Violation of Art. 5-3;No violation of Art. 6-1;No violation of Art. 6-3-d

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

The applicant was born in DATE and lives in ORG .

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

On DATE the applicant was arrested on suspicion of armed robbery . While remanded in custody the applicant was held in FAC , ORG and other remand establishments .

On DATE ORG authorised the applicant 's remand in custody until DATE . In ordering the detention , the court referred to the nature and gravity of the charges against the applicant , and stated that “ it was likely that the applicant could attempt to abscond from investigators and the trial as well as obstruct the establishment of the truth in the case ” . The applicant and his defence counsel were present at the hearing .

On DATE ORG extended the term of the applicant 's detention until DATE due to the fear “ that he would abscond ” . The applicant 's lawyer was present at the hearing .

On DATE the applicant appealed against that ruling .

Having received the appeal on DATE , on DATE ORG dismissed it , arguing that the applicant “ had been charged with a serious crime and if released would obstruct the investigation and the establishment of the truth ” . The applicant 's counsel was present at the hearing .

On DATE ORG extended the term of the applicant 's detention until DATE . Having briefly summed up the charges against the applicant the court stated that “ the applicant had been charged with a serious crime , therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court , obstruct the establishment of the truth and commit fresh crimes ” . The applicant and his lawyer were present at the hearing .

On DATE the applicant appealed against the order to extend his detention . On CARDINAL DATE the appeal was received by ORG , which on DATE dismissed the applicant 's appeal , his defence counsel being present . The court again stated that “ the applicant had been charged with a serious crime , therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court and would obstruct the investigation ” .

On DATE the Šiauliai City District Court extended the term of the applicant 's detention until CARDINAL DATE . Listing the charges against the applicant the court stated that “ the applicant had been charged with a serious crime , therefore there was a reason to believe that if at liberty he would try to abscond from the investigators , commit fresh crimes and influence witnesses ” . The applicant and his lawyer were present .

On DATE ORG extended the term of the applicant 's detention until DATE on the ground that “ he had been charged with a serious crime , therefore there was a reason to believe that if at liberty he would commit fresh crimes and obstruct the establishment of the truth ” . The applicant and his defence counsel were present at the hearing . The applicant appealed , stating , inter alia , that he had to undergo surgery .

The applicant 's appeal was dismissed by ORG on DATE , with his defence counsel present . The court stated that “ the applicant had been charged with serious crimes , he had not confessed and his guilt was based on statements by numerous witnesses , therefore there was a reason to believe that if at liberty he would try to influence witnesses and would obstruct the establishment of the truth in this case ” .

On DATE ORG extended the term of the applicant 's remand in custody until DATE . The court again listed the charges against the applicant and stated that “ the applicant had been charged with a serious crime . There is a reason to believe that if at liberty he would obstruct the establishment of the truth in the case and would commit fresh crimes ” . The applicant and his lawyer were present at the hearing .

The applicant appealed , arguing that the investigation had been delayed and that the authorities had not exercised due diligence in investigating the case . The applicant also submitted that he had no criminal record and had a permanent place of residence . There was no evidence that he would try to abscond from the investigation or commit fresh crimes .

On DATE the applicant 's appeal against the order of DATE was dismissed by ORG , with the applicant 's defence counsel being present . For the court , the reasons for extending the applicant 's detention were that “ the evidence in the case allowed the conclusion that the applicant had committed the crimes he had been charged with . Given that the applicant denied his guilt , the lower court had correctly concluded that if released the applicant would obstruct the establishment of the truth in the case that is to say he could influence witnesses , either himself or through others . He might also abscond from the investigation or commit fresh crimes ” .

On DATE ORG extended the term of the applicant 's detention until DATE . Stating the charges against the applicant in CARDINAL sentences , the court noted that “ the applicant was accused of CARDINAL crimes , CARDINAL of which was serious . The data in the case file allowed the presumption that the applicant had committed those crimes . Given that the applicant denied his guilt , it was reasonable to believe that , if at liberty , he could obstruct the establishment of the truth in the case and influence witnesses and co - accused , either himself or though third parties . He might also hide from investigators or commit other crimes ” . The applicant and his defence counsel were present at the hearing .

The applicant appealed , reiterating that he had a permanent place of residence and that there were no grounds to believe that he might abscond or obstruct the course of justice . The charges had already been presented to him . Moreover , notwithstanding the requirements of LAW to demonstrate the need to keep a person in detention , the prosecutor had presented no such evidence to the court . As regards the applicant , the fact that he had not confessed to the crimes he had been charged with was not a reason to assume that he would commit fresh crimes or attempt to obstruct the establishment of the truth in his case . Lastly , he mentioned that he had no prior convictions and had a permanent place of residence , his parents ' flat .

On DATE ORG dismissed the applicant 's appeal , endorsing the reasons given by the lower court . The applicant 's lawyer was present at the hearing .

The Šiauliai Regional Court further extended the term of the applicant 's detention by the following orders :

- order of CARDINAL DATE : until DATE ;

- order of DATE : until DATE ;

- order of CARDINAL DATE : until DATE .

For that court , the reasons to keep the applicant in detention were that the applicant , if released , would “ attempt to obstruct the establishment of the truth in his case ” , “ influence witnesses ” , “ hide from investigators ” and “ commit fresh crimes ” .

The applicant and his defence counsel were present at all the hearings at which his detention was extended .

On DATE the prosecution approved the bill of indictment concerning the charges of armed robbery against the applicant and CARDINAL other co - accused . The case was sent to court .

On an unknown date the ORG requested ORG to ensure that GPE and GPE , CARDINAL of the applicant 's accomplices who had testified against him and had been released from criminal liability by the prosecutors , were brought before the court for questioning . On DATE and DATE ORG and ORG informed the prosecutors that , according to the information they had gathered , PERSON and PERSON had left GPE and their place of residence was unknown .

On DATE ORG convicted the applicant of complicity in armed robbery ( Articles CARDINAL § DATE and CARDINAL § CARDINAL of LAW ) . The court based its conclusion , inter alia , on the evidence given by GPE and GPE , whose statements as recorded during the pre - trial investigation were read out . The applicant was sentenced to DATE imprisonment , towards which the court counted the period from DATE to CARDINAL DATE , when the applicant had been in pre - trial detention .

The applicant appealed , complaining that the proceedings were unreasonably long . He also alleged that the trial court should not have admitted the submissions of PERSON and PERSON in evidence , as he had not been afforded an opportunity to challenge these witnesses in open court . The applicant alleged a violation of LAW .

Invoking LAW of the LAW the applicant also submitted that he had already been in pre - trial detention DATE and DATE ( from DATE ) and argued that the detention had been extended on numerous occasions without lawful grounds . The prosecutors had joined his case to other cases and disjoined it later . During all that time he was detained , the courts would dismiss his appeals to impose another , milder remand measure . Given that on DATE ORG had acquitted him [ in the second set of criminal proceedings ] and he had been released from pre - trial detention only on DATE , in its judgment of DATE ORG had wrongly assessed the time which needed to be counted towards the punishment .

By a ruling of CARDINAL DATE ORG ordered ORG to bring PERSON and PERSON to court for questioning . However , the police informed the court that it was not possible to summon PERSON and PERSON as they had left GPE . Moreover , the relatives of GPE and PERSON had moved house , therefore it was not possible to question them in order to establish where the former were living .

On DATE the Court of Appeal inquired of ORG as to whether GPE and PERSON had crossed the State border and whether they had returned to GPE . On DATE ORG informed ORG that GPE and PERSON had left the country .

On DATE ORG upheld the conviction . It noted that the trial court had based its conclusion on various pieces of evidence , namely the submissions of the applicant 's co - defendant and a witness , both of whom had been questioned at the trial . In the opinion of the appellate court , PERSON and PERSON had only provided information which was also known from other sources . Having analysed those other sources at length and in depth , alone and against each other , ORG concluded that even without the testimony of GPE and GPE there was sufficient proof of the applicant 's guilt .

Lastly , ORG concluded that the trial court was impartial towards the applicant , given that it had substituted the charges against the applicant with a lesser charge , by convicting him as a person who had merely assisted in the commission of a crime and not as the organiser .

In contrast , ORG agreed with the applicant 's argument that all the time he had spent in pre - trial detention should be counted towards his sentence :

“ The chamber notes the not entirely correct nature of the information given in the bill of indictment , to the effect that L. PERSON was arrested on CARDINAL November CARDINAL , remanded in custody on DATE and the detention continued only until DATE ; and that afterwards detention was imposed in another criminal case , adjudicated by ORG .

From supplementary information ORG has received ( DATE ruling of ORG ) it transpires that in another criminal case , in which NORP Balčiūnas was convicted and acquitted ( ... ) [ paragraphs CARDINAL hereinafter ] , new pre - trial detention has not been imposed on the applicant ; it was the detention of CARDINAL DATE which was being continued . ”

ORG upheld the applicant 's sentence of DATE imprisonment . However , the applicant was deemed to have completed the sentence in view of the time spent remanded in custody DATE from DATE to CARDINAL DATE .

The applicant lodged a cassation appeal , complaining that his conviction had been based on the submissions of witnesses who had not been questioned by him or the courts . He also alleged that ORG had not examined the issue concerning the allegedly excessive length of the proceedings and the lawfulness of his remand in custody .

On DATE ORG dismissed the applicant 's cassation appeal . The cassation court noted that the evidence leading to the applicant 's conviction had been properly handled and assessed by the lower courts . His guilt had been based to a substantial degree on the evidence given by a witness and CARDINAL of his co - defendants , who had all been examined in open court . The trial court was entitled to refer to the submissions by PERSON and PERSON , which had been recorded during the pre - trial investigation . The authorities had taken all the necessary measures to summon PERSON and PERSON to the hearing , but had failed to obtain their attendance in view of the fact that their place of residence was unknown . ORG acknowledged that the appellate court had not answered the applicant 's allegation that the investigation and his pre - trial detention had lasted an unreasonably long time . It noted however that these circumstances did not constitute sufficient grounds to find that ORG had failed to respect the relevant procedural requirements . Lastly , ORG noted that ORG had rectified the trial court 's mistake and correctly counted the period of pre - trial detention towards the time of the punishment .

On an unspecified date , another set of criminal proceedings was instituted against the applicant . In particular , it was suspected that he had been a member of a criminal organisation , and that in DATE he had been involved in organising CARDINAL explosions in public places , causing a number of injuries to others . CARDINAL other persons were charged alongside the applicant ; the charges related to events which took place in DATE .

On DATE , upon approval of the bill of indictment , the case was transmitted to ORG .

On CARDINAL DATE ORG ordered the applicant 's detention to be “ continued ” until DATE , referring to the risk that he would abscond , commit new offences and obstruct the investigation . The applicant and his defence counsel were present at the hearing .

NORP The applicant appealed . However , on DATE ORG dismissed his appeal , referring to the gravity of the charges against the applicant . The applicant 's counsel was present at the hearing .

Subsequently the applicant 's detention was extended by court orders of DATE , DATE , CARDINAL DATE and DATE and of CARDINAL May , CARDINAL DATE and CARDINAL October CARDINAL . The applicant 's lawyer was present at the hearings . The courts referred to the risk of the applicant reoffending , influencing witnesses and obstructing the investigation . All his appeals were unsuccessful .

On DATE ORG ordered ORG office to summon PERSON and PERSON to the hearing for questioning .

By the same ruling ORG extended the term of the applicant 's detention until DATE on the ground that he might influence witnesses and commit fresh crimes . The applicant 's lawyer was present at the hearing . The applicant appealed , requesting a variation of the remand . He submitted , inter alia , that the lengthy stay in custody had negatively affected his health . He also alleged that the pre - trial investigation had been concluded , and that there were no grounds to believe that he might abscond from the trial or influence witnesses .

On DATE ORG dismissed his appeal , endorsing the grounds indicated in the order of DATE . The court acknowledged that the applicant had been in detention “ for a long time already ” and observed that after the case was transferred to court , some delays had been caused by “ organisational matters of the court ” . Nonetheless , in the view of ORG , the length of the applicant 's detention was justified by the complexity of the case ( multiple charges against several co - defendants , numerous victims and witnesses ) and a voluminous case file . The case had been adjourned several times at the request of the defence to examine certain additional evidence , or due to the failure by certain witnesses or defence lawyers to appear at the hearing . The circumstances justifying the applicant 's detention persisted . The applicant and his defence counsel were present at the hearing .

On DATE the ORG further extended the applicant 's detention until DATE on the same grounds . The applicant 's lawyer was present at the hearing .

The applicant appealed , requesting a variation of the remand . He argued , inter alia , that the pre - trial investigation had been terminated , most of the victims and witnesses had been questioned in court , and it remained only for the court to evaluate the evidence and pass a judgment . Thus it was not likely that the applicant would influence witnesses or obstruct the establishment of the truth in the case , given that he had not done so for DATE .

On DATE ORG dismissed the applicant 's appeal against the order of CARDINAL DATE . The court acknowledged that the applicant had been detained for a prolonged period . However , in view of the circumstances , such as the complexity and volume of the case and the number of charges against various co - defendants , the court concluded that the applicant 's continuing detention was justified . The grounds for the applicant 's detention thus continued to persist - it was necessary in order to guarantee that he would appear before the court , as well as to prevent the commission of new offences .

On DATE the ORG convicted the applicant of being a member of a criminal organisation which possessed explosives ( Article CARDINAL § CARDINAL of LAW ) , illegal possession of explosives ( LAW ) , attempts at aggravated murder ( Articles LAW , QUANTITY , DATE , DATE , DATE ) , and destruction of property ( LAW ) . He was sentenced to DATE imprisonment and fined , and his property was confiscated .

DATE . On DATE ORG acquitted the applicant . The court noted that the conviction was based to a decisive extent on the submissions of CARDINAL witnesses , PERSON and PERSON , who had not been examined in open court . The applicant was released in the courtroom .

On DATE ORG dismissed an appeal by the prosecution .

On an unknown date the applicant lodged a complaint with the ORG , arguing that the conditions of his detention at ORG were inadequate . In particular , the applicant contended that the facility was overcrowded and that the cell he had been placed in was constantly damp , the mats were wet and a sanitary unit did not work properly .

In the report of CARDINAL DATE the ORG partly agreed with the applicant 's complaints , noting that ORG suffered from overcrowding ( QUANTITY persons were held there , the limit being CARDINAL ) and from a shortage of properly set up sanitary units . In the report the ORG also observed that :

“ the fact that the applicant was detained for CARDINAL and a half years could demonstrate a significant risk that a violation of his right to a trial within a reasonable time or to release pending trial , that is to say a violation of LAW , would be found . It could be said that a lengthy period of detention during judicial proceedings could have a disproportionate impact on his other rights : for example , the restriction on longer visits for those in pre - trial detention , no opportunity to take exercise , and other restrictions ” .

In the operative part of the report the ORG urged the responsible authorities to resolve the problem of overcrowding and to evaluate the hygiene conditions at FAC .

“ Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged . ...

The grounds for the detention shall be specified . The grounds ... shall be the reasonable suspicion that the accused will :

( CARDINAL ) abscond from the investigation and trial ;

( CARDINAL ) obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;

( CARDINAL ) commit new offences ... whilst suspected of crimes provided in ORG ... CARDINAL [ aggravated murder ] , ... CARDINAL [ founding a criminal organisation ] , ... CARDINAL § CARDINAL [ aggravated destruction of property ] ... of LAW ... .

Where there is a reasonable risk that the accused will abscond from the investigation and trial , detention on remand may be ordered , taking into account the accused 's family status , permanent place of residence , employment relations , health , criminal record , relations abroad and other circumstances . ... ” .

“ ... After the case has been transmitted to the court ... [ a judge ] can order , vary or revoke the detention . ... ”

“ Detention on remand can not last longer than DATE . A specific term of detention shall be fixed by the judge issuing the remand order ; this term can be extended by the same judge or another judge of the same district court , but only for a period not exceeding DATE .

In view of the particular complexity or size of a case , a judge of a regional court may extend the maximum term specified in the first paragraph of this LAW for a period not exceeding DATE . The extension may be repeated , but the total length of the term at the stage of the pre - trial investigation may not exceed DATE ...

For the purpose of extending the term of detention at the pre - trial stage ... a judge must convene a hearing to which defence counsel and the prosecutor and to which , if necessary , the detained person shall be summoned ... . ”

“ A person remanded in custody or his defence counsel shall have the right during the pre - trial investigation or trial to lodge [ with an appellate court ] an appeal against detention or the extension of its term ... . A judge or appellate court must examine the appeal within DATE of its receipt . With a view to examining the appeal , a hearing may be convened , to which the arrested person and his counsel or counsel alone shall be summoned . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal ... .

A further appeal shall be determined when examining the extension of the term of the detention . ”

“ A judge , individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine ... ( CARDINAL ) whether the selection of a remand measure is appropriate . ”

“ After deciding that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine the questions ... ( CARDINAL ) of the remand measure in respect of the accused ... ”

“ In the course of the trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . ”

According to LAW kalinimo įstatymas ) , the administration of the relevant remand institution can allow detainees visits of TIME with family members .


Violation of Art. 3 (procedural aspect);Violation of Art. 8;No violation of Art. 8;No violation of Art. 14+6;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicants are mother and son . They were born in DATE and DATE respectively and live in FAC , GPE .

In a letter bearing ORG stamp of CARDINAL DATE and received by ORG on DATE , PERSON complained , inter alia , of violations of her and her son ’s rights under LAW and CARDINAL of the LAW in respect of criminal proceedings which ended by a final judgment of DATE .

NORP By letter of DATE the ORG asked PERSON to state clearly whether the complaint under LAW was also raised on her behalf .

NORP By letter of CARDINAL March CARDINAL PERSON confirmed the receipt of the ORG ’s letter of DATE and , without referring to any particular articles of the ORG , stated that she complained only on her son ’s behalf .

PERSON and GPE were married on DATE . ORG , the couple ’s only child , was born on DATE .

On DATE , PERSON filed for divorce from GPE , citing her husband ’s volatile and violent nature as the chief ground for divorce . She also asked to be granted full custody of their son . By a judgment of DATE , ORG allowed the claims and granted PERSON full custody of the second applicant . GPE was obliged to pay DATE maintenance until the second applicant became an adult .

Following an application by GPE for custody of the second applicant to be reconsidered and granted to him , on DATE ORG dismissed the claim . The judgment was upheld on appeal , ORG holding on DATE that the father had proved :

“ to have had and to still have a violent nature and an uncivilised attitude , provoking situations when visiting his child which are likely to negatively influence the child ’s physical and psychological development . ”

D.C. also applied to the courts for contact rights with the second applicant on DATE from TIME on DATE until TIME on DATE , as well as for DATE during his DATE leave . The request was granted on DATE by ORG , having in mind the best interests of the child and the fact that his mother “ did not oppose the request ” . PERSON lodged an appeal , claiming that she had not been lawfully summoned and therefore that she had not had knowledge of the hearing . On an unspecified date , her appeal was dismissed for a procedural error ; the judgment thus became final .

PERSON contested the enforcement of this judgment , essentially relying on the existence of criminal complaints lodged by her against GPE , accusing him of having molested the child ( see section B below ) . ORG dismissed her application on DATE . She appealed against this judgment , and on DATE the proceedings were stayed until a final decision was given in the proceedings concerning the limitation of GPE ’s visiting rights ( described below in section C ) .

On DATE , GPE asked for the stay to be lifted . The appeal was dismissed on DATE , as the main objections to the enforcement formulated by PERSON had been clarified within the concluded criminal and civil proceedings respectively ( described below in sections B and C ) .

PERSON appealed on points of law . The appeal was dismissed by ORG on DATE . The court held that her argument that the enforcement of the disputed judgment would affect the child ’s fundamental rights was unfounded , relying mainly on the judgment of CARDINAL DATE which had confirmed the prosecutor ’s decision not to indict D.C ..

On DATE , at PERSON request , ORG for LOC , GPE decided that the second applicant should be temporarily placed in a state institution ,

“ as it had been proved that the child ’s development , security and moral integrity were being endangered by his biological father . ”

The child was placed in ORG no . CARDINAL , GPE , GPE .

The above - mentioned decision was amended on DATE , following a reassessment of the case file that the ORG made of its own motion . The ORG considered that the protection measures already undertaken ought to be maintained as , according to information provided by the police , the child had been sexually molested by his father , and consequently a criminal investigation was under way . Both parents were allowed to visit the child once a week , but neither of them had the right to take the child to their home from ORG no . CARDINAL , to which he had been transferred .

On DATE , PERSON lodged a complaint , requesting that ORG institute civil proceedings to have GPE stripped of his parental rights . The request was rejected by the ORG on DATE , as “ the necessary legal conditions for such proceedings to be instituted [ had ] not been fulfilled ” .

On DATE PERSON asked the Commission to revoke the placement measure and to order the second applicant ’s reintegration into his family . By a decision of CARDINAL DATE , ORG allowed the request and ordered that the second applicant should henceforth reside with his mother .

On an unspecified date in DATE PERSON lodged a civil action , seeking to obtain an increase in the DATE maintenance paid by GPE , as both the second applicant ’s needs and GPE ’s income had increased . PERSON also requested that GPE ’s contact rights should be limited so that the second applicant would only spend time with his father in her presence . In support of her latter request , the first applicant alleged that “ [ his ] father was a real danger to the health and physical integrity of the child ” , that GPE ’s verbal and non - verbal behaviour was highly aggressive , and that she had already lodged a criminal complaint against GPE , accusing him of sexually molesting the second applicant . She asserted that due to GPE ’s general behaviour she had been forced to temporarily ask for the second applicant to be placed in a state institution , where he would be protected from any possible aggression from his father .

An opinion on the relationship between the second applicant and his father given by ORG , Head of ORG of GPE municipal administration , was added to the case file . ORG stated that she had known the child from the time when he had been temporarily placed in ORG no . CARDINAL , as she had been the manager of the centre at the time . Her remarks are essentially focused on the positive and natural link between GPE and his child , who :

“ has an explosion of joy when seeing his father [ ... ] ; after the mother ’s visits to the centre , the child became irritable , disobedient , using reprehensible words in connection to his father [ ... ] the audio tape attesting to the so - called sexual abuse is proof of answers being induced from the child , the mother having made a significant contribution regarding the child ’s attitude towards his father . Only when [ his ] father appeared did the child forget whatever his mother had induced him to feel ( due to the joy he felt when meeting his father ) , which is clear proof that ORG had not attacked the child , not only sexually , but not even verbally or in any other way . ”

On DATE ORG allowed the request with respect to the child maintenance increase ; the request for limitation of contact rights was dismissed , the court taking into account the fact that the prosecutor had decided on DATE not to institute criminal proceedings against GPE and to close the investigation ( see paragraph CARDINAL , below ) . An appeal by PERSON was dismissed on DATE as timebarred . A further appeal on points of law was also dismissed on DATE by ORG .

On DATE , GPE reapplied for full custody of the second applicant . He stated that he had not been allowed to visit his son , and that even though the first applicant had lodged a criminal complaint against him , the prosecutor had issued a decision not to indict him for sexually abusing the child . At the same time , GPE asserted that the first applicant was a member of ORG , and that therefore her influence on the child endangered his normal development . PERSON replied that the prosecutor ’s decision not to press charges against GPE had been confirmed and a criminal investigation was still pending . The action was dismissed on DATE by ORG . The court held that the reasons relied upon by GPE with respect to the first applicant ’s religion were not to be taken into consideration . It also considered that the reasons which substantiated the court ’s previous decision to grant full custody to the first applicant had not changed in any way . The decision became final .

On DATE , GPE lodged a request with ORG , asking it to order the urgent placement of the second applicant in a state institution . He alleged that he did not have any information regarding the current home of the applicants , as they had continually and frequently changed their place of residence , and consequently no information on the second applicant ’s well - being was available to him . The request was denied on DATE , as it had not been proved that the second applicant was in any danger .

On DATE , by means of interlocutory proceedings , GPE sought full custody of the second applicant , giving as a reason that “ it is dangerous for the child to stay close to his mother , as even though she is a caring mother , she still has a bad influence on the minor ’s later development ” . He also cited the fact that in DATE the first applicant had lodged a criminal complaint , accusing him of having molested the second applicant . GPE alleged that ever since that time he had constantly been prevented from visiting his son , who in any case had radically changed his whole attitude towards him , refusing contact .

The request was dismissed as inadmissible on DATE , ORG holding that the parties’ obvious and serious conflicts could not be settled within such expeditious proceedings . The judgment became final on DATE , the GPE ORG ruling an appeal on points of law brought by GPE inadmissible .

On DATE , PERSON lodged a criminal complaint against GPE , alleging that “ the child had related to her that on DATE , when visiting his father , the latter had attempted to commit acts of sexual perversion with him ” . The second applicant was DATE and DATE at the time .

A medical certificate issued on DATE by ORG attested to the following :

“ ... the anal mucous membrane reveals a bleeding longitudinal fissure of CARDINAL by QUANTITY . [ ... ] The child , GPE , has a traumatic lesion in the anal area , which could have been produced in the circumstances of a sexual assault . Healing requires DATE of medical care . ”

No civil claims were lodged .

According to PERSON , a second criminal complaint was lodged on DATE regarding similar sexual acts perpetrated CARDINAL , when the second applicant was visiting his father . However , a copy of this complaint was not submitted to the ORG .

The first applicant , GPE and other witnesses were heard . CARDINAL witnesses , PERSON and GPE , informed the authorities , inter alia , that they had been told by the second applicant that he had been sexually assaulted by his father . Moreover , they had witnessed GPE ’s violent behaviour towards PERSON and had seen the minor undressing and touching other children in an inappropriate manner . However , another witness , C.A. , stated that she had never heard the second applicant complaining of sexual assault . On DATE a medical report was produced by ORG , attesting as follows :

“ ORG has recent and old lesions in the anal area , which could be the result of the intromission of a solid object or a consequence of anal sexual contact . It is possible that the lesions occurred on DATE . DATE of medical care are required for healing . ”

On DATE the minor was subjected to a psychological examination , which concluded as follows :

“ ... the results of the projective tests emphasise the possibility that ORG , aged DATE and DATE , could have been sexually abused . ”

A forensic report concerning simulated behaviour was produced on DATE , both PERSON and GPE being subjected to a test and asked various questions . According to the conclusions of the report , indicators of dissimulation were detected when PERSON answered the following relevant questions ( CARDINAL out of the total of CARDINAL asked ) : whether she had set up the sexual assault on the child ; whether she had been taught by somebody else to frame someone for the sexual assault perpetrated on the child ; whether she had obliged or urged somebody to introduce an object into her child ’s anus .

At the same time , the conclusions of the report showed that GPE ’s attitude seemed to be sincere when he answered CARDINAL questions , the relevant ones being : whether he had had anal sexual intercourse with his child ; whether he had molested the minor DATE CARDINAL DATE or on DATE ; and whether he had ever thought about having unusual sexual relations .

Upon a request from the police , a new medical report was produced on DATE by ORG , concluding as follows :

“ We reassert our opinion that the child , ORG , displayed a traumatic lesion in the anal region , which could have occurred in the circumstances of a sexual assault , for which he needed DATE of medical care for healing . The lesion could have been DATE at the time of examination , which means that it could have been produced on DATE . ”

On DATE , FAC no . CARDINAL , investigating the case , sent an official note to ORG for GPE , GPE , asking them to ensure the permanent safety of the child until the investigation was terminated , in so far as neither of the parents nor any other person was to be allowed to take the child from ORG , because :

“ ... the evidence already adduced in the case shows that the child had been sexually abused . ”

On DATE the second applicant was heard by the police in the presence of his mother , a psychologist and a lawyer who had been automatically appointed . From the second applicant ’s answers to the questions asked by the police , it emerged that :

“ He likes to live with his mother and with his father [ ... ] and that his father had put a hose into his bottom . ”

On DATE , the prosecutor decided not to indict GPE for the crime proscribed by LAW and CARDINAL of LAW ( sexual intercourse with a person of the same sex ) . As there were indications of criminal acts of a sexual nature having been committed , the case was split in so far as a further investigation was to be undertaken with a view to identifying the perpetrator .

NORP This decision , challenged by PERSON , was confirmed by the hierarchically superior ORG on DATE .

The prosecutor held that some of the witness statements were hearsay , as most of the witnesses had stated what they had heard and found out from the second applicant himself , who was CARDINAL at the time , being therefore unable to accurately depict reality .

Considering that the forensic report had proved that PERSON answers indicated distortions typical of dissimulation , whereas no such indicators had been revealed from the answers given by GPE , the recommended conclusion was to consider that the first applicant was dissimulating :

“ ... due to the existing conflicts as regards the child ’s custody and due to the applicant ’s selfish affection for the child . ”

PERSON again contested this decision . A psychological report completed on DATE and issued by FAC , a neuropsychiatrist , was submitted to the file by PERSON It showed that the child :

“ ... had a permanent state of anxiety in connection with his own body [ ... ] phobia and feelings of culpability in connection with the human body were revealed [ ... ] we conclude that the child had been subjected to long and intense stress , stress connected with physical handling of a sexual nature – possible repeated paternal sexual abuse [ ... ] diagnosis : reactive state ( sexually abused by the father ) . ”

On DATE , the hierarchically superior prosecutor quashed the decision and proposed that further investigation of the case should be carried out with respect to acts under LAW and CARDINAL of LAW , consequently remitting the file to ORG .

The decision was taken having the following in mind :

“ ... the medical report ’s conclusions are corroborated by those of the psychological examinations of the child , who was shown to have exhibited behaviour typical of those who have been subjected to sexual abuse ” ;

and that

“ ... there is no indication of the existence of any other person than the father , GPE , who could have committed the impugned acts . ”

After the remittal of the case , no other new evidence was produced or adduced to the file . On DATE , the prosecutor again decided not to press charges against GPE in respect of the acts punishable by LAW under LAW and DATE and LAW ( acts of sexual perversion ) . The decision was founded on the evidence already existing in the file ( the medical certificate of DATE , the medical report of CARDINAL DATE , statements gathered in the case , the parties’ arguments and the forensic report on simulated behaviour ) .

On DATE PERSON contested this decision , mainly arguing that in spite of the indications given by the hierarchically superior prosecutor on DATE that the investigation should continue , no new evidence had been produced in DATE that had since passed and therefore that the decision was unsubstantiated .

Her objection was sent from the hierarchically superior prosecutor to ORG . ORG raised a plea of inadmissibility of such an objection , as LAW did not expressly provide for the possibility of parties contesting a prosecutor ’s decision not to press charges before the courts .

The first applicant replied by submitting jurisprudential arguments , including a decision of ORG issued on DATE stating that not providing the parties with such an opportunity was unconstitutional . The first applicant also relied upon the adoption of a new PERSON ( no . ORG ) amending old regulations and providing the parties with the possibility of appealing against such decisions to the courts within DATE of its entering into force ( on DATE ) .

On DATE , the court dismissed PERSON appeal . In its judgment , the court made reference to the decision of DATE ( see C below ) and to the reasoning therein . At the same time , it held as follows :

“ Because no matter how many witnesses had been heard in the case it could not have been established for certain whether the truth lay with the applicant or with GPE , it was necessary to test the CARDINAL with a polygraph . Following the test , it was established that the applicant was dissimulating , whereas GPE proved to have been sincere when answering the questions asked . ”

When referring to the second applicant ’s statements given on DATE , the court considered that these were :

“ ... a faithful reflection of the mother ’s opinions on the matter , the child ’s assertions being very structured , similar to those made by an adult , although the child was DATE at the time . The child tried to expose his mother ’s thoughts as accurately as possible but , at the same time , he attempted to express his own feelings when he pointed out that he liked to live with his father as well . ”

Consequently , the court held that the existing evidence could not be regarded as reliable enough to indict GPE for the alleged crimes , in view of the conclusions of the lie - detector test ( considered to be PERCENT accurate ) , of all of the reports and of the ORG statements .

The court further emphasised the fact that the second applicant had asserted that his father “ had only inserted a hose in his bottom and asked him not to tell his mother anything about it ” , which would :

“ ... constitute at the most a criminal act under LAW ( hitting or other forms of violence ) , stating that a criminal case shall be initiated upon the complaint of the person injured . ”

The court made no reference to the initiation on its own motion of a criminal investigation for criminal acts under LAW .

PERSON appealed against this judgment . ORG dismissed the appeal and reiterated the reasoning of the lower court quoted above . It held on DATE that no evidence in the file had proved that the second applicant had actually been a victim of sexual assault perpetrated by his father and therefore that there was no indication in the file to justify a prosecution being instituted against GPE for criminal acts punishable under LAW and CARDINAL and LAW .

On DATE PERSON lodged a civil action , seeking to confine GPE to a contact programme of CARDINAL visits a month and only in her presence . In support of her claims , she alleged that GPE had abused his contact rights when , in DATE and DATE , upon taking the child to his home , he had molested the child . She revealed that she had lodged a criminal complaint against GPE in this regard , but that on DATE the prosecutor had decided not to indict him . Also , a similar civil action had previously been lodged by her , but her claims had been dismissed on DATE , the ORG reasoning relying exclusively on the prosecutor ’s decision not to institute criminal proceedings against GPE

GPE asserted that ever since his former wife had left him he had had to struggle in the courts in order to be able to see his son , as she had done everything possible to keep him from having any contact with his son . In that respect , he had even had to lodge a criminal complaint against her , as she was not complying with the court order allowing him to see his son . Even though she had never been indicted , she had allegedly received an administrative sanction . After the incidents that had allegedly occurred in DATE , he had not been allowed to see his son , as the first applicant had continually moved home without informing him .

Mindful of the serious allegations submitted by the parties and what was at stake for the child , the court DATE at a preliminary stage – considered it necessary for both of the parents to be subjected to a polygraph test and also to undergo psychiatric examination . At the same time , the court found it appropriate to hear the second applicant , even though he was DATE . All discussions with the child were audio taped , and , as is stated in the judgment of the GPE ORG given on DATE , “ the transcriptions were to be included in the case file ” .

PERSON application was dismissed , the reasoning of the court being essentially the following .

Firstly , the court observed , on the basis of the parties’ past , which had been hostile and which had been partially played out in court , that PERSON intention to limit GPE ’s contact rights had been constant over DATE and had started long before the alleged incidents of DATE and DATE . As had emerged from all the documents included in the case file , the first applicant had actually intended to completely prevent GPE from having any contact with his son . The court found that this background showed that her present application had not come as a consequence of the alleged sexual assault , but rather as a predictable consequence of her consistent and strong determination to put an end to any kind of relationship between the second applicant and his father . The following had emerged :

“ ... the applicant was constantly preoccupied with estranging the child from his father and the real reason for that was not the reason presented by PERSON in the file , but , without doubt , one that had a religious subtext , as will be subsequently demonstrated . ”

Relying on the testimonial evidence and the parties’ statements in the file ( including the second applicant ’s ) , the court held that the real reason for the parties’ divorce was in fact the exclusion of GPE from the GPE ’s Witnesses Congregation on DATE :

“ ... the withdrawal of the defendant from the GPE ’s Witnesses prompted the applicant to firstly leave him , and then , after having waited for a while for the “ lost sheep to rejoin the flock ” , to finally divorce . ”

In this context ,

“ ... it is irrelevant that the defendant had behaved violently towards the applicant – as the main and essential reason for the parties’ divorce was a religious one , namely the defendant ’s withdrawal from the sect of the Jehovah ’s Witnesses [ ... ] the violent behaviour of the applicant playing a subsidiary role . ”

The court further held that “ it is notorious that the members of the GPE ’s Witnesses sect marry only within the Congregation ” , and if , after getting married , CARDINAL of the members grows distant from the religion , and attempts to bring him back into the fold are unsuccessful , a divorce becomes even more necessary . Consequently , the court considered that PERSON had sought to take the following into consideration :

“ ... she has a duty to the child , but also to God , to protect the child from any influence that would jeopardise his soul and his spiritual growth , including influences from his father , if not from his father in the first place [ ... ]

[ I]t emerges that it was imperative that the defendant should be prevented from having any contact with the child . Although simple and clear , [ the achievement of ] this desired goal seemed to be undermined by an insurmountable obstacle – the law , which allows the parent without custody to continue to have personal contact with the child [ ... ]

[ T]he applicant , pragmatic , set herself a more modest goal , appreciated as legally possible – the limitation of the father ’s visiting rights by a court judgment [ issued ] in the preliminary stage [ of proceedings ] , followed by a second step , which was to attempt in any way or by any possible stratagem to completely forbid the defendant to enforce the judgment in respect of contact with the child . ”

The court further held as follows :

“ ... based on the evidence produced in the file , it can not be established with certainty whether the applicant has herself caused the injuries to the child attested in the medical reports , but such a possibility can not be completely excluded . ”

In supporting such a hypothesis , the court considered as follows :

“ ... it could be presumed that DATE , when GPE went to the applicant , [ armed ] with an enforceable judgment ( of CARDINAL DATE ) , intending to see his child , the applicant , taken by surprise , desperate , decided to resort to this extreme solution , telling herself , in order to comfort her own conscience , that a good purpose ( saving the soul of the child from “ Satan ’s claws ” ) justified the means ( the committal of - at least - one criminal act – defamatory denunciation against the defendant ) . ”

A second hypothesis explaining the minor ’s injuries was advanced by the court :

“ ... it is quite possible that the attested injury could have been the consequence of acute constipation on the part of the minor , and that the applicant simply took advantage of the circumstances and lodged a request to deprive the defendant of his parental rights . ”

In any case , the court seemed to favour the first hypothesis , relying on the chronology of the events which had allegedly occurred in DATE , as the first applicant had herself taken the initiative at that time to allow GPE to take the second applicant to his home for a longer period of time than that established in the judgment regulating his contact rights ( DATE ) . The first applicant ’s explanation that she had acted in that way because she had previously been threatened with death by GPE and because she had been advised by the police to comply with the court order allowing GPE contact rights was considered insincere .

The court concluded that the first applicant ’s initiative of giving the second applicant to his father was part of a bigger plan , arranging the set - up prepared for GPE

The polygraph test and the psychiatric report regarding the parties , as well as the psychological evaluation of the second applicant ’s answers to the court ’s questions , were never pursued :

“ ... after consultation , both the president of the court and the forensic expert reached the conclusion that the applicant could have been CARDINAL of the few persons who could “ defeat ” even the polygraph . ”

The president of the court consequently decided to try to make the applicant aware of her wrongdoing DATE in the event that the accusations against GPE were , indeed , unfounded – and he therefore invited the first applicant and the second applicant to a meeting at the court .

Following the meeting held at an unspecified date in DATE , the applicant , through her lawyer , imposed “ some unacceptable and unspeakable conditions ” to be fulfilled when performing the polygraph test . As this means of evidence was not , as such , provided for in NORP procedural legislation , the court “ was forced ” to conclude that the test could not be administered :

“ The court assesses these conditions as being a disguised and diplomatic refusal by the applicant to take the test , and such a refusal leads to the conclusion that it is highly possible that the applicant wrongly accused the defendant , GPE ”

DATE . As similar “ unreasonable and impossible conditions ” were formulated by the first applicant ’s lawyer for the evaluation of the second applicant ’s previous answers ( for instance , the child was to be recorded throughout so that the first applicant could , if necessary , express a point of view ) , the court felt obliged to acknowledge that the first applicant was resistant to such a means of acquiring evidence , and the evaluation was never pursued .

However , the court had several separate discussions with the second applicant , who , when questioned , stated , inter alia , as follows :

“ ... his father left the religious organisation before he was even born , because “ Satan had grabbed him ” ,

and that

“ ... he did not play much with the neighbour ’s children , as they were not “ witnesses ” , and therefore they were bad ” .

The court also held that :

“ The child asserted that he had been molested by his father , who had threatened to kill him if he revealed anything of the incident to his mother ( recorded statement ) .

The child had indeed stated to the President of the court that he did not wish to see his father . ”

The second applicant ’s statements were not , however , taken into consideration by the court , as the court was convinced that all of them had in fact been induced by his mother , and did not reveal the child ’s real thoughts and wishes :

“ ... to any minor DATE , a parent or a teacher who is close to the child could easily inculcate any ideas ... ”

Consequently , the court found :

“ ... a child will immediately and without reserve accept that a situation has actually occurred as inculcated , even if he himself has no recollection of such a situation . ”

Relying on all the evidence and the presumptions drawn from the first applicant ’s refusal to allow new evidence ( reports ) to be collected , the court held as follows :

“ ... the court knows that the applicant never actually wanted the defendant to be able to see the child , and to this end she went as far as to disobey a previous court order ( the judgment of DATE ) .

It only remains for the prosecutor to remove any doubt as to this matter ( the criminal complaint lodged by the applicant ) , so that the applicant can then be brought before a court for resisting the enforcement of the judgment of DATE ...

If a psychiatric report had ever been produced , the court would have found out whether the applicant was or was not suffering from a “ split personality syndrome ” [ ... ] because the applicant leaves the impression of having a double personality , between the CARDINAL parts of which there is no communication whatsoever ... ”

Therefore , it is the defendant who seems more entitled to ask that the mother should be deprived of her parental rights . ”

PERSON challenged the above - mentioned decision , essentially alleging that : the court had used and interpreted the second applicant ’s allegations , although they had had never been transcribed or attached to the case file ; and the court had reasoned with a logic that had nothing to do with the case itself , but rather had been based on the judge ’s own apparent obsessions , and which , in any case , did not rely on the documentary evidence adduced ( medical reports , psychological evaluations of the child ) , which was all in support of the truth – that the second applicant had been sexually abused by his father . Documents attesting to the first applicant ’s sane state of mind had also been ignored , the court preferring to believe that the first applicant had been suffering from “ psychological deviations of a mystical nature ” . In summary , the court had obviously disapproved of the applicant and had “ treated her like a criminal because she was a member of the NORP sect of GPE ’s Witnesses ” , which organisation was in fact formally recognised in NORP law .

In its judgment given on DATE the court made a fresh assessment of all the evidence and tried to strike a balance between the importance of respecting the presumption of innocence favouring GPE , and the necessity of protecting the child ’s best interests .

In doing so , the court held that until the defendant was found guilty by a final decision , he had to be considered innocent , and therefore he could not be denied his right to have a personal relationship with his son .

However , it also determined the following :

“ ... the principle of the child ’s best interests must be kept in mind , especially as long as the possibility still exists that the child was molested by his father , an experience which would undoubtedly mark him psychologically for the rest of his life . ”

The court therefore considered that until the criminal proceedings were over , the second applicant would be better protected if his father was only allowed to see him every first and third DATE , TIME , at the office of the first applicant ’s legal representative . The first applicant was not to be present during these visits .

DATE . Both the first applicant and GPE appealed against the decision of DATE on points of law . PERSON criticised the assessment of evidence made by the court , as all documents and testimonial evidence had attested that it was necessary that the first applicant should be present when GPE spent time with the second applicant .

D.C. contested the judgment , alleging that the solution envisaged by the court had placed him in a position in which it was impossible to establish a personal relationship with his son ; that the court had also disregarded the presumption of innocence operating in his favour , particularly given that the prosecutor had decided on DATE not to indict him ; and that the court had misinterpreted the notion of “ best interests of the child ” , which implied , per se , the existence of a relationship between a child and his father .

On DATE PERSON legal representative adduced documentary evidence to the effect that the prosecutor ’s decision not to charge GPE had been contested before the courts and that a criminal trial was pending .

On DATE ORG dismissed the appeal on points of law formulated by the first applicant against ORG judgment . It allowed GPE ’s appeal , quashed the judgment given on appeal by ORG and dismissed PERSON appeal against the first - instance court ’s decision . In doing so , the court held as follows :

“ ... it did not emerge from any evidence in the file that the father had an aggressive attitude towards the child . It has been shown with certainty that the conflict had ignited between the CARDINAL parents and in the end it lead to their divorce .

The mother ’s bad faith was evident , having in mind the conclusions of the forensic report attesting to dissimulation on her part .

According to the testimonial and expert evidence available in the file , the rare meetings between father and son had been normal and the child was happy every time he met his father .

Moreover , the fact that the father was unable to see his son anymore following the child ’s reunification with his mother as a result of the mother ’s refusal to accept the enforcement of a final judgment allowing contact rights for the father can not be ignored either . The applicable legal provisions provide for the right of the divorced parent who has not been entrusted custody of the child to preserve personal ties with the child . ”

“ ... when dismissing the appeal on points of law , the court also had in mind the prosecutor ’s decision of DATE not to institute criminal proceedings against GPE and the best interests of the child in respect of preserving personal ties with his father . ”

On DATE , PERSON lodged a criminal complaint against GPE , accusing him of having hit her , threatened to kill her and slandered her when coming out of a court hearing regarding his contact rights . The evidence produced in the file included CARDINAL documents attesting that GPE had already been fined for disturbing the public order at the child ’s kindergarten and at their home . ORG held that GPE had committed the unlawful acts alleged and sentenced him to CARDINAL months’ imprisonment and fined him , penalties imposed by law . Under the civil head of the first applicant ’s claim , GPE was ordered to pay the appropriate pecuniary and non - pecuniary compensation to the first applicant . The decision was appealed against by GPE The appeal was dismissed on DATE by ORG . The court held that the sanctions imposed had been appropriate , as the victim had been shown to have been living in fear , the defendant ’s aggressive behaviour forcing her to repeatedly change her and the second applicant ’s domicile .

On DATE , PERSON sister , PERSON , lodged a criminal complaint against GPE , alleging that she had been hit and insulted by him . She submitted a medical certificate attesting to wounds and injuries requiring DATE to heal . The court found GPE guilty as charged , as he had “ proved to be highly destructive and aggressive , behaving very violently ” . GPE was sentenced to DATE of imprisonment and a criminal fine , both penalties being imposed by law . The victim was awarded pecuniary and non - pecuniary damage . An appeal by GPE was allowed by ORG on DATE , which sentenced him to CARDINAL months’ imprisonment and a criminal fine , penalties imposed by law .

Following a criminal complaint lodged by the GPE ’s Witnesses Congregation on DATE , GPE was convicted of criminal damage by ORG and ordered to pay both a criminal fine ( amenda penală ) and the civil damages claimed by the ORG . The judgment became final after an appeal lodged by GPE was dismissed on DATE .

The relevant provisions with respect to custody rights and family issues are to be found in ORG v. GPE ( I ) ( dec . ) , no . CARDINAL , CARDINAL DATE .

Section CARDINAL of the NORP LAW provides for the fundamental equality of spouses as regards parental rights and responsibilities and makes it clear that the interests of children are paramount .

The relevant provisions of LAW are worded as follows :

“ ( CARDINAL ) Injuries or any other violent actions which cause physical pain are subject to imprisonment of DATE or a fine .

( CARDINAL ) A criminal case shall be initiated upon a complaint by the injured party . In the event that the unlawful act has been committed by a family member , the criminal case may be initiated upon the LOC own motion .

( CARDINAL ) Reconciliation by the parties removes criminal responsibility . ”

“ ( CARDINAL ) Sexual intercourse between persons of the same sex , carried out in public or having as its consequence public scandal , is punishable by imprisonment of DATE .

( CARDINAL ) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of DATE and prohibition of certain rights .

( CARDINAL ) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing a wish , or which is performed through coercion , is punishable by imprisonment of CARDINAL and prohibition of certain rights . ”

“ ( CARDINAL ) Acts of sexual perversion committed in public shall be punishable by imprisonment under stringent conditions of from DATE .

( CARDINAL ) Acts of sexual perversion involving a person under the age of CARDINAL shall be punished by imprisonment under stringent conditions of from DATE and the prohibition of certain rights .

( CARDINAL ) The same penalty shall also sanction acts of sexual perversion involving a person aged DATE if the act is committed by a guardian or curator or by a person charged with his or her supervision or care , by a physician , teacher or professor or educator in that role , or if the perpetrator has abused the victim ’s confidence or authority or influence over him or her . ”


CASE OF URBARSKA OBEC TRENCIANSKE BISKUPICE  v. SLOVAKIA

Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Violation of P1-1 (transfer of ownership of the land and compulsory letting of the land);Just satisfaction reserved

The applicant is a registered association of landowners ( pozemkové spoločenstvo ) . It is a legal person with its registered office in LOC . It was entered in the official register with effect from DATE . PERSON , its president , lodged the application on the applicant 's behalf .

NORP Under the communist regime in GPE owners of land were in most cases obliged to put their land at the disposal of ORG - owned or cooperative farms . They formally remained owners of the land but in practice had no possibility of availing themselves of the property .

Some of the land in question was , for various reasons , not cultivated by the farms . It was the ORG policy to promote the use of such land for gardening . For that purpose allotment gardens ( záhradkové osady ) were established , mainly in the vicinity of urban agglomerations . Individual plots of land were put at the disposal of persons belonging to GPE ORG ( Slovenský zväz záhradkárov ) , who were allowed to cultivate the land as a pastime activity for their individual needs .

In the context of GPE 's transition to a market - oriented economy following the fall of the communist regime , ORG adopted LAW CARDINAL ( for further details concerning the relevant law and practice see point LAW below ) , the purpose of which was to mitigate certain wrongs and to improve the care of agricultural and forest land .

Under LAW CARDINAL the plots of land on which allotment gardens had been established were not to be restored in natura to the original owner where ownership of the land had passed from the original owners to the ORG or a legal person . In such cases the original owners were entitled to compensation in kind or in pecuniary form . In this category of cases the legislator gave precedence to legal certainty for the existing users of the property , as the use of land for gardening was considered to be of greater public interest than restoring the land in natura to its original owners .

In the second category of cases , where the original owners maintained their ownership rights , albeit in name only ( nuda proprietas ) , LAW DATE established conditions enabling the owners to enjoy their property rights to a greater extent . In particular , it provided for the land to be let to the existing users , with a notice period expiring on the date when the temporary right to use the land came to an end . The tenants were , however , entitled to have the lease extended by DATE unless an agreement to the contrary was reached between the parties . The landowners were also entitled to request , within DATE of the coming into effect of the CARDINAL Act , the exchange of their property for a different plot of land owned by the ORG .

The above approach , permitting the owners to recover full possession of their land after the expiry of DATE for which the tenants had the right to have the lease extended , was modified with the adoption of LAW . As a result , owners have only a limited possibility of terminating the lease , mainly on the grounds of the tenants ' failure to comply with their obligations . The position of the tenants has been strengthened in that they are entitled to acquire ownership of the land they use for gardening . As to the owners , Act CARDINAL gives them the right to obtain either a different plot of land or pecuniary compensation .

In introducing LAW the legislator abandoned the philosophy of giving general priority to the rights of the owners of plots of land on allotment sites and took the position that it was in the general interest that the rights of persons who had been using the land for gardening should prevail .

The land owned by the predecessors of the members of the applicant association was put at the disposal of the agricultural cooperative in GPE . The owners ' formal title to the land remained unaffected , but they had no possibility of using it in practice .

On DATE the cooperative farm let the land , free of charge , to the GPE branch of ORG ovocinársky a záhradkársky zväz ) , as ORG was known at the time . The contract was to expire on DATE unless the parties reached an agreement on its extension . The tenant was to return the land to the lessor in its original state on termination of the lease .

On DATE the authorities approved the establishment of the “ GPE ” allotment gardens on the land in question , located in an industrial area on the outskirts of the town of PERSON . The project envisaged the apportionment of CARDINAL individual plots with a surface area of QUANTITY on which garden huts with a surface area of QUANTITY would be built . Re - cultivation of the land and communal facilities such as a road and a parking area , water supply and a fence at the allotment site 's boundaries were also planned .

The local branch of the gardening association subsequently concluded separate contracts with its members . Individual plots of land were thereby put at the latter 's disposal until DATE . The gardeners obtained a permit to build huts . Unless the lease contract was extended before DATE , the huts were to be entirely removed by the gardeners .

In DATE the present members of the applicant association inherited the title to the land where the GPE allotment gardens had been established .

On DATE the applicant association submitted a draft rent contract to a representative of the gardening association . On CARDINAL DATE the president of the PERSON allotments rejected the proposal as being unacceptable . Reference was made to negotiations about a DATE contract under Act CARDINAL pending a decision on the ownership of the land .

DATE the Trenčín municipality charged the applicant CARDINAL,CARDINAL.CARDINAL NORP korunas ( SKK ) DATE in real property tax in respect of the land used by the gardeners . The tax was based on municipal regulations fixing the tax on gardens at SKK QUANTITY per square metre .

NORP The applicant submitted copies of bank statements indicating that GPE and ORG had paid to it , following the entry into force of Act CARDINAL , SKK CARDINAL as a yearly rent for the use of QUANTITY of land . That amount corresponds to FAC per square QUANTITY .

The applicant association unsuccessfully attempted to recover possession of the land . For that purpose it offered to compensate the gardeners for their existing property attached to the land .

On DATE the allotment gardeners initiated proceedings under LAW with a view to having the ownership of the land transferred to them .

On DATE ORG granted the request to start proceedings under LAW . ORG upheld this decision on DATE .

On DATE ORG dismissed an action which the vice - president of the applicant association and several other persons had lodged against the above decision of ORG . ORG found that the statutory requirements for bringing proceedings under sections CARDINAL et seq . of LAW had been met .

On DATE ORG in GPE made public the consolidation project pursuant to LAW CARDINAL . The president of the applicant association as well as all the other landowners whose address was known were notified of the project and informed that the data contained therein could be challenged within DATE .

The letter stated , in particular , that CARDINAL part of the applicant 's land ( QUANTITY ) had been valued at FAC per square metre and the other part ( QUANTITY ) at FAC per square metre . The major part of the land to be provided to the applicant in compensation was valued at SKK QUANTITY . The valuation had been carried out in accordance with the relevant administrative regulation . It was based on the classification of the land and its quality at the time when the tenants had acquired the right to use the land .

Some of the allotment gardeners submitted their comments on the project . The authorities approved the project on DATE .

On DATE a decision was issued to carry out the consolidation project . On DATE ORG in GPE dismissed the appeal lodged by the landowners .

The gardeners subsequently paid the purchase price for the QUANTITY of the applicant 's land to ORG . On DATE the applicant association received QUANTITY of different land in compensation . On DATE ORG in GPE approved the manner in which the consolidation project had been implemented . Its decision became final on DATE . On DATE the ownership of the relevant plots of land passed formally to the persons involved .

The zoning plan in respect of the area in which the GPE allotments are situated was approved in DATE . It indicates that the whole area forms part of a “ production and services zone ” . The zoning plan does not foresee that the land on the allotment site will be used for its current purpose in the future . At present an industrial park is in the process of being established in the vicinity of the allotments . The land within the allotment site has not been included in the project at this stage .

According to information in the land register , CARDINAL gardeners from the GPE allotments sold their plots to other persons DATE .

On DATE ORG in GPE , at the ORG 's request , explained that the PERSON allotment gardens in GPE were situated on land which , at the time of their establishment , had been derelict and had served as a municipal dump . The surface area of the applicant 's land which fell under LAW was QUANTITY . The surface area of the land which the applicant had received in compensation was smaller as it was arable land of higher quality and value . The document further indicated that the value of the applicant 's land taken into account in the consolidation proceedings had been the value on DATE when the allotments were established . The same regulation relating to the value of real property for administrative purposes had been applied in valuing the substitute land .

In DATE CARDINAL of the representatives of the applicant association sold to a company a plot of land in the vicinity of the GPE allotments for SKK CARDINAL per square metre . Prior to the sale , an expert had valued the land at SKK FAC . On DATE , the same company offered to buy different plots belonging to the applicant association in the area for SKK QUANTITY .

In DATE , at the ORG 's request , an expert established the value on DATE of both the land on the allotment site and the land which the applicant association had received in compensation . The expert calculated the value for general purposes of the land on the allotment site at SKK CARDINAL per square metre . The location of the land in an industrial zone increased its value considerably according to the opinion .

The same expert assessed the general value of the other plot of land at SKK CARDINAL.CARDINAL per square metre . The opinion stated that the substitute plot of land was situated between a motorway and a slip road and that a highvoltage line was erected above it . As a result , multiple restrictions applied to the use of the plot . No construction activity was envisaged in the area .

On DATE a different expert , at the ORG 's request , established the value in DATE of the applicant 's land at SKK CARDINAL , or QUANTITY . The expert calculated the value of the land on DATE at SKK CARDINAL , that is , CARDINAL per square metre . The gardeners ' investments ( huts , fence , wells , permanent vegetation , etc . ) were tentatively valued at SKK CARDINAL per square metre of land in DATE . The general value of the land including the gardeners ' investments was thus SKK QUANTITY . Finally , the expert assessed the general value in DATE of the arable land which the applicant association had obtained in compensation at SKK CARDINAL per square metre .

On DATE , at the applicant 's request , a private company assessed the value on DATE of the applicant 's land on the allotment site at FAC . That sum corresponds to approximately SKK QUANTITY . In a document dated DATE , at the applicant 's request , the company in question submitted comments on the above opinion of DATE . The view was expressed that the expert 's conclusion was probably not in line with local market prices . Plots of land similar to those used by the gardeners , including gardeners ' investments , were most frequently sold for CARDINAL and QUANTITY , whereas free plots of land outside allotments were being sold at FAC per square metre in that area . The use of the land by gardeners had rather a negative impact on its general value . Land in the area in question could be let out for CARDINAL per square metre yearly , its value for general purposes being between SKK CARDINAL and QUANTITY .

In a letter addressed to the Government 's Agent on DATE , ORG in PERSON , having examined the comments submitted by the above private company , expressed the view that the expert who had submitted the opinion on DATE had proceeded in accordance with the relevant law .

LAW CARDINAL ( PERSON o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku ) entered into force on DATE .

Section CARDINAL(CARDINAL ) provides that the purpose of land consolidation within specific areas is to establish integral economic units , in accordance with the needs of individual landowners and with their consent , in line with public needs as regards creation of the landscape , the environment and investment activities .

Paragraph CARDINAL of section CARDINAL provides that , as of the entry into force of the LAW and unless a different agreement is reached with the owner , the user of the land shall acquire tenancy rights in respect of it .

Under section CARDINAL ) , as in force until DATE , in cases where the land was used by individual gardeners on an allotment site the tenancy could not be terminated before expiry of the period for which the land had been originally put at the disposal of the users . Unless the parties otherwise agreed , the tenants had the right to have the tenancy extended by DATE . The rent and the purchase price in respect of such land were to be determined on the basis of the classification and quality of the land at the time when the gardeners ' right to use it had been established . The tenants had the right of pre - emption should the owner decide to sell the land .

Section CARDINAL(CARDINAL ) entitled the owners of land used by allotment gardeners to request , within DATE of the entry into force of the LAW , exchange of the land for a different plot of land owned by the ORG . The land to be proposed in exchange had to correspond , as regards both size and quality , to the original land and it was to be situated , where possible , in the same area .

LAW DATE ( PERSON o pozemkových úpravách , usporiadaní pozemkového vlastníctva , pozemkových úradoch , pozemkovom fonde a o pozemkových spoločenstvách ) entered into force on CARDINAL DATE .

Section CARDINAL provides that land consolidation consists of the rational arrangement of land ownership in a specific area in accordance with the requirements of the protection of the environment and the creation of ecologically stable territorial systems , the functions of agricultural land and economic and production criteria applicable to modern agriculture and forestry .

Under section CARDINAL ) , land consolidation pursues the aim , inter alia , of resolving issues and eliminating obstacles related to ownership and possession / occupancy of land which arose as a result of historical developments prior to the entry into force of the LAW .

Section CARDINAL(CARDINAL ) provides for the possibility of transferring the ownership of land on allotment sites to the tenants , subject to compensation of the landowners .

Act CARDINAL on the use of plots of land in allotment gardens and arrangements as regards their ownership ( PERSON o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim ) governs the use of land within allotment gardens and the transfer of ownership rights in respect of such land . It entered into force on DATE and took effect on DATE . It repealed section CARDINAL ) of LAW DATE .

The government explanatory report of DATE which was submitted to ORG together with the draft Act indicates that CARDINAL hectares of land ( MONEY of all agricultural land in GPE ) were used by CARDINAL individual gardeners on CARDINAL allotment sites at that time . Gardening served as relaxation and provided a partial supply of fruit and vegetables to CARDINAL town dwellers in GPE .

According to the report , there was a public interest in land consolidation in GPE . In that context , it was in the general interest to transfer the ownership of land in allotment gardens to the existing tenants as it would provide greater legal certainty for both the gardeners and the owners .

The tenants would obtain ownership of the land which they used and would not risk losing the surplus value which they had added to the land through their work and investments . As to the owners , they were likely to continue to have their rights to avail themselves of the property restricted for a considerable period of time ; the allocation of appropriate alternative plots of land to them would resolve that problem . According to the explanatory report , compensation based on the surface area and quality of the land at the time when the owner had lost the possibility of using the land was appropriate . Pecuniary compensation was to be paid in exceptional cases only where the owner either asked for it or refused compensation in natura .

Under LAW ) , the aims of the LAW are ( i ) regulation of the use of allotment land and ( ii ) definition of the procedure to be followed with a view to land consolidation on allotment sites under a special law ( reference is made to section CARDINAL(CARDINAL ) of LAW DATE ) .

Section CARDINAL(CARDINAL ) of Act MONEY provides that , unless the owner of the land and the gardeners concluded a tenancy agreement earlier under a special regulation , a tenancy comes into being between them as of the moment when the LAW takes effect .

Paragraph CARDINAL of section CARDINAL enumerates the conditions under which the owner of the land is entitled to terminate the tenancy . Such entitlement is limited to cases where the tenant ( i ) is not using the land with due care , ( ii ) has constructed a building on the plot without a permit , ( iii ) has sub - let the land to a third person without the owner 's consent or ( iv ) has failed to pay the rent , despite a prior warning , by DATE following DATE for which the rent is due . An owner who puts an end to a lease is obliged to compensate the tenant for buildings and permanent vegetation as well as for the tenant 's share in the equipment jointly used by the gardeners within the allotments ( section CARDINAL(CARDINAL ) ) .

Pursuant to section CARDINAL(CARDINAL ) , the yearly rent for the use of plots of land in allotment gardens is MONEY of their value as established under section CARDINAL(CARDINAL - CARDINAL ) of Regulation CARDINAL/CARDINAL of ORG , the minimum sum being SKK CARDINAL.CARDINAL per square metre . This provision does not affect the amount of rent which owners and tenants may have agreed under a special law at an earlier date .

The main purpose of Act CARDINAL is to permit the transfer of ownership of the land to tenants of allotments where the majority of tenants so request and where the owners have refused to sell the land at a price not below the level of compensation provided for under LAW . In such cases proceedings are brought , in the course of which a preliminary inventory of the land is prepared . The inventory can be challenged within DATE of its publication . Once the proceedings have started , the competent district office invites ORG to select ORG plots of lands to be offered as compensation to the owners of the land situated on the allotment sites ( sections CARDINAL and CARDINAL) .

Section CARDINAL(CARDINAL ) provides that , prior to approval of such a land consolidation project , the district office involved has to ask the owners to inform it , within DATE , whether they wish to be allocated a different plot of land of corresponding surface and quality in the same area or to receive financial compensation for their land . Where the allotments are situated in a built - up area of a municipality , the owner can claim a different plot of land in a comparable area . Where the owners do not indicate their preference within DATE , they are to receive financial compensation ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL governs financial compensation for plots of land situated in allotments . It is to be determined on the basis of the quality and nature of the land at the time when the gardeners ' right to use it was established . LAW further provides for an increase or decrease in compensation according to the location of the land and possible restrictions on its use .

A consolidation project comprises , inter alia , a recapitulation of the proceedings , a list of tenants with indication of the land they use and its value , a list of owners who have requested financial compensation and its amount and a proposal as regards the situation of the substitute land to be provided to the owners ( section CARDINAL ) .

Under LAW , the district office must publish the consolidation project under LAW and notify the persons concerned thereof . If no objections are filed , the district office must approve the project . If the district office dismisses objections to the data included in the project , a regional administrative authority must re - examine them . Decisions on approval of land consolidation projects can be reviewed by an administrative court .

Sections CARDINAL govern the implementation of land consolidation projects which have been approved . Under section PERSON ) , the entry in the land register must indicate that the new owner of the land on the allotment site is obliged to use it for the same purpose as previously until a different use has been approved .

Section CARDINAL(CARDINAL ) provided that , where the tenants did not pay the compensation due , the ownership of the land was transferred to ORG . The latter could not use the land but could let it to the person who used it . This provision ceased to have effect after ORG declared it contrary to LAW .

Regulation CARDINAL/CARDINAL of ORG of DATE , as amended , governed determination of the price of buildings and plots of land and compensation for the use of land . It concerned the value of property for administrative purposes . It was repealed on DATE and replaced by regulations on the determination of the general value of real property .

Section CARDINAL(CARDINAL - CARDINAL ) provides that the price of plots of land registered as arable land , orchards , LOC , meadows or pastures is to be fixed in accordance with FAC to the Regulation . In the case of meadows and pastures the price is MONEY of the price indicated in Annex CARDINAL . The annex provides for prices per square metre ranging from MONEY to SKK CARDINAL according to the quality and classification of the land .

Pursuant to section CARDINAL(CARDINAL ) , real property tax is payable by the owner as entered in the land register . Where the owner has let another person use the land , the tenant is obliged to pay the tax where the lease has lasted or is to DATE at least , and subject to the registration of the tenant in the land register .

CARDINAL members of ORG and the Prosecutor General brought proceedings before ORG claiming that several provisions of LAW were contrary to LAW and LAW . CARDINAL . In particular , the members of ORG relied on the ORG 's case - law ( PERSON and Others v. GPE , judgment of DATE , Series A no . CARDINAL , § DATE , and GPE and PERSON v. GPE , judgment of DATE , Series A no . CARDINAL , § § CARDINAL and DATE ) , arguing that there existed no genuine public interest in the interference with the landowners ' rights and that the compensation which the landowners were to receive under the relevant provisions of Act CARDINAL was not appropriate .

DATE . Both petitions were examined jointly at a plenary meeting of ORG .

On CARDINAL DATE ORG concluded that section CARDINAL(CARDINAL ) of LAW was contrary to , inter alia , the constitutional protection of ownership rights . It dismissed the remainder of the submissions .

ORG noted that the regulation of relations in respect of land used for gardening in allotments mainly concerned , as in the case of restitution laws , the undoing or mitigation of the wrongs which had occurred in the past when the principle of the rule of law had not been respected . The legislator had a certain margin of appreciation when deciding on the relevant issues , provided the constitutional guarantees were upheld .

With regard to the compulsory letting of the land to the gardeners under LAW CARDINAL/CARDINAL , it was merely a temporary measure pending the transfer of its ownership to the gardeners in accordance with the provision of that LAW . It pursued the aim of providing the users with legal certainty and of ensuring optimal use of the land in question with due regard to the requirements of the landscape and the environment . It was as such in the public interest . The measure was limited in duration and it was not disproportionate as it filled the gap which arose following the quashing of section GPE ) of LAW DATE . ORG , by obliging the owners to let the land to the gardeners , had not overstepped its margin of appreciation and had struck a fair balance between the general interest and the protection of individuals ' rights . Section CARDINAL was therefore not contrary to LAW or its constitutional equivalent .

As to the argument that the rent payable under LAW CARDINAL was disproportionately low , ORG held that LAW No . CARDINAL imposed on the Contracting Parties to the Convention no specific obligations as regards compensation for the use of property in the general interest . There was no appearance that the relevant provision was unconstitutional .

The plaintiffs also argued that the transfer of ownership of the land to the gardeners under sections CARDINAL et seq . of Act MONEY was not in the general interest as it restricted the rights of the owners to the benefit of a different group of individuals without any relevant justification .

In ORG view , that transfer of ownership was to be seen in the broader context of land consolidation , the purpose of which was set out in section CARDINAL of LAW DATE and in section CARDINAL(a ) of LAW DATE . Consolidation pursued the aim of setting up integrated land entities in accordance with the needs of individual owners , with their consent , and with due regard to general requirements as regards the creation of the landscape , the environment and investment development . Land consolidation was also justified with a view to adjusting the existing relations between owners and users and eliminating any obstacles which had arisen as a result of past developments . Sections CARDINAL et seq . of Act CARDINAL in no way affected the above general interest in land consolidation .

The plaintiffs further alleged that the compensation for land under LAW CARDINAL was inappropriate as it was substantially lower than the market value of the land .

DATE . ORG noted that the owners had the choice between alternative plots of land and financial compensation . The gardeners could not be held liable and they should not be penalised for the fact that the owners had been deprived of the possibility of enjoying their property under a regime which had disregarded democratic principles . Furthermore , the users , by cultivating the land , had substantially increased its value . ORG therefore accepted as just the relevant provisions under which compensation to the owners should be based on the value of the property at the time when the gardeners had started using it . The compensation under LAW was therefore appropriate and compatible with the requirements of LAW No . CARDINAL .

Finally , ORG found that section CARDINAL(CARDINAL ) of LAW was unconstitutional as there was no justifiable public interest in transferring ownership of land to the ORG in cases where the user had failed to pay the amount due .

In a separate opinion CARDINAL judges stated that the compulsory letting under LAW CARDINAL was unconstitutional and that the compensation payable under LAW was not appropriate as it was based on the value of the property at the time when the gardeners had acquired the right to use the land .

The dissenting judges expressed the view that the parties to proceedings under LAW were in an unequal position . In particular , the applicable law did not permit the administrative authorities or courts called upon to review their decisions to balance the interests of the persons involved , assess whether the transfer of ownership was justified or examine the question whether the compensation provided to the owner was appropriate .

In accordance with its established practice , the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules ( see , for example , I. ÚS CARDINAL/CARDINAL , decision of DATE ; II . ÚS CARDINAL/CARDINAL , decision of DATE ; NORP . ÚS CARDINAL/CARDINAL , decision of DATE ; or PERSON . ÚS CARDINAL , decision of CARDINAL DATE ) . Such proceedings can be brought only by the persons enumerated in LAW including , inter alia , onefifth of the members of ORG and ORG .


Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

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

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

The applicant was the chairman of ORG ( “ the NORP ” ) .

In DATE the ORG concluded a construction contract with ORG of LOC of GPE ( “ the ORG ” ) according to which the ORG agreed to repair the heating system in CARDINAL of the district ’s public schools . In DATE a similar contract was concluded with ORG of GPE ( “ the NORP Education Department ” ) .

Although the ORG had completed its contract obligations , it did not receive any payments under either contract .

The ORG , represented by the applicant , lodged an action against ORG . By a judgment of CARDINAL DATE ORG ordered ORG to pay the Cooperative CARDINAL NORP manats ( NORP ) .

Subsequently , on an unspecified date ORG revised its judgment and reduced the awarded amount to GPE .

No appeal was filed against the judgment and it entered into force . In DATE ORG issued a writ of execution of the judgment .

Following a number of complaints by the applicant to the enforcement authorities , it appears that on an unspecified date in DATE the judgment was partially executed and LAW of the judgment amount paid to the ORG . However , despite the applicant ’s continuous complaints to ORG ( NORP rayon PERSON və ORG şöbəsi ; “ ORG ” ) , the remainder of the judgment award , amounting to CARDINAL , was not paid .

The ORG lodged a new action against ORG and ORG complaining about non - execution of the judgment . On DATE ORG ordered the defendants to comply with the judgment of DATE . On DATE ORG quashed this decision , finding that the complaints concerning non - enforcement of final judgments should be directed against ORG and not the original defendant .

The ORG lodged another action asking the court for “ indexation ” of the judgment amount due to inflation . On DATE ORG No . CARDINAL granted this request . It found that , taking into account the inflation , the remainder of the amount to be paid by ORG pursuant to the judgment of DATE constituted ORG .

The ORG , again represented by the applicant , lodged a separate action against ORG . By a judgment of CARDINAL DATE ORG ordered ORG to pay the ORG AZM CARDINAL .

Although the applicant sent numerous inquiries to ORG within DATE , the judgment was not enforced .

The ORG lodged a new action against ORG and ORG complaining about non - execution of the judgment . On DATE the ORG ordered the defendants to comply with the judgment of DATE . On CARDINAL DATE ORG upheld this decision .

The ORG lodged another action asking the court for “ indexation ” of the judgment award due to inflation . On DATE ORG No . CARDINAL granted this request . It found that , taking into account the inflation , the amount to be paid by ORG pursuant to the judgment of DATE constituted NORP CARDINAL .

According to the Government the delayed execution of the judgments of DATE and DATE was due to the fact that the ORG ’s bank account was closed DATE for unspecified reasons .

On DATE the outstanding amounts awarded by both judgments were transferred to an alternative bank account as directed by the applicant .

By a letter of DATE addressed to ORG , the applicant acknowledged the receipt of the outstanding amounts and noted that he had no further complaints before the domestic authorities concerning the execution of the judgments of CARDINAL DATE and DATE .

In accordance with LAW of DATE a ORG is a type of commercial company which is a voluntary union of individuals or legal entities established for the purpose of satisfying material and other needs of its members through consolidation of their material contributions ( Article CARDINAL ) . A cooperative can be established by CARDINAL members ( Article CARDINAL - CARDINAL.CARDINAL ) .

A “ full ” member , in essence , enjoys rights similar to those of founders or shareholders of other types of legal entities , including rights to participate in the management and to receive a share of the cooperative ’s profits ( Articles CARDINAL and CARDINAL in fine ) . An “ associative ” member ’s rights to participate in the management are limited ( LAW . The cooperative ’s profits are distributed to the members in accordance with their shares , as well as the extent of their participation in the function of the cooperative , by way of contributing personal labour or otherwise ( LAW .

The supreme management body of a cooperative is the general meeting of members . Each member has CARDINAL vote at the general meeting regardless of the size of his or her contribution to the cooperative ’s fund ( Articles CARDINAL and CARDINAL ) .

The executive bodies of a cooperative are a management board and/or a chairman . A cooperative ’s chairman may be elected only from among the cooperative ’s members . The chairman is elected for a specified term at the general meeting of members and has a right to represent the cooperative ( Articles CARDINAL and CARDINAL ) .

Article CARDINAL of LAW DATE provides that legal entities can be represented before courts by their bodies , acting within the scope of powers conferred on them by law , regulations or articles of incorporation of the legal entity , or by representatives acting on the basis of a power of attorney .