Violation of Art. 6-1;Preliminary objection joined to the merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicant was born in DATE and is serving his prison sentence in the GPE NORP F - type prison .

In DATE , the applicant , who was accused of murder , armed robbery and membership of an illegal organisation , namely the TKP - ML ( ORG , ORG ) , was placed in detention on remand in the PERSON prison .

On DATE the applicant was transferred to the GPE Sincan F - type prison .

On DATE ORG of the F - type prison ( “ the Board ” ) found the applicant guilty of having damaged prison property and , pursuant to LAW on the administration of penitentiary institutions and the execution of sentences ( “ the Regulations ” ) , prohibited him from receiving visitors for a period of DATE . According to the ORG ’s decision , on DATE the applicant had broken the ventilation in his ward and written the name of an illegal organisation on his wall . The decision of ORG was reviewed and upheld by ORG , in accordance with Article CARDINAL/CARDINAL of LAW . The court delivered its decision on the basis of the case file . It also referred to the applicant ’s statement in which he had admitted committing these acts in protest against the general situation in PERSON prisons . The penalty was enforced between DATE and DATE .

On DATE the ORG once again imposed a disciplinary sanction on the applicant and prohibited him from receiving visits for DATE . According to the ORG ’s decision , on DATE , following a meeting with his lawyer , the applicant had refused to be searched by prison officers and had shouted slogans . In his defence submissions , the applicant admitted that he had resisted the prison officers when he was ordered to take off his shoes . On DATE the ORG ’s decision was reviewed and upheld by ORG . The applicant filed an objection with the public prosecutor against this decision under LAW . On DATE the public prosecutor rejected the applicant ’s request . The penalty was enforced DATE .

On DATE the ORG found the applicant guilty of having damaged prison property , possessing a sharp cutting instrument made from a prison bed , and having an excessive amount of money in his possession . It accordingly prohibited him from receiving visitors for DATE . In the meantime , PERSON no . DATE entered into force , which stipulated that decisions delivered by ORG were to be reviewed by the Enforcement Judge . Accordingly , on DATE , the decision of CARDINAL DATE was reviewed . The judge upheld the ORG ’s decision , on the basis of the case file and taking into account the applicant ’s statement . This decision was served on the applicant on DATE and the penalty was enforced DATE and DATE .

On DATE the applicant received a reprimand for having chanted slogans in the prison . ORG held that the applicant should be warned that he would receive heavier penalties if he continued committing similar offences .

On DATE and CARDINAL DATE respectively , the prison guards prepared CARDINAL incident reports according to which the applicant had damaged public property by breaking the loudspeaker in his cell and had incited other inmates to disturb order by chanting slogans . In his statement dated DATE , the applicant admitted that he had chanted slogans but denied that he had damaged the loudspeaker in his cell . On DATE the ORG found the applicant guilty and prohibited him from receiving visitors and from sending and receiving letters for DATE . On DATE the decision was reviewed and upheld by the Enforcement Judge . That decision was served on the applicant on DATE and he filed an objection against it . On DATE ORG dismissed the applicant ’s objection and the penalty was enforced DATE and DATE .

On DATE the applicant was caught by prison guards as he was climbing onto the window bars of his cell . In his statement dated DATE , the applicant maintained that he had climbed up to reach a newspaper which was allegedly on the roof . On DATE the applicant was once again prohibited from receiving visitors for DATE by ORG for having climbed onto the window bars . On DATE the penalty was reviewed and upheld by the Enforcement Judge . That decision was served on the applicant on DATE .

These Regulations provide as follows :

“ Those whose acts constitute a breach of ORG obligations arising from laws , regulations and orders , or are prohibited , shall be liable to CARDINAL of the following disciplinary penalties according to the nature and severity of the circumstances :

CARDINAL Reprimand ;

CARDINAL– Deprivation of the right to receive visitors ;

CARDINAL– Deprivation of the right to send and receive letters ;

CARDINAL Solitary confinement . ...

A prisoner may be simultaneously sentenced to the penalties of a deprivation of the right to receive visitors and the right to send and receive letters . ... ”

“ The penalty of a deprivation of the right to receive visitors deprives convicts of the right to receive visitors during TIME set out in the internal regulations .

This penalty can not be imposed on a prisoner for DATE . ”

“ Before a disciplinary sanction is imposed , a prisoner who is charged with a disciplinary offence shall be heard with regard to the acts of which he is accused . ”

“ Disciplinary penalties imposed by ORG shall be executed promptly . If the director of the institution or CARDINAL members of the disciplinary board , or the convict , consider that the decision concerning a disciplinary penalty is erroneous or insufficient , he or they can file an objection within TIME with the public prosecutor ’s office .

Decisions taken by the public prosecutor shall be final . ”

“ Decisions concerning disciplinary penalties and measures [ in respect of remand prisoners ] shall be enforced following the approval of the judge . ”

Section CARDINAL of Law no . DATE , which lays down the competence of ORG , provides that objections filed against disciplinary sanctions shall be dealt with by such a judge . Article CARDINAL provides that the prisoner concerned , his / her close relative or legal representative , can file an objection against a disciplinary sanction . Furthermore , Article CARDINAL stipulates that the Enforcement Judge shall decide on the basis of the case file , without holding a hearing . This judge may conduct an examination ex officio or request further information from the parties if the interests of justice so require . An appeal lies against the decisions of Enforcement Judges to the nearest ORG .

This legislation lays down new provisions on prison discipline , including a list of punishable acts , the penalties relating to them and the procedure to be followed . In CARDINAL of its reports ( ORG / inf ( DATE ) CARDINAL ) , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment examined the legislation and found that these new provisions did not call for any particular comment . However , it raised CARDINAL questions concerning disciplinary procedures , namely lawyers’ participation in disciplinary proceedings , and its corollary , lawyers’ access to their clients’ disciplinary file . Furthermore , the ORG queried whether the current provisions of the legislation rule out the involvement of a lawyer during disciplinary proceedings . In this context , it referred to LAW of ORG ( see the next paragraph ) .

The recommendation of ORG ( CARDINAL , adopted on DATE at the PERSON meeting of ORG ) , insofar as relevant , reads as follows :

“ Discipline and punishment

CARDINAL Disciplinary procedures shall be mechanisms of last resort . ...

CARDINAL National law shall determine :

a. the acts or omissions by prisoners that constitute disciplinary offences ;

b. the procedures to be followed at disciplinary hearings ;

c. the types and duration of punishment that may be imposed ;

d. the authority competent to impose such punishment ; and

e. access to and the authority of the appellate process .

Any allegation of infringement of the disciplinary rules by a prisoner shall be reported promptly to the competent authority , which shall investigate it without undue delay .

Prisoners charged with disciplinary offences shall :

a. be informed promptly , in a language which they understand and in detail , of the nature of the accusations against them ;

b. have adequate time and facilities for the preparation of their defence ;

c. be allowed to defend themselves in person or through legal assistance when the interests of justice so require ;

d. be allowed to request the attendance of witnesses and to examine them or to have them examined on their behalf ; and

e. have the free assistance of an interpreter if they can not understand or speak the language used at the hearing .

CARDINAL Any punishment imposed after conviction of a disciplinary offence shall be in accordance with national law .

CARDINAL.CARDINAL The severity of any punishment shall be proportionate to the offence . ...

CARDINAL.CARDINAL Punishment shall not include a total prohibition on family contact . ...

A prisoner who is found guilty of a disciplinary offence shall be able to appeal to a competent and independent higher authority . ”


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 6-1

Anatoly Kovler;Ganna Yudkivska;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

At the material time the applicant was a physical education teacher in School no . CARDINAL in PERSON .

At TIME on DATE police officer PERSON and trainee PERSON . went to the applicant 's school and asked him to go with them to the police station to give an explanation with regard to a complaint by a parent , alleging that the applicant had hit his son . The policemen did not produce a summons to appear or an arrest warrant . The applicant agreed to go with them .

On arrival at the police station the applicant saw a red LOC car near the entrance and CARDINAL men nearby . CARDINAL of them was police officer PERSON and another was subsequently identified as former chief of police PERSON

B. and PERSON . were the first to go up the stairs and into the office . The applicant followed them and PERSON was behind him . PERSON pushed the applicant in the back . The applicant turned round and asked him why he had done that . PERSON replied that since the applicant considered himself tough enough to beat his pupils , he should take him on instead . With these words PERSON hit the applicant twice in the chest with the palm of his hand . Then the applicant was pushed into an office and PERSON told him that he had CARDINAL options , either to apologise to the pupil 's father and pay damages , or to be reported to ORG and fired . In reply , the applicant denied that he had ever beaten the pupil . PERSON said that he had no time to deal with the matter and left , while PERSON and PERSON . stayed .

Officer PERSON took the applicant 's statement and asked him to sign it . The applicant spotted an incorrect recording of his words , crossed a sentence through and signed the paper . B. got angry , jumped up from the table and hit the applicant in the face . Protecting his face with his hands , the applicant turned round to leave the office .

B. ordered PERSON . to stop the applicant , search him and put him in a cell , because their discussion was not yet over . PERSON . pulled the applicant out of the office into the hallway and put him against the wall . The applicant told PERSON that he needed to call the school and tell them that he would be late . PERSON and PERSON . started beating him ; the applicant fought back . PERSON stepped behind his back , bent his arms and pushed his head down , then made him lie on his stomach and handcuffed him . Claiming that the applicant had broken his glasses , PERSON . kicked him twice in the left shoulder . PERSON put the applicant in a cell behind bars and locked himself in the office with PERSON . After a while PERSON , a former classmate of PERSON . , arrived at the police station .

B. and PERSON . took the applicant to ORG , an investigator with the NORP district prosecutor 's office , where he stayed until TIME The applicant was then allowed to call the school . At TIME the headmaster and CARDINAL teachers picked him up . The applicant was taken to city hospital no . CARDINAL by ambulance . He underwent treatment in hospital until DATE .

On DATE the applicant lodged a complaint of ill - treatment in police custody and unlawfulness of his detention there with a district prosecutor 's office . He submitted , inter alia , that police officers had beaten him , handcuffed him and put him in a cell in order to make him confess to a crime he had not committed .

On DATE a medical expert from ORG examined the applicant . According to report no . CARDINAL , the expert observed the following injuries to the applicant 's body : an abrasion on the right cheekbone , a moderate swelling of the left temple , cheek and periorbital ( eye cavity ) area , purple bruises on both eyelids , several bruises on the left shoulder blade , abrasions on the left shoulder and right wrist , and neck instability . In the expert 's assessment , the injuries had been caused by the impact of hard blunt objects , probably on DATE . The expert took into account that before the incident of CARDINAL DATE the applicant had suffered from epileptic seizures and post - traumatic encephalopathy , noting that his pre - existing condition had nothing to do with the injuries sustained on DATE .

On DATE the investigator issued a decision refusing to institute criminal proceedings in respect of the applicant 's allegations of ill - treatment . Relying solely on the statements by PERSON , PERSON . and PERSON , the investigator found that while at the police station the applicant had used obscene language to them and had been warned that he would be detained for insulting ORG officials . He had continued to engage in verbal abuse and was then told that he was under arrest . While trying to escape , the applicant had hit PERSON . and broken his glasses . The police officers had applied physical force to restrain the applicant and handcuffed him . The cell within the police station was locked and senior operational officer PERSON . , who had the keys , was away at that time . The investigator concluded that PERSON and PERSON . had acted lawfully and that the applicant had not been placed in detention .

On DATE the prosecutor at ORG quashed the decision of DATE and ordered a more thorough investigation . In particular , he directed that confrontations be arranged between PERSON and the applicant and between PERSON . and the applicant , and that other people who might have seen P. on DATE be identified and examined .

On DATE the investigator issued a new decision refusing to institute criminal proceedings in respect of the ill - treatment of the applicant . It repeated word for word the decision of DATE , the only difference being that it was not stated whether the applicant had actually been placed in the cell .

The applicant contested the prosecutor 's decision before a court . On DATE the Promyshlennyi ORG dismissed his complaint . However , on DATE that judgment was quashed on appeal by ORG , which ordered a new examination of the matter by ORG .

On DATE ORG allowed the applicant 's complaint , finding that the prosecutor 's decision had been made prematurely and without detailed analysis of the applicant 's submissions . On DATE ORG quashed that judgment on appeal , noting that ORG had breached the principle of equality of arms in that it had not examined police officers PERSON and PERSON . The matter was remitted for fresh consideration .

On DATE ORG found that the prosecutor 's decision of CARDINAL DATE refusing to institute criminal proceedings had been unlawful , because it had been based on the materials of the criminal case against the applicant rather than on the applicant 's own submissions . ORG directed that the prosecutor carry out an appropriate inquiry into the applicant 's allegations of ill - treatment . On DATE ORG upheld that judgment on appeal .

On DATE , with reference to the statements made by B. and PERSON . , the investigator refused to open a criminal investigation into the applicant 's allegations . On DATE the supervising prosecutor quashed the decision of DATE for failure by the investigator to carry out an inquiry properly , and ordered further examination of the matter .

On DATE the investigator at ORG , issued a new decision refusing to institute criminal proceedings in respect of the alleged ill - treatment of the applicant . He heard statements from the headmaster and CARDINAL teachers from the applicant 's school , who testified that they had seen an abrasion on his temple and bruises on both wrists when they arrived at the police station on DATE . B. and PERSON . maintained that the applicant had attacked PERSON . when trying to escape after PERSON had told him that he would be detained for insulting a ORG official . PERSON stated that he had seen the applicant hitting PERSON . in the face . PERSON denied that he had hit the applicant on the stairs or that he had told him to apologise to the pupil 's father or else face dismissal . The investigator found that the use of force and handcuffs against the applicant had been lawful because the applicant had committed “ a crime ” against PERSON . The injuries had been caused to the applicant when putting a stop to his criminal behaviour , detaining him and neutralising his resistance .

NORP The applicant contested the investigator 's decision before a court , exposing inconsistencies in the statements by PERSON , PERSON . and PERSON said that he had not committed any crime and that there was no evidence that he had .

On DATE ORG allowed the applicant 's complaint and set aside the investigator 's decision of DATE as unlawful and unreasoned . ORG found that there were discrepancies in the statements by the police officers which called for a more detailed investigation . On DATE ORG upheld that judgment on appeal .

According to the Government , on DATE the investigator again refused to open a criminal investigation . His decision was quashed by ORG on DATE . On DATE the case file was transferred to ORG office . On DATE the investigator in charge of the case decided to close the inquiry . His decision was quashed by his superior on DATE and the inquiry was resumed . It appears that the proceedings are still pending .

On DATE the investigator instituted criminal proceedings against the applicant . He was charged with assaulting police trainee PERSON . on DATE .

On DATE the supervising prosecutor closed the case against the applicant . The prosecutor found that the only evidence against the applicant was the statements by PERSON and PERSON . The statement made by PERSON was not reliable because he said that he had gone to the police station on DATE rather than DATE , and because , in the applicant 's submission , PERSON had only appeared after the fight in the hallway was over .

On DATE the supervising prosecutor quashed the decision of DATE . The proceedings against the applicant were reopened and the case file was transferred to ORG for trial .

On DATE ORG fixed the first hearing for DATE .

The Government provided the following information in respect of the development of the trial :

On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment , suspended . The guilty verdict was founded on the statements by PERSON . , PERSON , P. and PERSON . , the medical expert report of DATE which recorded injuries to PERSON . 's face and neck , and physical evidence , namely PERSON . 's broken glasses . With respect to the applicant 's injuries , ORG determined that they had been caused unavoidably when his violent behaviour towards PERSON . was stopped . ORG also noted that there was no detention cell at the police station , but a cupboard , which remained locked at all times , officer PERSON . being the key - holder .

On DATE ORG quashed the conviction , finding substantial deficiencies in ORG reasoning , and thus determining that ORG had not established legal grounds for applying handcuffs and physical force to the applicant . Although PERSON had claimed that he had intended to arrest the applicant for insulting a ORG official , that claim was not supported by any report of an administrative offence . Furthermore , ORG had not verified the lawfulness of PERSON 's bringing the applicant into the police station , given that his superior had merely asked PERSON to make enquiries at the applicant 's school . In ORG view , ORG should have taken into account that liability for assault on a ORG official only arises in the event of resistance to lawful demands by that ORG official .

As regards the applicant 's injuries , ORG pointed out that ORG had not elucidated the discrepancies in the statements by PERSON and PERSON . as to how they had been caused . They had claimed that the applicant had banged his head against the floor , walls and door , but this would not have been possible if the applicant had been lying handcuffed on the floor .

Finally , ORG noted that ORG had premised its findings on the medical report concerning PERSON . That report had previously been declared inadmissible evidence because the examination had already been carried out on DATE whereas the criminal case against the applicant was instituted only on CARDINAL DATE .

On DATE ORG set down the trial for DATE . The Government provided the following information with regard to the development of the proceedings :

On CARDINAL DATE ORG again found the applicant guilty as charged and sentenced him to DATE imprisonment , suspended . It relied on the same evidence as before .

On DATE ORG quashed the conviction , noting that ORG had listed the evidence submitted by the defence but had not explained why it had rejected that evidence . Moreover , ORG finding as to the reliability of P. 's testimony was not sufficiently reasoned , given that PERSON had been PERSON . 's classmate for DATE and that they had initially attempted to hide that fact from the investigation . ORG had not ascertained the legal basis for the applicant 's detention at the police station after he had given the statement on the matter in connection with which his attendance had been required . No report of an administrative offence of insulting a ORG official had been compiled and a decision had been made not to bring a criminal prosecution against the applicant for that offence . Accordingly , ORG should have clarified under what lawful order the police officers had detained the applicant at the police station . Finally , ORG pointed out that ORG had failed once again to consider the admissibility of the medical report concerning PERSON . 's injuries . ORG remitted the matter for fresh examination .

On DATE ORG fixed the trial for DATE . The court chose to proceed without a preliminary hearing of the matter . The applicant appealed . By a final decision of CARDINAL DATE ORG upheld the decision of DATE on appeal .

On DATE the trial was completed at ORG .

On DATE ORG acquitted the applicant . The court found , inter alia , that PERSON and PERSON . had had no legitimate grounds to take the applicant to the police station or to question him there and that PERSON . had sustained injuries as a result of the applicant 's resistance to unlawful actions by the police officers . Furthermore , the court disregarded the testimonies by witnesses PERSON , PERSON . , PERSON and PERSON . noting that they had made false statements in order to evade responsibility for their unlawful acts .

According to the Government , on DATE ORG upheld the applicant 's acquittal on appeal .

The Civil Code of GPE provides as follows :

“ CARDINAL . Damage caused to a person as a result of unlawful conviction , unlawful criminal prosecution , ... unlawful pre - trial detention ... , unlawful administrative arrest ... be compensated [ by the ORG ] ... in full , irrespective of the fault of the [ police ] , prosecutor 's office or the court . ”

“ Compensation for non - pecuniary damage shall be afforded irrespective of the fault of the tortfeasor if :

... the damage is caused to a person as a result of his unlawful conviction , unlawful criminal prosecution , unlawful pre - trial detention ... , unlawful administrative arrest ... ”

The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor ( that is , the ORG agency which decided to prosecute , detain etc . ) . However , the notions of “ unlawful ” prosecution or detention ( see LAW ) are not developed in the relevant provisions of LAW .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before ORG by Ms J. Starling , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr C. Whomersley of ORG .

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

The applicant ’s wife died on DATE , leaving a child born in DATE . His second claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

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


CASE OF DAVLETKHANOV AND OTHER “CHERNOBYL PENSIONERS” CASES v. RUSSIA

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants , whose names and DATE of birth are tabulated below , took part in the cleaning - up operation at the GPE nuclear disaster site . They were subsequently registered disabled , becoming entitled to various social benefits .

On various dates the applicants successfully sued authorities for inflation adjustment of these benefits . The judgments became final .

On various dates the ORG of higher courts allowed the defendant authorities ' applications for supervisory review ( in the case of PERSON it was the applicant who initiated supervisory review of the judgment of DATE , asking reversal of its part unfavourable to him ) and quashed the judgments , considering that the lower courts misapplied the material law ( see details of the judgments in the table below ) .

The relevant domestic law governing the supervisory review procedure before DATE is summed up in the ORG 's judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALIX ) , from DATE in the ORG 's judgment in the case of GPE v. GPE ( no . CARDINAL , § MONEY , CARDINAL DATE ) .


The applicants are

PERSON , a NORP citizen born in DATE and resident in GPE , GPE ;

PERSON , an NORP citizen born in DATE and resident in GPE , GPE ;

PERSON , an NORP citizen also resident in GPE , GPE .

They are represented by ORG , GPE .

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

At TIME on DATE , the dredger “ Bowbelle ” collided with the passenger launch “ NORP ” on LOC , GPE . CARDINAL people , including the first applicant ’s son PERSON , the second applicant ’s son PERSON and the third and fourth ORG son PERSON , lost their lives . Some bodies were recovered from the wreck of the “ NORP ” while CARDINAL were recovered from the river . The last body was not found until DATE .

Due to the lapse of time in recovering some of the bodies from the river , the Coroner decided that the bodies recovered on or after DATE were to be considered , due to the degree of decomposition , as unsuitable for visual identification . He gave express authority for the removal of hands from bodies ( to enable fingerprints to be taken at the police laboratory ) where this was considered necessary . He did not address the question of whether the removal of hands was necessary even if dental records or other means of identification were either available or in the course of being obtained . The police were left with the impression that the Coroner required fingerprints to be taken in every case and that if it was necessary to remove the hands in order for fingerprints to be taken , this should be done . After the police fingerprinting experts advised that it was necessary to remove the hands to obtain the fingerprints , the police proceeded on CARDINAL and DATE to remove the hands from the GPE bodies on a blanket basis without any consideration as to whether identification purposes required the measure in each case . This meant that hands were removed from bodies notwithstanding the fact that some had already been positively identified by dental records and dental records for others were in the process of being obtained .

In respect of PERSON , his body was found at TIME on DATE . A national insurance card and student card with his name were found on the body . At TIME , following police enquiries , his dentist provided details to ORG . At some time on DATE , he was positively identified by his dental records . However the same day his hands were removed , possibly after the dental identification was made .

In respect of PERSON , his body was found early on DATE . A signet ring bearing the initials “ ORG ” was on the body . The second applicant delivered his dental records to the police TIME . At TIME , following police enquiries , his dentist provided dental records to ORG . At some time on DATE his hands were removed .

In respect of PERSON , the family provided details of identifying tattoos and body jewellery on DATE . His body was found early on DATE and the tattoos noted . On TIME , his body was positively identified . At some time on DATE , his hands were removed . At TIME on DATE the police were informed that his dental records had been received by ORG .

No relatives of the victims were informed that there was to be a removal of hands . Many did not become aware that the bodies had had parts removed until during the inquiry proceedings . The relatives were also denied access to the bodies to say their last farewell .

A number of inquiries were held into the collision and its tragic consequences . CARDINAL reports from ORG were published on DATE and DATE . A report on the formal investigation issued shortly thereafter .

In ORG dated DATE and published in ORG on DATE , Lord Justice PERSON found that the hands of CARDINAL of the CARDINAL victims found in the river were removed for the purposes of obtaining fingerprints and it was not until DATE that the families discovered what had happened . He made primary findings of fact that were undisputed by those participating in the inquiry , namely , that the Coroner gave authorisation for the hands to be removed from any bodies where it was not possible to take good fingerprints without doing so and that decisions were taken to remove hands on a purely technical basis without addressing the question of whether the deceased could be identified without his or her fingerprints being taken . He did not consider that any further primary facts would emerge if further evidence was called , noted that changes to and a tightening up of procedures had occurred and therefore reached the conclusion that the public interest did not require a public inquiry into this aspect .

Meanwhile , on DATE , the Deputy Prime Minister nonetheless requested Lord Justice PERSON to conduct a further non - statutory inquiry concerning the identification of victims . This inquiry was conducted in DATE . The report on ORG into LAW following ORG was published on DATE . The report , set out in CARDINAL volumes , reached findings of fact and made recommendations as to desirable and appropriate practice .

Concerning the removal of the hands , Lord Justice PERSON found that at the relevant time the hands ought not to have been removed for the purposes of identification unless , having regard to the absence of other sufficient means of identification , it was necessary to do so . The Coroner had failed to give proper consideration to the question in what circumstances the hands of particular deceased should be removed and had instead authorised , and in effect instructed , the police to remove the hands if it was necessary to obtain fingerprints , though in fact it had not been necessary to obtain fingerprints . He recommended , inter alia , that the methods used for establishing the identity of a deceased should , wherever possible , avoid any unnecessary invasive procedures or disfigurement or mutilation and that body parts should not be removed for purposes of identification except where necessary as a last resort .

As regarded the failure to inform the relatives of the removal of hands , he found that it was not the practice in DATE to provide such information and he did not criticise the Coroner for failing to provide it . He observed that the current practice was different as an open and honest approach was now recognised to be right in principle and relatives were now informed as soon as possible .

As regarded the alleged refusal to allow the relatives to view the bodies , he found that the Coroner had not given instructions that relatives were not to view the bodies . It was however likely that the Coroners’ officers or police liaison officers , acting from the best of motives , namely to avoid distress to relatives , sought to dissuade them from viewing the body . It was possible that some officers used language suggesting that viewing was prohibited rather than ill - advised . He did not find that it would be fair to blame the Coroner in that respect having regard to the standards of DATE . He observed however that as matters were perceived DATE , a coroner ought to consider how requests to view the body should be dealt with and give appropriate directions since the body was in his possession . Though there would be a need for sensitive and careful handling of the relatives’ feelings and for appropriate counselling before viewing took place , in principle the request of a relative to view the body , if maintained after appropriate counselling , should be respected .

Under LANGUAGE law , there is no “ property ” in a body . Neither a corpse nor parts of a corpse are capable of being property protected by legal rights ( NORP v. PERSON [ DATE ] QB CARDINAL ) . No cause of action lies in tort in relation to the mutilation of the body of a family member .


Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings

The case was referred to the ORG by ORG ( “ the Commission ” ) on DATE , within the DATE period laid down by LAW and LAW . It originated in an application ( no . CARDINAL/CARDINAL ) against GPE lodged with the Commission under LAW by a NORP national , Mr PERSON , on CARDINAL DATE .

NORP The facts of the case are to be found in the principal judgment delivered on DATE ( Series A no . CARDINAL , pp . CARDINAL , § § CARDINAL–CARDINAL ) . In that judgment the ORG held that the length of the applicant ’s detention on remand had exceeded the reasonable time referred to in LAW .

CARDINAL

The ORG accordingly reserved the whole of the question and invited the ORG and the applicant to submit , within DATE , their written observations on the matter and , in particular , to notify ORG of any agreement they might reach ( ibid . , p. CARDINAL , § § CARDINAL–CARDINAL , and point CARDINAL of the operative provisions ) .

Subsequently Mr PERSON , the Vice - President of the ORG and substitute judge in the ORG , replaced PERSON R. Ryssdal , who was unable to take part in the further consideration of the case , as President of the ORG , and PERSON , substitute judge , replaced PERSON , who was likewise unable to take part in the further consideration of the case ( Rules CARDINAL § CARDINAL , second sub - paragraph , and CARDINAL § CARDINAL of Rules of Court A ) .

After the failure of an attempt to reach a friendly settlement , the applicant and the ORG brought PERSON claim before the GPE tribunal de première instance by means of an application to appear voluntarily that was filed on DATE . The applicant sought MONEY ( BEF ) in respect of non - pecuniary damage , BEF CARDINAL in respect of pecuniary damage and BEF CARDINAL for the costs of his defence , plus compensatory interest . ORG requested the court to declare that its offer to pay the applicant the sum of CARDINAL , covering all heads of compensation , was “ sufficient ” .

On DATE the tribunal de première instance ordered ORG to pay the applicant CARDINAL in respect of non - pecuniary damage and LAW for the costs of his defence .

On DATE Mr PERSON asked the ORG to rule on the application of LAW . On DATE he lodged an appeal with ORG against the judgment of DATE . On DATE and DATE respectively the ORG and ORG submitted observations . On CARDINAL DATE the ORG decided that as the case was still before the NORP courts and that there was no reason to suppose that their final decision would be long in coming , it did not have to rule for the time being on the application of Article CARDINAL .

On DATE ORG delivered a judgment in which it increased the compensation for non - pecuniary damage to LAW , inclusive of compensatory interest , and upheld the judgment of DATE as to the remainder .

In the light of that judgment , ORG , the applicant and the Government submitted observations on the application of LAW and DATE .


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

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

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

The applicant ’s wife died on DATE . They had no children from the marriage . On or DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant appealed to ORG . On DATE the appeal was adjourned pending service of a skeleton argument by the applicant and a response by ORG . In DATE , the applicant was informed that the file relating to his appeal had gone “ missing ” .

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

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


Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant is a homosexual who is currently involved in a sexual relationship with another male adult . He is the President of ORG in GPE " . He states that he suffers great strain , apprehension and fear of prosecution by reason of the legal provisions which criminalise certain homosexual acts .

Sections CARDINAL , CARDINAL and CARDINAL of LAW , which predates LAW , provide as follows :

" CARDINAL . Any person who -

( a ) has carnal knowledge of any person against the order of nature ; or ( b ) permits a male person to have carnal knowledge of him against the order of nature , is guilty of a felony and is liable to imprisonment for DATE .

Any person who with violence commits either of the offences specified in DATE is guilty of a felony and liable to imprisonment for DATE .

Any person who attempts to commit either of the offences specified in Section CARDINAL is guilty of a felony and is liable to imprisonment for DATE , and if the attempt is accompanied with violence he is liable to imprisonment for DATE . "

Various Ministers of ORG had indicated in statements to newspapers dated CARDINAL DATE , DATE and DATE , that they were not in favour of introducing legislation to amend the law relating to homosexuality . In a statement to a newspaper on DATE the Minister of the ORG stated , inter alia , that although the law was not being enforced he did not support its abolition .

The relevant provisions of LAW , which came into force on DATE , read as follows :

" CARDINAL . Every person has the right to respect for his private and family life .

There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the LOC or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by LAW to any person . "

" CARDINAL . ...

Treaties , conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have , as from their publication in ORG , superior force to any municipal law on condition that such treaties , conventions and agreements are applied by the other party thereto . "

" CARDINAL . This LAW shall be the supreme law of the Republic .

No law or decision of ORG or of any of ORG and no act or decision of any organ , authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to , or inconsistent with , any of the provisions of LAW . "

" CARDINAL . Subject to the provisions of this LAW and to the following provisions of this LAW , all laws in force on the date of the coming into operation of this LAW shall , until amended , whether by way of variation , addition or repeal , by any law or communal law , as the case may be , made under LAW , continue in force on or after that date , and shall , as from that date be construed and applied with such modification as may be necessary to bring them into conformity with LAW .

Any court in the Republic applying the provisions of any such law which continues in force under paragraph CARDINAL of this Article , shall apply it in relation to any such period , with such modification as may be necessary to bring it into accord with the provisions of the LAW including LAW thereof .

In this Article -

‘ law’ includes any public instrument made before DATE of the coming into operation of this LAW by virtue of such law ;

‘ ORG includes amendment , adaptation and repeal . "

In the case of GPE v. GPE , pp . CARDINAL [ DATE ] ) the accused - a DATE soldier - was convicted of the offence of permitting another male person to have carnal knowledge of him contrary to section CARDINAL(b ) of LAW . The offence was committed in a tent within the sight of another soldier using the same tent . The accused had contended that section FAC ) was contrary to LAW . In its judgment of CARDINAL DATE ORG noted that , since the offence was not committed in private and since the accused was a soldier who was DATE at the time , the constitutional and legal issues raised by the case fell outside the ambit of the construction given to LAW article CARDINAL) by ORG in its GPE v. the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL ) . ORG , nevertheless , added that it could not follow the majority view of the ORG in the PERSON case and adopted the dissenting opinion of Judge PERSON . The court stated as follows :

" By adopting the dissenting opinion of Judge PERSON this ORG should not be taken as departing from its declared attitude that , for the interpretation of provisions of the LAW , domestic tribunals should turn to the interpretation given by the international organs entrusted with the supervision of its application , namely , ORG and ORG ...

In ascertaining the nature and scope of morals and the degree of the necessity commensurate to their protection , the jurisprudence of ORG and ORG has already held that the conception of morals changes from time to time and from place to place , and that there is no uniform NORP conception of morals ; that , furthermore , it has been held that state authorities of each country are in a better position than an international judge to give an opinion as to the prevailing standards of morals in their country ; in view of these principles this ORG has decided not to follow the majority view in the PERSON case , but to adopt the dissenting opinion of Judge PERSON , because it is convinced that it is entitled to apply the LAW and interpret the corresponding provisions of LAW in the light of its assessment of the present social and moral standards in this country ; therefore , in the light of the aforesaid principles and viewing the NORP realities , this ORG is not prepared to come to the conclusion that LAW ) of our LAW , as it stands , violates either the Convention or the LAW , and that it is unnecessary for the protection of morals in our country . "

There had been prosecutions and convictions in GPE for homosexual conduct in private between consenting adults up until the DATE judgment of ORG in the PERSON case ( loc . cit . ) . When this case was pending before ORG the Attorney - General requested the police not to continue with a prosecution under section CARDINAL because of apparent conflict between that provision and LAW article CARDINAL) of the Convention . Since that date the Attorney - General ’s office has not allowed or instituted any prosecution which conflicts with either LAW article CARDINAL) of LAW , in so far as they relate to homosexual behaviour in private between consenting adults .

Under LAW the Attorney - General is vested with competence to institute and discontinue criminal proceedings in the public interest . Although he could not prevent a private prosecution from being brought he can intervene to discontinue it .


Preliminary objection dismissed (exhaustion of domestic remedies);No violation of Art. 14+P1-1;No violation of Art. 8

András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

She was the partner of ORG ( ORG ) , a farmer whom she married in a religious ceremony in DATE and with whom she had CARDINAL children . PERSON died on DATE . The applicant stated that on that date , while she and her partner had been making preparations for an official marriage ceremony , PERSON had died following an illness .

On DATE the applicant brought proceedings before ORG on her own behalf and on behalf of her daughter PERSON seeking rectification of the entry concerning her in the civil status register . She requested that her religious marriage to PERSON be recognised and that her daughter be entered in the register as the deceased 's daughter .

NORP In a judgment of CARDINAL DATE ORG refused the applicant 's request concerning her religious marriage but granted the request for Emine to be entered in the register as ORG 's daughter . As no appeal was lodged , the judgment became final .

On an unspecified date the applicant requested the NORP retirement pension fund ( “ ORG ” ) to award her and her daughter PERSON a survivor 's pension and health insurance cover on the basis of her late partner 's entitlement . The fund refused the request .

On DATE the applicant applied to ORG to have that decision set aside . On DATE the latter decided that it had no jurisdiction ratione loci and that the case should be heard by ORG .

In a judgment of DATE ORG , in a ruling based on the judgment of ORG , found that the applicant 's marriage to ORG had not been validated . Accordingly , since the marriage was not legally recognised , the applicant could not be subrogated to the deceased 's rights . However , the court set aside the retirement fund 's decision in so far as it related to Emine and granted her the right to claim a pension and health insurance cover on the basis of her deceased father 's entitlement .

On DATE the applicant appealed on points of law to ORG . She argued that the extract from the civil status register stated that she was the wife of PERSON , who was registered in the village of PERSON . She explained that in DATE she had married PERSON in accordance with custom and practice . The couple had had CARDINAL children . The first CARDINAL children had been entered in the civil status register in DATE under their father 's name , while the last child , Emine , born in DATE , had been entered under her mother 's name in DATE . The applicant asserted that , unlike her CARDINAL children , she had been unable to claim a pension or health insurance cover based on her deceased partner 's entitlement .

In a judgment of DATE , served on the applicant on DATE , ORG upheld the impugned judgment .

Article CARDINAL of the Civil Code provides :

“ A man and a woman who wish to contract a marriage must apply together to the civil status registrar in the place of residence of either CARDINAL of them .

The civil status registrar [ who is to perform the ceremony ] shall be the mayor in the case of a municipality , or the official whom he or she has designated for the purpose , or the muhtar in the case of a village . ”

Articles CARDINAL to CARDINAL of the Civil Code lay down the substantive and formal conditions governing the solemnisation of marriage between men and women .

Article CARDINAL of the Code reads as follows :

“ At the close of the [ civil ] marriage ceremony the official shall issue the couple with a family record book .

No religious ceremony may be performed without the family record book being produced .

The validity of the [ civil ] marriage is not linked to the performance of a religious ceremony . ”

Article CARDINAL § CARDINAL of the Civil Code concerning maintenance payments provides that maintenance in the form of an allowance or periodic payments ceases to be due when the recipient remarries or CARDINAL of the CARDINAL parties dies , or if the recipient is living in a de facto marital relationship outside marriage , is no longer in financial need or has an immoral lifestyle .

The sixth paragraph of LAW reads as follows :

“ Any person who solemnises a religious marriage without having seen the document certifying that a marriage ceremony was performed in accordance with the law shall be liable to a term of imprisonment of DATE . ”

Article CARDINAL of the Code of Obligations concerns the determination of compensation awards depending on the circumstances and the seriousness of the fault . Article CARDINAL of the Code deals with reductions in compensation awards . Article CARDINAL concerns awards for damages following a death : persons deprived of financial support as the result of a death must receive compensation for loss of income .

Section CARDINAL(b ) and ( c ) of LAW ( Law no . CARDINAL ) lists the persons eligible for a survivor 's pension on the death of a spouse ( where a civil marriage has taken place ) .

Sections DATE of ORG ( Law no . ORG ) set out the circumstances in which the persons entitled under the deceased ( where there was a civil marriage ) may claim a survivor 's pension , and the method used to calculate the amount .

The aim of this PERSON is to safeguard women 's social , economic , cultural and political rights and to combat all forms of discrimination against women and improve their level of educational attainment .

As its title indicates , this PERSON ( repealed on DATE ) dealt with the recording in the civil status register under the father or mother 's name of children born within or outside civil marriage and with the regularisation of the situation of children whose parents had not contracted a civil marriage . The new Civil Code , which entered into force on DATE , no longer distinguishes between children born within and outside marriage .

In a judgment of CARDINAL DATE ( PERSON , PERSON ) , ORG of ORG quashed a first - instance judgment on the ground that a woman married in accordance with religious rites should be paid compensation under ORG DATE of LAW following the death of her partner in a work - related accident .

In a judgment of CARDINAL DATE ( E. CARDINAL/CARDINAL , PERSON ) , ORG of ORG set aside a first - instance judgment awarding compensation to a woman living in a religious marriage following the death of her partner in a work - related accident . After reiterating that marriage was a legal institution , that a religious union CARDINAL persons of opposite sex could not be recognised as a marriage and that section CARDINAL(c ) and ( b ) of LAW ( Law no . CARDINAL ) guaranteed compensation only to the children born of a marriage or a union other than marriage , ORG ruled that the children were entitled to social security cover following the death of their father , but that the father 's partner was not . The court held that in the absence of legislation on the subject , the social security agency could require the woman in question to repay the sums wrongly paid to her after her partner 's death .

By a judgment of DATE ( E. CARDINAL/CARDINAL , PERSON DATE ) , on the basis of LAW , ORG of ORG set aside a judgment of the lower court on the ground that a former husband was no longer required to pay maintenance to his ex - wife since the latter was living in a de facto marital relationship with another man , albeit without a marriage certificate , and the couple had a child together .

In a judgment of DATE ( E. CARDINAL/CARDINAL , PERSON ) ORG overturned a criminal court ruling acquitting an imam who had performed a religious marriage ceremony without first checking the document proving that a civil marriage had taken place in accordance with the law .

In a judgment of CARDINAL DATE ( PERSON , PERSON ) ORG of the plenary ORG ( PERSON ) upheld a first - instance judgment , thereby overturning the judgment of ORG , on the ground that the children and surviving partner from a religious marriage should be awarded compensation after their father and partner was accidentally killed ( by police bullets fired on the fringes of a demonstration ) . ORG observed that the action had been brought by the surviving partner on her own behalf and that of her children , that CARDINAL children had been born of the relationship , resulting from a religious marriage , and that following the man 's death , the children and their mother had been deprived of his financial support ( destekten yoksun kalma tazminatı ) . It pointed out that , while domestic law did not afford protection to or validate such a union , the couple had had children together whose births had been recorded under the parents ' names in the civil status register and the deceased had supported the family financially . Accordingly , it awarded compensation to the children and their mother on account of the man 's death .

As cohabitation on the basis of religious marriage is a social reality , the courts apply CARDINAL principles of civil liability in awarding compensation to women whose partner in a religious marriage has died :

( a ) compensation for pecuniary and non - pecuniary damage ( maddi ve manevi tazminat ) on the basis of ORG CARDINAL and CARDINAL of the Code of Obligations ;

( b ) compensation for loss of financial support ( destekten yoksun kalma tazminatı ) following a death , on the basis of LAW .

In the specific context of LAW , the legislation refers to couples living together as de facto man and wife without having contracted a civil marriage . In practice , this means religious marriage , and there is no requirement to continue paying maintenance to the other party in the situations contemplated ( see paragraph CARDINAL above ) . However , ORG does not award the CARDINAL types of compensation referred to in the previous paragraph in the case of same - sex or adulterous relationships , which are deemed to run counter to morals ( see , for example , the judgment of ORG of ORG of DATE ( E. CARDINAL/CARDINAL , PERSON ) ) .

The legislature does not recognise any form of opposite - sex or samesex cohabitation or union other than civil marriage . The domestic courts interpret the law very strictly . The fact that the general principles articulated in LAW and LAW are applied can not be viewed as tacit or de facto recognition of religious marriage . Although the domestic courts award surviving partners compensation on the basis of general principles of civil liability DATE which can not be equated with the principles governing social security or civil marriage – they never grant them survivor 's pensions or social security benefits based on the deceased partner 's entitlement .

Under NORP law , a religious marriage requires the presence of CARDINAL male witnesses ( or CARDINAL man and QUANTITY women ) . The marriage is solemnised simply by the couple exchanging vows in the presence of the witnesses , without the need for a cleric ( imam or equivalent ) to be present or for an official document to be drawn up . Under the NORP empire , following a decision taken by the supreme NORP religious authority , the Sheikh - ul - Islam , the presence of an imam or a kadı ( judge ) became compulsory for all marriage ceremonies , on pain of penalties . This practice became widely established , and nowadays the presence of an imam is required . NORP marriages also include a pecuniary element in the form of a dowry ( mahr ) .

NORP law , save in some specific circumstances ( for instance , the death of the husband ) , recognises repudiation ( talâk ) as the sole means of dissolving a marriage . This is a unilateral act on the part of the husband , who dismisses his wife and thereby severs the marital bond . It entails the husband explicitly repudiating his wife by saying the required form of words CARDINAL times to her ( for example : “ I repudiate you ” or “ You are repudiated ” ) .

GPE was founded on a secular basis . Before and after the proclamation of the Republic on DATE , the public and religious spheres were separated through a series of revolutionary reforms : the abolition of the caliphate on DATE ; the repeal of the constitutional provision declaring ORG the religion of the ORG on DATE ; and , lastly , on DATE , an amendment to the LAW according constitutional status to the principle of secularism ( see LAW . The principle of secularism was inspired by developments in NORP society in the period DATE and the proclamation of GPE see PERSON v. GPE [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINALXI ) .

One of the major achievements of LAW was the institution of compulsory monogamous civil marriage between men and women , requiring religious marriages to be preceded by a civil ceremony . The new LAW , which entered into force on DATE , does not cover any forms of cohabitation other than marriage . The national parliament chose not to enact legislation in this sphere .

According to ORG ( Diyanet İşleri Başkanlığı ) , imams , who are appointed by the ORG , are expressly required to verify that the future husband and wife have been married by a civil status registrar . The “ religious ” ceremony before an imam appointed by the ORG is a mere formality which entails little solemnity . The civil marriage takes precedence over the religious marriage .

Of the CARDINAL countries surveyed in a comparative - law study , CARDINAL ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) recognise varying forms of religious marriage . Exclusively religious marriages are not recognised and are treated on the same footing as cohabitation in the following countries : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , “ the former GPE ” and GPE .

Of the CARDINAL countries surveyed , CARDINAL ( GPE , GPE , GPE and GPE ) expressly recognise cohabitation . In other countries , although such arrangements are not expressly recognised , they produce legal effects to one degree or another . This is the case in GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE . However , the majority of GPE do not recognise cohabitation at all ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE and GPE ) .

In CARDINAL countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” and GPE ) , the national legislation allows the surviving spouse , subject to certain conditions , to claim benefits based on the deceased 's social security entitlements . Of these countries , CARDINAL ( GPE , GPE , GPE , GPE , the GPE and GPE ) extend this right to cohabitants . In most of the member ORG , only married couples who have contracted a civil marriage qualify for health insurance cover on the death of CARDINAL of the partners ; hence , cohabitants are not eligible .

In GPE , GPE , the GPE , GPE , GPE and GPE a survivor 's pension may be awarded to a surviving cohabitant in certain circumstances . In the vast majority of countries which have a survivor 's pension , cohabitants are not eligible to receive it .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On the same date the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

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


Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - Government to pay outstanding judgment debt;Non-pecuniary damage - financial award

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

NORP In DATE the applicant had a serious accident at work and from that time onwards was entitled to occupational disability benefit – including compensation for a purchase of a car designed for disabled persons DATE from the GPE coal mine ( a ORG owned entity , hereafter “ the Coal Mine ” ) .

On DATE ORG awarded the applicant UAH CARDINAL ( approximately EUR CARDINAL ) against the Coal Mine for its failure to pay compensation for a car .

The judgment became effective and was sent for execution to ORG ( hereafter “ ORG ” ) , which on DATE instituted enforcement proceedings in the applicant 's case .

On DATE the ORG informed the applicant that the attachment and sale proceedings concerning ORG assets were suspended due to the moratorium on the forced sale of the property of ORG - owned enterprises .

On DATE ORG ordered ORG liquidation , designating ORG as its successor . The coal mine 's liquidation commission was established and on DATE it was entrusted with the enforcement of the applicant 's writ of execution .

On DATE ORG ordered that ORG split up and its funds be divided between the Luganskuglrestrukrutizatsyya and the Donetskvuglrestrukrutizatsyya Companies .

On DATE the writ of execution was returned unenforced to ORG , which reopened the enforcement proceedings . On account of the liquidation of the coal mine and ORG on DATE suspended the proceedings pending the replacement of the debtor in the applicant 's case .

From the parties ' submissions it appears that the judgment in the applicant 's favour remains unenforced .

Some of the relevant domestic law is set out in the judgments of CARDINAL July CARDINAL in the case of ORG v. GPE ( no . CARDINAL , § § DATE ) , of DATE in the case of GPE v. GPE ( no . GPE , § § DATE ) and of DATE in the case of ORG v. GPE ( no . GPE , § § CARDINAL and CARDINAL ) .


Violations of Art. 14+8;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

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

The applicants live together in a homosexual relationship . The second applicant is a civil servant and , for the purpose of accident and sickness insurance cover , he is insured with ORG ( “ the ORG ” ) ( PERSON ) . On DATE the first applicant asked the ORG to recognise him as the dependent ( Angehöriger ) and to extend the second applicant 's insurance cover to include him . He submitted that section CARDINAL(CARDINAL ) of ORG ( “ the ORG ” ) ( FAC ) only referred to persons of the opposite sex living with the principally insured person and running the common household without receiving any payment . But , because there were no good reasons for excluding persons living in a homosexual relationship from the privilege of extended insurance cover , section CARDINAL(CARDINAL ) should be interpreted as also including homosexual partners .

On DATE the ORG dismissed the request , holding that , because the first applicant was of the same sex as the second applicant , his request had to be dismissed . This decision was served on the second applicant who , on DATE , filed an objection .

On DATE the Mayor of GPE , acting as the Regional Governor , quashed the decision on procedural grounds . He held that the ORG should have served its decision on the first applicant .

On DATE the ORG dismissed a request by the first applicant and this time served the decision on him . The first applicant filed objections .

NORP The mayor of GPE confirmed the ORG 's decision on DATE . Thereupon the first applicant lodged a complaint with ORG in which he argued that the exclusion , under section CARDINAL ) of the ORG , of homosexual couples from the extension of insurance cover was in breach of LAW , read in conjunction with LAW , of the LAW and was therefore unconstitutional .

On DATE ORG declined to deal with the first applicant 's complaint . Referring to its previous case - law , ORG found that , in the issue at hand , the legislator had had a very wide margin in which to reach a decision and the decision taken had been within that margin .

On an unspecified date ORG granted a request by the first applicant for the case to be transferred to ORG . On DATE the first applicant supplemented his complaint to ORG .

On DATE ORG dismissed the first applicant 's complaint . It found that the authorities had correctly concluded that section CARDINAL ) of the ORG only applied to heterosexual partnerships . There was no issue under LAW , read in conjunction with LAW , because LAW did not guarantee specific social rights , and the case at issue did not therefore fall within the ambit of that provision . The exclusion of homosexual partnerships from the scope of section CARDINAL ) of the ORG also complied with the principle of equality because that difference in treatment was justified . While it was true that , where persons of different sex living together in a household in which CARDINAL of them was running that household while not being gainfully employed , it was , as a rule , safe to conclude that they were cohabiting in a partnership , that was not the case if QUANTITY persons of the same sex were living together in a household . In the absence of any possibility to register a homosexual partnership , it would have been necessary to undertake delicate enquiries into the most intimate sphere of the person concerned . That difference in the factual situation justified different treatment in law .

NORP In proceedings instituted by ORG to examine the constitutionality of CARDINAL similar provisions to section CARDINAL ) of the ORG relating to extending insurance cover to relatives , on DATE ORG decided to quash section CARDINAL(CARDINALb ) of ORG ( “ the ORG ” ) ( Allgemeines Sozial - versicherungsgesetz ) and section CARDINAL(CARDINAL ) of LAW ( “ the NORP ” ) ( Gewerbliches Sozialversicherungsgesetz ) . ORG explicitly referred to the judgment of ORG in the case of PERSON v. GPE ( see PERSON v. GPE , no . PERSON , DATE ) and held that the CARDINAL provisions in which the extension of insurance cover to unrelated persons living with the insured were discriminatory because they were restricted to persons of the opposite sex .

On DATE LAW ( “ the SRAA ” ) ( Sozialrechts - Änderungsgesetz ) entered into force amending in particular the ORG , the ORG and also section CARDINAL of the ORG . A second amendment to section CARDINAL of the ORG entered into force on DATE .

Before DATE section CARDINAL ) of ORG ( Beamten- , Kranken- und Unfallversicherungs - gesetz ) , in so far as relevant , provided as follows :

“ ( CARDINAL ) Relatives are entitled to benefits , if they have their ordinary residence in GPE and are neither health insured under the provisions of this LAW nor any other provision of law ...

( CARDINAL ) A person belonging to the group of parents , ... step - parents and foster parents , children , ... stepchildren and foster children , grandchildren or brothers and sisters of the insured or a person of the opposite sex who is not related to him or her who has been living with him or her in the same household for DATE and since then has been doing the domestic work for the insured without payment , unless there is a spouse living in the same household who is able to work , shall be regarded as a member of the household . Only CARDINAL person can be a member in this sense . ”

After the amendment to ORG on DATE , section CARDINAL(CARDINAL ) remained the same , but a new paragraph ( CARDINAL ) was introduced . It read as follows ;

“ A person who is not a relative of the insured and who has been living with him or her in the same household for DATE and since then is doing the domestic work for him or her without payment , unless there is a spouse living in the same household who is able to work , shall be regarded as a member of the common household , if

( a ) he or she is bringing up CARDINAL or more children living in the same household ... or did so for DATE ;

( b ) he or she is entitled to benefits for the payment of nursing care ( at least level CARDINAL ) pursuant to section CARDINAL of ORG or pursuant to the provisions of ORG ;

( c ) he or she is doing nursing work for the insured who is entitled to benefits ( at least level CARDINAL ) for the payment of nursing care pursuant to ORG or pursuant to the provisions of ORG . ”

On DATE a further amendment to ORG entered into force . Section CARDINAL(CARDINAL ) no longer applied to non - related persons , but only to relatives of the insured . The newly introduced paragraph CARDINAL was only slightly modified . These provisions , in so far as relevant , read as follows :

“ ( CARDINAL ) A person belonging to the group of parents , ... step - parents and foster parents , children , ... stepchildren and foster children , grandchildren or brothers and sisters of the insured who has been living with him or her in the same household for DATE and since then has been doing the domestic work for the insured without payment , unless there is a spouse living in the same household who is able to work , shall be regarded as a member of the household . He or she shall also be considered a member if he or she is no longer able to do the domestic work . CARDINAL person can be a member in this sense .

( CARDINAL ) A person who is not a relative of the insured and who has been living with him or her in the same household for DATE and since then has been doing the domestic work for him or her without payment , unless there is a spouse living in the same household who is able to work , shall be regarded as a member of the common household , if

( a ) he or she is bringing up CARDINAL or more children living in the same household ... or did so for DATE , or

( b ) he or she is doing nursing work for the insured who is entitled to public benefits at least level CARDINAL pursuant to ORG or pursuant to the provisions of ORG . ”

The last amendment to ORG which entered into force on DATE was accompanied by a transitory provision . Section CARDINAL ) and ( CARDINAL ) read as follows :

“ ( CARDINAL ) Persons of the opposite sex and not related to the insured , who , pursuant to section CARDINAL ) as in force on DATE , had been entitled to benefits as relatives and who on that date had already reached DATE of age remain entitled to benefits as relatives until the relevant circumstances change .

( CARDINAL ) Persons of the opposite sex and not related to the insured , who , pursuant to section CARDINAL ) as in force on DATE , had been entitled to benefits as relatives and who on that date had not yet reached DATE of age remain entitled to benefits as relatives until the relevant circumstances change , but at most until DATE . ”