Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 3 - Prohibition of torture;No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 7 - No punishment without law;No violation of Article 11 - Freedom of assembly and association;No violation of Article 13 - Right to an effective remedy;No violation of Article 14+5 - Prohibition of discrimination (Article 5 - Right to liberty and security);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial);No violation of Article 14+7 - Prohibition of discrimination (Article 7 - No punishment without law);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

The applicant claimed that in DATE , when she was DATE , she had permanently settled in GPE ( northern GPE ) , where she got married and had CARDINAL sons . She had her home and other immovable property there . In order to substantiate her claim to ownership , the applicant produced an “ affirmation of ownership of NORP - occupied immovable property ” issued by GPE , according to which her properties could be described as follows :

- GPE , ORG , plot no . CARDINAL , block C , sheet / plan CARDINAL , description : buildings with house , yard and shop on ground floor and house on the first floor ; use : residence ; area of the houses : CARDINAL m² each ; share : ¾.

The applicant submitted that the property described above had been transferred to her by way of gift from her husband , Mr PERSON , on DATE ( Declaration of transfer no . CARDINAL ) . The latter had acquired it on DATE by way of gift ( Declaration of transfer no . D-CARDINAL ) from his mother , who had become the owner of the whole property in DATE . The applicant produced a copy of the CARDINAL above - mentioned declarations of transfer .

The applicant also claimed to have a “ possession ” within the meaning of LAW No . CARDINAL with regard to the following property :

- PERSON , provisional no . DATE , D/CARDINAL ; description : building site under subdivision ; share : whole .

NORP In particular , the applicant declared that she had entered into a contract to purchase the site on DATE and had paid the purchase price in DATE instalments . The sale price was ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) and the applicant had given a lump - sum of ORG CARDINAL ( approximately ORG CARDINAL ) as an advance payment . The remaining sum of ORG CARDINAL,CARDINAL should have been paid as follows : ORG CARDINAL on DATE DATE , plus DATE instalments of not less than ORG DATE ( approximately EUR DATE ) . All the instalments had been paid off , with the final one being paid on DATE . In accordance with the contract , the transfer was to be effected on payment of the full sale price . However , the applicant 's title to the land was not registered owing to the NORP intervention . The applicant produced the contract of sale and copies of the receipts of payment .

NORP The applicant submitted that since the DATE NORP intervention she had been deprived of her property rights , since her property was located in the area that was under the occupation and control of the NORP military authorities . She had made an attempt to return to her home and property on DATE , but had not been allowed to do so by the NORP military authorities . They had prevented her from having access to and using her house and properties .

On DATE , the applicant joined an anti - NORP demonstration in the ORG area in GPE in which the applicants in the GPE and PERSON v. GPE and PERSON v. GPE cases ( see below ) also took part .

According to an affidavit sworn by the applicant before ORG on DATE , the demonstration of DATE was peaceful and was held on DATE of the NORP intervention in GPE , in support of the missing persons and to protest against human rights violations .

The applicant and other women had gathered in the PERSON church , where a service was in progress . While she was in the chapel , she heard cries coming from outside and at the same time saw NORP policemen entering the church , indiscriminately grasping women , beating them and pulling them out .

A policeman had seized the applicant by one hand and twisted the other backwards . He started to push her out of the church and to hit her fiercely with a baton and with his knee in the lower part of her head and on the back of her neck as well as on other parts of her body . She felt electricity passing through her body and realised that the baton was electric . The applicant and other women were forcefully dragged into the area controlled by the authorities of the “ GPE ” ( the “ GPE ” ) .

She was then arrested and taken by bus to the so - called “ LOC ” . During the journey she was subjected to assaults , beatings and gestures of a sexual nature by the officers who had detained her . The crowd outside the garage was swearing , shouting abuse and threats and throwing stones at the garage , some of which came through the roof . Some of the NORP policemen threatened to open the doors and let the crowd lynch the detainees . At the garage there were also QUANTITY ORG men who merely acted as observers . CARDINAL of the women detainees ( PERSON – see application no . MONEY ) was seriously beaten . At TIME the applicant was interrogated . Her interrogation took place in NORP . The applicant lied when asked for details concerning the members of her family . She was told to sign a statement in NORP but did not do so as she did not understand NORP and considered that signing the statement would have been tantamount to recognising the “ GPE ” . On TIME DATE she was given some food and water and then taken to court where she was remanded in custody for TIME . At the hearing , an interpreter explained the procedure to the accused . The applicant understood that she was accused of having violated the borders of the “ TRNC ” .

She was subsequently transferred to a prison outside GPE , where she was kept in a cell with another QUANTITY women . Since there were not enough mattresses she and the other detainees in her cell took turns to lie down ; however , she could not sleep due to the severe pain from the blows she had received . During TIME the applicant and the other detainees were harassed by the guards and told that the long - term prisoners would rape them . The toilets and showers were filthy and had no doors so the guards could see the detainees bathing . Essential means of hygiene were lacking . At TIME , the guards continually picked out individual detainees for checks .

At TIME on DATE , the applicant was taken to court . She had no legal representation and the quality of the interpretation was poor ; the applicant felt that the interpreter was not translating all of what was being said . The judge asked whether the accused wanted legal representation ; they replied that they would only accept as defence counsel a lawyer registered with the bar association of GPE . As a result , they were not assisted by a lawyer . CARDINAL of the accused spoke on behalf of the others .

NORP Some prosecution witnesses were interrogated . They lied about the basic facts surrounding the demonstration and the circumstances of the arrest and the accused tried to protest . However , they were told to stay quiet if they did not want to be handed over to the vociferous crowd that had gathered outside the courtroom .

At TIME on DATE the court sentenced the applicant to DATE imprisonment and to a fine of QUANTITY ( ORG ) DATE ( EUR ) – with DATE in prison in default of payment within TIME . She was brought back to prison where she was given some personal hygiene items that had been sent by ORG .

On DATE the applicant was released . At the time of her release she was examined by ORG doctors , who took some notes , and then transferred to southern GPE . On DATE she made a statement to GPE police and was also examined by a Government doctor at ORG . The applicant produced a medical report issued on that same day by Dr. PERSON , a medical officer . This document reads as follows :

“ On DATE and at TIME I was requested by ORG to examine PERSON from GPE and presently living at CARDINAL FAC in GPE .

PERSON alleges that on DATE she was hit ( kicks , fists and use of police baton ) on various parts of her body by NORP pseudo - policemen in the area of ORG in GPE .

At the examination the following were found :

Multiple and extensive bruises on various parts of the body , particularly obvious and serious in the areas of the right buttock and the posterior surface of the left hip .

GPE and swelling on the left elbow joint .

Pain at various parts of the body particularly in the region of the ribs ( both sides ) , the neck , the left elbow , both buttocks , the coccyx and the waist .

X - ray examination was requested . ”

The applicant alleged that she continued to suffer from the effects of the beatings inflicted on her .

The Government alleged that the applicant had participated in a violent demonstration with the aim of enflaming anti - NORP sentiment . The demonstrators , supported by the NORP - Cypriot administration , were demanding that the “ GPE ” in GPE should be dismantled . Some carried NORP flags , clubs , knives and wire - cutters . They were acting in a provocative manner and shouting abuse . The demonstrators were warned in NORP and LANGUAGE that unless they dispersed they would be arrested in accordance with the laws of the “ GPE ” . The applicant was arrested by the NORP - NORP police after crossing the ORG buffer zone and entering the area under NORP - Cypriot control . The NORP - NORP police intervened in the face of the manifest inability of the NORP - Cypriot authorities and ORG in GPE to contain the incursion and its possible consequences .

No force was used against demonstrators who did not intrude into the “ GPE ” border area and , in the case of demonstrators who were arrested for violating the border , no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned . No one was ill - treated . It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing . Had the NORP police , or anyone else , assaulted or beaten any of the demonstrators , the ORG Secretary General would no doubt have referred to this in his report to ORG .

The applicant was charged , tried , found guilty and sentenced to a short term of imprisonment . She pleaded not guilty , but did not give evidence and declined to use the available judicial remedies . She was asked if she required assistance from a lawyer registered in the “ GPE ” , but refused and did not ask for legal representation . Interpretation services were provided at the trial by qualified interpreters . All the proceedings were translated into NORP .

In his report of CARDINAL DATE on the ORG operations in GPE , the ORG Secretary General stated , inter alia :

“ A serious situation , however , arose in DATE as a result of a demonstration by NORP Cypriots in GPE . The details are as follows :

( a ) In TIME of DATE , some CARDINAL NORP Cypriot demonstrators , mostly women , forced their way into the ORG buffer zone in the ORG area of GPE . The demonstrators broke through a wire barrier maintained by ORG and destroyed an ORG observation post . They then broke through the line formed by ORG soldiers and entered a former school complex where ORG reinforcements regrouped to prevent them from proceeding further . A short while later , NORP - Cypriot police and security forces elements forced their way into the area and apprehended QUANTITY persons , CARDINAL of them women ;

( b ) The ORG school complex is situated in the ORG buffer zone . However , the NORP forces claim it to be on their side of the cease - fire line . Under working arrangements with ORG , the NORP - Cypriot security forces have patrolled the school grounds for DATE within specific restrictions . This patrolling ceased altogether as part of the unmanning agreement implemented DATE ;

( c ) In TIME of QUANTITY DATE , CARDINAL NORP Cypriots gathered at the main entrance to the ORG protected area in GPE , in which the ORG headquarters is located , to protest the continuing detention by the NORP - Cypriot authorities of those apprehended at PERSON . The demonstrators , whose number fluctuated CARDINAL , blocked all ORG traffic through this entrance until DATE , when the NORP - Cypriot authorities released the last QUANTITY detainees ;

( d ) The events described above created considerable tension in the island and intensive efforts were made , both at the ORG headquarters and at GPE , to contain and resolve the situation . On DATE , I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the ORG buffer zone as well as their responsibility to ensure that that area was not violated . I also urged the NORP - Cypriot authorities to release without delay all those who had been detained . On DATE , the President of ORG announced that he had conveyed to the representatives of all the parties , on behalf of the members of ORG , the ORG 's deep concern at the tense situation created by the incidents of DATE . He also stressed the need strictly to respect the ORG buffer zone and appealed for the immediate release of all persons still detained . He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations . ”

The applicant produced CARDINAL photographs taken at different times during the demonstration on DATE . Photographs CARDINAL to CARDINAL were intended to show that , notwithstanding the deployment of the NORP - NORP police , the demonstration was peaceful . In photographs CARDINAL members of the NORP - NORP police are seen breaking up the ORG cordon . The final set of photographs shows members of the NORP - NORP police using force to arrest some of the women demonstrators .

Section CARDINAL of LAW reads as follows :

“ Where CARDINAL or more persons assemble with intent to commit an offence , or , being assembled with intent to carry out some common purpose , conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace , or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly .

It is immaterial that the original assembly was lawful if , being assembled , they conduct themselves with a common purpose in such a manner as aforesaid .

When an unlawful assembly has begun to execute the purpose , whether of a public or of a private nature , for which it assembled by a breach of the peace and to the terror of the public , the assembly is called a riot , and the persons assembled are said to be riotously assembled . ”

According to section CARDINAL of LAW , any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for DATE .

Section CARDINAL of the Criminal Code provides :

“ Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour , and is liable to imprisonment for DATE , and his arms or weapons shall be forfeited . ”

According to section CARDINAL of LAW , it is an offence to carry a knife outside the home .

The relevant part of LAW , section CARDINAL of GPE states :

" ( CARDINAL ) Any officer may , without warrant , arrest any person -

( b ) who commits in his presence any offence punishable with imprisonment ;

( c ) who obstructs a police officer , while in the execution of his duty ... "

Section CARDINAL of Law No . CARDINAL/CARDINAL states :

" ... Any person who enters a prohibited military area without authorisation , or by stealth , or fraudulently , shall be tried by a military court in accordance with LAW ; those found guilty shall be punished . "

Subsections CARDINAL ( CARDINAL ) and ( CARDINAL ) of the Aliens and Immigration PERSON read as follows :

“ CARDINAL . No person shall enter or leave the Colony except through an approved port .

Any person who contravenes or fails to observe any of the provisions of subsections ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding QUANTITY or to both such imprisonment and fine . ”


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

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

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

The applicant has a son born out of wedlock in DATE . He acknowledged his paternity of the child DATE . As the child ’s parents did not make a joint custody declaration ( gemeinsame GPE ) , the child ’s mother obtained sole custody ( alleinige PERSON ) pursuant to LAW CARDINAL of the German Civil Code ( the “ Civil Code ” – see Relevant domestic law below ) .

The applicant and the child ’s mother had been living together with the child in a joint household in GPE from DATE until DATE , when the parents separated and the mother moved to another flat in the neighbourhood . In the period from DATE each parent took care of the child on an equal alternating DATE basis .

In DATE the mother and son moved from GPE to GPE , located QUANTITY ( km ) from GPE , without notifying the applicant . The mother alleged that she had moved since the applicant ’s behaviour in the past had been detrimental to the child ’s well - being .

In written submissions to the Berlin - Pankow - Weißensee District Court dated DATE and DATE the applicant requested that custody of the child or , alternatively , the right to determine where the child should reside ( ORG ) be transferred to him . The applicant further asked to be granted contact with his son on a DATE alternating basis and , in addition , requested an interim measure for the provisional regulation of his access to the child .

By a letter of DATE the court informed the applicant that the matter had been referred to ORG , where CARDINAL separate proceedings were instituted , CARDINAL related to the transfer of the right of custody to the applicant ( file no . CARDINAL F CARDINAL/CARDINAL ) and the other dealing with the applicant ’s request to be granted contact with his son ( file no . CARDINAL F CARDINAL/CARDINAL ) . Subsequently , the proceedings were to a large extent conducted simultaneously .

On DATE the applicant brought criminal charges of , inter alia , child abduction against the mother . The preliminary proceedings ( ORG ) instituted against the mother as a consequence were discontinued by the public prosecution authorities . Following allegations by the mother that the applicant had sexually abused the child , preliminary criminal proceedings were instituted against the applicant by ORG .

On DATE ORG ( DATE ) informed ORG that owing to the mother ’s refusal to communicate it was not in a position to give an opinion on how contact between father and son should be arranged .

During a hearing in the contact rights proceedings ( file no . CARDINAL F CARDINAL/CARDINAL ) on DATE , the applicant requested to be granted unsupervised access to his son .

By a decision of DATE in the interim proceedings , ORG provisionally granted the applicant supervised access in cooperation with the PERSON branch of ORG ( PERSON ) , located in the vicinity of GPE . The court rejected the applicant ’s request for unrestricted contact , stating that such a decision could only be rendered in the main proceedings after the court had obtained an expert opinion on possible contact arrangements between the applicant and his son .

The parents and the child were heard on CARDINAL and DATE respectively in the main proceedings ( files CARDINAL . CARDINAL F CARDINAL/CARDINAL and CARDINAL F CARDINAL/CARDINAL ) . The child expressed his wish to stay with each of his parents on an alternating DATE basis .

By a decision of DATE ORG ordered a psychological expert opinion on the question of what attribution of custody and contact rights would be in the child ’s best interests , and appointed an expert . Both parents objected to the court ’s decision and to the expert appointed . Thereafter , the mother refused to cooperate with the expert .

DATE and DATE the applicant had supervised contact with his son on CARDINAL occasions at the LOC of the PERSON branch of ORG . He then discontinued the visits considering that the conditions under which access to his son took place were detrimental to the child ’s well - being .

By a letter of DATE , the GPE public prosecution authorities informed the applicant that the preliminary criminal proceedings instituted against him in DATE on suspicion of sexual abuse of his son had been discontinued .

On CARDINAL and DATE the applicant renewed his interim request for unsupervised access , maintaining that following the discontinuation of the preliminary criminal proceedings there was no longer any reason to subject contact with his son to restrictions .

In a decision of DATE confirming the dismissal of a complaint of bias lodged by the applicant against the acting judge at ORG , ORG indicated that an abusive obstruction of the applicant ’s contact with the child by the mother could trigger doubts regarding her capacity to raise the child and even entail the withdrawal of her right to determine where the child should reside .

By a decision of DATE ORG ordered the parties to cooperate with the expert , failing which a fine of MONEY ( ORG ) could be imposed .

On DATE the applicant spent TIME alone with his son with the consent of the mother .

A first meeting between the expert and the mother took place in DATE .

On DATE ORG quashed ORG decision of DATE , holding that while parents were under no legal obligation to have their child examined by an expert and could therefore not be subject to a fine , persistent refusals by the mother to cooperate with the expert in the case at hand could nevertheless raise doubts as to her capacity to exercise parental authority .

By a decision of CARDINAL DATE ORG rejected the applicant ’s request to amend its decision of DATE with a view to granting him unsupervised contact with his son . The court found that in view of the mother ’s allegations of sexual abuse , unsupervised access could only be considered once the expert opinion had been rendered and provided clarifications on the veracity of such allegations .

On DATE the expert met with the child .

On CARDINAL and DATE the applicant again made an interim request for unsupervised access to his son .

By a decision of DATE , following a change of the acting judge , ORG appointed a guardian ad litem ( PERSON ) for the child .

A further hearing of the parents and the child took place on DATE .

By a decision of CARDINAL DATE ORG appointed a new expert after doubts as to the competence and impartiality of the initially appointed expert had arisen .

By a further decision of the same date ORG , after hearing the parents and the child and referring to a written statement obtained from the initially appointed expert on DATE , rejected the applicant ’s renewed interim request for a right to unsupervised contact pending the finalisation of an opinion by the newly appointed expert . After having heard the mother , the court was of the opinion that the allegations of sexual abuse were not entirely devoid of substance and therefore an expert opinion could not be dispensed with . The court further held that the applicant ’s explicit refusal to meet his son within the parameters of supervised visits or to accept alternative arrangements in the context of supervised visits raised doubts as to how important the child ’s well - being was to him .

The expert opinion was rendered on DATE following examination of the parents and the child . The expert found that under the present circumstances , withdrawal of the right to custody from the mother and transfer of sole custody to the father would be contrary to the child ’s well - being . Joint custody would also not be in the child ’s interest since the relationship between the parents was still tense . The expert , however , recommended that regular contact should be established between the applicant and his son . At the beginning it could be envisaged that the father visit his son every second weekend at GPE , and following a trial period of DATE , longer stays by the child at the applicant ’s household could be considered .

The guardian ad litem , having heard the parents and the child , in her written submissions dated DATE also opposed a transfer of the right to custody to the applicant , while recommending that the latter be granted immediate unrestricted access to his son . The guardian ad litem recalled that under the applicable law the transfer of sole custody to the father of a child born out of wedlock without the mother ’s consent was only possible under LAW in the event that the mother was unable to raise the child and thus the latter ’s well - being was jeopardised . While the mother could be reproached for having taken the son out of his familiar environment in GPE and having deprived him of his father ’s company without a convincing reason , there was nothing to support the applicant ’s allegations that she suffered from a mental disorder that made her unfit to raise her son . The guardian ad litem was further of the opinion that in view of the ongoing disputes and lack of any agreement between the parents as regards the child ’s upbringing , joint custody was also not an option .

By a decision of DATE ORG accorded the applicant unsupervised contact with the child every other DATE , with the proviso that the meetings were to take place within a radius of QUANTITY from the mother ’s place of residence . Both parties appealed against the decision .

By a decision of DATE ORG amended ORG decision of DATE and granted the applicant regular unsupervised contact with the child every third weekend and during CARDINAL the school holidays .

It appears that the applicant was subsequently able to exercise his contact rights accordingly .

In preparation for a hearing in the still pending custody proceedings during which the expert had been invited to further elaborate on his opinion dated DATE , the applicant asked ORG for a graduate pedagogue to be admitted to question the psychological expert on his behalf , since neither he nor his counsel had the necessary knowledge of psychology to put the relevant questions . By a decision of DATE the court rejected the applicant ’s request , holding that the latter ’s counsel had already submitted a list of relevant questions to the expert in writing that did not support his allegations of a lack of knowledge . The court further was of the opinion that the pedagogue suggested by the applicant did not have the required qualifications . Pointing out that hearings in family law cases were as a rule held in camera and therefore the admission of additional advisers to the parties had to remain the exception , the court was of the opinion that there existed no exceptional circumstances in the case at hand that would justify deviating from this principle .

A hearing took place on DATE during which the expert provided further explanations . The guardian ad litem reported that the child , following his last stay with his father earlier in DATE , had expressed his wish to now live with his father and to only visit his mother .

By a decision of DATE , ORG dismissed the applicant ’s request that sole custody for the child or alternatively the right to determine where the child should reside be transferred to him under LAW . It also dismissed his further alternative request that he be granted joint custody together with the mother and that the latter ’s consent to joint custody as required by LAW be substituted by the courts in accordance with Section CARDINAL ( CARDINAL ) ( a ) of LAW to LAW , a transitory provision that had been introduced by the NORP legislature on DATE ( see Relevant domestic law below ) .

As regards the transfer of sole custody the court found , firstly , that to the extent the applicant ’s request was based on LAW it had to be rejected as inadmissible . The ORG pointed out that the applicant and the mother of the child had never been married and had not made a joint custody declaration , and that therefore the mother had obtained sole custody of the child pursuant to LAW . LAW stipulated that in the event that the parents had not only temporarily separated and that the mother had sole custody of the child pursuant to LAW , the father could request the transfer of sole custody or partial custody only with the mother ’s consent . Since in the case at hand the mother had refused to give her consent , the father ’s related request could not be based on LAW . The court further specified that it was irrelevant on what grounds the mother had refused consent since the said provision , as a rule , did not provide for the possibility of replacing the mother ’s consent by a court decision . The court therefore held that , unfortunately , it had to be accepted that fathers of children born out of wedlock were still not on an equal footing with married fathers .

Secondly , the court considered whether a transfer of custody by court decision without the mother ’s consent could be envisaged under the exceptional circumstances of DATE of LAW , which enabled the family court to order the necessary protective measures if the child ’s physical , psychological or mental well - being was threatened and the parents were unwilling to take measures themselves . However , the court , having regard in particular to the expert opinion of DATE as supplemented at the hearing dated DATE , was of the opinion that in the instant case the child ’s well - being was not jeopardised by the attribution of sole custody to the mother . The expert had found that it would be contrary to the child ’s interest to transfer custody to his father , in particular in view of the tense relationship between the parents which had its origin mainly in the father ’s attempts to undermine the mother ’s upbringing of their son . The mother ’s previous allegations of sexual abuse had not led to a different assessment since she had not maintained these allegations before the expert and it appeared from the child ’s examination that the trusting relationship between son and father had not been damaged as a consequence of the mother ’s assertions . The expert had further specified that there were no indications to support the father ’s argument that the mother was suffering from a pathological personality disorder that made her unfit to raise a child . The fact that following his last stay with the father in DATE the child had expressed his wish to now live with his father and to only visit his mother constituted a normal conflict reaction of a child whose parents were divorced . However , given that the son was DATE and therefore unable to assess the consequences of moving in with his father , the child ’s statements could not change the expert ’s conclusion that sole custody should remain with the mother .

The expert ’s conclusions had been corroborated by the statements of the guardian ad litem during the hearing on DATE , who had met with the child not long before the hearing and who had confirmed that the child was emotionally stable . In view of these findings the court was of the opinion that a further hearing of the child was not necessary .

Finally , the court held that the applicant ’s alternative request to be granted joint custody in accordance with LAW no . CARDINAL of LAW and LAW ) ( a ) of LAW to LAW was admissible but ill - founded . While this transitory provision provided in principle for the possibility of ordering joint custody and replacing the mother ’s related consent in the event that the parents , as in the instant case , had separated before DATE and had lived together with the child for a period of DATE without interruption prior to their separation , it further required that joint custody would be in the child ’s best interests . Referring to its reasoning with respect to the conditions of the transfer of sole joint custody under LAW and relying on the expert ’s evaluation at the hearing of DATE as well as the opinions of the representative of ORG and the guardian ad litem , the court found it established that in view of the persisting tension between the parents , joint custody would lead to further disputes as regards their son ’s upbringing , care and the question where he should reside . These disputes could jeopardise the positive development of the relationship between father and son and would thus be contrary to the child ’s interest . The court further emphasised that there were no grounds to doubt the professional competence of the appointed expert or the accuracy of his findings .

The applicant appealed against the judgment in written submissions of DATE . He maintained in particular that in view of the fact that the child had last been heard by the judge and the expert in DATE but had stated before the guardian ad litem in DATE that he now wished to live with his father , a further hearing of his son by the judge as well as a new expert opinion were indispensable with a view to determining what attribution of custody would be in the child ’s best interests .

On DATE ORG dismissed the applicant ’s appeal . ORG , endorsing ORG findings , reiterated that joint parental authority required a minimum of willingness on the part of the parents to cooperate , a condition that had not been met in the case at hand where the irreconcilable conflicts between the parents were likely to be aggravated in the event of joint custody . These conclusions could be drawn from the content of the files without having recourse to a further expert opinion . A further hearing of the child or the further parties to the proceedings could also be dispensed with since no further decisive information regarding the attribution of parental authority could be expected from such a hearing .

On DATE , the applicant lodged a complaint with ORG , alleging a violation of his right to be heard ( Anhörungsrüge ) .

On DATE he lodged a constitutional complaint against ORG decision of DATE and ORG decision of DATE , challenging the refusal to grant him sole or alternatively joint custody of his son in accordance with LAW and LAW ) ( a ) of LAW to LAW .

By a decision of CARDINAL DATE ORG dismissed the applicant ’s complaint that his right to be heard had been violated as illfounded . In addition to the reasoning in its decision of DATE ORG considered that ORG had thoroughly assessed the facts of the case and had based its judgment on the statements of the parties to the proceedings who , except for the child , had been heard shortly before the ORG ’s decision and it could therefore be excluded that a new hearing would lead to a different assessment of the case . There was nothing to indicate that the mother was incapable of raising her son or that she had jeopardised the well - being of the child to an extent that would justify the withdrawal of her right of custody in accordance with LAW . Furthermore , it was beyond doubt that the considerable conflict between the parents had made joint custody impossible , and therefore a further expert opinion or additional hearing of the child could not influence the decision on the attribution of custody rights .

In written submissions of CARDINAL DATE the applicant extended his constitutional complaint to ORG decision of CARDINAL DATE .

On DATE the ORG refused to admit the applicant ’s constitutional complaint for adjudication without giving further reasons ( no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant on DATE .

On DATE the applicant lodged a first application with ORG under LAW ( application no . CARDINAL/CARDINAL ) concerning the custody and contact rights proceedings in relation to his son . Relying on Articles CARDINAL § CARDINAL , CARDINAL and DATE of the Convention , he complained about the length of the domestic proceedings and about the domestic court ’s refusal to grant him unsupervised contact with his son .

In its related judgment of DATE , the ORG , while finding that the length of the contact rights proceedings was still in compliance with the requirements of the LAW , held that the length of the custody right proceedings had infringed the “ reasonable time ” requirement embodied in LAW and declared the remainder of the application inadmissible . The ORG nevertheless specified that the applicant ’s complaint under LAW concerned exclusively the contact rights proceedings , and that the compliance of the custody proceedings with this provision was the subject of a distinct application ( the instant application no . CARDINAL/CARDINAL ) .

Pursuant to LAW of LAW ) the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The state oversees the performance of this duty .

The statutory provisions on custody and contact are to be found in LAW ( Bürgerliches Gesetzbuch ) . LAW provides that the father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a child .

Under LAW , the family court may order the necessary protective measures if the child ’s physical , psychological or mental well - being is threatened by negligence and if the parents are unwilling to take those measures themselves . Measures which result in the separation of the child from CARDINAL parent are acceptable only if the child would be at risk otherwise ( Article CARDINAL of LAW ) .

As regards children born out of wedlock , custody was - pursuant to the former LAW - automatically obtained by the mother . That provision was however declared unconstitutional by ORG in DATE . On DATE the amended LAW of DATE ( Reform zum Kindschaftsrecht , ORG , p. CARDINAL ) , entered into force to implement ORG judgment of DATE . The relevant law in LAW was changed as follows : under LAW , the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect ( joint custody declaration ) or if they marry . Otherwise Article CARDINAL § CARDINAL provides that the mother obtains sole custody .

If the parents have not merely temporarily separated , and if the mother has obtained sole custody in accordance with LAW , LAW provides that the family court may transfer sole custody to the father if CARDINAL parent lodges the relevant application with the consent of the other parent . The application is to be granted if the transfer serves the child ’s interest .

By contrast , parents exercising joint parental authority before their separation either because the child was born in wedlock , the parents have married following the child ’s birth or they have made a joint custody declaration , retain joint custody following their separation unless the court at the request of CARDINAL parent awards sole custody to the latter in accordance with the child ’s best interest pursuant to LAW .

On DATE ORG found that LAW of LAW was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in DATE but who had separated before the amended LAW entered into force on DATE ( that is , those who were unable to make a joint custody declaration ) . In order to resolve the above - mentioned constitutional flaws , the NORP legislature introduced LAW ( CARDINAL ) ( a ) of LAW to LAW ( Einführungsgesetz in ORG ) on DATE , according to which a court may substitute the mother ’s consent to joint custody at the father ’s request if an unmarried couple have a child born out of wedlock , have lived together with the child for DATE without interruption and separated before DATE , provided that joint custody would serve the best interests of the child ( PERSON ) .

In its judgment of DATE ORG also held that LAW , apart from the lack of a transition period , did not breach the right to respect for the family life of fathers whose children had been born out of wedlock .

However , in a subsequent judgment of DATE referring , inter alia , to the ORG ’s findings in the case of ORG v. GPE ( no . CARDINAL , DATE ) , ORG found that to generally exclude a father of a child born out of wedlock from parental authority in the event that the child ’s mother had refused to give her consent , without providing the possibility of the father obtaining a judicial review of whether joint custody or the transfer of sole custody would be in the child ’s interests , had violated the father ’s parental rights guaranteed under LAW of LAW . ORG consequently decided that ORG CARDINAL § CARDINAL no . CARDINAL and CARDINAL § CARDINAL of ORG Civil Code were unconstitutional and – pending the entry into force of the necessary statutory amendments – had to be applied with the proviso that the family courts transfer joint or sole custody at the request of a parent if such a transfer was considered to be in the child ’s interest .


Violation of Art. 14+P1-1 with regard to the inheritance rights;No violation of Art. 14+P1-1 with regard to the capacity to receive assets as a gift;Not necessary to examine Art. 14+8 with regard to the inheritance rights;Violation of Art. 14+8 with regard to the capacity to receive assets as a gift;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

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

The first applicant was born on DATE of a relationship which began in DATE between the second applicant , a widow and the mother of a daughter born in DATE , and PERSON , a married man and the father of CARDINAL children born in DATE , DATE , DATE and DATE . At the time her birth , her father and mother had been living together since DATE . Her father formally acknowledged paternity on DATE and she has borne his name since CARDINAL DATE .

On DATE the first applicant 's father drew up a private deed dividing his movable property between his CARDINAL children . The document was signed by the CARDINAL legitimate children and by the father on the first applicant 's behalf .

On DATE he made a manuscript will in which he left to the first applicant the disposable portion of his estate which , pursuant to LAW , came to CARDINAL . He stipulated that it was to be taken free of his wife 's life interest .

ORG In a second manuscript will dated DATE he stated that he wished the estate to be divided into CARDINAL parts to be allocated by the drawing of lots in the presence of all his children , for the disposable portion of the estate to pass to the first applicant after an account had been taken of any gifts that had been made and for his wife 's life interest to attach only to the share of the CARDINAL legitimate children . The first applicant was to receive a reversionary pension for the duration of her studies and these were to be paid for if the law so permitted .

The first applicant 's father died on DATE leaving as his heirs his wife , CARDINAL legitimate children and the first applicant , an illegitimate child conceived while he was bound by marriage to a person other than its mother .

A notary was instructed to wind up the estate . He took an inventory at the home on DATE . The first applicant ( who was sitting her baccalaureate DATE ) was represented by the second applicant , who pointed out that certain movables were missing . The widow laid claim to certain items which she said belonged to her . The total value of the movables listed in the inventory was estimated at MONEY ( FRF ) .

NORP Since an amicable division of the estate proved impossible , the deceased 's CARDINAL legitimate children and their mother brought proceedings against the applicants in the GPE tribunal de grande instance seeking , inter alia , orders setting aside the gift of the disposable portion to the first applicant and the gifts their father had made to the second applicant DATE which were deemed to have been made to the first applicant – and restricting the first applicant 's rights to PERCENT of the net estate .

The applicants asked the ORG , inter alia , to dismiss the claims and to order the claimants to hand over to the first applicant all the movable property she had been allocated on CARDINAL DATE .

In a judgment of DATE , the tribunal de grande instance found that funds that had been used to purchase a flat in the avenue d'Italie in GPE and a sum of FRF CARDINAL,CARDINAL were gifts that had been made to the first applicant through an intermediary and set them aside under ORG and CARDINAL of LAW . It added that the value of the property that had been acquired with those gifts had to be brought into account . Relying on those provisions , the tribunal de grande instance ruled that the first applicant was not entitled to PERCENT of the estate and held that the gift of the disposable portion was inoperative . Relying principally on LAW , it held that the deed of division dated CARDINAL DATE was null and void as it was not in the correct form and added , in the alternative , that the first applicant could only lay claim to PERCENT of the movables that were divisible in kind . Lastly , it declared that the first applicant was to receive her share of the estate free of any life interest .

The applicants appealed against that judgment . The first applicant completed her studies in DATE .

In a judgment of DATE , ORG transferred the case to ORG , as one of the parties was a judge of the GPE tribunal de grande instance and the other had been admitted to the GPE Bar while the proceedings were under way .

In a judgment of DATE , ORG upheld the judgment of the court below in so far as it had refused to grant the first applicant identical inheritance rights to those of the CARDINAL legitimate children or to allow her to take the disposable portion and had ruled that the assets of the second applicant – who it noted had lived with the deceased since DATE were gifts acquired through an intermediary . Noting that the first applicant was an illegitimate child who had been conceived when her father was bound by marriage to a person other than her mother , it declared her claim to a reversionary pension inadmissible as she was not prepared to abandon her rights to the estate .

The applicants appealed to ORG .

On DATE the notary liquidated the estate and drew up the deed of division . The first applicant signed the deed “ without prejudice to the appeal to ORG which has been served on the parties ” . Under the terms of the deed of division , she was required to pay an equalising balance to the other heirs in the NORP franc equivalent of MONEY ( ORG ) .

The second applicant sold her home to pay that balance on behalf of her daughter , who had no property of her own .

NORP In a judgment of CARDINAL DATE , ORG dismissed the applicants ' appeal .

Following that judgment , the equalising balance was duly paid to the other heirs .

The relevant provisions of LAW as worded at the material time were as follows :

“ Part I : Succession

LAW : Orders of succession

Section III : Rights of descendants to inherit

“ Children or their issue shall inherit from their father and mother , grandfathers , grandmothers or other ascendants , without distinction on grounds of sex or primogeniture , and even if born of different marriages .

The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right ; they shall inherit per stirpes if all or some of them inherit through their ascendants .

Section VI : Rights of illegitimate children to inherit

Illegitimate children shall , in general , have the same rights to inherit from their father and mother or other ascendants and from their brothers and sisters and other collateral relatives as legitimate children .

Illegitimate children whose father or mother was , at the time of their conception , bound by a marriage to another person shall not prevent such other person from inheriting from the father or mother if he or she would have been entitled to inherit under Articles CARDINAL and CARDINAL below but for their birth .

In such eventuality , irrespective of their number , the illegitimate children shall receive CARDINAL of that which would have devolved to the spouse under the aforementioned ORG but for their birth , the calculation being made line by line ...

Illegitimate children whose father or mother was , at the time of their conception , bound by a marriage of which legitimate children were born shall be entitled to inherit from that parent in competition with the legitimate children ; however , they shall each receive CARDINAL of the share to which they would have been entitled if all the children of the deceased , including themselves , had been legitimate .

The fraction by which their share of the estate is thus reduced shall revert solely to the children born of the marriage damaged by the adultery . It shall be divided between them in proportion to their share in the estate .

PERSON : Inter vivos and testamentary gifts

LAW : ORG to use or receive inter vivos and testamentary gifts

Illegitimate children shall not be entitled to receive by way of inter vivos or testamentary gift from their father or mother a share of the estate in excess of that to which they are entitled under the aforementioned Articles CARDINAL and CARDINAL if the donor or testator was , at the time of their conception , bound by marriage to another person .

An action for abatement may , however , only be brought by the spouse or children of the marriage , as the case may be , and only once the estate has passed to the heirs .

Any disposition to a person without capacity shall be null and void , whether disguised as a contract for consideration or made in the name of intermediaries .

The father , mother , children , descendants , and spouse of a person without capacity shall be deemed to be intermediaries .

LAW : The portion of disposable assets and abatement

Section I : The portion of disposable assets

Gifts , whether inter vivos or testamentary , may not exceed CARDINAL of the donor 's assets if on his death he leaves CARDINAL legitimate child , CARDINAL if he leaves DATE if he leaves CARDINAL or more .

An illegitimate child whose share in the estate has abated pursuant to ORG and CARDINAL may , if in need , claim maintenance from the estate in exchange for abandoning his or her rights in favour of the heirs .

Such maintenance shall be governed by LAW .

The heirs may , however , settle such a claim by granting the applicant a share equal to that which he or she would have received under LAW and CARDINAL .

LAW : Inter vivos gifts

Section I : Formal requirements for inter vivos gifts

Any deed providing for an inter vivos gift shall be made before a notary in the ordinary form applicable to contracts ; an original shall be kept by the notary , on pain of nullity . ”

On DATE Law no . CARDINAL - CARDINAL of DATE “ on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession ” was published in ORG . It abolished any difference in treatment of illegitimate children CARDINAL of whose parents was , at the time of their conception , bound by marriage to another person . It repealed the provisions of LAW ( in particular , ORG , CARDINAL , ORG and CARDINAL - CARDINAL ) that gave children whose father or mother was married to another person at the time of their conception less favourable inheritance rights . It also repealed the provisions that protected the spouse alone if he or she was competing solely with such children .

The GPE tribunal de grande instance held as follows in a judgment of DATE :

“ Since it creates a difference between children 's inheritance rights depending on their birth , the application of LAW violates the provisions of the LAW ... , as ORG recently held ( in its judgment of DATE in the case which PERSON brought against ORG ) .

... Thus , LAW must be disregarded , as it contains provisions that discriminate against children of an adulterous relationship with no properly justified basis and it is inconsistent with LAW , which , by virtue of LAW , ranks ahead of the provisions of domestic law and , in accordance with settled case - law , is directly applicable by the NORP courts . ”


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

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

In DATE the applicant was dismissed from the army for political reasons . In DATE he was again admitted as a professional soldier . In accordance with the governmental Regulation No . CARDINAL , in conjunction with LAW of DATE , the period during which the applicant had been prevented , for political reasons , from serving as a professional soldier was to be considered as a period of service in the army when determining his salary and pension entitlements .

On DATE the Pecuniary Entitlements of Soldiers Act of DATE entered into force . It provided , in LAW , that the above Regulation No . DATE should not be applicable in respect of professional soldiers . As a result , the applicant ’s salary and pension entitlements were considerably diminished since their amount depended on the period of time during which he had served in the army .

On DATE ORG confirmed to the applicant , with reference to the Pecuniary Entitlements of Soldiers Act of DATE , that the period during which he had been prevented from serving in the army could no longer be taken into account when determining his salary and pension rights .

On DATE the president of a parliamentary committee confirmed the position to the applicant . The letter further stated that the members of the committee would consider the possibility of initiating an amendment to the relevant law .

On DATE the applicant complained to ORG that the relevant statutory provisions were discriminatory . On CARDINAL DATE a constitutional judge informed the applicant that individuals lacked standing to bring proceedings with a view to having the conformity of a law with the LAW or with an international treaty determined . The letter concluded that ORG could not entertain the applicant ’s complaint .

On DATE a judge of ORG informed the applicant that ORG lacked jurisdiction to make general comments on legal rules .

On DATE ORG admitted , in reply to the applicant ’s complaint , that there was an inconsistency between the Pecuniary Entitlements of Soldiers Act of DATE and LAW of DATE , and that the relevant provisions had to be brought into conformity with LAW . The applicant was further informed that it was expected that ORG would initiate a legislative amendment with a view to resolving the problem .

The applicant requested ORG to bring proceedings with a view to having the alleged conflict between the Pecuniary Entitlements of Soldiers Act of DATE and the LAW determined by ORG . On DATE ORG informed the applicant that his request had been transmitted to ORG .

On DATE the applicant retired from the army .

Regulation No . CARDINAL

In accordance with LAW . CARDINAL governing the salaries of persons employed by public organisations , employers are entitled to take into account the period during which a person was prevented from exercising his or her profession for reasons of political persecution as a period of activity in the relevant field for the purpose of determining the length of the professional experience of the person concerned .

Section CARDINAL of the Act on Pecuniary Entitlements of Soldiers ( Zákon o peňažných náležitostiach vojakov ) provided that Regulation No . CARDINAL ceased to be applicable in respect of professional soldiers from the moment of the entry into force of that Act on DATE .

As from DATE the LAW was amended . As a result , LAW ( CARDINAL ) provides that the time which is to be considered as period of employment under special laws , such as LAW , shall be included , in case of professional soldiers , in the overall duration of their service in the army .

LAW of DATE

LAW ( Zákon o vojenskej službe ) was adopted on DATE and it entered into force on DATE . It governs the legal aspects of the exercise of military service and its cessation .

Section CARDINAL ( CARDINAL ) provides that all periods of time during which a person was considered to have served in the army under rules in force prior to the enactment of LAW of DATE shall be included in the overall duration of such a person ’s military service when determining his or her entitlements under that Act .

Constitutional provisions and practice

Pursuant to LAW , as in force at the relevant time , the ORG shall review the challenges to final decisions made by central government authorities , local government authorities and local self - government bodies in cases concerning violations of fundamental rights and freedoms of citizens , unless the protection of such rights falls under the jurisdiction of another court .

LAW , as in force at the relevant time , provides as follows :

“ CARDINAL . The Constitutional Court shall commence proceedings upon a proposal submitted by :

a ) CARDINAL of all members of ORG ;

b ) the President of GPE ;

c ) the Government of GPE ;

d ) a court ;

e ) the General Prosecutor ;

f ) any person whose rights shall be adjudicated pursuant to LAW .

ORG may commence proceedings upon a petition submitted by legal entities or individuals claiming a violation of their rights . ”

In accordance with its established practice , the Constitutional Court lacks jurisdiction to examine a petition under LAW ) of the LAW when the determination of the point in issue involves the preliminary question of conflict of legal rules ( for example , NORP ÚS CARDINAL/CARDINAL , decision of DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr R. Taratula , a lawyer practising in LOC . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON .

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

On DATE the applicant and ORG concluded a service contract , under which the applicant undertook to assist the company in the promotion of its products and the company was to pay the applicant PERCENT of the price of the contracts with third parties arranged by the applicant .

In DATE the applicant instituted proceedings in the Frankivskyy ORG against the company , seeking the recovery of debts under the contract of CARDINAL DATE and compensation . He referred to specific contracts which the defendant company had concluded allegedly due to his assistance . In the course of the proceedings the applicant amended his claim on CARDINAL occasions .

The applicant and the lawyer , who represented him in the proceedings , lodged CARDINAL motions with the court , requesting the latter to oblige the defendant company to provide copies of the contracts , which it had concluded with third parties allegedly due to the assistance of the applicant . According to him , although the court had allowed his motions and had made the requests , the defendant company had failed to submit copies of all such contracts and had refused to acknowledge that some of the contracts had existed .

Out of CARDINAL hearings scheduled by the court DATE and DATE TIME were adjourned due to the absence of the applicant or of both parties and CARDINAL were adjourned because of the applicant ’s motions for calling of evidence . QUANTITY hearings were adjourned on the court ’s own motion or because of the absence of the representatives of the defendant company .

On DATE the court found against the applicant . The court based its judgment on the oral and written statements of CARDINAL witnesses on behalf of the defendant company , who had been questioned by the court and the parties in the course of the proceedings , as well as the documents submitted by that company .

In particular , the court held that in DATE the applicant had been paid CARDINAL karbovantsiv ( the former transitional currency of GPE before DATE ) , for which the defendant company had provided copies of the payment slips . The court further held that in DATE the company had also paid the applicant CARDINAL karbovantsiv , which had been evidenced by the written statements of the chief accountant of that company and had been confirmed by the oral statements of Mr K. , an employee of the same company . The court disregarded the applicant ’s submissions to the contrary , as they had not been supported by documentary evidence . As to the remainder of the applicant ’s claims , the court held that the applicant had failed to submit evidence that the company was obliged to pay him the money .

On DATE ORG held that the applicant had failed to comply with the formalities envisaged for the introduction of appeals and remitted his appeal to the first instance court .

On DATE the applicant lodged with the Frankivskyy ORG the corrected version of his appeal . He argued , inter alia , that the first instance court , in rejecting a part of his claims , should not have relied on the submissions of the representatives of the defendant company , which had not been supported by the relevant financial documents .

On DATE ORG considered the applicant ’s appeal and rejected it as unsubstantiated . In particular , the court of appeal held that the first instance court had duly assessed the evidence in the case and had come to the right conclusions . It noted that the applicant ’s claims had not been supported by documentary evidence .

In the course of the proceedings before the first instance court and the court of appeal the applicant sought an independent expert examination in order to clarify the extent to which the payments had been made . He did not receive a reply to his requests .

On DATE a panel of CARDINAL judges of ORG rejected his request for leave to appeal in cassation . It found that there were no grounds for referral of the case to its ORG .

According to LAW ,

Article CARDINAL envisaged that a court had to adjourn a hearing if CARDINAL of the parties failed to appear before it and there was no confirmation that he or she had been duly informed about that hearing . A court might adjourn a hearing if a party , who had been duly informed about the date and time of the hearing , failed to appear for the reasons which the court found justifiable .

Pursuant to Articles CARDINAL and CARDINAL , the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned . The court of appeal had the power to examine new evidence , and the evidence which allegedly had not been examined in compliance with the Code . It was entitled

to reject an appeal ;

to quash the judgment of the first instance court and to remit the case for a fresh consideration , if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined ;

to quash the judgment of the first instance court and to discontinue the proceedings ;

to change the judgment or to adopt a new judgment .

According to Article CARDINAL , the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration

if the case had been considered by a person , who had not been entitled to sit as a judge in the case ;

if the judgment had been adopted or singed by a judge who had not heard the case ;

if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing ; or

if the judgment concerned the rights and obligations of persons who had not participated in the case .

Pursuant to paragraphs CARDINAL of the Regulation , cash payments should be made and documented by ORG pay units or cashiers . In accordance with paragraph CARDINAL , cashiers should demand a payee to present his / her identity document and to leave his / her signature in the relevant column of a pay document .

Paragraphs CARDINAL and CARDINAL envisaged that all cash transactions should be registered in a single cash book kept by each company .


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

The applicant is living in GPE , where he is a farmer and owner of the PERSON alp . According to a regulatory deed ( PERSON ) of DATE concerning the alp , the owner of this alp is entitled to obtain timber from ORG to the extent necessary for the maintenance of the alp 's cabins .

On DATE the applicant requested ORG as the agricultural authority of first instance ( PERSON erster PERSON - “ the ORG ” ) to grant him the necessary quantity of timber for the maintenance of existing and the edification of new alpine cabins .

On DATE ORG held a hearing and on DATE a forestry expert delivered his opinion .

On DATE ORG gave its decision , ordering ORG to provide the applicant with a certain quantity of timber within DATE .

On DATE the applicant appealed against this decision .

On DATE ORG ( Landesagrarsenat - “ the Regional Board ” ) dismissed the appeal and ordered ORG to provide the applicant with a smaller quantity of timber within DATE .

On DATE the applicant filed a complaint against this decision with ORG ( Verwaltungsgerichtshof ) .

On DATE ORG quashed ORG decision .

On DATE ORG granted the applicant 's appeal of CARDINAL DATE and referred the case back to ORG .

By a decision of DATE ORG opened supplementary proceedings with a view to amending the regulatory deed of DATE concerning the alp . On DATE and CARDINAL DATE hearings were held . On DATE an agricultural expert delivered his opinion as to the average annual timber supply necessary for the maintenance of the cabins .

On DATE ORG issued a decision , by which it amended the regulatory deed of DATE and determined the provision of timber for the owner of the PERSON alp . The applicant appealed against this decision , claiming that a fixed annual supply of timber should be granted irrespective of the need to maintain the cabins .

On DATE ORG partly granted the appeal and amended ORG decision .

On DATE ORG granted the applicant 's request for leave to appeal out of time ( Wiedereinsetzung in den vorigen Stand ) to ORG ( ORG - “ the ORG ” ) against ORG decision .

On DATE ORG , after having held a hearing , dismissed the applicant 's further appeal . It found that the legal instrument of DATE only conferred a right to obtain timber for the maintenance of cabins , not a right to a fixed annual quantity of timber .

On CARDINAL DATE the applicant lodged a complaint with ORG ) .

On DATE ORG refused to deal with the complaint for lack of sufficient prospects of success and remitted the case to ORG .

On DATE ORG dismissed the applicant 's complaint . It confirmed that the applicant was entitled to obtain a variable quantity of timber dependent on the need to maintain his alp 's cabins , but not to obtain a fixed annual quantity . The decision was served on the applicant 's counsel on DATE .


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

A.

The applicant worked as an engineer for the joint - stock company “ Saturn ” ( АООТ « САТУРН MONEY ) ( “ the company ” ) . Because of the financial difficulties of the company the applicant was ordered to take unpaid leave for the period from DATE to CARDINAL DATE . It appears that the applicant decided to take further unpaid leave until DATE .

In DATE , while on leave , the applicant brought an action for damages against the company requesting compensation for losses she had incurred and reinstatement in her former job .

On DATE ORG Прикубанский районный суд ) refused to deal with the applicant ’s action on the grounds that she had failed to comply with the procedural requirements .

On DATE the same court , after a public hearing , dismissed the applicant ’s rectified action finding , inter alia , that the company ’s financial difficulties had an objective basis which was beyond the court ’s control .

On DATE ORG ( ORG краевой суд ) , upon the applicant 's appeal , upheld the judgment of ORG .

On DATE , the applicant was dismissed from work following a reorganisation of the company .

The applicant lodged several complaints with various ORG administrative authorities . On DATE and CARDINAL DATE she was informed by ORG инспекция труда по PERSON ) and ORG ( Федеральная инспекция труда ) respectively that labour disputes fell within the competence of the national courts .

By letter of DATE the Deputy Krasnodarsk Regional Prosecutor ( заместитель прокурора NORP края ) rejected the applicant ’s application to file an appeal for a supervisory review ( hereafter referred to as an “ application for a supervisory review ” ) ( жалоба в порядке надзора ) against the ordinary courts’ judgments , finding that the issues raised by the applicant had been properly dealt with by the national courts .

The applicant lodged another application for supervisory review with ORG requesting that the ordinary courts’ judgments be quashed and her case reconsidered . By letter of CARDINAL DATE the Deputy President of ORG informed the applicant that her application had been rejected for being unsubstantiated , as confirmed by letter of DATE from the President of ORG .

By letter of DATE ORG ( NORP края ) rejected the applicant ’s third application for a supervisory review .

By letters of DATE and DATE ORG ( Генеральная прокуратура ) dismissed the applicant ’s fourth application for a supervisory review against the ordinary courts’ judgments .

By letter of DATE the President of ORG of ORG ( Председатель состава Судебной коллегии по гражанским делам ORG ) rejected the applicant ’s fifth application for a supervisory review as unsubstantiated .

By letter of DATE the Deputy Prosecutor General PERSON ) rejected the applicant ’s sixth and last application for a supervisory review .

By letter of DATE ORG ) informed the applicant that it was not competent to deal with her complaint .

B. Relevant domestic law

According to LAW ( “ the LAW ) , judgments , court rulings and decrees which have entered into force , may be reviewed by way of supervision following a “ protest ” ( протест ) lodged by the persons listed in LAW .

According to LAW , the persons competent to lodge a protest are ORG and the President of ORG .

According to LAW , the persons listed in LAW are entitled , subject to certain conditions , to obtain the case file in a civil case in order to establish whether there are any grounds for lodging a protest by way of supervision .


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

By an order of CARDINAL DATE , an investigating judge of the GPE tribunal de grande instance indicted the applicant and committed him for trial in ORG , for having “ in GPE , from DATE to DATE , committed acts of sexual penetration , by violence , constraint , threat or surprise , on the person of [ Samia NORP ] , with the aggravating circumstances that [ PERSON was DATE , having been born on CARDINAL DATE , and that he had authority over her as the husband of her mother , with whom he lived . ”

In a judgment of DATE ORG sentenced the applicant to twenty years’ imprisonment for aggravated rape of a person under CARDINAL by a person in a position of authority , and suspended his civic , civil and family rights for DATE .

By a judgment of CARDINAL DATE the Meurthe - et - Moselle Assize Court of Appeal sitting in PERSON , having heard the parties and their representatives in private , upheld the earlier judgment in full . It also found that the delivery into custody order issued against the applicant on CARDINAL DATE was equivalent to a detention order , but nevertheless issued a detention order against the applicant that DATE .

Appealing on points of law , the applicant complained in particular that the proceedings before ORG had been held in private at the victim ’s request , in conformity with LAW , whereas he had not freely and expressly waived his entitlement to public proceedings ; he also submitted that there had been no separate decision or mention in the record of the proceedings concerning his placement in detention following the delivery of the judgment .

By a judgment of DATE ORG dismissed the applicant ’s appeal .

On the matter of the private hearing , it explained its decision in the following terms :

“ LAW ... provides for the possibility of excluding the press and the public from all or part of the trial ... where ... the protection of the private life of the parties so ORG ] .

In allowing the party claiming damages , a rape victim , to decide whether the protection of her private life requires all or part of the trial not to be public , LAW simply establishes a principle in keeping with the provisions of [ LAW ] . ”

On the subject of the applicant ’s committal to prison , ORG held :

“ The claim can not be allowed in so far as the court ’s decision to commit the accused to prison , taken by the court alone following the vote on the sentence and in the secrecy of the deliberations , does not require an interlocutory decision or any special mention in the record of the proceedings ” .

Article CARDINAL of the Code of Criminal Procedure stipulates , concerning proceedings before ORG :

“ The hearing shall be public unless publicity would be dangerous for order or morality . In such a case , the court shall so declare by a ruling made in open court .

The president may nevertheless prohibit access to the courtroom for minors , or for certain minors .

In the case of a prosecution for the offences of rape or torture and acts of barbarity accompanied by sexual aggression , a hearing in camera is granted as of right where the civil party victim or one of the civil party victims so requests ; in other cases a hearing in camera may be ordered only where the civil party victim or one of the civil party victims does not oppose it .

Where a hearing in camera has been ordered , this applies to the reading of any judgments that may be made in respect of any procedural objections …

The judgment on the merits must always be read in open court .


Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant is a member of the “ PERSON Gemeinden in GPE , which became a registered religious community ( eingetragene ORG ) under LAW CARDINAL ( Bundesgesetz über die PERSON religiösen GPE ) on DATE .

DATE the applicant attended the DATE course of the PERSON theological seminary ( GPE ) in GPE . Since then he has been giving religious instruction to the youth and has been working as a municipal preacher ( Prediger ) .

On DATE the applicant filed a request with the Federal Minister for ORG ( ORG ) for recognition as a conscientious objector ( ORG ) .

On DATE the Minister for ORG recognised the applicant as a conscientious objector . Accordingly , he was exempted from the duty to perform military service but liable to perform civilian service ( Zivildienst ) .

On DATE the applicant requested the Minister of ORG to apply section CARDINAL LAW in conformity with the LAW and to exempt him from the obligation to perform civilian service . He submitted that this provision exempted members of recognised religious societies who performed specific services relating to worship or religious instruction from the obligation to perform civilian service , whereas he , as a student of the theological seminary GPE Chrischona , had a comparable clerical position within a registered religious community , namely the “ PERSON Gemeinden in GPE . Consequently , he should be also exempted from civilian service .

On DATE the Minister of ORG dismissed the applicant 's request . The decision referred to the findings of ORG ) in a decision of DATE , in which it had held that exemption from the obligation to perform civilian service under section CARDINALa of LAW merely applied to members of recognised religious societies and could not be extended to members of registered religious communities .

On DATE the applicant filed a complaint with ORG .

On DATE ORG declined to deal with the complaint for lack of prospects of success .

On the applicant 's request ORG transmitted his complaint to ORG ( Verwaltungsgerichtshof ) .

On DATE the applicant supplemented his complaint .

On DATE ORG , referring to the above - mentioned decision of CARDINAL DATE by ORG , dismissed the complaint . This decision was served on the applicant 's counsel on DATE .

Section CARDINALa § CARDINAL of LAW ( PERSON ) provides as follows :

“ An exemption from the obligation to perform civilian service shall apply to the following members of recognised religious societies :

NORP ordained priests ,

NORP persons involved in spiritual welfare or in clerical teaching after graduating in theological studies ,

NORP members of a religious order who have made a solemn vow , and

NORP students of theology who are preparing to assume a clerical function . ”

For a detailed description of the legal situation in GPE in this field see GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .