CASES OF DE WILDE, OOMS AND VERSYP ("VAGRANCY") v. BELGIUM

Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;No violation of Art. 3;No violation of Art. 8;No violation of Art. 13;Just satisfaction reserved

The purpose of the ORG ’s application is to submit the ORG , Ooms and PERSON cases for judgment by ORG . On several points the Government therein expresses its disagreement with the opinion stated by ORG in its report .

The facts of the CARDINAL cases , as they appear from the said report , the memorials of the Government and of the Commission , the other documents produced and the addresses of the representatives appearing before the ORG , may be summarised as follows :

PERSON , a NORP citizen , born on CARDINALth DATE at ORG , spent a large part of his childhood in orphanages . On coming of age , he enlisted in the NORP army ( ORG ) in which he served for DATE . As a holder of books for a MONEY war disablement pension and a military retirement pension , he draws from the NORP authorities a sum which in DATE amounted to CARDINAL BF CARDINAL . He has work , from time to time at any rate , as an agricultural labourer .

The applicant reported on DATE at TIME to the police station at GPE and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as ORG at Charleroi had refused him an advance on DATE of his pension due on DATE He also stated that he had " never " up to then " been dealt with as a vagrant " . On DATE at TIME , Mr. PERSON , deputy superintendent of police , considered that PERSON was in a state of vagrancy and put him at the disposal of the public prosecutor at PERSON ; at the same time , he asked the competent authorities to supply him with information about ORG . TIME , after being deprived of his liberty since TIME , PERSON attempted to escape . He was immediately caught by a policeman and he disputed the right of the police to " keep him under arrest for TIME " . He threatened to commit suicide .

The information note , dated DATE , showed that DATE and DATE the applicant had had CARDINAL convictions by courts of summary jurisdiction or police courts and that , contrary to his allegations , he had been placed at the ORG ’s disposal CARDINAL times as a vagrant .

On DATE , at TIME , the police court at GPE , after satisfying itself as to " the identity , age , physical and mental state and manner of life " of PERSON , decided , at a public hearing and after giving him an opportunity to reply , that the circumstances which caused PERSON to be brought before the court had been established . In pursuance of LAW of LAW of DATE " for the suppression of vagrancy and begging " ( " LAW " ) the court placed the applicant " at the disposal of the Government to be detained in a vagrancy centre for DATE " and directed " the public prosecution to execute the order " .

After being first detained at the institution at ORG and then from DATE at that of PERSON , PERSON was sent on CARDINALth DATE to the medico - surgical centre at FAC from where he was returned to PERSON on DATE . On DATE , he was transferred to the disciplinary prison at GPE for refusal to work ( Section CARDINAL , sub - section CARDINAL , of the CARDINAL Act ) , and on CARDINALnd DATE to that of PERSON to appear before the criminal court which , on DATE , sentenced him to CARDINAL months’ imprisonment for theft from a dwelling house . He was returned to ORG shortly afterwards .

On DATE May and CARDINALth DATE , that is , DATE after his arrest and DATE after sending his first letter to ORG ( CARDINALrd DATE ) , the applicant wrote to the Minister of ORG invoking Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW . He underlined the fact that on DATE he had received CARDINAL BF in respect of his pension and showed surprise that he had not yet been released . He also complained of being forced to work for the TIME wage of CARDINAL BF . He added that he had refused to work in protest against the behaviour of the head of the block at PERSON who had wrongfully claimed to be entitled to " take " from him PERCENT of his pension . Finally , he complained of the disciplinary measures taken on such refusal - punishment in a cell and confinement without privileges - and of hindrance to correspondence . On DATE , ORG requested the governor of the prison at PERSON to inform PERSON " that his request for release " of CARDINALst May would " be examined in due course " .

The applicant took up his complaints again on DATE and later on DATE . In this last letter , he enquired of the Minister why he had been transferred to the prison at GPE . He also pointed out that there was no work available at this institution which would enable him to earn his " release savings " . On DATE , ORG had him notified that his release before the prescribed period had expired could " be considered " " provided that his conduct at work ( was ) satisfactory " and " adequate arrangements for rehabilitation ( had ) been made " .

ORG wrote again to the Minister on CARDINALth DATE . Due to his pension , he argued , he had " sufficient money " ; in any case , " the results of ( his ) work " already amounted to CARDINAL BF . As regards his rehabilitation , he stated that his detention made it " impossible " ; it prevented him from corresponding freely with employers and the welfare officer had failed to help him . Nevertheless , on DATE , ORG considered that his application " ( could ) not at present be granted " .

On DATE , the applicant wrote once again to the Minister claiming he could find board and lodging and work on a farm .

On CARDINALth and DATE , ORG decided that , at the expiry of the sentence he had received on DATE , the applicant could be released once his rehabilitation seemed ensured by ORG of Charleroi ( LAW of LAW ) .

ORG regained his freedom at GPE on DATE . His detention had lasted DATE , of which DATE were spent serving the prison sentence .

According to a report of ORG , the applicant received only one disciplinary punishment between the beginning of his detention ( DATE ) and the date of his application to ORG ( DATE ) : for refusal to work at PERSON , he was not permitted to go to the cinema or receive visits in the general visiting room until his transfer to GPE .

In his application lodged with ORG on DATE ( No . CARDINAL/CARDINAL ) ORG invoked Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the Convention . He complained in the first place of his " arbitrary detention " ordered in the absence of any offence on his part , without a conviction and in spite of his having financial resources . He also protested against the " slavery " and " servitude " which , in his view , resulted from being obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions .

The Commission declared the application admissible on DATE ; prior to this , the Commission had ordered the joinder of the case with the applications of PERSON and PERSON .

On DATE at TIME , PERSON , a NORP citizen born on DATE at ORG , reported to Mr. PERSON , deputy superintendent of police at GPE , in order " to be treated as a vagrant unless one of the social services ( could find him ) employment where ( he could ) be provided with board and lodging while waiting for regular work " . He explained that of late he had been living with his mother at GPE but that she could no longer provide for his upkeep ; that he had lost a job as a scaffolding fitter at GPE and , in spite of his efforts , had failed to find another job for over a month ; that he no longer had any means of subsistence and that he had been " convicted " in DATE for vagrancy by the police court at GPE .

On DATE at TIME , the police court at GPE , after satisfying itself as to " the identity , age , physical and mental state and manner of life " of PERSON , considered at a public hearing and after giving him an opportunity to reply that the circumstances which had caused him to be brought before the court had been established . In pursuance of LAW of LAW , the court placed him " at the disposal of the Government to be detained in an assistance home " and directed " the public prosecution to execute this order " .

Ooms was detained partly at ORG and partly at PERSON . He also spent DATE at the prison medico - surgical centre at FAC ( DATE ) .

On DATE , that is DATE after his arrest and DATE before applying to the Commission ( CARDINALth DATE ) , the applicant petitioned the Minister of ORG for his release . He alleged he was suffering from tuberculosis and that his family had agreed to take him back with them and place him in a sanatorium . On CARDINALth May , ORG , after receiving the unfavourable opinion of the doctor and of the director of the institution at PERSON , considered the request to be premature .

PERSON again made a petition for release on DATE , this time to the Prime Minister . He pleaded that as " he had been ill since his detention " he had been unable to earn by his own work the CARDINAL BF needed to make up his release savings , and repeated that his mother was willing to have him with her and to take care of him . ORG , to whom the Prime Minister ’s office had transmitted the request , also considered it to be premature ; on DATE , it requested the governor of GPE prison to inform the applicant accordingly .

On DATE , the welfare department of ORG at GPE certified that PERSON would " be given work and lodging in ( their ) establishments immediately on his release " . The applicant sent this declaration to the director of the welfare settlement at ORG on DATE , but without result .

His mother , PERSON . Ooms , confirmed her son ’s declarations by letter of DATE to the same director . In his reply of DATE , the director asked her to produce a certificate of employment , pointing out that " at the time of his possible discharge " , the applicant had to have , besides a resting place , " a definite job by which he ( could ) ensure his upkeep " .

PERSON . Ooms also wrote to the Minister of Justice on DATE , asking for a " pardon for ( her ) son " . On CARDINALrd DATE , ORG informed her that he would be freed when " he ( had ) earned , by his prison work , the sum of money prescribed in the regulations as the release savings of vagrants interned for an indefinite period at the disposal of the Government " .

In a report of DATE drawn up for ORG , the director of the ORG settlement pointed out that PERSON had already received several criminal convictions , that this was his fourth detention for vagrancy , that his conduct could not be described as exemplary , and that his earnings amounted to CARDINAL BF . According to a medical certificate appended to the report , physical examinations of the applicant had revealed nothing wrong . As a result , on DATE , ORG instructed the director to inform the detainee " that his complaints had been found groundless " .

On DATE , Ooms again petitioned the Prime Minister . To justify this step , he cited the negative attitude of ORG . He stated that he was the victim of " monstrous injustices " which he attributed to his being a PERSON . He alleged , in particular , that on DATE , at PERSON , he had been punished with DATE in the cells and a DATE ’s confinement without privileges for refusing to sleep in a foul - smelling dormitory where the light was kept on TIME , that he had been locked up naked and later " lightly clad " in a freezing cell which had brought on an attack of pneumonia and of tuberculosis for which he had had to spend DATE in the sanatorium at the PERSON institution . He also protested against the dismissal of the many petitions for release presented both by himself and by his mother . He finally declared his agreement to the opening of an enquiry for the purpose of verifying the truth of his allegations and he stated that he was ready to take action , if necessary , before a " national authority " within the meaning of LAW ( LAW ) of the LAW .

DATE , the Prime Minister ’s office informed the applicant that his letter had been transmitted to ORG .

Ooms was released ex officio at GPE on DATE , DATE to DATE after being put at the disposal of ORG , first sentence , of LAW ) .

In his application lodged with the Commission on DATE ( No . PERSON ) , the applicant mentioned that he was in the sanatorium of the PERSON institution but that his mother had agreed to have him hospitalised in a " civil " clinic . He added that his illness completely prevented him from working and thereby earning the CARDINAL BF for his release savings ; in any case , he would need DATE to earn such a sum , at the rate of CARDINAL BF per hour . He was therefore surprised that ORG had considered his request for release to be premature .

Ooms , who had meanwhile been transferred to the prison at FAC , supplemented his original application on DATE . He declared that he had for the moment been cured of his pulmonary disease caused by ill - treatment and undernourishment , but his illness had left " traces " which made it impossible for him to perform " any heavy work " . He also stressed that his mother , who was in receipt of a pension , wanted him home with her . In these circumstances he considered he was entitled to be released , and he complained of the NORP authorities’ refusal to recognise this right . Invoking DATE , paragraph ( CARDINAL ) ( b ) and ( c ) ( article CARDINAL - CARDINAL-b , article DATE ) , of the LAW he further maintained that on his arrest he had asked in vain for free legal aid ; this fact was contested before the ORG by ORG .

That part of the application where PERSON complained – apparently in subsequent letters - of ill - treatment and of a violation of his liberty of conscience and religion ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) was declared inadmissible on CARDINALth DATE as manifestly ill - founded ( PERSON to the ORG ’s report ) . On DATE , the Commission declared the remaining part of his application admissible , after having ordered its joinder with the applications of PERSON and PERSON .

PERSON , a NORP citizen born in GPE on DATE , works , at least from time to time , as a draughtsman ; he seems to have had his residence at PERSON .

On DATE , at TIME , he appeared before Mr. PERSON , deputy superintendent of police at GPE ; he carried a letter from ORG requesting that he be given a TIME ’s shelter . He stated he had no fixed abode , no work or resources , and " ( begged ) to be sent to a welfare settlement " ; he pointed out that he had " previously ( been ) in PERSON " and did not wish for " any other solution " . After spending the night in the municipal lock - up , where he had already been TIME , he was taken in charge by ORG on DATE at TIME On DATE , this office certified that so far as its services were concerned there was no objection to Versyp " being but in the charge of the prosecuting officer with a view to his possible placement in a state welfare settlement " : he was " well - known to both ( the ) after - prison care and vagrancy sections " at the office and attempts so far to rehabilitate him had failed due to " his apathy , idleness and weakness for drink " ; in any case , he refused " any other welfare action " , except his detention . As a result , PERSON was immediately put at the disposal of the public prosecutor ’s office .

TIME , the police court in GPE , having satisfied itself as to " the identity , age , physical and mental state and manner of life " of the applicant , considered , at a public hearing and after giving PERSON an opportunity to reply , that the circumstances which had caused him to be brought before the court had been established . In pursuance of LAW of LAW , the court placed him " at the disposal of the Government to be detained in a vagrancy centre for DATE " . It entrusted the execution of this order to the public prosecutor , who on that DATE , CARDINALth DATE , required the director of the vagrancy centre of PERSON to receive PERSON into his institution .

PERSON was detained at different times at ORG , PERSON and GPE .

On DATE , that is DATE after his arrest and DATE before applying to the Commission ( CARDINALth DATE ) , he wrote from ORG to the Minister of ORG requesting his transfer to the solitary confinement division in PERSON . His request was not transmitted to GPE due to the imminent visit of the inspector - general who granted his request DATE .

On DATE , the applicant requested his transfer form PERSON to the prison at FAC where , he thought , the Head of ORG could succeed in getting him " work outside " to allow him " to live as an honest citizen " . He stated that living " with other vagrants in ORG and PERSON " had " shattered " his morale and that he had neglected his work as he had had to receive treatment in hospital twice ; he promised , however , to attend to " ( his ) business outside more efficiently in order to avoid a similar situation recurring " . In a report of CARDINALth May , the director of the PERSON institution pointed out that PERSON , who had CARDINAL criminal convictions and had been detained CARDINAL times for vagrancy , had spent the greater part of his detention in solitary confinement and could not adapt himself to communal life ; the director therefore suggested his transfer to a solitary confinement prison ( op zijn QUANTITY een celgevangenis ) , in accordance with his request . As a result , he was sent on DATE May to ORG and not to that of GPE ; on DATE , he complained of this to ORG , which ordered his return to ORG .

On DATE , PERSON begged the Ministry to grant him the opportunity of rehabilitating himself " in society according to ( his ) aptitudes through the good offices of ORG " . On DATE , the authorities of the ORG settlement informed him , on the instructions of the ORG , that his case would be examined when the amount of his release savings showed that he was capable of doing a suitable job of work .

On DATE , the applicant protested to ORG against this reply . According to him , he had been prevented " by devious means " from earning anything both at ORG and ORG in order " that ( he ) could then be held for an even longer period " . Thus , at ORG they wanted to make him do work for which he was not fit - potato picking - and refused to give him other work which he was able to do . Furthermore , they had purported to forbid him to correspond with the ORG but without success as he had invoked the regulations and informed the public prosecutor ’s office . In short , he felt himself exposed to hostility which made him want to leave ORG for PERSON , or better still , for GPE prison where , he claimed , ORG would find him a suitable job and accommodation " in a hostel in GPE " .

ORG filed this letter without further action ; on DATE , the director of the state welfare settlement at ORG was requested so to inform the applicant .

Versyp was released on DATE , by virtue of a ministerial decision of CARDINALrd DATE ( LAW of LAW ) and after DATE , DATE of detention . On DATE the authorities of the ORG settlement had given a favourable opinion on the new request for release which he had made some time before ; they noted , amongst other things , that he would more easily find a job at that time than at the expiry of the term fixed in DATE by the GPE magistrate , that is in DATE .

In the application which he lodged with the Commission on DATE ( No . CARDINAL/CARDINAL ) and supplemented on CARDINALth DATE , the applicant invoked Articles CARDINAL , CARDINAL and DATE ( CARDINAL ) ( c ) ( article CARDINAL , article CARDINAL , article DATE ) of the LAW . He complained in the first place of his detention : he emphasised that he had a fixed abode at FAC and had never begged and so he was surprised at having been placed in a vagrancy centre . He further alleged that he had had no opportunity of defending himself before the GPE police court on CARDINALth DATE as the hearing had lasted " scarcely TIME " and he had not been granted free legal aid . He also complained of various features of the regime to which he was subjected . In order to prevent him accumulating the CARDINAL BF required to constitute release savings , he had been left , he alleged , for DATE without sufficient work . In a general way , he added , the directors of the various institutions acted in concert in order to prolong the detention of vagrants as much as possible ; the Government , for its part , " encouraged " vagrancy which gave it a labour force almost without cost ( CARDINAL BF per hour at manual work ) and huge profits . Finally , PERSON maintained that his numerous letters addressed to the competent authorities , such as , for example , the inspector of prisons , the public prosecutor ’s office ( DATE ) and the Minister of ORG ( DATE and DATE ) , invariably returned " to the director " who filed them without further action ; these letters were not the object of any decision or , like his request for a transfer to GPE , met with a refusal . CARDINAL of them , that addressed on CARDINALth DATE to the Minister of ORG by registered post , had even been opened by the director of the ORG settlement who had not sent it .

On DATE , the Commission declared the application admissible ; it had previously ordered its joinder with the applications of PERSON and PERSON .

According to LAW vagrants are persons who have no fixed abode , no means of subsistence and no regular trade or profession " . These CARDINAL conditions are cumulative : they must be fulfilled at the same time with regard to the same person .

Vagrancy was formerly a misdemeanour ( Criminal Code of DATE ) or a petty offence ( Act of CARDINALth DATE ) , but no longer of itself constitutes a criminal offence since the entry into force of LAW : only " aggravated " vagrancy as defined in ORG CARDINAL to CARDINAL of the present Criminal Code is a criminal offence and these articles were not applied in respect of any of the CARDINAL applicants . " Simple " vagrancy is dealt with LAW .

According to LAW " every person picked up as a vagrant shall be arrested and brought before the police court " - composed of CARDINAL judge , a magistrate . The public prosecutor or the court may nonetheless decide that he be provisionally released ( LAW ) .

" The person arrested shall be brought before the magistrate within TIME and in his ordinary court , or at a hearing applied for by the public prosecutor for DATE " . If that person so requests " he ( shall be ) granted a CARDINAL ORG adjournment in order to prepare his defence " ( Section CARDINAL of the Act of CARDINALst DATE ) ; neither PERSON , nor Ooms nor PERSON made use of this right .

Where , after having ascertained " the identity , age , physical and mental state and manner of life " of the person brought before him ( Section CARDINAL ) , the magistrate considers that such person is a vagrant , LAW of the DATE Act becomes applicable .

Section CARDINAL deals with " able - bodied persons who , instead of working for their livelihood , exploit charity as professional beggars " , and with " persons who through idleness , drunkenness or immorality live in a state of vagrancy " ; Section CARDINAL with " persons found begging or picked up as vagrants when none of the circumstances specified in LAW ... apply " .

In the first case the court shall place the vagrant " at the disposal of the Government to be detained in a vagrancy centre , for not CARDINAL and not DATE " ; in the second case , the court may " place ( him ) at the disposal of the Government to be detained in an assistance home " for an indeterminate period which in no case can exceed DATE ( see paragraph CARDINAL below ) .

Section CARDINAL was applied to PERSON and PERSON and LAW to PERSON .

The distinction between the " reformatory institutions " referred to as " vagrancy centres " and " assistance homes " or " welfare settlements " ( Sections CARDINAL and CARDINAL of the Act ) has become a purely theoretical one ; it has been replaced by a system of individual treatment of the persons detained .

Detention in a vagrancy centre is entered on a person ’s criminal record ; furthermore , vagrants " placed at the disposal of the Government " suffer certain electoral incapacities ( Articles CARDINAL and CARDINAL of LAW ) .

Magistrates form part of the judiciary and have the status of an officer vested with judicial power , with the guarantees of independence which this status implies ( Articles CARDINAL of the LAW ) . ORG , however , considers that the decisions given by them in accordance with LAW and DATE of LAW are administrative acts and not judgments within the meaning of LAW , sub - section CARDINAL , of LAW of DATE . They are not therefore subject to challenge or to appeal nor - except when they are ultra vires ( see paragraph CARDINAL of the Commission ’s report ) – to cassation proceedings . The decisions of the highest court in GPE are uniform on this point .

As to the PERSON d’État , it has so far had to deal with CARDINAL appeals for the annulment of detention orders for vagrancy . In a judgment of DATE in the ORG case , the ORG d’État did not find it necessary to examine whether the GPE police court ’s decision taken on DATE in pursuance of LAW of LAW emanated from an authority which was " acting as an administrative authority within the meaning of LAW of DATE " ; the appeal lodged by Mr. PERSON on DATE had been dismissed because :

" the decision appealed against ( was ) a preliminary decision which ( had been ) followed by the ORG ’s decision to detain the appellant in a vagrancy centre ... ; the appellant ( could ) not establish that he ( had ) any interest in the annulment of a decision which merely ( allowed ) the Government to detain him , while the actual decision by which he was interned ( had not ) been appealed against " .

As against this , on DATE , that is DATE after the ORG had declared admissible the applications of PERSON , PERSON and PERSON , the ORG d’État gave a judgment annulling the decision by which on DATE the ORG police court had placed a Mr. PERSON at the disposal of the Government in pursuance of LAW of LAW . Before examining the merits , the Conseil d’État examined the admissibility - contested by the Minister of Justice - of the appeal lodged by Mr. PERSON on DATE . In the light of the legislative texts in force , of the preparatory work thereto and of " the consistent case - law of the ordinary courts " , the ORG d’État considered that the placing of a vagrant at the disposal of the ORG does not result from " the finding of a criminal offence " but amounts to " an administrative security measure " and that the decision ordering it is therefore " of a purely administrative nature " " so that no form of appeal is open to the person concerned ... before the ordinary courts " . It added that " such an administrative decision by the magistrate " could not be considered as " a preliminary measure enabling the ORG to take the effective decision on the matter of detention but is itself the effective decision placing the person concerned in a different legal position and is therefore of itself capable of constituting a grievance " ; in any event , " the person concerned is immediately deprived of his liberty without any further decision by the Government " .

Section CARDINAL , sub - section CARDINAL , of the Act of DATE constituting the ORG d’État provides that where both this body and " an ordinary court rule that they are either competent or incompetent to entertain the same proceedings , the conflict of jurisdiction is settled , on the motion of the most diligent party , by ORG " in plenary session . No such conflict appears to have come before the highest court of GPE in vagrancy matters up to the present time .

ORG has had the reform of LAW under consideration for some time . According to the information given to ORG on DATE , the PERSON which it is preparing to submit to ORG provides in particular that an appeal against the GPE decisions may be made to the court of first instance .

" Able - bodied persons detained in a vagrancy centre or assistance home " are " required to perform the work prescribed in the institution " ( Section CARDINAL of the CARDINAL Act ) . Persons who , like PERSON , and PERSON , refuse to comply with this requirement without good reason , in the opinion of the authorities , are liable to disciplinary measures . " Infirmity , illness or punishment may lead to a suspension , termination or stopping of work " ( ORG CARDINAL and CARDINAL , read in conjunction , of LAW of CARDINALst DATE laying down general prison regulations ) .

" Unless stopped for disciplinary reasons " , detained vagrants are entitled to " a DATE wage " known as " allowances " . Sums are retained " for administrative expenses " - " for the benefit of the ORG " DATE and " to form the release savings " which shall be " granted ... partly in cash and partly in clothing and tools " . The Minister of Justice fixes the amount of the said release savings and , having regard to the various categories of detained persons and of work , the wages and the sums to be retained ( Sections CARDINAL and CARDINAL of the CARDINAL Act ; Articles CARDINAL and CARDINAL , read in conjunction , of LAW of CARDINALst DATE ) .

At the time of the detention of the CARDINAL applicants , the amount of the release savings which had to be thus accumulated - sums of money which a vagrant may receive from other sources not being taken into account - was fixed at CARDINAL BF , at least for the " inmates " of welfare settlements ( ministerial circular of CARDINALth DATE ) .

The minimum TIME allowance " actually paid " to detainees - save any deductions made for " wastage and poor work " - was CARDINAL BF up to CARDINALst DATE , on which date it was increased by MONEY ( ministerial circulars of DATE and CARDINALth DATE ) . The allowance was not capable of assignment or liable to seizure in execution and was divided into CARDINAL equal parts : " the reserved portion " which was credited to the person concerned and enabled him to form his release savings and the free portion which he received immediately ( Articles CARDINAL and CARDINAL , read in conjunction , of LAW of CARDINALst DATE ) .

DATE . According to ORG DATE and CARDINAL of LAW of CARDINALst DATE , the correspondence of detained vagrants - who , in this as well as in other respects , are assimilated to convicted persons - may be subjected to censorship except any correspondence with the counsel of their own choice , the director of the institution , the inspector - general and the director - general of the prison administration , the secretary - general of ORG , the judicial authorities , the ministers , the chairmen of the legislative ORG , the King , etc . Their correspondence with the ORG is not mentioned in this Decree but the Minister of ORG informed the governors of prisons and ORG , including those at PERSON and PERSON , that " a letter addressed to this organ by a detainee is not to be censored but should be forwarded , duly stamped for abroad by the sender ... , to ORG ... which shall undertake to transmit it to its destination " ( circular of CARDINALth September CARDINAL as it was in force at the time of the detention of the applicants ; see also paragraph CARDINAL above ) .

" Persons detained in an assistance home " - as PERSON - may not " in any case be kept against their will for DATE " ( LAW , first sentence , of LAW ) . They regain their freedom , as of right , before the expiry of this period " when their release savings ( have reached ) the amount ... fixed by the Minister of Justice " , who shall , moreover , release them if he considers their detention " to be no longer necessary " ( Sections CARDINAL and DATE , second sentence , of LAW ) .

As regards vagrants detained in a vagrancy centre - such as PERSON and PERSON they leave the centre either at the expiry of the period varying from DATE " fixed by the court " or at an earlier date if the Minister of ORG considers " that there is no reason to continue their detention " ( LAW ) ; the accumulation of the release savings and any other means which the detainee might have do not suffice for this purpose .

It seems that no detained vagrant has to date lodged an appeal with the PERSON d’État , under LAW of DATE , for the annulment of a ministerial decision which had rejected his application for release .

Before the ORG and ORG , the CARDINAL applicants invoked Articles CARDINAL , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) ( b ) and ( c ) , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL - CARDINAL , article CARDINAL , article DATE , article DATE , article CARDINAL - CARDINAL-b , article DATE , article CARDINAL , article CARDINAL , LAW ) of the LAW . CARDINAL of them , PERSON and PERSON , also alleged that LAW ) had not been observed .

In its report of DATE , the ORG expressed the opinion :

- that there was a violation of ORG CARDINAL ( article CARDINAL ) ( QUANTITY votes to CARDINAL ) , CARDINAL ( CARDINAL ) ( article DATE ) ( CARDINAL votes to CARDINAL ) and CARDINAL ( article CARDINAL) ( CARDINAL votes to CARDINAL ) ;

- that there was no violation of Articles CARDINAL ( article CARDINAL ) ( unanimous ) and CARDINAL ( CARDINAL ) ( article CARDINAL - CARDINAL ) ( CARDINAL votes to CARDINAL ) ;

- that ORG CARDINAL ( CARDINAL ) ( article CARDINAL ) ( unanimous ) , CARDINAL ( CARDINAL ) ( article DATE ) ( QUANTITY votes to CARDINAL ) , CARDINAL ( CARDINAL ) ( article CARDINAL ) ( QUANTITY votes to CARDINAL ) and CARDINAL ( article CARDINAL ) ( unanimous ) were inapplicable .

The ORG was further of the opinion that " it ( was ) no longer necessary to consider LAW ( LAW ) " ( unanimous ) .

The report contains several individual opinions , some concurring , others dissenting .

After the cases were brought before the ORG the applicants repeated , and sometimes developed , in a memorandum which the ORG appended to its memorial , the greater part of their earlier arguments . They indicated their agreement or otherwise , according to the case , with the opinion of the ORG , to which ORG and PERSON " bowed " as regards LAW ( article CARDINAL ) of the LAW .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

NORP The applicant company is a debt collector . In DATE , it bought a defaulted ORG bond and sued the Government for the debt . After DATE of litigation , on DATE ORG ordered the Government to pay the applicant company MONEY ( “ USD ” ) .

On DATE , ORG of ORG upheld the judgment , but speciﬁed that the debt was to be paid by ORG .

On DATE , the ministry asked the court to stay the enforcement of the judgment until DATE , because there were no funds in the ORG budget of DATE .

On DATE , bailiffs opened enforcement proceedings .

On DATE , the court refused to stay the enforcement because the ministry had failed to prove either that it did not have the funds , or that the funds would become available after DATE .

NORP In DATE , the ministry asked the appeal court to clarify how the judgment was to be enforced .

On DATE , the appeal court clariﬁed that the judgment was to be enforced only once the applicant company had handed in the bond . The applicant company appealed against this decision because the general conditions of the bond ’s issue did not require that it be handed in . In addition , the applicant company argued that the judgment could be enforced on the basis of a writ of enforcement alone , and that the bond was to be returned to the ministry only after the enforcement . On DATE , ORG of ORG dismissed this appeal .

On DATE , the applicant company handed in the bond to the ministry .

Subsequently , the applicant company unsuccessfully sought an injunction to oblige the ministry to enforce the judgment .


Violation of Art. 6-1;Violation of Art. 10

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant , an advocate at the time , acted as defence counsel for a Mr R.

On DATE the Primorskiy District Court of Arkhangelsk , chaired by judge ORG , removed the applicant from his position as PERSON counsel . ORG found that the applicant had acted contrary to LAW and LAW . The court noted , in particular :

“ Persistent and repeated voluntary statements made by [ the applicant ] that he provided legal advice to witnesses DATE S. and at the same time acted as counsel for defendant NORP ... show that [ the applicant ] , in violation of the formal requirements of LAW , provided legal advice and acted as counsel in respect of persons whose interests were in conflict . Therefore , it is not possible for [ the applicant ] to continue to participate in the trial as legal counsel for defendant NORP or to provide legal advice to ORG and S. ”

On DATE ORG found PERSON guilty as charged .

On DATE ORG quashed PERSON NORP 's conviction and remitted the matter for fresh consideration . The court also upheld on appeal the decision of CARDINAL DATE .

On DATE the applicant asked the Presidium of ORG for supervisory review of the judicial decisions to remove him from being PERSON representative .

On DATE judge A. of ORG dismissed the above complaint . In particular , the judge noted as follows :

“ I hereby return your complaint against ... the decisions ... of DATE and CARDINAL DATE without having considered it on the merits . [ The reason for this is that ] ORG of LOC opened NORP 's trial on DATE and it is impossible to verify the lawfulness and inconsistency of the decisions in question . ”

On DATE the applicant filed a complaint against the judges who had participated in the proceedings for the determination of the criminal charge against Mr R. , alleging that they had acted in violation of the rules of criminal procedure by refusing to consider his application for supervisory review in respect of the decision of CARDINAL DATE . The complaint was addressed to the President of ORG of GPE with a copy to the President of ORG . The applicant asked for the President 's intervention which would prompt , in his opinion , ORG to respond to his application for supervisory review .

NORP In particular , the applicant made the following comments in the complaint :

“ ... Judges PERSON and ORG used to “ plough the fields of justice together ” at ORG , and , apparently , they “ continue their joint efforts now ” at ORG ...

... In my opinion , either judge ORG is not quite familiar with the law , which is sad , or judge PERSON wilfully and knowingly restricts my access to court , which is twice as sad ...

... On DATE I received an absolutely unlawful “ brush - off ” reply from judge A ...

... [ Judge PERSON ] could have unglued his posterior from [ his ] seat and brought it to the LOC of ORG ...

... Otherwise , why would judge ORG receive such a salary which I , as a tax payer , contribute to ? ...

... But judge PERSON simply pushed away my [ request for ] supervisory review and , by doing so , he seriously violated the rules of criminal procedure and my constitutional rights ...

... I believe that one telephone call from ORG of GPE will be enough to make ORG consider my complaint on the merits ... ”

NORP The President of ORG forwarded the applicant 's complaint to ORG for further action . The President of ORG lodged a complaint with ORG ( the “ Council ” ) alleging that the above comments were offensive and incompatible with the Advocate 's Code of Professional Conduct . He stated as follows :

“ In our opinion , [ the applicant 's complaint ] contains remarks which are offensive and tactless vis - à - vis certain judges of ORG .

We believe that the content and the style of the complaint are impermissible .

In our view , the reference made by [ the applicant ] in his complaint addressed to the President of ORG that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession .

[ A]dvocates should , under any circumstances , be tactful and correct vis - à - vis their counterparts and public officers , including judges . [ They ] should demonstrate respect towards the court and challenge [ judicial ] acts correctly and in accordance with the law .

Having regard to the above ... I hereby request that you follow up on the applicant 's conduct and inform ORG of the measures taken . ”

On DATE the Council held a disciplinary hearing . The applicant did not challenge the offensive character of the comments . He submitted that he had been , in a way , provoked by the judges ' allegedly unlawful decisions . The ORG granted the complaint and terminated the applicant 's bar membership as of DATE . In particular , the ORG noted as follows :

“ [ The applicant 's complaint ] addressed to the President of ORG of GPE contains tactless remarks in respect of certain judges of ORG , which amounts to a violation of the Advocate 's Code of Professional Conduct ...

The content and the style of the [ applicant 's ] complaint addressed to the President of ORG are impermissible .

The reference made by [ the applicant ] in his complaint addressed to the President of ORG that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession .

[ A]dvocates should , under any circumstances , be tactful and correct vis - à - vis ... judges . [ They ] should demonstrate respect towards the court and challenge [ judicial ] acts correctly and in accordance with the law . ”

The applicant appealed to the court . He claimed that he was disliked by the members of the ORG and their decision had been retaliation against him for his personal views and convictions . He also alleged that the disciplinary hearing had been carried out with certain procedural irregularities .

On DATE ORG dismissed the claim brought by the applicant against ORG seeking reinstatement of his membership . The applicant appealed .

On DATE the applicant asked ORG to transfer the case to another jurisdiction for consideration . The applicant alleged that any judge of ORG would be biased against him because the original complaint which had prompted the disciplinary proceedings against him had been lodged by the President of the said court . On DATE judge PERSON of ORG refused to consider the applicant 's request and returned the relevant documents to him . In particular , the judge informed the applicant as follows :

“ I hereby return your application stating the challenge to the whole composition of ... ORG and advise you that , pursuant to the rules of civil procedure , it is only possible to challenge the specific judges who are appointed to consider your case and not the whole composition of [ the court ] . ”

On DATE ORG upheld the judgment of DATE on appeal . The court dismissed as unsubstantiated the applicant 's allegations of the ORG 's partiality . Nor did it discern any procedural irregularities in the applicant 's disbarment .

The Advocate 's Code of Professional Conduct ( LAW ) establishes that an advocate may be subject to disciplinary proceedings for a failure to abide by legislation concerning advocates ' activities and advocacy and for failure to abide by LAW itself . Any impropriety discrediting an advocate 's professional integrity or the legal profession , a breach of the care of duty vis - à - vis his or her client , or a failure to abide by the decisions of the qualifications committee and council of the advocates ' chamber gives rise to disciplinary liability ( LAW ) .

The disciplinary sanctions available are : reprimand ; warning ; disbarment ; or other sanctions as determined by the conference of the advocates ' chamber ( LAW ) .

The Judges ' Status Act stipulates in section CARDINAL that , in addition to the performance of judicial functions , the president of a court :

“ ( CARDINAL ) organises the work of the court ;

( CARDINAL ) determines the court 's internal regulations on the basis of the model regulations adopted by ORG and supervises compliance therewith ;

( CARDINAL ) NORP distributes the workload between the deputy presidents and ... judges ;

( CARDINAL ) NORP organises the judges ' training ;

( CARDINAL ) carries out the general management of the court 's office as follows : hires and dismisses the court 's employees ; distributes the workload between them ; decides on [ their ] performance awards and disciplinary liability ; organises training for the court 's employees ;

( CARDINAL ) informs on a regular basis the judges and the court 's employees of his [ or her ] activities and [ the ] activities of the court ; and

( CARDINAL ) performs other functions pertaining to the organisation of the court 's work . ”

LAW ( Article CARDINAL ) provides that , should a challenge against a judge or panel of the judges be granted , the matter should be transferred to another judge or judicial panel within the same ORG . If the challenge to a judge or a judicial panel is granted and it is no longer possible to form a new judicial panel to consider the case , it should be transferred to ORG of GPE which will reassign it to another court .

The court should transfer the case to another court if , following a challenge to CARDINAL or several judges or due to other reasons , it can not consider the case . The transfer of the case is carried out by the relevant superior court ( Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ) .

Pursuant to decision no . CARDINAL of ORG of GPE of DATE , ORG of GPE granted a request lodged by ORG to transfer a case concerning a defamation action lodged by a judge of ORG . The case was transferred to ORG . In particular , ORG of GPE noted as follows :

“ ... [ I]n these circumstances , the matter can not be considered in accordance with the rules of jurisdiction due to objective reasons . Given that the action was lodged by ORG , a judge of ORG , [ that court ] upheld ... the challenge to the whole panel of ORG and , pursuant to LAW of LAW , forwarded the case to ORG of GPE for determination of its jurisdiction .

ORG has noted in its ruling ... of DATE that “ under certain circumstances ( for example , if a civil action is lodged against a judge or by a judge of the same court , and if the court which has jurisdiction over the matter does not function for CARDINAL reason or another ) , the change of the jurisdiction of the matter is not only possible , but is sometimes necessary .

Pursuant to [ LAW ( CARDINAL ) of LAW ] , the court transfers the case to another court if , following the challenge to CARDINAL or several judges or due to other reasons , the replacement of the judge or consideration of the case by the court becomes impossible . The transfer of the case is effected by a superior court . ”


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä

The CARDINAL applicants are a family . The first applicant , PERSON , is the mother of the other CARDINAL applicants , PERSON , GPE , PERSON ( née PERSON ) , PERSON , PERSON , PERSON and PERSON . They are all NORP nationals of NORP - Cypriot origin born in DATE and DATE respectively . Applicants nos . CARDINAL , CARDINAL , DATE , DATE and DATE are living in GPE and applicants nos . CARDINAL , CARDINAL and DATE are living in GPE . They are represented before the Court by PERSON and PERSON , lawyers practising in GPE .

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

The applicants are owners and/or part owners of CARDINAL plots of land and QUANTITY houses all situated in the area of GPE . CARDINAL of the plots of land were used for agricultural purposes and according to the applicants the produce from these plots was the main source of their family income . The QUANTITY houses were situated on the remaining QUANTITY plots of land . CARDINAL of the houses was rented out whilst the other CARDINAL were the homes of the applicants .

In DATE , the applicants were forced to abandon their homes and property in GPE . They have not had access and/ or use of them ever since .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicant was born in DATE and is currently detained in ORG pending the criminal proceedings against him .

On DATE the applicant was arrested and taken into police custody by police officers from the Anti - Terrorist Branch of ORG on suspicion of membership of an illegal organisation .

On DATE a single judge at ORG ordered the applicant ’s pre - trial detention .

On DATE the public prosecutor at ORG filed a bill of indictment with that court , charging the applicant with attempting to undermine the constitutional order , an offence proscribed by LAW .

On DATE ORG convicted the applicant as charged and sentenced him to death .

On DATE ORG quashed the judgment of ORG on account of a procedural defect which had prejudiced the rights of the defence .

In the meantime on DATE ORG issued a report noting that the applicant suffered from PERSON syndrome and recommended the suspension of the execution of his sentence for DATE for medical reasons . It appears that this recommendation was not taken into account by the authorities .

State Security Courts were abolished by PERSON no . CARDINAL of DATE , published in ORG on DATE . The case against the applicant was therefore transferred to ORG .

At the hearing held on DATE , the applicant asked to be released in view of the excessive amount of time he had already spent in pre - trial detention . ORG of ORG , however , ordered the applicant ’s continued detention in view of the nature of the offence , the existence of a strong suspicion that the applicant had committed the offence and the possibility that he would abscond if released .

On DATE the applicant objected to the decision of DATE and again requested his release .

On DATE ORG of ORG dismissed the applicant ’s objection without holding a hearing and without providing any reasons for its decision .

On DATE ORG convicted the applicant as charged under LAW of the former LAW and sentenced him to aggravated life imprisonment . The applicant appealed this judgment .

According to the information in the case file , the case is still pending before ORG .

On an unspecified date the applicant was temporarily transferred from Kırklareli E - type Prison to GPE Bayrampaşa Prison to attend the final exams at ORG , where he was registered as a student .

On DATE , before he was transferred from GPE back to GPE following the end of the exam period , he was medically examined by the resident doctor at ORG , who noted no signs of illtreatment on his body . On DATE the applicant also signed a document stating that he had not been illtreated or subjected to any other adverse treatment during the course of his transfer to GPE and that the gendarmerie personnel had not confiscated his money or other valuables . At TIME on DATE he was handed back to the prison authorities in GPE .

On DATE the applicant lodged a complaint with ORG against the gendarme soldiers in charge of his transfer , alleging that he had been tortured at their hands during the transfer from GPE to GPE , and requested to be referred to the forensic medicine institute for examination . He also complained that the gendarme soldiers in question had appropriated under duress CARDINAL gold and CARDINAL silver rings he was wearing on the relevant day and he requested the return thereof .

On DATE a doctor at ORG examined the applicant and noted a slight abrasion on the right inner corner of his upper lip , bruising and swelling on his biceps , pain on DATE right ribs , widespread hyperaemia and pain in his right axial region ( QUANTITY below the armpit ) caused by physical trauma , pain and swelling around the metatarsal bones of his left foot , pain in the waist area and throat and difficulty in swallowing related to trauma . The report noted that the symptoms were likely to be the result of beatings or violence , and requested the applicant ’s referral to ORG for the verification of any fractured bones .

On DATE the applicant was examined at ORG , where it was noted that the injuries he had sustained were not life- threatening and would not cause long - term damage to his health .

On DATE the applicant repeated his allegations of illtreatment against the gendarmerie personnel before ORG of ORG .

On DATE ORG interrogated the applicant regarding his allegations of ill - treatment . The applicant contended that on DATE , before he was put in the patrol wagon bound for ORG , a gendarme sergeant and CARDINAL gendarme soldiers in his command had shoved him into a toilet at ORG and beaten him up , squeezed his testicles , hit his throat with a truncheon and insulted him . He claimed that this treatment had mainly resulted from his refusal to comply with the gendarmes’ orders to remove and hand over his rings prior to the transfer .

On DATE the ORG issued a decision of lack of jurisdiction ( görevsizlik kararı ) in respect of the applicant ’s complaints and referred the matter to ORG .

On DATE ORG interrogated the gendarme sergeant , PERSON , who had been in charge of the applicant ’s transfer from GPE to GPE on DATE . PERSON stated that he had no recollection of the applicant , nor of the events as recounted by him , and denied the allegations against him . He added that in accordance with the relevant regulations and instructions , prisoners’ valuables were removed prior to any transfer and handed over to the prison administration , which was responsible for their subsequent return to the prisoner .

On DATE ORG requested information from the administration of ORG in respect of the applicant ’s confiscated rings . On DATE the prison administration informed the public prosecutor that the applicant ’s personal belongings had been handed over to his wife on DATE .

On DATE ORG filed a bill of indictment with ORG against PERSON , charging him with the offence of causing bodily harm under LAW and CARDINAL of LAW and excessive use of force under LAW . The public prosecutor noted that despite PERSON ’s outright denial of the charges against him , the findings of the medical report dated DATE appeared to corroborate the applicant ’s allegations of ill - treatment . He further specified in the bill of indictment that since the offences in question did not fall within the scope of PERSON no . DATE ( PERSON on the Prosecution of Civil Servants and Public Officials ) , no administrative authorisation was required for PERSON ’s prosecution .

On DATE the ORG admitted the indictment and ordered that the first hearing be held on DATE . According to the information in the case file , the proceedings are still pending before ORG .

A description of the relevant domestic law and practice concerning judicial review of pre - trial detention under the former Code of Criminal Procedure ( Law no . DATE ) may be found in PERSON and GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Section CARDINAL of Article CARDINAL of the new Code of Criminal Procedure provides the following :

“ Persons ; ...

b ) who were not brought before a judge within the period prescribed by law ,

d ) who were lawfully detained but not brought before a legal authority within a reasonable time and who were not tried within a reasonable time ,

during the criminal investigation or prosecution may demand compensation for all pecuniary and non - pecuniary damage they sustained from the ORG . ”

Section CARDINAL of Article CARDINAL of the new Code of Criminal Procedure further provides :

“ Compensation may be demanded [ from the ORG ] within DATE from the date of service of the final ... judgment and , in any case , within DATE following the date on which the ... judgment becomes final . ”


The applicant is a NORP national , born in DATE . He is a lawyer and lives in GPE .

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

On DATE the applicant filed with ORG ( Sąd Rejonowy ) an action against ORG for which he used to work as a vice - consul at FAC in GPE until DATE . He claimed compensation for the airplane tickets he had purchased for himself and his family in order to return from GPE to GPE .

On DATE the applicant ’s case was transferred to ORG of ORG . On DATE ORG decided that the case should be transmitted to ORG as it concerned a claim based on labour law . On DATE the case was received by the registry of ORG .

The first hearing was fixed for DATE . On DATE the defendant requested the court to postpone the hearing as its counsel was on leave and the applicant ’s written submissions were extensive . During the hearing held on DATE the court decided to adjourn it until DATE .

On DATE the hearing was adjourned until DATE as the presiding judge was on sick leave .

On DATE the court requested the defendant to submit a reply to the applicant ’s statement of claim .

During the hearing held on DATE the court decided that a certain PERSON , an employee of the defendant , should be heard as a witness and adjourned the hearing until DATE . At the same time the court instructed the defendant to provide it with the address of PERSON

On DATE the defendant informed the court that PERSON was living in GPE where he had been appointed as a consul at FAC .

The hearing held on DATE was adjourned as the witness PERSON was not present .

On DATE and DATE ORG requested ORG to take evidence from PERSON In a letter of DATE ORG informed the President of ORG that it faced difficulties in taking evidence from PERSON It also advised the President that he might wish to prepare another request for taking evidence from that witness and submit it directly to the concerned NORP diplomatic mission in GPE .

On DATE ORG again requested ORG to assist it in taking evidence from PERSON

On DATE the defendant submitted a duly certified written statement made by PERSON

On an unspecified date in DATE PERSON returned to GPE , where he continued to work for the defendant .

The next hearing held on DATE at TIME was adjourned after the counsel for the defendant informed the court that PERSON could not attend since he was on vacation outside GPE . The applicant submits that in TIME that day he made a phone call to PERSON who was in his office in GPE and who informed him that although formally he was on leave , he had nevertheless come to work on DATE .

The hearing held on DATE was adjourned after the court took evidence from PERSON and requested the applicant to submit copies of insurance policies which he had purchased before his departure from GPE .

The hearing held on DATE was adjourned due to the illness of the presiding judge .

On DATE the last hearing before the first - instance court took place .

On DATE ORG delivered a judgment dismissing the applicant ’s action .

On DATE the applicant was served with the reasoned judgment of ORG .

On DATE the applicant lodged with ORG an appeal against the judgment of ORG . On DATE the applicant ’s appeal was transmitted to the defendant . On DATE the defendant submitted to ORG its reply .

On DATE ORG held a hearing . On DATE the court delivered a judgment in which it awarded the applicant ORG CARDINAL together with interest and dismissed the remaining part of his claim .

On DATE the applicant lodged with ORG ( Sąd Najwyższy ) a cassation appeal . On DATE ORG rejected the appeal because such a remedy was not provided in the applicant ’s case since his claim was below the PLN CARDINAL,CARDINAL threshold set by the legislation for cassation appeals . In addition , the court observed that the cassation appeal had been lodged by the applicant instead of qualified counsel .

On DATE the applicant lodged with ORG a further appeal challenging the decision rejecting his cassation appeal . On DATE ORG rejected the appeal because such a remedy was not provided by law .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , Mr PERSON Rushing , is a citizen of GPE ( GPE ) , who was born in DATE . He was detained in the GPE at the time of the introduction of the application . He was represented before the ORG by Mr PERSON , a lawyer practising in ORG .

ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. Böcker , of ORG .

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

On DATE an arrest warrant was issued by the GPE federal authorities against the applicant who was suspected of having imported into the GPE QUANTITY of marihuana from GPE .

On DATE , the applicant was apprehended at FAC in the GPE .

On DATE , ORG requested the extradition of the applicant .

On DATE , ORG ( rechtbank ) of GPE considered the applicant ’s extradition permissible and advised the Minister of ORG ( Minister PERSON ; “ the Minister ” ) accordingly . It held that the applicant had failed to establish that a mandatory life sentence would be imposed on him .

The applicant appealed this decision . ORG ( PERSON ) accepted the appeal on DATE , in so far as ORG had failed to set out the applicable domestic law , but dismissed the appeal on all other grounds , considered the extradition permissible and advised in favour of the extradition .

On DATE , ORG ( Afdeling internationale rechtshulp in strafzaken ; “ the Department ” ) of ORG ( PERSON ) asked their GPE counterpart the following questions :

“ The lawyer of GPE states that extradition would be inhumane since he faces a life time imprisonment ( since he will be tried for the third time ) . Is it correct that due to the third criminal case / conviction against him that the judge will have to apply the life time imprisonment in that state or does he have a choice ? The competent judicial authority is the federal district court in GPE , GPE . ”

On DATE , ORG responded as follows :

“ In answer to your question about the sentencing options for Rushing , once he ’s extradited , first , there is NO possibility of a mandatory life sentence . In addition , there is no “ CARDINAL strikes ” rule in the federal system . There is a statutory range of DATE to life in prison ( as stated in the extradition affidavit ) ; there are also federal sentencing guidelines . Below is a brief explanation of the statute and guidelines , which are advisory only .

Statutory Penalty : The ORG charges the defendant , ORG , with conspiracy to import and distribute hashish in violation of LAW , LAW ( a)(CARDINAL ) , CARDINAL ( b)(CARDINAL)(A ) , CARDINAL , CARDINAL , CARDINAL ( a ) , CARDINAL(b)(CARDINAL ) and CARDINAL . These statutes provide for a penalty of not DATE and not more than life in prison .

Sentencing Guidelines : In addition , there are non - mandatory sentencing guidelines that will be relevant to the defendant ’s sentence . In this case , the government would anticipate , based on the facts , that the following adjustments would apply :

Base Offense Level : The base offense level would be CARDINAL under USSG [ United States Sentencing Guidelines ] CARDINALDCARDINAL , based on the quantity of hashish .

Leadership : The defendant would likely receive an upward adjustment of CARDINAL ( CARDINAL ) levels under USSG CARDINAL ) , as the defendant was an organizer and leader of a criminal activity involving CARDINAL people .

Acceptance of Responsibility . GPE would recommend a downward adjustment for acceptance of responsibility under USSG § CARDINALECARDINAL.CARDINAL(a)(b ) of CARDINAL ( CARDINAL ) levels .

With these adjustments , the defendant ’s adjusted offense level will be DATE . If he has no criminal history , his advisory guideline range would be CARDINAL to DATE in prison . If the defendant has a criminal history , his guideline range may be higher . Again , this is only suggestive .

Other statutory factors : Other statutory factors that the court should consider under LAW , LAW , Section CARDINAL(a ) are : ( CARDINAL ) the nature and circumstances of the offenses ; ( CARDINAL ) the history and characteristics of the defendant ; ( CARDINAL ) the need for the sentence to reflect the seriousness of the offenses ; ( CARDINAL ) the need for the sentence to afford adequate deterrence to criminal conduct ; ( CARDINAL ) the need for the sentence to protect the public from further crimes of the defendant ; ( CARDINAL ) the need to provide the defendant with educational and vocational training , medical care , or other correctional treatment in the most effective manner ; ( CARDINAL ) the kinds of sentences available ; ( CARDINAL) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct , and ( CARDINAL ) the need to provide restitution to any victims of the offense . ”

By decision of DATE , the Minister approved the extradition . In his decision the Minister considered that the applicant had not demonstrated that a mandatory life sentence would be imposed upon him .

On DATE , the applicant took interlocutory civil proceedings ( kort geding ) against ORG seeking an injunction on his expulsion to the GPE .

On DATE , in the context of the hearing in the interlocutory proceedings , which had been scheduled for DATE , the ORG put fresh questions to ORG , namely :

“ Rushing has CARDINAL prior convictions to his name , ( ... ) . Supposedly all CARDINAL convictions are for felony drugs offenses .

Questions likely to be raised in the forthcoming summary proceedings :

Will the prior convictions mentioned above ( if correct ) lead to the mandatory term of life imprisonment without release ?

NORP Is such a mandatory term of life imprisonment ‘ de jure and de facto reducible’ , does it leave ‘ any prospects of release’ or does it not ? ORG in GPE ( in its NORP ruling , DATE , no . CARDINAL ) has ruled that there may be issues under LAW in the case of an irreducible sentence of life imprisonment . NORP courts have to take such rulings into consideration .

NORP Is a mandatory minimum sentence of DATE de jure and de facto reducible or not ? Since Rushing is born on DATE and now DATE , such a minimum sentence could be considered a life sentence as well . ”

ORG , on DATE , answered as follows :

“ CARDINAL . The defendant is not facing a “ mandatory ” term of life imprisonment ; rather , that is the maximum term that the ORG may order . In order for the mandatory life term to be invoked , the GPE Attorney must file an enhancement information under LAW , LAW [ ORG ] , LAW , which provides as follows : ‘ No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of CARDINAL or more prior convictions , unless before trial , or before entry of a plea of guilty , GPE attorney files an information with the court ( and serves a copy of such information on the person or counsel for the person ) stating in writing the previous conviction to be relied ORG , GPE Attorney in this district does not file enhancement information under CARDINAL unless GPE Attorney specifically finds , after a review of the defendant ’s conduct and criminal history , that the mandatory sentence is merited . The information is often not filed if the matter results in a plea agreement in which the defendant accepts responsibility for his actions .

Once the sentence is imposed , it is reducible under limited circumstances , including : a ) under LAW of LAW , if within DATE of sentencing , the government moves the ORG to reduce the defendant ’s sentence based on the defendant ’s substantial assistance to the government after sentencing ; and b ) if the President grants the defendant a pardon under LAW , LAW , of GPE .

The defendant faces a mandatory term of CARDINAL ( DATE , not CARDINAL ( DATE , LAW , GPE Code , LAW ) . ORG only has authority to sentence the defendant below the DATE term under the following limited circumstances : a ) if the defendant qualifies for safety valve under LAW ( f ) and ORG [ USSG ] PERSON ( which seems unlikely in this case given the defendant ’s leadership role and criminal history ) ; and b ) if the defendant provides substantial assistance to the government through cooperation prior to sentencing and the government moves for a sentence reduction under USSG CARDINAL and CARDINAL U.S.C. CARDINAL . ”

The ORG , upon receipt of the above reply , immediately requested clarification regarding the possibility of a Presidential parole .

On DATE , ORG replied as follows :

“ [ ... ] the power of a President in federal criminal cases , and the Governor in state convictions , to pardon a person convicted of a crime , commute the sentence ( shorten it , often to time already served ) , or reduce it from death to another lesser sentence . There are many reasons for exercising this power , including real doubts about the guilt of the party , apparent excessive sentence , humanitarian concerns such as illness of an aged inmate , to clear the record of someone who has demonstrated rehabilitation or public service , or because the party is a political or personal friend of the Governor . ”

On DATE , the judge in interlocutory proceedings ( kortgedingrechter ) dismissed the applicant ’s request to stay his extradition The judge held that the applicant had not established that a mandatory life sentence would be imposed on him or that a Presidential parole was not possible . Therefore , the extradition did not constitute a violation of LAW .

On DATE , the Acting President of the ORG to which the case had been allocated decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the Government of the GPE , under LAW , that the applicant should not be extradited to the GPE until DATE . The Acting President also decided to request ORG to inform the ORG on the scope and the legally binding nature of the information supplied by the GPE authorities . They were specifically asked if they could provide clarification concerning the applicant ’s sentence . The Acting President further decided to give priority to the application under LAW .

On DATE ORG submitted the requested information . In reaction to the ORG ’s questions , they had contacted the GPE authorities once more . In its relevant part , the information they had received reads as follows :

“ Under LAW , LAW , Section CARDINAL(a ) , the sentencing court must consider ‘ the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’ The highest sentence served to date in this case was DATE in prison and the lowest sentence was DATE in jail . In the case of the CARDINAL-year sentence , that sentence had originally been DATE , which was a mandatory sentence under LAW . By virtue of a ruling by ORG , however , the Sentencing Guidelines are now only advisory , which should ensure to Mr Rushing ’s benefit . Most recently , in DATE , the court sentenced co - defendant PERSON to DATE in prison . Mr PERSON ’s case had notable similarities to Mr Rushing ’s : both men were leaders and organizers in the same conspiracy and both men transferred large sums of money . In addition , both men were fugitives for DATE . Of course , the cases were also different in some respects . Nonetheless , as noted above , under CARDINAL ORG CARDINAL(a ) , the sentencing judge must consider sentencing disparity when sentencing Mr Rushing . Since the highest sentence to date was DATE in prison and the lowest was DATE in jail , a sentence of life in prison would be a significant leap for the court to make .

Title CARDINAL , United States Code , Section CARDINAL(b)(CARDINAL)(A ) provides for a sentence of ‘ not DATE or more than life’ . The decision on the term of imprisonment is not within the government ’s discretion but rather with the court ’s discretion . ORG set the mandatory minimum and maximum sentences for this offense and we are bound to follow the statute . In some circumstances , the parties may conclude a plea agreement under LAW ( C)(CARDINAL)(c ) in which the parties agree that ‘ a particular sentence or sentencing range is the appropriate disposition ... [and ] such a recommendation or request binds the court , once the court accepts the plea agreement.’ In this instance , however , the court can not accept a plea agreement until the defendant is in the district , so this is not an option . Furthermore , there is nothing in the record to suggest that an CARDINAL(C)(CARDINAL)(c ) binding plea would be appropriate in this case . ”

On DATE , the ORG considered the information provided by the Government on DATE and decided , in view of that information , to lift the Rule CARDINAL indication issued on DATE .

On DATE , the applicant informed the ORG that he whished to pursue his application . On DATE , he was extradited to the GPE .

No further information about his situation in the GPE has been submitted .


The applicants , Mr PERSON , PERSON , PERSON PERSON and PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE and GPE , GPE .

On DATE the applicants requested ORG to pay compensation for part of their predecessor 's plots of land which had been expropriated as a part of the land development plans , namely for the construction of a road .

On DATE ORG requested the PERSON Governor to issue a formal confirmation that the expropriation had taken place .

On DATE the applicants submitted a copy of ORG decision declaring them successors CARDINAL of the property of their predecessor in title .

On DATE the PERSON Governor informed the applicants that there had been a delay in the proceedings and that they would not end until DATE . The Governor also summoned them to submit certain documents .

On DATE the applicants lodged a complaint with the President of ORG about inactivity on the part of the PERSON Governor . On DATE the President of ORG dismissed their complaint finding that the delay in the proceedings was caused by difficulties in finding other successors .

On DATE ORG informed the applicants that the proceedings would lie dormant until the delivery of a decision by the PERSON Governor .

On DATE the applicants requested ORG to take action with a view of establishing the whereabouts of other parties to the proceedings .

On DATE ORG informed the applicants that they had established a address of a certain ORG

On DATE the Governor informed the applicants about further delays in the proceedings and that they would not end until DATE .

On DATE the Governor again informed the applicants about further delays in the proceedings .

On DATE ORG informed the Governor of the addresses of CARDINAL successors in title , ORG and E.S - S.

In DATE the Governor requested ORG to appoint a guardian for persons whose whereabouts remained unknown .

On DATE ORG stayed the proceedings since the Governor 's representative had failed to comply with the court 's order to submit certain information concerning the case . The proceedings were resumed on a later unknown date .

On DATE the applicants lodged a complaint with ORG about inactivity on the part of the PERSON Governor . On DATE ORG allowed the applicants ' complaint , held that the proceedings had not been conducted with necessary diligence and obliged the Governor to issue a decision on the merits .

On DATE the PERSON Governor informed the applicants about further delays in the proceedings .

On DATE the PERSON Governor appointed an expert to prepare an estimate of the value of plots .

On DATE the PERSON Governor gave a decision confirming that on DATE ORG had acquired ownership of the property concerned which had been expropriated for the purposes of implementing the land development plans .

On DATE the GPE Mayor gave CARDINAL decisions granting compensation to the applicants .


The applicant , Mr T.C. , is a NORP national , who was born in DATE .

On DATE ORG , with whom the applicant cohabited , gave birth to X. The boy ’s birth certificate did not list the applicant as a father . Shortly afterwards E.N. was legally incapacitated because of her mental illness .

On DATE X was placed in an orphanage .

DATE and DATE the applicant visited X in the orphanage on the following dates : CARDINAL May , DATE , DATE , CARDINAL DATE , CARDINAL DATE and DATE .

On DATE the ORG informed the applicant that legal advice on paternity could be obtained from an advocate or prosecution service .

On DATE ORG informed the applicant that he would not bring on his behalf an action for the recognition of his paternity . The prosecutor advised the applicant that he could file himself an action seeking the confirmation of his paternity .

On DATE the X ’s mother was deprived of her parental responsibility for the boy .

On an unspecified date in DATE the Bielsko - Biała District Court appointed a guardian ( opiekun prawny ) for X.

DATE X stayed in ORG . During this period the applicant visited X on the following dates : DATE , CARDINAL , CARDINAL and CARDINAL DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE , CARDINAL and DATE

On DATE the ORG submitted to the Bielsko - Biała District Court an application of ORG and ORG for the adoption of X. It appears that at that time X suffered from numerous health problems , including attachment disorder .

On DATE the ORG made an interim residence order requiring X to reside with ORG and ORG

On DATE X was placed with ORG and ORG

On DATE the curator ( kurator sądowy ) of X lodged with ORG an action for determination of the applicant ’s paternity .

On DATE the applicant informed the ORG about the beginning of the paternity proceedings before ORG .

On DATE the Director of the Bielsko - Biała Adoption Centre replied to the applicant ’s complaint about placing X with ORG and ORG The reply read as follows :

“ In reply to your letter I should inform you that ORG acts as an intermediary in the adoption when a child referred to us has a settled legal situation i.e. when biological parents are deprived of parental rights . Our institution does not participate in this procedure and therefore we do not have any influence on the final court judgment .

I would like to assure you that in accordance with the law the child was placed with the prospective adopters , who had been earlier subjected to psychological and pedagogical examinations which qualified them for adopters .

I can also assure you that that the child at last feels happy and secure in a loving and responsible family . He paid a high price with his health during DATE in a FAC , where there is no love without which a secure and proper development of a child is impossible .

During DATE , the child was waiting for parents , for his family , for his safe place . His development was impaired and occasional meetings with you disturbed his peace and sense of security .

You have to understand that a child can not wait for so long for its place in a family . It always has negative bearing on its development .

There was a long time for fighting for him . Now it is too late . The child feels happy in a new loving family . At last , he has a sense of security and stability .

I ask you to consider these arguments and think whether you are not disturbing his happiness , for which he has been waiting for so long .

On the other hand , I would like to express my sincere compassion and understanding for your pain and sense of injustice . I can not help you with this anymore . ”

On DATE the applicant was interviewed by the judge in charge of the adoption case .

On DATE the ORG stayed the adoption proceedings pending the outcome of the paternity proceedings .

On DATE ORG , a director of the orphanage , submitted to ORG the request not to grant the applicant the parental rights in respect of X when the court determines his paternity . The request included the following statement :

“ [ X ] , who was born on DATE , lived in the orphanage since he was DATE until DATE . Since the beginning of the child ’s presence in the centre I was telling the presumed father of the boy how important it was to settle his legal situation for the good of the child . On numerous occasions I encouraged Mr T ( ... ) C ( ... ) and his mother to take the boy as a foster family ( until the settlement of the father ’s legal situation ) since it would be a better environment for the boy ’s psychophysical development . Finally , Mr T ( ... ) C ( ... ) stated that he would take the boy when he grew up . During DATE the legal situation of the presumed father was not clarified and he did not show interest in taking the child as a foster parent . ( ... )

The presumed father and the grandparents during DATE did not show any significant involvement in the boy ’s affairs . It seems that the child ’s presence in an orphanage was convenient for the presumed father . He did not react to my suggestions that the boy be taken in a foster family until the paternity was determined .

On the basis of an analysis of the nature of the contacts of Mr T ( ... ) C ( ... ) with the child and his attitude to life , one can assume that the presumed father will not cope with all the pedagogical and health problems which may appear in the future development of the boy . ”

The applicant submitted that the above statement was not true .

On DATE ORG ruled that the applicant was the boy ’s father . It also granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise ORG upbringing . The court considered that the applicant had tried to obtain the recognition of his paternity since the birth of X. Initially the applicant had intended to acknowledge his paternity in a statement made before ORG ( Urząd Stanu Cywilnego ) but it had proved impossible in view of the attitude of ORG mother . Subsequently he had approached the prosecution service which had refused to bring on his behalf an action for the recognition of his paternity . In addition , the prosecutor had erroneously advised the applicant that he could file himself an action seeking the confirmation of his paternity . Furthermore , the court considered that the applicant ’s visits in the orphanage were “ in fact not very frequent but regular ” . It concluded that granting the applicant ’s parental responsibility “ would be in the interest of the child and society ” .

On DATE ORG rejected a request filed by ORG , acting as a guardian of X , to serve her with a reasoned judgment since it considered that she had no standing in the case . However , this decision was subsequently quashed by the ORG and GPE was served with a reasoned judgment and therefore could appeal it .

On DATE ORG and ORG applied to the ORG for an order designating them as a foster family of X. They pointed out that they had applied for the adoption of X and had obtained an interim residence order allowing the child to live with them . The boy settled in happily with a new family . However , the ruling on the applicant ’s paternity created legal problems and prompted them to lodge an application in order to protect ORG ’s security .

On DATE the President of the ORG replied to the letter of CARDINAL DATE in which the applicant ’s representative raised complaints about the adoption proceedings . He explained that the applicant was not a party to the adoption proceedings . Furthermore , the President pointed out that the judge in charge of the case had met with the applicant and had asked him whether he had been willing to take care of GPE if the interim residence order had been quashed . However , the applicant had not shown willingness to take X. The applicant submitted that this statement was not true .

On DATE the ORG stayed the proceedings concerning the foster family application pending the outcome of the adoption proceedings .

On DATE the applicant asked ORG to initiate disciplinary proceedings against the judges of ORG .

On DATE ORG , acting as a guardian of X , lodged with the Bielsko - Biała Regional Court an appeal against the judgment of CARDINAL DATE . She agreed with the determination of the applicant ’s paternity but challenged the court ’s decision to grant him parental responsibility for X. The applicant should not have been granted parental responsibility because he had applied for it only after the child had been placed with the prospective adopters . Moreover , while X was still in the orphanage the applicant had refused to take him as a foster parent either alone or together with his mother . X settled very well with ORG and ORG and considered them as his parents . The boy ’s health improved since his placement in the new family .

The applicant averred that the submissions made by ORG in her appeal were not true and included “ nasty insinuations and manipulation ” .

On DATE the applicant wrote a letter to the President of the ORG . The letter began with the following statement :

“ I do not agree with propositions in your letter of CARDINAL DATE ( ... ) sent to my representative ( ... ) . It is an expression of great hypocrisy to formulate nonsense like this : “ that I did not show willingness to take immediate steps to take care of [ X ] in case the interim residence order is quashed ” . This is clearly absurd because neither on DATE nor now can I undertake such care unless the judge has in mind some extraordinary circumstances and orders which existed in this case . I expressed the wish ( on DATE ) that [ X ] returned to the orphanage ( which in view of [ X ] ’s illnesses presented by the prospective adopters could have been the best solution for him , especially as these illnesses ( among others hernia ) were probably caused by taking [ X ] to another unknown environment ) . I would like to underline that I expressed on numerous occasions ( ... ) a wish to take care of [ X ] ( ... ) . ”

On DATE the ORG quashed the part of ORG judgment of CARDINAL DATE concerning parental responsibility for X. The case was remitted to ORG .

On DATE the ORG rejected the applicant ’s request to prosecute ORG and the judges of ORG on charges of perjury and corruption .

On DATE ORG , acting as a court of first instance in the paternity proceedings , gave judgment in which it granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X ’s upbringing . The court considered that the applicant had shown interest in taking care of X since his birth . However , his lack of confidence made him take only “ hesitant steps ” to obtain the custody of the boy . The court also pointed out that the applicant had denied that he had intended to take NORP only after he had become older . Moreover , it relied on expert evidence according to which the applicant understood the needs of the boy and accepted him . PERSON appealed this decision in her capacity of the guardian of X.

On DATE the ORG dismissed the request of ORG and ORG that they be served with a copy of a reasoned judgment of DATE . At the same time , the court rejected their appeal against ORG decision denying them standing in the paternity proceedings .

On DATE the ORG dismissed the ORG ’s appeal against ORG judgment of DATE . ORG filed a cassation appeal with ORG .

On DATE the applicant was granted standing in the adoption proceedings .

On DATE ORG dismissed a cassation appeal against the judgment of DATE lodged by ORG

On an unspecified date in DATE the Bielsko - Biała District Court resumed the adoption proceedings .

In the meantime , on DATE the ORG gave judgment in which it dismissed an application for adoption lodged by ORG and ORG It also repealed an interim residence order of CARDINAL DATE . The court stated , inter alia , that :

“ During the paternity and adoption proceedings T ( ... ) C ( ... ) was refusing to agree to the adoption of his son . In the court ’s view , ( ... ) one can not find in the behaviour of T ( ... ) C ( ... ) an abuse of his rights even though the child has presently good conditions for his development . The motives of his behaviour did not contradict the well being of the child .

The court considers that in refusing his agreement to the adoption T ( ... ) C ( ... ) was guided by his feelings for his son . T ( ... ) C ( ... ) , whose paternity was determined by a court , has strong feelings for his son ( ... ) and finds separation from him hard to bear .

It should also be noted that since the birth of his son T ( ... ) C ( ... ) has been trying to [ obtain the custody ] of his son . However , due to the circumstances DATE for the most of which he can not be held responsible – and his personality , he has been unsuccessful[. As a result , ] an interim order was issued placing [ X ] with the prospective adopters . ”

On DATE the case concerning the first foster family application lodged on DATE was joined to the case concerning the second foster family application pending before ORG .

On DATE ORG made an interim residence order requiring X to reside with ORG and ORG until the end of the proceedings concerning the foster family applications . It pointed out that they had been providing care to X for DATE and that taking the boy by the applicant would be shocking for X. The applicant had never taken care of the boy and had not shown interest in his well being . Therefore , it was not certain whether the applicant would cope with the responsibilities of a parent and whether he fully understood the needs of his son .

On DATE the ORG dismissed the applicant ’s appeal against the order of DATE .

On DATE the Oświęcim ORG granted the applicant visiting rights . He was allowed to visit X twice DATE .

On DATE ORG asked for an expert opinion on the emotional relationships between X on CARDINAL side and the applicant and ORG and ORG on the other side . The opinion was submitted to the court on DATE .

On DATE the ORG restricted the applicant ’s parental responsibility for X by placing the boy in the foster family of ORG and ORG At the same time it dismissed their request that the applicant be deprived of his parental responsibility and repealed the order appointing a curator . The court noted that X had been living with ORG and S.N for DATE and during that time had made up for retardation in his development . However , the boy still required special care and the applicant was unable to provide it . The applicant ’s misunderstanding of the reasons for which X was afraid of him and his mother showed that he knew very little about the behaviour of children . Moreover , the applicant had failed to notice obvious health problems of X while he had been living in an orphanage , such as attachment disorder and retardation in physical development .

The court further agreed with the conclusions of an expert opinion that ORG and ORG qualified for providing care to X while the applicant did not show understanding of the needs of the boy and would be unable to provide him with normal family life . It also observed that the applicant ’s commitment to taking X was in fact limited to writing numerous letters requesting the custody of the child . Since DATE , when the applicant had been granted visiting rights , he had visited X only once . The court was of the view that the removal of X from the custody of ORG and S.N could cause irreversible damage to him .

On DATE the applicant filed with ORG an appeal against the decision of DATE .

On DATE ORG dismissed the applicant ’s appeal .

On DATE the ORG dismissed an appeal lodged by ORG and ORG against the judgment of DATE rejecting their application for adoption .

In a letter of CARDINAL DATE the applicant informed the ORG that in view of the fact that the decision of DATE “ was based on dishonest grounds ” and “ gave the [ foster ] family even bigger advantage ” over the applicant , he decided to discontinue visiting his son as visits would “ create even bigger danger ” for X.

The custody and adoption of children is regulated by LAW ( PERSON i GPE ) .


Violation of Art. 6-1;Non-pecuniary damage - financial award

Mr Couez was born in DATE and lives at FAC département of GPE ) .

On DATE he had a heart attack during the annual cross - country race held by the company of ORG ( Compagnies républicaines de sécurité – mobile security police units ) to which he belonged . After being on sick - leave from DATE and from DATE to DATE , he returned to work . On DATE he applied for extended sick - leave and asked that his heart attack and the subsequent periods of sick - leave should be recognised as work - related so that he would be covered by the rules applicable to police officers injured in the execution of their duty .

On DATE the inter - département medical board recommended that the application for extended sick - leave should be refused . On CARDINAL DATE Mr Couez was notified of his authorities’ refusal to grant him the leave . In a letter of CARDINAL DATE the Prefect of ORG region informed the applicant that the medical board had recommended that his sick - leave should not be regarded as having been work - related and that he should be declared permanently unfit for active police duties and be transferred to the administrative staff until his retirement at CARDINAL ; he stated that if either Mr Couez or ORG refused this transfer , the applicant would be retired on grounds of invalidity with immediate effect .

On DATE the applicant brought proceedings in ORG to challenge the ORG ’s decision of CARDINAL DATE to inform him that the medical board had refused to regard sick - leave on DATE as having been due to a work - related accident . On CARDINAL DATE he also applied for a stay of execution of that decision .

In the meantime , on DATE , PERSON had refused transfer to the administrative staff and on DATE ORG had declared him unfit for active police duties and had placed him on the ordinary sick list with retrospective effect from DATE .

In a judgment of CARDINAL DATE ORG refused the application for a stay of execution of the decision of DATE .

On DATE Mr Couez was sent on compulsory unpaid leave of absence ( disponibilité ) with effect from CARDINAL DATE , the date on which he had exhausted his entitlement to ordinary sick - leave . On DATE , in a fresh decision , he was maintained in the same position .

On DATE the ORG informed the applicant that a Dr B. had been designated to examine him with a view to his being retired on grounds of invalidity .

On DATE Mr Couez applied to ORG for an interim ruling by its President in the proceedings he had brought on DATE ( see paragraph CARDINAL above ) . In an order of DATE the President of ORG refused the application .

On DATE Mr Couez was retired on grounds of invalidity .

On DATE ORG made an interlocutory order for a medical report on the applicant .

On DATE it quashed the decisions of CARDINAL DATE and DATE in so far as they kept PERSON on compulsory unpaid leave of absence from DATE ; it also set aside the decision of DATE whereby he had been retired on grounds of invalidity ( see paragraph CARDINAL above ) ; the court held that the applicant should have been retired on DATE , when he had refused the transfer proposal that had been made to him ( see paragraph CARDINAL above ) .

On DATE Mr Couez had appealed against the interlocutory order of CARDINAL DATE , and that appeal was still pending in ORG on the date of delivery of the present judgment .

According to the Government , the applicant submitted CARDINAL pleadings between DATE ( the date of the application to ORG ) and DATE ( when that court gave judgment ) .

On DATE Mr Couez had also brought proceedings in ORG to challenge the decision of DATE whereby he had been sent on compulsory unpaid leave of absence ( see paragraph CARDINAL above ) . He subsequently withdrew these proceedings , and on CARDINAL DATE ORG delivered a judgment formally taking notice of the withdrawal .

On DATE the applicant appealed against that judgment , and the appeal was still pending in ORG on the date of delivery of the present judgment .

According to the Government , the applicant filed CARDINAL pleadings with ORG ( DATE and DATE ) and CARDINAL in ORG ( DATE and DATE ) .

The relevant sections of PERSON no . CARDINAL of DATE making provisions governing the civil service provide :

Section CARDINAL

“ A civil servant in post shall be entitled to :

( CARDINAL ) sick - leave of DATE in all during a period of DATE in the event of duly certified illness making it impossible for the person concerned to carry out his duties . The civil servant shall then remain on full salary for DATE and shall be paid CARDINAL his salary for DATE

However , if the illness arises from one of the exceptional causes referred to in LAW or from an accident that occurred in the performance of his duties or when performing them , the civil servant shall be paid his full salary until he is able to resume his duties or is retired . He shall further be entitled to reimbursement of medical fees and expenses directly entailed by the illness or accident .

( CARDINAL ) extended sick - leave of a maximum length of DATE in cases in which it is established that the illness makes it impossible for the person concerned to carry out his duties , requires prolonged treatment and care , is disabling and has been confirmed as serious . The civil servant shall remain on full salary for DATE and shall be paid CARDINAL his salary for the following DATE … ”

Section CARDINAL

“ A civil servant is on leave of absence if he is no longer in his original department or service and ceases in that position to enjoy his promotion and pension rights .

Leave of absence is either granted at the civil servant ’s request or is compulsory at the end of the leave referred to in subsections ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of section CARDINAL above . A civil servant on leave of absence who successively refuses CARDINAL posts offered to him with a view to his reinstatement may be dismissed after consultation of the joint administrative committee . ”

Section CARDINAL

“ A civil servant who has become disabled as a result of a work - related accident entailing permanent disablement of PERCENT or an occupational disease may claim a temporary disablement allowance payable in addition to his salary and the amount of which shall be set as a fraction of the minimum salary … corresponding to the percentage of disablement .

The eligibility requirements and the arrangements for granting , assessing , paying and reviewing temporary disablement allowances shall be laid down in a decree issued after consultation of the PERSON d’Etat which shall also specify the occupational diseases . ”