Preliminary objections dismissed (six-month period, non-exhaustion of domestic remedies);Violation of Art. 3 both under its substantive and procedural aspects;Violation of Art. 13 on account of the lack of effective remedies in respect of the ill-treatment complained of;Violation of Art. 14+3 under its procedural aspect and Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

The applicant , PERSON , is a NORP national , born in DATE . He lives in the town of GPE .

On DATE at TIME the applicant and his girlfriend PERSON arrived at the flat which they were sharing and which belonged to PERSON . The applicant then left the flat for TIME to get some money , as he and PERSON were planning to go out that TIME . However , when he came back , he found the door locked . He asked his neighbours whether they had seen PERSON , but was told that nobody had seen her . Fearing that she might have attempted to take her life , as she had already done in the past , the applicant forced open the door of the flat in the presence of his neighbour , PERSON He found nobody there , so decided to go to the police to enquire about her fate . As he was leaving the apartment block , he met PERSON 's brother - in - law , PERSON , accompanied by CARDINAL men armed with knives , who attempted to attack him , but from whom he managed to escape .

On DATE at TIME called the police and lodged a complaint against the applicant . According to the complainant , the applicant had tried to break into ORG 's flat , but had run away when Crinel PERSON appeared . The complaint was certified by the police officer PERSON CA .

Dumitru CA sent a police patrol to conduct an on - site investigation into the facts complained of by Crinel M. The report drafted by the police patrol concluded that there were no traces of rummaging or violence in the flat . PERSON , who was present during the investigation , stated that the applicant had broken into the flat in her presence , fearing that PERSON might have committed suicide .

A short time after he escaped from Crinel M. , that is , CARDINAL , the applicant learned that the police were looking for him and went to ORG , accompanied by his cousin PERSON L.

He reported to the police officer on duty , PERSON CA . , that some individuals had attempted to beat him up as he was leaving his flat , and that although he had managed to escape , he was still afraid that Crinel M. might beat him up . After he presented his identity card , he was told to wait . Other policemen were also present .

At around TIME police officers PERSON , PERSON and PERSON came back from the on - site investigation they had carried out at ORG 's flat . PERSON grabbed the applicant by his hair and pulled him upstairs to an office . PERSON and PERSON punched him in the head until his nose started to bleed , and he was thrown to the ground and kicked . A newspaper was placed on the back of his neck and he was hit with a wooden stick . CARDINAL plainclothes officers observed the assault , but took no steps to prevent or halt it . The police told the applicant that the fact that his father was the local leader of a GPE association would not help him and forced him to sign a statement according to which he had been beaten up by PERSON and other individuals . Then he was told to leave and to come back the next day . The police kept his identity card .

The applicant left , but as he was feeling very weak , he stopped and sat in front of the police station . PERSON came out and told him to go home . Seeing that the applicant was in bad shape , ORG invited him back with her and offered him a coffee . The applicant showed her the bumps on his head and the other marks of the blows to his back .

Later that evening the applicant was admitted to the emergency ward of ORG with injuries diagnosed as craniocerebral trauma . He was transferred to ORG where an X - ray was performed . He was informed that a further scan was necessary , but this was never performed .

On DATE the applicant was discharged from hospital , allegedly at the request of someone whose name the hospital staff could not disclose .

On DATE the applicant was examined by a forensic medical expert of ORG , who noted in his report that the applicant had severe headaches and stomachaches , difficulty in walking , bruises around both eyes , on his fingers , on the back of his right hand , on his chest , on his right thigh and calf , and a haematoma on his head . The report concluded that the injuries had been caused by being hit “ with painful and hard objects ” . The doctor said that the applicant would need DATE to recover .

On DATE the applicant lodged a complaint with the head of ORG against police officers PERSON and PERSON .. He alleged that after he had managed to escape from Crinel M. and his friends , he had gone home , but as he had found out that the police were looking for him , he had gone to the police station . There , PERSON and ORG had beaten him and made him sign a statement , after which they had told him to go home and come back DATE .

The complaint was registered on DATE and forwarded to Major P.

On DATE Major PERSON took written statements from the police officers involved in the applicant 's questioning : PERSON , ORG ORG and PERSON All police officers denied , in succinct terms , having beaten the applicant . None of them mentioned having seen any bruises on the applicant 's face upon his arrival at the police station . The statements were dated DATE , but Major PERSON certified them as having been made on CARDINAL July .

In a statement certified by Major PERSON as having been made on DATE PERSON CA . , a police officer on duty on DATE , explained that at TIME he had received a telephone call from PERSON , who had told him that the applicant had forcibly entered PERSON flat and had subsequently fled . The duty officer then sent to the flat a police patrol , composed of QUANTITY police officers : PERSON , PERSON and PERSON In the meantime the applicant arrived at the police station , accompanied by his cousin , PERSON told PERSON CA . that he had forcibly entered the flat because he thought his girlfriend was inside . On his way out , on the staircase of the building , a number of individuals had approached him and tried to catch him , but he had run away and come to the police in order to avoid being beaten up by them . The police officer told the applicant and his cousin to wait in the waiting room . Police officer PERSON was there as well . At TIME the police patrol returned from the flat and took the applicant to their office on the first floor for questioning . After TIME , the applicant was sent home and asked to come back the next morning . Dumitru CA . made no mention of the bruises which the applicant had allegedly had on his face upon arrival at the police station .

By a letter dated DATE Major PERSON forwarded the preliminary investigation file to ORG in GPE . The case file contained the following documents :

( i ) an undated statement by the applicant according to which , after he had left ORG 's flat in TIME of DATE , he had met her relatives , who had beaten him up ;

( ii ) the report dated DATE , TIME drawn up by police officer PERSON CA . stating that PERSON had complained to the police that the applicant had broken into PERSON 's flat ( see paragraph CARDINAL above ) ;

( iii ) a statement dated DATE by Crinel M. from which it appeared that he had threatened the applicant in the evening of DATE and had even thrown a stone at him , which had missed its target , but that he had definitely not beaten him up ;

( iv ) the on - site investigation dated DATE ;

( v ) a statement dated DATE by PERSON , confirming the applicant 's allegation , namely that at TIME , he had broken into ORG 's flat in her presence , out of concern that she might have committed suicide , and that he had left when he had seen that PERSON was not there ; no mention was made of any physical assault against the applicant ;

( vi ) a police report dated DATE issued by PERSON , listing the clothes belonging to ORG allegedly torn up by the applicant on DATE ;

( vii ) a written notification issued on DATE by the police requesting that ORG examine PERSON , who “ had been beaten up by PERSON on DATE ” ;

( viii ) PERSON 's statement dated DATE from which it appeared that on DATE the applicant had beaten her up while she was at his flat , and that on DATE he had taken her to her flat and told her not to leave ; as soon as he had gone , ORG had gone onto the roof of the building where she had remained for TIME ; from there she had seen the applicant come back and break into the flat ; as he had found nobody , he had gone away . ORG further stated that as the applicant was leaving the building , he had met PERSON , who “ had beaten him up , asking him why he had broken into the flat ” ; no details were given as to the alleged beating ; at the end of her statement she mentioned again that the applicant had broken into her flat with a screwdriver he had borrowed from a neighbour , but that when he saw PERSON , he had run away ;

( ix ) a statement dated DATE by PERSON , PERSON 's mother , according to which the relationship between the applicant and PERSON had already deteriorated ; on DATE the applicant had torn up some clothes belonging to ORG and on DATE , while PERSON was on the roof of the building , the applicant had broken into the flat but had not stolen anything ;

( x ) the statements dated DATE made by police officers PERSON , PERSON , PERSON and ORG . ( see paragraphs CARDINAL above ) .

On DATE the applicant and his father , president of ORG in PERSON , lodged a complaint with ORG and requested an investigation in respect of the police officers who had beaten the applicant . They submitted a medical certificate issued on DATE , a copy of a newspaper article describing the applicant 's allegations of ill - treatment and the statements of ORG , who had accompanied the applicant to the police station on DATE and who had seen him coming out of the police station in excruciating pain . The complaint was forwarded to ORG in GPE on DATE .

On DATE the applicant 's father lodged a complaint with ORG .

On DATE the applicant lodged a separate criminal complaint with ORG . He also claimed pecuniary and non - pecuniary damages . The complaint was registered DATE with ORG and forwarded on DATE to ORG .

On DATE the military prosecutor charged with the investigation interviewed the police officers and the applicant . Police officers PERSON and PERSON maintained their statements made before the PERSON police , and the applicant maintained his allegations of illtreatment . He complained , moreover , that he had been forced to sign a statement according to which he had been hit by Crinel Marin and his girlfriend 's other relatives .

On DATE the military prosecutor took a statement from PERSON She stated that on DATE she and a friend , PERSON , had accompanied the applicant to the police station and that TIME the applicant had come out and complained to them that he had been beaten by the police with a wooden stick . He had also shown them the bruises on his hand , back and fingers .

On DATE ORG in GPE urged the NORP military prosecutor in charge of the investigation to complete the investigation and render a final decision by DATE .

On DATE the NORP military prosecutor went to ORG , where he took statements from the following witnesses :

( i ) witnesses PERSON and PERSON stated that they had heard that an altercation had taken place between Crinel M. and the applicant ; PERSON further stated that he had seen PERSON chasing the applicant with a stone in his hand ;

( ii ) NORP police officer PERSON CI . , who gave a written statement according to which he was at the police station on DATE when the applicant arrived there at TIME , and saw that the applicant had bruises on his face when he entered the police station ; he had explained to the duty police officer , PERSON CA . , that he had been hit by someone when breaking into the flat ;

( iii ) Ion M. was interviewed again and stated this time that when the applicant had arrived at the police station , at TIME , he had bruises on his face and declared that he had been hit by someone when breaking into the flat ;

( iv ) NORP police officer PERSON , who had also participated in the on - site investigation at ORG 's flat on DATE , stated that the applicant had arrived at the police station after the team of policemen had come back from the on - site investigation and that he had noticed that the applicant had obvious bruises on his face , which had been caused a short time beforehand ;

( v ) Crinel M. confirmed that on DATE he had seen the applicant breaking into ORG 's flat and that after making an unsuccessful attempt to catch the applicant , he had only managed to throw some stones at him , which had missed their target ; he further confirmed that some neighbours had witnessed the incident , including PERSON

The prosecutor did not put any questions to the police officers who had submitted written statements .

On DATE the military prosecutor of GPE refused to open a criminal investigation in respect of the applicant 's complaints against police officers PERSON and PERSON , on the ground that the facts had not been established . The prosecutor noted that both the applicant and his father were known as “ antisocial elements prone to violence and theft ” , in constant conflict with “ fellow members of their ethnic group ” and that it was in this context that in TIME DATE the applicant had broken into his girlfriend 's flat and had destroyed many of her clothes . It further found that , according to various testimonies , including those of the police officers from ORG , the applicant 's girlfriend , her mother and PERSON , the applicant had been hit by PERSON for breaking into PERSON 's flat . The prosecutor found that it was for “ obvious reasons ” that PERSON , a “ gypsy as well ” , had denied having beaten the applicant . The prosecutor considered that the statement given by PERSON , from which it appeared that the applicant had come out of the police station with bruises on various parts of his body , could not be taken into consideration since she was also a gypsy DATE and , moreover , the applicant 's cousin DATE and therefore her testimony was insincere and subjective .

By separate decisions of CARDINAL DATE and DATE the public prosecutor of the ORG discontinued the proceedings instituted against the applicant by his girlfriend and her brother - in - law for physical assault and material damage .

On DATE the applicant lodged an appeal against the decision of CARDINAL DATE refusing to open a criminal investigation . The appeal was registered on DATE by the military section of ORG . They sent it to the military prosecutor of ORG , who , in turn , sent it back to ORG .

On CARDINAL DATE ORG dismissed the applicant 's appeal on the ground that no evidence had been adduced that the police officers had beaten the applicant , “ a DATE gypsy ” “ well known for causing scandals and always getting into fights ” . He found that , on the contrary , the applicant 's injuries “ might have been caused during the altercation which he had had with fellow members of his ethnic group . As a matter of fact , there were indications that the young man 's father , who had been very insistent under the hypothetical title of a leader of an ethnic local association , had tried to use the complaint against the policemen to extinguish the other conflict ” .

On DATE the applicant lodged an appeal with the military section of ORG .

On DATE the Chief Prosecutor of the military section of ORG informed him that his appeal had been dismissed and that the decision was final .

The Government submitted that the applicant had been beaten up by Crinel M. and that these facts had been confirmed by some of the witnesses heard during the investigation , in particular by the applicant 's girlfriend , who had seen the applicant being beaten up by Crinel M. from the roof of the building , and by QUANTITY police officers , who had noted very recent marks of violence on the applicant 's face when he arrived at the police station . The Government pointed out in this connection that the applicant 's allegation that he had bruises on his face had been contradicted by the medical forensic examination , which did not reveal any such marks .

The Government also denied that Major PERSON had pre - dated the statements given to him on DATE by the police officers questioned , and contended that the date of DATE which the police officers wrote in their statements was obviously a mistake .

The relevant provisions of LAW in force at the time when the facts occurred read as follows :

“ Criminal proceedings can not be instituted and , if instituted , can not be continued if

( a ) the act was not committed at all ;

( c ) the act was not committed by the defendant ;

“ The aim of the civil action is to establish the civil liability of the accused and the liability for damages of any other person who can be held legally responsible .

The civil action can be brought together with the criminal action in a criminal trial , by way of joining the proceedings . ”

“ The person who has suffered civil damage can join the criminal proceedings ...

He or she can do so either during the criminal investigation ... or before the court ... ”

“ The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act . ”

“ ( CARDINAL ) The victim who has not joined the criminal proceedings instituted before the court can lodge an action with a civil court ...

“ ( CARDINAL ) The civil proceedings will be suspended until the criminal case is decided .

“ Complaints about decisions and acts of the prosecutor ... shall be examined by the chief prosecutor at ORG . If it is the chief prosecutor who took the decision ... the complaint shall be examined by ORG ... ”

“ In case of a conviction or an acquittal , or the termination of the criminal trial , the court shall deliver a judgment in which it also decides on the civil action .

Civil damages can not be awarded if the accused is acquitted on the ground that the impugned act did not occur or was not committed by the accused . ”

In its decision no . CARDINAL of DATE , ORG ruled that LAW was constitutional only in so far as it did not deny anyone who was dissatisfied with a decision of the ORG direct access to a court in accordance with LAW .

Law no . CARDINAL of DATE amended LAW . It introduced , inter alia , LAW ) regulating appeals to the courts against the prosecutor 's decision . It prescribes the time - limit for lodging an appeal , the competent court and the procedure to be followed .

The relevant provisions of LAW are worded as follows :

“ Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence . ”

The Government submitted a number of cases in which the domestic courts had decided that the prosecutor 's decision , based on LAW b ) of LAW , not to open a criminal investigation on account of the absence of intention – as an element of DATE did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question .

The Government submitted a single case , dating back to DATE , in which ORG had decided that the prosecutor 's decision , based this time on DATE ( a ) and ( c ) of LAW , not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant , should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question . However , ORG decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action .

The common view of the criminal - procedure specialists is that a civil court can not examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in LAW ) of LAW that the acts were not committed at all or were not committed by the defendant ( see LAW , PERSON and Others , p. CARDINAL , GPE DATE , and LAW , PERSON , pp . CARDINAL - CARDINAL , GPE DATE ) .

The common view of the civil - procedure specialists and of some criminal - procedure specialists is that the prosecutor 's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph , does not prevent a civil court from examining a civil action brought against the defendant and from making its own assessment on the facts which were committed and by whom . However , the view is that when making this assessment , civil courts have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation ( see ORG and the Criminal Trial , PERSON , RRD no . MONEY , and Criminal Procedural Law , PERSON , p. CARDINAL , GPE DATE ) .

In its Resolution No . DATE on the honouring of obligations and commitments by GPE , ORG of ORG urged ORG “ to promote a campaign against racism , xenophobia and intolerance and take all appropriate measures for the social integration of the GPE population ” .

ORG noted in the DATE Regular Report on GPE 's progress towards Accession , that “ discrimination against the large GPE minority in GPE remains widespread ” and that in “ general terms , the protection of minorities in GPE remains satisfactory , with the major exception of GPE ” .

In its Regular Report on GPE 's progress towards Accession of DATE , ORG stated , inter alia , that

“ GPE remain subject to widespread discrimination througout NORP society . However , the ORG 's commitment to addressing this situation remains low and there has been little substantial progress in this area since the last regular report ” .

In its publication “ ORG Delayed , Justice Denied ” , issued in DATE , ORG reported cases of killings , beatings and other forms of ill - treatment of GPE and criticised the failure of law enforcement officers to protect GPE from racist violence in GPE .

US Department Yearly Reports on GPE from DATE until DATE reported routine police brutality - including beatings - and racial harassment of the GPE population , and noted that investigations of police abuses generally were lengthy , inconclusive and rarely resulted in prosecution or punishment .

In its second report on GPE adopted on DATE , ORG against Racism and Intolerance ( ECRI ) found that :

“ Grave problems ... persist throughout the country as regards police attitudes and behaviour towards members of the Roma / Gypsy community . ECRI deplores in particular that cases of police violence against members of the Roma / Gypsy community , including the use of firearms , continue to occur , and have led to serious and sometimes lethal injuries ...

Such abuses , although well - documented and reported to the authorities by the non - governmental organisations and individuals , do not appear to be thoroughly investigated or sanctioned : cases which are investigated are usually dismissed ... ”

On DATE ECRI adopted a third report on GPE , in which it stated the following on the progress made by the NORP authorities in improving the situation of GPE :

“ ... As regards the existence of a body responsible for looking into complaints made against police officers or law enforcement officials , the NORP authorities have told ORG that a procedure has been set in motion for that purpose within ORG itself . [ ... ] However , although the NORP authorities have acknowledged that large numbers of police officers have been arrested for wrongful behaviour , they have provided no information on the victims . Furthermore , ORG notes with concern that despite the existence of these procedures , the NORP authorities have stated that no complaints have been recorded against police officers or law enforcement officials for discriminatory acts . It therefore wonders whether this does not reflect a lack of confidence among the general public in the authorities ' capacity to punish the perpetrators of such acts . ”

In a report on his first visit to GPE DATE , ORG PERSON for Human Rights stated , inter alia , with regard to the GPE community in GPE :

“ DATE . The ORG community suffers greatly from poverty , unemployment , lack of schooling , lack of access to health care and justice and discrimination in all its forms . Likewise , according to ORG organisations , CARDINAL of this community 's growing concerns is the " antiRoma / Gypsy phenomenon " , which is gaining ground both in GPE and in LOC . ”

In his follow - up report on GPE for the period DATE , the Commissioner described as follows the general situation of the GPE community :

“ DATE . According to the DATE census , CARDINAL persons were registered as GPE , representing PERCENT of the NORP population . Nonetheless , the ORG estimated in DATE that the GPE population actually numbered CARDINAL persons .

From a general point of view , the GPE situation continues to be a cause for concern . The NGOs and the representatives of the GPE community continue to report violence on the part of the police and discrimination and state that a negative image of the GPE is spread by the media and a part of the political class .


Anatoly Kovler;Antonella Mularoni;Corneliu Bîrsan;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Mindia Ugrekhelidze;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych

The applicants were born in DATE and DATE respectively and live in Şırnak . They stood for election in the parliamentary elections of DATE as candidates of ORG ( DEHAP ) in the province of PERSON , but neither of them was elected .

Following the DATE earthquakes , GPE went through CARDINAL serious economic crises in DATE and DATE . There then followed a political crisis , due , firstly , to the state of health of the then Prime Minister and , secondly , to the numerous internal divisions within the governing coalition , a grouping of CARDINAL political parties .

It was in that context that on DATE ORG of Turkey ( “ the ORG ” ) decided to bring forward the date of the next parliamentary elections to DATE .

NORP In DATE left - wing political parties , ORG ( HADEP ) , ORG ( ORG ) and ORG ( ORG ) , decided to form a “ ORG ” and to form a new political party , DEHAP . The applicants began their electoral campaign as the new party ’s leading candidates in the province of Şırnak .

Such pre - electoral alliances had already been formed in DATE : ORG ( MÇP – the successor to and predecessor of the ORG ) and ORG ( ORG ) had secured seats for their candidates by joining the list presented by ORG ) ; and ORG ( HEP – the predecessor of DEHAP ) had won CARDINAL seats in ORG by placing candidates on the list of ORG ( ORG ) . In that way some parties not likely to obtain PERCENT of the national vote sometimes manage to obtain parliamentary representation : they join the list of a larger party and then , once elected , leave it and go their own way , either with independent MPs or under the banner of another party .

NORP The results of the elections of DATE in the province of PERSON gave the DEHAP list CARDINAL of the CARDINAL votes cast , a score of PERCENT . However , as the party had not succeeded in passing the national threshold of PERCENT , the applicants were not elected . The CARDINAL seats allocated to Şırnak province were shared as follows : CARDINAL seats for the ORG ( ORG ve GPE – the Justice and ORG , a party of the conservative right ) , which had polled PERCENT ( CARDINAL votes ) , and CARDINAL seat for PERSON , an independent candidate who had polled PERCENT ( CARDINAL votes ) .

Of the CARDINAL parties which had taken part in the elections , only the ORG and the ORG ( PERSON – ORG , a left - wing party ) succeeded in passing the PERCENT threshold . With PERCENT of the votes cast , the ORG won CARDINAL seats , PERCENT of those in ORG . The ORG , which polled PERCENT , obtained CARDINAL seats , or PERCENT of the total . CARDINAL independent candidates were also elected .

However , not only DEHAP , which polled PERCENT , but many other political parties were unable to obtain seats in ORG . These included ORG ( ORG , centre - right ) , ORG ( ORG , nationalist ) , ORG ( ORG , centrist ) and ORG ( ANAP , centre - right ) , which polled PERCENT , PERCENT , PERCENT and PERCENT of the votes cast respectively .

The results of these elections were generally interpreted as a huge political upheaval . Not only did the proportion of the electorate not represented in ORG reach a record level in GPE ( PERCENT ) but in addition the abstention rate ( PERCENT of registered voters ) exceeded PERCENT for the first time since DATE . As a result , ORG which emerged from the elections was the least representative since DATE , DATE in which a multiparty system was first introduced . Moreover , for the first time since DATE , CARDINAL parties were represented in ORG .

To explain ORG unrepresentativeness , some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold . For example , because of the protest - vote phenomenon linked to the economic and political crisis , the CARDINAL parties which had obtained seats in the DATE parliamentary elections DATE including the CARDINAL which had formed the governing coalition DATE were unable to reach the PERCENT threshold in DATE and were accordingly deprived of representation in ORG . Similarly , electoral fragmentation had an effect on the results in that numerous attempts to form pre - electoral coalitions had come to nothing .

After these elections the ORG , which had an absolute majority in ORG , formed a government .

In DATE ORG decided to hold early parliamentary elections , choosing CARDINAL DATE as the date . The decision followed a political crisis resulting from ORG ’s inability to elect a new President of the Republic to follow on from PERSON before the expiry of his single DATE term of office , on CARDINAL DATE . In the normal course of events , these elections should have been held on DATE .

CARDINAL political parties took part in the elections , which were marked by CARDINAL characteristics . Firstly , a strong mobilisation of the electorate was observed following the presidential crisis , since the participation rate rose to PERCENT . Secondly , political parties used CARDINAL pre - electoral strategies to circumvent the national PERCENT threshold . ORG ) took part in the poll under the banner of the ORG , a rival party , and by that means managed to win CARDINAL seats . ORG , pro - NORP , left - leaning ) presented its candidates as independents using the slogan “ CARDINAL hopes ” ; it also supported certain left - wing NORP candidates . This movement was backed by other small left - wing groups such as the LAW , the ORG and the ORG ( the ORG and ORG , socialist ) . CARDINAL independent candidates stood for election in CARDINAL provincial constituencies .

In the elections the ORG , the ORG and the ORG managed to get over the PERCENT threshold . With PERCENT of the votes cast , the ORG won CARDINAL seats , PERCENT of the total . The ORG , with PERCENT of the votes , won CARDINAL seats , PERCENT of the total ; however , the CARDINAL MPs mentioned in paragraph CARDINAL above subsequently resigned from the ORG and went back to the ORG , their original party . The ORG , which polled PERCENT of the votes , won seventyone seats , or PERCENT of the total .

The strong showing by independent candidates was CARDINAL of the main features of the elections of CARDINAL DATE . There were none in ORG in DATE but DATE saw them return , when there were CARDINAL . In DATE CARDINAL independent MPs were elected from a national total of CARDINAL independent candidates . In the elections of CARDINAL DATE , CARDINAL independent MPs were elected . In particular , CARDINAL hopes ” candidates were elected , after obtaining PERCENT of the votes cast , and joined the ORG after the elections . The ORG , which had CARDINAL MPs , the minimum number to be able to form a parliamentary group , was thus able to do so . The independents also included a socialist MP ( the former president of the ORG ) , a nationalist MP ( the former president of ORG , nationalist ) and a centrist MP ( the former president of ANAP ) .

A government was formed by the ORG , which again secured an absolute majority in ORG .

Article CARDINAL of the LAW , as amended on DATE , provides :

“ ORG shall have the right to vote , to stand for election , to engage in political activities independently or as members of a political party and to take part in referenda in accordance with the rules laid down by law .

Elections and referenda shall be conducted under the administration and supervision of the judiciary and in accordance with the principles of free , equal , secret and universal suffrage , in a single round of voting , the votes cast being counted and recorded in public . Nevertheless , the law shall make suitable provision for NORP citizens resident abroad to be able to exercise their right to vote .

Every NORP citizen of DATE of age shall have the right to vote and to take part in referenda .

Exercise of these rights shall be regulated by law .

Serving members of the armed forces , officer cadets and persons serving prison sentences , other than those convicted of an unintentional offence , shall be deprived of the right to vote .

ORG shall determine the measures to be taken to guarantee the security of the operations to count and record the votes in prisons and remand centres , and those operations shall be conducted in the presence of the competent judge , who shall take charge of and supervise them .

Electoral laws must reconcile fair representation with governmental stability .

Amendments to electoral laws shall not be applicable to elections taking place during DATE following their entry into force . ”

Article CARDINAL of the LAW provides :

“ Members of ORG of GPE shall represent the whole nation and not the regions or persons which have elected them . ”

Under the terms of LAW and LAW no . CARDINAL on political parties , a political party which has CARDINAL MPs may form a parliamentary group .

Law no . CARDINAL on the election of members of ORG , published in ORG on DATE , lays down the rules of the system for parliamentary elections .

GPE ’s ORG is a single - chamber parliament which currently has CARDINAL members elected to serve for DATE . The elections are held in the constituencies formed by the CARDINAL provinces in a single round of voting . They take place throughout the national territory , on DATE ; suffrage is free , equal , universal and secret . Counting the votes and recording the results is done in public . Each province is represented in ORG by CARDINAL MP . The other seats are allocated in proportion with the local population . Provinces which have CARDINAL MPs form a single constituency ; those with DATE CARDINAL MPs are divided into CARDINAL constituencies ; while GPE , which has CARDINAL seats , is divided into CARDINAL constituencies .

Section CARDINAL of Law no . CARDINAL provides :

“ ... [ P]olitical parties may not present joint lists ... ”

Section CARDINAL of Law no . CARDINAL ( as amended on CARDINAL DATE ) provides :

“ In a general election parties may not win seats unless they obtain , nationally , PERCENT of the votes validly cast ... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the PERCENT national threshold ... ”

In allocating seats the D’Hondt system of proportional representation is used . That method DATE under which the votes cast for each list are first divided by a series of whole numbers ( CARDINAL , CARDINAL , DATE , DATE , DATE , etc . ) and seats then allocated to the lists which have the highest quotients DATE tends to favour the majority party .

Sections CARDINAL(CARDINAL ) and CARDINAL ) of PERSON no . CARDINAL read as follows :

“ Persons wishing to stand as independent candidates shall deposit with the competent ORG authorities , as a guarantee , a sum equal to the gross DATE salary of a civil servant of the highest rank , and shall place a receipt for payment of that sum in the file presenting their candidature in the parliamentary election . ”

“ ... if , in a parliamentary election , an independent candidate has not obtained sufficient votes to win a seat , the sum deposited as a guarantee shall be forfeited to the ORG . ”

Section CARDINAL of Law no . CARDINAL on political parties ( published in ORG of DATE ) provides :

“ In order to be able to take part in an election , a political party must have a seat in CARDINAL the provinces and have held its general meeting DATE before polling day , or must have a group within ORG . ”

Section CARDINAL of Law no . PERSON provides :

“ Political parties are not entitled to assert that there exist within the territory of GPE minorities based on a race , religion , sect , culture or language . ”

Under the relevant legislation the name of independent candidates is not printed on the voting slips provided near the NORP borders . That means that NORP electors resident abroad may vote for only a political party when using the ballot boxes placed at border crossing - points or large airports . Similarly , whereas political parties have time allocated on television and radio for electioneering broadcasts , independent candidates do not .

The Constitutional Court ’s case - law on the compatibility of electoral thresholds with the principle of a democratic ORG has been contradictory .

At first , in a judgment delivered on DATE ( E. CARDINAL/CARDINAL , PERSON CARDINAL ) , ORG held to be contrary to the principle of a democratic ORG the “ ordinary threshold ” introduced by ORG in order to correct the effects of the proportional representation system . This is a threshold which varies in accordance with the number of seats to be filled in each parliamentary constituency . The threshold applied in a constituency is calculated by dividing the number of votes cast by the number of seats to be filled , and seats are awarded only to candidates who pass it . ORG held in particular that such a threshold , which could enable the representatives of a minority of electors to form a government , was likely to hinder the representation of all currents of thought .

Later , after the adoption of LAW , the Constitutional Court gave its views on the question of electoral systems in a judgment delivered on DATE ( E. CARDINAL , PERSON ) , ruling as follows :

“ The first paragraph of LAW provides that citizens are entitled to vote and stand for election in accordance with rules laid down by law . However , it does not grant an unlimited margin of appreciation to the legislature . By virtue of LAW , elections are conducted under the administration and scrutiny of the judicial power and according to the principles of free , equal , secret and universal suffrage in a single ballot , the votes being counted and recorded in public . Provided those rules are complied with , the legislature may therefore adopt whatever electoral system it deems most appropriate . If the constituent assembly had had a particular system in mind , it would have adopted a binding rule . As it did not do so , the legislature is free to adopt the system it considers best adapted to the country ’s political and social conditions ...

Provided that it does not enact measures tending to restrict the free expression of the people , or subject political life to the hegemony of a single party , or destroy the multiparty system , ORG can put in place one of the existing electoral systems . ”

In a judgment of CARDINAL DATE ( PERSON , PERSON ) , ORG had the opportunity to rule on the constitutionality of section CARDINAL/A of PERSON no . CARDINAL . That section , which referred to section CARDINAL of the same PERSON , also imposed the electoral threshold of PERCENT for the allocation of the seats for ORG members elected in the “ national constituency ” . ORG declared the provisions establishing the national constituency null and void , but held that the PERCENT national threshold could be regarded as compatible with LAW .

The relevant passages of the judgment read as follows :

“ ... [ T]he LAW defines ORG as a Republic ... The constitutional structure of the ORG , which is based on national sovereignty , is a product of the nation ’s will , mediated through free elections . That choice , emphasised in the various Articles of the LAW , is set forth clearly and precisely in LAW , entitled ‘ The right to vote , to be elected and to engage in political GPE . Paragraph CARDINAL of LAW , as amended , provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘ fair representation’ and ‘ governmental ORG . The aim is to ensure that the electors’ will is reflected as far as possible [ in ] the legislature . ... [ In order to ] choose the system the methods of which are most conducive to the expression of the collective will and the taking of collective decisions in the legislature , ... enacting the appropriate legislation in the light of the country ’s specific circumstances and the requirements of the LAW , it is necessary to opt for [ the system ] which is most compatible with the LAW or to reject any system incompatible with it .

The impact of a representative democracy is visible in various fields . The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments . ... Where representation is concerned , the importance attached to fairness is the main condition for governmental stability . Fairness ensures stability . However , the idea of stability , in the absence of fairness , creates instability . The principle of ‘ fair representation’ with which the LAW requires [ compliance ] consists in free , equal , secret and universal [ suffrage ] , with CARDINAL round of voting and public access to the counting of votes and the recording of results , and produces a number of representatives proportional to the number of votes obtained . The principle of ‘ governmental ORG is perceived as a reference to methods designed to reflect votes [ within ] the legislature so as to guarantee the strength of the executive power . The ‘ governmental ORG which it is sought to ensure through the threshold ( described as a ‘ hurdle’ ) , just like ‘ fair representation’ ... , is protected by the LAW . In elections ... importance must be attached to combining these CARDINAL principles , which seem antinomic in certain situations , in such a way [ as to ensure ] that they counterbalance and complement each other ...

In order to achieve the goal of ‘ governmental ORG , set forth in the LAW , a national [ threshold ] has been introduced ...

Clearly , the [ threshold ] of PERCENT of the votes cast nationally laid down in LAW of PERSON no . CARDINAL ... came into force with the approval of the legislature . Electoral systems must be compatible with constitutional principles ... , and it is inevitable that some of these systems should contain strict rules . Thresholds which result from the nature of the systems and [ are expressed ] in percentages , and [ which ] at national level restrict the right to vote and to be elected , are applicable [ and ] acceptable ... provided that they do not exceed normal limits ... The [ threshold ] of PERCENT is compatible with the principles of governmental stability and fair representation ... ”

CARDINAL judges of ORG out of CARDINAL disagreed with the arguments of the majority , considering that the PERCENT national threshold was incompatible with LAW .

In the same judgment , however , ORG declared null and void an electoral threshold of PERCENT for the allocation of seats within provinces ( provincial threshold ) . Holding that such a threshold was inconsistent with the principle of fair representation , it observed :

“ Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘ governmental ORG , imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘ fair representation’ . ”

The elections of DATE , DATE and CARDINAL – in which the majority representation system was used – were unable to ensure an institutional balance between the majority in ORG and the opposition . This imbalance was CARDINAL of the main reasons for the DATE coup ORG . Following the intervention of the armed forces , ORG adopted proportional representation , using the D’Hondt method , to strengthen pluralism and the political system . As a result , the elections in DATE and DATE produced stable majorities in ORG while enabling small parties to be represented . However , in the elections of DATE and DATE the main political movements were unable to establish stable governments , although they had wide electoral support . That period of government instability was marked by the formation of CARDINAL coalition after another , each made fragile by the disproportionate influence of the small parties on government policy .

Following the military regime DATE , Law no . CARDINAL on the election of members of ORG , enacted on CARDINAL DATE , re - established proportional representation , with CARDINAL electoral thresholds . To the PERCENT national threshold was added a provincial threshold ( the number of electors divided by the number of seats to be filled in each constituency ) ; in DATE ORG declared the provincial threshold null and void . In the DATE parliamentary elections ORG ( ANAP ) obtained an absolute majority in ORG .

The parliamentary elections of CARDINAL DATE likewise enabled the PERSON , with PERCENT of the vote , to form a stable parliamentary majority . CARDINAL other parties also won seats . In the elections of DATE , CARDINAL parties gained seats in ORG . This result was due in particular to the fact that CARDINAL small political parties ( ORG , ORG and ORG ) had taken part in the elections under the banner of other political parties with the aim of circumventing section CARDINAL of Law no . CARDINAL , which makes it illegal to form joint lists before elections . The government was based on a coalition of CARDINAL parties . In those elections the CARDINAL candidates of the HEP ( ORG , pro - NORP ) were elected to ORG on the list of the ( social - democratic ) ORG ; they later resigned from the ORG to join the ranks of their own party , the ORG .

In the general election of DATE , CARDINAL parties gained seats in ORG . However , as none of them had a parliamentary majority , a coalition was formed .

The DATE parliamentary elections again resulted in no party having a parliamentary majority . CARDINAL political parties won seats in ORG . A coalition of CARDINAL parties formed a government .

Before the election on DATE , DATE which had seen the highest proportion of votes going to parties not ultimately represented in ORG was DATE , with PERCENT of the votes cast . In DATE , owing to the participation of CARDINAL pre - electoral coalitions , CARDINAL between the ORG , the MÇP and the ORG and the other between the ORG and the ORG , that proportion was brought down to PERCENT . After the elections on DATE it was PERCENT .

As indicated above ( see paragraphs CARDINAL - CARDINAL ) , the elections of DATE enabled the ORG to form a stable government which lasted until DATE , notwithstanding the fact that PERCENT of the votes – CARDINAL votes DATE were not reflected in the composition of ORG .

ORG has not laid down binding rules on the question of electoral thresholds .

The relevant part of LAW ( DATE ) on the state of human rights and democracy in LOC , adopted by the ORG on DATE , reads as follows :

“ CARDINAL . In well - established democracies , there should be no thresholds PERCENT during the parliamentary elections . It should thus be possible to express a maximum number of opinions . Excluding numerous groups of people from the right to be represented is detrimental to a democratic system . In well - established democracies , a balance has to be found between fair representation of views in the community and effectiveness in ORG and government . ”

In its LAW ( DATE ) on the state of human rights and democracy in LOC , adopted on DATE , the ORG recommended that ORG take measures to remedy the deficiencies noted in the above - mentioned ORG . With regard to electoral thresholds , it recommended that ORG urge member States to :

“ CARDINAL consider decreasing thresholds PERCENT for parliamentary elections and ... consider the balance between fair representation and effectiveness in ORG and government . ”

The Code of good practice in electoral matters , adopted by ORG in DATE , emphatically states : “ The CARDINAL principles underlying LOC ’s electoral heritage are universal , equal , free , secret and direct suffrage . ” “ Within the respect of ” those principles , “ any electoral system may be chosen ” .

The relevant part of ORG Report on electoral law and electoral administration in LOC , of DATE , reads as follows :

“ [ T]he effects of CARDINAL particular electoral system can be different from country to country , [ and ] we must appreciate that electoral systems can pursue different , sometimes even antagonistic , political aims . CARDINAL electoral system might concentrate more on a fair representation of the parties in ORG , while another one might aim to avoid a fragmentation of the party system and encourage the formation of a governing majority of CARDINAL party in ORG . CARDINAL electoral system encourages a close relationship between voters and ‘ their’ constituency representatives , while another makes it easy for the parties to specifically introduce women , minorities or specialists into ORG by way of closed party lists . In some countries , complicated electoral systems are accepted in order to combine several political aims . In other countries , it is seen as a priority that the electoral system be not too difficult for the electorate and the administration to understand and operate . The appropriateness of an electoral system is determined according to whether it will do justice , bearing in mind the local conditions and problems . In particular , transparency of the elaboration of the list should be ensured . Thus , the electoral system and proposals to reform should be assessed in each individual case . ”

In its Report on electoral rules and affirmative action for national GPE participation in decision - making process in NORP countries , of DATE , ORG , having analysed the practices of certain member GPE , recommended CARDINAL specific measures to promote the representation of minorities . CARDINAL of the measures concerned have a bearing on the question of electoral thresholds :

d. Electoral thresholds should not affect the chances of national minorities to be represented .

e. Electoral districts ( their number , the size and form , the magnitude ) may be designed with the purpose to enhance the GPE participation in the decision - making processes . ”

The Government referred to the report of the ad hoc Committee for the Observation of Parliamentary Elections in GPE ( DATE ) , produced on DATE . The relevant parts of the report read as follows :

“ As widely reported by the media , CARDINAL parties only out of CARDINAL found their way into the new ORG [ ORG of GPE ] : the ORG ( ORG and ORG ] ) and ORG ( ORG ) , leaving out all other parties , which had been represented so far in the ORG because they could not meet the PERCENT threshold . The party in government until the elections received PERCENT of the votes . Economic and corruption problems were determining in the elections .

A clear and absolute majority has emerged with CARDINAL seats for the ORG , CARDINAL seats for the opposition and CARDINAL seats for independent members . ( These independent members are elected in small towns where they have a good reputation . ) It should be recalled that ORG had CARDINAL seats in the previous ORG , and the CHP CARDINAL ( DATE elections ) .

This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions . On DATE ORG went up by PERCENT .

However , it also means that PERCENT of the voters have no representation in the ORG .

The results must thus be considered as a clear protest vote against the ORG as a whole , since none of the CARDINAL parties in the old governing coalition got enough votes for a single seat ! ”

Paragraphs CARDINAL and CARDINAL of Resolution CARDINAL ( DATE ) on the honouring of obligations and commitments by GPE , adopted by ORG of ORG on DATE , are worded as follows :

“ CARDINAL . With regard to pluralist democracy , the ORG recognises that GPE is a functioning democracy with a multiparty system , free elections and separation of powers . The frequency with which political parties are dissolved is nevertheless a real source of concern and the ORG hopes that in future the constitutional changes of DATE and those introduced by the DATE legislation on political parties will limit the use of such an extreme measure as dissolution . The ORG also considers that requiring parties to win PERCENT of the votes cast nationally before they can be represented in ORG is excessive and that the voting arrangements for NORP citizens living abroad should be changed .

The ORG therefore invites GPE , as part of its authorities’ current reform process , to :

ii . NORP amend the electoral code to lower the PERCENT threshold and enable NORP citizens living abroad to vote without having to present themselves at the frontier ;

The relevant parts of the Report on observation of the parliamentary elections in GPE , produced by an ad hoc ORG of ORG , read as follows :

“ XII . Conclusions and recommendations

NORP The parliamentary elections in GPE , on DATE , were generally in compliance with GPE ’s ORG commitments and NORP standards for free elections .

NORP Overwhelmingly , the voting was well organised and conducted in an orderly and professional fashion , which testifies to a long - standing tradition of democratic elections in GPE .

The high voter turnout shows that confidence in the democratic process exists in GPE .

Electoral administrators at all levels dispatched their duties effectively and in good faith .

NORP However , the Rapporteur believes that GPE could do more in terms of organising even better elections that would guarantee a genuinely representative parliament . The PERCENT threshold requirement could be lowered , in accordance with ORG ) and DATE ( DATE ) . The fact that the new ORG elected on DATE is far more representative than the outgoing ORG , representing PERCENT of the opinions of the electorate , is due to the fact that CARDINAL instead of CARDINAL parties are represented and to the ploy of opposition parties to launch party - sponsored independent candidates and not to any steps taken by the NORP authorities themselves .

The NORP authorities may wish to consider seizing ORG on this issue , as well as on simplifying electoral legislation . ”

NORP Moreover , in reply to a question from a parliamentarian following his address to ORG on DATE , the President of GPE said that the PERCENT threshold met a real need , but might in due course be dispensed with ( see the verbatim record of the sitting on DATE ) . The relevant parts of his reply read as follows ( Registry translation of summary in NORP in the verbatim record of the sitting on DATE ) :

“ PERSON explained that the PERCENT threshold had been introduced to remedy the instability of DATE , in which there had been a large number of coalition governments in close succession . The threshold did not prevent independent candidates from standing . In the latest parliamentary elections , in DATE , voter turnout had been PERCENT , which showed how representative ORG was . Now that political stability had been restored the PERCENT threshold could be reconsidered . ”

Although there is no uniform classification of types of ballot and electoral systems , it is usual to distinguish CARDINAL main types : majority vote systems , proportional systems and mixed systems . In majority vote systems , the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting . This type of ballot makes it possible to vote in governments with clear parliamentary majorities , but at the same time it militates against the representation of minority political parties . Thus , for example , in GPE the use over DATE of a single round of voting in a single - member majority vote system ( “ first past the post ” ) , combined with the existence of CARDINAL dominant political parties , has had the effect of giving few seats to other parties in relation to the number of votes that they obtain . There are other similar cases , in GPE for instance , where there is a majority vote system spread over CARDINAL rounds of voting . At the opposite extreme , the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats . Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces . However , the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities .

NORP Currently , proportional systems are the most widely used in LOC . By way of example , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE have opted for CARDINAL or other variant of proportional representation . There are also mixed systems containing various combinations of the CARDINAL types of ballot ( in GPE , GPE and GPE , for example ) .

In some proportional systems statutory thresholds are used to correct the negative effects of proportional voting , and in particular to ensure greater parliamentary stability . These thresholds , generally expressed as a percentage of the votes cast , are “ limits , fixed or variable , defined in terms of the electoral result , which determine the share of a list or candidate in the distribution of seats ” . However , the role played by thresholds varies in accordance with the level at which they are set and the party system in each country . A low threshold excludes only very small groupings , which makes it more difficult to form stable majorities , whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation .

Analysis of the electoral thresholds adopted in the member GPE which have proportional representation shows that CARDINAL States have opted for high thresholds : GPE has the highest , at PERCENT ; GPE has an PERCENT threshold ; and GPE and GPE a PERCENT one . CARDINAL of the States impose a PERCENT threshold and CARDINAL of them have chosen a lower figure . The other member GPE ( CARDINAL in number ) do not use thresholds . Moreover , in several systems the thresholds are applied only to a restricted number of seats ( in GPE and GPE , for example ) . Thresholds for parties and thresholds for coalitions may be set at different levels . In GPE , for example , the threshold for CARDINAL party is PERCENT , whereas in the case of a coalition it is raised by PERCENT for each of the constituent parties . In GPE , the threshold for coalitions is PERCENT whatever the number of constituent parties . There are similar variations among the thresholds for independent candidates : in GPE , for example , the relevant threshold is PERCENT .


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

André Potocki;Ganna Yudkivska;Mark Villiger

The applicant was born in DATE and lives in PERSON .

On DATE the applicant instituted proceedings in ORG against ORG , her former employer , seeking recovery of salary arrears and compensation for unused leave .

On DATE the court rejected the applicant ’s claims as unsubstantiated .

On DATE the ORG of Appeal quashed that judgment and remitted the case to the first - instance court for fresh consideration .

On DATE the first - instance court left the applicant ’s claims without consideration , holding that she had repeatedly failed to appear at court hearings .

On DATE the court of appeal quashed that decision , finding that there was no proof that the applicant had been duly informed about the date and place of the first instance court ’s hearing , and remitted the case to the first instance court for consideration on the merits .

On DATE the court ordered modification of the record concerning the applicant ’s dismissal and ordered the respondent to pay her certain sum , having rejected the remainder of her claims . On DATE ORG upheld that judgment .

On DATE ORG rejected the applicant ’s appeal in cassation .

Out of CARDINAL hearings scheduled in the applicant ’s case CARDINAL were adjourned due to the applicant ’s absence or upon her request , CARDINAL hearings were adjourned due to the absence of the respondent or his representative or upon their requests , CARDINAL were adjourned due to both parties’ failure to appear . CARDINAL hearings were adjourned due to the judge ’s illness , CARDINAL were adjourned due to the judge ’s absence , and CARDINAL was adjourned due to the liquidation of the court dealing with the applicant ’s case .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

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

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

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


Violation of Art. 6-1+6-3-b;No violation of Art. 10;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

PERSON , a NORP national , is an aeronautical engineer . At the material time he was a captain in the air force .

As the officer in charge of a project for the design and production of a guided missile , he submitted , in DATE , a report to ORG ( " K.E.T.A. " ) on the missile on which he had been working . In DATE he communicated to a private company ( " ORG " ) another technical study on guided missiles , which he had prepared himself .

On DATE a chamber of ORG of GPE ( PERSON ) charged the applicant and another person with disclosing military secrets ( LAW , see paragraph CARDINAL below ) .

On DATE the court found PERSON guilty of having transmitted to PERSON a series of CARDINAL items of information together with " all the technical and theoretical data " appearing in the GPE report . It sentenced him to DATE and CARDINAL months’ imprisonment .

The applicant and the prosecutor at ORG ( PERSON tou PERSON ) appealed from that judgment .

Following a hearing held on DATE and DATE , ORG appointed CARDINAL experts - professors at ORG - who , with CARDINAL other experts , designated by the applicant , compared the CARDINAL studies .

In their report of CARDINAL DATE the CARDINAL professors concluded as follows :

" ... in our opinion , the CARDINAL studies , for the GPE and PERSON , follow different methods , the CARDINAL missiles are different and the second is not a copy of the first ... . Nevertheless , some transfer of technical knowledge inevitably occurred ... . It is not possible to determine the extent of such transfer beyond what is mentioned above under ( b ) , ( c ) and ( d ) , because the PERSON study and even more so the GPE report were shoddily drafted and were full of imprecisions and omissions ; it should be stressed that in both studies the aerodynamic data are erroneous ... "

They noted that PERSON had some technical knowledge , acquired during his studies in GPE . However , his participation in the GPE project had enriched his experience . The components of the missile and some of the theoretical data contained in the CARDINAL studies could be found in various manuals included in the file and regarded as " available literature " . These manuals were not classified as " secret " , but it was not established that they were accessible to private individuals .

At a new hearing held on DATE and CARDINAL DATE ORG took evidence from CARDINAL witnesses on whether the CARDINAL studies contained common data , whether the information which had formed the basis of the studies was freely available in scientific literature and whether the GPE study had been classified as a " military secret " .

After the hearing ORG deliberated in private and considered the following questions formulated by its President :

" CARDINAL . Is PERSON guilty of having , between DATE , unlawfully and intentionally communicated and disclosed to third parties military plans and information classified as secret and which had to remain secret in the military interests of ORG ? [ In particular , is he guilty of having ] ... , in DATE , after having contacted the company ORG ... with a view to preparing and drawing up for the latter ’s benefit a study on guided missiles , for a financial consideration to be agreed with the said company when the work was in progress , unlawfully and intentionally , ( a ) communicated to the above - mentioned company general information concerning the guided missile which was being designed at the GPE and its technical characteristics , although as project officer for the K.E.T.A. missile he knew that such information was secret and that the military interests of ORG required that it be kept secret ; ( b ) transmitted to the same company several elements deriving from the study , relating to the project and on the same subject - matter , of the GPE and from the whole production programme of the NORP guided missile ( " laser kit " ) which existed at the centre and which concerned principally the dimensional diagram of the missile , its external geometry , its perimetric plan , its aerodynamic elements , its Nd - YAG laser type , its dynamic model , its dome , its schematic diagram , its seeker ’s fairing , its basic electronics data , as well as any other theoretical or technical elements contained in the ELFON Ltd study ... , which was elaborated entirely on the basis of the information transmitted and disclosed by him to the company and derived from the corresponding GPE project and study , although he knew , in his capacity as project officer ... , that the information was secret and that the military interests of ORG required that it be kept secret ?

Has it been established ... that , when he disclosed these military secrets , the accused believed , erroneously , that he was entitled to proceed in such a way or [ , on the other hand , ] that he reasonably believed that , having drawn up the GPE study and used his own knowledge , he was entitled to elaborate a new study and submit it through the intermediary of the company ORG to ORG ? Was this belief justifiable ?

Has it been established ... that the military secrets thus disclosed , namely the general information which [ the accused ] communicated to the PERSON company concerning the guided missile ... and its technical characteristics , were of minor importance ?

Should certain factors be taken into account in mitigation , namely that , prior to committing the above- mentioned act , the accused had led an honest and well - ordered private , family and professional life ?

According to the record of the deliberations , the Courts- ORG replied in the affirmative to questions CARDINAL ( a ) ( CARDINAL votes to CARDINAL ) , CARDINAL and DATE ( unanimously ) and in the negative to questions CARDINAL ( b ) ( CARDINAL votes to CARDINAL ) and CARDINAL ( CARDINAL votes to CARDINAL ) .

Giving judgment in PERSON presence on DATE , it sentenced him for disclosure of military secrets of minor importance ( Article CARDINAL para . CARDINAL of LAW , see paragraph CARDINAL below ) to a suspended term of CARDINAL months’ imprisonment , from which it deducted DATE and DATE which he had spent in detention on remand .

The President of ORG read out the judgment , which did not refer to the questions put to the members of the court .

In order to obtain the text of these questions and the replies given , the applicant asked , on DATE , to see the record of the hearing . The registrar allegedly told him that he would have to wait for the " finalised version " of the judgment .

On DATE - within DATE prescribed in LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) - PERSON appealed to ORG ; in his appeal , which was a page long , he alleged " the erroneous application and interpretation of the provisions under which he [ had been ] convicted , namely Article CARDINAL para . CARDINAL of LAW " .

He received a copy of the appeal judgment on DATE ; it was very short and did not state the grounds on which it was based , merely referring to the fixing of sentence .

On DATE the applicant again demanded that the record be communicated to him ; he received it on DATE . This document , which was detailed and reproduced in full the CARDINAL questions and the replies obtained , ended as follows :

The ORG , by CARDINAL votes to CARDINAL ... , finds the accused NORP guilty of disclosing military secrets , which offence was committed in GPE DATE .

By CARDINAL votes to CARDINAL ... , the ORG dismisses the defence request that LAW para . CARDINAL of LAW ( not guilty in the event of mistake ) be applied .

The ORG unanimously accepts that the military secrets communicated are of minor importance .

The ORG unanimously accepts the factors pleaded in mitigation ( Article CARDINAL para . CARDINAL ( a ) of LAW ) .

Having regard to the following Articles : ... Article CARDINAL para . CARDINAL taken in conjunction with paragraph CARDINAL and with LAW ) ... , Articles CARDINAL , CARDINAL ... of LAW , ... ;

... having regard to the gravity of the acts carried out , to the accused ’s personality , to the damage caused by the offence , to the specific nature of the offence , to the specific circumstances under which the offence was committed , to the degree of criminal intent on the part of the accused , to his character , to his personal and social situation , and to his conduct before and after the commission of the offence ;

The ORG sentences the accused to CARDINAL months’ imprisonment and orders him to pay the costs ...

It deducts from the above - mentioned term ... DATE and DATE spent in detention on remand and sets at DATE the term still to be served .

In view of the fact that the accused has no previous convictions and has never been sentenced to prison , and having regard to the circumstances under which the offence was committed , the ORG considers it appropriate to suspend the remainder of the sentence ...

For these reasons ,

Having regard to Articles CARDINAL , CARDINAL and ORG of LAW ,

The ORG orders that the outstanding term of imprisonment be suspended for DATE .

The hearing in ORG ( PERSON ) took place on DATE .

On DATE Mr PERSON filed a memorial in support of his oral pleadings . In his submission the wording of his appeal was sufficient to rule out any danger of its being dismissed for lack of precision . He complained of the shortness of the time - limit for appealing against the decisions of the military courts and the fact that it was impossible for the persons concerned to gain access , in good time , to the contents of the contested judgments . He also challenged the ground on which his conviction rested : the communication of " general information " on the K.E.T.A. missile , the charge which ORG found to be proved , did not justify the application of LAW as that provision concerned the disclosure of secret information of military importance , a charge of which ORG had acquitted him by its reply to question CARDINAL ( b ) ( see paragraph CARDINAL above ) . In his view , at the most his case might fall under LAW ( see paragraph DATE below ) .

On DATE ORG declared the appeal inadmissible on the following grounds :

" By the appeal before the ORG ... , in which it is sought to have judgment no . CARDINAL of ORG set aside , the [ applicant ] challenges the aforesaid judgment on the ground of erroneous application and interpretation of the provisions under which he was convicted , namely LAW para . CARDINAL of LAW . However , this sole ground of appeal , as formulated above , is vague inasmuch as it does not identify any concrete and specific error in the contested judgment which could constitute the basis of the complaint alleging the erroneous application and interpretation of the above - mentioned provision ; the appeal must therefore be declared inadmissible by virtue of Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of the Code of Criminal Procedure . "

LAW provides as follows :

" Communication of military information

Any serviceman or any person employed by the armed forces who , without the consent of the military authorities , communicates or makes public by any means whatsoever information or assessments concerning the army shall be sentenced to a term of imprisonment not exceeding DATE . "

" Disclosure of military secrets

Any serviceman or any person employed by the armed forces who unlawfully and intentionally gives or communicates to others documents , plans , or other objects or secret information of military importance or allows such documents , plans , objects or information to be given or communicated to others , shall be sentenced to a term of imprisonment ( katheirxi ) , or , where the above has been given or communicated to a foreign ORG or to an agent or a spy of a foreign ORG , to dishonourable discharge and death .

... where the [ information ] communicated is of minor importance , the convicted person shall be sentenced to a term of imprisonment ( filakisi ) of not DATE ... "

" Secret information

‘ Secret information of military importance’ means information concerning ORG or its allies which relates to :

( e ) any object officially classified as secret .

The relevant provisions of LAW are worded as follows :

" All court judgments must be specifically and thoroughly reasoned and shall be pronounced in a public sitting ... "

Special laws may provide for :

( a ) Questions relating to the army , navy and air force tribunals , which shall have no jurisdiction over civilians .

( b ) Questions relating to prize courts .

The courts specified under sub - paragraph ( a ) of the preceding paragraph shall be composed of a majority of members of the judicial branch of the armed forces , who enjoy the guarantees of independence , as regards their person and their office , provided for in LAW para . CARDINAL of the present LAW . The provisions of paragraphs LAW CARDINAL of Article CARDINAL shall be applicable to the hearings and judgments of these courts . The detailed rules for the implementation of the provisions of the present paragraph and the date of their entry into force shall be specified by statute . "

According to the consistent case - law of ORG , the failure to give reasons in the decisions of the military courts does not render them void . The application to these courts of Article CARDINAL para . CARDINAL of the LAW requires , under the terms of Article CARDINAL para . CARDINAL , the adoption of special laws , and this has not yet happened ( judgments FAC . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL - CARDINAL/CARDINAL ( PERSON DATE , p. CARDINAL ) and DATE ) . It is sufficient that such a decision answers the questions put by the President ; the questions must indicate accurately all the offences of which the defendant is accused so as to make it possible for a subsequent review by ORG to ensure that the provisions of the criminal law have been properly applied to the facts in question as found by the military courts of first or second instance ( judgments ORG . CARDINAL and DATE ) .

The following texts are relevant here :

" Formulation of questions . Principal question

The President shall put the questions concerning each accused .

The principal question shall be based on the operative part of the committal decision ... and shall include the question whether the accused is guilty ... as charged ... "

" Supplementary questions ( GPE zitimata )

In order to supplement the principal question or the alternative question , supplementary questions may be put concerning the accusation and factors aggravating , mitigating or expunging ( exalipsin ) the offence . "

" Time - limit

Any appeal to ORG ( anairesi ) must be filed within DATE of the delivery of the judgment or , where the judgment has been delivered in the absence of the person convicted or his representative , of its notification ... "

" Grounds for appeal to ORG

Only the following grounds of appeal may be relied upon :

( B ) The erroneous application or interpretation of the substantive provisions of the criminal law . "

LAW provides , inter alia , as follows :

" Time - limit for appealing

The time - limit for filing an appeal with ORG begins to run on the date on which the final text of the judgment is entered into the register of the criminal court in question . It shall be so entered within DATE , failing which the President of the criminal court shall be liable to disciplinary sanctions . "

" PERSON for an appeal to ORG

In addition to the grounds invoked in the appeal ... , further submissions may be made in a supplementary memorial , which must be lodged with the office of the principal public prosecutor at ORG not DATE before the hearing ... ; once this time - limit has expired such memorials shall be inadmissible ... "

According to the case - law of ORG ( judgments FAC . TIME ( PERSON DATE , p. CARDINAL ) , DATE , CARDINAL/CARDINAL ( PERSON DATE , p. CARDINAL ) and CARDINAL/CARDINAL ) , Article CARDINAL para . CARDINAL of LAW does not apply to appeals on points of law from the decisions of the military courts , as the time - limit for such appeals is fixed by LAW ( see paragraph CARDINAL above ) .

The grounds of appeal to ORG must be set out in the initial appeal memorial . As regards " the erroneous application and interpretation of the substantive provisions of the criminal law " , the appeal must specify clearly the errors which are alleged to have been made in the contested judgment ( judgments nos . CARDINAL , TIME , DATE ( PERSON DATE , p. DATE ) and DATE , as well as the judgment given by ORG in the present case ) .

Finally , supplementary submissions may be taken into account only if the initial appeal memorial sets out CARDINAL ground which is found to be admissible and sufficiently substantiated ( judgments nos . CARDINAL , CARDINAL/CARDINAL , ORG , DATE , CARDINAL , ORG ( PERSON , p. CARDINAL ) , CARDINAL , DATE and DATE ) .


The applicant is a GPE national , born in the GPE in DATE . He is in prison in GPE ( the GPE ) . He was formerly resident in the town of GPE .

He is represented before the ORG by Ms Ties Prakken , a lawyer practising in GPE .

A.


Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On DATE , the applicant sold a horse to ORG DATE the buyer returned the horse claiming that it was ill . The applicant was therefore forced to pay the costs of the horse ’s upkeep during DATE . As ORG constantly refused to take the horse back , the applicant sold it to another buyer , as he could not afford the costs of upkeep .

On DATE ORG lodged a suit against the applicant with ORG , claiming payment of the price .

On DATE the applicant lodged a counter - claim for costs of the upkeep of the horse .

During the first hearing on DATE the court admitted witness evidence and adjourned the case .

On DATE the court heard witnesses and adjourned the case .

On CARDINAL DATE the court admitted in evidence an opinion of a veterinary surgeon and adjourned the case .

On DATE the expert submitted the opinion , stating that the horse was well and had never been ill .

On DATE the court called an expert in agriculture , who estimated that the costs of upkeep of the horse had greatly exceeded its value . The court adjourned the case .

On DATE the court heard the parties .

On DATE the court delivered a judgment . Both parties appealed .

On DATE ORG returned the case file to ORG to have it completed .

On DATE ORG quashed the first - instance judgment and remitted the case for re - examination .

On DATE the parties declared that they could not reach a friendly settlement .

On DATE the court admitted the evidence of a witness and adjourned the case .

On DATE a witness was heard and the case was adjourned .

On DATE further witnesses were heard .

On DATE the court admitted in evidence another expert ’s opinion .

On DATE the expert submitted the opinion .

On DATE the court summoned the expert and adjourned the case .

On DATE the court found that the plaintiff had not paid an advance for the expert ’s opinion and adjourned the case until DATE . The expert failed to attend the hearing on DATE and the case was adjourned until DATE .

On DATE ORG delivered a judgment , ordering ORG CARDINAL,CARDINAL to be paid by the applicant with interest from DATE , and CARDINAL PLN to be paid by ORG to the applicant .

On DATE ORG dismissed the appeals of both parties .

Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”

Article CARDINAL of LAW , as applicable until DATE , provided for the following exception in cases where damage resulted from the issue of a decision or order :

“ CARDINAL . If , in consequence of the issue of a decision or order , a ORG official has caused damage , the ORG shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation , and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person .

The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude ORG liability for damage if such proceedings can not be instituted in view of the [ statutory ] exception to prosecution or disciplinary actions . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . While the relevant amendments have in essence been aimed at enlarging the scope of ORG liability for tort under LAW of LAW – which included adding a new LAW tortious liability for its omission to enact legislation ( the so - called “ legislative omission ” ; “ zaniedbanie legislacyjne ” ) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless otherwise provided for by other specific provisions . ”

NORP However , under the transitional provisions of LAW , LAW as applicable before DATE shall apply to all events and legal situations that subsisted before that date .

On DATE ORG ( PERSON ) dealt with CARDINAL constitutional complaints in which the applicants challenged the constitutionality of Article CARDINAL and CARDINAL of LAW . They alleged , in particular , that those provisions were incompatible with LAW and CARDINAL § CARDINAL of the LAW .

On DATE the Constitutional Court gave judgment ( no . ORG CARDINAL/CARDINAL ) and held that LAW was compatible with LAW in so far as it provided that ORG was liable for damage caused by the unlawful action of a ORG official carried out in the course of performing his duties . It further held that even though LAW was compatible with LAW , it was contrary to LAW since it linked the award of compensation for such damage with the personal culpability of the state official concerned , established in criminal or disciplinary proceedings .

On DATE , the date on which ORG judgment took effect , Article CARDINAL was repealed . ORG opinion on the consequences of the repeal read , in so far as relevant :

“ The elimination of LAW from the legal system ... means that ORG liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the ORG liability laid down in LAW . This , however , does not rule out the application in the present legal system of other , not necessarily only those listed in LAW , principles of the ORG liability laid down in specific statutes . ”

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with LAW .

Article CARDINAL , in so far as relevant , reads as follows :

Article CARDINAL provides , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Article CARDINAL refers to proceedings that have been terminated and that do not fall under the transitional provision of Article CARDINAL in the following terms :

“ A party which has not lodged a complaint about the unreasonable length of the proceedings under LAW ) may claim – under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended . ”

Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage had occurred . ”

DATE Act lays down the following transitional rules in relation to the applications already pending before the Court :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”


The applicant was born in DATE and lives in GPE .

On DATE the applicant bought part of a plot of land ( plot no . CARDINAL ) in LOC of GPE . In implementation of a reconstruction plan ( imar şuyulandırılması ) , on DATE a part of the applicant 's plot ( QUANTITY m. ) was joined to another plot which had been used by ORG since DATE . This plot was given the number CARDINAL/CARDINAL and registered in the applicant 's name .

NORP Since this land was occupied by ORG , the applicant filed various petitions requesting the ORG to expropriate it . On DATE the ORG informed the applicant that her land would be expropriated in DATE .

On DATE , relying on LAW no . ORG , ORG lodged an application with ORG for the annulment of the title deed of the applicant to plot no . CARDINAL/CARDINAL and its registration in the ORG 's name . In response , the applicant lodged an application with the same court for compensation for the de facto expropriation . On an unspecified date , the case files were joined .

NORP Before the court , ORG submitted that it had occupied the disputed plot of land since DATE and that , therefore , it should be registered under its name pursuant to LAW no . ORG . In reply , the applicant stated that the date of de facto expropriation in respect of her plot of land was DATE and that , therefore , LAW no . ORG was not applicable in her case .

On DATE ORG annulled the title deed of the applicant and ordered that the land be registered in the name of the ORG . The court dismissed the applicant 's request for compensation on the ground that it was time - barred . It held that ORG had had de facto possession of the property in question since DATE , and that the applicant should have brought a case within DATE from this date in accordance with LAW no . ORG .

On DATE ORG upheld the judgment of the first - instance court . The applicant 's request for the reversal of its decision was dismissed by ORG on DATE . The applicant was notified of this decision on DATE .

A full description of the domestic law may be found in GPE ( Çökmez ) and Others v. GPE ( no . CARDINAL , § § DATE , DATE ) .