Violation of Art. 6-1;Just satisfaction reserved

The applicant , a NORP national born in DATE , had taken up practice as an ear , nose and throat specialist in DATE . In DATE , he opened at Bad Homburg ( Hessen ) in GPE a clinic of which he was the owner ; he was the only medical practitioner working at the clinic which he ran and managed himself and where he performed , in particular , plastic surgery .

On DATE , proceedings against Dr. PERSON for unprofessional conduct were instituted by ORG ) before the Tribunal for ORG ( Berufsgericht für Heilberufe ) attached to ORG ( Verwaltungsgericht ) and he was declared unfit to practise on DATE . ORG for ORG ( GPE für GPE ) attached to ORG ( Verwaltungsgerichtshof ) rejected Dr. PERSON 's appeal on DATE .

The accusations against the applicant upheld by ORG including the following : having offered a beauty specialist PERCENT of his fees and CARDINAL of his patients DM CARDINAL for each client they introduced to him ; having persuaded a patient to have treatment not covered by social security by assurances that he would in that case be able to use more effective methods ; having refused to make out for CARDINAL of his clients an account corresponding to the fee actually paid ; having , as an ear , nose and throat specialist , performed an operation not falling within the field in which he specialised ; having had a beauty specialist assist him during operations ; having widely - publicised his practice in the DATE and DATE press ; having used on his name - plates , notepaper and prescription forms wording contrary to the rules of the medical profession .

In DATE , the applicant had his authorisation to run his clinic withdrawn and then , in DATE , his authorisation to practise . Criminal proceedings were taken against him in DATE for , inter alia , the illegal practice of medicine .

Actions brought by Dr. PERSON to challenge both of these withdrawals have been in progress before the competent administrative courts since DATE and DATE , respectively .

The applicant complains of the length of the proceedings taken by him against the withdrawals of the authorisations ; he makes no complaint about either the disciplinary proceedings before the professional tribunals or the criminal proceedings .

In GPE , the medical profession is governed partly by Federal law and partly by the law of the Länder . The principal rules relevant for the present case are to be found , in particular , in ORG ( Bundesärzteordnung - hereinafter referred to as " LAW " ) in the version of DATE as last amended on CARDINAL DATE and CARDINAL DATE , the Regulations of CARDINAL DATE on the grant of the authorisation to practise medicine ( ORG für GPE - hereinafter referred to as " the Regulations " ) and LAW on ORG , Dentists , ORG ( ORG über die Berufsvertretungen und über die PERSON , GPE , ORG and PERSON - hereinafter referred to as " LAW " ) in the version of DATE .

According to paragraph CARDINAL of LAW , the medical practitioner shall have the care of the health of each individual and of the community as a whole . Under paragraph CARDINAL , he exercises a liberal profession and not a trade or business .

In order to be able to practise on a permanent basis , an authorisation issued by the appropriate services of the ORG is required . ( Articles CARDINAL para . CARDINAL and CARDINAL of LAW and LAW ) . This authorisation is granted on request if the person concerned :

" CARDINAL . is NORP ... or is a stateless alien ... ,

has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ... ,

is not incapable of , or unsuited for , the exercise of the ... profession on account of an infirmity , of some weakness in his mental or physical faculties , or of an addiction ( GPE ) ,

after studying medicine for a minimum of DATE , including a minimum of DATE and maximum of DATE practical training in a hospital , has passed the medical examination in a place where this LAW is applicable .

... " ( Article CARDINAL para . CARDINAL of LAW ) .

If the application is granted , the person concerned receives a document ( PERSON ) certifying that the statutory conditions are satisfied and adding :

" With effect from DATE 's date , he ( she ) is granted authorisation to exercise the medical profession .... Such grant authorises the doctor to practise medicine " ( Article CARDINAL of the Regulations and Appendix CARDINAL thereto ) .

If , on the other hand , the authorisation has to be refused for nonfulfilment of one of the conditions , the applicant or his representative must first be given a hearing ( Article CARDINAL para . CARDINAL of LAW . )

An authorisation that has been issued must be withdrawn if CARDINAL of those conditions either was not satisfied at the time of the grant or ceases to be met afterwards ( LAW ) .

Anyone wishing to run a clinic must have an authorisation pursuant to ORG ) and is entitled thereto if he fulfils the conditions stipulated by LAW para . CARDINAL of the Act ( see paragraph CARDINAL below ) .

Since the management of a clinic is classified as a trade or business , the person running it does not have to be a doctor himself . However , he is required to take all necessary staffing and organisational measures to ensure the treatment of patients in his institution . He must , therefore , employ CARDINAL or more doctors responsible for the care of his clients .

The authorisation is withdrawn if it transpires either that the documents supporting the application were incorrect or that the requisite conditions were never , or have ceased to be , satisfied ( LAW ; paragraph CARDINAL below ) .

It is not disputed that , according to NORP law , the right to be authorised to practise medicine and the right to be authorised to run a private clinic are rights conferred on the individual by public law and protected by LAW which guarantees freedom to exercise a profession . Again , exercise of the medical profession , unlike the running of a private clinic , is not considered in GPE to be a trade or business ( see paragraph CARDINAL above ) ; although it also has the purpose of providing an income , its primary aim is disinterested , namely , rendering assistance to mankind .

Medical treatment is a matter for a private - law contract between doctor and patient . Such a contract serves to guarantee the free choice of a medical adviser , maintain a relationship of trust between him and his patient and uphold professional secrecy . However , the contract does not establish a well - defined set of rights and obligations since it imposes on the doctor a duty to provide basically unlimited services to anyone seeking treatment . Moreover , the rules on the medical profession forbid its members to advertise and even regulate in detail the size and content of their name - plates .

Again , medical practitioners can not fix their fees at will but must comply with the ORG even when not practising as national health doctors . Minimum and maximum fees for medical services are specified by ORG decrees , taking into account the legitimate interests of practitioners and of the persons or organisations having to pay them ( LAW ) .

Those affiliated to the social security health insurance funds – PERCENT of the population - are entitled to medical treatment according to the terms of the legislation and agreements in force . The majority of medical practitioners are approved national health doctors and obliged to treat members of the insurance funds . ORG ( Bundesverfassungsgericht ) has held that such practitioners are not administering a public service but fulfilling a public - law duty and , by their enrolment , are integrated within a system of public law . ( Collected Decisions of ORG , PERSON . CARDINAL , pp CARDINAL et seq . ) .

Medical practitioners carry out their duties under the control , inter alia , of their societies and of the professional tribunals , these institutions being governed by ORG .

Articles CARDINAL and CARDINAL para . CARDINAL of LAW provide that regional medical societies are public - law associations to which all doctors practising in the Land belong . Practitioners who fail to register with the competent society or to fulfil their other obligations under its statutes may be fined ( LAW . )

Article CARDINAL para . CARDINAL of LAW gives the following definition of each society 's functions :

" CARDINAL . supervision of the discharge of ( its ) members ' professional duties ... ,

promotion of the further training of society members ,

promotion of harmonious relations among society members and settlement of any disputes , arising in the exercise of the profession , between members or between them and third persons , without prejudice to the jurisdiction of other authorities ,

assisting the official health service in the performance of its functions , ... "

The authorities and the societies must assist each other in the fulfilment of their respective functions ( LAW ) .

The societies are under ORG supervision which extends to observance of the laws and statutes . The competent Minister may quash any decision contravening these texts ( LAW ) and may at any time request information from the societies concerning their affairs ( LAW para . CARDINAL ) .

If the council of the society suspects a practitioner of unprofessional conduct , it refers the matter to the Tribunal for ORG ( Articles CARDINAL and CARDINAL para . CARDINAL of LAW ) . Under LAW para . CARDINAL , the decision at first instance is given by that ORG which is attached to ORG for the locality and has CARDINAL members , namely the President , or his representative , and CARDINAL assessors belonging to the defendant 's professional group ( Article CARDINAL para . CARDINAL ) .

An appeal against the ORG 's decision may be made to ORG for ORG attached to ORG ( ORG CARDINAL and CARDINAL para . CARDINAL ) ; the appellate tribunal is composed of CARDINAL members , namely the President , or his representative , CARDINAL other judges of ORG and CARDINAL assessors belonging to the defendant 's professional group ( Article CARDINAL para . CARDINAL ) .

The professional tribunals may impose the following penalties , the second , third and fourth of which may be combined : warning , reprimand , temporary suspension of the right to vote in society proceedings , fine up to DM CARDINAL,CARDINAL and finding that the individual is unfit to exercise the profession ( Article CARDINAL paras . CARDINAL and CARDINAL ) .

The authorisation to practise is not automatically revoked as the result of the last - mentioned finding . Although its ultimate purpose is the individual 's exclusion from the profession , it binds neither the Regierungspräsident , who alone has power to withdraw the authorisation , nor any courts which may be called upon to examine the lawfulness of such a withdrawal .

Decisions by the Regierungspräsident withdrawing either an authorisation to practise or an authorisation to run a private clinic may be challenged before the administrative courts . However , before the person concerned can bring the matter before the courts , he must first have filed - unsuccessfully - an objection ( Widerspruch ) with the Regierungspräsident .

On DATE , at the request of ORG , the GPE in GPE withdrew the applicant 's authorisation to run his clinic , claiming that he could not be relied on to conduct the institution properly and lacked the diligence and knowledge required for its technical and administrative management . The Regierungspräsident adverted to an inspection of the clinic which had revealed , in DATE , numerous irregularities : out of CARDINAL medical records , CARDINAL were not maintained correctly ; the training of the staff was insufficient for the work entrusted to them ; the equipment in the treatment room left something to be desired ; the instruments , some of which were beginning to rust , were in part badly kept ; the X - ray machinery lacked safety devices . Inspectors were said to have found in DATE that , amongst other things , the operating theatre and its equipment had not been cleaned . The PERSON relied also on evidence given by several people to the effect that , DATE , the clinic had in fact been managed by a young employee who was aged DATE and was unqualified . She supervised the staff and took care of the patients and had allegedly confirmed that dog - food was kept in the refrigerator at the clinic and that the applicant allowed men to be present in the rooms outside visiting TIME . According to her , Dr. PERSON also made advances to her and one of her colleagues on several occasions .

The decision of the Regierungspräsident was based on the following provisions of ORG :

" A person running a private clinic , maternity home or mental hospital requires an authorisation from the higher administrative authority . The authorisation may be refused only :

( a ) if the facts show that the said person can not be relied on properly to conduct and manage the institution ;

" The licences ... mentioned in [ LAW ... may be withdrawn ... only :

if it subsequently appears that the person running the institution does not possess the qualifications required for the grant of the licence ... or that the LOC or technical equipment of the institution no longer satisfy the requirements for the grant of the authorisation .

On DATE , the applicant filed an objection which was rejected by ORG on DATE . Dr. PERSON then appealed , on DATE , to ORG , the case being assigned on DATE of its CARDINALth ORG which is competent to hear disputes relating to the law on trade and business activities .

These appeals had the effect of suspending enforcement of the decision complained of .

As early as DATE , the court asked the Regierungspräsident for his observations ; it received them on DATE , after extending the time granted and sending a reminder .

The Regierungspräsident was requested on DATE to supply further information and he submitted a written pleading on DATE He indicated therein that the applicant was to undergo a psychiatric examination whose results would be forwarded to the court later . The court asked the GPE about this on DATE , DATE and DATE ; he supplemented his earlier observations but told the court on DATE that the applicant had not agreed to be so examined .

On DATE , the court asked the Regierungspräsident to clarify a point in his pleading ; this clarification was received by the court on DATE .

In the meantime and until DATE , the court had tried to obtain from , notably , ORG ( DATE ) and the competent local authorities ( DATE ) , the addresses of several persons who might be called as witnesses .

The court also endeavoured , as from DATE , to procure files on the applicant , including those of the professional tribunals ( see paragraph CARDINAL above ) .

On DATE , the court decided to hear CARDINAL witnesses at sittings fixed for CARDINAL and DATE . For this purpose , it tried , for example on CARDINAL and DATE , to obtain the addresses of witnesses and requested the production of other files concerning Dr. PERSON .

On DATE , the court fixed DATE as the date for the oral hearing ( mündliche ORG ) and for the continuation of the taking of evidence from the witnesses , including a certain Mr. PERSON who had made serious accusations against Dr. PERSON before ORG .

The court sat on CARDINAL , DATE and DATE . It imposed fines ( PERSON ) of DM CARDINAL and DM CARDINAL on Mr. PERSON for failing to appear .

On DATE , the court decided not to hear the appeals ( Beschwerden ) made by Mr. PERSON against these penalties on DATE and DATE and to transmit the file to ORG . On DATE , the latter court invited those concerned to present their observations and it set aside the CARDINAL fines on DATE .

On DATE , the file was returned to ORG which , on DATE , informed the parties of the state of the proceedings . It asked them to indicate as soon as possible what evidence they proposed to put forward , pointing out that several persons had offered to make statements on the medical treatment given to them by the applicant . The court also stated that , as far as it was concerned , the hearings could be resumed at DATE or DATE since the lay judges would be available then .

On DATE , Dr. PERSON indicated that he would abstain from nominating further witnesses if the Regierungspräsident did likewise . However , on DATE , the latter named a certain number of additional witnesses and , on DATE , he filed with the court a pleading dealing with the evidence taken so far .

This pleading was sent by the court on DATE to the applicant for his comments ; on DATE , he requested in writing that QUANTITY witnesses be heard should the court decide to hear those mentioned by the Regierungspräsident .

There followed a further exchange of pleadings .

On DATE , the Regierungspräsident informed the court that Mr. PERSON was detained in prison at ORG and could accordingly be served with a summons to appear .

After advising the applicant , the court wrote on DATE to the competent authorities in PERSON to enquire whether Mr. PERSON was being held in the prison and , if so , for how long . The prison replied on DATE that the witness had been released .

On DATE , the judge acting as rapporteur directed that the file be sent back to the President of the ORG to enable him to fix the date of the hearing , but this instruction was not carried out , probably due to a mistake on the part of the registry .

On DATE , Mr. PERSON of GPE announced that he was no longer acting as Dr. PERSON 's lawyer .

The applicant , who on CARDINAL DATE had asked the court to fix the date for the hearing without delay , was told on DATE that the file would be submitted to the President of the ORG immediately he returned DATE . An order of the court set DATE as the date for such submission .

On DATE , Messrs. PERSON , PERSON and PERSON of GPE told the court that they were now acting for Dr. PERSON .

Following receipt of a letter from ORG ( PERSON ) , the file was returned to the judge acting as rapporteur on DATE .

On DATE and CARDINAL DATE , the court attempted yet again , but without success , to contact Mr. PERSON to discover whether he would be able to give evidence in DATE or in DATE .

On DATE , the court fixed CARDINAL March as the date for a hearing to which it summoned Mr. PERSON . He did not appear and on DATE was fined DM CARDINAL by the court which also ordered him to attend a further hearing due to be held on DATE

Relying on a medical certificate , Mr. PERSON on DATE lodged an objection against this penalty but the court dismissed the objection and sent the file to ORG . On DATE , the latter court asked the witness 's doctor to supply further details about the said certificate : it received them on DATE and set the fine aside on DATE

The file was returned on DATE to ORG which on DATE cancelled the hearing fixed for DATE , on the ground that the presence of Mr. PERSON could not be secured .

Pursuant to an order of DATE , there was a further hearing on DATE . Once again , Mr. PERSON did not appear .

On DATE , the ORG fined him DM CARDINAL . On DATE , it directed that the taking of evidence would continue on DATE . On DATE , it issued a subpoena against Mr. PERSON who gave evidence on DATE .

At the conclusion of this last sitting , the court granted the parties the faculty of submitting , by DATE , their written observations on the result of the examination of witnesses . Dr. PERSON took advantage of this on DATE .

On DATE , other lawyers informed the court that they had been instructed by the applicant and requested it to await their written pleading . This document , which arrived on DATE , commented on the evidence already obtained , repeated the earlier applications for evidence to be taken and made new applications therefore . On DATE , Mr. PERSON announced that he was Dr. PERSON 's new lawyer . The court transmitted the pleading to the Regierungspräsident on DATE .

In the meantime , on DATE , the court had requested Dr. PERSON to produce his records on CARDINAL of his former patients . Having received only photocopies of the documents in question , the court renewed its request on CARDINAL DATE and tried to trace a further witness .

On DATE , the court supplemented its order of CARDINAL DATE ( see paragraph CARDINAL above ) and fixed DATE as the date for the continuation of the taking of evidence and for the oral hearing . At the close of its sitting on DATE , it indicated that it would give a decision on DATE

However , after trying to obtain witnesses ' addresses and taking cognisance , on DATE , of another written pleading from the applicant , the court on DATE adjourned sine die the date for delivery of its decision ; at the same time and also subsequently , it requested Dr. PERSON to supply further information , which was received on DATE and DATE . Between these dates , the court also had researches made for the addresses of several witnesses .

The parties supplemented their pleadings on CARDINAL and DATE .

On DATE , the court decided that there should be a second additional enquiry and , in particular , the hearing of CARDINAL new witnesses . On DATE , it sent the file to the Bad Kissingen District Court ( Amtsgericht ) for it to hear one of those witnesses ; on DATE , it directed that the CARDINAL others should be heard on DATE but , on DATE , postponed this to PERSON at Dr. PERSON 's request . When the file came back from Bad PERSON , the court on DATE asked ORG to hear another witness .

DATE . Previously , on DATE , the applicant had filed with the Hessen Minister of ORG a disciplinary complaint ( Dienstaufsichtsbeschwerde ) in which he also declared that he challenged " ORG " . For this reason , on DATE , the court cancelled the hearing due to take place DATE .

On DATE , ORG , which appeared to have jurisdiction in the matter , asked Dr. PERSON to specify which of the judges he was challenging , pointing out that it was not possible to challenge all the members of a Chamber .

The applicant replied on DATE that his claim was limited to the judge of the CARDINALth Chamber acting as rapporteur and that he objected to certain wording used by the latter in the letters rogatory sent on DATE to ORG .

On DATE , Mr. PERSON , acting on behalf of Dr. PERSON , complained about the length of the proceedings to ORG . ORG was invited on DATE to present its observations and it did so on DATE , transmitting the file to ORG on DATE . The latter , by a decision of DATE , refused to hear the complaint on the ground that it did not offer sufficient prospects of success .

Following the return of the file on DATE , ORG on DATE upheld the challenge against the judge acting as rapporteur .

The file was then transmitted by ORG to the ORG Minister of Justice to enable him to give a decision on the disciplinary complaint ; he received the file on DATE and returned it on DATE . On DATE , the court sent the file to the ORG public prosecutor 's department ( ORG ) as requested by it and by the President of ORG ( Landgericht ) of the same town , who needed it in order to examine another disciplinary complaint by Dr. PERSON .

On DATE , the applicant asked ORG not to hear a witness who it was contemplated should be summoned . This request was repeated on DATE but rejected on DATE by the court which decided to hold a hearing on DATE .

Only some of the witnesses appeared on DATE . CARDINAL was heard at home on DATE and another gave evidence in writing .

On DATE , the file was sent to the Hessen Minister of Justice for the purposes of the proceedings instituted by Dr. PERSON on DATE before the ORG . On this occasion , the President of ORG made known his observations on the outcome of the court 's enquiry ; he was of the opinion that the partly contradictory statements of the witnesses did not allow a firm conclusion to be drawn on the applicant 's activities as manager of the clinic ; accordingly , the question arose whether his conduct as a medical practitioner also had to be taken into account ; however , it was not for ORG to rule on the complaints against Dr. PERSON in this last - mentioned capacity since they were the object of proceedings pending before ORG .

On DATE , the applicant submitted observations on the statements made by CARDINAL witness and applied for CARDINAL further witnesses to be heard . A copy of this pleading , which the court had requested from him on DATE , was sent on DATE to the Regierungspräsident who replied on DATE .

The Hessen Minister of ORG returned the file to ORG on DATE .

The court had previously been advised that in DATE the applicant had entrusted his case to another lawyer , Mr. PERSON . The latter returned the brief on DATE and his successor Mr. PERSON , who had given notice on DATE that he was acting for Dr. PERSON , did likewise on DATE .

On DATE , the President of ORG had a meeting with the applicant who stated that he had let the clinic LOC for use as an old people 's home and would re - open the clinic - in association with a surgeon - only after being authorised to practise again . Furthermore , he agreed that priority be given to the proceedings , pending before ORG , concerning the exercise by him of his profession .

The file was sent on DATE to the Hessen Minister of ORG for the purpose of the Commission proceedings . It was returned to the court on DATE and then communicated on DATE to Dr. PERSON 's new lawyer , Mr. PERSON of GPE , who on DATE had indicated that he had been instructed . ORG had allowed him DATE to consult the file and , on DATE , extended this period to DATE .

However , on DATE , Dr. PERSON informed the court that he had withdrawn Mr. PERSON ' instructions and requested that he be asked to return the file which Dr. PERSON wished to study himself . The court communicated on DATE with the lawyer who returned the file on DATE .

On CARDINAL , CARDINAL and DATE , the applicant and his new lawyer , Mr. PERSON , who acted for him from DATE to CARDINAL DATE , requested the court to send them certain documents , including verbatim records of evidence , CARDINAL of which were despatched to them on DATE .

DATE , the file was with Mr. PERSON who , since DATE , had once again been entrusted with Dr. PERSON 's case .

On DATE , there was added to the file a second challenge lodged by the applicant with the Hessen Minister of Justice on DATE ( see also paragraph CARDINAL below ) .

On DATE , the President of the ORG wrote to Dr. PERSON to enquire whether his intention was to challenge the members of ORG on the ground of bias and , if so , which members .

As regards the duration of the proceedings , the President remarked :

" I wish to point out that we have repeatedly talked about the expediency of continuing the proceedings concerning the authorisation to run a clinic and pending before ORG . On those occasions you agreed with me that it was necessary first of all to await the conclusion of the proceedings relative to the authorisation to practise medicine because they had to be regarded as having priority . You also mentioned that you would not re - open your clinic before that date although in law you would be entitled to do so . Should you have changed your mind , please let me know . "

Dr. PERSON 's lawyer replied on DATE that the claim related primarily to the President of the CARDINALnd Chamber and the manner in which the last hearing before that ORG had been conducted . He requested the court not to decide , for the time being , whether his client was challenging ORG .

On the subject of the duration of the proceedings , the lawyer declared :

" The question of the conclusion of the proceedings concerning the authorisation to practise medicine has at present priority because in those proceedings immediate enforcement of the administrative decision has been ordered . It is known that there is no order for immediate enforcement of the decision to withdraw the authorisation to run the clinic ; consequently , as regards the last CARDINAL sentences in your letter of DATE , there is at present no need for ORG of the GPE - on - ORG to give an early decision . "

The applicant withdrew Mr. PERSON 's instructions on DATE .

The proceedings before ORG accordingly remained suspended and were resumed only after ORG had delivered judgment on DATE .

Hearings , which originally had been arranged for CARDINAL DATE and were then postponed at the applicant 's request , took place in DATE .

On DATE , ORG dismissed the applicant 's appeal against the withdrawal of the authorisation to run his clinic . Its judgment was based on the evidence taken during the hearing of CARDINAL witnesses DATE and DATE .

Dr. PERSON appealed to ORG where the case is still pending before the ORG ( ORG ) which , on DATE , ruled on his appeal against the judgment of ORG ( see paragraph CARDINAL below ) .

Another lawyer , Mr. PERSON of GPE , is representing the applicant before ORG .

According to statistics supplied by the Government , purely by way of indication , concerning the action before ORG , DATE of the proceedings are attributable to measures taken by the court , CARDINAL to measures taken by the applicant and his lawyers and CARDINAL to measures taken by third parties , including the defendant administrative authorities , the professional bodies and the witnesses .

DATE . On CARDINAL DATE , the GPE in ORG withdrew the applicant 's authorisation to practise medicine and directed that this decision should have immediate effect ( Article CARDINAL para . CARDINAL , sub - paragraph no . CARDINAL , of LAW ) . On the basis of the findings made by the professional tribunals in DATE and DATE ( see paragraph CARDINAL above ) , the Regierungspräsident considered that Dr. PERSON had behaved in a manner which disclosed his professional unfitness and his failure to meet medical ethical standards . The Regierungspräsident was acting in pursuance of the following provisions of LAW :

" The authorisation to practise medicine shall be withdrawn if one of the requirements of LAW para . CARDINAL , first sentence , sub - paragraph no . CARDINAL , ceases to be satisfied . "

" The authorisation to practise medicine shall be granted on request provided the applicant :

has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ... "

On DATE , at the request of the applicant and in order to allow him to refer his patients to other practitioners , ORG restored the suspensive effect of the objection against the decision of the Regierungspräsident , but only until DATE . The appeal lodged by Dr. PERSON against this ruling was dismissed by ORG on DATE .

After the Regierungspräsident had rejected on CARDINAL DATE the objection filed by the applicant on CARDINAL May against the withdrawal decision , the latter appealed to ORG on DATE . For reasons of jurisdiction , this court on DATE referred the case to ORG where it was assigned to ORG which is responsible , inter alia , for questions relating to the law on the medical profession .

On DATE , ORG notified the Regierungspräsident of the appeal , requesting his comments and production of the files kept by his services .

The written pleading of the Regierungspräsident was filed on DATE and communicated to the applicant 's lawyer DATE . After being asked by the court on DATE whether he intended to submit a reply , the lawyer made an application for the time - limit to be extended until DATE

The reply in question was filed on DATE and sent to the Regierungspräsident for comment . Following the receipt on DATE of a voluminous supplementary pleading from the applicant 's lawyer , PERSON on DATE sought an extension until DATE of the time - limit expiring on DATE ; on DATE , the court gave leave for DATE to be deferred , but only until DATE .

On DATE , the court ordered that ORG be joined ( GPE ) to the proceedings . On DATE , after requesting the parties and ORG to furnish certain explanations and after calling for the production of certain criminal files , the court proposed a friendly settlement of the case . The suggestion was that Dr. PERSON would cease to practise as a self - employed physician and to run his clinic , whilst the Regierungspräsident would restore his authorisation to exercise his profession subject to certain conditions . The applicant rejected this proposal on DATE . The court advised ORG DATE , reminding him at the same time about the submission of his comments .

Those comments were received by the court on DATE ; a written pleading from ORG was filed on DATE .

Dr. PERSON had changed lawyers on DATE ( see paragraph CARDINAL above ) . His new adviser , Mr. PERSON , inspected the court 's file , returning it on DATE ; on DATE , he also returned the files of the administrative authorities which the court had at his request sent to him on DATE . On DATE , he submitted a written pleading which the court communicated for comment to the Regierungspräsident and ORG .

On DATE and CARDINAL DATE , the court asked ORG and public prosecutor 's department for information as to the state of criminal proceedings instituted against the applicant on DATE ( see paragraph CARDINAL below ) .

On DATE , the public prosecutor 's department advised the court that , following a hearing held in the meantime , those proceedings had been stayed because further witnesses and experts were to be summoned .

On DATE , the President of ORG sent a copy of the disciplinary complaint of CARDINAL DATE to ORG which Dr. PERSON had mentioned when challenging " ORG " ( see paragraph CARDINAL above ) .

The file was passed to the CARDINALrd Chamber for it to rule on the challenge . Together with the file were communicated declarations made by the members of ORG ; in particular , the judge acting as rapporteur indicated that the CARDINALnd ORG wished to await the result of the criminal proceedings in view of their importance for the question at issue before it .

On DATE , ORG rejected the challenge on the ground that the applicant had failed to show prima facie the existence of justificatory reasons . As soon as this decision had become final , the file was returned , on DATE , to ORG .

The court had decided on DATE to suspend its proceedings to await the outcome of the criminal proceedings instituted against the applicant ( see paragraph CARDINAL below ) as it considered that the latter proceedings were of importance for the action pending before it ( LAW ) .

On DATE , Dr. PERSON had complained to ORG of the length of the proceedings pending before DATE and CARDINALth Chambers ( see paragraph CARDINAL above ) . Having been requested by ORG on DATE to submit his observations , the President of the CARDINALnd ORG replied on DATE that the ORG proposed to defer its judgment until the close of the criminal proceedings .

ORG decided on DATE not to allow the appeal . It observed , inter alia , that , in refusing to fix a date for the hearing as long as it did not know the result of the criminal proceedings , ORG had - up to that time – properly exercised its discretion in the matter . The CARDINAL volumes of the case file had been forwarded to ORG on DATE ; they were sent back to ORG on DATE .

On DATE , ORG informed ORG that , in the criminal proceedings , detailed expert opinions still had to be obtained and that the trial would not take place before DATE .

On DATE , ORG asked ORG to confirm that the applicant remained charged , inter alia , with having continued to practise notwithstanding the withdrawal of the necessary authorisation .

On a further application by Dr. PERSON , ORG on DATE asked ORG for a supplementary report on the state of the proceedings and , in view of their duration , for an indication whether he could not be granted some concessions as regards the immediate enforcement of the withdrawal .

The President of the CARDINALnd ORG replied on DATE . She emphasised that any modification of the decision not to stay such immediate enforcement would endanger the health of the applicant 's patients if the accusations against him proved to be founded . ORG did not consider that it could take this risk . Furthermore , judicial experience in no way bore out the opinion that the accusation that Dr. PERSON had continued to perform operations could be verified more swiftly by the ORG than by ORG , but with the same degree of reliability .

On DATE , ORG decided not to hear the complaint on the ground that it did not offer sufficient prospects of success . ORG received a copy of this decision on DATE .

Previously , on DATE , the latter court had informed the applicant that it maintained its decision to await the outcome of the criminal proceedings .

On DATE , ORG had confirmed to ORG ( see paragraph CARDINAL above ) that Dr. PERSON remained charged with having continued to practise after the withdrawal of his authorisation ; it had added that a decision within DATE was hardly likely since the applicant had challenged one of the judges and extensive appellate proceedings were in progress .

On DATE , Dr. PERSON , pleading the length of the proceedings , requested ORG to restore the suspensive effect of his appeal against the withdrawal decision .

However , the file was sent to the ORG Minister of ORG who had asked for it on DATE for the purposes of the Commission proceedings ; it was returned to the court on DATE after the ORG 's observations on admissibility had been filed in GPE .

DATE and DATE , the applicant had changed his advisers twice ( see paragraph CARDINAL above ) ; until DATE the file was retained for consultation by Mr. PERSON , the second of the lawyers so appointed .

On DATE , ORG rejected the request of CARDINAL DATE . Dr. PERSON , who had withdrawn instructions from his lawyer ( see paragraph CARDINAL above ) , at once appealed in person to ORG but it dismissed the application on DATE . The court , relying on the statements made by witnesses during the proceedings before ORG , took the view that , if the applicant were authorised to practise , he might endanger any clients who consulted him . Dr. PERSON had previously attacked the decision of ORG before ORG which , on account of non - exhaustion of remedies , had declined to hear his application .

After the return of the file to ORG on DATE , the President of ORG and the judge acting as rapporteur agreed on DATE , in order to expedite matters , not to wait any longer for the result of the criminal proceedings or of the action before ORG . They contemplated holding hearings on DATE .

The judge acting as rapporteur made , also on DATE , enquiries of ORG about the state of those criminal proceedings .

On DATE , ORG decided not to hear a further complaint filed on Dr. PERSON 's behalf by Mr. PERSON and objecting , inter alia , to the dilatory nature of the proceedings . It considered , amongst other things , that the special features of the case , from both a factual and a legal point of view , and the applicant 's unfitness to practise , which had been conclusively found by ORG for ORG , justified ORG awaiting the decision in the criminal proceedings and maintaining the immediate effect of the withdrawal of the authorisation . The court added that , furthermore , nothing prevented Dr. PERSON from seeking , principally on the ground of the length of the proceedings , restoration of the suspensive effect of the appeal against the said withdrawal .

On DATE , ORG decided that on DATE there would be a sitting devoted to the hearing of evidence and of argument . The parties were informed of this decision DATE .

On DATE , the ORG had researches made for the addresses of some witnesses . On DATE , it was advised that Mr Mattern , the lawyer instructed by Dr. PERSON on DATE ( see paragraph CARDINAL above ) , was no longer acting for him . DATE , the applicant filed a pleading , the Regierungspräsident having submitted CARDINAL on DATE .

The hearing did take place on CARDINAL and DATE . After hearing CARDINAL witnesses , the court directed that there should be a further sitting on DATE , but it cancelled this on DATE as the file was with ORG which had to rule on the appeal of DATE ( see paragraph CARDINAL above ) .

Dr. PERSON , in a letter of DATE received on DATE by ORG , had sought the transfer to another court of the actions pending before DATE and ORG whose judges , he alleged , could " no longer be described as impartial " .

The letter was sent on DATE by the Minister to ORG and was put before DATE and CARDINALth Chambers on DATE ( see also paragraph CARDINAL above ) .

On DATE , the President of ORG wrote to the applicant to enquire whether a formal challenge was being made ; the lawyer , Mr. PERSON , who from DATE to DATE once again acted for Dr. PERSON ( see paragraphs DATE and CARDINAL above ) , replied on DATE that his client was challenging the President herself . He also asked to be allowed to consult the file ; this was held at his disposal at the registry until DATE but he did not go to collect it there .

On the last - mentioned date , the file was sent to ORG for the purposes of the proceedings pending before the Commission . It came back on DATE to the court which , on DATE , rejected the challenge .

DATE . On DATE , ORG decided that it would hear further witnesses on DATE

On DATE , it refused an adjournment requested on DATE by Dr. PERSON 's lawyer and emphasised that his client had insisted on the urgency of a decision .

Having been told by the applicant on DATE that there would be hearings in the criminal case on DATE , the ORG agreed on DATE to postpone its own sitting until DATE .

On DATE , the applicant sought a further adjournment , maintaining that on DATE he had to prepare for the hearings which were to resume in the criminal court on DATE . ORG , having found that he had had sufficient time for preparation , refused the request on DATE .

On DATE , after hearing witnesses , the court dismissed Dr. PERSON 's appeal against the withdrawal of his authorisation to practise medicine . Its judgment was based on the statements of CARDINAL persons heard by it in DATE , most of whom had already given evidence about the same facts before ORG , and was communicated on DATE to the applicant , whose lawyer lodged an appeal on DATE .

On DATE , the court sent the file to ORG which , by judgment of CARDINAL DATE , dismissed the appeal ; this judgment has not yet become final .

According to statistics supplied by the Government , purely by way of indication , concerning the action before DATE Chamber , DATE of the proceedings are attributable to measures taken by the court , CARDINAL to measures taken by the applicant and his lawyers and CARDINAL to measures taken by third parties , including the defendant administrative authorities , the professional bodies and the witnesses .

The criminal proceedings against the applicant are not in issue but should be mentioned because of their effect on the action before DATE Chamber of ORG which had postponed its decision pending their outcome ( see paragraphs CARDINAL and CARDINAL above ) .

The criminal proceedings originated in a complaint against Dr. PERSON relative to the illegal practice of medicine , causing bodily harm and committing fraud , which the Regierungspräsident in ORG had lodged on DATE with the GPE public prosecutor 's department .

The applicant , who on DATE had refused to be questioned by the police , was charged on DATE before ORG , sitting as a lay magistrates ' court ( ORG ) . The indictment ( PERSON ) alleged that , DATE and DATE , he had continued to practise despite the withdrawal of the requisite authorisation ( continuing breach of ORG ) , that he had thereby perpetrated frauds ( Article CARDINAL of LAW ) and that he had caused , in CARDINAL case , serious bodily harm ( Articles CARDINAL and CARDINAL ( a ) of LAW ) .

At the close of its sitting on DATE , the court ordered numerous enquiries . A psychiatrist and a psychologist gave their opinion on CARDINAL of the alleged victims ; he was the only alleged victim called by the public prosecutor 's department as a witness and had intervened ( Nebenkläger ) in the proceedings on CARDINAL DATE in order to claim damages .

On DATE , the court decided that , if by DATE Dr. PERSON had not himself submitted an expert opinion on the state of his mental health , he should be examined by a psychiatrist .

On DATE , the applicant lodged an objection against this decision and that of CARDINAL DATE . On DATE , he stated that he was challenging the President of the lay magistrates ' court ; after a judge had refused this plea on DATE , both he and the President were challenged by Dr. PERSON on DATE

On DATE , ORG dismissed the objection and the challenge and directed that the private expert opinion be submitted not DATE .

DATE , Dr. PERSON repeated his objection of DATE and at the same time lodged a disciplinary complaint against the President of the lay magistrates ' court . ORG dismissed the objection on DATE ; the documents do not disclose the result of the disciplinary complaint .

DATE . On DATE , Dr. PERSON challenged the expert nominated by the court and proposed CARDINAL others . He supplemented this application on DATE and appealed to ORG against the decisions of DATE and DATE On DATE , he requested ORG to suspend enforcement of the first decision until ORG had given its ruling . On DATE , ORG declined to do so and , DATE , it received a copy of ORG decision rejecting the appeal of DATE .

On DATE , the court dismissed an application by Dr. PERSON for a further psychiatric examination of the party claiming damages .

On DATE , ORG , considering that the potential penalty exceeded that which it had competence to impose , relinquished jurisdiction in favour of ORG .

Under the then LAW para . CARDINAL of the LAW of LAW ( Gerichtsverfassungsgesetz ) , a ORG could " impose neither a penalty of imprisonment for DATE nor detention for reasons of security ( GPE ) " .

On DATE , ORG ) of ORG , to which the case had been assigned , directed that the trial ( ORG ) should take place on CARDINAL , DATE and DATE . On DATE , it joined to the pending proceedings a further charge , preferred by the public prosecutor 's department on DATE , alleging that Dr. PERSON had practised on DATE in Bad GPE despite the withdrawal of the requisite authorisation and had caused his patient bodily harm . As the applicant had not appeared , the court on DATE issued a warrant for his arrest and adjourned the trial sine die .

On DATE , the case was assigned to ORG which , however , was composed of the same judges as ORG in DATE .

On DATE , ORG ordered that several witnesses be examined on letters rogatory . Witnesses were heard in DATE by the GPE , ORG and ORG .

On DATE , the ORG revoked the warrant issued on DATE .

On DATE , the Vice - President of the ORG directed that the trial should take place in DATE ; at the same time he ordered that a witness be interrogated again by ORG .

On DATE , ORG relieved ORG of all matters it had to decide as a court of first instance , with effect from DATE . The proceedings pending against Dr. PERSON were transferred to the CARDINALth Chamber .

The President of the latter ORG received the case file on DATE . On DATE , he postponed the trial until DATE , DATE and CARDINAL DATE ; these dates he cancelled on CARDINAL DATE for the reason that the ORG was obliged to deal with another substantial case .

On DATE , all first - instance cases beginning with the letter " K " , including the applicant 's , were passed to ORG of ORG in accordance with the DATE arrangements for the allocation of cases .

The trial opened before ORG on DATE On DATE , after DATE of sittings , the ORG ordered the discontinuance of the proceedings ( Einstellung des PERSON ) under LAW ( a ) of LAW .

The ORG 's decision reveals that Dr. PERSON 's fault was regarded as very slight . As he had undertaken to pay ORG CARDINAL to the party claiming damages and DM CARDINAL to the ORG , the ORG considered that there was no longer any public interest in the proceedings being pursued further . The ORG noted that the applicant had paid over the amounts in question during the actual hearing and specified that its decision to discontinue the proceedings was final .


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

On DATE ORG made a sentence order ( PERSON ) against the applicant . In a decision of DATE , after the prosecution had revoked the sentence order , ORG ruled that the costs necessarily incurred by the applicant were to be paid by the ORG . On DATE the applicant ’s representative , who also represented him before the ORG , sought reimbursement of MONEY ( DEM – approximately MONEY ( ORG ) ) .

On DATE ORG dismissed the representative ’s claim for failure to comply with LAW ( see “ Relevant domestic law and practice ” below ) on the ground that he was not a lawyer admitted to practise at a NORP court and had not been authorised by the court to represent the applicant . The costs in question had therefore not been necessarily incurred within the meaning of Article CARDINAL of the Code of Criminal Procedure . Furthermore , the applicant had merely claimed a lump sum , which could not be refunded .

On DATE ORG upheld the lower court ’s decision . It added that the applicant ’s representative could not be regarded as a professor or lecturer in law ( PERSON ) within the meaning of LAW ( see “ Relevant domestic law and practice ” below ) , since that provision did not apply to non - tenured lecturers ( GPE ) at a higher - education establishment .

On DATE the applicant lodged a constitutional appeal with ORG ( Bayerischer Verfassungsgerichtshof ) against the decisions in issue .

In a letter of CARDINAL DATE the legal secretary ( PERSON ) of ORG acknowledged receipt of the applicant ’s appeal and asked his representative , among other things , to state whether he was a lawyer admitted to practise or a professor or lecturer in law at a university ( Hochschule ) .

In a letter of CARDINAL DATE the legal secretary informed the applicant of a number of obstacles that might prevent the appeal from being declared admissible and well - founded . She concluded that , for the reasons stated , the appeal appeared to be partly inadmissible and partly manifestly ill - founded ( offensichtlich unbegründet ) . In such cases , ORG could order appellants to pay a certain sum ( a maximum of DEM DATE approximately EUR CARDINAL ) before it continued its examination of the appeal , the aim being to avoid unnecessary expense for those concerned . The legal secretary gave the applicant DATE to reply , failing which the case would be deemed to have been settled .

The applicant replied on DATE .

In a decision of DATE ORG , sitting as a panel of CARDINAL judges , ordered the applicant to pay DEM CARDINAL,CARDINAL by way of an advance for costs ( PERSON ) . The decision was accompanied by a short letter from the legal secretary explaining , in particular , that it had been taken pursuant to section ORG ) of ORG and that the appeal was therefore regarded as inadmissible or manifestly ill - founded .

In a letter of DATE the applicant contended that the decision should have contained a statement of reasons .

On DATE the legal secretary replied that decisions on orders for costs did not require a statement of reasons . She drew attention to her letter of CARDINAL DATE and sent him a copy of the entire file so that he could consult it as he had requested .

The applicant did not pay the sum demanded .

Article CARDINAL § CARDINAL of LAW ( Strafprozessordnung ) provides that defendants may choose as their counsel any lawyer admitted to practise at a NORP court or a professor or lecturer in law ( PERSON ) at a NORP university ( Hochschule ) . Article CARDINAL § CARDINAL provides , inter alia , that other persons may be authorised to act as counsel by the court dealing with the case .

In practice , neither professors or lecturers in law at a university of applied sciences ( Fachhochschule ) nor non - tenured lecturers ( PERSON ) at a higher - education establishment are regarded as “ professors or lecturers in law ” within the meaning of this provision . In CARDINAL recent decisions of CARDINAL DATE ( no . CARDINAL Ws CARDINAL/CARDINAL ) and CARDINAL DATE ( no . CARDINAL Ws CARDINAL/CARDINAL ) the GPE and ORG ( Oberlandesgericht ) held respectively that a professor of law attached to a university of applied sciences and a non - tenured law lecturer were entitled to be regarded as professors or lecturers within the meaning of LAW .

Section CARDINAL of ORG ( PERSON über den Bayerischen LOC ) of CARDINAL DATE provides that the President appoints a secretary - general from among the court ’s professional judges . The secretary - general ’s role is to assist the President in carrying out his duties and with administrative tasks .

Section CARDINAL(CARDINAL ) provides that when ORG is not in session , its powers are assumed by the President or are delegated by him to the secretary - general . The secretary - general may , for example , be instructed to take the necessary procedural steps for the preparation of sessions and to carry out administrative duties .

Section CARDINAL(CARDINAL ) provides , inter alia , that the President appoints a person to represent the secretary - general in discharging non - judicial duties .

In practice , this person is known as the legal secretary ( Referent ) of ORG .


András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants , PERSON and FAC , are NORP nationals who were born on DATE and DATE respectively and live in GPE . They were initially represented before the Court by PERSON , a lawyer practising in GPE , who later gave up her mandate . The first applicant is the mother of the second applicant and is acting in her own name and on her child ’s behalf .

CARDINAL .

The first applicant lived and worked in GPE from DATE and became resident there in DATE . The parents of the second applicant ( “ FAC ) , who are both NORP citizens , married in GPE on DATE , and registered their marriage in GPE in DATE . The parents separated before the child ’s birth and judicial separation proceedings were issued by the first applicant in ORG on DATE . They were eventually linked to subsequent child care proceedings which were commenced upon PERSON birth .

On DATE , custody of the child was granted to the mother by ORG . Regular ( initially supervised ) contact , to be held in the mother ’s house , was also granted to the father ( “ X. ” ) , who was ordered to pay maintenance .

On DATE , the first applicant complained about X. ’s violent behaviour and the effects this was having on the child . She further requested authorisation to return , with the child , to GPE for work purposes .

By a judgment of ORG ( Tribunale per i minorenni ) of DATE , the applicants were granted permission to return to GPE and the second applicant was inscribed on the first applicant ’s passport . They moved to Reading , GPE , in GPE .

By a decision of CARDINAL DATE , ORG altered the visiting arrangements , holding that the child should spend alternate weekends with the father , in GPE and GPE , in the presence of a nanny , but not including TIME stays . Visits to GPE would be unlimited as long as announced in advance .

On DATE a ORG ( psychiatric assessment ) report was filed , stating that the time was not ripe for joint custody but that arrangements for more visits with the father were to be made gradually . The second applicant ’s contact with her father was regular and became unsupervised through progressive contact orders issued by ORG .

On DATE the court confirmed the mother ’s custody of the child .

On DATE the first applicant made submissions reiterating her concerns regarding the father ’s behaviour and its effects on the child .

On DATE , the second applicant returned to GPE following DATE with her father . She had a heavy rash in her genital area and displayed disturbed behaviour . On DATE the emergency doctor noted a small tear in her anus but could not determine its cause . On CARDINAL DATE , again following DATE with her father , the second applicant returned with a rash in her genital area and according to her mother displayed uncharacteristic behaviour such as heavy kissing on the mouth , and profound physical and psychological discomfort . The emergency doctor noted the rash and inflammation and reported these to the appropriate authorities as suspicious and indicative of possible sexual assault . However , he also considered it could be due to a lack of hygiene or to masturbation and was surprised that a congenital malformation of the girl ’s genitalia had not been brought to his attention . On CARDINAL DATE a detective constable of ORG informed the first applicant that there was insufficient evidence to pursue a criminal investigation . On DATE nursery reported that GPE had been found masturbating on the potty and that her behaviour DATE had been strange .

On DATE , following accusations made against him , the father lodged an emergency request with ORG asking for sole custody of the child and for her to be resident with him .

On DATE a NORP social worker reported on the mother ’s good qualities and noted the possibility that sexual abuse had taken place . She thought it was possible that the child ’s travelling to GPE might be causing stress and advised that GPE be accompanied by a nanny on these journeys . On this basis the first applicant requested the NORP courts to order supervised visits and submitted a detailed account of the situation in her pleadings of DATE .

On DATE , the NORP court found that the inquiry into the claim of sexual abuse did not provide any evidence substantiating the claims brought solely by the mother , who suffered from a state of extreme anxiety . Moreover , no official action had been taken by the NORP authorities . The court , therefore , dismissed the claims as unfounded . It noted that the mother had systematically and continuously denigrated the child ’s father , even if no concrete elements that could suggest he was an inadequate parent had been revealed . This brought into question the appropriateness of the mother ’s behaviour . For these reasons the custody regime had to be altered . Joint custody was therefore granted to the mother and the father to underscore the importance of both parental figures for securing the healthy psychological growth of the child , making both parties aware that they must assume responsibility for overcoming their parental conflict , in which the child was heavily involved . It confirmed the previous visiting arrangements and residence mainly with the mother . The applicant alleged that she had not been heard before this decision .

On DATE , the mother applied to the NORP courts for an emergency protection order under the DATE LAW , with a suspension of visiting rights . On DATE ORG in GPE ruled that nobody could remove the child from the mother or from NORP jurisdiction until the case had been heard , and that the father should have supervised visits . The father issued a crossapplication to enforce the existing NORP orders . On DATE ORG issued the certificate needed for the enforcement of the NORP orders regarding visiting arrangements . This was delivered to GPE authorities on DATE .

In the meantime , the NORP police had interviewed the father . He was also informed that the social services and the police felt supervised access would be appropriate while the NORP social services made an assessment of the situation .

On DATE , before ORG it was accepted that the NORP courts had primary jurisdiction ( according to ORG ) in matters of legal separation and child care . The mother ’s applications were therefore withdrawn and the orders of ORG were recognised and enforced .

In DATE , the mother stopped all contact between the child and her father due to suspicions that the father had sexually abused the child after a contact visit in GPE . The mother had taken the child to a doctor in an ORG and Emergency department in a hospital in GPE . However , contrary to the mother ’s claims , the doctor found that the child was healthy save for a slight rash ; no lesions had been found on her external genitalia and her anus was intact . However , child protection referrals were made to the GPE police and social services . The police conducted CARDINAL interviews with the child , recorded on video , where GPE spoke of her father touching her . They advised the mother not to allow any unsupervised contact between the child and her father in order not to prejudice the criminal investigation . However , a letter of ORG , Reading ORG , to X. , informed him of the events and concluded that there was no evidence of harm or risk of danger . Thus , the department ’s intervention had not been necessary .

On DATE the applicant submitted documents related to the alleged abuse and requested ORG to terminate the father ’s visiting rights . On DATE the father lodged his defence arguments , requesting that the child be placed with him or alternatively with a foster family under the control of ORG , and for the relevant physical and psychological reports to be drawn up .

On DATE the NORP police wrote to ORG informing it that criminal investigations were taking place in respect of the suspicion of sexual abuse .

On DATE ORG held that there was no reason to change the provisional custody and visiting arrangements in place . It ordered a new ORG , which would also investigate whether it was possible that any sexual abuse had taken place .

A comprehensive ORG was drawn up which included interviews with all the parties involved , including the nanny , the father ’s partner and her son . No interviews were , however , held with the child together with the father , since the first applicant denied the father access . Medical examinations and reports were also taken into account . According to the report , while talk about genitalia and sexual attitudes was recurrent in the child , it was mostly associated with the images of the NORP police and the mother and not those of the father and his new family . The child repeatedly stated that certain terminology which she used had only been used with these figures ( the police constable and the mother ) and she was unable to explain certain of the terminology she herself used . It emerged that the child missed the father and the united family unit , she felt uncared for and that she needed to be left alone in tranquillity . The report concluded that there existed “ a possible sexual trauma and in any event a suffering exacerbated when confronting the subject of an alleged abuse , in addition to the suffering from the continuous conflict between the parents which aggravated the family dynamics and harmed the child ’s equilibrium ” . However , the report could not confirm that such a state was due to an actual abuse , as it could have been the result of a sexually charged environment in which the child was brought up .

After protracted proceedings in which both parties were represented and extensive expert evidence was submitted , and following a collegial hearing of DATE , ORG issued a ( CARDINAL page ) partial decision , filed in the relevant registry on DATE . It pronounced the couple ’s separation . Furthermore , having considered the parties’ submissions , the expert evidence – particularly the medical reports DATE , the CTUs , the reports of the NORP police and of the NORP social services , and confirming its jurisdiction , it ordered , inter alia , that custody of the child be assigned to ORG ; that the mother return the child to GPE immediately , if necessary with the assistance of the public forces ; that the child ’s name be removed from the passport of the nanny who had previously accompanied her on her travels ; that GPE place the child , if possible with her mother ( should she be so willing ) , in a protected place , and instigate a course of therapy , making available to the parents every form of therapy and support that might assist with parenting and meetings between father and daughter , which had to resume ; that the mother pay compensation to the father and the child for breaching the previous contact orders and causing a sudden interruption in the relationship between father and child ( by also forbidding any telephone communication ) , with the ensuing repercussions on the child ’s equilibrium and the moral suffering caused to both .

On DATE , the first applicant appealed to ORG , requesting the suspension of the partial decision .

On DATE , the father registered ORG order of CARDINAL DATE in ORG and GPE , requesting its enforcement . On DATE ORG ordered the registration of the order and the securing of the passports and identity cards of both the mother and her child . The first applicant , in her application to the ORG , stated that she could request from the father the restitution of her documents for periods relevant to work - related travel .

On DATE the first applicant requested permission to appeal against the ORG decision , and requested that the decision be stayed in the meantime .

On DATE X. released the first applicant ’s identity card .

By a judgment of DATE , filed in the relevant registry on CARDINAL DATE , containing a reasoning of CARDINAL pages , ORG in GPE dismissed the mother ’s appeal against ORG decision of DATE . It noted that the proceedings had been long and complex , marked by various decisions , based on pleadings and evidence submitted by both parties , who had effectively participated ( contradittorio ) . It dismissed her application for the case to be transferred to the jurisdiction of GPE noting , inter alia , that all of the parties were NORP . The child had been born in GPE , where she had remained for DATE of her life ; the child had only left GPE due to her mother ’s work and had regularly returned on multiple and extensive visits ; the child ’s mother tongue was NORP and she had only just started to learn LANGUAGE ; and the NORP courts could not be said to be better suited to deal with the application given the stage of the proceedings in which extensive investigative measures had been ongoing for DATE , including CARDINAL expert witnesses , psychiatric assessments of the parties and huge amounts of evidence .

On the merits , considering all of the different evidence before the court , including the child ’s testimony also through expert reports , but excluding video recordings which had been made with unknown technologies and which had not been open to challenge by the father , it held that the medical evidence was not conclusive and that the advice given by the NORP police on the basis of the mother ’s unilateral statements could not be regarded as determinative of the father ’s guilt , though it was not yet excluded as investigations in GPE were still ongoing . ORG was seriously concerned about the level of acrimony between the parents and the damage to the child . It clearly emerged from the report of the court - appointed expert witness , the reports of the expert witnesses of the parties and the report of NORP social services that the child was in a serious situation of psychological distress . In particular , it referred to the damage relating to the sexual and corporeal sphere and also the suffering caused by the current conflict between her parents , and her need , which had been denied , to maintain a network of connections with members of the father ’s family and her father . The position of the child , the fact that she had not seen her father since DATE , was considered to be grave . It was considered necessary to clarify once and for all this position given the confusion caused by the accusations of the mother and the damage produced by an invasive investigative approach aimed exclusively and obsessively at finding abuse DATE and deliberately designed to remove the child from the father – with no respect for the consequences upon the child , who was clearly unhappy and displaying physical and psychological suffering .

The court therefore endorsed the decision of ORG to order the return of the child to GPE and her placement in a neutral environment , with the mother , if the mother wished , or alone , if she did not , with a course of therapy and the reinstatement of contacts with the father in a protected and monitored fashion . The court considered this to be an inevitable solution , given the increasingly serious and poisonous situation , which could only be sorted out in a neutral place , where the nature and origin of the child ’s fundamentally sexual compulsive behaviour , her eroticisation and the minor ’s adult expressions , with sexual content , could finally be fully deciphered , and the family dynamics and parenting skills of the mother and father could be observed . Indeed , the mother appeared anxious and showed little empathy towards her daughter ( according to ORG reports ) , she was not in favour of allowing father - child contact and her actions were of emotional harm to the daughter . With regard to the suffering that the child would undoubtedly experience if the order were carried out , it was pointed out that the mother had the possibility of reducing this alleged suffering by agreeing to be placed in the home with her daughter for the limited period of time needed to sort out the family dynamics , a choice that was compatible with her activity as a university researcher entitled to periods of DATE or leave to conduct research in other countries .

On DATE , ORG ordered that ORG of ORG was the correct court to consider the mother ’s appeal against the execution of ORG order in which she relied on LAW and ( b ) of ORG ( ORG ( ORG ) CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ) . It ordered that a LAW ( Children and ORG ) report be presented . In the ORG report dated DATE , concerns were set out about the enormous effect of the enforcement of the NORP court ’s order which would remove the child from GPE and into institutional care in GPE with or without her mother . It suggested that ORG position in the proceedings be safeguarded by a guardian to be appointed . This suggestion was rejected by the court on DATE .

On DATE , the mother ’s appeal was dismissed by ORG after DATE final hearing , the appointment of an advocate to assist with interpretation of ORG ( ORG ( ORG ) No CARDINAL/CARDINAL ) of DATE , and the consideration of over CARDINAL pages of evidence , including the evidence before the NORP courts and of the court - appointed expert . It was accepted that the NORP courts had jurisdiction in relation to the child , and that under LAW the court in GPE could only refuse to enforce the order for CARDINAL of the reasons specified in Articles CARDINAL , DATE and DATE of the Regulations , and could not review the substance of the NORP order . The issues were limited to whether the decision of ORG of DATE was manifestly contrary to public policy of the Member ORG in which recognition was sought , taking into account the best interests of the child ( LAW ( a ) ) , or whether it was taken without the child having been given an opportunity to be heard , in violation of the fundamental principles of procedure in GPE LAW b ) ) . It was not accepted that the policy adopted by the NORP courts in any way differed from that which would have been adopted by the GPE courts , as the welfare considerations of the child plainly lay behind their decision . The order could therefore not be considered to be manifestly contrary to public policy . In addition , it was considered clear that the child ’s voice had been put before the NORP courts through the expert witness who had prepared a thorough report which went conscientiously through a mass of material and involved a series of interviews with all parties . It was also abundantly clear that the expert was highly concerned about the child and had highlighted the child ’s welfare in the clearest possible terms . The NORP courts had set out clearly why further assessments of the child , which all parties agreed were necessary , could not be done in GPE , making their orders even more understandable . In addition , the order was not a final order and was only for a limited time solely to address the problems that had caused the child to suffer to the extent that she had . It was clear that if sexual abuse by the father was established , relations with the father would be stopped . It was noted that the NORP court was faced with CARDINAL difficult problems – on the one hand to discover the truth behind the mother ’s allegations and on the other hand to prevent the child suffering further , as set out by the expert , as a result of the atmosphere created by the mother denigrating the father , and refusing to comply with court orders despite warnings . It was accepted that the order requiring mother and child to move to GPE even for a short time would cause the child upset , and might impact on the mother ’s employment . Nevertheless , it was considered to be wrong to ignore the significant part that the mother ’s attitude and actions had played in bringing about the present situation and the order of the NORP courts . Overall , the solution chosen by the NORP courts placed in such a dilemma was considered to have particular benefits including , inter alia , allowing the mother to remain with the child , the fact that it was only a short term measure , the fact that contact with the father was dependent upon the determination of the mother ’s allegations , and that any decisions which followed would be taken by the same court that had heard this matter extensively since DATE . ORG therefore made an order for recognition of the NORP court order , dismissed the mother ’s application for a stay of the proceedings and dismissed her application for a transfer of the proceedings to ORG .

By a decision of CARDINAL DATE , filed in the relevant registry on DATE , ORG rejected the first applicant ’s appeal on the basis that the appeal grounds were unfounded . It noted , however , that in respect of jurisdiction ORG decision had been based on the application of the Brussels II Regulation , which at the time had not been applicable . In respect of other grounds of appeal it considered that the impugned decision had been comprehensive , took account of all the pleadings of the parties and appeared wholly legitimate . As to the merits , namely the admissibility and assessment of evidence , ORG considered that ORG had given ample , logical and correct reasons justifying its decision .

On DATE , ORG in GPE issued a further judgment to clarify aspects of the previous judgment and ordered the execution of the NORP order by DATE . It clarified that the mother ’s application for a stay of the proceedings had been dismissed together with her application that ORG should not enforce the decision of the NORP court . The NORP authorities had provided information about where the assessment would take place , the accommodation that would be provided and further details of the plans for the mother and the child in GPE . Whilst sympathetic to the fact that the child would have to be taken out of school DATE before the end of term , it was noted that proceedings in GPE had been ongoing since DATE , and the date of enforcement continually delayed . It was noted in particular that the mother had accepted that she would be obliged to go and stay with the child in GPE to undertake assessments . This would give the child the enormous advantage of having her mother with her when she went to an unfamiliar setting . Finally , ORG refused to extend the time - limit to appeal , but in any event refused to grant leave to appeal , as not only was the decision under consideration not contrary to public policy , but it was one which the NORP courts might well have followed .

On DATE the first hearing in the divorce proceedings took place in GPE . The judge offered to “ withdraw ” the order for the placement of the child in an institution if the child entered GPE voluntarily .

On DATE , ORG dismissed the mother ’s further application for a stay of the execution of the NORP order , confirming that the mother should return the child to GPE by DATE .

On DATE , following attempts to reacquire their travel documents , the applicants returned to GPE . On DATE , in the context of the divorce proceedings , the judge held that GPE should remain under the custody of ORG but that she could live with her mother for the limited time the latter was in GPE , the father to pay an allowance for the renting of an apartment .

In DATE GPE regularly met with the doctors from PERSON ( a service aiding the exercise of access rights according to LAW ) . From then up to DATE supervised access with the father took place once DATE and thereafter on a DATE basis .

On DATE , following the father ’s refusal to pay the deposit for rent of an apartment , the applicants moved to GPE , although arrangements were in progress for the child to start school in GPE . On DATE the first applicant removed FAC from her passport following complaints by the father .

On DATE the NORP inquiry into allegations of sexual abuse was discontinued , having become time - barred .

In the meantime , proceedings were pending in respect of the first applicant ’s financial situation and the financial obligations of the parents , and various decrees were issued , including in respect of the child ’s schooling . On DATE A.S. was allowed to go on holiday to GPE with her mother . They went to GPE from DATE .

On DATE the NORP police discontinued the investigation regarding sexual abuse . By a letter of DATE the first applicant was informed that the case had also been reviewed by ORG and after a careful consideration of all the facts and the recent changes in circumstances surrounding GPE and her father ’s supervised contact , it had been decided that no further active investigation would ensue .

The first applicant alleged that the father had again abused the child on a particular occasion when the child went to buy an ice - cream with her father with no supervision . She claimed that although she had urged the social services and medical staff to implement PERSON therapy , no action had been forthcoming .

Following the first applicant ’s proposal for settlement in the context of the separation proceedings , on DATE the father agreed to drop the judicial separation proceedings . Access decrees continued to be delivered according to the needs and in the best interests of the child , and from DATE GPE was spending DATE every fortnight at her father ’s residence .

In DATE the parents commenced a mediation process at the local department in GPE .

On CARDINAL DATE Spazio Neutro handed in another report suggesting the continuation of the current arrangements in GPE . The applicant complained that no mention was made of the fact that she would lose her job if she did not return to GPE .

Divorce proceedings continued in DATE . By a decision of CARDINAL DATE , GPE was to spend part of DATE ( DATE ) in GPE with her mother and another part ( DATE August ) with her father . A request lodged on DATE by the first applicant for the child to have DATE with her in GPE was rejected on DATE on the ground that there had been no time for ORG , to whom the child was entrusted , to give its approval . Moreover , it was noted that since the lodging of the request coincided with DATE of the father ’s period of vacation with the child , it appeared that the request had been made with the intention of disrupting this already ordered period of holiday with the father . Furthermore , the child would have been unable to attend the visits with the social services and the municipality , if away from GPE .

In a social ORG report dated DATE , it was considered that the current arrangements were adequate to the minor ’s needs and it would not be necessary to limit the GPE rights any further in respect of medical and schooling issues . The report further noted with concern the repetitive requests of the parents regarding matters not related to the custody of the minor , which were taking precedence over the main issues and increasing conflict between the parents .


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

Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE ( GPE ) .

On DATE Mr S. was fatally injured by a shot fired at a travellers ' encampment ( campo nomadi ) in GPE . The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing .

On DATE the GPE investigating judge made an order for the applicant 's detention pending trial . However , the order could not be enforced as the applicant had become untraceable . As a result , the NORP authorities considered that he had deliberately sought to evade justice and on DATE declared him to be a “ fugitive ” ( latitante ) . The applicant was identified as PERSON ( or PERSON ) PERSON ( or PERSON ) , probably born in PERSON on DATE , the son of PERSON ( or PERSON ) and the brother of PERSON ( ou PERSON ) PERSON ( or PERSON ) .

As the NORP authorities had not managed to contact the applicant to invite him to choose his own defence counsel , they assigned him a lawyer , who was informed that his client and CARDINAL other persons had been committed for trial on a specified date in ORG .

NORP The lawyer took part in the trial , but the applicant was absent .

In a judgment of DATE , the text of which was deposited with the registry on DATE , ORG convicted the applicant of murder and illegally carrying a weapon and sentenced him to DATE and DATE imprisonment . CARDINAL of the applicant 's fellow defendants was sentenced to DATE and DATE imprisonment for the same offences , while the other CARDINAL were acquitted .

The applicant 's lawyer was informed that ORG judgment had been deposited with the registry . He did not appeal . The applicant 's conviction accordingly became final on DATE .

On DATE the applicant was arrested in GPE by the NORP police under an arrest warrant issued by the GPE public prosecutor 's office . On DATE the NORP Minister of ORG requested the applicant 's extradition . He added that , once he had been extradited to GPE , the applicant would be entitled to apply under LAW of LAW for leave to appeal out of time against ORG judgment .

At the request of the NORP authorities , the GPE public prosecutor 's office stated that it did not appear from the evidence that the applicant had been officially notified of the charges against him . The public prosecutor 's office was unable to say whether the applicant had contacted the lawyer assigned to represent him . In any event , the lawyer had attended the trial and had played an active role in conducting his client 's defence , having called a large number of witnesses . Furthermore , ORG had clearly established that the applicant , who had been identified by numerous witnesses as PERSON killer , was guilty . In the opinion of the public prosecutor 's office , the applicant had absconded immediately after PERSON death precisely to avoid being arrested and tried . Lastly , the public prosecutor 's office stated : “ A person who is to be extradited may seek leave to appeal against the judgment . However , for a court to agree to re - examine the case it has to be proved that the accused was wrongly deemed to be a ' fugitive ' . To sum up , a new trial , even in the form of an appeal ( during which new evidence may be submitted ) , is not granted automatically . ”

On DATE the NORP authorities refused the NORP government 's extradition request on the ground that the requesting country 's domestic legislation did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened .

In the meantime , the applicant had been released on DATE . He has never lodged an objection to execution ( incidente d'esecuzione ) or an application for leave to appeal out of time ( see “ Relevant domestic law and practice ” below ) in GPE .

The validity of a conviction may be contested by means of an objection to execution under LAW ( “ the ORG ” ) , the relevant parts of which provide :

“ Where the judge supervising enforcement establishes that a judgment is invalid or has not become enforceable , he shall , [ after ] assessing on the merits [ nel merito ] whether the safeguards in place for a convicted person deemed to be untraceable have been observed , ... suspend its enforcement , ordering , where necessary , that the person be released and that defects in the service of process be remedied . In such cases the time allowed for appealing shall begin to run again . ”

Article CARDINAL § § CARDINAL and CARDINAL of the ORG provides for the possibility of applying for leave to appeal out of time . The relevant parts of that provision were worded as follows at the time of the applicant 's arrest :

“ In the event of conviction in absentia ... , the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge [ effettiva conoscenza ] [ of it ] ... [ and ] on condition that no appeal has been lodged by his lawyer and there has been no negligence on his part or , in the case of a conviction in absentia having been served ... on his lawyer ... , that he did not deliberately refuse to take cognisance of the procedural steps .

A request for the reopening of the time allowed for appeal must be lodged within DATE of the date ... on which the defendant learned [ of the judgment ] , failing which it shall be declared inadmissible . ”

When called upon to interpret this provision , ORG has held that the rejection of an application for leave to appeal out of time can not be justified by mere negligence or lack of interest on the defendant 's part but that , on the contrary , there must have been “ intentional conduct designed to avoid taking cognisance of the procedural steps ” ( see ORG judgment of DATE ( no . DATE ) in ORG , and also ORG judgment no . DATE ) . More specifically , where a judgment has been served on the accused in person , the accused must prove that he or she was unaware of it and that there has been no negligence on his or her part ; however , where the judgment has been served on an absent defendant 's lawyer , it is for the court to establish whether the defendant deliberately avoided taking cognisance of the relevant steps ( see ORG judgment of DATE ( no . DATE ) in PERSON , where ORG set aside an order in which ORG had held that negligence could only be due to the wish not to receive any information , thereby treating negligent conduct as intentional without giving any arguments in support of that position ) .

NORP In its judgment of DATE ( no . DATE ) in FAC , ORG ( First Section ) observed that leave to appeal out of time could be granted on CARDINAL conditions : if the accused had not had any knowledge of the proceedings and if he or she had not deliberately avoided taking cognisance of the procedural steps . It was for the convicted person to prove that the first condition was satisfied , whereas the burden of proof in respect of the second lay with the “ representative of the prosecution or with the court ” . Accordingly , a lack of evidence as regards the second condition could only work to the defendant 's advantage . ORG accordingly held that , before declaring defendants to be “ fugitives ” , the authorities should not only search for themthey had intentionally avoided complying with a measure ordered by the court , such as a measure entailing deprivation of liberty ( see the First Section 's judgment of DATE ( no . DATE ) in ORG and PERSON ) .

On DATE ORG approved PERSON no . CARDINAL/CARDINAL , by which Legislative Decree no . CARDINAL of DATE became statute . Law no . CARDINAL was published in ORG ( PERSON ) no . CARDINAL of DATE . It came into force the following day .

Law no . CARDINAL amended LAW ORG . The new version of paragraph CARDINAL reads as follows :

“ In the event of conviction in absentia ... the time allowed for appeal against the judgment shall be reopened , on an application by the defendant , unless he had effective knowledge [ effettiva conoscenza ] of the proceedings [ against him ] or of the judgment [ provvedimento ] and has deliberately refused to appear or to appeal against the judgment . The judicial authorities shall carry out all necessary checks to that end . ”

Law no . CARDINAL also added a paragraph CARDINAL bis to LAW ORG , worded as follows :

“ An application referred to in paragraph CARDINAL above must be lodged within DATE of the date on which the defendant had effective knowledge of the judgment , failing which it shall be declared inadmissible . In the event of extradition from another country , the time allowed for making such an application shall run from the point at which the defendant is handed over [ to the NORP authorities ] ... ”

In Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at domestic level following judgments of ORG encouraged the Contracting Parties “ to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re - examination of the case , including reopening of proceedings , in instances where the ORG has found a violation of the LAW , especially where : ( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue , which are not adequately remedied by the just satisfaction and can not be rectified except by re - examination or reopening , and ( ii ) the judgment of the ORG leads to the conclusion that ( a ) the impugned domestic decision is on the merits contrary to the LAW , or ( b ) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of . ”


Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Mr PERSON , who lives in Nîmes , was formerly in practice as an architect .

On DATE ORG awarded him a contract for work on the design and construction of a general - purpose senior high school to be built as part of the ORG school system . While the work was in hand he received advances on the agreed fees totalling MONEY ( ORG ) as stipulated in the contract .

In a letter of CARDINAL DATE the ORG asked the applicant to carry out a further study and prepare the plans for a building to be used as boarding accommodation that had not been included in the original invitation to tender .

When the work was completed the ORG decided to reduce by CARDINAL the amount of the agreed fees , alleging , among other matters , breaches by the applicant of his contractual obligations . It also refused to pay his fees for drawing up the plans for the boarding unit and , taking into account the official classification and the complexity of the work that had actually been done , asked him to repay ORG CARDINAL of the interim payments he had received .

On DATE Mr PERSON lodged an application with ORG , which registered it on DATE . He sought an order requiring ORG to pay him ORG , and the interest to which he was legally entitled , as final settlement of the fees agreed in the contract .

The ORG filed its defence on DATE .

On DATE the applicant filed an additional pleading . On DATE and again on DATE he sent letters to the President of ORG requesting that a date be fixed for the hearing . On DATE he filed further documents .

On DATE the applicant again requested the President of ORG to fix a date for the case to be tried .

In an interlocutory decision of DATE ORG ordered an expert opinion to establish whether the work had been correctly carried out by PERSON and gave the expert appointed DATE in which to submit his report .

On DATE Mr PERSON permanently gave up his architect ’s practice on account of financial difficulties .

On CARDINAL DATE the expert filed his report , in which he assessed the balance of the fees owed at ORG CARDINAL , plus FRF CARDINAL in fees for preparing the plans of the boarding unit .

On DATE the applicant asked the court to order ORG to pay him ORG under the contract and ORG CARDINAL in payment for the plans of the boarding unit , plus default interest on both sums from CARDINAL DATE . He further claimed ORG CARDINAL in damages .

On DATE ORG put the ORG on notice to produce their pleading .

On DATE the applicant filed a supplementary pleading in which he repeated his submissions of CARDINAL DATE ( see paragraph CARDINAL above ) and sought an order requiring the ORG to pay ORG CARDINAL,CARDINAL in compensation for the extra costs of drawing up the plans .

NORP In a letter of DATE he pointed out to the President of ORG that the time - limit given to ORG for the production of their pleading ( see paragraph CARDINAL above ) had expired with no reply forthcoming .

On DATE and DATE Mr PERSON filed further observations .

NORP In letters of DATE and DATE to the President and the registry of ORG the applicant again asked for DATE to be fixed for the hearing . This was held on DATE .

On DATE ORG ordered ORG to pay the applicant the sum of ORG CARDINAL,CARDINAL.CARDINAL , ORG of which was to bear default interest as from DATE and ORG CARDINAL from DATE . A sum of ORG CARDINAL,CARDINAL , which was to bear default interest as from DATE , had been deducted from the fees owed to the architect on account of the unsatisfactory quality of the work done by his sub - contractor . With regard to the damage to Mr PERSON ’s professional reputation , the judgment stated that he had not proved “ that the fall in his practice ’s turnover was the direct consequence of conduct imputable to ORG … ” .

On DATE the applicant , considering that the sum awarded was insufficient , appealed to ORG .

As the appeal did not have suspensive effect , Mr PERSON applied on DATE to ORG of the ORG d'Etat . However , after the ORG had made a first payment the case was closed on DATE on the ground that execution of the judgment was currently in progress . The ORG ’s CARDINAL further payments were made in DATE and DATE .

ORG filed its defence on DATE .

On DATE ORG upheld ORG judgment regarding the capital sum but ordered the ORG to pay interest on the interest awarded at first instance which had accrued since DATE .

NORP In letters of DATE , CARDINAL May and CARDINAL DATE the applicant applied to the prefect of the Gard département to secure compliance by ORG with the above judgment . The sum owed to the applicant , ORG ORG , was paid on DATE .

In a judgment delivered by ORG on DATE in connection with the litigation between the applicant and his sub - contractor , Mr PERSON was awarded the sum of ORG , together with default interest calculated from DATE and payable in the form of compound interest from DATE , that sum having been deducted from the outstanding fees he was owed by ORG on account of the unsatisfactory quality of the work done by his sub - contractor ( see paragraph CARDINAL above ) .