Remainder inadmissible;Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude;Article 4-2 - Compulsory labour;Forced labour);Pecuniary and non-pecuniary damage - award

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicants , ORG and ORG , are NORP nationals who were born in DATE and DATE respectively in GPE . They are sisters .

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

C. N. ( “ the first applicant ” ) arrived in GPE in DATE , at DATE . PERSON ( “ the second applicant ” ) and their CARDINAL younger sisters arrived in GPE in DATE . The second applicant was DATE at the time . Their arrival was arranged by their aunt , PERSON , wife of PERSON , a national of GPE .

The applicants left their country of origin , GPE , following the civil war in DATE , during which their parents were purportedly killed . On a trip to GPE , PERSON organised a family council . According to a record of the meeting dated DATE , it was decided to give guardianship and custody of the applicants and their younger sisters to PERSON and PERSON The family considered that the couple , who lived in GPE , were the only members of the family “ capable of taking care of [ the applicants ] and giving them a proper education and upbringing ” .

Mr M. , a former government minister of GPE , was a ORG staff member and , as such , enjoyed diplomatic immunity . The spouses owned a CARDINAL - bedroom detached house in GPE d’Avray in ORG département . They had CARDINAL children , CARDINAL of whom was disabled .

When they arrived in GPE the applicants were housed in what they described as a poorly heated unconverted cellar in the basement of the house . The Government pointed out that it was not a cellar as such , but a basement room with a door opening into the garden and a window . The room contained a boiler , a washing machine and QUANTITY beds . At the beginning of their stay the applicants shared the room with their CARDINAL younger sisters .

At the same time , PERSON and PERSON contacted an evangelical church with a view to placing the applicants’ CARDINAL younger sisters with foster families , except in DATE . They were in fact taken in by CARDINAL families in DATE . In DATE CARDINAL of the CARDINAL sisters went to spend DATE with PERSON and PERSON ; the foster family , who had parental authority over them , had to take legal action to get them back in DATE .

The applicants said that as soon as they arrived they had been made to do all the housework and domestic chores necessary for the upkeep of the house and the PERSON family of CARDINAL . They alleged that they had been used as “ housemaids ” . The first , older applicant said that she had to look after the family ’s disabled son and do the gardening . They were not paid for their work or given any DATE off .

The applicants affirmed that they had had no access to a bathroom and only an unhygienic makeshift toilet at their disposal . The Government submitted that they were not denied access to the bathroom , but that it was limited to certain times of day . The applicants added that they were not allowed to eat with the family . They were given only pasta , rice and potatoes to eat , and occasionally leftovers from the family ’s meat dishes . They had no leisure activities .

The second applicant was a pupil in the GPE d’Avray primary school from DATE , then in the special general and vocational learning department of a GPE secondary school from DATE . As a non - NORP speaker she had had integration difficulties which she said increased her isolation . Her aunt nevertheless objected to her seeing the school psychologist as suggested by the teaching staff . Nor was the second applicant given any additional help in learning to read LANGUAGE , allegedly because this would have meant paying for her to have school meals . In spite of these difficulties she did well at school . When she got home from school she would have to do her homework then help her sister with the domestic chores .

The first applicant was never sent to school or given any vocational training . She spent DATE doing housework and looking after her disabled cousin . The Government pointed out that the applicant had admitted in the course of the subsequent criminal proceedings that she had in fact refused to go to school .

On DATE ORG welfare department submitted a report on children in danger to the GPE public prosecutor according to which there was a risk that the children were being exploited “ to do household chores among other things ” . Following an investigation by the police child protection services , it was decided not to take any further action .

The first applicant turned DATE on DATE . She contended that PERSON and PERSON did nothing to legalise her situation vis - à - vis the authorities . According to the Government , her situation was not illegal because she was included in her aunt ’s diplomatic passport .

From DATE the aunt refused to pay the second applicant ’s bus fare to school . The applicant explained that when her uncle bought her a bus pass behind his wife ’s back , her aunt got very angry and threatened to hit her . When she had no bus pass the second applicant had either to walk to school , which was TIME walk from where she lived , or to take the bus without a ticket . The applicant said that her aunt also refused to pay for her to have school meals .

In DATE the second applicant , after going DATE without urgent dental treatment , had had to go to a dentist near the school at her own initiative . She had never received the orthopaedic treatment the dentist prescribed . As to the first applicant , she alleged that she had been hospitalised CARDINAL times under her cousin ’s name after being beaten by CARDINAL of the of the boys in the family .

The applicants further alleged that they had been physically and verbally harassed on a DATE basis by their aunt , who regularly threatened to send them back to GPE to punish them and made disparaging remarks about their late parents . The second applicant claimed that once , when she was sick in bed , her aunt had threatened to hit her with a broomstick to make her clean the kitchen .

On DATE the association “ Enfance et Partage ” drew the attention of the PERSON public prosecutor ’s office to the applicants’ situation , stating that the conditions they lived in DATE in the insalubrious , unheated basement of the PERSON family ’s house DATE were contrary to human dignity , that the first applicant was used as a “ housemaid ” and had to look after the family ’s disabled eldest son , that their aunt refused to buy the second applicant a travel card or pay for her to have school meals , and that both girls complained of ill - treatment and physical aggression by their aunt . The applicants ran away from the house DATE and were taken into the association ’s care .

On DATE the PERSON public prosecutor ’s office applied to the Director General of ORG to have PERSON diplomatic immunity lifted .

On DATE that request was granted , exceptionally , as part of an investigation into allegations of ill - treatment . The immunity of PERSON wife was also lifted .

On DATE a preliminary investigation was opened on the instructions of the PERSON public prosecutor ’s office .

On DATE the police interviewed the CARDINAL applicants , who confirmed the terms of the report by “ Enfance et Partage ” . They did , however , explain that their uncle had tried to temper his wife ’s behaviour . The second applicant said that when their situation was first reported in DATE she had not dared to tell the police the truth for fear of reprisals from her aunt .

That DATE the association “ Enfance et Partage ” gave the police photos taken by the applicants in DATE of the basement they lived in . The photos confirmed the deplorable conditions of hygiene and insalubrity they lived in .

On DATE Mr M. was interviewed by the police . He said he had done nothing wrong and that he had helped the applicants by bringing them to GPE . He told them that his wife , PERSON , had left for GPE on DATE . He also complained about an article in the press on DATE making accusations against him and his wife .

The police established that , contrary to what Mr PERSON had told them , his wife had gone back to GPE on DATE , DATE after the article appeared in the press .

Mr M. denied the investigators access to his house , alleging that his lawyer was not available . He added that renovation work was being done on the house .

On DATE a judicial investigation was opened against Mr and PERSON for degrading treatment ( Articles CARDINAL - CARDINAL and CARDINAL of LAW ) and against PERSON for wilful violence on a child DATE , by a person in a position of authority , not entailing unfitness for work for DATE . An arrest warrant was issued against PERSON and Mr PERSON was placed under judicial supervision .

The applicants joined the proceedings as civil parties .

On DATE and CARDINAL DATE the applicants were heard by the investigating judge . They confirmed their previous statements and added that their situation at the home of PERSON and PERSON had gradually deteriorated . The second applicant told the judge that at the time of the first report and investigation in DATE she had said nothing to the police because “ things were not [ yet ] all that bad ” with her aunt ( a fact confirmed by the first applicant at a later hearing on DATE ) . The applicants emphasised the leading role played by their aunt , who had no qualms about hitting them and waking them up in the middle of the night if there was the slightest problem . The first applicant said she had even had to sleep outside the house TIME . The applicants confirmed that their uncle had tried to smooth things over , but he was frequently away from home . When present he would often try to reason with his wife , and had even paid their bus fares or bought them clothes without his wife knowing .

On DATE Mr M. was charged with infringement of human dignity under Articles CARDINAL - CARDINAL and CARDINAL of LAW .

On DATE the results of the medico - psychological examination of the CARDINAL applicants ordered by the investigating judge were submitted . They revealed that the applicants showed no signs of serious psychological disorders or psychiatric decompensation , but that the psychological impact of what they had experienced was characterised by mental suffering , combined , in the case of the first applicant , with feelings of fear and a sense of abandonment , as the threat of being sent back to GPE was synonymous in her mind with a threat of death and the abandonment of her younger sisters . As to the second applicant , the report stated that being sent back to GPE was felt to be “ even worse ” than living with PERSON and PERSON

On DATE and DATE the investigating judge noted that PERSON had twice failed to appear . She explained that she had been in GPE . She was not heard until DATE .

Investigations carried out at the home of PERSON and PERSON at the judge ’s request revealed that the basement of the house had been completely refurbished after the applicants left .

On DATE the investigating judge at the PERSON tribunal de grande instance ordered PERSON committal for trial before the criminal court on charges of wilful violence on a child DATE , by a person in a position of authority , not entailing unfitness for work for DATE ( an offence punishable under LAW of LAW ) in respect of the second applicant , and on charges of subjecting a person who is vulnerable or in a position of dependence to working conditions ( in respect of the first applicant ) or living conditions ( in respect of both applicants ) incompatible with human dignity ( offences punishable under Articles CARDINAL - CARDINAL and CARDINAL of LAW ) . In the same order , the investigating judge requested the termination of the proceedings against Mr M. concerning the charges of offences against human dignity .

On DATE the applicants appealed against the decision to terminate that part of the proceedings .

On DATE ORG of ORG ordered further inquiries to determine the exact scope and measure of the lifting of PERSON immunity by the Director General of ORG , and whether it applied to the preliminary investigation alone or to the proceedings as a whole .

On DATE ORG of ORG set aside the order of DATE terminating part of the proceedings and ordered PERSON committal for trial by the criminal court for having subjected the applicants , and also their CARDINAL younger sisters , to treatment contrary to human dignity . As to the scope of the lifting of PERSON immunity , the court found that no immunity applied , for the following reasons :

“ The explicit terms of the letter addressed to the court on DATE by ORG on behalf of the Minister , who has authority to interpret and measure the scope of the immunity granted to diplomats , dispel all uncertainty about the situation of Mr [ M. ] ;

the latter ceased to be a ORG staff member on DATE ;

as the deeds in question were not committed in the course of his duties , he no longer enjoys diplomatic immunity ;

there is accordingly no obstacle to his prosecution ; ”

Mr M. appealed against that ruling .

On DATE ORG confirmed that PERSON did not enjoy diplomatic immunity , but set aside ORG judgment of DATE in so far as it had ordered Mr. PERSON committal for trial for offences committed against the CARDINAL sisters , as this was outside the remit of the investigating judge .

On DATE ORG rejected the objections as to admissibility raised by PERSON and PERSON based on their diplomatic immunity . It adjourned the case to a hearing on DATE to rule on the merits .

In a judgment of CARDINAL DATE ORG found PERSON and PERSON guilty as charged . Mr PERSON was sentenced to CARDINAL months’ imprisonment , suspended , and fined MONEY ( ORG ) . PERSON was sentenced to DATE months’ imprisonment , suspended , and fined ORG CARDINAL . The couple were jointly ordered to pay the first applicant ORG CARDINAL in damages , and the second applicant MONEY , as she had requested . The relevant passages of the judgment read as follows :

“ ... It appears from the information available that [ the applicants ] , who found themselves in a situation of total dependence at the time , who were orphans and minors and whose papers had been taken away , were housed by their uncle and aunt in deplorable conditions of hygiene in an unheated , insalubrious basement ; the photos adduced by counsel for the civil parties ... show the state of the place they lived in DATE ; they had no access to the bathroom and had to fetch a pail of water from the kitchen to wash themselves , and the elder sister [ the first applicant ] was used as a housemaid by the couple [ Mr and PERSON ] with no day off and no pay .

It is further established that they did not pay for [ the second applicant ’s ] school meals or travel card , obliging her to walk QUANTITY to school along a road through woods .

It is also established that the accused refused to give them the medical treatment they needed , even though [ Mr M. ] had registered them with the ORG social security scheme .

Although some of the ORG statements indicate that the role played by [ Mr M. ] was a rather passive one , probably to avoid having to stand up to his wife ’s strong character , he could not have been unaware of the difference in the way his nieces and his own children were treated .

His frequent absences from home could not have made him unaware of the situation . In addition , he refused to let the police take photos of the basement , and then took pains to have it very comfortably refurbished when released from police custody .

That being so , the actus reus and mens rea of the offence against human dignity in respect of the CARDINAL accused are made out and they must be convicted . ”

Mr and PERSON appealed against that judgment on DATE and DATE .

On DATE ORG set aside the judgment on the charge of subjecting several vulnerable people , including CARDINAL minor , to indecent living and working conditions , acquitted the defendants of that charge and dismissed the ORG claims for compensation for the damage suffered in respect of that charge . However , it upheld the guilty finding against PERSON on the charge of aggravated wilful violence against the second applicant . She was fined ORG CARDINAL and ordered to pay MONEY in respect of non - pecuniary damage .

The relevant passages of the judgment read as follows :

“ The charge of subjecting several vulnerable people , including CARDINAL minor , to indecent living and working conditions :

It is not disputed that [ PERSON ] went to fetch her nieces at a time when a civil war was raging in GPE that left CARDINAL people dead and orphaned CARDINAL children ; ... the elements of the proceedings show that [ Mr and PERSON ] paid their GPE fare from GPE to GPE ; this shows that their concern was to protect these members of their family by placing the children out of harm ’s way ; ...

Under LAW of LAW in force at the material time , offences against human dignity were characterised by the fact of abusing a person ’s vulnerability or situation of dependence to subject them to working or living conditions incompatible with human dignity , and were punishable by DATE imprisonment and a fine of MONEY ( ORG ) ; the legislation now in force punishes such offences more severely and gives them a broader definition ; ... the new , harsher law can not be applied retroactively ;

In the instant case , while the living and domestic working conditions were poor , uncomfortable and blameworthy , they can not be qualified as degrading in the context and the circumstances of family solidarity with no intention of economic gain or of exploiting another ’s work ; the living and working conditions the defendants gave their nieces were not intended to debase them as human beings or to violate their fundamental rights , but obeyed a duty to help them ; ...

[ Mr and PERSON ] can not be blamed for not having asked their own children , who shared their rooms , ... to give up their comfort ; and they can not reasonably be blamed for giving more to their own children than to their nieces ; ...

The case materials show that the boiler which heated the house was in the basement where the complainants lived and the temperature recorded in their room during the investigation was in excess of CARDINALoC ;

As stated by the GPE daughter ... and confirmed by [ the second applicant ] , the aunt had not formally denied them access to the bathroom , but simply wanted to rationalise its use because of the large number of people who had to use it ; ...

... even though more could have been done to secure [ the first applicant ’s ] integration , [ PERSON did call the welfare services for help ; the fact that [ the first applicant ] , who did not speak LANGUAGE and did not want to go to school , was required to play an active part in the housework as the eldest sister , even without pay , did not amount to working conditions incompatible with human dignity , or slave labour , or violation of any fundamental personal rights , but rather to repayment for her having been permanently taken into the home and care of an already large family ; there is no evidence in the case file that [ Mr and PERSON ] stood to make any financial gain by taking their nieces into their home and care , for they were an extra financial burden for them , taken on out of moral obligation ;

According to the testimony , the living and working conditions were compatible with [ the applicants’ ] human dignity ; and it has not been established that the defendants took advantage of the vulnerability of their orphaned nieces or the fact that they were dependent on them ;

Therefore , as the mens rea of the charge of subjecting several vulnerable people , including CARDINAL minor , to indecent living and working conditions has not been made out , the constituent elements of the offence have not been established and the judgment in respect of this charge must be set aside ...

The charges against [ PERSON ] of wilful violence with CARDINAL aggravating circumstances on [ the second applicant ] , a child under DATE , by a person in a position of authority :

[ The second applicant ] told the police that her aunt hit her when she asked for a travel card or when her uncle bought her one ... ; she also alleged that she was slapped when she accidentally dropped a plate ; on CARDINAL occasion her aunt allegedly threatened to hit her with a broom and on another occasion she violently scratched her hand ; ...

There is no doubt that [ the second applicant ] was DATE and DATE , and that she was an orphan under the authority of her aunt , who had taken her in ; the investigation established that [ PERSON ] shouted at [ the second applicant ] , scolded her and threatened to send her back to LOC ;

The facts are established ... ; the charge is made out in all its elements ... ; the judgment convicting [ PERSON ] of aggravated violence must be upheld ... ”

The applicants appealed against that judgment on DATE . PERSON also appealed . ORG did not appeal .

DATE . On DATE ORG rejected the appeals lodged by the applicants and PERSON The relevant passage from the judgment reads as follows :

“ The terms of the impugned judgment place ORG in a position to affirm that ORG , for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it , stated the reasons for its decision that , in the light of the evidence before it , the charge of subjecting vulnerable or dependent people , including CARDINAL minor , to living or working conditions incompatible with human dignity had not been made out against the accused , and had thus justified its decision dismissing the claims of the civil parties . ... ”

“ Abusing a person ’s vulnerable or dependent situation to obtain the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed is punished by DATE imprisonment and by a fine of MONEY . ”

“ Abusing a person ’s vulnerable or dependent situation by subjecting him or her to working or living conditions incompatible with human dignity is punished by DATE imprisonment and by a fine of MONEY . ”

“ The offences under articles CARDINAL - CARDINAL and CARDINAL - CARDINAL are punished by CARDINAL years’ imprisonment and by a fine of MONEY when they are committed against CARDINAL person . ”

“ Obtaining the performance of unpaid services or services against which a payment is made which clearly bears no relation to the amount of work performed from a person whose vulnerability or dependence is obvious or known to the offender is punished by DATE imprisonment and by a fine of CARDINAL . ”

“ Subjecting a person whose vulnerability or dependence is obvious or known to the offender to working or living conditions incompatible with human dignity is punished by DATE imprisonment and by a fine of CARDINAL . ”

“ The offences under articles CARDINAL - CARDINAL and CARDINAL - CARDINAL are punished by CARDINAL years’ imprisonment and by a fine of CARDINAL when they are committed against CARDINAL person .

Where they are committed against a minor , they are punished by DATE imprisonment and by a fine of CARDINAL .

Where they are committed against CARDINAL or more people , CARDINAL or more of whom are minors , they are punished by CARDINAL years’ imprisonment and by a fine of QUANTITY . ”

“ For the application of articles CARDINAL - CARDINAL and CARDINAL - CARDINAL , minors or people who have been victims of the acts described by these articles upon their arrival on NORP national territory are considered to be vulnerable or in a situation of dependence . ”

Court of Cassation , appeal no . DATE , CARDINAL DATE :

“ ... As to the single ground for appeal based on the violation of LAW , and of Articles CARDINAL - CARDINAL of LAW , DATE of LAW , CARDINAL , CARDINAL and CARDINAL of LAW ;

In so far as the judgment acquitted ORG ... of the charge of subjecting a vulnerable or dependent person to working or living conditions incompatible with human dignity ; ...

Considering that according to the case file ORG ... , who employed and housed GPE ... , who was born on DATE in GPE , from DATE , the date of her illegal arrival in GPE at DATE , was sent before the criminal court on charges of aiding unlawful entry and residence , employing an alien with no work permit , obtaining unpaid services from a vulnerable person and subjecting that person to working and living conditions incompatible with human dignity ; that the impugned judgment , ruling on the appeals lodged by the accused , the civil party and the public prosecutor , upheld the judgment in so far as it found PERSON ... guilty of the first CARDINAL charges and acquitted her of the last charge ;

Considering that , for the reasons given and adopted , while PERSON ... , whose passport ORG ... took from her , had been made to do domestic chores on a permanent basis , with no holidays , in exchange for a little pocket money or subsidies paid in GPE , the judgment , in upholding the acquittal , took into account that the young woman had been housed in the same conditions as the family and the accused had shown true affection towards her , and the judges concluded that there had been no offence against human dignity ;

However , in so ruling when all forced labour is incompatible with human dignity , ORG failed to draw the legal conclusions of its own findings and to justify its decision vis - à - vis the above - mentioned texts ; ...

Quashes the above judgment of ORG ... in respect of the civil action ... ”

The ORG refers to paragraphs CARDINAL of the GPE v. GPE judgment ( no . CARDINAL/CARDINAL , ORG CARDINALVII ) and to CARDINAL to CARDINAL of the GPE v. GPE and GPE judgment ( no . CARDINAL , ECHR DATE ( extracts ) ) , which present the relevant provisions of the international conventions concerning forced labour , servitude , slavery and human trafficking LAW DATE prohibiting slavery ; Convention no . CARDINAL of ORG ( ORG ) of CARDINAL DATE , on forced labour ; Supplementary Convention on the Abolition of Slavery of DATE ; Convention on the Rights of the Child of DATE ; Additional LAW to the United Nations Convention against Transnational Organised Crime , known as the “ LAW ” , of DATE ; ORG on action against trafficking in human beings , of CARDINAL DATE ) and the relevant extracts from ORG work on the subject ( Recommendations CARDINAL of DATE and CARDINAL of DATE of ORG , explanatory report of ORG on action against trafficking in human beings ) .

The following extracts from “ The cost of coercion : global report under the follow - up to LAW at Work ” , adopted by ORG in DATE :

“ CARDINAL . The ORG ’s definition of forced labour comprises CARDINAL basic elements : the work or service is exacted under the menace of a penalty and it is undertaken involuntarily . The work of the ORG supervisory bodies has served to clarify both of these elements . The penalty does not need to be in the form of penal sanctions , but may also take the form of a loss of rights and privileges . Moreover , the menace of a penalty can take many different forms . Arguably , its most extreme form involves physical violence or restraint , or even death threats addressed to the victim or relatives . There can also be subtler forms of menace , sometimes of a psychological nature . Situations examined by the ORG have included threats to denounce victims to the police or immigration authorities when their employment status is illegal , or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities . Other penalties can be of a financial nature , including economic penalties linked to debts . Employers sometimes also require workers to hand over their identity papers , and may use the threat of confiscation of these documents in order to exact forced labour .

As regards “ voluntary offer ” , the ORG supervisory bodies have touched on a range of aspects including : the form and subject matter of consent ; the role of external constraints or indirect coercion ; and the possibility of revoking freely - given consent . Here too , there can be many subtle forms of coercion . Many victims enter forced labour situations initially out of their own choice , albeit through fraud and deception , only to discover later that they are not free to withdraw their labour , owing to legal , physical or psychological coercion . Initial consent may be considered irrelevant when deception or fraud has been used to obtain it . ”


Mr PERSON ( “ the first applicant ” ) was born in DATE and died on DATE . His wife , PERSON , expressed her wish to pursue the application of her late husband . PERSON ( “ the second applicant ” ) was born in DATE and lives in GPE . Both applicants were represented by Mr P. GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON .

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

In DATE the applicants instituted CARDINAL separate sets of proceedings in the Zavodskyy ORG of PERSON against ORG and the President of GPE , seeking recovery of their indexed deposits with ORG ( “ the ORG ” ) made before DATE , and compensation .

By CARDINAL judgments of CARDINAL and DATE , the court ordered ORG of the ORG to pay , respectively , the second applicant ORG CARDINAL,CARDINAL.CARDINAL and the first applicant ORG DATE , which corresponded to the amounts of their indexed deposits .

The relevant parts of the judgement of DATE , in which the court gave reasons for its decision and stated the decision itself , read as follows :

“ ... According to Article CARDINAL of the LAW of GPE , the right to use private property is inviolable . Pursuant to LAW , all the laws and normative acts adopted after the LAW shall not diminish the content and scope of the rights and duties of the citizens , provided for in LAW . The provisions of the LAW have the highest legal force ...

According to LAW , the ORG undertakes to maintain and update the real value of ORG bank deposits and guarantees compensation pursuant to the relevant rules . The payment of compensation [ to NORP citizens ] for loss of value of money deposits shall be borne by ORG of GPE .

This provision of the PERSON is decisive for the merits of the [ applicant ’s ] claims . In fact , the [ State ] ORG [ of GPE ] pleads no defence .

The provisions of LAW on gradual repayment of the deposits to the citizens of GPE concerns the order of enforcement of a court decision on Repayment of an indexed deposit .

Therefore , the claims of PERSON for Repayment of the indexed deposit shall be allowed within the limits of the sums , as stated in the compensation accounts ...

Pursuant to ... , the court

Decided :

To order ORG of ORG to pay PERSON the indexed deposit from the compensation accounts in the Dnipropetrovsk Regional Department nos . ... [ in the amount of ] UAH CARDINAL , ORG DATE and ORG DATE , as well as to pay ORG CARDINAL in respect of the court fees .

To reject the remainder of the [ applicant ’s ] claims and [ her claim for ] compensation for non - pecuniary damage , as well as [ her ] claims against ORG of GPE , the PERSON [ ORG of the ] ORG , and the President of GPE . ”

The court used similar wording in its judgment of DATE .

In DATE the applicants lodged with the Zavodskyy ORG their appeals against the judgments of CARDINAL and DATE . In DATE they withdrew their appeals .

On DATE the Zavodskyy ORG of PERSON instituted enforcement proceedings .

By CARDINAL separate decisions of DATE , ORG discontinued the enforcement proceedings on the grounds that ORG of the ORG was not a separate legal entity and that it was the Cabinet of Ministers of GPE which was competent to establish the order of repayment of the indexed deposits under LAW GPE on ORG . The applicants did not challenge these decisions before the domestic courts .

In DATE the first applicant was paid ORG CARDINAL in repayment of his indexed deposit pursuant to the resolution of ORG DATE . According to the ORG , the first applicant failed to claim ORG CARDINAL to which he was entitled in DATE . In DATE and DATE the second applicant received a total of ORG CARDINAL pursuant to the resolutions passed by the Cabinet of Ministers concerning repayment of indexed deposits to the citizens of GPE in DATE and DATE . There is no information in the case file whether further payments were made in respect of the judgments of CARDINAL and DATE .

LAW provides as follows :

“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”

Under LAW , the enforcement of judgments is entrusted to ORG . Under LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department for that ORG or with a local court . LAW entitles the creditor to institute court proceedings against a legal person responsible for the enforcement of a judgment , for inadequate enforcement or non - enforcement of a judgement , and to receive compensation .

LAW provides for the liability of bailiffs for any inadequate performance of their duties , as well as compensation for damage caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .

Pursuant to LAW , the ORG undertakes to pay the citizens of GPE compensation for the loss of their money deposited before DATE with , inter alia , the branches of ORG GPE , which carried out business on the territory of GPE . The NORP citizens , who deposited their money with ORG and ORG of GPE in DATE , are entitled to compensation , provided that the money has remained in the accounts of ORG for DATE .

LAW provides that the money deposits shall be repaid gradually , taking into account the amount of the deposits , within the limits of funds , allocated for that purpose in ORG for DATE .

The persons eligible for repayment of their deposits were defined in regulations approved DATE by ORG for DATE . For instance , on DATE the ORG passed a resolution concerning the repayment in DATE of the value of deposits made by the NORP citizens before DATE in branches of the former ORG of the GPE , which carried out business on the territory of GPE . By that resolution , the Government allocated UAH CARDINAL from the national budget to enable individual deposits to be indexed . Of that amount , UAH CARDINAL was allocated to the heirs of account holders who had died DATE , on condition that they had not yet received the grant available LAW CARDINAL of the LAW DATE . The remaining ORG CARDINAL was to be divided between the other account holders . The amount payable to each beneficiary was , in principle , limited to ORG DATE . The ORG passed similar resolutions in respect of DATE .


Preliminary objections rejected (victim);No violation of Art. 2;No violation of Art. 6-1

NORP Immediately following its birth in a private clinic , “ FAC ” , in PERSON the applicant 's new - born baby was admitted to the intensive care unit of ORG suffering from serious respiratory and neurological post - asphyxia syndrome induced by the position in which it had become lodged during delivery . The baby died on CARDINAL DATE , DATE after birth .

On DATE the applicants lodged a complaint . The PERSON public prosecutor 's office started an investigation that DATE .

On DATE PERSON was questioned as a witness . A team of CARDINAL expert witnesses was named .

As nothing further happened in the proceedings , the applicants made several requests , notably on DATE , and DATE and DATE , for the investigation to be expedited . On DATE the public prosecutor 's office itself requested the expert witnesses to lodge their report .

On DATE the applicants were informed that at the request of the public prosecutor 's office , the investigating judge had notified GPE – the doctor responsible for delivering the baby and the joint owner of the clinic DATE that charges would be brought against him .

Subsequently , the scheduled questioning of certain witnesses on DATE did not take place , as the judge dealing with the case was on holiday .

Meanwhile , on DATE , the applicants were joined to the proceedings as civil parties .

On DATE the prosecution applied for the complaint to be filed away without further action . That application was dismissed on CARDINAL DATE .

On DATE the investigating judge instructed the public prosecutor 's office to make further inquiries . Consequently , on CARDINAL DATE the deputy public prosecutor ordered forensic tests . The results were made available on DATE .

On DATE ORG was committed for trial before ORG on a charge of involuntary manslaughter and the applicants renewed their application to be joined to the proceedings as civil parties .

The first hearing was set down for DATE but had to be adjourned because of a lawyers ' strike . The next hearing on DATE was also adjourned due to a delay in service of a summons on the accused to appear .

A new hearing date was fixed for DATE . On that date an order was made for the accused 's trial in absentia . The trial did not begin , however , until DATE , as meanwhile the accused had changed lawyers . The hearing scheduled for DATE was adjourned until DATE as the composition of the bench was not the same as that to which the case had been allocated . The trial thereafter continued with hearings on DATE , and CARDINAL and DATE ( the latter hearing being adjourned as one of the expert witnesses appointed by the court had to be replaced ) . A hearing on DATE was adjourned to QUANTITY DATE , again owing to the fact that the composition of the bench was not the same as that to which the case had been allocated . There were further hearings on CARDINAL and DATE . On the latter date the order for the accused 's trial in absentia was revoked , but the hearing had to be adjourned as the expert witnesses failed to attend without due cause ( they were ordered to pay a fine and to attend the next hearing on DATE ) . A final hearing took place on DATE . The accused , who had attended the hearings on CARDINAL DATE and DATE , was not present at that hearing .

At the hearing on DATE the ORG found the accused guilty in absentia of involuntary manslaughter . Its judgment was lodged with the registry on DATE . ORG sentenced the accused to DATE imprisonment and ordered him to pay the civil parties ' costs together with compensation to be assessed at DATE .

It found firstly that the accused knew that the birth had to be regarded as high risk since the mother was a level - A diabetic and had a past history of confinements that had been equally difficult because of the size of the foetus . The risks inherent in deliveries in such circumstances , which the expert witnesses appointed by ORG described as readily foreseeable , meant that precautionary measures should have been taken and that the doctor in charge should have been present . ORG found , however , that GPE , whom the applicant had consulted during the pregnancy , had made no arrangements for precautionary measures , such as an external examination of the mother , to assess whether the foetus was too large for a natural birth . Above all , he had absented himself during the birth . When the complications had occurred , it had taken the nursing staff TIME to locate GPE , who was busy seeing patients in another part of the clinic . The intervening delay before ORG was able to perform the manipulation necessary to extract the foetus had significantly reduced the new - born 's chances of survival .

ORG nevertheless suspended the sentence and ordered that the conviction should not appear on GPE 's criminal record . In addition , it dismissed the civil parties ' application for a provisional award of compensation .

On DATE E.C. appealed to ORG .

In a judgment of CARDINAL DATE , which was delivered in absentia and lodged with the registry on CARDINAL DATE , ORG declared the appeal inadmissible . Noting that he had been tried in absentia at first instance , ORG held that ORG had failed to give his lawyer the authority to act required under the rules applicable in such cases . It ordered him to reimburse the costs incurred by the civil parties in the proceedings .

On DATE GPE appealed to ORG . In a judgment of DATE , which was lodged with the registry on CARDINAL DATE , ORG overturned the decision of ORG , to which it remitted the case for a retrial . It held that ORG had erred in treating GPE as being absent , as he had been present at the start of the trial and had accordingly to be regarded as having left the court during the trial and not as liable to trial in absentia .

In a judgment of DATE , which was lodged with the registry on DATE , ORG ruled that the prosecution of the offence was time - barred .

In so doing , it noted that the limitation period for the offence of which ORG was accused had expired on DATE , in other words , even before ORG had delivered its judgment .

Following DATE 's conviction at first instance by ORG on DATE ( see paragraphs CARDINAL above ) , the applicants served a summons requiring ORG to appear before the civil court of that town .

NORP However , on DATE the applicants entered into an agreement with the insurers of the doctor and the clinic under which the insurers were to pay MONEY ( ORG ) for any damage sustained by the applicants . Of that sum , ITL CARDINAL were designated as reparation for the special loss sustained by PERSON . At that time , the criminal proceedings were pending in ORG following ORG judgment of DATE ( see paragraph CARDINAL above ) .

Subsequently , as the parties failed to attend a hearing on DATE , the case was struck out of the civil court 's list . At that stage , the criminal proceedings had only just ended , ORG ruling that the prosecution of the offence was time - barred having become final on DATE .

Article CARDINAL of the NORP LAW provides :

“ The public prosecutor 's office has a duty to prosecute . ”

Article CARDINAL of LAW lays down that the penalty for involuntary manslaughter is imprisonment of DATE .

Furthermore , LAW , sub - paragraph CARDINAL , of LAW provides that the limitation period for involuntary manslaughter is DATE . That period may be extended by CARDINAL as a result of any interlocutory matters arising , but may under no circumstances exceed DATE from the date of the offence .

Lastly , LAW provides :

“ In cases in which publishing the decision on the merits may contribute to providing reparation for the damage , the court may , on application by an interested party , order the losing party to publish the decision at its own expense in CARDINAL or more newspapers determined by the court .

If the decision is not published within the period fixed by the court , the interested party may arrange for publication and shall retain the right to recover the costs from the losing party . ”

In the resolution cited above , adopted on DATE , ORG recommended that in their internal legislation and practice the governments of the member States be guided by the following principles :

“ CARDINAL . Criminal proceedings should not be instituted or , if appropriate , sanctions shall not be imposed for manslaughter or accidental bodily injury resulting from a minor traffic offence , that is to say , a driving offence that was not such that its author must have been aware of the danger to which he exposed himself or others ;

The same should apply , subject to the inexcusable character of the fault committed , in respect of a person who has caused manslaughter or accidental bodily injury if he himself or someone dear to him has been so badly injured that a sanction would be pointless , if not inhuman ;

Application of the above - mentioned recommendations should in no way prejudice the rights of the victims to obtain compensation . ”


VRANISKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant was a bishop in ORG ( “ the ORG ” ) . On DATE ORG of the MOC ( Светиот PERSON ) dismissed him from this duty on the ground that he had violated the oath ( NORP исповедание/ заклетва ) by which he had pledged to safeguard the ORG ’s unity and LAW by his unilateral accession to ORG ( “ the SOC ” ) . On DATE , the applicant was expelled from the FAC . He was also prevented from carrying out ceremonies and preaching in all churches and monasteries .

On DATE ORG ( “ the trial court ” ) convicted the applicant of inciting ethnic , racial and religious hatred and intolerance and sentenced him to CARDINAL months’ imprisonment . It established that the applicant had accepted , although being aware that it would instigate religious hatred and intolerance among believers in the ORG , to be appointed by the ORG as an exarch of the so - called ORG and to represent the latter as the only valid church in the respondent State . In that capacity , he had undertaken the following .

a ) In DATE , he released a religious calendar in which he had made , inter alia , the following defamatory statements in respect of the ORG :

“ ... the dissident high episcopacy of the so - called ORG bears full responsibility for the lack of religious education of the people . The bishops of that dissident organisation , since the beginning of the schism in DATE until the present , behave inadequately given the function which they were bound to by God . They persistently put their own interests before the interests of the church . They were and still remain the last bastion of communism ... The people ... allowed a few so - called archbishops , unrecognised by anyone , to decide about their church ... If people were aware of the [ importance of the church ] , they would never allow some worldlings and heretics to decide on the destiny of the ORG .

Unfortunately , the schism in ORG , which began in DATE , meant that many religious surrogates were created on our territory .

The latest heresy disseminated by the high episcopacy of the dissident organisation , which calls itself ORG , is to accept the schism as a normal state of affairs which they defend by non - religious methods ...

ORG of the episcopacy of ORG ... allowed the dissident archbishops in GPE to reunite ... with ORG , on pain of being taken before ORG . CARDINAL new episcopes , PERSON , were appointed as adjuncts of [ the applicant ] ...

Being aware that if they targeted the pastor they would destroy the herd , the dissidents , who call themselves ORG , endeavour to discredit [ the applicant ] , who is the only canonical episcope in the territory of GPE ...

They are further aware that if the state authorities let Patriarch PERSON ( the Patriarch of ORG at that time ) and other archbishops of other ORG to enter GPE , the people would soon realise that everything they said about [ the applicant ] was untrue and a political trick ... ”

b ) In DATE , he attended the confirmation ( хиротонија ) of PERSON episcopes . Both were proposed by ORG with a view to creating the illusion of a parallel ORG of the ORG . The ceremony took place in a church in GPE , GPE .

c ) On DATE the applicant held a religious ceremony in an apartment owned by his parents which , according to him , served as a religious object . In doing so , the applicant stirred up considerable religious hatred and intolerance among believers in the ORG and provoked various associations of citizens and other organisations .

The trial court established that , as a historical fact , the ORG had existed on the territory of the respondent State as an ecclesiastical power until DATE , when it had been abolished by GPE . Since then , ORG and , briefly , ORG , had been in power . The ORG had further existed DATE , having autonomy under the ORG . The ORG “ did not have an interest in GPE having an independent [ autocephalous ] ORG , but rather an autonomous church , as was the ORG ... after the breakup of GPE and the independence of GPE , the ORG was constituted , which increased the gap with the ORG ” The court further found it undisputed that the ORG was not recognised by the ORG and that due to that dispute , the ORG was not recognised by any of the churches of ORG either .

The court established that the applicant , after being appointed exarch by the ORG , had started acting as a leader of ORG as the true ORG in the respondent ORG , in parallel to the ORG . At his request , the ORG made PERSON with a view to creating ORG of the Ohrid Archiepiscopate . He designated his GPE apartment as the seat of ORG , where he held religious ceremonies on many occasions . He denied the existence of the ORG , as well as the reputation and dignity of its leaders . His ideas in favour of the restoration of ORG under the ORG ’s jurisdiction were only supported by a small group of priests and citizens .

The court found that the applicant , in the religious calendar of DATE , had made untrue , disrespectful and defamatory statements about the ORG and its leaders . He had attempted to present himself as a martyr seeking salvation for the NORP people , whom he called ignorant and illiterate . The court described the calendar as “ bad and vulgar in respect of the religious feelings of the NORP people ” . It found that , in addition , the applicant had described the religious teaching of the ORG as “ heretical ” .

The court established that the applicant had released the calendar , although he denied it . The calendar was published by a monastery located in his GPE DATE house , a fact which could not have been unknown to him . The calendar was fully devoted to him and his activities ; it further contained pictures of him taken on different occasions . Its text reflected his ideas on denying the existence of the ORG , which he had continued to express during the trial . The court therefore concluded that the applicant had determined the text of the calendar , and printed and distributed it through his followers .

It further established that the applicant had not succeeded in persuading people to accept his teaching , but rather , had instigated hatred towards himself and his followers . The ensuing revolt and intolerance had derived from an infringement of the religious sensibilities of the people , who had requested the state authorities to intervene . He had even been threatened with assault . In this connection , the court referred to an incident of DATE when a considerable number of people had gathered in front of the applicant ’s home to protest about his activities .

The trial court rendered the decision after it had heard submissions from the applicant and several witnesses and examined other documentary evidence . It disregarded the applicant ’s arguments that several ORG could exist in the respondent ORG , stating that only the ORG and its ORG existed under LAW .

The applicant appealed and complained , inter alia , that the proceedings in question concerned his freedom of religion , which was guaranteed under LAW . He was convicted for having expressed different religious opinions than those of the members of ORG . Even though the applicant agreed with the contents of the calendar , he complained that no evidence had been presented that he had published it . He complained that the conduct as a result of which he had been found guilty could not be interpreted as incitement to religious hatred and intolerance , but only as an insult or defamation , which could only be prosecuted by means of a private action .

On DATE ORG held a hearing which was attended by the applicant , his lawyer and a representative of the public prosecutor ’s office . The court upheld the applicant ’s conviction under all CARDINAL heads . It found no reason to depart from the trial court ’s reasoning that the applicant had deliberately undertaken the actions he was convicted of and that he had instigated a schism in the ORG and religious hatred and intolerance among NORP churchgoers .

The court held that the applicant had abused the right to freedom of religion by creating a parallel ORG , which was contrary to the LAW , under which there was only CARDINAL ORG on the territory of the respondent ORG . It concluded that the applicant had aimed to implement the ideas of a foreign state on the territory of the respondent ORG .

On DATE the applicant lodged a request with ORG for extraordinary review of a final judgment ( барање за вонредно преиспитување на правосилна пресуда , hereinafter “ extraordinary review request ” ) . He complained that he had been convicted on the basis of having acceded to another religious community and holding a religious ceremony in his home . As regards the calendar , he reiterated that , ultimately , he could only be held criminally responsible for insult and/ or defamation , which were not prosecutable except by means of a private action . He invoked , inter alia , LAW .

On DATE ORG ruled partly in favour of the applicant and upheld his conviction only in respect of the distribution of the religious calendar . It decided that the applicant ’s conduct under b ) and c ) described in the trial court ’s decision did not fall within the scope of CARDINAL ( CARDINAL ) of LAW ( see “ Relevant domestic law ” below ) . In this latter context , it found that the applicant ’s presence at the confirmation ceremony in GPE and the religious ceremony in his home were to be regarded as falling within the right to freedom of thought and religion and were , as such , protected under LAW .

As to the religious calendar , it stated inter alia , that :

“ ... the way in which [ the applicant ] entered the public arena by way of the religious calendar of DATE , which was distributed in the homes of believers in GPE and further afield , the formulations he used , his position , the aims he wished to achieve and the consequences of his activities , analysed in the context of the freedom of thought , conscience and religion , as well as the right of freedom of religion of others , is an act which was directed towards the violation of the legal order which guarantees these rights .

A criminal offence is committed when , irrespective of the manner it is undertaken , an action demonstrates that certain expressions were deliberately intended to serve as propaganda instigating ethnic , racial and religious hatred , division and intolerance ... ”

ORG further stated that :

“ The conduct of [ the applicant ] , who was appointed exarch of the so - called ORG by the Patriarch of ORG , with a view to creating a parallel Holy Synod in GPE , went beyond the freedom of thought , conscience and religion . The facts of the case ... confirm that the public expression of thought , or as the convicted stated – his freedom of religion – by way of the religious calendar of DATE , which was addressed to orthodox believers in ORG , in the view of ORG , can not be regarded as an expression of his personal intellectual stance nor it is an intellectual , theological and scientific opinion addressed to [ those believers ] . The calendar of DATE , by its contents and aim , was a direct violation of the freedom of others to have their own thought , conscience and religion , namely belief in ORG and its existence for DATE , in the canons of orthodox communion , in its ceremonies etc . The contents of the religious calendar directly incite and encourage religious intolerance and division among NORP believers in ORG .

The rights of others , namely to the freedom of religion , entail respect for believers as stipulated in LAW . That , according to ORG , was violated with the provocative depiction of events in the calendar . Defamatory statements such as “ those who claim that ORG exists spread heresy ” and “ ORG is heretical ” , are , at the least , a somewhat unusual form of communication between believers and churches .

[ The applicant ’s ] expression ... acting always as an exarch appointed by ORG , reaches high level of abuse and , as such , demonstrates a denial and violation of others’ freedom of thought and religion and can not , accordingly , be tolerated in a free and democratic society . His activities are directed towards the believers in ORG in order to stir up religious hatred and intolerance . ”

Article CARDINAL , as far as relevant , provides as follows :

“ ( CARDINAL ) The freedom of conviction , conscience , thought and public expression of thought is guaranteed ... ”

Article CARDINAL , as far as relevant and modified with Amendment VII , provides as follows :

“ ( CARDINAL ) The freedom of religion is guaranteed .

( CARDINAL ) The right to express one ’s religion , freely and publicly , individually or with others , is guaranteed .

( CARDINAL ) ORG , as well as ORG in GPE , ORG , ORG , ORG and other religious communities and groups are separate from the ORG and equal before the law ... ”

Article CARDINAL , insofar as relevant , provides as follows :

“ ( CARDINAL ) Every citizen may seek protection of freedoms and rights set out in the LAW before courts of general jurisdiction , as well as before ORG , in a procedure based on the principles of priority and urgency ... ”

“ ORG :

( CARDINAL ) protects the freedoms and rights of individuals and citizens concerning the freedom of conviction , conscience , thought and public expression of thought ; political association and activity ; and the prohibition of discrimination among citizens on the grounds of sex , race , religion , national , social and political affiliation ;

Section CARDINAL of the Criminal Code provides , inter alia , that any person incites national , racial or religious hatred , disagreement and intolerance by coercion , ill - treatment , or duress , who insults national , ethnic and religious symbols , or damages monuments and cemeteries , or in any other way incites national , racial or religious hatred , disagreement and intolerance shall be punished with CARDINAL to CARDINAL years’ imprisonment .

Section CARDINAL of the Rules of Procedure of ORG , insofar as relevant , provides as follows :

“ Any citizen who considers that his or her right or freedom set out in LAW has been violated by an individual act or action , may seek protection by ORG within DATE from DATE he or she was served with the final individual act ... ”