No violation of Art. 3 (in case of removal to Uganda);No violation of Art. 8 (in case of removal to Uganda)

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant , who was born in DATE , is a NORP national . Her mother and younger siblings live in GPE . She is the daughter of PERSON , who was a government minister in GPE DATE and subsequently the ORG of ORG .

The applicant ’s father has been detained since DATE on treason charges . Her father was first arrested in DATE when the present regime , ORG ( ORG ) , took power . He was ultimately charged with treason and detained . In DATE she was followed and arrested by CARDINAL men when she went to visit her father in prison and detained for DATE during which she was asked questions about her father ’s political life . She escaped after claiming to be unwell and being allowed to visit a local hospital . She subsequently hid at a friend ’s house until her father was acquitted and released later in DATE .

NORP In DATE the applicant ’s father disappeared . He was believed to have fled to GPE , having been warned that he was likely to be rearrested . The family , including the applicant , also went to live in GPE for a while , but she returned to GPE in DATE hoping that the situation had improved . DATE she was questioned about her father ’s whereabouts and her passport was confiscated . She obtained another passport using her real name but a false date of birth . In DATE she again travelled to GPE and then returned to GPE .

In DATE the applicant obtained a ticket and tourist visa for GPE , originally planning to travel as a tourist .

On DATE she was at home with family members when plain clothes police officers or soldiers raided the house , looking for evidence . They had brought the applicant ’s father with them in handcuffs . The applicant stayed with a friend for DATE and then travelled to GPE via GPE .

On DATE the applicant claimed asylum on arrival in GPE on the basis of her father ’s political activities in GPE .

On DATE the Secretary of ORG refused her application for asylum on the ground that she had not herself been involved in any political parties or activities in GPE and that she had not claimed to have experienced any arrests , detention or significant problems from the time of her father ’s release in DATE until the claimed raid on her home in DATE . This was considered to be evidence that she would not be of any adverse interest to the GPE authorities . Furthermore , she had used the passport she had obtained from the NORP authorities through the correct channels in the name of PERSON to leave GPE without apparent difficulties , having previously used this passport to visit GPE in DATE for DATE after which she had returned to GPE . Despite her claims that her passport in the name of ORG had been confiscated earlier by the authorities and that the date of birth on the passport with which she had left GPE was false , the names were ones which she used and which her parents had given her and she had submitted letters of residence to obtain the passport from the authorities . It was considered that she would not have been able to leave GPE through normal immigration channels had she been of any particular or adverse interest to the authorities .

On DATE a Special Adjudicator dismissed the applicant ’s appeal against the Secretary of ORG ’s decision to refuse her asylum claim . He found that there was no evidence that she had been deeply associated with her father ’s political activities . She held no personal political opinion , had not been politically active and had given no evidence at the hearing to demonstrate that she was any closer to her father than any other family members . Her arrest in DATE had not occurred because of any imputed political opinion but was rather to inquire about her father . Following her release the authorities had shown no further interest in her . After returning from GPE in DATE she continued to live at home and was thus easy to locate . The applicant ’s assertion that she was believed by the authorities in GPE to be involved in rebel activities and to assist her father politically was emphatically rejected .

On DATE ORG ( ORG ) , by a majority of CARDINAL , refused her appeal against the determination of the Special Adjudicator . It found that GPE was not correct in stating that there was no evidence of individuals being at risk of persecution because of the political activities of their relatives , as he should have considered and made a finding on a letter from ORG before him which contained evidence to the contrary . The Special Adjudicator had also erred in stating that the applicant had claimed to have been followed but never accosted or apprehended after she returned from GPE in DATE and it would have been better if he had referred to the applicant ’s claim to have gone into hiding when concluding that the authorities had shown no further interest in her after her release . Though the applicant was a credible witness and events in GPE had given rise to a genuine fear of persecution on her part , she had not been seriously ill - treated when detained for a short time in DATE and questioned about her father ’s political activities . Her representative had conceded at the hearing that she had not been subjected to past persecution . There was no evidence that the authorities were looking for the applicant in the period between her being questioned and her father ’s release in DATE . However , it was noted that this may have been because she was in hiding . After the applicant ’s father disappeared in DATE there was a period before she went to GPE during which the authorities could have found her at her home and arrested her if they had wanted to do so . They could have arrested her at any time between her return to GPE in DATE and DATE , except for a brief period from DATE during which she returned to GPE . During this period , the applicant believed that she was being watched and followed . If this was the case and the authorities had as serious an interest in her as she claimed , it was difficult to understand why they had not arrested her . Whilst in DATE she was accosted by CARDINAL men who asked her if she knew where her father was and confiscated her original passport , they did not arrest her or subject her to the persecution she claimed to fear . If she was correct and the authorities were looking for her father they were as likely to obtain information from her during that period as they would be during the period after he was detained .

The ORG also dismissed the applicant ’s assertion that the authorities believed her to be involved in rebel activities and to have assisted her father politically . It considered that the authorities could have arrested the applicant either during the periods outlined above or in DATE , when they brought her father to the house in handcuffs when she was present . There was no claim that the applicant or any other member of the family present at that time had been arrested . The evidence showed that the only real interest the authorities had in the applicant was in discovering her father ’s whereabouts . They no longer needed this information since he was in custody . Though the applicant sought to argue that the GPE authorities might still wish to obtain information from her , which would assist the conviction of her father or his associates , it was likely that they were looking for incriminating evidence when they searched the home in DATE . However they did not arrest the applicant . Having regard to the country information reports , the tribunal also found that there was no evidence that family members of political opponents were negatively associated or as a result persecuted in any way .

The CARDINAL - member majority of the ORG did not find that the applicant had established a reasonable degree of likelihood that , as a family member of an opposition politician , she would herself be at risk of persecution . The minority member , however , considered that the applicant , because of her father ’s political position , would be perceived by ORG as a political opponent . Moreover , the Government might attempt , by use of force if necessary , to obtain evidence from her to be used against her father at trial . The majority of the ORG recommended on humanitarian grounds that the Secretary of ORG reconsider the applicant ’s position , in the light of her genuine subjective fear of returning to GPE .

On DATE the ORG refused the applicant permission to appeal to ORG on the basis that the grounds of appeal did not disclose any arguable point of law .

By a letter dated CARDINAL DATE the applicant made further representations to the Secretary of ORG claiming that her removal from GPE would be a breach of the latter ’s obligations under LAW , DATE , DATE , DATE and DATE of the Convention and LAW DATE .

By a letter dated DATE the Secretary of ORG rejected these representations , inter alia , on the basis that the Special Adjudicator and ORG had addressed all the reasons in their determinations and that the concerns raised under LAW in relation to difficulties the applicant might suffer in GPE did not engage GPE obligations .

On DATE an Adjudicator refused the applicant ’s human rights appeal under section CARDINAL ) of ORG ( “ DATE Act ” , see paragraph CARDINAL below ) . He was of the opinion that as the applicant ’s claim had been considered and dismissed by both a Special Adjudicator and the ORG , albeit on a majority decision , he needed to consider whether there were any circumstances that had arisen since the date of the ORG ’s decision that would provide exceptional circumstances sufficient to engage LAW . Though the current conditions in GPE were certainly no better than they were at the time the applicant had left the country , there was nothing to suggest that they had seriously deteriorated or that the position of her father had worsened . The Adjudicator noted that the applicant ’s cousin had informed her that the remainder of her family were well in GPE and that her legal representative had conceded that there was no emphatic ground to contend that LAW would be breached should the applicant be returned to GPE . He further observed that , with commendable honesty , the applicant ’s legal representative had accepted that LAW CARDINAL claim would be hard to uphold and had rather sought to concentrate on the Article CARDINAL claim . As regards the applicant ’s submissions under Article CARDINAL , the Adjudicator found that the applicant had established a private and not family life in GPE as the relationship she enjoyed with a male friend did not constitute family life . Though she had established a private life during her stay in GPE in excess of DATE , revolving around her employment in a church and her accountancy studies , her removal to GPE , however sympathetic one might be to her circumstances , would not be disproportionate .

NORP In DATE the applicant was detained with a view to effecting her removal from GPE and removal directions were set for her return to GPE on DATE .

On TIME CARDINAL DATE the applicant ’s solicitors obtained an injunction from a ORG judge over the telephone restraining the Secretary of ORG from removing the applicant from GPE .

On DATE the applicant issued an application for permission to apply for judicial review of her removal directions on the basis that her removal would be in breach of her rights under the Convention .

By an order dated DATE , the applicant ’s application for permission to apply for judicial review was refused by a ORG judge following consideration of the documents . The judge refused the application holding that it was an abuse of process and merely an attempt to frustrate her removal directions since there had been no application for permission to appeal against the ORG ’s determination dated DATE .

By a letter dated DATE the Secretary of ORG refused the applicant discretionary leave to remain in GPE and found that the applicant ’s further submissions did not amount to a fresh claim . All the points raised in her submissions had already been addressed when the applicant ’s earlier claim had been determined and they were not significantly different from the material that had previously been considered . The applicant ’s fears that she might be detained , tortured or subjected to degrading treatment given the manner of her escape were considered speculative as she had provided no evidence to support this claim . The applicant had failed to provide any evidence that the GPE authorities were of the opinion that she could assist them with any inquiries regarding her father . No new or compelling evidence had been provided . Article CARDINAL had already been considered during her appeal against the refusal of her human rights application and all the issues she had raised in her current representations had also been raised before and considered thoroughly by the Adjudicator . Furthermore , the applicant had the opportunity to apply for permission to appeal against the Adjudicator ’s determination of CARDINAL DATE but had failed to do so .

Following the application of Rule DATE and communication of this case to the Government for their observations , the applicant was released from detention and granted temporary admission into GPE , with a requirement to report on a DATE basis . The Government confirmed in writing that , as a result of the Rule CARDINAL indication , the applicant would not be removed from GPE pending the conclusion of the proceedings before the ORG .

Paragraph CARDINAL of ORG ( “ DATE Act ” in force at the relevant time ) provided :

“ ( CARDINAL ) If ORG has made a final determination of an appeal brought under Part IV , any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination .

( CARDINAL ) An appeal under this section may be brought only with the leave of ORG or , if such leave is refused , of the appropriate appeal court .

( CARDINAL ) “ Appropriate appeal court ” means—

( a ) if the appeal is from the determination of an adjudicator made in GPE , ORG ; and

( b ) in any other case , ORG . ”

Section CARDINAL under Part IV of the CARDINAL Act stipulates as follows :

“ ( CARDINAL ) A person who alleges that an authority has , in taking any decision under the Immigration Acts relating to that person ’s entitlement to enter or remain in GPE , acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the [ DATE . ] ORG Act DATE .

( CARDINAL ) For the purposes of this Part , an authority acts in breach of a person ’s human rights if he acts , or fails to act , in relation to that other person in a way which is made unlawful by section CARDINAL ) of the [ DATE . ] LAW DATE .

( CARDINAL ) Subsections ( CARDINAL ) and ( CARDINAL ) apply if , in proceedings before an adjudicator or ORG on an appeal , a question arises as to whether an authority has , in taking any decision under the Immigration Acts relating to the appellant ’s entitlement to enter or remain in GPE , acted in breach of the appellant ’s human rights .

( CARDINAL ) The adjudicator , or the ORG , has jurisdiction to consider the question .

( CARDINAL ) If the adjudicator , or the ORG , decides that the authority concerned acted in breach of the appellant ’s human rights , the appeal may be allowed on that ground . ”

Paragraph CARDINAL ( CARDINAL ) of Schedule CARDINAL to the CARDINAL Act provided :

“ ( CARDINAL ) Subject to any requirement of rules made under paragraph CARDINAL as to leave to appeal , any party to an appeal , other than an appeal under section CARDINAL ( removal of asylum claimants to safe third countries ) , to an adjudicator may , if dissatisfied with his determination , appeal to ORG .

( CARDINAL ) The ORG may affirm the determination or make any other determination which the adjudicator could have made . ”

Section CARDINAL of the Nationality , Immigration and Asylum Act CARDINAL ( “ CARDINAL Act ” ) reads , as relevant :

“ CARDINAL ) Where an immigration decision is made in respect of a person he may appeal to an adjudicator .

( CARDINAL ) In this Part “ immigration decision ” means—

( a ) refusal of leave to enter GPE ,

( b ) refusal of entry clearance ,

( c ) refusal of a certificate of entitlement under LAW ,

( d ) refusal to vary a person ’s leave to enter or remain in GPE if the result of the refusal is that the person has no leave to enter or remain ,

( e ) variation of a person ’s leave to enter or remain in GPE if when the variation takes effect the person has no leave to enter or remain ,

( f ) revocation under LAW of this LAW of indefinite leave to enter or remain in GPE ,

( g ) a decision that a person is to be removed from GPE by way of directions under section CARDINAL(CARDINAL)(a ) , ( b ) or ( c ) of ORG ( c. CARDINAL ) ( removal of person unlawfully in GPE ) ,

( h ) a decision that an illegal entrant is to be removed from GPE by way of directions under paragraphs CARDINAL of Schedule CARDINAL to LAW DATE ( c. CARDINAL ) ( control of entry : removal ) ,

( i ) a decision that a person is to be removed from GPE by way of directions given by virtue of paragraph QUANTITY of that Schedule ( family ) ,

( j ) a decision to make a deportation order under section CARDINAL(CARDINAL ) of that LAW , and

( k ) refusal to revoke a deportation order under section CARDINAL(CARDINAL ) of that Act ... ”

Section CARDINAL of the DATE Act states that :

“ A party to an appeal to an adjudicator under section DATE or DATE may , with the permission of ORG , appeal to the ORG against the adjudicator ’s determination on a point of law . ”

Regulation CARDINAL of the Nationality , Immigration and Asylum Act DATE ( Commencement No . CARDINAL ) Order DATE ( “ Commencement Order CARDINAL ” ) provided :

“ ( CARDINAL ) Subject to Schedule CARDINAL , the new appeal provisions are not to have effect in relation to events which took place before DATE and notwithstanding their repeal by the provisions of the DATE Act commenced by this Order , the old appeals provisions are to continue to have effect in relation to such events . ”

Regulation CARDINAL(CARDINAL ) of the Commencement Order DATE specified that an event had taken place under the old Immigration Acts where inter alia ( a ) a notice was served or ( b ) a decision was made or taken .

The Nationality , Immigration and Asylum Act DATE ( Commencement No . CARDINAL ) LAW ) ( No . CARDINAL ) Order DATE ( “ LAW ” ) amended LAW . DATE , which came into force on DATE , amended the transitional provisions for appeals by applying sections CARDINAL(CARDINAL ) to ( CARDINAL ) , CARDINAL and CARDINAL of LAW ( which relate to further appeals by a party to an appeal to an Adjudicator , and to statutory review of decisions of ORG upon applications for permission to appeal against an ORG determination ) in relation to an appeal under Part DATE the CARDINAL Act which was determined by an Adjudicator on or after DATE .

Paragraph CARDINAL of ORG ( ORG CARDINAL , as amended by ORG ) states that :

“ When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending , the decision maker will consider any further submissions and , if rejected , will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content :

( i ) had not already been considered ; and

( ii ) taken together with the previously considered material , created a realistic prospect of success , notwithstanding its rejection . ”

Paragraph CARDINAL.CARDINAL.CARDINAL of ORG Note on GPE issued on DATE states :

“ Despite the relaxation on the rules governing political parties and the move towards multi - party politics , opposition political parties continued to face restrictions on their ability to assemble and organise and their supporters were subject to harassment and sometimes ill - treatment by the authorities . Some opposition supporters were detained by the security forces and some face charges of treason . However , others who were similarly detained were released without charge . In some cases particularly those of prominent members of political parties or those accused of treason who have been detained for long periods of time and who have suffered illtreatment at the hands of the NORP authorities a grant of asylum or ORG may be appropriate . However , in other cases such as that of a low level activist detained for few days and then released without charge the harassment suffered will not reach the level of persecution or breach LAW ORG and therefore they will not qualify for grant of asylum or ORG . ”

ORG ( ORG on ORG in GPE released on DATE states at paragraph CARDINAL ) that :

“ There were reports that the government punished family members of suspected criminals and political opposition members . ”

However the next ORG on GPE released on DATE explains at paragraph CARDINAL ( f ) that :

“ Unlike in DATE , there were no reports that the government punished family members of suspected criminals and political opposition members . ”

ORG report entitled “ GPE : Treatment of family members of political opponents and suspected members of rebel movements such as ORG ( ORG ) and ORG ( ORG ) ” published on DATE cites the following incident :

“ A mother of an alleged ORG rebel chief , PERSON , whom security forces questioned several times regarding her son ’s whereabouts , was reportedly harassed and tortured by members of ORG ( The Monitor DATE ) . ”


The applicant was born in DATE and resides in the town of GPE , GPE region , GPE .

At the material time the applicant lived in GPE .

In DATE , as a result of an accident , for which a ORG - owned mine was deemed liable , the applicant had her arms amputated .

On DATE ORG awarded the applicant MONEY in life DATE compensation from the “ LOC mining enterprise ( ORG « PERSON ) . The applicant had been receiving these payments until DATE .

In DATE the applicant moved to GPE .

On DATE , following the applicant 's request to review the amount of compensation due to her , the ORG awarded the applicant a lump sum of CARDINAL and CARDINAL NORP hryvnas in DATE payments from the ORG ( NORP управління по ліквідації шахт ) .

NORP In DATE the court sent the writs of enforcement to ORG . The applicant informed the ORG that her written requests about the course of the enforcement proceedings remained unanswered .

NORP By letters of DATE and DATE , ORG , and ORG , respectively , informed the applicant that , since DATE , the DATE payments were to be made by ORG . However , at the time of the accident the applicant was not employed by the mine , and the legislation in force did not foresee social security payments in such cases .

In their submissions of DATE the Government stated that on DATE the payment order for the lump sum of ORG CARDINAL,CARDINAL.CARDINAL had been submitted to ORG in GPE . On an unspecified date this amount was transferred to ORG banking account since the applicant 's whereabouts were allegedly unknown .

The applicant informed the ORG that in DATE she had been requested to provide her bank account details with a view to transfer her an above amount . The parties did not inform the ORG whether the judgment of DATE had been finally enforced .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

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

The applicant is a disabled war veteran . From DATE he was on a special list of persons to be allocated an apartment by the ORG on priority basis ( see paragraph CARDINAL below ) .

In DATE the applicant instituted proceedings in the ORG ( “ the ORG ” ) against ORG , requesting the court to order the defendant to provide him with an apartment on a priority basis .

On DATE the court dismissed the applicant 's claim .

The applicant appealed and on DATE ORG ( since DATE ORG ) upheld the lower court 's judgment .

In DATE the applicant instituted proceedings in ORG against the ORG , ORG and ORG of GPE , requesting the court to order the defendants to provide him with a apartment on a priority basis and seeking compensation for non - pecuniary damage .

On DATE the court dismissed the applicant 's claims .

On DATE ORG ( “ the Court of Appeal ” ) quashed the lower court 's judgment and remitted the case to it for fresh consideration .

NORP In the course of subsequent hearings before ORG the applicant withdrew some of his claims , eventually requesting the court only to order ORG of GPE to provide him with an apartment on a priority basis .

On DATE ORG dismissed the applicant 's claim . On DATE the same court rectified certain clerical errors in its judgment .

On DATE ORG quashed the judgment of DATE and rendered a new one , ordering ORG of GPE to provide the applicant with an apartment within DATE of the judgment becoming final . Apparently , this judgment was not appealed against .

On DATE ORG instituted proceedings to enforce this judgment .

In DATE the applicant requested ORG to change the means of enforcement of the judgment of DATE . In particular he sought replacement of the in - kind award with monetary compensation to him in the amount of CARDINAL NORP hryvnias ( ORG ) .

On DATE the court rejected that request , indicating that the matter should be examined by ORG .

On DATE ORG allowed the applicant 's request in part , ordering ORG of GPE to pay ORG the above - mentioned sum in order to purchase an apartment for the applicant .

On DATE this sum was transferred to the bank account of ORG .

On DATE ORG terminated the enforcement proceedings against ORG of GPE as the judgment of DATE as amended by the decision of CARDINAL DATE had been enforced .

On DATE ORG authorised the ORG to arrange the purchase of an apartment for the applicant in compliance with the judgment of DATE as amended by the decision of CARDINAL DATE .

According to the Government , the sum awarded on DATE was insufficient to purchase an apartment for the applicant on the secondhand market due to the dramatic increase in real estate prices . For that reason , having invited tenders , on CARDINAL DATE ORG concluded a contract with an appropriate company for the construction of an apartment for the applicant .

By DATE the apartment at issue had been constructed , and on DATE the ORG issued the applicant with a housing warrant ( ордер на заселення житлової площі ) . On several occasions the applicant was invited to take that warrant but to no avail .

On DATE ORG found the applicant to be abusing his rights ( namely , by evading concluding the tenancy contract and , accordingly , paying the tenancy fee ) and ordered him to take the housing warrant and move into the apartment within DATE . In that regard enforcement proceedings were instituted against the applicant but the judgment of DATE has not yet been enforced .

In DATE the applicant instituted proceedings in ORG against the ORG , seeking to annul the defendant 's decision of CARDINAL DATE to issue him with the housing warrant . In particular , he pleaded that the floor space of the apartment allocated to him was less than that guaranteed by the domestic law and that the apartment had been purchased as a result of an unlawful tender . On DATE the court dismissed his claims as unsubstantiated . It is not clear whether the applicant appealed against that decision .

According to the applicant , though , the judgment has still not been enforced . He did not inform the ORG about the events set out in the preceding paragraphs ( CARDINAL - CARDINAL ) .

In DATE the applicant instituted administrative proceedings in ORG against ORG , seeking enforcement of the judgment of DATE as amended by the decision of CARDINAL DATE . In view of the increase in real estate prices , the applicant also sought an additional sum of money to be paid by the defendant as compensation for pecuniary damage as a result of the alleged inactivity .

On DATE the court dismissed the applicant 's claim on account of procedural shortcomings ( in particular , for failure to pay the court fee ) .

On DATE ORG quashed that decision and remitted the matter of the admissibility of the applicant 's claim to ORG for fresh consideration .

On DATE ORG dismissed the applicant 's claim as unsubstantiated .

On DATE ORG upheld that judgment .

On DATE ORG quashed the lower courts ' decisions and discontinued the proceedings , having found that the claim should be examined under the civil procedure .

On DATE the applicant requested ORG to institute criminal proceedings against ORG , alleging embezzlement and misuse of budgetary funds .

On DATE the prosecutor refused to institute criminal proceedings as requested . The applicant appealed against that decision to ORG .

On DATE ORG quashed the decision in question and referred the matter back for additional investigation . Subsequently the prosecutor refused to institute the proceedings in question on several occasions and the applicant successfully challenged those refusals before ORG .

Apparently the investigation is still pending .

Under LAW of the DATE LAW publicly owned dwellings shall be used on the basis of a tenancy contract concluded between the tenant and the relevant authority .

The Military Servicemen Legal and Social Protection Act ( no . CARDINAL of DATE , as amended at the material time ) sets forth that the ORG provides the military servicemen with , among other benefits , appropriate dwelling ( section CARDINAL ) . Those servicemen who have retired due to their service - related injuries and diseases are entitled to housing on a priority basis ( section CARDINAL § CARDINAL ) .

Under section CARDINAL § CARDINAL of ORG ( no . CARDINAL of DATE , as amended at the material time ) the dwelling occupied by the military servicemen who enjoy benefits under the above Military Servicemen Legal and Social Protection Act shall be granted free of charge into private property of these military servicemen .

NORP The Veterans of War and Their Social Protection Guarantees Act ( no . TIME of DATE , as amended at the material time ) guarantees that disabled war veterans shall be housed within DATE , at maximum , of submitting an appropriate application , provided that their existing accommodation does not comply with the relevant housing standards ( section CARDINAL § CARDINAL ) .

ORG ( no . CARDINAL-IV , valid since DATE ) provides the same guarantees to the veterans of war ( sections CARDINAL and DATE ) . Under section CARDINAL § CARDINAL , however , social dwellings are not subject to privatisation .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Under LAW of LAW the bailiff and the parties to the enforcement proceedings ( debtor and creditor ) are entitled to request proprio motu the relevant court to change the means of enforcement of a court decision if there are circumstances which preclude its enforcement by the means specified in that decision .


Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

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

The applicant worked at an engineering plant . Under her contract , the plant was to provide her with a at . The plant defaulted on this obligation , and the applicant brought a civil action .

On DATE the ORG ordered the plant to “ give the applicant a at that would offer CARDINAL m² per family member ” . This judgment became binding on DATE .

On DATE the Presidium of the ORG quashed the judgment on supervisory - review and ordered a rehearing .

On DATE the regional court ordered the plant to “ give the applicant a at for CARDINAL persons in accordance with applicable laws on housing ” . This judgment became binding on DATE , was submitted to a bailiff for enforcement , but was not enforced immediately .

On DATE the bailiff ﬁned the administration of the plant for its failure to comply with the judgment . On appeal , this ﬁne was quashed , because the plant did take steps to comply with the judgment , and because the applicant had rejected PERSON proposed by the plant .

On DATE the bailiff closed the enforcement proceedings , because the applicant had refused the ats offered by the plant . On DATE the town court ordered the bailiff to resume the proceedings , because the FAC refused by the applicant had been of an improper quality .

On DATE the bailiff ﬁned the administration of the plant for its failure to comply with the judgment . On appeal , this ﬁne was quashed , because , among other reasons , the plant had no available ats .

On DATE and CARDINAL DATE the bailiff ﬁned the administration of the plant for its failure to comply with the judgment .

On DATE and DATE the bailiff warned the administration of the plant about criminal responsibility for non - compliance with binding judgments . On DATE the bailiff asked the police to prosecute the manager of the plant , but the police refused because the manager had no case to answer .

On DATE the bailiff asked the court to clarify the judgment , because the applicant and the plant argued how many square metres per person the at was to offer . On DATE the town court clariﬁed the judgment .

Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment in DATE .


CASE OF BIJELIC v. MONTENEGRO AND SERBIA

Remainder inadmissible;Violation of P1-1;Pecuniary and non-pecuniary damage - award

Françoise Tulkens;Ireneu Cabral Barreto;Nebojša Vučinić;Nona Tsotsoria;Vladimiro Zagrebelsky

The first , second and third applicants were born in DATE and DATE , respectively , and currently live in GPE , GPE .

The first applicant , her husband and the other CARDINAL applicants were holders of a specially protected tenancy concerning a flat in GPE ( nosioci odnosno korisnici stanarskog prava ) , GPE , where they lived .

In DATE the first applicant and her husband divorced and the former was granted custody of the other CARDINAL applicants .

On DATE the first applicant obtained a decision from ORG ( PERSON u GPE ) declaring her the sole holder of the specially protected tenancy on the family ’s flat . In addition , her former husband ( “ the respondent ” ) was ordered to vacate the flat DATE from DATE when the decision became final .

On DATE the decision of ORG was upheld on appeal by ORG ( ORG u GPE ) and thereby became final .

Given that the respondent did not comply with the court order to vacate the flat , on DATE the first applicant instituted a formal judicial enforcement procedure before ORG .

The enforcement order was issued on DATE .

On DATE the bailiffs attempted to evict the respondent together with his new wife and minor children but the eviction was adjourned because he threatened to use force .

On DATE they tried again , this time assisted by the police , but apparently the planned eviction was adjourned for the same reason .

On DATE the first applicant bought the flat and became its owner .

On DATE the bailiffs and the police once again failed to evict the respondent who kept threatening the first applicant in their presence and bore arms on his person . There also appear to have been additional weapons , ammunition and even a bomb in the flat at the time . The police took the respondent to their station but released him shortly afterwards without pressing charges .

On DATE and DATE another CARDINAL scheduled evictions failed , the latter due to the “ respondent ’s request for the provision of social assistance ” in respect of his minor children .

On DATE the first applicant gifted the flat to the second and third applicants .

On DATE and CARDINAL DATE , respectively , another CARDINAL scheduled evictions failed .

On DATE ORG informed the first applicant that ORG had committed to enforce the eviction order before DATE .

On DATE and CARDINAL DATE another CARDINAL scheduled evictions failed .

In the meantime , on CARDINAL DATE , ORG ( Direkcija za nekretnine ) issued a formal decision recognising the second and the third applicants as the new owners of the flat in question .

In DATE another eviction was attempted but failed . In the presence of police officers , fire fighters , paramedics , bailiffs and the enforcement judge herself , as well as his wife and their children , the respondent threatened to blow up the entire flat . His neighbours also seem to have opposed the eviction , some of them apparently going so far as to physically confront the police .

NORP Throughout DATE the first applicant complained to numerous ORG bodies about the non - enforcement of the judgment rendered in her favour , but to no avail .

On DATE another scheduled enforcement failed because the respondent had threatened to “ spill blood ” rather than be evicted .

On DATE and DATE , respectively , the enforcement judge sent letters to ORG , seeking assistance .

On DATE the enforcement judge was told , at a meeting with the police , that the eviction in question was too dangerous to be carried out , that the respondent could blow up the entire building by means of a remote control device , and that the officers themselves were not equipped to deal with a situation of this sort . The police therefore proposed that the applicants be provided with another flat instead of the CARDINAL in question .

On DATE the enforcement judge urged ORG to secure the kind of police assistance needed for the respondent ’s ultimate eviction .

On DATE the second applicant , on her own behalf and on behalf of the third applicant , authorised the first applicant to sell the flat in question .

On DATE the second and third applicants authorised the first applicant , inter alia , to represent them in the enforcement proceedings .

The applicants maintain that the gift contract of DATE ( see paragraph CARDINAL above ) and the said powers of attorney were submitted to the enforcement court . The first applicant was therefore the second and third applicants’ legal representative in the enforcement proceedings .

The relevant provisions of this Charter read as follows :

“ The Member GPE shall regulate , ensure and protect human and minority rights and civic freedoms in their respective territories .

[ ORG of ] ... GPE and GPE shall monitor the implementation of human and minority rights and civic freedoms and ensure their protection if such protection has not been provided in the Member GPE . ”

“ Should GPE break away from ORG and GPE , the international documents pertaining to GPE , particularly ORG CARDINAL , would concern and apply ... to GPE as the successor .

The Member ORG which ... [ breaks away ] ... shall not inherit the right to international legal personality , and any disputable issues shall be regulated separately between the successor ORG and the newly independent ORG . ”

The relevant provisions of this LAW read as follows :

“ The human and minority rights guaranteed under this Charter shall be directly regulated , secured and protected by the constitutions , laws and policies of the Member GPE . ”

The relevant part of this ORG reads as follows :

“ The domestic legal system offers no legal remedy against violations of the right to a hearing within a reasonable time , which is why the courts in GPE have no jurisdiction to rule in respect of claims seeking non - pecuniary damages caused by a breach of this right . Any person who considers himself a victim of a violation of this right may therefore lodge an application with ORG , within DATE as of the adoption of the final judgment by the domestic courts .

[ When asked to rule in respect of the compensation claims referred to above ] ... the courts in GPE must refuse jurisdiction ... and declare ... [ them ] ... inadmissible ( pursuant to LAW para . CARDINAL of LAW ) . ”

NORP The relevant provisions of the LAW read as follows :

“ The Constitutional Court shall ...

( CARDINAL ) ... [ rule on a ] ... constitutional appeal ... [ filed in respect of an alleged ] ... violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted ... ”

This LAW entered into force on DATE .

“ Provisions of international treaties on human rights and freedoms , to which GPE acceded before DATE , shall be applied to legal relations which have arisen after their signature . ”

This Act also entered into force on CARDINAL DATE .

Articles CARDINAL provide additional details as regards the processing of constitutional appeals .

This Act entered into force in DATE .

This Act provides , under certain circumstances , for the possibility to have lengthy proceedings expedited , as well as an opportunity for the claimants to be awarded compensation therefor .

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

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

Pursuant to LAW the police are obliged to assist other ORG bodies in the enforcement of their decisions if there is physical resistance or such resistance may reasonably be expected .

Article CARDINAL § CARDINAL provides that the enforcement court is obliged to proceed urgently .

Under LAW , if needed , the bailiff may request police assistance ; should the police fail to provide such assistance , the enforcement court shall inform thereof the Minister of ORG , the Government , or the competent parliamentary body .

Finally , LAW states that enforcement proceedings shall also be carried out at the request of a person not specifically named as the creditor in the final court decision , providing he or she can prove , by means of an “ official or another legally certified document ” , that the entitlement in question has subsequently been transferred to that individual from the original creditor .

On DATE the Convention and Article CARDINAL of Protocol No . CARDINAL entered into force in respect of ORG and GPE .

On DATE ORG adopted its LAW .

On DATE ORG , inter alia , noted that :

“ CARDINAL . ... GPE will continue the membership of ORG hitherto exercised by the ... [ ORG ] ... of GPE and GPE , and the obligations and commitments arising from it ;

... GPE is continuing the membership of [ ORG of ] GPE and GPE in ORG with effect from DATE ; ...

... GPE was either a signatory or a party to ORG referred to in the appendix ... to which [ ORG of ] GPE and GPE had been a signatory or party [ including LAW ] ; ... ”

Finally , on CARDINAL and CARDINAL DATE ORG decided , inter alia , that :

“ CARDINAL . ... a. ... GPE is to be regarded as a ORG to ORG and its Protocols No . DATE , CARDINAL , DATE , DATE , CARDINAL and DATE thereto with effect from DATE ; ... ”

The relevant provisions of the Statute read as follows :

“ Any NORP State which is deemed to be able and willing to fulfil the provisions of LAW may be invited to become a member of ORG by ORG . Any State so invited shall become a member on the deposit on its behalf with the Secretary General of an instrument of accession to the present Statute . ”

“ ORG shall , subject to the provisions of Articles CARDINAL , DATE , DATE , DATE , DATE and DATE , relating to the powers of ORG , decide with binding effect all matters relating to the internal organisation and arrangements of ORG . For this purpose ORG shall adopt such financial and administrative arrangements as may be necessary . ”

ORG has made clear , in the context of obligations arising from LAW , that fundamental rights protected by international treaties “ belong to the people living in the territory of the ORG party ” concerned . In particular , “ once the people are accorded the protection of the rights under the LAW , such protection devolves with territory and continues to belong to them , notwithstanding change in government of ORG , including dismemberment in CARDINAL ORG or ORG succession ” ( General Comment No . CARDINAL : Continuity of obligations : CARDINAL/CARDINAL/CARDINAL , CCPR / C/CARDINAL/Rev.CARDINAL/Add . CARDINAL/ Rev.CARDINAL ) .


The applicant was born in DATE and lives in GPE .

On DATE the ORG for Medical Practitioners ( FAC GPE ) imposed a fine amounting to MONEY ( “ DEM ” ) upon the applicant , an ophthalmologist , for disregarding the ban on advertising under the relevant provisions of GPE ( Berufsordnung der Landesärztekammer ) and LAW on the Councils for the Medical Professions ( HeilberufeKammergesetz ) .

In its reasoning , ORG found that the applicant performed medical operations with a laser technique . In the house where he had his consultation rooms , his wife ran an “ excimer - laser - centre ” . In DATE the journalist PERSON of the newspaper ORG had visited the applicant , upon appointment , in his consultation rooms and discussed his new laser operation technique . Moreover , a photograph was taken of the applicant at his place of work . On DATE , there had appeared in the said newspaper an article signed by PERSON and entitled “ GPE under fire DATE laser restores full vision . In GPE , the ‘ photorefractive ORG has been applied since DATE operation risks are low - expenses are partly reimbursed by the insurances ” ( “ PERSON unter Beschuss – Laser gibt dem Auge die PERSON . In GPE wird LOC die ‘ ORG angewandt – NORP sind gering – Kosten werden teilweise von den GPE übernommen . ” ) . In the article , it had been inter alia stated that , according to his indications , the applicant had treated CARDINAL patients having defective vision with a laser technique and that in no case had any subsequent corrective measures been necessary and that accordingly he had a success rate of PERCENT . The article had also reported the applicant ’s statement that the long - term success of an operation depended upon the experience of the medical practitioner and on the selection of the patients . The article had been illustrated by a photograph of QUANTITY in size which showed the applicant at his computer pointing to the monitor . It had the caption : “ On the occasion of the ‘ mapping’ Dr PERSON sees on the monitor of his computer whether or not the patient can be treated with the laser technique ” ( “ PERSON ‘ ORG sieht Dr. PERSON dem Monitor seines Computers , ob ein Patient mit dem Laser behandelt werden kann . ” ) .

ORG considered that the applicant had thereby disregarded sections PERSON ) and CARDINAL of ORG ( see below , Relevant domestic law , paragraph CARDINAL ) . Thus , according to section PERSON ) , a medical practitioner should not allow for picture - stories to be published in respect of his professional activities which had an advertising character , indicated the name and showed a photograph . According to section CARDINAL , the cooperation of a medical practitioner in informative publications in the press was only permissible if these publications were limited to objective information and if the person and the activities of the practitioner were not presented in the form of an advertisement . In press interviews , the medical practitioner was held to “ responsible objectivity ” ( “ verantwortungsbewusste GPE ” ) .

According to the ORG , the applicant had disregarded these rules in that he had , in the interview , stressed having treated CARDINAL patients and had had a success rate of PERCENT . He had thereby mainly aimed at giving prominence to his own person . This was confirmed by his remark about his professional experience . Likewise , the large photograph , showing the applicant in his medical coat posing as lecturer in front of his computer , went beyond the permissible limits of objective information , as , together with the self - praise found in the text , the message was conveyed that the applicant was a particularly experienced medical practitioner . The applicant should have negotiated with the reporter the objective character of the publication and the size of the photograph in order to comply with the ban on advertising .

On DATE ORG ( GPE ) dismissed the applicant ’s appeal . ORG confirmed the facts established by ORG and its legal reasoning .

ORG considered in particular that in order to give effect to the ban on advertisement as laid down in section GPE ) of LAW , cooperation with the press had to be prohibited to the extent that publications had an advertising character ( section CARDINAL(CARDINAL ) ) . No less restrictive measure was available . The wording of a publication could disguise its advertising character and thus be a means to circumvent the ban on prohibition .

Having regard to the circumstances of the interview and the presentation of the article , ORG further considered that the applicant had not only tolerated that an article was published which would go beyond objective information on a particular operation technique , but had deliberately acted so as to give prominence to his own person . ORG also stated that , having regard to the interests of his colleagues , the ban on advertising outweighed the applicant ’s freedom to exercise his profession .

On DATE ORG refused to admit his constitutional complaint . The decision was served on DATE .

In GPE , the medical profession is governed partly by Federal law and partly by the law of the Länder . The principal rules relevant for the present case are to be found in ORG ) of DATE in the version of CARDINAL DATE ( amended in DATE , DATE , DATE and DATE ) , GPE on ORG über die öffentliche GPE , die Berufspflichten , die LOC die GPE der GPE , GPE , ORG , PERSON Dentisten – Heilberufe - Kammergesetz ) of CARDINAL DATE ( amended in DATE and DATE ) , and the Baden - Württemberg Rules of Professional Conduct of ORG in the version of DATE , as amended in DATE ( in force at the material time – recent amendments in DATE ) .

According to section CARDINAL of ORG , the medical practitioner shall have the care of the health of each individual and of the community as a whole ; he exercises a liberal profession and not a trade or business .

The medical practitioners practising in GPE constitute the Baden - Württemberg Medical Practitioners’ Council , which is a public - law association ( sections CARDINAL , CARDINAL and CARDINAL of GPE on ORG ) . The functions of ORG include defending the interests of its members and ensuring that they meet their professional obligations ( section CARDINAL of the said Act ) . The ORG adopts decrees concerning inter alia LAW ( section CARDINAL of the said Act ) .

As regards professional communications , the Baden - Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council , as in force at the material time , provided as follows :

Section CARDINAL

“ ( CARDINAL ) A medical practitioner is not allowed to advertise his own services or those of other medical practitioners . He shall not instigate or tolerate such prohibited advertising by others . ...

( CARDINAL ) A medical practitioner shall not tolerate the publication of reports or picture - stories on his professional activity with an advertising character , stating his name , showing his photograph or indicating his address . ”

Section CARDINAL

“ Medical publications or the cooperation in informative publications in press , broadcasting or television are permissible if and to the extent that these publications or the medical practitioner ’s cooperation are limited to objective information and neithr the medical practitioner himself nor his activities are presented in the form of an advertisement . In such instances , the medical practitioner is held to ‘ responsible GPE . The same shall apply to public lectures on medical issues . ”

Sections DATE of GPE on ORG govern the disciplinary powers of the ORG . According to section GPE ) and ( CARDINAL ) , members of these Councils face disciplinary action for professional misconduct ( berufsunwürdige ORG ) , i.e. conduct offending their professional duties as members of the ORG concerned . Pursuant to section DATE , the following disciplinary penalties may be imposed in disciplinary court proceedings : warning , reprimand , a fine of up to DEM CARDINAL,CARDINAL , a loss of membership of ORG other representative bodies or committees of subordinate entities for a period not exceeding DATE , loss of the right to vote and to stand for elections to such organs for a period not exceeding DATE . Disciplinary proceedings are , at first instance , conducted before the district disciplinary courts ( section CARDINAL ) ; an appeal lies against the decision of the district disciplinary court and must be lodged with the disciplinary appeals court ( section CARDINAL ) .


Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

On DATE an investigation against the applicant and another person ( Mr R. ) was opened on suspicion of extortion and corruption . The applicant and NORP were police officers . On DATE the applicant was arrested and taken into custody .

On DATE the applicant was charged with an attempt to receive a bribe in a particularly large amount , an offence under LAW § CARDINAL and CARDINAL § CARDINAL of LAW .

On DATE the applicant was dismissed from the police .

On DATE the charge against the applicant was amended to that of aggravated fraud , an offence under LAW and CARDINAL of LAW .

On DATE a deputy prosecutor of LOC approved the bill of indictment and submitted the case for trial .

On DATE the ORG of GPE examined counsel ’s requests concerning evidence and witnesses and fixed the trial date for DATE .

On DATE the hearing was adjourned owing to absence of lay judges . The applicant asked the court to hear the case in a single - judge formation , in order to expedite proceedings . NORP insisted on the presence of lay judges . The trial was adjourned until DATE .

On DATE ORG decided to sit in a single - judge formation and granted the defence ’s request for additional time required for viewing photo and video recordings . The trial was postponed until DATE .

At the hearing of DATE ORG determined that the trial could not proceed because the defendants had not been afforded an opportunity to view photo and video recordings . It adjourned the hearing until DATE .

The hearings fixed for DATE and DATE were adjourned because the case file was with ORG . On DATE the hearing was adjourned owing to absence of counsel for Mr NORP On DATE the trial hearing was adjourned because the judge had fallen ill .

On DATE ORG began examination of the merits of the case . The victim was interrogated .

On DATE a witness for the prosecution was examined . As the other witnesses did not appear , the hearing was adjourned until DATE .

Of CARDINAL hearings listed in DATE , CARDINAL were postponed . On DATE counsel for the applicant and PERSON did not appear .

On DATE and DATE ORG examined CARDINAL witnesses for the prosecution and read out depositions by CARDINAL other witnesses who had not appeared .

Of CARDINAL hearings fixed between DATE and DATE , CARDINAL were adjourned because the judge was ill .

On DATE ORG ordered an expert examination of audio and video materials and refused the applicant ’s petition for release .

On DATE the judge , presiding over the trial , was dismissed and the case was assigned to another judge . On DATE ORG , sitting in a new single - judge formation , ordered to start the trial from the beginning .

On DATE the victim and a witness were examined .

DATE and DATE CARDINAL hearings were listed and then adjourned because of the absence of witnesses , counsel for NORP or NORP himself . A further hearing was scheduled for DATE .

On DATE , CARDINAL and DATE hearings took place .

On DATE ORG issued the judgment by which it acquitted the applicant and NORP of all charges .

On DATE GPE quashed the acquittal on procedural grounds and ordered a new trial .

DATE and DATE hearing had been listed , of which CARDINAL were adjourned for various reasons .

It appears that the proceedings are now pending .

On DATE a prosecutor ordered the applicant ’s arrest and placement in custody . On CARDINAL DATE the prosecutor extended the applicant ’s detention until DATE .

On DATE the ORG of GPE dismissed the applicant ’s appeal against the initial detention order and the subsequent extension . It noted that the detention order had not been procedurally defective and that the investigator had reasonably believed that , if released , the applicant would interfere with the establishment of the truth because he was charged with a particularly serious criminal offence .

On DATE ORG held that the applicant and NORP should remain in custody because they were charged with particularly serious offences .

On DATE ORG extended the applicant ’s and NORP ’s detention until DATE on the ground that they were charged with a particularly serious crime and that their release “ would substantially impede comprehensive , complete and objective examination of the case ” . On DATE GPE , on an appeal by the applicant ’s counsel and NORP , upheld the extension order , finding as follows :

“ The defendants ORG and NORP are accused of a serious crime committed through the use of their official position . Taking into account that fact and also the specific charge against the defendants , the court considers that the [ District ] court has reached the justified conclusion that release of the defendants would substantially impede comprehensive , complete and objective examination of the case . The existence of a permanent place of residence , positive work references , family connections and the absence of a criminal record are not incompatible with the decision on placing and holding of the defendants in custody . ”

On DATE ORG extended the GPE detention for DATE , reproducing verbatim the grounds for extension in the decision of DATE . On DATE the St ORG rejected the appeals by the applicant , NORP and their counsel , and upheld the extension order in the following terms :

’ removal from their office , which fact was confirmed by the order produced to the court , did not guarantee that they would not exercise pressure on witnesses ” .

On DATE ORG extended the applicant ’s and NORP ’s detention until DATE , using the same wording as before . On DATE ORG approved a further extension for DATE , that is until DATE , founded on the same grounds .

On DATE ORG quashed the extension order of DATE because ORG had issued the order in the absence of the case - file ( which had been in ORG at that time ) . On DATE ORG issued a new detention order in respect of the period from DATE to DATE , which was founded on the same grounds as before .

On DATE ORG upheld the extension order of CARDINAL DATE , but quashed the decision of DATE on procedural grounds and remitted the remand issue for a new examination .

On DATE ORG issued CARDINAL detention orders . The first one covered the period from DATE to DATE , and the second order extended the applicant ’s and NORP ’s detention by DATE , that is until DATE . Both orders were founded on the same grounds as before .

NORP On DATE ORG , in the absence of defence counsel , extended the applicant ’s and NORP ’s detention by DATE , that is until DATE , using the same stereotyped wording .

On DATE ORG extended the applicant ’s and NORP ’s detention until DATE , referring solely to the gravity of the charge against them . On DATE ORG upheld that decision .

On DATE the Presidium of GPE , acting on a request of the GPE prosecutor , quashed the extension order of DATE because the remand measure had been decided upon in the absence of the defendants’ counsel .

On DATE ORG issued a new detention order covering the period from DATE to DATE . However , it refused a further extension of the applicant ’s and NORP ’s detention for the following reasons :

“ GPE and NORP are accused of having committed a serious crime using their office . By an order of CARDINAL DATE ... GPE and NORP were removed from their offices ... GPE was dismissed from the police ... Under these circumstances , the court considers that the defendants can not use their official position to obstruct justice .

ORG and NORP have no criminal record , they have a permanent and registered place of residence in GPE . Besides , the court also notes that the defendants have remained in custody for a long time , DATE . The case will be examined by a new formation which calls for re - examination of all pieces of evidence ...

In these circumstances , the court considers it necessary to vary the preventive measure in respect of GPE and NORP and to replace detention on remand with an undertaking not to leave the town ... ”

The applicant and NORP were released in the courtroom .

On DATE the ORG authorised the applicant to leave GPE and pay a visit to his relations in GPE .

Since DATE detention matters have been governed by LAW ( Law no . CARDINAL of DATE ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention on remand ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( Article CARDINAL ) .

When deciding on a preventive measure , the court is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , re - offend or interfere with the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in custody “ during the investigation ” . The maximum permitted period of detention “ during the investigation ” is DATE but it can be extended for DATE . Further extensions for CARDINAL or DATE may be authorised only if the accused is charged with serious or particularly serious criminal offences ( Article QUANTITY ) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ during the trial ” . The term of detention “ during the trial ” is calculated to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .


Violation of Article 14+8 - Prohibition of discrimination (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - award

Antonella Mularoni;Christos Rozakis;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Loukis Loucaides;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Riza Türmen;Sverre Erik Jebens

The applicant was born in DATE and lives in Lons - le - PERSON .

She has been a nursery school teacher since DATE and , since DATE , has been in a stable relationship with a woman , PERSON , who is a psychologist .

On DATE the applicant made an application to ORG for authorisation to adopt a child . She wanted to investigate the possibility of international adoption , in particular in LOC , LOC and GPE . She mentioned her sexual orientation and her relationship with her partner , PERSON

In a report dated CARDINAL DATE the socio - educational assistant and paediatric nurse noted the following points among others :

“ PERSON and PERSON do not regard themselves as a couple , and PERSON , although concerned by her partner 's application to adopt a child , does not feel committed by it .

PERSON considers that she will have to play the role of mother and father , and her partner does not lay claim to any right vis - à - vis the child but will be at hand if necessary .

PERSON is seeking to adopt following her decision not to have a child herself .

She would prefer to explain to a child that he or she has had a father and mother and that what she wants is the child 's happiness than to tell the child that she does not want to live with a man .

PERSON thinks of a father as a stable , reassuring and reliable figure . She proposes to provide a future adopted child with this father figure in the persons of her own father and her brother - in - law . But she also says that the child will be able to choose a surrogate father in his or her environment ( a friend 's relatives , a teacher , or a male friend ... ) .

CONCLUSION

“ On account of her personality and her occupation , PERSON is a good listener , is broad - minded and cultured , and is emotionally receptive . We also appreciated her clear - sighted approach to analysing problems and her child - raising and emotional capacities .

However , regard being had to her current lifestyle : unmarried and cohabiting with a female partner , we have not been able to assess her ability to provide a child with a family image revolving around a parental couple such as to afford safeguards for that child 's stable and well - adjusted development .

Opinion reserved regarding authorisation to adopt a child . ”

On DATE , in her report on the interviews she had had with the applicant , the psychologist examining her application recommended in the following terms that authorisation be refused :

Ms [ B. ] has many personal qualities . She is enthusiastic and warm - hearted and comes across as very protective of others .

Her ideas about child - rearing appear very positive . Several question marks remain , however , regarding a number of factors pertaining to her background , the context in which the child will be cared for and her desire for a child .

Is she not seeking to avoid the “ violence ” of giving birth and genetic anxiety regarding a biological child ?

Idealisation of a child and under - estimation of the difficulties inherent in providing one with a home : is she not fantasising about being able to fully mend a child 's past ?

How certain can we be that the child will find a stable and reliable paternal referent ?

The possibilities of identification with a paternal role model are somewhat unclear . Let us not forget that children forge their identity with an image of both parents . Children need adults who will assume their parental function : if the parent is alone , what effects will that have on the child 's development ?

We do not wish to diminish Ms [ B. ] 's confidence in herself in any way , still less insinuate that she would be harmful to a child ; what we are saying is that all the studies on parenthood show that a child needs both its parents .

Moreover , when asked whether she would have wanted to be brought up by CARDINAL of her parents , PERSON answered no .

A number of grey areas remain , relating to the illusion of having a direct perception of her desire for a child : would it not be wiser to defer this request pending a more thorough analysis of the various – complex – aspects of the situation ? ... ”

On DATE a technical officer from the children 's welfare service recommended that authorisation be refused , observing that the applicant had not given enough thought to the question of a paternal and male role model , and assumed that she could easily take on the role of father and mother herself , while mentioning a possible role for her father and/or brother - in - law , who lived a long way away , however , meaning that meetings with the child would be difficult . The officer also wondered about the presence of PERSON in the applicant 's life , noting that they refused to regard themselves as a couple and that PERSON had not at any time been involved in the plan to adopt . The reasoning of the opinion ended as follows :

“ I find myself faced with a lot of uncertainties about important matters concerning the psychological development of a child who has already experienced abandonment and a complete change of culture and language ... ” .

On DATE the psychologist from the children 's welfare service , who was a member of the adoption board , recommended that authorisation be refused on the ground that placing a child with the applicant would expose the child to a certain number of risks relating to the construction of his or her personality . He referred among other things to the fact that the applicant lived with a girlfriend but did not consider herself to be in a couple , which gave rise to an unclear or even an unspoken situation involving ambiguity and a risk that the child would have only a maternal role model . The psychologist went on to make the following comments:-

It is as though the reasons for wanting a child derived from a complicated personal background that has not been resolved with regard to the role as child - parent that [ the applicant ] appears to have had to play ( vis - à - vis one of her sisters , protection of her parents ) , and were based on emotional difficulties . Has this given rise to a feeling of worthlessness or uselessness that she is trying to overcome by becoming a mother ?

Unusual attitude towards men in that men are rejected .

In the extreme , how can rejection of the male figure not amount to rejection of the child 's own image ? ( A child eligible for adoption has a biological father whose symbolic existence must be preserved , but will this be within [ the applicant 's ] capabilities ? ) ... ”

On DATE ORG representative from ORG for the association of children currently or formerly in ORG care recommended refusing authorisation to adopt in the following terms:-

“ ... From my personal experience of life with a foster family I am now , with the benefit of hindsight , in a position to assess the importance of a mixed couple ( man and woman ) in providing a child with a home .

The role of the “ adoptive mother ” and the “ adoptive father ” in the child 's day - to - DATE upbringing are complementary , but different .

It is a balance that will be shaken by the child to a degree that may sometimes vary in intensity according to how he or she experiences the realisation and acceptance of the truth about his or her origins and history .

I therefore think it necessary , in the interests of the child , for there to be a solid balance between an “ adoptive mother ” and an “ adoptive father ” where adoption is being envisaged . ... ”

On DATE the ORG 's representative from ORG , present on behalf of the union of family associations for the département ( ORG ) , referring to ORG , recommended that authorisation be refused on the ground of the lack of a paternal referent and added :

“ ... It appears impossible to build a family and bring up a child without the full support of this partner [ NORP ] for the plan . The psychologists ' and welfare reports show her clear lack of interest in Ms [ B. ] 's plan ...

In the further alternative , the material conditions for providing a child with a suitable home are not met . It will be necessary to move house , solve the issue of how to divide expenses between both partners , whose plans differ at least in this respect . ”

On DATE the head of the children 's welfare service also recommended that authorisation be refused , noting expressly that

“ Ms [ B. ] lives with a female partner who does not appear to be a party to the plan . The role this partner would play in the adopted child 's life is not clearly defined .

There does not appear to be room for a male referent who would actually be present in the child 's life .

In these circumstances , there is a risk that the child would not find within this household the various family markers necessary to the development of his or her personality and well - being . ”

In a letter of CARDINAL DATE the decision of the president of the council for the département refusing authorisation to adopt was served on the applicant . The following reasons , among others , were given :

“ ... in examining any application for authorisation to adopt I have to consider the child 's interests alone and ensure that all the relevant safeguards are in place .

Your plan to adopt reveals the lack of a paternal role model or referent capable of fostering the well - adjusted development of an adopted child .

Moreover , the place that your partner would occupy in the child 's life is not sufficiently clear : although she does not appear to oppose your plan , neither does she seem to be involved , which would make it difficult for the child to find its bearings .

Accordingly , all the foregoing factors do not appear to ensure that an adopted child will have a sufficiently structured family framework in which to flourish . ... ”

On DATE the applicant asked the president of the council for the département to reconsider the decision refusing her authorisation to adopt .

The children 's welfare service asked a clinical psychologist to prepare a psychological assessment . In her report of DATE , drawn up after an interview with the applicant , the psychologist concluded that “ PERSON ha[d ] plenty to offer in providing a home for a child ( patience - values - creativity - time ) ” , but considered that adoption was premature having regard to a number of problematic points ( confusion between a non - directive and laissez - faire attitude , and ignorance of the effects of the introduction of a third person into the home set - up ) .

On DATE the president of the council for the département of the Jura confirmed the refusal to grant the request for authorisation .

On DATE the applicant applied to ORG seeking to have the administrative decisions of CARDINAL DATE and DATE set aside . She also contested the manner in which the screening process in respect of her request for authorisation had been conducted . She pointed out that many people involved in the process had not met her , including the psychologist from the adoption board .

In a judgment of CARDINAL DATE ORG set aside the decisions of CARDINAL DATE and DATE , ruling as follows :

“ ... the president of the council for the département of the ORG based his decision both on “ the lack of a paternal role model or referent capable of fostering the well - adjusted development of an adopted child ” and on “ the place [ her ] partner would occupy in the child 's life ” . The reasons cited are not in themselves capable of justifying a refusal to grant authorisation to adopt . The documents in the case file show that PERSON , who has undisputed personal qualities and an aptitude for bringing up children , and who is a nursery school teacher by profession and well integrated into her social environment , does offer sufficient guarantees DATE from a family , child - rearing and psychological perspective – that she would provide an adopted child with a suitable home . ... PERSON is justified , in the circumstances of this case , in seeking to have the decisions refusing her authorisation set aside ... ”

The département of the LOC appealed . ORG , in a judgment of DATE , set aside the lower court 's judgment . It found , first , that “ B. maintain[ed ] that she ha[d ] not been sent a personality test , but [ did ] not allege that she [ had ] asked for the document and that her request [ had been ] refused ” and that the CARDINALth paragraph of LAW “ [ did ] not have the effect of precluding a report from being drawn up on the basis of a summary of the main points of other documents . Hence , the fact that a psychologist [ had drawn ] up a report just on the basis of information obtained by other people working on the case and without hearing submissions from the applicant [ did ] not invalidate the screening process carried out in respect of PERSON application for authorisation to adopt ... ” .

NORP The court went on to find that

“ ... the reasons for the decisions of CARDINAL DATE and DATE , which were taken following an application for reconsideration of the decision of the president of the council for the département of the LOC rejecting the application for authorisation to adopt submitted by PERSON , are the absence of “ identificational markers ” due to the lack of a paternal role model or referent and the ambivalence of the commitment of each member of the household to the adoptive child . It can be seen from the documents in the file , and particularly the evidence gathered during the examination of PERSON application , that having regard to the latter 's lifestyle and despite her undoubted personal qualities and aptitude for bringing up children , she did not provide the requisite safeguards DATE from a family , child - rearing and psychological perspective – for adopting a child ... ;

... contrary to PERSON contentions , the president of the council for the département did not refuse her authorisation on the basis of a position of principle regarding her choice of lifestyle . Accordingly , and in any event , the applicant is not justified in alleging a breach ... of the requirements of Articles CARDINAL and CARDINAL of the Convention ... ” .

The applicant appealed on points of law . On DATE the ORG d'Etat dismissed her appeal in a judgment giving the following reasons :

“ ... Regarding the grounds for refusing PERSON authorisation :

Firstly , the fact that a request for authorisation to adopt a child is submitted by a single person , as is permitted by LAW , does not prevent the administrative authority from ascertaining , in terms of child - rearing and psychological factors that foster the development of the child 's personality , whether the prospective adoptive parent can offer – in her circle of family and friends – a paternal “ role model or referent ” where the application is submitted by a woman ... ; nor , where a single person seeking to adopt is in a stable relationship with another person , who will inevitably be required to contribute to providing the child with a suitable home for the purposes of the above - mentioned provisions , does this fact prevent the authority from determining – even if the relationship in question is not a legally binding DATE whether the conduct or personality of the third person , considered on the basis of objective considerations , is conducive to providing a suitable home . Accordingly , ORG did not err in law in considering that the CARDINAL grounds on which the application by Ms [ B. ] for authorisation as a single person was refused DATE namely , the “ absence of identificational markers due to the lack of a paternal role model or referent ” and “ the ambivalence of the commitment of each member of the household to the adoptive child ” – were capable of justifying , under the above - mentioned provisions of the decree of CARDINAL DATE , the refusal to grant authorisation ;

Secondly , with regard to Ms [ B. ] 's assertion that , in referring to her “ lifestyle ” to justify the refusal to grant her authorisation to adopt , ORG had implicitly referred to her sexual orientation , it can be seen from the documents submitted to the tribunals of fact that Ms [ B. ] was , at the time of the examination of her application , in a stable homosexual relationship . As that relationship had to be taken into consideration in the needs and interests of an adopted child , the court neither based its decision on a position of principle in view of the applicant 's sexual orientation nor breached the combined requirements of ORG CARDINAL and CARDINAL of LAW ; nor did it breach the provisions of LAW prohibiting sexual discrimination ;

Thirdly , in considering that Ms [ B. ] , “ having regard to her lifestyle and despite her undoubted personal qualities and aptitude for bringing up children , did not provide the requisite safeguards – from a family , child - rearing and psychological perspective – for adopting a child ” , ORG , which did not disregard the elements favourable to the applicant in the file submitted to it , did not distort the contents of the file ;

It follows from the foregoing that Ms [ B. ] is not justified in seeking to have set aside the above - mentioned judgment , which contains adequate reasons ... ” .

The relevant provisions at the material time read as follows :

“ Adoption may be applied for by a married couple who have not been judicially separated and have been married for DATE or are both over DATE of age . ”

“ Adoption may also be applied for by any person over DATE . ... ”

“ Children in State care may be adopted either by persons given custody of them by the children 's welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt ...

Authorisation shall be granted for DATE , within DATE of the application , by the president of the council for the relevant département after obtaining the opinion of ORG ] [ adoption ] board . ... ”

“ Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in LAW . ”

The relevant provisions of the decree read as follows :

“ Any person wishing to obtain the authorisation contemplated in the first paragraph of DATE of ORG must submit an application to that end to the president of the council for the département in which he or she resides . ... ”

“ Before issuing authorisation , the president of the council for the relevant département must satisfy himself that the conditions in which the applicant is proposing to provide a child with a home meet the needs and interests of an adopted child from a family , child - rearing and psychological perspective .

To that end , he shall order inquiries into the applicant 's circumstances ... ”

“ The decision shall be taken by the president of the council for the relevant département after consulting the adoption board ... ”

The relevant provisions of this draft Convention , currently being examined by ORG , provide inter alia :

“ CARDINAL . The law shall permit a child to be adopted :

a. by CARDINAL persons of different sex

i. who are married to each other , or

ii . where such an institution exists , have entered into a registered partnership together ;

b. by CARDINAL person .

GPE are free to extend the scope of this convention to same - sex couples who are married to each other or who have entered into a registered partnership together . They are also free to extend the scope of this convention to different - sex couples and same - sex couples who are living together in a stable relationship . ”

The relevant provisions of the Convention on the Rights of the Child adopted by ORG of ORG on DATE and which came into force on DATE read as follows :

“ CARDINAL . In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration .

GPE Parties undertake to ensure the child such protection and care as is necessary for his or her well - being , taking into account the rights and duties of his or her parents , legal guardians , or other individuals legally responsible for him or her , and , to this end , shall take all appropriate legislative and administrative measures .

GPE Parties shall ensure that the institutions , services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities , particularly in the areas of safety , health , in the number and suitability of their staff , as well as competent supervision . ”

“ GPE Parties shall undertake all appropriate legislative , administrative , and other measures for the implementation of the rights recognized in the present Convention . With regard to economic , social and cultural rights , GPE Parties shall undertake such measures to the maximum extent of their available resources and , where needed , within the framework of international co - operation . ”

“ GPE Parties shall respect the responsibilities , rights and duties of parents or , where applicable , the members of the extended family or community as provided for by local custom , legal guardians or other persons legally responsible for the child , to provide , in a manner consistent with the evolving capacities of the child , appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention . ”

“ CARDINAL . A child temporarily or permanently deprived of his or her family environment , or in whose own best interests can not be allowed to remain in that environment , shall be entitled to special protection and assistance provided by the ORG .

GPE Parties shall in accordance with their national laws ensure alternative care for such a child .

Such care could include , inter alia , foster placement , kafalah of NORP law , adoption or if necessary placement in suitable institutions for the care of children . When considering solutions , due regard shall be paid to the desirability of continuity in a child 's upbringing and to the child 's ethnic , religious , cultural and linguistic background . ”

“ GPE Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall :

( a ) Ensure that the adoption of a child is authorized only by competent authorities who determine , in accordance with applicable law and procedures and on the basis of all pertinent and reliable information , that the adoption is permissible in view of the child 's status concerning parents , relatives and legal guardians and that , if required , the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ;

( b ) Recognize that inter - country adoption may be considered as an alternative means of child 's care , if the child can not be placed in a foster or an adoptive family or can not in any suitable manner be cared for in the child 's country of origin ;

( c ) Ensure that the child concerned by inter - country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption ;

( d ) Take all appropriate measures to ensure that , in inter - country adoption , the placement does not result in improper financial gain for those involved in it ;

( e ) Promote , where appropriate , the objectives of the present article by concluding bilateral or multilateral arrangements or agreements , and endeavour , within this framework , to ensure that the placement of the child in another country is carried out by competent authorities or organs . ... ”

The relevant provisions of LAW of DATE provide :

“ An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving ORG :

a ) have determined that the prospective adoptive parents are eligible and suited to adopt ;

b ) have ensured that the prospective adoptive parents have been counselled as may be necessary ; and

c ) have determined that the child is or will be authorized to enter and reside permanently in that ORG . ”

“ CARDINAL . If ORG of the receiving ORG is satisfied that the applicants are eligible and suited to adopt , it shall prepare a report including information about their identity , eligibility and suitability to adopt , background , family and medical history , social environment , reasons for adoption , ability to undertake an intercountry adoption , as well as the characteristics of the children for whom they would be qualified to care .

It shall transmit the report to ORG of the State of origin . ”


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

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

NORP In DATE the applicant was injured in a traffic accident . Later , a medical board assessed his disability as being of the first degree ( serious ) and he was granted a disability pension . The applicant also applied to ORG , an insurance company , for a DATE allowance compensating him for his loss of ability to work ( renta uzupełniająca ) . The company refused his request .

On DATE the applicant sued ORG in the PERSON Court ( PERSON ) , seeking an award of a DATE allowance . On DATE the court partly granted his claim . The applicant appealed .

On DATE the ORG ( Sąd Apelacyjny ) partly quashed the contested judgment and remitted the case .

ORG held hearings on CARDINAL DATE and CARDINAL DATE . At the hearing held on DATE the applicant modified his claim . On DATE the trial court asked the applicant to specify his claim . On DATE the applicant submitted to the court his modified statement of claim .

The court held hearings on DATE , DATE and CARDINAL DATE . On DATE the court ordered an expert opinion . It was submitted to the court on CARDINAL DATE . On DATE the court ordered an opinion from yet another expert . The expert submitted it to the court on DATE .

The court held a hearing on DATE . The hearing scheduled for CARDINAL DATE was cancelled . On DATE a supplementary opinion was submitted to the court .

Further hearings were held on DATE and DATE . On DATE yet another supplementary expert opinion was submitted to the court . On DATE the court held a hearing .

On DATE ORG gave judgment and dismissed the applicant ’s claim . The applicant appealed . On DATE the ORG upheld the first - instance judgment . The judgment is final .