Preliminary objection dismissed (six month period);Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 3;Violation of Art. 14+2;Violation of Art. 14+3;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

The applicant ’s mother married ORG in a religious ceremony . In DATE the applicant and ORG , ORG ’s son , started a relationship and began living together . They officially married on DATE . They had CARDINAL children , in DATE , DATE and DATE . The applicant and ORG had heated arguments from the outset of their relationship . The facts set out below were not disputed by the Government .

On DATE the applicant and her mother filed a complaint with ORG , alleging that ORG and ORG had been asking them for money , and had beaten them and threatened to kill them . They also alleged that ORG and his father wanted to bring other men home .

On DATE , the applicant and her mother were examined by a doctor . The applicant ’s medical report noted bruises on her body , an ecchymosis and swelling on her left eyebrow and fingernail scratches on the neck area . The medical report on the applicant ’s mother also noted bruises and swellings on her body . On DATE definitive reports were issued , which confirmed the findings of the first report and stated that the injuries in question were sufficient to render both the applicant and her mother unfit to work for DATE .

On DATE the public prosecutor lodged indictments against ORG and ORG for death threats and actual bodily harm . On DATE ORG discontinued the assault case , as the applicant and her mother had withdrawn their complaints and had thereby removed the basis for the proceedings under LAW .

On DATE FAC also acquitted the defendants of making death threats on account of the lack of evidence , and again discontinued the assault case , noting that it had been previously heard by FAC .

On DATE , during an argument , ORG beat the applicant very badly . The medical report drawn up on that occasion recorded surface bleeding on the applicant ’s right eye , bleeding on her right ear , an ecchymosis on her left shoulder and back pain . The report concluded that the applicant ’s injuries were sufficient to endanger her life . On DATE , at the request of the public prosecutor and by a decision of a single judge , ORG was remanded in custody .

On DATE the public prosecutor filed a bill of indictment with ORG , accusing ORG of aggravated bodily harm under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW .

On DATE ORG filed a petition with the Presidency of ORG , requesting his release pending trial . He explained that during an argument with his wife he had become angry and had slapped his wife CARDINAL or CARDINAL times . Then his mother - in - law , who worked at a hospital , had obtained a medical report for his wife and that report had led to his detention for no reason . He stated that he did not want to lose his family and business and that he regretted beating his wife .

On DATE the Second Magistrate ’s Court dismissed ORG ’s request for release pending trial and decided that his pre - trial detention should be continued .

At the hearing on DATE , the applicant repeated her complaint . The public prosecutor requested that ORG be released pending trial , considering the nature of the offence and the fact that the applicant had regained full health . Consequently , the court released ORG

At a hearing of DATE , the applicant withdrew her complaint , stating that she and her husband had made their peace .

On DATE the court found that the offence fell under Article CARDINAL § CARDINAL of LAW , for which the applicant ’s complaint was required in order to pursue the proceedings . It accordingly discontinued the case on the ground that the applicant had withdrawn her complaint .

On DATE the applicant , her mother , her sister and ORG had a fight , in the course of which ORG pulled a knife on the applicant . ORG , the applicant and her mother sustained injuries . The medical reports certified injuries which rendered them unfit to work for CARDINAL , DATE respectively .

On DATE the public prosecutor decided not to prosecute anyone in respect of this incident . He concluded that there was insufficient evidence to prosecute ORG in connection with the knife assault , and that the other offences such as battery and damage to property could be the subject of civil lawsuits . There was thus no public interest in pursuing the case .

The applicant went to stay with her mother .

On DATE ORG ran a car into the applicant and her mother . The applicant ’s mother was found to be suffering from life - threatening injuries . At the police station , ORG maintained that the incident had been an accident . He had only wished to give the applicant and her mother a lift , which they had refused before they continued walking . They had then thrown themselves in front of the car . The applicant ’s mother alleged that ORG had told them to get into his car and that he would kill them if they refused . Since they did not want to get into the car and had started running away , ORG had driven his car into the applicant , who had fallen . While the applicant ’s mother tried to help her daughter , ORG reversed and then drove forward , this time into the mother . The applicant ’s mother regained consciousness in hospital . In her statements to the police the applicant confirmed her mother ’s statements and alleged that her husband had tried to kill them with his car .

On DATE a single judge at ORG remanded ORG in custody .

On DATE the public prosecutor initiated criminal proceedings against ORG in FAC for making death threats and inflicting grievous bodily harm . On DATE ORG submitted a medical report which noted grazes on the applicant ’s knees . The report concluded that the applicant ’s injuries rendered her unfit to work for DATE .

On DATE the applicant brought divorce proceedings against ORG on the grounds that they had intense disagreements , that he was evading his responsibilities as a husband and a father , that he was mistreating her ( as proved by medical reports ) , and that he was bringing other women to their home . The applicant submits that she later dropped the divorce case due to threats and pressure from her husband .

On DATE the applicant and her mother filed a petition with ORG , asking for protective measures from the authorities subsequent to the death threats issued by ORG and his father .

On DATE police officers took statements from the applicant , her mother , her brother and the latter ’s wife as well as ORG and his father . The applicant and her mother stated that ORG had attempted to kill them with his car and that he had threatened to kill them if the applicant did not return to ORG They noted that the applicant had already commenced divorce proceedings and that she did not want to return to live with H.O. The applicant ’s brother and his wife alleged that the applicant was discouraged by her mother from going back to her husband and that they knew nothing about the threats issued by ORG and his father . ORG contended that his only intention was to bring his family together , but that his mother - in - law was preventing this . He also alleged that he had gone to the applicant ’s brother and family elders for help , but to no avail . He maintained that he had never threatened the applicant or her mother and that their allegations were slanderous . ORG ’s father maintained that the applicant ’s mother wanted her daughter to divorce H.O. and to marry somebody else .

In a report dated DATE , the Director of ORG of ORG informed ORG of the outcome of the investigation into the allegations made by the applicant and her mother . He concluded that the applicant had left her husband and gone to live with her mother . ORG ’s repeated requests for the return of his wife had been turned down by the applicant ’s mother and the latter had insulted ORG and made allegations that ORG had issued death threats against her . ORG had spent DATE in prison for running a car into his mother - in - law and , following his release , had asked a number of mediators to convince his wife to return home . However , the mother did not allow the applicant to go back to ORG Both parties had issued threats against each other . Furthermore , the mother had wished to separate her daughter from ORG in order to take revenge on her ex - husband , had constantly made slanderous allegations and had also “ wasted ” the security forces’ time .

On DATE ORG indicted ORG and his father ORG and charged them with issuing death threats against the applicant and her mother , contrary to LAW .

On DATE ORG released ORG pending trial . It further declared that it had no jurisdiction over the case and sent the file to ORG .

On DATE ORG classified the offence as attempted murder . During the hearing of DATE , ORG repeated that the incident had been an accident ; the car door was open , and had accidentally hit the complainants when he moved the car . The applicant and her mother confirmed ORG ’s statement and maintained that they no longer wished to continue the proceedings .

On DATE ORG acquitted ORG and his father of the charges of issuing death threats , for lack of sufficient evidence . The court noted that the accused had denied the allegations and the complainants had withdrawn their complaints . The applicant again resumed living with ORG

On DATE the applicant ’s mother was given another medical examination , which found that her injuries were not life - threatening but were sufficient to render her unfit for work for DATE .

At the hearing of CARDINAL DATE the applicant and her mother withdrew their complaints . They stated that the car door had been open and that ORG had accidentally hit them . When questioned about their complaints against ORG , the applicant and her mother stated that they had had a fight with ORG and that they had made those allegations in anger .

On DATE ORG concluded that the case should be discontinued in respect of the offence against the applicant , as she had withdrawn her complaint . However , it decided that , although the applicant ’s mother had also withdrawn her complaint , ORG should still be convicted of that offence , since the injuries were more serious . Subsequently , the court sentenced ORG to CARDINAL months’ imprisonment and a fine ; the sentence of imprisonment was later commuted to a fine .

On DATE the applicant went to visit her mother . Later that day ORG telephoned and asked the applicant to return home . The applicant , worried that her husband would again be violent towards her , said to her mother “ this man is going to tear me to pieces ! ” The applicant ’s mother encouraged the applicant to return home with the children . DATE of an hour later one of the children went back , saying that his father had stabbed and killed his mother . The applicant ’s mother rushed to the applicant ’s house . She saw that the applicant was lying on the floor bleeding . With the help of neighbours , she put the applicant into a taxi and took her to ORG . The hospital authorities told her that the applicant ’s condition was serious and transferred her to ORG , which was better equipped . The medical report on the applicant noted CARDINAL knife injuries on different parts of her body . However , the injuries were not classified as life - threatening .

At TIME on DATE , ORG handed himself in at a police station . The police confiscated the knife which he had used during the incident . ORG maintained that his wife and children were still not at home when he came back at TIME He had telephoned them and asked them to come back . On their return , he asked the applicant , “ Why are you wandering outside ? Why have n’t you cooked anything for me ? ” The applicant replied , “ We ate at my mother ’s ” , and brought him a plate of fruit . They continued arguing . He told her , “ Why are you going to your mother so often ? Do n’t go there so much , stay at home and look after the children ! ” The argument escalated . At some point , the applicant attacked him with a fork . They started fighting , during which he lost control , grabbed the fruit knife and stabbed her ; he did not remember how many times . He claimed that his wife was bigger than him , so he had to respond when she attacked him . He added that his wife was not a bad person and that they had lived together peacefully until DATE previously . However , they started fighting when the applicant ’s mother began interfering with their marriage . He stated that he regretted what he had done . ORG was released after his statement had been taken .

On DATE the applicant ’s mother ’s lawyer petitioned ORG . In her petition , she stated that the applicant ’s mother had told her that ORG had beaten her daughter very badly DATE , after which he was arrested and detained . However , he was released at the first hearing . She maintained that her client and the applicant had been obliged to withdraw their complaints due to continuing death threats and pressure from ORG She further stated that there was hearsay about H.O. being involved in trafficking women . Finally , she referred to the incident of CARDINAL DATE ( see paragraph CARDINAL above ) , arguing that , following such a serious incident , ORG ’s release was morally damaging and requested that he be detained on remand .

On DATE the applicant ’s lawyer filed an objection with ORG against the medical report of ORG , which had concluded that the applicant ’s injuries were not life - threatening . The lawyer requested a new medical examination .

On DATE the applicant filed a petition with ORG , complaining that she had been stabbed many times by ORG subsequent to an argument with him . She asked the public prosecutor to send her to ORG for a new medical examination .

On DATE the applicant underwent a new medical examination at ORG on the instructions of the public prosecutor . The forensic medical doctor noted the presence of wounds caused by a knife on the left - hand wrist ( QUANTITY long ) , on the left hip ( QUANTITY deep ) , another QUANTITY - deep wound on the left hip and a wound just above the left knee . He opined that these injuries were not life - threatening but would render the applicant unfit for work for DATE .

On DATE the public prosecutor filed a bill of indictment with ORG , charging ORG with knife assault under ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW .

By a criminal decree of CARDINAL DATE , ORG imposed a fine of MONEY ( TRL ) on ORG for the knife assault on the applicant . It decided that he could pay this fine in CARDINAL instalments .

On DATE the applicant lodged a criminal complaint with ORG , alleging that ORG had been threatening her .

On DATE the public prosecutor decided that there was no concrete evidence to prosecute ORG apart from the allegations made by the applicant .

On DATE the applicant ’s mother filed a complaint with the public prosecutor . In her petition , she stated that ORG , ORG and their relatives had been consistently threatening her and her daughter . In particular , ORG told her , “ I am going to kill you , your children and all of your family ! ” He was also harassing her and invading her privacy by wandering around her property carrying knives and guns . She maintained that ORG was to be held liable should an incident occur involving her and her family . She also referred to the events of DATE , when the applicant was stabbed by him ( see paragraph CARDINAL above ) . In response to this petition , on DATE , the public prosecutor wrote a letter to ORG in ORG and asked them to take statements from the complainant and ORG and to submit an investigation report to his office .

In the meantime , on DATE the applicant again initiated divorce proceedings in ORG .

DATE . On DATE the police took statements from ORG in relation to the applicant ’s mother ’s allegations . He denied the allegations against him and claimed that his mother - in - law , who had been interfering with his marriage and influencing his wife to lead an immoral life , had issued threats against him . The police took further statements from the applicant ’s mother on DATE . She claimed that ORG had been coming to her doorstep DATE , showing a knife or shotgun and threatening to kill her , her daughter and her grandchildren .

On DATE ORG was charged under LAW with making death threats .

On DATE the applicant ’s mother submitted a further petition to ORG . She maintained that ORG ’s threats had intensified . ORG , together with his friends , had been harassing her , threatening her and swearing at her on the telephone . She stated that her life was in immediate danger and requested that the police tap her telephone and take action against H.O. On DATE , the public prosecutor instructed ORG in ORG to submit to his office a list of all the numbers which would call the applicant ’s mother ’s telephone line over DATE . In the absence of any response , the public prosecutor repeated his request on DATE .

On DATE the ORG questioned H.O. in relation to his knife assault on his mother - in - law . He repeated the statement he had made to the police , adding that he did not wish his wife to visit her mother , as the mother had been pursuing an immoral life .

The applicant had been living with her mother since the incident of CARDINAL DATE .

On an unspecified date the applicant ’s mother made arrangements with a removal company to move her furniture to GPE . ORG learned of this and allegedly said , “ Wherever you go , I will find and kill you ! ” . Despite the threats , on DATE the furniture was loaded onto the removal company ’s pick - up truck . The pick - up truck made CARDINAL trips between the company ’s transfer centre and the house . On its third trip , the applicant ’s mother asked the driver whether she could drive with him to the transfer centre . She sat on the front seat , next to the driver . On their way , a taxi pulled up in front of the truck and started signalling . The pick - up driver , thinking that the taxi driver was going to ask for an address , stopped . ORG got out of the taxi . He opened the front door where the applicant ’s mother was sitting , shouted something like , “ Where are you taking the furniture ? ” and shot her . The applicant ’s mother died instantly .

On DATE ORG filed an indictment with ORG , accusing ORG of intentional murder under LAW .

In his statements to the police , the public prosecutor and the court , ORG claimed that he had killed the applicant ’s mother because she had induced his wife to lead an immoral life , like her own , and had encouraged his wife to leave him , taking their children with her . He further alleged that on DATE of the incident , when he asked the deceased where she was taking the furniture and where his wife was , the deceased had replied “ F ... off , I will take away your wife , and sell [ her ] ” . He stated that he had lost his temper and had shot her for the sake of his honour and children .

In a final judgment dated DATE , ORG convicted ORG of murder and illegal possession of a firearm . It sentenced him to life imprisonment . However , taking into account the fact that the accused had committed the offence as a result of provocation by the deceased and his good conduct during the trial , the court mitigated the original sentence , changing it to DATE and QUANTITY months’ imprisonment and a fine of MONEY ( TRY ) . In view of the time spent by the convict in pre - trial detention and the fact that the judgment would be examined on appeal , the court ordered the release of H.O.

The appeal proceedings are still pending before ORG .

In a petition dated DATE , the applicant filed a criminal complaint with ORG in GPE , for submission to ORG , and asked the authorities to take measures to protect her life . She noted that her exhusband , ORG , had been released from prison and that in DATE he had gone to see her boyfriend PERSON , who worked at a construction site in GPE , and had asked him about her whereabouts . Since PERSON refused to tell him her address , ORG threatened him and told him that he would kill him and the applicant . The applicant claimed that ORG had already killed her mother and that he would not hesitate to kill her . She had been changing her address constantly so that ORG could not find her . Finally , she asked the prosecuting authorities to keep her address , indicated on the petition , and her boyfriend ’s name confidential and to hold H.O. responsible if anything untoward happened to her or her relatives .

On DATE the applicant ’s representative informed the ORG that the applicant ’s husband had been released from prison and that he had again started issuing threats against the applicant . She complained that no measures had been taken despite the applicant ’s request . She therefore asked the ORG to request the ORG to provide sufficient protection .

In a letter dated DATE , the Registry transmitted the applicant ’s request to the Government for comments and invited them to inform ORG measures to be taken by their authorities .

On CARDINAL DATE the Director of ORG attached to ORG faxed a letter to ORG in relation to the applicant ’s complaints to ORG . He informed ORG of the applicant ’s pending application before ORG and asked them to provide information on the current state of execution of ORG ’s sentence , the state of proceedings with regard to the applicant ’s criminal complaint filed with ORG in GPE and the measures taken to protect the applicant ’s life .

On DATE , a public prosecutor from ORG wrote to ORG and asked him to take measures for the protection of the applicant .

By a letter of CARDINAL DATE from ORG to ORG in ORG , ORG ( ORG ) asked the police to summon ORG to his office in relation to an investigation .

On DATE ORG questioned ORG in relation to the criminal complaint filed by the applicant . ORG denied the allegation that he had issued threats against the applicant and claimed that she had made such allegations in order to disturb him following his release from prison . He maintained that he did not feel any enmity towards the applicant and that he had devoted himself to his family and children .

On DATE ORG took statements from the applicant ’s boyfriend , PERSON The latter stated that ORG had called him and asked him for the applicant ’s address , and had told him that he would kill her . PERSON did not meet ORG Nor did he file a criminal complaint against ORG He had , however , called the applicant and informed her about the threats issued by ORG

In a letter dated DATE , the Government informed the ORG that the applicant ’s husband had not yet served his sentence but that he had been released pending the appeal proceedings in order to avoid exceeding the permissible limit of pre - trial detention . They also stated that the local governor ’s office and ORG had been informed about the applicant ’s complaint and that they had been instructed to take precautions for the protection of the applicant .

DATE . Finally , on DATE the applicant ’s legal representative informed the ORG that his client ’s life was in immediate danger since the authorities had still not taken any measures to protect her from her former husband . ORG transmitted this letter on DATE to the Government , inviting them to provide information about the measures they had taken to protect the applicant .

On DATE the Government informed the ORG that the police authorities had taken specific measures to protect the applicant from her former husband . In particular , the photograph and fingerprints of the applicant ’s husband had been distributed to police stations in the region so that they could arrest him if he appeared near the applicant ’s place of residence . The police questioned the applicant in relation to the allegations . She stated that she had not been threatened by her husband over DATE .

The relevant domestic law provisions relied on by the judicial authorities in the instant case are set out below .

“ Whoever by use of force or threats compels another person to do or not to do something or to obtain the latter ’s permission to do something ... will be sentenced to DATE imprisonment , and a major fine of CARDINAL DATE ... ”

“ Whoever , apart from the situations set out in law , threatens another person with severe and unjust damage will be sentenced to CARDINAL months’ imprisonment . ”

“ If the act of homicide is :

( a ) committed against a wife , husband , sister or brother , adoptive mother , adopted child , stepmother , stepfather , stepchild , father - in - law , mother - in - law , son - in - law , or daughter - in - law ... the offender will be sentenced to life imprisonment ... ”

“ Whoever torments another person physically or damages his or her welfare or causes cerebral damage , without intending murder , will be sentenced to DATE imprisonment .

Where the act constitutes a danger to the victim ’s life or causes constant weakness in CARDINAL of the organs or senses , or permanent difficulty in speech or permanent injuries to the face , or physical or mental illness for DATE , or prevents [ the victim ] from continuing his regular work for the same number of days , the offender will be sentenced to CARDINAL years’ imprisonment .

If the act did not cause any illness or did not prevent [ the victim ] from continuing his regular work or these situations did not last for DATE , the offender will be sentenced to CARDINAL months’ imprisonment or to a heavy fine of CARDINAL QUANTITY , provided that the injured person complains ... ”

“ If the acts mentioned in LAW are committed against the persons cited in LAW or if the act is committed by a hidden or visible weapon or harmful chemical , the punishment shall be increased by CARDINAL to CARDINAL of the main sentence . ”

“ In situations mentioned under ORG CARDINAL and CARDINAL , where commencement of the prosecution depends on the lodging of a complaint [ by the victim ] , if the complainant waives his / her claims before the pronouncement of the final judgment the public prosecution shall be terminated . ”

“ If a spouse or a child or another family member living under the same roof is subjected to domestic violence and if the magistrate ’s court dealing with civil matters is notified of the fact by that person or by ORG , the judge , taking account of the nature of the incident , may on his or her own initiative order CARDINAL or more of the following measures or other similar measures as he or she deems appropriate . The offending spouse may be ordered :

( a ) not to engage in violent or threatening behaviour against the other spouse or the children ( or other family members living under the same roof ) ;

( b ) to leave the shared home and relinquish it to the other spouse and the children , if any , and not to approach the home in which the other spouse and the children are living , or their workplaces ;

( c ) not to damage the property of the other spouse ( or of the children or other family members living under the same roof ) ;

( d ) not to disturb the other spouse or the children ( or other family members living under the same roof ) through the use of communication devices ;

( e ) to surrender any weapons or similar instruments to law - enforcement officials ;

( f ) not to arrive at the shared home when under the influence of alcohol or other intoxicating substances , or not to use such substances in the shared home .

The abovementioned measures shall be applied for a period not exceeding DATE . In the order , the offending spouse shall be warned that in the event of failure to comply with the measures imposed , he or she will be arrested and sentenced to a term of imprisonment . The judge may order interim maintenance payments , taking account of the victim ’s standard of living .

Applications made under LAW shall not be subject to court fees . ”

“ The court shall transmit a copy of the protection order to ORG . ORG shall monitor implementation of the order by means of the law - enforcement agencies .

In the event of failure to comply with the protection order , the law - enforcement agency shall conduct an investigation on its own initiative , without the victim being required to lodge a complaint , and shall transmit the documents to ORG without delay .

ORG shall bring a public prosecution in the magistrate ’s court against a spouse who fails to comply with a protection order . The location and expeditious holding of the hearing in the case shall be subject to the provisions of PERSON no . CARDINAL on the procedure governing in flagrante delicto cases .

Even if the act in question constitutes a separate offence , a spouse who fails to comply with a protection order shall also be sentenced to CARDINAL months’ imprisonment . ”

These regulations , which were drawn up to govern the implementation of Law no . CARDINAL , set out the measures to be taken in respect of the family members perpetrating violence and the procedures and principles governing the application of those measures , in order to protect family members subjected to domestic violence .

The Convention on the Elimination of All Forms of Discrimination against Women ( CEDAW ) was adopted in DATE by ORG and ratified by GPE on DATE .

The PERSON defines discrimination against women as “ ... any distinction , exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition , enjoyment or exercise by women , irrespective of their marital status , on a basis of equality of men and women , of human rights and fundamental freedoms in the political , economic , social , cultural , civil or any other field . ” As regards the States’ obligations , LAW provides , in so far as relevant , the following :

“ GPE Parties condemn discrimination against women in all its forms , agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and , to this end , undertake :

( e ) to take all appropriate measures to eliminate discrimination against women by any person , organisation or enterprise ;

( f ) to take all appropriate measures , including legislation , to modify or abolish existing laws , regulations , customs and practices which constitute discrimination against women ;

ORG on the Elimination of All Forms of Discrimination Against Women ( hereinafter “ the CEDAW Committee ” ) has found that “ gender - based violence is a form of discrimination that seriously inhibits women ’s ability to enjoy rights and freedoms on a basis of equality with men ” and is thus prohibited under LAW CEDAW . Within the general category of gender - based violence , the ORG includes violence by “ private act ” and “ family violence ” . Consequently , gender - based violence triggers duties in GPE . General Recommendation No . CARDINAL sets out a catalogue of such duties . They include a duty on GPE to “ take all legal and other measures that are necessary to provide effective protection of women against gender - based violence ” , “ including penal sanctions , civil remedies and compensatory provisions to protect women against all kinds of violence ” . In its Concluding Comments on the combined fourth and fifth periodic report of GPE ( hereinafter “ the Concluding Comments ” ) , ORG reiterated that violence against women , including domestic violence , is a form of discrimination ( see ORG doc . CEDAW / C / TUR/CARDINAL - CARDINAL and Corr.CARDINAL , DATE , § CARDINAL ) .

Furthermore , in its explanations of ORG . DATE , ORG considered the following :

“ ... CARDINAL . The Convention in Article CARDINAL defines discrimination against women . The definition of discrimination includes gender - based violence , that is , violence that is directed against a woman because she is a woman or that affects women disproportionately . It includes acts that inflict physical , mental or sexual harm or suffering , threats of such acts , coercion and other deprivations of liberty . Gender - based violence may breach specific provisions of the Convention , regardless of whether those provisions expressly mention violence .

Gender - based violence , which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions , is discrimination within the meaning of LAW .

Comments on specific Articles of the Convention

Articles CARDINAL ( f ) , CARDINAL and DATE ( c )

Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion , such as family violence and abuse , forced marriage , dowry deaths , acid attacks and female circumcision . Such prejudices and practices may justify gender - based violence as a form of protection or control of women . The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment , exercise and knowledge of human rights and fundamental freedoms . While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender - based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education , skills and work opportunities . ”

DATE . In the case of ORG v. GPE ( decision of DATE ) , where the applicant had alleged that her common - law husband and father of her CARDINAL children had been physically abusing and threatening her from DATE onwards , ORG directed GPE to take measures “ to guarantee the physical and mental integrity of the applicant and her family ” , as well as to ensure that she was provided with a safe place of residence to live with her children , and that she received child support , legal assistance and compensation in proportion to the harm sustained and the violation of her rights . ORG also made several general recommendations to GPE on improving the protection of women against domestic violence , such as establishing effective investigative , legal and judicial processes , and increasing treatment and support resources .

In the case of PERSON v. GPE ( decision of DATE ) , which concerned the killing of PERSON by her husband , ORG found that ORG had breached its due diligence obligation to protect PERSON . It therefore concluded that ORG had violated its obligations under LAW ) to ( f ) , and LAW read in conjunction with LAW PERSON and ORG . CARDINAL of ORG and the corresponding rights of the deceased PERSON to life and to physical and mental integrity .

ORG on the Elimination of Violence against Women ( DATE ) , in its LAW ) , urges GPE to “ exercise due diligence to prevent , investigate and , in accordance with national legislation , punish acts of violence against women , whether those acts are perpetrated by the ORG or private persons ” .

In his third report , of DATE , to ORG ( E / CN.CARDINAL/CARDINAL/CARDINAL ) , the special rapporteur on violence against women considered that there is a rule of customary international law that “ obliges GPE to prevent and respond to acts of violence against women with due diligence ” .

In its Recommendation Rec(CARDINAL)CARDINAL of DATE on the protection of women against violence , ORG stated , inter alia , that member GPE should introduce , develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims , support and assistance , adjustment of the criminal and civil law , raising of public awareness , training for professionals confronted with violence against women , and prevention .

ORG recommended , in particular , that member States should penalise serious violence against women such as sexual violence and rape , abuse of the vulnerability of pregnant , defenceless , ill , disabled or dependent victims , as well as penalising abuse of position by the perpetrator . The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings , make provisions to ensure that criminal proceedings can be initiated by the public prosecutor , encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest , ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’s rights are protected during proceedings .

With regard to violence within the family , ORG recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order , inter alia , to enable the judiciary to adopt interim measures aimed at protecting victims , to ban the perpetrator from contacting , communicating with or approaching the victim , or residing in or entering defined areas , to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police , medical and social services .

In PERSON v. GPE , ORG stated :

“ An illegal act which violates human rights and which is initially not directly imputable to a ORG ( for example , because it is the act of a private person or because the person responsible has not been identified ) can lead to international responsibility of the ORG , not because of an act itself , but because of the lack of due diligence to prevent the violation or to respond to it as required by the LAW . ”

The legal basis for the ultimate attribution of responsibility to a ORG for private acts relies on ORG failure to comply with the duty to ensure human rights protection , as set out in LAW . ORG case - law reflects this principle by repeatedly holding States internationally responsible on account of their lack of due diligence to prevent human rights violations , to investigate and sanction perpetrators or to provide appropriate reparations to their families .

The Inter - American Convention on the Prevention , Punishment and Eradication of Violence Against Women DATE ( the GPE do NORP Convention ) sets out States’ duties relating to the eradication of gender - based violence . It is the only multilateral human rights treaty to deal solely with violence against women .

ORG adopts ORG approach to the attribution of ORG responsibility for the acts and omissions of private individuals . In the case of PERSON v. GPE , the Commission found that the ORG ’s failure to exercise due diligence to prevent and investigate a domestic violence complaint warranted a finding of ORG responsibility under LAW and the GPE do NORP Convention . Furthermore , GPE had violated the rights of the applicant and failed to carry out its duty ( inter alia , under LAW , obliging GPE to condemn all forms of violence against women ) , as a result of its failure to act and its tolerance of the violence inflicted . Specifically , the Commission held that :

“ ... tolerance by the State organs is not limited to this case ; rather , it is a pattern . The condoning of this situation by the entire system only serves to perpetuate the psychological , social , and historical roots and factors that sustain and encourage violence against women .

Given the fact that the violence suffered by PERSON is part of a general pattern of negligence and lack of effective action by the ORG in prosecuting and convicting aggressors , it is the view of the ORG that this case involves not only failure to fulfil the obligation with respect to prosecute and convict , but also the obligation to prevent these degrading practices . That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence , since society sees no evidence of willingness by the ORG , as the representative of the society , to take effective action to sanction such acts . ”

In CARDINAL member GPE of ORG , namely in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , the authorities are required to continue criminal proceedings despite the victim ’s withdrawal of complaint in cases of domestic violence .

In CARDINAL member GPE , namely in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , GPE , “ the former GPE ” , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE and GPE , the authorities have a margin of discretion in deciding whether to pursue criminal proceedings against perpetrators of domestic violence . A significant number of legal systems make a distinction between crimes which are privately prosecutable ( and for which the victim ’s complaint is a prerequisite ) and those which are publicly prosecutable ( usually more serious offences for which prosecution is considered to be in the public interest ) .

It appears from the legislation and practice of the above - mentioned CARDINAL countries that the decision on whether to proceed where the victim withdraws his / her complaint lies within the discretion of the prosecuting authorities , which primarily take into account the public interest in continuing criminal proceedings . In some jurisdictions , such as GPE and GPE , in deciding whether to pursue criminal proceedings against the perpetrators of domestic violence the prosecuting authorities ( ORG ) are required to consider certain factors , including : the seriousness of the offence ; whether the victim ’s injuries are physical or psychological ; if the defendant used a weapon ; if the defendant has made any threats since the attack ; if the defendant planned the attack ; the effect ( including psychological ) on any children living in the household ; the chances of the defendant offending again ; the continuing threat to the health and safety of the victim or anyone else who was , or could become , involved ; the current state of the victim ’s relationship with the defendant ; the effect on that relationship of continuing with the prosecution against the victim ’s wishes ; the history of the relationship , particularly if there was any other violence in the past ; and the defendant ’s criminal history , particularly any previous violence . Direct reference is made to the need to strike a balance between the victim ’s and any children ’s LAW in deciding on a course of action .

GPE seems to be the only ORG which bases the continuance of criminal proceedings entirely , and in all circumstances , on the wishes / complaints of the victim .

According to this report , PERSON no . PERSON ( see paragraph DATE above ) is not yet being fully implemented . In DATE there has been an increase in “ protection orders ” or injunctions issued by family courts . However , some courts , in response to applications made to them by women in mortal danger , are still setting hearings DATE . Under these circumstances , judges and prosecutors treat an action under PERSON no . CARDINAL as if it were a form of divorce action , whereas the point of the PERSON is to take urgent action on behalf of women who are seeking to protect their own lives . Once the injunction has been issued , women are confronted with a number of problems with its implementation .

In DATE before the report was released approximately CARDINAL women applied to ORG and made great efforts to use PERSON no . CARDINAL , but of this number CARDINAL succeeded . ORG has identified serious problems with the implementation of PERSON no . CARDINAL . In particular , it was observed that domestic violence is still treated with tolerance at police stations , and that some police officers try to act as arbitrators , or take the side of the male , or suggest that the woman drop her complaint . There are also serious problems in serving the injunction issued by a court under PERSON no . CARDINAL on the husband . In the case of a number of women wishing to work with ORG , injunctions were not implemented because their husbands were police officers or had friendly relations with officers at the police station in question .

Furthermore , there are unreasonable delays in issuing injunctions by the courts . This results from the attitude of the courts in treating domestic violence complaints as a form of divorce action . It is considered that behind such delays lies a suspicion that women might be making such applications when they have not suffered violence . The allegations that women abuse PERSON no . CARDINAL are not correct . Since the economic burden of the home lies PERCENT with men , it would be impossible for women to request implementation of PERSON no . CARDINAL unless they were confronted with mortal danger . Finally , the injunctions at issue are generally narrow in scope or are not extended by the courts .

According to this report , a culture of violence has developed in GPE and violence is tolerated in many areas of life . A survey of legal actions at a magistrate ’s court dealing with civil matters ( sulh hukuk mahkemesi ) and CARDINAL civil courts ( asliye hukuk mahkemesi ) in ORG identified CARDINAL actions brought under PERSON no . CARDINAL from the date on which the PERSON entered into force in DATE until DATE . In CARDINAL of these cases , the court ordered various measures , while in the remaining CARDINAL actions the court held that there were no grounds for making an order , or dismissed the action , or ruled that it lacked jurisdiction .

Despite the importance of the problem of domestic violence , very few applications have been made under the said PERSON , because either the public is not generally aware of it or the level of confidence in the security forces is very low in the region . The most important problems were caused by the delay in issuing injunctions and the authorities’ failure to monitor the implementation of injunctions .

NORP Moreover , the negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this Law . Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend to regard the problem as a private family matter into which the police are reluctant to interfere .

NORP This report makes recommendations to improve the implementation of Law no . CARDINAL and to enhance the protection of victims of domestic violence .

This statistical information report was prepared following interviews conducted with CARDINAL women . It appears that all of the complainants were subjected to psychological violence and PERCENT were subjected to physical violence . The highest number of victims is in the CARDINAL age group ( PERCENT ) . PERCENT of these women are married . The majority of victims are illiterate or of a low level of education . PERCENT of the women are of NORP origin . PERCENT of the victims who called the emergency helpline are from ORG . PERCENT of the victims have no independent source of income .

According to this report , statistical information about the extent of violence against women in GPE is limited and unreliable . Nonetheless , it appears that a culture of domestic violence has placed women in double jeopardy , both as victims of violence and because they are denied effective access to justice . Women from vulnerable groups , such as those from low - income families or who are fleeing conflict or natural disasters , are particularly at risk . In this connection , it was found that crimes against women in south - east GPE have gone largely unpunished .

It was noted that women ’s rights defenders struggle to combat community attitudes , which are tolerant of violence against women and are frequently shared by judges , senior government officials and opinion leaders in society . Even after legislative reforms have removed the legal authorisation for discriminatory treatment , attitudes that pressure women to conform to certain codes of behaviour restrict women ’s life choices .

NORP The report states that at every level of the criminal justice system the authorities fail to respond promptly or rigorously to women ’s complaints of rape , sexual assault or other violence within the family . The police are reluctant to prevent and investigate family violence , including the violent deaths of women . Prosecutors refuse to open investigations into cases involving domestic violence or to order protective measures for women at risk from their family or community . The police and courts do not ensure that men , who are served with court orders , including protection orders , comply with them . They accord them undue leniency in sentencing , on the grounds of “ provocation ” by their victim and on the flimsiest of evidence .

There are many barriers facing women who need access to justice and protection from violence . Police officers often believe that their duty is to encourage women to return home and “ make peace ” and fail to investigate the women ’s complaints . Many women , particularly in rural areas , are unable to make formal complaints , because leaving their neighbourhoods subjects them to intense scrutiny , criticism and , in some cases , violence .

Furthermore , although some courts appear to have begun implementing the reforms , the discretion accorded to the courts continues to accord the perpetrators of domestic violence unwarranted leniency . Sentences in such cases are still frequently reduced at the discretion of the judges , who continue to take into account the “ severe provocation ” of the offence to custom , tradition or honour .

Finally , this report makes a number of recommendations to the NORP government and to community and religious authorities with a view to addressing the problem of domestic violence .

NORP This report was prepared in order to look into the judicial dimensions of the phenomenon of so - called “ honour crimes ” . A survey was carried out of judgments in cases before the FAC assize courts and children ’s courts . The purpose of the survey was to identify the proportion of such unlawful killings referred to the courts , the judiciary ’s attitude to them , the GPE lines of defence in these cases , the role of social structure ( that is , family councils and custom ) and the reasons for the murders . To that end , cases in the ORG assize courts and children ’s courts DATE were examined . In DATE , CARDINAL cases were identified in which a judgment was given . In these cases , there were CARDINAL victims / persons killed , and CARDINAL people were tried as defendants .

According to the researchers , in cases where the victim / person killed was male , it was observed that defendants claimed , in their defence , that the victim / person killed had raped , sexually assaulted , or abducted a relative of the defendant , or had attempted to draw a relative of the defendant into prostitution . In cases where the victim / person killed was a woman , defendants alleged , in their defence , that the victim / person killed had been talking to other men , had taken up prostitution , or had committed adultery . In CARDINAL of the judgments , mitigating provisions concerning unjustified provocation were applied . In cases of CARDINAL convictions , the provisions of LAW concerning discretionary mitigation were applied .


CASE OF ANNONI DI GUSSOLA AND OTHERS v. FRANCE

Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

On DATE a bank , Diffusion industrielle nouvelle ( “ ORG ” ) , granted the applicant a consumer loan in the sum of MONEY ( ORG ) with interest at the rate of PERCENT for the purchase of a vehicle . The loan was repayable in CARDINAL DATE instalments of ORG CARDINAL,CARDINAL.CARDINAL ( making a total of FRF CARDINAL,CARDINAL.CARDINAL ) .

In DATE the bank notified the applicant of its intention to seize the vehicle as he had failed to pay the DATE and DATE instalments . The applicant settled the arrears .

From DATE to DATE the applicant stopped payment of the instalments owing to defects in the vehicle .

NORP In DATE he made a payment .

On DATE ORG terminated the loan agreement and had the car sold for ORG CARDINAL,CARDINAL.CARDINAL . It issued proceedings against the applicant for payment of the balance of the loan .

On DATE the President of ORG ordered the applicant to pay the sum of ORG CARDINAL,CARDINAL . The applicant , who contested the amount claimed and the price at which the car had been sold , applied to have that order set aside .

In a judgment of DATE ORG ordered the applicant to pay ORG plus interest at the contractual rate of PERCENT and a further sum of ORG CARDINAL,CARDINAL . The applicant appealed against that judgment , arguing that the bank had been at fault for selling the car at a derisory price . He sought an order against the bank for the payment of damages to be set - off against the amount of his indebtedness . In the alternative , he asked to be allowed to pay off the debt over DATE .

The applicant , who worked as a consultant in GPE , was made redundant in DATE . From DATE he received minimum welfare benefit ( revenu minimum d'insertion – RMI ) of ORG CARDINAL DATE .

On DATE ORG partly allowed the applicant 's appeal , ordering him to pay ORG the sum of ORG with interest at the contractual rate from DATE plus ORG CARDINAL,CARDINAL by way of statutory compensation . It held that the applicant had not established any fault on the part of the bank such as would warrant an order for damages .

The applicant appealed to ORG on DATE . He lodged written submissions containing CARDINAL grounds of appeal on DATE . In particular , he argued that ORG had acted unfairly since , although he had paid off FRF CARDINAL,CARDINAL in DATE and had undertaken to pay the balance of the loan by DATE , ORG had nonetheless seized the vehicle he had purchased with the aid of the loan and had it sold at a derisory price . The applicant consequently asked ORG to rule that ORG had given insufficient reasons for its decision , in that it had failed to explain why it had rejected his ground of appeal based on the financial institution 's liability for making his situation worse by not selling the car at its true value when the proceeds of sale would have been more than ample to cover the balance of the loan .

On DATE ORG applied for the appeal to ORG to be struck out of the list pursuant to LAW , as the applicant had failed to comply with ORG judgment .

The applicant lodged submissions in which he explained that he was not in a position to pay any of the amount claimed as he was unemployed , his only income since DATE being minimum welfare benefit of ORG CARDINAL DATE . Furthermore , he was DATE in arrears with his rent . He lodged additional submissions informing the court that he had made an application for legal aid on DATE .

By an order of DATE following a hearing on DATE the delegate of the President of ORG made an order for the case to be removed from the list , holding :

“ An order for ' removal from the list ' , which under this provision [ Article DATE ] may be made against a judgment debtor who appeals to ORG , does not constitute a penalty for failure to exercise diligence or as a result of any inadmissibility .

It is an administrative and regulatory measure intended to remind parties that an appeal to ORG is an extraordinary remedy and to enable beneficiaries of enforceable judicial decisions to enjoy the prerogatives afforded them by the judges of the courts below in full , all in accordance with the fundamental rules of the administration of justice .

An application may be made for such an order , which is provisional only and preserves all rights , remedies and grounds of appeal , as soon as the notice of appeal bringing the case before ORG has been lodged with the registry of that court , without the applicant 's having to wait until the time allowed to the appellant and the respondent for lodging their written submissions has expired .

In the instant case , PERSON has failed to show that he has taken any steps apt to demonstrate his intention to comply with the decision of the court below and has not pleaded any personal circumstances that give rise to a danger or presumption that compliance will entail manifestly unreasonable consequences .

In those circumstances , the appeal must be removed from ORG list ... ”

With contractual interest , the sum owed by the applicant at that time came to more than FRF CARDINAL,CARDINAL .

On DATE the applicant and his family were evicted from their home after failing to pay their rent for DATE .

On DATE the applicant began to receive a DATE retirement pension of ORG .

By an order of CARDINAL DATE the delegate of the President of ORG noted that the appeal had lapsed , no steps having been taken to prosecute it in DATE since the order removing it from the list had been made .

After a loan offer was accepted on DATE , a finance company , ORG , granted PERSON a credit facility in the sum of ORG CARDINAL , with interest at PERCENT , for the purchase of a vehicle . Mr ORG , her husband , acted as guarantor .

The first DATE instalments DATE a total of ORG DATE were repaid . The applicants were unable to pay the subsequent DATE instalments , as Mr PERSON lost his job .

SOVAC seized the vehicle , and obtained ORG CARDINAL,CARDINAL.CARDINAL on a forced sale . Alleging an event of default under the agreement , it brought an action against the applicants for immediate payment of the sum of ORG , that being the outstanding capital , together with interest at the contractual rate of PERCENT since DATE .

On DATE ORG dismissed PERSON 's claim . It held that since the authorised overdraft of ORG had been used in a single transaction , it did not constitute a credit facility usable in tranches , but an ordinary loan . LAW DATE on consumer information and protection in financing transactions laid down that a statement of the total cost of the credit , broken down item by item , had to be provided for loans of that type . Noting that the agreement did not contain a statement of the total cost of the credit , ORG held that the loan offer was not in the required form and that by virtue of section CARDINAL of the Law SOVAC , accordingly , forfeited its rights to interest . SOVAC appealed .

On DATE ORG overturned that judgment . In so doing , it accepted PERSON 's submissions that the statement required by LAW DATE was too inflexible to be applicable to an offer with a variable rate of interest , and that a single rate had been applied solely because the applicants had been paid the amount in full , and not in tranches , as they had been at liberty to request . ORG ordered the applicants to pay the sum claimed together with compound interest from DATE .

The applicants applied on CARDINAL DATE for legal aid to appeal to ORG . The legal aid office granted their application on DATE on the ground that they had insufficient means ( their disposable income being put at minus FRF CARDINAL ) .

The applicants accordingly appealed to ORG on DATE through the lawyer assigned to represent them and he lodged written submissions on DATE . The applicants alleged that the finance company had contravened the statutory consumer - protection provisions . They relied in their appeal on judgments in which ORG of ORG had overturned awards of interest made in cases in which the evidence had showed that the lender had failed to state the overall effective rate of interest or the total cost of the credit , broken down item by item , in the loan agreement .

On DATE SOVAC requested the President of ORG to order the removal of the case from the list pursuant to LAW .

In submissions dated DATE the applicants opposed that application on the ground that they had insufficient means , as attested by the fact that they had been granted legal aid in DATE .

By an order of CARDINAL DATE the delegate of the President of ORG found , inter alia , that the applicants had failed to show that they had taken “ any steps apt to demonstrate their intention to comply with the decision of the court below and [ had ] not [ pleaded ] any personal circumstances that [ gave ] rise to a danger or presumption that compliance [ would ] entail manifestly unreasonable consequences ” . The delegate of the President of ORG ordered the case 's removal from the list .

New Code of Civil Procedure

Article CARDINAL is worded as follows :

“ Proceedings shall lapse if none of the parties take any steps for DATE . ”

Article DATE of LAW , as initially worded when Decree no . CARDINAL - CARDINAL of DATE was issued , provided :

“ Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision , the President may , on application by the respondent and after obtaining the opinion of ORG and the parties , order the removal of the case from the list if the appellant fails to show that he or she has complied with the impugned decision , or unless it appears to the President that compliance may entail manifestly unreasonable consequences .

The President shall grant permission for the case to be restored to the list on proof that the impugned decision has been complied with . ”

Article DATE was amended by Decree no . CARDINAL of DATE , which came into force on DATE . It was reworded and supplemented by CARDINAL ORG and now reads as follows :

“ Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision , the President or his or her delegate shall , on application by the respondent and after obtaining the opinion of ORG and the observations of the parties , order the removal of the case from the list if the appellant fails to show that he or she has complied with the impugned decision , or unless it appears to the President that compliance may entail manifestly unreasonable consequences . The respondent 's application must be made before the expiration of the periods laid down in ORG and CARDINAL , failing which the court shall of its own motion declare it inadmissible . An order for the case 's removal from the list shall not prevent time running for the purposes of the time - limits to which the appellant is subject by virtue of ORG CARDINAL and CARDINAL . ”

“ Time shall start to run from the date the order for removal of the appeal from the list is served . It shall be interrupted by an act that unequivocally manifests an intention to comply . ”

“ Unless he or she finds that the appeal has lapsed , the President or his or her delegate shall grant permission for the case to be restored to the list on proof of compliance with the impugned decision . ”

For the purposes of the time - limits to which the respondent is subject by Articles CARDINAL and CARDINAL , time shall start to run from the date the order for the restoration of the appeal to the list is served . ”

Case - law

( i ) “ Appellants to ORG may not rely on LAW to oppose an application for an order for removal of an appeal from the list , since they have been able to exercise their right to appeal to ORG and are not entitled to avoid their own obligations to comply with the orders made in the judgment against them , as they would otherwise deprive their opponent of a prerogative which the latter enjoys by virtue of the judicature rules . ” ( PERSON . ord . CARDINALer prés . , CARDINAL DATE , ORG . civ . ord . , no . CARDINAL )

( ii ) “ ... PERSON and PERSON ... appealed on points of law against the judgment ... of the ... Court of Appeal ordering them to pay ... MONEY ... PERSON and PERSON ... contest that measure on the ground that they have been granted full legal aid .

It appears that the grant was made on the basis that the spouses ' disposable DATE income was MONEY . In those circumstances and regard being had to the amount of the order , it appears that compliance with the judgment would entail manifestly unreasonable consequences for them . ” ( PERSON . ord . CARDINALer prés . , no . CARDINAL of DATE )

( iii ) “ By a judgment ... the ... ORG ordered PERSON and the SCI A. to pay various sums to Mr D.B ...

PERSON says he is impecunious ... The documents produced by PERSON , who is in receipt of minimum welfare benefit , show that his financial circumstances are indeed extremely precarious ... that compliance with the judgment would entail manifestly unreasonable consequences for him ... ” ( PERSON . ord . CARDINALer prés . , no . DATE of DATE )


Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE she got married and on DATE gave birth to a daughter .

On DATE the applicant left the matrimonial home and went to GPE , leaving her daughter with her husband .

On DATE the applicant 's husband lodged an interlocutory application with ORG for an interim - custody order . On DATE the applicant filed a cross - application for interim custody .

NORP On CARDINAL May CARDINAL ORG made an interim order granting custody of the child to the father ( judgment no . CARDINAL ) .

On DATE it made a final order granting the father custody ( judgment no . CARDINAL ) . An appeal by the applicant against that judgment was dismissed by ORG on DATE ( judgment no . DATE ) . The applicant did not appeal on points of law against that judgment .

In the meantime , on CARDINAL and DATE the applicant and her ex - husband each applied to ORG for interim orders concerning access . The hearing of the applicant 's application , which was initially scheduled for DATE , was adjourned to DATE so that it could be examined with the father 's application .

On DATE the applicant made a further application , seeking an order requiring her ex - husband to bring the child to her house . On DATE the judge issued an order granting the applicant interim access every Saturday from TIME On DATE the applicant 's former husband failed to comply with that order . On DATE he asked the court to set aside the judge 's interim order , which it did on DATE ( judgment no . DATE ) .

In a medical report dated DATE , CARDINAL psychologists who had examined the child and her father but not the applicant stated that the child was suffering from “ physical negligence and abandonment by her mother , a denial of love and affection , and indifference to her achievements and the activities she was involved in ” . They concluded that keeping “ a distance from her mother temporarily would contribute to suppressing the child 's negative feelings ” .

After the hearing on DATE , ORG delivered its judgment on DATE . In particular , it held :

“ On DATE , after the breakdown of the marital relationship between the parties , [ the applicant ] left the matrimonial home ... and settled temporarily in GPE , GPE , without giving any sign of life until DATE . She did not contact her daughter , who was constantly in tears and desperate to find her mother , being unable to understand her long absence . When the child visited her mother on CARDINAL DATE at the hotel where she was staying in GPE , [ the applicant ] left her alone in the room and went away , leaving the child with feelings of intense fear and insecurity ... It should also be noted that in DATE the applicant , who had already returned to GPE and was accompanied by her mother , visited her daughter 's school in order to meet her teachers ; when her daughter saw her in the playground she ran away terrified , calling out for her teachers to help her and protect her from her mother . On the other hand , the applicant has a university education , moral principles and a high standard of living ; for the whole period when they lived together as a family until the moment she left the matrimonial home , [ the applicant ] showed an interest in and took care of her daughter , whom she undoubtedly loves excessively . ”

Taking into account the above circumstances and the interest of the child , the court decided that the child should stay with her mother once DATE and for DATE during DATE ( judgment no . CARDINAL ) .

On DATE the applicant spent DATE with her daughter .

On DATE the applicant 's former husband asked the court to review its decision in judgment no . CARDINAL . The hearing took place on DATE . On DATE the child was brought to her mother 's house , but refused to stay with her . On DATE the court confirmed the previous arrangement for visiting rights but reduced the number of days the child could spend with her mother during DATE , so as to take into account holiday plans that had been made by the child 's father and her paternal grandparents . The court found that the applicant was a highly educated person “ with moral principles ” and that “ she loved her daughter ” ( judgment no . CARDINAL ) .

On DATE the child was brought to the applicant 's house but again refused to stay with her . The applicant and her daughter were then taken to the FAC , where , under unspecified circumstances , the applicant kicked her daughter and tore out clumps of her hair .

On DATE and DATE the applicant 's former husband sought a review of judgments ORG . CARDINAL and DATE . He also asked for the applicant 's visiting rights to be provisionally suspended . The judge granted his applications and suspended the applicant 's visiting rights without hearing prior representations from the applicant .

On DATE the applicant appealed against the order suspending her visiting rights . On DATE the judge dismissed her appeal ( judgment no . CARDINAL/CARDINAL ) .

On DATE ORG stated that it was essential for the child to have contact with her mother and that the father was under a duty to facilitate such contact . It found that the child 's reluctance to see her mother was due to the behaviour of her father , who had involved the child in his own disputes and problems with the applicant ( judgment no . CARDINAL ) .

On DATE the applicant issued a summons against her former husband requiring him to comply with judgment no . CARDINAL , but to no avail .

In the meantime , the applicant asked the juvenile - court public prosecutor to intervene in order to facilitate communications with her daughter . On DATE ORG referred the matter to ORG of ORG , where a psychiatrist examined both parents and the child . In her report dated DATE , the psychiatrist noted : “ It has been difficult to see the mother who has been cancelling the appointments ” and stated : “ If [ the child 's ] psychological problems are to be alleviated , it is necessary for her to be reunited with her mother and to have regular contact with her ” . The psychiatrist also proposed specific measures in order to ensure the child 's well - being ( such as a psychological assessment of both parents and individual psychotherapy of the child at least once DATE ) . The psychiatrist 's report was sent to the public prosecutor , who took no further action . The authorities refused to give the applicant a copy of the report on the ground that it was confidential . The applicant obtained a copy only on DATE .

On DATE the applicant 's former husband brought his daughter to the applicant 's house , but she refused to stay with her mother .

On CARDINAL DATE the applicant asked the court to take formal note that her former husband had deliberately prevented her from having contact with the child from DATE to DATE . On DATE the court dismissed the applicant 's request on the ground that the child did not want to see her mother and that the father was not responsible for the lack of contact ( judgment no . CARDINAL ) .

On DATE the applicant appealed . On DATE the court of appeal dismissed her appeal . It found that the applicant was not able to have access to her daughter owing to the latter 's absolute refusal to see her mother , which in turn was the result of the child 's feelings of distress after the applicant 's departure from the family home . The child 's father was doing all he could to reunite the family . Moreover , the applicant lived almost permanently abroad and it was therefore in any event impossible for her to visit her daughter once a week . The interest of the child should prevail and further strain on her mental health should be avoided at all costs ( judgment no . ORG ) .

On DATE the applicant appealed on points of law . The hearing took place on DATE . On DATE ORG dismissed the applicant 's appeal as ill - founded ( judgment no . CARDINAL ) .

On DATE the applicant lodged a criminal complaint against her former husband alleging that he had obstructed her contact with her daughter . On DATE ORG , sitting with a single judge , found the applicant 's former husband not guilty ( judgment no . CARDINAL ) , holding in particular :

“ The child reacts to any contact with her mother , after the latter abandoned her in GPE in DATE after the child had travelled there to see her . The situation is typified by an incident on DATE , when [ the applicant ] assaulted her daughter at the FAC , kicking her and tearing out her hair ( see the certificate from the police incident book ) . The [ applicant 's former husband ] has never prevented his daughter from seeing her mother , nor has he ever urged her to avoid her mother . ”

Following that judgment the applicant lodged criminal complaints against her former husband every time he failed to comply with the court 's rulings . The father also brought various criminal charges against the applicant . Currently , CARDINAL sets of criminal proceedings are pending .


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in PERSON . He is a retired police officer who had formerly been employed in ORG ( NORP GPE ) . In DATE the applicant had been dismissed from service for a disciplinary offence . He was rehired by the Police in DATE . He retired in DATE .

On DATE the applicant brought a civil action against ORG for compensation on the grounds that in DATE he had been unlawfully dismissed from his post at ORG and banned from working there until DATE . In addition the applicant claimed that he had not been hired by the new police services immediately after the change of the political regime , as he should have been , but only in DATE .

The applicant sought compensation , which comprised damages for lost earnings from DATE to DATE , for lost earnings and benefits from DATE , and for alleged moral suffering due to the loss of employment .

On DATE the ORG ( PERSON ) rejected the claim on the ground that the civil court did not have jurisdiction over a dispute arising out of an employment relationship between a civil servant and the ORG ( niedopuszczalność drogi sądowej ) .

As a result of an interlocutory appeal by the applicant , on an unspecified date the ORG ( ORG ) quashed that decision and remitted the case to the Poznań Regional Court .

On DATE the ORG rejected the claim on the ground of lack of jurisdiction .

On DATE the ORG of Appeal quashed that decision and remitted the case indicating that the applicant 's claim was of a civil character as it had arisen out of relations between a civil servant and the ORG which were of an administrative and legal character rather than from a bond of special trust and loyalty between the CARDINAL .

On DATE the ORG dismissed the applicant 's claim .

On DATE the ORG of Appeal quashed the first - instance judgment in the part concerning the claim for compensation for lost earnings from DATE and remitted the case in this part to the lower court .

On DATE the ORG dismissed the case . The applicant appealed .

It appears that on DATE the appellate court issued an order to hold a hearing on DATE .

On CARDINAL DATE the ORG of Appeal delivered a judgment varying the judgment of ORG of DATE and ordering that the respondent pay the applicant a certain amount of compensation for lost earnings and benefits from DATE .

A cassation appeal in the case was inadmissible in law .

On DATE the applicant lodged a complaint about the unreasonable length of proceedings for compensation for lost earnings and benefits from DATE under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . The applicant submitted that his civil case had been pending for DATE .

On DATE ORG discontinued the proceedings under LAW on the ground that the civil proceedings which were the subject of the complaint had meanwhile terminated .

The court observed that the main purpose of the complaint about the unreasonable length of proceedings was to accelerate the proceedings before a trial court . In circumstances where the proceedings which were the subject of the complaint had already terminated it was no longer necessary for the court to examine the complaint under LAW . ORG noted that the applicant had admittedly lodged his complaint under LAW while the civil proceedings in question were still pending . Nevertheless , the appellate hearing , which turned out to be final , had been scheduled prior to the applicant 's complaint . That , in ORG opinion , constituted a decisive argument for holding that the proceedings under LAW ought to be discontinued without a ruling on the merits .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG 's decisions in cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


Violation of Art. 5-1;Remainder inadmissible;Just satisfaction reserved

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lived in GPE , GPE .

He is currently in detention .

The applicant was facing proceedings before ORG , sitting as a court of criminal judicature , for drug trafficking .

On DATE the applicant was granted bail under certain conditions , including a guarantee of MONEY ( ORG ) . CARDINAL of these conditions stipulated that the applicant could only leave his residence to accompany his son to and from school , and was therefore only authorised to go out , accompanied by his son , TIME and TIME On DATE the applicant signed a declaration stating that he agreed to comply with the above - mentioned obligation and to pay the guarantee in the event that he breached any of the conditions . He further paid the sum of ORG CARDINAL by way of deposit .

Following a complaint that the applicant had been seen in PERSON , on an unspecified date , TIME , ORG , by a decision of DATE , held that the applicant had breached CARDINAL of his bail conditions , namely being home by the established curfew . ORG therefore revoked his bail , ordered his arrest and decreed that the ORG CARDINAL deposit he had already paid as well as the ORG CARDINAL guarantee were to be paid to the government .

As he was unable to pay the guarantee , proceedings were initiated by ORG under LAW ( “ the ORG ” ) to convert the debt into imprisonment . As stipulated in LAW not exceed more than one day per EUR CARDINAL ( see ‘ Relevant domestic law’ below ) .

On DATE ORG ordered the guaranteed sum to be converted into a period of detention at the rate of DATE per ORG CARDINAL , namely DATE ( DATE and DATE ) , and the applicant was placed in detention .

On DATE the applicant instituted constitutional proceedings , claiming that LAW and the ORG decision of DATE constituted a breach of LAW in that they provided for an excessive and disproportionate punishment . Unlike other similar provisions of the law , LAW did not apply a ceiling on the length of the imprisonment to which a debt could be converted and it therefore gave rise to a degrading punishment in the applicant ’s case .

On DATE ORG ( FAC ) dismissed the applicant ’s complaint . It noted that the applicant did not complain under ORG CARDINAL or CARDINAL of the Convention that the conditions imposed DATE which he had freely accepted , knowing the consequences they could entail – had been excessive , but solely under LAW on the ground that the length of his penalty had been “ excessive ” and disproportionate . It held that the length of imprisonment had been clear as soon as the amount of the guarantee had been fixed ; accordingly , after knowingly accepting these conditions the applicant could not now complain that the penalty was excessive , since it was linked to the amount of the guarantee . Furthermore , the Convention did not afford a right to call into question the length of a sentence imposed by a competent court and in no way had the penalty imposed on the applicant been shown to have reached the threshold required to fall within LAW .

On DATE ORG rejected an appeal lodged by the applicant . It held , however , that ORG had erred in considering his detention as falling within LAW ( a ) , namely , detention following a conviction . His detention had its basis in LAW CARDINAL ( b ) , namely , to secure the fulfilment of an obligation prescribed by law . It followed that , according to GPE case - law , there should be a reasonable relationship of proportionality between the deprivation of liberty and the fulfilment of the obligation . In the present case the applicant had undertaken an obligation knowing the unambiguous and non - arbitrary consequences it entailed , according to a pre - established rate which remained valid up to the date of payment . The fact that no ceiling applied to the provision in question did not affect the proportionality between the obligation and the consequences it entailed . Absolving a person of such an obligation when it had not been fulfilled would render the notion of guarantees against detention futile . This reasoning applied to both LAW . Indeed , the applicant had neither contested the proportionality of the amount specified in the guarantee imposed nor stated that it was beyond his means . It followed that it could not amount to inhuman or degrading treatment or punishment . Notwithstanding that elements of shocking disproportionality could raise an issue under LAW v. GPE , no . CARDINAL , DATE , and PERSON v. GPE , no . DATE ) , this was not so in the present case .

Article CARDINAL of the ORG , LAW of the Laws of Malta , reads as follows :

“ ( CARDINAL ) If the person charged or accused fails to appear when ordered by the authority specified in the bail bond , or fails to observe any of the conditions imposed by the court in its decree granting bail , or absconds or leaves GPE , or while on bail commits any crime not being one of an involuntary nature , or interferes or attempts to interfere with witnesses or otherwise obstructs or attempts to obstruct the course of justice whether in relation to himself or any other person , the sum stated in the bail bond shall be forfeited to the government of GPE , and , moreover , a warrant of arrest shall be issued against him :

Provided that this Article shall not apply where the court considers that the infringement of the condition imposed in the decree granting bail is not of serious consequence .

( CARDINAL ) NORP person who fails to observe any of the conditions imposed by the court in its decree granting bail shall be guilty of an offence and shall , on conviction , be liable to the punishment of a fine ( multa ) or to a term of imprisonment not exceeding six months , or to both such fine and imprisonment and the sum stated in the bail bond may be forfeited to the government of GPE .

( CARDINAL ) Notwithstanding the provisions of any law , any person charged with any offence as mentioned in sub - article ( CARDINAL ) shall be arraigned in court under arrest , and it shall be lawful for the police to request in the same proceedings the revocation of bail and the rearrest of such person . The proceedings for an offence under sub - article ( CARDINAL ) shall be taken by the police and shall be decided by the court with urgency . ”

Article CARDINAL of the ORG , in so far as relevant , reads as follows :

“ ( CARDINAL ) For the recovery of the sum fixed in the bail bond in the case referred to in LAW , the court before which the person charged or accused was bound to appear , shall , as the case may be , either issue and enforce a warrant of seizure or of arrest against the surety until payment is effected , or declare the deposit to be forfeited in favour of the government of GPE , or , in case of pledge , order the sale thereof . ”

“ ( CARDINAL ) Any person who is arrested for non - payment of the sum in which he bound himself , shall be detained for a period not exceeding one day for every MONEY and MONEY ( CARDINAL ) of that sum , whether such person is the person charged or accused or the surety . ”


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

At the material time the applicant was the President of ORG in PERSON ( PERSON ) .

On DATE a session of ORG took place . CARDINAL of the points on the agenda was a vote on whether to adopt a resolution requesting ORG ( PERSON ) to give a positive report on the continued operation of ORG ( GPE Szkół Ogólnokształcących w Knyszynie ) . Since DATE , the manager of the school complex had been PERSON .

During the session on DATE the applicant , together with other representatives , voted against the planned resolution . ORG adopted another resolution and decided that they would not request from ORG a positive report referred to above .

At the next session of ORG , on DATE , further discussion about the future of the school complex was held . During the session the applicant took the floor and presented some arguments which in his view supported the resolution adopted on DATE . The applicant accused PERSON of :

- adopting an inappropriate timetable , unjustified division of students into groups , increasing overtime , which caused additional costs ;

- ismanagement of the school complex finances , increase of heating costs ;

- reating the school complex as private property , the lease of school premises without remuneration ;

- poor organisation of the students ' free time during the school holidays ;

- spending money on teachers ' training which was not appropriate or objective and which did not correspond to the school 's needs ;

- lack of discipline at school ;

- irresponsibility – organising a disco above a room in which a mock exam was being held ;

- failure to appoint the school council ;

- failure to adopt clear and transparent rules for granting awards to teachers ; awards were granted publicly to some and in private to others ;

- failure to provide reliable information on granting “ incentive bonuses ” to teachers ;

- granting overtime work only to certain teachers ;

- failure to advertise the school complex ;

- failure to cooperate with the municipality ;

- disorder in the teachers ' personal files ;

- intimidating teachers with threats that they would be fired or deprived of bonus payments , and so on ;

- inadequate educational standards ; CARDINAL out of CARDINAL students passed their final exams .

PERSON . , the school manager , found the accusations defamatory and untrue . He demanded that the applicant provide the participants at the session with evidence substantiating his allegations .

The events that took place during the session of ORG on DATE were subsequently described in an article published in the local edition and on the internet site of ORG and on the internet site of GPE .

On DATE PERSON . lodged a private bill of indictment against the applicant with ORG ( Sąd Rejonowy ) , complaining that the applicant 's statements of CARDINAL DATE were defamatory .

On DATE ORG found the applicant guilty of presenting untrue statements during the session of ORG as regards the performance of PERSON . in his professional duties , which amounted to defamation which could impact negatively on the necessary public respect and esteem required by PERSON . in the execution of his duties as headmaster of a public school and as a teacher . Relying on LAW ( PERSON ) , the court sentenced the applicant to a fine in the amount of ORG CARDINAL and ordered that the judgment of conviction be published . The court also ordered the applicant to apologise for all his accusations .

On DATE the applicant 's lawyer appealed against the first - instance judgment . She argued that ORG had wrongly assessed the evidence , in that it had considered that the applicant 's intention had been to insult PERSON . , while he had been motivated solely by concern for the local community . In consequence , according to the applicant 's lawyer , the applicant should not have been sentenced on the basis of having committed defamation . The lawyer also referred to a violation of LAW .

On DATE ORG ( PERSON ) partly amended the first - instance judgment . It found that taking into consideration the social consequences of the prohibited act and the conduct of the applicant , as well as his personal and family situation , it was unnecessary to sentence the applicant . ORG amended the first - instance judgment in that it conditionally discontinued the proceedings for a probationary term of DATE , ordered the applicant to pay ORG MONEY to charity and rescinded the publication of the applicant 's conviction . The court also ordered that during a session of ORG the applicant should make a statement that his accusations had been untrue and apologise to PERSON .

At the same time however ORG confirmed ORG finding that the applicant 's statements had been untrue and that the applicant had been acting on his own behalf rather than out of concern for the interests of the municipality . The court further dismissed the argument of a violation of LAW as manifestly ill - founded , holding that that provision did not guarantee unlimited freedom of expression .

On DATE the applicant 's lawyer requested the ORG to lodge a cassation appeal on the applicant 's behalf .

On DATE the ORG refused her request , finding that the arguments contained in the judgments of the first and second - instance courts had not raised any doubts .

On DATE at the session of ORG the applicant read out the statement required by ORG judgment and apologised to PERSON .

On DATE the applicant 's lawyer lodged a constitutional complaint with ORG ( PERSON ) , arguing that LAW was incompatible with the relevant provisions of LAW .

On DATE ORG refused to hear the constitutional complaint ( odmówił nadania dalszego biegu skardze ) , holding that a similar matter had already been examined by the court in its judgment of DATE .

Article CARDINAL provides as follows :

“ GPE shall ensure freedom of the press and other means of social communication . ”

Article CARDINAL of the LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) provides :

“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL § CARDINAL of the LAW guarantees freedom of expression . It states , in so far as relevant :

“ The freedom to express opinions , to acquire and to disseminate information shall be ensured to everyone . ”

Article CARDINAL of LAW provides as follows :

“ § CARDINAL . Anyone who imputes to another person , a group of persons , an institution , a legal person or an organisation without legal personality , such behaviour or characteristics , as may lower this person , group or entity in the public 's opinion or undermine public confidence in their capacity necessary for a certain position , occupation or type of activity , shall be liable to a fine , a restriction on their liberty or imprisonment not exceeding one year .

§ CARDINAL . NORP If the perpetrator commits the act described in paragraph CARDINAL through a means of mass communication , he shall be liable to a fine , restriction of liberty or imprisonment not exceeding two years .

§ CARDINAL . When sentencing for an offence specified in § CARDINAL or CARDINAL , the court may adjudge a supplementary payment in favour of the injured person or ORG , or of another social purpose designated by the injured person ( nawiązka ) .

§ CARDINAL . NORP The prosecution of the offence specified in LAW shall occur upon a private charge . ”

Article CARDINAL provides as follows :

“ § CARDINAL . The offence specified in LAW is not committed if the allegation not made in public is true .

§ CARDINAL . Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in LAW ; if the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone 's life or to prevent demoralisation of a minor . ”

Article CARDINAL provides as follows :

“ The absence of an offence resulting from a reason specified in LAW does not exclude the liability of a perpetrator for the insult , by reason of the manner of announcing or publicising the allegation . ”

Article CARDINAL provides as follows :

“ On the motion of the injured person the court may order the judgment of conviction to be punished . ”

On DATE ORG , ruling on a legal question referred to it by ORG , declared LAW of LAW Criminal Code compatible with ORG DATE § CARDINAL read in conjunction with LAW of LAW .

The court found that in some circumstances the protection of rights and freedoms such as dignity , good name and privacy may prevail over the protection of freedom of expression . The court further found that there was no basis to assume that protection of freedom of expression merely by means of civil law ( provisions on personal rights ) would be as efficient as criminal law . Protection of freedom of expression by means of criminal law did not of itself infringe the relevant provisions of the LAW .

CARDINAL judges expressed their dissenting opinions to ORG judgment of DATE .