Preliminary objection rejected (validity of application);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);No violation of Art. 2 (applicant's sister);Violation of Art. 2;Not necessary to examine Art. 8;Violation of Art. 13 (applicant and his niece);No violation of Art. 14;No violation of Art. 18;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , a NORP citizen of NORP origin , was born in DATE and lives at GPE , GPE .

The application was brought on behalf of the applicant himself , his deceased sister , PERSON , and her young daughter . It concerns complaints relating to an incident on DATE in which PERSON was killed .

The village in which the events took place has CARDINAL names : an old NORP name of Gisgis and an official NORP name of PERSON . The latter name has been used below .

The facts in this case are disputed .

DATE before the incident on DATE in the applicant ’s village of PERSON , PERSON , CARDINAL of CARDINAL “ collaborators ” in the village had been killed by the ORG ( ORG of GPE ) . DATE before the incident , PERSON , the other “ collaborator ” had moved , under the protection of Ziyaret village guards and apparently with the assistance of gendarmes , from the applicant ’s village to Ziyaret , a village QUANTITY away . A “ collaborator ” is described by the applicant as someone spying for the ORG as distinct from members of the village guards .

On DATE , the security forces set up an ambush in the vicinity of the village purportedly to capture members of the ORG . They consisted , inter alia , of a commando unit and village guards from Ziyaret . Security forces were located in or near a cemetery QUANTITY northwest and south of the village near the asphalt road . The security forces opened fire . The shooting lasted for TIME and consisted of indiscriminate bombardment of civilian houses . It led to the death of the applicant ’s sister , PERSON . No members of the NORP were killed or captured .

The applicant ’s house was in the middle of the village . At the time of the incident , his father and his sister PERSON were sleeping on the balcony , on the upper part of the house . As soon as the firing started , PERSON and his father took shelter inside the house , but PERSON went out on the veranda to collect something . She was hit in the head by a bullet when she was on the threshold and died immediately .

On TIME , the applicant ’s uncle PERSON informed the PERSON gendarmerie commander , possibly by telephone , that the applicant ’s sister had been killed . The commander was surprised to learn that CARDINAL person had died and stated that he expected CARDINAL people to have died . The applicant ’s uncle told the commander that he would apply to the public prosecutor . However , the commander told him to go home and said that he would himself inform the public prosecutor .

Towards TIME , the public prosecutor , a doctor and some soldiers came to the applicant ’s house and an autopsy was carried out . While the autopsy was being undertaken inside the applicant ’s house , the applicant ’s brother , PERSON , asked the soldiers why his family were being persecuted in this way . A non - commissioned officer replied that , if the villagers accepted to become village guards , the persecution would stop and the reason why they shot at the village was that they saw terrorists at its entrance and that the indiscriminate firing at the entire village was to be explained by the clumsiness of the troops . The doctor , after completing the autopsy , said nothing except to present his condolences . He also issued a burial certificate . The applicant and his family were not asked by the public prosecutor about their version of the circumstances of the shooting . The gendarmerie officer PERSON , drew up the incident report without interviewing or seeking any statements from the villagers or members of the commando unit involved . No cartridges were found by the gendarmes in the area in which the ORG were said to be located during the incident . There is no evidence that the ORG were in fact present in the vicinity during the incident .

The bullet which killed the applicant ’s sister was described in the ballistics report as a standard NATO CARDINAL.CARDINAL which was used by the NORP security forces as well as by many other forces . The shot could not have been fired from the east since it would have been blocked by the walls of the houses . It could only have been fired from the south or south - east from higher ground , which was where the security forces were stationed on a hillside .

There had been no communication between the public prosecutor and the family since DATE of the autopsy . He and his family remained in the dark as to the official view of the incident and did not know whether there had been any investigation or prosecution in respect of the shooting . He stated that the village of CARDINAL households had now been reduced to CARDINAL families , the rest having abandoned their homes as a result of military incidents such as the CARDINAL which led to his sister ’s death .

The security forces carried out an ambush operation in the vicinity of the village to catch the ORG members who were active in the area . Units were concealed in the north - west and engaged in an armed clash with the ORG at a point to the south - east of the village , near the cemetery . Their position was QUANTITY above the ORG . There were no units positioned to the south and there would have been no point in having men there since the ORG would not come from the south . The security forces could not therefore have fired the shot from the south which killed the applicant ’s sister .

During the clash , only a few houses were slightly damaged , which does not support the allegations of prolonged , indiscriminate firing by the security forces .

A preliminary investigation into the incident was opened by the public prosecutor of the NORP district . An autopsy was carried out on the applicant ’s sister on DATE in his father ’s house . According to the medical examiner ’s report of that date , an external examination disclosed a bullet wound to the head , probably an entry wound . The skull was opened and a QUANTITY bullet found in the right parietal lobe and removed . Time of death was estimated at TIME prior to the examination .

In a letter dated DATE addressed to the NORP public prosecutor , gendarmerie major PERSON reported that the security forces had carried out an ambush at the entrance of PERSON village . The security forces opened fire on terrorists , who fled towards the northerly part of the village and a search party was sent in that direction without making PERSON any contact . He stated that it was reported that a telephone call had been made to the district gendarmerie headquarters at Ergani at TIME on DATE , informing the latter that PERSON had been killed in the clash . An investigation took place at TIME DATE in the presence of the public prosecutor . Copies of the incident report and a sketch of the location were enclosed with the letter .

On DATE , the NORP public prosecutor , PERSON , considering that the matter lay outside his jurisdiction , transferred the file to the relevant public prosecutor attached to ORG where the matter is still pending . The decision of lack of jurisdiction named the defendants as “ members of the illegal ORG organisation ” and the offence as engaging in armed combat with the security forces and homicide . It indicated that PERSON had died as a result of gunfire occurring in the course of an armed clash which broke out between members of the security forces who were carrying out an ambush operation on the outskirts of PERSON village and members of the ORG who were approaching the village .

On DATE , the regional criminal police laboratory issued its expert ballistics report . It found that the bullet was CARDINAL PERSON calibre and fired by a weapon with a barrel containing CARDINAL ridges which rotated clockwise .

In a letter dated DATE from ORG at ORG to ORG , it was reported that during the ambush operation clashes spread to the village and as a result a bullet hit the doorframe of a house , ricocheted and hit PERSON who was standing near the door . The investigations into her death were still under way . A ballistics examination revealed that the bullet was misshapen and no material information could be obtained which could lead to a conclusion as to the weapon used . No empty cartridges were found at the scene . Thus , there was no information in the file on the weapon which had caused the death . Since the fighting started at TIME and continued into TIME , there was no eyewitness evidence as to what was seen or heard . Proceedings were continuing with a view to apprehending the members of the ORG involved in the armed clash but since they did not return to the scenes of clashes for a long time it would take time to identify and arrest them . As regards the allegations made in the applicant ’s statement of CARDINAL DATE taken by ORG ( “ the ORG ” ) , the claim that the security forces opened harassing fire on the village was false and was intended to denigrate the security forces involved in the fight against terrorism . It was the duty of security forces to maintain order and protect the population so there could be no question of them opening harassing fire on the village . The incident in PERSON resulted from the type of ambush operation commonly carried out by the security forces on roads leading into and out of villages .

By letter dated DATE , ORG informed ORG that on DATE the security forces had come to the village with the purpose of apprehending terrorists whom they had heard were coming to the village . The security forces were attacked by the ORG . Village guards from Ziyaret were not involved in the operation . No raid was carried out on the village which was due to have village guards of its own . Although villagers had applied for posts as village guards they had not in fact been recruited since no suitable posts were available . At the time of the incident there were CARDINAL households , not CARDINAL as alleged by the applicant ( see paragraph CARDINAL above ) , and currently there were CARDINAL households living there , not CARDINAL , as alleged by the applicant ( ibid . ) .

NORP Since the facts of the case are disputed , particularly concerning the events in or around DATE , the ORG conducted an investigation , with the assistance of the parties , and accepted documentary evidence , including written statements , and oral evidence taken from CARDINAL witnesses by CARDINAL delegates at a hearing in GPE on CARDINAL–CARDINAL DATE .

As regards written evidence , the ORG had particular regard to a statement by the applicant dated DATE taken by the ORG in ORG , and an incident report of DATE , drawn up by ORG , commander of the NORP central gendarmerie , and signed by other gendarmes . The report concluded that PERSON must have been killed accidentally as a result of shots fired by members of the ORG in the course of clashes with members of the security forces . Furthermore , the Commission had regard to a sketch map of the incident location dated DATE , drawn up and signed by ORG . It indicated , inter alia by numbers , the location of the deceased ’s body , the ORG firing position ( no . CARDINAL ) , the security forces’ firing position ( no . CARDINAL ) , the road and the village slopes .

In addition , the Commission had regard to CARDINAL statements dated respectively CARDINAL DATE and DATE .

The first statement , signed by the applicant and by officers of the anti - terrorism department , was set out in the form of questions and answers . The applicant was referred to his declaration of means and confirmed his signature . He was asked whether he had made an application to the NORP human rights association or in GPE and if so , to provide further explanations . He stated that he had applied to the ORG regarding his sister , that he had not applied to ORG and that he had applied to ORG indirectly through the ORG . He gave details of his finacial position .

The second , signed by the applicant and by a public prosecutor , indicated that the applicant had been shown his declaration of means and that he confirmed that it looked like his . He had explained that he had made an application in DATE to the ORG and to ORG . His application had not concerned anything else and he had not wished to add anything .

The oral evidence included statements by the applicant himself , PERSON ( gendarmerie commander in the district of Ergani ) , ORG and PERSON ( NORP public prosecutor ) . The following witnesses had also been summoned but they did not appear : PERSON ( ORG at ORG , ORG ) , PERSON PERSON ( muhtar ) , PERSON ( father of PERSON ) , PERSON ORG ( brother of PERSON ) , PERSON ( uncle of PERSON ) and PERSON ( mother of PERSON ) .

The verbatim record of the hearing held on CARDINAL–CARDINAL DATE contained the following passages of relevance to the ORG ’s preliminary objection as to the validity of the application ( see paragraph CARDINAL below ) :

“ Mr GÜNDÜZ : We have your petition before us . It bears your signature . Muharrem Ergi , is n’t it :

Mr Muharrem PERSON : Yes .

Mr GÜNDÜZ : PERSON , do you know about the application that was written later on your behalf ? Did you see the application that was submitted to ORG ?

Mr Muharrem PERSON : Yes .

Mr GÜNDÜZ : Certainly you do n’t speak LANGUAGE , do you ?

Mr Muharrem PERSON : No , not much .

Mr GÜNDÜZ : Again there is a mistake . You are referred to as a woman . Of course , the name ORG is not so usual and that is why . This is your signature . You said , ‘ We went together with my father and mother’ , did n’t you ?

Mr Muharrem PERSON : Yes . ”

PERSON had stated to the delegates that he had been convinced that the incident report had been accurate in concluding that the ORG had been responsible and that no other allegation to the contrary had been made . There had been no reason to think that the record drawn up by the security forces had not been accurate . If an allegation had been made that PERSON PERSON had been killed by gunfire from the security forces , he would have been obliged to go to the village . He believed that he would have received a complaint if the security forces had been responsible .

In relation to the oral evidence , the ORG had been aware of the difficulties attached to assessing evidence obtained orally through interpreters . It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates .

In a case where there were contradictory and conflicting factual accounts of events , the Commission particularly regretted the absence of a thorough domestic judicial examination or other independent investigation of the events in question . It was aware of its own limitations as a first - instance tribunal of fact . In addition to the problems of language adverted to above there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region . Moreover , the Commission had no power to compel witnesses to appear and testify . In the present case , while CARDINAL witnesses had been summoned to appear , CARDINAL in fact had given evidence before the ORG ’s delegates . Significantly , CARDINAL of CARDINAL public prosecutors who were summoned had appeared and , despite repeated requests by ORG , the Government had not identified any officers who had participated in the operation for the purpose of giving evidence before its delegates . The Government also had not provided complete documentary materials relating to the operation . ORG had therefore been faced with the difficult task of determining events in the absence of potentially significant testimony and evidence .

The Commission ’s findings can be summarised as follows .

Kesentaş village was located on a slope , the northern part higher than the southern , with steep mountains behind to the north . There were LOC around the village ; a road running east - west through the village which continues north - east between the mountains ; a wider main road to the south of the village running roughly east - west and to the south of this road the ground slopes upwards again . The village accordingly lay in a depression . The terrain to the north was rough and steep , with a river bed running down to the village from a north / north - eastern direction .

The Commission found from the evidence of the witnesses that ORG activity in the area around the village in or DATE had been significant . There had been CARDINAL incidents involving the village shortly before the operation on DATE . In CARDINAL incident , a villager , PERSON , had been shot dead and in the other , another villager , PERSON , and his father had left the village under gendarmerie protection after his house had been shot at and moved to Ziyaret where they joined the village guards . PERSON had been in the mountains with the ORG and had returned of his own free will . The timing of the latter incident had not been established . The applicant ’s written statement to the ORG referred to the move from the village taking place DATE before the incident , whereas it had appeared from the applicant ’s oral testimony that he had been absent from the village and he had had no real recollection of what he might have been told by others . Major PERSON , who had remembered helping the family move , did not specify the date .

The ORG had tended to arrive from the north of the village under cover of the terrain , requiring the villagers to provide food and medicine . There had been no village guards in the village and no permanent security presence in the vicinity . The main road to the south of the village had been patrolled from time to time .

At PERSON , QUANTITY to the east , there was a central gendarmerie headquarters under the command of ORG , a non - commissioned officer ( “ ORG ” ) . There was also a district gendarmerie headquarters , under the command of Major PERSON , and a separate commando unit . Major PERSON was in overall command of the district and central gendarmerie and had frequently been absent in his additional capacity as commander of a commando unit which had often been in the field .

The Commission observed that there had been no detailed investigation or judicial finding of facts on the domestic level as regards the events which occurred in the village of PERSON on DATE . ORG had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings ; in this assessment the co - existence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact and in addition the conduct of the parties when evidence is being obtained may be taken into account ( see , mutatis mutandis , the GPE v. the GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .

The Commission noted that the CARDINAL gendarmes had stated in evidence that they had not in fact been at the village when the clash had occurred . Major PERSON had stated that he was in an operation elsewhere

with commandos . ORG had arrived after the firing had stopped and , although he followed in the direction of the allegedly fleeing ORG , he had seen no sign of them . ORG had requested the Government on CARDINAL occasions prior to the hearing in GPE to identify , for the purpose of taking evidence , gendarmerie officers who had been present during the operation . The Government had not responded . The Commission recalled that the applicant had not been in the village either and his testimony concerning the events of that night had been based on what he had remembered being told by members of his family or villagers . Members of the applicant ’s family present during the clash had not appeared as witnesses although summoned by the delegates . There had therefore been no direct eyewitness evidence before the Commission as to what had occurred , which was regrettable .

Further , the documentary evidence had also been of second - hand quality . The incident report and sketch had been drawn up by PERSON , not by any gendarmerie officer involved in the operation and , from ORG testimony before the delegates , it is not apparent that he questioned the security forces on the spot in any detail . Indeed his contact with them appeared to have been limited to radio contact , by way of coded transmissions . The Government had failed to comply with the ORG ’s request to be informed of the name and of the unit of the commanding officer of the unit involved in the operation and to be provided with the copy of the logbook entry , register or field report which recorded the operation .

The Commission accordingly had little direct evidence as to what had occurred on TIME . As to whether a clash had in fact taken place , the Commission noted that it had been alleged by the applicant that an indiscriminate bombardment of the village had been carried out in retaliation for the incidents in the village in which “ collaborators ” were , in CARDINAL case , shot and , in the other , forced to leave . The Commission recalled that Major PERSON had been directly involved in the move of the threatened villager and that he did not consider that the ORG had shot at the villager , but that it had been the other villagers who would have killed him as they wanted to know why he had left the organisation . ORG commented that a great many people in the village had joined the organisation . The applicant ’s allegation that the bombardment of the village could have been motivated by a desire to teach the village a lesson was not totally without substance .

The Commission noted several puzzling features . Major PERSON had been the district gendarmerie commander but had had no apparent knowledge of , or role in , an operation within his jurisdiction , though he had felt able to give firm opinions as to what must have occurred . TIME the

incident occurred , PERSON of the central gendarmerie had had to borrow an armoured personnel carrier from the police because those belonging to the gendarmerie were being used in a mission . ORG had stated that the firing at the village had only lasted TIME whereas the letter from the public prosecutor at ORG dated DATE referred to fighting that had started at TIME and continued into TIME , which appeared to corroborate the applicant ’s version of events , derived from his family , that the firing had continued for TIME . The applicant had stated that , as might be expected from sustained shooting , there was widespread damage to the village . He had gone round the village , noting damage to CARDINAL houses and had taken a few photographs which indeed revealed bullet marks on CARDINAL houses . PERSON who had also been in the village DATE had stated that there was damage CARDINAL or three houses and to a car , from at most CARDINAL bullets . This is another area which could have been elucidated by further information provided by the Government . PERSON stated that photographs of the village had been taken by the public prosecutor . These had not been provided by the ORG , which had stated that no photographs had been taken .

As regards the details of the clash which had been given , the ORG was again hampered by a lack of direct information . It had initially been provided with a blurred copy of the sketch map by ORG with the bottom section omitted . This copy showed a key indicating the positions of the terrorists ( no . CARDINAL ) and the security forces ( no . CARDINAL ) . A no . CARDINAL had clearly appeared to the east of the village . A no . CARDINAL had appeared to the north - west . There had also been a squiggle in the south not dissimilar to that portraying the security forces’ position to the north - west and which contained a blurred figure . This figure had seemed to be a CARDINAL . ORG when questioned stated that the terrorists were to the south and indicated on the sketch that they would have been close to the position marked with the blurred figure . If the blurred figure had been a CARDINAL , this had been a mistake . Major PERSON had also been adamant that there would be no security forces in the south . In brief , there would be no point : the terrain had not been favourable and they had known the ORG would come from the north and would flee in that direction . Since Major PERSON had not been present during the clash , on his own testimony , the ORG felt unable to give his evidence much weight . ORG had based his sketch on what he had heard from the units involved DATE apparently a brief radio contact . It was strange that at the time he appeared to have marked the security forces as having been present in the south yet was now certain that this must have been a mistake . DATE after the hearing of the witnesses , ORG was provided with a clearer copy of the sketch map in which the blurred figure to the south of the village had , identifiably , been a CARDINAL , which represented the security forces .

The Commission agreed with the submissions of the applicant that , given the south - facing position of the balcony and the position of the neighbouring houses , in particular a high wall to the east , it was probable that the bullet which killed PERSON was fired from the south or south - east . The Government had not contested this .

Having regard to the failure of the Government to provide the documents and information referred to above , the ORG found that strong inferences could be drawn supporting the applicant ’s allegations that the security forces had opened fire around the village for some time and that units of the security forces had been present towards the south . There was nonetheless insufficient material before the ORG to support a finding that the operation of DATE had not been an ambush which led to a clash as alleged but a mission of retaliatory punishment . The Commission was unable to find it established that the bullet which had killed PERSON had been fired by the security forces . It did find however that there was significant evidence indicating that it may have been .

The death of the applicant ’s sister had been reported to the authorities at TIME on DATE . The public prosecutor accompanied by PERSON and a number of gendarmes arrived at the village . An autopsy had been carried out in the PERSON house and a bullet removed which had later been sent for forensic examination . The public prosecutor had talked to a number of persons . However , while PERSON had referred to the prosecutor conducting interviews , he had confirmed that he had not incorporated any such information in his own incident report and it had not been apparent that he had in fact witnessed any statements being taken . On the instructions of the prosecutor , ORG had looked for cartridges in a number of locations , particularly to the south . None had been recorded as having been found .

Another public prosecutor , PERSON , had taken over the investigation on his return from leave . On DATE , he had issued a decision of lack of jurisdiction indicating that the ORG were the suspects for the killing . He had based his decision on the incident report and sketch by PERSON . He had not conducted any interviews of family members , villagers or military personnel . No statements had been taken from such persons by any other public prosecutor .

It had not been apparent from the incident report in question that it was the ORG who had fired the bullet which killed the applicant ’s sister . Furthermore , the sketch map accompanying the report appeared to place security forces to the south and north - west and terrorists to the east but there had been no plan of the PERSON house and neighbouring houses which clarified from which direction the bullet was likely to have been fired . Nor had there been any explanation in the text of the report as to the location of the security forces .

Following the decision of lack of jurisdiction , the file had been transferred to the public prosecutor ’s office at ORG . Except for the ballistics report issued on DATE , no documents had been provided relating to any investigatory measures since that date .

Major PERSON had stated to the delegates that there was a fundamental principle in the planning of military operations that these be not moved into civilian areas . In this incident , the plan had been to restrict the activity in the north of the village but the ORG had not approached them from the expected side . No military inquiry or investigation had been carried out as to the conduct of the operation . Major PERSON , having seen the incident report and sketch by PERSON , forwarded them to the public prosecutor and took no further action .

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The second paragraph of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The Criminal Code contains provisions dealing with unintentional homicide ( Articles CARDINAL , CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) . In respect of these offences , complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them ( LAW ) , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings ( LAW ) .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with LAW of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( nonmilitary ) before the relevant authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is a ORG official or civil servant , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Proceedings may be brought against the administration before the administrative courts in respect of fault committed in the performance of official duties . Other illegal acts or omissions by civil servants , be it a crime or a tort , which result in material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Damage caused by terrorist violence may be compensated out of ORG .

The applicant ’s representatives have previously pointed to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme .


Violation of P1-2+Art. 9;Non-pecuniary damage - award

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

The applicant lives in GPE and has CARDINAL children , GPE and PERSON . The CARDINAL boys , aged DATE and CARDINAL respectively , attended in DATE the Istituto comprensivo statale PERSON , a state - school in GPE .

The applicant considered the school ’s practice of displaying a crucifix in each of the classrooms contrary to the principle of secularism in accordance with which she wished to bring up her children . She raised the question at a meeting held by the school on DATE , pointing out that ORG , in judgment no . DATE of DATE , had ruled that the presence of a crucifix in the polling stations prepared for political elections was contrary to the principle of the secular basis of the ORG .

On DATE the school ’s governors decided to leave the crucifixes in its classrooms .

On DATE the applicant challenged that decision in ORG . Relying on Articles CARDINAL and DATE of LAW and LAW , she alleged an infringement of the principle of secularism . She also complained of a breach of the principle of impartiality on the part of public administrative authorities , ( LAW ) . She was thus asking ORG to refer the question of constitutionality to ORG .

On DATE ORG adopted Directive no . DATE , which recommended that school principals display crucifixes . It joined the proceedings , arguing that the situation complained of was based on LAW no . CARDINAL of DATE and LAW no . CARDINAL of DATE ( provisions pre - dating the LAW and the agreements between GPE and ORG ) .

On DATE ORG ruled that , regard being had to the principle of secularism ( Articles CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and DATE of the LAW ) , the question regarding the constitutionality of the practice was not manifestly ill - founded and accordingly referred it to ORG . In addition , in view of the freedom of education and the obligation to attend school , the presence of crucifixes was imposed on pupils , their parents and their teachers and favoured the NORP religion to the detriment of other religions . The applicant joined the proceedings in ORG . The Government maintained that the presence of crucifixes in classrooms was “ natural ” , on the ground that the crucifix was not only a religious symbol but also the “ banner of the ORG ” , which was the only church mentioned in LAW ( Article CARDINAL ) . The crucifix therefore had to be regarded as a symbol of the NORP ORG .

NORP In decision no . CARDINAL of DATE ORG ruled that it did not have jurisdiction , seeing that the provisions complained of were not provisions of statute law but were contained in regulations , which did not have legal force ( see paragraph CARDINAL below ) .

The proceedings in the administrative court resumed . In judgment no . CARDINAL of CARDINAL DATE the administrative court dismissed the applicant ’s complaint . It held that the crucifix was both the symbol of NORP history and culture , and therefore of NORP identity , and the symbol of the principles of equality , freedom and tolerance and of the ORG ’s secular basis .

The applicant appealed to the Consiglio di Stato .

In a judgment of CARDINAL DATE the PERSON dismissed the appeal , ruling that the cross had become one of the secular values of LAW and represented the values of civil life .

The obligation to display crucifixes in classrooms pre - dates the unification of GPE . Article CARDINAL of GPE Royal Decree no . DATE of DATE required “ each school without fail [ to ] be equipped ... with a crucifix ” . ORG .

In DATE , DATE in which the NORP ORG came into being , LAW became LAW . It stipulated that “ the NORP catholic apostolic religion [ was ] the only ORG religion . Other existing religions [ were ] tolerated in accordance with the law ” .

The capture of GPE by the NORP army on DATE , following which GPE was annexed and proclaimed capital of the new ORG , led to a crisis in relations between the ORG and ORG . By PERSON no . CARDINAL of CARDINAL DATE the NORP ORG unilaterally regulated relations with the ORG and granted the PERSON a number of privileges to ensure the lawful conduct of religious activity .

After the advent of fascism the ORG issued a series of circulars intended to enforce compliance with the obligation to display crucifixes in classrooms .

ORG circular no . CARDINAL of CARDINAL DATE contained the following text : “ In DATE the image of NORP and the King ’s portrait have been removed from many of the GPE ’s primary schools . That is a manifest and intolerable breach of the regulations and above all an attack on the dominant religion of the ORG and on the unity of the Nation . We therefore order all municipal administrative authorities in the GPE to restore to those schools which no longer have them the CARDINAL sacred symbols of faith and national consciousness . ”

ORG circular no . DATE of CARDINAL DATE asserted : “ The symbol of our religion , sacred for the faith and for national consciousness , exhorts and inspires our studious youth , busy sharpening in our universities and other higher education establishments their wit and intelligence with a view to discharging the great responsibilities to which they are called . ”

Article CARDINAL of LAW no . CARDINAL of DATE ( Rules of the GPE ’s secondary schools ) reads : “ Each school must have the national flag and each classroom a crucifix and the ORG ’s portrait ” .

Article CARDINAL of LAW no . CARDINAL of DATE ( Approval of the general rules governing primary education services ) lists crucifixes among the “ necessary equipment and material in school classrooms ” .

The national courts have ruled that those CARDINAL provisions are still in force and apply to the present case .

The Lateran Pacts , signed on DATE , marked the reconciliation between the NORP ORG and ORG . ORG was confirmed as GPE ’s official religion . LAW reads : “ GPE recognises and reaffirms the principle enshrined in LAW DATE , according to which the NORP catholic apostolic religion is the only ORG religion of the ORG . ”

In DATE the NORP State adopted its LAW .

LAW explicitly acknowledges that the ORG and ORG are , each in its own sphere , independent and sovereign . Relations between the ORG and ORG are governed by FAC and amendments to those agreements accepted by both parties do not require any procedure for revision of the LAW .

Article CARDINAL provides that non - catholic religions “ are entitled to organise in accordance with their own rules , in so far as they do not set themselves up against the NORP legal order ” . Relations between the ORG and these other religions must be “ laid down by law on the basis of agreements with their respective representatives ” .

NORP The catholic religion ’s status changed as a result of the ratification , by Law no . CARDINAL of CARDINAL DATE , of the first provision of the LAW to the new ORG with the FAC of DATE , amending the FAC Pacts of DATE . That provision held that the principle originally proclaimed in LOC , that the catholic religion was the only religion of the NORP ORG , should be considered to be no longer in force .

NORP In judgment no . CARDINAL of DATE ORG summarised its case - law as follows , affirming that the fundamental principles of equality between all citizens without distinction of religion ( LAW ) and equal freedom for all religions before the law ( LAW the ORG ’s attitude to be marked by equidistance and impartiality , without attaching importance to the number of adherents of this or that religion ( see judgments ORG . CARDINAL/CARDINAL , DATE and CARDINAL ) or the scale of social reactions to infringement of the rights of CARDINAL or the other ( see judgment no . CARDINAL/CARDINAL ) . Equal protection of the conscience of each adherent of a religion does not depend on the religion chosen ( see judgment no . CARDINAL ) , a principle which is not in contradiction with the possibility of regulating relations between the ORG and the various religions in different ways for the purposes of ORG CARDINAL and CARDINAL of the LAW . Such a position of equidistance and impartiality reflects the principle of secularism which ORG derived from the provisions of the LAW and which has the character of a “ supreme principle ” ( see judgments LAW . CARDINAL , CARDINAL , DATE and DATE ) , defining the ORG as a pluralist entity . The various beliefs , cultures and traditions must coexist in equality and freedom ( see judgment no . CARDINAL/CARDINAL ) .

In judgment no . CARDINAL/CARDINAL ORG examined the question of the non - compulsory nature of the teaching of the catholic religion in state - schools . On that occasion it affirmed that the LAW contained the principle of secularism ( LAW , CARDINAL , DATE , DATE , DATE , DATE and DATE ) and that the religious nature of the ORG had been explicitly abandoned in DATE , by virtue of the LAW to the new agreements with ORG .

When called upon to rule on the obligation to display crucifixes in state - schools , ORG delivered its decision no . CARDINAL of DATE ( see paragraph CARDINAL above ) . Without ruling on the merits , it declared the question put to it manifestly ill - founded because it related to regulations , without legal force , which consequently fell outside its jurisdiction .


Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection dismissed (Article 35-1 - Six month period);Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant lives in ORG .

On DATE the applicant , together with PERSON his partner in his commercial partnership ( spółka cywilna ) DATE brought a joint action before ORG against a certain FAC for payment of MONEY ( ORG ) with statutory interest . He requested exemption from court fees . In the statement of claim he gave his permanent address and another address specified for service of court correspondence .

By an order of CARDINAL DATE the court ordered that the statement of claim be served on ORG

On DATE G.P. , represented by a privatelyhired lawyer , replied to the claim . That reply was sent to the applicant ’s address for service of correspondence .

On DATE the applicant moved out of his permanent address .

On DATE the court requested the plaintiffs to submit additional information in respect of their request for exemption from court fees . The summons was sent to the applicant ’s permanent address , but it was not served on him as he was no longer living at that address . The summons was sent to the coplaintiff ’s permanent address and was served on him on DATE .

On DATE the court refused to grant an exemption as the plaintiffs had failed to submit the necessary information . This decision was sent to the applicant ’s permanent address . It was not served on him as he was no longer living there .

On DATE that decision was served on the applicant ’s coplaintiff .

On DATE the court summoned the plaintiffs to pay ORG CARDINAL in court fees and set a time - limit of DATE for payment . The summons was sent to the applicant ’s address for correspondence as indicated in his statement of claim and was served on him on DATE .

On DATE the applicant informed the court that he had never been served with the decision of DATE ( see paragraph CARDINAL above ) refusing him an exemption from court fees .

The court served the decision on the applicant on DATE .

By a letter of DATE , received by the court on DATE , the plaintiffs informed the court that they wished to withdraw their claim as the court had refused to grant them an exemption from court fees . They further referred to the fact that the defendant had left GPE . Even if they obtained a judgment in their favour , it would be very difficult to obtain its effective enforcement against her .

Subsequently , on DATE , the applicant and his coplaintiff were ordered to pay legal fees incurred by the defendant in the amount of ORG .

On DATE the applicant and his co - plaintiff appealed against this decision . Their appeal was dismissed by ORG on DATE . On an unspecified date the applicant paid CARDINAL of the legal costs incurred by the defendant , in the amount of ORG CARDINAL .

Subsequently , the applicant and the co - plaintiff claimed compensation from ORG . They submitted that ORG had breached LAW by setting the civil proceedings in motion despite the fact that their request for an exemption from court fees had not been decided at that time . The court had wrongly and unlawfully served the statement of claim on the defendant before the issue of exemption from the court fees had been decided . The defendant , relying on that service and assuming that there had been no impediment to proceeding with the case at that time , had incurred legal costs . The court had also failed to serve the refusal of exemption on the applicant properly , despite the fact that the applicant had already informed it of his address for service of judicial correspondence in his statement of claim . When this decision was ultimately served on them , the plaintiffs decided to withdraw their claim . Nonetheless , they had been obliged to pay in full the legal costs borne by the defendant .

Subsequently , during the same proceedings concerning his compensation claim , the applicant was heard by ORG . He stated that he was a businessman earning an average DATE income of PLN CARDINAL,CARDINAL .

By a judgment of CARDINAL DATE ORG dismissed the claim . It found that the decision to serve the statement of claim on the defendant was in breach of LAW . It further acknowledged that the plaintiffs had sustained damage as they had to reimburse the costs borne by the defendant .

However , the court was of the view that the plaintiffs had failed to show that the damage had been caused exclusively by the court ’s procedural error in serving the summons . In their pleadings withdrawing their claim they had referred not only to the refusal of exemption but also to the fact that the defendant had left the country . Moreover , the plaintiffs had been obliged to pay the defendant ’s costs not because the court had refused to grant them an exemption , but because they had withdrawn their claim . They had therefore failed to show the existence of a normal causal link ( normalny związek przyczynowy ) between the acts of ORG , represented by the court , and the uncontested damage which they had suffered .

The applicant and his co - plaintiff appealed against that decision , arguing that their obligation to reimburse the defendant ’s costs had arisen essentially because their statement of claim had been incorrectly served on the defendant . They had thereby been drawn into the litigation unlawfully and despite the fact that they had already requested exemption from the court fees in their statement of claim .

A hearing in the case was held on DATE . The applicant attended the hearing . The court informed him that the judgment on the merits of the case would be given on DATE .

By a judgment of DATE ORG dismissed the claim , essentially sharing the conclusions of the lower court . The court read out the operative part of the judgment , giving a brief verbal explanation of the reasons for that judgment .

On DATE the applicant and the co - plaintiff requested the court to prepare written grounds for the judgment .

The written grounds , comprising the facts of the case as established by the court and summarising the legal reasoning of both the first- and secondinstance courts , were served on them on CARDINAL DATE .

Article CARDINAL of the Code of Civil Procedure , as applicable at the relevant time , reads , in so far as relevant :

“ Submission of a request for exemption from court fees ... shall not result in the proceedings being stayed , save for cases where such a request has been lodged together with a statement of claim or before such a statement has been lodged with a court . ”

Section CARDINAL ( CARDINAL ) of the CARDINAL Court Fees Act , applicable at the material time , provided :

“ A court shall not take any procedural measures following an application for which the relevant court fee has not been paid . The president shall summon the party to pay that fee within a DATE time limit , on pain of the application being returned . If the fee has not been paid , the president shall return the application . ”

Article CARDINAL of the Code of Civil Procedure specifies which constituents the operative part of a judgment ( sentencja ) must contain . It lists the following : the name of the court , those of the parties , the judges , the court clerk and the prosecutor ( provided that the last - named was a party to the case ) , the date and name of the town , matter in dispute and the substance of the decision ( rozstrzygnięcie sądu o żądaniach stron ) .

Under Article CARDINAL § CARDINAL of that Code , the president of a judicial panel reads out the operative part of the judgment in open court . Afterwards the president or judge rapporteur orally explains the main grounds for the decision ( podaje ustnie zasadnicze powody rozstrzygnięcia ) .

Pursuant to LAW , written grounds for a judicial decision shall be prepared at a party ’s request submitted within DATE from the date of the delivery . Written grounds must consist of a summary of the facts established by the court , refer to the evidence relied on by the court , indicate the reasons why the court considered that evidence to be credible and give legal reasons for the decision adopted .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON is a NORP national and lives in GPE .

ORG He had been the lessee of a bar in GPE since DATE , when in DATE the lessor instituted proceedings in GPE no . CARDINAL ORG for the termination of the lease and his eviction ( desahucio ) . According to the lessor , the installation on the premises of gaming machines belonging to CARDINAL party , without the landlord ’s consent , amounted to an unauthorised partial assignment or subletting and constituted one of the statutory grounds for terminating a lease ( see paragraph CARDINAL below ) .

ORG In his statement of defence the applicant ’s main contentions were that the installation of the machines had been lawful and that the plaintiff had acted in bad faith . At the end of his legal arguments , he added :

" Finally , [ I invoke ] the DATE limitation period for actions in personam , which is provided for in DATE of LAW [ see paragraph CARDINAL below ] . Under DATE time begins to run for this purpose on DATE on which the action could have been brought . In the period of over DATE since the signing of the lease , [ I ] was able , at any time and hitherto without any objection on the part of the lessor , to provide this type of service , common in this kind of establishment , in the form of the amusement machines of all sorts which appeared successively on the market , such as juke - boxes , bar - football , billiards , children ’s games , etc . "

ORG On DATE the first - instance court dismissed the lessor ’s action on the ground that the installation of gaming machines could not be regarded as an assignment or a subletting and did not therefore amount to a breach by Mr PERSON of his contractual obligations . The court did not examine the objection that the action was time - barred .

ORG On appeal by the lessor , opposed by the applicant as a respondent ( see paragraph CARDINAL below ) , ORG gave judgment on DATE quashing the impugned decision and allowing the action for the applicant ’s eviction ( see paragraph CARDINAL below ) , without ruling on the question whether the action was time - barred . It found that the owner of the machines was a third party , who was responsible for the maintenance of the machines and who passed on CARDINAL the proceeds therefrom to the applicant . This was a situation which fell within the legal definition of an unauthorised assignment or subletting and amounted to the breach of contract relied on by the lessor .

ORG As it was not open to him in this case to appeal on points of law to ORG , Mr PERSON filed an amparo appeal in ORG ) under LAW para . CARDINAL of the LAW ( see paragraph CARDINAL below ) .

By a decision of CARDINAL DATE ORG declared the appeal inadmissible . It found that it could reasonably be inferred from the judgment appealed against that the examination of the merits of the action for termination of the lease entailed the implied dismissal of the submission that the action was time - barred .

ORG Under LAW of DATE on non - agricultural leases ( PERSON ) , a landlord may terminate a lease in the event of a partial assignment or subletting of the LOC to a third party without his authorisation ( Article CARDINAL para . CARDINAL ) . The LAW also makes provision for a special eviction procedure ( juicio de desahucio ) , with shorter time - limits and more limited possibilities of adducing evidence .

ORG Gaming machines could not be installed legally in GPE in premises open to the public until DATE ( Royal Legislative Decree of DATE on criminal , administrative and fiscal aspects of gambling , supplemented by LAW no . CARDINAL of DATE on the powers of the public authorities in this field and by the Regulation of DATE concerning recreational machines and machines offering " games of chance " ) .

ORG On account of the personal nature of the rights deriving from a lease , the actions relating thereto are barred after DATE ( Article DATE of LAW ) .

The objection that an action is time - barred is not CARDINAL of the pleas designated as " dilatorias " , which must be determined before the examination of the merits ( LAW ) . It is a plea described as " perentoria " , which , in accordance with Article CARDINAL , is to be determined at the same time and under the same procedure as the main issue in the dispute .

ORG Plaintiffs who have been unsuccessful on CARDINAL head of claim adduced at first instance may appeal to FAC . The defendant , for his part , may

( a ) either confine himself to appearing as respondent in order to oppose the appeal and seek to have the impugned judgment upheld ( right deriving from LAW and the articles relating thereto ) ; or

( b ) himself file a separate appeal against the first - instance decision ( Article CARDINAL in fine of ORG ) where that decision has not allowed his claims in full ; or

( c ) join the appeal already lodged ( adhesión a la apelación - Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) , in respect of the points of the judgment that he considers unfavourable to him . This procedure is a form of appeal that enables the party concerned to prevent non - contested points of the operative provisions from acquiring final effect and to have examined those which are unfavourable to him .

Consequently , if a judgment allows the claims of a party in their entirety , that party can oppose an appeal filed by his opponent only as the respondent to that appeal . He can not file an appeal himself or even " join " the appeal lodged by the other party .

ORG When the appeal concerns all the operative provisions of the judgment and is successful , the appeal court gives a new decision on the merits of the case , examining all the submissions adduced at first instance .

ORG Under LAW para . CARDINAL of the LAW , " judgments shall always contain a statement of the grounds on which they are based and be delivered in public " . As an aspect of the effective protection of individuals by the judiciary and the courts , recognised as a fundamental right by LAW para . CARDINAL of the LAW , the obligation to state the reasons for judicial decisions may be the subject of an individual appeal to ORG ( recurso de amparo ) .

ORG According to LAW :

" Judgments must be clear and precise and must address specifically the applications and other claims made in the course of the proceedings ; they must find for or against the defendant and rule on all the disputed points which have been the subject of argument .

Such points must be dealt with separately in the judgment . "

When a court gives a decision on the merits it must therefore rule on all the submissions adduced by the parties , otherwise the judgment will be flawed for failure to give an adequate statement of the grounds ( incongruencia omisiva ) . However , according to the case - law , the court is not under a duty to deal expressly in its judgment with each of the submissions made by the parties where its decision to allow CARDINAL of the claims entails by implication the rejection of the submission in question .


Mr PERSON is a NORP national , born in DATE and resident in GPE . Mr PERSON is also a NORP national , born in DATE and resident in ORG .

In DATE the applicants , systems programmers by profession and employed by the NORP company ORG , were placed at the disposal of ORG to perform services at ORG in GPE .

ORG ( “ ORG ” ) with headquarters in GPE , formed out of ORG ( “ ESRO ” ) and ORG for ORG ( “ ELDO ” ) , was established under LAW ( “ LAW ” ) of CARDINAL DATE ( LAW DATE , vol . CARDINAL , I – no . DATE ) . ORG runs ORG ( “ ORG ” ) as an independent operation in FAC ( Agreement concerning ORG of DATE – Official PERSON ( PERSON ) II no . CARDINAL , CARDINAL.CARDINAL.CARDINAL ) .

In DATE the ORG contracts were taken over from ORG by ORG , a limited company established in GPE . In DATE the applicants founded GPE , a limited company with its registered office in GPE , which contracted with ORG on the services to be performed by the applicants for ORG and on the payment due . As from DATE ORG participated in the above contractual relations through ORG , a firm associated with it . Subsequently , the applicants liquidated FAC , replacing it by ORG , a company with its registered office on the island of GPE . These changes in contractual relations had no bearing on the ORG services at ORG .

NORP By letter of CARDINAL DATE , ORG informed the applicants that the cooperation with their company ORG would terminate on DATE , when the term of their contracts expired .

The applicants thereupon instituted proceedings before ORG ( Arbeitsgericht ) against ORG , arguing that , pursuant to ORG ) , they had acquired the status of employees of ORG . In their submission , the termination of their contracts by the company ORG had no bearing on their labour relationship with ORG .

In the labour court proceedings , ORG relied on its immunity from jurisdiction under LAW of LAW and its FAC I.

On DATE ORG , following a hearing , declared the applicants’ actions inadmissible , considering that ORG had validly relied on its immunity from jurisdiction .

In its reasoning , ORG considered in particular that ORG had been established in DATE as a new and independent international organisation . It therefore rejected the ORG argument that ORG was bound by LAW concerning ORG , which had subjected the former ESRO to NORP jurisdiction in cases of disputes with its employees which were outside the competence of its ORG .

On DATE the GPE / ORG ( PERSON ) dismissed the ORG appeal . It gave leave to an appeal on points of law ( Revision ) to ORG ( Bundesarbeitsgericht ) .

ORG , referring to sections CARDINAL of LAW ( Gerichtsverfassungsgesetz ) , considered that immunity from jurisdiction meant that foreign GPE , members of diplomatic missions , etc . were generally not subject to NORP jurisdiction and that no judicial action could be taken against them . Section CARDINAL ) of LAW supplemented the provisions of sections DATE , listing CARDINAL further sources of law , inter alia international agreements , which could give rise to immunity from jurisdiction , especially for international organisations . ORG in principle enjoyed such immunity from jurisdiction under LAW of LAW and its GPE Moreover , even assuming that the former ESRO had previously waived immunity as regards labour disputes outside the competence of its ORG , ORG was not bound thereby . In this respect , ORG , referring to the reasoning of the decision of the first instance , set out in detail that ORG had been established as a new international organisation and not as a mere legal successor to the former ESRO .

NORP In DATE the applicants unsuccessfully requested the NORP federal government and the NORP authorities to intervene with ORG in their favour with regard to a waiver of immunity in accordance with LAW a ) of ORG While the NORP authorities did not reply , the

ORG referred the applicants to ORG . In response to their letter to ORG , its Chairman , by letter of CARDINAL DATE , informed the applicants that the ORG , at its CARDINALth meeting of CARDINAL and DATE , had decided not to waive the immunity from jurisdiction in their case . This position was confirmed in subsequent correspondence .

On DATE ORG dismissed the ORG appeal on points of law ( file no . CARDINAL AZR CARDINAL ) .

ORG considered that immunity from jurisdiction was an impediment to court proceedings , and that an action against a defendant who enjoyed immunity from jurisdiction , and had not waived this immunity , was inadmissible . According to ORG ) of LAW , NORP jurisdiction did not extend to international organisations which were exempted in accordance with international agreements . In this respect , ORG noted that , pursuant to LAW had the immunities provided for in GPE I of the said Convention , and that it had not waived immunity under LAW ( a ) of that annex .

As regards the question of waiver , ORG found that LAW concerning ORG did not apply in the applicants’ situation as they had not been employed by ORG , but had worked for ORG on the basis of a contract of employment with a third person . The questions of whether the rule in question amounted to a waiver of immunity and whether ORG was bound by this rule could therefore be left open .

Furthermore , ORG found no violation of the right of recourse to court under LAW of LAW ) , as the acts of ORG , being those of an international organisation , could not be regarded as acts of a public authority within the meaning of that provision .

Finally ORG considered that a rather broad competence of international organisations to regulate staff matters was not unusual . The regulations on the immunity of ORG did not conflict with fundamental principles of NORP constitutional law . Employees of ORG could either lodge an appeal with ORG of the organisation , or the labour contract had to provide for arbitration in accordance with LAW In case of any contract conflicting with ORG which was not covered by the aforementioned regulation , the employee hired out was not without any legal protection , but could file an action against his or her employer . The question of whether the applicants could claim under NORP public law that positive action be taken by the NORP government to use their influence to achieve a waiver of immunity in the present case , or to submit the case to international arbitration under LAW of LAW , could not be solved in labour court proceedings .

Sitting as a panel of CARDINAL members , on CARDINAL DATE ORG ( Bundesverfassungsgericht ) declined to accept the ORG appeal ( ORG ) for adjudication .

The Federal Constitutional Court found in particular that the ORG appeal did not raise a matter of general importance . The alleged absence of rights resulted from the particular contracts entered into by the applicants , who had not been directly employed by an international organisation but had worked there on the order of a third person .

Furthermore , the alleged violation of the applicants’ constitutional rights was not of special importance , nor were the applicants significantly affected . In this respect ORG noted the ORG submissions according to which they had suffered major disadvantages on the ground that the NORP legislation on the hiring out of temporary staff had been insufficient and that the termination of their contracts had affected their earning capacity . However , they had failed to show any disadvantages other than those associated with any loss of work . In particular there was no indication that they remained permanently unemployed and dependent upon social welfare benefits .

Section CARDINAL(CARDINAL)(CARDINAL ) of ORG Act ( Arbeitnehmerüberlassungsgesetz ) provides that an employer who , on a commercial basis ( gewerbsmäßig ) , intends to hire out his employees to third persons DATE hiring employers ( Entleiher ) DATE must obtain official permission . Section CARDINAL(CARDINAL)(CARDINAL ) provides that contracts between the hirer - out ( Verleiher ) and the hiring employer and between the hirer - out and the employee hired out ( Leiharbeitnehmer ) are void if no official permission has been obtained as required by sectionCARDINAL(CARDINAL)(CARDINAL ) . If the contract between a hirer - out and an employee hired out is void under section CARDINAL(CARDINAL)(CARDINAL ) , a contract between the hiring employer and the employee hired out is deemed to have been concluded ( gilt als zustande gekommen ) as from the envisaged start of employment ( sectionCARDINAL(CARDINAL)(CARDINAL)(CARDINAL ) ) . Section PERSON ) further provides for a claim in damages against the hirer - out in respect of any loss suffered as a consequence of having relied on the validity of the contract , except where the employee hired out was aware of the factor rendering the contract void .

Sections DATE to CARDINAL of LAW ( Gerichtsverfassungs - gesetz ) regulate immunity from jurisdiction ( GPE ) in NORP court proceedings . PERSON andCARDINAL concern the members of diplomatic and consular missions , and section CARDINAL(CARDINAL ) other representatives of GPE staying in GPE upon the invitation of the NORP government . ORG provides that other persons shall have immunity from jurisdiction according to the rules of general international law , or pursuant to international agreements or other legal rules .

LAW came into force on DATE , when GPE , members of ORG or ORG , had signed it and had deposited their instruments of ratification or acceptance .

The purpose of ORG is to provide for and to promote , for exclusively peaceful purposes , cooperation among GPE in space research and technology and their space applications , with a view to their being used for scientific purposes and for operational space applications systems ( Article II of LAW ) . For the execution of the programmes entrusted to it , the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and , to this end , shall establish and operate such establishments and facilities as are required for its activities ( LAW ( a ) ) .

Article GPE regulates the legal status , privileges and immunities of the Agency . According to paragraph CARDINAL , the ORG shall have legal personality . Paragraph CARDINAL provides that the ORG , its staff members and experts , and the representatives of its member GPE , shall enjoy the legal capacity , privileges and immunities provided for in AnnexI. Agreements concerning the headquarters of the ORG and the establishments set up in accordance with LAW shall be concluded between the ORG and the member GPE on whose territory the headquarters and the establishments are situated ( LAW ) .

Article ORG concerns the arbitration procedure in case of disputes between CARDINAL or more member GPE , or between any of them and ORG , concerning the interpretation or application of LAW or its annexes , and disputes arising out of damage caused by ORG , or involving any other responsibility of ORG ( LAW I ) , which are not settled by or through the ORG .

Article ORG provides that on the date of entry into force of ORG shall take over all the rights and obligations of ESRO .

Annex I relates to the privileges and immunities of the ORG .

According to LAW , the Agency shall have legal personality , in particular the capacity to contract , to acquire and to dispose of movable and immovable property , and to be a party to legal proceedings .

Pursuant to LAW ( a ) of ORG I , the ORG shall have immunity from jurisdiction and execution , except to the extent that it shall , by decision of the ORG , have expressly waived such immunity in a particular case ; the ORG has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the ORG .

Article ORG of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with LAW . Moreover , any member ORG may submit to ORG referred to in LAW any dispute , inter alia , arising out of damage caused by the ORG , or involving any other non - contractual responsibility of the ORG . According to ArticleXXVII of AnnexI , the ORG shall make suitable provision for the satisfactory settlement of disputes arising between the ORG and the Director General , staff members or experts in respect of their conditions of service .

Chapter VIII of ORG CARDINAL to CARDINAL ) concerns disputes within ORG . As regards the competence of its ORG , Regulation CARDINAL provides as follows :

“ CARDINAL.CARDINAL There shall be set up ORG , independent of the ORG , to hear disputes relating to any explicit or implicit decision taken by the ORG and arising between it and a staff member , a former staff member or persons entitled under him .

CARDINAL ORG shall rescind any decision against which there has been an appeal if the decision is contrary to ORG or to the claimant ’s terms of appointment or vested rights ; and if the claimant ’s personal interests are affected .

CARDINAL ORG may also order the ORG to repair any damage suffered by the claimant as a result of the decision referred to in paragraph CARDINAL above .

CARDINAL NORP Should the Agency DATE or the claimant – maintain that execution of a rescinding decision would raise major difficulties ORG may , if it considers the argument valid , award compensation to the claimant for the damage he has suffered .

CARDINAL The Appeals Board shall also be competent in the case where a staff member wishes to sue another staff member and such action has been prevented by the Director General ’s refusal to waive the immunity of the latter .

CARDINAL The Appeals Board shall also be competent to settle disputes concerning its jurisdiction , as defined in these Regulations , or any question of procedure . ”

The Agreement was concluded between the government of GPE and ESRO for the purpose of establishing ORG , including ORG . CARDINAL of the Agreement concern the site for construction of the ORG buildings and related matters .

Part III of the Agreement contains general provisions . Article CARDINAL provides as follows :

“ CARDINAL . Subject to the provisions of LAW and of any complementary Agreement between GPE and the ORG according to LAW , the activities of ORG shall be governed by NORP law . If the terms of employment of a staff member of the Organisation are not governed by the ORG ’s staff regulations , then they shall be subject to NORP laws and regulations .

Disputes between the ORG and such staff members of ORG who are not within the competence of ORG , shall be subject to NORP jurisdiction . ”


The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . The applicants are married . The respondent Government were represented by Mr P. A. NORP , Representative of GPE at ORG .

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

The applicants are a family of refugees from GPE . They brought a court action against authorities , claiming MONEY for the loss of their real property left in GPE , including a house and a chicken farm , and MONEY ( “ RUR ” ) for the loss of their movable effects .

On DATE the ORG of GPE ( “ the Town Court ” ) dismissed the applicants’ claim in their absence , having heard the respondent authorities . The court referred to the ORG request to consider the case in their absence . The court found that in DATE the authorities had paid the applicants ORG CARDINAL,CARDINAL for the loss of their real property and FAC for the movable items left in GPE , which they had proved to have owned in accordance with a special governmental decree on compensation for the material losses of NORP refugees . The court found that the applicants had proved that they had a flat of QUANTITY , for which they had been awarded the above sums . The court held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items .

The applicants appealed against the above judgment , stating that the court had failed to assess properly the evidence in the case .

On DATE ORG rejected the appeal in the absence of the applicants and in the presence of the governmental authorities , finding that the applicants had not proved the alleged pecuniary damage . The court also stated that NORP legislation provided for no right to claim non - pecuniary damage in connection with the alleged violation of property rights .

On DATE the Deputy President of ORG of GPE lodged with ORG of GPE an application for supervisory review of the case , requesting the quashing of the decisions of DATE and CARDINAL DATE on the ground , inter alia , that although the applicants had requested examination of the case in their absence , they had not been properly notified of the hearing in breach of LAW . This resulted in the applicants’ nonattendance , which , in turn , adversely affected the fairness of the trial .

On DATE ORG of GPE granted the application , quashed the said decisions and remitted the case for a fresh examination at first instance .

On DATE ORG refused to examine the applicants’ case on the ground of the applicants’ persistent failure , namely on CARDINAL occasions , to appear before the court . It appears that the applicants did not appeal and the decision came into force .

On DATE the Deputy President of ORG of GPE lodged an application by way of a supervisory review , requesting ORG to quash the decision of DATE on the grounds of the court ’s failure to deal properly with the applicants’ reluctance to attend the court hearings , for example by examining the case in their absence , and the court ’s failure to send them a summons to appear to all known addresses and not just to CARDINAL address .

On DATE the ORG of ORG granted the application , quashed the decision and remitted the case to the first - instance court for a fresh examination .

On DATE ORG dismissed the applicants’ claims . The court observed that on DATE the applicants received compensation of ORG CARDINAL,CARDINAL and RUR CARDINAL,CARDINAL for the loss of their real property and for the movable items left in GPE . The court next held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items . Their claims were accordingly rejected . The applicants , who were duly notified of the hearing , failed to attend it .

The applicants appealed against the judgment . It appears that they did not express in their appeal any concern about the first - instance court ’s examination of the case in their absence .

On DATE ORG rejected the appeal and upheld the judgment of DATE . It appears that neither the applicants nor the respondents attended the appeal hearing .

The applicants were involved in a number of other legal disputes with the authorities concerning various social benefits , including , in particular , their claims for a new car , higher salary and pension , and index - linked savings . The domestic courts examined those claims and dismissed them as unfounded .