The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE - on - Trent .

His wife died on DATE .

On DATE , the applicant applied to ORG for the payment of social security benefits . He applied for benefits equivalent to those to which a widow , whose husband had died in similar circumstances to those of his wife , would have been entitled under ORG DATE ( “ the DATE LAW ) . He was informed that ORG was unable to accept his application as a valid claim because the regulations governing the payment of widows ' benefits were specific to women . The claim was finally rejected by ORG on DATE .

His wife died on DATE , leaving the applicant and his son , born on DATE .

On DATE , the applicant applied for benefits equivalent to those to which a widow , whose husband had died in similar circumstances to those of his wife , would have been entitled under ORG DATE ( “ the DATE LAW ) . He was informed on DATE that ORG was unable to accept his application as a valid claim because the regulations governing the payment of widows ' benefits were specific to women . His appeal was dismissed by ORG on DATE .

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

His wife died on DATE , leaving CARDINAL children DATE . Shortly after her death , the applicant contacted ORG by telephone to see whether any widowers ' benefits would be available . He was informed that there were no benefits available to him because he was a man .

He subsequently made a claim for widowers ' benefits equivalent to those to which a widow , whose husband had died in similar circumstances to those of his wife , would have been entitled under ORG DATE ( “ the DATE LAW ) . He was informed on DATE that ORG was unable to accept his application as a valid claim because the regulations governing the payment of widows ' benefits were specific to women . His appeal to ORG was rejected on DATE .

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

His wife died on DATE . His claim for widow 's benefit was rejected by ORG on DATE on the ground that , as a man , he was not eligible for the benefits . His appeals to ORG were refused in DATE respectively .

The domestic law relevant to these applications is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .


The applicants , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE respectively . On DATE Mr PERSON died and his daughter , PERSON , pursued the application on his behalf . PERSON and PERSON live in GPE . PERSON lives in GPE . The applicants were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON , Director of ORG of ORG .

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

On DATE Mr PERSON lodged an application with ORG ( PERSON ) for restitution of his family 's property , which had been nationalised in DATE and allocated by the authorities to a third person free of charge since DATE . The property consisted of farmland , a house and farm buildings .

By a decision of ORG for the Return and Compensation of ORG ( NORP võõrandatud vara tagastamise ja kompenseerimise GPE maakonna komisjon ) of CARDINAL DATE , all CARDINAL applicants were recognised as the persons entitled to the nationalised property under the property reform legislation .

On DATE ORG ( Õru Vallavalitus ) , relying on section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW ( Omandireformi aluste seadus ) , decided not to return the property to the applicants on the ground that it had lost its former distinct character ( that is , the form or size of the property , as assessed according to the criteria established by law , had changed significantly ) . On DATE ORG decided to award the applicants compensation in respect of the property .

The applicants appealed against both of these decisions to ORG ( Valga Maakohus ) .

By a judgment of DATE , ORG declared the decision of ORG of DATE unlawful , finding that the condition of the property had been incorrectly assessed . The judgment was upheld by ORG ( GPE ) on DATE . The courts left unexamined the applicants ' complaint concerning the decision on compensation of CARDINAL DATE as the complaint did not meet the formal requirements .

On DATE the ORG gave a new decision refusing to return the property to the applicants . That decision was also declared unlawful , mainly for lack of reasoning , by ORG and ORG on DATE and DATE respectively . The courts also declared unlawful the compensation decision of DATE , as it had been made on the basis of the unlawful decision of DATE to refuse restitution .

By a decision of DATE , ORG refused to return the nationalised property to the applicants on the ground that the property was in the possession of a third person who had acquired it in good faith . In particular , that person had not persecuted the applicants or expropriated their property . The District A dministration based its decision on an amended version of section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW , which had come into force on DATE .

The applicants lodged a complaint against the decision submitting , inter alia , that , under section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW in the version in force until DATE , a person who had obtained expropriated property free of charge could not be regarded as the bona fide owner of the property . They had lodged an application for restitution at the time when that LAW was in force and therefore had a legitimate expectation that their application would be decided according to that LAW .

By a judgment of DATE , ORG ( ORG ) dismissed the applicants ' complaint . The judgment was upheld by ORG on DATE . ORG ( NORP ) , which initially refused the applicants leave to lodge an appeal with it , subsequently granted them leave and , on DATE , rendered a judgment upholding ORG judgment .

In its judgment ORG reiterated that one of the purposes of the property reform was to undo the injustices caused by violations of property rights in the past . At the same time , the restitution of property or the payment of compensation to former owners should not prejudice the lawful interests of other persons or cause new injustices . The deprivation of property of new owners who had received it free of charge would create such an injustice . Expropriated property had often been preserved thanks to the efforts of new owners . The provisions of section CARDINAL(CARDINAL)(CARDINAL ) of ORG LAW , as they had existed until DATE , were unjust and offered no protection to new owners of unlawfully expropriated property . The applicants could not reasonably expect that the law would not change . Their expectation that their restitution claim would be decided in accordance with the former law did not outweigh the right of the current owner to the protection of his property and his legitimate expectation that he would not be deprived of his lawfully obtained possessions . The applicants were , however , entitled to claim compensation for property which could not be returned to them .

In the meantime , on DATE ORG decided to award compensation to the applicants in respect of the nationalised property in the form of “ privatisation vouchers ” to the nominal value of CARDINAL NORP kroons ( EEK ) for Mr PERSON and to the nominal value of EEK CARDINAL each for PERSON and PERSON . The Government informed the ORG that the applicants had received the compensation . There is no indication that the applicants appealed against the size of the award .

B. Relevant domestic law

ORG came into force in DATE . It subsequently underwent various substantial amendments . Section CARDINAL ) of the LAW in its original wording provided that unlawfully expropriated property was not subject to return if

“ the property [ was ] in the possession of a natural person who [ had ] acquired it in good faith ” .

Section CARDINAL(CARDINAL)(CARDINAL ) of the LAW as in force from DATE to DATE provided that unlawfully expropriated property was not subject to return if

“ the property [ was ] in the possession of a natural person who [ had ] acquired it in good faith ; a person who [ had ] obtained the property free of charge by a decision of a ORG authority or who [ had ] participated in the persecution of the owner of the property or in its unlawful expropriation [ could ] not be regarded as a bona fide owner ” .

On DATE a further relevant amendment to the LAW came into force . Under the new text of section CARDINAL(CARDINAL)(CARDINAL ) , unlawfully expropriated property was not subject to return if

“ the property [ was ] in the possession of a natural person who [ had ] acquired it in good faith ; above all , a person who [ had ] participated in the persecution of the owner of the property or in its unlawful expropriation [ could ] not be regarded as a bona fide owner ” .

Section CARDINAL(CARDINAL ) of ORG LAW stipulated that if unlawfully expropriated property could not be returned on the basis of CARDINAL of the LAW , the ORG would pay compensation in respect of the property according to the procedure provided for by law .

In accordance with the Regulation on the procedure for the restoration of unlawfully expropriated property enacted by the government on DATE , as amended , the restitution of property rights was carried out in CARDINAL stages : ( CARDINAL ) the establishment of the unlawfulness of the expropriation and the determination of the persons entitled to restitution of their property rights ; ( CARDINAL ) the decision as to whether the property was to be returned ; ( CARDINAL ) the transfer of the property to the eligible persons . The ORG on the procedure for determining compensation in respect of unlawfully expropriated property enacted by the government on DATE , as amended , provided that the compensation procedure was initiated where the eligible person had requested compensation , the property in question had been destroyed , or the law did not provide for the return of the property concerned .

C. The NORP reservation in respect of LAW No . CARDINAL

The instrument of ratification of the Convention deposited by the NORP government on DATE contains the following reservation :

“ In accordance with LAW , GPE declares that the provisions of LAW shall not apply to the laws on property reform which regulate the restoration or compensation of property nationalised , confiscated , requisitioned , collectivised or otherwise unlawfully expropriated during the period of NORP annexation ; the restructuring of collectivised agriculture and privatisation of state owned property . The reservation concerns LAW ( published in PERSON [ Official Gazette ] DATE , CARDINAL , CARDINAL ; ORG I DATE , CARDINAL , CARDINAL ; DATE , CARDINAL ; DATE , CARDINAL ; CARDINAL , CARDINAL ) , LAW ( DATE , CARDINAL , CARDINAL ; ORG I DATE , CARDINAL , CARDINAL ) , LAW ( DATE , CARDINAL , CARDINAL ; CARDINAL , CARDINAL ; ORG I DATE , DATE , FAC ) , LAW ( RT I DATE , CARDINAL , CARDINAL ; DATE , DATE , CARDINAL ; CARDINAL , DATE ; CARDINAL , DATE ; DATE , CARDINAL , CARDINAL ; DATE , CARDINAL ; CARDINAL , CARDINAL ) , ORG ( RT I DATE , CARDINAL , CARDINAL ; DATE , DATE , CARDINAL ; CARDINAL , CARDINAL ; DATE , CARDINAL , DATE ) , ORG ( ORG , CARDINAL , CARDINAL ; DATE , CARDINAL , CARDINAL ; CARDINAL , CARDINAL ; DATE , CARDINAL ; DATE , CARDINAL , CARDINAL ) , ORG ( RT I DATE , CARDINAL , ORG ) and their wording being in force at the moment LAW entered into force . ”


The applicant is an NORP citizen , born in DATE and resident in GPE . Before the ORG he is represented by Mr PERSON , an advocate practising in GPE . The respondent Government are represented by their Agent , Mr ORG , Director ORG and ORG .

The facts of the case , as described mainly in the domestic courts’ judgments , may be summarised as follows .

On DATE , the applicant drove his car along a country road up a slope , and met CARDINAL lorries travelling at short intervals in the opposite direction . As the applicant met the third lorry he lost control of his car which went off the road , which went unnoticed by the lorry drivers . The car went over a patch of stony gravel , came to a halt at a fence and was damaged . His head was knocked against the windscreen ; he lost consciousness and was taken to hospital .

The applicant instituted proceedings against the company that owned the lorries and its insurance company before ORG and requested compensation for the damage to his car and the loss of its use , claiming that the third lorry was being driven unduly fast and very carelessly . According to the applicant when he noticed the lorries he reduced his speed from QUANTITY to QUANTITY . The third lorry drove so far over to the applicant ’s side of the road that the applicant had been forced to the edge and off the road . The applicant had stated that he drove on radial tyres of the so - called DATE type .

The respondents disputed that the accident could be attributed to any facts for which they were responsible and challenged the applicant ’s assertion that the driver of the third lorry had failed to yield to the side and was travelling at high speed . While the lorry drivers had been travelling as slowly and carefully as possible under the circumstances , the applicant had himself acknowledged in the police reports that he had been travelling at QUANTITY . There was no evidence as to the position on the road of the respective vehicles when they met . In any event the applicant was in part responsible , as he had driven with summer tyres at a considerable speed on a slippery road .

According to the applicant , during the proceedings before ORG he had submitted certain evidence , mainly police reports , in support of his statement of the facts of the case , which counsel for the defendant had stated was a correct presentation of the facts . Moreover , counsel for each party had the following declaration recorded :

“ That they are in agreement to base their case on the statements given by witnesses as if they had been confirmed in court , should witnesses be unable to appear before it . ”

By judgment of DATE ORG ordered the respondents to pay the applicant approximately ORG CARDINAL in compensation plus an amount for legal costs .

In its judgment ORG observed that , while the applicant was driving up the slope at PERSON , he met CARDINAL lorries driving in succession down the slope in a southerly direction . According to the statements of witness PERSON , who was driving at a short distance in front of the applicant ’s car , and of witness PERSON , who observed the events at a distance of QUANTITY , the vehicles proceeded fast , in spite of the fact that the road was slippery and narrow compared to their size . The drawing made by NORP police indicated that the road was QUANTITY wide and flanked by gravel shoulders QUANTITY wide at the point where the applicant ’s car went off , while the rearmost lorry was QUANTITY wide . ORG further observed that the road was covered with a thin layer of snow and was slippery . The driver of the leading lorry stated that its speed was QUANTITY , the driver of the second lorry stated that its speed had been QUANTITY . Given the conditions at the scene and , in particular , the third lorry ’s width , its speed was deemed excessive . Considering witness PERSON ’s statement that the lorry had not been swung to the side to make room for the applicant ’s car and police officer PERSON ’s report to the effect that no evidence had been found to the contrary , ORG upheld the applicant ’s assertion that its driver had failed to observe the relevant provisions of FAC . It found it not established that the applicant ’s car had been inadequately equipped . Nor could he be considered to have driven with such lack of care as to make him partly responsible for the accident .

The company that owned the lorries and the insurance company appealed to ORG .

By judgment of CARDINAL DATE ORG found for the appellant companies .

In reaching this conclusion ORG observed that the facts of the case were not adequately described in the ORG judgment . It considered the various items of evidence in the case , notably the initial report of ORG , which quoted statements by the applicant and witnesses PERSON and PERSON , subsequent witness statements taken by the police from PERSON and PERSON and the latter ’s testimony to ORG , statements taken by the police in DATE from the CARDINAL lorry drivers , and a police report of DATE . ORG noted , inter alia , the following .

In the initial police report it was indicated that the applicant ’s car was equipped with DATE tyres but that , according to his own statement he had been driving with radial tyres . The driver of the rearmost lorry had stated that he had proceeded as closely to the road edge as possible and that the applicant had done the same , that the estimated speed of the lorries was QUANTITY and that the slippery condition of the road was the only factor requiring caution . None of the lorry drivers had noticed the applicant ’s mishap . DATE after the accident witnesses PERSON and PERSON had made statements to the effect that they were unable to say where on the road the rearmost lorry had been while meeting the applicant ’s car , whereas in later statements they had indicated that the lorries proceeded on the middle of the road . DATE after the event witness PERSON had stated that the lorries proceeded at high speed , while witness PERSON had not , until ORG hearing , commented on the speed but without being able to do so with any accuracy . In the view of ORG , the above witnesses were in a poor position to observe clearly the events leading to the accident and exactly how the danger had developed ; this reduced the evidential value of their statements .

Moreover , ORG noted a number of deficiencies in the initial police report ( of DATE ) and the drawing of the scene appended to it , including on such matters as tyre tracks , the absence of a scale , an indication of the time of the police ’s arrival at the scene and , in particular , the road dimensions . According to the road measurements reproduced in the police report , the width of the permanent road surface was QUANTITY , and the width of each road shoulder QUANTITY , making a total width of QUANTITY . The lorries had been QUANTITY wide , and the applicant ’s car QUANTITY wide . According to the drawing the vehicles thus had a surplus space of QUANTITY within which to pass . This made it clear to ORG that the road dimensions indicated could not be accurate and that the drawing had little evidential value as regards the circumstances at the scene .

ORG concluded that the applicant should have been aware that it would be difficult and risky to pass so large and voluminous vehicles on the slope , as the road could be assumed to have been narrow and his car was not perfectly equipped for DATE driving . He should have stopped his car as close to the edge as possible and waited there until the lorries had passed , as he clearly was in a better position to yield and make room on the road . Instead he drove without hesitation up the slope , regardless of success or failure . By this conduct he had obviously endangered his own car and safety . He had failed to establish that the lorries proceeded too fast or unduly on to his side of the road and that the accident could be traced to any other cause than his own inadvertence .

On DATE the applicant requested ORG to reopen the proceedings , which the latter refused on DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON , GPE .

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

The applicant was a party to civil proceedings concerning a claim for division of marital co - ownership .

On DATE a hearing took place before the FAC ( Sąd Rejonowy ) . The judge heard the applicant and dictated his replies to the court clerk , who was taking TIME of the hearing . As the judge ’s instructions to the clerk differed considerably from what the applicant was saying and as the judge repeatedly interrupted the applicant in his statements , the applicant expressed his objections . However , this was to no avail . Eventually the applicant said :

“ I should reply , not the court ” .

The judge became angry and warned the applicant that a fine could be imposed on him .

The records of the hearing first relate the applicant ’s statements concerning the subject matter of the case . Then it reads as follows :

“ The presiding judge warned the [ applicant ] not to make any comments to the court and warned him that a fine would be imposed on him if he continued to do so .

Thereupon the [ applicant ] says : “ If it is necessary , I will pay ” .

The court holds that a fine of ORG CARDINAL be imposed on the [ applicant ] . “

On DATE the applicant appealed to the PERSON ORG ( PERSON ) against the imposition of the fine . On DATE the FAC ( FAC ) , invoking LAW of DATE , rejected the applicant ’s appeal , considering that the domestic law did not provide for a possibility to appeal against such a decision . On DATE the applicant lodged an interim appeal against this decision . On DATE ORG rejected the applicant ’s appeal as lodged outside the prescribed time limit . On DATE the applicant applied for leave to file an appeal out of time . His motion was dismissed on DATE .

On DATE the applicant lodged a request with the Ostrowiec Świętokrzyski ORG to rectify TIME of the hearing of DATE . He submitted that during that hearing he had said , reacting to the court ’s interruptions and interference with the contents of his statements :

“ I should reply , not the court . ”

This statement had not been recorded in TIME of the hearing . Consequently , the actual circumstances in which the presiding judge decided to impose a fine on the applicant were not reflected in TIME , as required by LAW .

On DATE the court refused to rectify the minutes . The court considered it to be sufficient that the court ’s reaction to the applicant ’s conduct was reflected in TIME of the hearing , and that therefore TIME were exact .

On DATE the applicant appealed against this decision . He reiterated that TIME of the hearing did not reflect the actual conduct of the hearing in that his statement was not noted . As a result , they contained the presiding judge ’s warning about the imposition of a fine , but no information as to the reason which had prompted this reaction on the part of the judge . The applicant stated that this was illogical . He further stressed that he had not said anything that could have been construed as either insulting to the court , or not linked to the subject - matter of the civil case . The court ’s failure to dictate the parties’ statements so that TIME reflected exactly what was said amounted to a procedural breach , which could negatively affect the substantive outcome of the case .

On DATE the FAC dismissed his appeal . The court reiterated the reasons invoked in the first - instance decision of CARDINAL DATE . It was further stated that according to the case - law of ORG , the court was not obliged to include in TIME of a hearing all the statements of the parties , in particular those which were not related to the subject - matter of the proceedings .

On DATE the PERSON ORG of its own motion gave a decision and quashed its decision of DATE . The court held that on DATE the new act on the legal structure of the courts entered into force . According to LAW of the new act it was possible to file an appeal against a decision imposing a fine for contempt of court . The court considered that the change of law was of such importance that it justified quashing the decision of CARDINAL DATE even though it had been delivered under LAW .

On DATE the ORG ordered the return to the applicant of the fine paid by him . On DATE , CARDINAL ORG was transferred to the applicant ’s bank account .

Section CARDINAL § CARDINAL of the Act of DATE ( “ the DATE LAW ) on the legal structure of the courts ( Prawo o ustroju sądów powszechnych ) , provides inter alia that the court may impose a disciplinary penalty , a fine or a prison sentence , on a person who , at a court session , behaves in an abusive manner or disturbs the public order .

Under LAW , no appeal is available against a decision to impose such a penalty .

On DATE the new act on the legal structure of the courts entered into force . According to Section CARDINAL of the new act it is possible to file an appeal against a decision to impose a penalty for contempt of court .

On DATE the ORG gave judgment ( No . ORG CARDINAL/CARDINAL ) and declared unconstitutional LAW of LAW . It found that this provision was not in compliance with article CARDINAL ( right to appeal ) and article CARDINAL § CARDINAL ( right to CARDINAL court instances ) of the LAW .

LAW provides :

“ The second - instance court shall , upon a motion by a party , examine all those rulings of the court of first - instance which were not subject to interlocutory appeal but which had an effect on the determination of the case . ”

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”


MEYNE-MOSKALCZUK and OTHERS v. THE NETHERLANDS

The applicants are all GPE nationals resident in the GPE .

PERSON was born in DATE and lives in GPE .

PERSON was born in DATE and lives in PERSON .

PERSON Nagtegaal was born in DATE and lives in GPE .

The applicants are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

PERSON married a PERSON on DATE . They were divorced with effect from DATE . During the marriage PERSON was employed and accumulated pension entitlements . PERSON took care of the couple ’s children . She had no work outside the home and did not accumulate any pension entitlements in her name .

PERSON became entitled to a pension from ORG ( ORG , “ ORG ” ) as of DATE .

PERSON applied to ORG of the ORG for the pension entitlements of her former husband to be divided equally between him and her . This was refused by a decision of CARDINAL DATE , the ground being that she and PERSON had been married for DATE .

PERSON lodged an administrative appeal ( beroep ) with the ORG ’s ORG , arguing that the refusal was discriminatory .

By a letter dated DATE the ORG ’s ORG informed PERSON that her objection could not be received . The objection was directed against provisions of the law as such ; these the ORG , an executive administrative body , was not empowered to set aside .

PERSON became entitled to a pension from the ORG as of DATE .

PERSON lodged an administrative appeal with the ORG ’s ORG , arguing that the refusal was discriminatory .

PERSON married a Mr M. on DATE . They were divorced with effect from CARDINAL DATE . During the marriage PERSON was employed and accumulated pension entitlements . PERSON took care of the couple ’s children . She had no work outside the home and did not accumulate any pension entitlements in her name .

PERSON applied to ORG of the ORG for the pension entitlements of her former husband to be divided equally between him and her . This was refused by a decision of DATE , the ground being that she and PERSON had been married for DATE .

PERSON became entitled to a pension from the ORG as of CARDINAL DATE . DATE of his pension was allocated to PERSON .

PERSON applied to ORG of the ORG for the pension entitlements of her former husband to be divided equally between him and her . This was refused by a decision of CARDINAL DATE , the ground being that the divorce had occurred before DATE and the law in force therefore entitled her to DATE of her former husband ’s pension .

PERSON lodged an administrative appeal with the ORG ’s ORG , arguing that this decision was discriminatory .

By a letter dated DATE the ORG ’s ORG informed PERSON that her objection had been dismissed on the ground that the applicable legal provisions had been correctly applied , and that there was no apparent justification for deviating from them .

The applicants each lodged an appeal ( beroep ) to ORG ( arrondissementsrechtbank ) of GPE .

A single hearing was held before ORG in the cases of all CARDINAL applicants on DATE .

ORG gave CARDINAL separate but , for present purposes , identical decisions , CARDINAL in respect of each applicant , on DATE dismissing the appeals . It acknowledged that there was a difference in treatment between persons in the position of the applicants and persons divorced after DATE , but considered that the requirements of legal certainty constituted adequate reasonable and objective justification .

The applicants lodged further appeals ( hoger beroep ) to ORG ( ORG ) , the highest administrative tribunal in matters concerning social security and civil service pensions .

ORG held a single hearing in all CARDINAL cases on DATE . It eventually dismissed the appeals in CARDINAL separate but identical decisions on CARDINAL DATE . Like ORG , it considered the difference in treatment justified by the requirements of legal certainty .

Prior to CARDINAL DATE , it was considered that pensions were by their very nature connected ( verknocht ) solely to the person nominally entitled to them ( see the judgment of ORG ( PERSON ) of DATE , Beslissingen in FAC ( Reports of Decisions in Taxation Cases – “ BNB ” ) DATE , no . CARDINAL ) . This meant that pension entitlements could not be included in divorce settlements .

In a landmark judgment of CARDINAL DATE , PERSON ( GPE Law Reports ) DATE , no . CARDINAL , ORG held that pension entitlements existing at the time that a marital community of property ( gemeenschap van goederen ) was dissolved by divorce or judicial separation were , in principle , part of that community of property even if they had not yet fallen due . This meant that they had to be taken into account in the settlement when the assets and liabilities belonging to the community were divided .

The way in which such entitlements should be taken into account depended on considerations of equity ( redelijkheid en billijkheid ) , as applicable to the dissolution of a marital community of property . In many cases , the party nominally entitled to the pension would be faced with an obligation , conditional on the survival of both parties , to pay a certain percentage of the pension instalments to the other party as they became due . However , equitable considerations might dictate other solutions , for example the purchase by the party nominally entitled to the pension of an annuity for the benefit of the other party . In certain cases , for example if adequate arrangements had been made for the maintenance of the other party in some other way , it might be equitable to reduce the other party ’s claim to part of the pension or even to cancel it altogether .

ORG recognised that this judgment involved a reversal of its case - law since DATE . It realised that many marital communities of property had been dissolved in the meanwhile without pension rights being taken into account . Although in principle ORG new approach could give rise to the reopening of such cases , considerations of equity coupled with interests of legal certainty entailed that , as a rule , the party nominally entitled to the pension should not be faced with hitherto unexpected claims .

On DATE the Pensions Equalisation ( Divorce ) Act ( QUANTITY verevening pensioenrechten bij scheiding , “ the DATE LAW ) entered into force .

In relevant part , it provides as follows :

“ CARDINAL . In case of divorce and in so far as CARDINAL of the spouses has accumulated pension entitlements after the marriage was contracted and before the divorce , the other spouse shall have a right to pension equalisation as provided in or under this Act ...

Pursuant to the right to pension equalisation referred to in the first paragraph , a right to payment of a part of each instalment of the pension [ as it becomes ] payable shall come into being vis - à - vis the implementing body ...

Payment shall take place subject to the conditions laid down in the applicable instrument . If the time at which the pension starts ( pensioeningang ) precedes or coincides with the time of the divorce , payment shall start at the time the pension starts ...

The right to payment shall end at the time when the right to the pension ends or at DATE in which the spouse entitled to pension equalisation dies ...

“ CARDINAL . The part referred to in section CARDINAL , paragraph CARDINAL , shall be CARDINAL of the pension that would be payable if :

( a ) the spouse who is under an obligation to equalise had participated solely during DATE of participation from the time the marriage was contracted until the time of the divorce ;

( b ) he had terminated his participation at the time of the divorce ; and

( c ) he were married or in a registered partnership during the period when he was entitled to the pension .

If the pension is increased or decreased after it starts , the sum resulting from the first paragraph shall be increased or decreased in proportion to the increase or decrease of the pension .

“ CARDINAL . This Act shall not apply to a divorce that took place before the date on which this LAW entered into force .

Nonetheless , this Act shall apply by analogy ( van overeenkomstige toepassing ) to a divorce that has taken place before DATE , provided that the marriage lasted for DATE and there were , during the marriage , minor children of the spouses together or CARDINAL of them , it being understood that the part referred to in section CARDINAL , second paragraph , shall be CARDINAL of the pension that would have to be paid pursuant to section CARDINAL , first and second paragraphs , and that there shall be no right to pension equalisation to the extent that the circumstance that the spouse entitled to equalisation has accumulated insufficient pension or none at all has already demonstrably been taken into account . ...

The Explanatory Memorandum to the PERSON which later became LAW ( Explanatory Memorandum ( PERSON ) , ORG of ORG , DATE , CARDINAL , no . CARDINAL , pp . CARDINAL–CARDINAL ) explains that the Government ’s intention in introducing this legislation was to make the rule stated by ORG in its judgment of CARDINAL DATE more effective by replacing the claim of CARDINAL spouse against the other with an automatic claim against the body responsible for paying out the pension . It was felt that this would simplify the realisation of the rights of the spouse who was not nominally entitled to the pension , and in addition forestall litigation by making it unnecessary .

An additional aim was to recognise a shared claim after divorce to the pension regardless of whether the parties had been married in community of property or had made other arrangements by a marriage settlement ( huwelijkse ORG ) , the question of the applicability of ORG case - law in the latter situation having given rise to problems in that regard ( Explanatory Memorandum , loc . cit . , p. CARDINAL ) .

Initially , the proposed wording of LAW comprised only the present first paragraph . It was intended that the new Act should not affect divorces pre - dating ORG judgment of DATE , and that divorces which became final after that date but before the entry into force of the LAW should be dealt with in accordance with the case - law which that judgment defined ( Explanatory Memorandum , loc . cit . , p. CARDINAL ) .

The second paragraph of section CARDINAL resulted from an amendment proposed by CARDINAL members of ORG of ORG , PERSON and Soutendijk - van Appeldoorn ( LAW ( ORG amendement ) , ORG of ORG , DATE - CARDINAL , CARDINAL , no . CARDINAL ) . It was intended as a compromise between the requirements of legal certainty and considerations of an equitable nature . For that reason it granted a particular , limited , category of persons divorced before DATE a partial entitlement to pension rights accumulated by their former spouses , albeit a lesser one than that enjoyed by persons who were divorced after the entry into force of the LAW ( Memorandum in Reply ( PERSON ) , ORG of ORG , DATE , CARDINAL , no . ORG , and Further Memorandum in Reply ( Nadere memorie van antwoord ) , ORG of ORG , DATE , CARDINAL , no . CARDINALd ) .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicant , who was born in GPE , GPE , settled in GPE , GPE , in DATE , after finishing his university studies . DATE and DATE he was prosecuted and tried on charges of attempted murder and illegal possession of explosives , contrary to ORG CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL of LAW of DATE . In a final judgment of DATE he was acquitted of the first charge and found guilty of the second , and sentenced to CARDINAL years’ imprisonment . As he had already spent a longer period of time in pretrial detention , on DATE he was released from prison ( for a detailed description of these events , see the admissibility decision PERSON v. GPE ( dec . ) , no . MONEY , DATE ) .

On DATE the applicant was rearrested on his way out of prison . This happened because in a letter of CARDINAL DATE the GPE deputy regional prosecutor had informed ORG of ORG ( “ the ORG ” ) that during his trial the applicant had threatened prosecutors and judges that he would “ deliver justice ” after his release . Apart from that , the validity of the applicant ’s NORP passport and of his permit to reside in GPE had expired . As a result , on DATE the head of the ORG ordered that the applicant be brought immediately to the border by force and that he be banned from entering GPE until DATE . The order was based on sections CARDINAL ) and CARDINAL ) and ( CARDINAL ) of the DATE LAW ( see paragraphs CARDINAL and CARDINAL below ) and was reasoned as follows : “ [ the applicant ] threatens public order and has been charged under ORG CARDINAL and CARDINAL § CARDINAL of the [ DATE ] LAW ” . The order also stated that it was to be enforced immediately and was subject to appeal in accordance with the provisions of LAW ( see paragraphs CARDINAL and CARDINAL below ) .

Upon his arrest the applicant was informed about the order : he signed it , and stated in writing that he had familiarised himself with its contents . The applicant alleged that he had not been given a copy of it , whereas the ORG averred that he had been provided with one . The applicant also alleged that after his arrest he had not been allowed to contact a lawyer . The Government denied this , stating that the applicant ’s brother was apparently well aware of his situation , as on DATE he had managed to bring a complaint in this regard to the attention of a nongovernmental organisation , ORG , which had enquired of the Minister of ORG about the applicant ’s case .

After his arrest the applicant was brought to a detention facility in GPE , where he was kept until DATE . On DATE he was provided with a provisional passport and escorted to PERSON , on LOC , where he was supposed to board a train to GPE . However , during passport control at the border checkpoint it turned out that since DATE the applicant had been under a prohibition order not to leave GPE , which was still in force . He was then taken back to the detention facility in GPE , where he spent DATE , until the prohibition was lifted . On DATE he wrote to the head of the ORG , asking for his assistance in clearing the obstacles to his leaving GPE . On DATE the authorities bought the applicant a new train ticket to GPE . On DATE , DATE , he was deported to GPE .

Under section CARDINAL ) of the DATE LAW ( „ Закон за чужденците в PERSON ) , as in force at the relevant time , the Minister of ORG or an official authorised by him or her could issue an order for the taking of an alien to the border by force in the event that he or she had not left the country after the expiry of his or her residence permit . By section CARDINALa(CARDINAL ) ( presently section MONEY ) ) of the LAW , a ban on entering the country had to be ordered if the grounds under section CARDINAL were met .

The ground under section CARDINAL(CARDINAL)(CARDINAL ) of the LAW , as in force at the material time , was the existence of information that the alien was a “ member of a criminal gang or organisation , or [ was ] engaged in terrorist activities , smuggling , or unlawful transactions with arms , explosives , ammunitions , strategic raw materials , goods or technologies with a possible dual use , or in the illicit trafficking of intoxicating and psychotropic substances or precursors or raw materials for their production ” . The ground under section CARDINAL(CARDINAL)(CARDINAL ) of the LAW was that the alien had “ committed , on the territory of GPE , a wilful offence punishable by DATE imprisonment ” .

Section CARDINAL(CARDINAL ) of the LAW , as in force at the relevant time ( presently , with slightly modified wording , section CARDINAL(CARDINAL ) ) , provided that if there were impediments to the deported alien ’s leaving GPE or entering the destination country , he or she was under a duty to report DATE to his or her local police station . Under section CARDINAL ) of the LAW , as in force at the material time ( presently , with slightly modified wording , section CARDINAL(CARDINAL ) ) , aliens who were being deported could be placed in holding facilities if this was deemed necessary by the Minister of ORG or officials authorised by him or her . The new subsection CARDINAL of section CARDINAL , added in DATE , explicitly states that the placement of aliens in holding facilities pending their deportation is to be done pursuant to a special order , separate from the CARDINAL for taking them to the border by force . The order has to moreover specify the need for the placement and its legal grounds . In addition , the new subsection CARDINAL , also added in DATE , provides that the procedure for the temporary placement of aliens in holding facilities is to be laid down in a regulation issued by the Minister of ORG . The Minister issued such a regulation on DATE ( „ Наредба № І-CARDINAL от CARDINAL януари DATE г. за реда за временно настаняване на чужденци , за организацията и дейността на специалните домове за временно настаняване на чужденци “ , обн. , GPE , бр. CARDINAL от CARDINAL февруари DATE г. ) .

Section CARDINAL(CARDINAL ) of the regulations for the application of the LAW , adopted in DATE , provides that an alien may be placed in a holding facility until being taken out of the country if this is expressly stated in the order for his or her taking to the border by force or his or her expulsion . Section CARDINAL ) of the LAW states that the procedure for the placement of aliens in these facilities until their deportation is to be ordained by the Minister of ORG .

Section CARDINAL of the LAW , as in force at the relevant time , provided that orders made under sections CARDINAL thereof could be challenged in accordance with the provisions of the CARDINAL LAW , that is , they were subject to an appeal before the higher administrative authority and judicial review .

According to the DATE LAW , as in force at the relevant time , an administrative appeal had to be made within DATE from the notification of the person concerned of the administrative decision ( section CARDINAL(CARDINAL ) of the Act ) . The higher administrative authority had to rule within DATE ( section CARDINAL(CARDINAL ) of the Act ) . If it failed to do so , or if the ruling was negative , the aggrieved person was entitled to lodge an application for judicial review ( sections CARDINAL ) and PERSON ) of the LAW ) . The aggrieved person could alternatively skip this step and directly seek judicial review of the original decision . However , this was only possible if the timelimit for lodging an administrative appeal DATE had already lapsed ( section CARDINAL(CARDINAL ) of the Act ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG .

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

The applicant occupied a flat in a building owned by ORG . On DATE the ORG filed an action against the applicant seeking to order him to vacate the flat .

On DATE , DATE and DATE the Prague ORG ( obvodní soud ) held CARDINAL hearings . After having held a hearing on DATE , the court adopted a judgment by which it allowed the ORG ’s claim and ordered the applicant to vacate the flat .

On DATE ORG ( městský soud ) , upon the applicant ’s appeal of DATE , upheld the first instance judgment . The proceedings were finally closed on DATE . On DATE , the execution title became final .

On DATE the applicant filed an appeal on points of law ( dovolání ) in ORG ( PERSON ) which dismissed it in judgment of DATE which was notified to the applicant ’s lawyer on DATE .

In the mean - time , on DATE , ORG had issued an eviction order against the applicant . The applicant ’s subsequent requests to adjourn his eviction were rejected .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On an unknown date in DATE the applicant was charged with aggravated robbery . In DATE the Siedlce Regional Prosecutor ( Prokurator Wojewódzki ) stayed the investigation as the applicant ’s whereabouts were not known . In DATE the applicant was arrested and began serving a prison sentence which had been imposed in DATE .

On DATE a bill of indictment was lodged with ORG ( Sad Wojewódzki ) . The applicant was charged with robbery .

The proceedings were stayed on DATE in view of the applicant ’s health . In DATE he underwent spinal surgery . The trial was resumed on DATE .

The applicant failed to appear at some hearings in DATE , however the trial court found that this was because he had been serving a prison sentence imposed in another set of criminal proceedings .

On DATE the charges against the applicant and several coaccused were severed and dealt with in a separate set of proceedings .

The applicant failed to appear at a hearing held on DATE . On DATE ORG ( PERSON ) issued a wanted notice in respect of the applicant and ordered that he be arrested and remanded in custody .

On DATE the court severed the charges against the applicant , to be dealt with in a separate set of the proceedings , and on the same date stayed the proceedings as the applicant was in hiding .

The applicant was arrested on CARDINAL DATE . He was placed in ORG on DATE .

On DATE ORG resumed the proceedings against the applicant .

In the course of the proceedings , the applicant ’s detention was extended on DATE and CARDINAL DATE and DATE , DATE , CARDINAL DATE and DATE . In their decisions on the matter the authorities relied on the original grounds given for holding him in custody . The applicant did not appeal against most of the decisions extending his detention .

On DATE ORG convicted the applicant of armed robbery , burglary and causing serious bodily harm and sentenced him to DATE imprisonment .

The applicant ’s detention was subsequently extended , in particular on : DATE and DATE and DATE . The applicant lodged an appeal against the last of those decisions .

On DATE , at the applicant ’s request , the detention was lifted and he was released from custody .

On DATE the applicant began serving the prison sentence imposed on DATE .

On an unknown date in DATE ORG ( Prokurator Okregowy ) instituted criminal proceedings against the applicant and several co - accused on charges of illegal possession of weapons and robbery .

On DATE ORG remanded the applicant in custody , relying on the suspicion that he had committed the offences with which he was charged . It attached importance to the likelihood of a lengthy prison sentence being imposed on the applicant , the serious nature of the offences of which he was suspected , and the risk that he would go into hiding . This was made more likely by the facts that he did not have a permanent place of residence and was unemployed . The applicant did not appeal against this decision .

In the course of the investigation the applicant ’s detention was extended on DATE and CARDINAL DATE and on DATE , DATE and DATE . The authorities relied on the original grounds given for keeping him in custody .

Appeals by the applicant against the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful .

On DATE a bill of indictment was lodged with ORG .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant ’s detention was subsequently extended .

On DATE ORG partly upheld the first - instance judgment and partly remitted it . It also sentenced the applicant to DATE imprisonment . The applicant served this sentence DATE and DATE .

On DATE ORG lifted the applicant ’s remand in custody .

On DATE the applicant lodged a complaint with ORG under LAW 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 sought a ruling that the length of the proceedings before ORG ( see paragraphs CARDINAL above ) had been excessive , and also sought an award of just satisfaction .

On DATE the ORG gave a decision and dismissed the applicant ’s complaint . The court considered that there had been no significant delays in the proceedings , as the applicant had contributed to the length of the proceedings .

On DATE the applicant was placed in ORG ) .

On DATE ORG of ORG classified him as a “ dangerous detainee ” ( tymczasowo aresztowany niebezpieczny ) and ordered that he be placed in a closed cell . The commission referred to : the fact that the applicant was accused of armed robbery and using fake police uniforms , and that he had previously escaped from ORG , and also to his “ serious lack of moral character ” and long history of criminal convictions .

Every DATE ORG reviewed and upheld its decision classifying the applicant as a “ dangerous detainee ” . In particular on DATE the commission confirmed its previous decision . It considered that it was necessary to place the applicant in solitary confinement as he had been charged with numerous offences , including armed robbery . The commission also referred to “ serious lack of moral character ” .

The applicant appealed to the penitentiary courts against most of those decisions , arguing that he was suffering from various health problems including hemiparesis and discopathy , and should not be placed in solitary confinement . He also stressed that he had never been charged with acting as part of an organised criminal group .

All his appeals were dismissed . The courts gave decisions on CARDINAL May , DATE and DATE , DATE and DATE , and DATE . The authorities relied on the grounds given for the initial decision . In particular they stressed the risk posed by the seriousness of the offences and the use of weapons and fake police uniforms .

On DATE the applicant was transferred to FAC so that he could attend the proceedings before ORG ( see paragraphs DATE above ) . He was placed alone in a cell for dangerous detainees . This situation applied DATE and DATE and DATE and DATE . The applicant complained about this on several occasions , alleging that due to his health problems , for safety reasons he should have been placed with another inmate .

Due to his “ dangerous detainee ” status the applicant was under increased supervision . The applicant ’s cell in FAC measured CARDINAL sq . m. DATE and DATE he shared it with another inmate . Every time the applicant left or entered his cell he was subjected to a body search , which in practice meant that he had to strip naked . Examinations of the applicant ’s body , his clothing and shoes were conducted in a separate room , with no third parties present .

The applicant was ordered to wear “ joined shackles ” ( kajdanki zespolone ) on his hands and feet on CARDINAL occasions during the proceedings before ORG , on CARDINAL , CARDINAL and DATE . Those shackles consisted of handcuffs and fetters joined together with chains . On each occasion he was put in the shackles on his arrival at the court and remained handcuffed throughout DATE until the end of the hearing .

The applicant was allowed to receive visits from his family . According to a list of visits provided by the ORG , DATE and DATE the applicant was visited on CARDINAL occasions by his sister and son ( CARDINAL visit per month ) . Subsequently , DATE and DATE his sister and son visited him on average once a month . The majority of these visits lasted TIME . DATE and DATE he was not visited by anyone .

On CARDINAL DATE the applicant was granted leave to attend his mother ’s funeral .

The Government submitted that after his initial complaint the applicant had , in direct conversation with the prison authorities , agreed to be held in solitary confinement .

The applicant argued that when his complaints were unsuccessful he had had no other choice than to accept the situation which had been imposed on him .

The applicant was detained in the following detention centres : FAC , FAC , GPE FAC , and FAC .

He failed to lodge a claim for compensation for damage to his health sustained as a result of inadequate conditions of detention .

The applicant argued that the living conditions in the detention centres in which he was detained were inadequate . The cells were very small , with QUANTITY . m per person . The exercise area was also very small , QUANTITY m.

The Government submitted that during the applicant ’s detention in all CARDINAL of the penal establishments listed above all standards of detention were respected .

The relevant domestic law and practice concerning the imposition of dangerous detainee status are set out in the ORG ’s judgments in the cases of ORG v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) , and ORG v. GPE ( no CARDINAL/CARDINAL , § § DATE , DATE ) .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) , and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

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

DATE the Civil Code contains a non - exhaustive list of “ personal rights ” ( dobra osobiste ) . This provision states :

“ The personal rights of an individual , such as , in particular , health , liberty , honour , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements , shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL , paragraph CARDINAL , of the Civil Code provides :

“ A person whose personal rights are at risk [ of infringement ] by a third party may seek an injunction , unless the activity [ complained of ] is not unlawful . In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this LAW [ the person concerned ] may also seek pecuniary compensation or may ask the court to award an appropriate sum for the benefit of a specific public interest . ”

Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an appropriate sum as pecuniary compensation for non - material damage ( krzywda ) to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of whether they are seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”

Articles CARDINAL et seq . of the NORP LAW provide for the ORG ’s liability in tort .

Article CARDINAL § CARDINAL of LAW ( as amended ) provides :

“ ORG , or [ as the case may be ] a self - government entity or other legal person responsible for exercising public authority , shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [ committed ] in connection with the exercise of public authority . ”

Article DATE of the Civil Code sets out limitation periods for civil claims based on tort , including claims under LAW read in conjunction with ORG and CARDINAL of LAW . This provision , in the version applicable from DATE , reads , in so far as relevant , as follows :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse after the expiration of DATE after the date on which the claimant learned of the damage and the identity of the person responsible for it . However , DATE may not be DATE after the date on which the event causing the damage occurred . ”

The relevant international documents concerning the imposition of security measures and the DATE Report of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) are set out in the ORG ’s judgment in the case of ORG v. GPE ( cited above , § § CARDINAL - CARDINAL ) .


SKENDER v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant , Mr PERSON , NORP by birth , is a national of the former GPE . He was born in DATE and lives in the village of PERSON , PERSON .

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

According to LAW , pupils have to attend ORG primary schools in their place of residence . However , in the school situated in the applicant 's district PERSON no classes in NORP were available .

DATE the applicant 's older daughter attended the primary school in the village of ORG in a different district where education in NORP was provided . However , according to the applicant , on DATE classes were allegedly interrupted by the police and the school director announced that pupils from other villages were no longer allowed to attend classes in the ORG school .

On DATE ORG and ORG ( “ the Ministry ” ) refused the applicant 's request of DATE to provide education in NORP in PERSON . It stated , inter alia , the following :

“ ... we inform you that ORG ... [ on ] DATE decided the following :

ORG and ORG is responsible for providing education in the primary schools in GPE Centar Župa in accordance with the LAW and LAW .

... [ education in ] NORP can not be replaced by [ education in ] NORP [ in PERSON ] , as the children have not been speaking NORP before they started attending the school .

The Ministry ... is instructed to inform the parents of the pupils who boycotted the classes ... and request the [ pupils ] to return to the school [ in PERSON ] where special courses will be given so that [ they could ] catch up with the rest ...

ORG and ORG urges that your children attend the courses in the [ primary school ] ... in PERSON in accordance with LAW . ”

On DATE the ORG decided to provide education in NORP in the school in PERSON for the pupils whose mother tongue was NORP in accordance with ORG decision of DATE to that effect .

On DATE the political party ' ORG and the associations of citizens “ The ORG ” and “ the Association of the NORP with NORP Religion in GPE ” asked ORG to examine the constitutionality of ORG decision of DATE and the respective ORG 's decision of CARDINAL DATE . On DATE ORG declared the decisions null and void on the following grounds :

... it , inter alia , appears that ( CARDINAL ) the impugned acts determined that NORP was the mother tongue of all the pupils [ residing in ] the municipality of PERSON ...

Under LAW the members of the national minorities have the right to education in their language in primary and secondary schools in accordance with the respective law . In the schools where the education is in the languages of the minorities , the NORP language shall be studied as well .

It follows that the members of the minorities are educated in the primary and secondary schools in their language , and that is , according to the court , the language of their choice [ which they use ] in their everyday life . Therefore , the provision of the LAW established objective criteria for the fulfilment of the right to education of the national minorities in their language [ which ] does not depend on the subjective will of the ORG bodies ...

The impugned acts provide education in NORP for the pupils in the municipality of PERSON who use the NORP language of their choice in their everyday communications and , thereby , express their national identity , and who do not use the NORP language in their everyday communications and of their choice . Thus , [ the acts ] exceeded the boundaries of the LAW framework setting out the rights of the national minorities to education in DATE ( LAW ) and inhibited the achievement of the purpose of education - to provide knowledge , and impinged upon the very content of the right to education , i.e. the [ right to ] education is being manipulated with the purpose of changing the national identity of a number of pupils in the municipality . Therefore , the court finds that the impugned acts are not in conformity with the aforementioned LAW provision .

On DATE the applicant asked the ORG school to admit his older daughter . Since he received no reply , on DATE he complained to ORG ( “ the Commission ” ) . No reply was received by the applicant .

On DATE the applicant brought administrative proceedings before ORG , arguing that his daughter had the right to education in GPE .

On DATE the ORG school refused to enrol the applicant 's older daughter as the applicant 's place of residence was in a different district .

On DATE ORG refused to examine the applicant 's complaint on the merits in respect of the PERSON school 's refusal to enrol his older daughter . It , inter alia , stated :

Under section CARDINAL § CARDINAL of LAW if the second instance administrative body does not pass a decision within DATE , and on the person 's repeated request to act does not reply within DATE , the person may institute administrative proceedings ...

... it can not be established from the submitted documents that the [ second instance ] administrative body received [ the applicant 's ] second request to act ... it follows that the complaint is premature .

The applicant 's request that the ORG provides education in NORP ... is inadmissible , as under section CARDINAL of LAW a complaint may only be lodged concerning the administrative acts and the [ applicant 's ] request is not an administrative act ... ”

On DATE the applicant requested ORG to quash ORG decision of DATE . He , inter alia , complained that the court had assessed the evidence wrongly and that his daughter had been discriminated against as a result of ORG decision since she was denied access to a NORP - speaking school .

On DATE the applicant was informed that ORG had not been competent to deal with his complaint . On DATE the Constitutional Court refused to examine the applicant 's complaint that ORG decision of DATE interfered with his daughter 's right to education in NORP . It , inter alia , held that :

“ ... ORG did not decide on the enjoyment of the right to primary education in the language of the minorities , but on the procedural conditions ... to institute administrative proceedings , as such [ the decision ] can not have any repercussions in favour or to the disadvantage of the applicant ...

... the [ impugned ] decision is procedural and [ does not examine ] the merits and does not concern the right to primary education in the minorities ' languages , therefore , the court holds that there are procedural impediments to examine the applicant 's complaint ...

On DATE , the applicant requested that his younger daughter NORP be enrolled in the LANGUAGE - speaking primary school in GPE .

On DATE the applicant 's request was refused by ORG as he lived in another district .

On DATE the applicant applied to ORG to expand his existing claim concerning his older daughter with complaints concerning his younger daughter NORP

On DATE , ORG informed the applicant that it was not possible to expand his claim as the case concerning his older daughter had terminated on DATE and that his application would be treated as concerning a new claim . He was requested to identify and provide a copy of the administrative act against which the claim was directed within DATE .

On DATE , the applicant wrote to the local office of the ORG lodging an objection with the refusal of the ORG school to enrol NORP

On DATE ORG refused to examine the applicant 's complaint about the school 's refusal on the ground that he had not complied with the DATE time - limit for completing his appeal .

On DATE the applicant complained to the Commission that he had not received a reply to his objection .

On DATE the Ministry informed the applicant that he should enrol his daughter in the school in his place of residence .

On DATE the applicant applied again to the Commission , considering that this was neither a decision nor an administrative act and requiring that a decision be taken .

On DATE , having not received an answer from the Commission , the applicant lodged an administrative complaint with ORG .

From DATE , following the decision of the Ministry on DATE , children in the primary school in PERSON whose parents had requested them to be taught in NORP , including the applicant 's daughter NORP , commenced their regulation education classes which were conducted in GPE .

On DATE , ORG requested the applicant to specify the basis of his complaints .

On DATE ORG dismissed the applicant 's administrative complaint on the ground that under LAW pupils were assigned to schools in accordance with their place of residence and that he had been informed that his daughter had to attend the school in PERSON . The court further relied on ORG decision of DATE annulling the ORG 's decisions to provide education in NORP in PERSON .

The PERSON primary school attended by NORP continues to teach regular classes in NORP , NORP and NORP .

DATE as follows :

“ Every person has the right to education . Education is accessible to all persons under equal conditions . Primary education is compulsory and free of charge . ”

Article CARDINAL provides as follows :

“ The members of minorities have the right to express , nurture and promote their identity and national attributes .

The Republic guarantees the protection of their ethnic , cultural , linguistic and religious identity .

The members of minorities have the right to establish institutions for culture and art , as well as scientific and other associations to express , nurture and promote their identity .

The members of minorities have the right to education in their language in the primary and secondary schools in accordance with the relevant law . In the schools where the education is provided in the minorities ' languages , the NORP language shall also be taught . ”

LAW sets out ORG competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication , conscience , opinion and public expression , political association and activities , as well as prohibition of discrimination on the grounds of gender , race , religion or national , political or social affiliation . Article CARDINAL provides that the Constitutional Court shall repeal or revoke a law if it determines that it does not conform to the LAW and that it shall repeal or revoke any other regulation or enactment , collective agreement , statute or programme of a political party or association , if it determines that it does not conform to LAW or law .

Section CARDINAL provides that a person who claims to be a victim of a violation of CARDINAL of the rights set out in LAW shall have the right to file an application with ORG .

Section CARDINAL provides , inter alia , that the members of minorities shall have the right to education in their own language . They shall also study the NORP language .

Section CARDINAL provides that primary schools shall admit all the pupils living in their district . Sections CARDINAL and CARDINAL provide that the parents are responsible for the enrolment of their children and for their regular attendance at the classes . The primary school shall inform ORG and ORG about the pupils of its area who have not enrolled , or have not attended the classes for DATE without a justification .

Section CARDINAL provides , inter alia , that on the parents ' or guardians ' request the pupils may be transferred to another school .

Section CARDINAL provides that an appeal can be lodged against a decision of an administrative body with the second instance administrative body within DATE .

Section CARDINAL § CARDINAL provides that a person may institute administrative proceedings before ORG provided that the second instance administrative body does not decide on the matter within DATE from DATE the appeal against the first instance administrative body is received , and does not react within DATE on the person 's repeated request .


No violation of Art. 6-1;No violation of Art. 8

The applicant was born in DATE and lives in GPE . He and another NORP national have a daughter born out of wedlock in DATE . On DATE mother and daughter arrived in GPE . On DATE their residence there was officially registered . In DATE the daughter lived both with her father in GPE and with her mother in GPE in accordance with an agreement between the parents .

According to the Government , on DATE the applicant gave his written consent to the child 's temporary stay in GPE and on DATE he gave his consent that she stay permanently in GPE , presupposing that his visiting rights would not be affected .

According to the applicant , he and the mother agreed in writing on DATE that they would participate equally in the care of their daughter and that she would spend an equal amount of time , DATE at a time , with each parent .

On DATE the applicant and the mother agreed that neither of them would pay the other maintenance in respect of their daughter . On DATE the agreement was confirmed by ORG ( sosiaalilautakunta , socialnämnden ) of ORG , GPE .

On DATE the mother removed the child from day care in GPE and brought her to GPE .

On DATE the mother instituted custody proceedings in ORG ( käräjäoikeus , tingsrätten ) of GPE , GPE , following which the court made an interim order awarding her sole custody .

NORP The court received ORG of ORG and ORG ( Sotsiaal- ja GPE ) of GPE written opinions on the assessment of the parents and their living conditions . The NORP authority had interviewed the mother , the child and her brother , the mother 's partner and the child 's day care teacher . It did not interview the applicant nor did its NORP counterpart interview anyone other than the applicant . It appears that the authorities did not contact each other before submitting their opinions .

ORG held QUANTITY hearings , on DATE and DATE , during which the parents with counsel were present . It received evidence from the parties and several witnesses . In its decision of CARDINAL DATE the court found that the NORP courts had jurisdiction and that NORP law was applicable to the case . The court held that as the parents were unable to agree on matters relating to custody , custody should be awarded to the mother alone . The court reached its decision having had regard to all the circumstances and evidence submitted to it and having assessed the case also in the light of the written opinions of the relevant social welfare authorities .

On DATE ORG ( hovioikeus , hovrätten ) , having held a hearing , rejected the applicant 's appeal . It held that the NORP courts had jurisdiction because the child resided in GPE and had a close connection with the country . It also agreed with the lower court that NORP law was applicable . As the parents ' agreement of DATE had not been confirmed by ORG , the custody had not been settled prior to the proceedings in question . Further , the court found that the child 's living conditions with the mother were balanced and solid . As the parents were unable to make decisions together relating to their daughter 's custody , the court saw no reason to amend the lower court 's decision .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

In DATE the applicant lodged an application with ORG ( oikeusministeriö , justitieministeriet ) in order to have the child returned to GPE under LAW on the Civil Aspects of International Child Abduction . The application was rejected , since it had already been confirmed by the above - mentioned courts that the child 's habitual residence was in GPE . Thus , LAW did not operate .

Meanwhile , on CARDINAL DATE the applicant instituted custody proceedings before ORG ( PERSON ) . In DATE the proceedings were suspended “ until clarification of the issue of proper forum ” .

On DATE the applicant instituted access proceedings before ORG . He requested that the child be allowed to visit him once DATE from TIME until TIME and during some of the holidays .

On DATE the court received a written opinion from ORG of Harjavalta , which had interviewed the mother and her partner on several occasions . Also the daughter had been interviewed at her home . The applicant had been interviewed over the telephone and he had submitted some documents in support of his access claim .

On DATE the court held a hearing during which the parents with their counsel were present . It received written and oral evidence .

On DATE the court ordered that the child should have the right to meet with the applicant every other DATE from TIME under the supervision of a social worker at the child 's domicile . The mother was to assume responsibility for transporting their daughter to these meetings and for bearing the transportation costs . The court considered that the visits should be supervised owing to the fact that the applicant and the child had not met regularly for DATE . CARDINAL of the factors that contributed to this conclusion was that the applicant had allegedly tried to abduct the child . Further , as to the view of ORG that access should be granted twice a month for TIME at a time , the court found that TIME was too short a period in order to develop a trusting relationship between the applicant and his daughter and accordingly , it ordered that the visits should TIME at a time . Lastly , the court emphasised that the access arrangements could be altered in the future , if need be .

On DATE ORG rejected the applicant 's appeal without an oral hearing . As to the allegedly unfair ORG proceedings , it found that the applicant had been able to submit evidence , which fact transpired from the decision . In its decision ORG had stated what evidence had been submitted to it . As to the merits , ORG found no reason to amend the lower court 's decision .

On DATE ORG refused leave to appeal .

Custody and right of access may be organised either by an agreement that is confirmed by ORG or by a court decision . The parents can have joint custody , custody can be awarded to CARDINAL of the parents or to CARDINAL else who has consented thereto . The child has the right to maintain contact and meet with the parent with whom he or she no longer resides ( sections CARDINAL , CARDINAL ( CARDINAL/CARDINAL ) and CARDINAL ) of ORG ( laki lasten huollosta ja tapaamisoikeudesta , lag angående vårdnad om barn och umgängesrätt ; DATE ) . When making a decision relating to custody and right of access , the best interests and the wishes of the child must be taken into account ( sections CARDINAL and CARDINAL ) .

When a child has domicile in GPE at the time of conclusion of an agreement on his or her custody , the agreement has to be made in accordance with NORP law , even if all the parties are of a foreign nationality . In order for the agreement to be valid , it has to be confirmed by ORG ( section CARDINAL) . Alternatively , the question of custody may be decided by a court . An agreement concluded without the confirmation of an authority may upon request be recognised and enforced in GPE as a decision given in a foreign State , if the measure is legally valid and enforceable in the ORG where the child had habitual residence at the time of conclusion of the agreement ( section CARDINAL ) .

NORP In order to have an agreement enforced in GPE it must first be recognised by ORG ( section CARDINAL ; CARDINAL/CARDINAL ) .

A parent may at any time institute proceedings in a case relating to custody or right of access ( section CARDINAL ) . An agreement or a court order may be amended if the circumstances have changed ( section CARDINAL ) .

ORG 's opinion on how custody or rights of access could be arranged ( section CARDINAL ; CARDINAL/CARDINAL ) .

In cases where the parents are unable to reach an agreement on custody or rights of access , the case will be decided by the court . The guiding principle is the best interests of the child . Special attention shall be paid to the manner in which custody or right of access may best be realised ( section CARDINAL ) .

The child 's wishes and views must be ascertained as far as possible in view of the child 's age and stage of development . The views of the child shall be ascertained tactfully , taking his or her stage of development into account , and in a manner not detrimental to the relationships between the child and the parents ( section CARDINAL ) .

In normal circumstances a DATE is considered mature enough to express his or her views . The interview of a child is usually conducted by the social welfare authorities and at the child 's home . However , the court may decide to hear the child in person , if there are important reasons for doing so , the child does not object to it and it causes no harm to the child ( section CARDINAL ) .


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

Until DATE the applicant was the executive president ( PERSON ) of a public limited company , PERSON , which collapsed in DATE . When ORG instituted criminal proceedings against the applicant on suspicion of breach of trust and falsification of a balance sheet , the applicant left GPE and moved to GPE . During the criminal proceedings , the applicant was interrogated on DATE by the consular service ( konsularische GPE ) of ORG in GPE . On DATE ORG discontinued the criminal proceedings against him . During these proceedings the applicant had been represented by a lawyer , W , practising in GPE .

On DATE a creditor company brought a civil action for damages against the applicant personally before ORG , claiming damages of CARDINAL ORG .

On DATE ORG lodged a request to serve the writ on the applicant through the NORP diplomatic service ( GPE i m LAW ) .

On DATE ORG made an attempt to serve the writ directly on the applicant following his interrogation in the criminal proceedings . According to the ORG the applicant refused to permit his lawyer W to accept the writ . According to the applicant , only W was informed of the writ , but the lawyer declined to accept it and consequently the applicant was not aware of the writ .

Subsequently , the ORG referred the request to the NORP authorities for action , but the latter did not execute the request for service .

On DATE the plaintiff requested ORG to serve the writ by public notification ( öffentliche PERSON ) referring to information from the ORG according to which attempts to serve documents in GPE usually failed because the NORP authorities remained inactive .

As it was not possible to have the writ served by the NORP authorities , on DATE ORG ordered service of the writ by public notification in the Federal Bulletin and on the court ’s notice board . It fixed a DATE time - limit for entering a notice of defence .

On DATE the writ was published in ORG . Between DATE and DATE it was posted on the court ’s notice board .

On DATE the DATE time - limit set by ORG for entering a notice of defence elapsed without any reaction from the applicant .

On DATE ORG ordered the applicant by way of default judgment to pay the plaintiff damages amounting to CARDINAL ORG and fixed a DATE time - limit for filing objections ( PERSON ) .

On DATE the judgment was served by public notification on the court ’s notice board . It became final on DATE . The DATE time - limit fixed by ORG for filing objections elapsed on DATE .

By letter of DATE , the applicant ’s lawyer W asked the plaintiff ’s lawyer about the civil proceedings . On DATE he was informed that the civil proceedings had ended DATE with the default judgment .

On DATE the applicant lodged an objection against the default judgment before ORG and requested reinstatement of the proceedings . The applicant argued that ORG had no right to serve the judgment by public notification within the meaning of Section CARDINAL § CARDINAL of LAW . As ORG knew his address it should have served the judgment by postal service in terms of LAW . On DATE the applicant ’s lawyer PERSON stated that he did not wish to challenge the validity of the public notification of the writ , which in his view had been erroneous but valid ( er wende sich “ nicht gegen die obschon fehlerhafte , aber trotzdem wirksame öffentliche GPE der GPE ” ) . His complaint was limited to a challenge to the validity of the public notification of the default judgment .

On DATE ORG rejected the applicant ’s objection on the ground that the judgment had been validly notified ( by public notification ) , and that the public notification itself had been valid . ORG found that there had been no entitlement to postal service according to LAW as it was for the court , in its discretion , to select the method of service ( pflichtgemäßes PERSON ) once the conditions set out in LAW of LAW had DATE as in the applicant ’s case - been satisfied . It opted for service by public notification because postal service was disadvantageous to the applicant . Thus , LAW sentence CARDINAL of the Code of Civil Procedure provided that the relevant time - limit started to run from DATE on which the judgment had been posted . It was therefore likely that the time - limit for lodging an objection would have elapsed before the applicant received the default judgment . Moreover , postal service would be invalid if it transpired that the defendant ’s address had been incorrect . In such a case the court would have to re - serve by way of postal service , which was neither in the plaintiff ’s interest nor in the interest of legal certainty .

At the same time , ORG rejected the applicant ’s request for reinstatement because the applicant had failed to comply with Section CARDINAL § CARDINAL of the Code of Civil Procedure as he had lodged his application for reinstatement only on DATE , which was far more than one year after the expiry of the time - limit for objections on CARDINAL DATE . Moreover , the applicant had failed to comply with the DATE time - limit to lodge his request for reinstatement ( PERSON ) within the meaning of LAW § CARDINAL of LAW . The court noted that on DATE W had been informed that the civil proceedings had ended DATE with the default judgment . Therefore , the applicant should have lodged his request for reinstatement in DATE .

Finally , ORG pointed out that the applicant had missed the time - limits through his own fault . It considered that the applicant had been aware of the civil proceedings and the default judgment . Thus , ORG had tried to hand the writ over to the applicant at the end of his interrogation in ORG during the criminal proceeding , but he had refused to accept it himself and had forbidden to serve it on his lawyer PERSON if only W was informed of the writ on DATE , as submitted by the applicant , W was known to the court as a very diligent lawyer who would have informed the applicant about the existence of the civil proceedings even if he had only been mandated for the criminal proceedings . Therefore the applicant failed to comply with the requirement of Section CARDINAL § CARDINAL of the Code of Civil Procedure to appoint a person for service ( ORG ) to ensure the receipt of his mail .

On DATE ORG rejected the applicant ’s appeal for the following reasons :

First , the conditions for public notification in terms of Section CARDINAL § CARDINAL of the Code of Civil Procedure had been satisfied , given in particular that service abroad had proved to be impossible due to the NORP authorities’ lack of cooperation in dealing with requests for service of judicial documents . In this respect ORG referred to the unsuccessful attempt of ORG to serve the writ on the applicant through the diplomatic service and to ORG communication of DATE which confirmed that requests to serve documents were often not executed by the NORP authorities .

Secondly , it found that ORG had reasonably exercised its discretion to decide upon the type of service by striking a fair balance between the competing interests of legal certainty and the plaintiff ’s right to have justice administered ( Justizgewährungsanspruch ) , on the one hand , and the applicant ’s right to fair trial , on the other hand . Thus , postal service would have excluded the application of LAW of LAW and , hence , the possibility to apply a longer time - limit to lodge objections against the default judgment than the DATE time - limit provided for by LAW . Both service by public notification and postal service contained an assumption that the documents had been duly served ( Zustellungsfiktion ) . However , postal service entailed the additional risks for the plaintiff that the defendant ’s address was incorrect or that the latter had changed his residence . In circumstances as in the present case where the defendant deliberately left GPE and moved to a country which did not cooperate with GPE in judicial matters , it would be unfair to burden the plaintiff , who had no opportunity to verify the correctness of the defendant ’s address , with that risk .

Thirdly , ORG relied on the ORG ’s information according to which the applicant had refused to permit his lawyer W to accept the writ . Thus , the applicant had been aware of the civil proceedings and could have participated in them . Moreover , ORG emphasized that the applicant produced the difficult situation himself by moving to a non - cooperative country without complying with his procedural obligation under LAW of LAW to appoint a person for service and , hence , to ensure the receipt of his legal documents .

On DATE ORG dismissed the applicant ’s further appeal . It argued that the applicant could not invoke a violation of his right to be heard because he had explicitly accepted the validity of the writ ’s service by letter of CARDINAL DATE . In doing so he must be treated as if he had had the opportunity to appoint a person for service in terms of LAW of LAW .

On DATE ORG refused to admit the applicant ’s constitutional complaint without giving any reasons .

Sections CARDINAL et seq . of ORG as in force at the material time governed the service of legal documents . Pursuant to LAW of LAW parties residing abroad were required to designate a person for service if they had no authorised legal representative who resided within the judicial district of the trial court . If the party failed to do so , the document could be served by post . In that case LAW sentence CARDINAL of the Code of Civil Procedure provided that the document was deemed to have been served at the moment in which it was delivered to the post office . According to the case law of ORG ( see decision of DATE , no . VI ZR CARDINAL ) the presumption of service ( Zustellungsfiktion ) did not apply in cases where the address of the recipient had been incorrect or incomplete .

Section CARDINAL et seq . of the Code of Civil Procedure as in force at the material time governed the service of documents abroad . As a general rule a court ’s request for service abroad of a judicial document should be effected either directly by the competent authority of the state addressed or through the diplomatic channel . Section CARDINAL § CARDINAL of the Code of Civil Procedure provided for that the document might be served by public notification ( öffentliche PERSON ) if the service abroad had either proved impossible or was unlikely to be successful . Instead of ordering service by public notification , the domestic courts could , acting within their discretion , decide to serve the document by postal service pursuant to LAW of LAW . According to LAW a writ was considered to have been served DATE after the public notification in the Federal Bulletin ; a judgment was deemed to have been served DATE after the notification on the court ’s notice board .

Section CARDINAL et seq . of LAW govern the reinstatement of proceedings . Section CARDINAL of the Code of Civil Procedure provides that the reinstatement of the proceedings is granted where persons , through no fault of their own , are prevented from complying with inter alia the time - limit for lodging an objection against a default judgment or for requesting the reinstatement of the proceedings . Pursuant to Section CARDINAL § § CARDINAL , CARDINAL of the Code of Civil Procedure the application for reinstatement of the proceedings must be made within DATE from the moment in which the party becomes aware or should have become aware of the non - compliance with the respective time - limit . Section CARDINAL § CARDINAL of the Code of Civil Procedure precludes applications for reinstatements which are made DATE after the relevant time - limit , such as the time - limit for lodging objections , had elapsed .

Section CARDINAL § CARDINAL of the Code of Civil Procedure provides that the DATE time - limit for lodging objections against default judgments starts to run with the service of the judgment . According to LAW the court fixes a time - limit for lodging objections if the service has to be effected abroad or by public notification .

GPE is not a party to LAW , nor is there any bilateral agreement on the service of judicial documents between GPE and GPE . In the absence of any such agreement , requests for legal assistance from GPE are executed on the basis of reciprocity in GPE .

The NORP administrative rules on mutual assistance in civil and commercial matters ( PERSON GPE ) provide guidelines for the domestic courts on how to deal with requests for mutual legal assistance . They also contain a country section which reports on the specific situation in the different GPE , including GPE .

According to these rules , a NORP court which wishes to serve a document on a party in GPE may send a request through the diplomatic channel . Such request shall be sent to ORG in GPE which will refer the request to the NORP authorities for action . Members of ORG are allowed to serve documents directly , i.e. without the involvement of the NORP authorities , either on persons who reside in GPE or on persons residing outside the capital if the service may be effected on a representative ( Vertrauensperson ) . The administrative rules also allude to the long periods of time needed for the execution of such requests in GPE .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants are NORP nationals and at the time of their applications they were all but QUANTITY in pre - trial detention in FAC . The names and dates of birth of the applicants appear in the appendix . They were all represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .

On DATE the applicants announced a collective DATE hunger strike in protest against the conditions of detention of PERSON , leader of the ORG ( ORG , an illegal , armed organisation . On DATE the Diyarbakır F - type ORG imposed a disciplinary sanction on the applicants , consisting of a DATE ban on sports activities and conversation in groups ( spor ve sohbet etkinlikleri ) , for launching a hunger strike and forming a group with a view to breaching the regulations . The applicants lodged appeals , which were rejected by ORG and ORG on DATE and DATE respectively . The final decision was deposited with the registry of the court on DATE .

Law no . DATE on the Enforcement of Sentences and Preventive Measures provides as follows :

Article CARDINAL

“ CARDINAL . The penalty of a deprivation of certain activities deprives convicts of the right to participate in the prison workshops and sports activities from DATE .

The acts requiring the penalty of a deprivation of certain activities are as follows :

( g ) launching a hunger strike ... ”