The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE . She is represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON , of ORG .

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

In DATE , after having undergone CARDINAL knee operations , the applicant resigned from her full - time job . Continuing to suffer from pain , she felt that she was no longer capable of working full - time . She subsequently started to work on a freelance basis . Having married in DATE , the applicant stopped her freelance professional activities in DATE . The applicant and her husband separated in DATE and divorced in DATE .

On DATE , given its then imminent entry into force , the applicant applied for benefits under ORG ( Algemene Arbeidsongeschiktheidswet ; “ AAW ” ) on account of her incapacity for work as a result of the medical problems which she had experienced with her knees since DATE .

Her request was rejected on DATE by the competent occupational association ( bedrijfsvereniging ) which found that her incapacity for work did not exceed PERCENT , i.e. the minimum level of incapacity for entitlement to AAW benefits . The applicant filed an appeal with ORG ( PERSON ) , arguing that , in addition to knee problems , her incapacity was also due to psychiatric problems , for which she had begun treatment in DATE .

Pending those appeal proceedings , the occupational association reconsidered its decision on the basis of the conclusions of psychiatric and orthopaedic examinations of the applicant . These examinations had been requested by ORG and the results were submitted to the social security medical experts . According to the latter , the applicant was suffering from more severe psychiatric / social problems than had initially been assumed . On DATE the occupational association informed the applicant that it had withdrawn its decision of CARDINAL DATE . Finding that the applicant was PERCENT incapacitated for work on DATE , i.e. the date on which the ORG entered into force , she was granted AAW benefits corresponding to that level .

On DATE the social security authorities informed the applicant that , pursuant to the Act of CARDINAL DATE ( see below under “ Relevant domestic law ” ) , AAW benefits would be withdrawn if a beneficiary had become incapacitated for work before DATE without having earned any income from work in DATE the occurrence of the incapacity . As the applicant 's incapacity had occurred on DATE and as it did not appear that she had received an income from work during DATE , her benefits would be withdrawn from DATE .

By a decision of CARDINAL DATE the social insurance authorities informed the applicant that , in view of the provisions of LAW ( see below under “ Relevant domestic law ” ) , the decision to withdraw her benefits from DATE had been annulled . She was further informed that , although her benefits would be continued to be paid for the time being , in view of measures announced by the Government it remained possible that her benefits would be withdrawn from DATE .

On DATE the social insurance authorities informed the applicant that , in application of LAW of CARDINAL DATE as amended by LAW DATE , her AAW benefits would be withdrawn from DATE . On DATE the applicant filed an appeal against this decision with ORG ( arrondissementsrechtbank ) .

On DATE the Acting President of ORG informed the applicant that the examination of her appeal would be adjourned pending the outcome of proceedings before ORG ( ORG ) in a similar case . On DATE ORG informed the applicant that , in similar cases pending before ORG , the tribunal intended to put preliminary questions to ORG of ORG ( ECJ ) . As the answer to those questions could be of importance for the applicant 's case , her appeal would be adjourned pending the determination by ORG of those similar cases , and this could take some time .

On DATE , the ECJ gave its ruling on the preliminary questions put by ORG ( see below under “ Relevant domestic law ” ) . This ruling was published in the Social Security Law Reports ( PERSON – “ RSV ” ) PERSON .

On DATE , following a hearing held on DATE , ORG dismissed the applicant 's appeal . It rejected the applicant 's argument that she should be considered as having become incapacitated for work in DATE and that , having been gainfully employed in DATE , she was thus eligible to retain her AAW benefits . On this point ORG held :

“ It appears from [ the case file ] that until DATE the [ applicant ] worked as an interior designer ... and subsequently , until DATE , worked occasionally as a freelance interior designer . The [ applicant ] married in DATE , her daughter was born in DATE and she divorced in DATE .

On DATE the [ applicant ] applied [ for AAW benefits ] indicating that she had been incapacitated for work since DATE . She appeared to have been suffering from knee problems for DATE and had been operated on in DATE . It further appeared that she had been treated by a neurologist since DATE . In the course of the investigation [ for AAW purposes ] by ORG Gemeenschappelijke Medische Dienst ) in DATE , the applicant told the social security medical officer that she had stopped working ... because her husband was providing the family income .

... Initially ... [ the applicant 's request for ] benefits for incapacity for work was rejected because [ the applicant ] was considered fit to do work which spared her knees , but after a letter from [ her ] neurologist she was granted AAW benefits from DATE ( entry into force of AAW ) on medical - psychological grounds . ...

ORG does not find it established ... that the [ applicant ] has been uninterruptedly incapacitated for work to a relevant degree since DATE . It considers that , from DATE onwards , work which would spare her knees was indicated to [ the applicant ] but , apart from the period in DATE during which she underwent a knee operation , [ the applicant ] has not been incapable of undertaking gainful employment . In this connection ORG points out that the [ applicant ] worked until DATE , albeit irregularly , and ceased to work on grounds which were not medical .

This leads ORG to conclude that the defendant has correctly considered DATE as DATE of [ the applicant 's ] incapacity for work .

ORG further finds it established that the [ applicant ] has not had any income from employment or in connection therewith in DATE . ”

On DATE the applicant filed an appeal with ORG against the decision of DATE . She argued , inter alia , that ORG had unjustly found that she had not been incapacitated for work since DATE . She further argued that the decision violated her rights under LAW No . CARDINAL and LAW in conjunction with LAW No . CARDINAL .

In its decision of DATE , following a hearing held on DATE , ORG rejected the applicant 's appeal . It noted that the applicant 's AAW benefits had been withdrawn from DATE because the applicant had not had any income from work in DATE the occurrence of her incapacity for work . It further noted that this decision was based on LAW DATE as amended by LAW ( Reparatiewet AAW ) of DATE . Under those provisions , eligibility for continued receipt of ORG benefits after DATE by persons whose incapacity for work had occurred before DATE was subject to the conditions set out in LAW as worded following the entry into force of LAW DATE . As regards the determination of the date on which the applicant 's incapacity for work had occurred , ORG accepted ORG ruling as correct and upheld its findings .

Relying , inter alia , on its findings in a decision of DATE published in GPE CARDINAL ( Administratiefrechtelijke Beslissingen – “ GPE ” ) , in which it had examined the compatibility of LAW ( see below under “ Relevant domestic law ” ) with LAW , ORG rejected the applicant 's complaint that the withdrawal of her AAW benefits was contrary to her rights under LAW , without giving any additional reasons . Insofar as the applicant complained that the withdrawal of her benefits also violated her rights under LAW No . CARDINAL , ORG accepted that this withdrawal constituted a deprivation of property within the meaning of the second sentence of this provision . It noted that , according to the criteria established in the ORG 's case - law , a deprivation of property must strike a fair balance between the general interest of the community and the requirements of the protection of the individual 's fundamental rights , and that there must be a reasonable relationship of proportionality between the means employed and the aim pursued . Moreover , a ORG enjoys a wide margin of appreciation in applying these criteria . On this point ORG considered :

“ In answering the question whether those criteria have been met in the present decision , taken pursuant to LAW , ORG recalls the history of that LAW as set out in the preliminary questions to the ECJ which resulted in the Posthuma - PERSON judgment [ of DATE ] ( RSV CARDINAL ; the preliminary questions in RSV CARDINAL ) :

' The ORG , in force since DATE , originally conferred on men and unmarried women , after DATE of incapacity for work , entitlement to labour disability benefits , the amount of which did not depend either on any other income or on any loss of income by the beneficiary .

Entitlement to benefits under the ORG was extended to married women by LAW on LAW ( PERSON Uitkeringsrechten voor ORG ) of DATE . At the same time this LAW made entitlement to benefits for all those insured , save for certain categories , subject to the condition that during DATE the occurrence of the labour incapacity the beneficiary had received from employment or in connection therewith a certain income which was initially set at no less than MONEY ( NLG ) ( hereinafter “ the income requirement ” ) . The income requirement applied to all persons whose incapacity for work had occurred after DATE .

By virtue of the transitional provisions contained in the above - cited LAW DATE , men and unmarried women whose incapacity for work had occurred before DATE continued to be entitled to benefits without having to satisfy the income requirement . Married women whose incapacity had occurred before DATE were not entitled to benefits even if they satisfied the income requirement . Married women whose incapacity had occurred DATE and DATE were entitled to benefits only if they satisfied the income requirement .

By several judgments of CARDINAL DATE ORG held that those transitional provisions constituted discrimination on the ground of sex , contrary to LAW ORG ) ... and that married women whose incapacity for work arose before DATE were entitled , with effect from DATE , the date on which LAW DATE entered into force , to AAW benefits on the same conditions as men , that is to say without having to satisfy the income requirement , even if their incapacity had occurred before DATE . '

The legislature 's choice in LAW to make an income requirement apply to all persons claiming entitlement to AAW benefits from DATE , subsequent to the development outlined above , was mainly inspired by CARDINAL considerations :

– under the regime of a long - term benefits arrangement , namely until DATE in the case of continuous labour disability , there was a significant difference in the conditions for benefits ( the income requirement ) that was solely determined by the date of occurrence of the labour disability ( prior to , on or after DATE ) and which as such raised serious concerns regarding the principle of equal treatment of similar cases ;

– the case - law had considerably enlarged the group of persons incapacitated for work who , without having to comply with the income requirement , had a continued entitlement to benefits after DATE , which could result in unacceptable budgetary consequences .

In reconstructing the ORG to take account of these considerations , the legal norms on equal treatment also had to be respected for other reasons , in which connection a major role was played by ORG legislation concerning equal treatment of men and women and the prohibition of direct and indirect discrimination of men and women in the field of social security as further elaborated in the ECJ case - law .

The balance struck by the legislature has led to full equality in the conditions for benefits as regards previous income from work for the entire group of persons entitled to AAW benefits . Although , for part of that group , as in [ the applicant 's ] case , this means that , after receiving AAW benefits for a period of up to a ( maximum ) of DATE , their benefits are withdrawn , a situation which must undoubtedly be considered as a serious interference with the right protected by LAW , and although the construction opted for , through the retroactive introduction of an eligibility condition , meets with objections as formulated in ORG decision ORG , ORG is of the opinion that , given the [ above ] development and the limited options subsequently available to the legislature , the chosen measure must also be upheld when examined in the light of LAW No . CARDINAL .

In reaching this finding , ORG further notes that , for the group concerned , a statutory transitional period of , ultimately , DATE has been created , within which the entitlement to benefits continues in full . In this limited compensation it deserves to be mentioned that , as regards measures that are ( also ) inspired by compelling considerations of a financial nature , full or even considerable compensation can not come into play without ( to a large extent ) annihilating the aim of those measures .

ORG further takes into consideration that the additional condition was intended to affect only that group which , prior to the occurrence of the incapacity for work , did not depend for subsistence on AAW benefits .

ORG finally considers it relevant that in the GPE system LAW ( PERSON ) functions as a social “ safety net ” which therefore is also applicable to those who were dependent for their subsistence on AAW benefits .

ORG concludes that on this point also the appeal can not succeed and that the impugned decision must be upheld . ... ”

As the applicant 's assets , i.e. her personal savings and the value of the mortgage - free home that she owned , exceeded the exemption limit under LAW ( PERSON ) , she was not entitled to general welfare benefits during the period DATE , when her AAW benefits were withdrawn , and DATE , when – having turned DATE she became entitled to benefits under LAW ( PERSON ) .

The ORG , as in force between CARDINAL DATE and DATE , provided for a general labour disability insurance scheme under which all persons residing in the GPE DATE were guaranteed index - based benefits if , owing to labour incapacity having lasted for DATE , they were unable to generate income from work .

Given that , since DATE , employees were already insured against labour incapacity under ORG ( Wet op de Arbeidsongeschiktheidsverzekering – “ PERSON ” ) , the ORG was primarily of importance for those groups who , until then , had been ineligible for ORG benefits , namely the self - employed and those who were disabled from birth or who had become disabled before completing their education .

Entitlement to AAW benefits was not linked to payment of contributions : contrary to social security schemes based on employment ( werknemersverzekering ) such as , for instance , the ORG , the ORG was a general social security scheme ( volksverzekering ) . Until DATE the ORG scheme was funded by employers on the basis of a percentage of paid wages . From DATE AAW contributions were collected through income tax .

The level of AAW benefits was linked to the level of incapacity and did not depend on a person 's personal savings or other property . Entitlement to benefits started when the level of incapacity exceeded PERCENT . Full incapacity for work entailed entitlement to AAW benefits equal to PERCENT of a base figure ( grondslag ) related to the statutory minimum wage in force in the GPE . The base figure applicable to married men and single persons caring for a child DATE was higher than the base figure applicable to single men and women .

Beneficiaries remained entitled to AAW benefits for as long as they were incapacitated for work , but not beyond DATE . Initially , married women were not eligible for AAW benefits on the basis of the then prevailing view that men were the breadwinners in the family .

On DATE ORG issued Directive CARDINAL/CARDINAL/EEC on the progressive implementation of equal treatment between men and women in the field of social security , granting member states a period of DATE until DATE within which to make any amendments to their legislation which might be necessary in order to bring it into conformity with the Directive .

This Directive led to the LAW on LAW DATE , which entered into force on DATE and as a result of which married women also became entitled to AAW benefits in their own right . However , given the slowdown in economic growth in the GPE in DATE , and in order to avert major financial repercussions from granting an additional category of persons an entitlement to AAW benefits , an additional requirement for entitlement to benefits was simultaneously introduced . From DATE , anyone who had become incapacitated for work on or after DATE ( thereby taking into account DATE waiting period ) was required to have earned a fixed minimum amount of income from work in DATE the occurrence of the labour incapacity ( “ the income requirement ” ) , thus rendering entitlement to AAW benefits dependent on the existence of a demonstrable link with actual income from work .

In accordance with the transitional provisions of LAW December CARDINAL , married men and single persons who had become incapacitated before DATE retained their entitlement to AAW benefits without having to comply with the newly introduced income requirement .

As regards married women a difference in treatment was made between those who had become incapacitated before DATE ( DATE before the entry into force of the AAW ) and those who had become incapacitated DATE and DATE . The first group was not entitled to AAW benefits even if the persons concerned complied with the income requirement , whereas members of the second group were entitled to AAW benefits only if they complied with the income requirement .

In CARDINAL decisions given on DATE , ORG held that these ORG rules in respect of married women constituted discriminatory treatment on the basis of sex , contrary to LAW ORG , as the requirement that a person 's incapacity had to have occurred on or after DATE in order to be entitled to AAW benefits applied to married women but not to married men . According to those decisions , married women whose incapacity for work had arisen before DATE were entitled , from DATE , to AAW benefits under the same conditions as married men , i.e. without having to comply with the income requirement and on the basis of the same base figure as that applicable to married men . It was further held in those decisions that married women who had become incapacitated for work before DATE and who were not entitled to AAW benefits , even if they did comply with the income requirement , were entitled , from DATE , to AAW benefits .

This finding led to LAW of DATE , which entered into force on CARDINAL DATE and which created the following situation :

married women who had become incapacitated for work before DATE were entitled to AAW benefits . Married women who had applied for AAW benefits before CARDINAL DATE did not have to comply with the income requirement in order to be entitled DATE with retroactive effect DATE to AAW benefits . Married women who had applied for AAW benefits on or after CARDINAL DATE had to comply with the income requirement in order to be entitled to AAW benefits ;

married women who had become incapacitated for work before DATE and who had already been granted AAW benefits obtained , from CARDINAL DATE , AAW benefits on the basis of the same base figure applied to married men ; and

all persons DATE men and women alike – who had become incapacitated for work before DATE were to lose their entitlement to AAW benefits on DATE if they did not comply with the income requirement .

By the LAW of DATE the date of withdrawal of AAW benefits , originally fixed at CARDINAL DATE for those concerned , was postponed to DATE .

This resulted in numerous proceedings brought by persons whose AAW benefits had been withdrawn on the ground of non - compliance with the income requirement . In a judgment of DATE , ORG held that , with regard to the income requirement , the fixed minimum income constituted indirect discrimination against women , in violation of LAW ORG and LAW MONEY , and that the income requirement was to be regarded as being satisfied if , during DATE prior to the occurrence of the incapacity for work , the beneficiary had earned “ some income ” .

In other sets of appeal proceedings concerning the withdrawal of AAW benefits for failure to comply with the income requirement , in which it was argued that the income requirement under the ORG was contrary to Directive FAC and was discriminatory , ORG decided on DATE to seek a preliminary ruling from the ECJ on this point .

On DATE the ECJ handed down the requested preliminary ruling . This ruling , insofar as relevant , states :

“ CARDINAL . ... it should be recalled in the first place that the ORG [ has previously ] ruled ... that ORG law does not preclude the introduction of national legislation which , by making continuance of entitlement to benefits for incapacity for work subject to a condition applicable henceforth to men and women alike , has the effect of withdrawing from women in future rights which they derive from the direct effect of LAW CARDINAL/CARDINAL .

The ORG also ruled that LAW QUANTITY precludes the application of national legislation which makes the grant of benefits for incapacity for work subject to the condition of having received some income during DATE the commencement of the incapacity , a condition which , although it does not distinguish on grounds of sex , affects far more women than men , even if the adoption of that national legislation is justified on budgetary grounds .

Next it should be observed that , when the ORG examined whether Community law precluded the introduction of national legislation which , by making continuance of entitlement to benefits for incapacity for work subject to a condition applicable henceforth to men and women alike , has the effect of withdrawing from women in future rights which they derive from the direct effect of LAW , it expressly reserved consideration of the question whether , as such , an income requirement of the kind at issue in the main proceedings complied with the principle of equal treatment between men and women . ...

In view of the foregoing , the questions referred for a preliminary ruling by ORG should be construed as seeking to establish whether LAW QUANTITY precludes the application of national legislation which makes receipt of a benefit for incapacity for work subject to the requirement of having received a certain income from or in connection with work in DATE the commencement of incapacity where it is established that that requirement affects more women than men . ...

[ As to the question whether persons who did not receive a certain income from or in connection with work in DATE the commencement of incapacity fall within the scope ratione personae of Directive CARDINAL , the ECJ concludes ] that such persons do not necessarily fall outside the scope ratione personae of Directive CARDINAL/CARDINAL . ...

In order to reply to the national court 's question , as reformulated in paragraph CARDINAL , it should be recalled that LAW prohibits in social security matters all discrimination whatsoever on grounds of sex either directly , or indirectly by reference in particular to marital or family status , in particular as concerns the scope of the social security schemes and the conditions of access thereto .

As the ORG has consistently held , LAW precludes the application of a national measure which , although formulated in neutral terms , works to the disadvantage of far more women than men , unless that measure is based on objective factors unrelated to any discrimination on grounds of sex . That is the case where the measures chosen reflect a legitimate social policy aim of the Member ORG whose legislation is at issue , are appropriate to achieve that aim and are necessary in order to do so ....

NORP ... ORG essentially argue that , by introducing the income requirement in the ORG , the PERSON of DATE caused the GPE scheme relating to incapacity for work to shift from being pure national insurance to insurance against loss of income guaranteeing a minimum income to insured persons and that , by providing that the income requirement was henceforward to apply to all insured persons , whether male or female , married or unmarried , who became unfit for work before or after DATE , the LAW DATE accentuated the nature of that scheme as CARDINAL providing insurance against loss of income . They consider that , in so doing , the GPE legislature pursued a legitimate social policy aim , inherent in numerous social security schemes , of restricting eligibility for a given benefit to persons who have lost income following the materialisation of the risk which the benefit is intended to cover .

As the ORG has held [ in its judgment of DATE ] in PERSON , née PERSON , and Others [ Case C-CARDINAL/CARDINAL ] at CARDINAL , Directive FAC leaves intact the powers reserved by ORG CARDINAL and CARDINAL of LAW to LAW to define their social policy within the framework of close co - operation organised by ORG , and consequently the nature and extent of measures of social protection , including those relating to social security , and the way in which they are implemented . In exercising that competence , the Member States have a broad margin of discretion ....

It must be held that guaranteeing the benefit of a minimum income to persons who were in receipt of income from or in connection with work which they had to abandon owing to incapacity for work satisfies a legitimate aim of social policy and that to make the benefit of that minimum income subject to the requirement that the person concerned must have been in receipt of such an income in DATE to the commencement of incapacity for work constitutes a measure appropriate to achieve that aim which the national legislature , in the exercise of its competence , was reasonably entitled to consider necessary in order to do so .

The fact that that scheme replaced a scheme of pure national insurance and that the number of persons eligible to benefit from it was further reduced to those who had actually lost income from or in connection with work at the time when the risk materialised can not affect that finding .

It appears from the case - law of the ORG ( PERSON , née PERSON , and Others , at paragraph CARDINAL , confirmed in Case PERSON [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) that Community law does not prevent Member GPE from taking measures which have the effect of withdrawing social security benefits from certain categories of persons , provided that those measures are compatible with the principle of equal treatment between men and women as defined in LAW CARDINAL/CARDINAL . Subject to that proviso , Member GPE are also free to lay down , as part of their social policy , new rules which have the effect of reducing the number of persons eligible for a social security benefit .

The reply to the national court 's questions must therefore be that LAW does not preclude the application of national legislation which makes receipt of a benefit for incapacity for work subject to the requirement of having received a certain income from or in connection with work in DATE the commencement of incapacity , even if it is established that that requirement affects more women than men . ”

In other domestic proceedings the income requirement was challenged on grounds , inter alia , of its incompatibility with the prohibition of discrimination set out in , for instance , LAW .

In a judgment given on DATE , ORG rejected this argument . This judgment , insofar as relevant , reads :

“ It has been argued that the withdrawal of the AAW benefits on grounds of [ non - compliance with the income requirement ] is in violation of LAW in conjunction with LAW No . CARDINAL . On the assumption that AAW benefits , such as in issue in the present case , can be regarded as a “ possession ” within the meaning of the latter provision , which assumption finds support in the [ PERSON v. GPE ] judgment of ORG DATE , it must be examined whether LAW of CARDINAL DATE entails a violation of LAW ...

ORG is of the opinion that , insofar as Article PERSON links the ( continuation of ) entitlement to [ AAW benefits ] to the condition that prior to the occurrence of labour incapacity ( some ) income from or in connection with work must have been obtained , this is without any doubt an “ objective and reasonable justification ” in the sense of the ORG 's case - law which , in accordance with that same case - law , entails that a “ legitimate aim ” must be pursued and that there must be a “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” ( see paragraph CARDINAL of the PERSON judgment ) .

In this connection ORG points out that LAW DATE has already passed a similar test on the basis of certainly no less strict criteria , as apparent from the above - cited ECJ judgment of DATE ( RSV CARDINAL ) . ”

The ORG was repealed on DATE and replaced , as regards persons not employed by others , by the ORG - employed Persons Disablement Benefits Act ( PERSON ) and LAW ( PERSON jonggehandicapten ) . Employees continued to be insured for incapacity for work under the ORG .

Under LAW , as in force at the material time , all persons DATE and lawfully residing in the GPE were eligible for benefits under LAW if they had no other means of subsistence . General welfare beneficiaries who were younger than DATE were obliged to make demonstrable efforts to find work and had to be registered at an employment office ( arbeidsbureau ) . Beneficiaries who were older than CARDINAL½ and mothers with children younger than DATE were exempted from this obligation .

There were national norms under LAW for different categories of beneficiaries . Married and cohabiting couples were entitled to welfare benefits equal to PERCENT of the statutory fixed minimum wage , single parents to welfare benefits equal to PERCENT of the minimum wage , and single persons to benefits equal to PERCENT of the minimum wage . For the latter CARDINAL categories , supplementary welfare benefits of PERCENT could be granted under certain conditions , such as when the beneficiary was living alone . Special rules applied to welfare beneficiaries DATE .

Unlike the ORG , ORG was not designed to insure against loss of income ( opportunities ) resulting from a certain risk materialising ( e.g. incapacity for work ) but was to serve as a last resort safety net , in that entitlement to welfare benefits only arose where there were no other possibilities for obtaining sufficient income for meeting basic needs .

In order to be eligible for welfare benefits , personal savings were not to exceed an DATE defined limit . On DATE this limit was set at MONEY ( NLG ) for a single person and at NLG CARDINAL for a family . This limit was higher for homeowners , in that capital tied up in their home was taken into account . On DATE , the limit for a single home - owner was set at a maximum of NLG CARDINAL , and at a maximum of NLG CARDINAL for a home - owning family .

On DATE , FAC was replaced by ORG ( PERSON Bijstand ) .


Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award

The applicant , PERSON , was born in DATE and lives in GPE .

In DATE the NORP authorities nationalised the property owned by his parents and deported his family to LOC .

On DATE the ORG enacted Law No . CARDINAL “ on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime ” . The PERSON enabled the victims of NORP repression to claim compensation for their nationalised property .

In DATE the applicant brought an action against ORG in respect of the latter 's refusal to pay him compensation .

On DATE ORG found in favour of the applicant and ordered ORG to pay him compensation of CARDINAL Moldovan Lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) .

NORP The applicant obtained an enforcement warrant which the bailiff failed to enforce . On an unspecified date the applicant wrote to ORG , complaining about the non - enforcement of the judgment of DATE . In a letter of CARDINAL DATE , ORG assured the applicant that everything possible was being done to enforce the decision , but that ORG did not have any money in its account .

On DATE , after the case had been communicated to the Government , the judgment was enforced . The applicant wrote a receipt addressed to the head of ORG in which he confirmed that he had received the money in accordance with the judgment of DATE and that he had no more claims against the debtor and against ORG .

The relevant domestic law has been summarised in GPE v. GPE , no . CARDINAL , § DATE , ECHR DATE ...


Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . She was represented before the Court by Mr A. Briceac , Mr PERSON , Mr GPE and Mr PERSON , acting on behalf of ORG .

The Moldovan Government ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

The applicant is a disabled person suffering from severe mental incapacity . The nature of her condition means that she requires full - time care from her mother . At the time of the events she was DATE and DATE .

On DATE the applicant followed a young man , ORG , who was DATE at the time , out of her home . QUANTITY female neighbours saw them and asked where they were going . According to the neighbours , the applicant had replied that they were going to go somewhere to kiss and fondle . The neighbours decided to follow them to ensure that nothing happened to the applicant . The applicant and FAC crossed the shallow part of a small river . The neighbours saw the applicant and FAC first kiss under a tree and then disappear into some bushes near some cliffs . It was alleged that ORG had then assaulted the applicant and that she had let out a scream , but the neighbours did not see or hear anything . While they were watching the applicant and ORG , a man named PERSON also crossed the river and went the way the applicant and ORG had gone . According to CARDINAL of the applicant ’s neighbours , who knew ORG , he had been taking a shortcut home to the neighbouring village . He was later seen by their village ’s mayor . After crossing the river , GPE passed by the bushes where the applicant and FAC were , but he did not see them .

One of the neighbours ran off to inform the applicant ’s parents . The other neighbour , who did not move from where she was , could not see the events that followed because of the bushes , but she kept shouting at ORG to let the applicant go .

Soon afterwards , the applicant ’s brother arrived and ORG ran away . The applicant ’s brother did not find the applicant because he had been looking in the wrong place . The applicant saw her neighbours on the other side of the river and joined them after being directed by them to a shallow point of the river . According to the neighbours , she had appeared scared and had said that ORG had kissed her . They did not see any injuries on the applicant ’s body and her clothes were wet from crossing the river . CARDINAL of the neighbours took her home where , eventually , the applicant told her and her parents that ORG had beaten her up .

A medical report dated DATE , which forms part of the case file , states that the applicant had been gang - raped . The circumstances in which that report was obtained are not clear .

According to a medical report dated DATE the applicant had a freshly torn hymen and some minor bruising around her genitals . No other injuries were found .

On DATE the applicant ’s mother lodged a criminal complaint in which she accused G.P of raping her daughter . On the same date , the applicant ’s stepfather told the police that the applicant had in fact been raped by CARDINAL people , namely ORG and GPE

In a statement of DATE to the prosecutor , the applicant submitted that ORG had come to her house , beaten her up and taken her by force to a secluded place on the other side of the river , where he had raped her . She did not accuse anyone other than FAC She made a similar statement on DATE .

NORP In a statement of DATE to the prosecutor , the applicant ’s mother submitted that after being raped by ORG , the applicant looked as though she had been assaulted and her clothes had been soiled with blood and torn . The applicant ’s mother did not accuse anyone other than ORG

As to ORG ’s version of events , he initially denied having had sexual intercourse with the applicant ; however , he later admitted that they had done so but stated that he had not forced her to . He also admitted having slapped her once across the face after intercourse because she had provoked him .

In a second medical report dated DATE a doctor found that the applicant had suffered a blow to the head and had bruising around her nose .

On DATE a prosecutor questioned PERSON , who confirmed the applicant ’s ORG statements that he had crossed the river on TIME CARDINAL September CARDINAL to take a shortcut to the neighbouring village . He submitted that he had not seen the applicant and ORG , but that he had seen the mayor .

NORP The prosecutor also obtained a report from the school where FAC was a pupil , according to which he was said to have had limited intellectual abilities .

Following an investigation , the prosecutor ’s office concluded that ORG had been the sole perpetrator of the rape and initiated criminal proceedings against him . The prosecution recommended a sentence of CARDINAL PERSON imprisonment in a young ORG institution .

In the trial before the first - instance court , the applicant ’s mother claimed compensation in the amount of CARDINAL NORP lei ( MDL ‒ MONEY ) from ORG She did not give any evidence to suggest that ORG had been involved and did not seek to have him convicted . ORG submitted that he had not forced the applicant to have sexual intercourse with him and that he had only slapped her because she had provoked him . The applicant stated that she had followed ORG from her house to a secluded place on the other side of the river and that she had kissed him . ORG had then told her to undress and when she had refused , he had punched her in the nose . After the rape , she had heard her brother calling to look for her , and ORG had then run away . The applicant was specifically asked whether anyone else had been present and she replied that they had been alone . The applicant was assisted in court by her mother , who made a formal statement to the effect that the applicant had not been intimidated and was giving evidence in her own words .

On DATE ORG found ORG guilty of rape and , in view of the fact that he was a minor , gave him a suspended sentence of CARDINAL PERSON imprisonment with a probationary period of DATE . He was also ordered to pay the applicant damages of MDL CARDINAL , the same amount claimed by the applicant ’s mother .

The applicant ’s mother appealed against the decision and argued , inter alia , that the proceedings had been unfair because the court had tried to cover up the crime . She submitted that the court had not established the identity of the second person who had raped her daughter and that ORG ’s sentence had been too lenient . She also argued that the amount of compensation claimed by her at first instance had been too low because she had been misled by the prosecutor , who had informed her that that amount was the maximum which could be claimed . The applicant ’s mother submitted a fresh claim for damages in the amount of MDL CARDINAL .

NORP The prosecutor ’s office also appealed against the judgment of the first - instance court on the grounds that the sentence was too lenient .

During the proceedings before ORG , the applicant ’s mother submitted a request for further witnesses to be examined ; however , her request was refused on the grounds that they could not have brought anything new or significant to the case . CARDINAL of the eyewitnesses could not be examined because she had since emigrated . The court simply read out the statements she had given during the investigation . On DATE ORG dismissed both appeals . The court found , inter alia , that the sentence imposed on ORG had exceeded the maximum limit set out in LAW for offences committed by minors . It was reduced to a suspended sentence of CARDINAL years’ imprisonment with a probationary period of DATE .

The applicant ’s mother lodged an appeal on points of law in which she contended that ORG ’s sentence had not been proportionate to the seriousness of the offence committed by him and that the amount of damages awarded had been too low . However , that appeal was dismissed by ORG on DATE .

At the material time Article CARDINAL of the Criminal Code provided that the offence of rape was punishable by a minimum of CARDINAL and a maximum of CARDINAL years’ imprisonment . The same offence committed knowingly against a minor , or by CARDINAL or more persons , was punishable by a minimum of CARDINAL and a maximum of CARDINAL years’ imprisonment .

Article CARDINAL of the Criminal Code provided that where the offence was committed by a minor , the maximum sentence was to be halved .

’ imprisonment .