The applicant , Mr PERSON , was a NORP national born in DATE . He died on DATE . The applicant was represented before the ORG by Mr I. Barbalics , a lawyer practising in GPE , GPE . On DATE , following an enquiry , the applicant 's CARDINAL surviving daughters , PERSON and PERSON , informed the ORG that they wished to continue their late father 's case pending before it . They appointed PERSON ORG as their representative .

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

On DATE the applicant filed an action for divorce with ORG . In a second action , he sought the division of the matrimonial property . The CARDINAL actions were later joined by the court .

On DATE ORG held a hearing and invited the applicant to submit a precise statement of claim . On DATE the applicant extended the scope of his action in order to associate all the owners of the real estate with the proceedings .

On DATE the court imposed a fine on the applicant 's lawyer on the ground that it was impossible for the court to rule on the submissions which he had made . In an order of CARDINAL DATE the court separated the divorce proceedings from the proceedings on the division of the matrimonial property . On DATE the applicant informed the court that he had discontinued his legal representative 's power of attorney and requested the court to assign a new legal representative to him .

On DATE ORG pronounced the parties ' divorce .

On DATE ORG held a hearing in the proceedings on the division of the matrimonial property and appointed a legal counsel to represent the applicant in the case . At the applicant 's request , on DATE the court withdrew this appointment .

On DATE the court heard the parties and requested them to submit their evidence within DATE .

At a hearing on DATE the court appointed an expert and instructed him to submit his opinion within DATE . The next hearing was held on DATE .

The expert submitted his opinion on DATE .

In the meantime one of the defendants died . On DATE ORG suspended the proceedings pending the participation of the deceased 's successors in the proceedings .

On DATE the court held a hearing .

On DATE the court ruled on the division of the matrimonial property .

On the applicant 's appeal , on DATE ORG quashed this judgment and remitted the case to ORG . It held that ORG had committed several procedural errors .

In the resumed proceedings before ORG , the applicant chose to be represented by PERSON The court held hearings on DATE and on DATE , DATE , CARDINAL May and DATE . At the last hearing ORG appointed an expert . He submitted his opinion on DATE .

In a judgment of DATE the court divided the parties ' matrimonial property .

On DATE the ORG confirmed the first instance judgment .

On DATE the applicant filed with ORG a petition for review of the judgment by ORG .

After the petition had been transferred to it by ORG , ORG ordered on DATE that the petition be filed by a legal representative in accordance with domestic legal requirements .

On DATE the applicant requested legal aid . In an order of CARDINAL DATE ORG dismissed the applicant 's request as his financial situation did not justify the grant of legal aid . Pursuant to the relevant legislation , ORG on the same date requested the applicant to appoint , within DATE , a lawyer to represent him in the proceedings . On DATE ORG rejected the applicant 's petition for review , observing that the applicant had failed to appoint a legal representative . The decision was served on the applicant on DATE .

In DATE the applicant brought an official liability action before ORG . He claimed compensation from ORG , which had dealt with the divorce case . He maintained that his case had not been dealt with properly in that the court had failed to uncover that his representative , PERSON , was an impostor . After several hearings , on DATE ORG discontinued the proceedings as the applicant had withdrawn his action .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-f - Extradition) (San Marino)

Corneliu Bîrsan;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant , an NORP national , was born in DATE and lives in GPE .

On DATE , the Prosecutor of the Rome Tribunal informed ORG and ORG , that criminal proceedings had been instituted against the applicant ( an NORP citizen resident in GPE ) for , inter alia , money laundering . He further informed them that by a decision of DATE ORG had ordered his preventive detention . The prosecutor therefore requested the GPE judicial authorities to extradite the applicant and place him in preventive detention on the basis of LAW between GPE and GPE of DATE ( LAW ) . At the same time he requested ORG to authorise the extradition request .

By a decision of CARDINAL DATE the PERSON ( ORG ) accepted the request and ordered the applicant ’s arrest and preventive detention pending his extradition , on the basis of LAW , noting , moreover , that GPE had also ratified LAW of DATE ( the DATE Convention ) .

On DATE the applicant was notified of the order and arrested .

On DATE , pending the official request by ORG according to LAW , the ORG requested ORG ) to authorise the extradition , noting that the relevant requirements were fulfilled . No reply was received .

On DATE the applicant and his lawyer were heard in relation to his extradition . On DATE , the ORG rejected a request by the applicant for house arrest on the basis of LAW .

NORP On DATE the Secretary of ORG informed the ORG about a note verbal from the NORP embassy of DATE which noted that GPE had become a party to the CARDINAL Convention on DATE and that therefore the NORP request would be submitted within DATE stipulated in the CARDINAL Convention . Moreover , the note verbal requested the extension available under LAW , in the event that it became necessary .

On DATE the applicant complained against the decision of CARDINAL DATE ( paragraph CARDINAL above ) in so far as there had been no urgent reasons under LAW , which in his view was applicable to the present extradition , justifying preventive detention .

On DATE the appeal judge dismissed this complaint . The court considered that the preventive measure was to facilitate extradition . It considered the element of urgency to be linked to the risk of absconding and that one had to take account of the geographical situation of GPE . The court held that the basis of the detention was the arrest warrant of CARDINAL DATE which it was thereby confirming , however , modifying the applicable rules in that such orders were to be governed by LAW which had to apply to the present extradition . While it was true that the first steps of the extradition process had been in accordance with LAW and the subsequent ones with LAW ; it was also true that GPE had made a reservation , when ratifying LAW , to the effect that its bilateral agreement would prevail . However , GPE had not made such a reservation or acknowledged LOC one .

On DATE , DATE , the applicant requested , under LAW , to be released on DATE from his arrest , if the extradition request and relevant documents were not submitted .

On DATE this request was rejected by the ORG , holding that the CARDINAL Convention , which prevailed DATE Convention , stipulated a maximum of DATE .

On DATE the ORG informed the CR of the extradition request and relevant documents submitted by ORG on DATE . He confirmed that the conditions of the CARDINAL Convention were fulfilled and therefore requested the authorisation of the extradition . On DATE the ORG gave its authorisation on the basis of the CARDINAL Convention and the ORG ordered the applicant ’s extradition , which took place DATE .

On DATE at TIME the applicant was picked up and TIME later notified of the extradition order which he refused to sign claiming it should be submitted to his lawyer . He was transferred to the NORP police at TIME and at TIME the extradition order was notified to CARDINAL of his lawyers .

On DATE the applicant lodged an application ( ex art QUANTITY . ) with the Terza Istanza Penale against the appeal judge ’s order of DATE ( confirming the order of CARDINAL DATE concerning preventive detention – paragraph CARDINAL above ) and the extradition order of DATE . In relation to the former he argued that he was not a dangerous individual , there was no risk of absconding or altering evidence , no need to protect the community , that the charges brought forward by ORG were unfounded and that the extradition request had not been properly submitted . In respect of the extradition , he claimed , inter alia , that it had been vitiated since it had been requested on the basis of LAW and not LAW , which could not apply in view of the reservation by GPE to the effect that its bilateral agreements would prevail . Moreover , the entire procedure had been tainted by illegality , the rights of the defence had been breached in that the applicant had not been heard nor were his lawyers notified or allowed access to the applicant at the time of the extradition . He also referred back to the submissions made on DATE .

By a judgment of DATE ( notified on DATE ) the Terza PERSON held that it could not take cognisance of the complaint against the extradition order as this was still pending before the appeal judge at second instance ( see below ) . As to the rest , it reiterated that while it was true that the first steps of the extradition process had been in accordance with LAW and the subsequent ones with LAW ; it was also true that GPE had made a reservation , when ratifying LAW , to the effect that its bilateral agreement would prevail . However , GPE had not made such a reservation or acknowledged LOC one . This , thus , led to a situation where for GPE LAW applied and for GPE LAW applied . This was clearly unworkable . Thus , it was obvious that the reservation could only apply if both GPE had coinciding declarations . As to the decision to keep the applicant in preventive detention the court found that the ORG ’s decision had been a legitimate exercise of discretion in which the ORG had considered the seriousness of the offences , the evidence presented and any other conditions relevant to the aim of successfully extraditing the applicant . Therefore , the conditions for the application of such a measure were fulfilled under both LAW . Moreover , it could not be said that the extradition process had caused the applicant prejudice at any time . The process had been in conformity with the NORP request and the relevant LAW at different stages . This constituted a legitimate basis for the entire extradition proceedings including the duration of the detention . Thus , it further confirmed the order of arrest of CARDINAL DATE and the decision of the appeal judge of DATE , which were thereby definitive .

On DATE ( DATE before DATE first set of proceedings mentioned above ) , the applicant had lodged an application ( ex art QUANTITY . and art CARDINAL of Law CARDINAL/CARDINAL/CARDINAL no.CARDINAL ) before the appeal judge against the extradition order of DATE . His application started by reiterating the arguments made in his submissions of CARDINAL DATE ( regarding preventive detention ) . He further argued , inter alia , that he had been extradited without being heard and without being notified of the authorisations relevant to such procedure except for the order of CARDINAL DATE , and pointed to other irregularities which vitiated the request such as the application of QUANTITY Conventions which had different formal requirements . He also reiterated other issues raised in his submissions of CARDINAL DATE .

The application was rejected on DATE ( DATE after the above mentioned final judgment of DATE ) . The court noted that the object of the application was the same as that made in another application . The objection to the execution of the applicant ’s extradition order of CARDINAL DATE was identical in both proceedings . The objection against the decision of CARDINAL DATE was inadmissible not quite on the basis that it was being contested in another forum , but particularly because the arguments brought forward were the same in both fora .

On DATE the applicant appealed to the NORP Istanza GPE against this decision . The applicant stated that he was appealing the decision of DATE which had rejected his appeal of “ CARDINAL DATE ” . He argued , inter alia , that he had been extradited without being heard and without being notified of the authorisations relevant to such procedure except for the order of CARDINAL DATE , and pointed to other irregularities which vitiated the request such as the application of CARDINAL Conventions which had different formal requirements , and the issues raised in his submissions of CARDINAL DATE . In consequence he considered that the extradition had to be considered invalid .

By a judgment of CARDINAL DATE the NORP PERSON considered this application to refer to all the steps of the extradition proceedings , as it reiterated the same grounds aired previously in different phases of the proceedings , including those before the same judge in the Terza Istanza GPE . The court held that , as to the notification , both the applicant and his lawyers had been informed of the arrest order dated CARDINAL DATE on DATE , and the NORP ordinance on which the arrest order was based had been notified the subsequent day . Following that , the applicant ’s lawyers had had full access to him while in detention and to all the relevant documents in the proceedings . The applicant had been heard in a hearing and had made use of multiple remedies in respect of every step of the proceedings . The court reiterated that all these proceedings had been governed by the CARDINAL Convention , as the prevailing instrument and that any order based on LAW had not prejudiced the applicant in his right to liberty . On the substance it considered that there had been sufficient logical and juridical justification to accept the NORP request for extradition which had been submitted including all the relevant and necessary elements according to the relevant international legal texts . Lastly , the Terza Istanza PERSON noted that the appeal judge had upheld the prosecutor ’s objections that there had been nothing new in this application which was therefore inadmissible . Bearing in mind all the above , it considered the appeal manifestly ill - founded and confirmed the order of DATE for the applicant ’s extradition .

On DATE the NORP courts released the applicant following the expiration of the time - limits of detention prescribed by law .

Article CARDINAL of LAW of GPE , in so far as relevant , reads as follows :

“ Extradition is regulated by means of international conventions , and in the event that they do not so provide , by GPE law . Extradition of persons found in the territory of GPE is allowed on the fulfilment of the following conditions :

That the fact constitutes an offence under both the law of GPE and the law of the requesting ORG .

That the crime , the penalty or the relevant measures are not extinct in the law of any of GPE .

That the criminal proceedings can be brought in the courts of both GPE .

That the request does not relate to a citizen of GPE , unless it was so expressly allowed by international conventions .

That it does not concern political crimes or crimes related to the latter , or to military crimes exclusively , or that it appears that the extradition is wanted solely for political grounds ( ... ) . ”

DATE Convention , in so far as relevant , reads as follows :

“ The extradition request shall be directly submitted by the competent judicial authority of the requesting state to the requested state . ( ... ) The extradition request and extradition order must be authorized in GPE by ORG and in GPE by the Reggenza ( ORG ) . ” ( Summary unofficial translation ) .

“ When a request for extradition is submitted all the necessary measures must be taken to ensure its execution . An arrested person will be detained until a decision on the extradition is taken and if this is decided until the extradition . Provisional arrest may be ordered on the basis of a declaration ( referring to certain conditions , such as existence of an arrest warrant ) or on the basis of a published wanted criminals list , in cases of urgency . The provisional detainee will be set free within DATE from his arrest if by then the extradition request and the relevant documents have not reached the requested party . This term may be prolonged to DATE if the person to be extradited is identified as a dangerous criminal or if the arrest was based exclusively on a published wanted criminals list . The individual ’s release does not prejudice his or her extradition once the relevant request and documents have been received . ” ( Summary unofficial translation ) .

The relevant articles read as follows :

DATE The request and supporting documents

“ ( CARDINAL ) The request shall be in writing and shall be communicated through the diplomatic channel . Other means of communication may be arranged by direct agreement CARDINAL .

( CARDINAL ) The request shall be supported by :

a ) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting ORG ;

b ) statement of the offences for which extradition is requested . The time and place of their commission , their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible ; and

c ) copy of the relevant enactments or , where this is not possible , a statement of the relevant law and as accurate a description as possible of the person claimed , together with any other information which will help to establish his identity and nationality . ”

Article DATE Provisional arrest

“ In case of urgency the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .

The request for provisional arrest shall state that CARDINAL of the documents mentioned in LAW , paragraph CARDINAL.a , exists and that it is intended to send a request for extradition . It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought .

A request for provisional arrest shall be sent to the competent authorities of the requested ORG either through the diplomatic channel or direct by post or telegraph or through ORG ( ORG ) or by any other means affording evidence in writing or accepted by the requested ORG . The requesting authority shall be informed without delay of the result of its request .

Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from the date of such arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought .

Release shall not prejudice re - arrest and extradition if a request for extradition is received subsequently . ”

DATE Surrender of the person to be extradited

“ The requested ORG shall inform the requesting ORG by the means mentioned in LAW , paragraph CARDINAL , of its decision with regard to the extradition .

Reasons shall be given for any complete or partial rejection .

If the request is agreed to , the requesting ORG shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender .

Subject to the provisions of paragraph CARDINAL of this article , if the person claimed has not been taken over on the appointed date , he may be released after the expiry of DATE and shall in any case be released after the expiry of DATE . The requested ORG may refuse to extradite him for the same offence .

If circumstances beyond its control prevent a ORG from surrendering or taking over the person to be extradited , it shall notify the other ORG . The CARDINAL Parties shall agree a new date for surrender and the provisions of paragraph CARDINAL of this article shall apply . ”

DATE Procedure

“ Except where this Convention otherwise provides , the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested ORG . ”

Article CARDINAL – Reservations

“ ORG may , when signing this LAW or when depositing its instrument of ratification or accession , make a reservation in respect of any provision or provisions of the LAW .

Any ORG which has made a reservation shall withdraw it as soon as circumstances permit . Such withdrawal shall be made by notification to the Secretary General of ORG .

A ORG which has made a reservation in respect of a provision of the ORG may not claim application of the said provision by another ORG save in so far as it has itself accepted the provision . ”

LAW between this LAW and bilateral Agreements

“ This Convention shall , in respect of those countries to which it applies , supersede the provisions of any bilateral treaties , conventions or agreements governing extradition between any CARDINAL Contracting Parties .

The Contracting Parties may conclude between themselves bilateral or multilateral agreements only in order to supplement the provisions of this LAW or to facilitate the application of the principles contained therein .

Where , as between CARDINAL or more Contracting Parties , extradition takes place on the basis of a uniform law , the Parties shall be free to regulate their mutual relations in respect of extradition exclusively in accordance with such a system notwithstanding the provisions of this Convention . The same principle shall apply as between CARDINAL or more Contracting Parties each of which has in force a law providing for the execution in its territory of warrants of arrest issued in the territory of the other ORG or Parties . Contracting Parties which exclude or may in the future exclude the application of this LAW as between themselves in accordance with this paragraph shall notify the Secretary General of ORG accordingly . The Secretary General shall inform the other Contracting Parties of any notification received in accordance with this paragraph . ”


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant instituted proceedings in the ORG of GPE against his former wife and mother - in - law , PERSON and PERSON , seeking division of their jointly owned property , a CARDINAL - room flat . In particular , the applicant requested the court to rule that CARDINAL room be separated from the flat and to grant him title to that room . He submitted that the defendants did not allow him to enter the flat and that he had been forced to reside elsewhere .

The defendants lodged a counterclaim , asking the court to grant them joint title to the applicant 's part of the flat and to fix the amount of compensation they would have to pay the applicant . They argued that , due to personal conflicts with the applicant , they could not all live together in CARDINAL flat .

On DATE the court ruled in favour of the defendants . It found , relying on an expert 's report , that it was not technically possible to separate a single room from the flat . Relying on LAW of DATE , the court granted the defendants title to the entire flat and ordered them to pay the applicant CARDINAL NORP hryvnias ( ORG ) in compensation .

The applicant appealed , stating in particular that he had been deprived of his property against his will and in violation of the law , and that the defendants had failed to transfer the money to the deposit account of the court in order to prove their ability to pay the amount awarded to him in compensation .

On DATE the Kyiv City Court of Appeal partially changed the judgment of the first - instance court . It ruled that the latter court had wrongly relied on LAW of DATE , instead of Articles CARDINAL and CARDINAL of LAW of DATE , which were applicable in the case . ORG rejected the applicant 's appeal , holding , inter alia , that the defendants ' ability to pay the award had been confirmed by a bank statement , according to which the applicant 's former wife had a balance of MONEY ( ORG ) on her deposit account .

The applicant appealed in cassation , alleging that the lower courts had misinterpreted the law . According to him , the courts had failed to take into account the fact that he had not given his consent for compensation pursuant to LAW of DATE and that they had failed to ensure that the requirement laid down in paragraph CARDINAL of LAW of DATE had been fulfilled by the defendants .

On DATE a panel of CARDINAL judges of ORG dismissed the applicant 's appeal , finding no grounds on which to transfer the case for consideration by the chamber of ORG .

NORP The applicant did not institute enforcement proceedings in order to recover the sum awarded to him by the courts . According to the applicant , he did not receive the compensation awarded in the judgment of CARDINAL DATE because the debtors refused to pay it as they did not have sufficient funds .

By a judgment of DATE , ORG ruled to discontinue the applicant 's registration at the flat . On DATE an appeal by the applicant against that judgment was rejected as lodged out of time . The applicant did not appeal in cassation .

Relevant extracts from the LAW read as follows :

“ Everyone has the right to own , use and dispose of his property ...

No one shall be unlawfully deprived of the right of property . The right of private property is inviolable .

The expropriation of objects of the right of private property may be applied only as an exception for reasons of public necessity , on the grounds and through the procedure established by law , and on the condition of advance and full compensation of their value . The expropriation with subsequent full compensation of their value is permitted only in the conditions of martial law or a state of emergency .

The relevant provisions of LAW of DATE read as follows :

“ CARDINAL . An individual co - owner is entitled to the physical separation of a part of a jointly owned property with determined shares [ of each co - owner ] .

NORP If [ such ] a separation ... is not permitted by the law or is impossible ( paragraph CARDINAL of Article CARDINAL of this Code ) , the individual co - owner ... is entitled to receive monetary or other pecuniary compensation for his part from the other co - owners .

Compensation may only be provided with his consent ... ”

“ CARDINAL . The right to a part of a jointly owned property may cease to exist pursuant to a court decision [ taken ] further to a claim by other co - owners , if :

CARDINAL ) NORP the part is minor and can not be physically detached ;

CARDINAL ) NORP the object is indivisible ;

CARDINAL ) NORP joint possession and use of the property is impossible ;

CARDINAL ) NORP the cessation of the right will not cause substantial damage to the interests of the co - owner or members of his or her family .

NORP The court shall take a decision terminating a person 's title to a part of a joint property on the condition that the claimant makes an advance payment of the cost of that part to the court 's deposit account . ”

By decision of CARDINAL DATE , ORG quashed the judgment of the lower court in a dispute between private persons concerning division of their jointly owned flat and remitted the case for fresh consideration for the following reasons :

ORG terminating the right of [ a party ] to part of the flat did not comply with the condition set in paragraph CARDINAL of LAW which led to the incorrect determination [ of the dispute ] .

[ The opposing party ] was not present at the hearing before ORG and that court did not check the conditions of payment of compensation ...

Given the above breach of the law , the judgment of ORG concerning the division of the flat shall be quashed ... ”

ORG decision of CARDINAL DATE , by which it quashed the lower courts ' decisions in a dispute concerning division of the property jointly owned by private individuals , was inter alia based on the similar ground . In particular , the relevant parts of ORG decision read as follows :

By the decision of ORG , [ a party 's ] title to part of joint property was terminated , though in the case material there is no information concerning advance payment by [ the opposing party ] of the cost of that part into the court 's deposit account .

In such circumstances the challenged court decisions do not comply with the requirements of lawfulness and reasonableness ... and must be quashed with the referral of the case for new consideration ... ”

In that decision ORG also noted that :

The legal nature of the provisions [ of ORG CARDINAL and CARDINAL ] of LAW of GPE differs ; each of the provisions is a separate ground for lodging a claim ; the first provides for the right of a owner , who withdraws [ from joint ownership ] , to a part of a joint property , whereas the second provides for the possibility of terminating the right of a person to a part of a joint property upon a claim of other co - owners .

In this context , monetary or other type of pecuniary compensation under LAW of GPE may be paid to a co - owner , who withdraws [ from joint ownership ] , only with his consent . Whereas , under LAW of GPE no consent to obtain compensation ... by a person whose right to a part of a joint property is being terminated is necessary ( the claimant is only required to pay the cost of the part of property , the right to which is being terminated , to the court 's deposit account ) .

... [ Articles CARDINAL and CARDINAL of the Civil Code ] are mutually exclusive and can not be applied at the same time ... ”


Violation of Art. 10;No violation of Art. 7;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;N. Valticos;R. Pekkanen

The applicant was a conscripted probationary reserve officer holding the rank of second lieutenant .

In the course of his military service , the applicant claimed to have discovered a number of abuses committed against conscripts and came into conflict with his superiors as a result . Criminal and disciplinary proceedings were instituted against him . The former ended with his acquittal . However , a disciplinary penalty was imposed on him , as a result of which he had to serve additional time in the army .

On DATE the applicant was granted CARDINAL hours’ leave . He failed to return to his unit after its expiry . He was declared a deserter on CARDINAL DATE and criminal charges were brought against him .

On DATE the applicant sent a letter to his unit ’s commanding officer through a taxi driver .

NORP The letter read as follows :

“ PERSONAL STATEMENT

After DATE of military service as reserve officer cadet , I am obliged to inform you that I object to the prolongation of my military service following a penalty imposed on me for defending soldiers’ rights . Judging from my experience to this date , I think that it was imposed as part of a general approach intended to suppress both freedom of personality and the vindication of constitutional rights and personal freedom . Apart from the personal cost , I generally consider that imposing a penalty on young soldiers is inadmissible and unconstitutional , all the more so when such penalty is related to the struggle of young people for respect for the ideological – social human rights of people and [ their struggle ] to defend their personality against the humiliations of the military apparatus . Having maintained for DATE a fighting stance and a conscious position on that subject , I reserve the right , which is also a duty , to establish social justice and peace , now more than ever and , being fully aware of my actions which are imperatively dictated to me in the interests of society , hereby to DENOUNCE :

That the army is an apparatus opposed to man and society and , by its nature , contrary to peace .

I am now absolutely certain that the process of military service is responsible for crimes and aggressiveness in society since it has created a psychology of violence , overcoming in this manner all moral and psychological resistance to violence . The army remains a criminal and terrorist apparatus which , by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth , clearly aims at transforming people to mere parts of an apparatus of domination which ruins human nature and transforms human relations from relations of friendship and love to relations of dependence , through a hierarchy of fear guided by an illiberal and oppressing set of Standing Orders ( No . DATE ) , records of political beliefs , etc . The truth is that the living conditions in the army are unacceptable to the point of being destructive and any healthy form of resistance and any effort towards dialogue are persecuted and brought defenceless before the military justice , a dangerous institution that should be abolished . All this happens despite the electoral announcements of ORG concerning respect for the personality of the soldiers ; in reality , ORG participates in and encourages such oppressive processes . By this means of protest , I and all young people who feel a deep sense of injustice because their life has been reduced to tatters , FIGHT :

To stop all forms of persecution of those who have participated in processes that promote social justice , peace and the right to have an opinion on issues that concern our lives ; for the Ministry to have the political will to control in a meaningful manner the military power and to prosecute those who are really responsible for this authoritarianism , instead of systematically covering for them ; for the ORG to establish once and for all respect for the initiatives and social choices of young people , by eliminating all penalties for the promotion of such ideals . It should not content itself with “ socialist vocabulary ” and then follow the practice of extermination ; to declare that the elimination of these authoritarian institutions is a matter of a multi - faceted and long struggle at a personal , political and social level ; to put an end to discrimination , favouritism and dependency , all of these being methods used by corrupt organs .

Thus , having gone through this experience , I have developed a free conscience which prevents me from taking part in and being an accomplice to this criminal process , both in its operation and in its structure , and refuse from now on to wear my uniform in these conditions . If I were to wear it , I feel that I would find myself in a crisis of conscience , contrary to my nature and beliefs as a man brought up with liberal ideas . We , the young generation , will resist any attempt to be burdened with weaknesses and become vehicles of the military establishment . This is why my stance can not be lawfully considered to be desertion or insubordination , since it stems from fundamental human rights and is in conformity with the provisions of LAW . I consider that I remain a citizen and a free man who sought to remain true to his conscience and the free will flowing from it . I also consider that my stance and the voicing of my protest against this humiliation are the most genuine expression of solidarity with and support for conscientious objectors because I firmly believe that this is how the struggle for social liberation and peace is carried on . ”

A fellow reserve officer testified before ORG ( see paragraph CARDINAL below ) that the applicant gave him a copy of the letter on DATE . It has not been alleged that any further copies were circulated .

Taking the view that the content of the letter constituted an insult to the armed forces , the commanding officer instituted further criminal proceedings against the applicant under LAW of LAW ( see paragraph CARDINAL below ) .

On DATE the applicant appeared before the investigating officer , a member of the army judicial corps , who remanded him in custody on a charge of desertion .

The applicant was tried on DATE by ORG on charges of desertion and insulting the army .

At the outset of the trial the defence challenged the constitutionality of the second charge on the ground that the relevant criminal provision was not lex certa and that the expression of criticism could not amount to an insult . That preliminary objection was dismissed .

At the close of the hearing the president of the court formulated a series of questions which the members of the court had to address before deciding on the applicant ’s guilt . The questions relating to the insult charge were the following :

“ ( a ) Did the accused commit the offence of insulting the NORP army when , on DATE , while a reserve officer on probation , he sent a CARDINAL - page typed personal statement to the commanding officer of the X unit , which came to the latter ’s knowledge on DATE and which contained , inter alia , the following expressions contemptuous of , and disparaging , the authority of the army : ‘ ... [ T]he army is an apparatus opposed to man and society ... [ t]he army remains a criminal and terrorist apparatus which , by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth , clearly aims at transforming people to mere parts of an apparatus of domination which ruins human nature and transforms human relations from relations of friendship and love to relations of dependence , through a hierarchy of fear guided by an illiberal and oppressive set of Standing Orders ( No . CARDINAL ) , records of political beliefs , etc . ... ’ . In so doing , did he wilfully insult the NORP army as a constitutionally entrenched institution of the Nation ?

( b ) ... [ did the applicant act ] in the mistaken but bona fide belief that he was engaging in permissible criticism , in accordance with LAW currently in force ? ”

NORP In a judgment delivered the same day the court , by a unanimous vote , answered the first question in the affirmative and the second in the negative . The applicant was found guilty of desertion and insulting the army . Taking into account the fact that the applicant was a first - offender , the court sentenced him to imprisonment for DATE and DATE for the first offence and DATE for the second offence , and ordered him to serve a global sentence of DATE and DATE .

NORP The applicant lodged an appeal with ORG which was heard on CARDINAL DATE . In a judgment delivered the same day the court quashed the applicant ’s conviction for desertion . However , it upheld , by CARDINAL votes to CARDINAL , his conviction for insulting the army after dismissing his objection that the relevant provision was contrary to the LAW and , taking into account that the applicant had no previous convictions , sentenced him to CARDINAL months’ imprisonment . The applicant was immediately released , the time he had spent in detention on remand being credited against his sentence .

On DATE the applicant lodged an appeal on points of law to ORG ( PERSON ) , on the ground that LAW of LAW had not been correctly construed and applied . He argued , inter alia , that general criticism of the armed forces could not be considered an insult . He claimed in addition that the provision in question violated LAW because of its vagueness and could not be considered lex certa , and also that it imposed unwarranted limitations on the right to freedom of expression .

The applicant ’s appeal on points of law was heard by a Chamber of the Court of Cassation on DATE . On CARDINAL DATE ORG decided to submit the case to the plenary court , having considered , by CARDINAL votes to QUANTITY , that LAW of LAW did not violate the LAW and that it had been correctly applied in the applicant ’s case .

NORP In a judgment delivered on CARDINAL DATE the plenary ORG considered that LAW of the Code sufficiently circumscribed the elements of the offence , namely the insult and the intention of the culprit . Elaborating on this point , the court held that

“ [ CARDINAL concept of ‘ ORG includes every show of contempt damaging the esteem , and respect for , and the reputation of , the protected value . To qualify as an insult , such expression must convey contempt , taunt and denigration ; it is not sufficient merely to call into question the protected value . This value is the armed forces and , more particularly , not the army or air force and the navy individually , but the armed forces in their entirety as an idea and an institution entrusted with defending the freedom and independence of the country and the necessary training of NORP who are able to bear arms . Article CARDINAL of LAW does not specify the nature of the insult nor the manner and means by which the insult is made , as it was not the intention of the legislature to make insulting behaviour of a particular kind , or committed in a particular manner , or by a particular means , a criminal offence . Any insult of the army by a member of the armed forces constitutes a criminal offence . This does not create any uncertainty as to the elements of the offence . Any further specification would have limited the scope of the criminal prohibition , which the legislature did not intend . Article CARDINAL of the LAW , which protects freedom of opinion , does not in any way preclude the legislature from making every instance of insulting the army by a member of the armed forces a criminal offence . The protection of LAW is subject to limitations provided for by law ... ”

For these reasons , the plenary ORG upheld the applicant ’s conviction .

Article CARDINAL § CARDINAL of the NORP LAW provides :

“ Every person may express and propagate his thoughts orally , in writing and through the press in compliance with the laws of the ORG . ”

Article CARDINAL of LAW provides :

“ Insults to the flag or the armed forces

A member of the armed forces who insults the flag , the armed forces or an emblem of their command shall be punished by a term of imprisonment of DATE . If he is an officer , he shall also be stripped of his rank . ”

A corresponding civilian offence is defined by LAW , which provides as follows :

“ Insults to authorities and to symbols

Any person shall be punished with imprisonment for DATE who :

a ) publicly insults the Prime Minister of the country , the ORG , ORG , the Speaker of ORG , the leaders of the political parties recognised by the Rules of ORG and the judicial authorities ;

b ) insults or , as a display of hatred or contempt , damages or disfigures an emblem or symbol of ORG sovereignty or the President of the Republic .

Criticism in itself shall not constitute an insult of an authority . ”

A new Military Criminal Code entered into force in DATE . LAW of that LAW provides :

“ A member of the armed forces who , by speech , actions or any other means whatsoever , publicly expresses contempt for the flag , the armed forces or a symbol of their authority , shall be punished by a term of imprisonment of DATE . ”


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants are NORP nationals who all live in GPE , GPE .

Mr PERSON , a locksmith , and his wife PERSON , a housewife , who were born in DATE and DATE respectively , lodged a complaint in their own right and as representatives of their son PERSON , who was born in DATE ( application no . CARDINAL/CARDINAL ) .

Mr PERSON , a locksmith , and his wife PERSON , a housewife , born in DATE and DATE respectively , lodged a complaint in their own right and as representatives of their daughter PERSON , who was born in DATE ( application no . TIME ) .

Applications were also lodged by Mr PERSON , a carpenter , and his wife PERSON , a housewife , who were born in DATE and DATE respectively ( application no . CARDINAL/CARDINAL ) , PERSON PERSON , an electronic mechanical engineer , and his wife PERSON , a housewife , who were born in DATE and DATE respectively ( application no . DATE ) , and Mr PERSON , a cabinetmaker , and his wife PERSON , a housewife , who were born in DATE and DATE respectively ( application no . CARDINAL/CARDINAL ) . PERSON , PERSON and PERSON are brothers .

The applicants ORG and the CARDINAL couples PERSON were represented before the ORG jointly by PERSON , a lawyer practising in GPE and PERSON , a lawyer practising in PERSON . The applicants PERSON were represented by PERSON alone .

The applicants are members of ORG and hold strong moral beliefs as part of their religious faith .

Each of the CARDINAL couples have several children who attend or who attended a local public primary school in GPE , GPE .

Mandatory sex education classes form part of the school curriculum in DATE of primary schooling . In DATE , the school conference ( PERSON ) – a body established at every school consisting of the school ’s principal and elected representatives of teachers , parents and pupils – had further decided that a DATE school theatre workshop “ PERSON gehört mir ” ( “ My body is mine ” ) should be organised at regular intervals as a mandatory school event for children in DATE , comprising the age group DATE , for the purpose of raising awareness of the problem of sexual abuse of children by strangers or family members with a view to its prevention .

The subject of prevention of sexual abuse is part of the official curriculum in the Federal Land of GPE and the said theatre workshop is run at numerous schools in the Land . In the course of role play , children are presented with different situations in which sexual abuse might occur and are taught that they may resist behaviour that makes them feel uncomfortable and how to report such behaviour to a person of trust if need be . Parents were informed of the content and purpose of the workshop prior to its implementation in DATE . DATE workshop modules took place on CARDINAL and DATE and on CARDINAL and DATE , as well as during school terms in subsequent DATE .

In addition , it is a school tradition at the PERSON primary school to organise an DATE carnival celebration for pupils called the “ PERSON ” . By a decision of the school conference of DATE , the celebrations for DATE were fixed for DATE and parents were informed accordingly . Attendance at the celebrations is compulsory until the official end of TIME school lessons . Children are free to dress up and wear costumes during the celebrations and to participate in a carnival procession that is organised in the school yard following compulsory school hours . Since DATE the school has offered swimming classes or exercise in the gym as an alternative activity for children who do not wish to attend the compulsory school carnival celebrations in the TIME .

In DATE PERSON and PERSON attended DATE of the LOC public primary school . By letter dated DATE , the parents of the children who attended DATE were informed that CARDINAL sexual education lessons were to be held as from DATE dealing with subjects such as procreation , pregnancy and child birth . They were further informed that parents had the opportunity to look at the book to be used for these lessons as from the following school DATE that is , on DATE .

After having looked at the book , the ORG and PERSON parents , together with other parents belonging to ORG and whose children attended the same school , requested that their children be exempted from sex education classes in the period from CARDINAL to DATE . They asserted that their children had been raised without the negative influence of the media , had been used to modest and chaste sexual behaviour at home and did thus not have the necessary maturity to receive the envisaged sex education . The parents objected in particular to the book ’s content , which in their opinion was partly pornographic and contrary to NORP sexual ethics requiring that sex should be limited to matrimony . In their view , it set forth a liberal , emancipatory image of sexuality which was not consistent with their religious and other moral beliefs and would lead to premature “ sexualisation ” of the children .

The school refused the request on the grounds that , according to the relevant guidelines and the curriculum , attendance at the lessons was mandatory . PERSON and PERSON attended the first CARDINAL sex education lessons . Following the refusal of a further request to exempt their children from sex education classes , several parents belonging to ORG , including the ORG and PERSON parents , appeared in the school building on DATE and prevented their children from attending the next sexual education lesson , against the school principal ’s wishes . The principal and class teacher subsequently decided to hold the lessons at irregular intervals and at TIME in order to hinder any obstruction by the parents . Consequently , the parents kept their children off school for DATE of CARDINAL to DATE , during which the remaining sexual education lessons were held .

PERSON and PERSON , as well as PERSON and PERSON , were each fined MONEY ( ORG ) for not sending their children to school during the aforementioned period . ORG upheld the fines imposed in the case of the ORG couple by a judgment of CARDINAL DATE and in the case of the PERSON couple by a judgment of CARDINAL DATE , holding that to keep the children off school without having been granted the necessary exemption by the school ’s principal had not been justified .

In its judgment of DATE the court held that the GPE right to educate their children and their right to freedom of religion was restricted by the ORG ’s mandate to provide for education , which was implemented by means of compulsory schooling . The neutral transmission of knowledge regarding reproduction , contraception and so forth in school did not prevent the parents from conveying their moral values to their children and did not infringe the personal rights of the children .

In its judgment of CARDINAL DATE the court further specified that the lessons had been held in accordance with the underlying legal provisions and the ensuing guidelines and the curriculum , which had been based on current scientific and educational standards . The same was true for the teaching materials used , which had delicately introduced the subject of sexuality and childbirth to the reader and which had helped to counteract any possible sense of shame . Sexual education for the concerned age group was necessary with a view to enabling children to deal critically with influences from the society , instead of avoiding them and being isolated . The court specified that in any event the applicants had not been entitled to prevent their children from attending mandatory lessons but could have used legal means to obtain an exemption for the children from the lessons at issue by , for instance , lodging a request for interim measures with the competent administrative courts .

ORG dismissed appeals on points of law subsequently brought against the above judgments by a decision of CARDINAL DATE with respect to the ORG couple and by a decision of CARDINAL DATE with respect to the PERSON couple . ORG found that it was established case - law that compulsory schooling constituted an admissible restriction of GPE rights to freedom of religion and to educate their children . In its decision of CARDINAL DATE ORG stressed in addition that the ORG ’s mandate to provide education was not limited to the transmission of knowledge but also aimed at educating responsible and emancipated citizens capable of participating in the democratic processes of a pluralistic society with a view , in particular , to integrating minorities and avoiding the formation of religiously or ideologically motivated “ parallel societies ” .

On DATE and CARDINAL DATE respectively ORG refused to admit the related constitutional complaints without providing reasons .

On DATE PERSON and PERSON also kept CARDINAL of their daughters , who was born in DATE , off school , as the theatre workshop “ My body is mine ” was running on DATE . They also prevented her from attending accompanying sexual education classes in DATE . They argued that , while they were not opposed to sexual education in school in general , they regarded the particular curriculum used as being harmful to the moral development of their daughter . They were fined EUR CARDINAL each .

ORG upheld the fines by a judgment of CARDINAL DATE . It held that the transmission of knowledge in the field of sexual violence and abuse with a view to providing children with tools to find help in difficult situations also fell within the educational mandate of the ORG and that the religious motives cited by the parents did not constitute sufficient justification to prevent the child ’s school attendance . It further found that the fine of ORG CARDINAL had been justified in view of the previous conviction of the couple by the court ’s judgment of CARDINAL DATE .

ORG dismissed an appeal on points of law brought by the couple by a decision of CARDINAL DATE .

On DATE ORG refused to admit their subsequent constitutional complaint without providing reasons .

On CARDINAL and DATE PERSON and PERSON prevented CARDINAL of their children , and PERSON and PERSON prevented CARDINAL of their children , who would have been in the envisaged age group , from attending the school theatre workshop “ My body is mine ” . They stated that it was incompatible with their religious convictions to make a child ’s own feelings and will the basis of his or her sexual behaviour , as this would encourage them to act according to their sexual desire like an adult , lose their sense of shame and engage in sexual acts with adults . The biblical doctrine of chastity , limiting sexuality to matrimony , constituted sufficient protection against sexual abuse and there was no scientific proof that the theatre workshop had a preventive effect in this respect .

On DATE , each of PERSON and PERSON and PERSON and PERSON further prevented CARDINAL of their respective children from attending the school carnival celebrations on the grounds that they were inconsistent with their religious and moral beliefs and the religious education they provided to their children . They stated that , in their opinion , the “ PERSON ” carnival was a NORP festivity which was directed by carnal desire and accompanied by immoral and uninhibited behaviour . They claimed that they had not been aware that their children would have had the alternative opportunity to attend swimming lessons and that they had not sent their children to school in order that the children not be exposed to the carnival celebrations in the classroom or the gym . Compulsory attendance at such an event constituted a violation of their freedom of conscience and religion , as well as their right to educate their children .

Each of ORG , PERSON and PERSON were fined LAW and PERSON and PERSON were both fined ORG CARDINAL by the school authorities for not sending their children to the mandatory school events without having obtained prior exemption from the school principal .

ORG upheld the fines by separate judgments of DATE in respect of each of the CARDINAL couples .

Concerning the school theatre workshop , it found that the GPE constitutionally guaranteed right to educate their children in accordance with their religious and moral beliefs and their children ’s right to freely determine their attitude towards sexual matters were on an equal footing with – and restricted by DATE the ORG ’s mandate to provide for school education . While the ORG could pursue its own educational goals , it had to be neutral and tolerant towards the GPE views and refrain from systematic political , ideological or moral manipulation . As regards sexual education in school , the school authorities had had to take into account the children ’s natural sense of shame and had been required to consider the GPE related moral and religious beliefs . The court was of the opinion that the school theatre workshop in the case at hand had been solely aimed at raising awareness regarding the subject of sexual abuse , which was undeniably a matter where there was a need for action by the ORG in order to protect children at an early stage . The school event had not promoted or rejected specific sexual behaviour and had not put into question any sexual doctrine based on the applicants’ religious beliefs .

As regards the carnival celebrations , the court found that , as they had not been accompanied by any religious activities and their sole purpose had been that the pupils could celebrate together until TIME lessons , the ORG ’s duty of neutrality and tolerance had been observed . Furthermore , the children had had the opportunity to attend alternative events and their parents must have been aware of that alternative , which had also showed that the school authorities had tried to accommodate the religious and moral beliefs of the several children belonging to the GPE faith in the local primary school to the extent possible , bearing in mind the proper functioning of the school system .

ORG dismissed appeals on points of law lodged by each of the couples . It did so by decisions of CARDINAL DATE with respect to PERSON and PERSON and PERSON and PERSON and by CARDINAL decisions of DATE it dismissed related complaints by the CARDINAL couples of a violation of their right to be heard .

By a decision of CARDINAL DATE the ORG dismissed the appeal on points of law lodged by PERSON and PERSON against ORG judgment of DATE . ORG decision was served on their counsel on DATE .

On DATE ORG , by a reasoned decision , refused to admit a constitutional complaint lodged by PERSON and PERSON against the above - mentioned decisions rendered in their respect . ORG reiterated that the constitutionally guaranteed right to freedom of religion in conjunction with the right of parents to care for and educate their children comprised the GPE right to impart their religious and moral beliefs to their children and protect them from diverging opinions . However , the LAW also called on the ORG to provide school education , a mandate that was implemented by means of compulsory schooling , which therefore constituted an admissible restriction of the GPE right to educate their children . While the ORG had the right to pursue its own educational goals , it was nevertheless under an obligation to act in a neutral and tolerant manner vis - à - vis the educational views of parents . The ORG had to refrain from measures aiming at systematic manipulation in respect of specific political or ideological concepts and from identifying itself with a particular belief or ideology in order not to jeopardise religious peace in society .

ORG found that the decisions of the domestic courts in the case at hand had complied with these principles . ORG had correctly assessed that the school theatre workshop , raising the children ’s awareness of possible sexual abuse and presenting ways of preventing it , had not infringed the school authorities’ obligation of neutrality . The workshop would not have put into question the GPE sexual education based on their religious convictions , as the children would not have been influenced to approve of or reject specific sexual behaviour . The ORG allegations that the theatre workshop promoted “ free sexuality ” for children or constituted grooming of the children for paedophilia had neither been supported by the facts as established by the lower courts nor by the content of the teaching materials used for the theatre workshop . In the light of these considerations , there was nothing to establish that the lower courts had misjudged the scope of the GPE right to freedom of religion and to educate their children according to their religious and moral beliefs .

ORG further held that ORG finding that the “ PERSON ” carnival event had not infringed the ORG ’s obligation of neutrality was unobjectionable , taking into account that the event had not been connected with religious acts and that the children had been under no obligation to dress up or wear costumes or actively participate in the celebrations . The same was true for ORG finding that the applicants’ right to freedom of religion and their right to educate their children had not required that the school authorities prevent the applicants’ children from witnessing the other ORG . Such tension between the religious convictions of a minority and the conflicting traditions of the majority resulting from school attendance were acceptable as a matter of principle . This was even more obvious where , as in the case at hand , the school authorities had attempted to strike a balance between the GPE constitutional rights and the ORG ’s mandate to provide education by offering alternative events .

By a decision of the same date , ORG also refused to admit a constitutional complaint lodged by PERSON and PERSON without providing reasons . The decisions were not posted to the claimants before CARDINAL DATE .

In view of ORG decisions with respect to their relatives , PERSON and PERSON refrained from lodging a constitutional complaint .

It appears that on subsequent occasions in following school terms , the CARDINAL PERSON couples continued to prevent those of their children who were subject to CARDINAL or the other of the aforementioned compulsory sexual education modules or school events from attending them . The parents were subject to ever increasing fines , which they deemed to be unlawful and refused to pay . As attempts by the domestic authorities to enforce payment were to no avail , the parents were each sentenced to imprisonment in lieu of payment for up to DATE .

For instance , by separate decisions of ORG of DATE , PERSON was sentenced to a fine of ORG CARDINAL and PERSON to a fine of EUR CARDINAL for not sending several of their children to compulsory school events on repeated occasions . Following fruitless attempts to enforce payment of such fines , an application by the public prosecutor to impose a prison sentence of DATE with respect to PERSON and DATE with respect to PERSON was granted by separate decisions of ORG on DATE .

PERSON subsequent appeal was dismissed by a decision of ORG on CARDINAL DATE . The court held that the applicant ’s imprisonment had been lawful and had not been disproportionate . It emphasised that the applicant had initially been fined and that imprisonment had not been a sanction for the administrative offence on which the fine had been based but solely a means to enforce the applicant ’s payment obligation . The question of whether the imposition of the underlying fine had been lawful was not the subject of the proceedings regarding the prison sentence . ORG further held that the length of the sentence imposed had been in line with ORG practice and had thus been proportionate .

By a decision of CARDINAL DATE ORG dismissed an appeal brought by PERSON against the imprisonment order with similar reasoning . However , when comparing the length of the sentence imposed with previous sentences imposed by ORG for unpaid fines ( such as DATE for a fine of LAW and forty days for a fine in the amount of ORG MONEY ) , the court found that the sentence of DATE handed down to PERSON had been excessive and reduced it to DATE .

No further court decisions with respect to imprisonment orders relating to other members of the PERSON family were submitted to the ORG . However , according to information submitted by the ORG counsel , similar sentences were imposed on all of the parents . It appears that PERSON served a prison sentence from CARDINAL DATE to CARDINAL DATE and that his wife PERSON was sentenced by a decision of ORG on DATE to a prison sentence of DATE for non - payment of a fine in the amount of ORG CARDINAL , service of which sentence commenced on an unknown date in DATE . Her request for immediate release from prison lodged with ORG under Rule CARDINAL of ORG on the grounds that , in particular , the length of her prison sentence had been disproportionate in breach of LAW and had caused irreparable damage to her family life as protected by LAW , was rejected by the President of the Fifth Section on DATE .

It further appears that similar prison sentences imposed on PERSON and PERSON were adjourned because of PERSON being pregnant and PERSON nursing a newborn child .

Pursuant to LAW , freedom of religion shall be inviolable and its undisturbed practice shall be guaranteed .

While DATE ( CARDINAL ) of LAW acknowledges that the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them , its LAW stipulates that the entire school system shall be under the supervision of the state . LAW CARDINAL guarantees , inter alia , the right to establish private schools . Private schools that serve as alternatives to state schools shall require the approval of the state and shall be subject to the laws of the Länder . Paragraph CARDINAL states that private primary schools shall be approved only if the educational authority finds that the school serves a special educational interest or if , on the application of parents or guardians , it is to be established as a denominational or interdenominational school or as a school based on a particular philosophy and no state primary school of that type exists in the municipality .

Pursuant to section CARDINAL of LAW of the Federal Land of GPE ( Schulgesetz NRW ) , sexual education in school complements sexual education by a child ’s parents . Its aim is to provide pupils with knowledge of biological , ethical , social and cultural aspects of sexuality according to their age and maturity in order to enable them to develop their own moral views and an independent approach towards their own sexuality . Sexual education should encourage tolerance between human beings irrespective of their sexual orientation and identity . Paragraph CARDINAL of the said provision stipulates that parents have to be informed in due course of the purpose and content of school sexual education .

Primary schooling in GPE comprises DATE . Pursuant to GPE and LAW of the Federal Land of GPE ( ORG ) , compulsory primary schooling starts at DATE and applies to all children having their residence in GPE . Children are obliged to regularly attend classes and all other mandatory school events and parents are responsible for ensuring regular attendance by their children . At the request of a child ’s parents , a school ’s principal may exempt pupils from certain classes or school events in the event that important reasons justify such exemption ( sections GPE ) , CARDINAL ) , CARDINAL ) and CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW and sections CARDINAL(CARDINAL ) , PERSON ) , PERSON ) , CARDINAL and CARDINAL ) and ( CARDINAL ) of LAW ) . Failure by the parents to ensure their children ’s attendance constitutes an administrative offence which may result in the imposition of a fine ( section CARDINAL of LAW ) .

According to section CARDINAL of LAW , fines may range from ORG CARDINAL to CARDINAL depending on the nature of the offence . Section CARDINAL of the said LAW specifies that in the event of several fines each of them shall be determined separately . Pursuant to section CARDINAL of the same LAW , the competent court may order arrest to enforce the payment of a fine in the event that : ( i ) the amount has not been paid within DATE following entry into force of the decision by which it was imposed ; ( ii ) it has not been established that the debtor is unable to pay ; and provided that ( iii ) the debtor has been informed of the possibility of his arrest . The duration of the arrest in lieu of payment may not exceed DATE and in the event of several fines imposed by CARDINAL decision it may not exceed a period of DATE . An arrest may not be repeated in respect of the same fine .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE she suffered a heart attack . With regard to her treatment before and after this incident she accused her family practitioner of medical malpractice .

At DATE , after having been granted legal aid , the applicant lodged a claim of medical malpractice against her family practitioner with ORG .

On DATE ORG ordered an expert report and on DATE appointed the expert . By letter of CARDINAL DATE the expert informed the court that due to illness he was unable to take up his work . On DATE the court appointed a new expert who had been recommended by the medical association in DATE .

On DATE , CARDINAL and QUANTITY DATE the court enquired about the report but did not receive an answer . On DATE it ordered the expert to submit his report until DATE on pain of a fine of CARDINAL EUR . On DATE the court again requested , to no avail , information from the expert as to the current state of affairs .

On DATE the court ordered the expert to return the files by DATE . On DATE , after it had received no response from the expert , the court once more ordered the return of the files . On CARDINAL DATE the court unsuccessfully tried to contact the expert by telephone . On DATE the court again ordered the return of the files , setting a deadline of DATE and threatening to forward the case to ORG . On DATE the parties were informed that the matter had been handed over to ORG president for further action . On DATE the court imposed on the expert all costs caused by his refusal to draw up the report and return the files . On DATE the court notified the parties that the delivery of the files was now to be enforced . On DATE the parties were informed that in the meantime the files had been returned to the court .

On DATE and DATE the court held QUANTITY hearings , in the course of which it heard CARDINAL witnesses .

On DATE , after the single judge had referred the case to the chamber , a new expert report was ordered , to be submitted at the latest on CARDINAL DATE . On DATE the court also scheduled an oral hearing for DATE . On DATE the expert submitted his report . On DATE the court ordered a supplement to the report and rescheduled the hearing for DATE . On DATE this hearing was cancelled .

On DATE a new hearing was scheduled for DATE . Upon request of defendant ’s counsel the hearing was subsequently rescheduled for DATE .

On DATE the oral hearing was postponed until DATE . On DATE the applicant applied for an amendment of the transcript of this hearing . The application was dismissed on DATE . On DATE the court ordered another expert report . On DATE the expert submitted his report . On DATE the court held another hearing .

On DATE ORG dismissed the applicant ’s claim . The judgment was served on DATE .

On DATE the applicant lodged an appeal . After it had informed the applicant that her appeal was inadmissible , because it had not been filed by a lawyer , ORG dismissed the appeal on DATE .

On DATE the applicant pressed criminal charges against her family practitioner . On DATE the proceedings were suspended pending the outcome of the civil proceedings . On DATE the proceedings were discontinued in view of the death of the family practitioner .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

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

On DATE the applicant lodged an action with ORG raising various claims in relation to his previous employment . The background to the litigation transpires from the ORG ’s decisions and judgments in other of the CARDINAL cases that the applicant has thus far brought under LAW ( see , for example , applications nos . CARDINAL , CARDINAL/CARDINAL , GPE , GPE , GPE , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) .

On DATE the action was transmitted to ORG for reasons of territorial jurisdiction , it was registered there under file no . CARDINAL CARDINAL/CARDINAL and it has been pending there since . Meanwhile a number of procedural matters have been determined on the applicant ’s motions , appeals and appeals on points of law at all levels of ordinary jurisdiction .

On DATE and DATE ORG ruled on the applicant ’s complaint and a repeated complaint under LAW of the LAW of delays in the proceedings caused by ORG . ORG allowed both complaints , ordered that ORG proceed with the matter without delays and awarded the applicant in total MONEY in compensation for non - pecuniary damage plus reimbursement of costs


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company GPE .

On DATE the applicant instituted civil proceedings against GPE in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

On DATE and DATE he made requests that a date be set for a hearing .

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

During the proceedings , the court appointed a medical expert .

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

On DATE ORG issued a decision on the correction of the judgment , which was served on the applicant on DATE .

In the meantime , on DATE , the applicant appealed to ORG ( PERSON v PERSON ) .

On DATE the court allowed the applicant ’s appeal in part and increased the damages awarded .

The judgment was served on the applicant on DATE .


Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

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

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

In DATE the applicant inherited a house with a garden and surrounding land belonging to his grandmother who , in DATE , together with her husband , incorporated her real estate in a local agricultural cooperative .

In DATE another grandson living abroad appealed against the original inheritance decision .

In DATE the cooperative was transformed into a private enterprise .

On DATE the applicant brought a civil action at the NORP ORG ( okresní soud ) against the cooperative in order to recover the incorporated property .

On DATE the proceedings were suspended pending the reopened inheritance proceedings .

A bankruptcy order was made regarding the cooperative 's property . The proceedings were therefore stayed ex lege .

On DATE the ORG distributed the inheritance among the applicant and other heirs . On DATE ORG ( krajský soud ) partly modified this decision . ORG decision became final on DATE .

In a resolution of DATE the bankruptcy proceedings against the bankrupt 's property were cancelled . The resolution became final and conclusive on DATE .

In a judgment of DATE ORG ordered the cooperative to pay CZK MONEY ( ORG CARDINAL ) to the applicant , dismissing the remainder of his claims .

On DATE the applicant appealed .

On DATE ORG rejected his appeal as having been filed outside the statutory time - limit which had expired on DATE , ORG judgment having been notified to the applicant on DATE . The applicant filed a complaint against this decision . In a letter of DATE the President of ORG informed him that ORG had returned the case - file to ORG with an instruction that the judgment of DATE should be properly notified to the applicant .

It appears that the proceedings are still pending .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG 's decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .