duty to settle obligations and claims ” .

Section CARDINALc(CARDINAL ) of the amended Act provided :

“ Liquidation of a [ ORG - owned ] enterprise can not be interrupted by other proceedings under special statute [ such as , for example , enforcement proceedings under LAW ] . ”

Law no . PERSON . amended the LAW with effect from DATE . Among other things , it amended the wording of Section CARDINALc(CARDINAL ) of the LAW as follows :

“ Proceedings under special statute [ such as , for example , enforcement proceedings under LAW ] shall be stayed by the [ ORG - owned ] enterprise ’s entry into liquidation . ”

Section DATE ( CARDINAL ) of the Act was subsequently renumbered as section CARDINALc ( CARDINAL) , without any change in its wording .

Under LAW ( d ) of the ORG , civil proceedings may be reopened where the ORG has found a violation of the requesting party ’s Convention rights and where any serious consequences arising from the violation have not been adequately redressed by the award of just satisfaction . In principle , however , only proceedings which have been concluded by means of a judgment ( rozsudok ) can be reopened .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

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

Before the Second World War the applicant 's family owned real property in the eastern provinces of pre - war GPE , the so - called “ LOC ” ( GPE ) . Those regions included large areas of DATE GPE and GPE and territories around GPE in what is now GPE . In DATE the regions were invaded by the GPE .

Following the end of the war , when the NORP eastern border was redrawn westwards and fixed along LOC , the PERSON acquired the name of the “ territories beyond the LOC ” ( ziemie zabużańskie ) .

On an unspecified date following DATE the applicant 's family , like CARDINAL other NORP citizens who were at various dates DATE subject to repatriation from the territories beyond LOC , was repatriated to GPE under the provisions of the so - called “ NORP Agreements ” ( umowy republikańskie ) .

A more detailed account of the historical background and the relevant provisions of the NORP Agreements and other related treaties and laws can be found in the ORG 's judgment in the pilot case of PERSON v. GPE ( see , in particular , PERSON v. GPE [ ORG ] , no . PERSON , ECHR GPE , § § CARDINAL and DATE ) .

On DATE the ORG ( Sąd Rejonowy ) gave a declaratory judgment stating that the applicant had owned real property of substantial value in the territories beyond LOC . The property consisted of , in particular , CARDINAL factories , CARDINAL hotels , and CARDINAL cinema , all located in GPE .

On DATE ORG ( ORG ) informed him that his claim for compensation had been entered in the relevant register as claim no . CARDINAL but its realisation depended on the adoption of future measures by ORG in respect of LOC claims .

The applicant 's subsequent attempts to acquire ORG property were unsuccessful . The only possibility of enforcing the claim was to participate in competitive bids for the sale of ORG property . However , the ORG authorities throughout GPE officially acknowledged the acute shortage of ORG - owned land designated for the realisation of the LOC claims .

This fact and the fact that at the material time it was the authorities ' common practice to desist from organising auctions for LOC claimants or to openly deny them the opportunity to enforce their entitlement through the statutory bidding procedure was established by ORG in the PERSON judgment ( see PERSON , cited above , § § DATE , CARDINAL - CARDINAL and CARDINAL ) .

In DATE the applicant wrote letters to ORG in GPE , and to the President of PERSON asking for help in obtaining compensation for the property .

In DATE the applicant wrote a letter to the President of GPE complaining about his situation .

A detailed description of the relevant domestic law and practice concerning the LOC property is set out in the judgments delivered by ORG in the pilot case of PERSON v. GPE ( see PERSON v. GPE ( merits ) , cited above § § CARDINAL - CARDINAL ; and PERSON v. GPE ( friendly settlement ) , cited above , § § DATE ) and the decisions given in the cases of GPE and Others v. GPE and GPE - Toboła v. GPE , cited above , § § CARDINAL and § § DATE respectively .

The operation of the compensation scheme introduced by DATE Act is described in the ORG 's decisions given in the cases of GPE and Others v. GPE DATE . ) no . CARDINAL , DATE , § § DATE and GPE - Toboła v. GPE DATE . ) no . CARDINAL , DATE , § § CARDINAL .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

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

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

In a judgment of CARDINAL DATE ORG ( okresní soud ) dismissed the applicant ’s action against a certain NORP seeking to vacate parcel no . CARDINAL/CARDINAL situated in PERSON . It found that the applicant was not the owner of the land as he had neither inherited it nor acquired it by prescription . On DATE ORG ( krajský soud ) upheld this judgment , which then became effective on DATE .

On DATE a motion to determine the ownership title to plot no . CARDINAL in the ORG nad Labem cadastral area was drawn up together with NORP and filed in the court ’s records .

It appears that the proceedings are still pending .

On DATE the applicant claimed compensation under Act no . CARDINAL/CARDINAL as amended before ORG . In a letter of DATE the Government notified the ORG that the applicant ’s claim for compensation had not , in fact , satisfied the formal requirements laid down by Act no . CARDINAL/CARDINAL as amended .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


Violation of Art. 6-1;Violation of Art. 13

Mr PERSON was born in DATE and lives in Brezová pod Bradlom . Mr GPE was born in DATE and lives in ORG . Mr PERSON was born in DATE and lives in PERSON .

By decisions delivered by ORG on DATE and by ORG on CARDINAL DATE the father of PERSON Tomáš Bzdúšek and the grandfather of the CARDINAL other applicants was convicted of CARDINAL offences and sentenced to DATE imprisonment as well as to confiscation of movable property which included , inter alia , gold and silver coins of numismatic value , bank notes and savings books .

On DATE ORG of GPE quashed , in the context of judicial rehabilitation provided for by LAW of DATE , the above decisions of DATE including all consequential decisions on the ground that the conviction had been unlawful . Subsequently the ORG in GPE delivered a judgment , on DATE , by which it acquitted the accused .

On DATE the applicants filed an action claiming the restitution of the movable property which had been confiscated from their relative .

On DATE the Bratislava I ORG , with which the applicants had filed the action , found that it lacked jurisdiction to deal with the case . On CARDINAL DATE ORG quashed this decision as being erroneous .

On DATE the GPE I ORG discontinued the proceedings . On CARDINAL DATE ORG quashed this decision and instructed ORG to proceed with the case .

On DATE the Bratislava I ORG dismissed the action after having taken extensive evidence . The applicants appealed . On CARDINAL DATE ORG upheld the first instance judgment .

In the meantime , on DATE , ORG found , upon a petition submitted by the applicants pursuant to LAW , that the Bratislava I ORG had violated their constitutional right to a hearing without undue delays . ORG held , in particular , that the case was not complex and that the applicants had not contributed to the length of the proceedings by their behaviour . The case had not been proceeded with effectively DATE and CARDINAL DATE , and undue delays had arisen as a result of the fact that the judge dealing with the case had been changed CARDINAL times .

Article CARDINAL ) of the LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to Article CARDINAL(CARDINAL ) of the LAW , as in force until DATE , ORG could commence proceedings upon a petition ( “ podnet ” ) presented by any individual or a corporation claiming that their rights had been violated .

According to its case - law under the above Article CARDINAL ) of the LAW , ORG lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW ) of the LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .


BOUMEDIENE AND OTHERS v. BOSNIA AND HERZEGOVINA

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicants , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , are NORP citizens who were born in DATE , DATE , DATE , DATE , DATE and DATE respectively . PERSON , Mr PERSON and Mr Nechla are also citizens of GPE and GPE . They were represented before the ORG by Mr PERSON , a member of the law firm ORG , GPE . ORG GPE ( “ the Government ” ) were represented by their Agent , ORG .

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

On DATE Mr Boumediene was granted citizenship of GPE ( “ BH ” ) on the basis of a forged document indicating that he had joined the ranks of ORG the ORG ” ) during the DATE - CARDINAL war ( for more information as to the relationship between the foreign NORP fighters and the ORG see the following judgments of ORG for the former GPE : The Prosecutor PERSON and PERSON , judgment of DATE , § § CARDINAL - CARDINAL , and ORG , judgment of DATE , § § CARDINAL - CARDINAL and CARDINAL - CARDINAL ) . The applicant now claims that he actually arrived in GPE in DATE to work for ORG of GPE ( a member of ORG and ORG ) .

PERSON joined the ranks of the ORG during the DATE - CARDINAL war ( allegedly as a cook ) and obtained ORG citizenship on that basis on DATE . It would appear that he was initially employed by ORG and then by ORG .

Allegedly , Mr PERSON was working for ORG ( GPE ) in GPE when he obtained BH citizenship on CARDINAL DATE . He allegedly moved to GPE and GPE shortly thereafter to work first for ORG and then for ORG as an IT administrator .

Allegedly , PERSON was working for ORG of GPE in GPE when he obtained BH citizenship on DATE . He allegedly moved to GPE in DATE .

On DATE Mr ORG was granted BH citizenship under the name of PERSON from GPE , on the basis of a forged NORP passport . Allegedly , he arrived in GPE shortly thereafter to work for ORG . After the Centre ’s closure he remained in GPE , but did not work .

On DATE the ORG authorities issued Mr GPE with a permanent residence permit on the basis of a document indicating that he had arrived in GPE during the DATE - CARDINAL war . The applicant now claims that he actually arrived in GPE in DATE to work for ORG .

On DATE the applicant was convicted on CARDINAL counts of aggravated assault and robbery and sentenced to imprisonment for DATE . CARDINAL of his victims was a citizen of GPE ( “ the GPE ” ) . On DATE the applicant was released on parole .

On DATE the home of Mr ORG was searched and he was arrested on suspicion of residing in GPE under a false name ( Mr PERSON from GPE ) . He was then interrogated by GPE officials . They confronted Mr PERSON with allegations that a note with a phone number belonging to Mr PERSON had been found during the home search and that the CARDINAL had discussed passport procurement over the phone on many occasions since the attacks of DATE .

On DATE the GPE intelligence reportedly tapped a conversation on Mr GPE ’s phone which included a coded reference to a forthcoming attack on the GPE and GPE ( “ GPE ” ) embassies in GPE . Furthermore , the local police discovered that Mr PERSON ’s father - in - law worked as a janitor in the GPE embassy in GPE .

On DATE the GPE and GPE authorities closed their embassies in GPE , citing “ credible security threats ” .

On DATE the local police arrested PERSON . On DATE the local police arrested PERSON , after he had retained a lawyer for Mr PERSON . PERSON had allegedly first heard of Mr PERSON when Mr PERSON ’s wife contacted him and asked for assistance in finding a lawyer for her husband . PERSON , Mr PERSON and Mr Nechla , acquaintances of PERSON , were also arrested . The applicants were suspected of having planned a terrorist attack on the GPE and GPE embassies in GPE .

On DATE the GPE and GPE embassies were reopened .

NORP In DATE ( while the applicants were in pre - trial detention ) the competent administrative authorities stripped PERSON , Mr PERSON , Mr PERSON , Mr Nechla and Mr PERSON of their BH citizenship . Following appeals by PERSON , PERSON , Mr PERSON and Mr Nechla , their BH citizenship was subsequently restored . Mr ORG did not appeal .

NORP In DATE the competent administrative authorities also terminated the ORG residence permit of PERSON . He appealed , but it would appear that no decision was taken .

On DATE all CARDINAL applicants were banned from entering GPE for DATE .

On DATE the NORP authorities refused the request by GPE to accept the applicants .

DATE Mr Boumediene , PERSON , Mr Nechla and PERSON requested the domestic ORG to prevent their removal from BH territory .

On DATE GPE informed GPE that it was willing to take custody of the applicants .

On DATE at TIME the competent court ordered the applicants’ release .

On DATE at TIME ORG ordered that all necessary steps be taken to prevent the forcible removal of PERSON , PERSON , PERSON and PERSON .

On DATE at TIME the applicants were handed over to GPE forces operating as part of SFOR . It would appear that the applicants arrived at FAC at FAC ( in GPE ) on DATE , stopping at FAC at GPE ( in GPE ) .

On DATE applications were filed before ORG on behalf of Mr PERSON and Mr PERSON .

On DATE ORG delivered its decision in the case of PERSON , PERSON , PERSON and Mr GPE . It found numerous violations of LAW and ordered GPE , among other things :

( a ) “ to use diplomatic channels in order to protect the basic rights of the applicants ” and , in particular , “ to take all possible steps to establish contacts with the applicants and to provide them with consular support ” ;

( b ) “ to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants , including attempts to seek assurances from the GPE via diplomatic contacts that the applicants [ would ] not be subjected to the death penalty ” ; and

( c ) “ to retain lawyers authorised and admitted to practice in the relevant jurisdictions and before the relevant courts , tribunals or other authoritative bodies in order to take all necessary action to protect the applicants’ rights while in GPE custody and in case of possible military , criminal or other proceedings involving the applicants ” .

On DATE the ORG Deputy Minister of ORG informed the GPE Ambassador to GPE and GPE of the legal obligations of GPE and GPE deriving from ORG decision , and requested cooperation from GPE .

On DATE the competent administrative authorities quashed the decisions of DATE banning PERSON , Mr PERSON , Mr Nechla and Mr GPE from entering GPE and GPE .

On DATE ORG delivered its decisions concerning Mr PERSON and Mr PERSON . They were largely in line with the decision concerning PERSON , PERSON , PERSON and Mr GPE , with an additional order that all possible steps be taken to obtain the release of Mr PERSON and his return to GPE .

On DATE the competent administrative authorities quashed the decisions of DATE banning Mr PERSON and Mr PERSON from entering GPE and GPE .

NORP In response to the request of DATE , the GPE authorities sent a non - paper to the ORG authorities on DATE . Its relevant part reads as follows :

“ For governments wishing access to their nationals in ORG , the following information may be provided :

-- Requests for access to FAC will be granted only for law enforcement or intelligence collection purposes . Issues pertaining to conditions of detention are to be addressed through ORG .

-- Official requests from foreign governments for access to their nationals detained at ORG will be made to ORG .

-- Department of Defense security , law enforcement and/or intelligence personnel will be present at all times during the interviews and may end the interview at any time when , in the opinion of the senior ORG representative , the security of GPE personnel , facilities , or detainees is at risk .

-- Foreign government officials will normally be permitted access to their nationals and will not to detainees of other nationalities . ”

Shortly thereafter , the ORG authorities received another non - paper from the GPE authorities . It reads as follows :

“ Release of Guantanamo detainees from ORG :

-- The GPE is in the process of transferring for release CARDINAL detainees from ORG . Your nationals are not among this group , although we continue to review their individual cases .

-- The decision to release these detainees is the result of an on - going screening process at ORG where we determine whether a detainee is to be prosecuted and/or detained by the ORG , transferred to his home country for continued detention and/or prosecution , or released .

-- In order to maintain security at the GPE detention facilities at ORG , and in order to protect the safety of any detainees who may be transferred or released , ORG does not intend to comment publicly on the details of any such movements .

-- We intend to limit our public comments on such matters to responding to inquiries from the press , only after a transfer or release from ORG has occurred . At this time we do not intend to identify individuals or the countries to which they have been moved .

-- Details regarding transfers or releases are communicated to the governments whose nationals are concerned , and/or to whose control detainees may be transferred .

-- Please be assured that we will notify you promptly if ORG decides to transfer or release any of your country ’s nationals presently detained at ORG . In such event , we would work with you to arrange the details of any transfer or release . ”

On DATE ORG assigned PERSON , the BH Vice - Consul in GPE , to visit the applicants .

On DATE ORG informed ORG that GPE did not permit visits from consular authorities to the detention centre at LOC . It suggested that a terrorism expert from ORG or ORG be assigned .

On DATE the ORG authorities assigned ORG , of ORG , to visit the applicants .

On DATE a ORG official held a meeting with the applicants’ wives at which they were informed about the intention of the ORG authorities to visit the applicants .

On DATE ORG formally requested access to CARDINAL ORG citizens ( namely PERSON , Mr PERSON , Mr PERSON and Mr Nechla ) . A list of intended questions was attached as requested . In addition , ORG requested access to Mr ORG and Mr GPE , although Mr PERSON was no longer and Mr GPE never had been a BH citizen .

On DATE , following a complaint by GPE , PERSON wife under NORP law , a parliamentary committee of ORG requested all the competent authorities to promptly take all possible steps to obtain the ORG return to GPE .

On DATE the ORG prosecution authorities formally ended all investigations against the applicants with regard to any suspicion of terrorism .

On DATE the GPE authorities , in a diplomatic note , invited GPE , of ORG , to visit CARDINAL ORG citizens at the detention centre at LOC from CARDINAL to DATE , for intelligence and law enforcement purposes . The diplomatic note did not address the request of the ORG authorities concerning Mr PERSON and Mr GPE .

On DATE and DATE ORG , of ORG , visited Mr Boumediene , PERSON , Mr PERSON and Mr Nechla at the detention centre at FAC . ORG had authorisation to ask CARDINAL questions to which the GPE authorities had previously agreed . They primarily concerned the applicants’ activities in GPE . Mr PERSON and Mr PERSON refused to respond . The last question was in relation to the applicants’ treatment in GPE custody . They all complained of inadequate medical attention . The request by the ORG official for permission to visit the applicants’ cells was refused .

In DATE the applicants were designated as “ enemy combatants ” by the competent Combatant Status Review Tribunals . The GPE Secretary of Defence established a Combatant Status Review Tribunal process to determine whether the individuals detained at LOC were enemy combatants and to give each detainee the opportunity to contest that designation . An “ enemy combatant ” is defined as “ an individual who was part of or supporting ORG or ORG forces , or associated forces that are engaged in hostilities against GPE or its coalition partners . This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces ” ( see the Memorandum of CARDINAL July CARDINAL on Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at FAC ) .

Following their meeting in GPE , on DATE the BH Prime Minister sent a letter to the GPE Secretary of ORG seeking the return to GPE of PERSON , PERSON , Mr PERSON and Mr Nechla . The response dated DATE reads as follows :

“ Thank you for your letter concerning the continued detention of the NORP nationals by GPE authorities at FAC , LOC , GPE .

GPE continues to evaluate the possibility of transferring individuals presently detained at ORG to their countries of nationality . Options available to GPE include : ( CARDINAL ) release if the detainee no longer poses a threat ; ( CARDINAL ) transfer to the detainee ’s home country for monitoring , investigation , detention , and/or prosecution as appropriate ; or ( CARDINAL ) continued detention or prosecution by GPE . The objective of the GPE transfer policy is to reduce the number of individuals under GPE control in the course of the war on terrorism , consistent with the national security , intelligence and law enforcement interests of GPE .

Detainees also receive due process and have access to our federal courts to contest their continued detention by GPE authorities in ORG . As of DATE , the status of each detainee at LOC has been reviewed by ORG ( ORG ) to determine , in a fact - based proceeding , whether the individual is still properly classified as an enemy combatant . Your Government has been informed of these proceedings and notified of tribunal results in each case .

The detention of each detainee will also be reviewed DATE by ORG ( ORG ) . The ORG assesses whether an enemy combatant continues to pose a threat to GPE or its allies , or whether there are other factors bearing on the need for continued detention . The process permits the detainee to appear in person before an ORG panel of CARDINAL military officers to explain why the detainee is no longer a threat to GPE or its allies and to provide factual information to support the detainee ’s release . We would welcome any information your Government would like to submit for consideration in this process .

Detainees also have the option of filing a petition , called a writ of habeas corpus , in GPE federal courts . This petition enables detainees to contest their continued detention , with the assistance of a legal representative , by requesting an independent judicial review of the circumstances of their detention at ORG .

The current assessment of the NORP - Algerian nationals indicates that each continues to possess significant intelligence value and pose a continuing threat to GPE security interests .

We will inform your Government at such a time when this assessment changes and we can consider the possibility of transferring them to GPE under certain conditions . ”

In an undated response to a formal enquiry from GPE Senator PERSON , ORG declared on DATE that ORG had not indicated that they were prepared or willing to accept responsibility for the applicants upon transfer .

On DATE ORG confirmed to the law firm FAC ( the ORG representatives ) that the ORG authorities were willing to accept all their citizens detained at FAC and that their return to GPE had been sought unsuccessfully from the GPE authorities .

In DATE and DATE the competent ORG recommended the continued detention of the applicants . The GPE Secretary of ORG to determine DATE whether enemy combatants detained at FAC at FAC should be released , transferred or continue to be detained ( see the Memorandum of CARDINAL DATE on Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at FAC ) .

The law firm ORG made submissions to those ORG on behalf of the applicants . Among other things , GPE contested the credibility of the statements made by Mr PERSON ( Mr GPE ’s ex - brother - in - law and a presumed informant for the GPE authorities ) . They also maintained that an expert analysis of Mr ORG ’s telephone records DATE conducted by order of ORG had failed to find any support for the allegation that PERSON ORG had been in contact with Mr PERSON ( see paragraph CARDINAL above ) . Lastly , GPE stressed that the ORG authorities had clearly demonstrated their “ unequivocal commitment to repatriating the CARDINAL men to GPE .

On DATE ORG within ORG ( “ ORG ” ) , the legal successor to ORG , examined a complaint by PERSON wife under NORP law . It held that the domestic authorities had failed to take all possible steps to protect the basic rights of the applicants and to prevent the death penalty from being pronounced against them . The decision criticised the authorities for taking a “ particularly passive attitude ” towards the entire matter , including failing even to make a written submission to ORG . ORG considered the complaint concerning non - enforcement of the order to retain lawyers for the applicants to be premature , because no military , criminal or other proceedings had been instituted against them .

On DATE the competent administrative body stripped Mr Boumediene of his BH citizenship on the ground that it had been obtained on the basis of a forged document .

In DATE and DATE the competent ORG again recommended the continued detention of the applicants . The unclassified summary of evidence contains numerous allegations against the applicants , including the following :

( a ) that PERSON had fought with the ORG and come into contact with several ORG fighters and operatives ;

( b ) that Mr PERSON had made threats against SFOR personnel in DATE and exhorted others to kidnap and kill SFOR soldiers and western civilians ;

( c ) that PERSON had been the primary ORG facilitator in GPE , had MONEY deposited in a bank in GPE and had applied for an NORP visa in DATE for onward travel to GPE ; and

( d ) that PERSON had been attempting to assume leadership of ORG ( ORG ) in GPE , had proposed attacks on GPE troops to a local religious council ( the shura ) , had expressed a desire to blow up GPE soldiers , made threats against the international community in GPE and applied for an NORP visa in DATE .

The applicants denied the allegations .

DATE . On DATE and CARDINAL DATE Mr PERSON of ORG and Mr PERSON of ORG in GPE discussed the applicants’ status at meetings in GPE .

On DATE the ORG authorities sent a diplomatic note to the GPE authorities , the relevant part of which reads as follows :

“ Appreciating the hitherto cooperation with the Government of GPE regarding these cases , and having in mind the intention of GPE to fulfil its international obligations , as well as obligations that follow from rulings of domestic courts , ORG is asking the Government of GPE for guarantees that the above - mentioned persons will not be sentenced to death or executed , as well as that the above - mentioned persons will not be subjected to torture , degrading , and inhuman treatment .

ORG of GPE reminds once again of the before mentioned ORG which invites member states ‘ to enhance their diplomatic and consular efforts to protect the rights and ensure the release of any of their citizens , nationals or former residents currently detained at LOC , whether legally obliged to do so or not’ . ”

The relevant part of the response of the GPE embassy in GPE dated DATE reads as follows :

“ The ORG has the honor to inform the ORG that GPE is a party to LAW of DATE , and notes that LAW CARDINAL of those Conventions specifically prohibits ‘ violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and GPE as well as ‘ humiliating and degrading treatment’ of detainees in an armed conflict not of an international character . The ORG also notes that GPE domestic law prohibits torture of any detainee in GPE custody , and also prohibits cruel , humiliating or degrading treatment as defined by the GPE reservation to LAW . The ORG assures the Government of GPE that GPE strictly adheres to LAW CARDINAL and GPE domestic law in its treatment of all detainees at LOC .

The ORG also informs the Ministry that LAW , which authorized the President to establish military commissions to try unlawful enemy combatants for crimes including the laws of war , does contemplate the death penalty as a potential sentence for those convicted of the most serious crimes . With regards to the specific detainees referenced in the ORG ’s note , the ORG understands that ORG does not intend to seek the death penalty in those cases . ”

On DATE ORG , by a majority , held that the applicants had illegally been denied access to habeas corpus ( Boumediene v. PERSON , CARDINAL GPE _ _ ( DATE ) ) . The concluding paragraphs of the majority opinion read as follows :

“ In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism , proper deference must be accorded to the political branches . GPE v. ORG , CARDINAL U. S. CARDINAL , CARDINAL ( DATE ) . Unlike the President and some designated Members of ORG , neither the Members of this ORG nor most federal judges begin DATE with briefings that may describe new and serious threats to our Nation and its people . The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security .

Officials charged with DATE operational responsibility for our security may consider a judicial discourse on the history of LAW of DATE and like matters to be far removed from the Nation ’s present , urgent concerns . Established legal doctrine , however , must be consulted for its teaching . Remote in time it may be ; irrelevant to the present it is not . Security depends upon a sophisticated intelligence apparatus and the ability of our ORG to act and to interdict . There are further considerations , however . Security subsists , too , in fidelity to freedom ’s first principles . Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers . It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives .

Our opinion does not undermine the Executive ’s powers as Commander in Chief . On the contrary , the exercise of those powers is vindicated , not eroded , when confirmed by the Judicial Branch . Within the LAW ’s separation - of - powers structure , few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person . Some of these petitioners have been in custody for DATE with no definitive judicial determination as to the legality of their detention . Their access to the writ is a necessity to determine the lawfulness of their status , even if , in the end , they do not obtain the relief they seek . ”

On DATE CARDINAL holders of mandates of special procedures of the former ORG submitted a joint report on the situation of detainees at LOC ( E / CN.CARDINAL/CARDINAL/CARDINAL ) . The conclusions read as follows :

“ DATE . International human rights law is applicable to the analysis of the situation of detainees in LOC . Indeed , human rights law applies at all times , even during situations of emergency and armed conflicts . The war on terror , as such , does not constitute an armed conflict for the purposes of the applicability of international humanitarian law . GPE has not notified to the Secretary - General of ORG or other GPE parties to the treaties any official derogation from LAW [ hereinafter ‘ ORG ] or any other international human rights treaty to which it is a party .

The persons held at LOC are entitled to challenge the legality of their detention before a judicial body in accordance with article CARDINAL of ORG , and to obtain release if detention is found to lack a proper legal basis . This right is currently being violated , and the continuing detention of all persons held at LOC amounts to arbitrary detention in violation of article CARDINAL of ORG .

The executive branch of ORG operates as judge , prosecutor and defence counsel of the LOC detainees : this constitutes serious violations of various guarantees of the right to a fair trial before an independent tribunal as provided for by article CARDINAL of the ORG .

Attempts by ORG to redefine ‘ torture’ in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern . The confusion with regard to authorized and unauthorized interrogation techniques over DATE is particularly alarming .

The interrogation techniques authorised by ORG , particularly if used simultaneously , amount to degrading treatment in violation of article CARDINAL of ORG and LAW of LAW . If in individual cases , which were described in interviews , the victim experienced severe pain or suffering , these acts amounted to torture as defined in article CARDINAL of the Convention . Furthermore , the general conditions of detention , in particular the uncertainty about the length of detention and prolonged solitary confinement , amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article CARDINAL , paragraph CARDINAL , of ORG to be treated with humanity and with respect for the inherent dignity of the human person .

The excessive violence used in many cases during transportation , in operations by ORG and force - feeding of detainees on hunger strike must be assessed as amounting to torture as defined in DATE LAW .

The practice of rendition of persons to countries where there is a substantial risk of torture , such as in the case of Mr PERSON , amounts to a violation of the principle of non - refoulement and is contrary to article QUANTITY of LAW and article CARDINAL of ORG .

The lack of any impartial investigation into allegations of torture and ill - treatment and the resulting impunity of the perpetrators amount to a violation of articles CARDINAL and CARDINAL of the Convention against Torture .

There are reliable indications that , in different circumstances , persons detained in the LOC detention facilities have been victims of violations of the right to freedom of religion or belief , contrary to article CARDINAL of ORG and the DATE [ Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief ] . It is of particular concern that some of these violations have even been authorised by the authorities . In addition , some interrogation techniques are based on religious discrimination and are aimed at offending the religious feelings of detainees .

The totality of the conditions of their confinement at LOC constitute a right - to - health violation because they derive from a breach of duty and have resulted in profound deterioration of the mental health of many detainees .

There are also serious concerns about the alleged violations of ethical standards by health professionals at LOC and the effect that such violations have on the quality of health care , including mental health care , the detainees are receiving .

The treatment of the detainees and the conditions of their confinement have led to prolonged hunger strikes . The force - feeding of competent detainees violates the right to health as well as the ethical duties of any health professionals who may be involved . ”

On DATE ORG of ORG ) , the relevant part of which provides :

“ CARDINAL . ORG recalls and restates its outrage and disgust at the terrorist attacks on GPE of DATE , the horror of which has not been dimmed by the passage of time . It shares the United States’ determination to combat international terrorism and fully endorses the importance of detecting and preventing terrorist crimes , prosecuting and punishing terrorists and protecting human lives .

Whilst the ORG therefore offers its full support to GPE in its efforts to fight terrorism , this must be on condition that all measures taken are fully respectful of human rights and the rule of law . Conformity with international human rights and humanitarian law is not a weakness in the fight against terrorism but a weapon , ensuring the widest international support for actions and avoiding situations which could provoke misplaced sympathy for terrorists or their causes .

GPE has long been a beacon of democracy and a champion of human rights throughout the world and its positive influence on NORP development in this respect since the Second World War is greatly appreciated . Nevertheless , the ORG considers that ORG has betrayed its own highest principles in the zeal with which it has attempted to pursue the ‘ war on GPE . These errors have perhaps been most manifest in relation to LOC .

At no time have detentions at LOC been within a ‘ legal black hole’ . International human rights law has at all times been fully applicable to all detainees . For those captured during the international armed conflict in GPE , protection of certain rights may have been complemented by the provisions of international humanitarian law ( IHL ) for the duration of that conflict . Since that international armed conflict ceased , however , international human rights standards have applied in the normal fashion .

The ORG applauds and supports the work of ORG ( ICRC ) and the various ORG human rights protection mechanisms , along with that of non - governmental organisations including ORG , ORG , in striving to improve detention conditions at LOC and ensure that detainees’ rights are respected . It also thanks ORG ) for its opinion on the possible need for further development of LAW , produced in response to a request from ORG Human Rights .

The ORG recalls the evidence provided by PERSON , former detainee , along with lawyers representing current and former detainees and other international experts , at the hearing held by its ORG Human Rights in GPE on DATE .

On the basis of an extensive review of legal and factual material from these and other reliable sources , the ORG concludes that the circumstances surrounding detentions by GPE at LOC show unlawfulness and inconsistency with the rule of law , on the following grounds :

i. many if not all detainees have been subjected to cruel , inhuman or degrading treatment occurring as a direct result of official policy , authorised at the very highest levels of government ;

ii . many detainees have been subjected to ill - treatment amounting to torture which has occurred systematically and with the knowledge and complicity of ORG ;

iii . the right of those detained in connection with the international armed conflict previously conducted by GPE in GPE to be presumptively recognised as prisoners of war ( POWs ) and to have their status independently determined by a competent tribunal was not respected ;

iv . there have been numerous violations of various aspects of all detainees’ rights to liberty and security of the person , making their detention arbitrary ;

v. there have been numerous violations of various aspects of all detainees’ rights to fair trial , amounting to a flagrant denial of justice ;

vi . GPE has engaged in the unlawful practice of secret detention ;

vii . GPE has , by practising ‘ rendition’ ( removal of persons to other countries , without judicial supervision , for purposes such as interrogation or detention ) , allowed detainees to be subjected to torture and to cruel , inhuman or degrading treatment , in violation of the prohibition on non - refoulement ;

viii . the United States’ proposals to return or transfer detainees to other countries , even where reliant on ‘ diplomatic assurances’ concerning the detainees’ subsequent treatment , risk violating the prohibition on non - refoulement . ”

For the above reasons , the member ORG were called on :

“ i. to enhance their diplomatic and consular efforts to protect the rights and ensure the release of any of their citizens , nationals or former residents currently detained at LOC , whether legally obliged to do so or not ;

ii . with respect to any of their citizens , nationals or former residents who have been returned or transferred from detention at LOC :

a. to treat such persons according to the usual provisions of criminal law , respecting the presumption in favour of immediate liberty on arrival ;

b. to provide such persons with all necessary support and assistance , in particular legal aid to bring cases relating to detention at LOC ;

c. to protect such persons from prejudice or discrimination and to ensure their mental and physical well - being during the process of reintegration ;

d. to ensure that such persons do not suffer detriment to their rights or interests as a result of being held in unlawful detention at LOC , especially in relation to immigration status ;

iii . not to permit their authorities to participate or assist in the interrogation of LOC detainees ;

iv . to respect their obligations under international law to exclude any statement established to have been made as a result of torture or other cruel , inhuman or degrading treatment or punishment from any proceedings , except against a person accused of such ill - treatment as evidence that the statement was made ;

v. to refuse to comply with ORG requests for extradition of terrorist suspects liable to detention at FAC ;

vi . to refuse to comply with ORG requests for mutual legal assistance in relation to LOC detainees , other than by providing exculpatory evidence , or unless in connection with legal proceedings before a regularly constituted court ;

vii . to ensure that their territory and facilities are not used in connection with practices of secret detention or rendition in possible violation of international human rights law ;

viii . to respect the erga omnes nature of human rights by taking all possible measures to persuade GPE authorities to respect fully the rights under international law of all LOC detainees . ”

ORG is an autonomous organ of ORG . On DATE it issued urgent precautionary measures in favour of Mr PERSON , an NORP citizen held by GPE at the detention centre at LOC since DATE . Specifically , the ORG requested that GPE :

“ CARDINAL . Immediately take all measures necessary to ensure that Mr. PERSON is not subjected to cruel , inhuman or degrading treatment or torture during the course of interrogations or at any other time , including but not limited to all corporal punishment and punishment that may be prejudicial to Mr. PERSON ’s physical or mental health ;

Immediately take all measures necessary to ensure that Mr. PERSON receives prompt and effective medical attention for physical and psychological ailments and that such medical attention is not made contingent upon any condition ;

Take all measures necessary to ensure that , prior to any potential transfer or release , Mr. PERSON is provided an adequate , individualized examination of his circumstances through a fair and transparent process before a competent , independent and impartial decision maker ; and

Take all measures necessary to ensure that Mr. PERSON is not transferred or removed to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other mistreatment , and that diplomatic assurances are not used to circumvent the GPE non - refoulement obligations . ”

In accordance with LAW NORP zakon ORG ; published in ORG ( “ ORG ” ) nos . CARDINAL of DATE and CARDINAL of DATE ; amendments published in ORG . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) , non - enforcement of a final and enforceable decision of ORG amounts to a criminal offence :

“ An official of the institutions of GPE , of the Entities or of GPE of GPE who refuses to enforce a final and enforceable decision of ORG , of ORG , or who prevents the enforcement of any such decision , or who frustrates the enforcement of the decision in some other way , shall be punished by imprisonment for a term DATE . ”

On DATE the President of GPE issued a military order entitled “ Detention , treatment , and trial of certain non - citizens in the war against terrorism ” ( CARDINAL FR CARDINAL ) . The relevant part of the order reads as follows :

“ By the authority vested in me as President and as Commander in Chief of ORG by LAW and the laws of GPE , including LAW , CARDINAL Stat . CARDINAL ) and sections CARDINAL and CARDINAL of title CARDINAL , LAW , it is hereby ordered as follows :

( a ) International terrorists , including members of ORG , have carried out attacks on GPE diplomatic and military personnel and facilities abroad and on citizens and property within GPE on a scale that has created a state of armed conflict that requires the use of ORG .

( b ) In light of grave acts of terrorism and threats of terrorism , including the terrorist attacks on DATE , on the headquarters of ORG in the national capital region , on ORG in GPE , and on civilian aircraft such as in GPE , I proclaimed a national emergency on DATE ( Proc . DATE , Declaration of National Emergency by Reason of Certain Terrorist Attacks ) .

( c ) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against GPE that , if not detected and prevented , will cause mass deaths , mass injuries , and massive destruction of property , and may place at risk the continuity of the operations of ORG .

( d ) The ability of GPE to protect GPE and its citizens , and to help its allies and other cooperating nations protect their nations and their citizens , from such further terrorist attacks depends in significant part upon using ORG to identify terrorists and those who support them , to disrupt their activities , and to eliminate their ability to conduct or support such attacks .

( e ) To protect GPE and its citizens , and for the effective conduct of military operations and prevention of terrorist attacks , it is necessary for individuals subject to this order pursuant to section CARDINAL hereof to be detained , and , when tried , to be tried for violations of the laws of war and other applicable laws by military tribunals .

( f ) Given the danger to the safety of GPE and the nature of international terrorism , and to the extent provided by and under this order , I find consistent with section CARDINAL of title CARDINAL , LAW , that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in GPE district courts .

( g ) Having fully considered the magnitude of the potential deaths , injuries , and property destruction that would result from potential acts of terrorism against GPE , and the probability that such acts will occur , I have determined that an extraordinary emergency exists for national defense purposes , that this emergency constitutes an urgent and compelling government interest , and that issuance of this order is necessary to meet the emergency .

( a ) The term ‘ individual subject to this ORG shall mean any individual who is not a GPE citizen with respect to whom I determine from time to time in writing that :

( CARDINAL ) there is reason to believe that such individual , at the relevant times , ( i ) is or was a member of the organization known as ORG ; ( ii ) has engaged in , aided or abetted , or conspired to commit , acts of international terrorism , or acts in preparation therefor , that have caused , threaten to cause , or have as their aim to cause , injury to or adverse effects on GPE , its citizens , national security , foreign policy , or economy ; or ( iii ) has knowingly harbored CARDINAL or more individuals described in subparagraphs ( i ) or ( ii ) of subsection CARDINAL(a)(CARDINAL ) of this order ; and

( CARDINAL ) it is in the interest of GPE that such individual be subject to this order .

( b ) It is the policy of GPE that the Secretary of ORG shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section CARDINAL , and , if the individual is to be tried , that such individual is tried only in accordance with section CARDINAL .

( c ) It is further the policy of GPE that any individual subject to this order who is not already under the control of the Secretary of ORG but who is under the control of any other officer or agent of GPE or any ORG shall , upon delivery of a copy of such written determination to such officer or agent , forthwith be placed under the control of the Secretary of ORG .

Any individual subject to this order shall be

( a ) detained at an appropriate location designated by the Secretary of ORG outside or within GPE ;

( b ) treated humanely , without any adverse distinction based on race , color , religion , gender , birth , wealth , or any similar criteria ;

( c ) afforded adequate food , drinking water , shelter , clothing , and medical treatment ;

( d ) allowed the free exercise of religion consistent with the requirements of such detention ; and

( e ) detained in accordance with such other conditions as the Secretary of ORG may prescribe .

Any individual subject to this order shall , when tried , be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed , and may be punished in accordance with the penalties provided under applicable law , including life imprisonment or death .

With respect to any individual subject to this order

( CARDINAL ) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual ; and

( CARDINAL ) the individual shall not be privileged to seek any remedy or maintain any proceeding , directly or indirectly , or to have any such remedy or proceeding sought on the individual ’s behalf , in ( i ) any court of GPE , or any ORG thereof , ( ii ) any court of any foreign nation , or ( iii ) any international tribunal . ”


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

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

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

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE , DATE and DATE . On DATE the applicant applied for widows’ benefits . On CARDINAL DATE the applicant was informed that his claim had been disallowed as he was not a woman .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

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


András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicants , whose particulars are set out in the appendix , are NORP nationals and close relatives of ORG and PERSON Ömer Kartal , who disappeared in DATE . The applicants were represented before the ORG by PERSON , PERSON and PERSON PERSON , lawyers practising in the town of Silopi , near PERSON .

At TIME on DATE PERSON and ORG , accompanied by their relative PERSON , left ORG and ORG after having paid a visit there on the occasion of New Year ’s Eve . Nothing has been heard from them since that date .

On DATE the car in which the CARDINAL men had travelled DATE and which was owned by PERSON , was found abandoned on vacant land in Silopi .

The DATE the family asked the authorities to find the missing men . The brother of PERSON alleged that the men might have been abducted .

When the preliminary investigation to find the CARDINAL men did not yield any results , on DATE the Silopi prosecutor issued a continuous search order and asked the police to give him progress reports DATE .

NORP In DATE the applicants claimed compensation from the ORG , pursuant to PERSON no . ORG Compensation of the Losses resulting from Terrorism , for the disappearance of their relatives . On DATE ORG rejected the case on account of the applicants’ failure to comply with a procedural rule . On DATE ORG rejected the appeal lodged by the applicants . ORG decision was served on the applicants on DATE .