Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON NORP , by DATE an NORP national , was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE .

In DATE the applicant married an NORP national in GPE . Subsequently they moved to GPE . In DATE their son was born .

On DATE the applicant and her former husband agreed that they would “ seek to have clarified further rights , like alimony and pension rights , by their lawyers according to NORP law ” .

By a decision of ORG of DATE , on her former husband ’s request , the applicant was divorced . The court found that , on the basis of NORP law – the law applicable to the facts of the present case – the petition was well - founded . At that time , no motion for a compensation of pension rights had been lodged .

On DATE ORG rejected the applicant ’s request for subsequent compensation of pension rights ( nachträgliche ORG ) . It found that , on account of the fact that both parties were of NORP nationality , section CARDINAL paragraph CARDINAL of ORG between ORG and the GPE ( Niederlassungsabkommen , hereinafter referred to as “ the Agreement ” , see “ Relevant domestic and international law and practice ” below ) excluded the application of section QUANTITY sentence of LAW to LAW ( see “ Relevant domestic and international law and practice ” below , hereinafter referred to as “ the LAW ” ) DATE which alone could be the basis for compensation of pension rights . It pointed out that the Agreement intended to attribute all the consequences of a divorce and the divorce itself to the law of the parties’ common nationality . It also held that the fact that under NORP law compensation of pension rights was not known did not violate the NORP ordre public .

On DATE ORG confirmed this decision . It also found that LAW paragraph CARDINAL of the Agreement clearly excluded the application of section QUANTITY sentence of LAW . It pointed out that pension rights adjustment had only been established in DATE and was not known in many countries . It also found that the applicant ’s and her former husband ’s statement , namely that they would seek to have clarified by their lawyers their further rights , such as alimony and pension rights , irrespective of the question whether it qualified as choice of law , in any event lacked the required notarial certification .

On DATE ORG dismissed a further appeal by the applicant . It also found that , given the apparent absence of a choice of law by the parties and the lack of a violation of the NORP ordre public , the Agreement excluded the application of section CARDINAL § CARDINAL second sentence of LAW . On DATE ORG dismissed her appeal that she had been denied a fair hearing .

On DATE , without stating further reasons , ORG refused to hear the applicant ’s constitutional complaint .

The balancing of pension rights acquired by CARDINAL partner in the course of the marriage has been introduced into NORP law in DATE ( in the states ( ORG ) of the Former GPE it has been introduced in DATE ) . This comprehensive balancing of all private and public pension entitlements between spouses is aimed at protecting the “ weaker ” partner , in particular women who often did not work at all . It is related to both , family law and social law .

Apart from NORP law only NORP law has a compensation of pension rights in the sense of a comprehensive balancing of pensions . Other forms of social safeguards on divorce , existing in some other countries , only in parts can be compared to the compensation of pension rights in NORP law .

Section CARDINAL § CARDINAL of LAW to the NORP Civil Code provides that rules in international conventions , in so far as they have become directly applicable in national law , take precedence over the LAW .

Section CARDINAL of LAW lays down that a provision of the law of another country shall not be applied where its application would lead to a result which is manifestly incompatible with the fundamental principles of NORP law . A violation of this ordre public reservation has been found in some cases concerning the application of sharia law , namely in a case concerning polygamy . It is applied very restrictively .

According to section DATE first sentence of LAW a choice of law concerning the general effects of marriage must be notarially certified .

Under NORP conflict of laws rules , compensation of pension rights is , in general , governed by the law applicable to the general effects of marriage ( section CARDINAL § CARDINAL first sentence of LAW ) . This , primarily , is the law of the country of shared nationality of the spouses ( section LAW ) . It shall only be carried out if NORP law is applicable and if such balancing is recognised by the law of CARDINAL of the countries of which the spouses were nationals at the time when the divorce petition was served .

Pursuant to section QUANTITY sentence of LAW it can exceptionally be carried out , even if the conditions of the first sentence are not given , provided that ( CARDINAL ) CARDINAL spouse applies for it , ( CARDINAL ) the other spouse has acquired an inland pension right during the subsistence of the marriage and ( CARDINAL ) in so far as carrying it out would not be inconsistent with equity in light of mutual economic circumstances of the parties during the time spent in the country ( known as “ irregular pension rights adjustment ” ) .

Section CARDINAL § CARDINAL of the ORG provides that in respect of personal , family and inheritance issues the law of the common nationality of the parties is applicable . In LAW ) to the Agreement it is clarified that all aspects of family law shall be governed by that law .

The continued application of this Agreement has been confirmed by the NORP - Iranian Protocol of DATE ( BGBl . DATE II No . DATE , p. CARDINAL ) and also by a number of decisions of ORG , ORG and ORG ( see , inter alia , decision of ORG of DATE ( QUANTITY ) ; judgment of ORG of DATE ( BVerwGE CARDINAL , CARDINAL ) ) .


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

At TIME on DATE , a police car stopped outside the shop run by the applicant in GPE ’s LOC . CARDINAL police officers got out of the car and asked the applicant to remove the letters “ FAC ” ( the abbreviation for ORG , an illegal organisation ) written on a wall , CARDINAL shops down the road from the applicant ’s shop .

When the applicant refused to comply with that request and told the police officers that it was not his wall and therefore he had no obligation to clean it up , the police officers started to beat him . A number of other police officers , who were driving in the area at the time , also stopped and took part in the beating . The police officers then took the applicant into custody where they continued to beat him in order to force him to sign statements , confessing to the offence of obstructing the police in the course of their duty .

According to the incident report prepared by the QUANTITY police officers who had beaten the applicant , the letters “ PERSON / C ” had been on the wall of the applicant ’s shop and the applicant had told them that he would “ rather die than wipe them away ” and had then run away . When the police officers gave chase , the applicant had thrown stones at them and had kicked and punched them , injuring CARDINAL of them in the process . Consequently , the officers had taken the applicant to the police station .

The following day the applicant was taken to ORG in GPE ’s GPE district where a medical report was prepared . According to this report , the applicant ’s body bore a number of ecchymoses and lacerations .

The applicant was then brought to the office of the public prosecutor in LOC where he told the prosecutor that the police officers had tortured him .

DATE the prosecutor referred the applicant to the LOC branch of ORG where he was examined by a doctor . The following injuries are recorded in the medical report prepared at the end of that examination : a QUANTITY long abrasion on the left side of the rear parietal region ; QUANTITY long ecchymosed area stretching from the back of the left shoulder to the right scapular area ; an ecchymosed area measuring CARDINAL by QUANTITY below the left scapular region ; an ecchymosed area , measuring QUANTITY by QUANTITY , on the left lumbar ; CARDINAL ecchymosed areas , measuring CARDINAL by CARDINAL and CARDINAL by QUANTITY , on the right side of the chest ; QUANTITY long bleeding grazes and CARDINAL ecchymosed areas , each measuring QUANTITY in diameter , on the inside of the left arm ; CARDINAL ecchymosed areas , each measuring QUANTITY , on the left cheek ; and another ecchymosed area on the right tibial region . The report concluded that the applicant would be unable to work for DATE .

NORP The same day the prosecutor ordered the applicant ’s release .

On DATE the applicant lodged a formal complaint with the ORG prosecutor , seeking the prosecution of the CARDINAL police officers responsible for the ill - treatment .

The following day the ORG prosecutor rendered a decision of non - jurisdiction , under the PERSON on ORG , and transferred the case file to the governor ’s office in GPE for the “ necessary action to be taken ” .

On DATE ORG , presided over by the ORG governor , granted authorisation for the prosecution of the CARDINAL officers .

In its decision of CARDINAL DATE , ORG of First Instance ( hereinafter “ the trial court ” ) convicted the QUANTITY police officers of the offence of ill - treatment contrary to LAW , and sentenced each of them to CARDINAL months’ imprisonment . The trial court also ordered their suspension from duty for DATE . Considering that the applicant ’s “ refusal to wipe away the writing on the wall and his attacks on the police officers ” amounted to a “ provocation ” , within the meaning of LAW , the trial court reduced the prison sentences by DATE and sentenced each officer to DATE and CARDINAL days’ imprisonment . Taking into account the way in which the incident had taken place and the unlikelihood of police officers committing offences , the trial court was of the opinion that these particular officers would not reoffend if their sentences were suspended . Accordingly , it suspended their sentences under LAW no . CARDINAL .

CARDINAL of the QUANTITY police officers lodged appeals against the judgment . The judgment became final in so far as it concerned the third police officer , who did not appeal .

On DATE the judgment was quashed by ORG in so far as it concerned the CARDINAL appellant police officers . ORG held that the provisions of Law no . DATE should be applied to them .

On DATE the trial court suspended the proceedings against the CARDINAL police officers in accordance with PERSON no . DATE , which had entered into force on DATE and which provides for the suspension of criminal cases in respect of certain offences committed before DATE .

The applicant lodged an objection with ORG against the trial court ’s decision , pointing out that ORG had waited DATE before rendering its judgment , and had only quashed the judgment following the entry into force of Law no . DATE . In any event , criminal proceedings concerning the offence of torture were outside the scope of that PERSON and could not , therefore , be suspended . Since , under NORP law , ill - treatment could only be classified as torture if it was inflicted with the aim of extracting information from the victim ( the offence defined in Article CARDINAL of LAW ) , the trial court had no choice but to apply LAW in the present case . Nevertheless , the fact remained that the ill - treatment to which he had been subjected constituted “ torture ” within the meaning of LAW and Other Cruel Inhuman or Degrading Treatment or Punishment .

On DATE ORG rejected the applicant ’s objection .

The relevant provisions of LAW , in force at the material time , were as follows .

“ If a person commits an offence in a fit of anger or under the influence of a strong grievance caused by unjust provocation ... the punishment prescribed for the offence shall be reduced by DATE . ”

“ Any public servant ... who inflicts torture or cruel , inhuman or degrading treatment on accused parties to make them confess their crimes shall be sentenced to up to DATE imprisonment and temporarily or permanently barred from public service . ”

“ Any law - enforcement officer ... who , in the course of duty ... and in circumstances other than those prescribed by law ... , ill - treats , injures or strikes a person or does them bodily harm shall be sentenced to CARDINAL months’ and DATE imprisonment and temporarily barred from public service . ... ”

Pursuant to LAW , in force at the material time , a public prosecutor who was informed by any means whatsoever of a situation that gave rise to the suspicion that an offence had been committed was obliged to investigate the facts in order to decide whether or not there should be a prosecution .

Under PERSON no . DATE , which entered into force on DATE , criminal proceedings in respect of offences committed before DATE can be suspended for DATE . Suspended criminal proceedings can subsequently be discontinued if no offence of the same or a more serious nature is committed by the offender within the DATE period . DATE ( a ) of PERSON no . DATE stipulates that criminal proceedings concerning the offence proscribed by , inter alia , LAW can not be suspended .

Pursuant to the PERSON on ORG , in force at the material time , if the alleged perpetrator of an offence was an agent of the ORG , permission to prosecute had to be obtained from the local administrative council . An appeal against the local council ’s decision lay to ORG ; a refusal to prosecute was subject to an automatic appeal of this kind .


Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

The applicant is a member of ORG .

On DATE a group of CARDINAL members of ORG occupied the waiting area of the President ’s administration building in GPE and locked themselves in an office on the ground floor .

They asked for a meeting with the President , the deputy head of the President ’s administration Mr PERSON , and the President ’s economic advisor Mr NORP . Through the windows they distributed leaflets with a printed letter to the President that listed his CARDINAL alleged failures to comply with the LAW and contained a call for his resignation .

The intruders stayed in the office for TIME until the police broke down the blocked door . They did not offer any other resistance to the authorities .

On DATE the ORG of GPE ordered the applicant ’s detention on the ground that he was suspected of a particularly serious criminal offence , had no permanent residence in GPE and was a NORP national . It considered that there was a risk of his re - offending , absconding , interfering with the investigation or intimidating witnesses .

The applicant appealed , complaining that ORG had not cited any facts to justify the necessity of ordering his detention . On DATE ORG upheld the detention order on appeal , finding that it had been lawful and justified .

On DATE the applicant was charged with an attempted violent overthrow of ORG power ( LAW ) and intentional destruction and degradation of others’ property in public places ( Articles CARDINAL § CARDINAL and CARDINAL ) .

On DATE the ORG of GPE extended the applicant ’s detention until DATE , referring to the gravity of the charge . The applicant had no permanent residence in GPE and there were reasons to believe that he might abscond or interfere with the investigation .

The applicant ’s counsel appealed . He asked the court to release the applicant , taking into account that he had no criminal record , had positive references and was of frail health . On DATE ORG upheld the extension order on appeal .

On DATE the applicant ’s charge was amended to that of participation in mass disorders , an offence under LAW .

On an unspecified date the prosecutor requested the court to extend the applicant ’s detention until DATE . On DATE the ORG of GPE extended the applicant ’s detention until DATE for the following reasons :

“ There are no reasons to vary the preventive measure . Taking into account the gravity of the charges and [ the applicant ’s ] individual situation , the court considers that there are sufficient indications that [ the applicant ] , once released , might abscond .

At the same time , bearing in mind that the parties to the criminal proceedings have already started studying the case file , the extension asked for by the prosecution appears to be excessive and must be limited to DATE . This period will be sufficient for all parties to the proceedings to study effectively the entire case file . ”

On DATE the applicant ’s counsel appealed . He asked the court to apply a more lenient preventive measure , taking into account that the applicant had no criminal record , had a permanent place of residence in GPE , studied at a university and suffered from a kidney disease . He also submitted that the applicant did not need so much time to study the case file . At the appeal hearing before ORG the applicant confirmed that he had finished studying the case file .

On CARDINAL DATE ORG upheld the decision of DATE , finding that it had been lawful , sufficiently reasoned and justified .

On DATE the investigation was completed and CARDINAL persons , including the applicant , were committed for trial .

On DATE the ORG of GPE scheduled the preliminary hearing for DATE and held that all the defendants should remain in custody .

On DATE ORG held a preliminary hearing . It rejected the ORG requests to release them , citing the gravity of the charges against them and the risk of their absconding or obstructing justice .

NORP The applicant ’s counsel appealed . He repeated the arguments advanced in the grounds of appeal of DATE and added that the applicant ’s father , Mr PERSON , a NORP national and the former Governor of GPE , was dying of cancer in the GPE . On DATE ORG upheld the decision of DATE on appeal , finding that it had been lawful , well - reasoned and justified .

The trial started on DATE .

On DATE the applicant lodged an application for release , referring to his frail health and a need for a medical examination . On DATE the ORG rejected the request . It held that the applicant ’s detention was lawful and justified . The applicant had not submitted medical certificates showing that his state of health was incompatible with custody . On DATE ORG upheld the decision on appeal .

On DATE the applicant ’s counsel filed a further application for release . He submitted medical certificates , confirming the applicant ’s and his father ’s diseases . A human - rights activist , PERSON , offered his personal guarantee that the applicant would not abscond . ORG asked the court to release the applicant taking into account the precarious state of his health and his father ’s terminal illness . Other defendants also lodged applications for release .

On DATE the ORG rejected the requests . It held :

“ The court takes into account the defence ’s argument that the individual approach to each defendant ’s situation is essential when deciding on the preventive measure .

Examining the grounds on which ... the court ordered and extended detention in respect of all the defendants without exception ... the court notes that these grounds still persist DATE . Therefore , having regard to the state of health , family situation , age , profession and character of all the defendants , and to the personal guarantees offered by certain private individuals and included in the case file , the court concludes that , if released , each of the applicants might abscond or obstruct justice in some other way . ”

The applicant appealed , complaining that ORG had disregarded the medical evidence confirming his and his father ’s poor state of health . On DATE ORG upheld the decision of DATE on appeal , finding that the applicant had not submitted medical certificates showing that his state of health prevented him from remaining in custody .

On DATE ORG rejected a new application for release , repeating verbatim the wording of the decision of DATE .

In DATE the applicant asked the domestic courts to release him for DATE so that he could see his father . Mr PERSON had asked for euthanasia which was scheduled for CARDINAL DATE . The NORP Ambassador seconded his request .

On DATE the ORG of GPE refused to release the applicant . It found that since the applicant was a NORP national he might abscond or interfere with the proceedings .

On DATE the applicant was permitted a phone conversation with his father , in NORP only . ORG paid for the call . The conversation was interrupted by the facility administration TIME .

On DATE Mr PERSON died by euthanasia .

On DATE ORG upheld the decision of DATE on appeal . It held that the information about the deterioration of the applicant ’s father ’s health and the NORP Ambassador ’s request to release the applicant had been considered . However , the refusal to release the applicant had been justified , given the gravity of the charge against him . The court found that the applicant had been living in GPE since DATE , had visited his father no more than once DATE and had mainly communicated with him by mail and phone . He had been given an opportunity to talk to his father over the phone . It further held that the applicant ’s state of health was satisfactory , therefore there was no reason to amend the preventive measure .

In DATE the applicant lodged a new application for release . He submitted that his father had died and he wanted to attend the farewell ceremony . The applicant vouched that he had no intention of absconding and referred to his clean criminal record and positive references . The NORP Ambassador for a third time asked the court for the applicant ’s temporary release so that he could attend the farewell ceremony .

On DATE the ORG rejected the request . It referred to the gravity of the charge and the applicant ’s NORP nationality which gave reasons to believe that he might abscond .

The applicant appealed . He again asked the court to release him so that he could attend a farewell ceremony for his father . He also contended that he suffered from a chronic kidney disease and required constant medical supervision and treatment . He complained that his applications to the detention facility doctor had remained unanswered and that he had not been provided with any treatment for his disease .

On DATE ORG upheld the decision on appeal . It found that the applicant ’s father had donated his body to science , therefore there had been no funeral . The farewell ceremony was scheduled for DATE in GPE . Taking into account the gravity of the charge and the applicant ’s previously rare contact with his father , it was inopportune to release him .

On DATE the ORG convicted the applicant of participation in mass disorders and sentenced him to CARDINAL years’ imprisonment conditional on DATE probation . The applicant was immediately released .

The applicant was held in detention facility no . GPE in GPE .

According to a certificate of DATE issued by the facility administration , produced by the ORG , from DATE and from DATE the applicant was kept in cell no . CARDINAL . The cell measured QUANTITY . m , was equipped with CARDINAL bunks and accommodated CARDINAL inmates . Cell no . DATE where the applicant was held from DATE to CARDINAL DATE and from DATE to DATE – measured QUANTITY m , was equipped with CARDINAL bunks and housed CARDINAL inmates on average . From DATE to CARDINAL DATE the applicant was detained in cell no . CARDINAL measuring QUANTITY m , containing CARDINAL bunks and accommodating CARDINAL inmates on average . The Government submitted that the applicant had at all times had a separate bunk and had been provided with bedding .

The Government contended that the cells were naturally illuminated through the windows and were also equipped with fluorescent lamps which functioned during DATE and at TIME . On DATE and CARDINAL DATE cells nos . CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , and CARDINAL were examined by a sanitary officer who found the sanitary conditions satisfactory . No traces of insects or rodents were discovered . Relying on a certificate of CARDINAL DATE from the facility administration , the ORG further submitted that all cells were equipped with a lavatory pan . It was separated from the living area by a brick partition of QUANTITY in height .

The Government affirmed that inmates were provided with food CARDINAL times a day . They had an TIME DATE . The detention facility housed a medical unit which was open TIME and had all the necessary equipment for high - standard medical assistance . However , the applicant never applied for medical aid .

The applicant did not dispute the cell measurements , the number of bunks and the number of inmates per cell . He disagreed , however , with the ORG ’s description of the sanitary conditions . The cells swarmed with cockroaches , crickets and lice . There was no ventilation and it was stifling and smoky inside . The partition separating the toilet facilities from the living area did not offer sufficient privacy and the person using the toilet was in view of the other inmates . The artificial light was never switched off disturbing the applicant ’s sleep . The applicant conceded that an TIME - long walk was organised DATE . However , the exercise yard was covered and measured CARDINAL sq . ORG was scarce . Inmates were allowed to take a shower for TIME once a week .

The applicant suffered from chronic glomerulonephritis ( a kidney disease ) and required constant medical supervision and treatment . He received no treatment . On DATE and DATE he complained of an aching kidney and asked the facility doctor to examine him and prescribe medication . His request remained unanswered .

Since DATE criminal - law matters have been governed by LAW ( Law no . CARDINAL of DATE ) .

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

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

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

After arrest the suspect is placed in custody “ during the investigation ” . The period of detention during the investigation may be extended beyond DATE only if the detainee is charged with a serious or particularly serious criminal offence . No extension beyond DATE is possible ( LAW DATE ) . The period of detention “ during the investigation ” is calculated to DATE when the prosecutor sends the case to the trial court ( LAW ) .

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

A NORP national has to produce a travel passport to cross the NORP border ( section CARDINAL of the Law on the Procedure for Entering and Leaving GPE , no . CARDINAL-FZ of DATE ) . The travel passport of an accused can be retained by a court , a prosecutor or a policeman until the termination of the criminal proceedings ( sections QUANTITY and CARDINAL of the Instruction on issuance of travel passports , approved by LAW , no . CARDINAL of CARDINAL DATE ) .


The applicants are NORP nationals who were born in DATE and DATE respectively , and live in FAC . They are represented before the ORG by ORG , lawyers practising in GPE - upon - GPE .

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

The applicants married in DATE . They have had CARDINAL children , born in DATE , DATE and DATE . They remain lawfully married . Both have deep religious convictions ; the first applicant was ordained as a church minister in DATE .

The first applicant was born male . However , the first applicant felt from DATE a strong desire to live as a woman . In DATE , the first applicant started to take steps to come to terms with this need . The first applicant was ultimately advised by doctors that he would require gender reassignment surgery ; this was carried out at public expense on ORG ( although it is not entirely clear when this took place ) . She continues to undergo hormone replacement treatment and other forms of treatment such as laser treatment and electrolysis . She changed her name by deed poll from PERSON to PERSON in DATE . She has completed all of her surgical interventions and contends that she is in all private and public relationships a woman .

The second applicant has stood by the first applicant , and they contend that they remain together as “ a loving and married couple . ”

Following the introduction of LAW ( ‘ GPE CARDINAL’ ) , the first applicant made an application to ORG ( ‘ the Panel’ ) on DATE for the issue of ORG ( ‘ GRC’ ) .

Because the first applicant is married , the ORG could only issue an interim ORG , which they did on DATE . The only purpose of such a certificate is to enable the first applicant to seek annulment of a lawful marriage . On annulment , she would then be able to obtain a full ORG , a formal recognition of her acquired gender .

Neither applicant wishes to annul their marriage , so the first applicant is unable to obtain a full ORG .

LAW ( ‘ ORG ) provides a mechanism whereby transsexuals may have their new genders recognised . LAW provides that ORG must grant an application if it is satisfied that the applicant : ( CARDINAL ) has , or has had , gender dysphoria ; ( CARDINAL ) has lived in the acquired gender throughout DATE ; and ( CARDINAL ) intends to continue to live in the acquired gender until death .

By section CARDINAL , an application must include a report from a registered medical practitioner , or a chartered psychologist , either of whom must be practising in the field of gender dysphoria . This report must include details of diagnosis . A second report must also be included , which need not be from a medical professional practising in the field of gender dysphoria , but could be from any registered medical practitioner . CARDINAL of the reports must include details of any treatment that the applicant has undergone , is undergoing or that is prescribed or planned , for the purposes of modifying sexual characteristics .

Section CARDINAL sets down the consequences of an application being successful . It reads in material part as follows :

“ ( CARDINAL ) If a ORG grants an application under section CARDINAL(CARDINAL ) it must issue a gender recognition certificate to the applicant .

( CARDINAL ) Unless the applicant is married , the certificate is to be a full gender recognition certificate .

( CARDINAL ) If the applicant is married , the certificate is to be an interim gender recognition certificate .

( CARDINAL ) Schedule CARDINAL ( annulment or dissolution of marriage after issue of interim gender recognition certificate ) has effect .

Section CARDINAL governs the situation where an interim certificate has been granted . It reads in relevant part as follows :

“ ( CARDINAL ) A court which -

( a ) makes absolute a decree of nullity granted on the ground that an interim gender recognition certificate has been issued to a party to the marriage , or

( b ) ( in GPE ) grants a decree of divorce on that ground ,

must , on doing so , issue a full gender recognition certificate to that party and send a copy to the Secretary of ORG .

( CARDINAL ) If an interim gender recognition certificate has been issued to a person and either-

( a ) the person ’s marriage is dissolved or annulled ( otherwise than on the ground mentioned in subsection ( CARDINAL ) ) in proceedings instituted during DATE beginning with DATE on which it was issued , or

( b ) the person ’s spouse dies within that period ,

the person may make an application for a full gender recognition certificate at any time within the period specified in subsection ( CARDINAL ) ( unless the person is again married ) .

( CARDINAL ) That period is the period of DATE beginning with the day on which the marriage is dissolved or annulled or the death occurs .

( CARDINAL ) An application under subsection ( CARDINAL ) must include evidence of the dissolution or annulment of the marriage and the date on which proceedings for it were instituted , or of the death of the spouse and the date on which it occurred .

( CARDINAL ) An application under subsection ( CARDINAL ) is to be determined by ORG .

( CARDINAL ) The Panel –

( a ) must grant the application if satisfied that the applicant is not married , and

( b ) otherwise must reject it .

( CARDINAL ) If the Panel grants the application it must issue a full gender recognition certificate to the applicant . ”

The only function of an interim gender recognition certificate is therefore to provide a document which can be used to obtain a divorce .

The other provisions of DATE only apply where a full gender recognition certificate is concerned . These include , for instance , section CARDINAL , which provides that :

“ ( CARDINAL ) Where a full gender recognition certificate is issued to a person , the person ’s gender becomes for all purposes the acquired gender ( so that , if the acquired gender is the male gender , the person ’s sex becomes that of a man and , if it is the female gender , the person ’s sex becomes that of a woman ) . ”

By Paragraph CARDINAL of Part CARDINAL of Schedule CARDINAL to the GRA DATE , the issue of a full gender recognition certificate obliges the Registrar General to make an entry in the ( new ) ORG and to mark the original entry in the register of births referring to the birth ( or adoption ) of the transsexual person to show that the original entry has been superseded . Paragraph CARDINAL makes provision for certified copies to be made of any entry in the ORG and to be issued to anyone who would be entitled to a certified copy of the original entry relating to the transsexual person . It will not be apparent from the certified copy that it is compiled from the ORG . A short certificate of birth compiled from the ORG must , by LAW , not disclose that it is compiled from the ORG . Both copies of and short - form certificates therefore look the same as any other birth certificates ; they therefore act , to all outward intents and purposes , as new birth certificates .

Not all provisions of the ORG require status or situations existing prior to gender recognition to be changed or dissolved . For instance , provisions as to parenthood ( section CARDINAL ) , succession ( section CARDINAL ) and peerages ( section CARDINAL ) explicitly provide that the person ’s gender has become the acquired gender does not effect their status or rights flowing therefrom .

Section CARDINAL(c ) of LAW DATE provides that a marriage is void unless the parties are “ respectively male and female . ”

In PERSON v PERSON [ DATE ] Probate Reports CARDINAL it was held that marriage could only be between a woman and a man , determined on genital , gonadal and chromosomal factors , and should not take into account the party ’s psychological beliefs , however genuine and profound .

Section CARDINAL(c ) of LAW DATE and PERSON v PERSON have recently been reconsidered by ORG in PERSON v PERSON [ DATE ] UKHL CARDINAL . Their Lordships considered that the words “ male ” and “ female ” were to be given their ordinary meaning and referred to a person ’s biological gender as determined at birth so that , for purposes of marriage , a person born with CARDINAL sex could not later become a person of the opposite sex . They therefore held that it was not possible under LANGUAGE law for a person to marry another person who was of the same gender at birth , even if one of them had undergone gender reassignment surgery . They did , however , issue a declaration that Section CARDINAL(c ) of the DATE Act represented a continuing obstacle to the ability of the ( male to female ) transsexual petitioner to enter into a valid marriage with a man , and that it was therefore incompatible with her rights under LAW .

LAW ( the CPA DATE ) came into force on DATE . It has the effect of allowing same sex couples to acquire a legal status for their relationships , with legal rights and responsibilities . It is , however , devoid of any religious element .


CASE OF ZAHID MAMMADOV AND OTHERS v. AZERBAIJAN

Julia Laffranque;Khanlar Hajiyev;Peer Lorenzen

All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers ( yaşayış sahəsi orderi ) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority ( see Appendix – Table I ) .

In all CARDINAL cases , the applicants’ flats were unlawfully occupied by internally displaced persons ( “ IDPs ” ) from different regions of GPE under occupation by NORP military forces following the ORG conflict over GPE - Karabakh .

The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats .

On the dates indicated in the Appendix ( Table I ) , the ORG claims were granted by different domestic courts , which ordered the eviction of the IDPs from their flats .

The respective judgments became final and enforceable . However , the ORG families refused to comply with those judgments and despite the ORG complaints to various authorities , the judgments were not enforced .

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


CASE OF LEVENTOĞLU ABDULKADİROĞLU v. TURKEY

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

András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

Following her marriage to PERSON on DATE , the applicant , whose surname was “ ORG ” prior to her marriage , had to take her husband ’s surname pursuant to LAW . As she was known by her maiden name in her academic and professional life , she continued to use it ; however , she could not use it in any official documents .

An amendment to LAW on DATE meant that married women acquired the right to put their maiden name in front of their husband ’s surname . The applicant preferred not to make use of that option because , in her view , the amendment in question did not satisfy her request , which was to use her maiden name on its own .

Following the enactment of the new Civil Code on DATE , Article CARDINAL was worded identically to the former LAW ( see “ Relevant domestic law and practice ” below ) .

On DATE the applicant brought proceedings before ORG seeking permission to use only her maiden name , ORG .

On DATE the court dismissed the applicant ’s request on the grounds that , pursuant to LAW , married women had to bear their husband ’s name throughout their marriage and were not permitted to use their maiden name alone .

The applicant appealed against that judgment and on DATE it was upheld by ORG . A request by the applicant for the proceedings in her case to be reopened was further rejected by the same court on DATE . That decision was served on the applicant on DATE .

NORP The relevant provisions of LAW read as follows :

“ Married women shall bear their husband ’s name . ... ”

“ Married women shall bear their husband ’s name . However , they can make a written declaration to ORG on signing the marriage certificate , or at ORG after the marriage , if they wish to keep their maiden name in front of their surname ... ”

LAW , in so far as relevant , reads as follows :

“ All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds .

Women and men shall have equal rights . .... ”

“ ... International agreements that are duly in force shall be legally binding . Their constitutionality can not be challenged in ORG .

In the case of a conflict between international agreements in the area of fundamental rights and freedoms that are duly in force and domestic laws on account of differences in provisions concerning the same matter , the provisions of international agreements shall prevail . ”

Following the enactment of LAW , CARDINAL family courts raised an objection with ORG , arguing that the provision was unconstitutional . In a decision of DATE ( E. CARDINAL/CARDINAL , ORG ) , ORG dismissed their objection .

The relevant international law is set out in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ECHR CARDINAL ) .


KOŘÍNEK and OTHERS v. THE CZECH REPUBLIC

The applicants , Mr PERSON , born in DATE , FAC , born in DATE , Mr PERSON , born in DATE , Mr PERSON , born in DATE , Mr PERSON born in DATE , and PERSON , born in DATE , are NORP nationals , and live in PERSON , except for PERSON who lives in PERSON Ohří . They are represented before the ORG by Mr V. Petru , a lawyer practising in GPE CARDINAL .

The applicant 's lawyer informed the ORG , by letter of DATE , that the first applicant had died on DATE . The lawyer did not specify whether legal successors wished to pursue the proceedings . However , the other applicants , members of the same family , requested an increase in any award of just satisfaction as a result of the first applicant 's death . The ORG interprets the latter as a request to continue the proceedings in respect of the first applicant .

I. The proceedings for compensation for the third applicant 's persecution during the former communist regime .

On DATE the third applicant received compensation under LAW No . TIME for his unlawful conviction and detention during the former communist regime .

On DATE ORG ( okresní soud ) rejected the third applicant 's civil action of DATE against the ORG , claiming damages for moral injury allegedly caused by his conviction , detention and the delayed removal of his conviction from the criminal records .

On DATE ORG ( krajský soud ) quashed this judgment and returned it to ORG , which on DATE again dismissed the third applicant 's action , holding that there was no causal link between the alleged moral injury and his conviction , or the delayed amendment to the criminal records .

On DATE ORG upheld this judgment .

On DATE ORG ( GPE PERSON ) dismissed the third applicant 's constitutional appeal .

On DATE the third applicant lodged application no . CARDINAL with the former ORG , in which he complained under Articles CARDINAL § CARDINAL and CARDINAL of the Convention about inadequate compensation for his persecution during the former communist regime . He also complained that the court proceedings were unfair . On DATE this application was dismissed by a ORG of CARDINAL members of the Commission as being manifestly ill - founded . ORG

II . The proceedings for damages caused by a violation of the applicants ' personal rights and by an unlawful court decision .

On DATE the applicants lodged a claim with ORG ( okresní soud ) for damages caused by a violation of their personal rights and an unlawful court decision .

On DATE ORG referred the matter to ORG ( městský soud ) , which on DATE separated that part of the action relating to the damage caused by a violation of personal rights , which it transferred to ORG ( krajský soud ) .

On DATE ORG heard the applicants , except for the sixth applicant who was to be heard by FAC ( okresní soud ) .

On DATE the applicants specified their claims for damages caused by a violation of their personal rights , which ORG subsequently separated into several proceedings , in order to deal with the individual claims of each applicant .

On DATE and CARDINAL DATE the president of ORG apologized for delays in the proceedings , in response to the applicants ' complaints of DATE and DATE .

On DATE the applicants specified their action lodged with ORG . However , that court interpreted this as a withdrawal of the claims of the third , fourth , fifth and sixth applicants , and so it discontinued the proceedings in respect of these claims on DATE .

On DATE ORG requested the first and second applicants to specify their action .

On DATE ORG discontinued the proceedings in respect of the claims of the first and second applicants for their failure to specify the action .

In the meantime , on DATE ORG had held a hearing in respect of the claims for damages relating to a violation of the applicants ' personal rights .

On DATE it found that a part of the action , which had been transferred to it by ORG , related to an unlawful court decision and therefore separated this part of the action from other proceedings .

On DATE it requested the applicants to specify their actions for the protection of personal rights and to provide evidence .

It seems that the above proceedings before ORG are still pending .


GERDZHIKOV AND CHATEAU VALLEE DES ROSES EOOD v. BULGARIA

George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The first applicant , Mr PERSON is a NORP national who was born in DATE and lives in GPE . He is the managing director of the second applicant , PERSON ( “ the applicant company ” ) , a company whose registered office is in GPE , GPE . The applicants are represented before the Court by Mr PERSON and PERSON , lawyers practising in GPE .

CARDINAL .

NORP In decision no . CARDINAL of DATE ORG granted the applicant company a concession to exploit part of a mineral water source near the village of ORG , which was state property , and authorised the Minister of ORG ( “ the Minister ” ) to sign the concession contract on behalf of the State , which was done on DATE .

Meanwhile , in decision no . CARDINAL ORG granted another concession for a different part of the same mineral water source to the company Hisar-CARDINAL OOD . This decision was appealed against by another participant in the concession tender procedure , as a result of which , in a final judgment of DATE , ORG quashed it on the ground that , owing to its chemical properties , the mineral water from the source was unfit to serve the purposes of the future concession contract and that it could therefore not be fulfilled .

Subsequently , as the properties of the water in the applicant company ’s concession were the same , it brought an action to have decision no . CARDINAL of ORG declared null and void . The action was granted in a final judgment of ORG of DATE .

Following the judgment of DATE , on DATE the applicant company brought an action against ORG seeking to have the concession contract of DATE declared null and void . It further claimed the expenses it had already incurred in connection with the fulfilment of the contract , including costs for equipment for exploiting the source , expenses for preserving and guarding the source , fees for taking part in the concession tender and marketing costs . In these proceedings the applicant company was legally represented .

At a court hearing of DATE the applicant company substituted the Minister as the defendant to its action , without specifying in what capacity the Minister was acting . At the same hearing ORG discontinued the proceedings as it found that the Minister could not be sued in her capacity as an administrative body .

The applicant company appealed , arguing that the Minister was a party to the concession contract and that therefore she could be sued .

In a decision of DATE ORG found that the party to the concession contract was the ORG , represented by the Minister . Therefore , the Minister could be sued . It remitted the case to ORG to continue the proceedings by examining the merits of the action .

In a judgment of CARDINAL DATE ORG rejected the applicant company ’s action on the grounds that the Minister , as a State body , could not be sued . It found that the Minister was merely a representative of the ORG in the concession contract and not a party to it . The applicant company , however , had not directed its action against the Minister as a representative of the ORG .

The applicant company appealed , stating , inter alia , that the Minister was a party to the concession contract , and represented the ORG interest in connection with the rights and obligations under the contract .

NORP In a judgment of DATE ORG quashed the lower court ’s judgment , declared the concession contract null and void and granted part of the compensation claim made by the applicant company . Although it mentioned that the ORG was party to the concession contract , it ordered the Minister to pay the awarded compensation .

It held that the ORG , represented by the Minister , was the party to the concession contract and that therefore the Minister did have capacity to take part in the proceedings to have the contract declared null and void .

NORP The Minister appealed , arguing that she did not have such capacity as she was not a party to the concession contract but only represented the ORG in signing it .

The applicant company also appealed . It is not entirely clear from its submissions who it considered to be the proper defendant in the proceedings DATE on the one hand it argued that the Minister was party to the concession contract and on the other hand contended that the Minister was the proper defendant in the proceedings in her capacity as representative of the ORG .

In a final judgment of DATE ORG quashed the judgment of ORG and discontinued the proceedings . It found that ORG should not have examined the merits of the claim as it had not been directed against the proper defendant . The court held that the ORG was the concession - granting authority and party to the concession contract because concessions could be granted only in respect of objects belonging to the ORG . The court also found that the rules on representation under LAW were lex specialis and overrode those on representation under LAW ( “ the ORG ” ) , and that therefore the ORG was represented by the Minister of ORG and not by the ministers under LAW and CARDINAL of the CCP ( see paragraph CARDINAL below ) . This , however , did not mean that the Minister was a party to the concession contract . The Minister could be sued in proceedings related to concession contracts only in her capacity as representative of the ORG . As regards the case at hand , the court considered that neither in its initial statement of claim , nor throughout the proceedings did the applicant company specify that its action was directed against the Minister as a representative of the ORG .

The applicant company appealed before the extended panel of ORG , which , in a decision of DATE , declared the appeal inadmissible as lodged against a final judgment which was not subject to further appeal .

The Concessions Act DATE provided that a concession was a special right to use and exploit objects owned exclusively by the ORG ( section CARDINAL ) . In section CARDINAL it provided that ORG adopted decisions to grant concessions . Pursuant to section CARDINAL(CARDINAL ) of the same LAW , in such decisions ORG appointed the minister who would organise the concession tender procedure . Section CARDINAL(CARDINAL ) of the same Act provided that ORG was to adopt a decision in which it determined the concession holder . In this decision ORG also had to authorise the minister appointed under section CARDINAL to sign the concession contract on behalf of the ORG .

Section CARDINAL(CARDINAL ) of the Regulations for the Implementation of the Concessions Act , as amended on DATE , provided that with the decision under section CARDINAL(CARDINAL ) of LAW was to appoint the minister who would organise the concession tender procedure , sign the concession contract , organise the implementation of the contract and represent the granting authority in matters connected with the implementation of the contract , apart from those concerning the contract ’s termination . LAW ) of the ORG provided that in the event that the concession holder failed to fulfil his obligations under the contract , ORG could authorise the minister appointed under section CARDINAL of LAW to terminate the contract .

NORP Under section CARDINAL(CARDINAL ) of LAW , upon termination of the concession contract the concession holder was entitled to reimbursement of expenses incurred under that contract .

The new Concessions Act , in force from DATE , which is more detailed than LAW , contains similar provisions in respect of the signing , control of the implementation , and termination of concession contracts . An amendment to LAW of DATE introduced section ORG , which provides that in actions concerning the implementation and the termination of concession contracts the ORG is represented by the minister authorised to sign the concession contract and to represent the granting authority in matters connected with the contract ’s implementation .

Section PERSON ) of the Obligations and Contracts Act provided that if the subject - matter of a contract was unfit to serve its purpose ( “ невъзможен предмет ” ) it would be null and void . Pursuant to section CARDINAL of the same Act , when the contract was declared null and void each of the parties was under the obligation to return everything it had received under the contract .

Article CARDINAL of the ORG provided that while proceedings were pending before the first - instance court , the plaintiff could join a new defendant or could substitute the initial defendant with a new defendant .

Under LAW and CARDINAL of the ORG , the ORG was represented by ORG in court proceedings , and by the Minister of ORG in court proceedings in which ORG property was concerned .

On DATE Article CARDINAL of the ORG was amended to include a new paragraph CARDINAL clarifying that , in actions concerning the implementation and termination of concession contracts , the ORG is represented by the minister authorised to sign the concession contract and to represent the granting authority in matters connected with the contract ’s implementation .


Remainder inadmissible (Article 35-3-b - No significant disadvantage);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE - on - Don .

The applicant is a ORG colonel .

In DATE he was removed from his post .

On DATE the applicant brought proceedings against his commanding officer claiming reinstatement , payment of salary and service - related benefits , and compensation of non - pecuniary damage sustained as a result of his removal .

On DATE ORG of PERSON ( “ the ORG ” ) dismissed his claims ; the judgment was upheld on appeal .

In DATE a military disciplinary commission issued an appraisal report in respect of the applicant . The commission found that the applicant 's performance was unsatisfactory . On this basis in DATE he was transferred from active military service to the reserve .

On DATE the applicant challenged the transfer in court , but to no avail . On DATE ORG dismissed his claim ; the judgment was upheld on appeal .

On DATE president of ORG of ORG of GPE granted the applicant 's application for supervisory review and brought an extraordinary appeal against the above court decisions .

NORP On DATE ORG of ORG quashed the impugned decisions and remitted the cases for fresh examination .

On an unspecified date ORG joined the above cases .

On DATE ORG granted the applicant 's claims in part . It quashed the respective decisions of the applicant 's superior officers and the appraisal report , reinstated him in his former post and awarded him non - pecuniary damages in the amount of MONEY ( RUB ) , to be recovered from ORG , and RUB CARDINAL to be recovered from the Chief of the ORG of the North - Caucasus Military Command . The claims for pecuniary damages were rejected .

On DATE the appeal court set aside the judgment in the part concerning rejection of the claims for pecuniary damages and required a new hearing . The remainder of the judgment was upheld .

On DATE ORG issued a writ of execution in respect of the part of the judgment that had entered into force and forwarded it to the bailiff service of LOC .

On DATE the applicant was reinstated in his post . The damages in the amount of RUB CARDINAL awarded by the judgment of CARDINAL DATE remained unpaid .

On DATE ORG granted the applicant 's claims in part , awarding him RUB CARDINAL . However , on DATE the appeal court overturned this judgment on procedural grounds and ordered the case for re - examination .

On DATE ORG granted most of the applicant 's claims . The court awarded him RUB CARDINAL covering his salary , legal expenses and various service - related benefits due for the period of his necessary absence from work , in particular , compensation for clothing , food ration , sanatoria treatment and a lump - sum premium for DATE .

The court also found that the applicant 's reinstatement ordered by the judgment of DATE had been carried out with a significant delay , and that the applicant had not received RUB CARDINAL awarded by the court in compensation of non - pecuniary damage . The applicant was awarded RUB CARDINAL as compensation for the delayed enforcement .

This judgment was upheld on appeal by ORG of ORG on DATE .

On DATE the applicant received RUB CARDINAL due to him under the decision of DATE . The award of RUB CARDINAL remained unpaid .

On DATE and DATE the applicant received the amounts awarded to him by the court judgment of DATE .

NORP The applicant brought proceedings claiming index - linking of the amounts paid to him with a delay .

On DATE ORG granted his claims in part , awarding him RUB CARDINAL as inflation losses resulted from the delay in the enforcement of the judgments of CARDINAL DATE and DATE . However , without giving any specific reasons the court rejected the applicant 's claim in the part concerning the failure to pay him RUB CARDINAL .

On DATE ORG of ORG upheld the judgment on appeal .

On DATE the applicant received the amount awarded to him by the judgment of DATE . It appears that the applicant has not received the award of RUB CARDINAL to date .

Federal Law № CARDINAL-ФЗ of DATE ( in force as of CARDINAL DATE ) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment , the NORP citizens are entitled to seek compensation of the non - pecuniary damage . ORG CARDINAL-ФЗ adopted on DATE introduced the pertinent changes in the NORP legislation .

Section CARDINAL of LAW CARDINAL-ФЗ provides that everyone who has a pending application before ORG concerning a complaint of the nature described in the law has DATE to bring the complaint to the domestic courts .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy;Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

In CARDINAL he stood trial for a drugs offence and was acquitted . He sued the ORG for compensation for the unfounded prosecution and pre - trial detention .

The case came before ORG of GPE . By its judgments of DATE and CARDINAL September CARDINAL the court ordered ORG to compensate the applicant ’s non - pecuniary and pecuniary damage . The judgments became binding on DATE and DATE , but were not enforced immediately .

The judgment of DATE was enforced on DATE when the ORG credited the judgment debt to the applicant ’s bank account .

The judgment of DATE which was enforceable as of DATE was not enforced immediately . The writ of enforcement was sent by the court to the bailiff service DATE after the judgment had become final . On the same date the bailiff service returned the writ to the court as it lacked competence to enforce this judgment under the relevant provisions of LAW . DATE , i.e. on DATE , the applicant sent the relevant documents to ORG , and on DATE the judgment debt was credited to the applicant ’s bank account .

Under LAW of DATE , a bailiff must enforce a judgment in DATE . Under section QUANTITY of LAW of DATE , ORG must honour a judgment in DATE .

LAW allows a person to appeal in court against an authority whose actions breach his rights ( LAW . If the appeal is well - founded , the court will order the authority to make good the breach ( LAW ) .

Article CARDINAL of the Code of Civil Procedure empowers a court to upgrade the amount of a judgment debt , if a creditor so asks .

LAW of the Civil Code obliges the ORG to compensate a person ’s non - pecuniary damage caused by a breach of his property rights .


The applicant is an NORP citizen born in DATE and currently serving a prison sentence in LOC , GPE , GPE . He is represented by PERSON , a solicitor practising in GPE .

The applicant has an extensive criminal record , commencing in DATE . This record includes some CARDINAL road traffic offences , CARDINAL offence of conspiracy to rob , CARDINAL of burglary , CARDINAL of theft and CARDINAL of going equipped for theft , together with other miscellaneous convictions .

On DATE , the applicant , with other co - defendants , was acquitted of offences of obtaining services and property by deception . The restraint order imposed on the applicant ’s property pending any eventual confiscation order on conviction was discharged .

On DATE , ORG served a summons on the applicant for the purposes of recovery proceedings . The ORG sought recovery of the sum of GBP CARDINAL allegedly paid to his solicitor in DATE for buying a house and the sum of GBP CARDINAL held in a bank account , alleging that these were the proceeds of unlawful conduct within the meaning of the Proceeds of Crime Act CARDINAL ( “ POCA ” ) .

At an interlocutory hearing , it was contended on behalf of the applicant , that the proceedings for recovery of his assets were not “ civil ” but criminal in nature and that the guarantees of Articles QUANTITY and CARDINAL applied , in particular as regarded the standard of proof .

On DATE , the High Court judge rejected the applicant ’s claims on this interlocutory matter , considering , on examination of domestic and GPE authority , that there was no criminal charge being determined in the recovery proceedings .

On DATE , ORG in GPE rejected the applicant ’s appeal . It found , applying the PERSON criteria , that in domestic law the proceedings were classified as civil , not involving the preferring of a criminal charge in a criminal setting , or giving rise to any criminal record ; that the purpose of the proceedings was not to make him amenable to punishment for a specific crime by way of imprisonment or a fine but that they were restitutionary in nature seeking the recovery of assets acquired through criminal conduct .. As to the nature of any penalty , while the recovery of assets could readily be described as a preventative measure , it considered that even if the proceedings did impose a penalty that this was not sufficient to classify the proceedings as criminal for the purposes of LAW .

It concluded , rejecting arguments that cumulatively the proceedings were criminal :

“ The essence of article CARDINAL in the criminal dimension is the charging of a person with a criminal offence for the purpose of securing a conviction with a view to exposing that person to criminal sanction . These proceedings are obviously and significantly different from that type of application . They are not directed towards him in the sense that they seek to inflict punishment beyond the recovery of assets that do not lawfully belong to him . As such , while they will obviously have an impact on the appellant , these are predominantly proceedings in rem . They are designed to recover the proceeds of crime , rather than to establish , in the context of criminal proceedings , guilt of specific offences . The cumulative effect of the application of the tests in PERSON is to identify these clearly as civil proceedings . ”

On DATE , ORG refused leave to appeal .

On DATE , in determining the application for a civil recovery order against the applicant for the sums , principally , of GBP CARDINAL alleged to have been paid by the applicant in DATE for the purpose of purchasing property and of GBP CARDINAL currently held in a bank account , ORG judge took into account the applicant ’s criminal convictions up until DATE as showing a clear indication of his propensity to indulge in serious criminal conduct . He did not take into account the offences for which the applicant was acquitted as he had not had the opportunity of assessing the quality of the evidence of the one identifying witness , and while he noted that no prosecution was brought following the arrest of the applicant and PERSON on suspicion of robbery , he did take into account that the applicant had been found , on DATE of the robbery , in company with PERSON who was carrying marked bank notes as confirming his criminal associations , as did evidence from police officers as concerns his associations with other persons with criminal records . The judge went on to to find that the applicant had not accounted for his assets . There had been no evidence to support his alleged car dealing and no record with ORG that he had been in employment . Only small sums , from alleged employment with a cleaning business ( which earnings dubiously overlapped with a period in prison ) and from state benefits were accounted for . He concluded that he was satisfied on the balance of probabilities that the applicant had for some time pursued a criminal lifestyle involving dishonest and acquisitive criminal conduct with a willingness to resort to violence if necessary . His criminal record and in particular his conviction for conspiracy to rob , his association with criminals with a similar background of offences together with the circumstances in which he had most recently been arrested served to convince him that crime had been his primary means of acquiring funds for DATE . In the circumstances he was satisfied that the sums that the ORG sought to recover represented property obtained through unlawful conduct and he accordingly made a recovery order for the sums set out in the application .

According to LAW , application may be made to ORG for the civil recovery of property representing the proceeds of “ unlawful conduct ”

By virtue of section CARDINAL(CARDINAL ) unlawful conduct is defined as :

“ Conduct occurring in any part of GPE is unlawful conduct if it is unlawful under the criminal law of that part . ”

Section CARDINAL ) provides that the standard of proof of unlawful conduct is that of the balance of probabilities .


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

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

On DATE CARDINAL employees of ORG , a state - owned company , appeared on the applicant ’s doorstep and asked his wife to let them in without giving any precise explanation . The applicant was not at home and his wife refused to let them in .

On DATE , when the applicant was again absent from home , CARDINAL other employees of ORG asked the applicant ’s wife to let them in the apartment so that they could check the electricity meter . She allegedly refused and told them that she would call the applicant on the phone . At that moment CARDINAL of them allegedly pushed the door , they went into the apartment and checked the electricity meter in the presence of the applicant ’s wife .

On DATE , the applicant accompanied by Mr D. , a friend of his , went to see the manager of ORG . As soon as they entered his office the manager allegedly started calling the applicant “ a thief ” and “ a trouble - maker ” .

Upon the applicant ’s complaint , on an unspecified date he received a letter by which he was informed that on DATE ORG had refused to open criminal proceedings against the manager and the CARDINAL employees of ORG .

The applicant appealed . On DATE ORG instructed the lower prosecutors to prepare a reasoned decision regarding its refusal to investigate into the matter and to serve it to the applicant .

It appears that on an unspecified date ORG prepared a decision stating that the CARDINAL employees of ORG who had entered the applicant ’s apartment had been authorised to do so under LAW of LAW in order to check on the applicant ’s electricity meter . Moreover , according to the available evidence they had been allowed to enter the applicant ’s apartment by his wife . The prosecution authorities also dismissed the applicant ’s complaint for slander on the ground that there was no evidence that the alleged offence was made out . The applicant has not provided a copy of the decision .

On DATE ORG quashed the lower prosecution authorities’ decision and instructed them to investigate the matters in view of the applicant ’s statement that the employees had entered the apartment without his wife ’s permission . The decision also noted , in respect of the applicant ’s other grievance - concerning the alleged slander -that the manager had denied having used offensive words .

On DATE ORG terminated the criminal proceedings against the manager , holding that the alleged offence of slander had not been made out since ORG found that the applicant had stolen electricity . It appears that administrative proceedings in that respect had been instituted against the applicant . He has not provided further details in this respect .

On DATE the applicant complained to ORG through ORG that the latter by its decision of DATE had only dealt with the slander complaint and had not examined his complaint regarding the inviolability of his home .

On DATE the applicant was heard by ORG . On DATE he found that the CARDINAL employees of ORG had only performed their duties when they had entered the applicant ’s home , as their sole purpose had been to check the electricity meter .

On DATE the applicant appealed against the above decision to ORG . On DATE and DATE the applicant complained to ORG about the inactivity of the lower prosecutors .

On DATE ORG informed ORG and the applicant that on DATE ORG had upheld ORG decision which had thereby become final .

On DATE the applicant complained to ORG that he had never been informed of , or served with , the decisions of DATE and DATE . He requested that the investigation proceedings be re - opened .

On DATE ORG rejected the applicant ’s complaint as it found that copies of the relevant decisions had been sent to him by mail .

On DATE and DATE the applicant complained to ORG that he had never received ORG decision of DATE . He further complained that the lower prosecution authorities had never examined his complaint regarding the forced entry in his home by the CARDINAL employees of ORG and that the prosecution had disregarded the statement of Mr NORP who had confirmed that he had been called “ a thief ” and “ a trouble - maker ” by the manager .

On DATE the applicant ’s appeal was rejected . ORG found that the check carried out by the employees of ORG had been lawful and justified as the applicant ’s electricity meter had been tampered with . Moreover , they had been allowed to enter the applicant ’s apartment by his wife . In respect of the applicant ’s allegations about being slandered , the prosecutor found that the manager ’s statement had not been intended to humiliate the applicant , and that therefore the alleged offence had not been made out .

On several occasions , the applicant complained to ORG about the termination of the investigation proceedings .

On DATE ORG rejected the applicant ’s appeals on the ground that there was no evidence that the privacy of his home had been violated by ORG employees or that the offence of slander was made out .

Article CARDINAL , as applicable at the material time , provides that an official who has committed slander against another person in the performance of his official duties shall be sentenced to up to CARDINAL years’ imprisonment .

Article CARDINAL , as applicable at the material time , provides that a person who has entered the home of another by use of force shall be sentenced to up to DATE imprisonment or DATE pro bono work .

Rule DATE as applicable at the material time , provides that the authorised controllers of ORG may enter consumers apartments in their presence in order to check on the electricity meters .