CASE OF STRUC v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested together with another person on suspicion of having committed aggravated hooliganism , which included injuring a third person with a knife . On DATE the prosecutor prepared the indictment and sent the case to the trial court .

In a complaint dated DATE the applicant , who was being detained at the time at the LOC police station , informed ORG that he had been ill - treated on DATE at TIME by officer PERSON , who had kicked and punched him , causing head trauma and a bleeding wound , as well as pain in the thoracic region and in his left leg . CARDINAL of the applicant ’s cellmates ( PERSON also signed the complaint , confirming that they had seen injuries on the applicant ’s body .

According to the ORG , this complaint was in fact lodged with the prosecutor on DATE , the applicant stating that he had not complained earlier for fear of further ill - treatment . Only after seeing his lawyer on DATE had he complained officially of his alleged illtreatment DATE .

On DATE an ambulance was called for the applicant . The doctor found cerebral trauma and head injury , contusion of soft tissue in the thoracic region and on the left thigh , and excoriations .

On DATE the ORG prosecutor ’s office found that PERSON , the applicant ’s cellmate on DATE , had confirmed having been told by the applicant of the beating on that date and having seen the injury on the applicant ’s head . He also stated that the applicant had asked staff at the police station to call for an ambulance , which they had refused to do . It was also established that the applicant had been taken out of his cell at QUANTITY on DATE and taken to the office of B. , the deputy head of the LOC police station . PERSON had declared that he had been in PERSON at the relevant time and had not ill - treated anybody . According to a medical report of DATE an excoriation had been found on the right side of the applicant ’s head , which had been caused by the applicant being hit DATE or hitting against – a blunt object , possibly on DATE . On DATE the applicant had been seen by a neurologist , who had found no signs of head trauma . Finally , the prosecutor found that the applicant had “ constantly simulated feeling unwell , and had been escorted to the GPE polyclinic on numerous occasions , the doctors finding no illness ” . The prosecutor decided not to initiate a criminal investigation against officer PERSON since he had not committed any offence . The applicant challenged that decision before ORG .

On DATE the applicant ’s mother complained to ORG about the refusal of the GPE prosecutor ’s office to initiate a criminal investigation . On DATE ORG replied that that question had been examined and rejected in a well - founded decision .

On DATE the prosecutor again refused to initiate a criminal investigation into the applicant ’s alleged ill - treatment .

On DATE ORG rejected the applicant ’s complaint against the prosecutor ’s decision of DATE as not complying with the statutory requirements concerning preliminary complaints to a hierarchically superior prosecutor .

On DATE the applicant ’s lawyer asked for the quashing of the prosecutor ’s decisions of CARDINAL DATE and CARDINAL DATE . He relied on the findings of ORG in its judgment of DATE ( see paragraph CARDINAL below ) .

On DATE the ORG prosecutor ’s office rejected the applicant ’s lawyer ’s request as unfounded , finding that it had not been established that the applicant had been ill - treated . On DATE the applicant ’s lawyer challenged that decision before ORG . On DATE ORG granted his request and quashed the prosecutor ’s decisions of DATE , CARDINAL DATE and DATE .

On DATE a criminal investigation into the applicant ’s complaint of ill - treatment was initiated .

On DATE the applicant asked to be officially declared an aggrieved party in those criminal proceedings . On DATE ORG ordered the applicant ’s transfer from prison no . CARDINAL in PERSON to the remand centre of the LOC police station for DATE in order for him to be officially declared an aggrieved party and to interview him .

On DATE the applicant was officially recognised as an aggrieved party by a prosecutor from the ORG prosecutor ’s office on the premises of that office . On DATE the applicant asked for PERSON ’s dismissal from his functions and his arrest . This was refused on DATE .

On DATE the applicant asked for the case to be transferred to ORG in order to ensure against possible influence by PERSON on prosecutors in the GPE prosecutor ’s office , since PERSON was still a police officer at the GPE police station . The applicant also complained of the absence of his lawyer during a cross - examination of himself and PERSON , during which the latter had allegedly threatened the applicant with violence , in the presence of the prosecutor , because of his complaints ; the prosecutor did not react . This request was rejected on DATE by the ORG prosecutor ’s office .

On DATE the prosecutor decided not to initiate a criminal investigation against PERSON since no signs of a crime had been established . The applicant challenged that decision before ORG . On DATE that court rejected the applicant ’s complaint as unfounded .

The applicant claims that owing to his conditions of detention he became ill with pulmonary tuberculosis and pneumonia . The applicant was held at CARDINAL different detention facilities during his detention ; he did not specify the dates of transfers from CARDINAL such facility to another . It appears from his correspondence with various ORG authorities and the medical records that he was detained in prison no . CARDINAL from DATE until DATE , following which he was transferred back to the GPE police station . On DATE he was transferred to prison no . CARDINAL and on DATE to prison no . CARDINAL .

On DATE the applicant ’s mother asked the investigating judge to order her son ’s release in order to allow him to follow a course of treatment for the CARDINAL illnesses . The applicant made similar requests on CARDINAL , DATE and DATE .

On an unknown date prior to CARDINAL DATE a doctor specialising in respiratory diseases in the GPE polyclinics wrote to the LOC prosecutor ’s office stating that he had examined the applicant on CARDINAL DATE and DATE and had found no signs of active tuberculosis , but only the remaining traces of a previous episode of tuberculosis . On CARDINAL DATE a prosecutor from the ORG prosecutor ’s office rejected the applicant ’s complaints , finding that he had been taken to the LOC polyclinic on several occasions after he complained of having tuberculosis . Moreover , he had been visited on several occasions by ambulance doctors while in detention . On none of these occasions had the diagnosis of tuberculosis been confirmed , and he had thus not been registered with a specialist doctor . He had been given the necessary treatment for his chronic bronchitis .

According to a medical certificate issued on DATE , he was sent from the GPE police station to prison no . CARDINAL for “ retreatment ” ; the certificate gave his diagnosis as “ pulmonary tuberculosis ” and stated that treatment had been prescribed . ”

On DATE a prosecutor from the ORG prosecutor ’s office wrote to the head of the LOC police station stating that on DATE it had been established that persons detained in that station were allowed TIME a day of exercise instead of TIME as required by law . Moreover , the cells smelled bad , which was a sign of poor ventilation and inadequate disinfection .

On DATE the applicant asked to be transferred to the hospital for detainees ( prison no . CARDINAL in GPE ) , but received no reply . He made another such request on DATE . In reply , he was informed on DATE by the head of prison no . CARDINAL in PERSON that he would be transferred shortly thereafter . On DATE the applicant complained to the prison authorities that he had still not been transferred . On DATE he complained to the head of prison no . CARDINAL in GPE about threats to his life . He was then transferred to prison no . CARDINAL in PERSON . On DATE the applicant complained to ORG about his conditions of detention and of an alleged violation of his right to make telephone calls . On DATE he was allegedly beaten while taking his DATE walk , while the prison guards were absent for an unexplained reason .

In a letter to ORG dated DATE the head of ORG described the conditions of the applicant ’s detention and gave details of his medical treatment . According to that letter , at the time the applicant was being detained in prison no . CARDINAL in cells corresponding to the legal requirements and which were well lit and ventilated , with sufficient heating and access to tap water and a toilet separated from the rest of the cell . The applicant had been given medical assistance ; the list of various medical check - ups and interventions spanned CARDINAL pages . Special attention was given by the prison doctors to verifying whether the applicant ’s tuberculosis had reoccurred . To that end , tests specifically aimed at discovering the presence of active tuberculosis , including X - ray examinations , had been carried out upon his arrival at prison no . CARDINAL on DATE and every day between CARDINAL and DATE , then on DATE and DATE , CARDINAL DATE and on a regular basis thereafter . On none of these occasions had there been a confirmation of the diagnosis of active tuberculosis . The tests showed only the presence of the remaining traces of the tuberculosis from which the applicant had suffered in DATE in GPE . For that reason the applicant was not registered in the national Information System for the Monitoring of Tuberculosis . The letter contained annexes with medical certificates confirming the description detailed above . The applicant did not submit evidence contradicting the above .

On an unspecified date the applicant complained to ORG that he had been detained without a legal basis DATE and DATE , since no valid court order for his arrest had been made covering that period . He asked for a criminal investigation to be initiated into his unlawful detention . The complaint was forwarded to the ORG prosecutor ’s office , which rejected it on DATE .

On DATE the applicant asked ORG to quash the prosecutor ’s decisions of DATE and CARDINAL DATE concerning the refusal to initiate a criminal investigation into his unlawful detention . It is unclear whether he received a reply .

On DATE , DATE and DATE the applicant complained to ORG , ORG and ORG , asking to be released immediately in view of the judgment adopted by ORG on DATE ( see paragraph CARDINAL below ) , but this was refused .

On DATE the applicant was convicted by ORG and sentenced to DATE imprisonment . The court found that during TIME CARDINAL DATE he had committed several crimes together with another person : they had first insulted the staff of a bar and smashed beer bottles there , then they had started an argument with customers in another bar and the applicant had struck CARDINAL of them with a knife . TIME they insulted and hit a girl after she had refused their sexual advances . The court also decided to maintain the preventive measure of arrest in respect of the applicant .

The applicant ’s sentence was upheld by ORG on DATE .

On DATE ORG quashed the judgment of ORG , finding that that court had failed to deal with the applicant ’s complaint that he had been ill - treated . The case was sent for a retrial by the second - instance court .

On DATE ORG upheld the first - instance court ’s judgment . It found that the applicant ’s ill - treatment had not been established , as was clear from the decisions not to initiate a criminal investigation taken by the prosecutor on DATE and CARDINAL DATE .

On DATE ORG quashed that judgment . It found that the lower court had failed to establish the fact that the prosecution had not carried out an effective and speedy investigation into the applicant ’s complaint of ill - treatment , in spite of the evidence in support of that complaint . That evidence was sufficient , in the court ’s view , to establish that the applicant had been ill - treated by the police , in breach of LAW . In his decision of CARDINAL DATE , the investigating judge had refused to examine the applicant ’s complaint in substance and had not forwarded it to the competent prosecutor , as required by law , but had rejected it . Moreover , the prosecutor ’s reasons for refusing to initiate a criminal investigation were contradicted by the findings he had made , establishing that injuries had been caused to the applicant while he had been in detention and therefore under the control of the police . The court also found that the applicant ’s rights under Articles DATE and CARDINAL of the Convention had been breached . In the operative part of its judgment the court did not mention any violation of the applicant ’s rights , but sent the case for re - examination .

On DATE ORG partly accepted the applicant ’s appeal , upholding his conviction but reducing his sentence to DATE imprisonment .

On DATE ORG rejected his appeal in cassation . It noted that ORG had taken into consideration the findings of ORG in its judgment of DATE and had carefully assessed all the evidence in the file before reaching its conclusion . That judgment was final .

On DATE the applicant lodged a civil action against ORG claiming compensation for the excessive length of the criminal proceedings in his case . On DATE ORG of Appeal accepted his claim and awarded him CARDINAL NORP lei ( ORG , MONEY ( ORG ) at the time ) in compensation for the non - pecuniary damage caused to him , as well as MDL CARDINAL ( EUR CARDINAL ) for legal costs . That judgment was confirmed by the final judgment of ORG on DATE .


Preliminary objection dismissed (Article 34 - Victim);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

Alvina Gyulumyan;Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Vincent A. De Gaetano

The applicant , who is of GPE origin , was born in DATE and lives in GPE .

In DATE ORG published CARDINAL copies of a book entitled The Gypsies of Turkey , written by Associate Professor PERSON . Before its publication , a publications advisory board approved the content of the book . The preface to the book states as follows :

NORP live in peace on NORP territory DATE , just as they have throughout history , but now they are left entirely to their own devices , without regulation , supervision or attention . Their unregulated way of life , in which they are abandoned entirely to their own fate , is a failing on GPE ’s part . The PERSON current unordered way of life , and the fact that it is considered quite unnecessary to venture into their closed world in any way despite the long history we share , is a further shortcoming . Associated with this is the fact that while NORP have indeed lived for many years among us , they have been ostracised by local people and targeted by vilifying remarks which have , for the most part , been unenlightened and prejudiced . The negative response and distressing accusations which they encounter wherever they go have driven NORP , who already have a societal structure which is closed off from the outside world , to live in still narrower confines .

We felt that there was a need to step into the unknown world of these people who have lived among us for DATE and have now become part of contemporary NORP culture . My aim was thus to get to know them closely using an empirical approach , and to present the NORP of GPE as they are , in all their aspects , on the basis of the principles of scientific objectivity .

This study comprises an introduction and CARDINAL sections .

The introduction provides information about the Gypsy as a concept and the origins of the NORP , as well as detailed information about their migration , and considers their history in GPE in the light of various archive documents and scholarly sources . In the first section , the socio - cultural characteristics of NORP are considered in broad terms . This section examines in particular the home life and travels of GPE , their music , dance , language , traditions and customs . The second section deals with the beliefs and practices of the LANGUAGE .

This study DATE which I present without any pretensions , but merely in a bid to fill a significant gap ( it being the first study of its kind ) , and to provide guidance to others working on the NORP in the future – was prepared using descriptive , comparative and phenomenological methods , in addition to participant observation and interview techniques .

In the introduction , the author went on to state :

Gypsies have spread throughout the world but they have been unable to escape their status as a marginal group which is excluded and despised everywhere . Apart from the differences in their way of life , the characteristic which most obviously distinguishes NORP from others is the colour of their skin , which is darker , swarthier . In typological terms , most NORP are of medium height , of agile build , with large dark black ( occasionally hazel or blue ) eyes and long thick eyelashes ; the men have long moustaches . The mouth is slender and elegant , the teeth white and even , with a round jaw . They have a narrow forehead and temples and a small cranium . Their hair is curly , black , long and thick . Beyond middle age , the women are broad and corpulent . The younger people are slim , with firm and powerful muscles ( see PERSON by Prosper Mérimée , Gypsy Stories of our own and from around the world by PERSON and The sieve - making of the Gypsies of GPE by ORG ) .

This research is intended to present the identity of the NORP , these people who have lived among us for DATE and have become an integral part of contemporary NORP culture , but about whom no comprehensive scientific study has as yet been conducted because their cultural identity has been largely ignored as a result of the difficulties in identifying and defining them . This study will give an account of their socio - cultural characteristics , beliefs , mythologies , festivals and celebrations in all their aspects .

For the purpose of this study , an initial survey was conducted of information , documentation and materials concerning NORP , from GPE and elsewhere . The information and documents thus identified were then classified on the basis of their scientific reliability , using validity criteria . Next , an empirical study involving observation of the participants was carried out by going among the Gypsy population and living with them . Visits were made to all the areas of GPE with a Gypsy population – both nomadic and settled DATE and in this way an effort was made to establish the facts about their way of life , traditions , beliefs , forms of worship and practices , not only by gathering data and documentary and other material , but also by the empirical method of living among them . ”

NORP In the book , the author devoted a chapter to the “ NORP of Contemporary Turkey ” . In this chapter he stated :

“ DATE ’s NORP are scattered all over GPE . They are principally located in the LOC , LOC and LOC regions , with a lower concentration in LOC , central GPE and south - east NORP regions . The distribution of NORP in GPE will be dealt with here .

So far no general population census has included separate records for NORP ; hence , the size of the Gypsy population in GPE is not known with certainty . Rather than using estimated figures , we obtained information from NORP themselves , from local people living nearby and from local administrators . We attempted to clarify this information by making a comparison with the overall district population figures which we received from the district chiefs [ muhtar ] .

GPE

NORP living within the provincial borders of GPE generally make their living from music , flower - selling , scrap - metal dealing , rubbish and paper collection , blacksmithing and ironworking , portering , fortune - telling , cleaning , working with a horse and cart , coppersmithing , slug - collecting and door - to - door selling . There are also some , albeit few in number , who make a living from pickpocketing , stealing and selling narcotics .

Tekirdağ

The Roma ( NORP ) of NORP make their livelihood from playing music , portering and shoe - shining . Women work as domestic cleaners and handle bricks at the brick factory . Those in GPE and ORG earn their living from music , portering , horse trading ( livestock dealing ) , construction work and running lotteries , and the women earn their living from cleaning .

Kırklareli

The GPE of GPE generally make their living from music , working with a horse and cart , street vending , portering , cleaning and scrap - metal dealing .

PERSON

Those who live in GPE centre generally earn their living from working with a horse and cart , scrap - metal dealing and street vending , while the women contribute to the family economy with cleaning work . Nearly all of the inhabitants of the Yukarı GPE district of ORG earn their livelihood from music . The rest of them work in various sectors such as labouring in the rice fields , concrete - pouring on construction sites , portering , working with a horse and cart , collecting frogs and slugs , scrap - metal dealing , paper collection , house painting and selling simit [ a type of bread roll ] . Those in ORG live from scrap - metal dealing , tinsmithing and basket - making .

GPE

The NORP of the central district of GPE earn their living from stealing , begging , door - to - door selling , fortune - telling , zercilik [ robbing jewellery stores ] and making magical charms . A small number are also involved in tinsmithing , working with leather harnesses , sieve - making and basket - making . There are also many who work as musicians in nightclubs . It is reported that most of those who trade in ironmongery around GPE and GPE are NORP from GPE .

We attempted to visit every province and district where NORP were located . The figures which we have given for each province were obtained by comparing information , noting the exaggerated figures given by the NORP and then talking to the district chiefs [ muhtar ] , and where necessary the district police . ... ”

Similar remarks to the ones quoted above were made in respect of the GPE population living in other parts of GPE such as GPE , GPE , GPE , GPE and GPE .

The closing paragraphs of the conclusion to The NORP of GPE read as follows :

“ The most important links connecting the NORP to each other are their family and social structures as well as their traditions . Despite the fact that they have led a nomadic life for DATE , they have managed to protect their traditional way of living thanks to the practice of marrying within the group . Their attachment to these traditions begins at birth and continues till death . Doubtless , tradition is the most significant factor in the Gypsy way of life . The elderly members of Gypsy society bear the heaviest responsibility for protecting and sustaining the traditions . However , due to ever - changing circumstances and needs , the social structure of the GPE has become difficult to preserve . In particular “ GPE ” , CARDINAL of these social structures , can no longer be sustained in DATE ’s GPE .

The most striking characteristic of NORP is their way of living . Hence , all branches of socio - cultural activity , consisting of migration and settlement , dance , music , language , eating and drinking , fortune - telling , sorcery and occupations , constitute the true nature of Gypsy life . That is to say , these elements form the visible part of the iceberg . Other persons usually recognise Gypsies through these phenomena . Nevertheless , the way to truly know GPE is to mingle with their society and fully analyse their traditions and beliefs . The secret world of the NORP reveals itself through their beliefs , in particular through their superstitions and taboos .

NORP , like everyone , feel the need to have faith and to worship . In addition to adopting the religion of the country they live in , they also perpetuate the traditional beliefs specific to their culture . Consequently , it is observed that NORP have genuine feasts and celebrations stemming from their beliefs , which can be partly traced to NORP .

In our opinion these people , who suffer from humiliation and rejection everywhere , could be transformed into citizens who are an asset to our ORG and our nation once their educational , social , cultural and medical problems are addressed . This simply entails focusing on this issue with patience and determination . ”

On DATE the applicant filed a petition with ORG on behalf of ORG associations . In his petition he submitted that in the book the author had stated that NORP were engaged in illegal activities , lived as “ thieves , pickpockets , swindlers , robbers , usurers , beggars , drug dealers , prostitutes and brothel keepers ” and were polygamist and aggressive . The applicant also submitted that the book contained several other remarks that humiliated and debased NORP . Claiming that these remarks constituted a criminal offence , he requested that the sale of the book be stopped and all copies seized .

On DATE the Head of the publications unit at ORG ordered that the remaining CARDINAL copies of the book be returned to the publications unit .

On DATE the applicant wrote a letter to ORG enquiring whether the copies of the book had been seized .

On DATE the Head of the publications unit at ORG informed the applicant that the publications advisory board of ORG , composed of CARDINAL professors , had decided that the book was a piece of scientific research and did not contain any insults or similar remarks . The applicant was also informed that the author of the book would not permit any amendments to the text and that , at the author ’s request , ORG had transferred copyright of the book to him .

On DATE the applicant sent letters to ORG and to Associate Professor PERSON , repeating his initial request . He received no reply .

Subsequently , on DATE the applicant brought proceedings in his own name against ORG and the author of the book before ORG , claiming compensation for the non - pecuniary damage he had sustained on account of the remarks contained in the book . He alleged that these remarks constituted an attack on his identity as a ORG and were insulting . The applicant also asked for the copies of the book to be confiscated and for its publication and distribution to be banned .

The author of the book submitted , in reply , that his reference materials had been the records of the GPE police headquarters and books written by other authors on NORP , and that he had not intended to insult or humiliate LANGUAGE . The author further stated that the passages referred to by the applicant should not be considered in isolation , but in the context of the whole book .

On DATE ORG dismissed the applicant ’s requests in so far as they concerned the author of the book . It considered that the book was the result of academic research , was based on scientific data and examined the social structures of ORG in GPE . The first - instance court therefore held that the remarks in question did not insult the applicant . As to the applicant ’s case against ORG , ORG decided that it lacked jurisdiction and that the administrative courts were competent to decide on the applicant ’s claim .

On DATE the applicant appealed . In his petition , he submitted that the book could not be considered as scientific research and that therefore ORG should not have published it .

On DATE ORG upheld the judgment of the first - instance court . It noted that the remarks objected to by the applicant were of a general nature . It therefore found no grounds for concluding that they concerned all Roma / Gypsies or that they constituted an attack on the applicant ’s identity .

On DATE a request by the applicant for rectification of the decision was dismissed .

Subsequently , on an unspecified date the applicant initiated proceedings against ORG before ORG . He requested non - pecuniary compensation , alleging that the content of the book published by ORG had been offensive and insulting towards the ORG community . On DATE ORG dismissed the applicant ’s case . It held that before its publication the book in question had been examined by a rapporteur appointed by the publications advisory board . Following his approval , the advisory board had agreed to publish the book . In the wake of the applicant ’s allegations the advisory board , composed of CARDINAL professors , had examined the book again on DATE and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale . ORG therefore concluded that the applicant ’s allegations were unsubstantiated . The applicant did not appeal against this decision .

In DATE and DATE respectively ORG , a non - governmental organisation , published CARDINAL dictionaries entitled ORG ( Öğrenciler için FAC ) and ORG ( Türkçe Sözlük ) . Apart from their titles , both dictionaries had exactly the same content . The publication of these dictionaries was part - financed by ORG .

On DATE the applicant sent a letter to ORG of ORG on behalf of ORG . In his letter , the applicant submitted that certain entries in the dictionaries were insulting to and discriminatory against ORG .

On page CARDINAL of both dictionaries , the following entries were made regarding the word “ Gypsy ” ( çingene ) :

“ ‘ PERSON ( PERSON ) : CARDINAL . an ethnic group or person belonging to an ethnic group originating from GPE , whose members lead a nomadic way of life and are widely dispersed in the world . CARDINAL . ( metaphorically ) miserly .

‘ Gypsy debt’ ( Çingene borcu ) : an unimportant debt which consists of several small debts .

‘ Gypsy plays Kurd dances’ ( PERSON çalar ORG oynar ) : a place where there is a lot of commotion and noise .

‘ Gypsy tent’ ( Çingene çergesi ) ( metaphorically ) : a dirty and poor place .

‘ Gypsy wedding’ ( PERSON düğünü ) : a crowded and noisy meeting .

‘ ORG ( PERSON kavgası ) : a verbal fight in which vulgar language is used .

‘ Gypsy money’ ( PERSON parası ) : coins .

‘ Gypsy pink’ ( PERSON pembesi ) : pink .

‘ Gypsy language’ ( NORP ) : language used by NORP .

‘ ORG ) : CARDINAL . being a Gypsy CARDINAL . ( metaphorically ) being miserly or greedy .

‘ Becoming a ORG ( ORG ) : displaying miserly behaviour . ”

In the applicant ’s opinion , the entries regarding the Gypsy community had negative , discriminatory and prejudiced connotations . The applicant further submitted that ORG and ORG had amended their dictionaries at his request , and likewise asked ORG to correct the above - mentioned definitions and to remove any discriminatory expressions from the dictionaries . He received no reply to his letter .

Subsequently , on DATE the applicant sent a further letter to ORG , repeating his request . He added that he would bring a case against the ORG if his request was not granted by DATE .

On DATE the applicant brought proceedings in ORG against ORG , requesting that the above - mentioned definitions and expressions be removed from the dictionaries . The applicant also requested compensation for the non - pecuniary damage he had sustained on account of the expressions contained in the dictionaries . In that connection he alleged that the dictionary definitions constituted an attack on his identity as a ORG and an insult to him personally .

In its submissions in reply , ORG maintained , inter alia , that the definitions and expressions contained in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group . It further submitted that the dictionaries contained expressions and definitions that were commonly used in society and that there were other similar expressions in NORP which concerned NORP , NORP and NORP .

On DATE ORG dismissed the applicant ’s case . It held that the definitions and expressions in the dictionaries were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group . It further noted that there were similar expressions in NORP concerning other ethnic groups , which appeared in dictionaries and encyclopaedias .

The applicant appealed . On DATE ORG upheld the judgment of DATE .

Article CARDINAL of the Civil Code reads as follows :

“ Any person whose personal rights are unlawfully infringed may apply to a judge for protection against all those causing the infringement .

An infringement is unlawful unless it is justified by the consent of the person whose rights have been infringed or is made necessary by an overriding private or public interest or by law . ”

Furthermore , according to LAW :

“ A claimant may ask a judge to prevent a threat of infringement , to order the cessation of an ongoing infringement or to establish the unlawfulness of such an infringement even where it has already ceased .

In addition to such action the claimant may also request that the rectification or the judgment be published or served on third parties .

Article CARDINAL § CARDINAL of the former Criminal Code provided as follows :

“ Any person who incites others to hatred or hostility on the basis of a distinction between social class , race , religion , denomination or region shall , on conviction , be liable to CARDINAL years’ imprisonment and to a fine of MONEY and DATE . If this incitement endangers public safety , the sentence shall be increased by CARDINAL . ”

On DATE a new Criminal Code ( Law no . DATE ) came into force . LAW provides as follows :

“ CARDINAL . Any person who publicly provokes hatred or hostility in CARDINAL section of the public against another section with different characteristics based on social class , race , religion , sect or regional differences , such as to create a clear and close danger to public safety , shall be sentenced to a term of imprisonment of DATE .

Any person who publicly denigrates a section of the public on grounds of social class , race , religion , sect , gender or regional differences shall be sentenced to a term of imprisonment of DATE .

In its fourth report on GPE ( CRI(CARDINAL)CARDINAL ) , published on DATE , ORG welcomed the fact that in order to discourage negative stereotyping , connotations which might have been perceived as discriminatory in the dictionary definition of the term “ Gypsy ” had been removed . It further encouraged the NORP authorities to pursue and strengthen their efforts to combat negative stereotyping of the GPE and to build a constructive dialogue with the GPE community .

In its General Policy Recommendation No . CARDINAL on combating racism and racial discrimination in and through school education , adopted on DATE , ORG also recommended that member GPE ensure that school education played a key role in the fight against racism and racial discrimination in society “ by promoting critical thinking among pupils and equipping them with the necessary skills to become aware of and react to stereotypes or intolerant elements contained in [ the ] material they [ used ] ” .


VAN DEN BOUWHUIJSEN and SCHURING v. THE NETHERLANDS

The applicants , PERSON and PERSON , are mother and daughter . They are GPE nationals , born in DATE and DATE respectively , and live in PERSON , the GPE . They are represented before the ORG by PERSON A.M.W. PERSON , a lawyer practising in GPE .

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

The first applicant cohabited with her partner , Mr GPE , from DATE until the latter ’s death in DATE . They were not married . On DATE a daughter , Jolien – the second applicant DATE was born to the couple . Mr GPE legally recognised his daughter and , following a decision by ORG ( kantonrechter ) of CARDINAL DATE , both parents were invested with parental authority over ORG .

On DATE , following the death of Mr Schuring , the first applicant requested a survivor ’s benefit on behalf of ORG from ORG ( ORG ) pursuant to ORG and LAW ( Algemene Weduwen- en Wezenwet ; “ AWW ” ) . In her request she acknowledged that under the provisions of the AWW she herself was not entitled to a widow ’s pension as she had not been married to Mr Schuring . However , as her daughter had been financially dependent on her father , she laid claim , on behalf of her daughter , to benefits to the amount of PERCENT of the statutory minimum wage . In the subsequent proceedings she argued that since a widow without children was entitled to a partial widow ’s pension amounting to PERCENT of the statutory minimum wage and a widow with a child under the age of CARDINAL received a full widow ’s pension amounting to PERCENT of the statutory minimum wage , a child born of married parents was in effect awarded a survivor ’s benefit amounting to PERCENT of the statutory minimum wage in the form of an extra allowance on top of his / her surviving parent ’s benefit . Not awarding this component of the widow ’s pension to ORG because her parents had not been married – a circumstance over which ORG had had no control – amounted to unjustified discrimination on the grounds of birth .

To substantiate her argument that the difference between a full and a partial widow ’s pension had always been intended to benefit the child who had lost CARDINAL of his / her parents , the first applicant referred to the drafting history of LAW ( PERSON ) which replaced the AWW on DATE . She also pointed to ORG no . CARDINAL ( ORG , DATE ) and no . CARDINAL ( the Invalidity , Old - Age and Survivors’ Benefits Convention , DATE ) which oblige member states to provide cash benefits to the dependent children of a breadwinner . According to the first applicant , the GPE legislator had complied with this obligation by awarding higher benefits to widows with minor children . However , by requiring that the surviving parent be married to the deceased , a dependent child born out of wedlock was excluded .

The first applicant ’s request was rejected by ORG on DATE . It held that as the first applicant had not been married to PERSON Schuring , she was not eligible for either a partial or a full widow ’s pension . Moreover , although the AWW did provide for benefits for orphans , ORG could not be awarded such benefits as she was not an orphan , one of her parents still being alive .

The first applicant ’s objection ( bezwaar ) was rejected by ORG on DATE . Her appeal ( beroep ) to ORG ( arrondissementsrechtbank ) of GPE was rejected on DATE . Finally , ORG ( ORG ) rejected the first applicant ’s appeal ( hoger beroep ) on DATE .

ORG found that no unjustified discrimination had taken place . Referring to its own case - law , it reiterated that the fact that the pension for a widow with a child under DATE was higher than that for a widow without children did not entail that that difference should be considered as a cash benefit for the child who had lost CARDINAL of his / her parents . The AWW provided for benefits for CARDINAL kinds of survivors : widows and orphans . It was only in respect of a widow ’s pension that a difference in treatment was made , in that a marriage between the deceased and the survivor was required in order to create a right to such a pension . The first applicant had not disputed that this difference in treatment was justified . The right to orphan ’s benefits was not dependent on a child having been born in wedlock but only on a child being the offspring of the deceased whose death caused the child to be without parents DATE which was not the case here . As a result , the survivors’ benefit claimed by the first applicant could only be placed in the framework of the provisions concerning widows , and the refusal to award her either a full widow ’s pension or any other widow ’s benefit could only be seen in relation to her not having been married to the deceased . There was no other discriminatory factor which could be considered as underlying the subsidiary effect that the majority of cases where an entitlement to a full widow ’s pension existed concerned children born from the marriage of the deceased to the surviving widow .

The AWW , which entered into force on DATE , insured against the risk of the death of the family breadwinner . Under the AWW scheme , all persons residing in the GPE and non - residents gainfully employed in the GPE were compulsory insured . Contributions to this scheme were paid by all persons gainfully employed in the GPE .

Entitlement to AWW benefits was not dependent on the level of contributions paid as , contrary to a social security scheme based on employment ( werknemersverzekering ) , it was a general social security scheme ( volksverzekering ) . The level of benefits was linked to the statutory minimum wage .

The AWW conferred entitlement to a widow ’s pension for the widow , who was not yet aged DATE , of an insured person provided she was caring for an unmarried child born before or on the date of the death of her spouse . A widow without children was also entitled to claim benefit , for example if she was incapacitated for work or was aged DATE or over at the time of her husband ’s death . “ Widow ” meant the woman to whom the insured person was married on the date of his death . Since DATE , widowers enjoyed the same entitlement to benefit after the death of their wives on the basis of case - law .

As it was felt that a widow with children had greater financial needs than a widow without children ( see Bijlagen Handelingen Tweede Kamer – Appendices to ORG DATE , CARDINAL , DATE ) , a widow with unmarried children under DATE regardless of their number – received an amount equal to the minimum wage whereas a widow without children received PERCENT of that amount .

Under the AWW the unmarried child , up to the age of DATE , of the deceased person was entitled to an orphan ’s benefit provided the child had lost both parents or if the surviving parent had been divested of parental authority .

The AWW was repealed on DATE and replaced by LAW ( PERSON ) . The new LAW replaced the term ‘ widow’ by ‘ surviving partner’ , this being the person who was married to the deceased person or who was in a relationship of equivalent status with him or her .


No violation of Art. 8;No violation of P1-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP citizen who was born in DATE and currently lives in GPE , GPE . Until DATE the applicant lived in GPE , a village of the GPE district in the province of ORG .

The application concerns the alleged destruction of the applicant ’s house by State security forces and village guards , and the national authorities’ refusal to allow the applicant to return to his village .

The facts surrounding the alleged destruction of the applicant ’s house and his inability to return to his village are in dispute between the parties .

NORP In DATE a landmine placed on the road to PERSON , a neighbouring village of GPE , exploded and caused the death of a number of village guards . Security forces from ORG in GPE and village guards from the PERSON village accused the inhabitants of ORG of perpetrating the explosion since they had refused to serve as village guards . They threatened to evacuate the village unless the inhabitants left their homes within DATE . Along with a number of fellow villagers , the applicant left his home and moved to ORG where he currently lives .

Sometime in DATE or DATE , village guards from the PERSON village burned the villagers’ crops in GPE . During the incident , a small number of houses caught fire , although the applicant ’s house remained intact .

On an unspecified date , the applicant learned through his acquaintances that on DATE , DATE before the general elections , security forces and village guards had set fire to his house , along with all other houses in the village .

NORP Immediately after the burning of the village , the security forces and village guards arrived in PERSON , a neighbouring village . They required the villagers to assemble in the village square and threatened to burn the houses in PERSON too if the villagers were to vote for ORG ( ORG ) in the forthcoming elections .

On DATE the applicant , along with some of his fellow villagers , lodged applications with the offices of the ORG Governor , the GPE District Governor and ORG . He complained that security forces from ORG in GPE and village guards from PERSON had set fire to his house , along with other houses in the village . He requested that the perpetrators of the act be prosecuted , that the damage he had sustained be redressed and that the required measures be taken in order to enable him and other villagers to return to their homes .

On DATE ORG issued a decision of lack of jurisdiction and sent the case file to the office of ORG in ORG , in accordance with the PERSON on the Prosecution of Civil Servants ( Memurin Muhakematı GPE ) .

On CARDINAL DATE the applicant lodged his application with ORG alleging violations of Articles CARDINAL , DATE , DATE and CARDINAL of the Convention , and LAW No . CARDINAL .

On DATE ORG launched an investigation into the applicant ’s allegations . The investigation was conducted by a gendarme major , PERSON , who had been appointed as an investigator ( muhakkik ) by the Commission on ORG ( “ the ORG ” ) .

On DATE the ORG decided that most of the houses in ORG had been burned down as a result of a fire which had started in the PERSON hamlet of LOC , due to the burning of stubble in a field . The ORG concluded that no proceedings should be brought against the accused security forces and the village guards . The case file was then sent to ORG .

On DATE ORG decision was served on the applicant .

On DATE the applicant filed an objection with ORG against the decision given by the ORG .

On DATE ORG quashed the decision of the ORG on the ground that the investigation file was incomplete . The court reasoned that the investigating authorities should have heard the applicant before reaching a conclusion on the matter .

On DATE the ORG , after completing the investigation file , reiterated its decision of DATE that no proceedings should be brought against the security forces and the village guards .

On DATE ORG upheld the decision of the ORG .

On DATE ORG sent a letter to the applicant ’s representative requesting him to provide a copy of ORG decision .

On DATE the applicant applied to ORG registry for a copy of its decision of DATE . The request was rejected , the applicant being informed that he should apply to the GPE District Governor ’s office .

In DATE a group of people , encouraged by unspecified village guards , settled in ORG together with their livestock .

On DATE the applicant filed a petition with the Kocaköy District Governor ’s office requesting permission for his family ’s return to ORG and the eviction of these new dwellers from their property . The applicant did not receive any response to his petition .

NORP In DATE the applicant , along with other villagers , left the GPE village due to pressure by the ORG ( ORG ) .

On DATE a fire started in GPE , a hamlet of the NORP village in GPE , caused by the burning of stubble in a field . The fire went out of control and spread to the GPE village , the PERSON hamlet and LOC . Despite the efforts of ORG and the village guards from the neighbouring villages , most of the buildings in ORG burned down , although the applicant ’s house remained undamaged .

On DATE the applicant lodged a petition with ORG office in GPE , complaining about the burning down of his house by security forces from ORG in GPE and village guards from the PERSON village .

On DATE ORG issued a decision of lack of jurisdiction and sent the case file to the office of ORG in ORG , in accordance with the PERSON on the Prosecution of Civil Servants .

On DATE the Governor ’s office in GPE initiated an investigation into the applicant ’s allegations .

On DATE a gendarme captain was appointed by ORG in PERSON to investigate the applicant ’s allegations . DATE and DATE , the investigator took statements from a total of CARDINAL witnesses , including some inhabitants of nearby villages , military officers and fire fighters serving in PERSON .

In view of these statements , the investigator concluded that the houses in ORG had been burned down in DATE as a result of a fire which had started in the GPE hamlet of LOC , due to the burning of stubble in a field . He further noted that there were no traces of burning on the wooden parts of the applicant ’s house and that , therefore , it could not have been exposed to fire .

The investigation conducted by the gendarmes further revealed that the applicant leased his land to CARDINAL villagers in return for a share of the crop , which fact was confirmed by some villagers and the village mayor ( muhtar ) .

Currently , there are inhabitants living and cultivating fields in GPE .

In his petition submitted to the Governor ’s office in GPE , the applicant complained about the forced eviction of the inhabitants of ORG and the subsequent burning of the houses in the village by security officers and village guards . The applicant requested that their safe return to their homes be guaranteed , the perpetrators be brought to justice and their damage be redressed .

On DATE the applicant filed an objection with ORG against the decision given by the ORG , which had held that no prosecution should be initiated against the alleged perpetrators . The applicant complained that the ORG had conducted a superficial investigation with a view to covering up the crimes .

On DATE the applicant applied to ORG registry for copies of its decisions of DATE and DATE . The request was rejected .

Until DATE , the witnesses were resident in GPE . They provided separate but , in part , identical statements .

Among these witnesses , Mr PERSON stated that in DATE security forces and village guards had exerted pressure upon them into either becoming village guards or vacating the village . PERSON and PERSON stated that security forces and village guards had been harassing the villagers as they believed that the villagers had been aiding and abetting the ORG . They claimed further that the village had been raided and searched on several occasions and that the villagers had been routinely battered .

Mr PERSON stated , but none of the other witnesses confirmed , that CARDINAL night in DATE or DATE , unidentified persons opened fire at the village , wounding PERSON and killing his DATE old daughter . Mr PERSON heard rumours that the village guards from the PERSON and PERSON villages were responsible for the shootings . He believed that the public prosecutor in charge had conducted a spurious investigation without even taking his statement . He stated that security forces and village guards had threatened to kill the villagers if they filed complaints against the allegedly guilty village guards . Out of fear and ignorance , Mr Yoldaş did not complain to the authorities about such threats .

Mr Yoldaş and PERSON asserted that in DATE security forces and village guards had assembled the villagers in Akrad - Günalan and had tortured them . Mr Abdulbaki İpek elaborated on the incident , stating that he was one of the CARDINAL victims and that he had suffered CARDINAL broken ribs . They also submitted that , angered by the landmine explosion , security forces and village guards had come to ORG and had threatened to kill the villagers if they did not vacate the village . Such threats , added to earlier incidents , caused these witnesses and their families to leave the village on an unspecified date . Conversely , Masum PERSON , PERSON and PERSON stated that the fire in DATE had taken place DATE after they had left the village . In this connection , Mr PERSON and Mr Kaya noted that , after the fire , they had gone to the village to examine the damage . It appears from these statements that at least some of the villagers , including these witnesses and their families , had left the village long before DATE , the time when the landmine exploded and security forces and village guards allegedly forced the inhabitants of ORG to evict their homes .

In response to the ORG ’s claim that the village was abandoned due to ORG repression , the witnesses explained that ORG militants had never come to ORG , even less terrorized the villagers .

Concerning the fire which started in DATE , the witnesses explained that the fire had spread to the PERSON hamlet , the GPE and finally to ORG , and had burnt the crops in those areas , including those of the applicant and his brother . They stated that CARDINAL houses on the west side of ORG had burned down , while the concrete houses and the ones located in the centre and the east side of the village had survived the fire .

The witnesses said that they had heard from their acquaintances living in neighbouring villages that , DATE before the general elections of DATE ( i.e. DATE ) , security forces and village guards had set fire to the houses which had survived the previous fire of DATE . According to PERSON PERSON and PERSON , immediately after the burning down of ORG , security forces and village guards went to the Akrad - Günalan village and threatened to burn that village too if the villagers voted for HADEP in the elections .

The witnesses added that , since DATE or DATE , the authorities had been allowing the ORG villagers to cultivate their fields in association with subcontractors from neighbouring villages . They claimed , however , that the applicant and his brother had been denied such permission .

Mr PERSON and Mr GPE have lived in the Karaçimen village of LOC in GPE since their childhood . They have been cultivating the applicant ’s land DATE . They stated that on DATE they were called to ORG in PERSON and made to sign some documents , which they had later learned to be their witness statements . Since they were both illiterate they had not been aware of the content of such statements .

They further asserted that everybody knew how the village had been evacuated but that they had preferred to remain silent for their own sake .

This letter informed all village mayors in ORG about the policy set for an orderly return to the villages previously abandoned because of terrorism . It stated that all villagers were free to return to the villages found suitable for habitation by the respective ORG .

The letter divided villages into CARDINAL categories in respect of the permitted time for such returns . It gave no indication as to which village fell under which “ phase ” . It explained that the former inhabitants of certain “ phase - II villages ” could return to those villages only for cultivation purposes during DATE . The letter did not contain any indication about the phase / category in which ORG falls .

According to the letter , no villager was allowed to resettle in or stay TIME in “ phase - II ” and “ phase - III ” villages until a decision had been taken by the respective governor ’s office to that effect .

NORP The letter pointed out the difficulties faced by security forces during the military operations conducted in the rural areas of ORG , GPE and PERSON . It explained that during such operations it was difficult to distinguish terrorists from the villagers wandering around in rural areas . The letter advised that notice be given to villagers to avoid any unfortunate incident for which the authorities would not accept any responsibility .

ORG is a non - governmental organisation with its head office in GPE , GPE . Its DATE Report stated that , from DATE , CARDINAL villages and hamlets had been evacuated . ORG maintained that village evacuations had accelerated in DATE , mostly targeting the villages whose inhabitants refused to serve as village guards .

The DATE Report of the TIHV argued that the ORG ’s policy was to claim that the evacuations and eventual destructions were caused by ORG terror , poverty and the forces of nature . According to the same report , CARDINAL villages were burned down in each of the provinces subject to the emergency rule .

The DATE Report maintained that CARDINAL villages had been evacuated in DATE . According to ORG , the State - of - Emergency Regional Governor once mentioned that a total of CARDINAL villages and CARDINAL hamlets had been evacuated for various reasons , although never admitting that evacuations had been carried out by security forces .

The DATE and CARDINAL Reports described the ORG ’s policy of evacuating villages as a systematic “ internal security operation ” applied throughout DATE .

The excerpts gave a comprehensive list of burned - down and/or evacuated villages from DATE . The list did not make any reference to ORG as having been evacuated and destroyed .

The excerpts contained several articles reproduced from a DATE newspaper ORG , relating to the evacuation of villages and its detrimental effects on the displaced persons . The articles stressed that numerous villagers had filed petitions with the ORG authorities , complaining that their villages had been burned down by security forces .

The articles also emphasized that the ORG ’s public declarations , which appeared to allow displaced villagers to return to their villages , were unreliable . Whenever villagers had attempted to do so , they were physically denied access to their villages .

NORP This report was prepared by ORG composed of CARDINAL members of parliament . According to the report , in DATE and DATE the inhabitants of CARDINAL villages and CARDINAL hamlets were evicted and forced to move to other regions of the country ( p.CARDINAL ) . The number of people evicted from CARDINAL villages and CARDINAL hamlets in the province of ORG , where the GPE village is located , was estimated to be CARDINAL ( p.CARDINAL ) .

NORP The report included a statement by Mr PERSON , a former governor of ORG . Mr GPE explained that , during his office , occasional village evacuations by military authorities were brought to his attention . He stated that DATE although very rarely – he had received complaints about village burnings . According to PERSON , it was inconceivable to assert that all the villages were vacated due to ORG coercion . He alleged that the Government had failed to take the necessary measures for a healthy resettlement of displaced persons ( p.CARDINAL ) .

The report also referred to the “ Human Rights Report – GPE ” , prepared and submitted to ORG in DATE by Mr PERSON , the chairman of ORG . This latter report dedicated a chapter to immigrants and evacuated villages . It argued that , in DATE , the practice of evacuation of villages and hamlets was widespread . Many houses in villages were either destroyed or made uninhabitable . People were forced to emigrate from the region and pressure was exerted on the inhabitants until they left their villages . In DATE there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards ( p.CARDINAL ) .

NORP The report of ORG also referred to the speech delivered at ORG by Mr PERSON , a deputy from Şırnak , on DATE on the question of evacuated villages . PERSON stated , inter alia , that the villages were evacuated either by the ORG , in order to intimidate those who opposed it , by the authorities since they were unable to protect the villages , or because the inhabitants of those villages refused to become village guards or were suspected of having aided the ORG ( p. CARDINAL ) .

In conclusion , it was recommended in the report that the inhabitants of the settlement units should be re - housed in the provinces , districts or central villages – rather than hamlets DATE close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region , priority being given to the immigrants .

DATE . In his letters dated CARDINAL DATE and DATE , the applicant provided the ORG with copies of title deeds representing the land jointly owned by him and others in ORG , and CARDINAL colour photographs of what he described as his and some other villagers’ burned - down houses . The applicant ’s house and the date of those photos were not specified . There was no indication whether his house was indeed CARDINAL of them . It was not possible to tell from the pictures whether the houses in question were burned down or had simply deteriorated over DATE . The applicant supplied no expert opinion as to the nature of such destruction . Also , there were a number of undamaged houses in the photos .

Kocayol District Gendarmerie Command sent a letter to LOC , ordering that various witnesses be summoned to give statements in connection with the investigation in progress .

NORP This report was prepared by a gendarme captain from ORG in PERSON . It contained the findings of the captain after his investigation into the applicant ’s allegations of DATE . It gave an account of witness statements by villagers , army officers and fire fighters , as well as the investigator ’s on - site observations .

DATE and DATE , the investigator took statements from a total of CARDINAL witnesses , including inhabitants of nearby villages , military officers and fire fighters serving in GPE .

PERSON , PERSON , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , PERSON and PERSON are inhabitants of nearby villages . In their individual statements , PERSON , PERSON , ORG , PERSON , PERSON and PERSON pointed out that the inhabitants of ORG had left their homes in DATE because of the mounting coercion exerted by the ORG . PERSON , PERSON and PERSON stated that they had rushed to ORG when they heard about the fire in DATE . They claimed that the fire fighters and village guards had made every effort to put the fire out and that they had not seen any soldier nor had they heard a rumour that soldiers and village guards had started the fire . PERSON , PERSON , PERSON and PERSON further stated that they believed that the fire had stemmed from the burning of wheat stubble .

PERSON and PERSON are fire fighters in PERSON . In their individual statements , these witnesses explained that they had rushed to ORG immediately after the PERSON ’s office had informed them about the fire . They submitted that , despite all efforts , the fire had got out of control and had burned the village , together with some parts of the neighbouring villages . They added that gendarmes and village guards could not have started the fire as there were no soldiers in the area and the village guards were the ones making the most fervent efforts to extinguish the fire .

PERSON and PERSON were gendarme officers . In their separate statements , they asserted that all gendarme operations had been recorded in a book on a DATE basis but that there was no record of any operation on DATE in GPE . PERSON explained that gendarmes had had no reason to go to ORG as the inhabitants had already abandoned that village . PERSON added that most houses in ORG had been built of adobe , which would explain their natural deterioration over DATE .

PERSON , PERSON and PERSON were village guards . They each stated that the villagers had left their home in DATE because of ORG terrorism . They noted that everybody in the neighbouring villages knew about the fire in DATE and how it had destroyed ORG . They further explained that the applicant was making dishonest claims in an effort to discredit them as village guards .

DATE . In view of these statements , the investigator concluded that the houses in ORG had been burned down in DATE as a result of a fire which had started in the GPE hamlet of LOC , due to the burning of stubble .

The report also included photographs of the applicant ’s ruined house in GPE . From his examination , the investigator concluded that there were no traces of burning on the wooden parts of the applicant ’s house . Accordingly , the investigator concluded that the house could not have been exposed to fire .

The investigator further established that the applicant had been leasing his land to CARDINAL farmers from a neighbouring village in return for a share of the crop , and thereby had been reaping economic benefits from his land .

In a decision of DATE , ORG overturned the “ non - prosecution ” decision of the ORG . The court reasoned that the applicant ’s testimony should have been taken . It therefore ruled that the investigation file was incomplete .

Upon ORG invalidation of the ORG decision of DATE on procedural grounds , the ORG completed the case file by taking the applicant ’s testimony .

In his testimony , the applicant admitted that he had not been present in GPE at the time of the burning of his house by security forces and village guards . He claimed that he had heard about the incident from PERSON , a resident of the NORP village . However , in his statements dated DATE , PERSON submitted that he had not seen or stayed in contact with the applicant since he had left the village in DATE .

The decision further indicated that the photographs taken at the site of the alleged incident revealed that the applicant ’s house had deteriorated for natural reasons and the fact that it had remained uninhabited for DATE .

Based on such findings , the ORG reiterated its previous decision that no proceedings should be brought against the accused security forces and the village guards .

Upon failed attempts to locate the applicant , the Kocaköy District Governor ’s office decided to serve the CPCS’ decision of CARDINAL DATE to the applicant by way of an announcement , pursuant to LAW . of ORG no . DATE .

On an unspecified date , the announcement appeared in a local newspaper .

This report contains the gendarme ORG findings that the applicant ’s house had deteriorated because it had not been inhabited for a long time . The report indicated that the applicant has leased his land for cultivation to CARDINAL villagers by the names of GPE and ORG .

In DATE , PERSON was a fire fighter in PERSON . He and his colleague , Mr PERSON , were on duty when the fire started in ORG and its vicinity . He and his colleagues immediately rushed to ORG as soon as they heard about the fire from the Mayor ’s office . Mr Kaya was driving the fire engine , accompanied by PERSON . By the time they arrived , the flames had already surrounded the entire village of GPE . In the meantime , village guards came out to help . It was impossible to cut through the flames surrounding the village . As a matter of priority , they strived to extinguish the utility poles . Before long they ran out of water and were unable to quench the flames , which eventually burned down ORG and the cultivated lands attached to it . Mr Kaya pointed out that he had not seen any military vehicles or gendarmes at the site of the fire . He added that the village guards had made every effort to fight the fire .

Mr GPE was a resident of the NORP village of GPE . He stated that the inhabitants of ORG had left their homes due to ORG coercion . When he had heard about the fire , he and his fellow villagers had gone to ORG on tractors . They assisted the fire fighters and the village guards to put out the fire . The fire spread very quickly because of the strong wind and burned down ORG and some parts of the neighbouring villages of FAC . The witness did not hear any rumour that security forces and village guards had started the fire . He explained that the village guards were making every effort to fight the fire . This witness also believed that the fire had started due to the burning of wheat stubble .

Mr GPE lived in the PERSON hamlet of LOC . Like the Government ’s other witnesses , PERSON stated that , together with a group of fellow villagers , he had rushed to ORG by tractor when he had heard about the fire . The fighters and village guards had made every effort to extinguish the fire which had been spread by a strong wind . The witness had never heard a rumour that security forces and village guards had started the fire .

The witnesses are brothers who lived in the PERSON hamlet of ORG . In their statements they submitted that the applicant ’s allegations regarding the subject matter of the current application were untrue . They explained that the applicant , together with other inhabitants of ORG , had left the village in DATE or DATE due to the ORG coercion . They stated that the applicant had made similar allegations in the past , which had also been fabricated . The witnesses added that nobody ’s land in GPE or the PERSON hamlet had been confiscated , and that the villagers could freely cultivate their fields .

Mr PERSON was the head of the village guards in LOC at the relevant time , and resided in the PERSON hamlet of ORG . This witness stated that the inhabitants of ORG had left their homes in DATE as a result of ORG coercion and intimidation , and that the applicant had chosen to move to ORG . He noted that the applicant ’s land was being cultivated by CARDINAL farmers from GPE , Mr PERSON and Mr PERSON . Accordingly , the applicant was not denied either the economic use of his land or access thereto .

The witnesses lived in the GPE hamlet of GPE in GPE . They had been breeding livestock in the applicant ’s village for DATE . They stated that the ORG villagers had left their homes in DATE and had moved to neighbouring districts and cities . They noted that the fields in the village had been left uncultivated for a while , but from DATE certain villagers had resumed farming , whereas PERSON had not . Seeing that there was no farming activity on the applicant ’s land , the witnesses offered to cultivate his fields in return for a share of the crop . The witnesses agreed with the applicant on a verbal basis and have been cultivating his fields DATE .

The witnesses claimed that ORG security forces and village guards had not in any way exerted pressure on them or prevented them from cultivating the applicant ’s fields .

A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . GPE , § § DATE , DATE ) .


The applicants ( see attached Appendix ) are NORP nationals .

s , may be summarised as follows .

The applicants were , at the material time , serving members of the NORP armed forces . They claim that , following an investigation into their sexual orientation , they were each discharged from the armed forces pursuant to the policy against homosexuals in the armed forces on the dates listed in the attached Appendix .

The applicants submitted a claim to the employment tribunal ( “ the ET ” ) arguing that their dismissal , and the circumstances leading to it , breached LAW DATE ( “ the CARDINAL Act ” ) . As a result of ORG judgment PERSON ( ORG ) ( Appellant ) v. Advocate General for GPE ( Respondent ) ( GPE ) dated DATE , the ET struck out Mr PERSON 's case ( CARDINAL/CARDINAL ) and dismissed ( by consent ) the remaining applications on the dates listed in the attached Appendix .

On DATE ORG ended its policy of excluding homosexuals from the NORP armed forces following the delivery of judgments in NORP and PERSON v. GPE ( nos . CARDINAL and ORG , CARDINAL DATE ) and PERSON and PERSON v. GPE ( nos . ORG and CARDINAL , ORG CARDINAL-VI ) .

On DATE PERSON , who had also been dismissed from ORG in DATE on grounds of his homosexuality , applied to ORG for leave to take judicial review proceedings on the basis that ORG policy was “ irrational ” , that it was in breach of ORG CARDINAL and CARDINAL of the LAW and that it was contrary to ORG CARDINAL/CARDINAL/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment , vocational training and promotion , and working conditions ( “ LAW ” ) .

On DATE ORG ( “ the ECJ ” ) decided that transsexuals were protected from discrimination arising from their gender reassignment under ORG law and , in particular , by LAW ( P. v. S. and ORG [ DATE ] I.R.L.R CARDINAL ) . On DATE Mr PERSON was granted leave by ORG . On DATE ORG referred to the ECJ pursuant to the then Article CARDINAL of LAW the question of the applicability of LAW to differences of treatment based on sexual orientation ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) .

On DATE the ECJ found that the refusal of travel concessions to a worker living with a person of the same sex could not be regarded as discrimination based on sex prohibited by ORG CARDINAL/CARDINAL/EEC on the approximation of the laws of the Member GPE relating to the application of the principle of equal pay for men and women ( “ the Equal Pay Directive ” ) ( Grant v. ORG [ DATE ] I.C.R. CARDINAL ) . Consequently , on CARDINAL DATE the ECJ enquired of ORG in the PERSON case whether it wished to maintain the Article CARDINAL reference . After a hearing between the parties , ORG decided to withdraw the question from the ECJ ( NORP v. Secretary of ORG , ex parte Perkins , DATE ) . Leave to appeal was refused .

This Act gave effect in domestic law to LAW . Section CARDINAL(CARDINAL)(a ) of LAW provides :

“ A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this LAW if -

( a ) on the ground of her sex he treats her less favourably than he treats or would treat a man . ”

Section CARDINAL(CARDINAL ) provides that section CARDINAL , and the provisions of Part II and III of the LAW relating to sex discrimination against women , are to be read as applying equally to the treatment of men , with the requisite modifications .

Section CARDINAL(CARDINAL ) of the LAW provides :

“ A comparison of the cases of persons of different sex ... under section CARDINAL(CARDINAL ) ... must be such that the relevant circumstances in the CARDINAL case are the same , or not materially different , in the other . ”

Section CARDINAL(CARDINAL ) provides that it is unlawful for a person to discriminate against a female employee by dismissing her or subjecting her to any other detriment . If sexual harassment occurs in an employment context , it is considered “ detriment ” within the meaning of Section CARDINAL(CARDINAL ) of the LAW .

ORG judgment on the DATE Act

On DATE ORG found in PERSON ( ORG ) ( Appellant ) v. Advocate General for GPE ( Respondent ) ( GPE ) that the word “ sex ” in LAW meant “ gender ” . It also found that the correct comparison was between the homosexual male applicant and a homosexual woman . These CARDINAL conclusions meant that the claim of sex discrimination and sexual harassment before it fell away : in both cases , the applicant would not have been treated any differently to a female homosexual .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms N. Ołowska - Zalewska , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON of ORG .

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

The applicant is a retired professional soldier . In DATE ORG ( Wojskowa Agencja Mieszkaniowa ) decided to allocate him military accommodation ( kwatera ) in GPE . The lease was signed by the applicant , but his wife and CARDINAL children had the right to live in the flat .

In DATE the applicant moved out from the flat and started divorce proceedings . It appears that his wife changed the locks in the flat and continued to occupy it with CARDINAL of their children .

On DATE the couple divorced . Afterwards , the applicant officially changed his registered address ( wymeldowanie ) and moved to GPE .

In DATE the applicant remarried .

On DATE the applicant gave notice to the ORG informing it that he wished to terminate the lease .

His former wife and son continued to live in the disputed flat . They refused to leave it and the applicant ’s former wife stopped paying the rent . It appears that subsequently the ORG instituted enforcement proceedings against the applicant . Given the debt accumulated by the applicant ’s former wife , after she had stopped paying the rent , the ORG attempted to allocate a smaller flat to the applicant so he would vacate the accommodation . However , the applicant ’s former wife refused to leave the flat and the decision ordering the occupants to leave the flat was stayed on DATE .

On several occasions the applicant complained to ORG and he received replies on DATE , DATE and CARDINAL DATE . In each of those letters the ORG referred to section CARDINAL of ORG DATE ( LOC z dnia CARDINAL czerwca DATE o zakwaterowaniu ORG ) ( “ LAW ” ) and informed the applicant that the ORG was not competent to terminate the lease of the flat in question .

On DATE the applicant received a letter from the ORG . In his extensive reply the ORG stated that the legal situation of divorced spouses who occupied military accommodation together was governed by LAW of LAW . This section provided that in case of divorce the former spouses could still live in the accommodation , with the exception of accommodation located in the buildings specified in LAW ) . The ORG then stated :

“ If the military accommodation occupied by the divorced spouses belongs to CARDINAL of the [ categories listed in section CARDINAL ) ] , it is possible to terminate their lease ( rozkwaterowac ) under section CARDINAL ) of LAW . However , in cases outside [ the above categories ] the divorced spouses can not , under the rules , seek to terminate the lease ....

In the above - cited law there is no provision for the removal of a troublesome divorced spouse . In particular , in the cases examined above , there are no provisions that would authorise the ORG to issue an administrative decision terminating a lease . There is also no legal ground for requesting the eviction of a former spouse from the flat they occupied together ....

In the ORG ’s opinion such a situation , in which the legislator has excluded a certain group of citizens from the judicial system by not granting them active procedural rights ( czynna legitymacja procesowa ) , infringes the constitutional right of access to a court ( LAW ) and the right to a fair trial guaranteed by LAW ] ( LAW ) .. ”

The ORG further informed the applicant that , according to ORG resolution of DATE , section CARDINAL(CARDINAL ) of the Law of DATE on ORG ( LOC o najmie lokali mieszkalnych i dodatkach mieszkaniowych ) , ( “ DATE Act ” ) applied to the eviction of a divorced spouse from military accommodation . The ORG stated as follows :

“ The particular regulation of the situation of the spouse of a professional soldier , similarly to that of a lease in civil law , is such that his or her entitlement does not terminate with the divorce . It means that the loss of this entitlement [ to use the military accommodation granted to the professional soldier ] can occur only under section CARDINAL(CARDINAL ) of [ DATE Act ] . Under this provision , a tenant may institute proceedings for eviction of a divorced spouse if his or her excessively reprehensible behaviour ( rażąco naganne zachowanie ) makes cohabitation impossible ... It is for a court examining a particular claim for eviction to interpret this provision ... ”

Apparently in DATE the applicant instituted civil proceedings against his former wife in which he sought reimbursement of the rent she had failed to pay since DATE but which had been deducted from his old - age pension . It is not clear what transpired in those proceedings .

On DATE the ORG allocated to the applicant a smaller flat and requested him to vacate the military accommodation which his former wife had been occupying . The applicant ’s wife appealed against the decision . It was finally upheld by ORG on DATE .

In DATE the applicant ’s former wife paid the ORG the debt for the rent for the flat she had been occupying .

On DATE the ORG evicted the applicant ’s wife and their son from the flat in question . Apparently the eviction was carried out under sections CARDINAL and CARDINAL of ORG . The flat has been vacated . Subsequently , the ORG offered the applicant a substitute flat . However it appears that to date he has not accepted one .

Section CARDINAL of ORG provides :

“ CARDINAL . In the event of divorce , spouses living in military accommodation can continue living in the accommodation , with the exception of accommodation in the buildings described in section CARDINAL ) .

When the accommodation occupied is in a building as described in section CARDINAL ) :

( CARDINAL ) the divorced spouses are entitled to :

( a ) military accommodation for a professional soldier or a military pensioner ,

( b ) a flat in exchange , within the meaning of the PERSON on ORG , for a former spouse of the person described in ( a ) ...

Separate military accommodation will not be given to a divorced professional soldier or to a military pensioner ... who on the date when the divorce becomes final is occupying accommodation not located in the buildings listed in section CARDINAL ) unless there are circumstances as set out in paragraph CARDINAL .

NORP If the living area of the accommodation occupied is smaller than the minimum area to which the person is entitled , the head of the local branch of the Agency , on the date the divorce becomes final , shall assign in exchange to the divorced spouses accommodation that reflects their joint entitlement , or pay a monetary equivalent ... in an amount which reflects the lack of ... living space .

In the cases described in CARDINAL and CARDINAL above the accommodation occupied may be exchanged by the parties themselves . In such cases , the head of the local branch of the Agency shall assign the military accommodation or enter into a lease with a designated person . ”

Section CARDINAL ) of ORG listed CARDINAL categories of military accommodation in which it was possible to terminate the lease under LAW ( CARDINAL ) . Those are :

NORP accommodation in buildings on closed military land ,

NORP accommodation which is allocated , by a decision of the director of the district office of ORG , to the whole or a part of the staff of a certain military unit ,

NORP function - related accommodation .

On DATE ORG gave a resolution III CZP CARDINAL/CARDINAL in which it considered that section CARDINAL ( CARDINAL ) of the DATE Act should apply to a civil action for eviction against a former spouse of a professional soldier . LAW was repealed by LAW of DATE on ORG tenants , housing resources of municipalities and amendments to LAW ( LOC o ochronie praw lokatorów , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego ) ( “ the DATE Act ” ) . However , it contains an analogous regulation in LAW ( CARDINAL ) which allows eviction of a divorced spouse if his or her excessively reprehensible behaviour makes cohabitation impossible .

On DATE ORG was substantially amended and LAW was repealed ( the “ new LAW ” ) . Sections CARDINAL and CARDINAL of the new LAW open the possibility of the forcible eviction of a person who has not been a soldier but who has remained in military accommodation . They also provide for the possibility of seeking a court ruling in cases where the person subject to eviction belongs to CARDINAL of the protected categories ( for example a pregnant woman or a disabled person ) .

The new LAW also explicitly excludes the application of the CARDINAL Act to matters related to military accommodation .

On DATE ORG gave a resolution IIICZP CARDINAL/CARDINAL in which it found that a civil action by a professional soldier against his former wife was possible if the soldier had been granted the military accommodation prior to the date on which CARDINAL of ORG lost its force and if the civil action had been brought after that date . The court however refused to specify which provision of the domestic law should be the legal basis for such an action , finding that the question put to it had been worded too vaguely .