Violations of Art. 3;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Reminder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and is serving a sentence of imprisonment in GPE .

On DATE the applicant was arrested . On DATE the ORG regional prosecutor authorised his detention . On DATE ORG of Yaroslavl confirmed the detention order .

On DATE the applicant was charged with aggravated murder . On an unspecified date , he was transferred to GPE .

On DATE the Preobrazhenskiy District Court of GPE dismissed the applicant 's complaint about an extension of his detention . On DATE ORG upheld ORG decision .

In DATE the criminal case against the applicant was listed for trial . On DATE ORG held that the measure of restraint in respect of defendants , including the applicant , had been lawful and should remain unchanged .

On DATE ORG extended the applicant 's and his co - defendants ' detention for DATE , that is for the period from DATE to DATE . The court relied on the fact that the defendants had been charged with particularly serious criminal offences . The applicant appealed against this decision on DATE . On DATE ORG of GPE dismissed his appeal , finding that the trial court had authorised the extension in compliance with the applicable procedure and that the defendants could not be released in view of gravity of the charges against them .

On DATE ORG rejected the applicant 's application for release , noted the gravity of the charges and , without giving further reasons , extended his detention on remand . The applicant lodged an appeal against that decision on DATE . On CARDINAL DATE ORG dismissed it in the following terms :

“ ... the defendants have been charged with particularly serious criminal offences . The court ... extended the term of their detention . There were no breaches of the rules of criminal procedure that could entail quashing or amendment of that decision ... The defendants ' request to be relieved of the preventive measure fails because the defendants have been charged with particularly serious criminal offences . ”

On DATE ORG authorised a further extension relying solely on the gravity of the charges . According to the Government , the applicant had mistakenly submitted an appeal against this order directly to ORG . In DATE ORG returned the case file to ORG for a proper notification of the parties and preparation of the case file . The file was submitted to ORG on DATE . The appeal was examined on DATE ( see below ) .

On DATE , DATE and DATE ORG extended the applicant 's detention with reference to the gravity of the charges . The applicant and his co - defendants appealed on unspecified dates .

According to the Government , the remand file regarding the order of CARDINAL DATE reached ORG on DATE ; it examined the appeal against it on DATE ( see below ) .

On DATE ORG considered the appeals against the extension orders of DATE , DATE and DATE . Neither the applicant nor his counsel was present . ORG found that there had been no procedural violations which warranted an amendment or quashing of the contested orders , and that the defendants could not be released due to the gravity of the charges .

On DATE ORG extended the defendants ' detention , noting that the defendants had been charged with particularly serious criminal offences and that , they might abscond or obstruct justice .

On DATE ORG extended the defendants ' detention on remand until DATE , indicating that :

“ ... [ the defendants ] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons , against whom separate criminal proceedings are pending , and with another person , against whom criminal proceedings were disjoined because his whereabouts are not known ; if released , [ they ] may abscond or obstruct justice ” .

The applicant 's appeal against that decision was submitted to ORG in DATE . The file was received by ORG on DATE . A hearing was scheduled for DATE but was adjourned for a decision on the composition of the bench . The appeal was examined on DATE ( see below ) .

On DATE ORG upheld the order of DATE on the same grounds as before . The court also refused the applicant 's request for leave to appear at the appeal hearing because it was to be conducted without a prosecutor and because the applicant 's arguments had been set out in sufficient detail in his notice of appeal .

On DATE ORG extended the defendants ' detention until DATE , reproducing verbatim the reasoning of its decision of DATE .

On DATE ORG upheld the order of DATE and endorsed ORG reasoning .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . On DATE the judgment was pronounced in public . On DATE ORG upheld the judgment .

From DATE to DATE the applicant was detained in GPE remand centre no . MONEY , also known as “ PERSON ” .

The applicant provided the following description of his conditions of detention :

From DATE to DATE he had been kept in cell no . CARDINAL measuring QUANTITY . That cell had never housed CARDINAL prisoners and occasionally CARDINAL . The applicant had never had a bed he could call his own and slept in shifts with other prisoners on bunk beds . The bunk beds had been short and the space between them did not allow a detainee to remain in a seated position . The remaining floor - space had been occupied by a long table .

ORG had not been glazed but instead covered with thick bars and slanted plates welded to a metal screen QUANTITY apart . Those arrangements had impeded access to natural light and air . In DATE , prisoners had stuffed blankets and mattresses in the window frame to keep the warmth inside . The walls , the ceiling and the floor were blackened by smoke , musty and badly damaged . Lights remained on DATE and night . The cell was infested with bugs , lice , fleas and cockroaches . The air had been stale and full of smoke . The cell had no ventilation whatsoever ; ventilation conduits had been cemented in or stuffed with rubbish . Running water was cold and rusty , unfit for drinking . The lavatory pan had been QUANTITY in height ; it had not been separated from the living area . Showers had been allowed once DATE . No items of hygiene such as soap or toilet paper had been provided . There had been no replacements of bedding and no facilities for washing clothes .

From DATE the applicant had been kept in cell no . CARDINAL , measuring CARDINAL or QUANTITY and with CARDINAL berths . The cell had accommodated CARDINAL inmates . The window frame had been partly glazed and partly covered with wooden boards . Showers had been allowed CARDINAL to CARDINAL times per month . The other conditions of detention had been similar to those in cell no . CARDINAL . In support of his submissions concerning cell no . CARDINAL , the applicant had produced written statements from his former cellmates .

The applicant denied that he had ever been held in cell no . CARDINAL . Rather , from CARDINAL DATE to DATE he had been held in a punishment cell in which his warm clothing had been taken away in exchange for dirty and torn overalls and trousers . From TIME a wooden bench had been lifted and chained to the wall and there had been no seating place , save for a tiny concrete post . There had been no heating . He had had no access to the shower . His books and legal documents had been taken away .

None of the cells had been renovated or cleaned during the relevant periods of time .

During the trial the applicant had not been allowed a DATE TIME outdoor walk ; he had had no other out - of - cell activity . The courtyard was extremely dirty ; it had no benches or shelter from inclement weather .

The Government submitted the following description of the applicant 's conditions of detention :

The report of DATE issued by the remand centre , and produced by the ORG , records that the applicant was detained in a number of different cells , as follows :

From DATE to CARDINAL DATE the applicant was held in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL and CARDINAL .

From DATE to CARDINAL DATE , and from CARDINAL DATE to DATE the applicant was held in cell no . CARDINAL . It measured QUANTITY and was designed for CARDINAL persons . It housed CARDINAL prisoners during the second period mentioned . A report of DATE issued by the remand centre , and produced by the ORG , states that the logbooks for DATE had been destroyed as the retention period had expired .

From DATE to CARDINAL DATE the applicant was held in cell no . CARDINAL . It had CARDINAL sleeping places and accommodated QUANTITY prisoners in the period from DATE to CARDINAL DATE .

From DATE to DATE the applicant was held in cell no . CARDINAL . It measured QUANTITY and was designed for CARDINAL persons . It housed CARDINAL persons during the relevant period of time . According to a report of DATE issued by remand centre no . CARDINAL , the applicant had been detained in that cell from DATE to DATE with CARDINAL other inmates .

According to the above - mentioned report of DATE , the logbooks indicating the number of detainees held in the same cell(s ) with the applicant DATE had been destroyed on an unspecified date . It appears from the report of DATE that the logbooks for DATE were destroyed in DATE .

The windows in the cells gave access to natural light sufficient to read or write by . According to another report of DATE issued by remand centre no . CARDINAL , the window frames “ were glazed for DATE period ” . The intensity of artificial lighting was reduced at TIME .

In DATE sanitary inspectors visited the remand centre . According to their report dated DATE , some of the above - mentioned cells had been renovated DATE . At the moment of the inspection , all cells had a sink and a toilet pan ; in most of the cells a concrete partition separated the lavatory from the living area ; the cells were naturally ventilated through ventlights and a system of exhaust ventilation ; the cells had central heating ; all prisoners had bedding and could take a shower once DATE .

Punishment cells were equipped with a folding bed , seating , a table , a sink , a lavatory and a system of ventilation and lighting .

Detainees were allowed a DATE TIME walk . The remand centre had CARDINAL courtyards measuring CARDINAL , QUANTITY and QUANTITY for the detainees ' outdoor activity .

The applicant submitted that DATE he had been transported between FAC and the remand centre on CARDINAL . He gave the following description of DATE when he had been taken to the courthouse :

On each occasion he had been taken out of the cell at TIME and had not been given breakfast . No other food or drink had been made available because , in accordance with the established administrative practice , on DATE of court hearings he had been excluded from the food distribution list . Once out of their cells , detainees had been brought to the assembly section of the remand centre . Over a CARDINAL detainees had been divided between collective and “ individual ” cells : CARDINAL persons in a collective cell or CARDINAL persons in an “ individual ” cell of QUANTITY . Cells had been extremely dirty and had no benches , windows or ventilation . Detainees had been refused access to a toilet during their presence at the assembly section and had to relieve themselves in a bucket . The air had been stale and full of smoke . Detainees had waited for their departure until QUANTITY a.m.

Prison vans had transported CARDINAL persons so that they had to sit on each other 's laps . In the absence of appropriate seating and fixtures for each detainee , they had been exposed to a considerable risk in the case of a traffic accident . Ventilation and heating had not functioned in the van . At around TIME or later prisoners were called back to prison vans and taken to remand centres . After TIME of travel , the applicant was then brought back to his cell in the remand centre at TIME .

At ORG prisoners had been put in CARDINAL “ convoy cells ” measuring QUANTITY each . The applicant had been placed in such a cell with CARDINAL other persons . The walls had been covered with so - called shuba , a sort of abrasive concrete lining , designed to prevent detainees from leaning on them . There had been no bench , no ventilation , no heating and no access to natural light . He had not had unlimited access to a toilet . The applicant stayed in the cell until TIME or later .

The Government submitted that the applicant had been transported from the remand centre to ORG DATE . In DATE he had not been transported because the proceedings had been held in the remand centre .

The applicant had been taken out of his cell at TIME and had been provided with a hot meal . He had then been brought to the assembly section of the remand centre where all detainees awaiting departure for court hearings had been gathered . The assembly section had CARDINAL cells measuring CARDINAL each . Each cell had a bench , toilet facilities , windows and artificial lights . According to a report of DATE issued by the remand centre , there had been no overcrowding in those cells in DATE and DATE .

The applicant had been provided with a meal after his return to the remand centre . He had also been given a dry ration for the remainder of DATE and had been allowed to bring food purchased in the prison shop or received from his relatives . The Government submitted that the catering logs had been destroyed because the retention period had expired .

The applicant was transported in vans GAZ-CARDINAL(CARDINAL ) and ZIL-CARDINAL . The detainees ' section of the GAZ van measured QUANTITY ( length ) by QUANTITY ( width ) by QUANTITY ( height ) . Such a van had CARDINAL individual compartment and CARDINAL compartments for CARDINAL persons each . The detainees ' section of the ORG van measured QUANTITY by QUANTITY by QUANTITY and had CARDINAL individual compartments and CARDINAL compartments for QUANTITY persons each . Both types of vans also had CARDINAL seats for convoy officers .

Vans were equipped with fixed benches so that each detainee was provided with individual seating . PERSON walls had insulating lining . Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running . Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow .

Relying on statements from CARDINAL convoy officers , the Government affirmed that the maximum passenger capacity of the vans had never been exceeded .

The Government submitted that the transportation logbooks for DATE and DATE had been destroyed because the retention period had expired .

In DATE the applicant was transported to the courthouse CARDINAL times , mostly by the GAZ-CARDINAL and ORG vans . It appears from the logbook for DATE that the applicant was transported in the GAZ van together with CARDINAL to CARDINAL detainees and several convoy officers ; in the ZIL van , on many occasions , with CARDINAL and up to CARDINAL detainees and several convoy officers . The reports produced by the Government and an excerpt from the logbook for DATE show that the vans normally left the remand centre between CARDINAL and TIME and returned before TIME On several occasions they returned to the remand centre after TIME and the average travel time on the way back amounted to TIME . Reports of DATE and DATE issued by ORG of the ORG show that the itinerary included stops at district courts and other remand centres ; the transfer normally ended before TIME but there were sometimes late court hearings or traffic jams . According to the ORG 's report of DATE , the applicant had a direct transfer between the remand centre and ORG .

Prior to their renovation in DATE and DATE , the convoy LOC of ORG had consisted of CARDINAL blocks of cells , each comprising CARDINAL cells and a toilet . The applicant had access to a toilet before or after each hearing or at any other time upon request . Cells measured QUANTITY by QUANTITY Each cell had a bench and was equipped with ventilation , lighting and central heating . In DATE the average temperature was CARDINAL to PERSON The applicant had been held separately from other defendants . A report of DATE issued by the GPE convoy regiment states that the design capacity of the cells had not been exceeded and detainees had been provided with hot water at the premises of GPE courts .

In DATE the applicant complained about unsatisfactory conditions of transport , hunger and overcrowded prison vans .

On DATE ORG reported on the results of an inquiry as follows :

“ On leaving for the court each prisoner receives a dry ration in his own hands and against his signature ... On DATE the prisoner is excluded from the food distribution list . The composition of the dry ration takes account of the sanitary and nutritional requirements and ... includes pre - cooked first and second courses which do not require cooking and can be consumed as breakfast , lunch or dinner ...

The matter of providing [ prisoners ] with hot water was discussed with the President of ORG ...

Prisoners are taken out of cells after TIME – in particular , for transport to courts DATE and brought back to cells before TIME ... ORG of Sentences controls the [ resolution of ] problems relating to the existing breaches by the convoy regiment ( late return from the courts , overcrowded prison vans , use of unauthorised routes ) . On many occasions in DATE the established breaches of the procedure for transport of prisoners were brought to the attention of the command of the convoy regiment – mostly because of late return from the courts . Such incidents also took place in DATE [ of DATE ] ; in that connection on DATE a notice about the late return ( after TIME ) of prisoners from the courts in DATE and DATE , was sent to the convoy regiment . Recently there have been no incidents of return of prisoners after TIME

The assembly LOC are indeed overcrowded if there are many defendants going to the courts – CARDINAL persons , whereas the assembly LOC are designed ... to accommodate CARDINAL persons . ”

On DATE the GPE city prosecutor forwarded the applicant 's complaint to the commander of the convoy regiment of the GPE police .

On DATE the GPE convoy regiment established that , contrary to the applicant 's allegations , in DATE the design capacity of prison vans had never been exceeded ; the applicant had been transported in a ORG van together with CARDINAL to CARDINAL detainees . Detainees received dry rations in the remand centre but they could not use them because the convoy premises at the courthouse had no facilities for heating or eating food and because no kitchenware had been available . The officers concluded that the applicant 's complaint had been “ made up so as to have his conditions of detention improved and to provoke the convoy officers to act unlawfully ” .

For a summary of the applicable national legislation relating to detention on remand , see the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , ECHR DATE ) .

On DATE ORG adopted the Rules on food supply for convicts and persons detained in remand centres . According to Annex no . CARDINAL to these Rules , a daily dry ration ( bread , tinned beef or fish , sugar , tea and salt ) is provided to the following categories of persons : convicts on their way to a prison , a remand centre or colony ; persons released from custody on the way to their place of residence ; persons during their stay in patient care institutions or convicted juveniles . Those Rules were amended in DATE and repealed in DATE .

On DATE ORG adopted the Rules on supply of dry ration , according to which persons suspected or accused of criminal offences should be supplied with a dry ration ( bread , precooked first and second courses , sugar , tea , tableware ) during their presence at a courthouse . Detainees should be supplied with hot water with which to consume the ration .


A.

The applicant is an NORP national , born in DATE and living in GPE .

The applicant is the owner of an apartment in GPE , which he had let to GPE

In a writ served on the tenant on DATE the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .

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

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

On DATE , and again on DATE , CARDINAL DATE and DATE , the applicant served notice on the tenant requiring him to vacate the LOC .

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

On DATE , DATE and CARDINAL DATE , the bailiff made attempts to recover possession of the apartment .

Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the tenant vacated the premises .

B. Relevant domestic law

The relevant domestic law is described in the ORG GPE judgment of DATE , to be published in the ORG ’s official reports , § § DATE .


Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant married in DATE and has CARDINAL sons , A , born on DATE , and B , born on DATE .

NORP In DATE the applicant 's wife moved to her parents ' house , taking A with her . DATE she instituted divorce proceedings . The applicant visited them on several occasions . However , most of these visits were disrupted by the couples ' mutual hostility . In DATE the applicant 's wife informed him that she would not allow further visits , but the applicant continued to go to her flat , sometimes with other members of his family .

On DATE the applicant , during one of the visits , took his son A away with him , without his wife 's consent and apparently by force . Afterwards A lived with the applicant in PERSON until DATE .

The applicant submitted that A had been neglected and that he had acted in the best interests of his son . A subsequently received dental treatment , psychological support and speech therapy , and started going to school .

The Government submitted that the child 's psychological problems had been caused by the trauma of being kidnapped by his father , which had also led to the aggravation of his stutter . They relied on the reasoning of ORG judgment of DATE ( see paragraph CARDINAL below ) .

In DATE the applicant 's wife informed the prosecutor that her son had been kidnapped by the applicant .

The applicant 's wife also applied to the court for sole residence of A ; however , on DATE ORG decided to make a temporary residence order for A with the applicant . The applicant 's wife was granted contact rights . The Government submitted that the applicant had been hindering her contact with A ; the applicant denied this .

In DATE the parties and A were examined by experts from the RODK ( Regional Family Consultation Centre ) . Their opinion was that A should live with his mother , although the applicant should enjoy extensive contact rights .

On DATE the court changed its decision of DATE and made a residence order for A with the applicant 's wife . The applicant was granted contact rights and was ordered to return the child to his wife . An appeal by the applicant against this decision was dismissed on DATE .

The applicant failed to comply with this decision and refused to return A.

On DATE ORG dismissed in the light of DNA tests the applicant 's action contesting his paternity of B. Subsequently , the applicant attempted to visit B ; however , his wife apparently hindered his contact with his younger son .

The applicant continued to live with A , who changed schools ; they apparently moved house more than once . The applicant 's wife complained to the prosecutor and attempted to have the decision of CARDINAL DATE enforced .

On DATE ORG granted the applicant 's petition for divorce . The court further decided to limit the applicant 's parental responsibility for A and to deprive him altogether of parental responsibility for PERSON of both children was ordered to be with the applicant 's former wife . The court also allowed the applicant contact rights in respect of both his sons .

An appeal by the applicant against the judgment was dismissed on DATE by ORG . The reasoned judgment was notified to the applicant on DATE .

The applicant 's former wife made contact with B impossible for the applicant . However , he failed to institute enforcement proceedings against his former wife or to apply to the court for a fine to be imposed on her .

On DATE the applicant was arrested by the police in view of the reasonable suspicion that he had kidnapped A and kept him , in spite of the final judgment of DATE and the previous order of CARDINAL DATE . He remained in pre - trial detention for DATE and was released in DATE . On DATE the applicant was indicted before ORG . Subsequently , the applicant and his mother were found guilty of keeping A with them , in breach of domestic decisions . On DATE ORG quashed that judgment . It appears that the proceedings are pending before the trial court .

A was only returned to residence with his mother DATE after the applicant 's arrest , because DATE and DATE he had been living with the applicant 's mother .

On DATE A was heard by the prosecutor in the criminal proceedings against the applicant . The child stated that he preferred to live with his father and that his mother had been threatening him and had forbidden him to call his father .

In DATE A ran away from his mother 's and went to his father 's house , located QUANTITY away . The applicant took him to the police station and A was returned to his mother .

On DATE A ran away again and joined his father in GPE . They have been living together since then .

On DATE the applicant applied to FAC for a new decision regarding parental responsibility and for an order for A 's residence with him .

On DATE the court guardian visited the applicant and A. According to her opinion , A did not want to live with his mother , had good living conditions with his father and paternal grandmother in PERSON and preferred to stay with his father .

On DATE the court dismissed the applicant 's request for an interim order changing the child 's place of residence ( o zabezpieczenie wniosku ) .

On DATE the ORG made an interim order suspending contact between the applicant and B , which had been ordered in the divorce judgment of DATE .

At a hearing on DATE the Dąbrowa Tarnowska ORG heard , inter alia , the director of A 's former school , which he had been attending while living at his mother 's . She testified that A had very often spoken to her complaining about his situation at home , in particular that his mother had prohibited him from visiting his father as well as from calling the applicant or using a computer for the purpose of contacting him . During the stay at his mother 's the child apparently felt that he had been treated differently from his brother B and that his mother had threatened that he would be taken to a children 's home and that his father would be arrested again .

On DATE the court again dismissed the applicant 's request for an interim order allowing A 's place of residence to be with him . The court established that A had had de facto residence with the applicant DATE and since DATE . The child obviously had a stronger attachment to his father . However , the court did not consider that there was enough evidence to issue an interim order changing the earlier decision of ORG 's place of residence before the case was ready for a decision on the merits .

At the hearing on DATE the court heard A , who was then DATE , for the first time .

On DATE the court dismissed the applicant 's request for the interim residence of A to be with him . The court again considered that without a thorough examination of the case it would not be possible to assess whether the best interests of the child required him to stay with his mother or with his father . Therefore the court decided to first hear experts and to obtain their opinion in order to establish the reasons for A 's hostility towards his mother . An appeal by the applicant against this decision was dismissed on DATE .

On DATE the Dąbrowa Gornicza District Court ordered an opinion to be prepared by the RODK . The opinion was finally submitted to the court on DATE . According to the experts the best interests of A required that the residence order be changed to allow A to live with the applicant . The experts took into account the feelings and choices made by A and the family situation characterised by a prolonged conflict between his parents , with A caught in the middle of that conflict . Nevertheless the experts noticed that A had been influenced by the applicant , who had enlisted him in a coalition against his mother and expected absolute loyalty from him . Such behaviour worked against the applicant 's ability to be a good parent and violated the child 's right to express his feelings freely and to form views about the family and the world on the basis of his own experience .

On DATE ORG allowed the applicant 's request of DATE , granted him full parental responsibility and ordered A 's residence with him . It limited the parental responsibility of the applicant 's former wife in respect of A.

The court considered that A 's negative attitude towards his mother , which manifested itself during the period when he was under her care in DATE , had been caused by the lengthy period of total deprivation of any contact between them and during which the applicant had isolated A from his mother . Moreover , for a prolonged period of time the applicant had the undisturbed opportunity to influence his child and create a very strong bond between them .

Nevertheless , the court considered that the situation of the child had substantially changed since the divorce judgment of DATE . A had been living with the applicant , who has been securing his emotional and material needs . The court also took into account the wish of the child as to his preferred place of residence , given his age and level of maturity . Regard being had to the above , the court decided that the best interests of the child required the previous decisions to be modified and an order made for ORG 's place of residence to be with the applicant .

The applicant 's former wife appealed against the decision , but on DATE ORG dismissed the appeal .

On DATE the Dąbrowa Tarnowska ORG modified the judgment of DATE and banned any contact between the applicant and his younger son PERSON The court found that the applicant had never wanted his second child , contested his paternity of him and had seen B only twice : once after B 's birth in DATE and once in connection with the preparation of a psychological opinion at the RODK . In consequence B , DATE , had not developed any emotional ties with the applicant , and in fact was afraid of him and perceived him as a threat to the stability of his family . The court concluded that the best interests of the child required all contact between him and the applicant to cease .

The applicant appealed against this decision , but on DATE the Dabrowa ORG rejected the appeal for failure to lodge it in accordance with formal requirements , namely by lodging it out of time . A further appeal against the latter decision was dismissed on DATE by ORG .

Under LAW , a final court decision as to parental responsibility and contact arrangements can be modified at any time if the interests of the child so require , either upon an application by either parent or by the court acting of its own motion .

Pursuant to LAW request the court to issue an interim order in order to secure a claim concerning , for instance , contact arrangements .

The relevant domestic law concerning the enforcement of a parent 's contact rights is set out in the ORG 's judgment in the case of PERSON GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) .


Violation of Art. 6-1;Complaint concerning the excessive length of the second set of proceedings admissible;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

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

DATE and DATE the applicant was involved in divorce proceedings . On DATE the proceedings were discontinued as the applicant had withdrawn his petition for divorce .

On DATE the applicant ’s wife ( “ the petitioner ” ) lodged with ORG ( PERSON ) a petition for divorce .

It appears that the court held over QUANTITY hearings . Some of the hearings were adjourned due to the absence of the petitioner or witnesses . The first hearing therefore was held on DATE . The court heard in total CARDINAL witnesses .

On DATE ORG gave judgment . Both parties appealed against the judgment .

On DATE the applicant lodged with ORG a complaint about a breach of the right to have his case heard within a reasonable time . He relied on LAW . On DATE ORG dismissed his complaint . The court examined the course of the impugned proceedings and held that there had been no delays for which ORG could be held responsible . The court finally held that the case was complex .

On DATE the court rejected the petitioner ’s appeal as she had failed to pay court fees .

The appellate proceedings concerning the appeal lodged by the applicant are pending before ORG ( Sąd Apelacyjny ) .


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE .

NORP Since DATE , the applicants live together in a registered civil partnership ( eingetragene PERSON ) . On DATE the second applicant gave birth to a son , L.

On DATE the GPE - Eimsbüttel Civil Registry Office issued a birth certificate naming the second applicant as PERSON ’s mother . The space provided in the form for the father ’s name was left blank .

On DATE the first applicant and the second applicant concluded an agreement whereby the child L. would be adopted by the first applicant . On DATE the GPE - Altona District Court granted the adoption order under section CARDINAL § CARDINAL of the Act on Registered Civil Partnerships ( see paragraph CARDINAL , below ) and declared that the child PERSON obtained the legal position of a child of both applicants .

In the meantime , on CARDINAL DATE the applicants requested ORG to rectify the birth certificate by inserting the first applicant as L. ’s second parent . They submitted that section CARDINAL LAW ( see paragraph CARDINAL , below ) , stipulating that the father was the man who was married to the mother of the child at the time of birth , should be applied mutatis mutandis in case the mother lived in a registered civil partnership with another woman . They argued that it was irrelevant under LAW whether the mother ’s husband was indeed the biological father of the child born into the union . There was thus no reason to treat children born into a civil partnership any differently from children born in wedlock .

On DATE the GPE ORG rejected the ORG request as being unfounded . ORG considered that there was no reason to rectify the birth certificate , because the birth certificate was neither incorrect nor incomplete . The birth certificate documented the child ’s descent . It contained the names of the parents the child descended from . It was irrelevant in this context whether the parents were married or not . The prerequisites of CARDINAL of LAW were clearly not met in the instant case .

ORG further considered that there was no legal ground for inserting the first applicant as “ second ” mother into the birth certificate , as it was impossible that the child had descended from her . The mere fact that the child ’s mother lived in a registered civil partnership when giving birth did not justify inserting a second parent . This was not called into question by the fact that section CARDINAL of LAW contained the rebuttable presumption that the mother ’s husband was the child ’s father . In the instant case , there was no room for the presumption of the child ’s descent from his mother ’s partner ; on the contrary , such descent could be ruled out .

ORG finally observed that the possibility of adoption of the partner ’s child under section CARDINAL § CARDINAL of the Law on Registered Civil Partnerships demonstrated that the legislator had been aware of the civil partner ’s rights in respect of the other partner ’s children . Under these circumstances , there was no room for an analogous application of section CARDINAL of LAW in the instant case .

On DATE ORG rejected the applicants’ appeal .

On DATE ORG rejected the ORG appeal on points of law . ORG confirmed the lower courts’ reasoning . It further considered that the applicants had not been discriminated against in their capacity as women living in a registered civil partnerships vis - à - vis persons living in wedlock . It could not be said that persons living in a civil partnership were discriminated against or that they were deprived of certain rights enjoyed by married couples , as a child could only descend from a specific mother and father . This was excluded on biological grounds in the case of CARDINAL women living in a registered civil partnership .

The Court of Appeal further considered that it followed from the above considerations that there had been no violation of the applicants’ rights under LAW in conjunction with LAW .

On DATE ORG ( case - file no . CARDINAL BvR CARDINAL/CARDINAL ) refused to accept the ORG constitutional complaint for adjudication . ORG observed , at the outset , that there was no indication that the lower courts had failed to take into account the requirements of LAW . It further considered that the refusal to insert the first applicant into the birth certificate prior to adoption did not violate the applicants’ right to the enjoyment of their family life . LAW protected the family as a union of parents and children . It did not matter in this respect whether the children descended from their parents and whether they were born in or out of wedlock . However , the entry of the name of a civil partner into the birth certificate did not concern the family life between the civil partners and the child . The birth certificate had the sole purpose of giving evidence of the child ’s descent . It did not interfere in any way with the child ’s living together with his or her parents within the family .

The Constitutional Court further considered that the applicant had not been discriminated against . Civil partners did not have a right to be treated equally to legal or biological fathers with respect to their entry into the birth certificate . In this respect , the CARDINAL groups were not comparable , as biological or legal paternity established a legal relationship comprising mutual rights and duties . Such a legal relationship did not exist between the civil partner and the child , as long as the child was not adopted .

The fact that there was no legal presumption that the mother ’s civil partner was the child ’s second parent did not amount to discrimination visà - vis married couples , as the legal presumption was based on biological descent and did not have a basis in the case of civil partners .

Article CARDINAL of LAW provides

“ ( CARDINAL ) Marriage and the family shall enjoy the special protection of the ORG .

( CARDINAL ) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The ORG shall watch over them in the performance of this duty . ”

Section CARDINAL of the Act on Civil Status ( Personenstandsgesetz ) provides :

“ ( CARDINAL ) The entry into the civil status register gives evidence of the fact ... of birth and of the further information given in this context and the further information on the civil status of the persons the entry refers to .

( CARDINAL ) Certificates on personal status have the same evidentiary value as the entry into the civil status register .

( CARDINAL ) The incorrectness of the documented facts may be proofed ... ”

The relevant provisions of the NORP Civil Code provide :

Section CARDINAL Maternity

“ The mother of a child is the woman who gave birth to it . ”

Section CARDINAL Paternity

“ The father of a child is the man

who is married to the mother of the child at the date of the birth ,

who has acknowledged paternity or

whose paternity has been judicially established ... ”

Section CARDINAL Effect of Adoption

“ ( CARDINAL ) If a married couple adopt a child or if a spouse adopts a child of the other spouse , the child attains the legal position of a child of both the spouses .

( CARDINAL ) ...

( CARDINAL ) The parental custody is held in the cases of subsection ( CARDINAL ) by the spouses jointly ... ”

Section CARDINAL of the Act on Registered Civil Partnerships ( Lebenspartnerschaftsgesetz ) provides insofar as relevant :

Parental responsibility of the civil partner

“ ( CARDINAL ) If CARDINAL civil partner has the sole custody over his or her child , he or she can arrange with his or her civil partner a right of co - decision concerning matters of the child ’s DATE life ...

( CARDINAL ) In case of clear and present danger to the child , the civil partner has the right to take all relevant legal decisions that are necessary for the child ’s well - being ; the civil partner who has the sole custody of the child is to be informed without delay .

( CARDINAL ) A civil partner may adopt a child of his or her civil partner . In this case sections ... DATE ... of the NORP Civil Code shall apply accordingly . ”


Violation of Art. 6-1;Non-pecuniary damage - award

Alvina Gyulumyan;Anatoly Kovler;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

In DATE criminal proceedings were brought against the applicant on CARDINAL charges a traffic offence in DATE which resulted in infliction of bodily harm , and a burglary in DATE .

On DATE the GPE prosecutor 's office transferred the case for trial to LOC and asked to be notified of the hearing and examine the case with a prosecutor 's participation .

On DATE Judge PERSON of the GPE ORG ordered that the applicant 's case be examined on DATE at a public hearing with the participation of a state prosecutor and defence counsel .

On DATE ORG composed of Judge PERSON and CARDINAL people 's assessors held an open hearing . The applicant , his counsel and the victims appeared before the court . The prosecutor failed to appear , for unknown reasons .

According to the court records , the court asked whether the participants in the proceedings had any requests . There were none . The court then asked whether it was possible to begin the court investigation with those present . The participants in the proceedings responded in the affirmative and the court , having deliberated , decided to do so .

The indictment was read out in court . The applicant was accused under LAW of a violation of traffic rules which caused bodily harm and , LAW CARDINAL § CARDINAL of the LAW , of concerted burglary by a group of people causing significant damage .

The applicant was asked if he understood the charges against him and whether he pleaded guilty . He answered that he understood the charges , that he pleaded guilty to the traffic offence and not guilty to burglary . The participants in the proceedings were then asked about the order of examination of evidence . They left that question to the court 's discretion and the court decided first to hear the applicant , then the victims , and then to examine written evidence and the statements by witness Mr L. It then proceeded with the examination of evidence in that order .

Having deliberated , the court of its own motion decided to examine , as an additional witness , a police officer , PERSON , who had arrested the applicant at the site of the crime . It announced a TIME break , after which Mr Y. appeared before the court and was examined . Mr Y. stated that he had arrived at the scene of the burglary in a police patrol car with other police officers . He had seen a man and tried to pursue him but he had run away . They had found a car which was open and some time later he had caught the applicant , who was approaching the car and who looked similar to the man he had been pursuing earlier . The applicant had denied any connection with the burglary and stated that he had been visiting friends but could not give his friends ' names or address .

The court then asked whether it was possible to conclude the court investigation with those present . The participants in the proceedings responded in the affirmative and the court proceeded to pleadings . In particular , it heard the applicant 's counsel .

On DATE the Savelovskiy ORG delivered a judgment in which it convicted the applicant under LAW of a violation of traffic rules which caused bodily harm and LAW CARDINAL § CARDINAL of LAW of concerted burglary by a group of people causing significant damage , and sentenced him to DATE imprisonment and a fine .

The applicant 's conviction on the charge of burglary was based on the statements of the victim Mr PERSON ; witness PERSON , a security guard who said he had seen CARDINAL people get out of a car , CARDINAL of whom had stayed in the yard while the other CARDINAL had approached the building with an object resembling a crowbar . PERSON had heard the sounds of scraping metal and called the police . The conviction was further based on statements by witness PERSON Y. ; a report on the examination of stolen property which was found by the police at the site of the crime and identified by the victim and a report on the examination of a crowbar which was also found at the site of the crime . The court found that the applicant took the other accomplices to the site of the crime in his car , made his car available to transport the stolen property , and kept watch while the others were forcing a window grille . ORG declared certain written evidence inadmissible as unlawfully obtained .

The applicant 's counsel appealed against the judgment , arguing that there was no evidence that the applicant had committed the burglary . He also pointed out that the case file did not contain information about the prosecutor 's notification of the hearing and reasons for his nonattendance . The first - instance court had held the trial in the absence of the prosecution , thus assuming its functions . In accusing the applicant and delivering the judgment at the same time , as with inquisitorial justice , it had violated the constitutional principles of impartiality of court , equality of parties and adversarial proceedings .

On DATE ORG held an open hearing . It heard submissions by the applicant 's counsel and by the prosecutor , who argued that the judgment should be upheld . It dismissed the appeal and upheld the judgment .

ORG stated in its decision that it could not agree with the applicant 's allegation that he had not participated in the burglary , because the allegation was rebutted by the materials of the case . ORG held that there had not been any substantial violations of the law on criminal procedure which would warrant the quashing of the judgment . ORG made no comment in its decision in respect of the applicant 's complaint about the prosecutor 's absence from the hearing before the firstinstance court .

On DATE the Presidium of ORG examined the applicant 's case by way of supervisory review , changed the qualification from burglary to aiding and abetting burglary under LAW and LAW and reduced the sentence to DATE and DATE imprisonment and a fine .

On an unspecified date the applicant was discharged from serving his sentence on the basis of an amnesty act and released .

Article CARDINAL of the RSFSR Code of Criminal Procedure of DATE ( “ the Code ” ) , in force at the material time , required the court to undertake all lawful measures for the comprehensive , thorough and objective examination of all the circumstances of a case , and to detect incriminating and exonerating as well as both mitigating and aggravating circumstances .

Under LAW , during the preparation of a case for a trial a judge had to decide whether a state prosecutor should participate in the trial . If the judge decided that the prosecutor 's participation was necessary his decision was binding on the prosecutor . If the prosecutor informed the court when transferring a case for trial of his wish to sustain the charges in the court the judge could not decide otherwise .

Under Articles CARDINAL and CARDINAL of the Code , if the prosecutor failed to appear , the court , after hearing participants present at the hearing , decided whether it was possible to examine the case in his absence or whether the hearing should be adjourned . That decision was not appealable to a higher court ( Article CARDINAL of the Code ) .

At the trial the prosecutor prosecuted the defendant on behalf of the ORG , took part in the examination of evidence , and gave conclusions and submissions , in particular in respect of the law and punishment to be applied to the defendant . If the prosecutor was convinced that the materials of the judicial investigation no longer supported the charges levelled against the defendant , he had to drop the charges and state his reasons for doing so to the court ( LAW ) .

The Constitutional Court of GPE on several occasions examined the question of compatibility of functions imposed on the court according to LAW with , in particular , the court 's role in administering justice independently and impartially ( LAW ) and the adversarial nature of criminal trial ( LAW ) . ORG found the following functions imposed on the judge incompatible with those principles : to institute criminal proceedings and formulate charges under LAW ( a decision of DATE ) ; to institute criminal proceedings , in particular against a new person , and to apply a preventive measure against that person under LAW , CARDINAL § CARDINAL ( vi ) , QUANTITY , CARDINAL DATE ( i ) , CARDINAL and CARDINAL , CARDINAL § CARDINAL ( iv ) and QUANTITY , CARDINAL and DATE ( a decision of DATE ) ; to sustain charges after the prosecutor 's dropping the charges under Article CARDINAL § CARDINAL of the LAW ( a decision of DATE ) ; and to remit , of its own motion , a criminal case to the prosecutor for additional investigation in case of irreparable incompleteness of investigation , in particular if evidence was found to have been received illegally , or in the case of grounds for laying more serious charges or new charges against the defendant under ORG CARDINAL § § CARDINAL ( i ) and ( iii ) and CARDINAL § CARDINAL of the LAW ( the decision of DATE and a ruling of DATE ) .

ORG held that functions concerning formulation and sustaining the charges before the court should be performed by the prosecution and should not be imposed on the court . In particular , it stated in its decision of DATE that a criminal trial was based on the principles of adversarial proceedings and equality of the parties , which meant first of all strict separation of the judicial function and the prosecution function , which were therefore carried out by different actors . The adversarial nature of criminal trials implied that the institution of criminal prosecution , the formulation of a charge and its sustaining before the court , were insured by competent bodies and officials , as well as victims . Imposing on the court the obligation to substitute , in CARDINAL or another form , for those bodies and persons ' prosecution activity , was incompatible with LAW and obstructed the independent and impartial administration of justice by the court as required by LAW , as well as LAW CARDINAL of LAW .

Under LAW , the court investigation started with the reading out of an indictment . ORG held that there was no indication under LAW that the indictment was to be read out by the court . Therefore , it did not follow from that provision that the court had to assume any functions concerning levelling , sustaining or proving charges against the defendant which would be incompatible with its constitutional function to administer justice on the basis of the principles of adversarial proceedings and equality of the parties . In particular , the prosecutor could not refuse to read out the indictment if ordered to do so by the presiding judge ( a ruling of DATE ) .

Under LAW , the prosecutor 's participation was compulsory in jury trials ( Article CARDINAL ) .

The appeal court considered , on the basis of the materials in the case file and newly submitted materials , whether a first - instance judgment was lawful and well - founded . It was not bound by the grounds of the appeal and exercised a full review of the case ( LAW ) . Under Articles CARDINAL - CARDINAL of the Code , the appeal court could decide to dismiss the appeal and uphold the judgment , to quash the judgment and remit the case for a new investigation or for a fresh trial , to terminate the criminal proceedings or to vary the judgment .

Article CARDINAL of the Code read as follows :

Grounds for quashing or varying judgments [ on appeal ]

“ The grounds for quashing or varying a judgment on appeal shall be as follows :

( i ) prejudicial or incomplete inquest , investigation or court examination ;

( ii ) inconsistency between the facts of the case and the conclusions reached by the court ;

( iii ) a grave violation of procedural law ;

( iv ) improper application of [ substantive ] law ;

( v ) discrepancy between the sentence and the seriousness of the offence or the convicted person 's personality . ”

Under LAW of LAW , which entered into force in DATE , the state prosecutor 's participation is mandatory in all trials in public prosecution cases .

Recommendation to Member GPE on the role of public prosecution in the criminal justice system ( Recommendation Rec(CARDINAL)CARDINAL ) adopted by ORG on DATE ( during the FAC session of ORG ) notes that the public prosecution 's functions in all NORP criminal justice systems includes the decision on whether to lay charges or to abandon prosecution , the prosecution of these charges before the courts and the possibility to appeal all or certain courts ' decisions . In certain criminal systems , the public prosecution also conducts , manages or supervises the investigation , provides support and legal assistance to the victims or decides on alternative measures to prosecution ( § § CARDINAL and CARDINAL ) . As to the relationship between state prosecutors and court judges , the recommendation provides as follows :

“ CARDINAL . States should take appropriate measures to ensure that the legal status , the competencies and the procedural role of state prosecutors are established by law in a way that there can be no legitimate doubt about the independence and impartiality of the court judges . In particular states should guarantee that a person can not at the same time perform duties as a state prosecutor and as a court judge . ”

ORG adopted certain LAW ( DATE ) at ORG on ORG and the Treatment of Offenders ( GPE , GPE , DATE to CARDINAL DATE ) . Guideline CARDINAL on roles in criminal proceedings states “ the office of prosecutors shall be strictly separated from judicial functions . ”


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

On DATE ORG commenced criminal investigations against the applicant on suspicion of fraud related to the raising of credit secured on real property . It informed the applicant about the criminal investigations against him DATE after .

On DATE , after having held a hearing during which the applicant was represented by a court appointed lawyer , ORG convicted the applicant of aggravated fraud and sentenced him to CARDINAL years’ imprisonment . The court considered as a mitigating factor that the offence had been committed already a considerable time ago , namely in DATE and DATE . The court , having regard to the lapse of time , suspended the execution of the sentence on probation .

On DATE ORG , upon the applicant ’s appeal , scheduled CARDINAL hearings for the period DATE and DATE . On DATE the applicant withdrew his appeal . He submitted that he had suffered mentally and physically from the length of the proceedings against him . Therefore he would not have been able to attend the hearings .

On DATE the applicant lodged a constitutional complaint with ORG complaining about the alleged failure of ORG to appoint a lawyer of his own choosing , about the densely scheduled hearings during the appellate proceedings and that the sitting judge at ORG had been substituted by another judge .

On DATE ORG refused to admit the applicant ’s constitutional complaint without giving any reasons .

LAW of LAW ) in conjunction with the principle of the rule of law guarantees the right to expeditious proceedings . According to the settled case - law of ORG ( see , decision of DATE , no . CARDINAL StR CARDINAL , decision of CARDINAL DATE , no . CARDINAL StR DATE ) and of ORG ( see , among others , decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL ; decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL ) , the consequence of the excessive length of criminal proceedings must be either a reduction of the sentence or even the discontinuation of the proceedings . Pursuant to recent decisions of ORG , that principle applies to the criminal courts as well as to ORG ( see , decision of DATE , no . DATE , ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq . and decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports of ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq . and decision of DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , DATE and DATE ) .

Section CARDINAL of the Code of Criminal Procedure provides that the public prosecution or the courts may discontinue the proceedings at any stage if the perpetrator ’s culpability is considered to insignificant and if there is no public interest in the prosecution .

Section CARDINAL provides that if a judgment can not be expected in reasonable time and if another sentence or the measure of reform and prevention already imposed seems sufficient to protect the legal order , the public prosecution may decide not to prosecute and the courts may close the proceedings preliminarily at any stage upon a motion by the public prosecutor ’s office .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant , who used to work as a farmer and a car mechanic , was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ORG .

On DATE the applicant instituted civil proceedings against ORG in ORG ( Okrožno sodišče v Mariboru ) seeking pecuniary and non - pecuniary damages resulting from the accident .

On DATE the applicant and insurance community T , acting on behalf of ORG , made an out - of - court settlement concerning non - pecuniary damage . Subsequently , ORG recognized the basis of the claim , but continued to disagree with the amount claimed for the pecuniary damage , including the damage for loss of capacity and business loss .

During the proceedings ORG was represented firstly by T and then by its alleged successor , insurance company GPE .

By DATE , when the Convention entered into force with respect to GPE , the first - instance court decisions were CARDINAL times quashed on appeal and remitted for re - examination , the last time on DATE .

DATE and DATE , in the fourth trail , the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

Of the CARDINAL hearings held between DATE and DATE , CARDINAL was adjourned at the request of the applicant .

During the proceedings , the court appointed a financial expert . The court also sought CARDINAL additional opinions from the appointed experts .

At the last hearing , the court delivered a judgment , in which it upheld the applicant ’s claim in part .

On DATE the applicant appealed to ORG ( PERSON ) . PERSON cross - appealed . Insurance company M also appealed .

On DATE ORG rejected GPE ’s appeal and allowed the appeals of applicant and ORG and remitted the case to the first - instance court for re - examination . It found , inter alia , that GPE all the time during the proceedings lacked the authority to represent PERSON .

In the fifth trail , the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence DATE and DATE .

During the proceedings the court appointed a medical expert , a financial expert and an agricultural expert . The court also sought an additional opinion from one of the appointed experts .

Of the CARDINAL hearings held DATE and DATE , none was adjourned at the request of the applicant .

At the last hearing , the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

At an undetermined time the applicant appealed to ORG ( PERSON ) . PERSON cross - appealed .

On DATE the court dismissed the applicant ’s appeal and allowed the ORG ’s appeal in part .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

The proceedings are still pending .

NORP In the meanwhile , on DATE the applicant instituted a separate set of proceedings against the insurance company GPE seeking compensation for damage he sustained due to GPE ’s unauthorized interference in the above proceedings .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

NORP The applicant company , Evrim PERSON , is a construction firm operating in GPE .

On DATE the applicant company signed a contract with a cooperative called PERSON ( “ the cooperative ” ) for the construction of dwellings on land belonging to the latter .

NORP In DATE the applicant company completed the construction of PERCENT of the project . However , following the election of a new board of directors by the general assembly of the cooperative , the applicant company ’s contract was terminated by the cooperative .

On DATE the cooperative brought an action in the CARDINALth Chamber of ORG ( “ the first case ” ) claiming damages from the applicant company on the ground that it had failed to fulfil the terms of the contract . The cooperative argued that the construction of the dwellings should have been completed by DATE , whereas the applicant company had only done PERCENT of the work by DATE .

On DATE the applicant company brought a counter action in the CARDINALth Chamber of ORG ( “ the second case ” ) claiming damages from the cooperative . The applicant company argued that the cooperative had terminated the contract without giving any reasons .

On an unspecified date the CARDINAL cases were joined by ORG of ORG . In the course of the proceedings the court sought expert opinions CARDINAL times , which caused substantial delays . For example , on DATE the court decided to obtain an expert opinion on the dispute . The case file was transmitted to the experts on DATE but their report was not submitted to the court until DATE .

On DATE , in the first case , ORG ruled in favour of the cooperative and allowed part of its claim for damages . The parties appealed .

On DATE , in the second case , ORG dismissed the applicant company ’s claim for damages , holding that it had failed to prove the damage caused by the termination of the contract by the cooperative .

On DATE ORG upheld the lower court ’s judgment in the first case . The applicant company requested rectification of that decision .

On DATE ORG ruled in favour of the applicant company and quashed its decision of DATE . The case was remitted to the lower court .

On DATE ORG decided to obtain a new expert opinion on the matter . This opinion was submitted to the court on DATE .

On DATE ORG ruled in favour of the applicant company and ordered the cooperative to pay MONEY . The cooperative appealed .

On DATE ORG upheld the above judgment . That decision was sent to ORG on DATE and was served on the applicant on DATE .

On DATE the applicant company brought an action in ORG ( Istanbul Asliye Ticaret Mahkemesi ) against the cooperative requesting additional compensation ( munzam zarar ) , under LAW , for the damage it had sustained as a result of the low interest rate applied to the debt .

On DATE ORG dismissed the action , holding that the applicant company had failed to prove the alleged damage . The applicant company appealed . On DATE ORG upheld the judgment . On DATE ORG dismissed a request by the applicant company for rectification .