Violation of Art. 12;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG The applicant , a NORP national born in DATE , has married CARDINAL times since DATE . The first CARDINAL marriages were dissolved by divorce ; the sole issue in the instant case is the temporary prohibition on remarriage imposed on him following the third divorce .

ORG F married Miss G in DATE and divorced her on DATE .

On DATE , he was remarried to Mrs. B , a divorcee , who bore him a son on CARDINAL DATE of DATE . The couple separated in DATE , and F cohabited with another woman . Mrs. B obtained a divorce on DATE . The court prohibited the applicant from remarrying within DATE , under LAW ( see paragraph CARDINAL below ) .

ORG The applicant advertised for a secretary . On DATE , PERSON appeared in response to his advertisement . DATE they were living together and on DATE the couple married .

ORG On DATE , F began divorce proceedings in ORG .

At DATE , his wife left the matrimonial home after he had taken up again with a former mistress .

ORG After an attempt at conciliation had failed , the parties signed an agreement covering the ancillary effects of the divorce on CARDINAL DATE ; in particular , the applicant undertook to pay his wife the sum of MONEY ( CHF ) as compensation for non - pecuniary damage .

ORG gave judgment on DATE . It dismissed ORG ’s petition , allowed the wife ’s cross - petition of DATE and approved the agreement reached between them . It also imposed on the applicant a DATE prohibition on remarriage ; in its opinion , the applicant ’s unacceptable attitude rendered him solely responsible for the breakdown of the marriage .

The divorce became final on DATE .

ORG The applicant appealed to ORG to discharge the order prohibiting remarriage . He denied that the statutory conditions were satisfied , namely that the fault committed was exceptionally serious and had played a decisive role in the breakdown . He also argued that the order complained of contravened LAW ) of ORG .

ORG On DATE , ORG upheld ORG judgment .

The seriousness of the fault could not be disputed . F ’s behaviour had so grossly disregarded the laws of marriage and the most elementary requirements of that status that a prohibition on remarriage was imperative .

Article CARDINAL ( article CARDINAL ) of the Convention was not an obstacle to the application of LAW . Furthermore , the reference to national legislation in LAW ) had the effect of incorporating into the ORG the national law governing the right to marry .

ORG F appealed to ORG on points of law ( recours en réforme ) , arguing that the conditions for the application of LAW were not satisfied and that the prohibition on remarriage violated Articles CARDINAL , CARDINAL ( article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention .

ORG gave judgment on DATE . It ruled that the appeal was inadmissible in relation to the alleged incompatibility of LAW with the LAW , on the ground that this plea should have been raised by way of a public - law appeal ( recours de droit public ) and not by way of an appeal on points of law . It said :

" It is doubtful whether in an appeal on points of law ( recours en réforme ) the appellant can rely on the incompatibility of LAW [ Swiss Civil Code ] with the rights secured in the ORG [ ORG ] . Admittedly , under section CARDINAL(CARDINAL ) , first sentence , of the ORG [ ORG ] an appeal on points of law is admissible for violations of federal law , including international treaties concluded by the ORG . But by the second sentence of the above - cited provision , the right to enter a public - law appeal ( recours de droit public ) in respect of violations of ORG constitutional rights remains unaffected . According to the established case - law , the rights protected by the ORG and which the latter requires GPE to guarantee to its own nationals and others , are in the nature of constitutional rights : this close relationship between constitutional rights and the rights protected by the ORG makes it possible , from a procedural point of view , to treat violations of the Convention on the same footing as violations of a constitutional right within the meaning of section PERSON ) of the ORG .

At all events , under LAW para . TIME . [ LAW ] ORG has a duty to apply the Acts passed by ORG and the decrees of that ORG which are of general application . It is thus under an obligation to follow this legislation without inquiring whether it is incompatible with the LAW . The ORG has made no change in this respect . It does not in any way alter the separation of powers between the legislature and the highest court as governed by domestic law , and accordingly does not confer on ORG any jurisdiction other than the one it hitherto enjoyed under LAW and LAW ( judgment of DATE , DATE , in NORP v. Attorney - General of St. Gall , unreported ) . It follows that the question whether LAW is compatible with the ORG lies outside the jurisdiction of ORG ; the appeal is therefore inadmissible on this point . "

For the rest , the ORG dismissed the appeal in the following terms :

" The cantonal court held that there was a causal relationship between the husband ’s adultery and the breakdown of the marriage . This is a finding of fact binding on ORG in an appeal on points of law ( section CARDINAL ) ORG ) . The appellant ’s behaviour played ... a decisive role in the breakdown , of which it was the sole cause . The wife was bewildered when her husband expressed his intention to divorce : she protested and expressed her affection for him . She only left the matrimonial home after being worn down by all that ORG had done to force her to go .

The appellant ’s fault is of exceptional gravity . He pressed his mistress to marry him despite the shortness of their acquaintance and then DATE after the ceremony said he wanted a divorce without giving any valid explanation . By this capricious attitude he showed that he was making a mockery of the institution of marriage . He was not only offhand , but contemptuous and cruel . When his wife tried to maintain the marriage bonds by showing him her affection , he used the most despicable means to frustrate her efforts . Regardless of the duties imposed by the laws of marriage , he treated his wife as an object and , seeking only to bring about a break , he went so far as to commit adultery and provoke scenes during which he was rude and odious . The respondent has suffered greatly from this broken marriage : the compensation which the court of first instance granted her by approving the agreement on the ancillary effects of the divorce , bears witness that her sufferings went beyond what a wife can humanly be expected to bear .

In view of the above , the cantonal court could , without violating federal law , reasonably take the view that a prohibition on remarriage for DATE was necessary . "

ORG In a statement dated DATE , F and the woman with whom he was living stated that they intended to get married as soon as possible .

The woman in question , who was still a party to a previous marriage , had commenced proceedings for divorce . The decree of divorce was granted on DATE and became absolute on DATE . On CARDINAL DATE , the president of the GPE court allowed her application to have the waiting time ( délai de viduité - LAW ) reduced and gave her leave to remarry as from that date .

ORG On DATE , the Head of ORG refused to publish the banns before the prohibition on the applicant ’s remarriage had expired .

DATE , F appealed to the ORG d’Etat of ORG , which dismissed his appeal on DATE . It stated , inter alia :

" ... it can not be right that the registrar of births , deaths and marriages should take any measure until all impediments to remarriage have been removed , both from considerations of public policy and for elementary reasons of legal certainty . "

ORG The banns were published as soon as the waiting period imposed on the applicant had expired , and he married Mrs. PERSON on DATE . A child was born of this marriage on DATE .

ORG By LAW ,

" The right to marry shall enjoy the protection of the ORG .

No impediment to marriage may be based on denominational grounds , the poverty of either of the spouses , their conduct or any other grounds of administrative policy .

Marriages entered into in a GPE or abroad in accordance with local legislation , shall be recognised as valid throughout the ORG .

ORG Although LAW recognises the right to divorce , the right to remarry after divorce can not be exercised in some cases until a certain time has elapsed . LAW provides in LAW , which came into force in DATE :

" When granting a divorce the court shall fix a period of not less than one and not DATE during which the party at fault shall not be entitled to remarry ; where the divorce is granted on the ground of adultery , this period may be extended to DATE .

The period of judicial separation ordered by the court shall be included in this period . "

ORG The application of this provision has , however , been made more flexible by decisions of the courts . Thus , in the judgment of DATE in NORP v. X , ORG stated :

" [ The temporary prohibition of remarriage ] is criticised by legal writers ( cf . PERSON , note CARDINAL on Art . CARDINAL ORG and references ) , some of whom go so far as to suggest that the rule in LAW should be abandoned because its application gives rise to numerous inequalities and because it is easily evaded by marrying abroad ( NORP / PERSON , PERSON le divorce , CARDINALnd ed . , p. CARDINAL ) .

As early as DATE , ORG noted that the penalty of a waiting period entailed a considerable restriction of individual freedom and of the right to marry guaranteed in Article CARDINAL para . CARDINAL of the LAW : it should not be imposed unless there had been a serious violation of essential conjugal duties and the courts should , therefore , exercise some restraint in applying LAW ( ORG [ Judgments of ORG ] CARDINAL II CARDINAL ; cf . ATF CARDINAL II CARDINAL , point CARDINAL of the reasons , and CARDINAL II CARDINAL ) .

The interpretation of this provision must be brought into line with the whole body of case - law on divorce , which shows that the courts are tending to depart from rigorous theory and seeking to avoid unduly severe sanctions by having regard to the circumstances of the particular case . Thus adultery is no longer an absolute ground for divorce ( ORG CARDINAL II CARDINAL , point CARDINAL ( b ) of the reasons ) and the notion of the innocent spouse , within the meaning of ORG CARDINAL and CARDINAL of LAW , does not exclude all fault ( ORG CARDINAL II CARDINAL , point CARDINAL of the reasons , and references ) . From this standpoint , even more restraint should be exercised in applying LAW . Courts should not impose a prohibition on remarriage unless the fault committed is of exceptional gravity and has also played a decisive role in the breakdown of the marriage . " ( Judgments of ORG , vol . CARDINAL , part II , p. CARDINAL )

ORG On DATE , ORG on the partial reform of family law presented its report to ORG and Police , which had appointed ORG . It advocated repeal of LAW , relating to the waiting period :

" For DATE now a number of members of ORG have been disturbed by the application ( or more precisely , the non - application ) of LAW ( Petites questions PERSON et GPE , interpellation PERSON , ORG [ Revue de l’état civil ] DATE , CARDINAL ; DATE , CARDINAL ) . The issue has also been raised in the press ( PERSON of DATE , ‘ PERSON hat , darf heiraten!’ ) .

What is the problem ? Under LAW the court must prohibit a spouse found to be at fault from remarrying for a given period . But disregard of this prohibition does not in any way affect the validity of a marriage entered into in spite of it ( PERSON , notes CARDINAL and CARDINAL on Art . ORG ) . Such a breach , however , can scarcely occur in GPE , where it would involve a serious dereliction of duty or even connivance on the part of the registrar of births , deaths and marriages . It can happen , on the other hand , that a spouse prohibited from remarrying goes abroad , preferably to GPE , to enter into a valid marriage there . On returning to GPE , he asks to have his marriage registered . In view of ORG and CARDINAL , this can not be refused . At most , cantonal provisions could render such conduct liable to a criminal sanction ; this is the case in the cantons of ORG and GPE only . It is understandable that a person can , in good faith , come to the conclusion that money and a journey abroad are all that is needed in order to evade a prohibition on remarriage .

A means must be found of remedying the offensive aspects of this situation . This certainly can not be done by converting the prohibition on remarriage which is inherent in the waiting period into an impediment to marriage . In Articles CARDINAL et seq . the legislation provides for nullity of marriage only in very exceptional cases . Article CARDINAL para . QUANTITY Cst . would also preclude this solution . Nor can CARDINAL seriously contemplate a solution which would involve introducing serious criminal sanctions throughout GPE . If equality before the law is to be guaranteed , there is CARDINAL solution and that is to delete LAW CCS [ Swiss Civil Code ] . This is the solution proposed by ORG DATE , CARDINAL ) , who has given very convincing reasons . It was strongly supported by the Conference of cantonal authorities responsible for supervising civil status at its assembly on DATE ( see on this question the report by ORG , ORG DATE , CARDINAL - CARDINAL ; CARDINAL , DATE , CARDINAL - CARDINAL , DATE , CARDINAL ) . ORG unanimously supports this suggestion .

It must be expressly stated that this proposal by the ORG is not intended to indicate any particular sympathy for behaviour contrary to the spirit of marriage . It is based on a recognition of the fact that ORG and CARDINAL ‘ are not in accordance with the policy of the Constitution’ ( ORG in RDS [ Revue de droit GPE ] DATE , I , CARDINAL ) . It is also clear that LAW will not have the effect of making spouses at fault think again and mend their ways ( ORG in JdT [ Journal des tribunaux ] DATE , I , CARDINAL ; PERSON in CARDINAL , CARDINAL , CARDINAL(a ) ) . The ORG also wishes to point out that the inequalities noted do not only appear in the case of a possible marriage . They may become apparent during divorce proceedings , because the case - law on the application of LAW varies from GPE to GPE ; and in the case of divorce by consent , many spouses , even if at fault , agree to present their case in such a way that no waiting period is imposed ( PERSON in ORG [ Revue suisse de jurisprudence ] DATE , DATE ) " .

ORG The same proposal was repeated by ORG , which considered the reform of divorce from DATE to DATE .

After reform of the law on various subjects , the ORG concentrated its attention on the provisions relating to divorce . In DATE , it is due to adopt a PERSON which will be submitted to interested organisations and groups for comment . ORG will then draw up a PERSON to be laid before ORG . ORG will not be able to debate the PERSON before DATE , so that the new divorce law is not expected to come into force until DATE at the earliest .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr F. Wolff , a lawyer practising in GPE .

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

The applicant had been working as a nursery - school teacher ( ORG ) in GPE , in GPE ( GDR ) , since DATE . After the reunification of GPE , and in accordance with the relevant provisions of LAW of DATE on NORP Unification ( Einigungsvertrag – Articles CARDINAL and CARDINAL § CARDINAL taken together with LAW CARDINAL of Annex I , LAW , ORG , LAW – see “ Relevant domestic law and practice ” below ) , the applicant was incorporated into the civil service of ORG in GPE ( FRG ) and continued working there as a nursery - school teacher .

On DATE the applicant answered in the negative when asked whether she had signed an undertaking to collaborate ( PERSON ) with ORG ( ORG für DATE the GPE secret police ) , and about any contacts she had had with it , and whether she had received any gifts ( Zuwendungen ) for collaborating . After NORP reunification those questions were asked of civil servants from the GPE seeking definitive incorporation into the ORG civil service . The applicant stated that she had replied fully and truthfully to the best of her knowledge and belief ( nach bestem ORG ) and that she was aware of the fact that an untrue answer on her part could result in her dismissal .

On DATE a report by the federal commissioner responsible for examining data of the ORG security police ( FAC für die Unterlagen des Staatssicherheitsdienstes der ehemaligen ORG , also known as ORG ) revealed that , after a contact period ( Kontaktphase ) from CARDINAL June to CARDINAL DATE , the applicant had been registered as a security collaborator ( PERSON für ORG ) of ORG between DATE and DATE , that on DATE she had signed an undertaking to collaborate , that she had participated in CARDINAL spy operations between CARDINAL DATE and CARDINAL DATE and that a ministry official had confirmed that she had received gifts of money on CARDINAL occasions .

On DATE the applicant was questioned about that report .

In a decision of CARDINAL DATE ORG , after consulting ORG ( Personalrat ) , dismissed the applicant for having collaborated with ORG and having lied about her collaboration with that ministry .

On DATE the applicant appealed against that decision , submitting that she did not remember having collaborated with ORG and that , in any event , her collaboration , which had been of minor importance given that she had merely accompanied her husband , went back to such a distant period that it could no longer be held against her DATE and could not in any circumstances justify her dismissal .

In a judgment of CARDINAL DATE ORG ( Arbeitsgericht ) dismissed the applicant ’s appeal and held that her ordinary dismissal ( with notice ) ( ordentliche PERSON ) was justified under section MONEY ) of LAW ( GPE – see “ Relevant domestic law and practice ” below ) .

The court held that the applicant was not fit to be a member of the civil service because she had untruthfully ( wahrheitswidrig ) declared that she had neither signed an undertaking to collaborate nor collaborated with ORG . The authorities had properly questioned her in that connection and the applicant had objectively and subjectively given an answer which had subsequently been proved to be untrue .

The court concluded that LAW interest in dismissing a person who had previously lied to her employer about her collaboration with ORG , which had been the instrument of repression in that ORG , accordingly took precedence over the applicant ’s age and long years of service .

On DATE the applicant appealed against that judgment .

ORG ( PERSON ) upheld that judgment on DATE .

ORG held that the applicant ’s activity could be regarded as collaboration with ORG for the purposes of LAW , LAW , ORG , LAW of LAW ( see “ Relevant domestic law and practice ” below ) . The fact that she had accompanied her husband in order to provide a smokescreen did not alter that finding .

In ORG view , the applicant could not have forgotten that she had collaborated with the ORG or that she had signed an undertaking . Indeed , she had carried out many spy missions in the company of her husband and , in her undertaking , had expressly declared that she wanted to protect the ORG from enemy attacks . Furthermore , during questioning on CARDINAL DATE the applicant had herself declared that she had not attached any importance to her past collaboration , which showed that she remembered it .

The applicant had therefore given an untruthful answer and was accordingly unfit to be a member of the FRG civil service .

ORG then reiterated that a “ lack of personal aptitude ” within the meaning of LAW , LAW , ORG , LAW of LAW ( see “ Relevant domestic law and practice ” below ) could derive from a lack of trust and from reasons connected with the employee ’s character .

ORG added that in the present case the authorities had been entitled to expect the applicant to reply truthfully to the CARDINAL questions that had been put to her . Indeed , the authorities had to be able to check whether the applicant , who had not been chosen by them as an employee , but had been employed in accordance with the provisions of LAW , could continue to be a member of the civil service or whether she should be dismissed for having collaborated with ORG . ORG found that the lack of truthfulness and honesty in her reply had destroyed the confidence which the authorities had to have in the applicant and made her continued employment in the civil service unacceptable .

On DATE ORG ( Bundesarbeitsgericht ) refused to entertain an appeal on points of law by the applicant on the ground that the ordinary courts’ decisions had been consistent with its own case - law and with that of ORG ( Bundesverfassungsgericht ) .

On DATE a bench of CARDINAL judges of ORG refused the applicant leave to appeal .

Section CARDINAL(CARDINAL ) of LAW provides :

“ A dismissal shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct ... ”

“ Sozial ungerechtfertigt ist die PERSON , wenn sie nicht durch GPE , die in der Person oder in dem Verhalten des Arbeitnehmers liegen ... bedingt ist . ”

LAW of DATE on NORP ORG provides that the administrative bodies and other institutions of the civil service in the former territory of the GPE come under the authority of the government of the Land in which they are situated .

LAW provides that persons who were members of the GPE civil service at the time of reunification are subject to the transitional provisions in GPE

LAW CARDINAL of Annex I to LAW , LAW , ORG , LAW , provides for the incorporation of civil servants from the GPE into the ORG civil service by means of the substitution of the federal authorities and ORG FRG for the GPE authorities in the existing employment relationship .

As members of the GPE civil service belonged to an institution that did not satisfy the criteria of a ORG based on the rule of law , special provisions on dismissal were included in LAW CARDINAL of Annex I to LAW , LAW , ORG , LAW .

Thus , LAW I to LAW , LAW , ORG , LAW , provides :

“ Ordinary dismissal [ with notice ] from the civil service is permissible if

( a ) the employee does not satisfy the requirements on account of lack of professional qualifications or of personal aptitude ... ”

“ Die ordentliche ORG in der öffentlichen PERSON zulässig , wenn

PERSON mangelnder fachlicher GPE oder persönlicher GPE den Anforderungen nicht entspricht oder wenn ... ”

LAW of the same section is worded as follows :

“ A substantial ground for an extraordinary dismissal [ without notice ] exists , inter alia , if the employee

( b ) has collaborated with the former ORG or for ORG [ of the GPE ]

and his or her continued employment in the civil service therefore appears unacceptable . ”

“ Ein wichtiger ORG für eine ausserordentliche PERSON insbesondere dann gegeben , wenn PERSON

für das frühere ORG für ORG für nationale GPE war

und deshalb ein Festhalten am NORP unzumutbar erscheint . ”

In a leading case ORG held that LAW I to LAW , Chapter XIX , Subject A , LAW was in conformity with LAW because a person who had collaborated with ORG the GPE did not generally satisfy the requisite conditions for becoming a member of the ORG civil service . In any event , dismissal required an assessment of each individual case during which account had to be taken , inter alia , of the degree of involvement ( GPE der PERSON ) of the person concerned ( see Collection of Judgments and Decisions of ORG , vol . CARDINAL , pp . CARDINAL et seq . ) .

According to the established case - law of ORG , a public employer is entitled to ask a civil servant if he or she collaborated with ORG of the former GPE and whether he or she signed an undertaking to collaborate . The interest of the employer in obtaining a truthful answer takes precedence over the civil servant ’s right to decide for himself or herself which information he or she is willing to disclose ( informationelle PERSON ) . Questioning the civil servant in this way is designed to “ cleanse ” the civil service of staff with a reprehensible past ( vorbelastetem Personal ) so that an efficient civil service can be put in place ( GPE einer leistungsfähigen öffentlichen PERSON ) in the general interest . Anyone who lies by declaring that they did not sign an undertaking and did not collaborate with ORG is generally unfit to be a member of the civil service ( see ORG and Decisions of ORG , vol . CARDINAL , pp . CARDINAL et seq . , and vol . CARDINAL , pp . CARDINAL et seq . ) .

Article CARDINAL of LAW ( Bundesgesetzbuch – BGB ) lays down the principle of good faith ( PERSON ) in contractual relations .

Sections CARDINAL , DATE and DATE of the PERSON on the Data of the former ORG ( PERSON über die Unterlagen des ORG der ehemaligen PERSON DATE ORG ) govern the conditions in which the commissioner may disclose data of this ministry to third parties , and they authorise , inter alia , the disclosure of information about members of the civil service .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

On DATE at TIME , the applicant , who was drunk , had a fight with his friend in a taxi . The driver of the taxi stopped in front of a police station and the applicant ’s friend entered the station to make a complaint . The applicant followed .

According to the applicant , when they entered the police station , his friend complained to the police officers that the applicant had stolen his cell phone . Stepping on the applicant ’s foot , a police officer told the applicant to return his friend ’s cell phone . The applicant pushed him back . Subsequently , several police officers attacked the applicant . He was blindfolded , handcuffed and beaten with wooden sticks and truncheons for TIME .

At TIME the applicant was taken to ORG . The doctor who examined the applicant noted the presence of a widespread bruise on his back , bruises on both legs , bruises on his left arm , swelling on the right side of his forehead , and swelling on his right arm and fingers . Suspecting that the applicant ’s right hand could be fractured , he ordered the applicant ’s transfer to a hospital .

According to the report of ORG issued at CARDINAL a.m. , there was swelling on the applicant ’s right wrist and sensitivity on his left knee . An x - ray revealed that the applicant ’s right arm was broken .

NORP The report of ORG , drafted on DATE at TIME , which took into account the CARDINAL medical reports drafted on TIME , stated that the applicant had numerous widespread bruises on his back , a swelling and a bruise on the right side of his forehead , bruises on the back of his legs , a bruised region on his upper left arm and a swelling and a bruise on CARDINAL of his fingers on the right hand . It was also noted that the applicant ’s right arm had been fractured . The report concluded that the injuries rendered the applicant unfit for work for DATE .

The toxicology report of DATE noted that the applicant had CARDINAL per mille of alcohol in his blood .

On DATE the applicant ’s lawyer visited him in prison and noted the signs of ill - treatment on his body . On DATE , the applicant submitted to his lawyer a detailed account of the alleged ill - treatment .

On DATE the applicant lodged an official complaint with the GPE public prosecutor ’s office , requesting the prosecution of the police officers who had ill - treated him .

On DATE the applicant was examined by a doctor at ORG . The report which was produced took into account the applicant ’s previous medical reports and X - rays and noted that his right arm was still bandaged and that his injuries were still visible . It was concluded that the injuries rendered the applicant unfit for work for DATE .

On DATE the GPE public prosecutor filed an indictment against CARDINAL police officers , accusing them of ill - treating the applicant . The applicant joined the proceedings as a civil party .

On DATE ORG , on the basis of witness statements and medical reports , found CARDINAL police officers guilty of illtreating the applicant under LAW . QUANTITY other police officers on duty that day were acquitted . The court found it established that when the applicant arrived at the police station he was drunk . He started swearing and threatening the officers , threw himself right and left and hit a couple of police officers . In order to stop him , the police officers handcuffed , blindfolded and gagged the applicant . CARDINAL police officer , NORP , hit the applicant with a truncheon . He also told the other police officers to hit the applicant . CARDINAL other police officers consequently hit the applicant with truncheons . Based on this finding , the court held that the actions of the QUANTITY police officers who had beaten the applicant had constituted a breach of LAW . Considering that the swearing and threats of the applicant amounted to provocation within the meaning of LAW , the court then reduced their sentences and accordingly sentenced each of them to a fine . Furthermore , the court decided to suspend the execution of their sentences pursuant to LAW no . CARDINAL on the basis that the accused officers did not show any likelihood of reoffending .

On DATE ORG upheld the first - instance court ’s judgment as regards the acquittal decisions and quashed the judgment as to the convictions for a reconsideration of the case in the light of LAW no . CARDINAL ) which had entered into force on DATE .

The case was accordingly remitted to ORG . On DATE ORG once again found the CARDINAL accused police officers guilty of ill - treating the applicant , and sentenced them each to a fine . The court further suspended the execution of their sentence pursuant to PERSON no . CARDINAL , considering that they were unlikely to break the law again . Upon appeal , on DATE ORG quashed that judgment as well , maintaining that the first - instance court should have considered whether the pronouncement of the judgment could have been suspended for DATE pursuant to LAW .

On DATE the ORG once again found it established that the accused CARDINAL police officers had ill - treated the applicant . Accordingly , pursuant to LAW it initially sentenced them each to CARDINAL months’ imprisonment . Considering that the swearing and threats of the applicant amounted to provocation within the meaning of LAW , the court then reduced their sentences to CARDINAL days’ imprisonment and banned them from public service for DATE . The court subsequently suspended the pronouncement of the judgment in accordance with LAW . The applicant ’s objection was dismissed on DATE .

A description of the relevant domestic law and practice concerning prosecution for ill - treatment in force at the material time can be found in GPE and Others v. GPE ( nos . CARDINAL and QUANTITY , § § CARDINAL , ORG CARDINALIV ( extracts ) ) .

The deferral of the execution of a sentence is governed by LAW no . CARDINAL on LAW , which in so far as relevant reads :

“ The court may decide to defer the execution of a fine and/or a prison sentence of DATE ... if it is convinced , taking into account the offender ’s criminal record and potential to commit crime , that there is little risk of any further offence being committed , and provided that the offender has never been sentenced to anything other than a fine . The reasons for deferring the execution of a sentence must be stated in the decision . ”

The suspension of the pronouncement of the judgment is regulated by LAW no . CARDINAL ) , the relevant paragraphs of which read as follows :

( CARDINAL ) If the accused , who had been tried for the charges against him , was sentenced to a judicial fine or to imprisonment of DATE , the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment does not have any legal consequences for the offender .

( CARDINAL ) Suspension of the pronouncement of the judgment may be decided provided that ;

a ) the offender has never been found guilty of a wilful offence ,

b ) the court is convinced , taking into account the offender ’s personal traits and his behaviour during the proceedings , that there is little risk of any further offence being committed ,

c ) the damage caused to the victim or to society is repaired by way of restitution or compensation .

( CARDINAL) If the pronouncement of the judgment is suspended , the offender will be kept under supervision for DATE .

( CARDINAL ) If the offender does not commit another wilful offence and abides by the obligations of the supervision order , the judgment , of which the pronouncement has been suspended , will be cancelled and the case discontinued .

( CARDINAL ) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order , the court imposes the sentence . Nevertheless , the court may evaluate the offender ’s situation and may decide that a certain part of the sentence , up to the CARDINAL of the total sentence , will not be executed . If the conditions so permit , the court may also suspend the execution of the imprisonment or commute it to other optional measures .

( CARDINAL ) An objection may be filed against the decision to suspend the pronouncement of the judgment . ”


The applicant was born in DATE and resides in the town of GPE , GPE region , GPE .

The applicant instituted proceedings in the ORG of Donetsk Region against the “ ORG CARDINAL ( Шахта CARDINAL « Новогродівська » ) - a ORG - owned enterprise - to recover salary arrears and other payments due to her late husband .

On DATE the ORG found in favour of the applicant ( ORG міського суду PERSON області ) and awarded her ORG CARDINAL,CARDINAL.CARDINAL . The decision was sent for enforcement to the ORG ( ORG виконавчої служби PERSON міського управління юстиції ) . However , the decision was not enforced , allegedly due to the failure of ORG to act , in not selling the property of ORG .

NORP In DATE the applicant instituted proceedings in the ORG of GPE against the Novogrodivskyy Town Bailiffs ' Service for failure to enforce the court decision in her favour . On DATE ORG rejected the applicant 's claim , finding no fault had been committed by ORG . The court stated that ORG had acted properly in enforcing the decision of DATE . However , by a number of decisions of ORG of GPE , ORG had been prohibited from selling the property of ORG , due to the bankruptcy proceedings which had been initiated against the company . Also on DATE , the ban on the forced sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital was entrenched in the PERSON on the Introduction of a Moratorium on the Forced Sale of Property . On DATE ORG upheld the decision of the first instance court . On DATE the ORG of GPE rejected the applicant 's appeal in cassation against the decision of DATE as submitted too late . On DATE ORG upheld this ruling .

The Government submitted that in DATE the debtor requested the ORG to review the judgment of DATE in light of new circumstances . No further information was provided by the parties . In particular , the applicant stated that she was completely unaware of these proceedings .

According to the applicant , by DATE she received ORG CARDINAL ; the rest of the debt due to her remains unpaid .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


Violation of Art. 6-1;No violation of P1-2;No violation of Art. 14+P1-2;Remainder inadmissible;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born DATE and live respectively in GPE , PERSON and GPE . Their names and details are set out in the FAC .

As schoolchildren the applicants at times attended separate classes , with only GPE pupils , in primary schools in the villages of GPE , PERSON and GPE . The total number of pupils in ORG in DATE was CARDINAL , CARDINAL of whom were GPE . There were CARDINAL GPE - only classes , with CARDINAL pupils in all , while the remaining CARDINAL GPE pupils attended regular ( mixed ) classes . The total number of pupils in ORG in DATE was CARDINAL , CARDINAL of whom were GPE . There was CARDINAL GPE - only class , with CARDINAL pupils , while the remaining CARDINAL Roma pupils attended regular ( mixed ) classes . The total number of pupils in ORG in DATE was CARDINAL and CARDINAL of them were GPE . There were CARDINAL GPE - only classes , with CARDINAL pupils , while the remaining QUANTITY GPE pupils attended regular ( mixed ) classes . In GPE children are obliged to attend school until they reach DATE .

The Government submitted the following information in respect of the individual applicants :

The second applicant , PERSON , was enrolled in the first grade of elementary school in DATE . She attended a regular class DATE and DATE but in DATE she failed to go up a grade . In DATE , DATE , DATE and DATE she attended a GPE - only class . In school DATE she passed fifth grade . In school DATE she attended a regular ( mixed ) class . She was provided with additional classes of NORP and also participated in extra - curricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report shows that she missed CARDINAL classes without justification .

The third applicant , PERSON , was enrolled in the first grade of elementary school in DATE and passed first grade . That and DATE he attended a GPE - only class . In school DATE and DATE he attended a regular ( mixed ) class . He passed second grade in school DATE . DATE and DATE he attended a GPE - only class . In DATE he attended a regular ( mixed ) class and passed fourth grade . He participated in extra - curricular activities in a mixed group organised by the school . After reaching DATE he left school in DATE . His school report showed poor attendance in fourth grade .

The fourth applicant , PERSON , was enrolled in the first grade of elementary school in DATE . DATE he attended a GPE - only class and the following DATE a regular ( mixed ) class . In school DATE , DATE and DATE he attended a GPE - only class . DATE he attended a regular ( mixed ) class . DATE he passed fourth grade . He participated in extra - curricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report showed that he was reprimanded for poor attendance in fourth grade as he missed CARDINAL classes without justification .

The fifth applicant , PERSON , was enrolled in the first grade of elementary school in DATE and passed first grade . In DATE he attended a GPE - only class , after which he attended a regular ( mixed ) class . In DATE he stayed in fifth grade for the third time . He participated in extra - curricular activities in a mixed group organised by the school . His school report showed that he was reprimanded for poor attendance in third grade , having missed CARDINAL classes without justification .

The sixth applicant , PERSON , was enrolled in the first grade of elementary school in school DATE and attended a GPE - only class . The following DATE she attended a regular ( mixed ) class . In DATE she attended a GPE - only class and passed fourth grade , after which she attended a regular ( mixed ) class . She was provided with additional classes of NORP and also participated in extra - curricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report showed that she was reprimanded for poor attendance in third grade , where she missed CARDINAL classes without a good reason .

The seventh applicant , PERSON , was enrolled in the first grade of elementary school in DATE and attended a GPE - only class up to and including DATE , after which he attended a regular ( mixed ) class . On DATE ORG ordered that he follow an adapted curriculum in his further schooling on the ground that a competent expert committee had established that he suffered from developmental difficulties . In DATE he attended sixth grade . He was provided with additional classes of NORP and also participated in extra - curricular activities in a mixed group organised by the school . His school report showed that he was reprimanded for poor attendance in third grade since he missed CARDINAL classes without justification . He was again reprimanded for poor attendance in fifth grade .

The eighth applicant , PERSON , was enrolled in the first grade of elementary school in DATE and in her first DATE attended a GPE - only class , after which she attended a regular ( mixed ) class for DATE . On DATE ORG ordered that she follow an adapted curriculum in her further schooling on the ground that a competent expert committee had established that she suffered from developmental difficulties . In school DATE and DATE she attended a GPE - only class and in the following school year a regular ( mixed ) class and passed fourth grade . She was provided with additional classes of NORP and also participated in extra - curricular activities in a mixed group organised by the school . After reaching DATE , she left school in DATE . Her school report showed that she was reprimanded for poor attendance in third grade .

The ninth applicant , PERSON , was enrolled in the first grade of elementary school in school DATE and attended a GPE - only class up to and including school DATE , after which she attended a mixed class . In DATE she took fifth grade for the third time . She too participated in extra - curricular activities in a mixed group organised by the school .

The tenth applicant , PERSON , was enrolled in the first grade of elementary school in DATE and attended a mixed class for DATE . DATE he attended a GPE - only class , after which he attended a mixed class . In DATE he passed fourth grade . He was provided with additional classes of NORP and also participated in the extra - curricular activities in a mixed group organised by the school . After reaching DATE , he left school in DATE . His school report showed that he was reprimanded for poor attendance in third grade as he missed CARDINAL classes without a good reason . He was again reprimanded for poor attendance in fourth and fifth grades .

The eleventh applicant , PERSON , was enrolled in the first grade of elementary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he had no knowledge of the NORP language . He scored CARDINAL out of CARDINAL points , or PERCENT . He was therefore assigned to a GPE - only class , where he stayed until DATE when , after reaching DATE , he left school . In DATE he passed fourth grade .

The twelfth applicant , PERSON , was enrolled in the first grade of elementary school in DATE . The preliminary tests carried out before his assignment to a particular class showed that he had no knowledge of the NORP language . He scored CARDINAL out of CARDINAL points , or PERCENT . He was therefore assigned to a GPE - only class , where he stayed until DATE when , after reaching DATE , he left school . DATE he passed second grade . He was provided with additional classes of NORP .

The thirteenth applicant , PERSON , was enrolled in the first grade of elementary school in DATE . The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the NORP language . She scored CARDINAL out of CARDINAL points , or PERCENT . She was therefore assigned to a GPE - only class , where she has stayed ever since . In DATE she attended fourth grade . She was provided with additional classes of NORP . Her school report showed that she was reprimanded for poor attendance in third grade .

The fourteenth applicant , PERSON , was enrolled in the first grade of elementary school in school DATE . The preliminary tests carried out before his assignment to a particular class showed that he had no knowledge of the NORP language . He scored CARDINAL out of CARDINAL points , or PERCENT . He was therefore assigned to a GPE - only class , where he stayed until DATE when , after reaching DATE , he left school . In DATE he passed third grade . He was provided with additional classes of NORP . His school report showed that he was reprimanded for poor attendance in third grade since he missed CARDINAL classes without justification .

The fifteenth applicant , PERSON , was enrolled in the first grade of elementary school in DATE . The preliminary tests carried out before her assignment to a particular class showed that her knowledge of the NORP language was poor . She scored CARDINAL out of CARDINAL points , or PERCENT . She was therefore assigned to a GPE - only class , where she has stayed ever since . In DATE she attended fourth grade . She was provided with additional classes of NORP .

DATE applicants submitted that they had been told that they had to leave school at DATE . Furthermore , the applicants submitted statistics showing that in DATE PERCENT of GPE children DATE completed their elementary education , compared with PERCENT for the general elementary school population in the county . The drop - out rate of GPE pupils before completing elementary school was PERCENT , which was CARDINAL times higher than for the general population . In school DATE QUANTITY NORP children were enrolled in first grade and CARDINAL in eighth .

On DATE the applicants brought an action under section CARDINAL of LAW in ORG ( PERSON ) against the above - mentioned primary schools and ORG , the ORG and GPE ( “ the defendants ” ) . They submitted that the teaching organised in the GPE - only classes formed in those CARDINAL schools was significantly reduced in volume and in scope compared to the officially prescribed curriculum . The applicants claimed that the described situation was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment . They requested the court to order the defendants to refrain from such conduct in the future .

The applicants also produced the results of a psychological study of GPE children attending GPE - only classes in PERSON , carried out immediately before their action was lodged , showing the following :

- most children had never had a non - GPE child as a friend ;

- PERCENT expressed a wish to have a non - GPE child for a friend ;

- PERCENT expressed a wish to attend a mixed class ;

- PERCENT said they felt unaccepted in the school environment ;

- PERCENT stated that GPE and non - NORP children did not play together .

Furthermore , the report asserted that segregated education produced emotional and psychological harm in GPE children , in terms of lower self - esteem and self - respect and problems in the development of their identity . Separate classes were seen as an obstacle to creating a social network of GPE and non - NORP children .

The defendants each submitted replies to the arguments put forward by the applicants , claiming that there was no discrimination of GPE children and that pupils enrolled in school were all treated equally . They submitted that all pupils were enrolled in school after a committee ( composed of a doctor , a psychologist , a pedagogue , a social pedagogue and a teacher ) had given an opinion that the candidates were physically and mentally ready to attend school . The classes within a school were formed depending on the needs of the class , the number of pupils etc . In particular , it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment .

Furthermore , the defendants submitted that pupils of GPE origin were grouped together not because of their ethnic origin , but rather because they often did not speak NORP well and it took more exercises and repetitions for them to master the subjects taught . Finally , they claimed that GPE pupils received the same quality of education as other students as the scope of their curriculum did not differ from that prescribed by law .

On DATE ORG dismissed the applicants ' action , accepting the defendants ' argument that the reason why most GPE pupils were placed in separate classes was that they were not fluent in NORP . Consequently , the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination . Lastly , the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the GPE - only classes .

On DATE the applicants appealed against the first - instance judgment , claiming that it was arbitrary and contradictory .

On DATE the Čakovec County Court ( Županijski sud u PERSON ) dismissed the applicants ' appeal , upholding the reasoning of the first - instance judgment .

Subsequently , on DATE , the applicants lodged a complaint with ORG ( Ustavni sud PERSON ) under section CARDINAL of LAW . In their constitutional complaint the applicants reiterated their earlier arguments , relying on the relevant provisions of LAW and of the Convention .

On DATE the applicants ' lawyer lodged an application with ORG to expedite the proceedings . On DATE ORG dismissed the applicants ' complaint in its decision no . U - III- DATE , published in the Official Gazette no . CARDINAL of CARDINAL DATE ) . The relevant parts of the decision read as follows :

“ The first - instance court established in the impugned judgment that the criteria for formation of classes in the defendant elementary schools had been knowledge of the NORP language and not the pupils ' ethnic origin . The [ first - instance ] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin . The [ first - instance ] court stressed that the complainants relied exclusively on the ORG on the activities of the ORG in DATE . However , the ORG said in his evidence that the part of the ORG referring to the education of GPE had been injudicious because all the relevant facts had not been established .

The first - instance court relied on section CARDINAL paragraph CARDINAL of LAW ... which provides that teaching in elementary schools is in the NORP language and NORP script , and considered lack of knowledge of the NORP language as an objective impediment in complying with the requirements of the school curriculum , which also transpires from the conclusion of a study carried out for the needs of ORG . The [ first - instance ] court found : ' pupils enrolling in DATE of elementary schools have to know the NORP language so that they are able to follow the teaching , if the purpose of elementary education is to be fulfilled . It is therefore logical that classes with children who do not know the NORP language require additional efforts and commitment of teachers , in particular to teach them the NORP language . '

The first - instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established , as only in exceptional situations was the transfer of pupils from CARDINAL class to another allowed . The [ first - instance ] court considered that this practice respected the completeness of a class and its unity in the upper grades .

The [ first - instance ] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme , which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge .

Furthermore , the [ first - instance ] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for the elementary schools by ORG and ORG on DATE . The [ first - instance ] court found that the above assertion of the complainants relied on the ORG 's report . However , the ORG said in his testimony that he did not know how the fact that in GPE - only classes the teaching followed a so - called special programme had been established .

The [ first - instance ] court established that teaching in the complainants ' respective classes and the parallel ones followed the same curriculum , according to the submitted school curriculum . Only in ORG were there some deviations from the school curriculum , but the [ first - instance ] court found those deviations permissible since they had occurred ... at the beginning of DATE owing to low attendance .

After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes , the first - instance court dismissed the complainants ' action .

The reasoning of the first - instance judgment ... shows that the defendant elementary schools replied to the complainants ' allegations as follows :

' The [ defendant schools ] enrolled in DATE those children found psycho - physically fit to attend elementary school by a committee composed of a physician , a psychologist , a school counsellor ( pedagog ) , a defectologist and a teacher . They did not enrol NORP children or GPE children as such , but children found by the said committee to be psychologically and physically fit to be enrolled in elementary school . ( ... ) The defendant elementary schools maintain that the first obstacle for GPE children in psychological tests is their lack of knowledge of the NORP language in terms of both expression and comprehension . As to the emotional aspect of maturity , these children mostly have difficulty channelling their emotions . In terms of social maturity , children of GPE origin do not have the basic hygienic skills of washing , dressing , tying or buttoning , and a lot of time is needed before they achieve these skills . ( ... ) It is therefore difficult to plan class structures with sufficient motivation for all children , which is CARDINAL of the obligations of elementary schools . There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [ skills ] they lack owing to social deprivation . ... '

The reasoning of the same judgment cites the testimony of ORG , a school counsellor and psychologist in ORG , given on DATE ... :

' Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school . Classes are usually formed according to the PERSON curve , so that the majority in a given class are average pupils and a minority below or above average . ... However , in a situation where PERCENT of the population does not speak NORP , a different approach is adopted so as to form classes with only pupils who do not speak NORP , because in those classes a teacher 's first task is to teach the children the language . '

The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child . The approach is individualised and carried out in keeping with professional and pedagogical standards . Thus , the Constitutional Court finds the applied approach correct since only qualified experts , in particular in the fields of pedagogy , school psychology and defectology , are responsible for assigning individual children to the appropriate classes .

ORG has no reason to question the findings and expert opinions of the competent committees , composed of physicians , psychologists , school counsellors ( pedagog ) , defectologists and teachers , which in the instant case found that the complainants should be placed in separate classes .

None of the facts submitted to ORG leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin .

The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the elementary educational system to the skills and needs of the complainants , where the decisive factor was their lack of knowledge or inadequate knowledge of NORP , the language used to teach in schools .

The separate classes were not established for the purpose of racial segregation in enrolment in DATE of elementary school but as a means of providing children with supplementary tuition in the NORP language and eliminating the consequences of prior social deprivation .

It is of particular importance to stress that the statistical data on the number of GPE children in separate classes in DATE ... are not in themselves sufficient to indicate that the defendants ' practice was discriminatory ( see also ORG judgments PERSON v. GPE , no . CARDINAL , § CARDINAL , and ORG and Others v. GPE , § CARDINAL ) .

Moreover , the complainants themselves maintain in their constitutional complaint that in DATE PERCENT of NORP children in GPE were placed in regular classes , which tends to support ORG conclusion that there is no reason to challenge the correct practice of the defendant elementary schools and expert committees .

In their constitutional complaint the complainants further point out that : ' Even if lack of knowledge of the NORP language on enrolment in DATE was a problem , the same could not be said of the complainants ' enrolment in upper grades . ' They therefore consider that their rights were violated by the courts ' findings that it had been justified to maintain separate [ GPE - only ] classes in the upper grades in order to preserve the stability of the wholeness of a given class . The complainants submit that the stability of a class should not have been placed above their constitutional rights , multiculturalism and national equality .

In that regard ORG accepts the complainants ' arguments .

While ORG considers correct and acceptable the courts ' findings that lack of knowledge of the NORP language represents an objective obstacle justifying the formation of separate classes for children who do not speak NORP at all or speak it badly when they start school , ... bearing in mind the particular circumstance of the present case , it can not accept the following conclusion of the first - instance court :

' Furthermore , the wholeness and unity of a class is respected in the upper grades . Therefore , transfer of children from CARDINAL class to another occurs only exceptionally and in justified cases ( ... ) because a class is a homogeneous whole and transferring children from CARDINAL class to another would produce stress . ( ... ) The continuity of a group is a precondition for the development of a class collective ... '

Accordingly , ORG can not accept the following view of the appellate court :

' The classes are formed when the children enter DATE of their schooling , not DATE , and their composition changes only exceptionally . They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them . Therefore this court , like the first - instance court , concludes that maintaining established classes did not amount to an unlawful act . '

The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in elementary schools where no objective need for special measures exists , such as forming separate classes for children with inadequate command of NORP .

Considering the circumstances of the present case , ORG finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of elementary school only for pupils who have not attained the level of NORP necessary for them to follow the school curriculum of regular classes properly . ...

However , there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in NORP in the lower grades of elementary school and successfully mastered the prescribed school curriculum .

Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law , guaranteed under LAW paragraph CARDINAL of the LAW .

... a constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under LAW has been infringed in an individual act of a ORG or public body which determined his or her rights and obligations .

The present constitutional complaint concerns impugned judgments referring to DATE . However , not a single complainant alleges that in DATE he or she was a pupil in a separate [ GPE - only ] upper - grade class or was personally affected or concerned by the contested practice ...

Although it does not concern the individual legal position of any of the complainants ... , in respect of the complainants ' general complaint about the maintaining of GPE - only classes in the upper grades of elementary school ORG has addressed the following question :

- was the continued existence of GPE - only classes in the upper grades of elementary school ... caused by the defendants ' intent to discriminate those pupils on the basis of their racial or ethnic origin ?

... none of the facts submitted to ORG leads to the conclusion that the defendants ' ... practice was aimed at discrimination of the GPE pupils on the basis of their racial or ethnic origin .

The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the Curriculum for Elementary Schools adopted by ORG and ORG on DATE . They consider that ' their placement in GPE - only classes with an inferior curriculum stigmatises them as being different , stupid , intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them . Owing to their significantly reduced and simplified school curriculum their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ( ... ) '

After considering the entire case - file , ORG has found that the above allegations are unfounded . The case - file , including the first - instance judgment ... , shows that the allegations of an inferior curriculum in GPE - only classes are not accurate . ORG has no reason to question the facts as established by the competent court .

The possible difference in curricula between parallel classes for objective reasons ( for example the low attendance at ORG where in the first term of school DATE the pupils in classes CARDINAL , , CARDINAL , CARDINAL and CARDINAL missed CARDINAL lessons in total , CARDINAL of which were missed for no justified reason ) does not contravene the requirement that the curriculum be the same in all parallel classes .

ORG is obliged to point out that neither the LAW nor the LAW guarantees any specific requirements concerning school curricula or their implementation . First and foremost the LAW and the LAW guarantee a right of access to educational institutions existing in a given ORG , as well as an effective right to education , in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed ( a similar view was expressed by ORG in a case relating to certain aspects of the laws on the use of languages in education in GPE v. GPE , § BCARDINAL ) . ...

... ORG finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope . ...

Thus , ORG considers the complainants ' assertion about being stigmatised as a subjective value judgment , without reasonable justification . ORG finds no factual support for the complainants ' assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower , and dismisses that assertion as arbitrary . The competent bodies of GPE recognise a completed degree of education to everyone , irrespective of his or her racial or ethnic origin . In that respect everyone is equal before the law , with equal chances of advancement according to their abilities . ”

The relevant provisions of the LAW read as follows :

“ Everyone in GPE shall enjoy rights and freedoms , regardless of race , colour , gender , language , religion , political or other belief , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law . ”

The relevant part of section CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL , of CARDINAL DATE ; “ the LAW ” ) reads as follows :

“ CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , which decided about his or her rights and obligations , or about suspicion or accusation for a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ...

If another legal remedy exists against the violation of the constitutional right [ complained of ] , the constitutional complaint may be lodged only after that remedy has been exhausted .

In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law are allowed , remedies are exhausted only after the decision on these legal remedies has been given . ”

Section CARDINAL of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL/CARDINAL , DATE and CARDINAL ) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials , specifically that an action can be brought if the following conditions are met : ( a ) an unlawful action has already taken place , ( b ) such action is the work of a government official / body / agency or another legal entity , ( c ) the action resulted in a violation of CARDINAL or more of the plaintiff 's constitutional rights , and ( d ) the NORP legal system does not provide for any other avenue of redress .