Violation of Art. 2 (substantive aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13

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

The applicants are :

( CARDINAL ) PERSON Tumayeva , born in DATE ;

( CARDINAL ) PERSON , born in DATE ;

( CARDINAL ) PERSON , born in DATE ;

( CARDINAL ) PERSON , born in DATE ; and

( CARDINAL ) PERSON NORP , born in DATE .

The applicants are NORP nationals , who live in the village of ORG in LOC of GPE .

The first applicant is the mother of Mr PERSON , born in DATE . The second applicant is PERSON common - law wife ; they are the parents of CARDINAL minor children . The third and fourth applicants are PERSON sisters . The fifth applicant is his aunt .

At the material time the PERSON family lived at CARDINAL Titova Street in the village of ORG . The second applicant was pregnant with her second child . PERSON occupied the right wing of the house together with the second applicant and their child , whilst the first and third to fifth applicants occupied the left wing .

According to the applicants , at the material time the village of ORG was under the firm control of the NORP federal troops , who maintained manned checkpoints on the roads at the entry to and exit from the village . Moreover , at the time of the events described below , the village was under a curfew and around forty NORP servicemen were stationed there on a permanent basis .

In the applicants ' submission , CARDINAL servicemen from units operating under the direction of PERSON , the then deputy prime minister of GPE , arrived in GPE with a view to carrying out a sweeping operation . They deployed , amongst other things , tanks , armoured personnel carriers and ORG all - terrain vehicles .

At TIME on DATE , QUANTITY armed men in camouflage uniforms arrived at the applicants ' house . They spoke unaccented NORP and all but CARDINAL of them wore black masks . They shouted : “ Open the doors ! Police ! ” . The second applicant opened the door . Several armed men entered the premises and put the second applicant onto the floor . Some armed men stayed in the courtyard . The intruders took the keys from the second applicant and confiscated several video cassettes of various movies , a video cassette with a recording of PERSON father , and GPE mobile phone from the safe . They also took ORG passport , checked it and brought PERSON away .

NORP In the meantime , the first applicant also opened the door . The intruders immediately asked her to give them a passport . The first applicant inferred that they were servicemen carrying out a passport check . She started looking for her own passport . According to the first applicant , in the meantime the servicemen turned everything upside down . Shortly thereafter they locked the first applicant and her relatives in their part of the house . After a while she heard some movements coming from outside , a shot being fired and the noise of leaving vehicles . The first applicant managed to get outside through the window , whereupon she found out that the intruders had taken away PERSON , his mobile phone and several video cassettes . Her neighbours told her that they had seen a silvery UAZ-CARDINAL vehicle . The first applicant also found CARDINAL spent cartridges in the yard .

Some of the applicants ' neighbours and relatives , who had been woken up because of the noise , tried to follow the abductors but the servicemen threatened to kill them , beat them up , put them against a wall and fired several shots above their heads .

In TIME DATE the applicants discovered that CARDINAL more inhabitants of the village of GPE , including a Mr Kh . , had been abducted by the armed men .

The description of the events of TIME DATE is based on the written statements dated CARDINAL DATE by the first , second and third applicants and GPE , on the written statements of the fifth applicant and PERSON made on DATE , and on the applicants ' hand - written sketch of the LOC at CARDINAL Titova Street .

The applicants have had no news of GPE since DATE .

On DATE a group of residents of ORG , including the applicants , gathered at the administration of ORG to protest against the abduction of GPE .

The applicants submitted several printouts from internet media and an article from a local newspaper . The information contained therein may be summarised as follows :

On DATE an internet newspaper called “ Grani.ru ” published the following information :

“ On DATE a meeting was conducted in ORG . According to the news agency “ Prima ” , participants in the meeting had sought to liberate their fellow resident PERSON , ... who , according to them , had been abducted by [ Ramzan ] ORG 's forces ...

DATE a large number of servicemen of the “ battalion ” named after PERSON ( the former security service of the former president of GPE ) had arrived in the [ Achkhoy - Martanovskiy ] District , which had been followed by “ sweeping operations ” and abductions of residents of the district .

DATE , at TIME , unknown masked people took DATE PERSON away by force without giving any explanations . On DATE under similar circumstances , his fellow resident of ORG , [ Mr. ] Kh . , was abducted . ”

On DATE an internet newspaper called “ GPE uzel ” reported as follows :

“ DATE a considerable number of residents of the village of ORG gathered at the central square of ORG , GPE . They wanted the ORG authorities to liberate their CARDINAL-year - old fellow resident PERSON , who had been abducted by armed men wearing masks on DATE . The residents of ORG consider that PERSON was kidnapped by officers of the battalion named after PERSON .

DATE before , a large number of servicemen of that battalion ( the former security service of the President of GPE ) had arrived in the [ Achkhoy - Martanovskiy ] district in CARDINAL ORG vehicles , subsequent to which there had been “ sweeping operations ” and people had been abducted . In particular , on the day of the abduction of GPE a [ Mr ] PERSON . , DATE , had been abducted under similar circumstances . ”

Similar information to that described above was posted on DATE by the news agency “ Prima ” on its website and published on DATE in an article of the local newspaper “ NORP ” entitled “ People are still disappearing ” ( “ PERSON продолжают пропадать ” ) .

The Government submitted that the domestic investigation had obtained no evidence that any special operations had been conducted in GPE on TIME of the abduction of PERSON or that any servicemen had been implicated in his abduction .

NORP Immediately after the abduction the applicants complained about it to the local police office , and on TIME DATE they complained about the abduction to the police of PERSON .

Early in the morning of DATE a group of police officers arrived at the applicants ' house . They examined the crime scene , took casts of footprints left there and questioned PERSON family members .

On DATE the applicants visited Mr NORP , the head of the administration of ORG . Mr NORP promised them that he would make a few phone calls in order to gather information on ORG whereabouts . On an unspecified date NORP came to the village of GPE and told the applicants that they should not worry and that their relative would return home .

Subsequently all of the applicants applied to various authorities with a request that they be assisted in searching for PERSON .

On an unspecified date the first applicant requested that the military commander 's office of FAC and the prosecutor 's office of FAC ( “ the district prosecutor 's office ” ) establish her son 's whereabouts .

On DATE the district prosecutor 's office forwarded the second applicant 's complaint about the abduction of PERSON to the head of the department of the interior of FAC ( “ ROVD ” ) and requested the latter body to carry out an inquiry into the matter complained of . The letter stated , in particular , that , per the applicant 's complaint , at TIME on DATE unidentified armed persons wearing masks and camouflage uniforms had burst into the applicants ' house and had abducted PERSON . The abductors had arrived in CARDINAL white UAZ-CARDINAL vehicles .

On DATE the district prosecutor 's office instituted an investigation into GPE disappearance under LAW of LAW Criminal Code ( “ aggravated kidnapping ” ) . The case file was assigned the number CARDINAL . The applicants submit that they were not promptly informed of the decision to open the investigation .

On DATE the ROVD forwarded the first applicant 's complaint of the abduction of her son to the district prosecutor 's office .

On DATE the district prosecutor 's office informed the applicants that the term of the preliminary investigation of case no . CARDINAL had been extended until DATE .

On DATE the district prosecutor 's office informed the first applicant that the investigation into GPE kidnapping had been suspended because of its failure to identify the perpetrators .

On DATE the first applicant requested that the district prosecutor 's office open a criminal investigation into the abduction of her son , grant her victim status in those proceedings and provide her with copies of the related decisions .

On DATE the district prosecutor 's office informed the first applicant of the following . PERSON had been abducted by CARDINAL unidentified armed men in camouflage uniforms driving a VAZ-CARDINAL vehicle , a UAZ-CARDINAL and an all - terrain UAZ vehicle . The district prosecutor 's office had opened an investigation into case no . CARDINAL and had taken certain investigative measures . In particular , they had examined the crime scene , had compiled a plan of unspecified investigative steps to be taken , had come up with a number of unspecified versions of the abduction and had interviewed the applicants ' neighbours and other residents of ORG . They had also sent requests to various law - enforcement agencies in GPE , PERSON , ORG and LOC . However , PERSON whereabouts had not been established . On DATE the investigation had been suspended . Nevertheless , unspecified operational and search measures were being taken to resolve the crime .

On DATE the first applicant requested that the district prosecutor 's office inform her of the progress in the investigation into her son 's kidnapping . It is unclear whether her request was ever replied to .

Despite specific requests by ORG , the Government did not disclose most of the contents of criminal case no . DATE , providing only copies of some documents relating to the preliminary ROVD inquiry ( see below ) , the decision to institute the investigation ; records of several witnesses ' interviews ; some of the decisions to suspend and reopen the investigation ; the crime scene and site inspection reports concerning the applicants ' house and CARDINAL checkpoints ; and copies of several replies from the ORG authorities to the requests for information on PERSON and his whereabouts made in the course of the investigation .

The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW and in breach of the interests of unspecified parties to criminal proceedings .

Most of the documents submitted by the Government were illegible or legible only in part . All pages in the file submitted by the Government contained CARDINAL separate page numbers ; some documents concerning investigative actions dated DATE had been placed in the file submitted to ORG before the documents dated DATE and DATE . Some copies of interview records were not full , i.e. they contained only the first page with the witness 's data and the beginning of their respective accounts of the events , whilst the remaining pages were missing . In CARDINAL copies of interview records , DATE ” appears to have been written over with DATE ” .

The information concerning the investigation , provided by the ORG and contained in the documents submitted by them , in so far as they are legible , may be summarised as follows .

On DATE the ROVD received the applicants ' complaint about the abduction of PERSON . In the complaint , the applicants had stated that at TIME on DATE a group of persons in camouflage uniforms and masks driving CARDINAL white UAZ-CARDINAL vehicles had abducted PERSON and had taken him to an unknown destination .

On DATE the ROVD launched a preliminary inquiry into the abduction and inspected the crime scene . According to the crime scene inspection report , no objects of interest for the inquiry were found in the applicants ' house . The report did not mention whether or not there had been a disturbance in the house .

Again on the same date , ROVD officers obtained a written statement from the second applicant , in which she explained that at TIME on DATE someone had started knocking on the door of the part of the house where she had been staying with PERSON and their DATE daughter . When she had opened the door , a group of CARDINAL armed men in camouflage uniforms and masks had burst inside and had ordered everyone to lie down . The applicant had inferred that the intruders were servicemen and had complied with the order . Some of the servicemen had then taken PERSON outside and others had ordered the second applicant to open a safe . The servicemen had taken several video cassettes of NORP movies from the safe and had explained that they would check whether they contained any recording of members of illegal armed groups or their terrorist activities . The second applicant had seen about CARDINAL servicemen in total and submitted that she had not seen or heard any vehicles in the courtyard or on the street .

Upon being interviewed again on DATE , the second applicant confirmed her account of the events given in the written statement and submitted in addition that , immediately after PERSON abduction and after the first applicant had managed to get outside , they had alerted their relatives to the abduction . Their relatives had caught up with the abductors and had seen their vehicles .

On DATE ROVD officers interviewed PERSON . PERSON submitted that at TIME on DATE the first applicant had come to his house and had told him about the abduction of GPE Tumayev , following which ORG . ORG and CARDINAL other individuals , GPE , ORG and GPE . , had gone in their vehicle in the direction of the neighbouring village of ORG . Whilst they had been driving in GPE , their car had been stopped by a group of armed men wearing masks , who had checked the vehicle 's passengers ' identity papers and had ordered them to return home . At TIME on DATE Sh . T. and his companions had left for ORG . On their way there they asked servicemen at checkpoint no . CARDINAL whether a convoy of CARDINAL ORG vehicles , a silvery GPE and a ORG all - terrain vehicle had passed the checkpoint on that night , and the servicemen at the checkpoint had allegedly confirmed the passage of those vehicles .

On the same date ROVD officers interviewed Mr GPE , residing at CARDINAL FAC . He submitted that at TIME on DATE he had been woken up by the noise of vehicles coming from the street . PERSON had not gone outside . In TIME he had learnt about the abduction of PERSON .

It appears that on DATE , DATE , the ROVD officers also interviewed the first applicant . She stated that at QUANTITY on DATE she had been woken up by knocking on the front door . When she had opened it , CARDINAL masked and armed persons in camouflage uniforms had burst inside and had asked her to give them her son 's passport . The intruders had then locked the first applicant and her relatives up . The first applicant had managed to get outside through the window , whereupon she had seen the second applicant , who had told her that the intruders had taken PERSON away . The first applicant had heard the noise of several vehicles leaving .

On DATE the ROVD extended the time - limit for carrying out the preliminary inquiry into the abduction of PERSON until DATE , owing to the need to carry out unspecified additional investigative actions . It is unclear whether the ORG took any further investigative steps after DATE .

By letter of DATE , the district prosecutor 's office instructed the ROVD to carry out a preliminary inquiry into the applicants ' complaint of the abduction of PERSON by a group of armed men in masks and camouflage uniforms who had been driving CARDINAL white UAZCARDINAL vehicles .

DATE . On DATE the district prosecutor 's office received the materials from the preliminary inquiry and instituted a criminal investigation into the abduction of PERSON under LAW ( aggravated kidnapping ) . The case file was given the number CARDINAL . The decision stated , amongst other things , that from the materials of the ORG preliminary inquiry it followed that at TIME on DATE a group of CARDINAL armed men in camouflage uniforms and masks , driving a VAZ-CARDINAL vehicle , a UAZ-CARDINAL vehicle and an all - terrain UAZ vehicle , had arrested PERSON and had taken him to an unknown destination .

On an unspecified date the district prosecutor 's office compiled a plan of investigative steps for case no . DATE .

On DATE investigator NORP of the district prosecutor 's office carried out an additional crime scene inspection at CARDINAL Titova Street , but found no objects of interest to the investigation .

On DATE investigator NORP interviewed the applicants ' neighbour , PERSON , as a witness . He stated that at TIME on DATE a group of CARDINAL armed persons in masks and camouflage uniforms had burst into the applicants ' house and had abducted PERSON . PERSON had learnt about the particular circumstances of the abduction from the applicants at TIME on DATE and had immediately gone to their house . In the morning on DATE several ROVD officers had come to the applicants ' house , had inspected the crime scene and had interviewed the applicants and a number of witnesses . During the interviews , the officers had established that the intruders had driven a VAZ-CARDINAL vehicle , a UAZ-CARDINAL vehicle and an all - terrain UAZ vehicle , which had been stationed further along FAC . The abductors had not parked the vehicles close to the applicants ' house because it was situated in a dead end and they would have encountered problems turning around and going back .

On DATE the first applicant was granted victim status in the proceedings relating to case no . CARDINAL . The decision granting her such status stated that at TIME on DATE about fifteen armed masked men in camouflage uniforms , who had been driving a VAZ-CARDINAL , a UAZ-CARDINAL and an all - terrain UAZ vehicle , had arrested PERSON and had taken him to an unknown destination .

On DATE first applicant was interviewed . She reiterated her earlier submissions concerning the circumstances of the abduction of her son and stated , amongst other things , that , when she had managed to get outside after having been locked up , she had seen the second applicant , who had told her about the abduction . The first applicant herself had heard the noise of the vehicles leaving . Although she had not seen the vehicles herself , her neighbours had told her that the abductors had come in a PERSON , a UAZ-CARDINAL and all - terrain UAZ vehicles . The first applicant had also stated that the abductors had spoken LANGUAGE .

On DATE the investigators interviewed Mr PERSON , an officer of the ROVD . He stated , amongst other things , that on DATE he had participated in the inspection of the crime scene and the interviewing of the applicants and witnesses . He confirmed the description of the events given to him by the second applicant in her written statement of DATE and also referred to her saying that the abductors ' vehicles had not been parked directly at the applicants ' house but further along the street because the house was at a dead end and that the abductors would have had problems turning around on their way back .

On DATE and DATE investigator NORP inspected checkpoints nos . CARDINAL and CARDINAL located at the exit from and entry to ORG . According to the relevant inspection records , no objects of interest to the investigation were found or seized . Both records stated that the checkpoints ' vehicle passage logbooks had contained no records concerning the registration of vehicles DATE .

On DATE the investigators interviewed the first applicant , who reiterated her earlier submissions concerning the abduction of her son , the abductors ' having asked for his passport and having locked her up with her relatives . She also stated that she had learnt from her neighbours about the vehicles in which the abductors had come .

On DATE the investigators interviewed PERSON . T. as a witness . He stated that at TIME on DATE the applicants had come to his home and had told him about the abduction of GPE . Sh . ORG had spoken to unspecified people and had learnt from them that the abductors had come in a white armoured PERSON vehicle , a white VAZ-CARDINAL and an all - terrain UAZ vehicle . The above - mentioned unspecified people had not been able to tell PERSON . ORG whether the vehicles had had licence plates . Those vehicles had gone first in the direction of ORG but had then turned around and headed in the direction of ORG .

The fourth applicant , who was interviewed as a witness on DATE , stated that at TIME on DATE a group of armed men in camouflage uniforms and masks had burst into the applicants ' house and had taken away PERSON . After their departure the applicants had not been able to find GPE mobile phone .

DATE and DATE various ORG authorities , including the local office of the ORG and the ROVD , replied to the district prosecutor 's office affirming that they had no information on PERSON whereabouts .

On DATE the district prosecutor 's office wrote to the applicants to notify them that the term of the preliminary investigation of case no . CARDINAL had been extended for DATE .

On DATE the investigators interviewed the applicants ' neighbour , PERSON He stated that at TIME on DATE he had been woken up by shots being fired . He had dressed himself , had gone outside and had seen the first applicant , who had told him about the abduction of PERSON . The intruders had come to the applicants ' house on foot , having left their vehicles further along the street . They had also locked the first applicant and her relatives up during the abduction .

DATE and DATE the investigation interviewed some CARDINAL residents of ORG as witnesses . They stated , in almost identical terms , that they had learnt about the abduction of PERSON from their fellow residents of ORG or from the applicants . In particular , they had learnt that at TIME on DATE a group of CARDINAL armed masked men in camouflage uniforms had burst into the applicants ' house and had taken PERSON away . The abductors had spoken NORP and had arrived in several vehicles , including UAZ-CARDINAL , ORG and an allterrain UAZ vehicle . CARDINAL witness also mentioned a PERSON vehicle .

According to an interview record dated DATE , on that date investigator NORP interviewed the fourth applicant as a witness . She confirmed her previous account of the events concerning the abduction of PERSON and submitted that she had mistakenly stated during her previous interview that the abductors had taken PERSON mobile phone . She had subsequently learnt from the second applicant that PERSON had sold the mobile phone DATE before his abduction . She also stated that the video cassettes had not been confiscated .

According to a further interview record dated DATE , on that date investigator NORP interviewed the second applicant as a witness . She confirmed her earlier description of the circumstances of her husband 's abduction and stated that , although she had submitted in her previous interview that the abductors had said that they would seize the video cassettes , they had not taken them in the end . As to her husband 's mobile phone , she stated that he had sold it DATE before his abduction . Their other relatives had not known about it and had stated to the investigation that it had been taken by the abductors .

On DATE the investigation interviewed PERSON . ORG as a witness . He stated that whilst being interviewed on DATE , he had told the investigators that the abductors had gone first in the direction of ORG and subsequently in the direction of ORG . However , PERSON . ORG had learnt about that fact on TIME on DATE from unspecified residents of ORG , who had gathered at the local administration 's office . Sh . T. had not known who had seen the vehicles move in the above - mentioned direction .

On DATE investigator NORP refused to open a criminal case into the seizure of the video cassettes and the mobile phone from the applicants ' house by the abductors of PERSON . The decision stated that at TIME on DATE unidentified armed persons in masks and camouflage uniforms , who had been driving a VAZ-CARDINAL , a UAZ-CARDINAL and an all - terrain UAZ vehicle , had abducted GPE from CARDINAL Titova Street . Referring to the statements obtained from the second and fourth applicants on DATE , the investigator found that there was no evidence that the video cassettes and the mobile phone had ever been stolen . Lastly , it was stated that it was open to the applicants to appeal against the decision to a higher prosecutor or a court under LAW . On the same date investigator D informed the applicants of the decision .

DATE . DATE and DATE investigator NORP interviewed CARDINAL residents of ORG . According to copies of their interview records , which are identically worded , the witnesses had learnt about the abduction of PERSON from their fellow residents . PERSON abductors had been armed and masked and had worn camouflage uniforms . They had driven a ORG , a UAZ-CARDINAL and allterrain UAZ vehicles without registration plates . The related documents included CARDINAL records of interviews with an individual called PERSON . , who was said to reside at the same address . The interview records were dated CARDINAL and DATE and were identical to each other .

It appears that on an unspecified date in DATE the investigation was suspended .

On DATE the deputy head of the Achkhoy - Martanovskiy inter - district investigating department within ORG of GPE reopened the investigation of case no . CARDINAL . The decision to do so had stated that the investigation had been suspended and reopened on numerous occasions , owing to its failure to identify the perpetrators . The latest decision to suspend the investigation had been issued on DATE . An examination of the file had revealed that the decision to suspend the investigation had been premature , because not all relevant investigative steps had been taken .

On the same date investigator NORP wrote to the applicants to notify them about the reopening of the investigation .

The Government submitted that the investigation of case no . CARDINAL was pending .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in PERSON ( GPE ) . On DATE he married a woman with whom he had CARDINAL children , a boy and a girl , born in DATE and DATE respectively .

On DATE the applicant left the household , the children remaining with their mother .

On DATE , the applicant ’s wife introduced a petition for legal separation from the applicant . She sought , inter alia , custody of the children , to which the applicant did not disagree .

On DATE the applicant and his wife were legally separated . The judge ( batlle ) reviewing the petition at first instance ( “ the separation judge ” ) granted custody of the children to their mother and set up a contact schedule governing the applicant ’s contact with his children .

On DATE , during the course of proceedings for the adoption of interim measures , the separation judge granted a motion made by the applicant ’s wife to immediately and provisionally suspend the contact schedule until the production of a psychological report by an impartial expert . In taking this decision , the separation judge relied on : several criminal claims introduced by the applicant ’s wife against the applicant that suggested extremely troubled relations between the parents that were negatively affecting their children ; a psychological report submitted by the applicant ’s wife , according to which the troubled relationship between the parents was damaging the mental stability of their son ; and a brief submitted by the public prosecutor , in which he proposed conducting a psychological test on both children before giving the applicant access to them .

On DATE the separation judge confirmed his previous decision of DATE . The judge relied on a psychological report issued by an impartial expert at his request and on the brief submitted by the public prosecutor in concluding that the contact schedule should remain suspended . The applicant was nonetheless allowed to maintain telephone contact with his children and his wife was warned that she had to facilitate this contact .

On DATE the applicant ’s wife filed a petition for divorce . She also sought custody of the children and that , pending the conclusion of the divorce proceedings , the contact schedule set up by the separation judgment remain suspended . For his part , the applicant agreed with the petition for divorce but also sought custody of the children . He also applied for an interim order restoring the contact schedule set up by the separation judgment in respect of his daughter and establishing a contact schedule under the supervision of a judge and professionals appointed for that purpose in respect of his son .

On DATE the applicant applied to the separation judge to have the contact schedule set up by the separation judgment restored in respect of his daughter and a contact schedule operating under the supervision of a judge and professionals appointed for that purpose established in respect of his son . On DATE the applicant ’s wife opposed the application . On DATE the public prosecutor argued for the restoration of the contact schedule set up by the separation judgment of CARDINAL DATE .

On DATE the judge handling the couple ’s divorce ( “ the divorce judge ” ) dismissed both the applicant ’s request for interim measures and his wife ’s request to have the contact schedule set up by the separation judgment suspended pending the rendition of a judgment of divorce .

On DATE the separation judge ruled on the application of DATE . He restored the contact schedule set up by the separation judgment in respect of the applicant ’s daughter and appointed a psychologist to carry out a psychotherapeutic examination and , if necessary , individualised treatment of both parents and their son with a view to restoring the contact schedule between father and son . In this connection , the judge instructed both the applicant and his wife to deposit MONEY ( ORG ) each within DATE in security for the cost of the examination . Should the applicant or his wife fail to comply , the judge would order that measures be taken to have the decision enforced .

The applicant ’s wife appealed against the decision of DATE before ORG .

On DATE ORG of Justice partially reversed the separation judge ’s decision . It struck down the appointment of the psychologist but upheld the remainder of the decision . The court stated that , the interim measures having expired , the contact schedule set up by the separation judgment should be restored , without prejudice to the possible interim measures regarding parent - child contact that the divorce judge could order pending the rendition of a judgment of divorce .

On DATE the applicant applied to the separation judge for enforcement of the decisions of DATE and DATE . The applicant ’s wife opposed the application and sought to have the enforcement of those decisions suspended until a judgment of divorce had been delivered . The public prosecutor proposed the suspension of the contact schedule until a psychological examination of both parents and their children had been performed .

On DATE the separation judge relied on a psychologist ’s report dated DATE to provisionally suspend the contact schedule set up by the judgment of CARDINAL DATE and appointed a psychologist with a view to its eventual restoration . According to the psychologist ’s report , contact between the applicant and the children was not desirable until comprehensive treatment of the children had been carried out .

The applicant appealed against that decision . He sought to have the decision of DATE reversed and that of DATE applied .

On DATE , while the applicant ’s appeal against the decision of DATE was still pending , the judgment of divorce was issued . The divorce judge granted custody of the children to their mother and set up a contact schedule governing the applicant ’s contact with the children which was to remain suspended pending the decision of a psychologist , who would be appointed by the court upon enforcement of the judgment . The psychologist was to carry out treatment of the children and , if appropriate , the parents , with a view to restoring contact between the children and their father . The judge relied on several psychological reports that advised against immediate contact between son and father and on the son ’s testimony , in which he had expressed his desire not to have contact with his father .

The applicant appealed against the divorce judgment , seeking to have it partially reversed . He accepted custody of his son being awarded to his former wife . However , he sought to have the requirement of psychological treatment removed and an award of custody of his daughter in his favour . In the alternative , he requested that a contact schedule conforming to that of the separation judgment be established in respect of his daughter .

On DATE the High Court of Justice decided upon the appeal submitted by the applicant against the provisional suspension of the contact schedule ordered by the separation judge on DATE . The court stated that since a judgment of divorce had already been delivered , the separation judgment should be set aside and the content of the divorce judgment enforced . Accordingly , ORG expressly deprived the separation judge ’s decision of DATE of any effect .

NORP The applicant then lodged a request for clarification with ORG . He requested from the court to clarify whether the decision it had delivered on DATE in separation proceedings should be enforced having regard to the fact that the divorce judgment of DATE was not yet final nor enforceable .

On DATE the court dismissed the applicant ’s request for clarification . It stated that the applicant ’s request had exceeded the scope of a request for clarification of a judgment , and that the judgment in the applicant ’s appeal had been clear in any event . It considered he was instead requesting a judicial pronouncement as to the procedural effects of his appeal against the divorce judgment that had set up a contact schedule . This notwithstanding , the court went on to state that pending an appeal with suspensive effect , if this was the case , against a divorce judgment , the content of such a judgment would not be enforceable , but added that previous decisions adopted in separation proceedings would not be enforceable either . In fact , ORG stated :

“ ... the suspensive effect of the appeal ... makes it necessary to await the decision of this ORG before applying the measures established by the judgment appealed against , if that judgment is upheld , or those established by that of this ORG , if the [ divorce ] judgment delivered by the [ first - instance ] judge is reversed ” .

The applicant submitted an appeal for the annulment of the proceedings , citing LAW ( the right to court proceedings ) .

On CARDINAL DATE ORG dismissed the applicant ’s appeal . It found that the applicant ’s right to court proceedings had not been infringed by the decision of DATE , as the court had arrived at the only possible conclusion in the light of the rules of procedure in force . The relevant procedural rules forbade the enforcement of decisions being appealed against with suspensive effect and of decisions rendered in separation proceedings when a judgment of divorce had already been rendered in the case .

On DATE the applicant lodged a constitutional appeal ( recurso d’empara ) with ORG , founding the appeal on his right to court proceedings and to a fair hearing . He contended that the impossibility of enforcing the decision of DATE , already final , while an appeal was still pending in the divorce proceedings , had denied him a fair hearing .

On DATE , ORG decided on the applicant ’s appeal against the divorce judgment of DATE . The court dismissed all of the applicant ’s grounds of appeal , instead upholding the judgment in its entirety .

On DATE the ORG declared the applicant ’s constitutional appeal inadmissible as devoid of constitutional content . ORG stated that the decisions of ORG had not been arbitrary and that that court had clearly and logically stated that the legal situation would not be definitely settled until the appeal lodged by the applicant against the judgment of divorce had been decided .

The applicant lodged a final appeal ( recurso de súplica ) with ORG , which was dismissed on DATE in a decision served on DATE .

The relevant provisions of LAW read as follows :

“ Every person shall have the right to a court , to have a ruling founded in the law , and to the due process [ of law ] before an impartial tribunal established by law . ( ... ) ”

“ The right to privacy , honour and reputation shall be guaranteed . All shall be protected by law against unlawful interference in their family and private life . ”


Preliminary objection allowed (out of time)

Mr PERSON lives at GPE ( in the province of GPE ) .

On DATE he sued Mr PERSON , Mr E.Q.Y. and PERSON in the GPE magistrate ’s court ( pretore ) . He sought to have them ordered to move the low wall which enclosed their properties so that the width of the adjoining road should be not QUANTITY along the whole of its length .

The case was listed on DATE . At the first hearing , on DATE , the applicant and Mr E.Q.Y. asked for an adjournment so that the other parties’ pleadings could be studied . The magistrate adjourned the proceedings to CARDINAL DATE .

On DATE Mr Goisis’ lawyer applied for an earlier date . The magistrate refused the application on DATE , on the grounds that there was no urgency and that the time allowed was in accordance with the usual practice .

On DATE , however , he agreed to bring the hearing forward to CARDINAL DATE , on account of a change in the timetable . When DATE came , ORG raised an objection to jurisdiction - joining Mr PERSON and PERSON , who had already made such an objection in their pleadings of CARDINAL DATE - and sought a second adjournment .

On DATE , on an application by Mr E.Q.Y. , the magistrate ordered the joinder of a limited company , ORG . He adjourned the proceedings to CARDINAL May and then , of his own motion on this occasion , to CARDINAL DATE . Other hearings were held on DATE and DATE and CARDINAL DATE .

On the last - mentioned date the magistrate reserved judgment , but on DATE he relisted the case and commissioned an expert opinion .

The proceedings were reopened on DATE , when a deadline of DATE was set for the filing of the expert ’s report , and the proceedings continued on DATE and DATE and DATE .

In a judgment of DATE , which was filed at the registry on DATE , the magistrate declined jurisdiction in favour of ORG . He also set a strict deadline of DATE for resuming the proceedings , and these were resumed on CARDINAL DATE .


The applicant , Mr R , is a GPE national , who was born in DATE and lives in GPE . He is represented before the ORG by PERSON , GPE , GPE .

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

On DATE , the applicant ’s daughter PERSON reported to the police that the applicant had interfered with her children X. and Y. At the same time , the applicant ’s stepson PERSON reported that the applicant had abused him during his childhood .

On DATE , the applicant was arrested . He was charged DATE with CARDINAL offences of indecent assault against his grandson X. and his stepson PERSON On or about CARDINAL DATE , the prosecution submitted a revised indictment containing CARDINAL counts ( CARDINAL concerning J. , DATE concerning X. and CARDINAL concerning Y. ) .

On DATE , the judge ordered that the indictment be severed in relation to counts CARDINAL ( “ the second trial ” ) and counts CARDINAL ( “ the first trial ” ) .

On DATE , the first trial commenced . On DATE , the jury returned a unanimous not guilty verdict in relation to counts CARDINAL and CARDINAL but were unable even to reach a majority verdict on counts CARDINAL concerning the applicant ’s grandson X.

On DATE , the prosecution formally offered no evidence on counts CARDINAL - CARDINAL and the judge directed the jury to acquit the applicant . The applicant made an application for reimbursement of his costs pursuant to section CARDINAL(CARDINAL ) of the Prosecution of Offences Act DATE . The judge ruled that the matter of costs should be dealt with at the conclusion of the second trial .

On DATE , the second trial began before the same judge . The jury returned unanimous not guilty verdicts on CARDINAL counts .

On DATE , the defence made an application for reimbursement of costs for both trials ( altogether some GBP CARDINAL ) . In his decision DATE , the judge rejected the application for costs , stating as follows :

“ I have a discretion , and CARDINAL of the matters that I have to bear in mind is this : has this defendant contributed to the prosecution that was instigated against him ? I say this : so far as the grandson is concerned , the defendant took it upon himself to instruct the grandson in certain sexual matters , which in my view were no concern of his at all but were entirely a matter for the mother .

So far as the son is concerned we have heard in the course of the trial certain sexual matters that the defendant himself said took place between he and his son DATE using language as neutrally as possible , episodes that the defendant described I consider to be bizarre DATE and I have in mind the sexual contact that the defendant took place between himself and his son .

Looking at this matter , therefore in the round , I am in no doubt that the defendant himself has contributed by his own behaviour and his own conduct to the prosecution that was instigated against him .

Accordingly the applications for costs are refused . ”

Counsel for the applicant sought to correct the judge concerning the “ sexual training ” that the applicant had allegedly provided to his grandson ( DATE at the time ) , asserting that the evidence was that the applicant had sought to discourage his grandson from playing with his genitals . The judge responded :

“ But nevertheless , it is my view that the defendant ’s behaviour was entirely inappropriate , if there was an , shall we say correction or help needed , it was no matter for him DATE it was a matter for the child ’s mother . ”

On DATE , an application was made to ORG for reconsideration of the award of costs . A different judge held that he had no power to interfere with the decision and there was no power for ORG to review the matter either .

Section CARDINAL ( CARDINAL ) of LAW DATE provides insofar as relevant :

“ Where-

( b ) any person is tried on indictment and acquitted on any count in the indictment ;

ORG may make a defendant ’s costs order in favour of the accused . ”

On DATE , Lord PERSON gave a Practice Direction of ORG ) concerning costs in criminal proceedings :

“ In ORG .

Where a person ... has been acquitted on any count in the indictment , the court may make a defendant ’s costs order in his favour . Such an order should usually be made ... unless there are positive reasons for not doing so . Examples of such reasons are : ( a ) the defendant ’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case is stronger than it is .... ” ( Practice Direction ( Crime : Costs ) [ DATE ] CARDINAL WLR CARDINAL ) .

The right of appeal to ORG ) is against conviction or sentence pursuant to section CARDINAL ( CARDINAL ) of LAW DATE . As the applicant was acquitted , he had no such right of appeal .

Section CARDINAL(CARDINAL ) of LAW DATE provides that ORG has the same powers of judicial review over ORG as over an inferior court save in respect of ORG ’s

“ jurisdiction in matters relating to trial on indictment ” .

In the case of Re Sampson [ DATE ] CARDINAL WLR CARDINAL , a case concerning a legal aid contribution order at the end of a trial on indictment , Lord Bridge of GPE said :

“ ... certain orders made at the conclusion of a trial on indictment are excluded from judicial review as ‘ relating to trial on indictment’ not because they affect the conduct of the trial , but rather because they are themselves an integral part of the trial process . ”

In that case , the judge ’s order could not , therefore , be judicially reviewed . In the case of ORG and Others ( [ DATE ] CARDINAL WLR CARDINAL ) , ORG rejected a suggestion that the above proposition in Re PERSON was wrong .


Violation of Art. 6-1+6-3-d;Not necessary to examine Art. 6-2;Damage - financial award;Costs and expenses - claim dismissed

Mr PERSON is a NORP citizen who was born in GPE and lives there DATE after having spent some time in metropolitan GPE .

ORG At TIME on DATE a girl of CARDINAL , PERSON , and a friend of the same age , Miss PERSON , were in a GPE underground station when CARDINAL coloured men accosted them . CARDINAL of the men snatched a gold chain and crucifix which Miss PERSON was wearing round her neck and ran towards the exit .

ORG The CARDINAL girls immediately went to the central police station of the CARDINALth District , and at TIME , as a result , Mr LOC was arrested by Police Constable PERSON , accompanied by the QUANTITY girls , in a building by the exit from the underground . The victim and her friend immediately said they recognised him . A search of the applicant and subsequently of the premises yielded nothing , however .

ORG The applicant was taken to the central police station of the LOC and questioned at TIME by Chief Inspector PERSON , an officier de police judiciaire , about his identity and means of subsistence and was then taken into police custody .

ORG From TIME DATE , Inspector PERSON , who was likewise an officier de police judiciaire , took a statement from him about the facts of the case . Mr ORG said that at TIME he had been set upon by CARDINAL people who had chased him into the underground and stolen a cigarette lighter and MONEY from him . He surmised that CARDINAL of them could have committed the robbery as the QUANTITY girls went by . He said that he had run away because he had been put in fear by his QUANTITY attackers .

Subsequently ( the exact time is not given in the police report ) , Inspector PERSON interviewed both girls separately , each in the presence of her mother . They confirmed that the person who had been arrested was indeed the person who had committed the offence . The victim lodged a complaint alleging robbery .

Mr ORG was never formally confronted with Miss PERSON and Miss PERSON .

ORG in charge of the LOC police force forwarded the file to the public prosecutor ’s office .

ORG The GPE public prosecutor considered that a judicial investigation was unnecessary and accordingly used the direct committal procedure ( Articles CARDINAL to CARDINAL - CARDINAL of the Code of Criminal Procedure , as amended by ORG .

ORG On DATE Mr ORG appeared before ORG of ORG , which made an interlocutory order for a psychiatric report and a social inquiry report and remanded him in custody .

ORG On DATE the court passed a sentence of CARDINAL PERSON imprisonment on him . The judgment contained the following reasons :

" The facts ( robbery by snatching a neckchain and crucifix from the victim ) [ are established ] , notwithstanding the defendant ’s denials , by the evidence obtained , in particular by means of the statements of Police Constable PERSON , who gave evidence on oath . The defendant must be convicted and punished very severely , having regard to the nature of the offence committed with the use of violence .

Moreover , in a judgment dated DATE LOC ... was sentenced to CARDINAL years’ imprisonment by ORG for robbery and consequently is legally a reoffender LAW CARDINAL of LAW ;

ORG Although they had been duly summoned by the prosecution , the CARDINAL girls did not attend the trial and gave no reasons for their failure to do so . The court did not take any steps to have them brought before it under LAW ( see paragraph CARDINAL below ) .

The accused , whose defence was in the hands of CARDINAL trainee barristers who had successively been assigned to him by the court , had not submitted any pleadings suggesting that any witnesses should be examined or asking for any further inquiries to be made into the facts .

Mr LOC appealed , claiming that he was the victim of mistaken identity . Relying on Article CARDINAL , second paragraph , of LAW ( see paragraph CARDINAL below ) and Article CARDINAL para . CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) of the LAW , he also expressly sought to have the victim , the person who was with her and CARDINAL witnesses on his behalf called ; he asserted that he had himself urged the concierge and a resident in the building where he had taken refuge to alert the police , as he feared for his safety if his pursuers caught up with him .

ORG On DATE ORG ( CARDINALth Division ) upheld the whole of the judgment of the court below after refusing the application for examination of witnesses in the following terms :

" After the defendant ’s arrest , Miss PERSON formally stated that he was the man who had snatched the chain from her . Miss PERSON likewise identified LOC as being responsible for the snatch theft from Miss PERSON .

These statements satisfy the ORG that the defendant was guilty of the offences charged and make the requested examination of witnesses unnecessary . "

Mr LOC appealed on points of law , alleging a violation of Article CARDINAL para . CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) of the Convention and LAW .

ORG ) dismissed the appeal in a judgment of CARDINAL DATE on the following grounds :

" It appears from the impugned judgment of ORG that ORG , who was prosecuted for robbery and claimed to be the victim of mistaken identity , asked ORG to order an examination of the victim and of witnesses , and that the court below , after studying the statements taken during the investigation from PERSON , the victim , and from the witness PERSON , refused this application on the grounds that those statements satisfied it that the defendant was guilty of the offences charged and made the requested examination of witnesses unnecessary .

In so holding , ORG , far from violating the provisions of ORG , gave its decision a legal basis .

The ground of appeal , which does no more than attempt to call in question the appeal court ’s final assessment of all the evidence adduced at the trial and of whether it was appropriate to order further inquiries into the facts , can not be accepted .

Mr Delta was released on DATE , after spending DATE and DATE in prison .

ORG In LANGUAGE law the rules governing the examination of witnesses by criminal courts differ according to whether the court is hearing the case at first instance or on appeal .

ORG The main provisions of LAW applicable in ORG are the following :

" Anyone called to be heard as a witness shall be required to appear , to take the oath and to give evidence . "

" A witness who fails to appear or who refuses either to take the oath or to give evidence may , on an application by the public prosecutor , be punished by the court as provided for in LAW . "

" If a witness fails to appear and has not put forward any excuse recognised as being valid and legitimate , the court may , on an application by the public prosecutor or of its own motion , order the witness to be brought before it immediately by the police in order to be examined or adjourn the case .

" Before proceeding to examine the witnesses , the presiding judge shall question the accused and take statements from him . The public prosecutor and , through the presiding judge , the civil party seeking damages and the defence may put questions to him . "

" The witnesses shall subsequently give their evidence in turn , either as to the offences with which the accused is charged or as to his personality and morals .

The witnesses called by the prosecuting parties shall be heard first , subject to the presiding judge ’s discretion to determine himself the order in which the witnesses shall be heard .

With the court ’s leave , evidence may also be given by persons suggested by the parties and who are present at the beginning of the trial but have not been formally summoned . "

" Witnesses shall give evidence orally .

Exceptionally , however , they may , with the leave of the presiding judge , make use of documents . "

" After each witness has testified , the presiding judge shall put to him any questions he deems necessary and , where appropriate , those that are suggested to him by the parties .

A witness may withdraw after testifying , unless the presiding judge decides otherwise .

The public prosecutor , the civil party seeking damages and the accused may request , and the presiding judge may always order , that a witness should temporarily withdraw from the hearing - room after giving evidence in order to be brought back and examined if necessary after other witnesses have given evidence , with or without a confrontation . "

" During the trial the presiding judge shall , if necessary , have the exhibits shown to the accused or witnesses again and shall hear their comments . "

ORG The procedure laid down by law for ORG also applies in principle to ORG but subject to an important proviso in the second paragraph of LAW , which reads :

" Witnesses shall be heard only if the court [ of appeal ] so orders . "

ORG This provision has given rise to a line of decisions by ORG , which appears to have departed from these precedents in DATE , that is to say after the events in the instant case .

ORG decided very early on that appeal courts were not required to hear afresh witnesses who had already given evidence at the original trial , even where an application had been made for them to be re - examined ; it did , however , lay on them the obligation to hear and determine any applications made and to give reasons for any refusal ( DATE and DATE , ORG . ) nos . CARDINAL and CARDINAL ; DATE , GPE périodique PERSON ( ORG ) DATE , I , p. CARDINAL ; DATE , LAW , I , p. CARDINAL ; DATE , ORG , sommaires , p. CARDINAL ) .

Where they considered it useful or necessary , appeal courts could summon witnesses who had not testified in ORG ; but if they refused to call such witnesses , it was sufficient by way of reasons if they stated in their judgment that there was no need for further inquiries into the facts ( DATE , ORG . no . CARDINAL ; CARDINAL DATE , ORG . no . CARDINAL ; CARDINAL DATE , ORG . no . CARDINAL , p. CARDINAL ) .

ORG approach seems to have changed markedly in its GPE judgment of CARDINAL DATE :

" By DATE . CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) of LAW , ‘ everyone charged with a criminal offence has the [ right ] to examine or have examined witnesses against him’ . It follows that , unless it is impossible for reasons which they must specify , courts of appeal are bound , on a properly made application , to order the examination in the presence of the parties of prosecution witnesses who have not been confronted with the defendant at any stage of the proceedings .

PERSON , who was charged with drug - trafficking and a customs offence , made an application to ORG for an examination inter partes of the witnesses PERSON and PERSON , whom he had had summoned and whose statements provided , he claimed , the sole basis for the finding of guilt . He said that he had not been able to have them examined at any stage of the proceedings .

In support of its refusal of this application , and although it based its finding of the defendant ’s guilt solely on the statements of the aforementioned witnesses , the court below noted merely that the witnesses whose examination had been sought had been interviewed during the police inquiries and the judicial investigation and that the defendant had been informed of the charges arising from their statements .

But while a refusal to hear evidence from a prosecution witness does not , as such , infringe the aforementioned provisions of the LAW , since the court may take into account any special difficulties entailed by an inter partes examination of a given witness , for example the risk of intimidation , pressure or reprisals , such a refusal must nevertheless comply with the rights of the defence and the court must explain why a confrontation is impossible .

This was not so in the instant case , and the judgment must accordingly be set aside ... " ( ORG . DATE , no . CARDINAL , pp . CARDINAL - CARDINAL )

This approach was confirmed in a judgment of CARDINAL DATE ( case of ORG . DATE , no . CARDINAL , pp . CARDINAL - CARDINAL ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants are Mr Þorlákur Örn Bergsson ( born in DATE ) , Mr Guðjón Bergsson ( DATE ) , PERSON ( DATE ) of Hverhamri , Mr ORG ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) , Mr PERSON ( DATE ) , Mr PERSON ( DATE ) and Mr PERSON ( DATE ) . They are the respective owners of estates described as Hof , Hof I and II and of LOC , located in GPE , and of Hverhamri in GPE . They claim to be the owners of an estate named PERSON , which is the subject of their application under LAW .

A further applicant is ORG ehf . ( Ltd. ) , a private limited - liability company , incorporated under the laws of GPE , registered at GPE , in GPE , and whose executive director is Mr PERSON ( DATE ) , ORG . The applicant company 's complaints under the ORG relate to its claim to be the owner of CARDINAL of an estate named PERSON .

The applicants are represented by Mr PERSON and Mr PERSON , who are both lawyers practising in PERSON .

On DATE a new LAW ( no . CARDINAL/CARDINAL ) on public lands and the determination of the boundaries of private land , public land and upland ranges ( hereinafter referred to as the “ LAW ” ) , entered into force . Prior to this all land that had not been subject to private ownership was regarded as res nullius . The purpose of LAW was to change this . Thus , its section CARDINAL provided that ORG was the sole owner of any land which was not the private property of any natural or legal person . Moreover , ORG ( PERSON ) was established ( section CARDINAL ) , vested with powers to determine the boundaries between land that was regarded as the private property of a natural or legal person and land that was not , and was therefore the property of the ORG . In the latter event the ORG would also rule on whether a natural or legal person had any rights of use in respect of the land in question .

On DATE ORG announced its intention to examine a certain area within the commune of GPE . Subsequently the Minister of Finance published the claims of ORG to all land that ORG regarded as not being private property owned by any natural or legal person .

In the proceedings before ORG , the applicants claimed that they were the legal owners of the disputed land , arguing :

( i ) that the disputed land was their property and was protected by LAW ;

( ii ) that the disputed land had been the private property of individuals since the settlement of GPE in DATE and therefore the conditions of section QUANTITY of the CARDINAL Act had not been fulfilled ;

( iii ) that their ownership , or the ownership of former owners , had never been challenged by ORG or others . On the contrary , before the entry into force of LAW , ORG had on several occasions treated the applicants and former owners of the disputed land as being the private owners of the land in question ; in particular they had paid taxes in respect of their properties and they held written title deeds for the properties which had been acknowledged by ORG ;

( iv ) that they and the former owners of the land had for DATE made use of the disputed land by all feasible means at any given time , e.g. herding sheep out on to the disputed land to graze .

In the alternative , the applicants relied on adverse possession as a means of establishing their ownership .

In the further alternative the applicants called for a declaratory decision to the effect that they owned the grazing rights to the disputed land .

On DATE ORG found in favour of the applicants and held that the boundaries of public lands and private lands in the region should follow the edge of the glacier Vatnajökull in its state on the entry into force of LAW and that all land above this limit should be considered as public land and all land below as private land .

Subsequently , ORG , appealed against ORG decision to ORG ) , claiming that the disputed land should be regarded as ORG property in accordance with LAW .

In a judgment of DATE , ORG upheld ORG decision . Although it did not find it established that the applicants held direct title to the land at issue , ORG was satisfied that they had fulfilled the conditions for adverse possession in respect of the land ( section CARDINAL of the Act No . CARDINAL on Adverse Possession ) .

The NORP State appealed against ORG judgment to ORG , which by a judgment of CARDINAL DATE overturned ORG finding that the applicants had acquired ownership of the land in question by way of adverse possession , but held that they possessed the right to customary use of grazing land in the disputed areas ( section CARDINAL of the CARDINAL Act ) .

In its examination of the case , ORG relied on its earlier case - law expounded in a judgment of DATE ( case No . CARDINAL ) . According to that judgment , it was not in the power of land owners to use a boundary deed to extend their land or other rights ; a boundary deed was therefore not in itself sufficient but had to be supported by other evidence in order for ownership to be established .

Thus , in relation to CARDINAL group of respondents before it ( other than the applicants ) , ORG found that their title to a specific area of disputed land , in addition to being supported by a boundary deed from DATE , was corroborated by certain public acts . This included a deed of conveyance , issued by owners to the Minister for Education in DATE in connection with the creation of a national park and the determination of boundaries for division of land by an arbitration tribunal in DATE , according to which a large part of the disputed land was allocated to the owners ( and where the ORG , as a party , had not made objections to title ) . It also comprised a declaration of DATE by ORG in connection with the establishment of a new farm in the area . ORG therefore upheld ORG finding that the respondents in question should be exempted from the ORG 's claim in respect of the relevant land .

As regards the first CARDINAL applicants ' claim regarding the farm PERSON , ORG extensively considered a number of sources , notably accounts in the Book of Settlements ( Landnámabók - old NORP manuscript describing in detail the settlement of GPE by the NORP in DATE A.D ) , chartularies of FAC at Hof from DATE and CARDINAL ; entries made in DATE , DATE and DATE in episcopal visitations books ; ORG of a Mr FAC of DATE , ORG á Íslandi by a Mr PERSON , published in DATE ; the book of records of the land assessors in the ORG counties dating from DATE ; an official declaration of title by the owners of GPE dated DATE , the protest by the owners of the farm Fell in PERSON and the ensuing settlement of DATE between the owners of Hof and Fell respectively .

ORG also took note of the records of ORG in GPE from DATE stating the following about Hof :

“ The farm owns grazing land [ Upprekstrarland ] : ORG , which is far away , rising up from central PERSON , surrounded by glacier . ... “ The farm owns driftage shores : The shores of GPE and GPE , and in addition the shore of Fjall below Breiðamerkursandur . ”

In addition , ORG had regard to a boundary deed of DATE and reasoned as follows :

“ A boundary deed was then prepared for Hof on DATE , which stated , inter alia , the following : ' Furthermore the farm owns all of FAC and land on LOC , in the west the boundaries are as follows : The top of the peak PERSON on ORG to bear on the cleft in GPE on the same mountain . ' It also says : ' The farm owns these shores : ... The shore of PERSON between these boundaries : In the west : The top of the peak PERSON on NORP shall bear on the cleft in GPE on the said mountain . In the east : The higher mound of GPE shall bear east on ORG which is foremost to the east on GPE and the land boundaries shall be the same . ' This boundary deed was endorsed as regards ' the shore and boundary between ORG and the land of PERSON ' by FAC , who at that time appears to have been the head of the NORP of FAC , together with CARDINAL men who are said to be ' the owners of CARDINAL of PERSON ' and by the said PERSON ' as regards the eastern boundary between the lands of PERSON and Breiðamörk . '

In the case there are no further earlier or more recent officially registered sources of evidence concerning title to this land other than the last - mentioned boundary deed for GPE dating from DATE . The value of such sources as evidence is discussed earlier in this judgment as regards the boundaries of private land with other land , and the same must apply to the value of boundary deeds as evidence of title to land . In assessing whether any other factors have emerged which could support the claim of the respondents in this part of the case to PERSON , it should be noted that in their pleadings before the court it was maintained that the church at Hof was from the beginning a farm - owned church and therefore subject to the custodianship of the landowners , but that its possessions accrued to the farm no later than DATE , when the church as such became the possession of the congregation . As this was not contested by the appellant , equal account must be taken of the cited sources concerning the ownership rights of ORG and the owners of the farm in the land of PERSON .

When the sources concerning the ownership rights to this land are considered it can be assumed from the cited chartularies for ORG from DATE and DATE that it came into the possession of the farm of PERSON during this period and this may have occurred at about the time that the farm was abandoned , as surmised pursuant to the above . It can only be assumed from the phrasing of the earlier chartulary that direct ownership of the farm was involved . After the writing of DATE , however , DATE passed until the next available source of evidence , PERSON , was written . It includes no reference to the ownership by the church at Hof of the farm of PERSON , but it is specified that the church owned driftage and other easements from ancient times . The cited phrasing in the visitation book of Bishop PERSON dating from DATE can only be understood to mean that it is discussing only the easements of PERSON in the land of PERSON , which , more specifically , included the littoral rights , together with grazing rights in PERSON [ ORG ] and Breiðamerkurfjall . The CARDINAL later visitations , dating from DATE and DATE , cite the earliest visitation record to the effect that PERSON ' owns ' ORG , in addition to littoral rights . In light of the fact that these are based on the substance of the earliest visitation record , which in this context referred to easements , it can not be maintained that the later sources provide independent support for the direct ownership rights of ORG . In this context it must also be kept in mind that the rights are said to concern CARDINAL delimited parts of the land together with the shore , not the land as a whole , as would have been most logical if the farm as such had been considered the property of the church . The same applies to the discussion of the abandoned farm of PERSON in ORG of DATE , although it says that ' its entire property ' accrued to the church at GPE , but that of this property only GPE remained , surrounded by glacier and of little use , together with ORG and PERSON [ ORG and shore ] . ORG also says of the farm Hof , that to it was attributed ' ORG in the land of LOC ' , together with PERSON [ the PERSON shore ] , but from the context it can only be surmised that ' fjall ' [ mountain ] in that context referred to the mountain FAC . ORG dating from DATE referred to the fact that ORG dating from DATE referred to PERSON as ' an abandoned smallholding ' of Hof . This account can hardly have any significant value as evidence when it is kept in mind that it is clear from ORG of DATE that houses and cultivated land at ORG had at that time already disappeared and that use of other land was virtually non - existent , and from the available information it can only be surmised that the glacier advanced still further after that down to DATE . When the owners of Hof publicly declared their rights of title in DATE , their rights to the land of PERSON were entered among easements , but their agreement with the owners of Fell in DATE said that the former should ' enjoy the full use ' of that land ' as far west as they trust themselves to stake a claim ' . These last cited words are not consistent with the assumption that the discussion concerns the use of land which is subject to the direct ownership of the owners of Hof . Finally , it should be noted that in DATE , the boundary deed for PERSON was endorsed for the owners of Hof as regards the approval of littoral boundaries , but not the boundaries of GPE and PERSON , and that a real estate assessment in DATE refers only to the grazing rights [ GPE on GPE and the littoral rights to PERSON , as in the land assessment of CARDINAL .

Even though it can be regarded as adequately demonstrated that the farm PERSON came into the possession of the church at Hof during the period between PERSON and DATE , there is in general principle no firm evidence of anything other than easements belonging to the church or the owners of GPE after that time until a boundary deed was prepared for Hof in DATE . The possibility can not be excluded that in the period from CARDINAL the church may have divested itself of the farm PERSON while retaining littoral and grazing rights . Whatever the case may be , sources dating from CARDINAL down to DATE can only be understood to mean that the owners of Hof themselves , for DATE , considered themselves only to possess rights of use to the land of PERSON and ceased to assume direct ownership of the land and thereby relinquished it , if indeed the ownership was not disposed of in another manner . For this reason , the boundary deed of DATE can not be said to provide sound evidence of the direct title of the respondents in this part of the case to the land in question . There is no evidence to support the contention that these respondents had any possession of the land of PERSON which could result in their direct title through adverse possession . Since no other parties have made any claim to such rights to the land , and nothing in the documents of the case gives any indication that any such claim could be made by anyone , it must be assumed that pursuant to LAW . CARDINAL/CARDINAL the land is public land subject , however , to the customary grazing and littoral use by the respondents of the land in accordance with LAW . As regards the boundaries of the public land , this is laid down in the adjudication , but in light of the limited rights of use declared in favour of the respondents , there is no reason to specify its boundary with the public land on the glacier . ”

As regards the tenth applicant 's claim regarding CARDINAL of the farm of NORP , ORG again extensively assessed the evidence before it , including a number of items , notably the PERSON saga ( NORP epic from DATE ) containing the earliest accounts of habitation at NORP , ORG , chartularies of the church of PERSON at GPE from GPE and DATE . ORG further observed that CARDINAL of the farm had apparently accrued to the King , according to a judgment of the court of law , Lögrétta , in DATE . Regard was also had to ORG of a Mr FAC of DATE , ORG of DATE , ORG of a Mr PERSON of DATE , records of the land assessors in the counties of ORG dating from DATE ; the above - mentioned public declaration made by owners of GPE on DATE and the subsequent settlement of DATE , a deed of conveyance of CARDINAL and another such deed of DATE issued on behalf of the owners of “ PERSON and lands by ORG ( who held the combined offices of Country and GPE [ Land- og bæjarfógeti ] ) ; and a deed of conveyance of CARDINAL DATE .

ORG went on :

“ Included in the case documents is a boundary record for the farm Fell , prepared by the aforementioned PERSON on DATE , where boundaries and shore boundaries in the west were described as being located on a further specified parish boundary . These are the same boundaries as those referred to as the eastern boundary of the farm PERSON . This boundary record was not endorsed as regards the boundaries with LOC . Also included in the case documents is a ' boundary record between Fell in the NORP of GPE and NORP in GPE , which is signed on CARDINAL DATE by the heads of both parishes , PERSON and PERSON . In this record the boundary of land and shore between Fell and PERSON is once again described in the same manner , and it is stated that the boundaries of the CARDINAL parishes are also the same . This document is not endorsed by any other parties .

A deed of conveyance was issued on DATE for CARDINAL of Breiðármörk and CARDINAL of the Breiðármörk shore , which includes the following passage : ' In that I , the undersigned , former commissioner ORG , have since DATE , without objection , collected rent from the land of CARDINAL of NORP in GPE in GPE , as it was in ancient times , as well as rent from CARDINAL of the Breiðamörk shore , which is CARDINAL [ i.e. CARDINAL ] QUANTITY in length DATE from the tenant , PERSON at ORG , an agreement has been reached between myself and him DATE that he should come into possession of this land , together with CARDINAL of the shore of LOC with driftage rights , for the sum of DATE hundred – krónur . ' The persons who appear to have derived their rights from PERSON issued on DATE a deed of conveyance for the same property to the defendant ORG ehf .

According to the documents of the case , the cited boundary records dating from DATE were officially registered , as well as the deeds of conveyance dating DATE , on which the defendant PERSON ehf . bases its rights . From the ruling of ORG it can be inferred that the cited deed of conveyance to PERSON for the shares of his cousins in the PERSON shore was officially registered with a proviso relating to title rights to the sold property . It can also be inferred that the descendants of PERSON [ Runólfsson ] and the parties deriving their rights from him officially registered certain declarations concerning rights to the NORP shore , and to some extent the land of LOC , in DATE , but these documents were variously registered with a proviso concerning defects in rights of title or without such provisos . Evidence of this is not available in the case in other respects . The respondents in this part of the case , other than ORG ehf . , as recounted earlier , apparently derive their rights from PERSON . This has not been specifically contested by the appellant , even though there is no evidence in the case in support of this contention . The respondents have also submitted documents confirming that they are registered as the owners of the NORP shore in ORG .

Looking at the evidence concerning the title to the land of Breiðármörk it is clear that the farm was for a long time a possession of the ORG and that it was administered by the PERSON at PERSON until it was sold in DATE . On that sale , a part of the littoral rights relating to major driftage was separated from the land and retained for ORG at PERSON , while minor driftage remained attached to the farm . Before the farm was abandoned in DATE , half of it had become a possession of the king , while the other CARDINAL was referred to as a farmers ' holding . The share of the king is believed to have been sold in DATE , but there is no record of who might have come into possession of it . From DATE there are records that a CARDINAL share of ORG was believed to be attached to GPE , and it appears to have been surmised that his part was previously the king 's possession . A public declaration of title to GPE dating from DATE , however , referred to the right to LOC only in the enumeration of easements . In a settlement made in DATE for the resolution of a dispute resulting from this declaration of title , the boundaries between the land of GPE and the farm Fell in PERSON were determined . Since the time of the conclusion of this settlement there is no evidence that the owners of Hof claimed title to the land or interests in the land . No evidence has been submitted in the case to indicate that the owners of Fell felt that by this settlement they came into possession of a part of LOC from the owners of GPE , and indeed later sources do not indicate that the former conducted themselves as if they were the owners of the land in part or in full . There is therefore no further evidence in the case concerning the fate of the CARDINAL of the land which purportedly belonged to the king until DATE .

In DATE , the owners of Fell , the Reverend ORG and PERSON purchased the major driftage rights from the Church at PERSON . It must be assumed that PERSON , by contract with the descendants of ORG and PERSON in DATE , came into possession of the major driftage rights , but there is no evidence that he thereby acquired any other rights to the land of LOC , as it is clear from the letter from PERSON of DATE that the attempts of PERSON to purchase such rights DATE had proved fruitless . The respondents in this part of the case , other than ORG ehf . , derive their rights from PERSON . Accordingly , they can not claim the rights to the land of LOC other than a part of the NORP shore , and it appears to be undisputed in the case that this corresponds to a CARDINAL share .

It then remains to be resolved what became of the rights to the half of Breiðármörk which apparently continued to be farmer - owned after the other half accrued to the king . Following the sale of the major driftage rights from the Church at PERSON , where ORG , Country and GPE , had represented the seller , he recounted in the letter cited above to the Reverend ORG of DATE that he could not provide ' the least information ' who could have owned CARDINAL of the land against the king , then or later . As recounted earlier , it is specified in the land assessment of DATE that this CARDINAL was owned by PERSON . From the cited letter from PERSON of DATE , it does not appear to have been regarded as certain that ORG did not subsequently dispose of this share , but , on the other hand , it can be inferred from the letter that his descendants still believed themselves to own rights to the land , which were referred to as an easement . There is no further information as to who these descendants were . PERSON , who issued the cited deed of conveyance to the owners of PERSON on DATE for CARDINAL of the land of GPE and half of the shore of GPE , apparently was PERSON son in law . There is no evidence available that PERSON owned any rights to the sold property , nor that his wife , who was not involved in the contract , could in this respect have had any precedence over other descendants of PERSON . Accordingly , this proof of title , to which the defendant PERSON ehf . traces its rights , is entirely untenable . For all of these reasons it can not be seen that anyone can claim direct title to CARDINAL of the Breiðármörk , and there is no evidence to support the contention that the owners of ORG must be regarded as having had the control of it which could lead to such ownership by adverse possession . The appellant , on the other hand , has not protested that the defendant , PERSON ehf . , and the parties from whom PERSON ehf . derives its right , have had the use of CARDINAL of the Breiðamörk shoreline in addition to using the land of Breiðármörk for grazing for the time required to acquire ownership of these rights by adverse possession . It must therefore be assumed that the defendant owns such rights of use to the land , as there is no evidence that any other parties could have earned such rights .

According to the above , and with reference to LAW No . CARDINAL/CARDINAL , the land of GPE is public land , but subject to the rights of the defendant NORP ehf . to its customary use of the land as grazing land and subject to the littoral rights of all the respondents , as provided in LAW . As regards the delimitation of the public land , this is laid down in the adjudication , but in light of the limited rights of use declared for the respondents , there is no reason to specify its boundary with the public land on the glacier . ”

LAW no . DATE , DATE , as amended on DATE , stated :

“ The right of private ownership shall be inviolate . No one may be obliged to surrender his property unless required by public interests . Such a measure shall be provided for by law , and full compensation shall be paid .

The right of foreign parties to own real property interests or shares in business enterprises in GPE may be limited by law . ”

The DATE Act contained the following provisions that were relevant :

Section CARDINAL

“ In this legislation the follow definitions apply :

Private land : An area of land subject to the right of private ownership , to which the owner has all regular property rights within the limits imposed by the law at any time .

Public land : An area of land outside private lands , even though private individuals or legal persons may enjoy limited rights of ownership there .

Upland range : An area of land in an uninhabited area , which has generally been used as DATE pasture for livestock . ”

Section CARDINAL

“ In public lands , ORG is the owner of the land and of all entitlements and natural harvests from it that are not governed by property law .

The Prime Minister is responsible for matters involving public lands which are not assigned to other ministries by law . ”

Section CARDINAL

“ Those who have utilised land within a public land area as pasture for livestock or had other traditional use of it which is attached to the ownership of upland ranges shall retain such rights in accordance with the provisions of law in that respect . ”

The same applies to other rights which are established . ”

Section CARDINAL

“ The role of the Wasteland Commission shall be :

a. To examine and rule on which land constitutes public lands , and where their boundaries with private lands lie .

b. To rule on the boundaries of any part of public land which is utilised as an upland range .

c. To rule on property rights within public lands . ”

The DATE Act ( which replaced the LAW on land boundaries etc . no . CARDINAL/CARDINAL ) , as amended by LAW no . CARDINAL/CARDINAL , provided in relevant parts :

Section CARDINAL

“ The owner or administrator of a land shall prepare a clear record of boundaries to the best of his knowledge . The record shall specify easements and benefits on the land , as well as any attached easements and benefits in the land of others . This boundary description shall be presented to anyone owning or administering land adjacent to his land , as well as parties to the easements and benefits pursuant to the above . They shall enter their consent on the boundary record unless they consider it to be wrong , in which case it shall be stated if any of them refuses to grant his consent . Thereafter the boundary record shall be delivered to the head of the parish together with a registration and stamp tax . The head of the parish shall ascertain whether all the parties have entered their consent and note this in the record . The head of the parish shall promptly send the record to the Commissioner for official registration .

If a boundary record has been lawfully prepared and registered prior to the entry into force of this LAW , the record need not be prepared again , provided that the boundaries then established were clear and undisputed . ”

Section CARDINAL

“ Immediately on the entry into force of this LAW , [ Commissioners ] , in their respective districts , shall ascertain whether the boundary records there have been officially registered . If it is revealed that boundary records have not been officially registered , or the consent of any parties is missing on an officially recorded boundary record , the [ Commissioner ] shall invite the land owner , or his administrator , to prepare a boundary record within a specified time and have it officially registered pursuant to this LAW .

Commissioners and heads of parishes shall monitor compliance with the provisions of this LAW concerning the establishment of boundaries , boundary records and maintenance of boundaries . If a parish head becomes aware of any discrepancies in this regard he shall notify the Commissioner .

When a Commissioner receives notification pursuant to LAW , he shall summon the person or persons involved and instruct them to make amends . If it is revealed that there is a dispute concerning boundaries the Commissioner shall seek to achieve a reconciliation of the dispute . If the lands subject to uncertainty as regards boundaries are located on the borders of ORG districts , or the boundaries lie through CARDINAL district , the Minister of ORG shall decide which of them shall undertake the task . ”