The applicant is a NORP national , born in DATE and currently imprisoned in GPE . He is represented before the ORG by PERSON and Mr PERSON , lawyers practising in GPE .

A.

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

On DATE the applicant was taken into custody by police officers from ORG on suspicion of being a member of the ORG .

On DATE the ORG ordered the applicant ’s detention on remand .

On DATE the public prosecutor attached to ORG filed a bill of indictment against the applicant and CARDINAL other accused . He charged the applicant with being a member of the ORG and with involvement in bombing of a fuel station . The prosecutor requested that the applicant be convicted and sentenced under LAW of LAW and LAW .

On DATE ORG convicted the applicant on account of his involvement in the ORG and the bombing of a fuel station . The court sentenced the applicant to DATE and CARDINAL months’ imprisonment under LAW , CARDINAL and CARDINAL/CARDINAL of LAW and LAW .

On DATE ORG quashed the judgment of DATE on procedural grounds .

At a hearing on DATE the ORG refused the applicant ’s request for release pending trial . The court considered that the applicant ’s detention on remand was necessary having regard to the serious nature of the alleged offences , the date on which he had been detained on remand and the state of evidence .

At a hearing on DATE the court again rejected the applicant ’s request for release pending trail on the same grounds .

On DATE the applicant filed an objection with ORG against the refusal of his request for release pending trail . The applicant emphasised that his detention pending trial constituted a violation of his rights guaranteed under LAW of LAW .

On DATE the ORG convicted the applicant on account of his involvement in the ORG and organising and planning to bomb a fuel station . The court sentenced him to DATE and CARDINAL months’ imprisonment in respect of the first offence under LAW and LAW and to DATE and DATE and DATE imprisonment , together with a fine of MONEY , in respect of the second offence under LAW . The court did not reply to the applicant ’s objection of CARDINAL DATE . The court also convicted and sentenced CARDINAL other accused .

On DATE ORG upheld the judgment of ORG .

B. Relevant domestic law and practice

i. DATE LAW provides :

“ Everyone has the right to liberty and security of person .

A person deprived of his liberty , for whatever reason , shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .

Compensation must be paid by the ORG , as the law shall provide , for damage sustained by persons who have been victims of treatment contrary to the above provisions . ”

ii . The relevant provision of LAW reads as follows :

Article CARDINAL

“ Any person who , with the intention of committing the offences defined in Articles ... , forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”

Under section CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL of DATE ) , the offence defined in LAW is classified as a “ terrorist act ” . Pursuant to LAW no . ORG , penalties laid down in LAW as punishment for the offences defined in LAW are increased by CARDINAL .

iii . Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons arrested or detained provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial … , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only … ”


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE , a town in LOC .

As a victim of GPE , the applicant was entitled to benefits . Considering himself underpaid , he sued the local welfare authority .

On DATE the ORG awarded the applicant arrears and fixed new amounts of periodic payments . This judgment became binding on DATE but was not fully enforced .

On the applicant ’s request , on DATE ORG set the judgment aside due to newly - discovered circumstances .

On DATE ORG awarded the applicant arrears ( including sums outstanding after the judgment of DATE ) and fixed new amounts of periodic benefits .

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


KAPITAL INWESTYCYJNY SP. Z O. O v. POLAND

The applicant , ORG . Z O. O , is a limited liability company incorporated in GPE , with its registered seat in GPE . It is represented before the ORG by Mr PERSON , its director . The respondent Government were represented by Mr PERSON , of ORG .

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

On DATE the applicant company instituted civil proceedings against a co - operative “ P ” . It claimed damages resulting from contractual obligations between the parties . On DATE ORG issued a payment order against the co - operative “ P ” .

On DATE and CARDINAL DATE the bailiff seized the co - operative ’s bank account . On DATE the defendant co - operative filed a defence against the payment order ( zarzuty przeciwko nakazowi zapłaty ) . It requested that the applicant ’s claims be dismissed on account , inter alia , of the invalidity of the contract . On DATE the co - operative filed pleadings entitled “ complaint regarding the bailiff ’s acts ” . In the pleadings it requested that the enforcement proceedings be stayed , that the security order be altered and its bank accounts freed . On DATE the court also dismissed the complaint regarding the bailiff ’s acts as such .

On DATE the court dismissed the defendant ’s motions of DATE and DATE . The court ruled that since no enforcement proceedings were pending the motion was purposeless and it had to be dismissed . On DATE the applicant appealed against that decision .

A further complaint by the defendant co - operative , lodged on DATE , about the bailiff ’s acts concerning the scope of the security order and , in particular in respect of the seizure of bank accounts , was dismissed on CARDINAL DATE and the defendant ’s subsequent appeal was dismissed on DATE .

On DATE ORG allowed the defendant ’s appeal of DATE and stayed the enforcement of the payment order .

On DATE and CARDINAL DATE hearings were held before ORG .

On DATE that court decided to stay the proceedings for payment as requested by the co - operative P. on the grounds that the proceedings to declare the contract null and void were pending . On DATE the applicant company appealed but to no avail . Its appeal was dismissed by ORG on DATE .

On DATE ORG dismissed the applicant ’s claim for payment and quashed the payment order of DATE .

On DATE the defendant co - operative instituted a parallel action against the applicant company challenging the validity of the contract on which its claims were based . It also requested that the original proceedings be stayed until the issue of the validity of that contract had been adjudicated .

On DATE the applicant company filed its pleadings in the new case . It argued that the claim should be rejected as inadmissible since the issue of the validity of the contract would in any event be considered in the proceedings for payment which had been instituted earlier .

On DATE the first - instance judgment was delivered . The court found the contract between the parties to be null and void . On DATE the applicant company filed an appeal . On DATE a hearing was held before ORG and the appellate court dismissed the appeal .

On DATE the applicant company filed a cassation appeal . On DATE ORG rejected the cassation appeal , finding that no issue of legal importance justified its examination on the merits .

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

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

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

Article CARDINAL of LAW , as applicable until DATE ( see “ Constitutional Court”s judgment of DATE below ) provided for the following exception in cases where damage resulted from the issue of a decision or order :

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

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

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

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

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

However , under the transitional provisions of LAW , LAW as applicable before DATE ( see paragraph CARDINAL above ) shall apply to all events and legal situations that subsisted before that date .

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

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

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

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

LAW states :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ”

LAW reads :

“ CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .

Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession .

The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right . ”

LAW reads :

“ Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law . ”

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

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

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

Article CARDINAL provides , in so far as relevant :

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

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

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

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

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

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

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

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

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


Violation of Art. 5-4;No violation of Art. 5-3;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

The applicant 's initial granting of bail

On DATE the applicant was charged with CARDINAL offences of conspiracy to supply Class A drugs .

On DATE the applicant was produced at ORG . Following a contested bail application she was granted bail by the Deputy District Judge .

The prosecution 's appeal against the applicant being granted bail

The prosecution gave notice that it wished to appeal against the grant of bail and the applicant remained in detention . The appeal hearing was to take place at ORG on DATE and the applicant 's solicitors arranged with ORG for her to be present at the court building .

NORP The prosecution 's appeal came before Judge PERSON on DATE . At the start of the hearing , counsel for the applicant requested that the judge exercise his discretion to allow the applicant to be present while the appeal was heard . It was contended on the applicant 's behalf that she had been led to believe that she would be released following the grant of bail at the magistrates ' court and that she had not properly understood the implications of the prosecution 's appeal . Counsel for the applicant asserted that if she were present she would see that her case was being dealt with fairly and he further clarified that the basis for his application was “ common humanity ” and “ not technical ” . Judge PERSON declined the request , reasoning that the applicant could be given a full report of what had happened from her counsel . Moreover , her attendance would be undesirable as CARDINAL of the applicant 's co - accused had not been present at the hearing of the appeal against the grant of bail to him , and it would therefore be unfair to treat the applicant more favourably .

When the applicant later arrived in the court building , her counsel again requested that she be allowed to attend the hearing in person . He emphasised that this was a re - hearing and rather unusual as it was the prosecution which had sought to appeal the Deputy District Judge 's ruling on bail . As the applicant was already present in the building , her production would cause little inconvenience . Judge ORG again refused , this time explaining that if he allowed the applicant to be present it would set a precedent for any defendant in custody wishing to attend an appeal against bail in the future .

The applicant 's counsel submitted to the judge :

“ You have considerable experience of looking at people and taking into account their demeanour . This woman is , on the defence case , a respectable woman of good background and a vulnerable person . I would like you to see her , frankly , because you will be able to tell and see that she does not fall into a category of so many of those who appear before you ... I was able to address the learned District Judge on precisely those terms . I believe that it had some impact on his decision to grant bail because he was able to see her and make an assessment of that person . She is here and you could make that assessment if she was brought up before you . ”

In refusing the applicant permission to attend , Judge PERSON stated :

“ I am not going to alter my view in relation to [ the applicant ] being present during the hearing . I will listen to your submissions . If there is anything during your submissions that causes me to hear evidence from her or to have to do something different to what I am doing at the moment in relation to the hearing of the matter , I will reconsider it at that stage . ”

At a later stage of the hearing , Judge PERSON remarked :

“ ... [ W]hat beyond what you have been able to describe to me are you suggesting that I should gain from bringing her up from the cells into the dock at the moment ? What do you want me to do if I were to ask her to come up into the dock , just look at her ? Does that add anything to anything that you are suggesting ? I have a very clear picture of the sort of person who is going to walk into the dock . No doubt she is going to be very worried . It must be a very intimidating experience for anybody of no previous convictions who has recently been taken into custody , to be brought into a court as large as this . I can imagine full well what is going to happen when she walks in . But given the fact that I can imagine that , and I have seen it happen many times , what else am I going to notice ? ”

The applicant 's counsel replied that he had withdrawn his application for her to attend . Judge ORG invited him to make any last submissions about what might be gained by seeing the applicant in person . Counsel answered with :

“ ... looking at the demeanour of the person , that is all . There is something to do with that assessment which is better if CARDINAL looks at the person and sees them looking across the court looking back at you . But you have in detail , as you have pointed out , a thorough description of her and if that suffices I am not going to seek to persuade you to go further . ”

Judge PERSON proceeded with the hearing in the applicant 's absence . He decided to allow the prosecution appeal and refuse bail , on the grounds that the applicant 's brother , CARDINAL of the co - accused , was at liberty , possibly overseas , and that there was a risk that she would abscond and join him or provide him with information about the prosecution case which would obstruct the course of justice .

The applicant 's first application for permission to apply for judicial review

The applicant applied for permission to apply for judicial review of the decision not to allow her to attend the hearing on the ground that her rights under the ORG had been breached .

On DATE Mr Justice PERSON refused the application for permission to apply for judicial review . He first observed that the applicant was challenging Judge PERSON 's decision not to allow her to attend the prosecution appeal , and that she did not contend that the ultimate decision to refuse her bail was unreasonable . Mr Justice PERSON further noted that though Rule PERSON ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) was not referred to during the hearing before Judge PERSON , it was Convention compliant because a person was entitled to be present if , in an exceptional case , the interests of justice so required . The applicant 's grounds for applying for permission to seek judicial review did not explain why hers was an exceptional case or why the interests of justice required her attendance whilst she was legally represented .

Mr Justice PERSON took into account Judge PERSON 's clear indication that he would be prepared to reconsider his view and allow the applicant to be present if there was anything that would require him to hear evidence from her in person . However , counsel representing the applicant had not been able to identify what would be gained by producing the applicant .

The applicant 's renewed application for permission to apply for judicial review

On DATE Mr Justice PERSON refused the applicant 's renewed application for permission to bring judicial review proceedings . The applicant 's counsel attended and argued that the decision to refuse her admission to the hearing of the prosecution 's appeal had breached her rights under LAW , or alternatively , LAW . It was asserted that the production of the applicant before the Deputy District Judge did not fulfil the requirements of LAW because the judge was not a judge authorised by law to exercise judicial power , as his decision was subject to immediate appeal and was never put into effect .

NORP In giving judgment , Mr Justice PERSON took into account a transcript of the proceedings before Judge PERSON . Although Rule CARDINAL ( CARDINAL ) had not been expressly cited to Judge PERSON , the latter 's approach to the application made to him had been entirely consistent with that rule . The general principle underlying Rule CARDINAL ( CARDINAL ) was that an applicant should not generally be entitled to be present at the hearing of a prosecution appeal . The first exception to that proposition had not been fulfilled as the applicant was not acting in person . Therefore the judge would have to take the view that the case was of an exceptional nature and/or that the interests of justice required the applicant to be present . Judge PERSON , in considering the matter , undoubtedly had the interests of justice in mind . He had referred to the position of the co - defendant and had made an enquiry as to whether there was any particular reason to believe that injustice would occur , having regard to the fact that an explanation could be given to the applicant immediately afterwards as to the judge 's decision and his reasons for it . Judge ORG had also , notably , left open the possibility of altering his decision if , for example , it became apparent that oral evidence might be required from the applicant in support of her application .

Mr Justice PERSON found that the Deputy District Judge was authorised to exercise judicial power as required by LAW and clearly had exercised it , even though his decision was subject to immediate appeal and was not put into effect pending appeal . As concerned the applicant 's complaints under LAW , the legal framework covering applications for bail , including appeals , did in Mr Justice PERSON view enable her to take proceedings whereby the lawfulness of her detention could be decided speedily by a court as required by that article . There was , in his judgment , nothing even arguably to be found in the wording of LAW which entitled an applicant to be present at such proceedings in all instances . Where prosecution appeals against refusal of bail were concerned , Rule CARDINAL ( CARDINAL ) provided a Convention compatible procedure to ensure that no injustice was caused to an applicant in cases in which he or she was not permitted to be present .

Rule CARDINAL.CARDINAL(CARDINAL ) of LAW SI TIME ( “ the Criminal Procedure Rules ” ) provides as follows :

“ The person concerned [ when the prosecution appeal against a decision to grant bail ] shall not be entitled to be present at the hearing of the appeal unless he is acting in person or , in any other case of an exceptional nature , a judge of ORG is of the opinion that the interests of justice require him to be present and gives him leave to be so . ”

Section CARDINAL ( CARDINAL ) of LAW DATE ( “ the DATE LAW ) grants the prosecution the right to appeal to ORG against a decision by magistrates to grant bail in cases concerning particularly serious charges or convictions . LAW ) of the DATE LAW provides that such an appeal may only be made where , prior to the grant of bail , the prosecution has made representations that bail should not be allowed . The appeal itself is by way of a re - hearing of the application for bail and the judge hearing the appeal may remand the accused person in custody or grant bail subject to such conditions as he thinks fit ( LAW CARDINAL ( CARDINAL ) of the DATE Act ) .

Section CARDINAL ( CARDINAL ) of the DATE Act requires that the prosecution give oral notice of its intention to appeal to the court which has granted bail . This must be done at the conclusion of the proceedings in which bail has been granted and before the release from custody of the person concerned . LAW CARDINAL ) gives the prosecution TIME within which to serve written notice of appeal upon both the court which has granted bail and the defendant . If it fails to do so , the appeal is deemed to be disposed of ( section CARDINAL ( CARDINAL ) ) . LAW CARDINAL ) of the DATE LAW states that upon receipt of the prosecution 's oral notice of appeal against the decision to grant bail , the magistrates ' court shall remand the person concerned in custody , until the appeal is determined . Once the proper notice has been given , LAW CARDINAL ( CARDINAL) of the DATE LAW provides that the hearing of the appeal must commence within DATE of the first instance proceedings at which oral notice of appeal is given .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE in GPE .

The applicant entered GPE in DATE . Until DATE he was in possession of a limited residence title for exceptional purposes ( NORP ) . In DATE he obtained an unlimited residence permit ( ORG ) .

The applicant ’s daughter was born in DATE . On DATE he requested a child - raising allowance for DATE of the child ’s life under the Child - raising LAW ( Bundeserziehungsgeldgesetz ) . For the applicant the benefits under that LAW amounted to MONEY ( DEM ) ( MONEY ( ORG ) ) per month .

On DATE ORG rejected his request . The applicant filed an administrative objection on DATE , which ORG dismissed on DATE . It held that the applicant did not meet the requirements of the Child - raising LAW as he was not a NORP national and he did not have the necessary unlimited residence permit . According to the relevant provisions of the Child - raising LAW , the limited residence title for exceptional purposes did not suffice for the allowance .

On DATE the applicant lodged an action with ORG ( ORG ) arguing that the pertinent provisions of the Child - raising LAW discriminated against foreign nationals .

In connection with a different set of proceeding ( concerning family allowance ) , the applicant lodged a constitutional complaint against , inter alia , the pertinent provisions of the Child - raising LAW , arguing that those provisions discriminated against foreigners . On DATE , ORG refused to admit the constitutional complaint for failure to exhaust effective remedies .

On DATE the applicant requested a child - raising allowance for DATE of his daughter ’s life . On DATE ORG rejected the request . On DATE it amended the decision and granted the applicant the requested allowance from DATE as on DATE the applicant was in the possession of an unlimited residence permit . The applicant filed an administrative objection against the refusal of the authorities to grant the allowance also for the period prior to DATE . On DATE ORG rejected the objection .

On DATE the applicant extended his action before ORG to include his claim for DATE of his daughter ’s life concerning the period before DATE .

On DATE ORG rejected the applicant ’s action in its entirety , holding that the applicant did not meet the requirements of the Child - raising LAW . It also held that that LAW ’s requirement for foreign nationals to be in possession of a residence permit was not discriminatory . On DATE the applicant lodged an appeal against the judgment .

On DATE the ORG ( ORG ) allowed an ancillary request concerning a cost decision but dismissed the appeal on the merits in its entirety . On DATE the applicant lodged an appeal on points of law against that judgment .

On DATE the defendant acknowledged that the applicant ’s claim on the merits was justified in so far as it concerned the DATE period of CARDINAL and DATE .

On DATE ORG ( Bundessozialgericht ) dismissed the appeal on points of law .

On DATE the applicant lodged a constitutional complaint to ORG ( Bundesverfassungsgericht ) .

On DATE ORG held , in proceedings by which the applicant was not directly concerned , that the pertinent provisions of the LAW violated the right to equal treatment enshrined in LAW ( case no . CARDINAL BvR CARDINAL/CARDINAL ) . It added that if the Child - raising LAW was not amended until DATE , the law prior to the amendment of the Child - raising Allowance Act in DATE should be applied to cases that were not subject to a final decision . On DATE , ORG also declared , for the same reasons , the provisions of LAW ( GPE ) to be unconstitutional ( case ORG . CARDINAL BvL CARDINAL , CARDINAL , and CARDINAL ) , also allowing for a transitional period until DATE .

In relation to the applicant ’s constitutional complaint ORG , on DATE , rescinded the judgment of ORG referring to its earlier decision of DATE .

It remitted the case to ORG and decided that ORG was to adjourn the case until the impugned provisions of the LAW had been amended . ORG added , in line with its earlier decision , that if the LAW was not amended until DATE , ORG should apply the law prior to the amendment of the Child - raising LAW in DATE .

On DATE the defendant acknowledged the applicant ’s claim ; on DATE it also offered to pay interest on the outstanding amount .

On DATE the NORP legislator amended the Child - raising LAW to allow foreigners with limited residence titles for exceptional purposes , whose proceedings had not yet ended with a final decision , to benefit from the child - raising allowance . This amendment entered into force retroactively on DATE .

On DATE ORG allowed the applicant ’s appeal on points of law . ORG noted that the applicant had not accepted the defendant ’s acknowledgment . It ordered the defendant to pay the agreed child - raising allowance plus the accrued interest .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Fair hearing);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

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

In TIME of CARDINAL DATE , after DATE , the applicant and his friend decided to visit a bar in the town of LOC before going home . The bar was located in the corner of a small park in the town . The park was in the form of a triangle with a base QUANTITY long and CARDINAL sides each QUANTITY long .

According to the explanations given to the investigating authorities by the applicant , his friend and the owner of the bar ( who served the applicant and the friend ) , each of them ordered not QUANTITY of horilka ( the beverage containing PERCENT alcohol ) and a bottle of beer , together with some snacks .

They finished their food and drink at TIME and left the bar . They went along the park to the nearby bus station . The applicant had come by bicycle so it was for his friend to take a bus .

While the applicant was seeing his friend off on the bus , his bicycle was stolen . The applicant decided to look around , as he thought it might have been a joke . After some time , as he did not succeed in finding the bicycle , he decided to call the police to inform them of the theft , and also to call his wife to tell her he was going to be late . For this purpose he crossed the park and approached the nearby petrol station , located in front of the park on the opposite side , and asked the sales assistant to let him make the calls . The sales assistant refused . Having the impression that the applicant was drunk and did not want to leave the petrol station , the sales assistant decided to call the police himself to get rid of the applicant .

A police patrol of CARDINAL officers from ORG arrived by car and grabbed the applicant in the street near the petrol station . They pulled him into the police car and started beating him . They pulled up on the other side of the park with the lights turned off , took the applicant out of the car and continued beating him so that he fell to the ground . Then they continued to beat him while he was lying on the ground . At a certain moment the applicant received a hard blow to his back and lost consciousness . He could not remember for how much longer he was beaten after that . When he regained consciousness he could not move his legs and felt acute pain in the back . He was alone at this point and started crying from the pain .

A little later he noticed the police officers and a security guard from the bar approaching him . He heard one of the police officers explaining to the security guard that he should testify that the applicant was so drunk he could not even stand up .

NORP The applicant was thrown into the police car and driven to ORG . While he was being examined , the police officers repeatedly demanded that the applicant stand still , but he could not , and kept falling over . In the police ORG opinion this expressly demonstrated to the doctors the level of the applicant ’s intoxication . When asked what had happened to him the applicant explained to PERSON , a doctor , that he had been beaten up by the police officers .

Statements by the police officers , a police internal inquiry report of CARDINAL DATE , decisions of CARDINAL DATE and DATE refusing to open a criminal investigation , and a decision of DATE terminating a criminal investigation , indicate the LOC version of events , as follows .

At QUANTITY on CARDINAL DATE the ORG received a telephone call from a sales assistant at a petrol station that a drunk man was hanging about at the petrol station and refusing to go away . The complaint was passed on by a radio communication facility to a police patrol consisting of CARDINAL officers , ORG . and PERSON , who were in a car nearby . They arrived at the petrol station TIME , to find the sales assistant alone . The latter explained that the man had headed for the park . The police officers pulled up at the bar , which was located at the opposite corner of the park , and met a security guard there . They went into the park together , as they could hear cries for help . They found a man complaining of acute pain in the waist and stomach . They put him into the car ; took him to the sales assistant , who identified the man as the one who had disturbed him that night ; and went on to ORG , where he was provided with medical treatment .

Upon delivery to ORG the applicant was examined and diagnosed with CARDINAL fractured vertebrae and a spinal cord injury . The applicant was also diagnosed with alcoholic intoxication . However , no test for alcohol was carried out .

DATE he was moved to GPE - Frankivsk ORG for surgical treatment . The applicant stayed there till DATE , following which he was moved to ORG , where he stayed till DATE .

According to the doctor ’s certificate of CARDINAL DATE issued at GPE - Frankivsk ORG , the applicant was also suffering from concussion .

Since that incident the applicant has been unable to walk unaided and has been designated Category CARDINAL ( the highest category ) disabled .

At DATE the applicant ’s wife began divorce proceedings . On DATE the divorce was registered by the domestic authorities .

After the completion of his inpatient treatment the applicant moved to a village to live with his father , who was born in DATE .

At TIME on CARDINAL DATE the ORG informed the ORG about the incident .

At TIME on TIME , PERSON . questioned the sales assistant at the petrol station and the security guard of the bar about the incident .

During DATE , the QUANTITY police officers ( N. , Kh . and PERSON ) submitted reports to the head of ORG setting out their version of the events , which corresponded to the explanations given by the sales assistant and the security guard .

Another police officer at ORG carried out a site inspection : he found a shoe belonging to the applicant . According to the report describing the site of the incident , part of the park border was fenced ; the fence was QUANTITY high ; there was also a concrete ring QUANTITY in diameter at the centre of the park with a fence ; the height of the concrete foundation was QUANTITY while the height of the fence , circling the ring , was QUANTITY .

DATE the police officers and the investigator at ORG once again questioned the sales assistant and the security guard , then the applicant ’s friend who had been with him in the bar , the cook at the bar and CARDINAL doctors at ORG , where the applicant had received treatment . The sales assistant and the security guard repeated their statements . The applicant ’s friend noted that neither he nor the applicant had had any conflict with anyone in the bar . A similar statement was made by the cook . The doctors noted that , when visually examining the applicant , they did not see any bruises or other injuries on his body suggesting that he might have been beaten ; when they asked the applicant about the incident , he could not explain to them what had happened to him .

On DATE the applicant made a complaint to the GPE - Frankivsk Regional prosecutor , alleging that he had been severely beaten by police officers . He claimed that the enquiries carried out by ORG and ORG were not objective ; he had not been questioned while he could still identify the police officers ; and a number of bruises had disappeared since the incident . He requested that the case be transferred to a different authority to ensure an independent investigation of the matter .

On DATE a police officer from ORG questioned the applicant . The latter repeated his version of the events .

On DATE the police officer questioned the owner of the bar , who said that he did not see the applicant having any conflict with anyone in the bar , but noted that at a certain moment the applicant had fallen asleep at the table and fallen off his chair .

On DATE the Horodenka ORG referred the file to ORG for further enquiries .

During DATE the investigator at ORG questioned the same people who had been questioned earlier by officers of ORG . Those witnesses essentially repeated their original statements . CARDINAL of the doctors , however , specified that the applicant had told him that he had been beaten by police officers .

On DATE a forensic medical expert issued a report concerning the nature of the injuries sustained by the applicant . The expert noted in the descriptive part of the report that DATE and DATE the applicant was treated in the hospital for spinal injuries and concussion . In his conclusions the export noted that the vertebral and spinal cord injuries “ had been caused by blunt solid objects or , possibly , by the applicant ’s falling on to blunt solid objects ” . He further opined that after sustaining those injuries the applicant could not move his lower limbs . He also specified that it was hardly probable that those injuries had been inflicted by a rubber truncheon or shoes .

DATE , DATE , the investigator refused to open criminal proceedings against the police officers , finding that the material collected in the course of “ pre - investigation ” enquiries did not suggest that the police officers had committed any crime in respect of the applicant . He noted that the applicant had been drunk , while the conclusions of the forensic medical expert suggested that the injuries might have been caused by the applicant ’s falling on to blunt solid objects , and that it was hardly probable that the injuries had been inflicted by a rubber truncheon or shoes .

The applicant was not sent the last pages of the decision and could therefore not know its final reasoning . Nevertheless , the applicant challenged the decision before the supervising prosecutor ’s office .

On DATE the GPE - Frankivsk ORG quashed the decision of CARDINAL DATE as unsubstantiated , and opened a criminal investigation in connection with the grievous bodily injuries caused to the applicant by unknown persons . The prosecutor considered that the case file suggested that a crime had been committed in respect of the applicant , while the police officers who had delivered the applicant to the hospital had not taken any hot pursuit measures to catch the possible perpetrators . The case was referred to ORG for the investigation .

Meanwhile , during DATE , the GPE - Frankivsk ORG carried out an internal inquiry in connection with the complaints by the applicant .

The inquiring officers examined the material collected by ORG in the course of “ pre - investigation ” enquiries , and issued a report on CARDINAL DATE concluding that the applicant ’s complaints were unsubstantiated .

On DATE the case was assigned to an investigator at ORG . DATE the investigator commenced with an inspection of the site of the incident . The investigator noted in the report that the park zone was partly fenced with a metal fence QUANTITY high ; in the centre of the park was a concrete ring with a metal fence ; the concrete base of the ring was QUANTITY high ; the fence around the ring was QUANTITY high .

On DATE the applicant was given the status of victim in the proceedings and questioned about the incident . The applicant repeated his account , that he had been beaten up by the police officers . In the course of questioning he also specified that at a certain moment while he was being beaten up by the police officers he fell to the ground ; when he attempted to rise , CARDINAL of the officers hit him hard on the back and the applicant fell to the ground again and lost consciousness .

DATE the investigator took a number of measures in the course of the investigation . In particular , on DATE he carried out a reconstruction of the events , with the participation of the security guard , who indicated the place where the applicant had been found lying on the ground . The investigator noted that the distance to the road , from which the park was fenced off , was QUANTITY . The report was accompanied by photographs showing the place of the incident from different angles .

NORP The investigator further questioned witnesses and the police officers involved . The police officers maintained their version of the events . CARDINAL of the police officers , PERSON . , specified that when they had delivered the applicant to ORG . had asked for particular doctors ; he knew them because his parents were working at that hospital . He also noted that after he had left the hospital he had met the sales assistant and the security guard and had taken written statements from them .

The sales assistant also confirmed that at TIME on QUANTITY DATE police officer PERSON . came to see him and said that the man who had disturbed him that night , had been severely beaten up and that it was necessary for the sales assistant to make a statement . The statement was written down by the police officer and signed by the sales assistant .

Identification parades were held at which the applicant identified the QUANTITY police officers . Confrontations were held between the applicant and the police officers at which the applicant maintained his version of events while the police officers all denied that version .

On DATE the same forensic medical expert carried out another forensic medical examination of the applicant ’s injuries , relying on the applicant ’s medical history as recorded by the CARDINAL hospitals where the applicant had been treated . The expert also stated that according to the medical history the applicant was also suffering from concussion . He further concluded that the applicant had sustained the following injuries : compressive fractures of the body of the eleventh thoracic vertebra and the body of the third lumbar vertebra ( компресійний перелом тіла одинадцятого грудного хребця та тіла третього поперекового хребця ) ; fractures of the neural arches of the eleventh thoracic vertebra ( перелом дужок одинадцятого грудного хребця ) ; fractures of the transverse processes of the first , second , third lumbar vertebrae ( перелом поперечних відростків першого , другого , третього поперекових хребців ) ; fractures of the spinous processes of the tenth thoracic vertebra and the first lumbar vertebra ( перелом остистих відростків десятого грудного і першого поперекових хребців ) , and bruises on the back over the spinal column . These injuries resulted in paresis of the lower limbs .

The expert opined that the spinal fractures could have resulted from the endwise compression of the spine and bending of the trunk . These movements might have been made by the applicant falling on his heels , buttocks , or head . The bruises on the back in the area of the first and second lumbar vertebra might have been caused by blunt solid objects or by the applicant ’s falling on to blunt solid objects . The expert repeated his earlier conclusion that after the injuries the applicant could not move his lower limbs .

On DATE the investigator decided to order another forensic medical examination to clarify whether the injuries could have been caused in the way described by the applicant who had stated that he had received a hard blow on the back when he was getting up and his spine was bent .

On DATE a board of forensic medical experts , having examined the relevant materials , concluded that the spinal injuries could not have been caused when the applicant was getting up and his spine was bent . They upheld the previous forensic medical expert ’s opinion as to the manner in which the spinal fractures could have been sustained .

On DATE the investigator adopted a decision refusing to open a criminal investigation against ORG . and PERSON in connection with the applicant ’s injuries . Relying on the statements given by the police officers and other persons , the experts’ opinions and the other evidence in the file , the investigator concluded that the police officers had not been involved in injuring the applicant . The applicant was not sent a copy of that decision .

On DATE the criminal case in respect of the grievous bodily injuries caused to the applicant by unknown persons was referred to the investigator of ORG for further investigation .

DATE . On DATE the investigator having examined the case file and questioned the sales assistant once again , terminated the criminal proceedings holding that no crime had been committed . In particular , the investigator found that the applicant ’s allegations of ill - treatment by police officers were not supported by the evidence available in the file . He referred to the experts’ opinions suggesting that the spinal injuries could not have been caused by a rubber truncheon and that they could have been sustained if the applicant had fallen back on to his heels , buttocks , or head , bending his spine in the process . A number of witnesses had confirmed that the applicant was drunk that night . The applicant had been found near the fence around the concrete ring in the centre of the park . The investigator therefore concluded that the applicant had sustained injuries as a result of his own negligence .

The applicant was informed of the decisions taken by the authorities on DATE and DATE by a letter of CARDINAL August CARDINAL . No copies of those decisions were enclosed .

The applicant continued to complain to various law - enforcement authorities about ill - treatment . He also asked different authorities to provide him with legal representation , claiming that he could not properly represent himself owing to his physical disability . The requests were unsuccessful .

On DATE , further to the applicant ’s complaint , the national ombudsman sent a letter to ORG asking it to consider the applicant ’s allegations of inappropriate investigation of his alleged ill - treatment by police officers .

On DATE the GPE - Frankivsk ORG quashed the decision of DATE terminating the criminal proceedings for the reason that the investigation had not been thorough and further measures were deemed necessary . The case was remitted for further investigation .

On DATE the investigator of ORG terminated the proceedings in the criminal case , holding that no crime had been committed . In his decision the investigator referred to the same evidence as previously and concluded that the applicant had been very drunk and had caused the injuries to himself by his own negligence when falling either from the fence separating the park from the road or the fence on the concrete circle foundation in the centre of the park .

Following the applicant ’s request , on DATE he was sent a copy of that decision . The applicant challenged the decision in court .

On DATE the ORG of LOC , considered the applicant ’s claim and upheld the investigator ’s decision of DATE as substantiated , after finding that the investigation had been conducted in accordance with the domestic legislation . The applicant appealed . On DATE , after the application was communicated to the Government , the registry of the district court found that the case file had not been sent to the court of appeal .

On DATE the GPE - Frankivsk Regional Court of Appeal , after the receipt of the case file , considered the applicant ’s appeal and quashed the decision of CARDINAL DATE . The case was remitted to the first - instance court for a fresh hearing . At a certain point the case was transferred to ORG of GPE , for further consideration .

On DATE that court refused the applicant ’s claim after finding that the decision of DATE terminating the investigation had been well reasoned and substantiated . The applicant appealed .

On DATE the court of appeal quashed the decision of CARDINAL DATE and remitted the case to the first - instance court for a fresh hearing .

On DATE the first - instance court found that the investigation had been carried out properly and the decision of DATE had been substantiated . It therefore rejected the applicant ’s claim .

The applicant appealed but on DATE he withdrew his appeal for the reason that the time - limits for criminal responsibility for the alleged crime had expired .

On DATE the applicant lodged an application with the ORG .

On DATE ORG asked the applicant to provide copies of the decisions taken DATE opening and closing the criminal proceedings concerning his complaints of ill - treatment .

On DATE the applicant requested copies of those decisions from the prosecutor ’s office . He enclosed a copy of ORG letter of DATE .

On DATE the local prosecutor sent the applicant a copy of the decision of DATE . He refused the remainder of the applicant ’s request , stating that LAW did not provide the applicant with a right to receive copies of the requested decisions .

On DATE the applicant instituted administrative proceedings in the local court against the local prosecutor ’s office , seeking to be given copies of the procedural decisions taken by the domestic authorities DATE in the course of the examination of his complaints of ill - treatment . In his claim the applicant specified that the documents had been requested by ORG in the context of the consideration of his application .

On DATE ORG asked the applicant to provide copies of all the procedural decisions taken by the domestic authorities in the course of the examination of the applicant ’s complaints of ill - treatment . ORG informed the applicant that under LAW of the Convention , State authorities can not hinder the applicant in the effective exercise of his right of application to the ORG .

DATE . On DATE the local court refused the applicant ’s administrative claim as unsubstantiated . It noted that the prosecutor ’s office had acted in accordance with LAW .

The applicant appealed , relying in particular on LAW .

On DATE the GPE - Frankivsk ORG of Appeal quashed the judgment of CARDINAL DATE and allowed the applicant ’s claim . It found that the applicant ’s access to information concerning his rights had been unlawfully restricted . The court ordered therefore that the prosecutor ’s office give the copies of the requested documents to the applicant . On DATE the judgment came into force but was not executed .

On DATE the applicant lodged a claim with the GPE - Frankivsk ORG against the local prosecutor , the judges of the local court , and ORG , requesting that the execution of the judgment of CARDINAL DATE no longer be hindered by the defendants and seeking damages on account of failure to execute that judgment .

On DATE the GPE - Frankivsk ORG refused the applicant ’s claim as unsubstantiated .

On DATE ORG rejected the prosecutor ’s appeal on points of law against the judgment of DATE .

On CARDINAL DATE the judgment of DATE was executed . The applicant was given the copies of the procedural decisions requested , including the decision of CARDINAL DATE refusing to open a criminal investigation against the police officers .

On DATE , in reply to the applicant ’s enquiry about legal aid , the GPE - Frankivsk Regional Department of Justice informed the applicant that the representation of citizens in criminal cases by the legal advice offices of LOC was not foreseen by the legislative acts governing their operation .

DATE . The relevant provisions of the LAW read as follows :

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

“ Everyone has the right to legal assistance . Such assistance is provided free of charge in cases envisaged by law . Everyone is free to choose his or her own defence counsel .

In GPE , advocacy acts to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other ORG bodies . ”

The relevant provisions of the LAW can be found in the in the judgment of ORG v. GPE , no . CARDINAL , § § CARDINAL , DATE and DATE , DATE ) .

According to the preamble of that Act , it lays down the organisational and legal principles for the provision of social services to individuals who are in difficult circumstances and need outside support .

According to section CARDINAL of the LAW , social services shall be provided either at home or at various social institutions , including social services centres and social support centres . The same section further provides a list of social services , which include legal services , that individuals are entitled to request under that LAW .

Section CARDINAL of the LAW states , inter alia , that social services shall be provided free of charge to individuals who can not satisfy their needs owing to their old age , illness or disability , provided that they do not have relatives obliged to support them .

According to the preamble of the LAW , it defines the contents of the right to free legal assistance and the way that right should be exercised ; the grounds and the procedure for granting free legal assistance as well as the ORG guarantees in respect of free legal assistance .

Chapter II of the Act deals with “ primary legal assistance ” , which , according to section CARDINAL of the LAW , comprises the following types of legal services : provision of legal information ; consultancy on legal matters ; drafting applications , complaints and other legal documents ( except for procedural documents ) ; and help with gaining access to “ secondary legal assistance ” .

Chapter III of the Act deals with “ secondary legal assistance ” , which , according to LAW , comprises the following types of legal services : defence against criminal charges ; representation of individuals before the courts and other ORG authorities , local selfgovernment bodies , and other persons ; drafting procedural documents .

The “ Final and Transitional Provisions ” of the Act provide for a gradual implementation of LAW of the LAW starting from DATE .


Violation of P1-1;Just satisfaction dismissed (out of time)

The applicant was born in DATE and lives in GPE .

On DATE ORG ( PERSON ) expropriated a plot of land belonging to the applicant . A committee of experts assessed the value of the plot and the relevant amount was paid to her when the expropriation took place .

Following the applicant ’s request for increased compensation , on DATE ORG of First - instance awarded her an additional compensation of MONEY ( TRL ) plus interest at the statutory rate applicable at the date of the court ’s decision .

On DATE ORG upheld the judgment .

On DATE ORG rejected the applicant ’s request for rectification .

On DATE ORG paid the amount of GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL to the applicant , interest included .

On DATE the applicant lodged an application with the Court .

After the application was communicated to the Government , the applicant was requested to submit her observations on the merits of the case and also her just satisfaction claims until DATE . However , she failed to submit her observations within the required time - limit . She did not request any extension of time , either .

NORP By registered letter of CARDINAL DATE the applicant was informed that ORG had not received her observations and just satisfaction claims and that the ORG may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application .

On DATE the applicant submitted her observations on the merits of the case . However , she failed to submit her claims for just satisfaction .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .


Violation of Art. 10;Violation of Art. 6-1 (independence and impartiality of the General Staff Court);Not necessary to examine Art. 6 (another complaint);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

On DATE , as editor of the newspaper FAC ( Everyday Work ) , the applicant published in issue number CARDINAL an article entitled “ Giving the conscripts a send - off , and collective memory ” ( Asker uğurlamalar ve toplumsal hafıza ) signed by GPE .

On DATE the public prosecutor at ORG of the General Staff ( “ the ORG ” ) , acting under LAW and LAW , charged the applicant with incitement , by publication of the above article , to evade military service ( askerlikten soğutma ) .

The applicant informed ORG that the article had been written by PERSON , who had signed it with a pseudonym .

In a judgment of DATE the ORG initially sentenced the applicant to CARDINAL months’ imprisonment and a fine of MONEY ( TRL ) . By virtue of section CARDINAL of the Execution of Sentence Act ( Law no . CARDINAL ) , which provided for prison sentences imposed on editors to be commuted to fines , the applicant was ultimately ordered to pay a “ heavy fine ” of FAC .

In its judgment ORG referred to the following passage from the offending article :

“ DATE in bus stations has been a time for sending the DATE conscripts on their way ... The novice soldiers setting off – “ but you ’ll soon be back ” , people tell them to console them – already seemed during these ritual send - offs to be plunging into war by donning “ invisible khaki ” . It was a time when war seemed rather attractive ; the congratulations and praises made it seem like a warm nest , almost as warm as a mother ’s arms , into whose embrace they would have liked to run . What we saw at each of these ceremonies shows that the thing has become a collective hysteria and that this hysteria has also spawned its own indispensable attributes : the traditional drum and clarinet , the famous CARDINAL - crescented flag , sometimes accompanied by the corn - ear flag of ORG ] or the rose - bearing flag of the BBP [ ORG ] ... Warm - up ceremonies are organised for those setting off for the war , the exaltation felt on killing a man is the exaltation of winning a match and , what is more , the killer justifies his act by speaking of the love he has for his fatherland and his nation . In short , it ca n’t be said that what we ’re doing is right ... Those verses , written by a fallen soldier , are carved on his own tombstone . He will no longer see those who gather to give the conscripts a send - off , no longer hear the drum , the clarinet or the gunfire , not be able to read the verses written on his tombstone , on seeing which he would perhaps have felt repelled by the determinism they convey . Because from now on he is reduced to a title : a martyr ... It is because the ORG does not recognise as such the war which is etched deeply into the collective life and the collective memory that , apart from a small minority , those who return from it after losing an arm , a leg or an eye receive no allowance . These people who are no longer capable of meeting their own needs are being deceived by talk of fictitious jobs . ‘ There is a war , but not officially ; you are war - wounded , but you count for nothing.’ ”

In its considerations the General Staff Court pointed out that military service was a constitutional duty and that the applicant , by denigrating military service had also denigrated the struggle against the ORG , a terrorist organisation which killed soldiers , police officers , teachers and civil servants . It held that the offending article contained terms contrary to morality and public order .

Relying on Articles DATE and CARDINAL of the LAW , the applicant appealed on points of law to ORG . He argued that ORG had given its judgment without hearing his defence on the merits of the charge . He submitted that as a civilian he should not have been tried by that court , and alleged that it was not independent or impartial .

The applicant was allegedly not provided with a copy of the opinion of ORG at ORG .

In a final judgment of CARDINAL DATE ORG upheld the first - instance judgment . It observed that the applicant ’s submissions on the merits had been filed by his lawyer , and that the fact that he had been tried by a military court was in accordance with the law .

The relevant provisions in force at the material time provided :

“ Military justice shall be dispensed by military courts and military disciplinary organs . These courts and tribunals shall be responsible for conducting proceedings concerning offences committed by military personnel which are breaches of military law or are committed against other military personnel , on military LOC or in connection with military service and the related duties .

Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law , or have been committed against military personnel , either during their performance of duties designated by law or on military LOC so designated .

The jurisdiction of the military courts as regards persons and offences in time of war or state of emergency , the composition of such courts and the secondment of civilian judges and prosecutors to them where necessary shall be regulated by law

The organisation and functions of military judicial organs , the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with the requirements of military service . Relations between military judges and the commanders under whom they serve as regards their non - judicial duties shall also be regulated by law in accordance with the requirements of military service . ”

LAW provides :

“ It shall be an offence , punishable by CARDINAL months’ to CARDINAL years’ imprisonment and a fine ... to publish articles inciting the population to break the law or weakening national security , to issue publications intended to incite others to evade military service ... ”

Article CARDINAL of LAW provides :

“ Undermining national resistance :

Any person who commits CARDINAL of the offences defined in GPE ... and CARDINAL of the Criminal Code ... shall be liable to the sentence laid down in the provision concerned , for undermining national resistance ” .

At the material time section CARDINAL of the Constitution of Military Courts Act read as follows :

“ Trial of civilians by military courts :

... the offences referred to in GPE ... and CARDINAL of LAW [ come within the jurisdiction of the military courts ] . ”

Following the amendment introduced on DATE by LAW no . DATE , LAW of LAW now reads as follows :

“ ... Military courts shall not try civilians charged with committing the crimes and lesser offences referred to in LAW in time of peace . ”

At international level , the position regarding the jurisdiction of military courts to try civilian defendants is as follows .

Among the member ORG is at present the only country whose LAW explicitly provides that military courts may try civilians in peacetime .

Although there is some diversity in legislation governing the jurisdiction of military courts to try civilians , in the great majority of legal systems that jurisdiction is either non - existent or limited to certain very precise situations , such as complicity between a member of the military and a civilian in the commission of an offence punishable under the ordinary criminal code or the military penal code .

In its DATE General Comment on LAW the ORG ’s ORG issued the following warning to member GPE :

“ The ORG notes the existence , in many countries , of military or special courts which try civilians . This could present serious problems as far as the equitable , impartial and independent administration of justice is concerned . Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice . While the LAW does not prohibit such categories of courts , nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article DATE . The ORG has noted a serious lack of information in this regard in the reports of some GPE parties whose judicial institutions include such courts for the trying of civilians . In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article CARDINAL which are essential for the effective protection of human rights . ”

The country reports subsequently adopted enabled the ORG to clarify its position . It no longer hesitated to criticise GPE whose legislation still permitted military courts to try civilians . The ORG urged those countries to amend their legislation on the question while congratulating those among them who had implemented such a reform . In the final analysis , the ORG took the view that “ military courts should not have the faculty to try cases which do not refer to offences committed by members of the armed forces in the course of their duties ” . In its DATE report on GPE the ORG expressed its views even more incisively , stating that it was “ concerned at information about the extent to which military courts have jurisdiction to try civilians ; despite recent limitations on this procedure , the ORG does not accept that this practice is justified by the convenience of the military court dealing with every person who may have taken some part in an offence primarily committed by a member of the armed forces ” ( Concluding Observations of the Human Rights Committee : GPE , ORG . CCPR / C/CARDINAL/ Add . CARDINAL , DATE , § CARDINAL ) .

Similar criticisms were made of GPE and GPE , to mention only member ORG , with the ORG taking the line that civilians should not be tried by military courts in any circumstances ( see , in particular , Concluding Observations of the Human Rights Committee : GPE , Doc . CCPR / C/CARDINAL/Add . CARDINAL , DATE , § CARDINAL ) .

Lastly , mention should be made of the report on the issue of the administration of justice through military tribunals , submitted to ORG , which is to debate it at its CARDINALnd session in DATE ( Doc . E / CN.CARDINAL/Sub.CARDINAL/CARDINAL/CARDINAL of DATE ) .

The first of the Principles set out in the report reads :

“ Military tribunals , when they exist , may be established only by the constitution or the law , respecting the principle of the separation of powers . They must be an integral part of the general judicial system . ”

However , the rapporteur pointed out

“ ... the ‘ constitutionalization’ of military tribunals that exists in a number of countries should not place them outside the scope of ordinary law or above the law but , on the contrary , should include them in the principles of the rule of law , beginning with those concerning the separation of powers and the hierarchy of norms . ”

Principle No . CARDINAL emphasises respect for the standards of international law in the following terms :

“ Military tribunals must in all circumstances apply standards and procedures internationally recognized as guarantees of a fair trial , including the rules of international humanitarian law . ”

Principle No . CARDINAL , which deals with the functional jurisdiction of military courts , states :

“ Military courts should , in principle , have no jurisdiction to try civilians . In all circumstances , the ORG shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts . ”

The settled case - law of ORG excludes civilians from the jurisdiction of military courts in the following terms :

“ In a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests , related to the functions assigned by law to the military forces . Consequently , civilians must be excluded from the military jurisdiction scope and only the military shall be judged by commission of crime or offenses that by its own nature attempt against legally protected interests of military order ” ( PERSON , PERSON and GPE v. GPE , DATE , § CARDINAL ) .

That line of case - law , based on LAW , was followed in other cases decided by ORG , and ORG had also previously followed that approach ( see ORG , Military Jurisdiction and International Law , ( DATE , pp . CARDINAL et seq . ) .


The applicants , Mr PERSON , Mr PERSON , PERSON Rink , PERSON and Mr PERSON , are NORP nationals who live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The applicants are heirs of associates of a limited partnership ( Kommanditgesellschaft ) which owned land in GPE on the territory of the former GPE ( neue Bundesländer – hereinafter called ORG ) . The land comprised forests and a quarry . On DATE the property was expropriated by the authorities of GPE ( “ GPE ” ) pursuant to LAW ( Aufbaugesetz ) in order to create a recreational area ( NORP ) . Compensation amounting to MONEY of the GPE was fixed under LAW on Compensation for Expropriation under LAW ” ( PERSON über die Entschädigung bei FAC ) . However , that sum was never paid out , as it was charged up against claims the ORG had against the limited partnership .

Following NORP Unification the applicants requested restitution under LAW ( see “ Relevant domestic law and practice ” below ) on DATE . On DATE the Office for ORG ( Amt zur Regelung offener Vermögensfragen ) rejected their request , stating that the requirements for restitution were not met . On DATE ORG for ORG ( Landesamt zur Regelung offener Vermögens - fragen ) rejected the applicants’ opposition . Subsequently they brought an action in ORG .

The court rejected the claim for restitution confirming that the requirements of sections CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW were not fulfilled .

Firstly , the court held that section CARDINAL ( CARDINAL ) of LAW was not applicable , as the applicants’ predecessors had been expropriated and compensated . It was irrelevant that the compensation had actually not been paid out , as section CARDINAL ( CARDINAL ) of LAW applied only to expropriations for which no compensation was provided under GPE law . It referred to the judgment of ORG of DATE ( see “ Relevant domestic law and practice ” below ) .

Secondly , the court found that the requirements of section CARDINAL(CARDINALb ) of LAW were not met . It explained that according to ORG case - law that provision had to be interpreted restrictively . Contrary to its wording , the amount of compensation alone was not decisive . It applied only to those expropriations which had been carried out by the GPE authorities pursuant to a discriminatory ORG practice . As an example the court mentioned the decision of the GPE cabinet ( ORG ) of DATE , which had fixed a lesser amount of compensation for real estate which was owned by persons residing in GPE and other “ capitalist GPE ” . The court found no indication for such a discriminatory ORG practice in the present case .

Lastly , the court elaborated on the requirements of section CARDINAL(CARDINAL ) of LAW . At the outset it noted that , according to ORG case - law , “ arbitrary ” or “ manipulative ” expropriations also fall within the ambit of that provision . However , “ arbitrary ” or “ manipulative ” meant more than a mere violation of GPE law . The court recalled that an expropriation was arbitrary if there had been either no legal basis for the purpose of the expropriation under GPE law or if the GPE authorities had falsely indicated a purpose while secretly pursuing a different one . Regarding the present case , the court acknowledged that LAW did not , according to its wording , allow expropriations for creating recreational areas . Its purpose was rather to reconstruct or maintain housing . However , the court pointed out that the GPE authorities had applied LAW extensively , as had already been held by ORG in its judgment of DATE ( see “ Relevant domestic law and practice ” below ) . Furthermore , the court referred to several resolutions by ORG ( Rat des Bezirks Magdeburg ) dating back to the expropriation era , which had called for the creation of additional recreational areas . The court found that the authorities then involved had , possibly wrongly , assumed that LAW was a blanket clause for expropriations which served important social projects . The court also referred to a GPE textbook on LAW in which the author indicates that LAW was not only used for the creation of housing , but also for other projects such as cemeteries or farm stables . The court therefore concluded that in GPE practice such expropriations under LAW were possible and common . It further found that the expropriation had been considered to fall within that purpose . Furthermore , the court found that the authorities had acted in accordance with the “ basic ideological ideas ” ( ideologische GPE ) on which the GPE legal system was based . The court therefore concluded that there was no indication of a “ manipulative ” or “ arbitrary ” expropriation within the meaning of LAW and refused the applicants leave to appeal on points of law .

The court rejected the ORG complaint against the refusal of leave to appeal on points of law , confirming the lower court ’s reasoning in respect of the application and interpretation of sections CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW .

In particular , the court stressed that in GPE law and practice LAW was interpreted broadly . It held that even if LAW had not provided for expropriation in the present case , this mistake would not constitute a grave and evident violation of the principles of LAW . Therefore , the expropriation could not be considered arbitrary or manipulative within the meaning of LAW .

ORG refused to admit the applicants’ constitutional complaint .

Expropriated real estate is in principle to be returned to the former owners or their heirs , having regard to the type of case specified in sub - paragraphs ( a ) and ( b ) below .

( a ) It is not possible to restore rights of ownership over land and buildings whose use or purpose has been altered , in particular by being dedicated to public purposes , used for housing developments , for commercial purposes or incorporated into new business units .

Compensation will be paid in these cases , in so far as it has not already been made pursuant to the laws and regulations applicable to citizens of GPE .

( b ) In so far as citizens of GPE have in good faith acquired ownership or rights of user in rem ( dingliche PERSON ) over real estate , socially acceptable indemnification ( sozialverträglicher PERSON ) is to be made to the former owners by substituting real estate ( ORG ) of a comparable value or by paying compensation . ... ”

ORG , also known as LAW , entered into force on DATE and was also part of LAW . Under the terms of the LAW , LAW was to continue to subsist in the unified GPE after the unification of the two GPE on DATE . The aim of the LAW was to resolve disputes over property in the territory of the GPE in a way that was socially acceptable in order to achieve permanent legal order in GPE . The pertinent provisions read as follows .

Section CARDINAL

“ ( CARDINAL ) This Act settles claims to property ,

( a ) which was expropriated without compensation and transferred to public property ( ORG ) ;

( b ) expropriated for a lesser amount of compensation than citizens of GPE were entitled to ; ... ”

( CARDINAL ) This act shall also apply to rights in or over immovable property and usufructary rights acquired by unfair dealings , such as abuse of power , corruption , duress or deception by the purchaser , the ORG authorities or third parties . ”

In its annotation of the bill ORG made the following comments on LAW purpose and meaning .

“ ... For the time after the foundation of GPE ( DATE ) this LAW provides for restitution , if owners were deprived of their property assets ( PERSON ) in a way which is incompatible with the rule of law . This Act does not intend to amend every interference with private means ( PERSON ) which took place during DATE pursuant to GPE law on the basis of a socialist economic and social order . ... ”

Article CARDINAL

“ Administrative Acts of GPE which were issued before the accession takes effect remain in force . They can be revoked if they are incompatible with the rule of law of the provisions of this treaty . ... ”

Regarding the interpretation of LAW held that restitution was excluded , even if the prescribed compensation , although provided under GPE law , had not been fixed , had not been paid out , had been charged up or had been withheld for other reasons by the GPE authorities . Furthermore , the court elaborated that LAW provided only for the revocation of certain cases of expropriations . It pointed out that the first sentence of LAW stipulates that all administrative acts of the GPE authorities remain in force . Only administrative acts which were incompatible with the principle of the rule of law ( rechtsstaatliche Grundsätze ) and the principles of LAW were to be revoked . The court held that the legislator had not intended to grant restitution in a case in which the compensation payment was actually not made , but only in cases in which GPE law did not provide for compensation at all . Only those expropriations reached a level of injustice that justified restitution .

In a second judgment of DATE ORG elaborated the following on the scope of LAW ) of LAW . It stated that , contrary to its wording , that provision required more than just an expropriation for a lesser amount of compensation than citizens of the GPE were entitled to . The court held that section CARDINAL ( CARDINAL ) had to be read in conjunction with section CARDINAL ( CARDINAL ) . The court said that , if the fact that compensation was fixed , but not paid out , did not entitle to restitution under LAW ( CARDINAL ) , it could not be that a lesser amount of compensation was in itself sufficient under LAW ) to justify restitution . It followed that only those expropriations fell within the ambit of LAW ) which had been conducted pursuant to a discriminatory ORG practice . As an example for such a discriminatory ORG practice the court mentioned the decision of the GPE cabinet ( ORG ) dated DATE which fixed a lesser amount of compensation for real estate which was owned by persons residing in GPE and other “ capitalist GPE ” .

Regarding the interpretation of LAW , ORG held that “ manipulative or “ arbitrary ” expropriations also fall within the ambit of that provision . However , it is not sufficient that the expropriation was unlawful under GPE law . It is necessary that the threshold of arbitrariness was crossed . ORG stated that an expropriation was arbitrary or manipulative if the GPE authorities had falsely indicated a legitimate purpose for the expropriation , but secretly pursued a different purpose . Furthermore , an arbitrary or manipulative expropriation was given if there had been no legal basis for it under GPE law .

ORG repeated that CARDINAL ( CARDINAL ) of LAW demanded an examination on a case - by - case basis and required an elevated level of injustice in each case ( qualifiziertes Einzelfallunrecht ) . Such a level of injustice was not reached if an expropriation had been conducted in accordance with GPE legal provisions and pursuant to the basic ideological ideas ( ideologische GPE ) on which those provisions were based .

In this judgment ORG held the following regarding the application and interpretation of LAW by the GPE authorities . It stated that the GPE authorities were of the view that LAW had a very broad scope . Expropriations for the benefit of inter alia ORG - owned enterprises , co - operatives , parties and mass organisations had been allowed . In the case which was decided by ORG , the expropriation had been carried out for the benefit of the unified trade union ( FDGB ) . ORG doubted whether that expropriation , as a matter of principle , fell within the scope of LAW , but found that even if the GPE authorities had wrongly applied LAW , this would not constitute a grave and evident violation of the basic principles of LAW . Therefore , the measure in issue could not be considered an arbitrary expropriation within the meaning of LAW .


Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

The applicant was serving a prison sentence in ORG following CARDINAL separate convictions . The overall term of his imprisonment was due to come to an end on DATE .

Pursuant to the provisions of LAW applicable to re - offenders , the applicant became eligible for conditional release after having served DATE of the overall term of his imprisonment , namely on DATE . After that date , the applicant requested a court on several occasions to grant him conditional release . However , his requests were denied on grounds of insufficient progress in his rehabilitation . On DATE the prison governor requested ORG ( PERSON ) to order the applicant 's release ( warunkowe przedterminowe zwolnienie ) in view of his satisfactory rehabilitation . ORG objected to that request .

On DATE ORG gave a decision ordering the applicant 's conditional release for a DATE probationary period . It placed the applicant under the court officer 's supervision and imposed certain other obligations on him .

ORG appealed against that decision . ORG did not amend its decision and transmitted the prosecutor 's appeal to ORG ( Sąd Apelacyjny ) .

The hearing before ORG was scheduled for DATE at TIME On DATE ORG upheld the decision of ORG . No further appeal lay against the decision of ORG . In the applicant 's submission , ORG decision was delivered at TIME

Later on DATE , a certified copy of ORG decision was sent to ORG , which received it on CARDINAL DATE . On DATE ORG ordered the governor of ORG to release the applicant and served him with a copy of ORG decision . The governor received these documents on DATE .

According to the official release certificate , the applicant was released on DATE . The applicant submitted that he had been released on that date at TIME

Article CARDINAL § CARDINAL of LAW provides as follows :

“ ORG and liberty of the person shall be afforded to everyone . Any deprivation or limitation of liberty may be imposed only in accordance with the principles and procedures laid down by statute . ”

Article CARDINAL § CARDINAL of the DATE LAW reads as follows :

“ The court may conditionally release a person serving a prison sentence from serving the remainder of that sentence only when his / her behaviour , characteristics , personal circumstances and way of life prior to the commission of the offence , the circumstances in which the offence was committed and his / her behaviour following the commission of the offence and while serving a sentence , would justify a conclusion that , following [ conditional ] release , the person would abide by the law and , in particular , would not re - offend . ”

Article CARDINAL § § CARDINAL of LAW prescribes the minimum prison term , depending on the type of sentence and offender , which must be served before a convicted person may apply for conditional release . However , the decision to grant conditional release is left to the discretion of the court , which must be satisfied that the conditions laid down in LAW are met .

When conditional release is granted , a convicted person should be released on completion of the necessary administrative formalities as specified in the Ordinance ( PERSON ) of the Minister of Justice of CARDINAL DATE on Administrative Acts concerning Execution of ORG and Sentences and Coercive Measures resulting in Deprivation of Liberty .

Paragraph CARDINAL of that GPE states , in so far as relevant :

“ All administrative formalities shall be carried out without delay ( niezwłocznie ) ... This concern in particular ( ... ) transmission of information and official notifications ... and releasing . ”

Paragraph CARDINAL of the GPE provides that the convicted person should be released upon receipt of a copy of the enforceable decision granting him or her the conditional release . The release should be effected on DATE of the receipt of the relevant documents by the prison ( § CARDINAL of the Ordinance ) .

The Ordinance does not prescribe any specific time - frame for the execution of the decisions granting conditional release .

The relevant domestic law and practice concerning the ORG 's liability for torts committed by its officials are set out in paragraphs CARDINAL of the ORG 's judgment in the case of GPE v. GPE , no . CARDINAL , ORG CARDINAL ( extracts ) .


The applicant is an NORP national , born in DATE and residing in GPE . He is a lawyer by profession .

A.

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

On DATE ORG ( Bezirksgericht ) dissolved the applicant ’s marriage with PERSON ORG based its decision on an agreement the applicant and his wife had concluded DATE in court which , inter alia , provided that custody of the CARDINAL children , PERSON and PERSON , be granted to her .

On DATE the applicant remarried .

On DATE the applicant introduced a request with ORG for reduction of the maintenance payments for PERSON and PERSON These proceedings are the subject of application No . DATE .

On DATE the applicant introduced court proceedings with ORG against his divorced wife for transfer to him of the custody of PERSON and PERSON

On DATE the ORG heard GPE

On DATE PERSON requested ORG to hear CARDINAL witnesses . On CARDINAL and DATE the applicant requested ORG to hear altogether CARDINAL witnesses and to obtain the opinion of a medical expert .

On DATE ORG appointed an expert child psychologist .

On DATE Judge PERSON who had been dealing with the applicant ’s case was replaced by Judge PERSON

On DATE the applicant requested ORG to transfer custody provisionally to him and to hear further CARDINAL witnesses .

On DATE the expert submitted his report to ORG . On DATE the expert ’s report was transmitted to the parties . On DATE the applicant requested ORG to order the expert to amend his report . He also requested that a hearing be held in order to discuss the report . On DATE and DATE PERSON commented on the expert ’s report . On DATE the applicant made further submissions . He also requested that he and CARDINAL more witness be heard .

On DATE the Braunau ORG heard CARDINAL witness on letters rogatory .

On DATE a hearing took place before GPE . The case had meanwhile been assigned to Judge PERSON In the course of the hearing ORG heard CARDINAL witnesses . On DATE the applicant requested ORG to hear a further CARDINAL witnesses . He also withdrew a previous request for the hearing of CARDINAL witness .

On DATE hearings took place before ORG in which the court heard the applicant and CARDINAL witnesses . On DATE and DATE the applicant requested ORG to hear a further CARDINAL witnesses and to instruct the expert to amend his report of DATE .

On DATE and DATE the parties made further submissions to ORG .

On DATE ORG summoned the parties to a hearing scheduled for DATE . This hearing was postponed to CARDINAL DATE , on the request of C.T , when ORG heard CARDINAL witnesses and distributed an amended expert report .

On DATE and DATE ORG heard CARDINAL witnesses in the absence of the parties . On DATE the applicant requested ORG to hear a further CARDINAL witnesses .

On DATE the applicant filed a request with ORG ( PERSON ) to set ORG a time limit for holding a hearing . He submitted that since DATE no hearing had taken place , and that the transcript of this court hearing had not yet been transmitted to the parties .

On DATE a hearing took place before ORG , which heard PERSON and decided that the appointed expert should , after an examination of the parties and the children , prepare a new report . This report was submitted on CARDINAL DATE .

On DATE , DATE , DATE , DATE , DATE , and DATE the ORG heard CARDINAL witnesses in the absence of the parties . On DATE the applicant made further submissions to ORG . On DATE ORG heard CARDINAL witness , already heard on DATE , in the absence of the parties .

On DATE the applicant requested ORG to grant the transmission to the parties of the material upon which the expert had based his report of CARDINAL DATE .

On DATE the ORG heard CARDINAL witnesses , already heard on CARDINAL , DATE and DATE , in the absence of the parties .

On DATE a hearing took place before ORG in which the expert ’s report of CARDINAL DATE was discussed . The applicant requested amendments to the report and the hearing of further witnesses .

On DATE the Judge PERSON left GPE . On DATE the applicant requested ORG to resume the taking of evidence because of the change in judge .

On DATE the President of ORG assigned the applicant ’s case to Judge PERSON ( who had previously dealt with the case in DATE ) .

On DATE the ORG heard PERSON , PERSON and PERSON and PERSON ’s companion in the absence of the applicant . On DATE the applicant requested ORG to hear CARDINAL further witnesses . On DATE and CARDINAL DATE the ORG heard the applicant and his second wife in the absence of PERSON On DATE the ORG heard PERSON in the absence of the applicant . On DATE the applicant requested ORG to re - hear in his presence all previous witnesses .

On DATE Judge PERSON declared that she felt bias against the applicant .

On DATE the applicant filed an application for a time - limit to be set for a decision on this declaration . On DATE the President himself requested that he be withdrawn from the case for bias . Both requests were dismissed . Judge PERSON ’s appeal of CARDINAL DATE was rejected on DATE .

Meanwhile , on DATE the applicant had filed a motion challenging the probable substitute Judge PERSON for bias . And on DATE , the applicant had filed a motion challenging Judge PERSON for bias . On DATE he filed an application for a time - limit to be set for the delivery of a decision on his latter request .

His applications were dismissed on DATE and CARDINAL DATE , respectively . On DATE ORG ( PERSON ) , following the applicant ’s appeal , withdrew Judge PERSON from the case .

On DATE Judge PERSON was appointed to deal with the case but was also challenged for bias by the applicant on DATE . On DATE Judge PERSON was appointed to deal with the case .

On DATE the court heard PERSON and PERSON ’s companion . On DATE the applicant made further submissions . On DATE the court heard the applicant and his second wife . On DATE an expert was appointed . On DATE the court heard PERSON and her father . On DATE another expert was appointed .

On DATE the applicant ’s children were granted legal aid . The applicant appealed against this decision on DATE .

On DATE the expert submitted his report to the court . On DATE the applicant requested the court to hold a hearing in which the expert opinion be discussed in the presence of the expert .

On DATE the hearing was scheduled for DATE . Following the applicant ’s request for an adjournment , the hearing was postponed until DATE . Granting the defendants’ motion for an adjournment , the court further postponed the hearing until DATE . Following another request for an adjournment by the applicant , the hearing was eventually held on DATE .

On DATE ORG dismissed the applicant ’s request for the transfer of custody and withdrew his right of access . Having regard to the submissions of the parties , the evidence of CARDINAL witnesses , several expert opinions , documentary evidence and the case files of CARDINAL related cases , ORG found that the children were well cared for by their mother and that continuity in exercising custody was important for the children ’s well - being . Furthermore , the children ’s feelings towards their father were negative or at best ambivalent . Therefore the court found no reason to transfer their custody from their mother to the applicant . As to the withdrawal of the right of access , the court noted that the right of access like the right of custody

On DATE the applicant lodged an appeal , which was dismissed on DATE by ORG for essentially the same reasons as those given by ORG .

On DATE the applicant lodged a further appeal , which was dismissed on DATE by ORG , whose decision was served on DATE .