The first applicant , PERSON , is the NORP national who was born in DATE and currently resides in GPE , GPE . The second applicant , Mr PERSON , is the first applicant ’s son , born in DATE and living in GPE . The respondent Government are represented by Mr PERSON , Representative of GPE at ORG .

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

According to the first applicant , in DATE she left her place of permanent residence in GPE in GPE ( GPE ) , GPE , and moved to GPE in GPE . In DATE she unsuccessfully applied to the ORG pension authority for an old - age pension . Her request was rejected on DATE and , in DATE , she brought court proceedings against the NORP pension authority , claiming the assessment and payment of her old - age pension as of DATE . She also claimed damages for its non – payment since DATE .

On DATE ORG dismissed the action on the ground that the first applicant was no longer living in GPE and had not obtained “ registration ” ( регистрация ) there .

On DATE ORG rejected the first applicant ’s appeal .

Upon the first applicant ’s requests ( надзор ) , the Deputy Prosecutor General of GPE lodged an application for supervisory review ( протест ) , requesting ORG to quash the above decisions on the ground that the case had been wrongly determined .

On DATE ORG granted the prosecutor ’s application , finding that LAW and other statutes entitled the first applicant to receive her old - age pension from DATE , i.e. as of DATE , regardless of her place of residence . The court reversed the decisions of CARDINAL DATE and DATE , and ordered the NORP pension authority to determine and pay the first applicant ’s pension as from DATE . The court rejected the first applicant ’s claim insofar as she had requested an award of damages .

According to the ORG , a writ of execution ( исполнительный лист ) in respect of the decision of CARDINAL DATE did not reach the Bailiffs until DATE .

On DATE the pension authority transferred the first applicant ’s pension arrears of ORG CARDINAL,CARDINAL for the period between CARDINAL DATE and DATE to the Bailiffs . As of CARDINAL DATE the authority calculated and paid the first applicant ’s index - linked pension , transferring the money to her bank account . According to the Government , the enforcement proceedings in respect of the decision of DATE were successfully terminated on DATE .

On DATE the pension authorities in GPE informed the first applicant that the NORP pension authority had applied to ORG of GPE , requesting it to submit a further application for the “ supervisory review ” of the decision of DATE .

On DATE the Deputy President of ORG of GPE lodged an application for the supervisory review against the decisions , requesting ORG of GPE to quash them on the ground that the substantive law had been applied incorrectly .

On DATE ORG of GPE accepted the application , set aside the decisions of DATE , DATE and DATE , and returned the case for fresh examination at first instance . It found , among other things , that the lower courts had failed to take into account the provisions of LAW of CARDINAL DATE ( “ LAW ” ) in relation to pensions and , as a result , had failed to establish all relevant facts . According to the court , the first applicant should have been paid her pension in the place of her permanent residence , pursuant to LAW . In returning the case for a fresh examination , ORG also ordered the lower courts to establish the first applicant ’s nationality and the place of her permanent residence .

On DATE ORG ordered the NORP pension authority to determine and pay the applicant ’s pension as from ORG CARDINAL DATE . The court considered that the applicant ’s entitlement to the old DATE pension had started when she had first brought court proceedings against the pension authority , i.e. in DATE . It also rejected as unsubstantiated the argument of ORG of the Russian Federation regarding the application of LAW in this case .

The ORG further noted that , on DATE , the judgment of CARDINAL DATE had been enforced , and the first applicant had been paid her pension in the amount of FAC for the period from DATE to DATE , and ORG for the period from CARDINAL May to DATE . The amount of the first applicant ’s pension as from DATE was set at ORG DATE .

This decision was upheld on appeal by ORG ( GPE ) on DATE .

On DATE the Deputy President of ORG filed an application for supervisory review against the decisions of DATE and DATE .

By a decision of DATE , ORG ( GPE ) accepted the application , quashed the decisions of CARDINAL March and CARDINAL DATE and returned the case for a fresh examination at first instance .

According to the Government , the first applicant ’s case was listed for trial CARDINAL times , on DATE , DATE and DATE respectively . Since the applicant failed to appear , on DATE ORG disallowed the applicant ’s claim without examining it on the merits .

On an unspecified date , the pension authority filed an application with a court to recover the money paid to the first applicant pursuant to the decisions of DATE and DATE . By a decision of DATE , ORG granted the application and ordered the first applicant to reimburse RUR CARDINAL . The decision could be appealed to ORG ( GPE ) within DATE . The case file contains no indication as to whether the first applicant brought appeal proceedings in this connection , whether the decision has entered into force or whether it has been enforced .

In DATE the second applicant arrived in GPE from ORG . He soon entered a higher education establishment and started living in his relative ’s flat in GPE . The second applicant ’s application for registration at his relative ’s address in GPE was refused by the interior authorities . He brought a court action , claiming that the authorities’ refusal was unlawful .

On DATE ORG rejected the action . The court found that he lived in PERSON where he was registered . By reference to the special governmental regulations of DATE , ORG ruled that the second applicant could not be registered at the relative ’s address in GPE because inter alia he had failed to prove that he was a close relative . On DATE ORG rejected the second applicant ’s appeal .

Upon the second applicant ’s requests , on DATE the Deputy President of ORG of GPE lodged an application for supervisory review against the above decisions , claiming that there had been an unlawful interference with the applicant ’s constitutional right freely to choose his place of residence .

On DATE ORG rejected the Deputy President ’s application , upholding the previous court decisions in the case .

Upon the Deputy President ’s further application for supervisory review , on DATE ORG of the Russian Federation quashed the above decisions , finding that the authorities’ refusal of the second applicant ’s “ registration ” in GPE had been unlawful . By reference to the LAW and the Right to Freedom of Movement and Choice of Residence Act , ORG stated that the fact of “ registration ” , or the absence thereof , had no legal consequences on the right of an individual freely to choose his place of residence . ORG held that the statutory “ registration ” procedures recorded information as to the individual ’s actual place of permanent residence following his free choice thereof , and these procedures could not involve any restriction on the exercise of that freedom . According to the court , it was the authorities’ obligation , not their right , to register the second applicant as living permanently in GPE , in accordance with the procedure established by ORG . ORG ordered the GPE interior authority to “ register ” the second applicant at his relative ’s address in GPE . That judgment was final .

After a further refusal on documentary grounds , on DATE the second applicant was finally registered in GPE .

LAW ( LAW entitle every citizen to an old - age pension , the amount of which depends on the record of the individual ’s employment and related activities .

LAW in the field of pensions of CARDINAL DATE ( LAW ) provides that the pensions of citizens of ORG are calculated and paid at the place of their permanent residence .

Article CARDINAL § CARDINAL of the LAW and the Right to Freedom of Movement and Choice of Residence Act guarantee to everyone lawfully within the territory of the ORG the right freely to move and choose the place of residence in GPE . “ Registration ” at a particular address , by way of a special seal in the individual ’s passport , is considered to be one ’s place of permanent residence for the purposes of NORP law .

Section CARDINAL of the LAW provides that an individual must present to the interior authorities documents certifying his or her identity and place of residence in order to have the “ registration ” entered or changed .


Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

In DATE the applicants bought a flat from A.B. In the contract of sale PERSON agreed that the sum of MONEY ( ORG ) would be paid by the purchasers at DATE . However , the applicants refused to pay the amount , claiming that the house had turned out to be in a worse condition than they had thought at the time of the purchase and , therefore , its value was less than that agreed in the contract .

Consequently , on CARDINAL DATE A.B. brought an action against the applicants before ORG for the payment of the outstanding amount , plus interest .

On DATE ORG heard the plaintiff , whereas the applicants ' lawyer failed to appear .

At the hearing on DATE the plaintiff refused to give statements in the absence of her counsel . ORG therefore ordered the lawyer to justify his absence . On DATE the plaintiff appointed a new legal representative .

At the hearing on DATE the plaintiff and her legal representative failed to appear . Consequently , the court stayed the proceedings . On DATE the plaintiff requested that the case be continued .

In the resumed proceedings , on DATE and CARDINAL DATE ORG requested further documents from the plaintiff . The plaintiff submitted them on DATE and CARDINAL DATE , respectively .

A hearing scheduled for DATE was postponed on the parties ' request .

On DATE and DATE the court heard the parties and , on the latter date , witnesses as well .

As the parties failed to appear at the hearing on DATE , while trying to settle the case , ORG stayed the proceedings .

Having failed to settle the case , the parties requested that the proceedings be continued . In the resumed proceedings , ORG postponed the hearing that had been scheduled for DATE , as a witness failed to appear . At the hearing on DATE the witness , who had repeatedly failed to be present , was fined . The applicants requested that a real - estate expert be appointed in the case . They deposited the expert 's costs on DATE . Consequently , on DATE ORG appointed an expert .

Following an on - site inspection of DATE , on DATE the expert submitted his opinion .

In a judgment on DATE , ORG ordered the applicants to pay the plaintiff ORG CARDINAL interest . The court relied on the expert 's opinion and testimonies given by the parties and several witnesses .

On the applicants ' appeal , on DATE ORG partially modified the first - instance judgment and reduced the court fees .

The applicants ' petition for review of CARDINAL DATE was dismissed by ORG on DATE , the final judgment having been delivered in accordance with the law .

The applicants were represented by a lawyer of their choice throughout the proceedings .


The applicants , ORG are NORP nationals , born in DATE and DATE and living in PERSON and PERSON , respectively . They are represented before the ORG by PERSON , a lawyer practising in PERSON . The respondent Government are represented by Ambassador PERSON , Head of ORG at ORG .

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

The applicants are the parents of a son born in wedlock in DATE .

On DATE ORG ( Bezirksgericht ) granted the applicants’ petition for divorce by consent . In the settlement regulating the legal consequences of the divorce the applicants agreed , contrary to section CARDINAL of LAW ( ORG ) , to continue exercising joint custody over their son . The settlement was subject to approval in separate custody proceedings .

On DATE ORG , in the custody proceedings , refused approval of the settlement on the ground that the law did not provide for joint custody after divorce except where the former spouses continued to live in a common household , which was not the applicants’ case . The applicants appealed against this decision . They submitted an expert opinion which , having regard to both applicants’ relationship with their son and their ability and willingness to care jointly for him , stated that awarding joint custody would be desirable in the interests of the child ’s well - being .

On DATE , ORG ( PERSON ) adjourned the proceedings and requested ORG ) to review the constitutionality of section CARDINAL of LAW . ORG , by judgment of DATE ( see below ) , found that the said section was in conformity with the LAW .

Thereupon , on DATE ORG dismissed the applicants’ appeal . It noted that , having regard to the clear wording of section CARDINAL of LAW , the courts were not empowered to grant joint custody after divorce except where the former spouses continued to live in a common household , even where this would be in the interests of the child ’s well - being in the circumstances of the particular case .

On DATE ORG ( Oberster Gerichtshof ) dismissed the applicants’ appeal on points of law .

Section CARDINAL of LAW , in the version in force at the material time , provided as follows :

“ ( CARDINAL ) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void , or that the parents have lived separately for more than a limited period , they may submit an agreement to the court stating which CARDINAL of them will exercise sole custody over the child in the future . The court has to approve the agreement if it corresponds to the interests of the child ’s well - being .

( CARDINAL ) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child ’s well - being , the court has to decide which parent should have the right to sole custody in the future . In case the parents have lived separately for more than a limited period the court only decides upon the request of CARDINAL of them .

( CARDINAL ) Section CARDINAL applies accordingly . ”

Section CARDINAL of the Civil Code provides , for children born out of wedlock , that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child ’s well - being .

In a judgment of DATE , ORG ruled on the constitutionality of section CARDINAL of LAW . It noted ORG constant case - law according to which section CARDINAL excluded an award of joint custody to both parents in case of divorce , except in the rare case when they continued to live together with the child in a common household . As to LAW , it found that the award of sole custody after divorce to CARDINAL parent was an interference with the other parent ’s right to respect for his or her family life , which was justified under the second paragraph of this Article . Given the legislator ’s margin of appreciation , it was to be considered necessary for the protection of the rights of others . In particular , it was proportionate , as the parent not having custody retained a number of rights , such as the right of access and the right to be informed and heard as regards certain important matters . Moreover , the law did not prevent parents , who wished to share their parental rights after divorce , from doing so in practice . As to LAW No . CARDINAL , ORG found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender only . It did not generally demand that joint custody be awarded to parents after divorce .

By amendment which entered into force on DATE ( ORG - Bundesgesetzblatt - CARDINAL/CARDINAL ) , section CARDINAL of LAW was changed . It now reads as follows .

“ ( CARDINAL ) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void , the parents continue to exercise joint custody . They can , however - even for the purpose of changing an existing arrangement - submit an agreement concerning custody to the court which may provide for sole custody of CARDINAL parent . ...

( CARDINAL ) Where the parents want to exercise joint custody they have to submit an agreement to the court stating with which parent the child has its main residence .

( CARDINAL ) The court has to approve the GPE agreement to ensure that it is in the best interests of the child . ”

A newly introduced section CARDINALa provides that where an agreement about the child ’s main residence is not achieved within a reasonable time , or where an agreement on custody is not reached or is not in the child ’s best interests , the court has to award sole custody to CARDINAL parent . Equally , where both parents exercise joint custody after dissolution of their marriage the court , upon the request of CARDINAL of them , has to award sole custody to CARDINAL parent according to the child ’s best interests where an agreed solution can not be reached .

According to section CARDINAL of LAW , in the version in force at the material time , the parent not having custody has a right of access .

Moreover , according to section CARDINAL of LAW in the version in force at the material time , the parent not having custody has the right to be informed by the other parent about certain measures listed in section QUANTITY ( which in cases of joint custody require the agreement of both parents ) , and has the right to be heard within a reasonable time . The submissions of the non - custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child ’s well - being . The measures at issue include the change of the child ’s first or family name , the entry into or secession from a church or other religious group , the child ’s placement in care , the acquisition or renunciation of a particular nationality , the early termination of an apprenticeship or employment contract , the recognition of paternity of a child born out of wedlock , as well as certain important provisions concerning the child ’s property .

Following the above - mentioned amendment of the LAW section CARDINAL provides that the parent not living in a common household ( be it that he / she is the non - custodial parent or that the parents exercise joint custody ) has a right of access . Section CARDINAL still contains the rights of the non - custodial parent , but has slightly strengthened his / her position in case he / she is prevented from exercising the right of access and in case the custodial parent fails to give the required information .


CASE OF DOMBO BEHEER B.V. v. THE NETHERLANDS

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

The applicant ( hereinafter " Dombo " ) is a limited liability company under GPE law ; it is the continuation of a public limited company ( naamloze vennootschap ) originally founded in DATE . It has its registered office in GPE . At the material time , its business included holding shares in several other companies , for which it provided management ; these subsidiary companies engaged in commercial activities . The shares in Dombo were held by a foundation ( ORG ) which issued certificates of shares ; these were apparently all held by a Mr PERSON . The company ’s management also included PERSON ; he was the sole managing director from DATE until his dismissal ( see paragraph CARDINAL below ) , except for a short period DATE and DATE during which he was suspended as managing director and temporarily replaced by a Mr C.U. and PERSON

At the material time , PERSON banked with ORG ( hereinafter " the ORG " ) through its branch office in ORG . The manager of that office was a Mr van W. ; under the ORG ’s company statutes his position was not that of managing director of the ORG itself and his powers to represent the ORG , which included allowing credit up to a certain maximum , were strictly circumscribed . An agreement existed between PERSON and the ORG under which ORG and its subsidiaries enjoyed credit in current account , i.e. the possibility of overdrawing on accounts held with the ORG . In DATE this credit facility amounted to MONEY ( NLG ) , with an additional temporary overdraft facility of up to NLG CARDINAL . This agreement had been formalised in a written confirmation of an oral agreement to that effect and in a contract dated CARDINAL DATE under which the ORG opened a joint account ( compte - jointovereenkomst ) in the name of ORG and its subsidiaries , who assumed responsibility jointly and severally for meeting their obligations to the ORG .

A dispute arose between PERSON and the ORG concerning the development of their financial relationship during the period DATE and DATE . In the ensuing civil proceedings both parties gave renderings of the facts which differed materially on significant points .

PERSON ’s account may be summarised as follows .

( a ) In DATE the ORG , through the manager of its ORG branch , Mr PERSON , agreed orally to raise the maximum of the credit available to PERSON by NLG CARDINAL,CARDINAL,CARDINAL to a total of NLG CARDINAL . As PERSON had explained to PERSON required this extension to take over the commercial operations of a certain limited liability company , ORG , which had gone bankrupt ; action was needed urgently . This oral agreement was to be formalised later ; at this point , however , PERSON did agree in writing to stand surety himself for PERSON and its subsidiaries to the amount of NLG CARDINAL . Following this alteration of the agreement of CARDINAL DATE PERSON opened an account with the ORG earmarked for its activities in connection with the ORG takeover and the ORG provided letters of credit on a number of occasions .

( b ) In DATE CARDINAL PERSON was offered the opportunity to take over CARDINAL other limited liability companies , GPE and NORP , which had run into financial difficulties . To finance these takeovers PERSON required another extension of the credit limit ; this was discussed between PERSON and PERSON Following these discussions the ORG made ORG an offer in writing dated DATE to raise the maximum credit to NLG CARDINAL . In anticipation of this extension , the ORG paid out NLG CARDINAL in connection with the takeover of ORG and NORP and subsequently agreed to a withdrawal by PERSON of another NLG CARDINAL,CARDINAL for the same purpose . Mr PERSON required security for these sums in the form of a mortgage and made PERSON Reijendam sign a blank power of attorney . The ORG made use of that document to have a deed drawn up by a notary mortgaging all immovable property belonging to ORG , its subsidiaries and PERSON personally . This mortgage was surety for a credit of NLG CARDINAL,CARDINAL,CARDINAL , i.e. it further secured the extension of the credit referred to in sub - paragraph ( a ) above .

( c ) On DATE the ORG , through Mr PERSON , unexpectedly and inexplicably withdrew its confidence in PERSON , called on him to resign and froze all PERSON ’s accounts without warning , this in spite of the fact that its total debit balance was then NLG CARDINAL,CARDINAL.CARDINAL and therefore well within the agreed limit of NLG CARDINAL .

The ORG ’s rendering of the facts may be summarised as follows .

( a ) The ORG acknowledged that PERSON had asked for a higher credit limit in connection with the takeover of the commercial activities of the company O. It had agreed in principle but had required certain additional information to be provided by PERSON , including its DATE statement for DATE ) ; these had never been received and an agreement to raise the existing credit facilities as claimed by PERSON had therefore never been reached . However , in connection with the takeover of the activities of the NORP company ( which it approved of in principle ) and the urgent need for funds , the ORG had been prepared to enable PERSON to act in anticipation of the extension of the credit facilities by providing letters of credit on a number of occasions . PERSON had been asked to stand surety for these himself to the amount of NLG CARDINAL,CARDINAL . By DATE the sum for which the ORG had bound itself amounted to NLG CARDINAL . The ORG pointed out that there was a difference between a letter of credit and a credit under a current account agreement ; the former implied only occasional and short - term risk , whereas the latter involved more permanent , long - term risk .

( b ) The ORG acknowledged also the second request for an extension of the credit facilities for the takeover of the companies NORP and NORP In this connection , PERSON had indicated that others would stand surety for at least NLG CARDINAL,CARDINAL,CARDINAL . Relying on that statement , the ORG had written to PERSON on DATE that it agreed in principle to an extension of the credit facilities to NLG CARDINAL , subject however to certain conditions regarding DATE statements and securities . No DATE statements had been forthcoming , nor any securities either , and so the ORG had written to PERSON on DATE withdrawing the offer .

The ORG acknowledged the transfer of NLG CARDINAL but denied having been aware of the purpose for which that sum was intended . It claimed that PERSON had misled it in this regard . This also applied to the withdrawal of LAW . The ORG had referred to this deception in its letter of DATE and stated that in consequence it would annul the credit agreement ( which it had nevertheless continued to honour ) if PERSON were to take up his position as manager of PERSON again ( see sub - paragraph ( c ) below ) .

The ORG claimed that it had required the mortgages as surety for the letters of credit referred to in sub - paragraph ( a ) above and the withdrawal of the above - mentioned sums of NLG CARDINAL . The mortgages had been established under a power of attorney drawn up by a notary who - as the document itself showed - had read it aloud before PERSON signed it . The ORG denied that there had been a blank power of attorney . ( c ) The ORG denied categorically that it had frozen PERSON ’s accounts on CARDINAL DATE . In any case , withdrawals from these accounts had by then exceeded the agreed maximum of NLG CARDINAL , the balance being NLG CARDINAL,CARDINAL.CARDINAL in debit . It had , however , made it clear that it no longer had confidence in PERSON after the above - mentioned deception had come to light . The ORG ’s doubts concerning his suitability to continue managing PERSON were later confirmed when PERSON was suspended as managing director with effect from DATE and shortly afterwards committed to a mental institution under a court order . During the period from CARDINAL DATE until DATE the ORG continued its dealings with ORG under different management , consisting of Mr GPE and PERSON It continued to allow credit to finance the activities taken over from the O. company . After PERSON ’s return the ORG had allowed PERSON every opportunity to reduce its debt ; when it became clear that PERSON was not prepared to do so , it had annulled the credit agreement with effect from DATE . Only then had it frozen the accounts .

On DATE , pursuant to a court order which it had obtained for that purpose , Dombo seized certain moneys which it still owed to the ORG and summoned the ORG before ORG ( arrondissementsrechtbank ) , claiming financial compensation for the damage caused by the ORG ’s alleged failure to honour its commitments .

After extensive argument in writing - in which each party presented written pleadings CARDINAL times and produced a considerable number of documents and PERSON offered to produce witnesses ( in particular the managing directors , Mr GPE and PERSON , who had temporarily replaced PERSON , to prove that there had been negotiations at that time to raise the credit limit from NLG CARDINAL,CARDINAL,CARDINAL to NLG CARDINAL,CARDINAL,CARDINAL ) - ORG delivered an interlocutory judgment on DATE allowing PERSON to call witnesses to prove , firstly , that the ORG had frozen PERSON ’s accounts on CARDINAL DATE and , secondly , that the existing credit arrangements had been extended by NLG CARDINAL in DATE . In addition , it ordered the appearance in person ( comparitie ) before CARDINAL of its judges of representatives of PERSON and the ORG able to give information and empowered to agree to a friendly settlement .

The ORG appealed against this interlocutory judgment to ORG ( gerechtshof ) , arguing that PERSON ’s claim should have been dismissed out of hand . According to ORG had abandoned the original basis of its claim , and the basis which it had in the meanwhile adopted for it obviously could not support it . Besides , PERSON had no interest in the claim and ORG requirement of evidence was in any case too vague and CARDINAL - sided .

After both parties had submitted a written statement and produced new documents and , through their lawyers , pleaded their cases orally ( PERSON repeating its offer to provide evidence ) , ORG , in a judgment of DATE , refused to accept the ORG ’s arguments and confirmed the judgment of ORG .

At the request of both parties , ORG did not refer the case back to ORG but proceeded to deal with the case itself . Accordingly , it ordered the hearing of witnesses to go ahead on CARDINAL DATE before CARDINAL of its own judges , PERSON , but reserved the decision on the date of the personal appearance of the parties’ representatives until the witnesses had been heard .

PERSON called a number of witnesses , including PERSON . Producing the minutes of a ORG meeting dated DATE , it claimed that PERSON had been dismissed as managing director for reason of " lack of funds " . It further produced a document from which it appeared that PERSON had been registered as an unemployed person seeking employment on DATE and an extract from the commercial register from which it appeared that another person had been appointed managing director of ORG on DATE .

The ORG objected to PERSON Reijendam being heard . It based this objection on the rule that a party to the proceedings could not himself be heard as a witness ( see paragraphs DATE and CARDINAL - CARDINAL below ) . It claimed that Mr PERSON ’s dismissal did not reflect the true state of affairs but had been effected only to enable him to testify .

In a judgment of CARDINAL DATE Judge PERSON upheld this objection and refused to hear PERSON . He had become convinced that both PERSON dismissal as managing director of PERSON and the appointment in his place of another person were shams ( schijnhandelingen ) which served no other purpose than to enable PERSON to testify in the instant proceedings . He pointed out that PERSON had been present at the oral pleadings before ORG on DATE and had not protested when PERSON ’s lawyer referred to him as PERSON ’s managing director . He added that in his view the motives alleged for the dismissal were implausible .

The other CARDINAL witnesses produced by PERSON were heard on CARDINAL and DATE . CARDINAL of them , Mr GPE , was heard on both dates . This witness had been PERSON ’s financial affairs manager from DATE until DATE and had since retained links with PERSON as an external adviser . During DATE and DATE he had " been very closely involved " with the running of PERSON and this had led to his appointment as statutory managing director after the suspension of PERSON on DATE ( see paragraph CARDINAL , sub - paragraph ( c ) , above ) . On DATE Mr PERSON stated , inter alia , that he had been present at several meetings of the parties between DATE and DATE and that , although he could not recall the exact words used , he had heard Mr PERSON say something like , " Then for the time being we will take a credit of NLG CARDINAL as a starting - point " . When examined for the second time at PERSON ’s request , he corrected his statement to the extent that besides the original credit facility of NLG CARDINAL,CARDINAL a new facility had been agreed to the amount of NLG CARDINAL in connection with takeovers ( mainly of the activities of the O. company , a small part being intended for the takeover of the T. company ) . There had been several discussions , in which this witness had taken part , about the amount to which the credit was to be extended .

In the exercise of its right to have its own witnesses heard in reply ( contra - enquête ) , the ORG called CARDINAL of its employees , CARDINAL of whom was the manager of its ORG branch office , Mr van W.

PERSON objected to the hearing of PERSON , stating the view that at all stages of the credit relationship , and also in the instant proceedings , he had been and remained the formal representative of the ORG ; to hear him as a witness at this point , when PERSON had not been so heard , would upset the fair balance that should exist between parties in civil proceedings .

By a decision delivered orally on DATE Judge PERSON dismissed PERSON ’s objection . He considered first and foremost that Mr PERSON was a competent witness in the instant case since he was not a party to the proceedings either formally or in fact and went on to state that it could not follow from the fact that PERSON was put at a disadvantage because PERSON was not heard as a witness while Mr PERSON was so heard that Mr PERSON was no longer a competent witness .

ORG judge proceeded to hear the ORG ’s witnesses immediately .

After the witnesses had been examined , both parties submitted extensive written pleadings in which they analysed the ORG statements . PERSON submitted a large number of additional documents , including written statements by persons not heard as witnesses ; the ORG also submitted further documents . PERSON then submitted pleadings in response to those of the ORG .

ORG delivered its final judgment on DATE . It first examined the ORG statements in detail . As far as the statements of the witness Mr C.U. were concerned ( see paragraph CARDINAL above ) , it observed that these contradicted each other on a significant point , namely the figure to which it had been agreed to extend the credit facility , and added that this discrepancy , for which no explanation had been given , adversely affected the convincingness of the statements of this witness . ORG then examined a number of written depositions submitted by PERSON . CARDINAL of these were rejected because they were not signed . With regard to a deposition signed by PERSON , the ORG attributed the same value to it as to a statement made by ORG itself .

ORG went on to hold :

" ORG is of the opinion that the evidence required from PERSON has not been provided . The statements of the witnesses [ NORP , PERSON are not definite enough for this purpose and the statement of [ GPE ] and the notarial statement made by [ S. ] - whose experience , as considered , dates only from after CARDINAL May CARDINAL - are contradicted by those of the witnesses [ PERSON and PERSON ] . The fact that no written evidence is available of such an important agreement as that referred to by PERSON , as would normally be expected , compels ORG to take a strict view of the evidence , and this should also be taken into account . It was established during the proceedings that DATE and DATE the [ ORG ] in effect consented to extend the credit facilities to ORG in various forms in larger amounts than PERSON was entitled to by virtue of any written agreement , but this does not necessarily mean that PERSON was entitled to the credit facilities for that reason alone , in the sense that the [ ORG ] would not be justified in applying a kind of temporary embargo on the facilities for reasons of its own . Although the ease with which the [ ORG ] allowed [ Dombo ] to exceed considerably the credit limit officially in force provides food for thought , it can be explained by the negotiations between the parties , which came to light during the proceedings , concerning the establishment of a substantially higher credit limit , in which - as was also common ground between the parties - the sum of NLG CARDINAL was mentioned . It is clear from the statement of the witness [ Van W. ] - and PERSON did not contest this again after the examination of that witness - that at DATE the then managing director of PERSON , by misleading the witness , twice succeeded in drawing considerable sums over and above what was already to be regarded as officially a substantial overdraft on ORG ’s consolidated accounts . This amount could reasonably provide the [ ORG ] with grounds for temporarily ‘ shutting off the flow of credit’ to PERSON . "

ORG further held that since the agreement had not been proved , it was not necessary to examine the question whether the ORG had in fact frozen PERSON ’s accounts in breach of it and it went on to dismiss PERSON ’s claim .

In DATE PERSON filed an appeal on points of law ( cassatie ) to ORG ( PERSON ) . Paragraph CARDINAL of its ( quite extensive ) statement of grounds of appeal ( middel van cassatie ) was particularly directed against Judge PERSON decisions to uphold the objections to hearing PERSON as a witness for PERSON and reject those against hearing PERSON as a witness for the ORG . This paragraph argued , inter alia :

" Furthermore , the decisions of ORG , ( also ) if considered in relation to one another , are incorrect in view of DATE ( article CARDINAL ) of LAW ] , which guarantees everyone a fair hearing of his case in the determination of his civil rights and obligations . After all , this provision implies ( inter alia ) that the parties should be able to fight each other with equal means ( ‘ equality of arms’ ) and that every party to civil proceedings should have the opportunity to present his case to the court in circumstances which do not place him at a substantial disadvantage vis - à - vis the opposing party . "

ORG ( advocaat - generaal ) , in her advisory opinion ( conclusie ) of DATE , formulated the opinion that PERSON was right to argue that " according to current legal opinion " a person who " could be identified with a party " should be allowed to testify . In support of this view she referred to the new law of evidence in civil procedure , which had by then been accepted by ORG ( see paragraph CARDINAL below ) . As an additional argument in favour of this proposition she pointed to Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , on which PERSON could in her view properly rely . In this connection she argued , inter alia :

" In the present case the point was that [ Mr van W. ] was able to present his view of what was ( or was not , as the case may be ) agreed or discussed between himself and PERSON in DATE to the court extensively ( his statement comprises CARDINAL pages in the official record and CARDINAL pages in the judgment of ORG ) , while PERSON was not allowed to give his version of the events himself . Yet the success of PERSON ’s action depended on that . " She went on to advise allowing PERSON ’s appeal .

ORG dismissed the appeal on DATE . It rejected PERSON ’s arguments based on " current legal opinion " , considering that the law of evidence in force was based on the exclusion of parties as witnesses in their own case so that it was not possible to anticipate the entry into force of the new law , which had an entirely different structure . It likewise rejected the complaint based on LAW CARDINAL ( article CARDINAL ) of the LAW ; this was based , according to ORG , on the argument that ORG had violated the principle that " the procedural rights of both parties should be equivalent " . This line of argument , in the opinion of ORG , " ... fails to recognise that in assessing the convincingness of the content of ORG statements , the judge with competence to determine questions of fact is free to consider the nature and degree of involvement of a witness with a party in proceedings and that he must also judge a witness ’s statement in the light of what the opposing party has put forward in its written pleadings or when appearing before the court in person " .

Prior to the entry into force of the new rules of evidence in civil cases on DATE ( see paragraph CARDINAL below ) evidence in civil procedure was governed by LAW ( Burgerlijk Wetboek - CC ) and LAW ) , both of which dated from DATE and were largely based on the corresponding NORP codes . The former law , which applied at the time of the proceedings in issue , did not lay down in so many words that a person was not allowed to testify in a case to which he was a party . It was nevertheless generally accepted that , in the words of ORG , " one of the principles of the GPE law of civil procedure is that a person who is formally or substantively a party to litigation can not be heard as a witness in his own case " ( judgment of CARDINAL DATE , GPE ( PERSON , GPE Law Reports ) DATE , CARDINAL ) . This view was based on , inter alia , Article DATE para . ORG , according to which relatives by blood or by marriage in a direct line , spouses and former spouses of parties to proceedings were disqualified from being witnesses . The rule that an actual party was not allowed to give evidence himself was repeatedly confirmed and strictly applied by ORG , as reflected by , inter alia , its judgments of CARDINAL DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL ; DATE , GPE DATE , CARDINAL , and the judgments referred to below in paragraph CARDINAL .

However , it did not follow that it was impossible for the courts to hear parties in person . The courts had the following possibilities at their disposal :

( a ) The " decisive oath " and the " supplementary oath " involved hearing a party to proceedings on oath .

( i ) CARDINAL party might call upon the other to confirm on oath the truth of a certain disputed fact . If the other party took the oath , then proof to the contrary was no longer admissible ; if he refused , then the contrary statement was accepted as the truth . This was the " decisive oath " ( beslissende eed ) ( Articles DATE - CARDINAL CC ) .

( ii ) The court also had the possibility of ordering , of its own motion or at the request of a party , that CARDINAL or other of the parties should take the " supplementary oath " ( aanvullende eed ) . It could impose such an oath on the party which was , in its view , the most appropriate for the purpose , provided that the statements to which the oath was to relate were neither proved nor entirely unsubstantiated ( Articles DATE and DATE CC ) . It was in particular the supplementary oath on which parties not infrequently relied when there was a possibility that their evidence would be insufficient ; they would ask the court for permission to supplement their evidence in this way if the court were to hold it to be insufficient on its own .

( b ) The courts also had CARDINAL possible ways of hearing parties which did not involve putting them on oath :

( i ) By means of an " examination on points in issue " ( verhoor op vraagpunten ) of CARDINAL party at the request of the other ( ORG CARDINAL - CARDINAL ORG ) . The party requesting such an examination had to file his questions beforehand ; however , the court was entitled to ask additional questions occasioned by the examination , as was the party who had requested it .

( ii ) By ordering , of its own motion or at the request of either party , the personal appearance of the parties for the purpose of obtaining information ( comparitie tot het geven van inlichtingen ) ( Article CARDINAL ORG ) . In principle , such an order was for the appearance of both parties .

( iii ) In the event of oral pleadings ( pleidooien ) . LAW ORG allowed parties to present their cases themselves , but this was very rare ; however , parties were frequently present at the oral pleadings and the court could make use of the opportunity to question them ( Article CARDINAL para . CARDINAL ORG ) . It was commonly assumed that statements made in these CARDINAL instances did not constitute evidence in support of the position of the party that made them .

If a party to proceedings was a legal person , then the rule disqualifying a party as a witness applied to any natural person who was to be identified with the legal person concerned .

A natural person was identified with a legal person if he had acted in the proceedings as its representative ( as appears from , inter alia , ORG judgments of DATE , GPE DATE , p. CARDINAL ; DATE , GPE DATE , p. CARDINAL ; DATE , GPE DATE , p. CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ) , or if he was empowered by law or by its statutes to act as its legal representative ( see , inter alia , ORG judgments of CARDINAL DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , ORG ; DATE , GPE DATE , CARDINAL ; CARDINAL DATE , GPE DATE , CARDINAL ) .

Whether or not a person was qualified to be a witness had to be determined in the light of the situation obtaining when he was to make his statement . Under this general rule it was usually assumed that a former director of a legal person , who would have been prevented from giving evidence while he retained his position , qualified as a witness following his dismissal ( see , inter alia , ORG judgment of DATE , GPE DATE , CARDINAL ) . However , this was not the case if the person concerned had not genuinely lost his position within the legal person and where his dismissal had to be construed as a sham ( schijnhandeling ) ( see , inter alia , ORG judgment of CARDINAL DATE , GPE DATE , CARDINAL , and its judgment in the present case of CARDINAL DATE , published with an annotation in GPE DATE , CARDINAL ) .

The law of evidence in civil proceedings was extensively amended by LAW DATE , Staatsblad ( Official Gazette ) CARDINAL , which entered into force on DATE .

The PERSON on which the new law is based dates from DATE . CARDINAL of the reasons why it took so long for this PERSON to become law was the controversy surrounding the question whether the above principle - i.e. that parties should not be allowed to testify -should be abandoned or whether , alternatively , it should be accepted that parties might be heard as witnesses . During the parliamentary proceedings this remained the subject of heated debate both in ORG and outside it , but it was eventually decided to abandon the old practice . LAW ORG now allows parties to give evidence as witnesses in their own case . Accordingly , the decisive and supplementary oaths referred to in paragraph CARDINAL , sub - paragraph ( a ) , above have ceased to exist .

It appears from the drafting history of this legislation that those cases " in which insufficiency of evidence on the part of CARDINAL party leads to legal inequality " especially led to the conclusion that " the arguments in favour of allowing parties to testify should be given more weight than the fear of bias and problems of assessment , which incidentally are just as likely to occur in the case of other statements by witnesses " . As an example of such legal inequality it was mentioned " that a party who is a natural person who is disqualified as a witness may be confronted with ( for instance ) a party who is a legal person , which is in a position to bring forward ‘ third parties’ , although the credibility of these witnesses is just as doubtful in view of their close connections with that party or the proceedings . ... [ I]t is difficult to see why one individual should be allowed to make a statement under oath in court about matters in which he had a part while the other person involved should not . This even applies regardless of any insufficiency of evidence in the sense that no other evidence is available " ( ORG , Parliamentary Drafting History of LAW , pp . CARDINAL - CARDINAL )

It should be observed that differences continue to exist between a witness who is a party to the proceedings in question and a witness who is not . For present purposes , it is sufficient to note that pursuant to LAW CARDINAL ORG the statement of a witness who is party to the proceedings " concerning the facts to be proved by him can not provide evidence to his advantage , unless the statement supplements incomplete evidence " .


No violation of Art. 2 with regard to killing of applicant's brother;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 2 with regard to applicant;No violation of Art. 3;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE at TIME while the applicant 's brother , PERSON , was leaving the casino at FAC in the LOC area of GPE , together with his CARDINAL friends PERSON and PERSON , they were approached by CARDINAL people with walkie - talkies , firearms and bullet - proof vests who introduced themselves as police officers . The CARDINAL men were then forced into CARDINAL cars .

The applicant , who at this time was living in GPE , was informed of what had happened to his brother at TIME that same day . With friends and family he began a search , especially along the GPE - GPE motorway . Part of the search party came to an area called the PERSON ( CARDINAL LOC ) . This was a national park . According to the applicant , there was a shooting polygon situated therein , open only to members of the security forces and high - level ORG officials . The Government on the other hand deny the existence of such a shooting polygon . The search party met a watchman at the national park , who told them that CARDINAL people in CARDINAL cars had entered the area on DATE at TIME The watchman then gave a description of the CARDINAL vehicles that matched the description given by those who had witnessed the abduction at FAC .

When the applicant learnt about the kidnapping of his brother , he immediately contacted members of ORG , the Governor of GPE and the media . ORG was also informed about the kidnapping . The applicant and his legal representative made a further written application to the PERSON public prosecutor 's office . The initial enquiries made by the authorities showed that the CARDINAL persons had not been taken into custody .

NORP The same day , PERSON , CARDINAL of FAC brothers , submitted another petition to the ORG public prosecutor 's office in which he claimed that his brother and CARDINAL of his brother 's friends had been abducted by people who had identified themselves as plainclothes police officers . Mr PERSON requested the prosecutor to investigate the matter . The prosecutor asked the family members to go to the NORP police headquarters , which was responsible for the area where the incident had taken place . The family members complied with this request but no written statements were taken from them at the police headquarters . The NORP police headquarters informed the PERSON police headquarters and also the anti - terrorist branch of the police about the events on DATE .

On DATE at TIME , Mr PERSON contacted the ORG gendarmerie station within the district of Bolu , QUANTITY from where the CARDINAL men had been abducted . He informed the gendarmes that he had seen QUANTITY bodies in an area near the river where he had gone to fish . DATE at TIME the gendarmerie arrived at the scene . During the preliminary search , no empty cartridges or other evidence could be found as it was very dark .

NORP The public prosecutor and CARDINAL doctors arrived at the scene of the crime at TIME The positions of the bodies were recorded . No documents or other property were found on the bodies which might establish their identities . It was further noted that valuable items such as gold rings and wrist watches were intact . The preliminary investigation of the bodies revealed that rigor mortis had set in and that the CARDINAL men had been shot at point - blank range . Subsequently , at TIME on DATE the corpses were taken to ORG in GPE for further examination .

On TIME , the gendarmerie in Bolu contacted the applicant and informed him that CARDINAL corpses had been found in GPE .

On DATE the applicant identified the bodies of his brother and his CARDINAL friends at ORG .

On DATE a statement was taken from ORG , the doorman at FAC . In his statement , PERSON explained that when the CARDINAL persons who had disappeared , all of whom he knew as they were regular customers at the hotel casino , emerged from the hotel door sometime between CARDINAL and TIME on DATE , CARDINAL or CARDINAL persons , who had arrived in CARDINAL cars , had approached them and held them against the wall and conducted body searches . The QUANTITY persons were then put into a dark - coloured Mercedes car with registration number CARDINAL ORG CARDINAL . The doorman stated that he had overheard CARDINAL of the men saying that they were police officers and that they would release the CARDINAL persons as soon as statements had been taken from them . The ORG then left followed by the second car which , according to the doorman , was a sports car . The doorman was unable to describe any of the men as it was dark and they had been standing some distance from him .

Also on DATE a statement was taken from Mr PERSON , a security guard at FAC . Mr PERSON stated that QUANTITY men had approached the CARDINAL disappeared persons as they walked out the door . The men all wore waistcoats and were carrying weapons . They forced the CARDINAL disappeared persons into the waiting cars , after having conducted body searches . This witness stated that CARDINAL of the cars was a sports car .

On DATE a statement was taken from Mr PERSON , who was a taxi driver waiting at the taxi rank outside FAC . He stated that while waiting for customers , he had noticed CARDINAL persons coming out of the casino . At that very moment , QUANTITY men walked towards them , made the QUANTITY persons face the wall and then searched them . Afterwards , the QUANTITY were put into the waiting cars . CARDINAL of the cars was a black - coloured ORG CARDINAL ORG . The second car was a cherry - red ORG . The witness also recalled that he had seen a third car , a sports car , which had been driven away by one of the men wearing a waistcoat . The witness had been unable to see the licence plates of the cars or the faces of the CARDINAL or CARDINAL men .

Again on DATE another statement was taken from another taxi driver , Mr PERSON . Mr PERSON stated that as he approached the taxi rank outside the hotel , he was able to see some people putting QUANTITY other persons into a black car .

NORP The preliminary enquiries led the PERSON public prosecutor to issue a continuous search warrant on DATE , which was valid for DATE in accordance with the statutory limit stipulated for kidnapping .

On DATE the ORG public prosecutor 's investigation file , together with a report summarising the investigation , was forwarded to the ORG public prosecutor in order to authorise him to investigate the killings since the bodies were found within his area of jurisdiction .

When the bodies were brought to ORG in TIME of DATE , post mortem examinations of the bodies were carried out by CARDINAL doctors in the presence of the GPE public prosecutor . In the body examination report , it was noted that there was an ecchymosis measuring QUANTITY and an abrasion on the surface of the knee cap of the second body that was later identified as that of FAC . It was further recorded that cyanosis was noted on the front part of the body , left leg upper part , left knee , genitals and the head . It was also perceived that rigor mortis was fading . It was observed that when the body was touched , the skin peeled - which was most probably due to its damp condition . CARDINAL bullet entrance hall on right occipital area and burnt hair caused by a close - range shot and a bullet exit hole behind the right ear ( which damaged the tissue , internal tissue and bones ) were noted . A wide haematoma on the left eye due to trauma caused by a blunt object , fracture of the nose , and blood from the nostrils to the moustache area were also noticed . No other signs or abnormalities were observed either on the back of the body or the genital area . There were no documents to prove identification , nor were there any valuables or money . On the surface of the right hand and wrist a further ecchymosis measuring QUANTITY . in width was noted , which was probably caused when the hands were tied with a rope . The doctors further concluded that as the cause of death was clearly cerebral haemorrhage , there was no need to conduct a classical autopsy . The estimated time of death was given as TIME before the autopsy was carried out .

The bullets recovered from the bodies were sent for a ballistics examination to ORG . ORG prepared CARDINAL forensic reports dated CARDINAL and DATE . The ballistics report prepared by ORG on DATE showed that CARDINAL spent bullet cases found at the scene of the killing had been discharged by CARDINAL different pistols . The report also showed that CARDINAL bullets recovered from the bodies of FAC and Hacı Karay had been fired from the same QUANTITY . pistol . The report concluded that comparisons of the CARDINAL spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since DATE did not reveal any similarities .

The bullets were then sent to ORG which prepared its own report on DATE . This report showed that the CARDINAL bullets recovered from the bodies of Savaş Buldan and Hacı Karay , both QUANTITY and PERSON type , had been fired from the same pistol . The report further concluded that comparisons of CARDINAL spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities . These ballistics reports , together with the photo fits of suspects , were sent to the ORG public prosecutor on DATE .

On DATE the ORG public prosecutor conducted a search of the scene of the crime in the presence of Mr PERSON , who had found the bodies . During the examination , a person named PERSON told the public prosecutor that she had heard a gun shot in TIME of DATE .

On DATE the ORG gendarmerie took statements from CARDINAL persons who claimed to have seen CARDINAL luxury cars travelling in the direction of the spot where the bodies were later found . CARDINAL of these witnesses , PERSON , stated that at TIME on DATE he had been having his breakfast when he had seen CARDINAL cars . The first car had stopped and CARDINAL of the persons inside the car had asked him for directions to Bolu . The witness stated that it was a red car , but he was unable to remember the make of the car . There were CARDINAL persons in the car , both DATE of age with one of them sporting a beard . The witness had also seen CARDINAL persons in the third car . The witness was able to remember that the car registrations all started with ' DATE ' , the prefix for cars registered in GPE . Most of the other witnesses also gave similar statements .

On DATE statements were taken from CARDINAL other witnesses including a number of officials working at FAC . CARDINAL of these witnesses , PERSON , confirmed that the cars ' licence plates all had the prefix ' CARDINAL ' . The witness also stated that one of the passengers had asked for directions to FAC . Another witness , PERSON , similarly stated that he had seen the CARDINAL cars and that he had also been asked for directions to FAC by a passenger in a ORG with darkened windows .

On DATE more witnesses were questioned . These witnesses also stated that they had seen the CARDINAL cars at TIME CARDINAL of them stated that he had been asked for directions to Bolu .

On DATE all the witness statements and other documents were sent to the ORG public prosecutor .

On DATE a statement was taken from PERSON , a brother of FAC . He stated that he had been told about the kidnapping which was said to have been carried out by persons claiming to be police officers . This was the reason why he had contacted the police to verify whether his brother had been taken into custody . The witness concluded his statement by stating that his brother had no enemies and that he did not suspect anyone . He requested that the perpetrators responsible for the kidnapping and the subsequent killing be apprehended .

On DATE the ORG public prosecutor concluded in a continuous search warrant that it had not been possible to establish the identities of the perpetrators . The prosecutor further stated in this report that no evidence had been found during the investigation . It was decided , therefore , to issue a continuous search warrant for the perpetrators of the killings , which remained valid for DATE , the statutory time limit under LAW of LAW . Copies of this search warrant were distributed to the ORG gendarmerie and the GPE police as well as to the PERSON public prosecutor in GPE so that they could inform the GPE public prosecutor if they found the perpetrators . The prosecutor also instructed these authorities to continue to carry out meticulous searches for the perpetrators .

On DATE ORG , which had carried out a forensic examination on a CARDINAL-mm FAC pistol and CARDINAL bullets found in a car in GPE , concluded that this weapon had not been used in any unknown perpetrator murder .

On DATE a statement was taken from Mr PERSON who had first seen the bodies together with his uncle at TIME on DATE . He stated that he had not heard any gun shots DATE .

Also on DATE the ORG public prosecutor visited the spot where the bodies had been found . He also went to take a statement from DATE who claimed that she had heard gun shots on DATE of the killing . The house of PERSON was just outside GPE village and QUANTITY from the scene of the incident . In order to test whether this would have been possible , the prosecutor ordered a gendarmerie soldier to the incident scene and to fire a weapon similar to the CARDINAL used in the killings . The prosecutor was able to hear the gun shot . The prosecutor summoned CARDINAL persons who had seen the CARDINAL cars on DATE of the incident to his office in order to take further statements from them .

On DATE a gendarmerie non - commissioned officer visited the spot where the bodies had been found and prepared a report . According to this report , the scene of the incident was QUANTITY from GPE town centre . It was impossible for a person in GPE village , which was QUANTITY away , to have heard the gun shots . According to the experiments carried out DATE , the maximum distance from which gun shots could have been heard was QUANTITY .

On DATE a statement was taken by the ORG public prosecutor from ORG who had seen the CARDINAL cars on DATE of the incident . She stated that CARDINAL of the cars had been a red ORG with CARDINAL persons in it . She had not seen any of the cars ' number plates .

On DATE another statement was taken by the prosecutor from CARDINAL ORG who had also seen the CARDINAL cars on DATE of the incident . She was able to recall that CARDINAL of the cars had been a red ORG . She stated that there were CARDINAL persons in the last car , which had darkened windows .

On DATE ORG informed the PERSON public prosecutor about the application made to ORG by the applicant . The ORG 's letter stated that there were no documents in the investigation file showing that attempts had been made to trace the cars used in the kidnapping despite the fact that eyewitnesses had given the authorities the full registration number of CARDINAL of the cars and the prefixes of the other CARDINAL cars . In addition , some witnesses who lived near the spot where the QUANTITY persons had been killed had stated that they had heard gun shots and that the timing of the gun shots coincided with the time of the killing . The ORG 's letter finally stated that although it was highly probable that further investigations would not produce any outcome , the investigating authorities should still take further steps in the investigation as this case would be scrutinised by the ORG which , in the past , had put prosecutors in difficulties when questioning them . The ORG requested that the cars be traced , a check made as to whether witnesses could have heard the gun shots and whether any tyre marks had been subjected to forensic examination . It should also be confirmed with the local gendarmerie whether or not any of the witnesses had informed them on TIME CARDINAL DATE that they had heard gun shots .

NORP In response to the NORP public prosecutor 's office , on DATE ORG stated that the vehicle with registration number CARDINAL ORG CARDINAL was a DATE model , metallic grey ORG which had belonged to a certain Mr ORG since DATE .

DATE and DATE the area where the CARDINAL bodies had been found was visited CARDINAL times by the gendarmerie and the police in an attempt to find the perpetrators there . It had not been possible , however , to find the perpetrators or any other evidence at the place .

After the GPE incident of DATE , the spent cartridges and bullets recovered from the scene were re - examined and compared with the bullets and cartridges of the guns found at the scene of the GPE incident by ORG . In a report dated DATE , it was concluded that there was no connection between them .

On DATE PERSON , who was the Head of ORG of ORG at the time , gave a statement to the public prosecutor in connection with the GPE incident . In his statement , Mr Avcı referred to the killings of FAC , PERSON and PERSON as the work of an illegal group . He further stated that , as that information was based on secret intelligence , he did not have any documents to prove the allegations . He was , however , of the opinion that , if an investigation was carried out into certain sources , it would be possible to find documents to verify the accuracy of these allegations . He was prepared to indicate those issues in respect of which it might be possible to find documents . Among his submissions , which were recorded in a CARDINAL - page statement , Mr PERSON stated , inter alia , the following :

“ The ORG and ORG ( PERSON , hereinafter ORG ) became concerned about the financial assistance being provided to the ORG from certain members of the NORP community , which they felt accounted for its increased activity DATE . They did not feel that they had enough evidence to bring charges and consequently some officers from the Police , ORG and ORG started talking about using different methods of dealing with certain members of the NORP community . A special team was formed for this purpose by , inter alia , the Chief of Police , PERSON and the Chief of ORG , PERSON . This team consisted both of members of ORG and certain civilians , including PERSON . The activities of this special team were known to other members of the ORG and the Intelligence Branch of the ORG ( the GPE ) . The kidnapping and the killing of PERSON and his friends formed part of such activities . It was established that these persons were helping the ORG financially . The way they were kidnapped and killed did not bear any resemblance to the activities of a ORG or other underground organisation known to us . Police identity cards and policing methods were used during the kidnapping of PERSON and his friends , otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped . To go through these checkpoints could only have been possible by making use of an official title ” .

On DATE PERSON was interrogated once again in GPE at the request of the GPE public prosecutor . In his statement , Mr ORG stated that he did not know how and by whom the killings were carried out .

On DATE the police officers PERSON , PERSON and PERSON , who were in detention as a result of the investigation into the GPE incident , were shown to the eyewitnesses to the abduction , PERSON and ORG . However , the eyewitnesses stated that they had not seen these persons before .

The photo - fit drawings of the CARDINAL abductors made on the basis of the statements of the witnesses were compared with the photographs of PERSON , PERSON and PERSON at FAC . In the laboratory report , dated DATE , it was stated that the photo - fits did not have the necessary facial characteristics to make a positive comparison .

On DATE the lawyer representing the families of the other CARDINAL deceased persons lodged a petition with the ORG public prosecutor 's office . He requested that the photograph of the red car , belonging to ORG , which was found abandoned after his abduction , be shown to the witnesses heard in GPE . When the photograph of the red sports car with registration number CARDINAL ORG CARDINAL was shown to PERSON , PERSON and PERSON , who had given statements about the incident in DATE , they all stated that it was not like the car they had seen that day , and that a long time had elapsed since the incident .

The photo - fits were also compared with the photograph of ORG , another suspect detained in connection with the GPE investigation . The report of the criminal laboratory dated DATE concluded that CARDINAL of the photo - fits bore resemblances to the photograph and that the person in the photo - fit could be PERSON . Accordingly , on DATE ORG issued an arrest warrant for PERSON . At that time , PERSON Öz was detained in the PERSON prision in GPE in connection with another crime . On DATE ORG gave a statement to the public prosecutor . He stated that he had not been in GPE DATE and DATE and that he did not know who had carried out the kidnapping on DATE . He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping . PERSON explained that this fact could be easily verified because he had given an interview to a local television channel in PERSON at around the time of the kidnapping . On DATE PERSON was formally arrested by ORG .

DATE . On DATE ORG rejected the appeal of ORG against the decision ordering his arrest for the kidnapping and killing of the applicant 's brother and the other CARDINAL persons . On CARDINAL DATE an identity parade was held in the prison where PERSON was being detained on remand . Both Mr Sebahattin Uz , the doorman at FAC , and Mr PERSON , the taxi driver who had witnessed the kidnapping on DATE , stated that PERSON , who was included in a line - up of QUANTITY persons , was not one of the men who had carried out the kidnapping . On DATE PERSON was questioned by the public prosecutor . Mr PERSON was a watchman working at ORG , which was on the road to FAC . He referred to his previous statement which he had given on DATE and stated that he had only seen a red car stop outside his office in the forest at TIME on DATE . CARDINAL person got out of the car and filled a container with water from a fountain and left . This witness was unable to recognise the red sports car with registration number CARDINAL ORG CARDINAL . He was also shown pictures of PERSON . The witness stated that the person he had seen did not look like PERSON .

On DATE the ORG public prosecutor took a decision of non - jurisdiction in respect of ORG . The prosecutor sent the investigation file to ORG which , in the prosecutor 's opinion , was the competent court to prosecute PERSON .

On DATE the public prosecutor attached to ORG took a decision of non - jurisdiction in respect of PERSON . The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation . He therefore concluded that ORG did not have jurisdiction in this matter . The file was sent to the PERSON public prosecutor , who later transferred the file to the ORG public prosecutor .

On DATE the ORG public prosecutor , noting that ORG had been arrested and put on trial for the killings , decided to continue the search for the other perpetrators . The prosecutor also asked the PERSON public prosecutor to charge PERSON , who , according to the evidence gathered by the ORG public prosecutor , was CARDINAL of the perpetrators of the kidnappings and subsequent killings .

On DATE the PERSON public prosecutor filed a bill of indictment with ORG . The prosecutor alleged that the evidence justified the prosecution of PERSON for the murder of the applicant 's brother and his CARDINAL friends .

During the proceedings before ORG , the court took into consideration the indictment which had been submitted to ORG on DATE and which dealt with PERSON role in the GPE affair . ORG noted that , according to this indictment , PERSON was a notorious international drugs trafficker who held CARDINAL official service passports , CARDINAL of which were in the names of PERSON and ORG .

NORP ORG finally noted that PERSON name had been implicated in ORG which had concluded that the fight against terrorism had gained momentum in DATE when PERSON was appointed head of ORG in GPE . According to this ORG , there had been a number of unknown perpetrator murders in the area between GPE , Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the ORG . The ORG further stated that the killings of FAC , PERSON , ORG , ORG and ORG formed part of such activities .

Recalling that PERSON , PERSON and ORG had been kidnapped by CARDINAL persons and then killed in the area between GPE , Adapazarı and Bolu , ORG held that these killings resembled the above - mentioned killings in the same area . Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons , ORG concluded on DATE that it was precluded from examining the merits of the case for reasons of jurisdiction .

The case file was transferred to ORG which had jurisdiction to deal with cases involving organised crime . On DATE ORG concluded that it too did not have jurisdiction to deal with the case . The court held that according to the PERSON public prosecutor 's indictment of CARDINAL DATE , ORG was charged with multiple murders . The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio . The case file was sent to ORG in order to resolve the dispute over jurisdiction .

On DATE ORG , upholding the decision of ORG , ruled that ORG had jurisdiction to deal with the case .

Seven hearings were held before ORG in the course of the criminal proceedings against PERSON . PERSON , CARDINAL of FAC brothers , joined the proceedings as a civil party . PERSON told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the NORP courts that the killings were being investigated . QUANTITY eyewitnesses , who had either seen the QUANTITY men being put into the cars outside the hotel in GPE or had seen the CARDINAL cars near the spot where these persons were killed , stated during the hearings that they had never seen PERSON before .

On DATE the ORG acquitted PERSON of the charge of multiple murders due to lack of evidence . The case file was sent back to the ORG public prosecutor 's office to continue the search for the perpetrators .

The parties submitted various documents concerning the investigation into the alleged abduction and killing of PERSON .

The documents listed below concern the statements taken from various witnesses and the investigation in relation to the kidnapping and subsequent killing of the applicant 's brother .

( i ) Statement of ORG , doorman of ORG , dated DATE , taken by the PERSON public prosecutor 's office .

( ii ) Statement of PERSON , security guard of the FAC hotel , dated DATE , taken by the PERSON public prosecutor 's office .

( iii ) Statement of PERSON , dated DATE , taken by the PERSON public prosecutor 's office .

( iv ) Statement of ORG , dated DATE , taken by the PERSON public prosecutor 's office .

( v ) Statement of PERSON , a villager , dated DATE , taken by ORG .

( vi ) Statement of PERSON , a villager , dated DATE , taken by ORG .

( vii ) Statement of PERSON , a student , dated DATE , taken by ORG .

( viii ) Statement of PERSON , a student , dated DATE , taken by ORG .

( ix ) Statement of ORG , a villager , dated DATE , taken by ORG .

( x ) Statement of PERSON , driver of the school bus , dated DATE , taken by ORG .

( xi ) Statement of PERSON , a villager , dated DATE , taken by ORG .

( xii ) Statement of Seyfettin Akmak , a villager , dated DATE , taken by ORG .

( xiii ) Statement of Fevzi PERSON , a villager , dated DATE , taken by ORG .

( xiv ) Statement of ORG , a villager , dated DATE , taken by ORG .

( xv ) Statement of PERSON , a villager , dated DATE , taken by ORG .

( xvi ) Statements of PERSON ; a villager , dated DATE and CARDINAL DATE taken by ORG .

( xvii ) Statement of PERSON , a villager , dated DATE , taken by ORG .

( xviii ) Statement of PERSON , a villager , dated DATE , taken by ORG .

( xix ) Statement of PERSON , dated DATE , taken by ORG .

( xx ) Statement of PERSON , who works at the GPE national park , dated DATE , taken by ORG .

( xxi ) Statement of PERSON , dated DATE , taken by ORG .

( xxii ) Statement of PERSON , dated DATE , taken by ORG .

( xxiii ) Statement of PERSON , dated DATE , taken by ORG .

( xxiv ) Statement of PERSON , dated DATE , taken by ORG .

( xxv ) Statement of PERSON , dated DATE , taken by ORG .

( xxvi ) Statement of İlyas PERSON , dated DATE , taken by ORG .

( xxvii ) Statement of PERSON , dated DATE , taken by ORG .

( xxviii ) Statement of Fevzi Aydın , dated DATE , taken by ORG .

( xxix ) Statement of PERSON , dated DATE , taken by ORG .

( xxx ) Statement of PERSON , dated DATE , taken by ORG .

( xxxi ) Statement of ORG , dated DATE , taken by ORG .

( xxxii ) Statement of Şemsettin Okyay , dated DATE , taken by ORG .

( xxxiii ) Statement of PERSON , dated DATE , taken by ORG .

( i ) Body examination report , dated DATE .

( ii ) Ballistics examination reports , dated DATE and DATE , prepared by ORG .

( iii ) Ballistics report dated DATE , prepared by ORG .

( iv ) Photo - fits of CARDINAL of the perpetrators .

( v ) Ballistics examination report dated DATE , prepared by ORG .

( vi ) Report of ORG , dated DATE .

( vii ) Report of ORG dated DATE , comparing the photo - fits of the perpetrators to PERSON , PERSON and PERSON .

( i ) Scene of incident report , dated DATE , prepared by the NORP Commander .

( ii ) Second scene of incident report , dated DATE , prepared by the NORP Commander .

( iii ) Sketch of the scene of incident drawn by ORG , dated DATE .

( iv ) Decision of the ORG public prosecutor for a continuous search warrant , dated DATE .

( v ) A further scene of incident report , dated DATE , prepared by the ORG public prosecutor .

( vi ) Further statement of PERSON , dated DATE , who allegedly heard gun shots on DATE of the incident .

( vii ) A further sketch of incident , dated DATE , prepared by the ORG public prosecutor 's office .

( viii ) An expert report , dated DATE , stating that from the point where the witness , PERSON , had been standing on DATE of the incident it was probable that she might have heard gun shots .

( ix ) The letter of ORG , dated DATE , to the PERSON public prosecutor 's office .

( x ) Periodic follow - up reports ( twenty in all ) of gendarmes DATE .

( xi ) PERSON public prosecutor 's decision to transfer the case file to GPE public prosecutor 's office , dated DATE .

( xii ) Report of ORG to the GPE police , dated DATE .

( xiii ) Report of identity parade , in which it is indicated that PERSON , PERSON and PERSON were shown to QUANTITY eyewitnesses to the kidnapping , PERSON and PERSON , and that no similarities with the perpetrators had been noted .

( i ) Letter of Pervin Buldan , the wife of PERSON , to the ORG public prosecutor , requesting the extension of the investigation so as to cover the new evidence produced after the GPE incident .

( ii ) Statements of Hanefi Avcı , dated DATE and DATE , concerning the GPE incident .

( iii ) Report of ORG indicating that the photo- fits of the perpetrators had similarities with the photo of ORG .

( iv ) Statement of ORG , dated DATE .

( v ) Report of identity parade , dated DATE , which indicates that although ORG had been shown to CARDINAL eye witnesses to the kidnapping , Mr ORG and PERSON , the witnesses concluded that they had not seen PERSON before .

( vi ) Decision of non - jurisdiction , delivered by the ORG public prosecutor concerning the prosecution of ORG , dated DATE . The file was transferred to ORG court .

( vii ) Non - jurisdiction decision of ORG , dated DATE .

( viii ) Non - jurisdiction decision of ORG , dated DATE , and transfer of case file to ORG .

( ix ) Non - jurisdiction decision of ORG , dated DATE . The case was sent to ORG to settle the dispute on jurisdiction .

( x ) Decision of the Court of Cassation , dated DATE , settling the dispute over jurisdiction between ORG and ORG . The case file was sent to ORG .

( xi ) Minutes of the criminal proceedings against ORG before ORG .

( xii ) Decision of the Düzce Assize Court , dated DATE , by which ORG was acquitted of the charges against him due to lack of evidence .

The applicant produced several press releases concerning the abduction and killing of his brother .

The applicant further submitted to the ORG a copy of the so - called “ ORG ” , which was produced at the request of the Prime Minister by Mr PERSON , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , although CARDINAL pages and certain annexes were withheld .

The introduction states that the ORG was not based on a judicial investigation and did not constitute a formal investigation report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .

The ORG analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG , and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result , particularly in the drug - trafficking sphere . In the ORG , reference is made to the killing of the applicant 's brother :

“ All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms . These factors also operated in the murder of PERSON , a smuggler and pro - ORG activist . ( page CARDINAL ) . ”

The ORG concludes with numerous recommendations , such as improving co - ordination and communication between the different branches of the security , police and intelligence departments ; identifying and dismissing security force personnel implicated in illegal activities ; limiting the use of “ confessors ” ; reducing the number of village guards ; terminating the use of the Special Operations Bureau outside the south - east region and incorporating it into the police force outside that area ; opening investigations into various incidents ; taking steps to suppress gang and drug - smuggling activities ; and recommending that the results of ORG inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .

For the relevant domestic law and background information on ORG , the ORG refers to the judgments of GPE v. GPE , no . LOC CARDINAL - CARDINAL , DATE and PERSON v. GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants are all NORP nationals . Their names , dates of birth , the names of their representatives and the dates on which they lodged their applications appear in the appendix .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

On different dates the applicants registered with ORG ( ORG , “ the ORG ” ) or ORG for ORG ( Bağ - Kur ) .

Subsequent to their registration , they all lodged actions seeking the correction of their dates of birth , which had initially been registered erroneously in their birth records . As a result , the applicants’ ages were increased by DATE by court decisions to reflect their biological ages .

When they reached the minimum age limit for retirement on the basis of their rectified dates of birth , the applicants applied to the ORG or to PERSON - Kur for retirement pensions . Their requests were , however , rejected as they were not considered to have fulfilled the conditions set out in the relevant laws to receive such benefits ( LAW no . CARDINAL and LAW no . DATE ) . The applicants were informed that , for the purpose of determining eligibility for pension benefits , a person ’s age was calculated on the basis of the date of birth declared at the time of registration with the social security institutions ; subsequent amendments to the date of birth would thus not be taken into account .

The applicants subsequently brought actions before labour courts seeking declaratory judgments ( tespit davası ) regarding their eligibility for retirement pensions in the light of their amended dates of birth . In all cases the labour courts dismissed the ORG requests on the same legal grounds as the decisions of the social security institutions . ORG upheld these judgments .

The details regarding these proceedings appear in the table below .

Section CARDINAL A of Law no . CARDINAL provides :

“ In order for insured [ persons ] to benefit from the old - age insurance ,

a ) Women must have reached the age of CARDINAL and men sixty and [ they must have made contributions for ] a minimum of DATE , or

b ) Women must have reached the age of CARDINAL and men sixty and [ they must have been ] insured for DATE and [ have paid ] a minimum of DATE of premiums in respect of disability , old - age and death insurance . ”

LAW no . CARDINAL provides :

In the calculation of the income and DATE allowances ... [ deriving ] from ... oldage insurance , corrections of age made after DATE on which [ the person ] commenced working subject to ... Law no . CARDINAL or other social security institutions , shall not be taken into consideration . ”

Section CARDINAL of Law no . DATE provides :

“ In order for insured [ persons ] to benefit from old - age insurance ,

b ) Women must have reached the age of CARDINAL and men sixty and they must have paid insurance premiums for DATE . ”

Section CARDINAL of Law no . CARDINAL provides :

“ ... In the implementation of the age - related provisions [ of this PERSON ] within the context of disability , old - age and death insurance , ... the date of birth recorded in the ORG register at the time of taking up of the job within the terms of this PERSON ... shall be taken into account . ”